author: PRESIDING JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY J. JACKSON, Defendant-Appellant.
    Fourth District
    No. 4-92-0283
    Opinion filed December 31, 1992.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In November 1991, the State charged defendant, Jerry J. Jackson, with resisting a peace officer (Ill. Rev. Stat. 1991, ch. 38, par. 31—1). In February 1992, defendant pleaded guilty to that charge in exchange for the State’s agreement to dismiss an unrelated felony charge of unlawful possession of a weapon by a felon. The parties had no agreement as to any sentence that they would recommend be imposed. The court allotted the matter for sentencing hearing on March 9, 1992.

On that date, defendant failed to appear, but the trial court conducted a sentencing hearing anyway. At the conclusion of the hearing, the court sentenced defendant to 364 days in jail and asked defendant’s counsel if she wanted a notice of appeal filed on behalf of her client. She responded, “I suppose that would be appropriate.” Later that same day, the court entered a written order directing the circuit clerk to prepare and file a notice of appeal on defendant’s behalf and appointing the office of the State Appellate Defender as counsel for defendant.

On March 31, 1992, the circuit clerk filed a notice of appeal for defendant. On April 3, 1992, defendant filed a motion to reconsider the sentence, alleging that (1) the court erred in sentencing him in absentia, and (2) his sentence was excessive. On April 23, 1992, the trial court conducted a hearing on that motion and held that it had lost jurisdiction to consider the motion because of the filing of the notice of appeal. The sole issue on appeal is whether the trial court erred in refusing to hear defendant’s motion to reconsider. We hold that it did not and affirm.

In general, the filing of a notice of appeal is the only jurisdictional step required to perfect an appeal, and that filing deprives the trial court of jurisdiction. (People v. Jones (1984), 104 Ill. 2d 268, 283, 472 N.E.2d 455, 462; People ex rel. Carey v. Scotillo (1981), 84 Ill. 2d 170, 175-76, 417 N.E.2d 1356, 1359; 134 Ill. 2d R. 606(a).) However, Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) requires a defendant who wishes to appeal a guilty plea to first file a motion to withdraw it. (People v. Wilk (1988), 124 Ill. 2d 93, 107, 529 N.E.2d 218, 223.) Further, a defendant who wishes to appeal only the sentence imposed upon his guilty plea need not file a motion to withdraw the plea; instead, he should file a written motion attacking the sentence prior to appealing. People v. Wallace (1991), 143 Ill. 2d 59, 61, 570 N.E.2d 334, 335; Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.

We hold that the trial court correctly determined that the filing of the notice of appeal deprived it of jurisdiction. When the court so ruled, perhaps defense counsel should have filed a motion to withdraw the notice of appeal, as well as motions for other relief, in order to comply with the requirements of the supreme court in Wilk and Wallace. However, defense counsel took no further action, and part of the difficulty counsel had with determining what procedural steps to take might have resulted from defendant’s failure to previously appear as the court directed. In a different context regarding defendants who fail to appear when directed, this court wrote the following:

“[Defendants who wilfully choose to disregard court orders to appear at trial or sentencing hearings are entitled to no succor or sympathy from the trial courts or this court. ***
*** ‘The loss to the defendant of benefits otherwise available [such as consulting with his counsel about post-sentencing strategies] may be viewed as one additional cost of his wilful failure to appear *** as directed.’ ” People v. Burcham (1991), 208 Ill. App. 3d 939, 943, 566 N.E.2d 832, 835.

As a last matter, we note that after the trial court ruled that it had no jurisdiction to entertain defendant’s motion to reconsider sentence, it referred to its earlier remarks at the March 9, 1992, hearing in which it addressed the Wallace case as follows:

“Even though you have a right to file a motion to reconsider, that would be a useless act on your part, because based upon the evidence before me, I would reimpose the same sentence and reaffirm the sentence that I imposed of the 364 days in jail in this matter, plus costs. I am not sure, with me having said that, that a motion to reconsider is a condition precedent.” (Emphasis added.)

We point out that the “useless act” the trial court referred to is one which the Illinois Supreme Court, in its wisdom, has deemed mandatory. (See Wallace, 143 Ill. 2d at 61, 570 N.E.2d at 335; Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221 (“[a]t the risk of stating the obvious, it should be pointed out that the rules adopted by this court *** are in fact rules of procedure and not suggestions”).) Accordingly, we hold it is error for a trial court to prejudge the matter, as attempted here, in an effort to short-circuit the requirements of supreme court rules. Motions to reconsider remain conditions precedent.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

KNECHT, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

The trial court erred when it stated the “motion to reconsider the sentence must be stricken, because it is untimely filed.” The notice of appeal and the motion to reconsider sentence were filed within 30 days of sentencing. On March 31, 1992, the notice of appeal was filed by the Champaign County circuit clerk on defendant’s behalf. On April 3, 1992, the motion to reconsider the sentence was filed. On April 23, 1992, a hearing was conducted on the motion to reconsider the sentence at which the trial judge determined that, once the notice of appeal was filed, the circuit court was divested of jurisdiction and the motion to reconsider the sentence must be stricken.

At the hearing on the motion to reconsider sentence on April 23, 1992, prior to proceeding, the State suggested to the court that the motion was not properly before the court “given the notice of appeal that was filed.”

The trial court then in reviewing the prior hearing indicated, “Even though you have a right to file a motion to reconsider, that would be a useless act on your part, because based upon the evidence before me, I would reimpose the same sentence ***. I am not sure, with me having said that, that a motion to reconsider is a condition precedent.”

The court then said, “However, I am convinced beyond any doubt that once the notice of appeal has been filed and the Appellate Defender has been appointed as counsel in this court, that the Court has lost jurisdiction and that your motion to reconsider the sentence must be stricken, because it’s untimely filed. *** The Court finds that the motion to reconsider sentence filed by the defendant is untimely and because the Court has lost jurisdiction since the filing of the notice of appeal on March 31st, 1992.”

The trial court in the exercise of its discretion could have dismissed the appeal. Its response, however, was to the effect that it could do nothing. In civil cases, if a post-trial motion is timely filed, even if it is preceded by the filing of a notice of appeal, the filing of the post-trial motion tolls the time for filing the notice of appeal and requires the withdrawal of the notice of appeal. (134 Ill. 2d R. 303(a)(2).) The corresponding rule in criminal cases has not been so amended (134 Ill. 2d R. 606) and Illinois Supreme Court Rule 303(a)(2) has not been made to apply to appeals in criminal cases. (See 134 Ill. 2d R. 612.) However, dismissal of an appeal pursuant to Supreme Court Rule 309 is appropriate where both a notice of appeal and a timely post-trial motion are on file. (134 Ill. 2d R. 309.) Supreme Court Rule 309 applies to criminal proceedings. (134 Ill. 2d R. 612(a).) The rule available in civil cases should also be applied here.

Although defendant did not specifically ask leave to dismiss the appeal, the trial court erred when it stated it had lost jurisdiction— without exercising its discretion to dismiss the appeal and allow 'a hearing on the motion to reconsider the sentence — due to an incorrect belief that it had no discretion. (134 Ill. 2d Rules 309, 612(a); People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166; see also Mizell v. Passo (1992), 147 Ill. 2d 420, 428, 590 N.E.2d 449, 452.) Defendant’s counsel sufficiently brought it to the court’s attention, “I also believe that the appeal has not been perfected in some way. If there is error and it can be corrected, I would like to do that.”

The record is clear that the trial court found it had lost jurisdiction and had no discretion to grant any relief. As in Queen, it had discretion but refused to exercise it.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMUND L. BURNS, Defendant-Appellant.
    Second District
    No. 2-91-0179
    Opinion filed December 31, 1992.
    Rehearing denied February 16, 1993.

      Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Edmund Burns, was convicted of reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9—3(a)) and driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. ll-501(a)(2)) after a stipulated bench trial. The trial court sentenced him to concurrent 3½- and 3-year terms of imprisonment. Defendant appeals, contending that the stipulated bench trial was tantamount to a guilty plea without the benefit of Supreme Court Rule 402 admonishments (134 Ill. 2d R. 402). Defendant further contends that the court erred in imposing sentence when it considered an improper aggravating factor and failed to consider mitigating evidence.

On April 13, 1990, defendant was involved in an automobile collision which resulted in the death of Jacqueline Iton. Her husband, Lennox Iton, and their two sons, Blair and Kyle, were injured in the accident.

The parties stipulated to the testimony of several witnesses. Defendant went drinking with friends, beginning at about 3:45 p.m. on April 13. He had a number of beers during that time. At about 7:30 p.m., a number of witnesses observed defendant “driving all over the road” on southbound Route 83 near 47th Street. He got into a verbal altercation with another driver, and drove away at a speed estimated at about 70 miles per hour. He was driving faster than other vehicles on the road and weaving in and out of lanes. Shortly thereafter, he lost control of his car, crossed into the northbound lanes, and collided with the Itons’ car.

Jacqueline Iton was pronounced dead at Loyola Medical Center. Lennox Iton and Blair Iton both suffered severe injuries. Three-year-old Kyle Iton was treated and released.

A police officer would testify that when he arrived at the scene defendant had a strong odor of alcohol on his breath, his eyes were glassy and bloodshot, his speech was slurred, and he told the officer that he had been out drinking with friends. Five hours after the accident, defendant’s blood-alcohol content was .119.

On May 18, 1990, a grand jury in DuPage County indicted defendant on one count of reckless homicide and six counts of driving under the influence of alcohol resulting in great bodily injury. On July 11, defendant filed a motion to suppress evidence and a motion in limine. The record does not reflect any ruling on these motions.

The matter came on for status on September 11, and the court ordered preparation of a preplea report. On November 14, the court entered an order continuing the cause “for plea and sentencing.” The order actually reads “for plea or setting for trial and sentencing,” but the words “or setting for trial” are lined out.

On December 6, the court continued the cause “for plea” to December 12. Defense counsel advised the court that defendant wished to waive a jury trial and proceed on a stipulated bench trial. On December 12, the prosecutor read the stipulated evidence as outlined above. Defendant presented no evidence or closing argument. The court found defendant guilty of reckless homicide and two counts of driving under the influence and dismissed the remaining counts. The court continued the cause for sentencing.

At the sentencing hearing, the parties stipulated that the preplea report would be considered the presentence report. After considering the report and the evidence in aggravation and mitigation, the court sentenced defendant to 3V2 years’ imprisonment for reckless homicide and a concurrent 3-year term for driving under the influence. The court denied defendant’s motion to reconsider sentence, and defendant timely appealed.

Defendant’s first contention on appeal is that the stipulated bench trial was tantamount to a guilty plea, but the court failed to admonish him pursuant to Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)). Under some circumstances, a stipulated bench trial may be deemed the functional equivalent of a guilty plea. In People v. Horton (1991), 143 Ill. 2d 11, 22, the supreme court adopted the rule that a stipulated bench trial is not tantamount to a guilty plea where the defendant presents and preserves a defense. The court noted that the stipulated bench trial procedure allows a defendant to obtain the benefits and conveniences of a guilty plea proceeding while avoiding the waiver rule usually applicable to that process. (Horton, 143 Ill. 2d at 22, citing, e.g., People v. Sullivan (1979), 72 Ill. App. 3d 533.) Where, on the other hand, defendant does not preserve a defense, the proceeding is tantamount to a guilty plea, and the court must admonish defendant in compliance with Rule 402(a). Horton, 143 Ill. 2d at 22; People v. Ries (1975), 28 Ill. App. 3d 698, 700.

Defendant contends that Horton controls this case. He points out that defense counsel filed a motion to suppress evidence and a motion in limine, but failed to pursue them to ruling. Orders which the court entered stated that the matter was being continued “for plea.” At “trial” defendant did not present evidence or closing argument.

In response, the State concedes that defendant failed to preserve a defense for appeal. The State cites Horton, and simply states that it does not govern this case, but fails to distinguish it.

We conclude that this case is controlled by Horton and that the court should have admonished defendant pursuant to Rule 402. His conviction must be reversed, and the cause remanded for further proceedings. We note that the evidence presented was sufficient to establish defendant’s guilt beyond a reasonable doubt. Thus, there is no double jeopardy concern. (See People v. Taylor (1979), 76 Ill. 2d 289, 309.) Because of our disposition of this issue, it is unnecessary to consider defendant’s remaining contention.

Reversed and remanded.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE McLAREN

text:
    JOHN PAVELICH, Plaintiff, v. ALL AMERICAN HOMES, INC., et al., Defendants (Highland Meadows Subdivision, Counterplaintiff-Appellant; John Pavelich Construction Company, Inc., Counterdefendant-Appellee).
    Second District
    No. 2—92—0378
    Opinion filed December 31, 1992.

      Joseph G. Skryd, of Wylie, Mulherin, Rehfeldt & Varchetto, EC., of Wheaton (Stephen A. Rehfeldt, of counsel), for appellant.
    Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegen (Michael K. Noonan, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal involves a contribution claim brought against John Pavelich Construction Company, Inc. (Employer), by Highland Meadows subdivision (Third-Party Plaintiff). The claim arises out of a suit John Pavelich (Employee), president of John Pavelich Construction Company, Inc., filed against the Third-Party Plaintiff, among others, as a result of injuries he sustained while working as a carpenter on a construction site in the Highland Meadows subdivision. The Employee did not sue his Employer (his own company) and did not seek worker’s compensation benefits. The sole issue on appeal is whether the trial court erred in granting the Employer’s section 2—619 (Ill. Rev. Stat. 1991, ch. 110, par. 2—619) motion to dismiss Third-Party Plaintiff’s contribution claim. The trial court ruled that where no worker’s compensation benefits have been paid, the Third-Party Plaintiff could not request contribution from the Employer in an amount reflecting the Employer’s pro rata share of the liability because Kotecki limited such contribution to an amount not greater than the worker’s compensation liability of the employer. (Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155; Ill. Rev. Stat. 1991, ch. 110, par. 2-619.) We reverse and remand.

On June 27, 1991, plaintiff filed an amended complaint alleging that he was injured while working as a carpenter for the Employer at a construction site located in the Highland Meadows subdivision in Zion. The complaint names All American Homes, Inc., Galaxy Homes, Inc., Precision Industrial Contractors and Highland Meadows subdivision (Third-Party Plaintiff) as defendants. On October 3, 1991, the Third-Party Plaintiff filed a third-party complaint against the Employer under the Joint Tortfeasor Contribution Act (Contribution Act) (111. Rev. Stat. 1991, ch. 70, par. 301 et seq.). The third-party complaint asked the trial court to grant contribution in favor of the Third-Party Plaintiff and against the Employer in an amount commensurate with the Employer’s pro rata share of liability.

On January 13, 1992, the Employer filed a motion to dismiss the Third-Party Plaintiff’s contribution action pursuant to section 2—619. (Ill. Rev. Stat. 1991, ch. 110, par. 2—619.) In its motion, the Employer argued that a third-party plaintiff cannot seek contribution from an employer in the absence of a claim or settlement of a plaintiff’s grievance against that employer under the Workers’ Compensation Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5 et seq.) According to the Employer, a third-party complaint for contribution cannot be had in the absence of a determination of the employer’s worker’s compensation liability.

In the alternative, the Employer asked that the third-party complaint be altered to reflect a requested contribution “in an amount not greater than the workers’ compensation liability of the third-party defendant.” The Employer argued that this request would better conform to the law identified in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155.

The trial court agreed and entered an order dismissing the Third-Party Plaintiff’s contribution action in its entirety with prejudice. In support of its determination, the court found that, pursuant to Kotecki, the existence of an employer’s lien is a condition necessary for the imposition of a contribution action against that employer. To summarize the trial court’s reasoning, an employer’s worker’s compensation liability (and the resultant lien) could only be determined by the Industrial Commission pursuant to the Workers’ Compensation Act. Absent such a determination, an employer cannot be held liable for amounts determined by a trial court in the context of a contribution action. Thus, a third-party complaint for contribution directed against an employer of the original plaintiff cannot be had where the employer’s worker’s compensation liability had not been determined through proper avenues. We disagree.

A trial court should not dismiss a cause of action under section 2—619 unless it clearly appears that no set of facts can be proved which would entitle a plaintiff to recover. (People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843.) On appeal, the standard is whether the complaint alleged facts sufficient to state a cause of action. (Knecht, 216 Ill. App. 3d at 860.) Since this motion comes to us on the pleadings, all well-pleaded facts and inferences are deemed admitted by the moving party. Copass v. Illinois Power Co. (1991), 211 Ill. App. 3d 205, 209-10.

The sole question on review is whether the Third-Party Plaintiff has alleged facts sufficient to state a cause of action for contribution against the Employer. We determine it has. The general rule is that, under the Contribution Act, an employer, though immune from a suit in tort by its employee, cannot bar a claim for contribution asserted by a defendant liable to the injured employee. (Kotecki, 146 Ill. 2d at 160; Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14.) However, the third-party plaintiff’s right to contribution is limited to an amount not greater than the worker’s compensation liability of that employer. Kotecki, 146 Ill. 2d at 160.

The instant case is one of first impression because allegedly no worker’s compensation claim has been made by plaintiff. Thus, we can fairly state that the limitation on the nature and extent of recovery on the Third-Party Plaintiff’s contribution claim is uncertain. The Employer mistakenly equates this uncertainty with a finding that its worker’s compensation liability is “zero.” Reasoning from this mistaken premise, the Employer and the trial court erroneously conclude that a contribution cause of action cannot survive.

We determine that an uncertain worker’s compensation liability is not grounds to dismiss a third-party contribution cause of action. First, as stated above, a third party has a right to make a contribution claim against a joint tort-feasor. This right is codified in our State statutes (Ill. Rev. Stat. 1991, ch. 70, par. 302(a)), and it applies against employers regardless of the Workers’ Compensation Act (Kotecki, 146 Ill. 2d at 160; Doyle, 101 Ill. 2d at 14). In our view, an employee’s failure to file a worker’s compensation claim should not act as a bar to a defendant’s .right to contribution and should not undermine the policy of the Contribution Act which seeks to allocate liability among culpable parties. (Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448.) Indeed, to allow the result the Employer seeks would condone the conduct of employers and employees who may conspire to place the entire burden of liability upon a defendant who may only be partially culpable.

Second, the employer has failed to sustain its burden of proof regarding its affirmative defense as to limited liability. In Kotecki, the precise question was “whether an employer, sued as a third-party defendant in a product liability case, is liable for contribution in an amount greater than its statutory liability under the Workers’ Compensation Act.” (Emphasis added.) Kotecki, 146 Ill. 2d at 156.

As we have indicated, this question assumes that worker’s compensation liability is in effect. Thus, once an employer’ worker’s compensation liability is set, the limits of a contribution claim will also be set.

However, if the Workers’ Compensation Act is not engaged, the limits of recovery for a contribution claimant should not be limited. Courts have reasoned that an employer will be liable in tort to a plaintiff until the defense of exclusive remedy under the Workers’ Compensation Act is raised, and, thus, that same employer is potentially liable for a contribution claim. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 750.) Here, the pleadings indicate that the Workers’ Compensation Act has not been engaged by either the employee or his employer.

The burden is on the employer to establish its limits of contribution liability. Because in this case no worker’s compensation claim has been filed, we fail to see how the employer can sustain its burden of proof regarding the limits of its liability. Moreover, the filing of a claim without proof of liability is equally useless in helping to determine liability limits. Kotecki states that the issue is “whether the employer will be forced to pay too much, thereby losing the protection that the Workers’ Compensation Act is supposed to provide.” (Kotecki, 146 Ill. 2d at 163.) This concern that the employer will pay “too much” implies that a worker’s compensation claim has been filed and some liability thereunder has accrued or will accrue. Thus, the Workers’ Compensation Act is only supposed to provide protections against paying “too much” where the Act is applicable and has been engaged. To invoke the protections available under the Workers’ Compensation Act where its coverage has not been established and is, at best, speculative would be unfair to the party seeking contribution. A contribution claim should not be dismissed by the mere assertion that liability is limited to worker’s compensation limits. In our view, the protections identified by Kotecki should only be available to employers who establish that a worker’s compensation claim has been filed and that some liability thereunder has accrued or will accrue.

Therefore we reverse the judgment of the circuit court of Lake County and hold that the Third-Party Plaintiff alleged sufficient facts to state a cause of action against the Employer. The Employer’s motion assumes that the Third-Party Plaintiff’s contribution recovery will exceed the relevant worker’s compensation liability. However, the Third-Party Plaintiff should not be denied its right to contribution where the employer has not shown the extent of its liability under the Workers’ Compensation Act. Until such proof is presented by the Employer, the Third-Party Plaintiff may seek contribution for pro rata liability as it would in any other tort suit. An undefined liability is not to be equated with the absence of liability, especially when the issue is raised as an affirmative defense.

To hold otherwise could force defendant, the Third-Party Plaintiff, to pay more than its pro rata share of the common liability. It would also allow the employer complete immunity from contribution without any showing of actual liability under the Workers’ Compensation Act, a situation contrary to the facts of Koteoki, where the immunity granted implicitly rested upon the existence of worker’s compensation liability.

For the above reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE MARKS, Defendant-Appellant.
    Third District
    No. 3—91—0746
    Opinion filed December 3, 1992.

      Robert S. Burke, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Joe Marks was charged by indictment with one count of theft by deception and one count of conspiracy to commit theft. Defendant was tried in absentia and the jury found him not guilty of theft and guilty of conspiracy. The trial court sentenced defendant to an extended term of six years’ imprisonment and ordered that defendant and a codefendant, Lena Wilson, should “jointly and severally” pay restitution in the amount of $93,000. Defendant’s post-conviction petition was dismissed as frivolous and patently without merit, and defendant appeals from that order. We reverse and remand.

Given our disposition of this cause, we will only recount those facts necessary to an understanding of the case. In June of 1986, Jeane Dunton began to avail herself of the services of codefendant Wilson, a so-called psychic. During the next 18 months, Dunton met with Wilson three to four times per week. Dunton gave various items of personal property to Wilson to increase her “power” and lift the “curse” which purportedly threatened the well-being of Dunton, her daughters and her grandson. These items included jewelry, clothing, a Cadillac automobile and a $1,200 silk suit.

Dunton testified that the defendant was Wilson’s common law husband. While the defendant never asked Dunton to give him any items, the silk suit was tailored to fit the defendant and he picked it up from the store when it was finished. Defendant also drove Dunton and Wilson from Peoria to Park Ridge, Illinois, where Dunton purchased a Cadillac. Wilson told Dunton that the devil had gotten into defendant and that the devil would be transferred from the defendant to the car. Dunton paid $15,000 as a down payment and financed the remaining $19,000 cost of the Cadillac. The defendant was present when the financing was arranged, and he answered some of Wilson’s questions about the financing agreement.

In January of 1988, the police approached Dunton and convinced her that Wilson was not a psychic. Dunton agreed to help in the investigation of Wilson, and 11 telephone conversations between Dun-ton and Wilson were taped between February 1 and February 8, 1988. During one of these conversations, Dunton falsely claimed to have inherited a large sum of money. Wilson told Dunton to bring $36,000 in cash and meet her in the parking lot of a restaurant. After Wilson failed to appear for the meeting, the defendant called Dunton at her home. The defendant asked to meet with Dunton, explaining that “what was in me, went in [Wilson].” The defendant said he would have Wilson call Dunton, and told Dunton, “you gotta [sic] stick behind us. We have you.”

The defendant was subsequently arrested, and he and Wilson were charged with theft by deception and conspiracy to commit theft. The theft charge was based on the various items of property, including the Cadillac, allegedly given to the defendants by Dunton between June of 1986 and February of 1988. The conspiracy count was based on the meeting which was to have occurred in the restaurant parking lot. As indicated earlier, the defendant was tried in absentia and was found not guilty of theft and guilty of conspiracy. Defendant was sentenced to a six-year extended term of imprisonment and was ordered to pay $93,000 in restitution. Defense counsel did not file any post-trial motions attacking the judgment or sentence, nor did he file a notice of appeal. On August 21, 1991, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.). The petition was dismissed by the trial court as frivolous and patently without merit (see Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1(a)(2)).

The Post-Conviction Hearing Act provides a remedy to defendants who claim that substantial violations of their constitutional rights occurred during trial. (People v. Eddmonds (1991), 143 Ill. 2d 501, 578 N.E.2d 952.) A post-conviction proceeding is a collateral attack upon a final judgment, and its purpose is not to determine guilt or innocence, but to inquire into constitutional issues which have not been previously adjudicated. (Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952.) Although the defendant ultimately bears the burden of proving that a substantial constitutional violation occurred at trial (Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952), to survive dismissal at the initial stage of a post-conviction proceeding, a petition need only present the gist of a meritorious constitutional claim (People v. Jones (1988), 168 Ill. App. 3d 925, 522 N.E.2d 1325; People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445). While the pro se petitioner does not have to construct legal arguments or cite to legal authority, he must set forth the specific manner in which his rights were violated. (People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158.) In the absence of allegations raising a relevant issue, the court is not bound to search the entire record for some undisclosed but mitigating circumstances. (Porter, 122 Ill. 2d 64, 521 N.E.2d 1158.) The dismissal of a post-conviction petition will not be reversed absent an abuse of discretion by the trial court. People v. Dean (1992), 226 Ill. App. 3d 465, 589 N.E.2d 888; People v. Jackson (1991), 213 Ill. App. 3d 806, 572 N.E.2d 475.

An examination of defendant’s petition and accompanying memorandum of law reveals that defendant alleged three constitutional violations. First, defendant claimed that his trial counsel was ineffective for failing to file a post-trial motion or notice of appeal. The only issue, however, that defendant contended should have been raised by counsel was that he was not eligible for an extended-term sentence. This issue is without merit. The transcript of the sentencing hearing clearly shows that in imposing an extended term the trial court relied on the fact that the victim was 60 years of age or older at the time the offense was committed. This was a proper factor upon which to base an extended-term sentence. Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(4)(ii).

The defendant’s petition next alleged that he was denied due process of law because: (1) he was not admonished that he could be tried and sentenced in absentia; (2) he was not informed of the possibility of an extended-term sentence; and (3) he was improperly sentenced to an extended term. As discussed above, the extended-term sentence was based on a proper aggravating factor. With regard to the failure to admonish defendant about a trial in absentia, the record shows that the defendant was so advised at his arraignment. Moreover, where a defendant has been admonished that trial may proceed in his absence, he need not be specifically told that sentencing may also occur in his absence, since a sentencing hearing is part of the trial. (People v. Smith (1990), 202 Ill. App. 3d 606, 560 N.E.2d 399.) In addition, a trial court has no obligation to inform a defendant of the possibility of an extended-term sentence unless the defendant is entering a guilty plea. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(b); People v. Burcham (1991), 208 Ill. App. 3d 939, 566 N.E.2d 832.) Defendant’s contention that he was denied due process is patently without merit.

The third alleged constitutional violation raised by defendant in his post-conviction petition was that his appellate counsel was ineffective in failing to advise him that his trial counsel was ineffective and in failing to assist him in preparing his post-conviction petition. This claim fails for two reasons. First, the only specific allegation of ineffectiveness was once again the erroneous argument that defendant was not eligible for an extended-term sentence. Second, the appellate counsel that defendant claimed was ineffective, Peter Carusona, was not assigned to this case. Carusona represented the defendant on appeal of the denial of his motion to withdraw a guilty plea in case number 88 — CF—332. In that case, defendant was charged with violating the bail bond which had been posted in the instant case. Although defendant apparently believed that Carusona was obligated to assist him with the case at bar, we find no basis for imposing such a duty. A bail bond violation occurs even where the underlying charge is later declared invalid. (People v. Tompkins (1975), 26 Ill. App. 3d 322, 325 N.E.2d 83; People v. Arnone (1973), 15 Ill. App. 3d 278, 304 N.E.2d 95.) There was no need, therefore, for Carusona to search the record and determine the validity of defendant’s underlying conviction for conspiracy. We find no merit to defendant’s claim.

Finally, defendant’s brief on appeal raises several issues in support of his claim of ineffective assistance of trial counsel, including the sufficiency of the evidence, improper jury instructions, misleading closing argument by the prosecutor, the trial court’s reliance on improper aggravating factors in sentencing, and improperly ordering the defendant to make restitution for a crime of which he was acquitted. Indeed, virtually defendant’s entire brief is devoted to these issues. These claims were not raised in defendant’s post-conviction petition, however, and “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” (Ill. Rev. Stat. 1987, ch. 38, par. 122—3; see People v. Free (1988), 122 Ill. 2d 367, 376, 522 N.E.2d 1184, 1188 (“Consistent with [section 122 — 3], this court has held that a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition”); People v. Heirens (1954), 4 Ill. 2d 131, 122 N.E.2d 231 (reviewing court will not consider claims of post-conviction petitioner that were not presented to trial court).) The waiver rule, however, is not an absolute bar to procedurally defaulted claims, and where fundamental fairness requires, the waiver rule will not be applied in post-conviction proceedings. People v. Owens (1989), 129 Ill. 2d 303, 544 N.E.2d 276.

We believe that it would be fundamentally unfair to apply the waiver rule to this case. The defendant’s post-conviction petition alleged that his right to direct appeal was lost due to his trial counsel’s incompetence. It appears that such an allegation, standing alone, may be sufficient to state the gist of a meritorious constitutional claim. (See People v. Moore (1990), 133 Ill. 2d 331, 549 N.E.2d 1257 (where a post-conviction proceeding is used to remedy a lost right of appeal, no showing of prejudice is required where counsel failed to perfect defendant’s appeal, as prejudice is presumed).) In addition, we find that the issues that the defendant raises for the first time on appeal are sufficient to state the gist of a constitutional claim. In particular, we note that the conspiracy offense of which defendant was convicted resulted in no loss of money or property by the victim, and yet defendant was ordered to pay restitution. The restitution order appears to have been based on the charge of theft by deception, a charge of which the defendant was acquitted by the jury. We therefore reverse the circuit court’s order dismissing defendant’s petition and remand this cause for appointment of counsel and for further proceedings in accordance with sections 122 — 4 through 122 — 6 of the Act. We specifically note that our decision is not intended to reflect negatively on the abilities of the trial court. We fully understand that a trial judge cannot rule upon issues which were never presented to him.

For the reasons stated above, the judgment of the circuit court is reversed and remanded.

Reversed and remanded.

BARRY, R J., and GORMAN, J., concur.


author: JUSTICE H. LEWIS

text:
    ALMA SMITH, Indiv. and as Mother and Next Friend of Tommy L. Smith, Plaintiff-Appellant, v. FINIS HOLMES et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0302
    Rehearing denied January 25, 1993.
    Opinion filed December 3, 1992.

      John Womick, of Womick & Associates, Chartered, of Carbondale, for appellant.
    Charles E. Schmidt and Stephen W. Stone, both of Brandon, Schmidt & Palmer, of Carbondale, for appellee Richard L. Holmes, trustee of the James Lynn Land Trust and Nicole Lynn Land Trust.
    William J. Novick, of Fowler & Novick, of Marion, for appellees Finis Holmes and Mary Virginia Holmes.
    John C. Ryan, Brad A. Elward, and Michael F. Dahlen, all of Fierich/ Schoen/Mager/Green, of Carbondale, for appellee Richard L. Holmes, trustee of the Mik-Mar Land Trust, Jennifer Lynn Land Trust, Darren Lynn Land Trust, and Samantha Lynn Land Trust.
    Brian P. McGarry, of Marion, for appellees Jim Shotton and Jim Shotton Construction Company.
    William L. Berry and James D. Green, both of Dunham, Boman & Leskera, of Belleville, for appellees Richard L. Holmes and Linda Holmes.
   JUSTICE H. LEWIS

delivered the opinion of the court:

The plaintiff, Alma Smith, individually and as mother and next friend of Tommy L. Smith, appeals the judgment of the trial court entered against her and in favor of the defendants herein on their motions for summary judgment. On April 23, 1988, Tommy Smith, who was 15 years old at the time, suffered serious brain damage as a result of oxygen deprivation that occurred while he played with the rope on a swing set. This incident occurred while Tommy Smith was visiting his friend Dwayne Bradley, who lived in an apartment complex owned by a number of the defendants. Other of the defendants were involved with maintenance upon the property, and the defendants Jim Shotton and Jim Shotton Construction Company were alleged to have manufactured the swing set. The plaintiff presents three issues for review: (1) “[w]hether the Trial Court erred in not applying Section 343 A of the Restatement of Torts Second to the facts of this case, and in holding that an open and obvious danger was a total bar to recovery”; (2) “[w]hether the defective swing set did not constitute such an open and obvious danger that could have been appreciated by an adolescent male”; and (3) whether the trial court erred in striking the affidavits of expert witnesses.

A number of discovery depositions accompany the defendants’ motions for summary judgment. They indicate that on Friday, April 22, 1988, Tommy Smith stayed overnight as a guest at Dwayne’s family’s apartment, as Tommy had done on numerous prior occasions. The following morning, while Dwayne was cleaning his room, Tommy was outside the apartment in the area of the playground talking with four girls, namely, Holly Lezu, Felecia Maddox, Jennifer Maddox, and Jennifer Short. A swing set stood in the area of the playground. Originally the swings had wooden seats, but the seats had broken, and none remained. The seats had been attached to the frame by ropes knotted to hold them in place. Apparently a child had tied together two ropes that had held one of the seats, and some of the children used the knotted loop to swing by placing a foot in it. One of these two ropes that were tied together was longer than the other, and a length of rope dangled from the knot. In the rope there were a number of knots, which children used in order to climb to the top of the swing set.

Holly Lezu, who was born on April 5, 1972, and at the age of 16 years at the time of the accident was the oldest of the four girls present, testified as follows in a discovery deposition taken on April 24, 1990:

“We walked to the playground, and we were talking. There was this set of monkey bars ***. Us three girls were standing there — or four girls. We were talking, and then he [Tommy] walked over to the swing set, and he put the rope around his neck, and he goes, ‘I’m going to hang myself.’ I said, ‘Tommy, that’s stupid. Don’t do it.’ He said, ‘I’m not. I’m just kidding. I’m just playing.’ So we said, ‘Okay.’ For a while he talked to us while he was standing there, and he could still touch the ground.
Q. Did he have the rope around his neck at the time?
A. Yes. And, we were still talking to him. Then about five minutes later, his back was toward us. His back had been turned toward us. Jennifer [Maddox] started getting scared— the little girl. She goes, T think he’s actually doing it.’ I go, ‘Doing what?’ She goes, T think he’s hanging himself.’ She goes, ‘He’s not joking.’ I go, ‘Yes, he is. Don’t worry about it.’ Me and her older sister, Felecia, told her not to worry about it. Me and Felecia told him, we said, ‘Tommy, you’re scaring us. Please quit.’ We sat there I guess for about thirty seconds, and then we go, ‘Tommy, you’re scaring us. We’re leaving.’
Q. Did he say anything to you?
A. No. He had his back toward us, so he didn’t say anything and we didn’t say anything. We go, ‘We’re leaving. We’re going in.’ So, we went into my apartment.
Q. Which is way up in the Mik-Mar area?
A. Right. We sat there for approximately fifteen to thirty seconds. I don’t know. Then we looked out the window, and he was still there. So, we called Dwayne and told Dwayne he was playing a joke on us, but he was still out there at the playground, and we asked him if he would go get him. When he did, then Dwayne got him off the rope. We ran outside, and by the time I got there, his [Dwayne’s] mom and dad were out there giving him CPR.”

Concerning the rope, Holly Lezu responded to questions as follows:

“Q. Did you actually see him take the rope and put it around his neck?
A. Yes, but I don’t recall him tying any knot or anything of the sort.
Q. Was the rope he put his head into already there created or did he have to create it himself?
A. I don’t think it was created. Not that I know of.
Q. You’re saying it wasn’t there beforehand?
A. I don’t think so.”

The witness recalled that prior to this accident a loop, as described above, already existed:

“[I]t was already made, and we used to put our foot in there and swing from it.
Q. Did your brother used to do that? Zach?
A. No. I did.
Q. What you’re saying is Tommy didn’t put his head through that portion?
A. No. He used the bottom of it.
Q. In other words, you’re saying he fashioned this portion he put his head in himself?
A. Yeah. He just — like when I saw him, he was putting the rope around his neck, but I turned away to talk to Jennifer Short, and when I turned back around, it was already there.
Q. Did you see him tie a knot or anything like that?
A. No.
Q. So when he actually completed it, you were looking—
A. Right. I was looking in the other direction.
Q. Now, you say after he did this, he was looking towards you, and he was making comments about he was going to hang himself?
A. (Witness nods.)
Q. How long was he facing you?
A. For about five minutes, because we talked.
Q. You were talking this whole time?
A. Uh-huh. Then he turned away, and I guess his back had been toward us for approximately four to five minutes, but we had talked to him a minute or two between there. Then after awhile, it got silent, and Jennifer, the little girl, started getting scared, and that’s when we went in.
Q. Did you happen to notice his face as you were talking to him? Did it change colors or anything?
A. No.
Q. Did it look normal?
A. Yeah.
Q. Did you actually see him turn around?
A. No. He took his feet and moved and looked that way and then looked back at us, and he said something to us, and we said something back to him, and then his back was, you know, against us.
Q. If I get this right, he was facing you, and then he took his feet and turned himself so his back was towards you—
A. Then he turned around and said something to us, and then he turned back around.
Q. When he said something to you that last time, how did his voice sound?
A. It sounded fine.
Q. Sounded normal?
A. Yeah.
Q. Did he sound distressed at all?
A. No.
Q. Did it sound strained?
A. No.
Q. Then there was a period of two to five or three to five minutes that you were saying he was facing you for the last time?
A. Okay. When he faced us to talk to us—
Q. I’m sorry. When his back was facing you.
A. It was about two to three minutes. Then he was scaring Jennifer, and then about two minutes after that, we went in, and then after about a half minute being in my house, we called Dwayne Bradley, and he went out there.
Q. How old is this young girl?
A. She was about eight or nine at the time.
Q. What was her name?
A. Jennifer.
Q. Jennifer Short?
A. Jennifer Maddox.
Q. Did you see his — Tommy’s face at all in the last couple of minutes while you were on the playground?
A. (Witness shakes head from side to side.)
Q. Did he say anything to you at all during that time?
A. No.
Q. When you went inside then, did you have any reason to believe he was in any trouble?
A. We figured that he was just joking, that if we came inside, he would get up and realize, ‘Well, they know I’m just kidding’, and he’d go back in. We looked out my door window, and he was still there. That’s when we realized something was wrong and we called Dwayne, because he’s a pretty big guy, so we figured he would be able to do something. Then Dwayne went out there, and we followed him, and by the time I got out there, Dwayne’s parents were already out there.
Q. Do you have any — well, first of all, what made you look out the window?
A. Curiosity to see if he was still there.
Q. Who was it that looked out the window?
A. I did.
Q. As you saw the rope before the accident and perhaps the morning of the accident, it appeared to have a large loop with a knot of some sort in the bottom and a piece of rope extending down from that knot?
A. Yes.
Q. Do you know how long that rope was from the top of the play set to wherever it stopped? If you don’t know, that’s okay.
A. About six feet. It’s about two feet from the ground — the bottom of the rope came about two feet from the ground. The swing set, I guess, is approximately eight feet tall, nine.
Q. The bottom of the loop, do you know how far that was from the level of the ground?
A. No. I don’t remember.
Q. How tall would you say Tommy was?
A. About five nine, five ten.
Q. Do you know about what his weight was?
A. About 150.
Q. When he got into the rope and had it around his neck, was he standing up?
A. Yes.
Q. Did you see him then lean forward or something like that?
A. No. The way it looked when he had turned toward us the first time to talk to us, it looked like he had just leaned it up against his chin — the bottom of his chin.”

The witness indicated that Tommy had remained standing with his feet flat on the ground while the girls were outside with* him. She did not remember seeing any of the rope dangling once Tommy had put it around his neck. As she observed and talked with him in the playground area, she was approximately 18 to 20 feet from him. She estimated that it would take about a minute to walk from the playground to her window. The rope had broken at the end of the summer of 1987 and had been that way for about eight months. She described the loop that had been tied prior to this incident as being of sufficient height above the ground that only bigger children would use it to swing. She did not know who had tied the knot to create the loop. Concerning the rope, the witness testified further:

“Q. The loop that he [Tommy] had his neck within on the date that this happened, do you recall ever seeing that loop before the day he was hurt?
A. Seeing the loop at the top here [as shown in a photograph]?
Q. No, not the one you put your foot in. The loop that he had around his neck.
A. I never seen the loop that he had around his neck.
Q. So we’re clear, Holly, the loop that’s shown in this photograph that you would put your foot in and swing from was not the loop that he had his neck within, is that correct?
A. Correct.
Q. There was another loop on the day of this accident that you hadn’t seen before and didn’t see after the day of the accident, is that correct?
A. Correct.
Q. Do you know who made that loop?
A. No.
Q. Could Tommy have made it?
A. He could have.
Q. Do you recall seeing him putting the rope around his neck that morning?
A. He started to, and then I turned away, and then when I turned back, he had already had it around his neck.
Q. Did you see him tie a knot after he wrapped the rope around his neck?
A. No.
Q. When he started to put the rope around his neck that day, at that time did you see the loop that he eventually ended up with around his neck?
A. No.
Q. So would it be reasonable based on your observations— based on what you saw, would it be reasonable to conclude that the loop that was around his neck at the time he was hurt was made that morning while he was out there by him?
A. Yes.
Q. Holly, you did not see him necessarily tie a knot?
A. Correct.
Q. Is that correct? As you sit here today, do you know whether he actually made a loop around his neck and tied it in a knot or whether he may have just wrapped it around his neck several times and leaned against it?
A. From what I saw when he — he could have just wrapped it around and like maybe hooked it so it wouldn’t have came [sic] loose. That’s the way I would figure.
Q. Why do you say that?
A. Just because he was just kidding, so I figured that — I don’t know.
Q. You did not see when someone came out and took him down from the rope, did you? Were you there when that was done?
A. Huh-uh.”

The witness reiterated that the part of the rope that Tommy put around his neck was the part hanging below the loop used for swinging. When she looked out the window upon reaching her apartment, she noticed that Tommy’s feet were still touching the ground but that his legs were now bent. At the time of the accident she was five feet five inches tall, the loop being approximately at the level of her chest.

Felecia Maddox, whose date of birth was June 6, 1973, described the incident as follows during a discovery deposition taken on April 28,1990:

“Holly and I got on the monkey bars with the two Jennifers, and Tommy stayed over by the playground where the swings were. He put the knot on his neck, and he kept saying he was going to hang himself, but we thought he was kidding. We keep [sic] telling him to stop. We said that a lot of times. We thought if we left, he would get away from it, but he never did. So, we went to Holly’s house and looked out the window, and he was still there, so we called Dwayne.”

Although the witness noticed Tommy dangling the rope with his hand and playing with it, she did not know what part of the rope he had around his neck or whether he had made a knot in it. She described him as standing with his feet touching the ground. His legs were straight, but he was leaning forward, she said, and “[h]e like gradually went down.” She said that her sister Jennifer had walked over to him, had seen his face, and had said: “[H]e had like foam coming out of his mouth, and that’s when we really got scared, and we went and told Dwayne’s mom.” After that observation by Jennifer, she indicated, the girls had run to Holly’s apartment and had called Dwayne.

Jennifer Maddox, whose date of birth is November 11, 1978, testified during a discovery deposition taken on April 28, 1990: “Tommy was fooling around. He was putting the loop around his neck and saying he was going to hang himself. We kept on telling him not to, and he said, ‘I’m just playing around.’ Then he just laid there.” After this brief statement, the witness left the room crying and did not testify further.

Jennifer Short, whose date of birth is February 4, 1974, testified during a discovery deposition taken on April 24, 1990: “[Tommy] was like playing around with that rope. I don’t remember if he tied a knot in there or anything, but it was just like ***.” The witness was unable to testify further because she was too distraught emotionally, and the deposition was adjourned.

Dwayne Bradley testified during a discovery deposition taken on April 23, 1990, that he had not been present at the site of the accident until he had gone to check on Tommy in response to the telephone call from one of the girls. He described Tommy as “dead” when he saw him, with his legs buckled beneath him although, he said, Tommy could have stood up. He described the condition of the swing set prior to the incident: “It was a wooden base swing set. It had — none of the swings were connected. Those all broke. There was nothing there. There’s a noose in there already, and the kids would put their foot or something in there and swing around in there.” He testified further that he did not think that Tommy had had to tie the rope because the loop, or “noose,” had already been tied in it. He stated, however, that no one had ever told him exactly what had taken place. He indicated that the “noose” in the rope was about four or five feet above the ground. When the witness found Tommy, he had “stooped down” about a foot below his height. He said, “I started to take him off, and then my dad came over, and he pulled him off of — I mean he pulled the thing off, and we put him down on the ground.” The witness also testified:

“When we got there — when I got there, I pulled that off, and it wasn’t even — I just yanked it and it just came through. I mean it wasn’t even — you know how hanging nooses comes [sic] in like that? That wasn’t even connected hardly. All I did was went like this, and he came out, and I picked him up and put him down.”

Asked, “How much effort did you have to use to pull the knot free?” the witness responded: “Not really much. Just pulled it.” He indicated that in order to remove the rope, he lifted Tommy and pulled on one side of the rope while his father “pulled the other side.” He testified as follows in response to these questions:

“Q. Whenever you say that you pulled the rope and you pulled it off, you mean the knot came undone in the noose? Is that what you meant?
A. It wasn’t like real tight. It was loose. I had him up there and pulled like right here, and my dad was on the other side and he — I don’t know what he did, but he was real easy to get off.
Q. How much rope was hanging from the noose that you pulled on hanging down below the noose?
A. I don’t know.
Q. Was this tied in a slip knot? Do you know what a slip knot is?
A. Yeah. I think this was a regular, not [sic] just tied. It didn't slip down or anything. It was like — his neck was, I guess, pretty big. It was like a little bit — I’d say about an inch off— you know, noose up to the neck. It wasn’t a slip down knot.
Q. Did somebody tie it like a hangman’s noose?
A. No.”

When he was asked, “You don’t know whether Tommy made any other kind of maneuver in the rope or changed the rope at all?”, the witness answered, “No.” Asked further, “When you took Tommy out of the rope that morning, there was no longer a noose or loop or anything in the rope, is that correct?” the witness responded, “I don’t think there was, no.”

Ross Bradley, Dwayne’s father, testified during a discovery deposition taken on April 23, 1990, that when he arrived at the scene of the accident, “Dwayne was trying to get Tommy off as I was running there and couldn’t, you know, handle him. I picked him up, and Dwayne took the rope from his neck.” He described Tommy as blue, without pulse or respiration. The witness stated that Tommy could have stood and not hung himself. He had not observed a loop and knot in the rope and did not know whether the loop had come undone when the rope was removed from Tommy because he had been absorbed in aiding him.

Alma Smith testified during a discovery deposition taken on April 27, 1989, that Tommy had become 15 years old on January 30, 1988, that she had never been informed that he was mentally retarded or deficient, that she had no belief that he was mentally deficient, and that he had never been enrolled in any special education program. He had repeated the sixth grade, she said, because of poor academic performance following the death of his father. However, prior to and following that time he had no academic problems.

In entering summary judgment in favor of the defendants and against the plaintiff, the trial court ruled that there is no genuine issue of material fact to be resolved and that whether Tommy Smith tied a knot in the rope himself is not a material fact. The court ruled further that “[a] rope is not inherently dangerous, any more than a pencil or a butter knife or a pillowcase or a rock is,” and that “[t]he risk of placing one’s neck in a loop of a rope is open and obvious, and one which the law expects a child of 15 to appreciate and avoid.” The court determined that on these facts the defendants did not owe a duty to the plaintiff and that, therefore, they are entitled to summary judgment as a matter of law.

With reference to the first issue she raises on review, the plaintiff takes the position that the facts of the instant case indicate the presence of no open and obvious danger. Assuming arguendo that the swing constituted an open and obvious danger, she says, the trial court erred in holding that this open and obvious danger prohibited plaintiff from recovering under any circumstances and, therefore, improperly entered summary judgment. Plaintiff urges that the swing set was “obviously negligently maintained and dangerous” and stresses the fact that at the time of the incident Tommy’s feet were supported on the ground. Plaintiff argues that the risk unappreciated by Tommy was “the risk of cutting off the flow of oxygen to his brain by simply leaning into the noose.” This risk, she states, was not open and obvious and could not have been appreciated by an adolescent male of Tommy’s age. In urging the application of section 343A of the Restatement (Second) of Torts (1965), plaintiff suggests that Tommy as a teenage boy was temporarily distracted by the teenage girls present at the playground area and was, like the customer carrying a large bundle in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 152, 554 N.E.2d 223, 232, “forgetful of the condition.” Section 343A operates as an exception to section 343 of the Restatement (Second) of Torts (1965) and addresses known or obvious dangers. (See Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239.) Concerning the second issue she raises on review, plaintiff reiterates her argument that the “cutoff of oxygen to the brain of the child” was neither open nor obvious and asserts that the trial court erred “by not allowing the jury to determine whether or not a negligently maintained swing set was a dangerous condition, and that Tommy’s injuries resulting from the negligently maintained swing set were foreseeable.” Although the plaintiff alleges in her amended complaint that Tommy had “an actual mental age of approximately 12 years” despite a chronological age of 15 years, the record is devoid of evidence to support this allegation.

In largely separate briefs the defendants advance two principal arguments in support of the trial court’s entry of summary judgment in their favor, namely, that the rope by which Tommy was injured does not constitute a dangerous condition and that, assuming arguendo that a rope is a dangerous condition, the risks posed were open and obvious ones that a 15-year-old child would be expected to appreciate and to avoid. Most of the defendants urge that Tommy was injured as a result of his misuse or abuse of an object that is not inherently dangerous, that is, a piece of rope.

Summary judgment is a drastic means of disposing of litigation and, thus, should be allowed only when the right of the moving party is clear and free from doubt. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778.) A motion for summary judgment shall be granted only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); Logan, 139 Ill. 2d 229, 564 N.E.2d 778.) The court must construe the evidence strictly against the movant and liberally in favor of the opponent. Logan, 139 Ill. 2d 229, 564 N.E.2d 778.

In order to succeed on a claim of negligence, a plaintiff must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Deibert, 141 Ill. 2d 430, 566 N.E.2d 239.) Whether a duty exists in a particular case is a question of law to be determined by the court. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223.) A duty exists when the defendant and plaintiff stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. See Ward, 136 Ill. 2d 132, 554 N.E.2d 223.

The customary principles of ordinary negligence must be applied to determine the liability of owners or parties in possession or control of premises upon which a child is injured. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177.) A duty that would not be imposed in cases of ordinary negligence will be imposed upon an owner or occupier of land for the personal injuries a child suffers on the premises only if the landowner or person in possession knows or should have known that children frequent the premises and if the cause of the child’s injury was a dangerous condition on the premises. (Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 482 N.E.2d 1061.) If both of these elements are satisfied, the injury to a child is deemed sufficiently foreseeable for the law to impose upon the owner or the occupier of the land a duty to remedy the dangerous condition. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) For the purposes of this standard, a “dangerous condition” is one likely to cquse injury to a child who, because of his or her immaturity, might not be capable of comprehending or avoiding the attendant risks. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) However, if the condition involves obvious risks that children generally would be expected to appreciate and to avoid, there is no duty to remedy the condition. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) No action may be maintained if children of a similar age and experience as the plaintiff are capable of understanding the danger involved. (Newby, 136 111. App. 3d 92, 482 N.E.2d 1061.) Since children are expected to avoid dangers that are obvious, under such circumstances there is no reasonably foreseeable risk of harm. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) Even where an owner or occupier of land is aware that children frequent the premises, the law does not require the landowner or possessor of land to protect against the omnipresent possibility that children will injure themselves on obvious or common conditions. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) In sum, although the foreseeability of harm to the child is the test for ascertaining liability, the law does not allow recovery for injuries that are caused by an obvious danger. (Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061.) Moreover, an instrumentality or product does not become inherently dangerous, and therefore a “dangerous condition,” merely because there is an abuse of it or because it is used for a wrongful purpose. Newby, 136 Ill. App. 3d 92, 482 N.E.2d 1061; Hootman v. Dixon (1984), 129 Ill. App. 3d 645, 472 N.E.2d 1224.

As we have stated, the trial court found that a rope is not inherently dangerous and that the risk of placing one’s neck in a loop of a rope is open and obvious and one that the law expects a child of 15 to appreciate and avoid. The rope as Tommy found it was not a dangerous condition upon the premises. Holly Lezu testified upon deposition that Tommy did not put around his neck the loop previously created for swinging by another child. Even if one infers from the testimony of any of the other witnesses that he did put his neck within that loop, the testimony of Holly Lezu stands unrefuted that he wrapped around his neck a length of rope that was merely dangling from that loop and, in that condition, he turned his body 180 degrees. He appears to have miscalculated tragically his ability to contain the risk he himself created by his abuse of the rope on the swing set. Nevertheless, his abuse of the rope did not render it inherently dangerous. Furthermore, the condition of the rope on the swing set was not one likely to cause injury to a child who, because of his or her immaturity, might not be capable of comprehending or avoiding the attendant risks. By his abuse or misuse of the rope Tommy himself created the attendant risks.

We find instructive the case of Hootman v. Dixon, in which a 12-year-old boy was killed when the concrete roof of a small, brick building collapsed upon him as he and two 10-year-old friends attempted to knock the building down. When the boys began, the brick building had holes in each of its walls large enough for two people to walk through. The three boys were trying to knock the building down by using hammers and pieces of brick to knock still more bricks from the walls. The area where the building was located was often played in by the local children, and the defendants, who were aware of that fact, had made no attempt to keep the children out. A 15-year-old friend had told the boys to stay away from the building or they might get hurt. The two younger boys, at least, had planned an escape route by clearing a path out of the building and placing a mattress just outside on which to jump. In Hootman the defendants argued, as do the defendants here, that the brick building was not a dangerous condition, as required for imposing liability on the property owners, because the risk of the ceiling’s collapse was an obvious risk and because the building was not inherently dangerous. Upon review the court found that the brick building did not constitute a dangerous condition because the risk it presented was an obvious risk and because the building was not an inherently dangerous condition. The building had not collapsed of its own accord but only after the three boys, using hammers and bricks, had purposely knocked bricks out of its support walls until the walls could no longer support the weight of the concrete roof. The court concluded that it was this misuse of the building, an object that was not otherwise inherently dangerous, that had caused the death of the deceased. Similarly, in the case at bar, it was Tommy’s misuse of an object not otherwise inherently dangerous that caused his injuries. Because the rope attached to the swing set was not inherently dangerous, the rope did not constitute a dangerous condition and the defendants owed no duty to Tommy to remedy the condition. Therefore, the trial court properly entered summary judgment in their favor and against the plaintiff.

Concerning the final issue plaintiff raises, she contends that the trial court erred in striking the affidavits of Dr. T.J. Fitzgerald and Dr. H. Dan Corbin. The trial court granted a motion to strike these affidavits as violative of Supreme Court Rule 191 (134 Ill. 2d R. 191). In his affidavit Dr. Fitzgerald expressed the opinion as a psychologist: “Neither Tommy Smith, nor any other child similarly situated, would have perceived the danger, which consists of leaning into the rope and having the blood circulation cut off to the brain, resulting in one passing out and then falling and suffering injuries, as obviously happened to Tommy Smith. This type of risk is not open and apparent, and could not have been perceived by any 15-year-old adolescent.” Dr. Corbin stated in his affidavit that the swing set should have been constructed using chain, not rope, in part because “chains cannot easily be made into loops,” and that an adolescent boy would not understand the nature and significance of the risk of placing his neck in a noose. Dr. Corbin stated further that had the swing set been properly maintained, there would have been a base on the swing and the rope would not have been available to have been made into a noose. In view of our determination that the rope attached to the swing set was not inherently dangerous and did not create a dangerous condition, we do not consider the plaintiff’s assignment of error with respect to the striking of these affidavits.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID B. PRUITT, Defendant-Appellant.
    Fifth District
    No. 5—90—0352
    Opinion filed December 31, 1992.

      Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, David B. Pruitt, appeals from a judgment order of the circuit court of Madison County dismissing his petition for post-conviction relief. In this cause, defendant raises two issues: (1) whether defendant’s conviction for murder should be reversed and the cause remanded for a new trial because the jury instructions given on the issues in murder and voluntary manslaughter were improper, and (2) whether the court erred in denying defendant an evidentiary hearing on his post-conviction allegation that he was denied a fair and unbiased jury due to the prosecutor’s alleged visit to the jury room during deliberations. We affirm.

Defendant petitioned this court for leave to supply us with recent case law developments. Defendant’s petition was granted. Likewise, the State was granted leave to file a response. We have considered defendant’s additional authority along with the State’s response.

Defendant was charged with murdering Bryan Keeney, a police officer with the Fairmont City police department. Keeney’s body was found on November 4, 1984, lying on its back beside his squad car in Cahokia Mounds State Park (park). At defendant’s jury trial, the evidence showed that defendant’s -wife, Sharon, was sexually involved with the victim. Defendant found his wife and the victim together in the park at approximately 3 a.m. Defendant had found the victim and his wife together approximately three weeks earlier at the same park. Defendant’s theory of the case was that the shooting was an accident. Defendant’s testimony at the time of trial was such that the victim had been shot accidentally by someone other than himself. The jury found defendant guilty of murder.

At the jury instruction conference, the State tendered Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1981) (hereinafter IPI Criminal 2d), definition of murder, and IPI Criminal 2d No. 7.02, issues in murder. Defendant did not object to either instruction, and both IPI Criminal 2d Nos. 7.01 and 7.02 were given. Defendant tendered IPI Criminal definition instructions for voluntary manslaughter-sudden and intense passion (IPI Criminal 2d No. 7.04), and involuntary manslaughter (IPI Criminal 2d No. 7.07). Both were given.

Defendant appealed his conviction, at which time he was represented by the State Appellate Defender. We affirmed defendant’s conviction on March 31, 1987. (See People v. Pruitt (1987), 154 Ill. App. 3d 22, 506 N.E.2d 696.) During his direct appeal, defendant failed to raise the issue of the adequacy of the jury instructions involved in murder and voluntary manslaughter. Defendant also failed to raise the issue of improper communications by the prosecutor with the jury during deliberations. Defendant filed a pro se petition for leave to appeal, which was ultimately denied. On May 15, 1986, defendant filed a pro se petition for post-conviction relief and requested counsel. On February 22, 1988, defendant’s appointed post-conviction counsel entered his appearance.

On March 22, 1990, defense counsel moved to amend defendant’s pro se post-conviction petition. The motion was granted. The amended petition asserted that defendant was denied effective assistance of counsel and was deprived of his constitutional right to a fair trial and due process of law for the following reasons: (1) ineffective assistance of counsel, (2) improper discovery, (3) prejudicial error in allowing the jury to view defendant in restraints, and (4) improper ex parte communication with the jury by the prosecuting attorney. Defense counsel did not question the jury instructions for murder and manslaughter. On April 5, 1990, the State filed a motion to dismiss. On May 1, 1990, the trial court entered an order after a hearing was held on defendant’s petition for post-conviction relief, the amended petition for post-conviction relief, and the State’s motion to dismiss. The trial court found that there was no actual demonstrable incompetence by defense counsel and, even if there had been, defendant waived the error by not raising the incompetency of his trial counsel during his direct appeal. The trial court found there were no other errors as asserted by defendant and dismissed defendant’s petition. Defendant filed a notice of appeal of the dismissal of his petition and counsel was appointed.

The first issue we are asked to consider is whether defendant’s conviction for murder should be reversed and the cause remanded for a new trial because the jury instructions given on the issues in murder and voluntary manslaughter were improper. Defendant contends that he was denied effective assistance of counsel because his post-conviction counsel failed to recognize that direct appeal counsel was ineffective for not raising the issue of improper murder and voluntary manslaughter instructions given at trial. Our colleagues on the First District Appellate Court decided in People v. Lowe (1987), 152 Ill. App. 3d 508, 504 N.E.2d 955, while defendant’s direct appeal was pending, that the Illinois murder and voluntary manslaughter instructions were improper. Our supreme court affirmed Lowe, sub nom. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, finding that the Illinois voluntary manslaughter instructions requiring the State to prove unreasonable belief in justification or intense passion were grave error. The Reddick court determined the instructions should have placed the burden upon the State to disprove the existence of either of these two states of mind. (123 Ill. 2d at 197, 526 N.E.2d at 146.) Defendant here contends that direct appeal counsel was ineffective for failing to raise the issues addressed in Lowe. The State responds that the decision in Reddick is not retroactive to cases pending on collateral review at the time Reddick was decided and, because the judgment order in the instant case was final before the ruling in Reddick, defendant’s judgment should not be disturbed; thus, post-conviction counsel was not ineffective for failing to raise the issue of improper instructions. We agree.

Defendant raises the ineffective assistance claim rather than plain error because this is a post-conviction proceeding. Any claim which could have been presented on direct appeal, but was not, is thereafter barred under the doctrine of waiver and cannot be raised in a petition for post-conviction relief. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 275, 544 N.E.2d 312, 317.) The instructional error in the instant case, according to defendant’s argument, was apparent during defendant’s direct appeal and could have been raised at that time. Since it was not, it is waived. There is an exception to the waiver rule in post-conviction proceedings. Where “fundamental fairness” so requires, a reviewing court will relax the waiver doctrine and review the alleged error. (People v. Owens (1989), 129 Ill. 2d 303, 317, 544 N.E.2d 276, 281.)

“[T]o show that collateral review is required by fundamental fairness despite waiver of the error, a post-conviction petitioner must show cognizable ‘cause’ for his failure to raise the error and ‘actual prejudice’ flowing from the error. In order to show actual prejudice, a defendant must show that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. A defendant can show prejudice only if he shows, not simply that an error in instruction worked to his detriment, but that the result of the proceeding would have been different if proper instruction had been given.” People v. Yates (1991), 223 Ill. App. 3d 110, 116, 584 N.E.2d 1059, 1063, citing People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276, 282.

Here, defendant has offered an explanation for his failure to raise the issue on direct appeal, namely, the ineffectiveness of his direct appeal counsel. Defendant farther contends that his post-conviction counsel was ineffective for failing to raise the Reddick issue. (See People v. Yates (1991), 223 Ill. App. 3d 110, 584 N.E.2d 1059 (where defendant failed to offer any “cause” or explanation for his failure to raise the Reddick issue on direct appeal, such as ineffective assistance of counsel, and thus waived the issue for purposes of post-conviction relief).) Because defendant has raised the Reddick issue at this time under a theory of ineffective assistance, we will consider defendant’s contentions.

In People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, the Illinois Supreme Court held, on direct appeal from defendant’s conviction, that the then-existing Illinois Pattern Jury Instructions for murder and voluntary manslaughter were erroneous when given together. (See IPI Criminal 2d No. 7.02 (homicide), No. 7.04 (voluntary manslaughter-provocation), and No. 7.06 (voluntary manslaughter — intentional — belief of justification).) Specifically, our supreme court held that if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge from murder to voluntary manslaughter, then to sustain the murder conviction, the State must prove beyond a reasonable doubt that those defenses are meritless and must also prove beyond a reasonable doubt the statutory elements of murder. The Reddick court determined that the mitigating factors present in the offense of voluntary manslaughter are affirmative defenses which must be raised by the defendant, but rebutted beyond a reasonable doubt by the State. Therefore, it is the State that bears the burden of disproving, beyond a reasonable doubt, the existence of mitigating states of mind for voluntary manslaughter once they are raised by defendant. Because of the defects in the jury instructions, the Reddick court reversed the defendants’ murder convictions and remanded the consolidated causes for new trials. Reddick, 123 Ill. 2d at 199, 526 N.E.2d at 149; see also Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129 (where the same murder and voluntary manslaughter instructions were found deficient).

The question of the retroactivity of Reddick has been raised in several cases in several different jurisdictions. For example, in People v. Flowers (1990), 138 Ill. 2d 218, 561 N.E.2d 674, the Illinois Supreme Court considered the issue whether Reddick would apply retroactively to a post-conviction proceeding. Our supreme court determined that Reddick set forth a new rule of law that will not be applied retroactively. (Flowers, 138 Ill. 2d at 237-42, 561 N.E.2d at 681-84.) The Flowers court relied on Teague v. Lane (1989), 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060, in making its determination. Teague concerns retroactive application of new constitutional rules and Federal habeas corpus proceedings. The Flowers court applied the Teague rule to post-conviction proceedings and determined that new rulings will not be applied in post-conviction proceedings unless the ruling was issued prior to completion of defendant’s direct appeal or unless certain other exceptions are satisfied. Since Reddick was decided in 1988, and Flowers completed his direct appeal in 1983, the Illinois Supreme Court declined to apply Reddick retroactively. The Flowers court, in reaching this conclusion, also determined that the new rule set forth in Reddick did not fall under either of the two exceptions under the Teague analysis. Most notably, the rule set forth in Reddick did not fall under the second Teague exception, which states that a new rule may be applied on collateral review if it requires the observance of those procedures that are implicit in the concept of ordered liberty. (Teague, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073.) The Flowers court held that the new rule set forth in Reddick concerning the jury instructions for murder and manslaughter was not a component of basic due process and, therefore, did not satisfy the exception of being a procedure implicit in the concept of ordered liberty. Flowers, 138 Ill. 2d at 241-42, 561 N.E.2d at 683-84.

After exhausting his State remedies, Flowers subsequently petitioned for Federal habeas corpus relief. Flowers was granted Federal habeas corpus relief in the form of a new trial by the district court. (See United States ex rel. Flowers v. Illinois Department of Corrections (N.D. Ill. 1991), 767 F. Supp. 880.) The district court’s decision was affirmed by the Seventh Circuit Court of Appeals in Flowers v. Illinois Department of Corrections (7th Cir. 1992), 962 F.2d 703. A stay is now in place pending the Supreme Court’s determination of whether to grant certiorari. Both the Federal district court and the court of appeals relied on Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129. The district court and court of appeals found that Falconer, in which the Illinois murder and voluntary manslaughter instructions were found to be statutorily deficient, did not announce a “new rule” under Teague and, thus, the defendant, Flowers, was entitled to its application and a new trial. The district court stated, in pertinent part:

“The first component of the Teague analysis is to determine if a new rule was applied. Although respondent focuses exclusively on the question of whether Reddick announced a new rule, that is not the proper focus. Reddick principally relied on state law principles, whereas Flowers’ claim in this court is a federal due process claim. The proper focus is on whether Falconer should be considered a new rule. Falconer, 905 F.2d at 1135, relied on Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), and Clark v. Jago, 676 F.2d 1099 (6th Cir.1982), cert. denied, 466 U.S. 977, 104 S. Ct. 2360, 80 L. Ed. 2d 832 (1984), both of which were decided prior to Flowers completing his direct appeal in 1983. While neither Cupp nor Clark concern Illinois’s murder and voluntary manslaughter statutes, they do make clear that instructions on state law that misdirect, mislead, or confuse the jury can constitute violations of federal due process. See also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203 (1977); Tyler v. Phelps, 643 F.2d 1095, 1100 (5th Cir.1981).
These cases placed the state court on sufficient notice that the federal Constitution mandates jury instructions that do not so misdirect, mislead, or confuse the jury as to infect the entire trial. Finding the instructions given in this case to be consistent with Cupp and its progeny would not be a ‘reasonable, good-faith interpretation[ ] of existing precedents made by a state court[].’ Saffle v. Parks, 494 U.S. 484, 110 S. Ct. 1257, 1260, 108 L. Ed. 2d 415 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347 (1990)). Stated inversely, finding the instructions in this case to be misleading and confusing is ‘compelled’ by the precedents existing during the time Flowers’ case was on direct appeal. Saffle, 110 S. Ct. at 1260. That this is true is supported by the fact that Falconer required relatively little discussion of whether the instructions in that case violated due process and no cases needed to be distinguished in reaching the conclusion that was reached. 905 F.2d at 1136. The more difficult question in Falconer was not the due process claim itself, but the question of whether there was a procedural default. Granting Flowers relief on his due process claim would-^not require application of a new rule of law.” (767 F. Supp. at 894.)

The Seventh Circuit agreed with the district court’s analysis and affirmed. Flowers, 962 F.2d at 705; see also Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441 (where it was determined that Falconer did not announce a new rule of law and thus defendants are entitled to its retroactive application).

Basically, the Federal courts have agreed with the Reddick decision handed down by the Illinois Supreme Court which found the previous Illinois murder and manslaughter instructions statutorily deficient, but they have gone further than Reddick and have found the error caused by the instructions used in the instant case so violative of the due process guarantees of the Constitution (U.S. Const., amends. V, XIV) that the jury verdict cannot stand and the cases must be remanded for a new trial. E.g., United States ex rel. Fleming v. Huch (7th Cir. 1991), 924 F.2d 679; Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, 1136.

In People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538, the Illinois Supreme Court stated that the statutory defects of the Illinois murder and manslaughter instructions identified in Reddick may, in fact, rise to the level of a due process violation:

“A review of the errors identified in Reddick demonstrates that those defects may deny a defendant the constitutional right to due process. First, the murder and voluntary manslaughter instructions, when given together, misallocated the appropriate burdens of proof. Under the statutes in effect at that time, a defendant was guilty of voluntary manslaughter rather than murder if the defendant’s actions were provoked by a sudden, intense passion due to serious provocation, or if the defendant believed, although unreasonably, that the use of force was justified to protect himself. (See Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a), 9—2.) The voluntary manslaughter instructions at issue in Reddick required the State to prove the existence of the extenuating mental states that reduce murder to voluntary manslaughter. (See IPI Criminal 2d Nos. 7.04, 7.06.) The court noted that the prosecution would normally have little incentive to introduce proof of that nature and that the evidence would most likely have come from the defense, rather than the prosecution. In that event, a jury that literally followed the instructions would not be able to give effect to its finding. See Reddick, 123 Ill. 2d at 194-95[, 526 N.E.2d at 145].
The second defect identified in Reddick was that the murder instruction, when given with the voluntary manslaughter instruction, failed to require the State to disprove the circumstances that reduce murder to manslaughter. These mitigating factors are properly treated as affirmative defenses for purposes of allocating burdens of proof. (Reddick, 123 Ill. 2d at 195[, 526 N.E.2d at 145].) Illinois law requires the State to disprove beyond a reasonable doubt all of the defendant’s sufficiently raised affirmative defenses other than insanity. (See Ill. Rev. Stat. 1985, ch. 38, par. 3—2.) Because the instructions failed to inform the jury that the State was required to disprove the existence of those mitigating mental states, the jury may have believed that it could convict the defendant of murder even if it found that the defendant was provoked by sudden and intense passion or that the defendant unreasonably believed that his actions were justified. Reddick, 123 Ill. 2d at 197[, 526 N.E.2d at 146]; see also United States ex rel. Fleming v. Huch (7th Cir. 1991), 924 F.2d 679; Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, 1136 (discussing Reddick defects; also noting that because the murder instruction is given first, it may take on special prominence in minds of jurors, encouraging them to consider voluntary manslaughter only if murder requirements have not been met).
Based on the deficiencies described above, we conclude that the use of the erroneous instructions may violate a defendant’s due process right to a fair trial. See Reddick, 123 Ill. 2d at 198[, 526 N.E.2d at 147]; Rose v. Lane (7th Cir. 1990), 910 F.2d 400, 402; Falconer, 905 F.2d at 1137; see also Fleming, 924 F.2d at 682 (‘At oral argument, the State basically (and wisely) conceded that, after Falconer and Rose, it cannot be disputed that the errors in these jury instructions constitute a violation of due process’).” (People v. Shields (1991), 143 Ill. 2d 435, 443-45, 575 N.E.2d 538, 542.)

The Shields court declared: “Because the holding in Reddick is of constitutional dimension, and because the appeals now before us were pending on direct review when Reddick was decided, the Reddick decision applies retroactively to the defendants in these cases.” 143 Ill. 2d at 445, 575 N.E.2d at 543.

The instant case is distinguishable, however, from Shields. Here, defendant’s case was not pending on direct review when Reddick was decided. Defendant’s direct appeal was final on March 31, 1987, while Reddick was not decided until June 20, 1988. Defendant relies on People v. Lowe (1987), 152 Ill. App. 3d 508, 504 N.E.2d 955, aff’d sub nom. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. Lowe was decided on February 19, 1987, by our colleagues on the First District Appellate Court. As a general proposition, we are obliged to follow decisions of our supreme court and of the United States Supreme Court. We are not required to follow decisions of appellate courts of other districts within Illinois. (Roby v. Illinois Founders Insurance Co. (1978), 57 Ill. App. 3d 89, 372 N.E.2d 1097.) Once our supreme court has declared the law on a point, it alone can overrule or modify its previous opinion. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 896, 388 N.E.2d 906, 912.) It is not within our authority to overrule or modify decisions of our supreme court. (People v. Jansen (1990), 203 Ill. App. 3d 985, 561 N.E.2d 312; People v. Glass (1976), 41 Ill. App. 3d 43, 353 N.E.2d 214.) Pursuant to the doctrine of stare decisis, we follow our supreme court in People v. Flowers (1990), 138 Ill. 2d 218, 561 N.E.2d 674, which held that the Reddick decision will not apply retroactively to a post-conviction proceeding. Because defendant’s direct appeal was complete before Reddick was decided, we are dealing with a case that involves the retroactivity of Reddick to a post-conviction proceeding rather than one pending on direct review. Consequently, the trial court properly dismissed defendant’s post-conviction petition, which argued that Reddick required reversal of his murder conviction.

The second issue we are asked to consider is whether the trial court erred in denying defendant an evidentiary hearing on his post-conviction allegation that he was denied a fair and unbiased jury due to the prosecutor’s alleged visit to the jury room during deliberations.

The record shows that this is the first time defendant has raised the claim that he was denied his right to a fair and unbiased jury due to the prosecutor’s alleged visit to the jury room during deliberations. Issues that could have been presented on direct appeal, but were not, are deemed waived. (People v. Owens (1989), 129 Ill. 2d 303, 315, 544 N.E.2d 276, 281; People v. Gaines (1984), 105 Ill. 2d 79, 85, 473 N.E.2d 868, 873.) Defendant had the opportunity to raise this issue by post-trial motion and on direct appeal but failed to do so. Thus, he is barred from raising this issue during this appeal. As previously stated, the one exception to the waiver rule is that where fundamental fairness requires, the waiver rule will not be applied in post-conviction proceedings. (Owens, 129 Ill. 2d at 316, 544 N.E.2d at 281.) In order to meet the requirements of fundamental fairness, a defendant must show cognizable cause for his failure to make a timely objection and actual prejudice flowing from the complained-of error. (Owens, 129 Ill. 2d at 317, 544 N.E.2d at 281-82.) In order to demonstrate prejudice, a defendant must show not only that the error occurred but that the result would have been different had the error not occurred. (Owens, 129 Ill. 2d at 317-18, 544 N.E.2d at 282.) Applying that standard here, defendant has failed to convince us that the outcome would have been different had the issue been previously raised.

Assuming the prosecutor did take three sodas to the jurors during their deliberations, there was nothing in the form of affidavits to show that the jurors were influenced by this act or that their determination as to defendant’s guilt would have been different had they not received sodas from the prosecutor. Defendant needed to present more than the affidavits of his children saying that the prosecutor had taken drinks into the jury deliberation room. Without the affidavit of a juror saying that he had been swayed by the prosecutor’s conduct in this regard, there is no showing of constitutional deprivation and defendant fails to meet the fundamental fairness test.

The evidence of defendant’s guilt was more than sufficient to support the jury’s verdict. Fundamental fairness does not require us to review defendant’s claim further. We find that defendant has waived the issue of whether he was denied a fair and unbiased jury due to the prosecutor’s alleged visit to the jury room during deliberations.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.