text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND ROBERTSON, Defendant-Appellant.
    Fourth District
    No. 4—88—0264
    Opinion filed April 13, 1989.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial, defendant was convicted of the offenses of aggravated assault and unlawful use of weapons. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 2(a)(1), 24 — l(a)(10).) He was sentenced to 12 months’ probation with a condition of 90 days’ incarceration, and ordered to pay court costs of $121, including a fine of $25 for the Violent Crime Victims Assistance Fund (Ill. Rev. Stat. 1987, ch. 70, par. 510(c)(1)). He appeals, arguing (1) he was denied his sixth amendment right to counsel where the record does not affirmatively show whether his counsel waiver met the minimum requirements of Supreme Court Rule 401 (107 Ill. 2d R. 401), and (2) the trial court committed reversible error where the jury was not instructed as to any mental state for the offense of aggravated assault.

Defendant was charged by information alleging that on November 28, 1987, he committed the offense of aggravated assault when, in committing an assault, he used a deadly weapon and, without authority, knowingly pointed a .22 caliber rifle, firing one shot at Jeffrey McMillan, Theresa Leebold, and Yolanda Hernandez, thereby placing each of them in reasonable apprehension of receiving bodily harm; and he committed the offense of unlawful use of weapons when he knowingly possessed on or about his person upon public land within the corporate limits of Quincy, a firearm, a .22 caliber rifle. On November 30, 1987, defendant appeared with counsel and was “advised of charge and possible penalties.” On February 1, 1988, the court granted the motion of the defense attorney to withdraw as counsel because defendant had failed to cooperate with counsel, and further ordered the cause to remain on the jury trial docket, with defendant “to appear with counsel” on February 8, 1988, for further pretrial matters. On February 8, 1988, the court entered a minute order finding “defendant waived his right to counsel” and ordering the cause to remain on the jury trial docket for February 9. A similar docket entry was made. A jury trial was conducted on February 11, 1988. Defendant appeared pro se and represented himself.

The State’s evidence included the testimony of Jeffrey McMillan, Theresa Leebold, and Yolanda Hernandez. According to the evidence, defendant attended a birthday party with Shannel Brackley on the night of November 28, 1987, at Leebold’s apartment. McMillan and Leebold testified defendant was drinking at the party when they left and picked up Hernandez. On the way back to Leebold’s apartment they saw defendant, his face bleeding, on the street with Brackley. McMillan parked and he, Leebold, and Hernandez got out of the car to inquire what had happened. Defendant told them he had been beaten up at Leebold’s apartment, asked to be left alone, and told Leebold and McMillan he was going to “get” all of them. Defendant then left and the others returned to Leebold’s apartment, which they found empty and in disarray, the front door window broken, with broken beer bottles and blood on the floor. The group left the apartment to try to find out what had occurred in their absence and, on the way back to the apartment, Brackley rolled down the passenger side window in the rear of McMillan’s car, saying “There’s Ray,” and asking defendant what he was doing. McMillan testified he was driving about five miles per hour when he saw defendant, standing on the sidewalk, turn around and lift a rifle, aim it at McMillan’s car and fire it.

McMillan testified he saw a flame come out of the gun and thought he heard a sound indicating the car had been hit, so he drove away quickly. Leebold and Hernandez testified they saw defendant raise the long-barreled rifle and point it at the car, whereupon they ducked. Both women testified they heard a sound indicating the car had been hit. All three witnesses testified they were afraid they would be injured when defendant raised the rifle and pointed it at the car and shot. Police were unable to confirm that a bullet had hit the car, none of the car’s windows were broken, and no bullet casings were found at the scene. Police officers testified they answered a dispatch about the incident, found defendant at his apartment, noticed a .22 caliber rifle sitting on the kitchen sink inside the door, and recovered the weapon. The gun was loaded. One of the officers testified he smelled the chamber and concluded the gun had been fired within the previous two hours or so. Defendant explained his condition to officers by saying he had been wrestling with his dog. Defendant presented no evidence. The jury returned guilty verdicts.

At defendant’s request, the trial court appointed counsel to represent defendant for purposes of sentencing.

Represented by appointed counsel on appeal, defendant first argues he was denied his sixth amendment right to counsel, since the record does not affirmatively show whether his counsel waiver met the minimum requirements of Supreme Court Rule 401. Rule 401 provides:

“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(b) Transcript. The proceedings required by this rule to be in open court shall be taken verbatim, and upon order of the trial court transcribed, filed and made a part of the common law record.” (Emphasis added.) (107 Ill. 2d R. 401.)

The offenses with which defendant was charged, aggravated assault and unlawful use of weapons, are Class A misdemeanors, punishable by any term of imprisonment less than one year. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 2(b), 24 — 1(10), 1005 — 8—3(a)(1).) In this case, the counsel waiver, which Rule 401 requires to be taken in open court and to be taken verbatim, was not taken verbatim. As a direct result of the failure to comply with the verbatim requirement of Rule 401, no record exists from which it may be determined whether the requirements of Rule 401(a) were met. Although a form appearance order dated November 30, 1987, has a check mark indicating, “Defendant acknowledges receipt of copy of Charging document and is advised of nature of charges, possible penalties, pertinent constitutional rights, and trial in absentia," no other record exists as to whether defendant was admonished as to, for example, the minimum and maximum sentences prescribed by law, or that he had a right to counsel and, if indigent, to have one appointed to represent him.

The State argues defendant waived this issue by failing to raise it in the trial court or by post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) On the merits, the State maintains no reversible error occurred since defendant does not assert he did not understand his rights as required by Rule 401 or otherwise allege prejudice. Defendant argues this court should indulge every reasonable presumption against waiver of such a fundamental right and urges strict compliance with the rule is required. We decline to treat the matter as waived. The right to counsel is so fundamental it is not lightly deemed waived. There can be no affirmative acquiescence in waiver of counsel without proper admonitions.

In People v. Derra (1981), 92 Ill. App. 3d 1106, 1109, 416 N.E.2d 688, 690, this court stated:

“The purpose of this rule is to provide a procedure which will eliminate any doubt that a defendant understands the nature and consequences of the charge against him before a trial court accepts his waiver of the right to counsel and to preclude a defendant from waiving assistance of counsel without full knowledge and understanding.”

And further:

“In People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374, Justice Stamos, writing for the majority, conducted an extensive discussion of the history and interpretations of Rule 401. As the Brown opinion points out, two distinct constructions of the requirements of Rule 401 have developed in the appellate court. One strain holds that substantial compliance with Rule 401 is enough; the other requires rigorous compliance with the admonitions of the rule.
The substantial compliance test is a vestige from the past when the provisions concerning both waiver of indictment and guilty pleas were contained in the same supreme court rule. (Ill. Rev. Stat. 1969, ch. 110A, par. 401.) The substantial compliance standard of Rule 402 was thus grafted onto Rule 401(b), which governed waiver of indictment. Courts then took the next step, which was applying the substantial compliance standard explicitly stated in Rule 402 to Rule 401(a) waiver of attorneys. Parallel to this line of decisions is a line of cases which have followed the mandates of Rule 401(a) and required that the record affirmatively demonstrate that defendants were given those warnings which our supreme court deemed essential to a decision pertaining to representation. People v. Templeton (1978), 60 Ill. App. 3d 711, 377 N.E.2d 228; People v. McMurray (1977), 55 Ill. App. 3d 581, 371 N.E.2d 46[, appeal denied (1978), 71 Ill. 2d 600, 371 N.E.2d 351]; People v. Jones (1976), 36 Ill. App. 3d 190, 343 N.E.2d 644.
The court in Brown then went on to conclude that to the extent that cases concerning waiver of indictment under Rule 401(b) may conflict with those cases interpreting waiver of counsel under 401(a), it would follow the more rigorous requirements explicitly set out in the supreme court rule and applied in the Templeton-McMurray cases. The court was under the belief that these cases correctly reflected the constitutional foundation upon which Rule 401(a) rests.
The holding in Brown is consistent with the prior decisions of this court which, while not engaging in the same analysis conducted by the Brown court, have effectively applied the strict compliance standard. People v. Roberts (1978), 56 Ill. App. 3d 126, 371 N.E.2d 1284; People v. Bolden (1978), 59 Ill. App. 3d 32, 374 N.E.2d 1307 [appeal denied (1978), 71 Ill. 2d 610].
Consistent with our previous holdings and with the persuasive analysis of the Brown opinion, we hold that the trial court in the instant case was required to strictly comply with the mandates of Supreme Court Rule 401(a).” (Derra, 92 Ill. App. 3d at 1110-12, 416 N.E.2d at 691-92.)

The defendant in Derra was convicted by a jury of driving under the influence of intoxicating liquor and was sentenced to one year of probation. There, the record showed a hearing was held at which time the defendant expressed the desire to represent himself and the court ascertained defendant was 18 years old, understood the charge against him, and had a ninth-grade education. The court apprised defendant the State was not waiving the possibility of asking for a jail sentence on the charge. The court allowed defendant’s motion to represent himself but appointed the public defender to be present in an advisory capacity. This court determined defendant had not effectively waived counsel under Rule 401(a). The court reversed the conviction and sentence and remanded the cause to the circuit court.

As recently as in People v. Houston (1988), 174 Ill. App. 3d 584, 588-89, 529 N.E.2d 292, 295-96, this court has referred to the strict compliance analysis of Derra, holding:

“In order to establish a valid waiver of the right to counsel, the State must prove an intentional relinquishment of a known right or privilege. (People v. Aldridge (1980), 79 Ill. 2d 87, 93, 402 N.E.2d 176, 179; People v. Johnson (1984), 123 Ill. App. 3d 128, 129, 462 N.E.2d 930, 931.) We have held that to support a valid waiver of counsel, the court must strictly comply with Supreme Court Rule 401 and give the appropriate admonitions. (Johnson, 123 Ill. App. 3d at 131, 462 N.E.2d at 932; People v. Derra (1981), 92 Ill. App. 3d 1106, 1111, 416 N.E.2d 688, 691.) Other courts have found a limited exception to the strict compliance rule when the defendant possesses a high degree of legal sophistication. (People v. Reed (1987), 160 Ill. App. 3d 606, 608-09, 513 N.E.2d 1193, 1195-96; People v. Roofener (1981), 95 Ill. App. 3d 342, 347, 420 N.E.2d 189, 193.) ***
The salutary purpose behind our requirement of strict compliance with Rule 401 is evident. It helps to ensure that when counsel is waived, it is done knowingly and intelligently. (Johnson, 123 Ill. App. 3d at 130, 462 N.E.2d at 932.) Recitation of the admonishments is a slight burden on the court and assists in resolving questions concerning waiver of counsel. However, the ultimate question is still whether defendant intentionally relinquished a known right or privilege. (Aldridge, 79 Ill. 2d at 93, 402 N.E.2d at 179.) When, based on the facts in an appropriate case, it is clear a defendant knowingly and intelligently waived counsel, we are not so formularistic as to declare the waiver invalid simply because strict compliance with Rule 401 was lacking.”

This court found the defendant in Houston exhibited legal sophistication and conduct so as to require finding he intentionally and knowingly waived his right to have counsel present for waiver of a preliminary hearing. The defendant there was a paralegal. The record in this case does not support application of a legal sophistication exception.

We find Derra controlling and reaffirm its reasoning.

In doing so, we find appeals from judgments entered on guilty pleas are sufficiently dissimilar as to require a different analysis. People v. Hopping (1975), 60 Ill. 2d 246, 826 N.E.2d 395, involved appeals from judgments entered on guilty pleas and the defendants’ argument rested upon Supreme Court Rules 401 and 402. (See 107 Ill. 2d Rules 401, 402.) There, the court stated:

“There is no intimation that any of these defendants was not guilty of the offense to which he entered his plea of guilty. Nor is there in any of the cases a suggestion of any respect in which the admonition given to the defendant in connection with his plea of guilty was deficient. Instead, the contention in each case is that, because the defendant’s acknowledgement of his guilt was not recorded in a particular manner, his conviction must now be set aside. The effort is to establish the availability of a verbatim transcript as a constitutional requirement. But what the Constitution requires is a record of sufficient completeness to permit proper consideration of the specific claims made by the defendant, and in none of the cases before us has any specific claim been made by any defendant.” (Emphasis added.) (Hopping, 60 Ill. 2d at 251-52, 326 N.E.2d at 398.)

The court pointed out the defendants could have raised specific deficiencies by a report under Rule 323(c) (see 107 Ill. 2d R. 323(c)), but none did. Neither had any of the defendants presented a motion to the trial court seeking to set aside the judgment based on the plea of guilty. (See 107 Ill. 2d R. 604(d).) The court concluded:

“[T]he course pursued by the defendants in these cases shifts the focus of judicial concern from the guilt or innocence of the defendant to the existence of some possible deficiency in the warnings given the defendant in connection with his acknowl-edgement of his guilt.
We hold, therefore, that neither the State nor the Federal Constitution requires that these defendants be furnished with verbatim transcripts of the proceedings at which they acknowledged their guilt.” Hopping, 60 Ill. 2d at 254, 326 N.E.2d at 399.

People v. Guerrero (1975), 33 Ill. App. 3d 321, 337 N.E.2d 66, and People v. Dunn (1976), 40 Ill. App. 3d 684, 353 N.E.2d 48, cited by the State, also involved appeals from judgments entered on guilty pleas.

Neither do we find People v. Lee (1976), 39 Ill. App. 3d 750, 350 N.E.2d 580, persuasive. There, the defendant appeared in court and was arraigned. According to the docket entry made by the trial court, defendant was advised of his right to counsel, pleaded not guilty and waived jury trial. The case was set for bench trial on November 14, 1974. The docket entry further stated, “Defendant to have Counsel if any enter appearance on or before October 24 ***. Defendant’s counsel to file pre-trial motions or Defendant to apply for Counsel on same date.” (Lee, 39 Ill. App. 3d at 751, 350 N.E.2d at 582.) A printed form on the next page of the record listed common occurrences at arraignment. A check mark appeared at the line which read, “That the defendant understandingly waives his right to counsel.” (Lee, 39 Ill. App. 3d at 751, 350 N.E.2d at 582.) A bench trial was thereafter held and defendant appeared pro se and was found guilty. Considering defendant’s nine prior convictions, the trial court sentenced defendant to a term of six months’ at the State penal farm at Vandalia, Illinois. Represented by counsel on appeal, defendant argued he did not knowingly waive his right to counsel. The Third District Appellate Court characterized his argument as follows: “The only basis upon which defendant asserts his claim for reversal is that he is entitled to such reversal simply by virtue of the fact that a detailed record of defendant’s guilty plea was not made.” (Lee, 39 Ill. App. 3d at 752, 350 N.E.2d at 582.) Although the defendant was convicted after a bench trial and did not enter a guilty plea, the Lee court applied the Hopping analysis and affirmed.

In People v. Mattison (1986), 149 Ill. App. 3d 816, 500 N.E.2d 1103, and People v. Morgese (1981), 94 Ill. App. 3d 638, 645, 418 N.E.2d 1124, 1129, the Second District Appellate Court declined to follow Derra. Both appeals involved convictions after bench trials. In Morgese the defendant was sentenced to six months’ probation, and in Mattison the defendant was sentenced to one year of conditional discharge. Based on Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006, and Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the Morgese court concluded actual imprisonment is the line defining the constitutional right to appointment of counsel.

We recognize adhering to Derra and holding waiver of counsel proceedings must be taken verbatim imposes a burden on the circuit courts, but we conclude this result is necessary in order that Supreme Court Rule 401 may be given effect as to misdemeanors as well as felonies, to ensure the same quality justice to all cases. The rule can be complied with by taking a recording certified to by the judge or by a sufficiently detailed bystander’s report, as to which the State may protect the record. (See People v. Nikonowicz (1984), 127 Ill. App. 3d 738, 744-45, 469 N.E.2d 625, 629-30.) We emphasize our holding is restricted to (1) cases where a defendant is tried without counsel, and not to guilty pleas, and (2) where there is no showing of sufficient admonitions by which to assess a defendant’s counsel waiver. This result is consistent with the express language of Rule 401 and with such decisions as People v. Baker (1983), 94 Ill. 2d 129, 445 N.E.2d 769.

In light of the result reached, we need not discuss the second issue raised by defendant in detail but, on retrial, defendant may tender an issues instruction on aggravated assault which includes an allegation of mental state (Illinois Pattern Jury Instructions, Criminal, No. 11.04, at 76-77 (2d ed. Supp. 1987)), as did the assault definition instruction which was given.

The judgment of the circuit court of Adams County is reversed and cause remanded.

Reversed and remanded.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY MYERS, Defendant-Appellant.
    Fourth District
    No. 4—88—0713
    Opinion filed April 20, 1989.

      Daniel D. Yuhas and Charles M. Schiedel, both of State Appellate Defender’s Office, of Springfield (Peter L. Rotskoff, of counsel), for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On July 13, 1988, defendant Larry Myers was found guilty by a jury sitting in the circuit court of McLean County of committing two counts of the offenses of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse, in violation of sections 12 — 14 and 12 — 16, respectively, of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14, 12 — 16). He was subsequently sentenced to concurrent six-year imprisonment terms on each sexual assault conviction, and three-year imprisonment terms on each sexual abuse conviction. He now appeals alleging the aggravated criminal sexual assault statute is unconstitutional.

Defendant was convicted of two counts of violating section 12— 14(bXl) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)), which provides that an accused commits aggravated criminal sexual assault if the accused is 17 years of age or older and commits an act of sexual penetration with a victim who is under 13 years of age at the time the act was committed. It was alleged defendant committed an act of sexual intercourse with his nine-year-old ex-stepdaughter and had her perform an oral sexual act on him. He was also convicted of two counts of aggravated sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(1).) It was alleged defendant fondled the victim and had her fondle him. Suffice it to say, there is sufficient evidence to sustain the convictions.

Defendant appeals solely the aggravated criminal sexual assault convictions. He argues for the first time on appeal that the statutes involved are unconstitutional. His first contention is that the section defining criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12— 13) is overbroad. His other two arguments are that the aggravated criminal sexual assault statute is overbroad and violates due process.

We initially observe, concerning defendant’s first argument, that the point was not pursued at the trial court level nor contained in a post-trial motion. Generally, questions of constitutionality of a statute cannot be raised for the first time on appeal, but must have been presented to the trial court. (People v. Cregar (1988), 172 Ill. App. 3d 807, 826, 526 N.E.2d 1376, 1389; People v. Whitfield (1986), 147 Ill. App. 3d 675, 680, 498 N.E.2d 262, 266.) Accordingly, review of this question is waived. Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389.

Further, defendant has no standing to pursue this issue. Defendant was convicted of violating section 12 — 14(b)(1). He now wishes to argue the constitutionality of section 12 — 13 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13). While the offenses contained in section 12 — 13 can sometimes be an element of offenses contained in section 12 — 14(a) (see Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)), due to the nature of the offense in this case, section 12 — 13 is not involved. It is well settled that an individual has standing to challenge the constitutionality of a statutory provision if he is directly affected as one within the class aggrieved by the alleged unconstitutionally. (People v. Wagner (1982), 89 Ill. 2d 308, 311, 433 N.E.2d 267, 269; People v. Mayberry (1976), 63 Ill. 2d 1, 6, 345 N.E.2d 97, 100.) It is evident defendant is not directly affected by any alleged constitutional problem with section 12 — 13 and, thus, has no standing to raise such.

Defendant’s next contention is that section 12 — 14(bXl) of the Code is overbroad. As noted, this section prohibits acts of sexual penetration where the perpetrator is at least 17 years of age and the victim is under 13 years of age. Defendant’s argument is centered on the definition of “sexual penetration,” which is:

‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).)

He observes this provision does not require that the act be done for purposes of the sexual gratification or arousal of the victim or accused, which is an element of sexual conduct. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).) He believes this failure to limit the definition of sexual penetration results in a constitutionally overbroad statute, since innocent conduct, such as a parent bathing a young child inadvertently making a slight intrusion into said child, would come under the criminal penalties imposed.

Again, we note this argument is raised for the first time on appeal and is waived. (Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389.) Also, unless the statute is one that may inhibit first amendment rights, a person may not challenge a statute as being overbroad on the grounds that the statute, in another context or situation not before the court, could be applied unconstitutionally to another party. (People v. Haywood (1987), 118 Ill. 2d 263, 275, 515 N.E.2d 45, 51; People v. Holder (1983), 96 Ill. 2d 444, 449, 451 N.E.2d 831, 833.) It is evident section 12 — 14(b)(1) does not affect first amendment rights. It is equally evident defendant was not involved in an innocent bathing of the victim. He has no standing to pursue this question.

Further, in reviewing the merits, we find no such asserted error. Several courts, including this one, have previously addressed the lack of intent contained in the definition of “sexual penetration” and its impact on innocent conduct. In People v. Burmeister (1986), 147 Ill. App. 3d 218, 224, 497 N.E.2d 1212, 1215-16, the court found that for offenses involving sexual penetration, which contained no mental state, the mental states of intent, knowledge, or recklessness would be implied, and that with this construction, the statutes are not constitutionally infirm, since they do not punish innocent conduct. (See also People v. Ortiz (1987), 155 Ill. App. 3d 786, 791, 508 N.E.2d 490, 494.) In People v. Bartay (1986), 150 Ill. App. 3d 130, 132, 501 N.E.2d 364, 365, this court agreed with the analysis in Burmeister and held that, pursuant to section 4 — 3 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 3), the mental states of knowledge or intent would be necessary for “sexual penetration” to occur. So construed, it is apparent the statute does not punish innocent conduct and is not unconstitutionally overbroad.

Defendant lastly contends the statute -violates due process since, while it is entitled “Aggravated criminal sexual assault,” the offense of criminal sexual assault is not an included offense of the offense charged. He relies on language contained in People v. Johnson (1986), 114 Ill. 2d 69, 72, 499 N.E.2d 470, 472, where the court stated:

“The offense of aggravated arson, by its very name, refers to and was intended to define an aggravated offense, that is, an enhanced form of the underlying crime of arson. *** [T]he flaw in the statute lies in the fact that the underlying conduct which the aggravating factors were meant to enhance was not necessarily criminal in nature.”

From this, he draws the conclusion that the supreme court held that an offense entitled as an aggravated offense, which by definition fads to contain all the elements of the underlying entitled offense, violates the reasonableness requirement of the due process clause.

Prefatorily, we note this question is also raised for the first time on appeal and is, accordingly, deemed waived. Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389.

On the merits, it is evident defendant misapprehends the Johnson opinion. Johnson was a sequel to People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, where the court held one subsection of the aggravated arson statute was unconstitutional because the statute failed to include a culpable intent, and the underlying conduct could be innocent, as well as criminal. In Johnson, another subsection of the statute was under attack. The State argued that the aggravating factor contained in this subsection could not be innocent conduct. At this point, the court observed:

“It is true that this conduct may be considered more culpable than that considered in Wick which involved subsection (3); however, this fact does not obviate the basic flaw in the aggravated-arson statute which mandated the Wick decision. The offense of aggravated arson, by its very name, refers to and was intended to define an aggravated offense, that is, an enhanced form of the underlying crime of arson. Subsections (1), (2) and (3) of the aggravated-arson statute prescribed three factors which, if present, were intended to enhance the offense of arson to the more serious crime of aggravated arson. In Wick we pointed out that the flaw in the statute lies in the fact that the underlying conduct which the aggravating factors were meant to enhance was not necessarily criminal in nature.” (Johnson, 114 Ill. 2d at 71-72, 499 N.E.2d at 472.)

Thus, it is evident, after reviewing the case and the full passage involved, that the court is not holding that an offense entitled as an aggravated offense must contain all the elements of the underlying entitled offense, but it is addressing the circumstances where a statute sets forth aggravating factors without setting forth any criminal underlying conduct.

This is not the present circumstance. The aggravated criminal sexual assault statute provides the offense is committed when a person commits the offense of criminal sexual assault with certain aggravating factors present, or when an act of sexual penetration is committed, and the actors are within certain age categories. (Ill. Rev. Stat. 1987, eh. 38, par. 12 — 14.) Since the penalties are the same, the legislative intent was obviously to lump similarly outrageous conducts together in the same section. We find this perfectly reasonable. Defendant places too much emphasis on the title of the offenses. We can find no authority for the position that an offense entitled as “aggravated” must include all the elements of the entitled underlying offense, or it will run afoul of the due process clause.

Affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD JOCELYN, Defendant-Appellant.
    Fourth District
    No. 4—88—0638
    Opinion filed April 20, 1989.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court;

On July 11, 1988, following a bench trial in the circuit court of Champaign County, defendant Ronald E. Jocelyn was convicted of the offense of escape in violation of section 3 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 6—4). He was subsequently sentenced to a term of two years’ imprisonment, with the sentence to be served' consecutive to the sentence he was then serving.

On appeal, defendant maintains (1) his waiver of jury trial was not knowingly and intelligently made; (2) he is entitled to a new sentencing hearing; and (3) the double jeopardy clause requires the two-year sentence of imprisonment be vacated and the conviction reversed without remand. We affirm.

Prior to accepting defendant’s waiver of a jury trial, the court advised defendant of the nature of the charge against him, the possible sentences he could receive, and his right to a jury trial. In admonishing defendant of the possible sentences he could receive, the court stated (1) the offense of escape was a Class 3 felony; (2) he could receive a sentence of not less than two years and not more than five years and would be required to serve a period of mandatory supervised release; and (3) any sentence imposed would be consecutive to the remainder of the sentence he was serving at the time the escape offense occurred. The court then asked if probation or conditional discharge were available. Defense counsel indicated probation was a possible sentence, and the court admonished defendant of the details of a probation or conditional discharge sentence.

Following these admonishments, defendant said he was prepared to enter into a written stipulation as to what the State’s evidence would be if witnesses were called to testify. The written stipulation indicated in part that defendant was a person committed to the Illinois Department of Corrections, was involved in a work release program, and, on April 3, 1988, did not return to the correctional center after leaving work until several hours after he should have returned.

At the sentencing hearing, Max Pridemore, a correctional officer, testified that he had seen defendant on August 22, 1988, at the Champaign County Correctional Center when defendant said he was going to “kick Mr. Wennmaker’s ass when [he got] out of [there].” Wennmaker was employed at the work release center. The State then requested the maximum term of imprisonment. Defense counsel pointed out that defendant did return to the center of his own accord, albeit six to seven hours late, and then requested that defendant be placed on probation for a period of 30 months.

At sentencing, in discussing the availability of probation, the court cited section 5 — 8—4(g) of the Unified Code of Corrections (Code), which provides:

“A sentence under Section 3 — 6—4 for escape or attempted escape shall be served consecutive to the terms under which the offender is held by the Department of Corrections.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(g).)

The court further found that the Code does not allow the court to impose consecutive sentences of probation. Section 5 — 6—2 of the Code provides:

“Multiple terms of probation imposed at the same time shall run concurrently.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6— 2(b).)

The court then indicated “the logic underlying that provision would certainly seem to apply here.” The court thus apparently concluded, based on these two sections, that since any sentence imposed for escape must be consecutive to the original term of imprisonment, and since terms of probation could not run consecutively, a sentence of probation was not available for a conviction of escape.

Defendant first argues his waiver of a jury trial was not voluntarily or intelligently made, since, at the time he waived his right to a jury trial the court informed him he was eligible for probation, but at sentencing, the court indicated a belief that defendant was not eligible. Defendant maintains, therefore, that he should receive a new trial.

Defendant cites no case where a jury waiver was held invalid because of improper admonitions regarding the availability of probation as a sentencing option. However, we need not determine whether such improper admonitions would vitiate the admonitions, because the court was correct in its initial determination that probation was available.

We note the legislature has not expressly provided for this particular situation. However, section 5 — 5—3(b) of the Code enumerates the available options for sentencing, including a period of probation, a term of periodic imprisonment, a term of conditional discharge, and a term of imprisonment, “alone or in combination” for felonies such as those here. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3(b).) Section 5 — 6—3(e) also provides the court with the option of combining a sentence of periodic imprisonment with a sentence of probation or conditional discharge. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3(e).

We also note that the fifth district has interpreted section 5 — 8—4 of the Code and has concluded that it applies only to multiple terms of probation imposed at the same time. (People v. Gischer (1977), 51 Ill. App. 3d 847, 366 N.E.2d 521.) However, that court determined that terms of probation “not imposed at the same time and not for the same offense may run consecutively.” Gischer, 51 Ill. App. 3d at 855, 366 N.E.2d at 527.

Thus, we conclude that section 5 — 5—3(b) of the Code, together with sections 5 — 8—4(g) and 5 — 6—2(b), allow a sentence of probation as an available option following a conviction of escape and that the sentence of probation must run consecutive to the underlying term of imprisonment a defendant is currently serving. Since the legislature has specifically provided for an increased penalty following a conviction for escape, this determination does not depart from the conclusion of the second district that, absent express legislative authorization, a sentence of probation to be served consecutive to a sentence of imprisonment for a separate offense was not a sentence authorized under the Code, because it improperly enhanced the penalties. (People v. Mack (1985), 133 Ill. App. 3d 788, 794, 479 N.E.2d 445, 449.) The period of probation would commence when the period of mandatory supervised release was complete. Defendant was correctly informed, at the time he waived his right to a jury trial, that probation was among the sentences available to him.

Moreover, defendant is not, as he next argues, entitled to a new sentencing hearing. Although the court expressed the mistaken belief that probation was not a sentencing option available under the Code, the court also noted at the sentencing hearing that even if probation were an available option, the court would not give it. The court determined defendant’s conduct, in threatening Wennmaker, was “too blatant *** too outrageous and too intolerable” and showed defendant did not seriously regard the rules governing his incarceration and did not respect the officers supervising his incarceration. The court then gave the minimum sentence of imprisonment. Any error in the court’s determination that probation was not an option available to him was clearly harmless.

Finally, the defendant argues the double jeopardy clause of the United States Constitution prohibited a criminal conviction for escape after defendant was subjected to internal prison disciplinary proceedings in which his 360 days of accumulated good time were revoked.

This issue was raised and rejected by the third district in People v. Lewis (1979), 73 Ill. App. 3d 361, 386 N.E.2d 910. That court relied on a number of Federal cases which held that administrative discipline of a prisoner does not prohibit criminal prosecution for the same event.

Defendant urges this court to reject Lewis. We decline the invitation to do so.

Accordingly, for the reasons stated, we affirm.

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.


author: JUSTICE JOHNSON PRESIDING JUSTICE JIGANTI,

text:
    KATHLEEN ARNOLD, as Mother and Next Friend of Christine Arnold, Plaintiff-Appellant, v. THE VILLAGE OF CHICAGO RIDGE et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—87—1437
    Opinion filed February 2, 1989.
    — Rehearing denied April 28, 1989.

      Spina, McGuire & Okal, of Elmwood Park (Timothy H. Okal, of counsel), for appellant.
    Kiesler & Berman, of Chicago (John R. Garofalo and David J. Kiesler, of counsel), for appellee Village of Chicago Ridge.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge, Steven P. Polick, and Janella L. Barbrow, of counsel), for appellee Village of Worth.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Kathleen Arnold, as mother and next friend of Christine Arnold, appeals from the orders of the circuit court of Cook County that dismissed her first and second amended complaints brought against defendants, the Villages of Chicago Ridge and Worth, for injuries sustained by Christine, her daughter, during a police vehicular pursuit. The Village of Alsip was also named as a defendant in plaintiff’s complaints but was voluntarily dismissed. Plaintiff also appeals from an order granting defendants’ summary judgment motions.

On appeal, plaintiff contends the following: (1) the filing of an amended count IV as part of a third amended complaint did not constitute an abandonment of counts I through III, previously stricken in her first and second amended complaints; (2) a breach of a special duty need not be pleaded or proved for injuries arising out of the operation of a police vehicle in violation of section 11 — 205 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 205); and (3) the trial court erred in granting defendants’ summary judgment motions, as she had established at least a question of fact as to the identity of the vehicle which struck Christine and of those involved in the pursuit of the suspected law violator.

We reverse.

The record discloses that on August 26, 1982, at approximately 5 p.m., Christine, while riding her bicycle, was struck by a vehicle during a “police chase” through a residential area in the Village of Chicago Ridge. The action began when Chicago Ridge police officer Thomas White observed a vehicle that failed to come to a complete stop at a stop sign. Edward McDade, the driver of the vehicle in question, attempted to evade the police by driving at an accelerated speed through the residential area. At some point in time, police assistance from the Villages of Worth and Alsip was requested.

On August 16, 1983, plaintiff filed a six-count complaint against defendants and the Village of Alsip. The suit alleged that defendants, by and through their police personnel, negligently pursued the vehicle driven by McDade. This negligent conduct allowed the McDade vehicle to collide with Christine’s bicycle, which caused her injuries. Defendants and Alsip moved to strike and dismiss plaintiff’s complaint for failure to state a cause of action. These motions were based on their theory that plaintiff failed to allege the existence of a special duty, a necessary predicate, upon which to base liability against municipal defendants. Defendants also argued that plaintiff’s complaint was defective in that negligent and willful and wanton allegations could not be commingled and that there was no proximate cause upon which to base liability. Defendants’ motions were granted, and plaintiff, with leave of court, filed a first amended complaint in three counts that, in substance, contained all of the allegations in the original complaint.

Plaintiff’s first amended complaint was dismissed for failure to allege the existence of a special duty. Subsequently, plaintiff filed a second amended complaint in four counts. Substantively, the allegations in counts I through III remained the same. Count IV alleged that the defendants’ police departments were operating in concert in the pursuit of McDade.

The second amended complaint was dismissed for failure to plead or prove a special duty owed to Christine in counts I through III. The court granted plaintiff leave to amend count IV to plead that Officer White’s vehicle collided with the bicycle being ridden by Christine.

Plaintiff then filed a third amended complaint in four counts. Counts I through III of the third amended complaint referred to the previously stricken counts I through III of the first and second amended complaints without amending these counts. Count IV was amended to allege, “in the alternative,” liability on the part of defendant Chicago Ridge arising out of a direct collision between police officer White and Christine.

Defendants subsequently filed summary judgment motions. Alsip was voluntarily dismissed during the pendency of these proceedings. The Village of Chicago Ridge asserted that it was not liable, since its vehicle “never struck or otherwise came in contact” with Christine. The Village of Worth asserted that it was not liable, since it “merely assisted after the collision occurred and did not participate in the vehicular pursuit.” Plaintiff’s response to each of these motions was supported by affidavits, depositions, and defendants’ police department records.

The trial court granted defendants’ summary judgment motions. The evidence was found to be “overwhelming” that Christine was struck by McDade’s vehicle. Upon rehearing, the trial court sustained the summary judgment against plaintiff on the grounds that the evidence was “absolutely overwhelming that [Christine] was not struck by Officer White.”

On appeal, we first address plaintiff’s contention that the filing of the amended count IV did not constitute waiver or abandonment of counts I through III which were previously stricken. Defendants correctly state the rule of law that where an amended pleading is filed, which is complete in itself and does not adopt prior pleadings, the earlier pleadings cease to be a part of the record and may in effect be considered abandoned or withdrawn. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.) However, Bowman, and its progeny of cases cited by defendants, may be distinguished from plaintiff’s case. In each of these cases the prior pleadings were held to be waived because the substance, theory, or format of the original complaint had been abandoned.

In plaintiff’s case, however, the third amended complaint is in four counts with reference to the three counts stricken in her prior amended complaints. Plaintiff’s reference to these counts manifests an intent to rely on these very same claims in her third amended complaint. There has been no manifested intent to abandon these stricken claims. (Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 994.) The only count amended in her third amended complaint is count IV.

Further, defendants’ argument that the principles of abandonment and waiver should be applied simply because of plaintiff’s failure to appeal the order striking counts I through III is without merit. The order did not contain an express finding that there was no just reason for plaintiff to delay appeal. (107 Ill. 2d R. 304(a).) Therefore, the order striking these counts was not a final and appealable order. Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1102-03; 107 Ill. 2d R. 304(a).

The record does not reflect that plaintiff sought to amend the stricken counts. Plaintiff’s third amended complaint, in substance, merely amends count IV. In Willis, the appellate court held that the filing of "additional pleadings alleging a new and distinct theory of law, albeit being labeled as an amended count, did not constitute abandonment of the original counts which plaintiff sought to appeal. (Willis, 101 Ill. App. 3d at 1102.) The plaintiff in Willis challenged the trial court’s dismissal of two of the counts in the original complaint. The defendant contended that the plaintiff had waived his right to a review of the dismissal order when he elected to file various amended complaints based upon different theories of the law rather than appealing the dismissal order. The court found that the count which plaintiff sought to amend was essentially an additional count. Willis, 101 Ill. App. 3d at 1102.

Similarly, in the instant case, the allegations in the amended count IV are, in effect, an additional count or pleading in the alternative. It is well settled that in Illinois a plaintiff may make alternative factual allegations. (Dursch v. Fair (1965), 81 Ill. App. 2d 273, 283; Ill. Rev. Stat. 1985, ch. 110, par. 2 — 613(b).) Therefore, plaintiff’s amended count IV did not constitute waiver and abandonment of che previously stricken counts I through III.

Next, we address plaintiff’s contention that a breach of a special duty need not be pleaded or proved for injuries arising out of the operation of a police vehicle in violation of section 11 — 205 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 205) (hereinafter the Code). This section exempts drivers of emergency vehicles of municipal or public service corporations from speed limits and other rules of the road unless that driver is driving recklessly without due regard to the safety of all persons. Plaintiff alleges that defendants breached their duty of care under section 11 — 205 of the Code by driving with willful and wanton disregard for the safety of others which resulted in Christine’s injuries.

The general rule that municipalities are not liable for failure to exercise general police powers, under certain circumstances, is subject to the special duty exception. The requirements of the exception, whereby the police owe a special duty to an individual rather than to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality. (Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 507.) Defendants argue that they are exempt from liability under section 11 — 205 of the Code, as the general rule would apply to this section, and that liability may only be found if the plaintiff pleads and proves that a special duty is owed to her.

We are not convinced that a special duty to a particular plaintiff under this statutory section must be shown. In Breck v. Cortez (1986), 141 Ill. App. 3d 351, the court recognized, as it has in the past, a duty of care on the part of the police for the safety of the public when engaged in a vehicular pursuit. (Break, 141 Ill. App. 3d at 359.) Break involved, inter alia, the applicability of section 11 — 205 of the Code where police exceeded the speed limit in pursuit of a suspected traffic violator. A collision occurred that resulted in the death of the driver of another vehicle not involved in the pursuit. The plaintiff did not plead nor did the court require a showing of a special duty in order for liability to arise under the statute. The cases that the Break court cites in support of the proposition, that a duty of care is owed to the public by police in vehicular pursuit, did not require a showing of a special duty. See Brooks v. Lundeen (1977), 49 Ill. App. 3d 1; Sundin v. Hughes (1969), 107 Ill. App. 2d 195.

The cases that defendants cite are readily distinguishable from Break and the instant case in that police pursuit within the context of section 11 — 205 was simply not involved. To require a showing of a special duty under this section would virtually render this section meaningless where parties, as here, are injured in police pursuit situations. The fourth requirement — that defendant municipality exercise control over the plaintiff — would be practically impossible to meet. It is rare that a situation would arise where a defendant municipality would exercise control over a party in these circumstances.

Defendants express concern about public policy being undermined by interpreting this section so as not to require a special duty. Specifically, their concern is that it would discourage municipalities in their vehicular pursuit of suspected violators of the law. We believe that the intent of the statute is not to discourage the aggressive pursuit of the suspected violator, but to ensure the safety of the general public by imposing liability on the driver of an emergency vehicle who drives with reckless disregard for the safety of others. We do not believe that the additional requirement of showing a special duty would deter reckless drivers of emergency vehicles. We, therefore, find that the duty of care was not a special duty but one owed to the public at large while in pursuit of a suspected law violator. The trial court erred in dismissing plaintiff’s first and second complaints for failure to state a cause of action based on a special duty.

Finally, we address plaintiff’s last contention that the trial court erred in granting defendants’ summary judgment motions. Plaintiff argues that questions of fact had been established as to the identity of the vehicle which struck Christine and of those involved in the pursuit.

Summary judgment is granted when the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 975; Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) Evidence in support of the motion must be strictly construed against the moving party. (Weakens v. City of Chicago (1980), 86 Ill. App. 3d 60, 62.) The right to summary judgment must be clear beyond question and an order granting summary judgment must be reversed if a reviewing court determines that a question of material fact does exist. Laco v. City of Chicago (1987), 154 Ill. App. 3d 498, 502.

The gravamen of plaintiff’s third amended complaint is that defendants acted willfully and wantonly in violation of section 11 — 205 of the Code when police officers engaged in a high speed chase which resulted in Officer White’s vehicle colliding with Christine. Plaintiff’s previous complaints alleged that Christine sustained injuries when Mc-Dade’s vehicle struck her daughter. Christine was unable to testify as to the identity of the vehicle that struck her due to injuries sustained as a result of the collision. Both defendants filed summary judgment motions. We will first address the arguments made in the summary judgment motion filed by defendant Chicago Ridge.

The Village of Chicago Ridge maintains that there was no liability, since its vehicle never struck or came into contact with Christine. This was supported by the deposition testimony of Officer White and by the affidavit of Lyle Schaal, also a Chicago Ridge police officer, who purportedly saw the McDade vehicle strike Christine.

We believe that plaintiff adequately raises a question of material fact by submitting evidence that refutes the position of Chicago Ridge. McDade, by his deposition testimony and by affidavit, denied striking Christine with his vehicle. Although McDade, in his deposition, testified that he did not see which vehicle struck Christine, a question is still raised as to the possibility that it may have been Officer White’s vehicle that struck the minor child.

Defendants also question the credibility of McDade’s statements. At his criminal trial, prior to these proceedings, McDade had pleaded guilty to a charge of reckless conduct arising from this incident. It appears from the record that he had also pleaded guilty to striking Christine with his vehicle. That plea, however, is not dispositive of the issues in this civil matter. It is subject to explanation of the circumstances under which the plea was made and then such explanation is to be presented to the jury for consideration with all other evidence. (Cogdill v. Durham (1976), 43 Ill. App. 3d 940, 942.) We, therefore, reverse the trial court, which sustained Chicago Ridge’s motion for summary judgment.

Defendant Village of Worth maintained, in its summary judgment motion, that it was not guilty of willful and wanton conduct in the operation of its police vehicles. Defendant argued that its only involvement consisted of traffic control and assistance in post-accident investigation. Defendant contends that it was not involved in the pursuit prior to impact. We believe, however, that plaintiff raises a genuine question of fact with respect to this defendant’s involvement. The Village of Worth’s police department service record states that it assisted Chicago Ridge with the “chase” in this incident.

A review of the record of the proceedings shows that the trial court never specifically addressed Worth’s involvement even though a question is raised as to the identity of the vehicles involved.

For the foregoing reasons, the orders of the circuit court are reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

McMORROW, J., concurs.

PRESIDING JUSTICE JIGANTI,

specially concurring in part and dissenting in part:

The second amended complaint, count I, charged the Village of Chicago Ridge with willful and wanton conduct in the police chase of Edward McDade and in count II charged the Village of Worth with willful and wanton conduct in the police chase of Edward McDade. Count III related to the Village of Alsip and was voluntarily dismissed. Count IV charged the Villages of Chicago Ridge and Worth with willful and wanton conduct because they acted in concert in attempting to apprehend Edward McDade and that Officer White of the Village of Worth struck Christine Arnold. Each of the defendants filed motions to dismiss counts I and II pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) An order was entered dismissing counts I and II against the Villages of Chicago Ridge and Worth. The order further struck count IV and granted the plaintiff 28 days to file a third amended complaint as to count IV only. A third amended complaint was filed and in count I stated that “Plaintiff makes no further allegations as to Count I in that said Count was previously dismissed by Order of Court.” A similar statement was made as to count II concerning the Village of Worth. Count IV of this complaint alleged that the villages acted in concert again and also alleged that the police officer from the Village of Chicago Ridge struck the plaintiff. Each of the villages filed a motion for summary judgment with regard to count IV. The motions were allowed.

The plaintiff filed a notice of appeal contending that it wished to appeal from the dismissal of the first two counts of the complaint and also from the summary judgment on count IV of the complaint. The villages contend that the dismissals of counts I and II are not appeala-ble. I agree with the majority’s conclusion that they are appealable. Consequently, before this court are the dismissals of counts I and II on the pleadings and the summary judgment entered in favor of the villages on count IV.

The Village of Chicago Ridge makes no argument concerning the sufficiency of the complaint against it in count I. However, the Village of Worth contends that under count II, the complaint fails to state a claim because the Village of Worth did not have a duty as a matter of law. This contention would be equally applicable to Chicago Ridge. The argument of the village is premised on a proposition of law which states that municipalities in Illinois generally are not liable for failure to provide police protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) The Village of Worth contends that the complaint charges the Village of Worth with failure to provide police protection and under Huey there is no liability. There is an exception to that general rule whereby a municipality may be liable for a failure to provide police protection where they have assumed a special duty to the plaintiff. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153.) The village further contends that sufficient facts are not alleged to establish that there was a special duty on the part of the Village of Worth.

The plaintiff contends, and I agree, that she need not plead a special duty because the proposition espoused by the village is not applicable. The plaintiff maintains that another proposition of law is controlling, that is, that police officers have a duty to exercise ordinary care in carrying out their responsibilities. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Andrews v. City of Chicago (1967), 37 Ill. 2d 309, 226 N.E.2d 597.) At the time of the occurrence the officers in the instant case were carrying out their responsibilities.

Case law supports the plaintiff’s position. In Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 246 N.E.2d 100, a Chicago police officer was pursuing a vehicle operated by Larry Benford. The Benford vehicle struck a pedestrian named Eiermann whose body in turn struck the plaintiff Sundin. The complaint charged Officer Hughes with negligence. The defendant contended that the complaint failed to allege a duty. The appellate court found that a duty had been sufficiently alleged. In Moore v. Cook (1959), 22 Ill. App. 2d 48, 159 N.E.2d 496, a police officer engaged in a chase struck the plaintiff’s automobile. In affirming the recovery of a judgment by the plaintiff, the court explained that a police officer is answerable to private persons resulting from the negligent performance of the officer’s ministerial duties. In Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, the defendant municipality through its police department set up a roadblock to intercept a car driven by Lundeen. The plaintiff’s decedent approached the roadblock and was directed by the police to park on the shoulder of the road. The decedent was not informed of the purpose of the roadblock. The Lundeen car collided head on with the decedent’s vehicle, causing his death. The appellate court stated that case law holds that the police officer acting “in the performance of his duties in circumstances similar to those seen in this case owes a duty to exercise ordinary care for the safety of others in carrying out his responsibilities.” (Brooks, 49 Ill. App. 3d at 6, 364 N.E.2d at 427.) The complaint in the instant case charges the villages with violating the duty owed in the performance of their duties. It does not charge that they failed to provide police protection. The dismissals of counts I and II should be reversed.

Both the Village of Worth and the Village of Chicago Ridge filed motions for summary judgment as to count IV. The motions must be considered separately. The Village of Worth alleges that they had no involvement in the pursuit of McDade prior to the impact with the plaintiff. The motion for summary judgment should be allowed. The evidence that the Village of Worth participated in the chase emanates from a service-record card which is made any time an officer calls in any particular incident. The card was made out by a dispatcher and indicated that four police units assisted Chicago Ridge on the chase. The four officers whose names were listed on the card as being involved in the chase testified that they arrived after the impact and assisted in traffic supervision. There is no contrary evidence. I do not believe it is possible from these facts to draw the inference that the Village of Worth breached any duty to the plaintiff. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 35, 468 N.E.2d 422, 425-26.

The Village of Chicago Ridge in its motion for summary judgment on count IV argues that its vehicle driven by Officer White did not strike the plaintiff and absent striking the plaintiff the situation is the same as in count II, which was dismissed, and therefore summary judgment should be allowed. Even if we were to accept the argument of Chicago Ridge that Officer White did not strike the plaintiff, we have previously ruled in this opinion that the Village of Chicago Ridge does owe a duty to the plaintiff. Consequently, this motion for summary judgment should be denied.


author: JUSTICE O’CONNOR

text:
    JACK F. SURIANO et al., Plaintiffs, v. EMI SERVICES CORPORATION et al., Defendants (EMI Services Corporation, Counterplaintiff-Appellee; David L. Shaw, Counterdefendant-Appellant).
    First District (1st Division)
    No. 1—88—1543
    Opinion filed February 27, 1989.
    — Rehearing denied May 22, 1989.

      Robert G. Cook, Jr., of Chicago, for appellant.
    James L. Poznak, of Bishop & Crawford, Ltd., of Oak Brook, for appel-lee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal arises from an action brought by employee-stockholders of EMI Services Corporation (EMI) against EMI, alleging misrepresentation of EMI’s financial position in connection with the redemption of stock and sale of assets. EMI brought a counterclaim against employee-stockholder David Shaw, alleging failure to repay a loan for the purchase of stock pursuant to an employee stock purchase plan. EMI moved for summary judgment on the counterclaim, which was granted. Shaw appeals the summary judgment while the underlying case proceeds. For the reasons below, we affirm the summary judgment and order that enforcement be stayed until entry of a final judgment in the underlying case.

EMI is a consulting and engineering firm. In 1970, EMI’s original four shareholders executed a stock purchase agreement (the 1970 agreement). Paragraphs 1 and 2 of the 1970 agreement restricted the shareholders’ sale of EMI stock except to EMI. Paragraph 4 required redemption of stock by EMI where stockholder was an employee and his employment ended for the reasons specified. Paragraph 8 defined the value of the stock for purposes of purchase or redemption by EMI. Paragraph 13 provided that, as long as any part of the purchase price of stock purchased or redeemed by EMI remained unpaid, EMI was required to employ an independent certified public accountant to prepare annual financial statements. Paragraph 14 set forth specific conditions that constituted default under the agreement by EMI, which included the failure to comply with paragraph 13. Paragraph 15 provided for a restrictive endorsement on all stock issued pursuant to the agreement, which stated:

“This certificate is transferable only upon compliance with the provisions of an agreement dated September 1, 1970, between the shareholder named herein and EMI Corporation, a copy of which is on file in the office of the Corporation, or any revision of the agreement as mutually arrived at by the shareholder and EMI Corporation at a subsequent date.”

EMI grew and subsequently provided an employee stock purchase plan through which each employee could purchase up to 5,000 shares of EMI. All EMI shareholders were employees. On April 15, 1981, David Shaw bought 5,000 shares of EMI stock through the employee purchase plan. Two documents were executed by Shaw, a loan agreement (the loan agreement) and a stock purchase agreement (the 1981 agreement).

The loan agreement stated in relevant part:

“[T]he best interests of [EMI] and [Shaw] would be served by offering a loan to said employee for the purchase of 5,000 shares of stock as per stock purchase agreement with EMI Corporation. The employee loan to Mr. Shaw of $39,200.00 represents 5,000 shares of stock at $7.84 per share, which will be used by [Shaw] as collateral on this loan. The hereby agreed upon simple rate of interest will be five and one half percent (5V2%), and the expiration date for repayment of loan is April 15,1986.”

The 1981 agreement provided the mechanism for purchase of stock by employees and EMI’s redemption of the stock. Paragraph 2 provided that the price for shares bought by the employee would be the amount of “Stockholders Equity” divided by the number of shares outstanding. Shaw purchased the stock at $7.84 per share, a price that is not disputed. Paragraph 3 provided that the redemption price would be the amount of “Stockholders Equity” as defined in paragraph 2, calculated at the end of the fiscal quarter preceding the date of redemption. Paragraph 4 provided that the employee had the option to purchase the shares either by cash or by payroll deductions. Paragraph 7 restricted sale of the stock by the employee except to EMI. Paragraphs 8 and 9 required redemption of stock by EMI where employment was severed due to death, retirement, termination for cause, or permanent disability. Paragraph 10 required that where EMI purchased stock from an employee, or redeemed it, the price would be determined by paragraph 3. Paragraph 11 provided a restrictive endorsement on all stock issued pursuant to the agreement, which stated:

“This certificate is transferable only upon compliance with the provisions of an agreement dated December 31, 1976, between the Employee named herein and EMI Corporation, a copy of which is on file in the office of the Corporation, or any revision of the agreement as mutually arrived at by the Employee and EMI Corporation at a subsequent date.”

The parties agree that the December 31, 1976, agreement referred to in the endorsement does not exist. The endorsement of the 1981 agreement differed from the endorsement in the 1970 agreement only in the date and the substitution of “Employee” for “Shareholder.” The stock certificate issued to Shaw carried an endorsement that used the term “Employee,” but was otherwise identical to the endorsement provided in the 1970 agreement:

“This certificate is transferable only upon compliance with the provisions of an agreement dated September 1, 1970, between the Employee named herein and EMI Corporation, a copy of which is on file in the office of the Corporation, or any revision of the agreement as mutually arrived at by the Employee and EMI Corporation at a subsequent date.”

By the end of May 1983, declining business had forced EMI to terminate all of its employees, obligating it to redeem the employees’ shares. EMI negotiated redemption at a price of $5.67 per share with all employee shareholders but Shaw. In mid-October 1983, a special meeting of shareholders was called to consider the sale of EMI’s assets. Shaw and other shareholders dissented and filed the underlying action, alleging fraud, misrepresentation, and breach of fiduciary duty, and sought to determine the fair value of EMI stock.

On May 19, 1986, EMI filed a counterclaim against Shaw based on the loan agreement, alleging that Shaw had failed to repay the obligation by April 15, 1986. On April 24, 1987, EMI moved for summary judgment on the counterclaim, which was granted on June 15, 1987. On July 15, 1987, the trial court ordered Shaw to pay the outstanding balance on the loan plus interest. A motion to vacate was denied. Shaw appeals.

Shaw argues that the loan agreement was conditioned upon the 1981 agreement, and that when EMI allegedly misrepresented the value of its stock for redemption at the end of May 1983, it defaulted on a condition of the loan, extinguishing Shaw’s obligation. Shaw further argues that the value of the stock as of the end of May 1983 remains a material issue of fact, defeating summary judgment. EMI responds that the loan agreement was unconditional and that the value of the stock was irrelevant to the summary judgment. An examination of the law shows that EMI is correct.

Shaw first contends, correctly, that because the loan agreement and the 1981 agreement were executed contemporaneously as part of the same transaction, they should be construed as one document. (Sudeikis v. Chicago Transit Authority (1980), 81 Ill. App. 3d 838, 401 N.E.2d 1114, appeal denied (1980), 81 Ill. 2d 588; Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 454 N.E.2d 676, appeal denied (1984), 96 Ill. 2d 572.) But Shaw concludes, incorrectly, that if the documents are construed together, then the provisions of the 1981 agreement were conditions to the loan agreement. The 1981 agreement required EMI to redeem stock at a price determined according to paragraph 3 of the agreement, and Shaw contends that because EMI allegedly misrepresented the stockholders’ equity, it defaulted on the 1981 agreement, thus failing to meet a condition to the loan agreement.

Shaw’s contention is without merit, however, because the loan agreement must be construed as unconditional. Construing the loan agreement and the 1981 agreement together, meaning only that any provisions in one instrument limiting, explaining, or otherwise affecting the provisions of the other will be given effect (Sturgis National Bank v. Harris Trust & Savings Bank (1933), 351 Ill. 465, 184 N.E. 589; 2140 Lincoln Park West v. American National Bank & Trust Co. (1980), 88 Ill. App. 3d 660, 410 N.E.2d 990), it is clear that the obligation of one was not intended to be made conditional upon the terms of the other. The only reference to the 1981 agreement in the loan agreement is the language “as per stock purchase agreement,” and the 1981 agreement makes no reference to the loan agreement. The loan agreement evidences Shaw’s debt to EMI and his undertaking to repay the debt at a specified rate of interest within a definite time. The 1981 agreement embodies the offering of stock to employees and the provisions for purchase or redemption of the stock by EMI. The two documents, although comprising one transaction, govern altogether different subjects and give no indication that Shaw’s obligation to pay the loan was conditioned on the provisions of the 1981 agreement.

Shaw further argues that EMI’s intention to treat the loan agreement as conditional was indicated in a letter to Shaw from EMI director and majority stockholder Edward Milligan, dated July 15, 1983, which referred to payment of the loan and the redemption of shares as “mutual obligations,” and by references to the 1981 agreement in a second letter, dated November 29, 1983. EMI argues that Shaw waived his right to rely on the letters because they were not presented until his motion to vacate the summary judgment.

Shaw’s argument concerning the effect of the letters is not, as EMI argues, waived, but the purpose for which they may be reviewed is limited. Because Shaw’s argument concerning the letters was raised for the first time in a post-judgment motion, the standard of review is not whether the trial court erred in its construction of the documents as a matter of law, but whether the trial court abused its discretion in denying the motion to vacate. (See Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, 776-77, 463 N.E.2d 765.) The letters were in Shaw’s possession, or known to him prior to the summary judgment, but not presented, and the letters are not so conclusive or decisive as to make probable that a rehearing would render a different result. (Rahill, 123 Ill. App. 3d at 777.) The trial court did not abuse its discretion in denying Shaw’s motion to vacate.

More importantly, the letters cannot support Shaw’s conclusion that because the loan agreement and the 1981 agreement should be construed together, the loan obligation was conditional. Parol evidence is admissible to show that documents should be construed together, but is inadmissible to show that an obligation, unconditional on its face, is conditional. Main Bank v. Baker (1981), 86 Ill. 2d 188, 199, 427 N.E.2d 94.

Shaw also asserts that the 1970 agreement should be construed as part of the transaction that generated the loan agreement and the 1981 agreement, relying on references to the 1970 agreement in the Milligan letter of November 29, 1983, and the restriction on Shaw’s stock certificate, which refers to the 1970 agreement. Were the. 1970 agreement part of the same transaction, EMI’s alleged failure to value the stock for redemption according to generally accepted accounting principles would have been an explicit default under the 1970 agreement. Shaw’s assertion, however, is unfounded. The 1970 agreement was executed 11 years before the transaction between EMI and Shaw and cannot reasonably be considered part of the same transaction, even if the 1970 agreement and the 1981 agreement contain similar terms.

Even if the 1970 agreement were part of the 1981 transaction, due to the restriction on Shaw’s stock certificate, its only effect would be to limit Shaw’s transfer of the certificate, because the so-called “restrictive endorsement,” provided for in both the 1970 agreement and the 1981 agreement, is actually an issuer’s restriction on transfer, governed by article 8, section 8 — 204, of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 8-204). Restrictive endorsements, however, are governed by article 3, sections 3—205 and 3-206, of the UCC (Ill. Rev. Stat. 1987, ch. 26, pars. 3-205, 3-206), but article 3 applies to negotiable instruments, not to investment securities such as the EMI stock certificate. Shaw’s attempt to bootstrap the provisions of the 1970 agreement to the 1981 transaction through references in the letters and the “restrictive endorsement” are without merit. The loan agreement and the 1981 agreement should be construed together, but the loan agreement, on its face, states an unconditional obligation, and no evidence contradicts the unconditional nature of the obligation.

Shaw’s second argument is that the accurate value of EMI stock at the end of May 1983 remains in dispute, creating an issue of material fact. Shaw depends, however, on the assumption that the loan obligation was conditional. As discussed above, however, the loan obligation was unconditional. The summary judgment was entered on the counterclaim, which alleged that Shaw had breached the loan agreement. The loan was based on the undisputed value of the stock stated in the loan agreement. Any dispute over the value of EMI stock as of May 1983 does not alter the fact that Shaw owed an outstanding balance of the loan and had failed fully to repay it by April 15, 1985. The summary judgment on the counterclaim ordering Shaw to pay the outstanding amount of the loan was proper.

The value of EMI stock at the end of May 1983 remains an issue in the underlying case, however, and will be set off from the amount that Shaw owed on the loan. As a practical matter, either Shaw or EMI will receive, after litigation, the net difference between the amount Shaw owes on the loan and the redemption price. The summary judgment order therefore should be stayed until a final judgment in the underlying casé determines at what price the EMI stock should be redeemed.

Shaw finally argues that he is entitled to remedies under article 9, section 9 — 502, of the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 9— 502), which include those provided by the parties’ agreement. Shaw relies again, however, on the erroneous assumption that payment of the loan was conditioned on provisions of the 1981 agreement. Moreover, assuming that the 1981 agreement was a security agreement to which article 9 applies, allowing the remedies against EMI on the counterclaim would result in a double recovery by Shaw, since Shaw bases his right to remedies on the counterclaim on the same allegations that support his underlying claim against EMI. Here, Shaw seeks performance by EMI of its obligations under the stock purchase agreements, which he argues would result in a favorable stock price for redemption. Assuming Shaw is correct, such a remedy on the counterclaim would have the same effect as a setoff. As noted above, however, the amount Shaw owes on the counterclaim will be offset by the valuation of the stock as determined in the underlying action. To allow a setoff first on the counterclaim, and then possibly on the underlying action, would constitute an impermissible double recovery. See Lombard v. Elmore (1986), 112 Ill. 2d 467, 493 N.E.2d 1063.

In summary, the trial court correctly ruled that no provisions of either the 1970 or the 1981 agreement created conditions to Shaw’s obligation under the loan agreement. The value of EMI stock at the end of May 1983 remains an issue in the underlying case and need not be addressed here, but the value of the stock will determine the amount that is set off from Shaw’s liability under the loan agreement. Therefore, the summary judgment is affirmed, but the case is remanded to the trial court with instructions to stay enforcement until final judgment in the underlying case.

Affirmed and remanded with instructions.

CAMPBELL and BUCKLEY, JJ., concur.