author: PRESIDING JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
      In re M.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Bernadine King et al., Respondents (Robert Williams, Respondent-Appellant)).
    Fourth District
    No. 4—91—0413
    Opinion filed December 30, 1992.
    Larry R. Silkwood, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents the question of whether a finding at an administrative hearing conducted by the Illinois Department of Corrections (DOC) that a prison inmate violated prison rules, resulting in that inmate’s loss of good time, can provide the sole basis for terminating that inmate’s parental rights. We hold that such a finding cannot, and we reverse the termination of parental rights that occurred in this case.

I. Background

In November 1988, the State filed a petition alleging that the six children of Bernadine King — with whom they then lived — were neglected and abused minors. In that petition, the State alleged that four different men were the fathers of King’s children, including respondent Robert Williams, whom the State identified as the father of R.W., a four-year-old child. In its petition, the State identified Williams as “address unknown” and accordingly served him by publication. In fact, on October 19, 1988, Williams began serving a four-year prison sentence in DOC on a felony theft conviction.

In December 1988, the trial court conducted an adjudicatory hear-' ing on the State’s petition. King and two of the designated fathers appeared, and they all admitted and stipulated to the State’s charge that each of the children was neglected because each was a minor under the age of 18 years whose environment was injurious to his or her welfare when residing with King. At that hearing, the court noted that Williams had been served with notice by publication, that he had not appeared, and that no one had appeared on his behalf.

In February 1989, the trial court conducted a dispositional hearing and again noted that Williams failed to appear. At the conclusion of that hearing, the court removed custody of all the children from King and their fathers and appointed the guardianship administrator of the Illinois Department of Children and Family Services (DCFS) as their guardian with power to place them. The court also directed the respondent mother and fathers to cooperate fully and completely with DCFS and to take other steps to address parental deficiencies in order to have their children returned to their custody.

In September 1989, Williams wrote a letter to the trial judge, informing him that (1) Williams was presently incarcerated in the Pontiac Correctional Center, (2) one of the fathers of another one of King’s children was recently incarcerated at Pontiac and informed Williams that his son, R.W., was in DCFS custody, (3) Williams was never informed by anyone about the neglect proceedings involving his son, (4) Williams’ family, specifically his grandmother and sister, could provide for R.W., and (5) he would like to obtain custody of R.W. and participate in any further court proceedings in this case. In response, the trial court in September 1989 appointed counsel to represent Williams in all further proceedings and sent a copy of the letter to the Champaign County State’s Attorney, DCFS, and counsel for all other respondents, with a request that the State’s Attorney prepare appropriate documents to compel the appearance of Williams at the next post-dispositional review hearing.

As a result, DCFS contacted Williams in' October 1989, discussed his situation with him, and prepared a client service plan for him. That plan provided that Williams (1) should complete an alcohol/drug evaluation while incarcerated and cooperate with recommendations based thereon; (2) should keep DCFS informed of his whereabouts within DOC and, after his release, provide DCFS with his address; (3) “must follow rules within correctional system so that he will be released as soon as possible to pursue reunification with his son” (emphasis added); and (4) should pursue a general equivalency diploma or vocational training while incarcerated. In October 1989, DCFS later prepared an additional client service plan that required Williams to write periodically to R.W. and to write to DCFS on a monthly basis to learn about R.W.’s circumstances.

In December 1989, the trial court conducted a review hearing that Williams and his attorney attended. In response to the court’s inquiry, Williams stated that July 30, 1990, was his “projected out-date.” Williams’ counsel further represented to the court that Williams’ late entry in the case was not Williams’ fault. Counsel also said that Williams had written several letters to R.W. in the recent past.

In July 1990, the trial court conducted another review hearing, and Williams and his counsel again attended. At that hearing, DCFS represented that Williams had lost all his DOC “good-time” for six separate violations of prison rules, and that his projected out-date was now July 30, 1992. At that review hearing, the State also filed a supplemental petition seeking findings of unfitness and the termination of parental rights of King and all respondent fathers. Regarding Williams, the supplemental petition alleged that he was an unfit parent under section 1(D)(m) of the Adoption Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 1501(D)(m)) because he had failed to make reasonable progress toward the return of R.W. to him within 12 months of the adjudication of R.W.’s neglect.

In January and April 1991, the trial court conducted adjudicatory hearings on the State’s petition to terminate parental rights. At these hearings, DCFS social worker Linda K. Wild testified that she spoke by telephone with Williams in October 1989 about the DCFS client service plans. She said they discussed the things he needed to do while in prison in order to regain custody of R.W. after his release, including “a drug and alcohol evaluation [and getting] enough good time that he can be released as soon as possible.” She further testified that DOC authorities needed a written court order before they would permit Williams to obtain a drug and alcohol evaluation while in custody. Because DCFS was not aware of this DOC policy earlier, DCFS workers did not assist Williams in obtaining the necessary written order. Wild acknowledged that Williams wrote to R.W. on a monthly basis, provided him with holiday and birthday greetings, and sent a gift at least once. In January 1990, Williams sent Wild a letter, indicating that he was then an inmate at the Menard Correctional Center psychiatric unit and that he had lost some good time.

Mary Ann Quas, the keeper of records at the Pontiac Correctional Center, brought the DOC records pertaining to Williams to the trial court and testified regarding their contents. Quas also testified that she is the person who calculates a prisoner’s projected release date. Quas explained that if a correctional officer wishes to charge an inmate with a violation of DOC regulations, the officer prepares a disciplinary report describing the incident in question. An adjustment committee consisting of three members then reviews that report. The committee acts as a fact-finding body and also provides recommendations on how much good time an inmate should lose. The warden of the correctional center involved then reviews the adjustment committee’s recommendation and forwards it to the Director of DOC for final approval. The Director can approve on his own the revocation of an inmate’s good time of one month or less in a given calendar year. Any greater loss of good time must be submitted to the Prisoner Review Board for its review and final determination.

Quas examined Williams’ file in court and noted that he was sentenced to DOC on October 19, 1988, for four years on a theft conviction. At the time DOC received him, Quas projected his out-date for July 3, 1990. That projection assumed that Williams would earn all good time available. Over Williams’ objection, the trial court permitted the State to elicit from Quas that Williams had lost all of his good time and had had his projected release date extended. The court further indicated that it allowed this testimony because

“under [section 3 — 8—7 of] the Unified Code of Corrections [(Ill. Rev. Stat. 1991, ch. 38, par. 1003—8—7)] ***, the legislature has provided for specific disciplinary procedures, has afforded inmates or residents *** basic due [process] protection before loss of good time can be imposed. And, *** I believe the results of those procedures do purport verity, until and unless, at least prima facie is overcome by some other showing.”

In response to further objections by Williams, the State pointed out that it did not offer his DOC disciplinary records to introduce thereby descriptions of the incidents in which Williams was found to have violated a DOC rule or regulation. The court received those dis-positional reports into evidence and made the following observations:

“THE COURT: I believe that if I understand the State’s theory here, *** [the] effort expected of Mr. Williams towards correcting the conditions which led to removal of his children, progress towards their return of custody to him, included as a rather basic and fundamental step that he obtain his release from incarceration as soon as possible, and that if he failed to do that then the State will be arguing that was a failure to make reasonable efforts or failure to make reasonable progress. I believe once the Court allows resort to these records in [the State’s exhibit], to establish that he failed to achieve and maintain all possible good time, and that he failed to achieve his earliest possible release from [DOC] the State has then been afforded the opportunity to prove all it validly can.
As I indicated earlier, I believe under the statutory provisions, this Court must presume that the action of the Department of Corrections was correct. I am not saying that’s an irrebutable presumption, I am not saying it can’t be overcome. I don’t know. I don’t have to deal with that right now. The point is, I don’t think the State has to bring the people involved in the original incident which led to the discipline, I don’t think you have to bring those [people] into court. But, I don’t believe you can go further than that ***.”

Quas then testified that disciplinary incidents occurred on the following days and resulted in the following lost good time: (1) February 27, 1989 — lost six months; (2) September 24, 1989 — lost one month; (3) October 29, 1989 — lost three months; (4) November 5, 1989 — lost one month; (5) February 1, 1990 — lost one year; and (6) April 5, 1990 — lost one month. As a result of these incidents, Quas projected Williams’ release date as July 3, 1992. Quas also pointed out that other infraction reports pertaining to Williams existed, but added that he had already lost all of the good time he could lose.

After Quas testified, the State rested, and Williams moved for a directed finding. In that motion, Williams argued that because he has been in DOC custody at all pertinent times regarding R.W.’s neglect case, he cannot be found to have failed to make reasonable progress toward R.W.’s return to him. In response, the prosecutor argued that Williams had lost so much good time due to his misbehavior in prison that he had delayed his release by two years. The prosecutor argued further as follows:

“Meanwhile, [as Williams sits in prison due to a loss of good time, R.W.] is sitting in foster care. In [Williams’] position, there is nothing more important for him to do, as far as making progress, than to get out as soon as he can, to *** put himself in a position where he can provide an environment for his child and parent his child. There is nothing more important for him to do while he’s in the Department of Corrections than to get out as early as he can. We have a situation where Mr. Williams’ projected out date, again, was July 3rd of last year. If he had earned his good time and made progress, he would have been out eight or nine months ago. As we stand now, it’s going to be another year or fifteen months until he’s even released. So again, that’s my theory on him not making progress. And again, most of the loss of his good-time has come following his inclusion in client service plans and involvement with the court.”

The trial court denied Williams’ motion for directed finding at the close of State’s case.

On his behalf, Williams called Wild to testify that he had written 37 letters to her inquiring about R.W.’s health and how he was doing in school and elsewhere. Williams had also asked Wild for R.W. to visit him in prison. Wild testified that Williams also wrote letters frequently to R.W. Wild explained that she did not take R.W. to visit Williams because he was held at the Menard psychiatric unit. She explained that travel time there with a young child would be 5V2 hours one way by car. Further, the counselors at Menard psychiatric unit advised Wild that the environment there might prove very difficult for a child to handle.

Williams presented no further evidence, and the prosecutor then repeated the same argument he made earlier concerning Williams’ loss of good time, requiring as a result that he serve a longer prison sentence than DOC originally projected. In response, Williams’ counsel argued that the State’s position concerning whether Williams could have gotten out earlier is speculative.

At the conclusion of the adjudicatory hearing on the termination of parental rights, the court made specific findings with regard to the respondent mother and each of the respondent fathers, and found all of the respondent parents unfit. Regarding Williams, the court com-merited that it was “clearly a closer question,” but that the court believed that Williams, starting in October 1989, understood what he needed to do in order to obtain custody of R.W. The court then stated its conclusion regarding Williams as follows:

“In fact, there is only one thing to which the Court could hold [Williams] responsible in regard to making progress in this case, and that is, get out of the penitentiary. That’s the only thing that could be expected of him under the facts of this case. So, the question is, in terms of requiring [him to] secure his release from [DOC], what is reasonable. *** It would *** be reasonable to say, all right, Mr. Williams, the first step to take towards the return of custody to you is get out of jail *** in two years, or by July 3rd of 1990. It is within his control as to when he gets out. And, I believe that is a reasonable requirement, get out as soon as you can. Mr. Williams hasn’t done so. And, in fact, he could not have more profoundly frustrated that step towards reunification with his son. ***
One must bear in mind[] that Mr. Williams, at this point, has not [sic] been incarcerated in the penitentiary for better than a third of his son’s life, and that percentage will be even greater when he is finally released. He could have been out July 3rd of 1990. He could have now been seven months towards the reunification of himself with his son. And, in fact, he may well have accomplished it by now, if he had simply obeyed the [DOC] rules ***. He not only failed to do so, he failed to do so repeatedly, over and over and over again ***. That’s not reasonable. That’s a failure to make reasonable progress. And, I don’t believe it is reasonable or consistent with the legislative purpose underlying this provision, to require a child to wait four years in foster care when he only had to wait two.
For that reason, I believe that the State has proven Count I, and I find by clear and convincing evidence that the respondent father, Robert Williams, is an unfit parent by reason of having failed to make reasonable progress towards the return of the child to him within twelve months of the time the child was adjudged to be neglected.”

II. Analysis

Section 3 — 6—3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1003—6—3) governs the procedures for the early release of persons committed to DOC. Section 3—6—3(a)(1) states that DOC shall prescribe rules and regulations for the early release of prisoners because of good conduct. (Ill. Rev. Stat. 1991, ch. 38, par. 1003—6—3(a)(1).) Section 3 — 6—3(a)(2) provides that such rules and regulations shall grant each prisoner one day of good conduct credit — also known as “good time” — for each day served in prison. (Ill. Rev. Stat. 1991, ch. 38, par. 1003—6—3(a)(2).) Section 3— 6 — 3(c) provides that DOC shall also prescribe rules and regulations for revoking good time for violating prison rules. (Ill. Rev. Stat. 1991, ch. 38, par. 1003—6—3(c).) Section 3 — 8—7(e) of the Code sets forth some of the procedural protections for prisoners who face losing their good time due to allegations that they violated prison rules. Ill. Rev. Stat. 1991, ch. 38, par. 1003—8—7(e).

In response to these sections of the Code, DOC has promulgated regulations governing the loss of good time. (See 20 Ill. Adm. Code §504 (1991); see also 20 Ill. Adm. Code §1610.170 (1991) (Prisoner Review Board regulation regarding how the board will decide cases where amount of good time at issue exceeds 30 days).) Williams lost his good time in the present case as a result of some administrative hearings conducted pursuant to these statutes and regulations. DOC found that Williams had violated prison rules often enough to lose all of his good time. Because of that loss, Williams’ projected out-date on his four-year prison sentence moved from July 1990 to July 1992.

We pointed out earlier that DCFS in October 1989 discussed with Williams its client service plan for him, which required him to get out of prison as soon as possible. We view that requirement (as, we are confident, the trial court and DCFS viewed it) as a shorthand way of requiring that Williams not violate any prison rules, which, if violated, would result in a loss of his good time.

As the dialogue between court and counsel at the adjudicatory hearing on the State’s petition to terminate parental rights made clear, Williams’ losing his good time as a result of DOC administrative hearings provided the sole basis for the prosecutor’s charging — and the court’s finding — that Williams was unfit under section l(D)(m) of the Act for his failure to make “reasonable progress.” The question then becomes whether, as a matter of law, those hearings (and the procedures which underlie them) are sufficiently reliable to provide the sole basis for a trial court to conclude that an inmate is an unfit parent because of findings adverse to that inmate at those hearings. Because of the significance of the parental relationship and the protection the law affords to it, we hold that the answer to that question is no.

DOC administrative hearings differ significantly from proceedings on petitions to terminate parental rights. First, the burdens of proof differ between DOC administrative hearings and parental rights termination proceedings. Section 1 of the Act provides that a petitioner charging parental unfitness must prove that charge by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 40, par. 1501; In re Paul (1984), 101 Ill. 2d 345, 352, 461 N.E.2d 983, 986; In re A.H. (1991), 215 Ill. App. 3d 522, 530, 575 N.E.2d 261, 266.) No such burden is imposed on prison authorities in DOC administrative hearings to prove -wrongdoing by accused inmates. In addition, the rules of evidence that normally apply in civil cases apply to parental rights termination proceedings. (See In re J.R.Y. (1987), 157 Ill. App. 3d 396, 400, 510 N.E.2d 541, 544 (analyzing admissibility of evidence in parental rights termination proceeding); see also Ill. Rev. Stat. 1991, ch. 37, par. 802—18(1) (civil rules of evidence apply at adjudicatory hearing deciding whether a minor is abused or neglected).) However, the formal rules of evidence do not apply to DOC administrative proceedings involving the possible loss of good time, nor should they. In sum, the “process due” prisoners at DOC administrative hearings is — appropriately— significantly less than the “process due” parents whose parental rights to their children are in jeopardy.

In the present case, if we were to affirm the trial court, the result might be that Williams would have his parental rights terminated based upon evidence presented at the DOC administrative hearings (which resulted in his loss of good time) that (1) would not have been admissible in court in proceedings to terminate Williams’ parental rights, and (2) would not have been sufficient to meet the petitioner’s burden of proving Williams’ parental unfitness by clear and convincing evidence. Accordingly, we conclude that the findings at the DOC administrative hearings regarding Williams cannot provide the sole basis for the trial court to find him to be an unfit parent.

A recent decision by the Seventh Circuit Court of Appeals, Hamilton v. O’Leary (7th Cir. 1992), 976 F.2d 341, supports our conclusion that the findings at the DOC administrative hearings regarding Williams cannot provide the sole basis for the trial court to find him to be an unfit parent. Hamilton demonstrates the clear differences in the process due inmates at such hearings and that due respondents alleged to be unfit parents.

In Hamilton, the plaintiff, a former prisoner at Stateville Correctional Center in Illinois, brought a section 1983 action against various prison officials involved in the revocation of his good-time credits. The Federal district court dismissed plaintiff’s complaint with prejudice for failure to state a claim (Hamilton v. Scott (N.D. Ill. 1991), 762 F. Supp. 794), and the Seventh Circuit, on appeal, had to accept as true all well-pleaded factual allegations contained in plaintiff’s complaint. Hamilton, 976 F.2d at 343.

That complaint alleged that during a general “shake down” being conducted at Stateville, items were being thrown from other cells into' a large vent into which plaintiff’s cell faced. Later that same day, a correctional officer wrote up an Inmate Disciplinary Report (known as a “ticket”) for plaintiff and the other three prisoners in plaintiff’s cell, charging each with possession of six assorted steel pipes and “shanks” found in that cell. Hamilton, 976 F.2d at 343.

A week later, the Stateville Adjustment Committee conducted disciplinary hearings for plaintiff and his three cellmates. At that hearing, plaintiff denied having anything to do with the six weapons he was charged with possessing, and he claimed that the weapons had been found in the vent — not on him and not in his cell. (Hamilton, 976 F.2d at 343.) The adjustment committee found plaintiff guilty and imposed the same punishment as was imposed on his cellmates, which included a recommendation that 60 days of his good-time credit be revoked. The adjustment committee reported its decision in a form order, and in a section thereof labeled “Reasons,” the committee wrote: “Inmate denied guilt ***. *** [T]he Committee notes inmate *** is responsible for whatever is found in [his] cell.” Hamilton, 976 F.2d at 343.

The adjustment committee’s order was reviewed by the Stateville warden, the Director of DOC, and the DOC Administrative Review Board, and ultimately plaintiff had 30 days of good-time credit restored from the 60 days he originally had revoked. Hamilton, 976 F.2d at 344.

In this context, the Seventh Circuit wrote the following:

“Illinois state prisoners have a statutory right to receive good time credits, Ill. Rev. Stat. ch. 38, par. 1003—6—3, and such a state-created entitlement to good time credits is a liberty interest protected by the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974). Where a prison disciplinary hearing may result in the loss of good time credits, due process requires that the inmate receive: (1) advance written notice of the claimed violation; (2) the opportunity to call witnesses and present documentary evidence, when consistent with institutional safety and correctional goals; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-66, 94 S. Ct. 2978-79. In addition, the revocation of good time credit ‘does not comport with the minimum requirements of due process unless the findings of the prison disciplinary board are supported by some evidence in the record.’ Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86 L. Ed. 2d 356 (1985) (citation omitted, emphasis added).” Hamilton, 976 F.2d at 344-45.

The Seventh Circuit rejected plaintiff’s claim and affirmed the trial court. In doing so, it noted that the “ticket” stated that the correctional officer found six weapons in plaintiff’s cell while the officer “was shaking down [the plaintiff].” (Hamilton, 976 F.2d at 345.) Despite the fact that that officer did not testify at the administrative hearing at which plaintiff lost his good-time credit, the Seventh Circuit held that “[t]he ticket, together with constructive possession, is ‘some evidence’ of [plaintiff’s] guilt.” (Hamilton, 976 F.2d at 345.) The court further explained its decision as follows:

“According to the facts set forth in the amended complaint and its attachments, the evidence before the Adjustment Committee was that six homemade weapons were found in Cell C-227 which was occupied by and under the control of [plaintiff] and his three cellmates. Thus, on the record before the Adjustment Committee, there was a 25% probability that [plaintiff] was the owner of the weapons. As the evidence in Hill, this evidence ‘might be characterized as meager’ and there is no direct evidence identifying one of the four cellmates as the owner of the contraband. 472 U.S. at 457, 105 S. Ct. at 2775. But given the 25% chance of guilt, ‘the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.’ Id. Since the complaint (and its attachments) establish that the Adjustment Committee’s decision was supported by some evidence, it fails to state a claim.” Hamilton, 976 F.2d at 346.

Judge Posner dissented, but his dissenting opinion hardly changes our view of the difference between DOC administrative hearings and formal courtroom civil proceedings:

“On the record before the committee, the probability that the plaintiff had possessed one or more of these weapons cannot be reckoned as greater than one in eight, or 12.5 percent. That is not my idea of ‘some evidence,’ Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773 (1985), unless purely collective guilt is deemed to satisfy due process—which in prison circumstances it might be, cf. Ustrak v. Fairman, 781 F.2d 573, 575 (7th Cir. 1986), but the defendants do not defend the disciplinary committee’s action on that ground.” (Emphasis added.) Hamilton, 976 F.2d at 347 (Posner, J., dissenting).

• 2 In support of the conclusion in this case, we note that “[p]a-rental rights and responsibilities are of deep human importance and will not be lightly terminated.” (Paul, 101 Ill. 2d at 351-52, 461 N.E.2d at 985.) Indeed, because the United States Supreme Court has stated that the right to raise one’s children is both “essential” and part of the “basic civil rights of man” (see Meyer v. Nebraska (1923), 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626; Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113), our conclusion may well be constitutionally mandated.

In Clayton-El v. Lane (1990), 203 Ill. App. 3d 895, 900, 561 N.E.2d 183, 186, the court addressed the inevitable tension between the rights retained by prison inmates and the legitimate institutional needs of prisons and wrote the following:

“While prisoners retain rights under the due process clause, this in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. There must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. (Wolff v. McDonnell (1974), 418 U.S. 539, 556, 41 L. Ed. 2d 935, 951, 94 S. Ct. 2963, 2975.)”

This case presents no challenge to the fairness of these DOC administrative proceedings, nor does Williams argue that he did not receive the process he was due before his good time was revoked. We emphasize these points because we do not mean to criticize in any way prison administrative disciplinary procedures, at least insofar as those procedures are utilized for the purposes for which they were intended: to determine administratively whether (1) a prisoner has violated prison rules, and (2) if so, how much good time he should forfeit.

Nor do we mean to question in any way the legitimacy of the trial court’s (or DCFS’) directive requiring a prison inmate — whose child has been formally adjudicated a ward of the court and removed by the court’s dispositional order from the custody of the child’s parents, one of whom is the inmate — to take specific steps designed to achieve a reconciliation and a reunification of the family unit. (See In re L.L.S. (1991), 218 Ill. App. 3d 444, 465-66, 577 N.E.2d 1375, 1390.) Further, the trial court can properly hold the inmate accountable — including terminating his or her parental rights — if the inmate fails to make “reasonable progress” under section 1(D)(m) of the Act because the inmate failed to follow such a directive.

This case provides an example of the very point we wish to emphasize. Here, the trial court and DCFS both expressed concern about Williams’ obtaining a drug evaluation and, if necessary, counseling. If the paperwork had been appropriately completed so that drug counseling and evaluation were made available to Williams, and he nevertheless willfully refused to comply with the directive that he obtain such counseling and evaluation, then the court could properly consider proof of such willful refusal as evidence of the inmate’s failure to make “reasonable progress” within the meaning of section 1(D)(m) of the Act.

We agree with the trial court’s goal of trying to provide R.W. with the stable, loving, and permanent (as opposed to foster) home that we would like all children to have, and we sympathize with the quandary in which the court found itself as it addressed Williams’ situation. Nonetheless, for the reasons stated, we must reverse the trial court’s determination that Williams is an unfit parent under section 1(D)(m) of the Act.

Reversed.

KNECHT, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

As the majority points out, respondent was directed to cooperate fully and completely with DCFS and to take steps to address parental deficiencies in order to have his child returned to his custody.

Respondent was well aware of the importance of early release from the penitentiary in order to be reunited with his son. In a December 1989 review hearing, he stated his projected out-date was July 30, 1990. Six months later, he had lost all of his good time and his projected out-date was then July 30, 1992, some two years later than his first projected out-date.

The record shows all of his good time was lost because of six separate violations of prison rules. He lost one month for sexual misconduct, three months for threats and intimidation, an additional month for sexual misconduct, an additional year for sexual misconduct and one month for theft and assault.

Respondent clearly had the opportunity to make reasonable progress toward the return of R.W. to him. He did have to comply with prison rules, not a particularly burdensome obligation.

As the majority points out, there is no challenge to the fairness of the DOC administrative proceedings nor does respondent argue he did not receive due process before the good time was revoked.

I do not agree that Hamilton suggests a different result.

We have stated repeatedly that reasonable progress exists when a parent’s compliance with directives given for the return of a child is sufficiently demonstrated. Sufficient compliance means that there is an expectation that the parent will fully comply with the directives in the near future. Minimal progress will not prevent a finding of unfitness; a child cannot be condemned to a life of uncertainty and placement in foster homes while the courts exercise endless patience with the parents. L.L.S., 218 Ill. App. 3d at 461, 577 N.E.2d at 1387.

Here, R.W. was four years old in November 1988. Respondent had begun his four-year sentence in DOC on October 19, 1988. Because of respondent’s conviction and wilful actions while in prison, he will have spent half of his child’s life incarcerated. Such conduct does not comport with our decision concerning reasonable progress.

Clear and convincing evidence was presented to the trial court showing respondent to be unfit. I fear we are condemning this child to a life of uncertainty.

The trial court’s order was not against the manifest weight of the evidence and should be affirmed.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD DICKERSON, Defendant-Appellant.
    Fourth District
    No. 4—91—0708
    Opinion filed December 30, 1992.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In January 1991, the State charged defendant, Richard Dickerson, with forgery in that he knowingly made or altered a document apparently capable of defrauding another in such a manner that it purports to have been made by another, in violation of section 17 — 3(a)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)(1)). In April 1991, the trial court granted defendant’s motion for a handwriting analysis of the allegedly forged document and ordered that it be performed at the Illinois State crime lab. However, before that analysis occurred, the State asked leave of court to amend its charge from alleging a violation of section 17 — 3(a)(1) of the Code to alleging a violation of section 17 — 3(a)(2) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)(2) (issuing or delivering a forged document knowing it to have been forged or altered)).

The State’s motion sought to delete the allegation that defendant signed the document and asserted instead that defendant had delivered it. At the hearing on that motion, defense counsel did not object to the amendment, but argued that the handwriting analysis was still relevant because the preliminary hearing testimony indicated that the State ascribed both writing and delivering to defendant. The trial court allowed the amendment and vacated its order for a handwriting analysis. After a July 1991 jury trial, the defendant was convicted of the amended forgery charge. Defendant appeals, arguing that the trial court erroneously impeded his ability to present a defense by vacating the order for a handwriting analysis.

We agree.

I. Facts

While driving his auto on February 1, 1988, defendant collided with a parked pickup truck owned by William Brunner, an employee of the Illinois Department of Corrections, and caused $745 in damages to Brunner’s truck. Defendant did not have any auto insurance and for two years after the accident did not pay for any damage to the truck. As a result, the Secretary of State suspended defendant’s driver’s license. On March 1, 1990, defendant visited Brunner’s workplace (a Department of Corrections facility) and asked Brunner to sign a release-from-liability form so that defendant could regain his driving privileges. Brunner agreed to do so pursuant to an agreement requiring defendant to pay Brunner a total of $250 in $50 installments due the first of each month. Defendant then paid Brunner $50 for the March installment.

Because of this agreement, defendant regained his driving privileges on March 2, 1990. However, defendant paid only $25 toward the April installment. On April 8, Brunner sent a letter to the Secretary of State stating that defendant had defaulted on the installment agreement. In response, the Secretary of State suspended defendant’s driving privileges on April 19,1990.

On May 17, 1990, a man identifying himself as defendant went to the Secretary of State’s office to inquire how he could regain his driving privileges. Linda Williams, an employee at that office, informed this man that he could not enter into another installment agreement because the law allows only one such installment agreement. She informed the man that he could (1) reinstate the first installment agreement if Brunner would inform the Secretary of State that no default occurred, or (2) place $745 as bond to the Secretary of State for the full amount of the damage. Williams could not identify defendant at trial as the man with whom she spoke, explaining that she sees too many people each day to remember each one.

Defendant visited Brunner later that same day (May 17) at Brunner’s workplace and asked Brunner to reinstate the first installment agreement. Brunner refused to do so because defendant had not honored the original agreement.

The next day, a man identifying himself as defendant again spoke to Williams at the Secretary of State’s office. This man gave Williams a handwritten note on a 5 by 7 yellow sheet of paper that stated the following:

“To Whom it may concern:
An error was not made[.] The previous agreement was not broken. Mr. Dickerson has made paymentsf.] I regret The Inconvenience [8tc][.]
Thank You
W.M.G. Brunner
WMG Brunner”

Two signatures — “W.M.G. Brunner” and “WMG Brunner” — appear at the end of the letter in apparently different handwritings. The letter was notarized with a raised notary public seal and writing that reads as follows:

“May 18 1990
Witness to Signature
Carl A. Otto
Notary Public”

Based on this letter, the Secretary of State reinstated defendant’s driving privileges. On May 19, 1990, Brunner received a copy of a letter addressed to defendant informing him that the Secretary of State had reinstated his driving privileges. Brunner thus went to the Secretary of State’s office and informed a woman there that he did not sign anything that stated that the default did not occur. When shown a copy of the handwritten letter, Brunner informed the woman that he had not signed it. Brunner also testified at trial that he never signed a letter indicating that the default did not occur. Later, the Secretary of State resuspended defendant’s driving privileges.

Michael Hoffman, an investigator for the Secretary of State, investigated this case to determine if defendant had forged the handwritten letter. On November 27, 1990, he phoned all the people listed in the phone book under “Dickerson” until he spoke to a person who identified himself as defendant. For added clarification, Hoffman asked that person if his birthdate was May 11, 1964, and his driver’s license number was D26275264135. The person responded that they were. Hoffman then informed that person of everything pertaining to this case and asked “if he had any knowledge of the letter that was sent to the Secretary of State’s Office.” That person said that he did, and admitted twice that he had signed and sent the handwritten letter to the Secretary of State’s office.

Hoffman then set an appointment with that person to meet the next day at the Secretary of State’s office. However, no one showed up for the appointment. Hoffman called the same number several times and left messages with other people who answered the phone. He also went to the address listed in the phone book and placed messages on the door. No one responded to these messages.

Approximately two weeks later, in December 1990, Hoffman by coincidence found defendant in a courtroom in the Sangamon County Building. Hoffman was in the courtroom on other business when he heard the name “Richard Dickerson” called by the clerk and saw defendant respond to this call. Hoffman waited for defendant at the courtroom door, and as defendant exited the courtroom, Hoffman stopped him.

To confirm defendant’s identity, Hoffman asked him if his birthdate was May 11, 1964, to which defendant responded that it was. Hoffman asked him if he remembered their phone conversation. Defendant told Hoffman that he did. When Hoffman asked defendant again about the letter, defendant again admitted (a third time) that he had signed and sent the handwritten letter to the Secretary of State’s office. Hoffman then arranged another meeting with defendant at the residence of defendant’s mother, but defendant did not attend.

Based on the above information, the State then charged defendant with forgery. At his initial court appearance on this charge, defendant requested and was granted court-appointed counsel to represent him. At trial, Brunner, Williams, and Hoffman all testified to the above facts. In defendant’s case in chief, defendant and his wife both testified that they saw Hoffman in December 1990 in the courtroom when Hoffman asked to arrange to meet with defendant. They both testified that the courtroom was so crowded that people had to stand along the back wall. Defendant testified that he did acknowledge to Hoffman that he remembered their telephone conversation. However, both defendant and his wife testified that Hoffman did not ask defendant for his birthdate, did not mention why he wanted to meet with defendant, and did not mention the handwritten letter. Defendant claimed that he did not even ask Hoffman why he wanted to meet, explaining he had “nothing to hide.”

Defendant admitted that he and Hoffman had agreed to meet at the house of defendant’s mother, but that he did not go to this meeting because of his odd work schedule. Defendant denied that he visited the Secretary of State’s office or spoke with Williams. He also denied admitting to Hoffman that he signed or sent the handwritten letter. Indeed, he denied ever signing, delivering, or even seeing the handwritten letter until he saw it in court.

In rebuttal, Hoffman clarified that the courtroom in which he saw defendant was empty except for defendant, the judge, and himself. He added that he did not see defendant’s wife in the courtroom or in the hallway despite her claim that she stood directly between Hoffman and defendant.

At the end of this trial, the jury convicted defendant of forgery in violation of section 17 — 3(a)(2) of the Code. The presentence report contained a written statement of defendant’s version of events, in which defendant maintained his innocence and wrote that someone with a “personal vendetta” against him had framed him. The trial court sentenced defendant to two years in prison.

II. Analysis

A defendant has the right to present relevant, competent evidence in his defense, and “[the State] must take steps to assure that the [indigent] defendant has a fair opportunity to present his defense.” (Ake v. Oklahoma (1985), 470 U.S. 68, 76, 84 L. Ed. 2d 53, 61, 105 S. Ct. 1087, 1092.) Ake involved the issue of whether the State must pay for a psychiatric evaluation and not a handwriting analysis. However, in People v. Watson (1966), 36 Ill. 2d 228, 232, 221 N.E.2d 645, 649, the Illinois Supreme Court (in a context other than a psychiatric evaluation) similarly held that a defendant’s indigency cannot be permitted to impede his right to present a defense. Significantly for the present case, the issue the court addressed in Watson was whether the indigent defendant should receive a court-appointed handwriting expert to help defendant defend against an attempt (forgery) charge.

In Watson, defendant was charged with attempting to forge a stolen traveler’s check at a tavern. The owner of the check testified that the defendant had stolen several traveler’s checks while hitchhiking with the owner. A bartender at a Rockford tavern identified defendant as the person who attempted to cash one of the traveler’s checks at the tavern and who signed it in front of the bartender. Because of differences in the two signatures on the traveler’s check, the tavern manager refused to cash it, whereupon the person who presented the traveler’s check left the tavern, leaving the check behind.

After defendant’s arrest, a second stolen traveler’s check from the same group of stolen traveler’s checks was forged in front of a drugstore employee and cashed. The defendant thus requested a handwriting expert to compare the signatures on the two checks, intending to argue if the two were the same, then the defendant was not the person who signed the check in front of the bartender at the tavern.

The supreme court held that on these facts, the defendant had a right to receive the funds to pay for a handwriting expert to help him in his defense. In first ruling that the evidence regarding the second check was admissible, the court in Watson wrote the following:

“Even though [defendant] is not charged with signing the check, the facts of the case point out that if he did not sign it, he did not deliver it. A person charged with a crime should be allowed to make all proper defense and if the evidence offered is competent, it should be permitted to go to the jury for all it is worth.” (Watson, 36 Ill. 2d at 232, 221 N.E.2d at 647-48.)

The court then proceeded to the constitutional issue regarding whether defendant has a right to receive court funds to obtain a handwriting expert to compare the two signatures. The court wrote the following:

“The court recognizes that there is a distinction between the right to call witnesses and the right to have these witnesses paid for by the government, but in certain instances involving indigents, the lack of funds *** to pay for the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense. Thus, although the defendant is afforded the shadow of the right to call witnesses, he is deprived of the substance.
*** jjere a handwriting expert could give a professional opinion as to whether the defendant signed the check he is accused of attempting to deliver, and could compare the signature on that check with the signature on the check which was signed and delivered while defendant was in custody. If it is his opinion that defendant could not have signed it, then the jury could be permitted to draw the conclusion that defendant is innocent. Despite the language of the indictment, the issue of handwriting goes to the heart of the defense. The opinion of a handwriting expert in this case then may have been crucial, and defendant’s lack of funds prevented him from presenting to the jury evidence which may have established his innocence. We hold that under the facts presented in this case defendant was entitled to a reasonable fee for the purposes of hiring a [handwriting expert].” (Emphasis added.) Watson, 36 Ill. 2d at 233-34, 221 N.E.2d at 648-49.

This case resembles Watson in every particular but one: the nexus in the present case between defendant’s alleged signing of the note and delivering it to a third party is not as clear as the nexus in Watson between the acts of signing and delivering the traveler’s check. In Watson, the defendant allegedly signed and delivered the traveler’s check at the same time; and the same witnesses who saw him sign the traveler’s check also saw him deliver it. Thus, proof that the defendant in Watson did not sign the check would also necessarily show that he was not the one who delivered it.

In the present case, however, evidence that defendant did not sign the note does not negate the State’s case; it only weakens it. In particular, the State used the defendant’s purported admission that he signed the check as part of the evidence that he knew it was forged. If it turned out that he did not sign it, then the State would need to rely solely on circumstantial evidence to prove knowledge. More importantly, a handwriting analysis concluding that defendant did not write the note would bolster defendant’s claim that he never admitted to Hoffman that he wrote the note, thereby weakening Hoffman’s credibility. The State’s argument to the trial court in its motion to reconsider the order granting defendant’s motion for a handwriting analysis was clearly wrong in its assertion that “whether or not the defendant personally wrote the document is irrelevant.” The fact that such a favorable handwriting analysis would weaken the State’s case demonstrates the probativeness of a handwriting analysis. Accordingly, we hold that the trial court erred in vacating its order for a handwriting analysis.

The question remains whether this error constitutes reversible or harmless error. (People v. Hebel (1988), 174 Ill. App. 3d 1, 35, 527 N.E.2d 1367, 1389.) “Notwithstanding the occurrence of constitutional error at trial, a criminal conviction may be affirmed if the reviewing court is able to conclude, upon examination of the entire record, that the error was harmless beyond a reasonable doubt.” People v. Howard (1991), 147 Ill. 2d 103, 148, 588 N.E.2d 1044, 1062.

The record reveals that this case came down to a credibility question between Brunner and Hoffman, on the one hand, and defendant and his wife, on the other. However, defendant’s credibility was undermined by the prosecutor’s cross-examination of defendant, in which defendant made inconsistent statements and changed his story. Not surprisingly, the jury resolved the credibility question against defendant.

In addition, defendant claimed to have received every letter from the Secretary of State’s office except the rather significant April 19 letter informing him that a default had occurred. The Secretary of State sent the letters to his mother’s house, but defendant claimed that the April 19 letter “was not brought to my attention.” He thus claimed that he could not have attempted to correct a default that he never knew about. We further note that defendant’s wife also did not provide the most consistent and compelling testimony.

Nonetheless, we recognize the significant probative value that a handwriting analysis favorable to defendant’s case would have on this credibility question. Again, assuming that an analyst testified that defendant did not write or sign the note, Hoffman’s insistence that defendant admitted three times that he signed the note would appear fabricated. This impeachment could both seriously hurt Hoffman’s credibility and establish a reasonable doubt of defendant’s guilt in the eyes of the jury.

Given the record in this case, we hold that if a handwriting analysis by a bona fide expert would reveal that defendant did not write the note in question, then the trial court committed reversible error in denying defendant the funds for such an analysis. Our conclusion that reversible error occurred expressly depends on the assumption that such an analysis would help defendant as indicated; any finding short of defendant’s not having written the note would simply be inconclusive and therefore would not provide a sufficient basis for a reversal and retrial. Accordingly, we do not remand this case for a new trial, but instead only for a limited hearing.

Ordinarily, defendant would need to have submitted the names, qualifications, and expenses of suggested handwriting experts for the court’s approval, as well as to have established defendant’s indigency and inability to finance the analysis. (Hebel, 174 Ill. App. 3d at 34, 527 N.E.2d at 1388-89.) Defendant did not do so in his motion for a handwriting analysis. However, the trial court initially granted defendant’s motion anyway and ordered that the Illinois State crime lab perform the analysis. The court vacated this order only after the State amended the charge from signing to delivering a forged document, and its vacating the order was not based on these omissions from defendant’s motion. Accordingly, on remand the trial court can require defendant to overcome these deficiencies, if it concludes that such action is necessary.

We remand with instructions that the trial court reinstate its previous order directing the Illinois State crime lab to perform a handwriting analysis. After the analysis has been completed (and if defendant contends the result is favorable, as we have described herein), the trial court should conduct a hearing concerning only the results of the handwriting analysis. If the expert analyst testifies that he cannot determine whether defendant signed the note (or, obviously, if he testifies that defendant did sign the note), then the trial court should again enter judgment on defendant’s conviction. If, however, the expert analyst testifies that defendant did not sign the note, then the trial court should vacate defendant’s conviction and provide defendant with a new trial.

This limited hearing will provide defendant with all of the relief to which he is presently entitled while not burdening the criminal justice system with an unnecessary and expensive new trial. In other words, if defendant cannot present expert handwriting evidence at a retrial that he did not write the note in question, there is no reason to provide him a new trial because there is no reason to believe that the evidence would be any different from that presented at his previous trial.

III. Conclusion

For the reasons stated, we vacate the judgment and remand for further proceedings consistent with the views stated herein.

Vacated with directions.

KNECHT and COOK, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY CORD, Defendant-Appellant.
    Second District
    No. 2—90—0993
    Opinion filed January 14, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, and George Irizarry, both of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Roy Cord, was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(1)) and sentenced to 88 years’ imprisonment. On appeal he argues that he was denied the effective assistance of trial counsel when counsel introduced an officer’s written account of defendant’s confession which contained aggravating information. Defendant also argues the trial court abused its discretion by entering an excessive sentence.

Defendant pleaded guilty to the murder of Steven Moss in return for the State’s agreement not to seek the death penalty. The court accepted the plea and conducted a sentencing hearing. The State prepared a lengthy presentence information report, and the defense prepared a sentencing memorandum. During the plea, defendant admitted stabbing Moss repeatedly with a knife and causing his death. The State stated that it would introduce evidence that the victim was anally assaulted before or after the death. Defense counsel stated that defendant had no memory of the events other than his rage during the stabbing. Counsel further stated that the medical examiner determined that the anus had begun to heal after the anal penetration and that the victim was alive during the penetration; however, counsel could not tell from this determination whether the penetration was consensual or when it occurred.

At the sentencing hearing, the State introduced the testimony of John Secor, who owned a car repair business. On December 23, 1987, defendant broke into Secor’s garage and house. He grabbed Secor’s arm and tried to pull it through the hole in the door. Defendant was not so much talking as growling, and he fainted when the police arrived. Defendant had been friendly, nice, courteous, and good, and Se-cor could not understand why defendant had acted violently. Officer Thomas Judd of the Round Lake Beach police department testified that he found defendant covered with blood and grunting. Defendant was convicted of burglary for this incident, and he was on probation for the burglary when he killed Moss. The trial court had the presentencing reports and progress reports relating to the burglary charge.

Officer Judd also testified that he was the first officer to report to the scene of the murder. He found Moss’ body in a second-floor bedroom. A dead poodle was in the lower level. Judd saw several beer bottles about the ransacked house. Judd authenticated photographs showing Moss’ body with bloody stab wounds.

Dr. Nancy Jones, a medical examiner and a forensic pathologist, testified that the victim suffered 41 stab, incise and puncture wounds, mostly on the left side and around the head and chest. The victim’s pants and underwear were pulled down. A knife had punctured the lungs. The knife cut the left and right ventricles of the heart, which continued to beat. Bleeding into the pericardium cavity had not stopped the heart because the blood drained out through the wounds. The victim also had a dilated rectum which showed a laceration in the mucus membrane, as if there had been sexual penetration. The rectum showed hemorrhaging, which indicated that the heart was pumping blood at the time of the penetration. Dr. Jones concluded the victim was alive at the time of the penetration. She testified the poodle was also stabbed.

The court read the victim impact statements of the victim’s brother, father and mother. The court later stated it redacted the statements to consider only the statutorily authorized factors in them. The victim’s girlfriend, who was the mother of his son, read her statement in which she stated that the murder had shattered their plans to start a home together.

A sheriff’s deputy stated that while he was on duty at the Lake County jail, defendant had approached him and stated that he was going to be sentenced for murder. Defendant told him, “I killed a fag” because the victim touched him while they were in a bar. Defendant walked away from the deputy and said, “Oh, well, shit happens.” However, defense counsel impeached the deputy’s recollection of the conversation.

After the State rested, defense counsel introduced a statement written by Sergeant David Ostertag of the Round Lake Beach police department in which he related defendant’s confession to the murder. This report formed the basis of the alleged ineffective assistance. The report supplies defendant’s account of how the murder occurred.

Defense counsel called Dr. Gerald Girdaukas as his primary witness and to authenticate his psychological report. Dr. Girdaukas was a licensed clinical psychologist who examined defendant prior to the sentencing hearing. Defendant was borderline mentally retarded with an IQ of 76 at age 22. The tests indicated that defendant had significant intellectual, emotional, and educational difficulties. Defendant had no significant history of violent crimes other than the burglary. Since then, he had adapted well by working at the Lambs’ Farm and at a grocery store. Defendant had an alcohol problem earlier, but progressed well with regular attendance at Alcoholics Anonymous meetings. Shortly following several positive mental evaluations, defendant committed the murder. Dr. Girdaukas found defendant to be very anxious with intensely emotional behavior. The behavior was consistent with previous reports.

Dr. Girdaukas concluded that sexual confusion was at the heart of the offense. Defendant thought the victim was a homosexual because twice he put a hand on defendant’s shoulder. The events of the night, aggravated by drinking in a bar, created emotions so powerful that defendant could not control his emotions. Aberrant homosexual patterns are commonly found among individuals who were homosexually assaulted themselves. The pattern is often the subject of societal scorn, and the emotions become fixed in recesses deep in the subject’s mind. In addition, defendant felt rejected when he was called a “retard.” Defendant’s suffering a rape by his stepfather was a factor which explained the rage of a multiple stab attack. The violence was an enormous eruption of emotion that occurred from a building up of frustration, secrecy, self-alienation and abuse. Defendant killed the victim in a homosexual panic.

On cross-examination, Dr. Girdaukas testified that defendant told him that defendant’s stepfather had beaten him and was a violent person when he drank alcohol. However, Dr. Girdaukas admitted defendant did not tell him that the stepfather had sexually assaulted him.

On redirect examination, Dr. Girdaukas explained that during the psychological examination defendant became severely anxious and uncontrollable when the doctor tried to ask about defendant’s sexual feelings, which caused him pain. Defendant could not deal with the feelings. Dr. Girdaukas had to obtain a sexual history from secondary sources. Defense counsel introduced Ostertag’s report in which the officer related that he asked defendant if he had been sexually assaulted, and defendant responded that he had. Ostertag asked if the perpetrator was his father and defendant nodded, said “yes,” and cried. Dr. Girdaukas found the paragraph very descriptive of defendant’s emotional conflict. Dr. Girdaukas noted that defendant first denied anything happened and then broke down.

Defendant’s uncle testified that his parents did not give him the attention they gave to his brothers. Defendant’s father Ray adopted him when he married defendant’s mother. Defendant’s brothers treated defendant like a brat and a patsy. Defendant’s aunt testified that defendant had been good and took care of other children and would help others. She was surprised when defendant started to drink. A friend of defendant’s father testified that defendant was always helpful and never violent.

Defendant’s older stepbrother testified that while he never saw his father Ray physically abuse defendant, Ray verbally abused him, which hurt defendant more. Ray called him a “no-good worthless S.O.B.” Defendant was good, and he was active in his church and service organizations. He taught religion to retarded students. He taught high school students about the dangers of drug abuse.

Defendant’s mother was sad that defendant needed special help that she could not provide. Defendant was loving and caring and had adjusted well to the right environment, such as that at Lambs’ Farm. Defendant’s sister testified that defendant was a warm and caring person.

The prosecutor asked the court to impose a sentence of life imprisonment because the crime was brutal and heinous. Defense counsel argued that while a multiple stabbing may appear brutal at first glance, defendant’s actions were not “indicative of wanton cruelty” as the statute required. The wounds showed the actions of an unthinking rage rather than a cold infliction of wounds calculated to cause death or an intentional torturing of a victim. However, the trial court noted that in Ostertag’s report defendant admitted he sexually assaulted the victim after inflicting the wounds; this assault occurred while the victim was alive. The court thought this second offense indicated defendant acted with wanton cruelty. Defense counsel stated he introduced Ostertag’s report because at the conclusion of the report defendant had demonstrated how remorseful he was and because it showed defendant was abused as a child.

The trial court reviewed the statutory framework for imposing the sentence for murder. Under section 5 — 8—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1)(a)), the court must impose a term of imprisonment between 20 and 60 years. If the court finds the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or if the court finds the defendant eligible for the death penalty, the court may impose a term of natural-life imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(1)(b).) A defendant is eligible for the death penalty if the victim was killed in the course of another felony and the defendant actually inflicted the fatal blow and the defendant had the intent to kill or acted with knowledge that the acts created a strong possibility of death (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6)); the other felony must be in a list which includes aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(b)(6)(c), 12—14(a)). In the alternative, if the court determines that the extended term applies, the court may sentence a defendant to 60 to 100 years’ imprisonment for first degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(a)(1).) The extended term may apply if the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)(2).

The trial court found that defendant was eligible for the death penalty because defendant committed the murder during the course of another felony, namely, aggravated criminal sexual assault. The court also found defendant was eligible for the extended term because of the exceptionally brutal and heinous behavior indicative of wanton cruelty. The court found few mitigating circumstances to outweigh the aggravating circumstances. The court discounted the factor of the defendant acting under a strong provocation because there was no potential for an insanity defense. Being a victim of sexual abuse did not justify defendant’s violent reactions against the victim. Nobody had a right to react violently to homosexual advances, and there was no substantial evidence that the victim had made advances. The court queried how to protect citizens who make innocent gestures when the defendant might react violently. The court noted defendant admitted he knew he should not be drinking, but had abandoned his efforts at reform. The trial court did consider defendant’s youth and mental problems as mitigating factors. However, the court considered defendant a danger to the public and sentenced him to 88 years’ imprisonment.

On appeal, defendant contends that trial counsel blundered by introducing the Ostertag report. The State had adduced no evidence that the sexual penetration was not consensual and had not occurred prior to the stabbing. The trial court relied on the report which demonstrated that the penetration was committed on a dying man. This fact showed the murder to be indicative of wanton cruelty and to have been committed in the course of another felony. Defendant on appeal contends that if trial counsel had not introduced the statement, the court would not have evidence showing defendant was eligible for life imprisonment or the extended term. Since the 88-year term exceeds the 60-year maximum for the unextended term, defendant contends he was prejudiced by trial counsel’s introduction of the statement. Moreover, defendant contends that the statement contradicted trial counsel’s representations that defendant had no memory of the assault. In the statement, defendant stated he sexually assaulted the victim after he stabbed him. Defendant was still in a rage and vandalized the house and killed the dog, which was barking at him. The trial court mentioned other statements made by defendant in the report.

A defendant may establish a claim of the ineffective assistance of counsel by showing that trial counsel’s performance was so seriously deficient as to fall below an objective standard of reasonableness under prevailing professional norms and that the deficient performance so prejudiced the defense as to deny the defendant a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Williams (1991), 147 Ill. 2d 173, 235.) The performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. (Williams, 147 Ill. 2d at 235.) A defendant must also overcome the strong presumption that the challenged action might be considered sound trial strategy. 147 Ill. 2d at 235, 247.

The State contends that defendant was not prejudiced by the introduction of the statement because the trial court did not impose a term of life imprisonment but of 88 years’ imprisonment. The State contends that defendant was not prejudiced because, the State maintains, defendant was eligible for a life term under either the course of another felony factor (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6); see People v. Thomas (1990), 137 Ill. 2d 500, 533) or the brutal and heinous nature of the crime (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(b)). However, the trial court found both enhancements based on the evidence appearing in the Ostertag report. The trial court found the crime to be indicative of wanton cruelty because defendant sexually assaulted a dying man. While the number of wounds by itself can make a murder heinous (see People v. Hernandez (1990), 204 Ill. App. 3d 732, 742-43), we need not speculate whether the trial court would have found defendant’s outburst more worthy of an extended term than that of a cold, wanton and calculated murder. A defendant must prove both prongs of the Strickland test, and defendant has failed to show an error by his trial counsel.

A defendant cannot complain of a trial counsel’s actions when the actions are part of a sound trial strategy. (People v. Gacy (1988), 125 Ill. 2d 117, 125.) Trial counsel’s strategy involved portraying defendant as an essentially good person, young and rehabilitatable, who suffered an aberration caused by emotional trauma earlier in life. Trial counsel also wanted to rebut the lack of remorse. (See People v. Andrews (1989), 132 Ill. 2d 451, 466; People v. LaPointe (1981), 88 Ill. 2d 482, 501 (lack of remorse is an indication of a brutal and heinous crime).) Defendant’s primary evidence was the psychological opinion which explained how he could have committed such a crime. The psychologist relied upon defendant’s statement that he himself was abused as a child; the only such statement in the record appeared in the Ostertag report. The psychologist also found the whole course of defendant’s conversation with the officer corroborative of his psychological opinion. Defendant’s statement reflects trial counsel’s theory that the whole stream of events occurred during an emotional rage. Defendant expressed that he was shocked by what he was doing. The statement reveals that defendant did not enter the victim’s house to burglarize, steal, or commit any felony. We will not second-guess counsel’s strategy. Counsel had a difficult task of giving some meaning to a senseless murder. The introduction of the statement was consistent with a sound trial strategy, and we will not find that defendant was denied the effective assistance of counsel. Moreover, the victim was found with his pants down; thus, the trial court already had evidence that the murder was committed in the course of an aggravated criminal sexual assault.

Defendant also argues that the 88-year sentence was excessive and an abuse of discretion. The Illinois Constitution provides that all penalties shall be determined both according to the seriousness of the offense and with the object of restoring the offender to useful citizenship. (Ill. Const. 1970, art. I, §11; see Ill. Rev. Stat. 1989, ch. 38, par. 1001—1—2(d).) Defendant contends the trial court violated this provision because it ignored the constitutional mandate to restore defendant to useful citizenship when it imposed an 88-year term on a 22-year-old man. Defendant cites this court’s opinion of People v. Treadway (1985), 138 Ill. App. 3d 899, in which we reduced a 60-year extended sentence to a 30-year term because the trial court did not give the defendant the possibility of being restored to useful citizenship. (138 Ill. App. 3d at 904-05.) As in Treadway, the outburst of violent stabbing occurred during a “fleeting moment of intoxicated rage.” (138 Ill. App. 3d at 905.) Defendant asks us to use our powers under Supreme Court Rule 615 (134 Ill. 2d R. 615) to reduce the sentence. Defendant asks us to consider his youth, borderline mental retardation, alcohol abuse, childhood abuse, and his improvement in behavior in a proper environment.

The standard of review is whether a trial court has abused its discretion in imposing a sentence. (People v. Streit (1991), 142 Ill. 2d 13, 19.) When reviewing courts examine the propriety of sentences, they should proceed cautiously. A trial court’s decision is entitled to great deference and weight. A trial judge is in a far better position than an appellate court to fashion ,an appropriate sentence because the judge can make a reasoned judgment based on firsthand consideration of such factors as the defendant’s credibility, demeanor, moral character, mentality, social environment, habits, and age. (142 Ill. 2d at 18-19.) A trial court must consider mitigating evidence and determine what weight to assign it; however, the court may not give it no weight. (People v. Phillips (1989), 127 Ill. 2d 499, 535.) A reviewing court will not substitute its judgment for that of a sentencing court merely because it would have weighed the factors differently. Streit, 142 Ill. 2d at 19.

The trial court is not required to mention and assign a value to each mitigating factor. (People v. Powell (1987), 159 Ill. App. 3d 1005, 1011.) Where the mitigating evidence is before the trial court, it is presumed that the trial court considered it. (People v. Coppula (1991), 212 Ill. App. 3d 52, 55.) Here, the trial court specifically mentioned the mitigating factors and stated that it was reducing the potential sentence because of them. The trial court also mentioned defendant’s efforts to curb his drinking and his opportunities to reform, from which defendant strayed the night of the crime. While defendant’s potential for rehabilitation will not be served by an 88-year sentence, the rehabilitative potential is not entitled to greater weight than the seriousness of the offense, the protection of the public, and punishment. (People v. Harris (1992), 231 Ill. App. 3d 876, 881; People v. Wright (1987), 161 Ill. App. 3d 967, 978-79; People v. Rogers (1986), 141 Ill. App. 3d 374, 382.) Here, the trial court determined that these factors outweighed defendant’s rehabilitative potential. While the court considered the totality of defendant’s mind-set, the court could not forget the totality of the harm felt by the victim or the nature of the crime itself. Thus, we will not find that the trial court abused its discretion in sentencing defendant. See People v. Kendall (1991), 213 Ill. App. 3d 782, 788-89.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.