text:
    RENAE PIQUARD, Plaintiff-Appellant, v. BOARD OF EDUCATION OF PEKIN COMMUNITY HIGH SCHOOL DISTRICT No. 303, Defendant-Ap-pellee.
    Third District
    No. 3 — 92—0503
    Opinion filed March 19, 1993.

      Wayne B. Giampietro, of Witwer, Burlage, Poltrock & Giampietro, of Chicago (James B. Dykehouse, of counsel), for appellant.
    William R. Kohlhase and Dennis R. Triggs, both of Miller, Hall & Triggs, of Peoria (Douglas G. Griffin, of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered.the opinion of the court:

The plaintiff, Renae Piquard, appeals from an order of the circuit court of Tazewell County which granted summary judgment in favor of the defendant, the Board of Education of Pekin Community High School District No. 303 (Board). The plaintiff raises two issues on appeal: (1) whether the Board maintained proper seniority lists which were binding upon the plaintiff in a reduction in force; and (2) whether the Board violated the plaintiff’s tenure rights when it retained a teacher not qualified to teach health courses and dismissed the plaintiff, who was qualified to teach those courses.

We affirm because we find that the Board properly dismissed the plaintiff pursuant to the collective bargaining agreement.

The plaintiff was hired by the Board in August 1979 to teach physical education. The certificate issued by the State Board of Education stated that she was qualified to teach physical education and health. At the time she was hired, physical education and health were separate departments. At least since 1980, the Board has maintained seniority lists in order to keep track of the relative seniority of its teachers. The lists consisted of a master list of all tenured teachers and separate seniority lists of the teachers in each department. The plaintiff was listed on the physical education seniority list from the time she became tenured. However, she was never listed on the health seniority list. Around 1985, physical education and health were combined into one department. Thereafter, the Board continued to maintain a separate health seniority list. The Board also maintained separate seniority lists for other departments which existed when it began keeping the lists even though some of the departments later merged with other departments.

In March 1991, the plaintiff was notified by the Board that she was being dismissed at the end of the school year due to a reduction in force. The Board determined there were too many teachers in the physical education department. It also determined, based on the seniority lists, that the plaintiff was the physical education teacher with the least seniority who was unqualified to fill any other teaching position. Of the 27 teachers on the physical education seniority list, five had less seniority than the plaintiff. One of the teachers with less seniority was the director of instruction and personnel, who was not subject to layoff. Three of the other teachers with less seniority than the plaintiff were also listed on the seniority lists of the science, English, or guidance departments and were acting as teachers in those departments. Therefore, these teachers were not subject to dismissal. Sandra Burrell was the remaining teacher with less seniority than the plaintiff. Burrell was qualified to teach health and was listed on the health seniority list. Also, the Board determined that Burrell would be needed to teach health during the 1991-92 school year. Accordingly, the Board determined that Burrell would be retained and not dismissed.

On September 13, 1991, the plaintiff filed a complaint for mandamus and declaratory relief seeking reinstatement and back pay. She claimed that her dismissal was in violation of her rights under section 24 — 12 of the School Code (111. Rev. Stat. 1991, ch. 122, par. 24 — 12).

The Board filed an answer and affirmative defenses which claimed that the plaintiff’s dismissal was proper under the terms of the collective bargaining agreement in effect between the Board and the teachers’ representative, the Pekin Teachers’ Alliance. A copy of the collective bargaining agreement was attached to the Board’s answer. The agreement provided:

“5.2. If reductions in teachers or teaching position [sic] occur, teachers shall be laid off in inverse seniority order; i.e., shortest in length of service first, provided the remaining teachers have the necessary qualifications and certifications *** to properly fill the remaining positions.”

The agreement stated that “[e]ach teacher’s name shall appear on every seniority list for which the teacher is qualified and certified.” In addition, the agreement stated that: (1) the Board would post an updated seniority list for all departments no later than the first school day in December of each year; (2) the seniority lists would govern the status of years of service with the school district; (3) any teacher who disagreed with his or her placement on the seniority lists would have 60 days after the posting to initiate a challenge through the grievance procedure; and (4) “[iff no challenge is initiated, the placement and specified years of service found on the list shall be conclusive.” (Emphasis added.)

The Board filed a motion for summary judgment claiming there were no disputed issues of material fact. Plaintiff also filed a motion for summary judgment. The plaintiff agreed with the Board that there were no disputed facts. The trial court granted the Board’s motion for summary judgment. The court held that the collective bargaining agreement established the sequence of dismissal. The court also determined that the Board’s seniority lists were conclusive as to placement and years of service.

On appeal, the plaintiff first argues that she was improperly dismissed. The plaintiff contends that she should have been retained instead of Sandra Burrell because she had more seniority and was qualified to teach health. The Board responds by arguing that its dismissal action was proper because Burrell was listed on the health seniority list while the plaintiff was not. The Board further asserts that, under the terms of the collective bargaining agreement, the seniority lists were conclusive with respect to seniority rights. We agree with the Board’s argument.

The primary purpose of the School Code’s tenure provisions is to give tenured teachers priority over nontenured teachers and, as between tenured teachers, to give priority to those with the longer length of continuing service. (Birk v. Board of Education of Flora Community Unit School District No. 85 (1984), 104 Ill. 2d 252, 257, 472 N.E.2d 407, 409.) Mandamus is the proper and appropriate legal remedy for a teacher who seeks reinstatement to a position from which she has been improperly removed. (See Walter v. Board of Education of Quincy School District No. 172 (1982), 93 Ill. 2d 101, 107-08, 442 N.E.2d 870, 873.) However, mandamus will be granted only in those cases where the plaintiff can demonstrate a clear right to this extraordinary relief. Walter, 93 Ill. 2d at 105, 442 N.E.2d at 872.

It is the prerogative of a local school board to consider and compare the qualifications and credentials of its tenured teaching staff when making decisions concerning retention, dismissal and assignment. (Ballard v. Board of Education of Rock Island School District No. 41 (1988), 167 Ill. App. 3d 224, 228, 521 N.E.2d 153, 156.) The board’s decisions will be upheld absent a showing of discrimination and unreasonableness. (Ballard, 167 Ill. App. 3d at 228, 521 N.E.2d at 156.) Courts will not interfere with the exercise of the powers of a school board, or substitute their discretion for that of the board, unless the board’s action is palpably arbitrary, unreasonable, or capricious. Peters v. Board of Education of Rantoul Township High School District No. 193 (1983), 97 Ill. 2d 166, 171, 454 N.E.2d 310, 312-13.

Here, it is undisputed that the plaintiff was dismissed solely because her name did not appear on the health seniority list. If her name had been on the list, she would have been retained and Sandra Burrell would have been subject to dismissal. Therefore, our initial inquiry is whether the Board’s method of maintaining the seniority lists violated the School Code.

Under the School Code, a tenured teacher is said to be in “contractual continued service.” (Peters, 97 Ill. 2d at 169-70, 454 N.E.2d at 312.) Section 24 — 12 of the School Code sets forth the procedures which a school board must follow in a reduction in force. It states, in pertinent part:

“As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement ***. *** Each board shall, in consultation with any exclusive employee representatives, each year establish a list, categorized by positions, showing the length of continuing service of each teacher who is qualified to hold any such positions, unless an alternative method of determining a sequence of dismissal is established as provided for in this Section, in which case a list shall be made in accordance with the alternative method." (Emphasis added.) 111. Rev. Stat. 1991, ch. 122, par. 24 — 12.

The alternative method of determining the sequence of dismissal provided by a collective bargaining agreement cannot diminish the rights of tenured teachers under the statute. (See Ill. Rev. Stat. 1991, ch. 48, par. 1710(b); Biggiam v. Board of Trustees of Community College District No. 516 (1987), 154 Ill. App. 3d 627, 646, 506 N.E.2d 1011, 1023-24.) To be permissible under section 24 — 12, any alternative method of dismissal must bear the same characteristics as inverse seniority and must be founded upon objectively verifiable criteria unrelated to a teacher’s skills, abilities or performance. Schafer v. Board of Education of Arlington Heights School District No. 25 (1987), 157 Ill. App. 3d 884, 889, 510 N.E.2d 1186, 1190.

We agree with the Board’s argument that the collective bargaining agreement in this case provided an alternative method for determining the sequence of dismissal in a reduction in force. We also agree with the Board’s position that the alternative method provided in the agreement is permissible under the statute because it is based upon inverse seniority. We find that the agreement is founded upon objectively verifiable criteria and does not diminish the rights of tenured teachers. Therefore, the plaintiff’s dismissal was proper so long as the Board followed the terms of the collective bargaining agreement in maintaining the seniority lists.

Based upon our review of the record, we conclude that the Board’s method of maintaining the seniority lists did not violate the terms of the collective bargaining agreement. The agreement provided that an updated seniority list for all departments was to be posted by the Board each year. However, the plaintiff contends that the Board was totally inconsistent in the way in which it maintained its seniority lists. Plaintiff argues that “[mjaintaining a seniority sub-list for Health is not sanctioned by the collective bargaining agreement because there is no Health Department.” The record shows that the Board maintained its seniority lists by departments and by subjects which were departments when the Board began keeping the seniority lists. We find this method of carrying out the terms of the agreement was not discriminatory, arbitrary, unreasonable or capricious. Therefore, we conclude that the Board did not violate the collective bargaining agreement by maintaining seniority lists for departments and for subjects which had once been departments.

In addition, it is undisputed that the Board posted the seniority lists as required by the agreement. According to the agreement, a teacher’s name was to appear on every seniority list for which the teacher was qualified and certified. The agreement further provided that, if no challenge to the seniority lists was made by a teacher within 60 days after posting, the seniority lists became conclusive regarding that teacher’s specified years of service. The plaintiff had the opportunity to observe the posted seniority lists and the ability to challenge the omission of her name from the health seniority list. Teachers have the burden of assuring that all of their teaching qualifications are clearly presented to the school board. (Hancon v. Board of Education of Barrington Community Unit School District No. 220 (1985), 130 Ill. App. 3d 224, 230, 474 N.E.2d 407, 411; Hagopian v. Board of Education of Tampico Community Unit School District No. 4 (1978), 56 Ill. App. 3d 940, 944-45, 372 N.E.2d 990, 994-95.) Here, it was clearly the plaintiff’s responsibility under the terms of the collective bargaining agreement to challenge the seniority lists if her name did not appear on any list for which she was qualified and certified. The record shows that the plaintiff never challenged any seniority list. Based on the lists maintained by the Board, the plaintiff was the teacher with the least seniority on the physical education list whose name did not appear on any other seniority list. Sandra Burrell’s name appeared on the health seniority list, and she was needed to teach health. We find the Board complied with the collective bargaining agreement when it determined that the plaintiff should be dismissed and Burrell should be retained.

The plaintiff additionally argues that her dismissal was improper because the reasons given by the Board for her dismissal were false. The plaintiff points out that the Board notified her that she was being dismissed due to a decrease in the number of teachers. In fact, the total number of teachers employed by the Board for the next school year increased due to the need for additional teachers in the science, English and mathematics departments. The plaintiff argues that section 24 — 12 of the School Code allows for the dismissal of teachers due to a reduction in force only where there is a decrease in the total number of teachers employed or where a particular type of teaching service is discontinued. (111. Rev. Stat. 1991, ch. 122, par. 24 — 12.) We disagree.

There is no dispute that the number of physical education teachers employed by the Board did decrease. It has been consistently held that section 24 — 12 encompasses any reduction in the extent of employment due to economic necessity. (Deem v. Board of Education of Triad Community Unit School District No. 2 (1990), 200 Ill. App. 3d 903, 905, 558 N.E.2d 291, 292; Wilson v. Board of Education of Limestone-Walters School District No. 316 (1984), 127 Ill. App. 3d 433, 436, 468 N.E.2d 995, 997; Caviness v. Board of Education of Ludlow Community Consolidated School District No. 142 (1978), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157, 158.) The Board has persuasively argued that school districts must be allowed to shift their resources in accordance with the demands of their students. We conclude that a school board may legitimately reduce the number of teachers in one area, based upon reduced need, even when it is necessary to increase the number of teachers in other areas. The plaintiff was therefore properly dismissed due to a decrease in the number of teachers needed to teach physical education.

In a related argument, the plaintiff asserts that a number of “supervision” assignments were improperly moved from the physical education department to the mathematics department. The plaintiff argues that it was this reassignment which resulted in her dismissal because it caused the reduction in the number of physical education teachers. We agree with the plaintiff that a school board cannot rearrange assignments in such a way as to defeat a teacher’s tenure rights. (Pennell v. Board of Education of Equality Community Unit School District No. 4 (1985), 137 Ill. App. 3d 139, 143, 484 N.E.2d 445, 448.) However, the record does not show that the plaintiff was dismissed because of a rearrangement of assignments. There was deposition testimony that there were more teachers in the physical education department than were needed to teach the scheduled classes. The record also shows that the physical education department had only two less supervision assignments in the 1991-92 school year than in the 1990-91 school year. The loss of these two assignments to the mathematics department was clearly not the cause of the decrease in the number of teachers needed in the physical education department. We conclude that the Board did not realign assignments in order to avoid retaining the plaintiff (see Peters v. Board of Education of Rantoul Township High School District No. 193 (1983), 97 Ill. 2d 166, 172, 454 N.E.2d 310, 313) or transfer assignments to deprive the plaintiff of her position (see Hampson v. Board of Education (1991), 215 Ill. App. 3d 817, 826, 576 N.E.2d 54, 60).

Finally, the plaintiff argues that her dismissal was improper because the Board retained a teacher for the 1991-92 school year who was not qualified to teach health. Carol Martin was listed on the physical education seniority list and had more seniority than the plaintiff. Plaintiff notes that Martin was not listed on the health seniority list. Martin taught health the year following the plaintiff’s dismissal and became qualified to teach health during the first semester of that school year. The plaintiff acknowledges that she is not asserting any “bumping” rights against Martin because Martin clearly had more seniority. However, the plaintiff asserts that because Martin was retained to teach health, the Board did not uniformly enforce the rules used to justify the plaintiff’s dismissal. We disagree.

Carol Martin clearly had more seniority than the plaintiff. Therefore, the Board had no reason to consider Martin’s qualifications when it determined that the plaintiff was the least senior teacher in the physical education department who was not listed on any other seniority list. Martin’s teaching assignments the following year are irrelevant to the issue of whether the plaintiff’s dismissal was improper. Also, we previously have concluded that the Board properly relied on the seniority lists when it determined that the plaintiff was only qualified to teach physical education. The law is clear that when two teachers are both determined to be unqualified to teach a particular subject, and the more senior teacher is assigned to teach the class, the teacher with less seniority cannot claim to have been improperly dismissed. Ballard v. Board of Education of Rock Island School District No. 41 (1988), 167 Ill. App. 3d 224, 228, 521 N.E.2d 153, 156.

For the reasons indicated, we determine that the plaintiff has not established a clear right to the extraordinary remedy of mandamus. Accordingly, we find the trial court properly granted the Board’s motion for summary judgment.

The judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY and BRESLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARNEST MERRITTE, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER MERRITTE, Defendant-Appellant.
    Third District
    Nos. 3 — 91—0687, 3 — 91—0688 cons.
    Opinion filed March 23, 1993.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellants.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendants Earnest and Walter Merritte were convicted of first degree murder. Earnest Merritte was sentenced to a term of 80 years’ imprisonment. Walter Merritte was sentenced to natural life imprisonment. Defendants now appeal from their convictions and sentences. We affirm.

Mark Harcar was beaten to death on October 26, 1990, near Tony’s Meat Market in Streator, Illinois. William Vietti, a friend of the victim, testified that he was with Mark on the day he was killed. Vietti met Mark at the market at about 5 p.m. They spent the evening drinking beer and burning boxes and papers from the market. The market, owned by members of the Harcar family, was being remodeled. Vietti brought 8 to 12 beers with him to the market and bought three additional 12-packs of beer during the course of the evening. Jeffrey Harcar, the victim’s 14-year-old nephew, arrived around 10:15 p.m. Jeffrey did not see his uncle drinking beer, but he thought that Vietti was drunk.

Jeffrey Harcar and Vietti both testified regarding an incident involving two black women who walked by the market that evening. According to Jeffrey, as the women walked by, Vietti said, “Maybe we can get a B.J. from these two girls.” Vietti walked up to the women and said something that Jeffrey could not hear. Jeffrey then heard one of the women say that they did not like being called niggers. Vietti left the women and they continued to walk down the street.

According to Vietti, Mark Harcar said to him, “There’s two for you” as the women walked by, and then yelled out, “How about a blow job, mama?” Vietti approached the women and they asked, “What’s his [Mark’s] problem?” Vietti told them that Mark didn’t like blacks. One of the women shook Vietti’s hand, and he returned to the trash fire where Mark and Jeffrey were standing.

Both Jeffrey Harcar and Vietti agreed that after Vietti returned from talking to the women, Mark Harcar got into Vietti’s truck and followed the women. At one point, the women moved from the street to a path that had been a sidewalk and yelled at Mark not to run them over. Mark later turned around and returned to the market and the women continued on their way.

Gwendolyn Patterson testified that she and Earl Phillips were in Streator on October 26, 1990, drinking and socializing with Alice Phillips. At about 10 p.m. the three of them, along with Jessie Phillips, drove to a tavern where the women got out and the men drove away. Patterson and Alice Phillips were unable to enter the tavern because they did not have membership cards so they walked through town looking for Earl or for someone to give them a ride. As they walked past the meat market around 10:30 p.m., one of two men standing outside the market called out, “You niggers.” One of the men approached and Patterson asked him why they had called them niggers. The man said that the other man had called out to them, not him. Patterson and the man shook hands and she and Alice Phillips continued to walk down the street. The second man soon drove up behind them in a truck, and the women left the street, running into a yard. Patterson picked up a brick and told the man that she would throw it through his windshield if he tried to run them over. The man pulled into a vacant lot across the street and, according to Patterson, said, “You nigger bitches come through here again, you’re as good as dead.” The man, whom Patterson identified as Mark Harcar, then drove back to the meat market.

Patterson further testified that she and Alice later found someone to give them a ride to look for Earl Phillips. On the way, they stopped at a liquor store and bought some beer and whiskey. They eventually found Earl and some other people, including Earnest and Walter Mer-ritte, outside an apartment in Streator. Patterson had known the Merrittes for about eight years. She told the group about the incident at the meat market, and a number of people, including Patterson, the Merrittes and Alice, and Earl and Jessie Phillips, got into two cars and drove to the market at about 11 or 11:30 p.m.

Vietti testified that when he saw the two cars drive up to the market, he told Mark Harcar that they were outnumbered and that they should go inside the market. According to Vietti, Harcar said “f— it,” grabbed a piece of conduit, and began walking in the direction of the cars. Vietti went inside the market and locked the door.

Gwendolyn Patterson and Earl Phillips testified that after parking the cars, they walked toward the market along with the Merrittes and Alice Phillips. Patterson picked up a four-foot-long stick and saw Mark Harcar approaching with a shovel in his hands. Walter Merritte asked Harcar why he had tried to run the women over. Harcar denied it. Patterson became angry, insisted Harcar had tried to run them over and swung the stick at Harcar, which he blocked with the shovel. Patterson then saw Harcar get hit with a beer can and fall to the ground. Earl Phillips testified that the can was thrown by Earnest Merritte. After Harcar fell, Patterson jumped on top of him and began hitting him with her fists. Walter Merritte told Earl Phillips to pull Patterson off of Harcar. Walter Merritte then began hitting Har-car in the side with the shovel that Harcar had dropped when he fell. Earnest Merritte, meanwhile, was kicking Harcar in the back. During this time, Harcar was lying on his side, covering up his head with his hands and forearms.

Earl Phillips further testified that Gregory Ennis appeared on the scene, picked up a wire milk crate and used it to beat Harcar in the head. Earl stated that he hadn’t seen Ennis earlier that evening and didn’t know where Ennis had come from. Patterson claimed that she had seen Ennis earlier in the day at Alice Phillips’ house but she did not see him at any time later that day. Patterson stated that she did not know that Ennis had been involved in the beating until the next morning when Ennis told her that he had beaten Harcar in the head with an iron crate.

According to Patterson, the beating ended when she and Alice Phillips told the Merrittes to stop. Patterson thought that the entire incident lasted three or four minutes. Earl Phillips testified that the beating stopped when Earnest Merritte stepped between Ennis and Walter Merritte and told them that that was enough. Earl thought that the incident lasted 11 or 12 minutes.

Jessie Phillips testified that he went to the market but he stayed where the cars were parked and he did not witness the beating. Jessie knew Greg Ennis but he did not see him that night.

Doctor Mary Jumbelic, a forensic pathologist who performed the autopsy on Mark Harcar, testified that he sustained numerous injuries, including four skull fractures. In addition to the head injuries, there were abrasions on the chest and hands and bruising on the back, left side, left arm and both legs, along with four broken ribs and a ruptured spleen. In Jumbelic’s opinion, the victim died as a result of injuries to the skull and brain caused by blunt trauma. Contributing causes of death were a lacerated spleen and fractured ribs. Jumbelic stated that the skull injuries and certain abrasions on the body were consistent with being struck by a shovel. An abrasion on the upper left chest was consistent with being struck by a wire metal crate. On cross-examination, Jumbelic testified that the skull injuries could have been caused by a baseball bat, a hammer, the butt of a gun or a two-by-four. Jumbelic could not determine exactly what kind of object caused the injuries.

The parties stipulated that forensic scientist Arlene Hall would testify that no blood was found on the shovel, but blood was found on a pair of white jogging pants. This blood could have come from Mark Harcar but it could not have come from Gregory Ennis or either of the Merrittes. The jogging pants had been worn by Ennis on the day of the beating, according to Earl Phillips. The pants were found in a hole in a wall at the home of Earl Phillips’ mother.

As indicated earlier, the jury found both defendants guilty of first degree murder. At the sentencing hearing, the trial court found that the defendants’ conduct was brutal and heinous and indicative of wanton cruelty. The court referred to the photographs of the victim presented at trial and noted that it had never seen anyone beaten more viciously. The court found that no mitigating factors were present and, after discussing the factors in aggravation, sentenced Walter Merritte to natural life imprisonment and Earnest Merritte to a term of 80 years’ imprisonment.

Defendants first contend that they were denied a fair trial because the jury may have found them guilty on the basis of Gregory Ennis’ actions, rather than their own. The jury was instructed that the defendants could be convicted on the basis of accountability, and in closing argument the prosecutor told the jury that the defendants were legally responsible for the acts of Ennis. Defendants argue that they could not be held accountable for Ennis’ acts because Ennis was not with the defendants prior to the beating and arrived after the beating began. Defendants also note that there was no plan between Ennis and the defendants to engage in illegal conduct, nor did the defendants invite or encourage Ennis to participate in the beating.

Section 5 — 2 of the Criminal Code of 1961 provides in part:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” 111. Rev. Stat. 1989, ch. 38, par. 5 — 2.

The State has met its burden of proving that a defendant intended to promote or facilitate the offense where it establishes that the defendant shared the criminal intent of the principal or where there was a community of unlawful purpose. (People v. Hudson (1988), 165 Ill. App. 3d 375, 519 N.E.2d 28.) A conviction based on a theory of accountability will be upheld where more than one person engages in an assault and the defendant, by his participation, encourages the perpetration of the offense. (Hudson, 165 Ill. App. 3d 375, 519 N.E.2d 28.) A common purpose to commit a crime can be inferred from the circumstances of the offense; words of agreement are not necessary to establish a common criminal design. (People v. Lovelady (1991), 221 Ill. App. 3d 829, 582 N.E.2d 1217; Hudson, 165 Ill. App. 3d 375, 519 N.E.2d 28.) A trial court’s finding that a defendant is legally accountable for the criminal conduct of another will not be disturbed unless the evidence, when viewed in the light most favorable to the prosecution, is so improbable or unsatisfactory that a reasonable doubt of guilt exists. People v. Haynes (1991), 223 Ill. App. 3d 147, 583 N.E.2d 1177; Lovelady, 221 Ill. App. 3d 829, 582 N.E.2d 1217.

We recognize that defendants’ argument is not framed as a challenge to the sufficiency of the evidence, but is instead based on the possibility that they were convicted for Ennis’ actions. Analytically, however, the issue is the same. If the evidence was sufficient to support the defendants’ conviction on the basis of accountability for En-nis’ conduct, then the jury was properly instructed concerning accountability.

We find that there was ample evidence to support the defendants’ conviction on the basis of accountability. In People v. Perez (1985), 108 111. 2d 70, 483 N.E.2d 250, the defendant saw two individuals stab the victim and then run away. The victim pursued his attackers. The defendant ran after the victim and stabbed him as he struggled with one of his original assailants. The defendant argued that he could not be held accountable for the acts of the original attackers because there was no showing that he acted according to a preconceived plan or agreement to kill the victim. The supreme court stated that evidence that a person voluntarily attaches himself to a group bent on illegal acts with knowledge of its design will support an inference that he shared a common purpose and will sustain a conviction for a crime committed by another in furtherance of the venture. The court concluded that “even though defendant’s actions may have been spontaneous, his participation in the stabbing made him legally accountable for the actions of every other member of the group.” Perez, 108 Ill. 2d at 83, 483 N.E.2d at 256.

Similarly, in this case, the defendants are responsible for the actions of those who took part in the beating of Mark Harcar, including the actions of Gregory Ennis. While this case represents the converse of that presented in Perez (i.e., accountability of the initial attackers for the acts of a subsequent assailant), we find such a distinction to be irrelevant under the circumstances. The evidence is clear that Earnest and Walter Merritte and Gregory Ennis engaged in a common design to brutally beat Mark Harcar, and each of them is legally accountable for his death. See Perez, 108 Ill. 2d 70, 483 N.E.2d 250; see also People v. Woodrome (1992), 237 Ill. App. 3d 220, 604 N.E.2d 486; People v. Walker (1992), 230 Ill. App. 3d 377, 594 N.E.2d 1252; Hudson, 165 Ill. App. 3d 375, 519 N.E.2d 28.

Defendants next contend that a new sentencing hearing is required because the trial court failed to consider a mitigating factor and improperly relied upon two aggravating factors. Defendants first argue that Harcar’s insults, threats and attempt to run over Patterson and Alice Phillips, which defendants were told of shortly before the beating, were strong provocation which should have been considered as a mitigating factor. The trial court found that any provocation had occurred “quite sometime” prior to the beating and that the defendants were only “second-hand recipients” of the provocation.

Section 5 — 5—3.1 of the Unified Code of Corrections (HI. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1) sets forth the mitigating factors that a trial court is to consider when imposing sentence. Among those factors is that the defendants acted under a strong provocation (HI. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1(a)(3)). While the term “strong provocation” is not defined in the Unified Code of Corrections, the similar term “serious provocation” has a well-established meaning under Illinois law. When considering whether an individual has acted under serious provocation sufficient to reduce the offense of first degree murder to second degree murder, the only categories of serious provocation recognized by our courts are substantial physical injury or assault, mutual quarrel or combat, illegal arrest and spousal adultery. (People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942.) Mere words, no matter how abusive or indecent, are not considered serious provocation. (Chevalier, 131 Ill. 2d 66, 544 N.E.2d 942.) The facts presented here clearly do not rise to the level of serious provocation.

Defendants maintain, however, that strong provocation as a mitigating factor should be interpreted more broadly than serious provocation in the second degree murder context because mitigating factors are not defenses which excuse a defendant’s criminal conduct but are simply grounds tending to favor a more lenient sentence. We agree that strong provocation as a mitigating factor at sentencing encompasses a wider range of conduct than that defined as serious provocation under the second degree murder statute. Certainly, if the defendants had been insulted and threatened by Harcar in the manner described by Gwendolyn Patterson and Alice Phillips, and the defendants had then attacked Harcar, it would have been error for the court to find that they had not been strongly provoked. The provocation in this case, however, was neither direct nor immediate. Under the circumstances, we are unable to find that the trial court erred in determining that the defendants were not acting under a strong provocation.

The defendants further claim that the trial court improperly considered that their conduct caused or threatened serious harm, a factor which is inherent in the offense of murder. (See People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) The basis of this alleged error is the following statement by the court:

“The conduct of both in this matter caused and threatened serious harm. I’ve covered that amply in my discussion with the factors in mitigation, the factors in aggravation.”

As defendants note, the court had in fact referred to the severe harm factor in its earlier discussion of the statutory mitigating factors.

“Defendants’ criminal conduct neither caused nor threatened serious physical harm to another. That speaks for itself. We have a death.”

Defendants acknowledge that this comment indicates that the court recognized that serious physical harm is an inherent element of murder. Defendants nevertheless argue that the court then considered this same factor in aggravation. We disagree.

A review of the transcript of the sentencing hearing shows that the trial court addressed each of the applicable factors in mitigation and aggravation in the order in which they appear in the Unified Code of Corrections. (111. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2.) In discussing serious harm as a mitigating factor, the court recognized that harm was an inherent element of the offense. When discussing the same factor in aggravation, the court simply referred back to its earlier discussion. Such a remark was proper and does not indicate that the court improperly considered serious harm as an aggravating factor. “It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.” People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525.

Defendants also contend that the trial court improperly considered the defendants’ decision not to testify or exercise their right of allocution as evidence of a lack of remorse. Defendants’ argument is premised on the following statement by the court:

“I can see nothing in the record, any statements that have been made to this [cjourt, proffered, that in any way indicates any remorse for the crime here.”

In determining whether a sentence was properly imposed, a reviewing court should not focus on a few isolated words or statements, but should consider the entire record as a whole. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People Fenderson (1987), 157 Ill. App. 3d 537, 510 N.E.2d 479.) Immediately prior to the remark related above, the court stated:

“I have presided through the trial and observed the demeanor, the attitude of the parties as they have sat here. The attitude during the trial of the defendants does not in any way exhibit remorse, did not give any reflection as to the seriousness of the crime with which they here stood charged.”

Considered in context, we find that the court’s remark that no statements had been made indicating remorse was merely an observation that defendants chose not to exercise their right of allocution and was not a significant factor in finding that the defendants showed no remorse. A defendant’s remorse or the lack of it is a proper subject for consideration at sentencing (People v. Barrow (1989), 133 Ill. 2d 226, 549 N.E.2d 240), and we find no error here.

Finally, defendants contend that their sentences were excessive and constituted an abuse of discretion by the trial court. Defendants argue that their conduct was provoked by the victim and was spontaneous and unpremeditated, that they did not intend to kill the victim, and that their sentences were grossly disparate to the 60-year sentence imposed on Gregory Ennis. Ennis was tried separately and also convicted of first degree murder. In addition, defendant Earnest Mer-ritte contends that his actions were not brutal and heinous and therefore he was not eligible for an extended-term sentence.

It is the trial court’s task to fashion a sentence which strikes the proper balance between the protection of society and rehabilitation of the defendant (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541) and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The sentencing court’s judgment depends upon many factors, including the defendants’ demeanor, moral character and mentality, and its determination is entitled to great deference and weight. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.

We have already found that the court did not abuse its discretion in finding a lack of strong provocation. The spontaneity of defendants’ acts and the absence or presence of premeditation and intent to kill are simply circumstances of the offense to be considered by the trial court in passing sentence. The court is not obligated to recite and assign value to each fact presented at a sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) The record shows that the trial court considered the arguments of counsel, the presentence reports and the statutory factors in aggravation and mitigation. The court noted that, after being knocked to the ground, the victim was defenseless and that he had never seen a more viciously beaten victim. The court also pointed out that both of the defendants had prior criminal records. Earnest Merritte had two juvenile adjudications of delinquency for burglary and adult convictions for battery and residential burglary. Walter Merritte had previously been convicted of robbery, armed robbery and possession of a stolen vehicle. He was on mandatory supervised release at the time of the instant offense. The court further found that the defendants’ prospects for rehabilitation were very limited in light of their poor disciplinary records while in prison and that the sentences were necessary to deter others. Under the circumstances, we find no abuse of discretion, nor do we find that defendants’ sentences were grossly disparate to the 60-year sentence given to Gregory Ennis. While similarly situated defendants should not receive grossly disparate sentences, differences in sentences may be justified by the relative character and history of the codefendants, the degree of culpability, rehabilitative potential or a more serious criminal record. (People v. Foster (1990), 199 Ill. App. 3d 372, 556 N.E.2d 1289.) Ennis, who had prior convictions for battery and resisting arrest, had never been sentenced to prison. The criminal records of Earnest and Walter Merritte were much more serious and both had served time in prison. The defendants’ disciplinary records while in prison were poor, indicating a lack of potential for rehabilitation. We find that these factors are sufficient to justify the disparity between Ennis’ sentence and those imposed upon the defendants. See People v. Coleman (1990), 201 Ill. App. 3d 803, 559 N.E.2d 243.

We additionally find that the trial court did not err in finding Earnest Merritte eligible for an extended-term sentence on the basis of exceptionally brutal or heinous behavior indicative of wanton cruelty (see 111. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(bX2)). Although defendant’s actions may not have been as brutal as those of Walter Merritte and Gregory Ennis, we will not disturb the trial court’s finding that it is brutal and heinous behavior to kick a man who has been knocked to the ground and “is helpless, is defenseless, and at that point can do absolutely nothing to defend his life and he is not at that time a threat to anyone.” Furthermore, in addition to his own conduct, the defendant was accountable for the brutal and heinous behavior of Walter Merritte and Ennis. (See People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362; People v. Tibbs (1981), 103 Ill. App. 3d 73, 430 N.E.2d 681.) Finally, we note that defendant was eligible for an extended-term sentence based on his prior conviction for residential burglary. See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(7); People v. Tipton (1990), 207 Ill. App. 3d 688, 566 N.E.2d 352 (extended-term statute permits imposition of extended term if any one of the enumerated factors is present).

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

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF JEFFREY RIEGEL, Respondent-Appellee, and ROBIN RIEGEL, Petitioner-Appellant.
    Third District
    No. 3 — 92—0691
    Opinion filed March 23, 1993.
    Rehearing denied May 3, 1993.

      Michael D. Kramer, of Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee, for appellant.
    Leonard Sacks, of Kankakee, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioner Robin Riegel appeals the denial of her motion to modify child support. We reverse and remand for further proceedings consistent with this opinion.

The record shows that Robin and the respondent, Jeffrey Riegel, were divorced in 1987. Pursuant to the dissolution order, Robin received custody of their two minor children, and Jeffrey'was ordered to pay $200 every two weeks in child support. At that time, their son Adam was 7 years old and their daughter Angela was 10 years old.

In 1991, Robin petitioned the court to increase Jeffrey’s child support payments by $35 a week to help cover the increased expense of raising older children. At the hearing on the petition, Robin testified that her monthly child-raising expenses have increased substantially over the last four years. She set forth specific cost increases relating to feeding the children both at home and at school, to medical expenses that insurance did not cover, to transportation costs so that the children could engage in school activities, to increased clothing costs because the children continue to grow, and to the cost of providing adequate shelter because of inflation. She estimated the total increased cost to be about $562 a month.

Robin also testified that at the time of the divorce she was working part-time and making about $11,000 a year. At the time of the hearing, she worked full-time and made $19,000 a year.

Jeffrey did not challenge Robin’s evidence regarding her increased expenses. Instead, he argued that Robin had allowed the children to become accustomed to a higher standard of living than they had had when the parties were married and, as such, he should not have to pay for it. Specifically, he noted that Robin and her wealthy boyfriend buy the children expensive designer tennis shoes and leather jackets, and they also send them to summer camp.

He noted that his salary had decreased over the years from $39,357 a year in 1987 to $38,921 a year in 1991. In addition, he testified that he had remarried and that his wife makes about $34,000 a year. They recently purchased a $103,000 home.

In rebuttal, Robin testified that her estimated increased costs did not include the expenditures for the tennis shoes or leather jackets.

In denying Robin’s petition, the trial court stated the following: “The Court finds that none of the allegations in the Petition to Modify have been proven, that in fact the [respondent’s] income has decreased slightly while the [petitioner’s] income has increased substantially. The Court is not of the opinion that the needs of the children have increased but that their expectations have been increased by the [petitioner] and her wealthy boyfriend providing them with expensive items such as $100.00 plus shoes, $500.00 summer camps, expensive leather jackets, telephones for each child, Karate School and so forth. There is no question that the lifestyle adopted by the [petitioner] apparently gives the children almost anything they want is considerably greater than what they were accustomed to and would have been had the marriage not been dissolved. The Court finds that the Petition to Modify should be denied.”

On appeal, Robin argues that the trial court erred in denying her petition for modification. Specifically, she alleges that since the evidence regarding the increased needs of the children was undisputed, the court erred in failing to order Jeffrey to increase his child support payments.

Modification of child support is warranted only upon a showing of a substantial change in circumstances. (750 ILCS 5/510 (West 1992).) Trial courts have wide latitude in determining whether a substantial change has occurred and should consider not only the needs of the child and the financial status of the noncustodial parent, but also the needs and financial status of the custodial parent, the financial resources of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, and the physical, emotional, and educational needs of the child. In re Marriage of Johnson (1991), 209 Ill. App. 3d 1025, 568 N.E.2d 927.

When considering whether to modify child support payments, trial courts may also consider the statutory guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1992)). (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 753.) One of the guidelines states that when two children are involved, the supporting party should pay at least 25% of his net income for support, unless the court finds a reason to deviate from the guidelines. (750 ILCS 5/505 (West 1992).) Furthermore, a court may presume that the cost of raising children increases as the children grow older. (In re Support of Whitney (1980), 90 Ill. App. 3d 734, 413 N.E.2d 872.) Another factor the court may consider is whether the supporting parent has remarried. This fact is relevant because couples are likely to pool their resources, thereby possibly increasing the resources available to the supporting parent. (See In re Marriage of Cooper (1981), 102 Ill. App. 3d 872, 430 N.E.2d 379.) Finally, we note that support should be determined by accommodating the needs of the children with the available means of the parties. Ingwerson v. Woeckener (1986), 141 Ill. App. 3d 647, 490. N.E.2d 1008.

In denying Robin’s petition in the case at hand, the trial court found that the children’s needs had not increased, but rather that their expectations had increased. It based its decision on the fact that Robin and her “wealthy boyfriend” bought the children expensive items. We find this to be error.

The uncontroverted evidence presented in this case clearly showed that the average monthly cost of raising the children had risen dramatically. Even after removing the items that Jeffrey considered luxuries, i.e., allowing the children to attend summer camp, Adam’s involvement in band, and Angela’s involvement in gymnastics, the increase was shown to be about $450 a month. Since this is a substantial change, we find that the trial court erred in determining that no change of circumstances had occurred.

We now turn to the trial court’s implied finding that even if a cost increase had occurred, Robin was better able to meet such an increase. The court based this finding on the fact that Robin’s salary had increased dramatically but that Jeffrey’s salary had decreased since the divorce.

While this is true, it ignores the fact that Jeffrey has remarried a woman who earns $34,000 a year and, as such, he may now have more income at his disposal than he did in 1987. The court also ignored the fact that Jeffrey’s present child support payments amount to only about 13% of his salary. Such an amount is substantially less than the 25% figure suggested in the statute.

In conclusion, we find that the trial court erred in failing to find that Robin had proven an increase in costs. The court also erred in failing to determine or consider Jeffrey’s total available income as it related to his statutory obligations and his ability to help pay for the increased costs of raising his children.

The judgment of the circuit court of Kankakee County is reversed and the cause remanded for proceedings to determine whether, in light of this opinion, a change of circumstances has occurred and, if so, whether support should be increased.

Reversed and remanded.

BRESLIN and LYTTON, JJ., concur.