author: JUSTICE LINN

text:
    JOSE SANCHEZ, Plaintiff-Appellant, v. ACCESS ASSOCIATES et al., Defendants-Appellees.
    First District (4th Division)
    No. 88—0188
    Opinion filed February 16, 1989.

      Eileen Kavanagh, of Chicago (J. Dillon Hoey, P.C., of counsel), for appellant.
    Orner & Wasserman, Ltd., of Chicago (Esther Joy Schwartz and Helen Wong Mehok, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Jose Sanchez, brought an action in the circuit court of Cook County against defendants Access Associates, a limited partnership; Pablo Angeles and Garlito Soriaga, as individuals and as partners of Access Associates; and other unknown general partners of Access Associates. Plaintiff is a tenant in an apartment building that is held in trust for the benefit of defendants. Plaintiff sought damages for injuries that he sustained in falling down a flight of stairs in the building.

The trial court dismissed plaintiff’s amended complaint, ruling that the statute of limitations barred the action. Plaintiff appeals, contending that the trial court erred in dismissing the complaint.

We affirm the order of the trial court.

Background

The trial court dismissed the complaint pursuant to section 2—619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619(a)(5)). A section 2—619 motion to dismiss admits all well-pled facts contained in the complaint. Loughman Cabinet Co. v. C. Iber & Sons (1977), 46 Ill. App. 3d 873, 876, 361 N.E.2d 379, 382.

In his original complaint, plaintiff named as defendants the Devon Bank, as trustee under trust No. 4074, and the unknown beneficiaries of the trust. Plaintiff alleged that he was a tenant in an apartment building which the unknown beneficiaries were empowered to control and manage. On November 21, 1983, he fell down a stairway in a common area of the building. He further alleged, essentially, that the beneficiaries owed him a duty to maintain the stairway in a safe condition, they breached their duty by allowing the stairs to become unsafe, and that his injuries were the proximate result of their negligence.

Plaintiff filed his original complaint on November 20, 1985, almost exactly two years after being injured. However, the bank trustee was served with process on November 26, several days after the two-year statute of limitations expired. (See HI. Rev. Stat. 1985, ch. 110, par. 13 — 202.) At that time only the bank was served with process, as plaintiff did not know the identity of the trust beneficiaries.

The bank moved to dismiss itself from the action. The bank contended that, on the date of the injury, its sole responsibility regarding the building was to hold legal title to the property, subject to the beneficiaries’ direction to convey. The bank did not exercise any of the incidents of ownership, management or control. Additionally, the bank revealed the identity of the trust beneficiaries: Access Associates, a limited partnership; and the partners, Angeles and Soriaga. The trial court granted the bank’s motion to dismiss it from the action. The court granted plaintiff leave to file an amended complaint naming the beneficiaries as defendants.

On March 14, 1986, plaintiff filed his amended complaint. The named defendants were all served with process by April 5,1986.

Defendants subsequently moved the trial court to dismiss the action. (Ill. Rev. Stat. 1985, ch. 110, par. 2—619(a)(5).) Noting that plaintiff filed his amended complaint more than two years after the expiration of the statute of limitations, defendants argued that the action was time barred. Additionally, defendants noted that they had no actual knowledge of the injury.

On December 3, 1987, the trial court granted defendants’ motion to dismiss. Plaintiff appeals.

Opinion

I

The parties agree on several preliminary matters. Absent other considerations, this lawsuit is time barred. The action arose on November 21, 1983. Plaintiff filed his amended complaint, naming the present defendants, on March 14, 1986, long after the expiration of the limitations period. However, section 2—616(d) of the Code of Civil Procedure allows a plaintiff to add a defendant to the action after the statute of limitations has run; the amendment relates back to the date of the filing of the original complaint. Ill. Rev. Stat. 1985, ch. 110, par. 2—616(d).

The parties also agree that section 2 — 616(d), standing alone, cannot save the amended complaint. The provision grants the relation-back relief only if five conditions are met. Section 2 — 616(d) provides in pertinent part:

“(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon *** a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(d).

This court has held that the mere filing of the original complaint against a land trustee does not give a land trust beneficiary knowledge of the lawsuit within the limitations period. Rather, service of process must be had upon the trustee within the limitations period, or the beneficiary must have otherwise gained the requisite knowledge within the limitations period. Foster v. Leong (1985), 139 Ill. App. 3d 492, 494-95, 487 N.E.2d 995, 996-97, relying on Fournier v. 3113 West Jefferson Partnership (1981), 100 Ill. App. 3d 820, 823, 427 N.E.2d 408, 411.

The original complaint in the case at bar was filed against the bank alone and only a few days prior to the expiration of the limitations period. The bank was not served with process until after the limitations period expired. Further, defendants swore in their affidavits that they had not otherwise gained any knowledge of the lawsuit until they were served with process, well after the limitations period expired. Since plaintiff failed to meet the fourth requirement of section 2 — 616(d), he cannot avail himself of its relation-back relief. Consequently, absent other considerations, his amended complaint is time barred.

II

The sole issue on appeal is whether an amendment to section 2— 616 applies to the case at bar. The trial court dismissed the amended complaint on December 3, 1987. However, the General Assembly had amended section 2 — 616 effective November 23. (1987 Ill. Laws 3802, 3830-31.) The legislature added a subsection (e), which provides as follows:

“(e) A cause of action against a beneficiary of a land trust not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the cause of action arises from the ownership, use or possession of real estate, record title whereto is held by a land trustee; (2) the time prescribed or limited had not expired when the original action was commenced; (3) the land trustee of record is named as a defendant; and (4) the plaintiff proceeds with reasonable diligence subsequent to the commencement of the action to serve process upon the land trustee, to determine the identity of the beneficiary, and to amend the complaint to name the beneficiary as a defendant.” Ill. Rev. Stat. 1987, ch. 110, par. 2— 616(e).

Plaintiff contends that subsection (e) applies to the case at bar. However, it has long been the law in Illinois that the statute of limitations in force at the time a cause of action arises governs the time within which the action will lie. (Beesley v. Spencer (1860), 25 Ill. 199.) Further, our courts have held that the right to raise the bar of the statute of limitations after the limitations period has expired, as a defense to a lawsuit, is a vested right that a statute cannot take away, regardless of the nature of the cause of action. (Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423, 428, 240 N.E.2d 612, 615.) In other words, a statutory amendment enacted subsequent to the accrual of a cause of action, which extends the time of filing a lawsuit, will not be applied retroactively to revive a cause of action previously barred. Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161,163, 380 N.E.2d 782, 783.

In the case at bar, the action arose on November 21, 1983. Section 2 — 616(e) did not exist until November 23, 1987, well after the accrual of the cause of action. Thus, based on the above principles, the trial court was correct in refusing to apply section 2 — 616(e) to this case.

While acknowledging the above principles, plaintiff contends that they do not apply to the instant case. He argues that subsection (e) was not an amendment to section 2 — 616 changing the provision. Rather, plaintiff contends that subsection (e) was merely a clarification of section 2 — 616(d). Since subsection (e) was not a new law, but rather only a clarification of an existing statutory provision, it applies to the present case.

The general rule is that a statutory amendment creates a presumption that the legislature intended the amendment to change the law as it formerly existed. However, this principle is not controlling and may be overcome by more persuasive considerations. (Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 69, 382 N.E.2d 784, 789.) In Wilbon, for example, our supreme court held that where the legislature enacted a statutory provision approximately five months after an appellate court decision, the legislation was a clarification of the law as it existed and not a new amendment changing the law. Thus, the rule prohibiting retroactive application of statutory amendments did not apply. Wilbon, 73 Ill. 2d at 73, 382 N.E.2d at 790.

Such considerations are not present in the case at bar. In Foster v. Leong, we urged the legislature to amend section 2—616(d) so that the naming of the land trustee in effect names the beneficiary. (Foster, 139 Ill. App. 3d at 495, 487 N.E.2d at 997.) The opinion in Foster was filed December 19, 1985. Section 2—616(e) was added by Public Act 85—907, which was introduced on March 4, 1987. (85th Ill. Gen. Assem., House Bill 474, 1987 Sess.; 85th Ill. Gen. Assem., House Proceedings, March 4, 1987, at 300.) Thus, over a year elapsed between our decision in Foster and the introduction of the legislation. Additionally, Fournier, upon which we relied in Foster, was decided in 1981. Thus, approximately six years elapsed between our decision in Fournier and the introduction of the legislation. The rule developed in Fournier, and relied upon in Foster, was settled law by the time Public Act 85—907 was introduced. If, as plaintiff contends, the court misinterpreted the legislative intent in those decisions, the legislature would have acted much sooner than it did.

We conclude that this record presents no considerations that are sufficiently persuasive to overcome the presumption that section 2— 616(e) changed the law as it formerly existed and, accordingly, we uphold the trial court’s dismissal of the amended complaint.

For the foregoing reasons, the order of the circuit court of Cook County, which dismissed plaintiff’s amended complaint, is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH EDISON COMPANY et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    First District (4th Division)
    No. 88—0537
    Opinion filed February 16, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, George W. Foster, and James D. Newbold, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Winston & Strawn, and Commonwealth Edison Company, both of Chicago (Kimball R. Anderson, Michael J. O’Rourke, Lawrence R. Desideri, and Harlan M. Dellsy, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

The Westinghouse Electric Company contracted with the Commonwealth Edison Company to design, manufacture, and install four turbine-generators for use in two of Commonwealth Edison’s nuclear power stations. The Illinois Department of Revenue assessed Commonwealth Edison $4,247,308.25 in use tax and interest on two of the generators. Commonwealth Edison paid the assessment under protest.

Plaintiffs, Commonwealth Edison and Westinghouse, subsequently brought an action in the circuit court of Cook County against defendants, the Department of Revenue, the Director of the Department, and the State treasurer. Plaintiffs claimed that the transaction was not subject to use tax, but rather, service use tax, which Commonwealth Edison paid. Plaintiffs sought, inter alia, a refund of the assessed amount. The trial court entered judgment for plaintiffs. Defendants appeal, assigning error to the trial court’s findings and judgment.

We affirm the judgment of the trial court.

Background

I

A brief review of the applicable tax law is necessary to better understand the facts in the case at bar. The Use Tax Act imposes a tax upon the privilege of using in Illinois tangible personal property purchased at retail out of State. (Ill. Rev. Stat. 1983, ch. 120, par. 439.3.) The use tax was designed to supplement the retailers’ occupation tax (ROT), which applies to purchases made in the State. The primary purposes of the use tax are to prevent Illinoisans from avoiding the ROT by making out-of-State purchases, and to protect Illinois merchants against such diversion of business to out-of-State retailers. Klein Town Builders, Inc. v. Department of Revenue (1966), 36 Ill. 2d 301, 303, 222 N.E.2d 482, 484.

With some exceptions, the use tax is imposed at the same rate as the ROT. (Compare Ill. Rev. Stat. 1983, ch. 120, par. 439.3 with ch. 120, par. 441.) Further, if tangible personal property, bought in Illinois, would not be taxable under the ROT Act (Ill. Rev. Stat. 1983, ch. 120, par. 440 et seq.), then the use of that property is not taxable also under the Use Tax Act. Ill. Rev. Stat. 1983, ch. 120, par. 439.3.

In contrast to the use tax, the Service Use Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 439.31 et seq.) imposes a tax upon the privilege of using in Illinois real or tangible personal property acquired as an incident to the purchase of a service from a serviceman. At the time this action arose, the service use tax was less than the use tax. Ill. Rev. Stat. 1983, ch. 120, par. 439.33.

II

Commonwealth Edison owns and operates the Byron Nuclear Power Station and the Braidwood Nuclear Power Station. Each station contains two units, and each unit requires a turbine-generator. In June 1972, Westinghouse contracted with Commonwealth Edison to design, manufacture, and install the four generators. They were delivered during 1978 through 1980. Also during this time, Commonwealth Edison paid service use tax on all four generators. Specifically, Commonwealth Edison paid a total of $1,259,291.85 in service use tax on the Byron Unit 2 and the Braidwood Unit 2 generators.

The record shows that defendants accepted the service use tax for the generators in Byron Unit 1 and Braidwood Unit 1. However, defendants concluded that the remaining generators, in Byron Unit 2 and Braidwood Unit 2, constituted a purchase of tangible personal property. Thus, the transaction was subject to use tax. Accordingly, defendants assessed Commonwealth Edison $2,708,068.97 in use tax and another $1,539,239.28 in interest, totalling $4,247,308.25.

On June 7, 1984, Commonwealth Edison paid the assessment under protest, pursuant to sections 2a and 2a. 1 of the State Officers and Employees Money Disposition Act (Ill. Rev. Stat. 1983, ch. 127, pars. 172, 172a). On June 26, also pursuant to the statute, plaintiffs filed a complaint in the trial court against defendants. Plaintiffs sought initially a preliminary injunction restraining defendants from: (1) depositing the money into the State treasury, (2) transferring the money from the protest fund to any other fund, and (3) taking any action against plaintiffs to collect any of the money paid under protest. Reaching the merits, plaintiffs sought a refund of the assessment and an injunction permanently restraining defendants from assessing use tax, interest, or penalties based on the June 1972 transaction. The trial court issued the preliminary injunction.

At trial, Commonwealth Edison claimed that it acquired the generators as an incident to Westinghouse’s engineering services. Plaintiffs contended that their transaction was, therefore, subject to service use tax, rather than use tax.

Plaintiffs’ evidence is summarized as follows. A turbine-generator consists of several integrated components; for example, a lubricating system, a feedwater heating system, a moisture separation and reheating system, and so on. Following industry practice, Commonwealth Edison hired an architect engineer to prepare functional specifications for all of the equipment at the nuclear power station, including the generators. These specifications set performance parameters for the generators, such as steam inlet conditions, desired kilowatt output, and cooling and feedwater temperatures. The specifications do not provide the necessary design to build the generators. Rather, Westinghouse must design the generators to meet the specified performance parameters.

Westinghouse does not have standard turbine-generator systems, or catalogs of standard designs, ready to sell. Rather, the generator design is “tailor-made,” based on the site of the plant and customer specifications. When Westinghouse contracted with Commonwealth Edison in June 1972, no designs existed because Westinghouse prepared them specifically for the Byron and Braidwood stations.

Commonwealth Edison’s specifications required completely new electrical, thermal, and mechanical designs. Other components of the generators, although found on all turbine-generators, were modified specifically for the Byron and Braidwood generators and can be used nowhere else.

Even if some of the generators’ individual specifications did not require unique designs, the combination of all of the specifications required a unique generator design as a whole. Further, the interaction between the entire turbine-generator system and the remainder of each station is unique.

Additionally, the generators have use or value only to Commonwealth Edison for the purpose for which they were built. They have no resale value because of their uniqueness. No other utility companies would buy them because none could use them. All of this evidence went to plaintiffs’ claim that the generators were unique and incidental to Westinghouse’s services.

Defendants claimed that the turbine-generators were not mere incidents of the purchase of Westinghouse’s services. Rather, the generators themselves were the focus of the transaction. The turbine-generators are composed of standard components, and these components are either standard models or have use or value to other utility companies. Defendants contended that the transaction was, therefore, subject to use tax, rather than service use tax.

Defendants’ evidence is summarized as follows. A standard component of a turbine-generator is the high pressure turbine. In the Byron and Braidwood turbine-generators, the high pressure turbines are predesigned, with standard dimensions. Westinghouse does not alter the shape of the component to fit the customer’s foundation; rather, the customer must design the foundation to fit the predetermined size of the component.

The low pressure turbine is another standard component in a turbine-generator; again, Westinghouse uses a standard model. Westinghouse expressly designed it with interchangeable rotors. As further proof of the low pressure turbine’s generic quality, the Public Service Company of Indiana hired Westinghouse to design the Marble Hill Nuclear Power Station, an exact duplicate of the Byron and Braid-wood stations. Marble Hill was never completed, due to financial reasons. When construction ended in 1984, Commonwealth Edison bought three low pressure turbine rotors designed and built for Marble Hill for use in the Byron and Braidwood low pressure turbines.

Defendants conceded that the generator component of the turbine-generator was unique. However, it had use or value to other utility companies.

The trial adduced evidence rebutting defendants’ evidence. Although the high pressure turbines have standard dimensions, the path of their internal blades actually determines their uniqueness. Westinghouse designed the high pressure turbines with a unique blade path, based on Commonwealth Edison’s specifications. Additionally, although Public Service Company wanted an exact duplicate of the Byron and Braidwood stations, Westinghouse could not design such a duplicate due to different specifications and site conditions. Marble Hill differed from the Byron and Braidwood stations in many respects.

At the close of the evidence, the trial court entered judgment for plaintiffs. The court found that Westinghouse was engaged in a service-type business. Further, the court found that Commonwealth Edison hired Westinghouse primarily for its engineering and other scientific skills, to design and produce special machines to meet Commonwealth Edison’s particular needs. The court additionally found that the turbine-generators have use or value only for the specific purpose for which Westinghouse produced them and that they have no use or value to anyone other than Commonwealth Edison. The court awarded plaintiffs the assessment of $4,247,308.25 plus interest, totalling $5,168,966.23, in addition to costs. Defendants appeal.

Opinion

Where a seller renders a service or skill in manufacturing a special machine for the particular and exclusive use of a buyer, and where the machine was merely incidental to the service or skill, the transaction is not taxable under the ROT Act or the Use Tax Act. (Velten & Pulver, Inc. v. Department of Revenue (1963), 29 Ill. 2d 524, 529, 194 N.E.2d 253, 256.) Our courts reason that in such a case, “the primary occupation of [the seller] is that of furnishing a specially constructed machine on order produced through the technical engineering skill of the [seller] for the purpose of doing a special job, and not merely a sale at retail of tangible personal property.” Ingersoll Milling Machine Co. v. Department of Revenue (1950), 405 Ill. 367, 373, 90 N.E.2d 747, 750-51.

Conversely, where the article sold is the substance of the transaction and the service or skill rendered is incidental to the product, then the transaction was one for tangible personal property. Therefore, the transaction is taxable under the ROT Act or the Use Tax Act. Velten, 29 Ill. 2d at 529-30,194 N.E.2d at 256.

Based on these principles, the Department of Revenue promulgated its Rule 3, which provides in pertinent part:

“a) When Liable For Retailers’ Occupation Tax
. 1) Sellers of machinery *** to users or consumers incur [ROT] liability except as specified in paragraph (b) hereof. This is true whether the seller installs such tangible personal property for the purchaser or not. ***
2) The fact that it is not a stock item and is only produced after an order is received, or is an alteration of a standard item, is not sufficient to exempt it from [ROT] unless it meets all the exemption tests of paragraph (b) below.
3) Even if the sale would otherwise qualify for exemption under paragraph (b) of this Section, the sale is taxable if the designing of the property that is to be sold is done by the purchaser, or by someone other than the seller hired by the purchaser, but the sale is not taxable if the seller is responsible for furnishing the service of designing such property or for contributing substantially to the designing of such property.
* * *
b) When Not Liable For Retailers’ Occupation Tax
1) The seller of a special machine *** or other similar item is engaged primarily in a service occupation, rather than in the business of selling tangible personal property, and so does not incur [ROT] liability with respect to the sale, if the following tests for exemption are all met in the transaction:
A) The purchaser employs the seller primarily for his engineering or other scientific skill to design and produce the property on special order for the purchaser and to meet the particular needs of the purchaser;
B) the property has use or value only for the specific purpose for which it is produced, and
C) the property has use or value only to the purchaser.
2) On the requirement of design by the seller, it is sufficient if the seller is responsible for making a substantial contribution to the designing of the property that is to be produced on special order and sold.
***
4) On the question of ‘use or value only to the purchaser,’ this test for exemption is met if the property is not standard enough to be stocked or to be ordered from a catalog or other type of sales literature, but has to be produced in accordance with special requirements which are peculiar to the purchaser and not common to someone else whose conditions for possible use of the property can be shown by the Department to be reasonably comparable to those of the purchaser.” (86 111. Admin. Code 130.2115 (1985).)

Although courts consider Rule 3 in applying the principles developed in Ingersoll and its progeny, it is the principles that control and not the regulation. American Brake Shoe Co. v. Department of Revenue (1962), 25 Ill. 2d 354, 360, 185 N.E.2d 192, 195.

Defendants claim that the trial court erred in ruling that plaintiffs’ transaction was not taxable under the Use Tax Act. Defendants contend that this court may exercise de novo review of the trial court’s findings and judgment. They argue that the essential facts contained in the record are undisputed, making the issue of whether the property is subject to use tax a question of law. See Evangelical Alliance Mission v. Department of Revenue (1987), 164 Ill. App. 3d 431, 439, 517 N.E.2d 1178,1183.

We reject defendants’ contention. True, the record contains some undisputed evidence. However, the record also contains much evidence which the parties contested. Our recitation of the evidence adduced at trial reveals its contradictory nature. For each of the factors in Rule 3, each side presented evidence in support of its position; each side attempted to rebut the evidence of the opponent.

Especially in cases involving contradictory evidence, the trial judge, sitting as the trier of fact, is in a position superior to a reviewing court to observe the conduct of the witnesses while testifying and to determine their credibility, and to weigh the evidence and determine the preponderance thereof. A reviewing court will not set aside these determinations because the trial court believed or credited one group of witnesses and did not credit the other group. We may not overturn a judgment merely because we might disagree with it or might, had we been the fact finder, have come to a different conclusion. Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626; Terminal-Hudson of Illinois, Inc. v. Goldblatt Brothers, Inc. (1977), 51 Ill. App. 3d 199, 205, 366 N.E.2d 486, 491.

As a result of these principles, a reviewing court will not disturb a trial court’s findings unless they are against the manifest weight of the evidence. A finding is against the manifest weight of the evidence when an opposite conclusion is clearly apparent. Terminal-Hudson, 51 Ill. App. 3d at 206, 366 N.E.2d at 491.

In the case at bar, both sides presented evidence on each of the factors in part (b) of the Department’s Rule 3. After weighing this evidence, the trial court found that Westinghouse rendered a skill in designing the Byron and Braidwood turbine-generators for the particular and exclusive use of Commonwealth Edison and that the generators were merely incidental to Westinghouse’s skill. Based on the record before us, we cannot say that an opposite conclusion is clearly apparent. We hold that the findings and judgment of the trial court were not against the manifest weight of the evidence.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE COCCIA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE PATRICK McCRACKEN, Defendant-Appellant.
    First District (5th Division)
    No. 87—0994
    Opinion filed February 17, 1989.

      John Thomas Moran, of Law Offices of John Thomas Moran, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Lynda A. Peters, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COCCIA

delivered the opinion of the court;

The defendant Dale Patrick McCracken was tried by the court without a jury. He was convicted of leaving the scene of an accident involving personal injuries, in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11—401(a)). We are of the opinion that there was sufficient evidence admitted below to support Mc-Cracken’s conviction, and accordingly, affirm the trial court’s judgment.

McCracken was charged by complaint with the offenses of leaving the scene of an accident involving personal injuries and failure to yield the right-of-way to a pedestrian. A third charge of drunken driving was dropped prior to trial. Trial was held on September 12, 1986, and September 15, 1986. Immediately prior to trial, however, the judge realized that he personally, and currently, was being represented by an attorney who was associated with defense counsel’s law firm. The judge disclosed this fact in open court. He offered to recuse himself to the prosecution, who declined his offer. Although defendant McCracken’s attorney was present, he did not ask for recusal of the judge or object to the offer made by the judge to the assistant State’s Attorney.

The trial commenced with Susan Cipich, the complaining witness, testifying that on or about 9:30 p.m. on the evening of December 3, 1985, she left Loop College in the company of her math instructor, Paul Reichel. Reichel walked Cipich to her car, which was parked along Upper Wacker Drive, and she, in turn, drove him to his car, which was parked along Lower Wacker Drive, in what is known as a service or access lane. Cipich parked next to Reichel’s car. They remained in her car, talking for approximately 30 to 45 minutes. She then exited her car on the driver’s side, in order to retrieve Reichel’s briefcase from her trunk. While standing near the trunk of her car, she was struck by McCracken’s car, sustaining serious injuries to her legs. As a result of impact, she was thrown under a nearby car. During this experience she heard the sound of screeching tires and a car pulling away.

Paul Reichel testified that as Cipich exited her car on the driver’s side, he got out of the passenger’s side. It was then that he heard the sound of tires screeching, looked and saw a car coming towards them at a high rate of speed, out of control, and swerving down the service lane. The approaching car, driven by McCracken, hit the rear bumper of Reichel’s car, which was parked immediately west of Cipich’s car, and then struck Cipich, pinning her legs against her car. McCracken’s car did not stop after striking Cipich; instead, it raced off down the service lane.

Officer Lawrence Dolehide of the Chicago police department testified that at approximately 11 p.m. on the night of December 3, 1985, he was on his way back to his office, still in uniform, and driving his own vehicle eastbound along Lower Wacker Drive. As he did so he observed an eastbound, late model Pontiac in the main lanes of Lower Wacker Drive, three or four car lengths in front of him. As he approached Garvey Court, the Pontiac made an abrupt right turn and then an abrupt left turn into the eastbound service lanes. Officer Dolehide continued in the regular lanes, which run parallel to the service lanes. There was room for a car to drive through the service lane area without striking parked cars. He believed that the posted speed limit was 15 miles per hour at this point for local service lane traffic. However, the Pontiac, while in the service lane, accelerated to 30 miles per hour, drove through a large puddle of water, lost control, and began fishtailing. The Pontiac then struck a pedestrian (Cipich), slid and then came to a stop at an angle, about 30 feet from the site of the collision. Someone in the backseat of the Pontiac turned around to observe the scene. One or two seconds after stopping, the Pontiac made a left turn, drove over a concrete abutment, and came out in front of Officer Dolehide’s eastbound car. The Pontiac then “took off.” There were no other cars or pedestrians in the vicinity. Officer Dolehide pursued the Pontiac, flashing his headlights, sounding his horn, and accelerating to 30 or 35 miles per hour in an effort to catch up to the Pontiac. The Pontiac stopped around lower Michigan Avenue, approximately 2 or 2xk blocks east of the point of collision. Officer Dolehide informed the driver (McCracken) that he had struck a pedestrian and ordered him back to the scene of the accident. Officer Dolehide followed the driver back to the scene.

Officer Russell Ryan of the Chicago police department testified that about 10:45 p.m. on the date in question he was assigned to investigate an accident with injuries. Officer Ryan placed McCracken under arrest. The prosecution rested its case in chief after Officer Ryan’s testimony, and McCracken moved for a directed finding of not guilty on both charges. The trial judge denied the motion.

Alice Markovic testified for the defense. She and McCracken worked for the same employer. She and Patricia True arrived at the Marquette Inn after work at about 5:30 p.m. on the night in question, where she consumed two glasses of wine. McCracken joined them around 6:30 p.m. McCracken, Markovic, and True left the Marquette Inn about 7 p.m., in order to look at the Christmas tree in Daley Plaza and the window displays along State Street. At approximately 8:30 p.m., they went to the City Tavern, where Markovic had coffee, McCracken had a beer, and True had a glass of wine. They departed about 9:15 p.m. and proceeded to 101 North Wacker Drive. McCracken’s company car was parked in the basement of that building, and he offered to drive the women home. They reached Mc-Cracken’s car around 9:45 p.m. Markovic sat in the backseat, Mc-Cracken drove, and True was in the front passenger seat. They proceeded north and then east along Lower Wacker Drive. After entering the access or service lane, they came upon an icy spot or puddle, struck something, spun around, and went over the median strip into the express lane. Markovic did not see a pedestrian. Once Mc-Cracken regained control of his car, he continued east to a point where he could turn around and come back to the site. There was no opportunity to turn around for at least 1 or V-k blocks from the point of impact. Markovic was aware that there had been a collision with some object. She testified that McCracken did not stop before proceeding over the abutment. When the police officer caught up with them, McCracken had his turn signal on in order to come back west to the point of contact. There was no other reasonable place to turn around or stop the vehicle.

On cross-examination, Markovic admitted that there were no moving cars in front of them on the service road. Markovic denied that she and True were laughing when they spoke with Officer Ryan upon returning to the scene of the accident. McCracken’s counsel did not object to the prosecution’s question that elicited Markovic’s denial of laughter. In response to a question by the trial judge, Markovic conceded that at all relevant times of this incident traffic was light.

Patricia True testified that on and prior to this date she worked with Markovic and McCracken. True had wine at the Marquette Inn and McCracken had a beer. At the City Tavern, she had a glass of wine that she did not finish, and McCracken had a beer that he did not finish. When they were in his car heading east on Lower Wacker Drive, she was turned around, facing the backseat, and talking with Markovic. The car hit a bump and began to slide, they hit something, and the car went over the median. At the time of collision True did not know that they had hit a human being. After crossing the median strip, they were discussing the fact that they hit something and were trying to figure out where to turn around. They travelled one-half block before meeting up with the police officer. They were already stopped at the next light waiting to turn left in order to return to the scene of the accident.

On cross-examination, True testified that she did not recall how much wine she had consumed at the Marquette Inn. She did not see what McCracken struck with his car, although she knew that he did strike something. It sounded as if they had struck a trash container. True denied that she was laughing when they returned to the accident site. Again, McCracken’s attorney did not object to the prosecution’s question that prompted True’s denial.

McCracken testified that he had two beers at the Marquette Inn. He had another beer at the City Tavern, after looking at the Christmas displays. He, Markovic, and True then picked up his car and entered Lower Wacker Drive. McCracken turned into the access lane or service lane of eastbound Lower Wacker Drive after passing Post Place. While in the process of accelerating, he hit some ice and a large hole, started skidding and fishtailing, and struck something. He jumped the barrier and came close to hitting the columns separating the eastbound and westbound express lanes. After jumping the abutment, McCracken hit his head on the roof of the car. While he was in the process of straightening his car out and stopping, someone said that they thought he had hit a dumpster. He was dazed and confused. He did not see a person in the service lane prior to the collision, and he did not realize that he had struck someone. By the time he straightened out his car, he had gone a considerable distance. He passed Garvey Court, stopped at a red light, and put on his left turn signal while in the left turn lane. He was not thinking too clearly. He heard a car horn, and True told him that a man with a badge had pulled up next to his car and was telling him to pull over. Before True was finished speaking, the light had changed and McCracken returned to the scene of the accident.

On cross-examination, McCracken stated that even though he had two full beers at the Marquette Inn, he did not finish his beer at the City Tavern. He again admitted to striking something with his car. The momentum from the impact carried his car over the abutment in one continuous motion. He could have turned left at the first intersection he passed before coming to the light, but he thought that turning at the light would bring him back to the accident site sooner. He was “out of it” after the collision. Upon returning to the scene, he told Officer Ryan that he hoped he had not hurt anyone.

The trial judge then questioned McCracken. Their exchange included the following:

“Q. My recollection and I don’t intend to be an, to be an authority nor do I intend that I am an expert, you’re eastbound another entrance out, I believe, it would be between Wabash and Michigan around Loop College area. Do you recall that area?
A. I think, that’s Garvey Court.
Q. No, I think, that’s not Garvey Court and I think a different exit, sir, but you may be right and I may be wrong.”

McCracken’s attorney did not object to the judge’s questioning of his client. McCracken then told the judge that he was about a block or a block and one-half beyond the accident site when he came to a stop at the traffic light. After redirect and re-cross testimony, the defense rested.

Officer Ryan testified, in the prosecution’s rebuttal, that Markovic and True were weaving and staggering at the scene of the accident. He also detected a strong odor of alcohol on both women. Their eyes appeared to be glassy, they appeared to be intoxicated, and they appeared to be in a good frame of mind. On cross-examination, Officer Ryan admitted that he did not record these observations about the women in his police report. On redirect examination, he stated that recording such information was not within the scope of his duties as a police officer. On re-cross-examination, he conceded that the women filled out detailed accident reports.

After closing arguments, the trial judge made the following findings. Concerning McCracken’s witnesses, the judge noted that there was testimony that they were staggering. He further noted:

“They were also conducting themselves, in lack of a better term, promiscuous fashion at the accident scene. Those matters of course, do go to the credibility of the testimony of the witnesses.”

Counsel for McCracken did not object to the judge’s remarks at any time during the trial. Although the judge found that the sobriety of the defendant was not an issue, he also stated:

“The Court agrees with the defendant who testified, that he’s a little bit out of it. I think, he indicated that he was a little out from his head striking the roof. The Court is of the opinion he was a little bit out of it before his head struck the roof.”

Again, McCracken’s attorney never objected to the judge’s comments.

Finally, the judge went on to state that he had taken the opportunity to check the Chicago street guides, in order to clear up confusion as to the location of various exits along Lower Wacker Drive. Yet again, McCracken’s counsel did not object to this conduct on the part of the judge. After noting that Officer Dolehide and McCracken had testified that the latter ultimately stopped around Michigan Avenue, the judge concluded:

“The Court finds that too far from the scene of the accident to convince the Court that the defendant was truly intent upon immediately returning ***.”

Accordingly, the judge found McCracken guilty of leaving the scene of an accident which involved personal injuries, but found him not guilty of the charge of failing to yield the right-of-way to a pedestrian. The judge then ordered a presentencing investigation.

On February 23, 1987, the trial judge heard arguments on Mc-Cracken’s motion for a new trial. McCracken’s counsel asked the judge to look at some street guides in order to see how far his client travelled. He admitted that if the judge was confused about where the accident occurred, it was because of his client’s testimony. The trial judge stated that Officer Dolehide testified with a great deal of credibility and that he was the only disinterested witness. The judge further noted that McCracken travelled 2 or 2xk blocks after the collision, and stated:

“It seems to me that he could have stopped at some point sooner than he stopped ***. And even if that is only 1500 feet, it would seem to me at that hour there were ample opportunities to stop elsewhere and walk back — to back up, to park his car, to take any number of actions other than to pull away.”

The judge denied McCracken’s motion and then sentenced him to one year of conditional discharge, with 10 weekends in the House of Corrections.

McCracken now argues that he was not proven guilty beyond a reasonable doubt. He has also raised three other issues for our consideration.

First, McCracken contends that the trial judge should have recused himself from the sentencing hearing, because his impartiality might reasonably be questioned. Second, McCracken asserts that the prosecution committed reversible error by asking Markovic and True whether they were laughing when they returned to the scene of the accident, since such questions influenced the judge’s assessment of their credibility. Third, McCracken claims that the trial judge erred by conducting private investigations, when he asked McCracken about the exits on Lower Wacker Drive, when he consulted Chicago street guides, and when he opined that McCracken was “out of it” before the latter hit his head after the collision. None of these alleged errors were brought to the attention of the judge through objections. Equally fatal is the fact that the alleged errors were not specified in McCracken’s motion for a new trial.

It is settled that in order to preserve an issue for appellate review, the defendant must object at trial and raise the alleged error in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-88, 522 N.E.2d 1124, 1129-30.) And the defendant must specify the errors in the post-trial motion (see Ill. Rev. Stat. 1987, ch. 38, par. 116—1(c)); otherwise, the issue is waived. The failure to raise issues before the trial court casts an unnecessary burden upon appellate counsel and the appellate court. People v. Caballero (1984), 102 Ill. 2d 23, 31-32, 464 N.E.2d 223, 227.

If the defendant fails to object to the alleged error at trial, and fails to preserve the issue in a post-trial motion, a court of review will only address the issue if it rises to the level of plain error. (See 107 Ill. 2d R. 615(a).) But this rule is not a general saving clause, preserving for review all errors affecting substantial rights whether or not they have been brought to the trial court’s attention, (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 231.) Thus, the plain error doctrine is a limited exception to the waiver rule. (People v. Carlson (1980), 79 Ill. 2d 564, 577-78, 404 N.E.2d 233, 239.) The doctrine applies only when the evidence is closely balanced, in order to insure that the defendant has not been the victim of a serious injustice. (Carlson, 79 Ill. 2d at 576, 404 N.E.2d at 238.) Otherwise stated, if the evidence is not close, the doctrine will not be applied. In our case, the evidence dealing with the material issues is not closely balanced, as is apparent from the following review. The plain error doctrine, therefore, is inapplicable, and the alleged errors have not been preserved for appeal, and thus are not properly before us.

We now come to the only issue McCracken has not waived: whether he was proven guilty beyond a reasonable doubt. As noted above, the defendant was charged with violating section 11—401 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11—401(a)), which provides:

“The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11 — 403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.”

The prosecution was not required to show that McCracken knew that he had injured Cipich; rather, it was only required to prove that he knew that his car was involved in a collision. See People v. Nunn (1979), 77 Ill. 2d 243, 252, 396 N.E.2d 27, 31; People v. Martinez (1983), 120 Ill. App. 3d 305, 311, 458 N.E.2d 104,110.

In a bench trial, it is the trial court’s province to determine the credibility and weight of the testimony, and to resolve the inconsistencies and conflicts therein. A reviewing court will not substitute its judgment on such matters unless the proof is so unsatisfactory that a reasonable doubt of guilt appears. It must be remembered that the trial court, and not the reviewing court, was in a position to observe and evaluate the witnesses. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649, 658.) It is the function of the trier of fact to draw inferences from the evidence, and where such evidence merely conflicts, a reviewing court likewise will not substitute its judgment for that of the trier of fact. People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733, 734-35.

McCracken argues that since the State’s case is entirely circumstantial, his reasonable hypothesis of innocence should be adopted. This argument is meritless. Two eyewitnesses — Paul Reichel and Officer Dolehide — saw McCracken strike Cipich and then leave the scene of the accident. Furthermore, McCracken and his witnesses all admitted that they knew immediately that he collided with an object. The trial judge described Officer Dolehide as the only disinterested witness. Dolehide’s testimony indicates that McCracken came to a brief stop after the accident, but that he left the scene immediately. Dolehide testified that he pursued McCracken 2 or 21k blocks before catching up to him. Finally, Officer Dolehide observed that there was no traffic in the area on the date and time in question. McCracken’s own witness, Markovic, conceded that traffic was light and that there was no traffic in front of them at all.

The trial judge concluded that McCracken could have stopped earlier. The evidence is not so unsatisfactory that a reasonable doubt of guilt exists. In fact, the evidence on the material issues is not even closely balanced. For all of the foregoing reasons, the judgment of the trial court is affirmed.

Lastly, we grant the State’s request to assess the sum of $75 against defendant as costs for this appeal. Ill. Rev. Stat. 1987, ch. 53, par. 8(a); People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319.

Affirmed.

MURRAY, P.J., and LORENZ, J., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND L. FOUNTAIN, Defendant-Appellant.
    First District (5th Division)
    No. 87—1668
    Opinion filed February 17, 1989.
    Rehearing denied March 13, 1989.

      Thomas P. Cernek and Jeffrey T. Cernek, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Following a bench trial, defendant Raymond Fountain was found guilty of aggravated battery and home invasion (Ill. Rev. Stat. 1985, ch. 38, pars. 12—4(a), 12—11(a)(1)). He was sentenced to four years’ imprisonment for aggravated battery and seven years for home invasion, the sentences to run concurrently. On appeal, defendant contends: (1) he was denied due process of law as a result of ineffective assistance of counsel; (2) the court erred in admitting two of plaintiff’s exhibits and considered evidence “not in the record”; (3) the trial court impermissibly allowed amendment of the home invasion count of the indictment prior to trial; (4) he was not proved guilty beyond a reasonable doubt; and (5) the court improperly admitted a victim impact statement at his sentencing hearing. For the reasons set forth below, we affirm.

At trial, complainant Steven Halas stated that on May 21, 1986, at approximately 11 p.m., he was walking in the parking lot of the apartment complex where he lived in Des Plaines, Illinois; his doctor had recommended this exercise as therapy because he had injured his leg five years earlier, it had been amputated below the knee, and he wore a prosthesis. At that time, he heard music and people “hollering” back and forth. He also heard rocks bouncing off the cars in the parking lot and determined they were being thrown by people from the viaduct area nearby. He then shouted to whoever was throwing the rocks to stop. Receiving no response, he climbed a 25-foot hill to the area above the viaduct and saw several people drinking beer; he was unable to determine how many people were present because it was dark. He then approached defendant and told him to leave or else he would call the police. Defendant stated he and his group were not going to leave. Halas repeated that he was going to call the police and, upon turning to leave, defendant grabbed him by his left shoulder; in response, he grabbed defendant’s arm to defend himself, and defendant struck him over the left eye with a beer bottle, which broke in the process. Although Halas was bleeding profusely, he wrestled defendant to the ground because defendant would not let him go, he was able to hold defendant down, and he told defendant he was going to call the police and was taking defendant’s wallet so he could identify him. Halas then got off defendant, walked to his apartment, and called the police.

Halas further testified that while he was talking to the police, he heard the sound of breaking glass at the back of the apartment building, scuffling in the hallway, and someone kicking at his back door. He related this disturbance to the police and they told him to stay on the line. He then saw the frame of his door break and defendant came running into the apartment screaming in a high-pitched voice. Halas told defendant to “be cool” in an attempt to calm him. Defendant proceeded to tackle Halas and they both fell to the ground, pulling the telephone out of the wall in the process. Halas was able to get defendant under him and “kneel on him.” After telling defendant he was going to keep him there until the police arrived, defendant yelled to his Mends for help. Two male Mends of defendant’s entered the apartment, and one of them, William Petrucci, caught Halas from behind, held a wooden two-by-four over his head, and said, “If you don’t get off of him, I will have to hit you.” Halas then let defendant go and, upon leaving the apartment, one of his friends picked up his wallet.

Thereafter, Halas observed that his apartment was “demolished”; blood was everywhere, his apartment door and kitchen telephone were broken, his kitchen stove was damaged and chairs were knocked over, and other items in the living room were knocked over. In the hallway he saw a rock and broken glass and, next to the rear entrance, a window, screen and the frame of the door had been broken.

Halas talked to the police upon their arrival and was then taken to a hospital where he received 56 stitches; his face had been lacerated above his left eye, reaching the muscle, resulting in his inability to raise his eyebrow, and his left and right cheekbones were also lacerated. While at the hospital, Halas talked to police lieutenant Ronald Russell and identified Petrucci from a set of photographs as the person who threatened him with the two-by-four. At a subsequent meeting with Russell at his office, Halas identified defendant as his assailant from a second set of photographs.

Pamela Holby, called as a witness for the prosecution, testified that she lived in the garden apartment across from Halas. She was watching television on May 21, 1986, at approximately 11 to 11:30 p.m., when she heard a loud crash which sounded like breaking glass at the rear of her apartment. She then heard someone ringing her doorbell, banging on her door, and turning the doorknob. When she opened the window curtains, she saw two men — defendant and another individual — standing at her door. One man held a two-by-four in his hand. As she looked in the hallway, she also saw broken glass and a rock on the floor. Defendant told Holby he had to get his (expletive) back. Immediately thereafter both men left when the person holding the two-by-four told defendant that they had the wrong apartment. Holby then went to her kitchen to telephone the police and heard a loud bang and wood cracking, which sounded like it was coming from Halas’ apartment. She also heard screaming, someone running, and then “someone” saying, “I don’t want to have to do this but I will waste you with this two-by-four if you don’t let him go.” She then heard Halas respond, “Fine, I will let him go.” Thereafter, she heard someone come out of Halas’ apartment into the hallway and, after she heard the door shut, she saw “legs run past her kitchen window.”

When Holby went to her rear door, she heard Halas open his door and observed blood on his doorbell, the stairs, and on the walls. She also saw Halas standing in the hallway with a shirt pressed over his eye and blood on his hand, arm and face and, when he removed the shirt from his eye, she saw that the top of his eyebrow was hanging over his eye and bleeding. Holby further testified that when the police arrived they asked her to identify one of the suspects but she did not do so, even though she recognized Petrucci as the person holding the two-by-four, because she was afraid. Some days later at the police station, however, she identified Petrucci, as the person holding the two-by-four, and defendant from the two sets of photographs previously shown to Halas.

Defendant testified on his own behalf. Contrary to Halas’ version of the events on May 21, 1986, he stated that initially he was celebrating his graduation from high school with some friends at the railroad tracks over the viaduct, drank four to six beers, slipped and fell six feet from a concrete ledge, and hurt his ankle. He did not ask his friends to take him to a hospital, although he was in great pain and felt like throwing up, but instead, climbed onto another slab of concrete because it was cold and therefore comfortable in his injured condition. One of his friends then placed a radio next to his head, turning the volume up, and he closed his eyes because of the pain in his ankle. While in this position, Halas suddenly came upon him and proceeded to yell at him, accusing him of throwing rocks at the cars in the parking lot. Defendant said he was alone at that time; his friends had apparently left the area. Defendant further stated that Halas grabbed him, yanking him to his feet, and hit him on the side of his head with a closed fist; he kept slapping him every time he tried to speak; when Halas pushed him to the ground, he grabbed a bottle and broke it on the concrete in the hope that in doing so he would make Halas leave him alone; that instead of leaving, Halas “came right for” him and grabbed him around the neck; Halas then wrestled him to the ground and proceeded to strangle him and bang his head into the concrete; he subsequently struck Halas across his face with the beer bottle; and Halas finally left him alone after taking his wallet.

Defendant further testified that he followed Halas but could not really see because he had blood in his eyes and he remembered telling one of his friends, who apparently had returned, that Halas took his wallet. Upon arriving at the apartment complex, defendant stated that he kicked out the window to the building which he had seen Halas enter, and he “yelled for his wallet.” (Defendant also later stated that he had keys to the security door of the building, because his girl friend lived in the same building, and he used the keys to enter the building.) He then proceeded to pound on all the doors in the hallway until his friend pointed him to Halas’ door; he banged on Halas’ door and told him to come out with his wallet or he would come in; when Halas did not come out, he put his shoulder to the door, the door opened, and he saw Halas talking on the telephone and “went after him”; he wrestled Halas to the floor and, in doing so, the telephone came away from the wall; his friend, Petrucci, came into the apartment and was able to get Halas “off of him”; another friend came into the apartment and took his wallet upon their leaving the apartment; and he then ran to his van and went to his girl friend’s father’s home, but he did not call the police while there.

Krista! Cummings, defendant’s girl friend, testified that defendant had been her boyfriend for 21!z years; she lived in the same apartment complex as Halas; she and other friends went to the viaduct area on May 21, 1986, to drink beer in celebration of defendant’s high school graduation; she did not stay with defendant the entire evening; at one point defendant fell off a concrete slab and hurt his ankle; she was sitting next to defendant when she heard a man coming up the hill and the man stated he was going to call the cops or that he was a cop; she and the other people, except for defendant, “ran” because they were under the legal drinking age; 10 to 15 minutes later she saw defendant in his van lying on the floor, delirious and full of blood — “he was cut on his side”; when she saw the police coming, she did not go to them but instead drove defendant’s van to her father’s house; her father drove defendant home; and neither she nor defendant’s friends “looked for, went to or called the police that night.”

Following the close of all the evidence, the trial court found defendant guilty of aggravated battery and home invasion, having expressly rejected defendant’s defense of self-defense (i.e., that Halas was the aggressor and he acted in self-defense). A post-trial motion filed by defendant was denied. At defendant’s subsequent sentencing hearing, defendant informed the court that he had not received the victim’s impact statement (VIS) and he therefore objected to the State reading the statement into the record, arguing that he had just received it and the statement contained inflammatory material and inconsistencies and would require an investigation to verify the allegations. The court overruled defendant’s objection, stating that the sentencing hearing was not a trial and that the VIS was not evidence. The court further stated that the VIS was not given under oath and therefore defendant had no right to cross-examine Halas on the content of the statement. Thereafter, the court, after considering the presentence report, the VIS and all arguments in aggravation and mitigation, sentenced defendant as set forth above, and this appeal followed.

Defendant’s first argument on appeal is that he was denied due process of law as a result of ineffective assistance of counsel. Specifically, he contends that his counsel’s representation of him amounted to no representation based on the fact that his counsel stipulated to admission of the State’s exhibits 2 through 8 (photographs), allowed the State’s exhibit 1 (a tape recording of plaintiff’s conversation with the police) “to be admitted over objection,” allowed the indictment to be amended without objection, failed to call additional witnesses on behalf of the defense, and failed to develop a theory of defense.

To establish ineffective assistance of counsel, a defendant must show that counsel’s presentation of his case was so constitutionally deficient that it produced substantial prejudice to defendant without which the result of the proceedings would have been different. (People v. Williams (1986), 140 Ill. App. 3d 216, 228, 488 N.E.2d 649.) Both counsel’s incompetence and the resultant prejudice must be clearly established by defendant. (People v. Rodriquez (1983), 117 Ill. App. 3d 761, 454 N.E.2d 13.) A defendant must further overcome a strong presumption that counsel’s conduct might be considered sound trial strategy. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; see also People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270.

In the instant case, we find defendant’s ineffective assistance of counsel argument without merit. We first observe that the admission of a photograph into evidence is within the sound discretion of the trial court (People v. Rolan (1979), 71 Ill. App. 3d 746, 390 N.E.2d 107) and all that is required for its admission is the testimony of a witness who has personal knowledge of the object, person, or scene depicted in the photograph and attests that the photograph is a fair and accurate representation of the object, person, or scene depicted at the time it was taken (People v. Pope (1985), 138 Ill. App. 3d 726, 486 N.E.2d 350).

Here, defendant contends that defense counsel should have objected to admission of seven photographs of Petrucci and other unidentified individuals because the connection of the unidentified individuals with the proceeding was never established and Petrucci was not tried with defendant; admission of six photographs of defendant because defendant voluntarily surrendered himself to the police and there was no issue concerning his identity; admission of 12 photographs of the scene of the incident; admission of a photograph of a rock and a two-by-four; and admission of photographs of Halas taken on the night of the incident.

We find defendant’s contentions mere assertions; he simply fails to articulate how he was prejudiced by admission of the photographs. Moreover, in light of the testimony of Halas and Holby, on-the-scene witnesses, the photographs, which they testified were true and accurate depictions, amounted to cumulative evidence, i.e., a pictorial representation of their testimony. Accordingly, any objection by defense counsel would have been a futile act.

Similarly, we reject defendant’s argument that defense counsel’s failure to “prevent” admission of the tape recording between Halas and the police into evidence amounted to ineffective assistance of counsel. It is well settled that sound recordings, which are otherwise competent, material and relevant, are admissible if a proper foundation has been established to assure the authenticity and reliability of the recording. (People v. Melchor (1985), 136 Ill. App. 3d 708, 483 N.E.2d 971.) A sufficient foundation is made when a party to the taped conversation testifies to its accuracy and the defendant makes no claim of any changes or deletions in the recording. (People v. Johnson (1984), 122 Ill. App. 3d 532, 461 N.E.2d 585.) In the instant case, defense counsel initially objected to admission of the tape, arguing that it contained hearsay and was not probative. The trial court ruled otherwise and stated that defense counsel would have an opportunity to cross-examine Halas concerning the content of the tape and, if the court determined the tape was not an accurate duplicate of the original, it would strike the exhibit completely. The record further discloses that Halas testified to what words and noises would be con-tamed on the tape and stated that he had listened to it 20 minutes earlier and that it was an accurate duplicate of the original. The tape was admitted into evidence, and the trial court ¿llowed the State to play it; defense counsel did not object to the contents of it after it was played.

Defendant argues that defense counsel was incompetent because he had not listened to the original tape prior to trial and his “utterance evincing his lack of knowledge concerning [the tape] demonstrates a lack of expertise which redounded to the detriment of defendant’s right to a fair trial.” It is unclear whether defense counsel in fact had never heard the original tape but, in any event, we note that Halas’ testimony as to what words and noises were contained on the tape corresponded with those revealed upon the playing of the tape. Therefore, defendant could not have been prejudiced as a result of defense counsel’s alleged failure to have examined the original tape. We also observe that the State laid a proper foundation for admission of the tape and, therefore, any further action by defense counsel would have been futile.

Defendant’s last argument with respect to the admission of the State’s exhibits concerns the stipulated admission of exhibit 8, a two-by-four in a paper wrapping which was never opened. In considering this exhibit, the trial judge stated that as “an old carpenter,” he estimated that the two-by-four was 30 to 34 inches in length. Defendant contends that the court’s evaluation of this evidence was “outside the record” and denied defendant the right to “challenge the efficacy of the Court’s consideration of this piece of evidence.” We note that prior to admission of exhibit 8, a photograph of the two-by-four had been admitted into evidence and both Halas and Holby identified it. An estimation of its length, even 10 inches or more off, would not diminish the dangerous nature of its use as a weapon under the circumstances and, therefore, we find defendant’s argument without merit. We further observe that defense counsel could reasonably have believed that exhibition of the two-by-four would only have reinforced the dangerous nature of its use as a weapon upon the trier of fact and, as a trial tactic, he sought to avoid this possible impact; Such trial tactics are not a basis for a finding of ineffective assistance of counsel. People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270.

Defendant also contends defense counsel failed to provide effective representation because he did not object to amendment of the home invasion count of the indictment to change the weapon used from a “bottle” to a “piece of wood.” We find defendant’s argument without merit. Although the scope or offenses charged in an indictment may not be broadened by an amendment, except by the grand jury (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508), an amendment of the manner in which the offense was committed may be made by motion of the State’s Attorney or a defendant at any time because of formal defects (Ill. Rev. Stat. 1985, ch. 38, par. 111—5; People v. Coleman (1971), 49 Ill. 2d 565, 276 N.E.2d 721). Here, the State, in requesting amendment of the indictment to substitute “a piece of wood” for “bottle” as the weapon used in the home invasion, explained to the trial court that the grand jury transcript indicated that the weapon used in the home invasion was a piece of wood and, accordingly, the word “bottle” was the product of a miswriting. Defense counsel also indicated he believed the indictment was miswritten. Based on the fact that the weapon used only reflects the manner in which the crime was committed — the formal part of the indictment— and the fact that the grand jury itself indicated the weapon used was a piece of wood, we find that the amendment was permissible. Accordingly, we observe again that any objection by defense counsel would have been a futile act.

Defendant next argues that defense counsel’s failure to call more than one witness on his behalf amounted to ineffective assistance of counsel. Specifically, defendant contends that because six to eight other people were present on the night of the incident, defense counsel could have called them to testify on his behalf to corroborate his theory of self-defense.

We first note that which witnesses will be presented is a matter of trial strategy. (People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410.) Secondly, a defendant must demonstrate how a witness who was not called would have aided him and also whether defense counsel did not try to contact the witness. In the absence of such a showing, a reviewing court cannot assess whether defense counsel’s alleged omission was prejudicial. (People v. Plummer (1986), 151 Ill. App. 3d 94, 502 N.E.2d 1120.) Here, defendant merely asserts that it is likely that his friends, who were drinking with him on the night of the incident, would have corroborated his theory of defense that Halas was the aggressor and that he acted in self-defense. Without more, we must presume that defense counsel, based on trial strategy, did not call any other witnesses because they would not or could not have corroborated defendant’s theory of defense.

Defendant’s last ineffective assistance of counsel argument is that defense counsel failed to develop a theory of defense, i.e., that “[t]he record is devoid of any evidence that counsel either formulated or attempted to present a theory of defense.” Contrary to defendant’s argument, defense counsel did establish defendant’s defense immediately upon cross-examination of the State’s first witness, the complainant Halas, as evidenced by the following colloquy between him and the court:

“THE COURT: You are alleging that there is provocation here. Is that the basis of the defense?
[DEFENSE COUNSEL]: Yes.”

We further observe that once the issue of self-defense is raised, the burden shifts to the State to prove beyond a reasonable doubt that the defendant did not act in self-defense (People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681), and whether a defendant acted in self-defense is a question to be decided by the trier of fact (People v. Walker (1978), 58 Ill. App. 3d 535, 374 N.E.2d 880). Here, the trial court weighed the evidence presented and expressly rejected defendant’s self-defense theory, finding defendant’s testimony “totally without belief”; the trier of fact apparently gave more weight to the State’s evidence than defendant’s. Thus, we observe that it was defendant’s testimony and proof that was rejected by the court, not defense counsel’s presentation of evidence in eliciting that proof.

In light of the foregoing, we hold that defendant has failed to show that his counsel’s representation of him was so deficient that it produced substantial prejudice to him without which the outcome of the proceedings would have been different.

We similarly reject defendant’s argument that he was not proved guilty beyond a reasonable doubt. When presented with a challenge to the sufficiency of evidence, it is not the function of a reviewing court to retry a defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. *** Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence [emphasis added] is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) With respect to defendant’s aggravated battery conviction in the instant case, the State was required to prove that defendant intentionally and knowingly acted to cause great bodily harm or permanent disability or disfigurement to Halas. (See Ill. Rev. Stat. 1985, ch. 38, par. 12—4(a).) Defendant’s only defense would be self-defense. See People v. Evans (1982), 104 Ill. App. 3d 598, 601, 432 N.E.2d 1285.

We find, as did the trial court, that the State sustained its burden of proof; the evidence shows that defendant did intentionally strike Halas across his face with a beer bottle, knowing that his act would cause great bodily harm, disability or disfigurement. In the absence of proof by defendant that he acted in self-defense, as determined by the trial court, we see no reason to disturb the trier of fact’s determination. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact would find the essential elements of aggravated battery beyond a reasonable doubt.

We also reach the same conclusion with respect to defendant’s conviction for home invasion. To establish the offense of home invasion, the State must prove that a defendant entered the dwelling of another person without authority, he was not a peace officer acting in the line of duty, he entered knowing one or more persons were present in the dwelling, he used force or threatened the imminent use of force on the person(s) within the dwelling, and he was armed with a dangerous weapon. (See Ill. Rev. Stat. 1985, ch. 38, par. 12— 11(a)(1); People v. Racanelli (1985), 132 Ill. App. 3d 124, 476 N.E.2d 1179.) Here, defendant only disputes that the State failed to prove that he was armed with a dangerous weapon when he entered Halas’ apartment without authority. On the other hand, the State contends that proof of this element was satisfied based upon an accountability theory, i.e., he aided and abetted Petrucci in his unauthorized entry into Halas’ apartment, who was “armed” with the two-by-four.

We first observe that it is well settled that a person is legally accountable for the conduct of another when “[e]ither 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.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) In the present case, it is undisputed that defendant entered Halas’ apartment without authority; he called for Petrucci’s assistance once Halas had him pinned on the floor of the apartment; at the time Petrucci entered the apartment without authority, he knew Petrucci was armed with a dangerous weapon — a two-by-four — because Petrucci had entered the building with him holding the two-by-four, as testified to by Holby; and Petrucci threatened Halas with the two-by-four. Because defendant aided and abetted, participated and specifically intended to promote the commission of the offense, he is legally accountable for Petrucci’s action in using a dangerous weapon and threatening force upon Halas. Defendant therefore was proved guilty of home invasion beyond a reasonable doubt.

Defendant’s final argument is that a victim impact statement (VIS) was improperly admitted at his sentencing hearing because portions of the statement improperly influenced the trial court. The statement complained of outlined the physical injuries received by Halas, the expenses incurred by him as a result of the injuries, the effect the crime had on his earning ability, his court expenses and financial losses incurred from the crime, the change in his lifestyle and emotions, and how the various sentences which might be imposed on defendant would affect him and his family. Within the content of the statement, however, defendant objected to a reference concerning the fact that Halas was a cripple (to evoke sympathy), Halas’ comparison of the home invasion to a “rape” (as being “highly inflammable”), Halas’ comment that a close friend of his killed himself with a gun and he [Halas] now keeps a gun under his pillow, and Halas’ remark that his father and brother, both police officers, were adamant that defendant get the maximum sentence for his crimes.

In support of this argument, defendant relies on Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, where the Court held that the introduction of a VIS in the sentencing phase of the defendant’s capital murder trial, which related the opinions of the victims’ family members and characterizations of the crimes, violated the eighth amendment and that the presentation of the information by the State could serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As a result, the Court stated that such statements introduced irrelevant and prejudicial considerations and created an unacceptable risk that the death penalty would be imposed arbitrarily and capriciously.

We first observe that Booth, unlike the present case, involved a capital crime. We also note that the court stated that its disapproval of the use of a VIS at the sentencing phase of a capital case did not mean, however, that this type of information would never be relevant in any context. The court further noted that 36 States permit the use of VIS in some contexts, which reflects a legislative judgment that the effect of a crime on victims should have a place in the criminal’justice system. Like the Federal courts, Illinois does not allow a VIS in capital sentencing hearings. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—l(a)(6); see also People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119.) However, use of a VIS is statutorily authorized in other criminal actions. (Ill. Rev. Stat. 1985, ch. 38, par. 1406.) Specifically, section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act provides. that where a defendant has been convicted of a violent crime, the victim may either testify at the sentencing hearing as to the impact of the crime upon him or submit a written statement outlining such impact which may be presented orally at the hearing. (Ill. Rev. Stat. 1985, ch. 38, par. 1406.) The victim’s statement is then considered with all other appropriate facts in determining a defendant’s sentence. Based on the foregoing, we therefore hold that because defendant’s crimes could not have resulted in the imposition of the death penalty, Booth is inapplicable and the VIS was properly considered at defendant’s sentencing hearing.

We also briefly note that defendant’s contentions that the trial court was improperly influenced by the specific remarks complained of are without merit; the trial court, unlike members of a jury, is well versed in the appropriateness of evidence to be considered in sentencing a defendant and, in this case, the trial court clearly set forth the mitigating and aggravating factors which it considered in determining defendant’s sentences — none of which evince consideration of the remarks complained of by defendant. Finally, we observe that although complainant and his father and brother were adamant about defendant receiving the maximum sentences, the court in fact did not impose the maximum sentences; it imposed a four-year sentence for aggravated battery, which carries a two-year minimum and a five-year maximum, and a seven-year sentence for home invasion, which carries a minimum of six years and a maximum of 30 years. Based on the mitigating and aggravating facts set out by the court, we cannot say that these sentences are excessive or that the trial court was improperly influenced by the VIS.

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

Affirmed.

LORENZ and PINCHAM, JJ., concur.


text:
    INLAND REAL ESTATE CORPORATION et al., Plaintiffs-Appellants, v. THE VILLAGE OF PALATINE et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 87—2558, 87—3075 cons.
    Opinion filed February 17, 1989.
    Robert J. Zotti, of Oak Park, for appellants.
    Bradley Glass, of Glass, Hill, Dallmeyer & Roth, Ltd., of Northbrook, and Gerald W. Shea and Ira A. Rogal, both of Shea, Rogal & Associates, Ltd., of Westchester, for appellees.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs-appellants are a class of residents who were residing outside the defendant Village of Palatine (Village) in 1981 when the Village bought the Ferndale Heights Utility Company (Ferndale), which had been providing water and sewer services to plaintiffs. Plaintiffs subsequently brought a class action challenging the increased rates charged to them by the Village for water, sewer, tap-ons, and meter services. Nonresidents were charged a combined water and sewer rate of $6.23 per 1,000 gallons of water while Village residents were charged considerably less.

Initially, the trial court found that jurisdiction as to the reasonableness of the rates was with the Illinois Commerce Commission, a finding later reversed by this court in Inland Real Estate Corp. v. Village of Palatine (1982), 107 Ill. App. 3d 279, 437 N.E.2d 883. On July 16, 1984, after an extensive trial with numerous witnesses and exhibits, Judge Albert Green entered an 80-page order finding, among other things, that the water rates charged by the Village were unreasonable and discriminatory as to the plaintiff class. The court set a reasonable rate of $3.45 per 1,000 gallons to be retroactively applied from October 19,1981.

Cross-appeals were filed, and this court affirmed the trial court but remanded the matter, finding that the trial court did not resolve plaintiffs’ contentions that specific rates should have been set for sewer, tap-ons, and meter services. (Inland Real Estate Corp. v. Village of Palatine (1986), 146 Ill. App. 3d 92, 496 N.E.2d 998 (Inland II).) Pending the appeal in Inland II, this court entered a stay of enforcement of the trial court’s order.

On remand of Inland II to the trial court, the Village filed a motion for an order resolving its rates for sewers, tap-ons, and meter services. Plaintiffs responded and requested that an evidentiary hearing be held on the matter, and also requested post-judgment interest on the water rate refunds. Both sides submitted supporting memoranda. In July 1987, the trial court granted the Village’s motion, and later in August, denied plaintiffs’ petition for interest. No evidentiary hearings were held. Plaintiffs then brought this appeal alleging that the trial court erred in denying post-judgment interest and in granting the Village’s motion regarding sewer rates, tap-ons, and meter charges without an evidentiary hearing.

We affirm the trial court for the following reasons.

First, with respect to the interest issue, there are several reasons for affirming the trial court’s denial thereof. The allowance of interest in a chancery case is within the sound discretion of the trial court and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with justice and equity. (Galler v. Galler (1975), 61 Ill. 2d 464, 336 N.E.2d 886.) And, a trial court’s determination as to the awarding of interest will not be set aside absent an abuse of discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) There is no such abuse shown in the present case.

In order to justify an award of interest, the amount of money to be paid must be certain and the judgment debtor must have enjoyed the improper use of the money for the period for which interest is claimed. (Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1984), 128 Ill. App. 3d 673, 470 N.E.2d 639.) We find neither condition present here. Much of plaintiffs’ argument in support of post-judgment interest concerns the Village’s alleged inequitable conduct prior to Judge Green’s 1984 order. However, prejudgment interest had already been denied and was affirmed by this court. In addition, we are concerned that the question of post-judgment interest was never mentioned until after remand of this cause in Inland II. If, as plaintiffs claim, the 1984 order was a money judgment with a sum certain, it appears that a request for interest should have been included in their post-trial motion instead of waiting until after the cause was remanded for resolution of sewer rates and tap-on and meter services.

As to the certainty of the sum, the record indicates that, at the time the present appeal was filed, the parties were still attempting to agree on a procedure whereby it could be determined to whom the Village owed money and who owed the Village, and the relevant sums involved. The trial court did state that if the parties could agree on sums owed and a disbursement procedure, it would order interest to be paid from the date of the refund order. Thus, if the procedure to determine the sum was not yet established, then we cannot say that there was yet a sum certain.

Also, there is no evidence that the Village has enjoyed improper use of the money owed. Shortly after the entry of the 1984 order, the Village tendered compliance by submitting a suggested refund and deficiency procedure and requested a judgment. Plaintiffs objected to the' Village’s petition. Admittedly, the subsequent appeal (Inland II) and stay would not have affected any interest granted, but the stay of enforcement entered by this court at the Village’s request is otherwise relevant. In a complex rate case such as this with a voluminous record, it is certainly possible that the $3.45 per 1,000 gallon rate set by the trial court could have been modified after the appeal, resulting in further complications had the money been disbursed. A stay of enforcement was a logical procedure to forestall such problems. Therefore, it cannot be said that the Village, as a result of the granting of its motion to stay, had improper use of the funds for rebate, which funds have never been set aside in a separate account. The Village acted properly in requesting such a stay so as to protect itself from being mired in confusion had it paid rebates before the rate was certain.

Accordingly, we find no abuse of discretion in the trial court’s denial of post-judgment interest.

We must also affirm the trial court’s order granting the Village’s motion to resolve the rates for sewers, tap-ons and meter services. This court in Inland II did not reverse the trial court; it affirmed the court’s order but remanded the cause since “the trial court did not decide plaintiffs’ contentions concerning Palatine’s rates for sewers, tap-ons and meter services. Therefore, this cause must be remanded for a resolution of these issues.” (Inland, 146 Ill. App. 3d at 99, 496 N.E.2d at 1003.) Absent specific directions, the appellate court’s opinion determines what further proceedings are proper and consistent with its opinion. (Pecyna v. Industrial Comm’n (1986), 149 Ill. App. 3d 97, 500 N.E.2d 548.) Here, there were no instructions to the trial court to the effect that a hearing should be held for the purpose of taking additional evidence, nor can we discern any reasons for such a hearing.

In his 80-page order of 1984, Judge Green noted that the court had heard 27 witnesses, viewed 155 exhibits, and reviewed numerous briefs and memoranda in reaching its conclusions. In the finding of facts portion of that order, the trial court found that the Village could impose tap-on and meter fees for water and sewer users outside of the Village and that there was no guarantee that the rates would remain unchanged. The court also found that the charges for water meters and tap-ons were not proved to be unreasonable. However, these findings, although part of the 80-page order, were not reiterated in the conclusions of law and order segments of the order. Included in the order segment was the conclusion: “However, Palatine’s water and sewer rate ordinances do unlawfully discriminate against the plaintiffs.” But it is quite apparent, when reading the entire order, that the court held the water rates to be discriminatory but found that no evidence was presented regarding the other rates at issue in the present case. Furthermore, the record supports the determination made by the trial court on remand that “during the trial of this case, plaintiffs failed to sustain their burden of proving that the charges for water tap-ons and meter services and sewer rates were unreasonable or arbitrary.”

On remand, the trial court received briefs and memoranda on the issue, after which it noted that it had discretion to either hear new evidence or to render an order based on the evidence already received. The court then proceeded to “complete” its 80-page order by stating, “[t]he Plaintiff Class has failed, woefully failed, to show that the sewer charges, tap-on fees and meter charges as charged by Palatine pursuant to their ordinance [were] unreasonable. There was no evidence to that effect.”

Considering the trial court’s findings in 1984, its admitted familiarity with the evidence, and the more recent briefs submitted by both parties, we find no abuse of discretion in the trial court’s failure to hold an evidentiary hearing.

Plaintiffs contend that since the Village sought approval of an ordinance passed after conclusion of the 1984 trial, a new hearing should be held. This litigation, commenced in 1981, must come to an end sometime. Plaintiffs appear to want “two bites of the apple.” They had a chance in the first trial to produce evidence on the matter, and now, after having failed to sufficiently do so, would like to try again. The new ordinance argument is without merit.

The record clearly indicates that the issue of the contested charges has been conclusively decided. At the close of the 1984 trial, plaintiffs’ counsel stated that he would stand on the evidence regarding the tap-on and meter charges. In addition, in their appellate brief for Inland II, plaintiffs challenged Judge Green’s finding that the contested charges were not unreasonable. Thus, this court was aware of the included findings when it affirmed the trial court’s order. Furthermore, the record does support the trial court’s 1987 conclusion that the sewer rates and meter and tap-on charges were not proved to be unreasonable. Having failed in their first attempt to establish the unreasonableness of the charges, we do not consider it appropriate to now order what, in essence, would be a new trial on the rates charged by the Village in 1985-86, which is the evidence plaintiffs wish to present at an evidentiary hearing. We therefore must affirm the trial court’s granting of the Village’s motion for an order resolving its rates for sewers, tap-ons and meter services without an evidentiary hearing.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT A. McMURL, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY L. TREADWAY, Defendant-Appellant.
    Fourth District
    Nos. 4—88—0334, 4—88—0335 cons.
    Opinion filed February 23, 1989.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    No brief filed for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendants, Robert A. McMurl and Ricky L. Treadway, were charged by information in Cass County with one count of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1(a)) and two counts of felony theft (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)(1)). Pursuant to a plea agreement, the State dismissed the burglary count and the defendants pleaded guilty to the felony theft counts. The Cass County circuit court sentenced the defendants to 18 months’ probation. As a condition of the probation, the circuit court ordered the defendants to serve 120 days in the county jail. The circuit court specifically ordered that the defendants were to receive credit for time served, but not for good behavior. The defendants now appeal the denial of credit for good behavior. The cases were consolidated because the same issue is presented.

The State did not file a brief on appeal. Accordingly, the standard of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, applies. Under this standard, the appellate court will decide the merits of an appeal where the record is simple and the issues are easy to resolve.

The credit of time for the good behavior of individuals sentenced to county jails is set forth in the County Jail Good Behavior Allowance Act (Act) (Ill. Rev. Stat. 1987, ch. 75, par. 32). The Act provides in pertinent part:

“The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment after January 1, 1987 shall entitle such person beginning on the date of sentence to a good behavior allowance ***. The good behavior allowance provided for in this Section shall not apply to individuals sentenced for a felony to probation *** where a condition of such probation *** is that the individual serve a sentence of periodic imprisonment ***.” Ill. Rev. Stat. 1987, ch. 75, par. 32.

The Act excludes credit for good behavior when a defendant is sentenced for a felony to probation, and as a condition of that probation, the defendant is ordered to serve a sentence of periodic imprisonment. Periodic imprisonment is not the equivalent of a fixed sentence of confinement.

Periodic imprisonment is defined in the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 7—1). The Code provides in pertinent part:

“A sentence of periodic imprisonment is a sentence of imprisonment during which the committed person may be released for periods of time during the day or night or for periods of days, or both, or if convicted of a felony *** committed to any county, municipal, or regional correctional or detention institution or facility in this State for such periods of time as the court may direct.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 7—1(a).

The circuit court ordered the defendants to serve 120 days in the county jail. As such, the order structured the sentence of imprisonment in terms of one continuous period of time. Given the structure, the sentence of imprisonment does not come within the definition of periodic imprisonment.

The appellate court has previously addressed the credit of time for good behavior under the Act. In In re N.R. (1988), 172 111. App. 3d 14, 525 N.E.2d 1193, a contemnor appealed a sentencing order that denied the credit of time for good behavior. The appellate court held the circuit court had no authority to deny the credit of time for good behavior. The appellate court stated:

“It is clear in enacting this Act, the legislature mandated that all persons sentenced to a county jail receive a good-time allowance, subject only to being revoked by the warden as permitted by statute. The courts have no authority to interfere with the allowance, and the court's attempt *** to do so is impermissible.” N.R., 172 Ill. App. 3d at 16, 525 N.E.2d at 1194.

The determination and imposition of the sentence is a matter of discretion for the circuit court. Absent an abuse of discretion, the sentence imposed by the circuit court will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In this case, the circuit court abused its discretion in the sentencing order. The circuit court erroneously applied the credit exclusion of the Act to deny the defendants the credit of time for good behavior. The exclusion provided in the Act does not apply to the sentence here.

This cause is remanded to allow the circuit court to amend the sentencing order and give the defendants the good behavior allowance to which they are entitled.

Sentence vacated and remanded with directions.

GREEN and SPITZ, JJ., concur.