author: JUSTICE HAASE

text:
    STEVEN FLOSI, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ROCK FALLS et al., DefendantsAppellees.
    Third District
    No. 3 — 90—0757
    Opinion filed October 4, 1991.
    — Rehearing denied November 18, 1991.
    Heckenkamp, Simhauser & LaBarre, P.C., of Springfield (Duane D. Young, of counsel), for appellant.
    Blodgett, Reese, Merritt & Albert, of Rock Falls, and Thomas F. McGuire & Associates, Ltd., of Long Grove (James L. Reese and Thomas F. McGuire, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Steven Flosi, filed a complaint for administrative review in the circuit court of Whiteside County seeking to set aside the decision of the defendant, the Board of Fire & Police Commissioners of the City of Rock Falls (Board), which had ordered that Flosi be discharged from the police department. The circuit court affirmed the Board’s decision. Flosi appeals. We reverse.

On November 12, 1987, the mayor of the City of Rock Falls, James Arduini, brought a complaint against Flosi alleging that he repeatedly and for no valid law enforcement purpose had contact with Patti Doyle, a person known to be illegally associated with or addicted to controlled substances. The complaint further alleged that Flosi’s conduct was “cause” for discharge from employment under section 10 — 2.1—17 of the Board of Fire and Police Commissioners Act (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17). It also alleged that his conduct was a violation of a provision of the City of Rock Falls police department manual which provides that an employee should not engage in conduct which impedes the department’s efforts to achieve its goals or brings discredit upon the department.

At the hearing before the Board on the mayor’s complaint, Illinois State Police Lieutenant Dave Reed testified that on March 24, 1987, Flosi told him that he was cultivating Doyle as a confidential source. At that time, Reed informed Flosi that Doyle had been arrested for a Class X drug offense. Prior to their conversation, Reed did not know that Flosi was intending to use Doyle as a confidential source.

Lieutenant Reed further testified that Doyle had a reputation in the community for using and selling cocaine. He also noted that she lived with Gary Stevens, who was known to sell cocaine.

According to Lieutenant Reed, police executed a search warrant at Doyle’s residence on March 23, 1987, discovering cocaine and drug paraphernalia. In September of 1987, Reed saw Flosi and Doyle together at a restaurant. Reed stated that his department would never deal with informants in public. He also noted that his department became reluctant to share information with the Rock Falls police department because of Flosi’s relationship with Doyle.

Whiteside County Sheriff Lester Kimmel testified that Doyle had an extensive criminal history involving drug offenses and retail theft. He further testified that she had a reputation for being involved with narcotics. Kimmel noted that the telephone log from the county jail showed that Doyle called Flosi on March 24, 1987, while she was incarcerated at the jail.

According to Kimmel, during the last week of March he had a meeting with the Whiteside County State’s Attorney, the Rock Falls chief of police, and Lieutenant Reed. At that meeting, Kimmel told the Rock Falls chief of police that he believed Flosi had breached standards of good police conduct with regard to his relationship with Doyle. Kimmel also told him that it was extremely difficult to have confidence in the Rock Falls police department while Flosi was carrying on a close relationship with a known substance abuser.

Whiteside County Sheriffs Department Sergeant Dennis Schantz testified that he arrested Doyle on March 23, 1987, at a Rock Falls tavern and then transported her to the Rock Falls police department. As they pulled into the parking lot of the station, Flosi met them. According to Schantz, when Doyle exited the squad car she began to cry and Flosi put his arm around her shoulder and told her everything would be alright. Shantz also stated that Flosi had told her that he knew this would happen.

Schantz further testified that Flosi took Doyle into his office where they remained for more than two hours. There, they sat side by side at a desk very close to each other. During that time, they each took turns using the phone, and at one point, Flosi was looking through a phone book. Schantz opined that Flosi had not handled the situation like a normal arrest. He explained that normally an arrestee is placed in a holding cell. He noted that he had suggested to Flosi that he place Doyle in a holding cell and Flosi responded that she was okay and was not going anywhere.

Rock Falls police officer Wesley Stern testified that Doyle was known as “snow queen” in the community. According to Stern, he and Officer Schantz arrested Doyle on March. 23, 1987. On the evening of her arrest, Flosi walked down a hallway at the police station with his arm around her back. Schantz intended to put Doyle in a jail cell, but Flosi told him that it was not necessary. Instead, Flosi and Doyle went into an interrogation room and talked. Doyle sat next to Flosi and put her head on his leg. Sometime later, Flosi took Doyle into his office where the two talked further. Stern noted that he was upset about the way Flosi was handling the situation. He also noted that he had not seen anything like it before.

Theresa Siedal, a Rock Falls police dispatcher, testified that during her shift from March 23, 1987, through September 23, 1987, Flosi received about 30 phone calls a week from Doyle. She estimated that the phone conversations generally lasted between 10 and 30 minutes.

Steven Flosi testified that he had been a Rock Falls police officer since 1968. He was eventually promoted to the rank of assistant chief of police. On October 7, 1987, Mayor James Arduini appointed Flosi acting chief of police when the former acting chief retired.

Flosi further testified that his first contact with Doyle in 1987 occurred on March 16. Prior to that time, he had not seen her since 1983. On the evening of March 23, 1987, he made a routine check at the police department. At that time, he discovered that a warrant was being executed at Doyle’s residence. When Doyle arrived at the police station following her arrest, Flosi read her the Miranda warnings and noted that she was intoxicated. They then sat next to each other at a conference table, and Doyle put her head on the table. After Flosi learned that a safe had been found at Doyle’s residence, he attempted to convince her to reveal the combination. He was successful and eventually the safe was opened.

Flosi also testified that during the course of their conversation, Doyle told him that Stevens operated a drug business at their residence. Upon hearing that, he decided that Doyle could be used as an informant if he properly cultivated a relationship with her. He stated that he had developed informants the same way he did Doyle on numerous occasions in the past. The method he used was to befriend a female informant suffering from psychological problems. In the process, he would attempt to gain information leading to the arrest of other suspects. Flosi identified numerous specific instances in which he had successfully used this method. Flosi noted that Doyle had sent him flowers on three occasions and had called him often at the police station. He explained that this showed that his efforts had been effective.

Flosi stated that sometime after March 23, 1987, he had a conversation with his supervisor, the Rock Falls chief of police, regarding the use of Doyle as an informant. As a result of that conversation, the police chief asked him to make written reports about his contacts with Doyle to advise the chief of what was happening. Flosi further stated that before May 1, 1987, there was no written policy establishing any procedure for dealing with informants. He also stated that he had not received any oral or written reprimand or complaint about his relationship with Doyle.

James Scacia, special agent for the Federal Bureau of Investigation, testified that he had worked with Flosi on various cases and that he trusted him. He further testified that “befriending” was a common method of cultivating an informant.

Carl Sommers testified that he was employed by the City of Rock Falls as chief of police from 1969 until his retirement in 1986. Sommers described Flosi’s work as exemplary, very good, and outstanding. He stated that Flosi’s loyalty to the department was never in question. He could not recall ever having to discipline Flosi. He further stated that he trusted Flosi’s ability to handle informants and never placed any limitations on him in that area.

Based on the foregoing evidence, the Board discharged Flosi from his position as a police officer. In so doing, the Board found, inter alia, that Flosi’s contacts with Doyle were not for valid law enforcement reasons.

On appeal, Flosi initially argues that the Board’s findings were against the manifest weight of the evidence.

As a preliminary matter, we note that the defendant, James Arduini, has filed a motion to dismiss Flosi’s appeal which we have taken with the case. The defendant contends that the record on appeal is inadequate and that Flosi failed to include a list of exhibits in his brief. We find, however, that the record and briefs are adequate to resolve the issue presented on appeal. Accordingly, we deny the defendant’s motion to dismiss the appeal.

Turning to the merits, we note that it is well settled that the scope of judicial inquiry of factual determinations made by an administrative agency is limited to determining whether the agency’s decision was contrary to the manifest weight of the evidence. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 449 N.E.2d 115; Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371.) While an agency’s findings are considered prima facie true and correct, they must be based upon facts established by competent evidence. (Savaglio v. Board of Fire & Police Commissioners (1984), 125 Ill. App. 3d 391, 465 N.E.2d 1065.) If the record does not disclose evidence supporting the agency’s determination, a reviewing court must not hesitate to grant relief. (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371; Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 420 N.E.2d 618.) In examining the record, the reviewing court must look at all evidence in opposition to the challenged finding as well as evidence which tends to support it. Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 420 N.E.2d 618.

After carefully scrutinizing the record in the instant case, we find that the Board’s decision to discharge Flosi was contrary to the manifest weight of the evidence. The circumstantial evidence presented fell short of proving wrongdoing on Flosi’s part. In particular, we find that the Board erroneously concluded that Flosi was not cultivating Doyle as an informant. The evidence did not establish that anything Flosi did regarding Doyle was illegal, immoral, or contrary to the established procedure of the Rock Falls police department. In so finding, we note that the whole area of how to properly deal with an informant is problematic and the record shows that the Rock Falls police department gave its officers considerable leeway in that area.

The Board cites DeGrazio v. Civil Service Comm’n (1964), 31 Ill. 2d 482, 202 N.E.2d 522, for the proposition that a police officer’s relationship with a person of ill-repute constitutes “cause” for discharge. In DeGrazio, the Illinois Supreme Court held that the discharge of a police lieutenant was proper based on the lieutenant’s trip to Europe with an underworld figure. In DeGrazio the police lieutenant had accompanied Anthony Accardo on a trip to Europe and the Illinois Supreme Court said “[i]t does not require an expert opinion to establish that the plaintiff’s trip with a person of Accardo’s reputation would reflect adversely on the police department and subject it to disgrace and ridicule.” (31 Ill. 2d at 489.) We are of the opinion that De-Grazio is distinguishable on its facts from the case at bar. In DeGrazio there was no suggestion of any valid police purpose in the trip that the officer made with Mr. Accardo. In the instant case, Flosi’s testimony that he was cultivating Doyle as an informant is unrebutted, and it is clear that superiors of Flosi were aware of the conduct and did nothing about it from March 24, 1987, until November 12, 1987. It is also clear that during the time between initial contact by Flosi with Doyle and the time that a complaint was filed herein, the mayor appointed Flosi acting chief of the department, certainly a position of great trust and confidence.

We also find that nothing presented at the hearing was inconsistent with Flosi’s contention that he was cultivating Doyle as an informant. Flosi testified that he had often befriended female suspects for the purpose of cultivating them as informants. He also gave several examples of how his past efforts had led to the arrest of other persons suspected of committing serious crimes. The fact that Flosi received numerous phone calls and on three occasions flowers from Doyle could be viewed as merely establishing that he had succeeded in cultivating an informant relationship with her.

We further note that Flosi had an unblemished record serving as a police officer for over 19 years without any incidents of discipline. The former chief of police described Flosi’s work as exemplary and noted that he had never placed any limitations on him in dealing with informants. It was undisputed that Flosi was never instructed as to how to deal with informants. Moreover, it was also undisputed that he was never reprimanded or instructed to change his relationship with Doyle, despite his filing regular, detailed reports describing his relationship with her. It appears that the first hint of disapproval of Flosi’s behavior by the City of Rock Falls did not occur until the mayor filed the instant complaint, which occurred only 35 days after the mayor had appointed Flosi acting chief of police. There is no indication in the record that Flosi was ever informed by his superiors that his conduct was inappropriate. We do not mean to say that a police officer has to have a verbal or written warning prior to disciplinary action being taken against him. However, on the facts of this case where superiors knew about the conduct for over 6V2 months prior to filing a complaint, and where they told Flosi to write reports about his activities, it seems that they acquiesced in and approved of his activities at that time. We also note that following the conduct alleged in the complaint, Flosi was promoted from acting assistant police chief to acting police chief. What events transpired to trigger the filing of the complaint on November 12 is unclear from the record. However, the record is abundantly clear that up until the filing of the complaint, Flosi’s conduct was being approved by his superiors. In our view, those responsible for Flosi’s police work acquiesced in and approved of his relationship with Doyle. Under the circumstances, we find that the Board’s decision discharging Flosi was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Whiteside County is hereby reversed and the Board of Fire and Police Commissioners of the City of Rock Falls, Illinois, and James Arduini, mayor of the City of Rock Falls, or his successor, are hereby ordered to reinstate Steven Flosi as a police officer for the City of Rock Falls police department at the rank that he held prior to being appointed as acting chief and, further, that Steven Flosi receive back pay since the time of his discharge and removal from the payroll of the City of Rock Falls.

Reversed.

SLATER and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE HALL, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 88—1653
    Opinion filed November 4, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Millicent Willis, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Lauren Ediden, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial, defendant Terrance Hall was convicted of robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1) and sentenced to three years in the Illinois Department of Corrections. On appeal, defendant contends that he was not admonished of his right to a jury trial and his conviction should be reversed and the cause remanded for a new trial.

On December 4, 1987, defendant appeared before the court on a motion to reduce his bond, represented by Assistant Public Defender Alan Eckstein. At that time, his motion was granted. The case was then passed and recalled. Later in the day, codefendants Louis .Ortiz, a/k/a Angel Ortiz, and Richard Renoldi were present in court and entered into agreements on the charges while represented by Martin Jordon. Renoldi pleaded guilty to burglary in exchange for four years’ probation. Ortiz pleaded guilty to armed robbery and received three years in prison in addition to one day’s probation for the offense of burglary. Prior to accepting these agreements, the trial court individually asked each codefendant if he understood what a jury is and if he understood that he was giving up his right to a jury as to these particular charges. Both codefendants admitted that they understood what rights they were giving up by pleading guilty. The record did not indicate whether defendant was present in the courtroom during the proceedings regarding these codefendants.

On January 12, 1988, defendant appeared before the court represented by Assistant Public Defender Andrew Sohn. At that time, the court granted defendant’s request for a pretrial investigation (PTI) and the State tendered its answer to discovery. On February 10, 1988, defendant appeared before the court, represented by Alan Eckstein, and the court continued the matter to February 23, 1988.

On February 23, 1988, Eckstein, in the presence of defendant, represented to the court that by agreement the parties wanted to set a date for a bench trial. The half-sheet indicated “bench trial” and showed a continuance of the matter to March 24, 1988.

On March 24, 1988, Alan Eckstein specifically represented to the court in the presence of defendant that “the defendant wishes to have a trial in this case.” The half-sheet indicated “bench” and the matter was continued to April 27, 1988.

On April 27, 1988, Alan Eckstein Stated, “Terrance Hall is before the court represented by Alan Eckstein, Assistant Public Defender. I ask leave of Court to tender and execute a jury waiver by submitting this matter to the court for trial.”

Then, defendant said:

“Your honor, I would like to be appointed to a bar association lawyer, because the Public Defender I had does not have the best of my interest in heart concerning my case, and after six or seven months of being incarcerated and fighting this here case during the rest of the day I was placed in the line up and I had no document saying I was — the victim says she could not identify me. And after seven months of being incarcerated, fighting this case, here it is in your courtroom and the victim is here to identify me when that’s a violation of my Constitutional rights.”

The court concluded:

“All right. The record will reflect that this matter was assigned to me November 30, 1987. It’s been up before this Court since that date seven times. Your motion is denied. A plea of not guilty, jury waiver. Proceed. Any opening statements by the state?”

In the record is a jury waiver signed by defendant dated April 27, 1988, and the half-sheet notation indicating “jury waived” and dated April 27, 1988.

Defendant contends that there was nothing in the record to demonstrate that he understandingly waived his right to a trial by jury in open court because the record was devoid of an admonishment. Before addressing the merits of the issue, we first comment on the State’s contention that defendant waived his right to raise this issue because he did not raise the issue in a motion for a new trial. A reviewing court may consider defects affecting substantial rights although they were not brought to the attention of the trial court. (134 Ill. 2d R. 615(a); People v. Smith (1985), 106 Ill. 2d 327, 333, 478 N.E.2d 357, 360.) Therefore, we elect to review the validity of defendant’s jury waiver.

It is generally understood that a jury waiver must be knowingly and understanding^ made. (Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360.) A determination cannot rest on any precise formula and necessarily turns on the facts and circumstances of each particular case. (People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197.) Courts have routinely held that where the defendant’s attorney expressly advised the court of defendant’s choice to proceed by bench trial in defendant’s presence without objection from defendant, a valid jury waiver may be found based on defendant’s acquiescence. However, we do not believe that a defendant can be held to have acquiesced to his counsel’s waiver made outside his presence. People v. Clauson (1989), 182 Ill. App. 3d 268, 274, 537 N.E.2d 1048, 1052.

The supreme court in People v. Murrell (1975), 60 Ill. 2d 287, 290, 326 N.E.2d 762, 764, stated:

“In each of these cases now under consideration the waiver of the right to jury trial was not presumed, nor is the record silent on the question of waiver. *** The record is only silent as to the defendant’s knowledge and intent.”

Unlike Murrell, the record here is silent as to whether defendant was aware that proceeding to a bench trial meant foregoing a jury trial. The record shows that although defendant may have been present when counsel tendered his jury waiver, there is no evidence that he made a knowing and understanding jury waiver. Defendant’s case was up before the court many times before trial, but the record never indicates whether defendant was ever personally admonished of his right to a jury trial.

Defendant was represented by various assistant public defenders during the course of this litigation, and there is no indication defendant ever understood the consequences of a jury waiver. When counsel submitted the written jury waiver, defendant voiced his objection to counsel representing him. Although he did not directly object to the written jury waiver, he expressed his grave concern about counsel representing his interests. The trial court at that point could have admonished defendant about his right to a jury trial, but the court did not. There is no evidence when, where or which assistant public defender discussed the jury waiver issue with defendant. The right to a jury trial is a substantial right, and based upon the facts and circumstances here, we find that the trial court erred in proceeding with a bench trial. See Clauson, 182 Ill. App. 3d 268, 537 N.E.2d 1048.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RENE MENDEZ, Petitioner-Appellant.
    First District (2nd Division)
    No. 1 — 89—2620
    Opinion filed November 5, 1991.

      Daniel J. Stohr, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner, Rene Mendez, was convicted by a jury of murder and attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a), 8 — 4(a)) and sentenced to concurrent terms of 35 and 15 years in custody of the Department of Corrections. His conviction was affirmed on January 14, 1986, in an unpublished Rule 23 order. (See People v. Trinidad (1st Dist. 1986), No. 1 — 84—2255 (unpublished order under Supreme Court Rule 23).) On July 23, 1987, he filed a petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.), which sought an evidentiary hearing. The circuit court dismissed the petition, concluding that there was insufficient evidence to warrant an evidentiary hearing. This appeal followed. Petitioner argues here that (1) his trial and appellate counsel provided ineffective assistance; (2) he was denied a fair trial due to the admission of evidence of his gang affiliation; and (3) he was prejudiced by an improper instruction for attempted murder.

The evidence adduced at trial revealed that on October 21, 1983, shortly after 10 p.m., several men were gathered on South Hermitage in Chicago when a car sped around a corner and proceeded toward them. As the car approached, one of the group shouted “Souls.” Shots were fired from inside the car, killing one man and wounding another, and the car drove away.

Four members of the group testified at trial. Two of them, Daniel Gomez and Mario Garcia, gave eyewitness accounts of the incident, having seen the car and the shooters; they identified petitioner in court and had previously identified him from both a photographic array and a lineup. The other two occurrence witnesses substantially corroborated the testimony regarding the shots fired from the passing car.

Chicago police detective Wayne Drish testified that codefendant Henry Trinidad made a post-arrest statement in which he explained that earlier on October 21, 1983, he and Ricardo Rodriguez (Kiki) were in a car when a man on the street flashed a gang sign at them. The man ultimately shot at the car, wounding Kiki. Chicago police detective David Jarmusz, a gang crimes specialist, testified over objection that two rival gangs, the Latin Souls and the Latin Saints, existed in the area of the shooting. Petitioner and Kiki were both members of the Latin Souls. The individuals in the group fired upon belonged to an organization known as the “D-Boys.”

The issue raised in this appeal is whether the circuit court erred in dismissing petitioner’s post-conviction petition without an evidentiary hearing.

A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment, the scope of which is limited to issues which have not been, and could not have been, previously adjudicated. (People v. Owens (1989), 129 Ill. 2d 303, 307-08, 544 N.E.2d 276.) To secure an evidentiary hearing, petitioner must make a substantial showing that his constitutional rights were violated and the record or accompanying affidavits support the allegations in the petition. (Owens, 129 Ill. 2d at 308.) All well-pleaded facts in the petition and accompanying affidavits are to be taken as true. (People v. Caballero (1989), 126 Ill. 2d 248, 259, 533 N.E.2d 1089.) Denial of an evidentiary hearing on a post-conviction petition will not be reversed absent an abuse of discretion. People v. Barr (1990), 200 Ill. App. 3d 1077, 1081, 558 N.E.2d 778.

I

Petitioner claims that he is entitled to a hearing because he was deprived of his right to effective assistance of counsel during his trial and direct appeal.

In a post-conviction proceeding, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived. (People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631.) Petitioner’s arguments regarding trial counsel’s representation were matters of record which could have been raised on direct appeal. These issues, therefore, have been waived. See People v. Jones (1985), 109 Ill. 2d 19, 24, 485 N.E.2d 363.

Petitioner argues, nevertheless, that his trial counsel’s joint representation of him and codefendant Trinidad was prejudicial in that it constituted a conflict of interest.

Ineffective assistance of counsel is established by showing that counsel’s performance fell below an objective standard of reasonableness, and that but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68.) Joint representation of codefendants is not a per se violation of the right to effective assistance of counsel. (People v. Howard (1988), 166 Ill. App. 3d 328, 332, 519 N.E.2d 982.) Generally, defendants who are jointly indicted are to be tried jointly unless a separate trial is necessary to avoid prejudice to one of them. (People v. Olinger (1986), 112 Ill. 2d 324, 345, 493 N.E.2d 579.) Prejudice occurs in two recognized situations: first, when a hearsay admission of a codefendant implicates the other defendant, and second, when codefendants’ defenses are so antagonistic that a severance is necessary to assure a fair trial. Olinger, 112 Ill. 2d at 345-46; People v. Lee (1981), 87 Ill. 2d 182, 187-88, 429 N.E.2d 461.

Petitioner at bar has alleged neither of the traditional forms of prejudice. Neither petitioner nor Trinidad testified or accused each other of participation in the crime. Their defenses were each based upon the State’s inability to establish their identification beyond a reasonable doubt. Petitioner makes only general allegations of prejudice and relies upon People v. Horton (1979), 73 Ill. App. 3d 9, 391 N.E.2d 498. Horton did not involve joint representation of codefendants, but held that defendant was denied effective assistance of counsel because his trial counsel had acted previously as an assistant State’s Attorney in defendant’s case. (Horton, 73 Ill. App. 3d at 15.) Nor did United States ex rel. Tonaldi v. Elrod (7th Cir. 1983), 716 E2d 431, hold that joint representation of codefendants is inconsistent with minimum standards of competent representation. That case reversed the district court’s grant of habeas corpus relief, holding in part that the petitioner was aware of his attorney’s possible conflict of interest and knowingly and intelligently waived his right to counsel free from such conflict. Elrod, 716 F.2d at 437-39.

In this case, petitioner has not shown that an actual conflict of interest existed at trial. (See Howard, 166 Ill. App. 3d at 333-35.) Further, neither petitioner nor Trinidad ever filed a motion for severance prior to trial. Even if not waived, therefore, petitioner’s argument would fail because his defense counsel was not acting under a conflict of interest.

Petitioner’s trial counsel was not ineffective for failing to locate and interview alibi witnesses. (See People v. Stepheny (1970), 46 Ill. 2d 153, 158-59, 263 N.E.2d 83.) In such a case, petitioner must attach to his post-conviction petition affidavits showing the potential testimony of those witnesses and explaining its significance. (Barr, 200 Ill. App. 3d at 1080.) Here, petitioner submitted his own affidavit, which attested to the truth of the contents of his petition. He also attached a copy of his amended answer to the State’s motion for discovery, which stated that petitioner was with three named alibi witnesses at the time of the shooting. Without affidavits of the witnesses themselves, however, there is no evidence to support petitioner’s allegations. (See Barr, 200 Ill. App. 3d at 1080; People v. Smith (1985), 136 Ill. App. 3d 300, 302, 483 N.E.2d 655.) Further, petitioner’s counsel indicated that he was unable to locate any of the three witnesses. The conclusional statements in the petition, therefore, do not merit an evidentiary hearing.

Petitioner also argues that his trial counsel failed to contest evidence of his gang affiliation, object to an improper instruction for attempted murder, and suppress a prior statement made by petitioner. These arguments are meritless. The issues regarding petitioner’s gang affiliation, as will be shown, are res judicata; even if they are not, the evidence adduced was properly admitted. The failure to object to the improper attempted murder instruction does not establish a reasonable probability that the result of petitioner’s trial would have been different. Also, the decision to file a motion to suppress is a matter of trial tactics, which seldom have any bearing on issues of incompetency of counsel. (People v. Purnell (1984), 126 Ill. App. 3d 608, 624, 467 N.E.2d 1160.) Petitioner has not shown that such a motion would have been granted, nor that the outcome would have differed had it been granted. (See Purnell, 126 Ill. App. 3d at 624.) Finally, counsel’s representation was not deficient at sentencing; he argued for the minimum sentence based upon petitioner’s youth and status as a student. Even if we were to consider petitioner’s arguments as not waived, he has failed to demonstrate ineffectiveness based on the totality of his trial counsel’s representation.

Petitioner also contends that his appellate counsel was ineffective for failing to raise the aforementioned points on direct appeal. This issue is not waived, as the alleged appellate errors were not matters of record; petitioner’s arguments, however, must fail. Not every conceivable trial issue must be raised on appeal, and appellate lawyers often limit their presentations accordingly. (People v. Ruiz (1989), 132 Ill. 2d 1, 18, 547 N.E.2d 170.) It is not incompetence to refrain from raising an issue counsel believes to be without merit, unless his appraisal of the merits is clearly wrong. (People v. Adams (1987), 164 Ill. App. 3d 742, 747, 518 N.E.2d 266, appeal denied (1988), 119 Ill. 2d 560.) In order to support a claim of incompetence of appellate counsel in a post-conviction proceeding, petitioner must establish substantial prejudice which likely affected the outcome of his case. (Adams, 164 Ill. App. 3d at 747.) On direct appeal, counsel argued that the admission of gang evidence was improper, and petitioner and Trinidad were not proved guilty beyond a reasonable doubt. The issues which petitioner argues should have been raised are without merit, and the failure to present them did not result in substantial prejudice. Appellate counsel was not ineffective.

II

Petitioner next argues that he was prejudiced by the admission of evidence of his gang affiliation.

On direct appeal, it was held that evidence of petitioner’s gang affiliation, although prejudicial, was relevant to establish a motive for the shooting, and, therefore, admissible. (See People v. Trinidad (1st Dist. 1986), No. 1 — 84—2255 (unpublished order under Supreme Court Rule 23).) Petitioner now presents several arguments as to why the evidence of his gang involvement was prejudicial. These issues, however, are res judicata, since the admissibility of the gang evidence was decided on direct appeal. Although petitioner did not raise the exact contentions in his prior appeal, he “cannot obtain relief under the Post-Conviction Hearing Act by ‘rephrasing previously addressed issues in constitutional terms’ in his petition.” People v. Silagy (1987), 116 Ill. 2d 357, 371, 507 N.E.2d 830, quoting People v. Gaines (1984), 105 Ill. 2d 79, 90, 473 N.E.2d 868.

Were we to consider these arguments, they would fail on their merits. He first claims that the testimony of Detective Jarmusz constituted expert testimony, which was admitted without a proper foundation. Jarmusz identified himself as a “gang crime specialist” with three years of experience in the Gang Crimes South Unit. He testified that he was familiar with the gangs within his district. Two rival gangs existed in the area of the shooting; petitioner was a member of one of them. Jarmusz’s testimony was based upon his personal knowledge of the area in which the drive-by shooting occurred and his experience with various gangs. His testimony was properly admitted. See People v. Buchanan (1991), 211 Ill. App. 3d 305, 318-21, 570 N.E.2d 344; People v. Calderon (1981), 98 Ill. App. 3d 657, 661, 424 N.E.2d 671.

Petitioner next contends that his statement to Jarmusz regarding his gang affiliation was admitted improperly for want of foundation. Petitioner’s statement, however, was made in March 1983, approximately seven months prior to the shooting, apparently in connection with an unrelated incident. There is no indication in the record that petitioner was in police custody when he made this statement. Petitioner’s argument, therefore, is misplaced, and the statement was properly allowed. See Buchanan, 211 Ill. App. 3d at 320-21.

Petitioner claims Trinidad’s statement was admitted improperly because it was an extrajudicial statement by a codefendant being used against petitioner and it lacked proper foundation, relying upon People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423. There, testimony was admitted concerning statements made by the nontestifying codefendant. Defendant, whose first name was William, was implicated by a statement which referred to “Bill.” The supreme court held admission of that statement improper because it was not redacted. References to defendant were not anonymous and, therefore, served to inculpate defendant. Duncan, 124 Ill. 2d at 407-09.

People v. Harris (1990), 204 Ill. App. 3d 491, 561 N.E.2d 1361, is more analogous to the case at bar. There, defendant contested the admission of an officer’s testimony that a codefendant had made a confession. The testimony was held properly admitted because the text of codefendant’s confession was never presented, the State did not use the confession as evidence against defendant, and the officer never explicitly stated that defendant was implicated by the confession. Defendant’s conviction was based on his own confession and eyewitness testimony. Further, the absence of a limiting instruction was not error because the confession in no way prejudiced defendant. Harris, 204 Ill. App. 3d at 497-98.

Here, Jarmusz testified that after his arrest, Trinidad stated that prior to the drive-by shooting, he saw a man flash a gang sign and fire upon the car in which he and Kiki were riding. One shot struck Kiki. Trinidad never mentioned petitioner in his statement and did not implicate him in any way. The statement was not a confession of either petitioner’s or Trinidad’s participation in the drive-by shooting. Further, the State did not argue that Trinidad’s statement was direct evidence of petitioner’s guilt. Petitioner was convicted based on eyewitness testimony. The statement was presented in order to establish a motive for the drive-by shooting in this case. Under the State’s theory, petitioner and Trinidad fired upon the group in retaliation for the shooting of their fellow gang member, Kiki. Although this evidence may be prejudicial to petitioner, it is relevant and admissible on that basis. See People v. Rivera (1986), 145 Ill. App. 3d 609, 618, 495 N.E.2d 1088; People v. Deacon (1985), 130 Ill. App. 3d 280, 291, 473 N.E.2d 1354.

Petitioner contests evidence of a prior altercation between him and an occurrence witness, Raphael Moreno. Daniel Gomez testified that several weeks prior to the shooting, petitioner had argued with Moreno, and Gomez had seen petitioner flash a gang sign representing “Souls.” Gomez proffered this testimony in response to an inquiry of whether he had ever seen petitioner previous to the incident in question. Although the evidence may have been prejudicial, it was relevant to show petitioner’s gang affiliation, which in turn established his intent or motive. See Buchanan, 211 Ill. App. 3d at 321.

Even if petitioner was not barred by res judicata, his arguments relating to the admission of gang evidence would not entitle him to an evidentiary hearing.

Ill

Petitioner claims that the instructions given for attempted murder were improper and deprived him of due process. The relevant instructions defined attempted murder as taking a substantial step toward murder, and murder was defined as causing death with the intent to kill or do great bodily harm.

Attempted murder requires proof of petitioner’s specific intent to kill the victim. (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28.) An instruction which provides for a conviction of attempted murder based on intent to do great bodily harm is reversible error. (See, e.g., Harris, 72 Ill. 2d at 27-28.) The giving of a defective instruction, however, does not constitute the denial of a constitutional right cognizable under the Post-Conviction Hearing Act. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331.) Petitioner, therefore, may not assert this argument in support of his petition. Further, petitioner failed to object to this instruction at the instruction conference and at trial, and the matter was raised neither in his post-trial motion nor on direct appeal. He has waived consideration of this issue.

The waiver rule is relaxed, however, if the interests of justice require; this exception will be invoked to correct grave errors or where the evidence is so close that fundamental fairness requires proper jury instructions. (People v. Stevenson (1990), 198 Ill. App. 3d 376, 382, 555 N.E.2d 1074.) The evidence in the present case was not closely balanced. Petitioner was positively identified by two eyewitnesses who saw him point a gun at a crowd of men and fire several shots. The two witnesses had previously seen petitioner and knew of his gang affiliation. One who fires a gun at or toward another with malice or total disregard for human life may be convicted of attempted murder. (People v. Starks (1989), 190 Ill. App. 3d 503, 510, 546 N.E.2d 71.) Evidence of petitioner’s intent to kill was clear, and any error committed was harmless. (See People v. Page (1987), 163 Ill. App. 3d 959, 972, 516 N.E.2d 1371, appeal denied (1988), 119 Ill. 2d 569; People v. Cloyd (1987), 152 Ill. App. 3d 50, 56, 504 N.E.2d 126.) The waiver rule, therefore, need not be relaxed in this case.

Petitioner has failed to make a substantial showing that his constitutional rights were violated at trial. The circuit court, therefore, did not abuse its discretion in denying him an evidentiary hearing on his petition.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.

      Petitioner’s direct appeal, number 1 — 84—2317, was consolidated with the direct appeal of codefendant Henry Trinidad.


author: PRESIDING JUSTICE LORENZ

text:
    4300 MARINE DRIVE CONDOMINIUM ASSOCIATION, Plaintiff-Appellee and Cross-Appellant, v. JEANNE TENENBLATT et al., Defendants-Appellants and Cross-Appellees (Lenore Tenenblatt, Intervenor).
    First District (5th Division)
    No. 1 — 89—2326
    Opinion filed September 30, 1991.
    — Modified on denial of rehearing December 13, 1991.

      Robert D. Kreisman and Thomas R Beyer, both of Chicago, for appellants.
    Steinberg & Steinberg, Ltd., of Chicago (Charles M. Steinberg and Frances S. Steinberg, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendants appeal from the trial court’s order granting plaintiff attorney fees incurred prosecuting tenant’s (Jeanne Tenenblatt’s) defaults under a declaration of condominium agreement. Plaintiff cross-appeals from a subsequent order denying supplemental attorney fees for counsel’s appellate level and subsequent trial level work. On appeal, we consider (1) whether the trial court erred in granting plaintiff attorney fees for prosecuting tenant’s defaults and for contesting opposing counsel’s unfounded objections to their fee petition; and (2) whether the trial court erred in denying supplemental attorney fees to plaintiff for defending a premature appeal; for completing trial level work after the premature appeal; for preparing motions to disqualify the defendants’ counsel and for sanctions; and for interest on the recoverable fees.

We affirm in part, reverse in part, and remand.

The record in this case, consisting of transcripts from over 21 court hearings and over 800 pages of motions, addresses essentially one issue — attorney fees. We find this fact peculiarly disturbing given that the underlying complaint involved a claim against an elderly woman for less than $1,000. Therefore, we reluctantly set forth a lengthy statement of facts.

In late 1986, Jeanne Tenenblatt, a woman over 70 years of age with an estate valued over $1 million, owned and occupied a unit in the 4300 Marine Drive Condominium in Chicago. Specifically, Tenenblatt was the trustee of her self-trust dated July 21, 1983, which held title to the unit. The trust agreement designated the Northern Trust Company as successor trustee in the event Tenenblatt became incapacitated. The Northern Trust Company also held a mortgage on the unit.

The 4300 Marine Drive Condominium Association (Association) began receiving complaints that Tenenblatt was engaging in tortious conduct which included thefts from neighbors and a physical assault on the doorman. The police contacted Tenenblatt’s daughter, Lenore, in Boston urging her to obtain psychiatric care for her mother but Lenore would not agree.

During this time, Tenenblatt also failed to pay three months of fee assessments on her condominium unit. The Association brought an action in forcible entry and detainer. Tenenblatt appeared in court and attempted to justify her behavior. The court, after strongly recommending that Tenenblatt obtain an attorney, scheduled a hearing for the next week. Tenenblatt appeared again without an attorney, and the court entered judgment for the Association, including $550 in attorney fees plus $40 in costs. However, Lenore partially satisfied the judgment before expiration of the stay on enforcement, thus entitling Tenenblatt to remain in possession of the unit.

Tenenblatt’s misbehavior continued. The Association contacted various social welfare agencies but was unable to gain assistance without the participation of an immediate family member. Lenore continually refused to participate. The Association also employed counsel (Steinberg & Steinberg) to pursue the remedies under the declaration of condominium agreement. Accordingly, the Association notified Tenenblatt that it intended to terminate her rights to occupy, use or control the unit. The Association then filed the instant complaint, in equity, naming as defendants Jeanne Tenenblatt, individually and as trustee to the unit; the Northern Trust Company as mortgagee; the Cook County registrar of titles; and other various parties who it was thought might have a property interest in the unit. However, the complaint did not name as a defendant the Northern Trust Company as successor trustee under Tenenblatt’s trust agreement.

Count I sought an injunction against Tenenblatt’s tortious conduct and either possession of the unit or a decree for a judicial sale. Count II sought a foreclosure lien for the unpaid assessment fees ($992) and for attorney fees and costs.

After the named defendants failed to appear or otherwise plead, the trial court entered a default order on June 16, 1987. The matter was continued to June 23 for a prove up hearing on attorney fees.

Tenenblatt also failed to appear at the June 23 prove up hearing. The court, nonetheless, heard 11 witnesses and received substantial evidence concerning Tenenblatt’s tortious conduct and the Association’s attorney fees incurred responding to the problem. The Association also moved the court to enter a preliminary injunction or temporary restraining order against Tenenblatt during the pendency of the case. The trial court decided to appoint a guardian ad litem and if possible to compel the family to institute permanent guardianship. The court ordered the Association to contact Lenore again.

On August 23 Lenore personally appeared before the court and the court entered a mandatory injunction requiring her to petition for guardianship. Lenore’s counsel (Kreisman & Rakich) filed a petition in the probate court. Kreisman & Rakich utilized the evidence from the June 23 prove up hearing in support of the guardianship. The probate court declared Jeanne Tenenblatt disabled; appointed Lenore guardian of Tenenblatt’s person; and appointed Thomas Beyer, an attorney with Kreisman & Rakich, temporary guardian of her estate. Pursuant to his representation as guardian, Beyer petitioned the court several times during the pendency of the litigation for attorney fees to be paid out of Tenenblatt’s estate.

Tenenblatt was removed from her condominium unit and placed under institutional care. Attorney-guardian Beyer tendered payment for the outstanding $992 assessment fees which the Association accepted. However, Beyer refused to discharge the Association’s claim for attorney fees and employed his law firm, Kreisman & Rakich, to provide legal opposition.

On September 15, 1987, Beyer successfully moved to vacate the June 16, 1987, order of default. As part of the court order, the parties expressly agreed that “said temporary guardian and the [Association] stipulate that in moving to vacate the order of default the temporary guardian does not contest the evidence presented in the prove up of June 23, 1987, which shall remain undisturbed, and further disclosing that said temporary guardian [sic] relied upon said evidence in [the guardianship proceedings].” However, defense counsel stated in open court: “We don’t mean to overturn anything that transpired at the prove up, although for the record of course and to preserve my client’s rights, this is not a stipulation with respect to the legal significance of the evidence that was adduced at the prove up.”

Thereafter, the court granted the Association leave to file a “Motion for Partial Summary Judgment as to Attorney Fees and Costs.” Attached to the motion was a fee petition itemizing a total of $14,389 incurred in attorney fees and $1,276 in costs. In support of its rights to the fees, the Association cited article 20 of the declaration of condominium agreement and the Illinois Condominium Property Act (Ill. Rev. Stat. 1987, ch. 30, par. 301 et seq.) (Condominium Act). The court and the attorneys agreed to delay the next hearing date in hope that the issue of attorney fees might be settled.

Beyer’s settlement offer of “33 cents on the dollar” was flatly rejected, and the parties appeared before the court again on February 8, 1988. Beyer argued that the Association’s claims under the complaint were moot because the $992 had been paid and Tenenblatt had been removed from her condominium unit. The court responded:

“Now if there is a question of fees here, this court will hear it. I am not going to sidestep it. You might as well face it openly.”

The court directed Beyer to file a response to the Association’s motion for partial summary judgment as to fees.

Subsequently, the trial court presided over four days of hearings on the issue of attorney fees. At the third hearing, the Association filed a supplemental fee affidavit of attorney Frances Steinberg covering fees incurred since the date of filing the motion for partial summary judgment. The court initially ruled that the affidavit was inadmissible as “fees on fees,” but after considerable argument, the court decided to take the issue under advisement. At the fourth hearing, attorney-guardian Beyer objected that because the affidavit was “never noticed up for hearing,” he did not have time to respond; he also complained that he did not have an opportunity to cross-examine Frances Steinberg. The record reflects, however, that Beyer was provided with copies of the affidavit in advance of the third hearing.

At any rate, over the course of the four hearings Beyer objected to and attacked over 250 of the 331 total itemized fees. In light of Beyer’s objections, the trial court added:

“[Tjhere were times here in this case the Court was constrained and was considering the possibility of a 2 — 611 against the defendant as a result of some of the issues raised by the defendant which this Court felt were completely unjustified.”

The trial court then entered the June 23, 1988, order which forms, in first part, the basis for this appeal. The order found that Tenenblatt in fact committed numerous tortious acts; that Tenenblatt was adjudicated incompetent; that the institution of the guardianship matter was the proximate result of the prosecution of the instant proceeding; that the appointment of the guardian and removal of Tenenblatt from the unit rendered the granting of further equitable relief under count I unnecessary; that prior to Tenenblatt’s removal from her condominium the Association incurred reasonable attorney fees in the amount of $14,321 plus $1,418 in costs; that under both the declaration of condominium agreement and the Condominium Act Tenenblatt was liable for those attorney fees plus costs and that any unpaid amount constituted a lien against the unit; that after the guardian was appointed and Tenenblatt was removed from the unit, the Association incurred an additional $6,948 in attorney fees contesting the “unfounded objections” of the guardian to the fee petition and adjudicating the amount of the Association’s lien; and, finally, that “the greater weight of proof of the evidence in connection with fees” is in favor of the Association “as to the reasonableness.” Thus, it was ordered that the Association had a lien for the total amount of fees and costs and if the lien was not discharged within 30 days the Association would be entitled to the entry of a decree of foreclosure and sale. The matter was continued to July 21 for a hearing on the entry of the decree of foreclosure and sale.

After the order was entered, the Association sent Beyer a letter stating “if you do not timely avail yourself to the opportunity to correct your objection [to the supplemental fee affidavit] we will move to rectify your objection.” The letter also stated “[i]n the interest of once and for all ending this matter and the ongoing, continuing liability of the Tenenblatt estate for the Association’s attorney fees, we are willing to waive any further attorney fee claims if you will conclude this matter with us by Monday, July 11.”

Thus, by July 1988, it appeared that this already excessive litigation over less than $1,000 would finally terminate. Such was not the case. As the following shows, the parties perpetuated the litigation for yet another year.

Without responding to the letter and before the scheduled July 21 hearing date, Beyer filed a notice of appeal divesting the trial court of jurisdiction. The Association, believing that the notice of appeal was premature, filed motions in the trial court to perfect the record thereby showing that the affidavit was technically admitted into evidence; to afford Beyer the opportunity to cross-examine Frances Steinberg or to determine that such examination was waived; for supplemental attorney fees incurred after the June 23, 1988, order; and for sanctions. The Association also requested the court to enter the decree of foreclosure and sale pursuant to the June 23, 1988, order. The parties appeared before the trial court, but Beyer refused to withdraw the notice of appeal, thereby preventing the Association’s motions from being heard and a final and appealable order entered. Nonetheless, the trial court granted defendant’s motion to set appeal bond.

The Association filed a motion in the appellate court to dismiss the appeal and for sanctions pursuant to the rules governing appeals. Beyer argued that the appeal was taken in good faith because the trial court had stated in open court during the hearings “I will give you plenty [sic] so that you can take it up on appeal.” The appellate court entered an order dismissing the appeal but denied without prejudice the request for sanctions.

The Association then filed another motion in the trial court to reset the motions pending prior to the premature appeal. In responding, Beyer failed to pursue his opportunity to cross-examine Frances Steinberg on the issue of the supplemental fee affidavit. The Association then filed yet another supplemental fee affidavit for fees incurred defending the premature appeal. The trial court delayed scheduling a hearing on the issue of sanctions in light of the advent of Supreme Court Rule 137 (134 Ill. 2d R. 137).

On October 1, 1988, Northern Trust Company (Northern), in view of Tenenblatt’s disability, accepted its appointment as successor trustee to the unit. Northern did not, however, file an appearance in the instant proceeding and also failed to respond to the Association’s letters notifying it of its interest in the litigation. On December 6 the trial court directed that a summons be issued to defendant Northern as successor trustee. On February 1, 1989, Kreisman & Rakich appeared for the first time on behalf of substitute defendant Northern as successor trustee.

Also on February 1, Northern as mortgagee filed its appearance and moved to vacate the default entered against it. The motion stated that Northern was “interested in preserving its security interest” in the unit and that because the Association knew about the security interest it would not be prejudiced by an order vacating the default. The court granted the motion.

In addition, Northern as mortgagee filed a counterclaim to protect its security interest. Although the counterclaim named the Association as counterdefendant, the claim sought a “judgment against Jeanne Tenenblatt, her assigns or successors in the amount of $15,929 plus interest.” The Association responded by filing a motion to disqualify Kreisman & Rakich. The motion argued that a conflict of interest existed by virtue of (1) Kreisman & Rakich’s representation of both Northern as mortgagee (lender) and Northern as successor trustee (borrower), and (2) its request for judgment in favor of Northern as mortgagee and against Jeanne Tenenblatt, her assigns or successors. The Association also alleged that, as a further result of the conflict of interest, Kreisman & Rakich failed to communicate its settlement offers to the defendants. Kreisman & Rakich filed a response denying any conflict of interest in its concurrent representation of a total of four defendants.

On February 1, 1989, -with the Association’s decree of foreclosure motion still pending, defendants Northern as successor trustee and Beyer as guardian moved for leave to privately sell the unit, release the lis pendens, and substitute part of the sale proceeds as cash collateral in an amount to be determined by the court. The Association objected but the court granted the motion. The unit was sold, and the court required $60,000 to be deposited with the court. Northern’s mortgage was also satisfied with another portion of the proceeds.

Notwithstanding the involvement of Northern as successor trustee in the private sale of the unit, Kreisman & Rakich next insisted on filing a motion to dismiss said defendant on the ground that the original complaint did not name Northern as successor trustee and that the allegations of the complaint were moot to said defendant. The court directed the Association to amend the complaint to explain the liability of Northern as successor trustee.

On April 17, 1989, the trial court heard the motion to disqualify Kreisman & Rakich. After lengthy arguments, the court denied the motion. The matter had been reported to and investigated by the Attorney Registration and Discipline Commission, but as a result of the denial order, the investigation was closed. In regard to the sanctions, the court indicated its reluctance to award fees as sanctions and continued the matter.

On May 8, 1989, the Association filed the amended complaint naming as a defendant Northern as successor trustee. The amended complaint again requested the court to foreclose its lien. In the event the $60,000 deposited with the court was insufficient to satisfy the lien, the amended complaint requested a deficiency judgment against the statutory unit owner. Not surprisingly, the Association filed a “Supplemental Cumulative Fee Affidavit” for the period June 21, 1988, through June 13, 1989.

Finally, oil August 14, 1989, the trial court entered a seven-page “Memorandum, Opinion and Order” which forms, in second part, the basis for this appeal. The order first addresses the Association’s request for supplemental attorney fees categorized by the court as follows:

“A. The [Association’s] defending of attorneys Kreisman & Rakich’s appeal of the matter.
B. The [Association’s] work completed on the trial level for the period of June 21,1988 through June 13,1989.
C. The [Association’s] preparation of a motion to disqualify Kreisman & Rakich as attorneys in the case and to seek Section 2 — 611/Rule 137 sanctions against the same and/or the guardian.”

The order, citing Rosinia v. Brown (1963), 42 Ill. App. 2d 424, 192 N.E.2d 443, denied the fees under category “A” on the ground that the Association did not demonstrate to the court that the premature appeal was taken in bad faith or taken to delay the trial proceedings. The order, citing Caruso v. Board of Trustees (1984), 129 Ill. App. 3d 1083, 473 N.E.2d 417, denied the fees under category “B” on the ground that Illinois courts have long prohibited “fees on fees.” The order, citing Caruso again, denied the fees under category “C” on the ground that because the motions for sanctions and to disqualify Kreisman & Rakich were denied, the Association was not entitled to fees for arguing those motions.

Because the Association was entitled to fees pursuant only to the June 23, 1988, order, Northern as successor trustee was dismissed on the ground that a new party may not assume liability for any awards made prior to its becoming a party to the suit. The August 14, 1989, order also granted Beyer’s motion to vacate the lis pendens and denied the Association’s request that the trial court retain jurisdiction to rule on the awarding of future fees. Finally, the order provided that the fees granted in the June 23, 1988, order be satisfied out of the $60,000 on deposit in the court and the balance be delivered to Tenenblatt or her guardian. However, the order denied interest on all of the recoverable fees from the June 23, 1988, order.

Defendants filed a notice of appeal contesting the June 23, 1988, order and plaintiff filed a notice of appeal contesting the August 14, 1989, memorandum, opinion and order.

Opinion

We begin by again expressing our displeasure with this case. After Tenenblatt was removed from the condominium unit and the outstanding assessment fees paid, the attorneys perpetuated this litigation for an additional two years all at the great expense of Tenenblatt’s estate and the court’s time. We cannot help but consider that if Tenenblatt’s estate did not have over $1 million in assets, this case would have been disposed of without delay.

As to the legal issues raised on appeal, we find no purpose in disturbing either the trial court’s June 23, 1988, order or the August 14, 1989, memorandum, opinion and order except as indicated below.

In the June 23, 1988, order the trial court applied the language of both article 20 of the declaration of condominium agreement and the Illinois Condominium Property Act (Ill. Rev. Stat. 1987, ch. 30, par. 301 et seq.) in deciding to allow the attorney fees. Article 20 states that pursuant to the Association’s right to prosecute a defaulting unit owner “[a]ll expenses *** in connection with any such actions or proceedings, including court costs and attorney fees, *** shall be charged to and assessed against such defaulting unit owner.” The Condominium Act states that if a unit owner defaults the expenses, including “reasonable attorney fees,” shall constitute a lien on the property. (Ill. Rev. Stat. 1987, ch. 30, par. 309(g)(1).) We find no error in the trial court’s application of this language and therefore affirm the June 23, 1988, order to the extent that it allows attorney fees and costs.

Furthermore, after the hearings Beyer failed to move the court for the opportunity to cross-examine Frances Steinberg on the issue of the supplemental fee affidavit. Thus, Beyer waived his right to object to these fees on appeal. In addition, the order specifically provides that “the greater weight of proof of the evidence in connection with the fees herein is in favor of the plaintiff and against the defendant as to the reasonableness of the fees.” Therefore, we affirm the total amount of fees allowed in the June 23, 1988, order including the $6,948 in supplemental fees. Also, the Association is entitled to interest on these fees. (6334 North Sheridan Condominium Association v. Ruehle (1987), 157 Ill. App. 3d 829, 510 N.E.2d 975.) The additional issues raised by defendants on appeal contesting the June 23, 1988, order are without merit.

In the August 14, 1989, memorandum, opinion and order, the trial court invoked its discretion and denied the request for all fees incurred after the June 23, 1988, order. The Association argues that it had a right to these fees as a matter of law or, alternatively, that the trial court abused its discretion in denying the fees. We disagree with each of these arguments. The plain language of the declaration of condominium agreement limits recovery of fees incurred only “in connection with” a prosecution against a defaulting unit owner. We hold that a fair analysis of the fees as categorized by the court shows that the fees exceeded the limit provided in the agreement. The trial court had already awarded the Association an additional $6,948 for contesting the unfounded objections of the defendants. We hold that the denial of even more fees in the form of sanctions or otherwise was not an abuse of discretion. Accordingly, we affirm the August 14, 1989, memorandum, opinion and order except to the extent that it denies interest on all of the recoverable fees from the June 23, 1988, order. The additional issues raised on appeal by the Association contesting the August 14, 1989, memorandum, opinion and order are without merit.

Affirmed in part, reversed in part, and remanded.

GORDON and McNULTY, JJ., concur.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH M. BONNER et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1 — 88—2805, 1—88—2831 cons.
    Opinion filed November 5, 1991.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendants, Keith Bonner and Randy Ales, were convicted in a jury trial of residential burglary. Ales was sentenced to eight years in prison while Bonner received a four-year sentence. In this consolidated appeal, defendants argue that their convictions must be reversed because the State failed to prove that the house they entered was a dwelling for purposes of the residential burglary statute. Defendants also contend that the assistant State’s Attorney improperly commented upon their failure to testify at trial.

Defendants were charged with residential burglary in connection with a break-in at a house located at 3353 West 194th Street in Home-wood, Illinois. At trial, Marilyn Eason testified that the house was owned by her parents, Russell and Helen Seligman, and that prior to 1981 her parents lived in the house from May through October of each year, spending the winter months in California. In February 1981, Russell Seligman died while in California. Shortly thereafter, Helen Seligman underwent surgery and because of poor health was unable to return to Illinois. Eason testified that the house remained vacant after October 1980 and that the Pokrackis, her parents’ neighbors in Homewood, looked after the property.

Carol Pokracki, the Seligmans’ next-door neighbor, testified that on the morning of January 11, 1988, while looking out of her front window, she saw a black pick-up truck stop in front of the Seligmans’ house. According to Pokracki, there were two men in the truck. One of the two men got out of the truck and ran between the houses, where he attempted to open a trailer owned by the Seligmans. Pokracki testified that at this point she telephoned the police.

Mark Gulatta, a Cook County sheriff’s police officer, testified that on the morning of January 11 he received a call of a burglary in progress and proceeded to the Seligmans’ residence. As he approached the house, he observed a black pick-up truck with an individual inside crouched down behind the steering wheel. Gulatta instructed another police officer to go to the truck while he continued on to the Seligmans’ house. When Gulatta arrived at the house, he noticed that the rear door was broken. Gulatta entered the house and after searching the first floor entered the attic, where he found defendant Ales.

Officer James Hundley of the Flossmoor police department testified that he also responded to the burglary-in-progress call. When he arrived in the area, he observed the pick-up truck on 194th Street. Hundley testified that he approached the truck and observed defendant Bonner crouched in the front seat. Both Ales and Bonner were subsequently arrested.

Vickie Dallacosta, the mother of Randy Ales, was the only witness called by the defense. Dallacosta testified that sometime in January 1988 she had an argument with Ales and told him to leave their house. Dallacosta testified that she did not know where Ales went after she ordered him out of the house and that the next time she had any contact with him was when he called her to tell her he had been arrested.

The jury found both defendants guilty of residential burglary. This appeal followed.

In their appeal, defendants argue that they were not proven guilty of residential burglary beyond a reasonable doubt because the State failed to establish that the house they entered was a dwelling within the meaning of the residential burglary statute. (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3(a).) Defendants point out that the Seligmans’ house had been unoccupied for over seven years and that there was no evidence that anyone intended to reside there within a reasonable time. Therefore, they argue that they should not have been charged with residential burglary.

The State agrees that the Seligmans’ house was not a dwelling within the meaning of the statute. Accordingly, the State requests this court to reduce defendants’ convictions from residential burglary to the lesser-included offense of burglary.

In response, defendants argue that their convictions should be reversed because burglary is not a lesser-included offense of residential burglary. The decisions of the appellate court do not support defendants’ argument. See People v. Wiley (1988), 169 Ill. App. 3d 140, 523 N.E.2d 1344; People v. Johnson (1984), 129 Ill. App. 3d 399, 472 N.E.2d 854; People v. Dawson (1983), 116 Ill. App. 3d 672, 452 N.E.2d 385 (all holding that burglary is a lesser-included offense of residential burglary).

Accordingly, we reduce defendants’ convictions for residential burglary to burglary, and we remand the cause for resentencing.

Defendants’ only other argument on appeal concerns the effect of comments made by the assistant State’s Attorney during closing arguments. Defendants argue that the assistant State’s Attorney’s comments focused the jury’s attention on the fact that neither defendant testified.

During closing arguments, defendants’ counsel claimed that defendants should not be found guilty of burglary because Ales had not removed anything from the Seligmans’ house but had been staying there after being thrown out of his own home. In his rebuttal to defendants’ closing arguments, the assistant State’s Attorney stated:

“MR. SMITH [Assistant State’s Attorney]: *** And there has been absolutely not one word of testimony, and the only thing you heard about spending time in this house is from the mouth of both Defense counsel, which is not evidence. You have not heard one word from this witness stand telling you that he stayed there. Nothing.
And his mother came in, Mrs. Dellacosta [sic] and says—
[Defense attorney]: Judge, we don’t have to prove anything, and the Defendant does not have to testify.
THE COURT: The jury will be appropriately instructed.
[Defense attorney]: But he is misstating the law.
THE COURT: Counsel, proceed with due regard to the instructions that I reviewed with all of the attorneys before these closing arguments started.
MR. SMITH: Yes your honor.
Ladies and gentlemen, you are to consider the evidence. The presumption remains with the Defendant at all times.
As the Defendants’ Counsel [sic], and you will read in the instructions, they do not have to get up here and testify. There is no comment on that whatsoever. They do not.
It is our burden and we welcome it, as [defense counsel] told you.
There is no evidence that he was [staying] there. That’s the bottom line, and the evidence of him running in there in the morning on top of other things, and then if he’s going to stay there, well, there is [sic] three beds in the house, why would this guy be up in the attic?”

Defendants argue that the assistant State’s Attorney’s comments focused the jury’s attention on the fact that neither defendant testified. Defendants contend that, therefore, their convictions must be reversed and the cause remanded for a new trial. We do not find that the comments in question constitute reversible error. See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Durso (1968), 40 Ill. 2d 242, 239 N.E.2d 842.

In Dixon, the supreme court stated that the appropriate test for determining whether a defendant’s right to remain silent has been violated is whether the reference was intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify. The court added that it is permissible for a prosecutor to comment on the uncontradicted nature of the State’s case where such comments are for the purpose of demonstrating the absence of any evidentiary basis for defense counsel’s argument rather than for the purpose of calling attention to the fact that a defendant has not testified. Dixon, 91 Ill. 2d at 350-51.

Here, defendants’ attorneys argued that defendants did not intend to commit residential burglary, that Ales knew the Seligmans’ house was unoccupied, and that he entered the house for shelter after being thrown out by his mother. Although there was testimony from Dallacosta that she had ordered Ales from her home, she also testified that she had previously thrown him out of the house and that on those occasions he had gone to a friend’s house.

Dallacosta never testified that Ales stayed at the Seligmans’ house, nor did any other witness testify to seeing him there prior to the morning of his arrest. Thus, it was not error for the assistant State’s Attorney to respond to counsel’s arguments by pointing out that there was no evidentiary basis for them. See Durso, 40 Ill. 2d at 253 (holding that a failure to produce evidence on a material matter injected into the case by the defense gives rise to the right of comment by the prosecution).

In addition, it does not appear that the assistant State’s Attorney’s comments concerning the defendants’ right not to testify constitute reversible error. People v. Tate (1970), 45 Ill. 2d 540, 259 N.E.2d 791; People v. Sedlacko (1978), 65 Ill. App. 3d 659, 382 N.E.2d 363.

In Tate, during closing arguments, the prosecutor stated:

“[T]his in no way means, nor does it put any burden on the defendant to himself to testify. This is not what we contend. He has his right not to testify and this can in no way be used against him, and we do not ask that.” (Tate, 45 Ill. 2d at 545.)

The supreme court stated that the prosecutor had made clear that no unfavorable inference was to be drawn from the fact that the defendant had not testified in his own behalf and that the comments did not amount to reversible error.

Similarly, in Sedlacko, this court found no reversible error in comments by the prosecutor during closing arguments:

“[T]he defendant, as I believe the instructions will show, has a right to remain silent. As the instructions will show, absolutely nothing can be inferred by this. The State doesn’t mean to imply that it does. The defendant has remained silent and there it stands. That’s not the point.” (Sedlacko, 65 Ill. App. 3d at 666.)

This court affirmed the conviction in Sedlacko, finding that the comments were harmless beyond a reasonable doubt. Sedlacko, 65 Ill. App. 3d at 667.

In the present case, the comments made by the assistant State’s Attorney were substantially the same as those found to be harmless in Tate and Sedlacko. Moreover, the record shows that the comments in question were made in response to comments made by defense counsel in objecting to the assistant State’s Attorney’s argument that there was no evidence that Ales was staying at the Seligmans’ house.

A defendant cannot claim that remarks upon his failure to testify are in error where the remarks are in response to and are invited by similar remarks by defense counsel. (Dixon, 91 Ill. 2d at 350-51; People v. Bunch (1987), 159 Ill. App. 3d 494, 512 N.E.2d 748.) Where, as here, a jury has been properly instructed on a defendant’s right not to testify, a prosecutor’s invited remarks on that right do not deprive the defendant of a fair trial. (Dixon, 91 Ill. 2d at 351; Tate, 45 Ill. 2d at 544.) Thus, we find that there is no merit to defendants’ argument that the comments in question constitute reversible error.

For the foregoing reasons, we reduce the defendants’ convictions from residential burglary to burglary and we remand the cause for re-sentencing.

Affirmed in part; vacated in part and remanded.

SCARIANO, P.J., and HARTMAN, J., concur. .


author: JUSTICE McNULTY

text:
    NORTHWESTERN UNIVERSITY, Plaintiff-Appellee, v. THE CITY OF EVANSTON, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—1227
    Opinion filed November 1, 1991.
    Jack M. Siegel, of Chicago, for appellant.
    Sidley & Austin, of Chicago, and Michael C. Weston, of Evanston (Lee J. Schwartz and Lisa A. Hausten, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

The City of Evanston (City), pursuant to its home rule power, in 1973 adopted a “hotel-motel tax” found in section 3 — 2—4 of the Evanston Municipal Code. “Hotel” and “motel” were defined to in-elude “every building or structure kept, used *** advertised and held out to the public to be a place where lodging or food, or lodging and food or apartments or suites, or other accommodations are offered for a consideration to guests in which ten (10) or more rooms, apartments or suites or other accommodations are used for the lodging or lodging and food for such guests.” (Evanston, Ill., Municipal Code §3 — 2—4.) The tax was imposed upon the user of the rooms and collected by the innkeeper who received a fee for this service.

This case arose out of an amendment to the Evanston hotel-motel tax (ordinance 4 — 0—89) that expanded this tax to include

“a building or structure, such as a convention center, or executive conference facility, not open to the public but otherwise meeting the criteria set forth in the previous sentence.” Evanston, Ill., Municipal Code §4 — 0—89.

The only structure in Evanston currently fitting the above description is the James L. Allen Center of Northwestern University. Northwestern moved for summary judgment on the basis that: (1) the amendment violates Illinois constitutional principles of equal protection and uniformity; (2) the tax is an illegal occupation tax; and (3) the amendment is inapplicable on its face. The trial court granted judgment in Northwestern’s favor and enjoined the City from collecting the tax, declaring that the use of sleeping rooms in the Allen Center is “clearly incidental to the University’s educational programs and cannot be subjected to the type of use tax intended for hotel/motel room users.”

The City appeals, contending that it has home rule powers to impose a hotel tax on a facility not open to the public and operated for educational purposes by a not-for-profit corporation that provides lodging within the criteria established in the ordinance.

Northwestern University is a private, not-for-profit, post-secondary education institution. Its main campus is located in the City of Evanston, Illinois. One of Northwestern’s graduate schools is the school of business, known as the J.L. Kellogg Graduate School of Management. The individuals using the sleeping rooms at the Allen Center are primarily students in the executive master’s program, with an enrollment of 280 and the executive education program, with an enrollment of about 2,600 students. The business school faculty teaches all the degree programs and the majority of the continuing education programs. Occasionally, outside experts are invited to participate in teaching courses in the continuing education programs. In teaching the various programs, the business school utilizes two buildings on the Evanston campus, one of which is the James L. Allen Center, the focus of the controversy in the case at bar.

The Allen Center is located on Northwestern’s Evanston campus and is the primary site for the executive continuing education programs. Occasionally, customized executive development seminars, created by the Kellogg faculty on a request basis, are also taught at the Allen Center. In addition, placement interviews for Kellogg graduates are conducted there.

The Allen Center is a four-story building erected in 1979 approximately 160,000 square feet in size. The first and second floors of the building are devoted primarily to classroom space. It also has two dining rooms offering cafeteria service to students, each with a seating capacity of 125 persons.

The third and fourth floors of the Allen Center contain 100 sleeping rooms and eight study rooms. Students enrolled in the continuing education programs are required to reside at the Allen Center for some or all of the duration of their programs to enable them to participate more readily in evening sessions and study groups. A separate fee is not charged for the use of the rooms; each student pays an all-inclusive fee which covers tuition, room, board and course materials. However, Northwestern, as a matter of internal auditing procedure, does assign the amount of $80 per diem as the cost of a sleeping room at the Allen Center.

The sleeping rooms are used primarily by the business school. Occasionally, if space is available, other departments of Northwestern use the rooms for activities related to Northwestern business, such as accommodations for visiting faculty or guest lecturers.

From time to time portions of the Allen Center are rented to outside organizations that lease classroom space in the Allen Center for programs taught by the organizations themselves. Northwestern witnesses testified that during the 1988-89 fiscal year an average of 3.2% of the sleeping rooms at the Allen Center were used by outside organizations in conjunction with their use of classroom space, and 1% was used by individuals affiliated with other Northwestern activities. The general public is not permitted to rent the sleeping rooms at Allen Center. The building is closed during holidays when Northwestern is in recess.

On February 27, 1989, the Evanston city council amended the hotel-motel tax by adopting Ordinance 4 — 0—89, which is set forth above.

Because the Allen Center is not open to the general public and is used for educational purposes, Northwestern filed this lawsuit on July 28, 1989, seeking declaratory and injunctive relief. On April 24, 1990, the trial court granted summary judgment in its favor, declaring the tax to be illegal and permanently enjoining the City of Evanston from collecting the tax. It is from that ruling the City appeals.

Opinion

In the exercise of its taxing power, a home rule city is subject to the equal protection clauses of the Illinois and Federal constitutions. (Searle Pharmaceuticals, Inc. v. Department of Revenue (1987), 117 Ill. 2d 454, 512 N.E.2d 1240; U.S. Const., art. XV, §1; Ill. Const. 1970, art. I, §2.) Under principles of equal protection, a classification is invalid if it is arbitrary and without a reasonable basis. Searle, 117 Ill. 2d at 468, 512 N.E.2d at 1246.

Section 2 of article IX of the 1970 Illinois Constitution provides that classes of nonproperty taxes must be reasonable and the subjects and objects within each class must be taxed uniformly:

“In any law classifying the subjects or objects of nonproperty taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.” Ill. Const. 1970, art. IX, §2.

Section 2 provides for greater protection than the minimum given by equal protection as is stated by the Report of the Committee on Revenue and Finance to the Constitutional Convention:

“Uniform treatment of unlike classes is just as unreasonable as non-uniform treatment of like classes. Attempts to enforce uniformity with respect to unlike classes, have created more problems than they solve. Classification is essential. It is also essential that the General Assembly be bound by a standard of reasonableness. The federal due process and equal protection clauses provide a minimum standard. [Citation.] The Committee believes, however, that Illinois taxpayers should receive added protection in the state constitution.” 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2074.

The Illinois Supreme Court has held that the test for determining whether a tax classification meets the requirements of uniformity is twofold: (1) whether any real and substantial differences exist between those who are taxed and those who are not, and (2) whether the classification is reasonably related to a legislative purpose. Federated Distributors, Inc. v. Johnson (1988), 125 Ill. 2d 1, 530 N.E.2d 501.

Uniformity may be violated by including those not in fact within the class as well as excluding those properly within it. Central Televi sion Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 428, 189 N.E.2d 333, 337; Stolze Lumber Co. v. Stratton (1944), 386 Ill. 334, 54 N.E.2d 554, overruled on other grounds in Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 108 N.E.2d 8.

A taxing body is further prohibited under the uniformity provisions of the Illinois Constitution from defining statutory terms contrary to their common meaning. Central Television Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 428, 189 N.E.2d 333, 337.

Applying the above principles to the case at bar, Northwestern asserts that the Evanston ordinance amendment expanding the hotel-motel tax to include convention centers and executive conference facilities not open to the public violates both equal protection and uniformity by declaring the Allen Center to be a hotel when in fact it is an educational facility.

The City of Evanston counters by asserting that it is not attempting to define the Allen Center as a hotel, but is merely adding an additional reasonable classification of facilities subject to the tax. However, it also concludes that the Allen Center sleeping rooms are in essence no different than ordinary hotel or motel rooms.

Evanston contends that under its home rule authority, it has the power to tax the users of sleeping rooms in the Allen Center although that facility is not open to the public and is utilized almost exclusively by persons who are attending educational programs of Northwestern University’s graduate school of business. This is, however, not the issue before us because Evanston has seen fit to accomplish this objective by extending the motel-hotel tax to such a facility.

At oral argument, counsel for the City of Evanston expressed the opinion that his task of persuading this court to uphold this tax, as applied to the Allen Center, might have been easier if the City had enacted amendment 4 — 0—89 as a separate ordinance directed only to facilities meeting the criteria described therein rather than including it within the hotel-motel tax. He then urged that we should uphold the amendment as an extension of the hotel-motel tax because the City of Evanston under its home rule power could have enacted such a tax by using the separate ordinance format described above. This argument was raised and rejected in Central Television Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 189 N.E.2d 333. In that case the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1957, ch. 120, par. 440) was amended to provide that persons who engaged in the business of repairing tangible personal property for others by adding or incorporating therein other tangible property for use or consumption shall be deemed to be engaged in the business of selling tangible personal property at retail. The plaintiffs conceded that their occupation could be taxed by the State under a proper legislative enactment uniform in its application. (Isaacs, 27 Ill. 2d at 425, 189 N.E.2d at 335-36.) However, they contended that their customers were contracting for the repair and restoration of function rather than the purchase of parts and materials. Further, they argued that the occupation they engaged in was the rendition of service to the customer, not that of selling tangible personal property at retail. (Isaacs, 27 Ill. 2d at 424, 189 N.E.2d at 335.) The supreme court agreed because the stipulated facts demonstrated that the transfers of tangible personal property used in making repairs were incidental to the repair services rendered. In concluding that this extension of the Retailers’ Occupation Tax Act ran afoul of the uniformity provisions of the Illinois Constitution, the court stated:

“The difficulty here lies in a misconception of the nature of the Retailers’ Occupation Tax Act. It is not a tax on the privilege of buying, or upon the individual sale — it is a tax on the occupation of selling at retail [citation] — an occupation in which plaintiffs are not engaged.” Isaacs, 27 Ill. 2d at 426-27, 189 N.E.2d at 336.

Therefore, the issue presented by this case is whether the Allen Center facility is sufficiently similar to a hotel or motel that the City of Evanston may reasonably extend its hotel-motel tax ordinance to the users of the sleeping rooms contained in that facility.

Until passage of the amendment in controversy here, the only facilities subject to the hotel-motel tax were entities open to the public which provided sleeping accommodations to guests for compensation on a nondiscriminatory basis. These facilities fit the commonly accepted meaning of a hotel. Ambassador Athletic Club v. Utah State Tax Comm’n (1972), 27 Utah 2d 377, 496 P.2d 883; Moyer v. Board of Zoning Appeals (Me. 1967), 233 A.2d 311, 317; 508 Chestnut, Inc. v. City of St. Louis (Mo. 1965), 389 S.W.2d 823, 829; Ill. Rev. Stat. 1989, ch. 71, par. 4c (Illinois Innkeepers Act).

The first uniformity standards violation argument Northwestern advances is that the Allen Center does not resemble a hotel or motel because it is not open to the general public.

Although the amendment in question here appears to be uniform in its application, the only facility in Evanston which fits the definition is the Allen Center.

There is no Illinois case directly on point on this issue; however, there are cases from other jurisdictions that have considered the question of whether facilities not open to the general public should be treated similarly to public facilities for tax purposes. In Ambassador Athletic Club v. Utah Tax Comm’n (1972), 27 Utah 2d 377, 496 P.2d 883, the Utah Supreme Court held that an athletic club that rented rooms to its members but not to the general public was not subject to the Utah hotel tax because it was not performing the function of a hotel. Ambassador Athletic Club, 27 Utah 2d at 379, 496 P.2d at 884.

Also, in City of Independence v. Richardson (1925), 117 Kan. 656, 232 P. 1044, the Kansas Supreme Court held that a hotel license tax could not be applied to the owner of a private rooming house because it was not open to the general public indiscriminately. Because hotels are required to provide accommodation to any member of the public, Northwestern argues that the amendment violates the uniformity provisions of the Illinois Constitution by adding a category of facilities not open to the general public. Stolze Lumber Co. v. Stratton (1944), 386 Ill. 334, 54 N.E.2d 554, overruled on other grounds in Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 108 N.E.2d 8, is illustrative of this principle. In that case the legislature by amendment sought to add to the commonly known definitions of “use and consumption” a new and additional definition while at the same time keeping their settled, popular meanings. It thus sought to change the scope of sales at retail to include transfers or sales that are made for resale where the thing sold is employed by classes of persons therein named rendering service. (Stolze, 386 Ill. at 339, 54 N.E.2d at 557.) The court invalidated the amendment as violative of the uniformity provisions of the Illinois Constitution.

The second argument that Northwestern advances is that even if the amendment in controversy were facially valid, its application to the Allen Center violates the constitutional requirements of uniformity because the Allen Center, contrary to being a hotel offering public accommodations, was designed and is used primarily as a teaching facility for Northwestern’s graduate business school.

The City of Evanston responds by stating that there is no constitutional or statutory provision exempting an educational facility from application of the hotel-motel tax if it furnishes lodging rooms for a consideration. (See Board of Education of School District No. 150 v. City of Peoria (1979), 76 Ill. 2d 469, 394 N.E.2d 399.) While this might be persuasive if Northwestern were operating a hotel or motel which furnished lodging rooms to the public, we must determine whether a facility, not open to the public and used primarily for educational purposes which furnishes lodging incidental thereto, is engaged in activities sufficiently similar to a hotel or motel for that tax to be applied to users of its sleeping rooms.

It is the nature of the services rendered which is determinative for classification purposes. Adler v. Northern Hotel Co. (N.D. Ill. 1948), 80 F. Supp. 776, 780, rev’d on other grounds (7th Cir. 1950), 180 F.2d 742. See also Moyer v. Board of Zoning Appeals (Me. 1967), 233 A.2d 311, 318.

No one disputes that the Allen Center is an educational facility. It is used by full-time and part-time degree-seeking students as well as students enrolled in continuing education programs offered through the executive education program. The educational programs are the primary reason individuals come to the Allen Center and the provision of rooms is incidental to those programs.

Dining halls and sleeping facilities used by universities were held to be educational facilities, not hotels or restaurants in City of Chicago v. University of Chicago (1907), 228 Ill. 605, 81 N.E. 1138. The fact that a separate charge was made for room and board is of no consequence. People ex rel. Hesterman v. North Central College (1929), 336 Ill. 263, 266, 168 N.E. 269, 270 (dormitories and dining halls exclusively used by students are an essential part of universities and colleges).

In People ex rel. Goodman v. University of Illinois Foundation (1944), 388 Ill. 363, 372, 58 N.E.2d 33, 38, the Illinois Supreme Court held that the student union which contained dining rooms, lounges, guest rooms and a bowling alley was used for educational purposes notwithstanding the fact that charges were made for rooms and meals. Provision of lodgings at an institution primarily operated for another purpose does not make the institution a hotel. Pagel v. Trinity Hospital Association (1942), 72 N.D. 262, 267, 6 N.W.2d 392, 395; Hull Hospital v. Wheeler (1933), 216 Iowa 1394, 250 N.W. 637 (Hotels, restaurants and inns may be classified as “public” housekeeping establishments because their main purpose is to furnish food, shelter and entertainment to patrons. A hospital is not such an establishment because its main purpose is to care for sick, wounded and injured patients).

For similar reasons the Florida Court of Appeals in Department of Revenue v. Camp Universe, Inc. (Fla. App. 1973), 273 So. 2d 148, declined to hold that the incidental provision of food and lodging by a children’s camp subjected the camp to the Florida hotel tax. Camp Universe, 273 So. 2d at 150.

The City of Evanston contends that since outside organizations occasionally use the Allen Center sleeping rooms, it does accommodate the public and therefore is a proper subject of the hotel-motel tax. The evidence established that in the fiscal year preceding this lawsuit, such use was made of the sleeping rooms only 3.2% of the time. This minimal use does not change the primary character of the Allen Center as an educational facility of Northwestern University. In People ex rel. Goodman v. University of Illinois Foundation (1944), 388 Ill. 363, 58 N.E.2d 33, the student union building was used primarily by students. The evidence revealed, however, that the general public used the facilities in the building about 3% of the time. The court held that the “primary use to which the property is devoted, and not its secondary use, is controlling.” (Goodman, 388 Ill. at 370, 58 N.E.2d at 37.) De minimus use by the general public did not change the fact that the student union building was used for educational purposes.

Prior to the amendment in controversy, the Evanston hotel-motel tax applied only to institutions providing lodging or food and lodging to the general public. After the amendment in question, the tax was extended to a facility of Northwestern University not open to the public devoted primarily to educational purposes furnishing lodging and food to students incidental to its programs. It cannot be persuasively contended that Northwestern, by operating this facility, is in the market and competing for the same clientele as hotels and motels thereby justifying the extension of this tax to users of the sleeping rooms in that facility.

For the reasons set forth above, the amendment to the City of Evanston hotel-motel tax (ordinance 4 — 0—89), extending the application of the hotel-motel tax to a convention center or conference facility not open to the public devoted primarily to educational programs, violates the uniformity requirements of section 2 of article IX of the 1970 Illinois Constitution. In view of our disposition of this case, we need not consider other challenges advanced by Northwestern to this amendment, including the question of whether it is an invalid occupation tax.

Affirmed.

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