author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORY S. FISHER, Defendant-Appellant.
    Fourth District
    No. 4—88—0600
    Opinion filed April 28, 1989.
    Modified on denial of rehearing August 24, 1989.

      Steven Skelton, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

Defendant Cory Fisher was charged with two counts of first degree murder and one count of aggravated battery. A jury found defendant guilty of second degree murder. He was sentenced to 15 years’ imprisonment and ordered to pay $13,582 restitution within two years after his release from prison. On appeal, defendant questions the propriety of his sentence. Defendant argues the trial court considered improper aggravating factors in sentencing him to 15 years’ imprisonment; the trial court erroneously sentenced defendant to the maximum term of imprisonment allowed by statute; and the trial court erroneously ordered defendant to pay restitution to the victim’s mother.

The record on appeal consists of the common law record, transcripts of the July 4, 1988, hearing held on the post-trial motion and for sentencing, and the exhibits presented at the sentencing hearing. The record on appeal does not contain any transcripts from the six-day jury trial.

The facts are as they were related by the trial court at the sentencing hearing. The incident which led to defendant’s conviction occurred on November 3, 1987, at a Burger King restaurant during the noon hour. Defendant, a student at Normal Community High School, brought his grandfather’s .357 magnum handgun to school with him that day, because he had experienced difficulties with some students and felt he was not receiving any help from adults with this problem. Defendant sat at a picnic table outside the Burger King, the victim approached defendant, some words were exchanged, and defendant pulled the gun and backed the victim into the restaurant. Defendant then shot and injured the victim. Defendant pursued the fleeing victim, who cowered and tried to protect himself. According to the trial court, defendant then stated “Now, it is time to die,” and “That will teach you to mess with me,” and shot the victim a second time. The victim attempted to flee again and defendant shot him a third and final time. In addition, a bullet fragment injured a Burger King employee.

Defendant filed a post-trial motion for a judgment notwithstanding the verdict and, in the alternative, for a new trial which basically alleged failure to prove guilt beyond a reasonable doubt, among other claims, but failed to argue any of the issues which are now on appeal. The trial court denied the motion at the sentencing hearing. The court next stated it would consider the following before imposing sentence: a presentence investigation report, an intensive probation supervision report, a forensic report by Dr. Robert Chapman dated May 26, 1988, McLean County Center for Human Services contact notes filed June 23, 1988, and a victim response letter from the victim’s mother dated June 23, 1988, with medical and hospital bills attached thereto. The court also stated it would consider all but one letter submitted by relatives and acquaintances of defendant.

■ The State called Mary Johnson to testify. Johnson stated that she is the victim’s great aunt and had adopted the victim approximately three years before the hearing. Mrs. Johnson also gave a brief statement concerning the effect of the loss of her son.

Defendant called Melinda Fellner, an inmate counselor for the McLean County sheriff’s department. Fellner testified to defendant’s behavior during his incarceration since the date of the incident. She stated that there had been no reports or incidents of disciplinary proceedings against defendant since his incarceration on November 3, 1987. She said defendant was polite and had obtained a general equivalency diploma in February 1988. She said defendant was a subdued and quiet inmate, and he asked for counseling on occasion when suffering from anxiety or depression.

The court admitted, on defense counsel’s motion, a letter from Dr. Chapman to defense counsel dated July 12, 1988. Dr. Chapman was then called to testify on behalf of defendant. The court took notice of earlier evidentiary proceedings relating to Dr. Chapman’s qualifications as a psychiatrist and expert witness. Dr. Chapman stated he had examined defendant on three occasions and concluded defendant suffered from a personality disorder. Dr. Chapman also gave a tentative diagnosis of post-traumatic stress disorder, a psychological and physiological reaction to stress beyond the common human experience triggered by the incident on November 3, 1987. Dr. Chapman stated that without treatment defendant’s personality was unlikely to change and as he matured it might take a different form, adult avoidance personality. Without treatment, according to Dr. Chapman, the post-traumatic stress syndrome would resolve itself within two years.

Dr. Chapman stated the optimum treatment for defendant would consist of defendant residing elsewhere than Bloomington and defendant obtaining individual psychotherapy or counseling by a professional or under the supervision of a psychiatrist. Dr. Chapman thought defendant should have rehabilitation training including the development of vocational skills, assertiveness training, social skills training, and training in the skills of independent living directed toward developing independence and self-sustaining discipline. Dr. Chapman estimated a 75% successful prognosis rate.

Dr. Chapman stated that defendant was not sophisticated about what he wanted and which goals were appropriate for him. Defendant expressed to Dr. Chapman that he hoped to develop better communication skills and hoped to eliminate persistent nightmares. According to Dr. Chapman, a successful completion of the treatment would result in defendant functioning in a viable sense within a community and within society in terms of being employed and contributing in a societal sense. While stating that he understood vocational and college training is available in the Department of Corrections, Dr. Chapman testified that incarceration in the Department of Corrections would be detrimental to defendant’s health. Dr. Chapman testified that the personality disorder which defendant is suffering played a role in the choices he made and the acts he performed on November 3, 1987, in a most indirect manner.

Patty MacEwan, defendant’s mother, also testified on defendant’s behalf. She stated that defendant has been very passive throughout his life and is sincere in expressing remorse for his actions. She stated defendant has an older brother in Florida who had wholeheartedly agreed to accept defendant into his home. She felt her son had grown and matured while imprisoned during the previous eight months and had a better ability to ask for help and deal with problems in a realistic manner. She felt defendant would easily comply with severe and restrictive probation conditions. She requested that defendant be placed on probation.

The State’s Attorney then presented his argument. The State’s Attorney stated that he believed no factor in mitigation existed. The State’s Attorney stated factors in aggravation he thought were particularly important for the court to consider were the defendant’s conduct caused or threatened serious physical harm, and a sentence is necessary to deter others from committing the same crime. Defense counsel made his statement to the court, said he believed 8 of the 12 factors in mitigation from section 5 — 5—3.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 88, par. 1005 — 5—3.1) apply to this case, he said deterrence of others was inapplicable, and he recommended probation. Defendant also made a statement.

Before giving the sentence, the trial court stated it had considered the evidence at the trial, the presentence investigation report, the letters submitted to the court, the testimony presented at the sentencing hearing, arguments of counsel, and the statement of defendant. We note the trial court also referred to evidence that defendant had experienced problems with blacks. The court stated as follows:

“Cory had psychological injuries dating back to a few days before and years of problems mostly with blacks. That is the testimony in the case. Unrebutted by everyone that Cory’s physical altercations, as passive as he was, were repetitive throughout the years and tending to be with blacks.”

We also note that defense counsel objected to the court’s statement as a misstatement of the facts. The record indicates the victim was black and defendant is white.

The trial court then considered the following factors in mitigation: (1) defendant acted under strong provocation; (2) there were no substantial grounds to excuse defendant’s conduct; (3) defendant’s conduct was not facilitated or induced by someone other than defendant; (4) defendant had no history of prior delinquency or criminal activity and he led a law-abiding life for a substantial period of time; (5) whether the result of the circumstances was unlikely to reoccur, concluding: “I am not so sure”; and (6) defendant was probably unlikely to commit another crime.

The trial court also considered two factors in aggravation. First, the court stated: “Did his conduct cause or threaten serious physical harm? Yes, it did. The victim died.” The court also concluded deterrence was an aggravating factor in this case. The trial court then sentenced defendant to 15 years’ imprisonment and ordered him to pay $13,582 restitution within two years of his release from prison. The trial court stated it would recommend to the Department of Corrections that defendant be placed in a facility other than a maximum security penitentiary. On July 15, 1988, the trial judge sent a letter to the Department of Corrections which recommended that defendant be placed in a minimum or medium security penitentiary. Mittimus was issued that same day. Defendant filed timely notice of appeal on August 15,1988.

We initially consider a motion filed by the State to strike portions of defendant’s appellate brief. The State argues defendant’s statement of facts in his brief refers to trial testimony not found in the record. Defendant’s statement of facts refers to the record only in its final paragraph, which refers to the sentencing hearing, but does not cite to any pages in the record. Supreme Court Rule 341(e)(6) (107 Ill. 2d R. 341(e)(6)) states that the statement of facts portions of appellate briefs shall contain necessary facts with reference to the pages of the record on appeal. In addition, the court in Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 186, 419 N.E.2d 935, 937, stated that portions of an appellate brief’s statement of facts unsupported by the record are not considered on appeal.

The State also notes that defendant, on page nine in the argument portion of his brief, asserts: “The evidence introduced at trial and the sentencing hearing was consistent.” The State argues that this violates Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)), which states that the argument portion of an appellate brief shall contain citation of the pages of the record relied on. The State also cites Kankakee Concrete Products Corp. v. Mans (1980), 81 Ill. App. 3d 53, 58-59, 400 N.E.2d 637, 640-41, where the appellate court was unable to decide the appellant’s claim that its due process rights were violated by the trial court’s refusal to accept testimony at a hearing because the appellate court was not supplied a transcript of the proceedings. The court stated it is the appellant’s duty to supply such transcripts.

Defendant argues his brief is in compliance with Rule 341, and if not, he would like to amend his brief. Defendant cites no authority for either contention and none can be found. The majority of defendant’s statement of facts refers to trial testimony which is not found in the record, and we will not consider that portion of the statement of facts. At the sentencing hearing, the trial court mentioned several facts which were adduced at the trial. These facts are sufficient for the disposition of the issues raised on appeal. Also, the State’s statement of facts in its brief adequately presents the facts of the case. Furthermore, we will not consider the portion of defendant’s argument which mentions the trial; however, we will consider the portion which refers to the sentencing hearing. Therefore, the State’s motion is allowed in part and denied in part.

We turn now to the question of whether the trial court considered improper aggravating factors in sentencing defendant to 15 years’ imprisonment. We note section 5 — 5—3.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.1) provides 12 factors in mitigation that shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment. We also note the trial court explicitly stated that it considered six of these factors and three apply to this case.

Section 5 — 5—3.2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2) provides 13 factors which shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence. The trial court determined two of the factors applied in this case. Those factors are that the defendant’s conduct caused or threatened serious harm and that the sentence is necessary to deter others from committing the same crime.

Defendant argues conviction of second degree murder necessarily includes a consideration that the victim died. Therefore, defendant concludes, it is improper for a trial court to consider the death of the victim as an aggravating factor, because it would result in double punishment for the victim’s death. In People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884, the supreme court held that serious harm is implicit in an involuntary manslaughter conviction. The court also stated the legislature would have clearly expressed any intent that death be considered twice in a conviction for involuntary manslaughter. (Martin, 119 Ill. 2d at 460, 519 N.E.2d at 887.) We conclude the Martin rule applies to a conviction for second degree murder.

However, in People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, where the court held the victim’s death could not be considered as an aggravating factor in a conviction for voluntary manslaughter, the court stated:

“While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.” (Emphasis in original.) Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.

In clarification, the supreme court stated, although it referred only to voluntary manslaughter convictions, that a trial court may apply the aggravating factor that defendant’s conduct caused serious harm to the victim for the purpose of considering the force employed and the physical manner in which the victim’s death was brought about, as well as the nature and circumstances of the offense. (Saldivar, 113 Ill. 2d at 271, 497 N.E.2d at 1144.) In Saldivar, the defendant was persuaded to accompany the victim to the victim’s trailer home on the victim’s false representation that a party was taking place at the trailer. When the two arrived at the trailer, the victim made a homosexual advance on the defendant. The defendant refused the victim’s advance, a struggle ensued, and defendant stabbed the victim twice with a kitchen knife.

In Saldivar, the court did not find that the trial court’s finding in aggravation was directed at the degree of gravity of the defendant’s conduct, the force employed and the physical manner in which the victim’s death was brought about, or the nature and circumstances of the offense; rather, the supreme court found the trial court focused primarily on the end result of the defendant’s conduct, death of the victim. The trial court stated: “ ‘The number one factor in aggravation — there are some that come to a lesser degree, but the one that is probably the most serious is the terrible harm that was caused to the victim. And the victim is dead today.’ ” Saldivar, 113 Ill. 2d at 272, 497 N.E.2d at 1144.

In Martin, the court also found the trial court improperly considered the victim’s death as an aggravating factor in sentencing the defendant. Significantly, however, the court said, in language similar to that used in Saldivar, the degree of force might justify an increased sentence even though death is implicit in the offense. (Martin, 119 Ill. 2d at 461, 519 N.E.2d at 888.) In Martin, the victim and two friends entered a massage parlor in a drunken state. The manager asked the group to leave and two of the three left. One did not, however, and engaged in a pushing match with the manager of the massage parlor. The victim observed this, ran back inside the parlor, and a fight broke out. During the fight, the manager instructed the defendant, who was standing nearby, to get a shotgun. The defendant retrieved the gun and brought it back to the scene of the fight. The gun discharged, killing the victim.

In the case at bar, unlike Martin and Saldivar, we have an intentional killing. In addition, the force employed and the physical manner in which the victim’s death was brought about were factors which the trial court took into consideration, as explicitly reflected at several points in the record. Defendant brought his grandfather’s .357 magnum to school one day, waited at a picnic table during lunch hour until the victim approached him, shot the victim once, pursued the victim, told the victim he was going to die and this would teach the victim not to mess with defendant, defendant shot the victim again, and defendant shot the victim a third time as the victim attempted to flee. In People v. Killings (1986), 150 Ill. App. 3d 900, 910, 501 N.E.2d 1363, 1369, this court stated that the act by a defendant of carrying a gun and deliberately shooting the victim at point-blank range may be considered as an aggravating factor.

An additional factor the trial court mentioned at the sentencing hearing is the credit available to an inmate who exhibits good behavior in prison. Defendant argues this was an improperly considered factor in aggravation. The record reflects the State’s Attorney stated a 15-year prison term “contemplates 7k years of actual confinement.” Defense counsel’s objection that contemplation does not necessarily result in reality was overruled. Later the trial court mentioned the principle of good-time credit on several occasions, but the record reflects these references were made in passing and not listed with the two aggravating factors the court determined applicable in this case. Even if the trial court considered good-time credit as an aggravating factor, in People v. Smith (1986), 148 Ill. App. 3d 655, 657, 499 N.E.2d 1038, 1039, this court found that good-time credit available to a defendant is a permissible consideration in sentencing.

We conclude the trial court did not consider the death of the victim as an aggravating factor at the sentencing hearing, but instead properly considered the physical manner and the degree of force with which the victim’s death was brought about. In view of our holding, we deem it unnecessary to address the State’s waiver argument on this issue.

We turn now to the question of whether the trial court erroneously sentenced defendant to the maximum term of imprisonment allowed by statute. Second degree murder is defined at section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) as a Class 1 felony. Section 5 — 8—1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1) states that the sentence for a Class 1 felony shall be not less than 4 years’ and not more than 15 years’ imprisonment. In addition, the Illinois Constitution provides: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) We note that under this provision a trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. People v. Partin (1987), 156 Ill. App. 3d 365, 373, 509 N.E.2d 662, 666-67.

The determination and imposition of a sentence is a matter involving considerable judicial discretion, and the sentence will not be disturbed on review in the absence of an abuse of discretion by the trial court. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The sentence must be based on the particular circumstances of each individual case. (Saldivar, 113 Ill. 2d at 268, 497 N.E.2d at 1143.) This judgment depends on many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) The nature and circumstances of the offense has also been included as a governing factor to be used in determining a sentence. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 115, 485 N.E.2d 513, 520.) The trial court has the opportunity to consider these factors and this opportunity is superior to the record provided to a reviewing court. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

Defendant urges us to follow the holding in People v. Horton (1976), 43 Ill. App. 3d 150, 356 N.E.2d 1044. In Horton, the defendant was convicted of murder and given 25 to 50 years’ imprisonment. At the time of the offense, the defendant was 17 years old and had no prior criminal record. The sentence severely diminished the possibility of defendant’s rehabilitation, according to the appellate court, because the proper objective in determining the extent and nature of a criminal penalty is the restoration of the offender to useful citizenship. In Horton, the defendant hid in a gangway between two garages and shot the victim with a shotgun from the gangway. Also, an accomplice shot the victim. The defendant stepped out of the gangway, stepped back, and a third shot was fired. The defendant then fled from the scene. While the Horton case has some similarities to the case before us, and the defendant in Horton arguably used excessive force, the physical manner and the degree of force used was of greater magnitude in the case at bar.

The State urges us to follow the holdings of Killings, People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467, and People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338, which were cases where improper aggravating factors were considered but the reviewing courts found in each case that the weight given the improper factor was insignificant and it did not result in a greater sentence. Although defendant was given the maximum term of imprisonment allowed by statute, the trial court properly considered that the victim’s death was brought about in an excessive physical manner and with an excessive degree of force as an aggravating factor. In addition, there was evidence that defendant had a history of physical altercations with black youths. Given the trial court’s discretion in sentencing, we conclude the prison term here was not an abuse of the trial court’s discretion.

We turn now to the question of whether the trial court erroneously ordered defendant to pay the victim’s mother restitution within two years of his return from prison. The State argues defendant waived consideration of this issue on appeal. This court has held that failure to object to alleged errors in the imposition of restitution at the sentencing hearing may waive consideration of the matter on appeal. (People v. Eades (1984), 123 Ill. App. 3d 113, 462 N.E.2d 819.) However, in People v. Jones (1988), 176 Ill. App. 3d 460, 465, 531 N.E.2d 88, 92, the court stated a party may at any time challenge a sentencing order as void because it was entered outside the sentencing authority of the trial court. Thus, we may assess the validity of the order for restitution on this appeal.

Defendant argues the trial court did not consider his ability to pay restitution and that, therefore, the restitution is improper. Section 5 — 5—6(f) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 6(f)) provides:

“Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.”

Section 5 — 5—6(f) requires the restitution to be paid in full within five years. We find the trial court’s order that restitution be paid within two years after defendant’s release from his 15-year prison term does not comply with the time limit of section 5 — 5—6(f). (See People v. Rupert (1986), 148 Ill. App. 3d 27, 499 N.E.2d 93; People v. Knowles (1980), 92 Ill. App. 3d 537, 414 N.E.2d 1322.) The trial court’s determination that defendant pay $13,582 in restitution is reversed.

Accordingly, for the reasons stated, the judgment of the circuit court of McLean County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN M. HOGAN, Defendant-Appellant.
    Third District
    No. 3—88—0597
    Opinion filed July 17, 1989.
    James E. Swanson, of Peoria, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Alan M. Hogan, filed a motion to dismiss a driving under the influence of alcohol (DUI) charge against him, contending that it was barred by his prior conviction for possession of cannabis. The trial court denied his motion. He appeals. We affirm.

The record shows that on May 14, 1988, the defendant was arrested for driving while under the influence of alcohol and for possession of cannabis. The arresting officer charged the defendant with the two offenses by means of a traffic ticket on the DUI charge and a notice to appear on the cannabis charge, citing, respectively, the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2)) and a City of East Peoria ordinance. The charges were assigned to different courts, apparently by the clerk of the court.

The defendant subsequently pled guilty to the cannabis charge and was sentenced to pay a $75 fine plus court costs. He then filed a motion to dismiss the DUI charge. In his motion, he argued that his act of driving was the basis for both charges and that the principles of double jeopardy precluded successive prosecutions for the same act. At the hearing on his motion, he also argued that sections 3 — 3(b) and 3 — 4(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 303), 3 — 4(b)) required that both charges be handled in a single prosecution.

The trial court denied the defendant’s motion. Pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)), the defendant brought the instant interlocutory appeal. Advancing arguments similar to those he made before the trial court, he contends that the court erred in denying his motion.

Regarding the double jeopardy argument, we note that the test for determining whether two offenses constitute the “same offense” for double jeopardy purposes is whether each provision requires proof of a fact which the other does not. (People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959.) A substantial overlap in the proof introduced at different prosecutions is irrelevant for double jeopardy purposes as long as the offenses charged are distinct. People v. Mueller (1985), 109 Ill. 2d 378, 488 N.E.2d 523.

We find the defendant’s double jeopardy argument meritless. On the cannabis charge, the prosecution was required to prove that the defendant possessed cannabis. On the DUI charge, it will be required to prove that he was under the influence of alcohol. Neither of these facts is an element of the other offense. Accordingly, double jeopardy principles do not apply and the trial court correctly rejected the defendant’s argument.

We also find unpersuasive the defendant’s contention that sections 3 — 3(b) and 3 — 4(b) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 3(b), 3 — 4(b)) would be violated by successive prosecutions. The compulsory joinder provisions of sections 3 — 3 and 3 — 4 do not apply to offenses charged by uniform citation and complaint forms “intended to be used by a police officer in making a charge for traffic offenses and certain misdemeanors and petty offenses.” (People v. Jackson (1987), 118 Ill. 2d 179, 192, 514 N.E.2d 983, 989.) Further, sections 3 — 3(b) and 3 — 4(b) do not apply when ordinance violations are involved. People v. Crabtree (1980), 82 Ill. App. 3d 87, 402 N.E.2d 417.

The instant defendant was charged by means of uniform citation and complaint forms, and one of the two charges was an ordinance violation. Accordingly, sections 3 — 3 and 3 — 4 did not apply and he could be separately prosecuted for each offense. The trial court therefore correctly rejected this argument and denied the defendant’s motion to dismiss.

The judgment of the circuit court of Tazewell County is affirmed. The cause is remanded for further proceedings on the pending DUI charge.

Affirmed and remanded.

WOMBACHER, P.J., and HEIPLE, J., concur.


text:
      In re MARRIAGE OF RICHARD KOWALSKI, Plaintiff-Appellee, and SUSAN KOWALSKI, Defendant-Appellant.
    Third District
    No. 3—88—0547
    Opinion filed July 17, 1989.

      R. Michael Fischer, of Alton, for appellant.
    Barash, Stoerzbach & Henson, of Galesburg (Dwayne I.' Morrison, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Susan Kowalski, appeals from an order denying her motion to vacate an order terminating the award of maintenance she received upon her divorce from Richard Kowalski. On appeal, Susan contends the trial court erred by: (1) improperly issuing a temporary restraining order; (2) finding Susan in contempt of court without a petition to show cause on file and without notice or a hearing; and (3) modifying and terminating Susan’s maintenance without a petition, notice and a hearing.

Richard and Susan Kowalski’s marriage was dissolved on February 8, 1982. The judgment entered concerning the dissolution provides for maintenance and states that neither party may remove a minor child permanently from the State of Illinois without a court order or the written permission of the other parent. On July 6, 1984, Richard gave Susan written permission to remove the child from Illinois. Richard contends that he signed the consent form to remove the child because he thought his wife was going to take his child to the Michigan area where a family and friend support system existed.

On August 21, 1985, Richard obtained a temporary restraining order enjoining Susan from removing the child from Illinois on a permanent basis. On September 20, 1985, Susan was found in contempt of court and fined $1,000 per day for so long as she remained outside of Illinois. Susan had moved to Hawaii at the end of August. On October 15, 1985, the order was modified at Richard’s request, such that Susan was given permission to remove the child to Hawaii, the $1,000-per-day fine was forgiven and maintenance was terminated effective June 1, 1988. However, judgment was entered in favor of Richard and against Susan in the amount of $25,000. This award was to be released and satisfied on Jerod’s 18th birthday, provided that Susan comply fully with this order and with the court’s previous February 8, 1982, order. It should be noted that no petition was ever filed requesting the respondent be found in contempt of court, nor was any petition filed to amend the contempt order. It follows that respondent was not given any notice of these proceedings. Between October 29, 1985, and October 9, 1987, Susan filed a number of motions to vacate the court’s order of October 15, 1985. These motions were denied on July 18,1988, and Susan has appealed.

Initially, Susan argues that the trial court improperly issued a temporary restraining order without the filing of a valid petition requesting such an order. The record reveals and Richard does not deny, that he failed to file the proper pleadings to request a temporary restraining order. The motion filed by Richard seeks an injunction preventing permanent removal of the child from Illinois. The motion states that Susan intends to move to Hawaii, and if she does so, Richard’s rights will be adversely affected and that he does not have an adequate remedy at law.

The requirements for a temporary restraining order are provided for in the Code of Civil Procedure. Section 11 — 101 (Ill. Rev. Stat. 1987, ch. 110, par. 11 — 101) provides in relevant part:

“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon ***.”

It is undisputed that Richard did not file either a verified petition or an affidavit or any documents requesting the issuance of a temporary restraining order. Of course, if no supporting pleadings were filed, there were no facts stated in accordance with the requirements of a temporary restraining order. Thus, the temporary restraining order proceeding was transparently invalid. People ex rel. Watson v. Spinka (1978), 58 Ill. App. 3d 729, 374 N.E.2d 787.

Plaintiff argues that even if the issuance of the temporary restraining order is improper, Susan was not legally free to disregard the order with impunity. Richard further contends that the trial court possessed jurisdiction to enter this order because the relief sought was before the same circuit court which had granted the Kowalskis’ judgment for dissolution of marriage.

Plaintiff’s argument is incorrect. A verified petition is a necessary requirement in order to permit the court to act without notice to a defendant and would have to be considered the statutory equivalent of notice. However, without fulfilling the statutory requirements, it can be determined that the court lacked jurisdiction to enter the ex parte order. All of the orders complained of were obtained ex parte and without notice as is required in a contempt proceeding. Consequently, no jurisdiction over the person was obtained.

We find the court lacked jurisdiction to issue the August 21, 1985, temporary restraining order and did not have jurisdiction to enter the contempt and modification orders.

For the foregoing reasons the judgment of the circuit court of Knox County is reversed.

Reversed.

WOMBACHER, P.J., and HEIPLE, J., concur.


author: JUSTICE SCOTT

text:
      In re MARRIAGE OF JUDITH L. POTTS, f/k/a Judith L. Lohman, Petitioner-Appellee, and NORRIS P. LOHMAN, Respondent-Appellant.
    Third District
    No. 3—88—0772
    Opinion filed July 18, 1989.

      Norris Lohman, of New Lenox, appellant pro se.

    No brief filed for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The respondent father, Norris P. Lohman, filed a petition for a rule to show cause, alleging that the petitioner mother, Judith L. Potts, had failed to pay one-half of their children’s educational expenses as provided by a September 16, 1983, court order. After a hearing on the merits, the trial court denied Norris’ petition, holding that his claim was barred by principles of res judicata and estoppel. He appeals.

The record reveals that the parties’ marriage was dissolved on July 8, 1976. Custody of the couple’s three minor children, Rick, Steve, and Chris, was awarded to Judith. Pursuant to a property settlement agreement made part of the judgment for dissolution, Norris was ordered to pay $400 a month in child support. On September 16, 1983, pursuant to Judith’s petition to modify the dissolution decree, an agreed order was entered by the court. The portion of the order relevant to this appeal provided that the parties would share equally in the college expenses of their children.

The record shows that around the time of the September 16, 1983, order, Rick began his college education. He eventually spent two years at Joliet Junior College and two years at Illinois State University, where he completed his senior year in May of 1987. During those four years, Rick spent $5,724.76 on tuition, fees, and books. Norris gave Rick checks amounting to $6,556.59 for those expenses. Judith’s contribution to Rick’s educational expenses consisted of paying $70 he owed for a parking ticket, and following graduation, giving him $2,500.

In September of 1985, Steve, the parties’ second child, began attending the University of Illinois. For the 1985-1986 school year, he received grants and scholarships which covered his educational expenses. However, for the 1986-1987 school year he received no scholarship money and as a result incurred educational expenses of $2,128.40. Norris gave him a check for $2,650 to cover those expenses. During the summer of 1986, Steve attended Joliet Junior College and Judith gave him $105 to cover that tuition.

In November of 1986, Norris wrote Judith a letter reminding her of the 1983 agreement and her duty to pay half of the children’s educational expenses. On November 19, 1986, Judith filed a petition to modify the judgment of dissolution by increasing the amount of Norris’ monthly child support obligation to 20% of his net income. On July 29, 1987, an agreed order was entered whereby Norris agreed to pay a greater amount of monthly child support for Chris, the only child still living with Judith. The order further provided that Judith would pay one-third of Steve’s and Chris’ educational expenses, while Norris would pay the balance. The order did not mention college expenses for Rick, who had graduated about two months earlier.

In November of 1987, Norris wrote a letter to Judith informing her that she still owed one-half of Rick’s and Steve’s educational expenses for the period from the 1983 order until the 1987 order. After waiting a few months, Norris filed a petition for the issuance of a rule to show cause why Judith should not be held in contempt of court for failing to comply with the court’s September 16, 1983, order. Judith filed a response to the petition, alleging that the matter of unpaid educational expenses had been resolved by the 1987 order and that Norris’ petition should be dismissed since the 1987 order made no mention of her arrearage in educational expenses. Following a hearing on the matter, the trial court dismissed Norris’ petition, finding that the doctrines of res judicata and estoppel barred his claim. Norris then filed a motion to reconsider. After hearing arguments on the motion, the trial court denied it.

Initially, we note that Judith has not filed an appellee’s brief. This will not preclude our consideration of the merits of this case, since the record is complete and the issues are straightforward. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On appeal, Norris argues that the judgment in the previous action did not bar his current claim. He contends that the trial court erroneously applied the doctrines of res judicata and estoppel.

The doctrine of res judicata reflects the public policy favoring finality in litigation and judicial economy. (Pfeiffer v. William Wrigley Jr. Co. (1985), 139 Ill. App. 3d 320, 484 N.E.2d 1187.) The doctrine is divided into two branches: estoppel by judgment, sometimes referred to as res judicata-, and estoppel by verdict, also known as collateral estoppel. (Redfern v. Sullivan (1983), 111 Ill. App. 3d 372, 444 N.E.2d 205.) Estoppel by judgment provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action; the doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. (Redfern v. Sullivan (1983), 111 Ill. App. 3d 372, 444 N.E.2d 205.) However, the dimension of estoppel by judgment that bars matters which might have been litigated applies only where the first and second causes of action are identical. (Pfeiffer v. William Wrigley Jr. Co. (1985), 139 Ill. App. 3d 320, 484 N.E.2d 1187.) Causes of action are identical where the evidence necessary to sustain the second cause would have sustained the first cause, or where the causes of action are based on a common core of operative facts. Cangas v. Marcus Auto Lease Cory. (1988), 176 Ill. App. 3d 127, 530 N.E.2d 1101.

In the instant case, Norris’ current claim was not identical to Judith’s claim in the previous action. An examination of the proof required in the two actions reveals that the same evidence would not sustain both actions and that the facts essential to one cause would not be essential to the other. Norris’ current action requires proof of the past educational expenses actually incurred by the children and proof of nonpayment of one-half of those expenses by Judith. On the other hand, Judith’s claim for modification of child support required proof of a substantial change in circumstances since the last decree. (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) Further, in modifying Norris’ support obligation, the court had to consider the relevant statutory factors, which included the financial resources of the child, the financial resources and needs of the custodial and noncustodial parents, and the standard of living the child would have enjoyed had the marriage continued. (Ill. Rev. Stat. 1987, ch. 40, par. 505(2).) There is no significant evidentiary overlap between these causes. Thus, Judith’s action seeking an increase in child support for Chris had no effect on Norris’ action seeking reimbursement from Judith for her alleged failure to contribute to Rick's and Steve’s college expenses.

The doctrine of estoppel by verdict (collateral estoppel) is also inapplicable to the case at bar. Under this doctrine, a prior judgment estops the parties from relitigating those issues actually and necessarily decided in the prior action; however, collateral estoppel does not apply to issues which were not actually decided or which were incidental and not essential to the judgment in the prior action. (Lael v. Warga (1987), 155 Ill. App. 3d 1005, 508 N.E.2d 1095.) If there is any uncertainty on this point, collateral estoppel will not be applied. (Cangas v. Marcus Auto Lease Corp. (1988), 176 Ill. App. 3d 127, 530 N.E.2d 1101.) The burden is on the person relying on the doctrine to show its applicability with certainty and clarity. Redfern v. Sullivan (1983), 111 Ill. App. 3d 372, 444 N.E.2d 205.

We find nothing in the record before us to suggest that the prior judgment actually or necessarily determined the parties’ rights with respect to the alleged arrearage in Judith’s contributions to the children’s educational expenses. Furthermore, the relevant part of the 1987 consent order provided that Judith would pay one-third of Steve’s and Chris’ college expenses while Norris would pay the balance. We note that the order was silent regarding the alleged arrearage and that it did not mention Rick, who had previously graduated. It is the duty of the party asserting the defense of collateral estoppel to show with certainty and clarity what was determined by the prior judgment. We find that Judith did not meet this burden. Consequently, the prior judgment cannot be asserted under the doctrine of collateral estoppel to bar the instant action by Norris.

Accordingly, the judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and STOUDER, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. BRAD LIEBERMAN, Petitioner-Appellant.
    Second District
    Nos. 2—87—0627, 2—87—1193 cons.
    Opinion filed July 28, 1989.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant appeals from two orders of the circuit court of Lake County. On June 29, 1987, the court dismissed defendant’s second petition for post-conviction relief. On July 1, 1987, the court found, upon remand of part of defendant’s first petition for post-conviction relief, that the jury in defendant’s trial was not tainted by prejudicial publicity. We affirm.

Defendant Brad Lieberman (Lieberman) was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(a)), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1), and intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(1)) in the circuit court of Lake County in 1980. The conviction and sentences were affirmed in a Rule 23 order issued on December 7, 1982.

On March 23, 1984, Lieberman filed a petition for post-conviction relief. The public defender was appointed to the case, and supplemental petitions were filed on Lieberman’s behalf. The circuit court denied this petition on October 15, 1984. This court affirmed in part, and remanded for an evidentiary hearing on Lieberman’s contention that the jury had been tainted by prejudicial publicity. The supreme court denied leave to appeal the portions affirmed.

Lieberman sought leave to file a second petition for post-conviction relief in these proceedings, alleging the ineffective assistance of his attorney at trial, the ineffective assistance of his attorney at the hearing for post-conviction relief, and the existence of a new scientific test to prove his innocence. The circuit court denied leave to do so, and Lieberman appealed. The appeal was dismissed when, upon the filing of the second petition, Lieberman withdrew his appeal.

Meanwhile, the State filed a motion to dismiss the second petition for post-conviction relief. The circuit court dismissed the petition following a hearing on June 29, 1987. The court then held the evidentiary hearing, required by the remand order, on the issue of jury exposure to prejudicial publicity The court found adversely to Lieberman. It is from these rulings that Lieberman now appeals.

The first issue is whether the circuit court properly dismissed Lieberman’s second petition for post-conviction relief. To begin with, Lieberman’s contention that the trial court denied him the right to file his second petition is absurd. The record contains 48 pages of court proceedings devoted to the hearing on the second petition held on June 28, 1987. The final page contains an oral order by the trial judge dismissing the petition. This is in addition to countless other motions and proceedings regarding the petition. Lieberman himself admitted at the hearing that his petition was filed. To argue now that he was denied right to file is ridiculous. The second petition was filed and was ruled on by the court.

Secondly, section 122 — 3 of the Post-Conviction Hearing Act provides that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 3.) This makes clear that only one petition for post-conviction relief is contemplated by the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 1 through 122 — 8. ) A defendant is to get “one complete opportunity to show a substantial denial of his constitutional rights.” (People v. Logan (1978), 72 Ill. 2d 358, 370.) However, when proceedings on a petition are deficient in some fundamental way, a court may allow the filing of successive post-conviction petitions. People v. Free (1988), 122 Ill. 2d 367, 376.

In order to determine whether or not the proceedings on the first petition were deficient, it is essential that the proceedings be finally resolved. This is only logical. It would be absurd to rule on the sufficiency or deficiency of a proceeding that is not yet complete. Our system of appellate review is based on this general principle, as only final orders are appealable. It should make no difference that, in this case, the court reviewing the proceedings is another trial court. Lieberman’s contention in his second petition, of ineffective assistance of counsel at his first post-conviction hearing, is partially dependent upon the finding of a tainted jury at trial. In would make no sense to determine the issue of ineffective assistance of counsel first.

This principle also best serves the interests of judicial economy. If the proceedings on the first petition reveal constitutional error in the trial, the second petition becomes meaningless. Any proceedings on, or subsequent appeals from, the second petition would be a waste of the judicial system’s time and resources. In this case, Lieberman attempted to file a second petition while he was appealing the results of his first petition hearing. When the trial court refused to allow the filing of the petition, Lieberman appealed the denial. Lieberman withdrew this appeal when he was allowed to file his second petition. The second petition was subsequently dismissed before the remand hearing on the first petition. This procedural morass was further confounded by the fact that four trial court judges were involved at one time or another with these petitions. This confusion is unnecessary. By terminating the proceedings on a petition before even entertaining the possibility of a second petition, courts can properly determine the need for another proceeding under Free and also preserve the resources of the Illinois judicial system.

We must still, however, deal with the Byzantine procedural legacy of this case. The record shows the following pronouncement at the conclusion of the hearing on the motion to dismiss the second petition:

“THE COURT: *** The only thing the Second Rule dictates is an order to this Court to go into the allegations of jury exposure to prejudicial publicity about the defendant, and that is the sole issue before this Court.
Without any further ado, the Court finds that there has been fundamental fairness thus far, and that you have not been deprived of any fundamental fairness, and, as a result, the Court is going to deny and accept the Petition for Post-Conviction Relief, and the Court will proceed with the hearing as dictated to this Court by the Appellate Court in its Second Review.”

The court later stated that, “[a]s a result, the Motion to Dismiss the petition for post-conviction relief has been heard and allowed, and the post-conviction petition for relief filed March 26, 1987 shall be and is hereby ordered dismissed.”

From the statements, it is impossible to determine the court’s reasoning for the dismissal. The court first states that the only issue properly before it is the issue on remand, suggesting that the second petition was not timely argued. In the next sentence, the court mentions a lack of deprivation of fundamental fairness as the basis for its dismissal. As we stated earlier, this would be an absurdity, as the court could not find fundamental fairness, or a deficiency of it, before the termination of the proceedings on the first petition. In addition, the State, in its motion to dismiss and its arguments before the court, argued that at least some issues in the second petition were waived when they were not raised in the first petition or any of several appeals. The order of dismissal is at best ambiguous. Whether an order is written or, as in this case, oral, the trial judge should include a brief statement clearly indicating his or her findings and reasons for the order. (People v. Hamby (1965), 32 Ill. 2d 291, 294.) Otherwise, reviewing courts may be unable to determine exactly upon what basis the trial court ruled.

Although we do not know the trial court’s basis for dismissal, we still affirm it. A trial court’s order may be sustained on appeal for reasons other than those given by it. (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 9.) At the time of the hearing, Lieberman had not had his “one complete opportunity to show a substantial denial of his constitutional rights.” (Logan, 72 Ill. 2d at 370.) Until Lieberman has had this opportunity, the court cannot consider his claims of fundamental deficiency of the post-conviction hearing. (See Free, 122 Ill. 2d at 376.) The trial court never reached the merits of the second petition, and the petition was properly dismissed. Although our decision today does not necessarily preclude Lieberman from filing another petition, based on the same allegations as in the petition just dismissed, we note that Lieberman will be precluded, under the doctrine of res judicata, from raising the issue of jury taint as applied to the allegation of ineffective assistance of counsel at his first hearing.

The second issue is whether the trial court’s finding that the jury in Lieberman’s trial was not tainted by prejudicial publicity was clearly erroneous. We determine that it was not.

In a hearing under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), the petitioner has the burden of alleging and proving facts which show that he is entitled to the relief requested. (People v. Bracey (1972), 51 Ill. 2d 514, 517.) To warrant a reversal on allegations of improper influence on the jury of prejudicial publicity, it must appear that at least some of the jurors were influenced or prejudiced so that they could not be fair and impartial. People v. Rogers (1985), 135 Ill. App. 3d 608, 625.

Lieberman contends that several jurors, either before or during the trial, were exposed to prejudicial publicity regarding his recent conviction in Cook County on a charge of rape and his alleged involvement in a series of rapes in the Chicago area. At the hearing, Lieberman advanced three specific instances of alleged exposure. First, he contended that some of the jurors had been exposed to a newspaper article that detailed his prior rape conviction in Cook County. The article also called Lieberman “the plumber rapist,” a well-known nickname given to Lieberman for his alleged modus operands in a series of rapes. At the hearing, Lieberman presented the testimony of six family members who testified that, at a lunch recess during the trial, they overheard four jurors discussing the newspaper article. However, these family members were unable to identify the jurors in question or even the restaurant in which the alleged incident was to have occurred.

Second, Lieberman produced the testimony of juror Thomas Kotelnicki. After the trial, Kotelnicki had signed an affidavit indicating that he had been exposed to the nickname “plumber rapist” during the trial. However, at the hearing, Kotelnicki testified that he first heard the nickname after the verdict, when the trial judge informed the jurors that Lieberman was the so-called “plumber rapist.”

Third, Lieberman produced the testimony of Judge Block, who presided over Lieberman’s trial. Judge Block testified that, when he informed the jurors after the verdict that Lieberman was the “plumber rapist,” some jurors said that they remembered having heard of the “plumber rapist.” However, Judge Block also stated that he saw a reaction of surprise in response to his announcement.

In no instance did Lieberman sustain his burden of proof. He did not prove, in any of his three contentions, juror contact with prejudicial publicity, let alone actual juror prejudice. Lieberman was unable to produce one juror to testify that he or she had come in contact with the publicity. Even juror Kotelnicki, on whose affidavit Lieberman relies, explained that his exposure to the “plumber rapist” nickname came after the verdict. The State, on the other hand, produced the testimony of seven jurors that denied any contact with publicity before or during the trial. Lieberman’s speculation on the possible exposure of the jurors not called to testify is without merit. As he bore the burden of proof, it was his responsibility to call these jurors as witnesses. He cannot now complain that the State should have called all the jurors to testify.

The judge at the hearing had the opportunity to observe the witnesses’ demeanor. The credibility of testimony at the hearing is a matter for the trial judge to determine, and this determination will be upheld unless something appears to show that it was manifestly erroneous. (Bracey, 51 Ill. 2d at 517.) Lieberman cites case law to support his contention that credibility of jurors on the subject of influence of publicity is open to question by reviewing courts. (See People v. Hryciuk (1954), 5 Ill. 2d 176; People v. Keegan (1971), 52 Ill. 2d 147; People v. Taylor (1984), 101 Ill. 2d 377; People v. Rogers (1985), 135 Ill. App. 3d 608.) However, his reliance on these cases is misplaced, as, in each case, the jurors were admittedly known to have been exposed to publicity. These cases are inapplicable to the case before us, since no exposure to publicity has been proved. We determine that the findings of the trial court are not manifestly erroneous and will not be disturbed.

For the reasons stated above, we affirm the judgment of the circuit court of Lake County.

Affirmed.

NASH and REINHARD, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ZAREBSKI, Defendant-Appellant.
    Second District
    No. 2—87—1150
    Opinion filed July 25, 1989.

      John J. Westra, Paige Comstock Cunningham, and Ronald M. Farley, all of Johnson, Westra, Whittaker & Austin, P.C., of Carol Stream, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Robert S. O’Shea, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Robert Zarebski, was convicted following a jury trial on two counts of violating an order of protection entered pursuant to the Illinois Domestic Violence Act (Ill. Rev. Stat. 1985, ch. 40, par. 2301 — 1 et seq.). The jury concluded that defendant violated the order of protection by harassing and entering the residence of his estranged spouse, Leslie Zarebski. Defendant appeals his convictions, arguing that (1) the trial court erred in permitting two undisclosed witnesses to testify for the State; (2) the trial court erred by limiting defendant’s cross-examination of Leslie; (3) defendant was denied a fair trial by questions propounded by the State and by the State’s closing argument; (4) the trial court erred by denying defendant’s motion for a directed verdict on count I of the complaint, which alleged that defendant harassed Leslie; (5) the State failed to prove defendant guilty beyond a reasonable doubt on the basis that defendant did not knowingly violate the order of protection; and (6) defendant was denied the effective assistance of counsel. We affirm.

On July 9, 1986, Leslie obtained an ex parte order of protection prohibiting defendant from “striking, threatening, harassing or interfering with Leslie R. Zarebski or any other family or household member.” The order also granted Leslie possession of the parties’ residence to the exclusion of defendant. The order was effective from July 9, 1986, to July 16, 1986. On July 13, 1986, defendant was involved in an incident at the premises during which he engaged in an argument with Everett Tracy, a family friend who was visiting Leslie at the time. Defendant left the premises but was later arrested and charged with violating the order of protection by harassing Leslie and entering the premises.

Prior to trial, defendant filed a motion for a bill of particulars requesting the State to describe the manner in which defendant harassed Leslie and entered the premises. The State responded by alleging that defendant “harassed Leslie Zarebski *** by yelling profanities and threatening Everett Tracy who was present at the time in question.” The State further alleged that defendant entered the premises “by unlocking the front door with a key” and entering the front hallway.

The trial commenced on September 30, 1987. Leslie testified that on July 13, 1986, she was at home with her four children and her eldest son’s girlfriend. Everett Tracy and his minor daughter were also present. After finishing dinner, Tracy began installing chain locks on the doors of the house. Sometime after 7 p.m., Leslie’s eldest son, Rick Zarebski, announced that defendant had parked his car in front of the house and was approaching the front door. Leslie testified that she also saw defendant exit his vehicle and approach the house. Leslie told her children to go into the basement while she telephoned the police. Defendant subsequently entered the house through the front door and confronted Tracy. Leslie stated that defendant swore at Tracy and ordered him out of the house. Leslie further testified that defendant ignored Tracy’s request for defendant to leave and began to approach her instead. Defendant subsequently left the house. Leslie stated that she was terrified by the incident and was “scared that [her] life was over.” On cross-examination, Leslie testified that she was involved in a contested divorce with defendant and that her relationship with him was hostile. Leslie denied that she had previously communicated any desire to speak to defendant on the date of the incident.

The State next called Deputy Robert Lesner of the DuPage County sheriff’s department. Deputy Lesner testified that he served defendant with the order of protection, read it to him, and answered defendant’s questions regarding its prohibitions. Deputy Lesner told defendant that he would be in violation of the order and subject to immediate arrest if he attempted to go to the residence.

The State next called Everett Tracy. Tracy testified that he was a friend of the Zarebskis and had frequent contact with them. Tracy testified that he was aware that an order of protection had been entered against defendant and witnessed Deputy Lesner serve and read defendant the order. Tracy stated that he was at the Zarebski residence on July 13, 1986, when defendant arrived. Tracy testified that defendant entered the residence through the front door, swore at him, and ordered him out of the house. Tracy also testified that defendant walked further into the house as Tracy attempted to talk him into leaving. Tracy stated that he could not recall whether defendant said anything to Leslie, who was on the phone with police at the time. Defendant subsequently left the premises. Tracy denied making any physical contact with defendant on that occasion.

The State next called Rick Zarebski. Rick testified that he was present at the Zarebski residence on July 13, 1986, when defendant arrived. Rick stated that at approximately 7:30 p.m., he saw defendant drive by the residence, turn around, park his car in front of the house, and approach the front door. Rick testified that he told the occupants of the house, including Leslie, that defendant was approaching the front door. Rick saw Leslie pick up the telephone and heard defendant insert a key into the lock and open the front door. Rick testified that defendant came through the front door and confronted Tracy by yelling obscenities and ordering him out of the house. Rick further stated that Tracy attempted to talk defendant into leaving but that defendant stepped past Tracy and began to approach Leslie. Defendant subsequently left the premises and was accompanied to his car by Tracy. On cross-examination, Rick stated that he did not witness defendant either speak to or strike Leslie at that time.

The State next called Deputy Robert Sebby of the DuPage County sheriff’s department. Deputy Sebby testified that he was dispatched to the Zarebski residence in response to a domestic dispute on July 13, 1986. Deputy Sebby spoke to Leslie, who he characterized as “very distraught, almost near hysterical.” Deputy Sebby further testified that it took approximately 20 to 30 minutes before Leslie calmed down enough to talk to him.

At the conclusion of the State’s case, defendant moved for a directed verdict on count I of the complaint, which alleged that defendant harassed Leslie. Defendant noted that there was no evidence that he even spoke to Leslie, and further argued that his conduct toward Everett Tracy did not constitute harassment of Leslie. The trial court denied defendant’s motion after concluding that the issue was a question of fact for the jury.

The trial continued with the testimony of Debbie Zarebski, defendant’s sister. Debbie testified that on July 13, 1986, at approximately 4 p.m., Leslie telephoned her with a message that Leslie wanted to speak to defendant. Debbie stated that she delivered that message to defendant several hours later.

Defendant testified on his own behalf. Defendant testified that he did not understand the order of protection and attempted to speak to the judge who issued the order to find out exactly what it entailed. Defendant testified that the judge was reluctant to discuss the case and suggested that defendant retain counsel. Defendant stated that he did not retain counsel at that time. Defendant testified that on July 13, 1986, his sister advised him that Leslie wanted to speak to him. Defendant stated that he subsequently went to the premises in response to Leslie’s request. Defendant testified that he wras walking toward the front door of the premises when he heard Leslie scream and saw her and Tracy embracing in the kitchen. Defendant stated that Tracy met him at the front door and pushed him back. Defendant further testified that he told Tracy to leave the premises at which time Tracy grabbed defendant “by the throat” and told him not to return or Tracy would kill him. Defendant denied threatening Tracy and stated that he immediately left the premises. Defendant also denied entering the premises.

The jury returned guilty verdicts on both counts of the complaint. The trial court subsequently denied defendant’s motion for a new trial and sentenced defendant to concurrent terms of one year of conditional discharge and 80 hours of public service. Defendant was also fined $250 on each count. Defendant filed this timely appeal.

Defendant first contends that the trial court erred in permitting the testimony of two witnesses for the State who were not disclosed prior to trial. Defendant argues that the testimony of Rick Zarebski and Deputy Sebby resulted in surprise and prejudice to defendant so as to require reversal. We disagree.

It is within the discretion of the trial court to allow a previously unlisted witness to testify at trial, and the trial court’s decision will not be disturbed absent an abuse of that discretion. (People v. Jordan (1967), 38 Ill. 2d 83, 93; People v. Frisco (1972), 4 Ill. App. 3d 1034, 1036.) A reviewing court will find an abuse of discretion when the record demonstrates surprise or prejudice to the defendant. (People v. Millan (1977), 47 Ill. App. 3d 296, 300; Frisco, 4 Ill. App. 3d at 1036.) The burden is on the defendant to show surprise or prejudice. See Jordan, 38 Ill. 2d at 93.

In the instant action, Rick Zarebski, Deputy Sebby, and Deputy Lesner were not disclosed as witnesses for the State prior to trial. Defendant only challenges the testimony of Rick Zarebski and Deputy Sebby. Initially, we note that defendant did not object to either witness on the basis of nondisclosure. We agree with the State that defendant’s failure to object to the testimony of these witnesses on the basis of nondisclosure constitutes a waiver of this issue on appeal. While we note that there is a reference in the transcript of defendant’s post-trial motion that “unrecorded” objections may have been raised as to Leslie Zarebski and Deputy Lesner, Deputy Lesner’s testimony is not challenged on appeal and defendant does not contend that any objection was made with respect to Rick Zarebski. Indeed, in his argument that he was denied effective assistance of counsel, defendant states that his attorney did not object to the State calling Rick Zarebski. Furthermore, the colloquy at the post-trial motion hearing indicates that defendant was given an opportunity to speak to any undisclosed witnesses prior to the State’s examination. Moreover, the trial transcript indicates that defendant engaged in a thorough cross-examination of each witness. Thus, even assuming defendant did not waive the issue of nondisclosure by failing to object, the record does not support his allegation of prejudice. Accordingly, we conclude that the trial court did not err in permitting the testimony of Rick Zarebski or Deputy Sebby.

Defendant next contends that the trial court erred in limiting defendant’s cross-examination of Leslie. Defendant argues that the trial court improperly prohibited defendant from cross-examining Leslie regarding the nature of her divorce from defendant so as to establish bias, prejudice, and ulterior motive for her testimony. We disagree.

Generally, a defendant is entitled to wide latitude in conducting a cross-examination of a witness for the purpose of establishing bias. (People v. Rufus (1982), 104 Ill. App. 3d 467, 473.) In determining whether a trial court has improperly restricted the scope of cross-examination resulting in reversible error, the test is whether the trial court has clearly abused its discretion such that manifest prejudice results. (Rufus, 104 Ill. App. 3d at 474.) In Rufus, wherein the defendant was improperly restricted from cross-examining a State’s witness regarding the specific nature of charges pending against him, the appellate court concluded that no prejudicial error requiring reversal resulted in that defense counsel was not precluded from establishing the existence of pending charges and therefore brought the credibility of the witness into question. 104 Ill. App. 3d at 474.

In the instant action, defendant was permitted to elicit testimony from Leslie Zarebski that she and defendant were involved in a “contested divorce.” However, in allowing defendant to obtain that testimony, the trial court stated that it did not want to get involved in a divorce proceeding. While defendant now challenges that ruling as a “limitation” precluding him from establishing Leslie’s bias, it is clear from a complete reading of the record that the jury was aware of the hostility between Leslie and defendant, and defendant was permitted to challenge her credibility as a result. Indeed, the trial court emphasized the nature of the “contested” divorce proceeding by asking the witness whether she and defendant were “fighting” or “arguing about various matters.” The witness answered affirmatively, and the jury was left to draw whatever conclusions it wished from that testimony. Defendant further commented on this hostility in his closing argument wherein he stated that Leslie had something to gain by having defendant found guilty of a crime. From this evidence it is clear that defendant was able to establish bias without improper limitation. Moreover, defendant did not offer to the trial court, nor argue to this court, what questions and answers he would have otherwise elicited from the witness regarding her divorce proceeding. Accordingly, we conclude that no error was committed by the trial court with respect to limiting defendant’s cross-examination of Leslie.

Defendant next contends that certain questions propounded by the State and the State’s closing argument were prejudicial and denied him a fair trial. Specifically, defendant cites the State’s attempt to elicit testimony regarding Leslie’s whereabouts prior to the incident and the whereabouts of the children during the incident as attempts to prejudice the jury. Defendant further argues that the State’s closing argument characterizing the trial court as the victim in the instant action was improper and prejudicial. We disagree.

In support of his argument, defendant cites People v. Weinger (1981), 101 Ill. App. 3d 857. In Weinger, the appellate court reversed a defendant’s conviction after concluding that the State’s improper conduct during the trial prejudiced defendant. (Weinger, 101 Ill. App. 3d at 872.) Specifically, the court noted that the State’s failure to introduce evidence previously promised in its opening statement, repeated attempts to get witnesses to answer questions to which the trial court had already sustained defense objections, and references to excluded evidence during its closing argument deprived the defendant of his constitutional right to a fair trial. (101 Ill. App. 3d at 867-72.) In so ruling, the court stated that it had examined the entire record and, “[w]hen considered as-a whole,” it could not say that the many trial errors committed were harmless beyond a reasonable doubt or that they did not contribute to the convictions. 101 Ill. App. 3d at 872.

Defendant’s reliance on Weinger is misplaced. The record in the instant action does not indicate the extreme form of prosecutorial misconduct that was present in the Weinger case. Defendant’s assertion that the State, “on many different occasions,” either directly asked or tried to elicit prejudicial answers concerning Leslie’s whereabouts prior to the incident is without merit. We note that the first reference to Leslie’s whereabouts prior to the incident was not elicited as the result of an improper question by the State, but rather occurred in a narrative given by the witness during which she noted that defendant had been circling her house “since [she] came home from the shelter.” An objection to that reference was immediately sustained, and the only other reference with respect to Leslie’s whereabouts prior to the incident came during the State’s redirect examination when she was asked about her whereabouts on July 11, 1986. Defendant objected to Leslie’s response that she was at the family shelter, and the trial court immediately sustained the objection and told the jury to disregard her answer. We cannot say that this reference so prejudiced defendant that he was denied a fair trial. We note that defendant did not state the basis for his objection to the first reference to the family shelter such that the State could have been placed on notice of its impropriety. In any event, we are not of the opinion, viewing the record as a whole, that this single additional reference to Leslie’s whereabouts prejudiced the jury, particularly since the trial court immediately sustained defendant’s objection to that reference and admonished the jury to disregard it.

Similarly, we cannot say that references to the whereabouts of the children during the incident were prejudicial and denied defendant a fair trial. Leslie testified that prior to defendant entering the house, she instructed her children to go down into the basement. The trial court overruled defendant’s objection to this testimony. The State did not attempt to elicit, nor did Leslie offer, a reason for sending the children to the basement. However, two further attempts by the State to ask other witnesses about the whereabouts of the children during the incident were objected to and sustained on the basis that the whereabouts of the children was immaterial to the action. Defendant draws this court’s attention to a third attempt to determine the whereabouts of the children; however, a review of the record indicates that this testimony concerned the whereabouts of the children at the time defendant was served with the order of protection and does not relate to defendant’s argument on this issue. We do not consider the State’s attempt to elicit testimony regarding the whereabouts of the children to be prejudicial in this action. We note that the State was allowed to elicit that information from Leslie; therefore, we find no impropriety in the State’s attempt to elicit the same information from only two subsequent witnesses. In any event, the court sustained defendant’s objections to additional testimony regarding the whereabouts of the children. Accordingly, we do not consider the State’s questioning of the witnesses to have prejudiced defendant.

Defendant’s additional argument that he was prejudiced by the State’s closing argument characterizing the trial court as the victim in this action is also without merit. We note that the State referred to the trial court as the victim in the instant action on three separate occasions during its closing argument. Defendant failed to object to that characterization on the first two occasions, and defendant’s objection to the third such characterization was immediately sustained. While we might agree that the State’s characterization was not correct, we do not consider these references, when viewed in the context of the entire argument, as prejudicing the jury in the instant action. Accordingly, we conclude that defendant was not denied a fair trial as a result of prosecutorial misconduct.

Defendant next contends that the trial court erred in denying his motion for a directed verdict on count I of the complaint at the close of the State’s case. Defendant argues that no evidence was introduced establishing that defendant spoke to or physically touched Leslie, and therefore, the State failed to prove that defendant “harassed” her. We disagree.

The order of protection precluded defendant from “striking, threatening, harassing or interfering with the personal liberty of Leslie R. Zarebski or any other family or household member.” Harassment results from intentional acts which cause someone to be worried, anxious, or uncomfortable. (People v. Whitfield (1986), 147 Ill. App. 3d 675, 679.) The protagonist must knowingly cause his victim to suffer emotional distress. (Whitfield, 147 Ill. App. 3d at 680.) Thus, for harassment to exist, there does not need to be any overt act of violence. 147 Ill. App. 3d at 679.

In the instant action, the State alleged that defendant “harassed Leslie Zarebski *** by yelling profanities and threatening Everett Tracy who was present at the time in question.” The evidence indicates that Leslie was present at the time, was on the phone with police attempting to have defendant removed from the house, and was approached by defendant while she was speaking to police. Thus, we need not determine whether defendant’s conduct of speaking to an acquaintance or neighbor of the protected party constitutes harassment of the protected party since there is evidence that Leslie, the protected party in the instant action, was the subject of defendant’s conduct. Defendant knew that the order of protection barring him from harassing Leslie was in effect on July 13, 1986. Defendant nonetheless entered the residence with knowledge that Leslie was present and, in her presence, engaged in a shouting match with her guest and ordered him out of the house. This conduct, especially when coupled with his act of approaching Leslie before exiting the premises, could certainly be found by a jury to constitute “harassment” of Leslie. In addition, Deputy Sebby’s testimony that Leslie was “near hysterical” clearly indicates her state of mind after the incident. Accordingly, we conclude that the trial court did not err in denying defendant’s motion for a directed verdict.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt as to the issue of whether he knowingly violated the order of protection when he went to the premises. Defendant argues that the evidence indicated that he was confused with respect to the scope of the order and therefore could not be found guilty of knowingly violating the order. We disagree.

A jury verdict will not be set aside unless the evidence is so palpably contrary to the verdict so as to create a reasonable doubt of guilt. (People v. Gosse (1983), 119 Ill. App. 3d 733, 738.) It is the function of the jury to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Martinez (1984), 129 Ill. App. 3d 145, 161-62.) Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the jury. Martinez, 129 Ill. App. 3d at 162.

The evidence in the instant action regarding defendant’s knowledge at the time he went to the residence is conflicting. Defendant asserts that he did not know the scope of the order and supports that assertion with testimony that he approached the trial judge who issued the order and attempted to clarify its meaning. However, additional evidence indicates that the officer who served defendant with the order advised him that he would be in violation of the order if he were to go to the house even for the purpose of removing his belongings. Defendant’s further assertion that he went to the premises at Leslie’s request is also contradicted. Leslie flatly denied that she left a message with defendant’s sister indicating that she wanted to speak to him. Thus, the resolution of defendant’s knowledge at the time he entered the premises and his purpose for going to the premises was a question of fact for the jury. The jury apparently weighed the credibility of the witnesses in favor of the State. The evidence does not compel a contrary determination, and, therefore, we will not set aside the jury’s verdict.

Defendant’s final contention challenges the competence of his trial counsel. Defendant argues that he was denied the effective assistance of counsel in that his attorney failed to (1) object to the testimony of Rick Zarebski on the basis that he was an unlisted witness; (2) request a continuance when the State produced three undisclosed witnesses at trial; (3) object to certain questions propounded by the State; (4) object to inflammatory statements made by the State during closing argument; (5) adequately prepare for trial in that he only met with defendant for five minutes immediately prior to the trial; and (6) request a change of venue. We disagree.

In order to prevail on an ineffective assistance of counsel claim, defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced him. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) To overcome the presumption that counsel’s performance fell within the wide range of professionally competent assistance, defendant must prove that counsel’s representation fell below an objective standard of reasonableness. (Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In other words, defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

In the instant action, beyond providing this court with a shopping list of ways in which defendant’s trial counsel was incompetent, defendant fails to elaborate on how his attorney’s conduct was professionally deficient and further fails to argue how each item listed prejudiced his case. Indeed, defendant’s allegations of incompetence of counsel are without merit. We note that defendant’s allegations with respect to counsel's failure to object to the testimony of undisclosed witnesses and failure to request a continuance when such witnesses were produced at trial is without merit given the representations in the record that defendant was offered an opportunity to interview those witnesses prior to taking the stand. Moreover, the record indicates that defendant was not handicapped by their testimony and conducted a thorough cross-examination of each witness. In addition, defendant’s statement that his trial counsel failed to object to irrelevant and extraneous questions is not supported by the record. Defendant does not advise this court which irrelevant and extraneous questions asked by the State were not objected to by defendant. Moreover, we note that defendant did object and obtain favorable rulings on many questions propounded by the State. While defendant’s counsel did fail to object to two references in the State’s closing argument that the court was the victim, as we noted above, we do not consider these references prejudicial in the context of the entire argument. With respect to defendant’s argument that his counsel was incompetent by failing to adequately prepare before trial, defendant provides no support in the record for his contention. Similarly, the record does not support defendant’s contention that he had an ongoing conflict with the State’s Attorney’s office and many of the judges in Du Page County. Thus, defendant’s argument that his counsel was incompetent for failing to request a change of venue is also without merit. Accordingly, we conclude that defendant was not denied a fair trial on the basis of ineffective assistance of counsel.

For all the reasons set forth above, we affirm defendant’s convictions.

Affirmed.

NASH and DUNN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SOLOMON FINKLEA, Petitioner-Appellant.
    Second District
    No. 2—86—1025
    Opinion filed July 25, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, John X. Breslin, and Walter P. Hehner, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Solomon Finklea, was convicted by a jury of murder in the circuit court of Winnebago County and was sentenced to a 20-year term of imprisonment. His conviction was affirmed by this court on direct appeal. (People v. Finklea (1983), 119 Ill. App. 3d 448.) He now appeals the dismissal of his pro se petition for post-conviction relief.

Prior to the appointment of counsel to represent the defendant in the instant appeal, he filed a pro se brief which, inter alia, included the allegation that counsel failed to amend the post-conviction petition or even interview him regarding any of the other issues set forth in his pro se petition for post-conviction relief. After appointed appellate counsel noted the absence in the record of a certificate filed pursuant to Supreme Court Rule 651 (107 Ill. 2d R. 651(c)), he moved this court to remand the cause for an evidentiary hearing to determine whether post-conviction counsel complied with the requirements of Rule 651(c).

It was alleged in that motion that the report of proceedings of the hearing on the State’s motion to dismiss showed defendant’s post-conviction counsel represented to the court that he had examined the file, written two letters to the defendant, and had spoken with the defendant on the phone. In view of the conflict between the record and the defendant’s assertions in his pro se appellate brief, appointed appellate counsel attempted to clarify the matter by contacting post-conviction counsel and the defendant. Post-conviction counsel did not respond to the inquiry, however, and the defendant filed an affidavit (which was appended to appellate counsel’s motion for remand before this court), attesting he was never consulted by post-conviction counsel by mail or in person about the issues raised in his pro se petition for post-conviction relief, and he never agreed with post-conviction counsel that the petition should not be amended.

Over the State’s objection, this court remanded the cause in a clarified order, “for the limited purpose of complying with Supreme Court Rule 651 requiring that a certificate of the attorney be filed, if he can properly do so.” Following remand, post-conviction counsel filed a third amended certificate pursuant to Supreme Court Rule 651(c) alleging in pertinent part that he wrote two letters to the defendant explaining what he needed from him in order to represent him in the post-conviction proceedings; that the letters were followed up by personal conferences with members of the defendant’s family and by a phone conversation with the defendant in which the petition and counsel’s representation of the defendant were discussed at length; that those conferences were held for the purpose of ascertaining defendant’s contentions of deprivation of constitutional right; that he examined the record of proceedings from the defendant’s trial and that he made no amendments to the defendant’s pro se petition because he deemed none were necessary for an adequate presentation of petitioner’s contentions.

The defendant’s pro se petition for post-conviction relief alleged he was deprived of the effective assistance of trial counsel in that counsel failed to raise the affirmative defense of the use of justifiable force and the issue of his fitness to stand trial; that the court erred when it failed to advise him of his right to elect treatment under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat., 1984 Supp., ch. 111½, par. 6301 et seq. (repealed; see now Ill. Rev. Stat. 1987, ch. 111½, par. 6351 — 1 et seq.)); that counsel failed or refused to assist in the planning and implementation of defense strategy and lacked the skill and diligence necessary to afford him the effective representation guaranteed by the United States and Illinois Constitutions.

The State’s motion to dismiss was grounded on the basis that the issues raised in the defendant’s pro se post-conviction petition were barred where they could have been raised in his direct appeal and that the allegations themselves were vague and conclusionary because they were not supported by any specific facts. The court agreed that the bald assertions of error alleged in the pro se petition were insufficient to warrant further proceedings on the petition, and the issue of ineffectiveness of trial counsel was a matter which could have been addressed on direct appeal inasmuch as the defendant was represented at trial and on appeal by different counsel. The defendant was not present at the hearing on the State’s motion to dismiss.

The defendant raises two issues before this court: (1) whether he was deprived of the effective assistance of post-conviction counsel due to counsel’s failure either to amend the pro se post-conviction petition or to withdraw as counsel so defendant could resist the State's motion to dismiss; and (2) whether the cause should be remanded for an evidentiary hearing in order to resolve the issue of whether counsel did, in fact, consult with the defendant in compliance with Supreme Court Rule 651(c).

As to the latter issue, we are persuaded the cause should be remanded for an evidentiary hearing by the authority the defendant cites in support of the issue, People v. Stewart (1988), 121 Ill. 2d 93, cert. denied (1988),_U.S__, 102 L. Ed. 234,109 S. Ct. 246.

In Stewart, the court consolidated its review of the dismissals without an evidentiary hearing of the defendant’s post-conviction petitions following the affirmance of two of his convictions for murder on direct appeal. The defendant’s initial claim was that he did not receive adequate representation during the post-conviction proceedings because his counsel, Mr. Pumilia, failed to comply with Supreme Court Rule 651 by filing a certificate showing he had consulted with the defendant to determine his contentions of deprivation of constitutional right, had examined the trial record, and made any amendments to the defendant’s pro se petitions necessary for an adequate presentation of the defendant’s claims.

While the case was being briefed in the supreme court, it granted the State leave to supplement the record with Mr. Pumilia’s affidavit attesting to the fact he conferred with the defendant about the issues which should be presented in the post-conviction petition. His affidavit also reflected that Ms. Kyle Wesendorf, defendant’s appellate counsel on his second murder conviction, conferred with the defendant and himself about the petition and assisted in all phases of the matter except court appearances.

When the defendant filed his reply brief in the supreme court, he moved the court to allow him to supplement the record with his own affidavit and that of Kyle Wesendorf in support of his claim that Pumilia violated Rule 651(c).

After the case before the supreme court had been fully briefed, the court granted the defendant’s motion to supplement the record and granted a summary remand directing the trial court to conduct a hearing on the evidentiary dispute concerning whether Pumilia complied with Rule 651(c). At the evidentiary hearing, Pumilia, Wesendorf, and Angela Pappas, an employee of the public defender’s office for Winnebago County, testified, and the defendant made an offer of proof that inmates may only place collect telephone calls and that he never placed a telephone call to Pumilia from the Pontiac Correctional Center, where he was confined. Pappas testified a review of calls made to the public defender’s office between November 1985 and June 1986 showed no collect calls were made to the office from Pontiac Correctional Center. The trial court determined Pumilia complied with Rule 651(c) after deciding on the basis of the conflicting evidence that Pumilia was “more worthy of belief” with regard to whether he ever discussed the petition with the defendant by telephone.

The supreme court denied the defendant’s motion for reconsideration of the trial court’s ruling and rejected the defendant’s claim on appeal that, as a matter of law, his post-conviction counsel failed to comply with Rule 651(c). The court noted that whether the defendant and Pumilia conferred concerning the post-conviction petitions was a question of fact for the trial court to resolve, and it was neither the duty nor the privilege of it, as the reviewing court, to substitute its judgment as to the weight of the disputed evidence or the credibility of witnesses for that of the trier of fact. (Stewart, 121 Ill. 2d at 103.) Accordingly, rejecting the defendant’s unsupported argument that one telephone conversation was insufficient as a matter of law to satisfy the requirements of Rule 651(c), the supreme court found counsel had satisfied the requirements of Rule 651(c).

The instant cause similarly presents a question of fact for the trial court to resolve: that is, whether defendant’s counsel conferred with him concerning his pro se allegations of deprivation of constitutional rights. At a minimum, compliance with Rule 651(c) requires counsel to ascertain the basis of the defendant’s complaints, shape those complaints into appropriate legal form and present them to the court. (People v. Slaughter (1968), 39 Ill. 2d 278, 285.) Both in his pro se appellate brief (later stricken when the appellate defender was appointed to represent him) and his affidavit appended to his motion for remand for an evidentiary hearing, the defendant has charged that post-conviction counsel did not consult with him, whereas post-conviction counsel represented to the court at the hearing on the State’s motion to dismiss that he did consult with the defendant.

Following this court’s limited remand order, counsel filed three versions of a certificate pursuant to Rule 651(c) before the trial court found the allegations therein adequately reflected counsel’s compliance with Rule 651(c). Consequently, the fact issue of whether the defendant’s post-conviction counsel complied with Supreme Court Rule 651 has never been resolved by the trial court following an evidentiary hearing at which the defendant would be permitted to cross-examine counsel and present evidence. Because counsel was appointed to represent the defendant during the post-conviction proceedings, the defendant was entitled to proper representation by that attorney. People v. Garrison (1969), 43 Ill. 2d 121; People v. Wilson (1985), 132 Ill. App. 3d 48.

This court has the authority to reconsider its own rulings on motions presented to it during the course of the parties’ briefing schedules. (See People v. Nichols (1986), 143 Ill. App. 3d 673, 675-76, citing Schwind v. Mattson (1974), 17 Ill. App. 3d 182, 187; Mt. Vernon Girl Scout Council v. Girl Scouts of the United States of America (1965), 55 Ill. App. 2d 443, 448 (supplemental opinion).) Although each of those cases concerned a motion to dismiss, rather than the motion for remand requested here, we believe reconsideration is warranted on the strength of the procedure followed in Stewart. As the defendant notes, the State does not attempt to distinguish Stewart from the circumstances of the instant cause.

This court orders the cause remanded to the trial court for an evidentiary hearing and a finding of fact by the trial court as to whether counsel complied with Supreme Court Rule 651(c). If the trial court finds counsel did not comply with Rule 651, the judgment of the circuit court of Winnebago County dismissing the defendant’s post-conviction petition shall be vacated and the cause remanded for the appointment of new post-conviction counsel and further proceedings as necessary. If the trial court finds that counsel did comply with Rule 651, then this court will proceed to address the defendant’s further contention that post-conviction counsel was ineffective.

This cause is remanded to the trial court for a prompt hearing as outlined above. The trial court is directed to issue its order and report the same to this court in due course.

Remanded.

LINDBERG and REINHARD, JJ., concur.