author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY D. HALL, Defendant-Appellant.
    Fourth District
    No. 4—93—0376
    Opinion filed October 14, 1993.
    Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In January 1993, defendant, Jeffrey D. Hall, pleaded guilty to driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(a)(2)) pursuant to a plea agreement in which the State agreed to dismiss another traffic charge, make no argument or recommendation at sentencing, and offer no evidence in aggravation or mitigation. In February 1993, the trial court conducted a sentencing hearing, received the presentence report, heard evidence, and considered defense counsel’s argument. The court then sentenced defendant to 12 months of conditional discharge. Defendant appeals, arguing that the trial court erred in denying him supervision. Ill. Rev. Stat. 1991, ch. 38, par. 1005-6-l(c).

We affirm.

I. Background

In the early morning hours of September 17, 1992, defendant was arrested for DUI. Earlier that evening, he had consumed four 20-ounce beers over a period of three to four hours, celebrating his job promotion with friends. At the time of his arrest, his blood-alcohol concentration (BAG) was .17.

The presentence report showed that defendant, who turned 21 years of age in June 1992, had two prior traffic convictions (disregarding a stop sign in December 1988 and driving the wrong way on a one-way street in June 1991), and two adult misdemeanor convictions (unlawful possession of alcoholic liquor by a minor in June 1991, and unlawful consumption of liquor by a minor in August 1991 for which defendant served two days in the county jail). Appended to the presentence report was an alcohol and drug evaluation uniform report prepared by Alcohol Assessments of Champaign, Illinois. That report erroneously stated that defendant had no prior alcohol- or drug-related convictions. That report also characterized defendant as a “social drinker” who reported typical consumption of alcohol as one event per week, such as one or two beers on bowling nights from August through March. The evaluator also interviewed defendant’s roommate, who stated that prior to the DUI, defendant may have been drinking two or three times per month while bowling, consuming two or three beers each time. The report stated defendant’s drinking history did not suggest he typically drank to .17 BAG, but the night he was arrested for DUI was a “special occasion.” The evaluation characterized defendant as Level II — moderate risk. See 92 Ill. Adm. Code §1001.410, at 6351 (1991).

At sentencing, defendant testified he had disclosed on the alcohol evaluation form that he had three tickets since he reached age 18, but the evaluator did not discuss those tickets with him. He explained that the June 1991 incident involved two friends having open alcohol in the backseat of his car. Defendant was driving and turned out of an alley, going the wrong way on a one-way street. When police stopped the car, they found the beer. Regarding the August 1991 incident, defendant was pulled over and ticketed after he consumed two or three beers; he was not, however, charged with DUI at that time. Attributing his current difficulties to immaturity, defendant stated: “I’ve learned a lot from this incident, this DUI. Being without my license is not the way I want to spend my time. I have no taste for alcohol anymore. I haven’t drank since I got the DUI. I have no need for it. So, it isn’t a part of me anymore.” Defendant claimed to have abstained from alcohol since the night of this arrest and to no longer drink alcoholic beverages when he accompanies friends to bars.

Consistent with the plea agreement, the State made no sentencing recommendation. Defense counsel asked the trial court to sentence defendant to supervision. Counsel emphasized defendant’s youth and argued that he had now learned his lesson, as shown by the fact he had stopped drinking since his DUI arrest. Counsel contended that supervision is part of the educational process of sentencing, and that supervision would be in the best interest of defendant and not detrimental to the public or to the public interest.

The trial court concluded that it could not find that defendant was unlikely to commit another offense or that the public or the best interest of justice would be best served by his not receiving a criminal record. The court summarized its concerns as follows:

“[Y]ou [had] two alcohol-related convictions when you were under 21. You were only 21 a few months when you again had alcohol, you were drinking and then operating a vehicle. And this all has to go into [perspective] of the fact that you had a prior misdemeanor conviction for unlawful consumption and you went to jail for a few days; and after that, you took the chance of drinking and then operating a motor vehicle.”

In March 1993, defendant filed a motion to reconsider sentence, and at the hearing thereon, defense counsel argued the following: “While it is true that the Court could focus on the earlier incidents in his life, I think if we consider the entire record, the Court’s findings about this alcohol-related lifestyle and the Court’s comment with respect to that are belied by the entire record.” The trial court rejected this argument, explaining as follows:

“[S]omeone who goes to jail for an alcohol-related offense, you would think that that would get that person’s attention. But just over a year after that, Mr. Hall is [DUI]. He’s now over 21 by 3 months, and the [BAG] is a .17.
***
When someone has three alcohol-related criminal convictions in just over a year, someone needs to sit up and take notice. Mr. Hall should have learned prior to the [DUI], especially by spending a few days in jail[,] that this just was not an appropriate way to act.
We can always say, well, judge, this was a special occasion. *** Mr. Hall apparently likes to find those excused because all I heard was excusing and I’m still hearing the excuses today. Mr. Hall has to learn to take responsibility for himself. He has to understand that there are consequences for his acts. Apparently spending a few days in jail in 1991 was not enough for Mr. Hall to become aware that there are consequences for his acts.
I believe that the findings that the public would not be best served if Mr. Hall would receive leniency [are] appropriate ***. I don’t believe that Mr. Hall is a candidate for leniency when he comes to court with this type of record. I believe the prior sentence was appropriate and the Motion to Reconsider is denied.”

II. Analysis

This court will not set aside a sentence within the statutory range unless clearly improper. (People v. Ward (1986), 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 425-26; see also People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353.) Further, we recently held (and now reaffirm) that supervision is not a right of any defendant, but instead a sentencing alternative to be employed in the discretion of the trial court. People v. Price (1993), 247 Ill. App. 3d 787, 790, 617 N.E.2d 909, 911.

Defendant argues that the trial court erred in denying his request for supervision because the court improperly focused on his driving record and the close proximity in time between his traffic offenses. Thus, defendant claims, the court incorrectly ruled that defendant was not unlikely to commit further offenses. He complains that the sentence the court imposed, conditional discharge, results in continued suspension of his driving privileges, increased insurance costs, and other collateral consequences.

Defendant further complains that the record contains no evidence which supports the court’s conclusion that he had an “ ‘alcohol-related lifestyle’ and consequently, an alcohol problem which should preclude him from receiving court supervision.” He contends that the court’s statements in this regard are belied by both the alcohol evaluation-conducted by a licensed agency — which found him to be a “social drinker,” and his own testimony that he had abstained from using alcohol since his arrest.

Defendant also argues that “[t]he Court’s disdain for the consumption of alcohol and for a lifestyle which involves the consumption of alcohol evidences a personal bias and [a] predilection which has been routinely and consistently rejected as being improperly interjected into sentencing proceedings by the reviewing courts of this State.” In support of this claim, he cites People v. McAndrew (1968), 96 Ill. App. 2d 441, 451, 239 N.E.2d 314, 319, and People v. Rednour (1974), 24 Ill. App. 3d 1072, 1077, 322 N.E.2d 492, 496.

Last, defendant contends that the trial court improperly attempted to assess the public’s reaction to a particular type of sentence in this case. Citing People v. Sumner (1976), 40 Ill. App. 3d 832, 838-39, 354 N.E.2d 18, 24, and People v. Short (1978), 66 Ill. App. 3d 172, 180-81, 383 N.E.2d 723, 730, defendant claims that the trial court refused to exercise its discretion to impose supervision based on its perception of public expectations.

After reviewing the trial court’s remarks and the record before us, we conclude that all of these arguments are utterly without merit. When this court considers a defendant’s argument that the trial court improperly sentenced him, we must consider the entire record as a whole and “should not focus on a few words or statements of the trial court.” (Ward, 113 Ill. 2d at 526, 499 N.E.2d at 426.) Defendant asks this court to do precisely that which Ward prohibits. The trial court’s remarks in this case focused on the statutory factors it was obligated to consider in evaluating defendant’s request for court supervision, and we find that the court responded appropriately to the evidence and argument defendant presented.

The cases defendant cites are easily distinguishable. The record contains no support for defendant’s claim that the trial court had a “disfavored offender” category or brought improper predilections with it in determining the appropriate sentence to impose, as was the case in McAndrew. The court’s remarks also show no disdain for the mere consumption of alcohol; instead, those remarks show the court’s disdain for alcohol-related criminal conduct of whatever sort — a disdain we view not only as appropriate, but also one we share.

Further, as opposed to the situation in Rednour, we find that public clamor and outcry had no role in the sentence imposed here. Additionally, this is not a case of the sentencing judge talking to members of the public about what sentence to impose, as in Sumner, or of “leading citizens” testifying about their opinions on sentencing, as in Short.

Defendant was entitled to have the trial court consider his request for supervision, and it did. The court exercised its discretion in light of its assessment of defendant and the appropriate statutory criteria. The fact that defendant “did not make the cut” does not make the sentence imposed an abuse of discretion. Defendant’s ability to conform his conduct to the requirements of the law for the five-month period between arrest and sentencing is a factor deserving of whatever weight the trial court decided to give it, and nothing more.

The unspoken premise underlying defendant’s argument is that if a defendant who pleaded guilty or stipulated to facts supporting the charge or a finding of guilt meets the statutory guidelines for eligibility for court supervision, then the legislature intended that the defendant would be entitled to supervision. Our analysis of section 5— 6 — 1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—1) compels us to disagree.

Section 5 — 6—1 of the Code governs when the trial court may impose sentences of probation and conditional discharge, on the one hand, and court supervision, on the other. Regarding probation and conditional discharge, section 5 — 6—1(a) of the Code states the following:

“(a) Except where specifically prohibited ***, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—1(a).)

Regarding court supervision, section 5 — 6—1(c) of the Code states the following:

“(c) The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony and having regard for the circumstances of the offense, and the history, character and condition of the offender, the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 1005-6-1(c).

Section 5 — 6—1(a) of the Code addresses the situation in which the trial court is choosing between a sentence of imprisonment or probation and states that the court shall impose a sentence of probation, not prison, unless the court is of the opinion that the circumstances described in either subsection (1) or (2) of section 5 — 6—1(a) are present. Section 5 — 6—1(c) addresses the situation in which the trial court is choosing between a sentence of probation or conditional discharge, as opposed to supervision. However, unlike section 5 — 6—1(a), section 5 — 6—1(c) does not direct that the trial court shall impose a sentence of supervision if the court finds that the defendant meets all the eligibility guidelines contained in subsections (1), (2), and (3) of that section. Instead, even under those circumstances, the determination of defendant’s sentence — specifically, the choice between conditional discharge or supervision — still lies within the discretion of the court. In other words, section 5 — 6—1(a) directs that a defendant meeting all of its guidelines shall he sentenced to probation, while section 5 — 6—1(c) provides that a defendant meeting all of its guidelines may be sentenced to supervision, but need not he so sentenced.

Noting that the court could have sentenced defendant to a maximum of 364 days in jail (see Ill. Rev. Stat. 1991, ch. 951/2, pars. 11— 501(a), (c); ch. 38, par. 1005 — 8—3(a)(1)), we hold that the court did not abuse its discretion when it denied defendant’s request for supervision and sentenced him instead to conditional discharge.

III. Conclusion

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

Affirmed.

COOK and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT JUSTICE COOK,

license: Public Domain

text:
    ROBERT HERMAN CHURCH, Plaintiff-Appellee, v. THE STATE OF ILLINOIS, acting through the Department of Professional Regulation et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0984
    Argued September 27, 1993. —
    Opinion filed November 15, 1993.

      COOK, J., dissenting.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General (argued), of Chicago, of counsel), for appellants.
    Jerry Tice (argued), of Grosboll, Becker, Tice & Smith, of Petersburg, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The Department of Professional Regulation (Department) appeals the order of the circuit court of Menard County which, on administrative review, reversed the Department’s denial of the plaintiff’s application for a private alarm contractor’s license. The circuit court also ordered the Director of the Department to issue the plaintiff a license.

There is little dispute over the facts. On April 4, 1988, the plaintiff acquired a private alarm contracting business, Menard County Alarm Services, and began operating it on a part-time basis. On May 8, 1991, the plaintiff was informed he needed a license from the Private Detective, Private Alarm, Private Security Board (Board) to engage in the private alarm contracting business.

On May 31, 1991, the plaintiff applied for a license. The initial application was characterized as an application to obtain a license through the “nonexamination” method. After the first denial the Board characterized the application as one to sit for the examination. This difference in characterization is irrelevant to this case because the experience requirement in dispute is a threshold requirement for either application. Ill. Rev. Stat. 1991, ch. 111, par. 2664(c)(12).

At the July 17, 1991, meeting of the the Board, it recommended the plaintiff’s application be denied. This recommendation was approved by the Director of the Department on July 23,1991.

On September 4, 1991, the plaintiff submitted additional written information to the Board. This information included references to the plaintiff’s 18 years’ experience as a police officer. This included 50 different thefts or burglaries plaintiff investigated or assisted in investígating. Plaintiff also emphasized his police training. This training included the following classes and seminars: field sobriety testing, mandatory firearms training, shooting decisions training, police traffic radar certification, use of force/civil liability, legal aspects of deadly force and night firearms, operation scams seminar, domestic violence, criminal law, law for police, interview and interrogation, and an in-service refresher.

At its September 12, 1991, meeting, the Board reconsidered the plaintiff’s application. The Board once again recommended this application be denied. The Director accepted this recommendation on September 23, 1991. The plaintiff was notified his application was denied because he failed to satisfy the minimum experience requirements. The plaintiff was also notified of his right to judicial review of the decision.

On October 25, 1991, the plaintiff filed a complaint for administrative review in the circuit court of Menard County (No. 91 — MR—6). On April 22, 1992, the circuit court entered an order directing the Board to reconsider the plaintiff’s application and inform the plaintiff of any informal standards being used. If the Board denied the plaintiff’s application, the Board was ordered to provide reasons for the denial.

On May 13, 1992, the Board reconsidered the plaintiff’s application. The Board recommended the plaintiff’s application again be denied. Once again, this action was taken at a meeting of the Board and not after a hearing. This recommendation was approved by the Director of the Department on June 22, 1992. In response to the April 22, 1992, court order, the Board gave the following reasons for its denial of the plaintiff’s application.

“1. The intent of subparagraph (c) of this section is to allow an applicant with the minimum allowable amount of experience in the private alarm contracting field that was acquired from other than an Illinois licensed private alarm contractor agency to qualify for the licensure examination.
2. The statute sets minimum experience for private alarm contractor agency employees to qualify for the licensure examination and all other candidates have been held to the same minimum standard.
3. The applicant’s experience is primarily in the area of law enforcement, not private alarm contracting. A law enforcement background may qualify an individual for examination in the private detective or private security contractor fields, but does not provide any experience in the private alarm contracting field and, therefore, cannot be counted as experience in the alarm field. The Board does not feel the amount of alarm experience offered by Mr. Church demonstrates an acceptable level of expertise to qualify to sit for the examination.”

After receiving notification of the Board’s action the plaintiff filed a two-count complaint in the circuit court of Menard County (No. 92— MR — 7). In his complaint the plaintiff sought reversal of the Board’s determination he did not meet the experience requirements. The complaint also requested the court to order the Director to issue a private alarm contractor license to the plaintiff.

On November 4, 1992, the circuit court reversed the Board’s determination the plaintiff did not meet the experience requirements. The circuit court also ordered the Director to issue the plaintiff a private alarm contractor license.

The two issues on appeal are whether (1) the Department’s denial of the plaintiff’s application for a private alarm contractor’s license was arbitrary or capricious, or against the manifest weight of the evidence; and (2) the court exceeded its authority on administrative review by ordering the Department to issue a license to the plaintiff.

The Private Detective, Private Alarm, and Private Security Act of 1983 (Act) (Ill. Rev. Stat. 1991, ch. 111, par. 2651 et seq.) requires anyone who engages in the private alarm contracting business to obtain a license from the Department. (See Ill. Rev. Stat. 1991, ch. 111, par. 2654.) The Act also sets forth several requirements for obtaining a private alarm contractor’s license. One of these requirements sets a certain level of experience for those wishing to obtain a license. Sections 14(c)(11)(B) and (c)(11)(C) of the Act state:

“(B) As of January 1, 1988, all persons applying for licensure under the provisions of Section 14(c) of this Act shall have a minimum of 3 years [of] experience out of the 5 years immediately preceding his application as a full-time supervisor, manager or administrator for an agency licensed in the State of Illinois as a private alarm contractor agency, or meet Departmental standards established pursuant to sub-paragraph (C) of this paragraph (11).
(C) If an applicant does not meet the experience requirements of subparagraphs (A) or (B) of this paragraph (11) such applicant may be issued a license upon recommendation of the Board and approval by the Director if in the judgment of the Board he satisfies standards of competence and experience for persons not having experience with a private alarm contractor agency.”

Ill. Rev. Stat. 1991, ch. 111, pars. 2664(c)(11)(B), (c)(11)(C).

It is undisputed the plaintiff does not meet the requirements set forth in section 14(c)(11)(B) of the Act. The question presented to this court concerns the application of section 14(c)(11)(C) of the Act.

The standard of review of an administrative agency’s decision is governed by the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—101 et seq.). This act limits the review of administrative decisions and provides the “findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1991, ch. 110, par. 3—110.

In response to this the plaintiff states a reviewing court is not bound by the Department’s decision, since there are no facts in dispute and, as a general rule, in such circumstances, the legal effect of those facts becomes a matter of law and the reviewing court is not bound by the administrative decision. Lindsey v. Edgar (1984), 129 Ill. App. 3d 718, 473 N.E.2d 92.

On the other hand, on administrative review, a reviewing court will not interfere with an agency’s exercise of its discretionary power, unless its discretion is exercised in an arbitrary or capricious manner. Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56.

Section 14(c)(11)(C) of the Act grants the Department discretionary authority. This section allows the Board, with the approval of the Director of the Department, to allow an applicant to be licensed even if the applicant does not have the three years’ full-time experience with a licensed private alarm contractor agency required in section 14(c)(11)(B) of the Act. The Board can allow such an applicant to be licensed if, in its judgment, the applicant has the necessary experience and competence. This section expressly grants the Department the authority to use its judgment in determining if an applicant has the necessary experience or competence to be licensed.

This court is reviewing the Department’s exercise of discretionary authority with regard to the plaintiff’s experience. Therefore, the applicable level of review is the arbitrary and capricious standard. This is the standard applied to the review of an agency’s exercise of its discretionary authority.

While it is impossible to fully outline the boundaries of arbitrary and capricious conduct by administrative agencies, the Illinois Supreme Court has given some guidelines to determine if agency conduct is arbitrary and capricious. “[An] [a]gency action is arbitrary and capricious if the agency: (1) relies on factors which the legislature did not intend for the agency to consider; (2) entirely fails to consider an important aspect of the problem; or (3) offers an explanation *** which runs counter to the evidence before the agency ***.” Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 505-06, 524 N.E.2d 561, 581.

Applying these guidelines to the present case, the Department’s decision was not arbitrary or capricious. First, the agency did not rely on any factors the legislature did not intend it to consider. The Department considered the length and nature of the plaintiff’s experience, including his experience as a law enforcement officer. Clearly, the legislature intended the Department to consider such factors.

Second, the agency did not fail to consider an important aspect of the problem. The Department considered all of the experience presented to it. The only issue before the Department was the plaintiff’s experience and competence. The Department fully considered this aspect of the plaintiff’s licensing application and found he did not have the experience necessary to obtain a license.

Finally, the reasons given by the agency in support of its decision do not run counter to the evidence before it. The Department considered the plaintiff’s 18 years of law enforcement experience. In the Department’s judgment this experience did not qualify him to take the examination or to be issued a license. In the Board’s judgment, such law enforcement experience does not provide any experience in the private alarm contractor’s field. While this statement may be overbroad, it does not run counter to the evidence presented to the Board. For this reason the Department denied the plaintiff’s application for licensure.

Determining what is arbitrary and capricious conduct has also been characterized as a question of rationality. (Greer, 122 Ill. 2d at 506, 524 N.E.2d at 581.) The reasons given by the Department to support its denial of the plaintiff’s application were rational. The Department made the judgment plaintiff’s specific law enforcement experience is not related closely enough to the alarm contracting field to confer the required experience and competence. A rational agency could make such a judgment.

In some circumstances a law enforcement background could provide an applicant with experience comparable to the experience gained in the alarm contracting field. The Board’s characterization of plaintiff’s background as not providing such experience, however, is not arbitrary or capricious and is not against the manifest weight of the evidence.

While we may not agree with the Board’s determination, a reviewing court is not to reweigh the evidence. Furthermore, an agency’s decision is not against the manifest weight of the evidence merely because this court would have decided the issue differently. Wixon v. Edgar (1991), 215 Ill. App. 3d 490, 495, 574 N.E.2d 1251, 1254.

Plaintiff suggests this is not a case where the agency was simply exercising its discretionary authority. The plaintiff argues the Board’s interpretation of section 14(c)(11)(C) of the Act is in conflict with the meaning'of the statute. The plaintiff rests his position on the first reason given by the Board for its May 13, 1992, recommendation for denial of his application. This reason gives the Board’s interpretation of the intent of this section, i.e., to allow applicants who gain experience in the alarm contracting field, but who do not gain this experience from an Illinois licensed private alarm contractor agency, to qualify for the licensure examination.

The Department’s interpretation of this section narrows and clarifies what experience it will accept. The Board will accept experience in the field for which the license is sought, the alarm contracting field. The other portions of the Act only allow consideration of the experience gained through a licensed Illinois private alarm contractor agency. The Department’s interpretation of this section allows it to consider other experience, as long as it is in the private alarm contracting field. This is what is allowed by section 14(c)(11)(C) of the Act. For this reason, the Department’s interpretation of this Act does not make this section of the Act ineffective.

The plaintiff also claims the agency failed to make the necessary findings of fact and violated his due-process rights. The defendant responds that absent statutory requirement, an agency is not required to make such findings. (See Irving’s Pharmacy v. Department of Registration & Education (1979), 75 Ill. App. 3d 652, 394 N.E.2d 627.) The Department, however, was ordered by the circuit court to give reasons for its decision. As stated above, the Department complied with this order and found Church did not meet the experience requirements.

Furthermore, the Department did not violate the due-process rights of Church. The plaintiff argues the Department failed to acknowledge section 14(c)(11)(C) of the Act, and what was required to satisfy that section. As shown above, the Department gave its reasons for denying Church’s application. These reasons were consistent with the authority given it by section 14(c)(11)(C) of the Act.

The Department’s denial of the plaintiff’s application for licensure was a proper exercise of its discretionary authority. Therefore, the circuit court’s reversal of the Department’s denial of this application must be reversed and the agency’s decision reinstated. In view of our resolution of this issue, we need not address whether the court overstepped its authority when it ordered the Department to issue such a license.

Reversed; Department decision reinstated.

GREEN, J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent.

The statute under consideration limits the issuance of a private alarm contractor license to an individual with experience (three years out of the five years immediately preceding his application) “as a full-time supervisor, manager or administrator” of a licensed private alarm contractor. (Ill. Rev. Stat. 1991, ch. 111, par. 2664(c)(11)(B).) This statute is constitutionally suspect. (See People v. Johnson (1977), 68 Ill. 2d 441, 450, 369 N.E.2d 898, 903 (apprenticeship requirement in Illinois Plumbing License Law (Ill. Rev. Stat. 1973, ch. 1111/2, par. 116.36 et seq.) conferring upon licensed plumbers monopolistic right to instruct and control entry into trade declared invalid); see also Schanuel v. Anderson (7th Cir. 1983), 708 F.2d 316, 319 (professional qualifying tests and qualifications standards must bear a rational relationship to the skills necessary for the job).) The legislature may have hoped to resolve any constitutional infirmity by allowing the licensing of other individuals who, in the judgment of the Board, satisfy “standards of competence and experience.” (Ill. Rev. Stat. 1991, ch. 111, par. 2664(c)(11)(C).) The Board and the Director have made it clear in this case, however, that they do not consider anyone without private alarm contractor experience to be qualified. The Board has accordingly refused to exercise the discretion afforded it by section 14(c)(11)(C) of the Act.

During oral argument in this court, the Director argued the license was denied because plaintiff did not have the necessary electrical experience. No such language appears in the Board’s decision, however, and it is by no means certain that even an electrical contractor with many years experience would be considered qualified by the Board under section 14(c)(llXC). According to the Board “all other candidates have been held to the same minimum standard,” i.e., the standard set by the statute: experience as a private alarm contractor.

The Act provides that the Department “may” conduct an examination. (Ill. Rev. Stat. 1991, ch. 111, par. 2664(c)(12).) That provision is not found under section 14(cXll)(C), and apparently could be applied to any applicant, whether he has private alarm contractor experience or not. The Director refused to issue plaintiff a license under any conditions and did not suggest to the circuit court that she required any examination for those in plaintiff’s situation. The Director has twice refused to consider whether plaintiff “satisfies standards of competence and experience.” The circuit court was not required to continue to remand the case to the Director indefinitely and properly ordered the Director to grant plaintiff a license. We should affirm.


text:
    DEBI HELDEBRANDT, Petitioner-Appellee, v. JAMES RICHARD HELDEBRANDT, Respondent-Appellant.
    Fourth District
    No. 4—93—0255
    Argued September 20, 1993. —
    Opinion filed October 22, 1993.

      Howard W. Feldman (argued), of Feldman & Wasser, of Springfield, for appellant.
    Leonard B. Cohn (argued), of Springfield, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In December 1989, Debi Heldebrandt, petitioner, and James Heldebrandt, respondent, were granted a dissolution of their marriage, and Debi was awarded custody of their five children. The trial court granted James visitation with any two of the children every Sunday afternoon. In May 1992, James filed a petition to modify his visitation rights. In June 1992, the parties agreed to follow a family counselor’s recommendations regarding James’ visitation rights, but each party reserved the right to ask the trial court to review the recommendations. In February 1993, the trial court, after apparently reviewing the counselor’s recommendation, modified James’ visitation rights by allowing limited visitation with the two youngest children, terminating visitation with the three older children, and allowing unlimited, reasonable telephone visitation with all the children.

James appeals this order, arguing that (1) the trial court denied him the opportunity to cross-examine the counselor regarding his report and recommendations on James’ visitation rights, (2) the trial court applied an incorrect standard in modifying the visitation order, and (3) the evidence did not support the trial court’s visitation order. Because we agree with James’ first two arguments, we reverse and remand for further proceedings.

I. Background

Debi and James married in October 1976. During their marriage, they had five children: Michael, born in September 1977; Brandon, born in February 1979; Eric, born in November 1980; Michelle, born in July 1982; and Cody, born in June 1985. In December 1989, Debi was granted a dissolution of the marriage and awarded custody of all the children. The trial court granted James visitation “every Sunday from noon to 5:00 p.m., with two of the minor children during every visitation period.”

In May 1992, James filed a petition for rule to show cause and a petition to modify visitation with his children. In his petition for rule to show cause, James alleged that Debi had wilfully denied him visitation. In his petition to modify visitation, James requested expanded visitation to include all the children and to occur from Friday evening to Sunday evening, every other weekend, as well as extended periods of time during summer and holiday school breaks.

Debi’s responses denied that she wilfully interfered with James’ visitation. Instead, she alleged that on six consecutive weekends in April and May 1992, each of the children refused to go with James. She further alleged that the children did not want to participate in visitation with their father because he had physically abused them during the marriage and threatened to do so again during their prior visits. Debi asked the court to deny James’ petition to modify visitation.

Debi also filed a cross-petition seeking to modify visitation. She sought to require James, as a prerequisite to visitation with the children, to obtain counseling for his physically abusive conduct and threats of physical abuse toward the children. She also requested that James’ current wife be present during any visitation. She did not seek to alter the times when James could visit the children as set forth in the December 1989 judgment of dissolution.

The trial court held two hearings in June 1992 on this matter. At the first hearing, the court found that Debi did not wilfully deny James visitation. The court began the second hearing by conducting separate, in camera interviews with each of the five children. After conducting these interviews, the court learned that Debi and James had reached an agreement on visitation. They agreed that James would obtain counseling regarding his relationship with the children, and that the counseling would include the children and Debi as necessary. Further, James’ visitation with the children would not begin until the counselor believed it appropriate, and the counselor would also determine the structure (duration, number of children, et cetera) of such visitation. The parties’ attorneys would agree upon a counselor. If any disputes later arose regarding the counselor chosen or his recommendations for visitation, either party could seek the court’s review. The court set an October 1992 hearing to review the matter and entered a written order essentially following their agreement.

In September 1992, James filed a motion to modify and reconsider the court’s June 1992 order. In this petition, James alleged that Debi continued to deliberately interfere with his visitation rights. James further alleged that all the counselors Debi suggested were significantly inconvenient and beyond his financial means. James requested that the court order visitation to begin again in the manner set forth in the judgment of dissolution, and that the court order Debi to transport the children from Gibson City, where she resided after her marriage in June 1992, to Springfield for these visits. Debi filed a response denying James’ allegations and asking the court to refuse both of his requests.

In October 1992, the trial court denied James’ motion to reconsider the June 1992 order. The court did permit James to have “reasonable telephone visitations” with the children on Tuesday and Thursday evenings. The court also reset the matter for a status report by telephone conference in November 1992.

The court continued the matter to allow Dr. Joseph Strano, the counselor upon whom the parties agreed, time to complete interviews with all the necessary persons. The parties received Dr. Strano’s report and recommendations in late January 1993. In February 1993, the court held a hearing regarding visitation. The record does not reflect whether the court actually received the report as well. After the hearing, the court made the following docket entry:

“Court finds as follows:
1. It is not in the best interest of the minor children of the parties that regular standard visitation be ordered at this time with [James].
2. The relationship of [James] with his children is extremely poor at this time.
3. In an effort to improve his relationship with his children, [James] should be allowed telephone communication with all children and limited supervised visitation with Michelle and Cody.
Court orders as follows:
1. [James] shall be allowed reasonable telephone communication with his children.
2. [James] shall be allowed visitation with Michelle and Cody supervised at all times by his wife o[r] his relative ‘Sandy’ for a perion [sic] of four hours not including traveling time as follows:
Even years: Martin Luther King Day, Easter Sunday, 4th of July, Thanksgiving Day;
Odd years: President’s Day, Kazimierz [sic] Pulaski Day, Memorial Day, Labor Day, and Christmas Day;
3. [James] may be considered for increased visitation and/or in conjunction with further family counseling in areas that would assist him in successfully completing counseling in areas that would assist him in psychological and developmental issues involving managing and disciplining the children.
4. All visitation is subject to condition that there not be the use of profanity and [James] is not to administer corporal punishment.”

James appeals from this order.

Also taken on appeal is Debi’s motion to add Dr. Strano’s report, dated January 28, 1993, to the common law record. This report was not included in the record, and Debi argues that the clerk of the circuit court inadvertently left it out of the record. James objects, arguing that this report constitutes hearsay and was never properly introduced into evidence by either party.

II. Analysis

Section 607 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607 (West 1992)) governs a parent’s visitation rights. Section 607(a) of the Act entitles a parent who was not granted custody of his child to reasonable visitation rights unless the court finds that visitation would seriously endanger the child’s physical, mental, moral, or emotional health. (750 ILCS 5/607(a) (West 1992).) Section 607(c) of the Act covers modifications to a visitation order and provides as follows:

“The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (750 ILCS 5/607(c) (West 1992).)

On appeal, this court will not reverse a trial court’s decision concerning modification of visitation unless it is against the manifest weight of the evidence or an abuse of discretion. In re Marriage of Kading (1986), 150 Ill. App. 3d 623, 631, 501 N.E.2d 971, 978; In re Marriage of Strang-Reynolds-Conour (1991), 218 Ill. App. 3d 467, 468, 577 N.E.2d 1391, 1392.

A. Cross-Examination of Family Counselor

James first argues that the trial court failed to hold an evidentiary hearing prior to entering its February 1993 visitation order. He asserts that he should be allowed to challenge Dr. Strano’s report and recommendations. James alleges that the trial court conducted no substantive evidentiary hearing prior to the February 1993 docket entry and order. Additionally, James argues that Dr. Strano’s report was not entered into evidence, and the trial court should therefore not have considered it. Debi responds that the trial court could base its visitation order upon Dr. Strano’s report regardless of its being formally entered into evidence.

Under section 605 of the Act, a court may order an investigation and report concerning the custodial arrangements for the children. (750 ILCS 5/605 (West 1992).) Section 605 of the Act sets forth the guidelines for these investigations and reports as follows:

“(a) In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. ***
* * *
(c) The investigator shall mail the report to counsel, and to any party not represented by counsel, at least 10 days prior to the hearing. The court may examine and consider the investigator’s report in determining custody. The investigator shall make available to counsel, and to any party not represented by counsel, the investigator’s file of underlying data, reports, and the complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b) of this Section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator, or any person whom he has consulted, as a court’s witness, for cross-examination. A party may not waive his right of cross-examination prior to the hearing.” 750 ILCS 5/605 (West 1992).

Section 605(c) of the Act directly contemplates the trial court’s use of such reports when the court reviews custody arrangements without the reports’ having been formally entered into evidence. Based upon our review of this statute, we specifically hold that when a court receives a report pursuant to section 605 of the Act, the court can consider the report as if the contents of that report had been given as direct testimony during a hearing. The court need not receive the report into evidence during a formal proceeding in order to consider the report when reviewing custody or visitation arrangements. Thus, section 605(c) of the Act provides that a report submitted under this section is an exception to the hearsay rule. (See In re Marriage of Noble (1989), 192 Ill. App. 3d 501, 511, 548 N.E.2d 518, 524.) However, section 605(c) of the Act further provides that the court must allow either party the opportunity to cross-examine the investigator who made the report, unless the party waives that opportunity at a hearing on the matter. 750 ILCS 5/605(c) (West 1992).

In this case, the parties agreed to have a family counselor interview them and their children as necessary to make recommendations for visitation between James and the children. The parties further agreed to abide by the counselor’s recommendations, but reserved the right to seek the court’s review. The trial court entered an order incorporating their agreement. After Dr. Strano completed his investigation and forwarded his report to the parties and the court in January 1993, the court set the matter for hearing in February 1993. As we stated above, the court could have considered Dr. Strano’s report when determining James’ visitation arrangement without its being formally introduced into evidence.

However, the record does not disclose what specifically occurred at the February 1993 hearing. Both parties do agree (in their briefs and at oral argument) that (1) no evidentiary hearing was held, (2) James requested the opportunity to depose Dr. Strano, (3) the trial court did not permit either party to cross-examine Dr. Strano, and (4) James did not waive his right to cross-examination. After the hearing, the court made its February 1993 docket entry and order as set forth above.

Section 605(c) of the Act afforded James the right to cross-examine Dr. Strano, and James did not waive this right. Therefore, the trial court abused its discretion by denying James the opportunity to cross-examine Dr. Strano regarding his report and recommendations. Accordingly, this case must be remanded to the trial court to allow James this opportunity.

B. Standard for Reviewing Visitation Order

James also argues that the trial court did not apply the proper standard in deciding to modify its order regarding his visitation rights. James contends that the court’s first finding in its February 1993 docket entry — “[i]t is not in the best interest of the minor children” — demonstrates that the court ignored the second part of section 607(c) of the Act, which states that visitation rights cannot be restricted unless those rights would seriously endanger the child’s physical, mental, moral, or emotional health. Debi responds that the court did not apply the wrong standard or, alternatively, that ample evidence existed to support the court’s February 1993 visitation order under either a “best interests” or a “serious endangerment” standard.

A trial court must hold a hearing on the issue of restricted visitation and should grant restricted visitation only after making the extraordinary finding that visitation would seriously endanger the child’s physical, mental, moral, or emotional health. (In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 724, 558 N.E.2d 388, 432.) The serious endangerment standard contained in section 607(c) of the Act is “onerous, stringent, and rigorous” to meet because liberal visitation is the rule and restricted visitation is the exception. (In re Marriage of Diehl (1991), 221 Ill. App. 3d 410, 429, 582 N.E.2d 281, 294.) The custodial parent carries the burden of proving by a preponderance of the evidence that visitation with the noncustodial parent would seriously endanger the child. (Diehl, 221 Ill. App. 3d at 429, 582 N.E.2d at 294.) Use of a best interests standard, rather than the serious endangerment standard, constitutes reversible error. Diehl, 221 Ill. App. 3d at 429-30, 582 N.E.2d at 294.

In this case, the trial court’s docket entry does not explicitly reveal whether it used a best interest standard or the serious endangerment standard. However, the court did not make a specific finding that James’ visitation with the children would seriously endanger the physical, mental, moral, or emotional health of any of the children. Furthermore, the court stated in its February 1993 order that visitation would not be “in the best interest of the children.” In Diehl, a similar written finding by the trial court was held equivalent to its use of the best interest standard, not the serious endangerment standard, and thus constituted reversible error. Diehl, 221 Ill. App. 3d at 429-30, 582 N.E.2d at 294.

We find that in this case, as in Diehl, the trial court used the incorrect standard when reviewing James’ visitation rights. Nothing in the February 1993 order demonstrates that the trial court used the serious endangerment standard; instead, the court appears to have relied on the best interests standard. Thus, we remand this case to the trial court so that it can use the proper standard when determining James’ visitation rights.

The parties also argue whether the evidence sufficiently supports the February 1993 visitation order. However, because we are remanding this case to allow James the opportunity to cross-examine Dr. Strano on his report and recommendations, and to allow the trial court to use the proper “serious endangerment” standard when determining James’ visitation rights, we express no opinion as to the sufficiency of the evidence. We wish to provide the trial court its full latitude in exercising its discretion in determining James’ visitation rights. In order to minimize delay in reaching a final resolution of this matter, which will greatly affect the lives of the parties and their children, we also direct that on remand, the trial court conduct a full evidentiary hearing to bring this matter up to date, allowing the parties to present more current evidence that they may have.

III. Conclusion

For the reasons stated, we reverse the trial court’s February 1993 visitation order and remand for proceedings in accordance with the views expressed herein.

Reversed and remanded.

LUND and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAN GRAMO, a/k/a Jan Bocian, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAN BOCIAN, a/k/a Stanislaw Piontek, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAN BOCIAN, Defendant-Appellant.
    Fourth District
    Nos. 4—91—0851, 4—91—0861, 4—91—0862 cons.
    Argued March 24, 1993. —
    Opinion filed November 15, 1993.

      Michael J. Costello (argued), of Springfield, and Joshua Sachs, of Chicago, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In the fall of 1990, the State charged defendant Jan Gramo, a/k/a Jan Bocian, a/k/a Stanislaw Piontek, in De Witt, Livingston, and McLean Counties with multiple counts of attempt (residential burglary), residential burglary (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 19 — 3), obstruction of justice (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4(a)), theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — l(a)(4)(A)), and possession of burglary tools (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 2). The cases from all three counties were consolidated for a bench trial in McLean County. The trial court convicted defendant of residential burglary, attempt (residential burglary), and obstruction of justice and sentenced him to extended-term consecutive sentences totalling 55 years in prison. The court entered no sentences or judgments of conviction on the other counts charging theft and possession of burglary tools. A timely post-trial motion and motion for reduction of sentence were filed and denied.

Defendant appeals, arguing that the trial court (1) erred by imposing extended-term sentences for residential burglary where the victim is over the age of 60, and (2) abused its discretion by imposing such a severe sentence.

We affirm.

I. Background

John Allen, a City of Clinton (De Witt County) police officer, testified that he was home on October 16, 1990, at about 5 p.m. when he saw a gray, four-door Buick automobile, with a white man at the wheel and a white woman inside, circle the block at least five times. The woman, dressed in a long skirt and blouse, left the car, ran to three different houses and attempted to open the front doors as if she was trying to get in. The woman held her arms in front of her body as though “she was carrying something.” At the third house, the residence of Leita Jackson, the woman approached the side door, tried to turn the handle, and then twice threw her body against the door. Allen then telephoned the police department to report this incident and the license plate number of the gray car.

After making his call, Allen went outside carrying his police radio. He testified that he saw the woman moving around the outside of the Jackson house until she went out of his view. He went to the Jackson residence, checked the door that the woman had attempted to enter, and found it still locked. Allen then went to the back of the house in the same direction the woman had gone and found the back door open. Allen testified that he did not see the woman in the house, but after he checked the back door, he went back to the front of the house and observed the gray vehicle headed down the street. At that time, Allen saw police chief Michael Norrington’s squad car coming down the street. Allen advised him over the radio that he had just passed the suspects’ vehicle. Norrington then turned around to pursue the gray vehicle. Allen went back to the Jackson house and found the front door, which had been previously locked, open. He checked the other nearby houses while the police pursued the Buick.

When Allen went to the Clinton police station shortly afterward, he saw the two suspects sitting in separate interview rooms. Defendant was the male suspect. Allen helped to inventory the property, which consisted mostly of jewelry, that had been confiscated from defendant’s impounded automobile. Norrington found various other items during his inventory of defendant’s automobile, including screwdrivers, a ball peen hammer, wire cutters, a small magnifying lens (called a jeweler’s glass), a hand-held magnifying glass, metal snips, a cold steel chisel, a “booster skirt” (an apron with an inside compartment), a wire stripper, and a bag with a false bottom. Norrington found jewelry in the false bottom of the bag.

Norrington testified that the tools looked as if they had been used, but he could not say for what purpose. He testified that the “double walled bag” was a relatively standard item, but a “booster skirt,” on the other hand, must be specially made. Norrington testified that such a skirt is used for stealing, particularly for concealing bulky items in shoplifting. An appraisal estimated the total value of all the items recovered from defendant’s car at $25,810.

Norrington testified that after Allen reported the suspicious activity, he drove to the scene in an unmarked car and another officer drove to the scene in a marked squad car. As Norrington approached Allen’s residence, he saw a car matching the description Allen provided, and at the same time, Allen called on the radio that he had just passed the suspicious vehicle. Norrington then looked through his rearview mirror and saw a woman enter the gray Buick, the door slam shut, and the car speed away. Norrington made a U-turn, activated his emergency lights, and gave pursuit.

Norrington pulled the gray Buick over after a high-speed chase. He found two people in the car, a man driving and a woman passenger. When Norrington asked for identification, both the driver and passenger responded, “No speak English.” (Norrington identified the driver in court as defendant and the woman passenger as defendant’s wife, Ewa Bzoza.) The driver produced an Illinois driver’s license bearing the name “Jan Gramo,” and the passenger produced a card with the name “Ela Burak.” Norrington placed them under arrest and ordered the Buick towed to the police impoundment lot.

Leita Jackson was 87 years old at the time she testified, approximately two years after the burglary. On October 16, 1990, she lived alone and left home shortly after 5 p.m. She gave no one permission to enter her home in her absence, and she did not know either defendant or his wife. When she left her home that day, all of her doors were locked.

After defendant and his wife were arrested, the police issued a bulletin announcing the recovery of a large amount of jewelry and inviting inquiries regarding missing jewelry from other police agencies. They received the following responses.

Earl Ewald was 81 years old and a longtime resident of McLean County when he testified at trial. His wife, Mildred, was 82 years old. On the morning of October 16, 1990, Earl and Mildred went shopping. Mildred wore her wedding ring, which she did not normally wear during the daytime. When they returned home she took off her ring and put it on top of the jewelry box on her dresser. Later, at 2 p.m., the Ewalds went outside to wash the windows on the front of their house. They left the front and back doors unlocked while they were outside. The next morning, Mildred could not find her wedding ring. As she searched, she discovered that other jewelry was also missing, along with her watch and some money ($117). The house bore no signs of forced entry. The Ewalds immediately notified the police. After the Ewalds learned of the recovery of a quantity of jewelry in Clinton, they went to the Clinton police department, where they identified some of the items missing from their house, including Mildred’s wedding ring.

Another resident of McLean County, Fern Catón, was 78 years old when she testified. On the morning of October 15, 1990, she ran an errand, wearing four rings which she always wears when she goes out. For most of the next day, October 16, Catón left her kitchen door unlocked. She spent the day downstairs and part of it outside with a building contractor, who was working on her house. She last saw her rings on the morning of October 15 and did not see them again until October 19, when she identified them at the Clinton police station.

Elmer Kohrt lives with his wife Gladys in Livingston County. He was 67 and she was 66 years old at the time of the trial. Neither was home during the day on October 16, 1990. On October 19, Kohrt and his wife realized that his watch and some money were missing from his dresser drawer. They also discovered various items of jewelry missing from other places in their home. Kohrt reported the missing items to the police, and on October 22, he identified several of the missing items at the Clinton police station.

The State also presented evidence regarding defendant’s activities in Kankakee County. Mary Irene Monik testified that on October 13, 1990, she saw a gray car with a male driver and female passenger drive through her neighborhood in Kankakee County. Monik testified that she observed defendant’s wife try the front door of a neighbor’s house, go around to the side of the house, and, shortly afterward, come out of the front door and walk to the gray car.

Orville E still, bom in 1919, and his wife, Cleo, were neighbors of Mary Monik. On the afternoon of October 13, 1990, they were doing yard work in the backyard of a next door neighbor. They had only a partial view of their house, where they had left their side door unlocked. The front door facing the street was out of their view. Orville testified that Mary Monik and another neighbor come to their home to report that they had seen somebody leaving through their front door. The Estills inspected their residence and found approximately $400 in currency and some rings missing. These items were never recovered.

Immediately after arguments of counsel, the trial court concluded that the State had proved every count of every charge beyond a reasonable doubt. The court entered judgments of conviction against defendant and his wife on the six residential burglary charges, the two attempt (residential burglary) charges, and the obstructing justice charges. The court did not enter judgments on the counts of theft or possession of burglary tools.

At post-trial proceedings and sentencing, the court confirmed the entry of judgment on two counts of residential burglary in the McLean County cases (the Catón and Ewald residences) and dismissed two counts of theft. As to the De Witt County cases, the court confirmed the judgment of conviction against defendant on one count of attempt (residential burglary) (the Jackson residence) and one count of obstruction of justice, but declined to enter judgment on the remaining counts of theft and possession of burglary tools. As to the Livingston County cases, the court confirmed the judgment of conviction against defendant on one count of residential burglary (the Kohrt residence) and declined to enter judgment as to theft count.

At defendant’s sentencing hearing, Illinois State Police agents Lex Bitner and Renee Cibich testified for the State. Bitner had served since May 1987 as a criminal intelligence analyst for the State Police division of criminal investigation. Her duties included analyzing specific types of crime patterns across the State and assisting local police agencies in disseminating information and identifying suspects. In this capacity, she was involved in the investigation of defendant and his wife. She testified to a pattern of residential burglaries in central Illinois with what she considered a similar mode of operation-daytime, nonforceable entries into the homes of elderly people with jewelry and money taken without ransacking the house. Bitner opined that the burglaries were not random entries; instead, the choice of elderly victims was part of the method of operation.

Cibich, also employed by the division of criminal investigation, intelligence section, described the manner in which she used fingerprints to obtain through Interpol records of defendant’s criminal record in Poland, Germany, Sweden, and Canada. Defendant also had a prior conviction for aggravated assault in McHenry County, Illinois.

The presentence report stated that defendant had 28 prior felony convictions from all over the world, but defendant denied the accuracy of that figure. At the sentencing hearing, the trial court singled out convictions from Sweden, Canada, and McHenry County, Illinois, that it would consider in sentencing defendant. The court noted in mitigation that defendant did not use violence or weapons in committing these crimes. However, the court also noted that these crimes involved entry into the victims’ homes, and the items stolen were of considerable financial and emotional value to the victims. The court found the defendant and his wife to be “extremely sophisticated thieves.”

The trial court sentenced defendant to 25 years in prison for the Livingston County residential burglary conviction and to two, 30-year terms for the McLean County residential burglary convictions. The court ordered these McLean County sentences to run concurrently with each other but consecutively to the Livingston County sentence. The court also sentenced defendant to concurrent terms of 10 years and 6 years in prison for the De Witt County attempt (residential burglary) and obstructing justice convictions, and the court ordered these sentences to run concurrently with the McLean County sentences. The consecutive prison terms for the five convictions require that defendant serve 55 years in prison. The court sentenced defendant’s wife to a total of 60 years in prison.

II. Analysis

A. Statutory Eligibility for Extended-Term Sentences

Defendant first argues that section 5 — 5—3.2(b)(4)(ii) of the Unified Code of Corrections (Code) did not authorize the trial court to impose extended-term sentences. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(bX4)(ii).) Residential burglary, the most serious offense of which he was convicted, is a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(b).) The sentencing range for a Class 1 felony was from a minimum of 4 to a maximum of 15 years in prison. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX4).) An extended-term sentence for a Class 1 felony, where allowed by law, carried a minimum prison term of 15 years and a maximum of 30 years. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2(a)(3).

Defendant notes that the trial court clearly and explicitly sentenced him to an extended-term sentence on every count of residential burglary pursuant to section 5 — 5—3.2(b)(4)(ii) of the Code, which applies to offenses committed against a person of the age of 60 years or older. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(4)(ii).) At the time of defendant’s offenses, that section read as follows:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender:
* * *
(4) When a defendant is convicted of any felony committed against:
* * *
(ii) a person 60 years of age or older at the time of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(4)(ii).)

The amended form of this statute (see Pub. Act 86 — 1418, §2, eff. January 1, 1991 (1990 Ill. Laws 3189, 3191)), which took effect January 1,1991, reads as follows:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender:
* * *
(4) When a defendant is convicted of any felony committed against:
* * *
(ii) a. person 60 years of age or older at the time of the offense or such person’s property.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 1005-5-3.2(b)(4)(ii).

Defendant argues that the statute authorizing an extended term based upon the victim’s age of 60 or over did not apply to property crimes until January 1, 1991. Because the offenses in this case were all committed on or before October 16, 1990, defendant claims that the amended version of the statute, authorizing an extended-term sentence for crimes against a person 60 years of age or older at the time of the offense or such person’s property, did not apply. He argues that the trial court’s imposition of an extended-term sentence pursuant to this amended statute violated his right not to be punished under an ex post facto law, as guaranteed by article I, sections 10 and 16 of the Illinois Constitution (Ill. Const. 1970, art. I, §§10, 16), and the fifth, eighth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, VIII, XIV).

The State responds that the trial court could properly sentence defendant to an extended term for residential burglary against a person 60 years or older under the law in effect prior to January 1, 1991. We agree. That statute provided that when a defendant is convicted of “any felony” committed against a person 60 years of age or older, the defendant is subject to an extended-term sentence. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(4Xii).) We conclude that the legislature meant precisely what it said in using the phrase “any felony,” and did not intend to limit the type of felony which would subject a defendant to an extended term.

In People v. Anderson (1985), 142 Ill. App. 3d 240, 242, 488 N.E.2d 557, 558, the court expressly held that the extended-term provision based on the age of the victims applies to residential burglary. The court in Anderson noted the legislative determination that felonies against the elderly warranted more severe punishment because such victims are least able to protect themselves and most traumatized by the commission of the felonies. Anderson, 142 Ill. App. 3d at 242, 448 N.E.2d at 558.

The addition or omission of words in a statute does not necessarily indicate legislative intent to change the effect of the earlier statute. A change in statutory construction is appropriate only where the intent of the legislature to change the law is clear or the language of the new statute plainly requires it. (People v. Nunn (1979), 77 Ill. 2d 243, 249, 396 N.E.2d 27, 29-30, quoting Vause & Striegel, Inc. v. McKibbin (1942), 379 Ill. 169, 175, 39 N.E.2d 1006, 1009.) Courts may interpret a statutory amendment to indicate a legislative intent to clarify the law rather than change it. The amendment may also be viewed as the expression of the legislature’s intent regarding the original statute. (See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271-72, 408 N.E.2d 204, 209; Hession v. Illinois Department of Public Aid (1989), 129 Ill. 2d 535, 543, 544 N.E.2d 751, 755 (“While it is true that normally an amendment is presumed to change the law as it formerly existed, the circumstances surrounding the enactment of an amendment must also be considered. [Citation.] If the circumstances suggest that the legislature intended to interpret the original statute, the presumption of change is rebutted”).) We view the amendment to section 5 — 5—3.2(bX4Xii) of the Code as the legislature’s intent to codify the holding in Anderson, once the legislature became aware of the very argument defendant makes here and that the court in Anderson rejected so that other appellate court panels would not be permitted to reach contrary conclusions.

We conclude that the addition of “or such person’s property” to the statute constitutes a reaffirmation of the legislature’s intent to include all felonies. Because section 5 — 5—3.2(b)(4)(ii) of the Code applied to property offenses at the time of the offense, the trial court did not apply an ex post facto law. Accordingly, we reject defendant’s argument that the court erred as a matter of law by sentencing defendant to extended terms.

B. Defendant’s Claimed Lack of Knowledge of Victims’ Age

Next, defendant maintains that his extended-term sentences were improper because the record contains no evidence that he had knowledge, or any way of knowing, the age of the victims. Defendant contends that his method of operation, as described at trial, indicated that he randomly chose the residences he burglarized. Defendant concludes that the trial court erred by imposing extended terms in this case because doing so makes double punishment hinge upon happenstance and random chance. We emphatically disagree.

The legislature has the authority to classify and define criminal offenses and to determine the extent and nature of punishment for their commission. (See People v. Harmison (1985), 108 Ill. 2d 197, 205, 483 N.E.2d 508, 512; People v. La Pointe (1981), 88 Ill. 2d 482, 500, 431 N.E.2d 344, 352.) This authority is limited by the requirement that the classification of a crime and the penalty provided be reasonably related or designed to remedy the evils the legislature deems a threat to public health, safety, and general welfare. People v. P.H. (1991), 145 Ill. 2d 209, 233, 582 N.E.2d 700, 711; see Harmison, 108 Ill. 2d at 205, 483 N.E.2d at 512.

The legislature has determined that individuals over a certain age are entitled to greater protection simply based upon their age because they are least able to protect themselves and most traumatized by the offenses. (People v. Jackson (1991), 216 Ill. App. 3d 1, 10, 574 N.E.2d 719, 725; Anderson, 142 Ill. App. 3d at 242, 488 N.E.2d at 558.) Making any felony committed against the elderly subject to an extended-term is rationally related to the goal of protecting this class of individuals from criminal conduct. Further, the trial court may use this aggravating factor to impose an extended-term sentence even if the record shows that defendant did not know the victim’s age, ánd even if the victim is not the target of defendant’s criminal conduct. (See People v. Benkowski (1991), 215 Ill. App. 3d 615, 621, 575 N.E.2d 587, 591 (extended term based on age applicable without regard to effect the victim’s age had on defendant’s decision to commit the offenses).) We note that no constitutional prohibition exists against a criminal provision because it lacks á scienter or knowledge requirement. (People v. Brown (1983), 98 Ill. 2d 374, 378-79, 457 N.E.2d 6, 7-8.) Requiring proof of defendant’s knowledge of the victim’s age would nullify much of the protection the legislature intended because a person’s age may not be readily ascertainable. (See People v. Jordan (1981), 102 Ill. App. 3d 1136, 1139, 430 N.E.2d 389, 391.) The terrible impact of crimes upon the elderly remains the same regardless of whether the criminal knew the victim’s age.

We wish to emphasize that we have absolutely no sympathy for defendant’s complaint that he is being unjustly punished because he did not (and could not) have known the ages of his victims. Criminals must take their victims as they find them, infirmities and all. Once the legislature has determined that certain conduct is criminal, it need not require the State to prove a defendant’s knowledge of a particular victim’s infirmity before the criminal may suffer additional punishment because of that infirmity. (See People v. Martin (1983), 112 Ill. App. 3d 486, 499, 445 N.E.2d 795, 806 (defendants properly convicted of murder for beating victim with preexisting heart disease, thereby putting strain on his heart and causing his death, even though a victim without that heart disease would not have been killed by defendants’ beating).) To be blunt, the answer to defendant’s contention is for him not to commit a felony in the first place; then he need not worry about the possible application of unknown (he claims) aggravating factors that might increase his sentence.

C. Consecutive Sentences for Residential Burglary

Next, defendant argues that the trial court abused its discretion by imposing consecutive sentences on the residential burglary convictions. A court may not impose consecutive sentences when the offenses are part of a single course of conduct during which no substantial change in the nature of the criminal objective occurs (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)), but may impose them when, in light of the nature and circumstances of the offense and history and character of the defendant, the court determines that they are required to protect the public. Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 4(b).

Here, defendant burglarized several different residences in three different counties. Accordingly, the trial court could properly find that this was not a single course of conduct. See People v. Shaw (1985), 133 Ill. App. 3d 391, 405, 478 N.E.2d 1142, 1154.

Furthermore, this 55-year-old defendant has an extensive criminal record in Illinois and foreign countries. We also note that the trial court found defendant to be an “extremely sophisticated” thief. In sentencing defendant, the court specifically mentioned the following: (1) the illegality of defendant’s entry into Canada and the United States; (2) the multiple victims in widely separate locations in three different counties; (3) the emotional distress Catón suffered as a result of defendant’s crimes; (4) defendant’s sophistication as a thief; and (5) defendant’s significant prior criminal history in Illinois and throughout the world. Thus, the court could easily (and appropriately) conclude that consecutive terms were required to protect the public, especially the elderly, from further criminal conduct by defendant. (See People v. Rivera (1991), 212 Ill. App. 3d 519, 526-27, 571 N.E.2d 202, 207; People v. Cohen (1986), 142 Ill. App. 3d 900, 905-06, 492 N.E.2d 569, 573-74.) We believe that the trial court would have been fully justified in so concluding because the record convincingly demonstrates that defendant is an inveterate criminal utterly devoid of any rehabilitative potential. We reaffirm what this court recently wrote about criminals who prey on the elderly:

“If our elderly citizens are to be protected from con artists like this defendant, harsh sentences ought to be imposed upon criminals who prey upon the elderly. By imposing such sentences, the courts may deter similar crimes from being committed.” (People v. Lambert (1990), 195 Ill. App. 3d 314, 332, 552 N.E.2d 300, 312.)

We add that defendant’s miserable record of criminality suggests that our elderly citizens are safe from him only when he is secured behind bars. Whatever else may be said of putting him in prison (perhaps even for the rest of his life), this much cannot be disputed: when he is there, he can no longer be out on the streets committing his crimes here.

D. Trial Court’s Consideration of Inherent Conduct

Defendant next argues that the trial court erred when it considered in aggravation conduct which is not only inherent in the definition of burglary, but which the legislature already considered in the creation of the enhanced offense of residential burglary. Defendant points to the following remarks of the court:

“With regard to the charge of residential burglary, clearly the most serious charge and there being three of those charges which have been proven by the State against this defendant, that is a most serious criminal offense because it is entering into the residence, which is perhaps the most protected place of any citizen in the United States and has been recognized as such by the United States Supreme Court. Particularly those parties’ bedrooms.”

Defendant argues that the trial court improperly considered the entry into the privacy of the victims’ dwellings as an aggravating factor.

We agree with defendant that conduct which is an essential element of an offense cannot be used to enhance the punishment for that offense. (See People v. Conover (1981), 84 Ill. 2d 400, 404-05, 419 N.E.2d 906, 909; People v. Gardner (1982), 105 Ill. App. 3d 103, 118, 433 N.E.2d 1318, 1328.) However, we do not find the trial court’s reference here to defendant’s entry into the homes and bedrooms of the victims improper. In imposing sentence, the trial court may consider the nature and circumstances of the offense. (See People v. Tolliver (1981), 98 Ill. App. 3d 116, 117-18, 424 N.E.2d 44, 45.) The court was merely describing the nature of the offenses defendant committed and the seriousness with which the legislature, the courts, and society view them. (See Martin, 112 Ill. App. 3d at 503, 445 N.E.2d at 809, quoting People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525 (“It is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error”).) The trial court did not rely on the fact that defendant entered into the homes as grounds for imposing a more severe sentence.

Even if we viewed the trial court’s reference to the entry into the home as improper, we would deem any such error as harmless in light of the overwhelming presence of aggravating factors. See People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340 (“where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required”).

E. Trial Court’s Alleged Failure To Consider Mitigating Factors

Defendant also maintains that the trial court erred by failing to give any weight to the substantial factors in mitigation present (he claims) in this record. Defendant points out that he did not carry a weapon and that he entered the victims’ homes in such a way as to ensure that they were empty. Thus, he claims that his conduct neither caused nor threatened physical harm and that he did not contemplate that his conduct would cause or threaten physical harm. See Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3.1(a)(1), (a)(2).

At sentencing, the trial court noted that these offenses did not involve “violence” and defendant was not “armed.” Defendant argues that although the court acknowledged these mitigating factors, it failed to give them any weight in imposing sentence.

On review, this court presumes the trial court to have considered evidence offered in mitigation unless some statement in the record, other than the sentence imposed, indicates that the court did not do so. (People v. White (1992), 237 Ill. App. 3d 967, 970, 605 N.E.2d 720, 722; People v. Fugitt (1980), 87 Ill. App. 3d 1044, 1046, 409 N.E.2d 537, 539.) Further, this court will not disturb the trial court’s decision merely because we might have balanced the mitigating and aggravating factors differently. See People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307.

We reject defendant’s claim that the trial court failed to consider the mitigating factors he cites. The record reveals that the court in fact did consider those factors; defendant just does not like the results.

F. Excessiveness of Defendant’s Sentence

Last, defendant claims that the sentence imposed constitutes an abuse of discretion because it was excessive in light of the evidence. This court will not substitute its judgment or preference as to punishment for that of the sentencing court, which is always better situated than we to tailor a sentence to the circumstances of the case. The trial court balances the appropriate factors in imposing sentence, and this court will not second-guess the trial court’s judgment unless the record affirmatively shows the trial court abused its sentencing discretion. Steppan, 105 Ill. 2d at 323, 473 N.E.2d at 1307.

We earlier made clear our approval of the sentences the trial court imposed when we discussed and rejected defendant’s argument that the trial court erred by imposing consecutive sentences. We reaffirm that approval in light of the evidence before the trial court, consisting not only of defendant’s lengthy criminal record, but also that all the victims were over the age of 60. The trial court did not abuse its discretion in sentencing defendant.

III. Conclusion

For the reasons stated, we affirm the sentence imposed by the circuit court of McLean County.

Affirmed.

McCULLOUGH and LUND, JJ., concur.