source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    RESURRECTION LUTHERAN CHURCH, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0185
    Opinion filed April 19, 1991.

      Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, both of Chicago, of counsel), for appellant.
    Timothy A. French, of Neal, Gerber, Eisenberg & Lurie, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Department of Revenue of Illinois (Department of Revenue), appeals from a circuit court order reversing its decision that plaintiff, Resurrection Lutheran Church (Resurrection Lutheran), was not entitled to a property tax exemption in 1986 for its property located at 1040 West Barry, Chicago, Illinois. Resurrection Lutheran had leased the property to MoMing Dance and Arts Center (MoMing). The Department of Revenue disallowed the property tax exemption for the 1986 taxable year on the grounds that the property had not been utilized for charitable purposes by MoMing and that Resurrection Lutheran had leased the property in question to MoMing for profit. The circuit court reversed the decision of the Department of Revenue and held that Resurrection Lutheran was entitled to a tax exemption for the property for the 1986 taxable year. The Illinois Department of Revenue has filed a timely appeal to the circuit court’s order.

The facts of the case are as follows. Resurrection Lutheran is the owner of a parcel of property located at 1040 West Barry Street, Chicago, Illinois. The property is improved with a three-story building no longer used for religious purposes. During the calendar year 1986, Resurrection Lutheran leased the property to MoMing, an Illinois not-for-profit organization. MoMing intended to use the property and premises for a dancing school and for dancing performances and related activities. Resurrection Lutheran received $14,400 in rent from this lease during 1986.

Resurrection Lutheran chose to lease the 1040 West Barry property as opposed to selling because the church hoped to utilize this property for church purposes in the future and thus wanted the property properly maintained. Reverend Swanson stated that Resurrection Lutheran had sought to lease to non-profit organizations that would be an asset to the community. He further testified that in 1979 he had been offered $150,000 for the property by a developer. Reverend Swanson had also been told that the MoMing property could have been leased for as much as $7 a square foot whereas MoMing’s rental rate was approximately $1.11 per square foot.

MoMing was incorporated under the Illinois General Not for Profit Corporation Act. Its articles of incorporation, filed on July 1, 1974, stated that MoMing would promote educational activities by, inter alia: preparing and presenting works of contemporary dance by Chicago choreographers; providing a repertory contemporary dance company; conducting classes in modern dance technique and choreography; and increasing the exchange of ideas between dancers and other artists.

On September 17, 1987, Judge Conrad of the circuit court of Cook County, found, as a matter of law, that Resurrection Lutheran was exempt from property tax for the years 1978 through and including 1985 as a religious institution, pursuant to section 19.2 of the Illinois Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 500.2). Judge Conrad further found that Resurrection Lutheran had not leased its property to MoMing with a view to profit, that the lease involved only incidental income for Resurrection Lutheran for the relevant time periods and that MoMing was a charitable organization.

The Cook County assessor assessed a real estate property tax against the subject property for the calendar year 1986. Resurrection Lutheran appealed the assessment to the Board of Appeals of Cook County (Board of Appeals). In July of 1987, the Board of Appeals notified the Department of Revenue that it was denying Resurrection Lutheran the exemption for 1986. In August of 1987 the Department of Revenue notified Resurrection Lutheran that it was affirming the action of the Board of Appeals, disapproving the 1986 exemption. Subsequently, Resurrection Lutheran requested a formal hearing on the matter. Pursuant to Resurrection Lutheran’s request, a hearing was held before Administrative Law Judge Nafziger in November 1987.

After hearing, Judge Nafziger recommended that the exemption sought by Resurrection Lutheran be denied for the tax year 1986. Judge Nafziger found that MoMing did not meet the requirements for charitable organizations. Specifically, Judge Nafziger found that Mo-Ming’s funds were not derived from private and public charity, that charity was not dispensed by MoMing to all who need and apply for it, that obstacles were placed in the way of those seeking the benefits, and that the primary use of the property was not for charitable purposes.

In reaching the aforestated conclusion Judge Nafziger made the following findings of fact. During 1986, there were approximately 67 nights of performances, as well as four Sunday young people’s matinees. MoMing rents out its studios for $5 to $7 per hour, the auditorium stage for $10 per hour and the entire auditorium for $175 per evening, on occasions when it is not using said facilities for its own purposes. MoMing offered classes in contemporary dance for both young people and adults during all of 1986. Tuition fees of approximately $5 per session were charged for all classes. While MoMing did not waive or reduce tuition fees for classes during 1986, it did offer a work-study program, whereby students who could not afford to pay for classes were assigned jobs, usually in the nature of janitorial work, in exchange for the right to attend classes. Approximately 30 to 40 students out of a total 200 students each session participated in the work-study program. Although MoMing did not waive or reduce admission prices for performances, some tickets were given to a home for the mentally handicapped (Commodore Inn), and tickets were given away or discounted for certain performances. MoMing has a visual arts gallery where artists are invited to put up their work. There is no admission fee to the gallery; however, if any items were sold, MoMing, received 20% of the sale price, with the artist retaining 80%. Judge Nafziger further found that during the 1986 fiscal year, MoMing derived 43% of its income from tuition fees, performance admissions, concession receipts, space rentals, and commissions on art sales, while 57% of MoMing’s income during that same period was derived from contributions.

On March 28, 1988, Resurrection Lutheran filed an action for injunctive relief to reverse the recommendation of Judge Nafziger on the ground that the recommendation was contrary to law and against the manifest weight of the evidence.

On December 23, 1988, Judge Alexander White entered a written order reversing the ruling of the Department of Revenue and ordering that Resurrection Lutheran be granted a property tax exemption for the subject parcel in 1986. In so ruling, the trial court expressly found that MoMing satisfied all six factors for charitable institutions set forth in Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537. The trial court also held that Resurrection Lutheran did not have to prove a connection between Resurrection’s purpose and the purpose for which MoMing used the property in order to retain the tax-exempt status of the property. This timely appeal followed.

The burden of proving the right to an exemption is upon the person seeking it. Each individual claim for tax exemption must be determined from the facts presented, and the one claiming an exemption has the burden of proving clearly and conclusively that it is entitled to exempt status. (People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 462, 264 N.E.2d 4, 10.) In determining whether property is included within the scope of an exemption, all facts are to be construed and all debatable questions resolved in favor of taxation. Board of Certified Safety Professionals of the Americas, Inc. v. Johnson (1986), 112 Ill. 2d 542, 494 N.E.2d 485.

The scope of review of an administrative agency decision is generally limited to whether the administrative decision is against the manifest weight of the evidence. (Decatur Sports Foundation v. Department of Revenue (1987), 156 Ill. App. 3d 623, 627, 509 N.E.2d 1103, 1105.) The findings and conclusions of the administrative agency on questions of fact are prima facia true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3—110.) However, where the relevant facts are undisputed, the issue of whether property is exempt is a question of law. (Lutheran Child & Family Services v. Department of Revenue (1987), 160 Ill. App. 3d 420, 423, 513 N.E.2d 587, 589.) Therefore, the decision as to whether property is tax-exempt “depends solely upon an application of the appropriate legal standard to the undisputed facts” (Illinois Central Gulf R.R. Co. v. Department of Local Government Affairs (1983), 95 Ill. 2d 111, 129, 447 N.E.2d 315), and the reviewing court’s role is to determine whether the trial court properly found that the property in question was entitled to tax-exempt status. Lutheran Child & Family Services v. Department of Revenue (1987), 160 Ill. App. 3d 420, 423, 513 N.E.2d 587, 589; see also Northwestern Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 311, 490 N.E.2d 161.

Section 19.7 of the Revenue Act provides a tax exemption for “[a]ll property of institutions of public charity, *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit.” (Ill. Rev. Stat. 1985, ch. 120, par. 500.7.) The sole issue on appeal is whether Resurrection Lutheran should have been granted a property tax exemption for the property leased to MoMing. The Department of Revenue argues that Resurrection Lutheran failed to establish that MoMing’s use of the property in question satisfied each of the criteria for charitable institutions and thus Resurrection Lutheran, the owner-lessor of the property in question, was not entitled to the property tax exemption under the language of Section 19.7 of the Revenue Act. We note, there is no dispute as to the tax-exempt status of Resurrection Lutheran. Resurrection Lutheran argues that MoMing is properly a tax-exempt institution because it satisfies the criteria for charitable institutions; thus, we should affirm the decision of the trial court. For the following reasons, we affirm the decision of the trial court.

In order to qualify for a property tax exemption on charitable grounds, the taxpayer must show that the property was owned by a charitable organization and was exclusively used for charitable purposes. (Northwestern Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 312, 490 N.E.2d 161, 163.) In Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, the Illinois Supreme Court articulated the following criteria which must be proven by the taxpayer in order to demonstrate that the use of property is in fact primarily used for charitable purposes: (1) the benefits derived are for an indefinite number of persons; (2) the organization has no capital, capital stock, or shareholders, and does not profit from the enterprise; (3) funds are derived mainly from private and public charity, and are held in trust for the objects and purposes expressed in its charter; (4) charity is dispensed to all who need and apply for it; (5) no obstacles are placed in the way of those seeking the benefits; and (6) the primary use of the property is for charitable purposes. Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d at 157, 233 N.E.2d at 541-42.

The Department of Revenue argues that the trial court erred in reversing the Department of Revenue on administrative review and ruling that the six factors of the Methodist test had been met. The Department of Revenue has conceded that MoMing satisfied factors one and two. Additionally, the Department is not contesting on appeal that MoMing satisfied factor three of the Methodist’s guidelines due to the fact that 60% of MoMing’s funds came from public and private charity.

First, the Department of Revenue argues that MoMing failed to meet the fourth factor outlined in Methodist: that Resurrection Lutheran failed to establish that MoMing’s charity was dispensed to all who need and apply for it. The Department of Revenue points to the following evidence: MoMing charged fees for both its instructional lessons and its performance concerts; no full or partial scholarships were offered to students for lessons at MoMing; no performance tickets were made available to the general public free of charge, and free tickets were only offered to the Commodore Inn, a home for mentally handicapped individuals and in instances where it sought to fill the house.

Further, the Department of Revenue argues that the other uses of the property in question by MoMing indicate that charity was not dispensed to all who need and apply for it. Local artists were invited to display their works in a visual arts gallery, but MoMing retained 20% of the cost of any item sold and MoMing rented out its facilities to the public for a fee.

Second, the Department of Revenue alleges that MoMing failed to meet the requirements of the fifth factor set out in Methodist: that Resurrection Lutheran did not establish that no obstacles are placed in the way of those seeking benefits. The Department of Revenue argues that the evidence reflects that both students seeking instruction at MoMing and individuals attending performances at MoMing or otherwise utilizing its facilities were required to pay for these privileges, with only limited exceptions being made by MoMing. The limited exceptions the Department of Revenue refers to are that no scholarships were offered to prospective students, the students having either to seek admission into the work-study program or to pay the full tuition fees, and that Commodore Inn was given free tickets to performances, with the general public having to pay the full admission price. The Department of Revenue argues that such financial requirements constituted significant obstacles to the general public’s utilization of MoMing’s services; thus, MoMing failed to meet this criterion as well.

Third, the Department of Revenue alleges that MoMing failed to meet the requirements of the sixth factor set out in Methodist: that Resurrection Lutheran failed to establish that the exclusive (primary) use of the property was for charitable purposes. The Department of Revenue argues that while MoMing’s goals of providing a repertory contemporary dance company, instructing students in contemporary dance, and presenting performances for public enjoyment may be desirable, they hardly relieve a governmental burden.

The record reflects that, during 1986, tuition for classes at MoMing was approximately $5 per session for students able to pay and a work-study program was provided for those students who could not pay. MoMing also rents out its studios, stage and auditorium when they were not in use; however, the rental rates in 1986 were as follows: $5 to $7 per hour for studio time, $10 per hour for the stage and $175 per evening for the entire auditorium. MoMing offered a period on Friday afternoon called a “free jam” when outside persons were invited to utilize the MoMing dance studio to “move freely with no restrictions.” A charitable institution does not lose its tax-exempt status merely because persons who are unable to pay for its services are required to do so, as long as the institution makes no profit and all the funds are used to further the organization’s charitable goals. (Small v. Pangle (1975), 60 Ill. 2d 510, 328 N.E.2d 285; People ex rel. Nordlund v. The Association of The Winnebago Home for the Aged (1968), 40 Ill. 2d 91, 273 N.E.2d 533.) The amounts charged by Mo-Ming for tuition and admission fees to dance concerts were substantially less than enough to cover regular operating expenses. MoMing’s director testified that each performance event incurred a loss of approximately $1,000 to $8,000. Additionally, MoMing uses it excess receipts, if any, to offset deficits in other years and not to reap a profit.

Although MoMing does not charge artists to exhibit artwork, the Department of Revenue points out that MoMing retained 20% of the sale price of any artwork sold from its visual gallery. However, relevant to this point, MoMing’s director testified to the following:

“BY ADMINISTRATIVE LAW JUDGE: Q. Looking through the Applicant’s Exhibit No. 6, it appears that there were not a great many paintings sold or other art objects sold?
A. [MoMing’s director] No. Generally there is not. It’s not a common occurrence.
Q. So the gallery is then truly primarily for display and not for sale?
A. Yes.”

The director further testified that she only recalled one or two paintings having been sold during 1986.

Property satisfies the exclusive use requirement of the property tax .exemption statutes if it is primarily used for the exempted purpose, even though it is also used for a secondary or incidental purpose. (McKenzie v. Johnson (1983), 98 Ill. 2d 87, 98, 456 N.E.2d 73.) The determination of whether the primary use of property is a charitable purpose depends on the facts of each individual case. (School of Domestic Arts & Science v. Carr (1926), 322 Ill. 562, 568, 153 N.E. 669, 671.) The test is “whether the primary purpose of the institution is charitable, or whether its primary purpose is the making of a profit and the devoting of these profits to charitable purposes.” (People v. YMCA (1936), 365 Ill. 118, 123, 6 N.E. 166, 169.) In the trial court’s memorandum decision and judgment, the trial judge expressly determined that MoMing’s stated goals and mission, providing an accessible forum for the performing arts to artists and the public in the Chicago area, are clearly charitable.

Similarly, the court in Highland Park Women’s Club v. Department of Revenue (1990), 206 Ill. App. 3d 447, 564 N.E.2d 890, held that the property at issue (Ravinia Park) was a charitable organization engaged in the promotion of the arts, including music, dance, and theater, by putting on performances at the park and making performances readily available to the public through low admission prices and the Opportunity Program. Fostering appreciation of the arts through the performances on the premises was the primary purpose of that parcel of land.

MoMing’s director testified that MoMing fully sponsored “student showcases,” underwrote regular performances, offered as many as 44 complimentary tickets out of a total 140 for dance concerts, actively participated in Chicago’s Urban Gateways program, and offered its benefits to 13,000 to 15,000 persons every year. We find that Resurrection Lutheran established that MoMing’s use of the property in question satisfied each of the criteria of the test set forth in Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, to demonstrate that the property in question was used primarily for charitable purposes. As a result Resurrection Lutheran, the owner-lessor of the property in question, was entitled to a property tax exemption under the language of section 19.7 of the Revenue Act for the 1986 tax year.

Accordingly, for the reasons set forth above, we affirm the decision of the trial court granting Resurrection Lutheran a tax exemption for the property located at 1040 West Barry, Chicago, Illinois, for the tax year 1986.

Judgment affirmed.

LORENZ, P.J., and McNULTY, J., concur.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL HAWKINS, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—88—2749, 1—89—2585 cons.
    Opinion filed April 19, 1991.

      Michael Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarh, Carol L. Gaines, and Michael D. Oppenheimer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant was found guilty of the armed robbery at a Chicago bar and was sentenced to 12 years in prison. In a consolidated action he appeals the trial court’s denial of his post-conviction petition for relief and the conviction itself.

In defendant’s direct appeal he contends that he was denied his sixth amendment right to effective assistance of counsel when his counsel failed to move for a speedy trial discharge though more than 120 days of delay not occasioned by defendant elapsed from the date defendant was taken into custody until the date of his trial, and that the cumulative effect of prosecutorial misconduct and admission of hearsay evidence denied defendant his sixth and fourteenth amendment rights.

Defendant appeals the trial court’s denial of his post-conviction petition contending that the trial court’s failure to move for a speedy trial discharge on the added armed robbery count denied defendant his sixth amendment right to effective assistance of counsel.

Defendant was arrested on June 1, 1987, and charged with robbery of Tate’s Pub. On August 25, 1987, the State amended the information filed against defendant to include a charge of armed robbery.

The trial began August 9, 1988. Before the trial, defendant’s case was called in court 18 times and each time was continued for various reasons. The State contends that three of those times, January 6, 1988, March 9, 1988 and May 4, 1988, the case was continued by agreement. The defense contends those continuances should have been charged to the State. As part of his appeal, defendant contends that these delays, not occasioned by him, caused him to be tried after the 120-day limitations period had run and in violation of this speedy trial right guaranteed by statute. Ill. Rev. Stat. 1987, ch. 38, 103—5(a).

On November 15, 1987, defendant’s case was called and a possible plea to the charges was discussed, then rejected by defendant. At the conclusion of that hearing, the trial judge set defendant’s case for trial stating: “I have a jury set on January 6. We are going to put this as a back-up to that one. January 6, 1988. That is the soonest I can do it Mr. Hawkins. I really would like to get it quicker, but I can’t.”

On January 6, 1988 defendant’s case was called and the following colloquy occurred:

“THE COURT: Mr. Hawkins, how are you doing?
DEFENSE ATTORNEY: Judge it was set for trial for today.
THE COURT: It’s been set for a jury for today, okay.
DEFENSE ATTORNEY: Whatever the next available date is.
THE COURT: February.
DEFENSE ATTORNEY: Can we make it sooner than February, judge?
THE COURT: We are starting a trial [that] will last all week as far as I can see.
DEFENSE ATTORNEY: All right judge.
THE COURT: February 1st.”

Defendant’s case was continued February 1 and February 18 by agreement and rescheduled for trial March 9, 1988. On that day defendant’s case was called and the following colloquy occurred:

“THE COURT: Okay. We have Mr. Hawkins before the court. This case is marked ready. And we’re going to try it, but we’re in the middle of another jury trial. So, still a jury, Mr. [defense attorney]?
DEFENSE ATTORNEY: I believe so. Is that correct Mr. Hawkins?
HAWKINS: Yes sir.
THE COURT: Okay. Let’s see. I can give you Monday, April 4th. That’s the first time that we’re going to be able to do something like that.
DEFENSE ATTORNEY: That’s okay. April 4th should be fine judge.
THE COURT: We have a bench but this will take priority.
DEFENSE ATTORNEY: April 4th is fine for me.
THE COURT: Okay. April 4, 1988 with subpoenas for jury trial. We’ll see you then, Mr. Hawkins.”

The case was continued again April 4, and April 8 by agreement as defendant and the State discussed the possibility of a plea agreement. No agreement was reached and again the case was set for trial with the judge stating: “What if we put this on for the 4th [of May], hold it day-to-day until the Raoul trial is over?” Both attorneys agree to the May 4 date.

On May 4, 1988 defendant’s case was called and the following colloquy occurred:

“THE COURT: We have Mr. Hawkins before the court. This case was set for trial today. However, as you are aware Mr. [defense attorney], this court is engaged in a jury trial that began on Monday and will not end until Friday and then we have the companion case supposed to go on Monday again for another week. So.
DEFENSE ATTORNEY: We would simply ask this be set down for the next available jury date judge.
THE COURT: Okay. I am going to suggest June 8. That is a Wednesday. You have got that other case, a Dwayne Cheers is a lower number case on Monday and if that one does not go, well how about putting this one on Monday also; either this or Cheers. The 6th. You want to put this on for the 6th or put it over until the 8th?
DEFENSE ATTORNEY: Why don’t we leave it on the 8th judge.
THE COURT: Okay. That is the first date and I wish it was not — I wish [I] could get to you earlier Mr. Hawkins but it is beginning to get a little crowded on the calendar. June 8, 1988 with subpoenas for a jury.
ASSISTANT STATE’S ATTORNEY: That is a by agreement date.
DEFENSE ATTORNEY: Are you going to be ready for trial on that date?
ASSISTANT STATE’S ATTORNEY: Yes.
THE COURT: Fine. Okay. Thank you.”

Defendant’s case was continued four more times before trial. On one occasion, June 22, 1988, the defendant asked for a one-day delay. On the three other occasions, June 8, June 23 and July 21, the defendant demanded a trial but the case was continued after the State asked for a continuance. Defendant’s case went to trial August 8,1988.

At trial, the bar owner, Tate, testified that he and about 15 customers were in the bar at 12:10 a.m. on June 1, when he looked up and saw a man standing on the end of the bar. He stated that the man had an object wrapped in clothing, pointed it toward him and said “stick up.” Tate testified that the thief’s face was covered at the time but later was uncovered in a skirmish. After the thief took money out of the cash register, Tate testified that the thief grabbed him by the collar and walked backwards toward the door. Tate grabbed the cloth-covered object and slung it across the bar. As he struggled with the thief and rolled over the bar, his customers came to his aid. He stated that the thief’s facial covering came off and that he recognized defendant as the thief. The defendant asked Tate and the customers to “give him a break, let him go” but Tate testified that he and his customers detained defendant until police arrived. They also discovered that the covered object was a baseball bat, which they turned over to police.

Joan Derden, a customer in the bar that night, testified that she saw the thief jump up on the bar, point something that looked like a shotgun at Tate and then heard him demand money. Derden stated that she slid down behind the bar, heard a struggle begin and saw an object fly over the bar. Tate and the thief then went over the bar and came into her view. Derden testified that other customers then came to Tate’s aid and the thief was held at bay until police arrived. Derden identified defendant as the thief.

Calvin Marks, also a customer, testified that on the night of the robbery he saw a man in the door of the bar holding what looked like a wrapped-up shotgun. The man stated, “This is a stickup.” Marks testified that when the thief grabbed Tate by the collar he eased off his bar stool at the end of the bar and crawled out the back door. He testified that he flagged down a police car and the officers returned with him to Tate’s Place. Once in the bar, Marks saw the defendant, his face now uncovered, being held down by bar patrons.

Chicago police officer Annette Buday testified that she and her partner arrived at Tate’s Place at around 12:10 a.m. on June 1 and found Tate and another man holding the defendant down. Without objection, Buday testified that various people in the bar told her defendant had “just stuck up the place.”

Darryl Hawkins testified in his own defense. He stated that he pled guilty in 1981 to a burglary charge and in 1983 to a possession of a controlled substance charge. Hawkins testified that he was in Tate’s bar twice on the night of the alleged burglary. He stated that he went to the bar around 11:45 p.m. to buy $100 worth of cocaine from Tate but went back 15 or 20 minutes later when he discovered the substance he bought was not cocaine. He testified that Tate gave him $10 back but that he wanted all $100 back. The two began to argue, then fight, and threw each other behind the bar. He testified that the two saw a baseball bat behind the bar and grabbed for it at the same time, tossing it over the bar. He testified that they struggled again, going over the bar toward the patrons. Hawkins testified that at that time, some of the patrons began hitting him with chairs and “whatever they had their hands on.” He testified that he asked the patrons to give him a break and then the police arrived and arrested him. He denied threatening Tate, stealing from Tate or entering the bar with a bat wrapped up in a raincoat.

The jury found Hawkins guilty of armed robbery and he was sentenced to 12 years in prison. Defendant filed a post-conviction petition seeking a new trial, arguing that he received ineffective assistance of counsel because his lawyer failed to file a motion to dismiss the charges based on a violation of the speedy trial act. The trial court denied defendant’s motion, stating that even if the defense attorney miscalculated the length of defendant’s term, it would not find that conduct to be ineffective assistance of counsel. The trial court rejected defendant’s argument that his right to a speedy trial was violated when the State added an armed robbery charge to an existing robbery charge and then attributed those delays occasioned by defendant on the initial charge to the 120-day term on the later armed robbery charge.

The speedy trial act guarantees every person in custody a trial on the merits within 120 days of the date the accused is taken into custody unless the delay is occasioned by the accused. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(a).) The speedy trial act is to be construed liberally so as to give effect to the constitutional right to speedy trial and each case is to be decided on its facts. People v. Beyah (1977), 67 Ill. 2d 423, 427, 367 N.E.2d 1334, 1336.

Defendant contends on the appeal of the denial of his post-conviction petition that defense counsel’s failure to move for speedy trial discharge on the added armed robbery count denied him his sixth amendment right to effective assistance of counsel.

Defendant was arrested June 1, 1987, and the additional charge of armed robbery was brought 12 weeks later on August 25, 1987. Defendant contends that since the two charges stemmed from the same incident, the State knew of its ability to file an armed robbery charge at the time it filed the original robbery charge against defendant. Defendant argues that the 85 days between his arrest and the new information must all be charged to the State because no delay during that time could have been caused by the defendant when he was not yet charged with the additional offense. Defendant argues that this 85-day delay, coupled with the 60-day delay the State concedes it caused from June 8, 1988, to June 22, 1988, and from June 23, 1988, to August 8, 1988, resulted in defendant being tried on the armed robbery charge beyond 120 days following his arrest in violation of the speedy trial act.

Defendant cites People v. King (1972), 8 Ill. App. 3d 2, 288 N.E.2d 672, which held that the State must prosecute within 120 days after the accused is taken into custody on all known offenses. Defendant cites People v. Williams (1981), 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846, which held that where new and additional charges arise from the same facts as did the original charge and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charge. The court held that continuances obtained in connection with the trial of the original charge cannot be attributed to defendant with respect to the new and additional charge even if sought by defendant or agreed to by him because the charge was not before the court when the continuances were obtained. Williams, 94 Ill. App. 3d at 249. See People v. Parker (1978), 59 Ill. App. 3d 302, 304, 375 N.E.2d 465.

Defendant contends that since his attorney submitted his affidavit in which he admitted to the court on defendant’s behalf that there was no speedy trial violation, counsel’s conduct fell below the permissible standards and he received ineffective assistance of counsel. Defendant cites People v. Staton (1987), 154 Ill. App. 3d 230, 231-32, 507 N.E.2d 62, where the court reversed a judgment for armed robbery and found defense counsel’s failure to move to dismiss the armed robbery charge on similar grounds resulted in substantial prejudice to defendant because the defendant was charged and tried after the statute of limitations expired. Defendant cites People v. Alcazar (1988), 173 Ill. App. 3d 344, 354-55, 527 N.E.2d 325, 332, which found defense counsel’s conduct sufficiently grave so as to prejudice defendant’s defense by his failure to move for a speedy trial discharge.

The State limited its response on this argument to distinguishing three cases cited by defendant, Williams, King and Alcazar. The State contends that in these three cases prosecutors added a second count on or after the 120th day of the defendant’s term. The State argues that in this case the armed robbery charge was added well before the 120-day term expired, giving defendant plenty of time to prepare for trial, and that he was not prejudiced by the delay.

We find this argument by the State to be irrelevant. The 120-day rule that binds the State has nothing to do with whether the defendant has adequate time to prepare for trial. The fact that defendant did or did not have time to prepare for trial is not controlling. The speedy trial act was adopted to prevent oppressive pretrial incarceration. People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

We find the initial days of defendant’s confinement cannot be charged to defendant under the law enunciated in Williams, King and Alcazar. The clock begins to tick at the filing of the first charges against defendant, but where new charges are subsequently filed, no delay can be attributed to him on the new charge until after the charge is filed.

We hold that defendant’s right to a speedy trial on the armed robbery charge was violated when the additional charge was filed on August 25, 1987, and the trial did not take place until August 9, 1988. We also find defense counsel’s failure to move for a dismissal of the charge was a violation of defendant’s right to effective assistance of counsel.

In defendant’s direct appeal of his conviction, he also raises the issues of violation of the speedy trial statute and ineffective assistance of counsel in failing to move for his dismissal on the ground of such violation.

If we were to find no speedy trial violation based on the post-conviction petition, we would still find a violation based on the facts presented in defendant’s direct appeal. Both sides agree that at least 104 days of defendant’s term ran before defendant’s trial.

At issue is whether the three continuances which occurred January 6, 1988, March 9, 1988, and May 4, 1988, should have been charged to the defendant to toll the running of the 120-day speedy trial requirement. The January 6 continuance resulted in a 26-day delay. The March 9 continuance resulted in a 25-day delay. The May 4 continuance resulted in a 35-day delay. Consequently, if any one of the continuances was charged to the State instead of to the defendant, then defendant’s trial was commenced after the 120-day limit had expired.

Defendant contends that he should not be charged for these delays because the continuances were caused by the court’s crowded trial docket and therefore the time must be charged to the State. Defendant maintains that his counsel never agreed to a continuance but concurred only to the court’s suggestion of a specific later date on which his case would be tried.

Defendant argues that his lawyer’s failure to file a speedy trial motion because the lawyer simply miscalculated defendant’s term was not a knowledgeable or tactical decision on the lawyer’s part but in fact was an error. Defendant contends that this failure to move for dismissal for violation of the speedy trial statutory protection constituted ineffective assistance by counsel and violated his sixth amendment right.

Defendant cites Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, which established a two-part test to determine whether counsel’s assistance was so defective as to require reversal of a conviction. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Ineffective assistance of counsel is established by a showing of actual incompetence on the part of an attorney to carry out his duties at trial which resulted in substantial prejudice to the defendant without which the outcome would probably have been different. A trial counsel’s competency, however, will not be judged by a court of review on the basis of errors in judgment or trial strategy. People v. Staton (1987), 154 Ill. App. 3d 230, 231, 507 N.E.2d 62.

Defendant cites People v. Morris (1954), 3 Ill. 2d 437, 121 N.E.2d 810, which held that there can be no justifiable excuse for an attorney’s conduct when he fails to protect a defendant’s right to be tried within the time limit prescribed by statute. Defendant cites People v. Alcazar (1988), 173 Ill. App. 3d 344, 354-55, 527 N.E.2d 325, 332, which held that the failure to move for a speedy trial discharge could constitute an error in counsel’s performance sufficiently grave to prejudice defendant’s defense.

Defendant refers this court to transcripts of the conversations that occurred between counsel for the State and for the defendant and the court on the three dates in question and contends that each shows it was not at defendant’s request nor was it defendant’s fault that the cases were delayed. Defendant argues that his counsel agreed only to specific trial dates suggested by the court but that cannot be construed.as agreeing to a continuance. Responsibility for delays caused by crowded dockets rests with and was chargeable to the State and not to the defendant. People v. Wiegand (1989), 183 Ill. App. 3d 216, 218, 538 N.E.2d 1374, 1375.

Defendant cites People v. Cunningham (1979), 77 Ill. App. 3d 949, 951, 396 N.E.2d 876, 877, which states that where a defendant requests or agrees to a continuance, he is charged with occasioning delay, but when the record is silent, the delay cannot be attributed to defendant. Defendant cites People v. Reimolds (1981), 100 Ill. App. 3d 598, 600-01, 426 N.E.2d 1234, 1237, rev’d on other grounds (1982), 92 Ill. 2d 101, 440 N.E.2d 872, which found no affirmative act by defendant or motion for continuance by him which contributed to the actual delay of the trial. The court held that no presumption of defendant’s fault could be raised from the silence of the record on this issue. Reimold, 100 Ill. App. 3d at 602 (Barry, J., dissenting on other grounds).

Defendant cites People v. Parker (1978), 59 Ill. App. 3d 302, 375 N.E.2d 465, where the court noted that the trial court faced an ongoing jury trial and found no abuse of discretion when the trial court dismissed indictments against defendant because the State failed to comply with the speedy trial requirement. Parker, 59 Ill. App. 3d at 304.

Regarding the propriety of charging the January 6, March 9, and May 4 dates to the defendant, the State cites page references to the court transcripts and states that all three trial dates were continued by agreement, and concludes that these delays therefore are not included in the running of the 120 days and that defendant was brought to trial within the 120-day time limit. The State notes that both defense attorneys involved in defendant’s trial and post-trial hearings filed affidavits which state that 107 days had run on defendant’s 120-day term. We note, however, that the affidavits do not state whether any given continuance was granted on the State’s motion, on defendant’s motion or by agreement.

The State cites People v. Pearson (1981), 88 Ill. 2d 210, 430 N.E.2d 990, and People v. Perez (1981), 100 Ill. App. 3d 901, 905, 427 N.E.2d 229, for the proposition that defendant has waived his right to be discharged on speedy trial grounds by failing to move for discharge prior to his trial.

The State argues that since the defendant’s case was heard within the 120-day time limit, the defendant has no foundation for a claim of ineffective assistance of counsel. The State cites Strickland for the proposition that a court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69, see also People v. Collins (1985), 106 Ill. 2d 237, 273, 478 N.E.2d 267.

On all three dates in question the trial court was involved in a jury trial when defendant and counsel appeared ready for trial. On January 6, 1988, the court stated that it could reschedule defendant’s trial for February and defense counsel asked if the court could find an earlier time and was told no. On March 9, 1988, the trial court noted that defendant’s case was ready for trial but then told defendant that the first time he could get a jury trial would be April 4. On May 4, 1988, defendant was told that June 8 was the first date he could get a jury trial and the court stated: “I wish I could get to you earlier Mr. Hawkins, but it’s beginning to get a little crowded on the calendar.” The assistant State’s Attorney present commented that the June 8 date was by agreed order, but we note that the court did not acknowledge that comment nor did defense counsel object to the statement.

We believe these three delays cannot be found to have been occasioned by defendant and conclude therefore that defendant was tried after the 120-day period had passed. As with defendant’s contention in his post-trial conviction, we find defense counsel’s failure to move for a speedy trial dismissal violated defendant’s right to effective assistance of counsel and for that reason defendant’s conviction must be reversed.

Since we are reversing the conviction, we need not address defendant’s contention that prosecutorial errors interfered with the jury’s ability to fairly weigh the credibility of witnesses.

Judgment reversed.

RAKOWSKI, P.J., and EGAN, J., concur.,


author: PRESIDING JUSTICE RAKOWSKI

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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL GORE, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—2969
    Opinion filed April 19, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Daniel Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant Daniel Gore was charged with two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)) and one count of armed violence. Defendant was tried before a jury. The latter charge was nol-prossed at the conclusion of the State’s case. The jury was instructed on self-defense, first degree murder and both forms of second degree murder. The jury returned a verdict of guilty of first degree murder, and defendant was sentenced to a term of imprisonment of 28 years in the Illinois Department of Corrections. Defendant raises two issues on appeal, namely: (1) whether he was denied a fair trial due to the State’s eliciting testimony that defendant often carried a knife and had threatened others with the knife before; and (2) whether the Illinois statutory homicide scheme is unconstitutional as violative of due process and equal protection guarantees and violative of the Illinois Constitution’s separation of powers mandate. We affirm.

The testimony elicited at trial is as follows. Defendant, the victim, Rodney Giles, and all of the occurrence witnesses who testified lived in a rooming house located at 11747 South Michigan Avenue in Chicago. Johnny Macon testified that on December 10, 1987, he, the defendant and Giles were standing at the top of the second-floor landing of a staircase at the rooming house. The men had been drinking whiskey and beer and were preparing to shoot dice. Defendant and Giles began arguing over whether defendant owed Giles a dollar.

Defendant and Giles began to wrestle. In the course of this scuffle, Giles pushed defendant down the flight of stairs. Defendant fell to the bottom of the staircase, which Macon testified was a distance of about 20 stairs. Charles Holmes and Sena Allen lived in a room on the first floor. Both testified that they heard a bumping noise in the hallway. Allen testified that she opened her door and saw defendant getting up off the floor at the bottom of the staircase, and that she saw Giles and Macon standing at the top of the stairs. Allen heard defendant and Giles arguing about the dollar and both men were upset.

Allen further testified that she saw Giles go to his room and get a board. She saw defendant go to his room to get a knife, and she saw defendant place this knife in his belt. Allen informed the victim that defendant had a knife. Defendant, according to Allen, told Giles to come down the stairs, and said that he (defendant) did not have a knife. Giles put the board down and came down the stairs empty-handed.

At this point, according to Sena Allen, Giles walked past defendant and went into the room defendant shared with Leslie Sandrella. Giles asked Sandrella to confirm the fact that defendant owed Giles a dollar. Sandrella refused to do this and Giles left her room. Allen and Holmes were still standing in the hallway. Giles started to walk up the stairs when defendant reached around Giles and stabbed him in the abdomen. As Giles crawled up the stairs, defendant then ran into his room and returned with an iron pipe. Defendant then dropped the knife and ran.

Charles Holmes’ testimony was consistent with Sena Allen’s testimony. Holmes saw defendant pulling the knife out of Giles’ body.

Cynthia Allen, Sena Allen’s daughter, testified that she lived on the second floor with Giles. She heard Giles and defendant arguing, and Giles came into their room and got a board. As the two men argued, Cynthia Allen went down to the first floor. Cynthia Allen also testified that when Giles went down the stairs, he had previously put the board down and did not have a weapon on him. Though she did not see the actual stabbing, when she turned around, she saw defendant holding a knife which was dripping blood.

An ambulance was called and Giles was taken to the hospital, where he died at 6 p.m. Giles had a four- to five-centimeter wound in the lower part of his abdomen. This stab wound, the medical examiner testified, was the cause of Giles’ death.

Leslie Sandrella testified on behalf of the defendant. She had been living with the defendant for two months prior to the incident. Previously that day, Giles had come by Sandrella's room, looking to shoot dice with defendant. When defendant returned, he went to join Giles and Macon at the second-floor landing to gamble. Sandrella testified that she was standing at the bottom of the steps and heard the argument between defendant and Giles. Giles went to his room and returned with a bed slat, and, according to Sandrella, struck defendant with the board, knocking defendant down the stairs. Sandrella testified that she was helping defendant to his feet when Giles came down the stairs with a knife.

Sandrella was standing between Giles and defendant, and Giles began poking at defendant with the knife. After she stepped from in between the two men, Sandrella saw defendant “punch” Giles. She did not see a knife in defendant’s hand. At this point, Giles dropped the knife and defendant fled. Sandrella says that she took the knife to her room, and when she went upstairs, she learned that Giles had been stabbed.

Sandrella further testified that she was the only spectator to the occurrence who was in the hallway. She claimed that when she later informed Holmes about the stabbing, he told her that Giles was his friend and that if she told the police what had happened she would be harmed. Holmes left, taking Giles’ knife with him. Sandrella admitted that she lied to the police about the incident the day of the incident and the next day. On those occasions, she told the police that she was in her room during the incident and did not see it. The reason she lied, she testified, was that she was afraid due to Holmes’ threat. Though she moved out of the building three days after the incident, she never went to the police to tell them the truth.

Willa Jeter also testified for the defendant. She was in her second-floor room when she heard arguing. She went to her door and saw defendant fall down the stairs. She saw Giles pick up a board and threaten defendant with it, but Giles agreed to drop the board. According to Jeter, defendant went to his room, and then Giles went to defendant’s room and knocked on the door. Jeter did not see the stabbing. She did testify that she saw Macon and the Allens in the first-floor hallway. Jeter did not see Sandrella in the hallway, and did not see a knife in Giles’ hand.

In rebuttal, Holmes denied threatening Sandrella. Two assistant State’s Attorneys testified that Sandrella never told them that Giles had a knife, that she picked the knife up, or that Holmes threatened her and took the knife.

During the State’s case, both Holmes and Sena Allen were allowed to testify that they had often seen defendant with the knife before the incident. During cross-examination of Sandrella, she was asked if she had seen defendant with the knife before. During Sena Allen’s testimony, when she was asked if she had ever seen the knife before, she responded “Well, before that, he [defendant] attempted to cut me with it.” Defense counsel objected to this answer, and the jury was instructed to disregard it. During Sandrella’s cross-examination, she was asked if defendant had threatened Sena Allen with the knife. An objection by defense counsel was sustained.-' Sandrella was then asked if defendant had threatened her with the knife. Again, defense counsel’s objection was sustained.

We first address whether defendant was denied a fair trial by the State’s eliciting testimony that defendant often. carried a knife and that defendant had threatened others with the knife on prior occasions. Defendant points out that in opening argument, in the State’s case in chief, during cross-examination -and during closing argument, the State emphasized that defendant often carried a knife — the knife defendant stabbed Giles with.

Specifically, in opening argument, the prosecutor stated that defendant carried a knife “all the time.” Sena Allen was allowed to testify that she had observed the knife before. She described it as a “knife you use in the kitchen. I call it a butcher knife.” Allen said that the knife was about eight inches long, and that she had seen it before because defendant “would usually wear it everyday.” When Charles Holmes was asked if he had previously seen the knife he saw defendant pulling from Giles’ body, he testified that defendant wore it “all the time.” At this point an objection was sustained, although no reason was given for the objection, and the trial judge offered no reason for sustaining the objection. Next, the prosecution was allowed to elicit, without objection, that Holmes had seen the knife on several occasions before. During the cross-examination of Leslie Sandrella, the prosecution asked whether defendant carried the knife with him all the time. Sandrella responded that defendant had some type of knife, but not a butcher knife. Defendant’s objection to this question and/or answer was overruled. Finally, during closing argument, the State again emphasized that defendant carried the knife all of the time.

A pertinent fact that defendant has not mentioned in his brief is that it was stated in defendant’s opening statement that, as Leslie Sandrella stated, the evidence would show that Giles came down the stairs at defendant with the knife.

During Sena Allen’s cross-examination, after she had been asked and she had confirmed that she had closely observed the knife before, the prosecutor asked her when this was. She replied: “Well, before that, he attempted to cut me with it.” Defense counsel immediately objected. The trial court sustained the objection and instructed the jury to disregard the answer. During the cross-examination of Leslie Sandrella, the prosecutor asked Sandrella if defendant had threatened Sena Allen with the knife. Defense counsel’s objection to this question was sustained. Immediately thereafter, the prosecutor asked Sandrella if defendant had ever threatened her (Sandrella) with the knife. Again, a prompt objection was sustained.

With respect to the testimony elicited as to defendant’s having previously carried the knife, defendant asserts that this information was irrelevant, and that this testimony was elicited to show that defendant was the type of man who was ready for trouble at any time. Relevancy is defined, however, as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. (See People v. Free (1983), 94 Ill. 2d 378, 413, 447 N.E.2d 218.) Here, defendant himself asserted in his opening statement that the evidence would show not (as the State had asserted) that defendant went to get his own knife, but that the victim came down the stairs after defendant with the knife in his hand (as Sandrella later in fact testified to). Thus, the evidence that defendant was often in possession of a knife was relevant with respect to two factual issues. First, the evidence made it more probable that defendant was in possession of the knife, as the State’s witnesses asserted, at the time of the stabbing. Second, the evidence made it more probable that defendant retrieved his own knife and used it in slaying Giles, as opposed to the testimony of Sandrella, which led to the inference that Giles attacked defendant with a knife that was not defendant’s. The testimony relating to ability to recognize the knife as well could serve to bolster the witnesses’ credibility on these issues. We feel that the trial court’s refusal to exclude evidence relating to defendant’s previous possession of the knife was not an abuse of the trial court’s discretion.

The State does not dispute that Sena Allen’s response that defendant had tried to cut her with the knife before was properly stricken, and the State concedes that it was error for the prosecutor to ask Sandrella both whether she knew that defendant had threatened Allen with the knife and whether defendant had threatened her with the knife. As to the comment by Allen, it has been observed that “[a]n instruction to disregard evidence ordinarily cures error in its admission.” (People v. Johnson (1973), 11 Ill. App. 3d 745, 749, 297 N.E.2d 683.) Here, defense counsel promptly objected to Allen’s statement, the trial judge promptly sustained the objection, and moreover, at the close of evidence the trial court instructed the jury to disregard all stricken evidence. As such, we feel that the remark by Allen as to defendant’s prior threatening conduct was substantially relieved of its prejudicial effect.

Similarly, each of the questions to Sandrella that defendant claims deprived him of a fair trial was promptly objected to, and the objections were promptly sustained. While the asking of the questions was error, as the State concedes, we conclude that the error was harmless. Errors will be held harmless when they could not reasonably have affected the result or contributed to defendant’s conviction. (See People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.) Here, the corrective action of the trial judge is a factor contributing to the harmlessness of the error. See People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367.

Moreover, we do not feel that the evidence in this case was close. Sandrella’s version of the events that took place up to and including the stabbing was contradicted by every witness, including another defense witness, Willa Jeter. Sandrella said that she alone was in the hallway. All of the occurrence witnesses, including Jeter, refuted this. Sandrella said that none of the other witnesses were in the hallway. All of the other witnesses, including Jeter, refuted this. Sandrella said that Giles came down the stairs after defendant with a knife. All of the other witnesses, including Jeter, refuted this as well. Sandrella’s story that she lied to the police because of Holmes’ threat was not only impeached by Holmes, but was unbelievable in that Sandrella never brought the truth to the authorities’ attention, even though Sandrella moved away from the rooming house and Holmes three days after the occurrence. The proof of defendant’s guilt was overwhelming — another factor which contributes to our holding that the error of inquiring into defendant’s prior threatening conduct with the knife was harmless.

At oral argument, defense counsel stressed that the issue which was close in this case was whether the mitigating factor of provocation existed. To the contrary, as the above discussion illustrates, whether defendant was seriously provoked and acting under a sudden and intense passion was not a close issue. While uncontradicted evidence established that defendant was pushed down a flight of stairs, the evidence also established that after this, defendant went to his room to get his knife, returned to the staircase and coaxed Giles down the stairs. When coaxing Giles down the stairs, defendant hid his knife, denied having a knife and said that he only wanted to talk to him. Then, Giles came down the stairs, passed by defendant and went to Sandrella’s room. It was only as Giles began to climb back up the stairs that defendant stabbed him from behind. Such a scenario far more readily admits of a deliberate killing than action under a sudden and intense passion. Sandrella’s testimony, moreover, provided no illumination on the question of provocation. When taken by itself, her testimony supported only a finding that defendant did not stab Giles, and when considered in conjunction with other testimony, her testimony could support a theory of self-defense. In either event, it offers no support that defendant acted under provocation or in an unreasonable belief of self-defense.

We therefore hold that the errors defendant complains of were either cured by the trial judge’s prompt action or harmless error which do not warrant reversal.

We note, however, that in a significant number of cases, the State on appeal concedes that error has occurred, and raises the harmless error rule as a panacea which precludes reversal despite the acknowledged error. Such a posture on appeal is less persuasive in a case, such as this one, where the error (in this case the questioning of Sandrella as to whether she knew defendant had threatened Sena Allen or whether defendant had threatened Sandrella herself) appears deliberately injected into the trial or is otherwise inexcusable. Were the evidence in this case somewhat closer, or the error further compounded than it was, our resolution of this issue might be different.

We next address the constitutional challenges defendant makes to the Hlinois statutory homicide scheme. While defendant’s brief argues that “first degree murder” is violative of due process, equal protection, and separation of powers guarantees, in reality it is the second degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) that defendant challenges, based on that statute’s shifting the burden of proving mitigating factors to the defendant.

Preliminarily, the relevant statutes in Illinois’ statutory scheme for homicide shall be discussed. The Criminal Code of 1961 was amended in 1987 and second degree murder replaced voluntary manslaughter. (Pub. Act 84 — 1450 §2, eff. July 1, 1987 (1986 Ill. Laws 4221, 4233-34).) As the court explained in People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106:

“Under the old homicide statute, the State had the burden to prove, beyond a reasonable doubt, the elements of murder. [Citation.] The defendant then had the opportunity to present evidence of a factor in mitigation, serious provocation or unreasonable belief, either of which must have been present to reduce an offense of murder to voluntary manslaughter. [Citation.] The State then had the burden to prove, beyond a reasonable doubt, the absence of the factor in mitigation. [Citation.] Under the new Act, the State still bears the burden to prove, beyond a reasonable doubt, the elements of first degree murder. [Citation.] However, the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder. [Citation.] Thus, the new Act not only requires the defendant to come forward with some evidence of a factor in mitigation; it requires the defendant to prove, by a preponderance of the evidence, a factor in mitigation.” (Emphasis in original.)

In Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, the Court held that a New York statute which required a defendant, charged with second degree murder, to prove, by a preponderance of the evidence an affirmative defense of emotional disturbance, in order to reduce the crime to manslaughter, was not violative of the due process clause of the United States Constitution. (U.S. Const., amend. XIV.) The prosecution was required to prove all the elements of the crime charged, and then the burden shifted to the defendant to prove the affirmative defense. Two other Elinois appellate courts, relying on Patterson, have recently held that the Elinois second degree murder statute is not violative of the due process clause. See People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.

Defendant’s argument on this issue is essentially that Patterson is wrong, and that a prior Supreme Court decision, Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, should control. However, Mullaney, which held that a Maine statute was violative of the due process clause because it required the defendant to prove an element of the crime charged (malice), was specifically distinguished in Patterson. (432 U.S at 214-16, 53 L. Ed. 2d at 294-95, 97 S. Ct. at 2329-30.) As the Buckner court observed, section 9 — 2 does not require the defendant to prove any element of the crime of first degree murder, and does not present the problems found in Mullaney, but rather is similar to the statute upheld in Patterson. (Buckner, 203 Ill. App. 3d at 532.) Thus, sections 9 — 1 and 9 — 2 of the Criminal Code are not violative of the due process clause of the United States Constitution.

Defendant also argues that the Illinois homicide scheme violates the equal protection clause of the fourteenth amendment to the United States Constitution. His argument appears to be that the homicide scheme treats murder defendants different than other criminal defendants, in that murder defendants (at least those who can claim that they are guilty of only second degree murder) are discriminated against because they have the burden of proving the mitigating factors. Defendant asserts that the statute affects a fundamental right of his, and thus should be subject to a strict scrutiny analysis.

Defendant makes no claim that he is a member of a “suspect class.” Rather, his argument is that the Constitution- provides for his fundamental interest in “just treatment in the criminal process.” In support of his argument that the statute(s) should be subjected to strict scrutiny, defendant cites People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11. In Kaeding, the court observed:

“When the legislation threatens fundamental constitutional rights or is directed towards a ‘suspect’ group, then — and only then — courts will examine the statute to insure that it is ‘ “tailored” narrowly to serve legitimate objectives’ [citation] in furtherance of compelling government interests. [Citations.]
*** ‘Fundamental interests generally are those that lie at the heart of the relationship between the individual and a republican form of nationally integrated government’ [citation], and are rooted in explicit or implicit constitutional guarantees. [Citation.]” (Kaeding, 98 Ill. 2d at 245-46.)

The Kaeding court, however, also observed that “in keeping with the view of the Supreme Court, [we recognize] a responsibility not to engage in the creation of substantive constitutional rights ‘ “*** in the name of guaranteeing equal protection of the laws.” ’ ” (98 Ill. 2d at 246, quoting In re Roger B. (1981), 84 Ill. 2d 323, 327.) The court further held that the statute challenged in that case (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—6, which permitted a defendant found guilty but mentally ill to be either imprisoned by commitment to the Department of Corrections or placed on probation, periodic imprisonment, or conditional discharge and subject to a course of mental treatment prescribed by the sentencing court), was not violative of the equal protection clause, and that the supervision the defendant sought was not encompassed in “the fundamental right to fair treatment in the criminal process.” Kaeding, 98 Ill. 2d at 246.

Similarly, defendant here claims that he did not receive fair treatment in the criminal process. We do not find the claim that the classification should be subjected to strict scrutiny persuasive. As the State points out, section 9 — 2 of the Criminal Code actually affords criminal defendants charged with murder the opportunity to establish a defense which lessens their punishment that is not provided other criminal defendants. Thus, it is hard to find detrimental discrimination in the scheme. In fact, the Patterson opinion observed:

“ ‘[T]he appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around — a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology.’ ” Patterson, 432 U.S. at 211 n.13, 53 L. Ed. 2d at 293 n.13, 97 S. Ct. at 2327 n.13, quoting Patterson v. New York (1976), 39 N.Y.2d 288, 305-07, 347 N.E.2d 898, 909-10 (Breitel, C.J., concurring).

Defendant has not argued any constitutional provision from which his alleged right to have the State prove his affirmative defense arises, either explicitly or implicitly. Such a right cannot arise from the due process clause requiring the State to prove defendant guilty of all elements of a crime beyond a reasonable doubt because, as indicated, section 9 — 2 does not require defendant to prove any element of the crime of first degree murder. Defendant has not cited, nor has our research found, any case law which holds that a criminal defendant is cloaked in a fundamental right requiring the State to prove an affirmative defense of the nature of those in section 9 — 2. Therefore, we refuse to apply a strict scrutiny analysis to the challenged classification.

As a result, defendant’s equal protection claim must fail. A statute carries a presumption of rationality when undergoing traditional equal protection analysis. (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137, 414 N.E.2d 458.) Defendant has proffered no reason why we should hold the Illinois homicide scheme irrational and has not shown (much less argued) that the statutory scheme does not meet a rational basis test, as is defendant’s burden. (See People v. Pembrock (1976), 62 Ill. 2d 317, 322, 342 N.E.2d 28.) Finally, we note that in the recent case of People v. Clark (1991), 207 Ill. App. 3d 439, appeal denied (1991), 139 Ill. 2d 599, the Fourth District Appellate Court held that section 9 — 2 was subject to a rational basis analysis, and that section 9 — 2 did not violate the equal protection clause. We therefore hold that the statutory scheme is rationally designed to meet a legitimate State purpose, and thus is not violative of the equal protection guarantee.

Defendant’s last constitutional argument is that the homicide scheme violates the separation of powers provision of the Illinois Constitution. (Ill. Const. 1970, art. II, §1.) Defendant’s premise to this argument is that the new scheme, impermissibly, precludes the State from charging a defendant with second degree murder. The impossibility of such a charge, defendant asserts, flows from the fact that defendant must prove the mitigation which reduces a killing from first degree murder to second degree murder. Hence, the legislature has usurped a power of the State’s Attorney, an arm of the executive branch of Illinois government. We disagree.

The State responds that defendant has no standing to assert prosecutors’ rights, that a prosecutor may charge a defendant with second degree murder if he chooses, and that even if a prosecutor could not charge a defendant with second degree murder, the homicide scheme is not violative of the separation of powers provision of the Illinois Constitution. Because of the validity of the State’s second argument, we need not address the others, and defendant’s separation of powers argument, like his due process and equal protection arguments, must fail.

We are not convinced that a prosecutor in Illinois is precluded from charging a defendant with second degree murder. No language in section 9 — 2 indicates that a prosecutor may not charge a defendant with second degree murder, and we do not dispute that the State does so when it feels that the evidence will establish second degree murder. In the recent case of People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782, the Third District Appellate Court held that the State may charge second degree murder where the State alleges that it can prove the elements of first degree murder but concedes the presence of a mitigating factor included in section 9 — 2. The court observed that under these circumstances, the defendant would not bear the burden of establishing the mitigating factors, and the jury could be so instructed in the appropriate case. (Burks, 189 Ill. App. 3d at 785.) We note, moreover, that section 9 — 2(c) only requires a defendant to establish mitigation “[wjhen a defendant is on trial for first degree murder.” (Ill. Rev. Stat. 1987, ch. 38, 9—2(c).) The statute does not address itself to the situation where the prosecutor charges a defendant with second degree murder. Because defendant’s argument of a separation of powers violation is dependant upon this erroneous premise, it fails.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and EGAN, JJ., concur.


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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN COLEMAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0573
    Opinion filed April 19, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Robert Guch, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kathleen F. Howlett, and Sherry L. Biedar, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Melvin Coleman, was charged by indictment with 12 counts of aggravated criminal sexual assault, two counts of criminal sexual assault, one count of attempted murder, one count of aggravated battery, three counts of armed violence, three counts of aggravated kidnapping, two counts of kidnapping, and one count of unlawful restraint. Following a bench trial, defendant was convicted of all charges and was sentenced to a term of 30 years in the Illinois Department of Corrections on 12 counts of aggravated criminal sexual assault and on one count of criminal sexual assault.

On appeal, defendant contends that (1) the trial judge abused his discretion in sentencing him without first conducting a sentencing hearing; (2) he was deprived of the right to a fair trial because defense counsel was not given an opportunity to make or waive closing argument; (3) the trial court erred in convicting and sentencing him on 12 counts of aggravated criminal sexual assault and on one count of criminal sexual assault where the evidence established that he committed only three acts of penetration; and (4) he was deprived of the right to due process where the trial judge considered his presentence investigation report prior to adjudicating the case on the merits.

The record reveals that defendant was arrested on December 28, 1985. A presentence investigation report was ordered on September 18, 1986, and was completed on October 6, 1986. On November 24, 1986, defendant was found unfit to stand trial and was remanded to the custody of Chester Mental Health Center of the Illinois Department of Mental Health and Developmental Disabilities. In February 1988 and again in March 1988, Robert A. Reifman, director of the Psychiatric Institute of the Circuit Court of Cook County, found that with medication, defendant was mentally fit for trial, and Reifman stated that in his opinion defendant was legally sane at the time of the alleged offense. In October 1988, Albert H. Stipes, staff psychiatrist for the Psychiatric Institute of the Circuit Court of Cook County, also found that, with medication, defendant was fit for trial, and Stipes stated that in his opinion defendant was legally sane at the time of the alleged offense. Defendant was tried on all charges on February 15, 1989.

The evidence adduced at trial established that on December 27, 1985, the complainant, then aged 46, was working as a cleaning woman and supervisor in the 100 North La Salle Building in Chicago, Hlinois. At approximately 5:30 p.m. that evening, after cleaning an office on the 23rd floor, complainant stepped out into the hallway and saw defendant standing near the elevators on that floor. Complainant summoned an elevator, but when it arrived, defendant stood in front of her, preventing her from entering it. Defendant then pulled a knife from his pocket and ordered complainant into a nearby restroom. Complainant screamed for help, and a struggle ensued during which complainant grabbed the- hand in which defendant held the knife, but he pulled it back and cut her hand. Complainant then wiped her hand on his light brown jacket. Defendant struck complainant on the head, causing her to fall down, and stabbed her in the back, abdomen, neck, and hands.

Thereafter, defendant forced complainant into the bathroom, locked the door, and while holding the knife, forced her to take off her clothes. Defendant ordered complainant to sit on the toilet and forced his penis into her mouth. He subsequently ordered her to lie facedown on the floor and unsuccessfully attempted to insert his penis into her vagina. He then ordered her to lie on her back, and he had sexual intercourse with her. Defendant threatened to kill complainant if she did not keep quiet. He subsequently got dressed and threatened to kill her if she left the room or called the police.

Defendant left the restroom, and complainant locked the door and remained inside until she heard the elevator arrive. When she walked out into the hallway, defendant yelled at her to go back or he would kill her. She went back into the restroom, locked the door, and waited until she heard the elevator open and close again. She then left the restroom, took the elevator to the lobby, and told a security guard that she had been raped by a black man. The security guard called the police, and when they arrived, complainant gave them a description of her assailant. The officers then took complainant to Henrotin Hospital for examination and treatment. They subsequently took her to the police station.

Defendant was arrested in a tavern at approximately 1 a.m. on the following morning. During the pat-down search incident to defendant’s arrest, Chicago police detective McMurdo recovered from defendant’s jacket pocket a serrated knife with stains on the handle and blade. The detective also recovered a pair of gloves, a beige jacket, and a white shirt with a plaid design. The jacket and shirt both had brownish-red stains on them.

At approximately 2 p.m. on December 28, 1985, complainant viewed a lineup and identified defendant as her assailant. Defendant was advised of his constitutional rights, interviewed by Chicago police sergeant Barnes and Assistant State’s Attorney Levy, and gave a statement. Defendant then signed the written summary of his statement prepared by Levy.

Defendant told Barnes and Levy that at about 6:30 p.m. on December 27, 1985, he was in a building near Wacker Drive and Wabash Avenue looking for an attorney. The attorney was not there, and defendant took a bus to a liquor store on Roosevelt and Wabash. There, he purchased from an unknown male, a coat, shirt, hat, and earmuffs for $5. It was dark, and defendant did not notice that there was blood on the jacket or shirt. He said that when he put the coat on, he found a steak knife in the pocket which he kept. Defendant stated that when the police originally stopped him, he had lied to them and told them he was eating a steak and spilled the juice on his shirt and jacket, and that was how the stains got there. He stated that the story he told the police earlier was a lie and that this statement was the truth.

The parties stipulated that complainant sustained multiple small puncture wounds by a knife on her left hand, on her chest, and on her back. A vaginal smear obtained from the complainant revealed the presence of spermatozoa, and extracts of fluid recovered from the floor of the washroom revealed human blood. Human blood was found on the knife, jacket, and shirt recovered from the defendant. The steak knife recovered from his pocket had a 41/2-inch blade with a serrated edge.

Defendant testified on his own behalf that on December 27, 1985, he was- unemployed, homeless, and receiving disability benefits because he suffered from dizziness and insomnia. During the three years between his arrest and trial, defendant received court-ordered psychiatric treatment because he initially had been found unfit to stand trial. Treating clinical psychologists and psychiatrists at the Chester Mental Health Center determined that defendant suffered from atypical bipolar disorder and antisocial personality disorder.

Defendant testified further that on the evening of December 27, 1985, he went to the building at 100 North La Salle in Chicago. He said that he had business to conduct with an attorney in that building. Although he did not meet with the attorney, defendant stated that he did not leave the building until “something unusual happened.” Defendant admitted that he got into “a lot of trouble” that evening in that building. He testified further that he was looking for a bathroom and was in the hallway when he got himself “into a lot of trouble.” He stated that the complainant was the nice lady who attacked him.

After both sides rested, the trial court immediately entered a finding of guilty on all charges in the indictment. The court did not invite closing argument from either side, and neither counsel requested the opportunity to present a closing argument. The trial transcript indicates that the cause proceeded as follows:

“THE COURT: All right, there will be a finding of guilty on the form and specifications in the indictment.
Come up here.
I don’t know what to do with him.
We all know where, that where he belongs is not out on the street.
I am contemplating the maximum just to get him off the streets and try to get him some treatment.
[DEFENSE COUNSEL]: Your Honor, the only thing I can say in Melvin’s own behalf is in reviewing the psychiatric reports it shows that his life, he has been there approximately 45 times and sent to the hospital.
THE COURT: What I want to know is what if he is taken down and some day, maybe, I don’t know what they can do. But they tell me he is sane.
[DEFENSE COUNSEL]: Judge, he has been found sane by several different psychiatrists.
THE COURT: Mr. Coleman, I am going to sentence you to thirty years on the basis that I just want you to go down for psychiatric treatment. I don’t even think—
THE DEFENDANT: I don’t need it.
THE COURT: I know you don’t. I understand. But this poor lady.
It is going to have to be thirty years in the Illinois Department of Corrections.
* * *
Mr. Coleman, I want the mit to read that you are to go to whatever psychiatric unit.
What do we have down there, Menard?
[DEFENSE COUNSEL]: Menard, Judge.
THE COURT: I want you to go to Menard.
Make the mit to issue that he is to go directly to the Psychiatric Unit as quickly as possible so they can start treating him.
* * *
I have no alternative. I must put you off the street so there is some way that they can treat you.
Thirty years in the Illinois Department of Corrections.”

The trial court denied defendant’s subsequent motion for a new trial.

Defendant initially claims that the trial judge abused his discretion in sentencing him without first conducting a sentencing hearing. We agree.

Section 5 — 4—1 of the Unified Code of Corrections provides that the court shall conduct a hearing to impose sentence and shall consider the evidence received at trial; consider any presentence reports; consider evidence and information offered by the parties in aggravation and mitigation; hear argument as to sentencing alternatives; and afford the defendant the opportunity to make a statement in his own behalf. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—4—1(a).) Section 5—4—1 also provides that when imposing a sentence for a felony, the trial judge shall specify on the record the particular evidence, information, factors in mitigation and aggravation, or other reasons that led to the sentencing determination. Ill. Rev. Stat. 1987, ch. 38, par. 1005—4—1(c).

The record in the instant case reveals that the trial judge did not conduct a sentencing hearing, but imposed sentence on defendant immediately after finding him guilty of the offenses charged in the indictment.

Nothing in the record indicates that the court considered the evidence received at trial or the presentence investigation report prior to sentencing defendant to concurrent terms of 30 years. Although the court did afford defendant the opportunity to make a statement on his own behalf, this opportunity was presented well after sentence had already been imposed. The court heard defense counsel’s statement that psychiatric reports indicated defendant had received prior psychiatric treatment on approximately 45 different occasions but heard no other argument from either party as to possible or appropriate sentences. The court heard no evidence in aggravation or mitigation, and defense counsel was not afforded an opportunity to present any evidence in mitigation.

The trial judge apparently did not consider and requested no information or argument from defense counsel as to alternative sentencing proposals and failed to state the reasons for the sentences imposed.

Immediately after finding defendant guilty and before any statements had been made on defendant’s behalf, the trial judge specifically stated that he was “contemplating the maximum [sentence] just to get [defendant] off the streets and try to get him some treatment.” This statement indicates that the trial judge had predetermined the defendant’s sentences prior to considering any of the factors mandated in the sentencing statute. We believe that the trial court failed to comply with the requirements of the statute and that defendant is entitled to a new sentencing hearing.

We next consider whether defendant was deprived of the right to a fair trial because defense counsel was not given an opportunity to make or waive closing argument.

The record discloses that upon the close of defendant’s case and the State’s decision not to offer any rebuttal testimony, the trial judge began to announce his findings and continued without interruption or objection by either party.

It has been held that the right to closing argument can be waived (Herring v. New York (1975), 422 U.S. 853, 860, 45 L. Ed. 2d 593, 599, 95 S. Ct. 2550, 2554), and where the defendant has made no attempt to seek closing argument, it cannot be said that he was denied the opportunity to present a closing argument (People v. Moczarney (1978), 65 Ill. App. 3d 410, 417, 382 N.E.2d 544, 549). This is true especially where, as here, the evidence against defendant was overwhelming and it could not be said that a closing argument was necessary because the State’s case was weak. See Moczarney, 65 Ill. App. 3d at 417, 382 N.E.2d at 549.

Consequently, we hold that defendant was not deprived of the right to present a closing argument where he never requested an opportunity to make such an argument and failed to object when the trial judge began to announce his findings.

We next address defendant’s claim that the record does not support the convictions and sentences imposed. Defendant argues and the State concedes that the trial court erred in convicting and sentencing him on 12 counts of aggravated criminal sexual assault and on one count of criminal sexual assault where the evidence established that he committed only three acts of penetration.

Criminal sexual assault is a lesser included offense of aggravated criminal sexual assault. Because the lesser included offense merges into the greater offense, defendant’s conviction and sentence for criminal sexual assault are vacated. People v. Hines (1988), 165 Ill. App. 3d 289, 301, 518 N.E.2d 1362, 1369.

The State also agrees with defendant’s contention that he should not have been found guilty of 12 counts of aggravated criminal sexual assault where the evidence established that he committed only three acts of penetration. The offense of criminal sexual assault is committed where an accused commits an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a).) Aggravated criminal sexual assault is committed where an accused commits criminal sexual assault and there existed during the commission of the offense an aggravating circumstance, including the use of a deadly weapon; the infliction of bodily harm; the threat or endangerment to the life of the victim; and the commission of the offense during the course of the commission or attempted commission of any other felony. Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(1), (a)(2), (a)(3), (a)(4).

The evidence established that defendant committed three separate and distinct acts of sexual penetration upon the complainant by the use of force and while there existed aggravating factors. Consequently, defendant was properly convicted of and sentenced for three counts of aggravated criminal sexual assault. (People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802; People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The remaining nine convictions and sentences for aggravated criminal sexual assault are vacated.

The record reflects that the trial court also found defendant guilty of attempted murder and aggravated kidnapping but failed to impose sentences for these crimes. The State urges this court to remand the cause for imposition of sentences on these offenses. We hold that defendant’s conviction for attempted murder, which was charged in the indictment as an aggravating factor to the crime of criminal sexual assault, is merged with one of the convictions of aggravated criminal sexual assault. The indictment did not, however, charge aggravated kidnapping as an aggravating factor to the crime of criminal sexual assault. Consequently, we remand the cause for imposition of a sentence on this offense. See People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540; People v. Stanley (1986), 146 Ill. App. 3d 912, 497 N.E.2d 503.

We have already determined that defendant is entitled to a new sentencing hearing. Thus, sentences for defendant’s conviction of aggravated kidnapping and for his three convictions of aggravated criminal sexual assault will be imposed after the court has conducted this hearing in accordance with the mandates of the sentencing statute.

Finally, we consider defendant’s assertion that he was deprived of the right to due process where the trial judge considered his presentence investigation report prior to adjudicating the case on the merits.

We find no evidence in the record establishing that the trial court considered the presentence investigation report prior to deciding the case on the merits after hearing all of the evidence presented by both parties.

In a bench trial it is presumed that the trial judge has considered only competent evidence in reaching a decision. (People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.) The trial court did not refer to the presentence investigation report during trial or when he found defendant guilty, and defendant has pointed to no evidence in the record which would rebut the presumption that the court considered only competent evidence. Consequently, we do not believe defendant was deprived of the right to due process on this basis.

For the foregoing reasons, defendant’s conviction and sentence for criminal sexual assault is vacated, and 9 of defendant’s 12 convictions and sentences for aggravated criminal sexual assault are vacated. The remaining three convictions for aggravated criminal sexual assault are affirmed. The cause is remanded for a new sentencing hearing and for imposition of sentences on defendant’s convictions for aggravated criminal sexual assault and for aggravated kidnapping.

Affirmed in part; reversed in part and remanded.

RAKOWSKI, P.J., and McNAMARA, J., concur..