author: JUSTICE McLAREN

text:
    DOUG JOHNSON, Plaintiff and Counterdefendant-Appellee, v. TIM BAUMGARDT et al., Defendants and Counterplaintiffs-Appellants.
    Second District
    No. 2 — 90—1367
    Opinion filed July 25,1991.

      Gregory E. Barrett, of Schlueter, Ecklund, Olson, Barrett & Moore, of Rockford, for appellants.
    Robert A. Calgaro, of Conde, Stoner & Killoren, of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Tim and Roy Baumgardt, appeal from an order of the circuit court of Winnebago County which granted the motion for summary judgment of plaintiff, Doug Johnson. The sole issue raised by defendants on appeal is whether the trial court erred in determining that it had no authority to compel the parties to return to arbitration. We reverse and remand.

On March 14, 1990, plaintiff filed a complaint seeking the entry of judgment on an arbitration award. The complaint alleged that the parties entered into an agreement which was dated March 22, 1989. The agreement was attached to the complaint as exhibit A. It was three pages long and was prepared by Gregory Barrett, defendants’ attorney. The agreement provided that defendants agreed to purchase “all of [plaintiff’s] right, title and interest in and to ROCKFORD CARBIDE DIE AND TOOL, LTD. consisting of 50 shares of stock for the sum of $85,000.00.” The contract further provided that defendants would pay the sum of $23,323 at closing and would pay the remaining balance of $61,677 in 12 equal monthly installments. In return, plaintiff agreed to complete and sign “such minutes and other documents” necessary to bring the corporate records and minute book current and to execute the documents and instruments necessary to resign from the board of directors and as an officer of the corporation. Plaintiff also warranted that the shares he was selling to defendants had not been pledged, encumbered, sold or otherwise transferred as of the date of closing and further agreed to cooperate with defendants in the execution of all transfers of shares of stock, corporate minutes and resolutions.

The agreement stated that it set forth the entire understanding of the parties and included an arbitration clause which provided:

“In the event a dispute arises between the parties regarding the interpretation of this Agreement, or any other matter related to the purchase herein or its terms, it shall be resolved by arbitration. If either party determines a dispute should be resolved by arbitration, he shall give notice by delivery or by certified mail to the other party of the nature of the dispute and the name and address of an arbitrator he has chosen. The other party shall, within 14 days thereafter, choose an arbitrator and give notice thereof to the first party and both arbitrators. The two arbitrators shall select a third arbitrator and the written agreement of any two arbitrators shall be binding on both parties. The Circuit Court of Winnebago County, Illinois, shall enforce the decision of the arbitrators on all parties without review of the facts or the means used by the arbitrators for making their decision. The costs and expenses incurred by the arbitrators shall be assessed between the parties as determined by the arbitrators.”

Plaintiff’s complaint further alleged that a dispute arose between the parties concerning whether defendants were obligated to pay certain sums to plaintiff pursuant to the contract. An arbitration hearing was held February 5, 1990, and the arbitrators entered an award finding that defendants owed plaintiff $56,537.25. A copy of the arbitration award was also attached to the complaint. The award provided, in pertinent part:

“2. The Arbitrators, by majority vote with Arbitrator Reese dissenting, find that the Defendants, TIM BAUMGARDT and ROY BAUMGARDT, are indebted to the Plaintiff, DOUG JOHNSON, on the Agreement, marked as Johnson’s Exhibit No. 1 in the sum of $56,537.25.
3. That Attorney Calgaro on behalf of the Plaintiff, has made a Motion to Exclude from evidence any of the matters and defenses as raised in the letter dated January 31, 1990, addressed to Mr. Calgaro from Mr. Barrett. A copy of said letter is attached hereto and incorporated herein by this reference.
4. The Arbitrators with Arbitrator Reese dissenting hereby grant the Motion of Attorney Calgaro and in so doing, exclude from evidence any testimony pertaining to the issues as are set forth in the letter marked as Johnson’s Exhibit No. 5.
5. It is to be clearly understood that the defenses and rights as raised on Exhibit No. 5 whether by individually named Defendant or the Corporation, Rockford Carbide Die & Tool Limited, are hereby reserved and the Defendants are entitled to raise those defenses and/or allegations at a later date in a separate proceeding if they so elect.”

The seven-page letter attached to the arbitration award was signed by Gregory Barrett. The letter stated that, almost immediately after the sale of plaintiff’s interest in the business, irregularities began to surface. These “irregularities” included: missing inventory; numerous questionable checks including checks with forged signatures, some of which were cashed by plaintiff or written to a relative of plaintiff; misuse of company funds; and work which was performed by the company but for which no payment was received by the company. The letter concluded that there was “a total of $38,740.87 of discrepancies with regard to this business.” The letter further stated that defendants were willing to pay plaintiff the balance due under the terms of the contract, less that amount.

On April 16, 1990, defendants filed their answer to the complaint and a counterclaim to compel arbitration. Defendants admitted the allegations of plaintiff’s complaint, but further alleged:

“[T]hat the award of the arbitrators is neither valid nor enforceable for the reason that the aribtrators [sic], with one arbitrator dissenting, refused to hear and decide the entire controversy between the parties, finding that the claims, defenses and set-offs to be raised by the Defendants were not arbitrable under the provisions of the agreement between the parties. The refusal to hear and decide the controversy between the parties renders the award of the arbitrators unenforceable.”

Defendants prayed that the court deny plaintiff relief and “order the parties to arbitrate the controversy between them as set forth in the arbitration award and attachment thereto.” In their counterclaim, defendants asked that the court enter an order compelling arbitration of those issues.

Plaintiff filed an answer to defendants’ counterclaim and later filed a motion for summary judgment, alleging that there were no issues of material fact. Defendants then filed their motion for judgment on the pleadings and/or summary judgment. They alleged that the issue before the court raised by the complaint and counterclaim was solely one of law: whether the matters sought to be raised by defendants as set forth in the letter attached to the arbitration award were arbitrable under the terms of the agreement. Defendants contended that, under the terms of the agreement, plaintiff sold his interest in the corporation of which he was the president and chief operating officer for a price which was agreed upon, taking into account the assets and financial condition of the corporation. Defendants further argued that they sought to raise matters at the arbitration hearing which, if known at the time they negotiated the purchase of the shares of stock, “would have affected the value of the corporate assets and financial condition of the corporation as well as the value of the shares they were purchasing.”

A hearing was held regarding the parties’ cross-motions for summary judgment on August 31, 1990. The trial judge noted that he disagreed with the decision of the arbitrators to exclude evidence sought to be introduced by defendants and to “reserve” those defenses. He stated, “they can’t piecemeal it and they can’t say we will give you an award but we are not going to consider this, this is set for some future date, that would clog up the docket; they have to treat it as a whole down there.” Nevertheless, the court granted plaintiff’s motion for summary judgment because the agreement provided for binding arbitration. Judgment was therefore entered in favor of plaintiff in the amount of $56,537.25, plus interest from the date of the arbitration award and costs of suit.

Defendants filed a motion to reconsider, arguing that, once the court determined that the parties should have arbitrated an issue, “the court has the duty under the law to enter an order compelling the parties to return to the arbitration hearing so that the matters sought to be raised under the arbitration clause can be heard as a part of the arbitration procedure.” A hearing was held regarding the motion, and plaintiff argued that arbitration could not be compelled because plaintiff did not refuse to submit to arbitration. Plaintiff also contended that there was no basis to overturn the arbitration award based on the relevant statute. The trial court agreed, noting that it was not an “appellate court for the arbitrators,” and denied defendants’ motion. This timely appeal followed.

Defendants argue on appeal that the trial court correctly found that the issues they sought to raise at the arbitration hearing were arbitrable but erred in determining that it did not have the authority to compel arbitration on those issues. In other words, the issue is whether the trial court erred in entering judgment in favor of plaintiff based on an arbitration award where the arbitrators excluded evidence related to defenses to plaintiff’s claim at the arbitration hearing. We conclude that the trial court improperly entered judgment in favor of plaintiff under these circumstances.

The purpose of arbitration is to avoid the formalities, delay and expenses of litigation in court. (Hough v. Osswald (1990), 198 Ill. App. 3d 1056, 1057.) Arbitration as a means of dispute resolution is favored and is regarded by courts as an effective and cost-efficient method of resolving disputes. (United Cable Television Corp. v. Northwest Illinois Cable Corp. (1989), 128 Ill. 2d 301, 306.) For this reason, wherever possible, arbitration awards should be construed so as to uphold their validity. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 386.) “[I]t is well-established that judicial review of an arbitrator’s award is intended to be more limited than appellate review of a trial court’s decision.” Rauh, 143 Ill. 2d at 394; Hough, 198 Ill. App. 3d at 1057-58.

Our supreme court recently stated:

“ ‘Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error either in law or fact.’ ” (Rauh, 143 Ill. 2d at 394-95, quoting Burchell v. Marsh (1855), 58 U.S. (17 How.) 344, 349, 15 L. Ed. 96, 99.)

In light of this policy, an arbitrator’s finding should not be disturbed absent a statutory ground for vacating or modifying the award. (See Rauh, 143 Ill. 2d at 395.) Also, even gross errors of judgment in law or a gross mistake of fact are not grounds for vacating an award unless the mistakes or errors are apparent upon the face of the award. Rauh, 143 Ill. 2d at 393.

In this case, however, we conclude that the arbitrators’ errors are apparent upon the face of the award and that there is a statutory ground for vacating the award.

First of all, we agree with plaintiff that the trial court correctly determined that it lacked authority to “compel” arbitration. Section 2(a) of the Uniform Arbitration Act (Act) provides:

“On application of a party showing an [arbitration] agreement ***, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” Ill. Rev. Stat. 1989, ch. 10, par. 102(a).

Under the Act, then, a trial court is authorized to determine arbitrability if one of the parties denies that it has agreed to arbitrate. (International Association of Machinists & Aerospace Work ers, District Lodge No. 140 v. Cheshire/A Xerox Co. (1984), 125 Ill. App. 3d 350, 353; Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App. 3d 985, 988.) That is not the situation here as the parties did submit the dispute to arbitration. Therefore, arbitration could not be “compelled” under the statute as the parties both agreed to arbitration.

However, at the arbitration hearing, plaintiff made a motion to exclude from evidence any of the matters and defenses raised in the January 31, 1990, letter. This evidence was excluded by the arbitrators. Section 12(a)(4) of the Act provides:

“Upon application of a party, the court shall vacate an award where:
* * *
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4).)

Section 5 of the Act states, in pertinent part, that the “parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.” Ill. Rev. Stat. 1989, ch. 10, par. 105(b).

Section 11 of the Act provides that “[u]pon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 12 and 13.” (Ill. Rev. Stat. 1989, ch. 10, par. 111.) As relevant here, section 12 of the Act also provides that an “application made under this Section shall be made within 90 days after delivery of a copy of the award to the applicant” (Ill. Rev. Stat. 1989, ch. 10, par. 112(b)), and:

“[I]f the award is vacated on grounds set forth in clauses (3) and (4) of subsection (a) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with Section 3.” Ill. Rev. Stat. 1989, ch. 10, par. 112(c).

Therefore, defendants may properly challenge the arbitration award through a defense to a complaint to confirm the arbitration award (see Ill. Rev. Stat. 1989, ch. 10, par. Ill), so long as the challenge was raised within the 90-day limitation period provided by section 12(b) (Ill. Rev. Stat. 1989, ch. 10, par. 112(b)). (See Best Coin- Op., Inc. v. Clementi (1983) 120 Ill. App. 3d 892, 898.) In this cause, defendants filed their answer to plaintiffs complaint on April 16, 1990, less than 90 days after the February 5, 1990, arbitration award. The answer alleged the award was neither valid nor enforceable because the arbitrators “refused to hear and decide the entire controversy between the parties, finding that the claims, defenses and set-offs to be raised by the Defendants were not arbitrable under the provisions of the agreement between the parties.” Defendants asked the court to order the parties to arbitrate the controversy between them.

Thus, while defendants could not properly seek an order “compelling” arbitration, they did, in their answer, essentially request that the arbitration award be vacated based on the refusal of the arbitrators to hear material evidence and that the controversy be returned to the arbitrators for a rehearing. Their request for this relief was timely and could be granted under section 12 of the Act.

Therefore, the issue is whether the arbitration award should have been vacated because the arbitrators refused to hear evidence material to the controversy. It is apparent from the arbitration award that two of the arbitrators determined that the matters defendants sought to raise in an effort to reduce the amount owed to plaintiff were not subject to arbitration under the terms of the agreement. They determined that these issues were “reserved” and should be raised by defendants at a later date in a separate proceeding.

As the dispute was submitted to arbitration, it was up to the arbitrators to determine the arbitrability of the issues presented. (See Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 447-50.) The arbitrators’ determination, however, is subject to judicial review under section 12 of the Act. See Donaldson, 124 Ill. 2d at 450-51; TDE Ltd. v. Israel (1989), 185 Ill. App. 3d 1059, 1063.

The agreement of the parties governs which issues are subject to arbitration, and the parties are bound to arbitrate only those issues which the clear language of the agreement, unextended by construction or implication, shows they have agreed to arbitrate. (Rauh, 143 Ill. 2d at 387; see also Konewko v. Kidder, Peabody & Co. (1988), 173 Ill. App. 3d 939, 945.) Arbitration clauses, however, that provide that all claims “arising out of” or “relating to” an agreement are subject to arbitration have been properly categorized as “generic” arbitration clauses. (A.E. Staley Manufacturing Co. v. Robertson (1990), 200 Ill. App. 3d 725, 729; J&K Cement Construc tion, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 670-71; see also Donaldson, 124 Ill. 2d at 444.) A dispute is within the scope of a “generic” arbitration clause if it arises out of the subject matter of the contract. A.E. Staley, 200 Ill. App. 3d at 730.

Once a contract containing a valid arbitration clause has been executed, the parties to the agreement are irrevocably committed to arbitrate all disputes arising under the contract. (International Association of Firefighters Local No. 23 v. City of East St. Louis (1990), 206 Ill. App. 3d 580, 585; TDE, 185 Ill. App. 3d at 1063.) When a dispute under such an agreement is submitted to arbitration, the arbitrator is empowered to make an award that will fully settle the dispute, and it is presumed that the parties intended that all matters in dispute be decided. Hollister Inc. v. Abbott Laboratories (1988), 170 Ill. App. 3d 1051, 1060-61; Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046,1051.

In this cause, the arbitration clause stated: “In the event a dispute arises between the parties regarding the interpretation of this Agreement, or any other matter related to the purchase herein or its terms, it shall be resolved by arbitration.” (Emphasis added.) The “related to” language indicates that this was a generic arbitration clause. A dispute allegedly arose when defendants stopped making the monthly payments due under the terms of the contract because of the “irregularities” detailed in the January 31, 1990, letter drafted by their attorney. These “irregularities” sought to be raised by defendants “related to” the purchase and arose out of the subject matter of the contract. In fact, based on this record, that was the only dispute between the parties.

We recognize that the contract itself did not specifically enumerate the issues defendants sought to raise. It is therefore understandable that two of the arbitrators determined that these issues were not subject to arbitration under the terms of the contract. However, what happened was the arbitrators disregarded the evidence relating to the only dispute between the parties. As stated previously, the purpose of arbitration is to avoid the formalities, delay and expenses of litigation in court. The arbitrators refused to hear defendants’ evidence and “reserved” those issues, stating that defendants could raise them at a later date in a separate proceeding, thereby requiring defendants to file a lawsuit to resolve the issues. In this cause, therefore, the arbitrators did not make an award which fully settled the dispute. This was contrary to the agreement of the parties that any dispute “related to” the purchase would be resolved by arbitration and defeated the purpose of arbitration. The trial court, therefore, correctly noted that the arbitrators could not “piecemeal” the dispute and could not say that they would not consider part of the dispute.

However, the trial court determined that it had no authority to vacate the arbitration award because the parties agreed to “binding” arbitration. We acknowledge that the agreement states that the court “shall enforce the decision of the arbitrators on all parties •without review of the facts or the means used by the arbitrators for making their decision.” However, the Act must be deemed part of a contract containing an arbitration clause. (Kilianek v. Kim (1989), 192 Ill. App. 3d 139, 142.) The Act sets forth the grounds upon which courts can vacate an arbitration award. (Kilianek, 192 Ill. App. 3d at 142.) Under section 12(a)(4) of the Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(4)), the trial court did have the authority to vacate the award, based on the arbitrators’ refusal to hear evidence material to the controversy. Unlike the situation in Rauh, the record is clear that the arbitrators did exclude material evidence sought to be offered by defendants. (Cf. Rauh, 143 Ill. 2d at 389.) The trial court also had the authority to order a rehearing before the arbitrators. (Ill. Rev. Stat. 1989, ch. 10, par. 112(c).) In their answer to plaintiff’s complaint, defendants sought this relief. While defendants on appeal have used the wrong terminology in arguing that the trial court erred in failing to “compel” arbitration, they are essentially seeking a rehearing before the arbitrators.

In conclusion we reverse the judgment of the trial court, and we remand the cause to the trial court with directions that the court enter an order vacating the arbitration award and ordering a rehearing before the arbitrators consistent with this opinion.

Reversed and remanded with directions.

INGLIS and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL DICKERSON, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0798
    Opinion filed July 11,1991.

      Daniel D. Yuhas and John Anthony Palombi, of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On January 9, 1990, the defendant entered guilty pleas pursuant to a negotiated plea agreement. He pleaded guilty to and was convicted of attempt (first-degree murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1(a)), home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11), and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12— 4(a)). The Sangamon County circuit court imposed the sentences proposed by the plea agreement: 12-year sentences for both attempt and home invasion, and a 3-year sentence for aggravated battery to run concurrent to the two 12-year sentences. Defendant later sought a sentence reduction. The trial court denied his request. On appeal, defendant asserts he was denied equal protection of the law. We disagree and affirm.

On January 20, 1989, the defendant filed a pro se motion for reduction of the sentences imposed for attempt and home invasion. The affidavit accompanying the petition stated:

“1. That Petitioner is not now nor has he ever been a member of a street gang, criminal organization, or on-going criminal enterprise.
2. That certain of the evidences [sic] used and certain of the witnesses utilized were of a questionable nature.
3. That the Petitioner suffered under the Insufficiency of Counsel.
4. That there exists [sic] other extenuating circumstances that this Honorable Court is doubtlessly aware of and which should be taken into account when considering the attached Motion for Reduction of Sentence.”

The court appointed counsel to represent the defendant. At a hearing on a motion to continue, held March 21, 1990, counsel indicated he had read defendant’s motion. “[T]he question of incompetency of counsel would only in my opinion go to his conviction and would go to his possible setting aside of a plea, but he has not requested that ***.” Counsel then stated the grounds for reduction of the sentence listed in the petition were not appropriate for sentence reduction. At the hearing on the motion, held November 16, 1990, counsel presented no evidence and stated the points defendant raised in his petition were irrelevant to the proceedings. Instead, counsel sought reduction of the sentences based on defendant’s expressed willingness to cooperate with the State and testify at a murder trial tentatively scheduled for February or March 1991.

The State’s Attorney told the court defendant had not been promised favorable recommendations regarding sentence reduction in exchange for his testimony at the murder trial. After reviewing the admonishments given by the court when the plea was entered and the sentences imposed, the trial court denied defendant’s motion. “[T]he Defendant knowingly and voluntarily waived his rights and entered the pleas involved in these two cases and *** the sentence imposed was a negotiated plea and accepted by the Defendant at the time of the plea.”

On appeal, the defendant contends he was denied equal protection of the law. Defendant supports his contention by comparing his plight with someone who seeks to withdraw a plea of guilty. Defendant challenged only his sentence, so counsel was not required to certify to the trial court he reviewed the trial court file, consulted with his client, and made any necessary amendment to defendant’s pro se motion. Had the defendant sought to withdraw his plea, counsel would have been required to certify he performed the listed tasks. The supreme court rule at issue states, in pertinent part: The supreme court held, in People v. Wallace (1991), 143 Ill. 2d 59, 60, 570 N.E.2d 334, 335, “the filing of a motion to reconsider a sentence is a prerequisite to an appeal from that sentence.” The defendant need not petition to withdraw the guilty plea itself when challenging only the sentence. Wallace, 143 Ill. 2d at 61, 570 N.E.2d at 335.

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. *** [I]f the defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (134 Ill. 2d R. 604(d).)

According to the defendant’s argument, if a defendant asserts ineffective assistance of counsel at the sentencing hearing, the only means of guaranteeing an attorney will review this claim is to move to withdraw the guilty plea. Defendant argues:

“Without the requirement of a certificate being filed by the attorney, there is no assurance that the attorney reviewed the record or even discussed the matter with his client. Because defendants who plead guilty and wish only to challenge their sentence are being denied a benefit given to others who plead guilty, Supreme Court Rule 604(d) violates the equal protection clause of the United States Constitution.”

The State argues the defendant has waived the equal protection argument. “The defendant made no objection to the procedures followed or to the actions taken by his attorney on the motion to reduce sentence. By failing to object to the alleged constitutional violation in the trial court, the defendant is barred from raising this claim for the first time on appeal.” Although the issue may be waived, we elect to address it. On the merits, the State argues defendant failed to meet his burden of proving a denial of equal protection. People v. Bales (1985), 108 Ill. 2d 182, 192-93, 483 N.E.2d 517, 522.

The equal protection clause requires like treatment of persons similarly situated. (City of Cleburne v. Cleburne Living Center, Inc. (1985), 473 U.S. 432, 439, 87 L. Ed. 2d 313, 320, 105 S. Ct. 3249, 3254.) States must govern impartially, and “may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.” (Lehr v. Robertson (1983), 463 U.S. 248, 265, 77 L. Ed. 2d 614, 629, 103 S. Ct. 2985, 2995.) “When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction it makes rationally furthers a legitimate state purpose.” Zobel v. Williams (1982), 457 U.S. 55, 60, 72 L. Ed. 2d 672, 677-78, 102 S. Ct. 2309, 2312-13.

Defendant failed to meet his burden of proving a denial of equal protection. A defendant withdrawing a guilty plea and a defendant seeking a sentence reduction are not similarly situated. Supreme Court Rule 604(d) requires the court to appoint counsel for a defendant who seeks to withdraw a guilty plea, if indigent. A transcript must be provided and a hearing held. (134 Ill. 2d R. 604(d).) The rule is silent regarding challenges to sentences following either a guilty plea or a trial.

Supreme Court Rule 605(bX4) states if the motion to withdraw the guilty plea is granted, “any charges that may have been dismissed as a [part] of a plea agreement will be reinstated and will also be set for trial.” (134 Ill. 2d R. 605(bX4).) The potential consequences of withdrawing a guilty plea are far greater than in challenging a sentence. A defendant who successfully seeks to withdraw a guilty plea may sacrifice the sentencing leniency of the trial court. “A trial court is allowed discretionary leniency in the sentencing of a defendant who assumes responsibility for his conduct by pleading guilty.” (People v. Sanchez (1989), 189 Ill. App. 3d 1011, 1018, 546 N.E.2d 268, 273.) For these reasons, the State could rationally choose to treat such defendants differently by requiring a certificate of compliance by the attorney representing the defendant at a hearing on the motion to withdraw the plea.

In summary, the defendant cannot show a violation of the equal protection clause because he was not similarly situated with defendants seeking to withdraw guilty pleas pursuant to Supreme Court Rule 604(d). Further, lack of a certificate of compliance did not prejudice or harm the defendant in this case as the record indicates counsel both reviewed the transcript of the proceeding wherein defendant entered his guilty plea and discussed the case with the defendant.

The judgment of the Sangamon County circuit court is affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: PER CURIAM:

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al., Plaintiffs-Appellants, v. DAWN CLARK NETSCH, Comptroller of the State of Illinois, Defendant-Appellee (Illinois Federation of Teachers, AFT, AFL-CIO, Intervenor-Appellant).
    Fourth District
    No. 4 — 91—0499
    Opinion filed July 12,1991.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellants American Federation of State, County & Municipal Employees, Karen Gall, Patty Schoeneberg and Illinois Federation of Teachers.
    Michael O’Hara, of Cavanagh & O’Hara, of Springfield, for appellants General Teamsters Professional Technical, Local 916, Diane M. Henricks and James Stout.
    John M. Hosteny, Lodge Counsel, of Springfield, for appellant Troopers Lodge No. 41.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for appellee.
   PER CURIAM:

Plaintiffs appeal from an order of the trial court dismissing their suit in mandamus against the Comptroller. By that suit, plaintiffs sought to compel the Comptroller to issue paychecks to all State workers due to be paid on July 15, 1991. The trial court dismissed the complaint on the basis that there was no authority for such an order in the absence of an appropriation to pay the salaries of those State workers. We affirm.

Only the General Assembly is authorized by our constitution to make appropriations for all State expenditures of public funds. (Ill. Const. 1970, art. VIII, §2(b).) An appropriation involves “the setting apart from public revenue a certain sum of money for a specific object.” (Illinois Municipal Retirement Fund v. City of Barry (1977), 52 Ill. App. 3d 644, 646, 367 N.E.2d 1048, 1049.) No money belonging to or left for the use of the State shall be expended or applied except in consequence of an appropriation made by law and upon the warrant of the State Comptroller. (Ill. Rev. Stat. 1989, ch. 127, par. 171(a).) The Comptroller is authorized, and indeed required, to refuse to draw a warrant if she determines that no appropriation or expenditure authority other than by appropriation is available to incur the obligation. Ill. Rev. Stat. 1989, ch. 15, par. 209(c).

The parties agree that the legislature has not passed any appropriation bill with respect to salaries of State employees. An appropriation bill is necessary under these circumstances, as it is in any other instance where State funds are to be disbursed (see Quinn v. Donnewald (1985), 107 Ill. 2d 179, 191, 483 N.E.2d 216, 222), and any attempt by the Comptroller to issue the funds in the absence of an appropriation bill signed into law by the Governor would create obvious problems under the separation-of-powers doctrine. See Board of Trustees of Community College District No. 508 v. Burris (1987), 118 Ill. 2d 465, 515 N.E.2d 1244.

Plaintiffs rely on section 13 of the State Comptroller Act (Act) (Il. Rev. Stat. 1989, ch. 15, par. 213) for the proposition that the Comptroller is required to pay State employees’ salaries. That section describes generally the administrative process by which employees are paid and the schedule for such payments. While this section describes the means by which the Comptroller is required to disburse salaries, it is not authority for the expenditure of any fund or funds which have not been appropriated for that purpose. Section 13 of the Act is not an expenditure authority. Plaintiffs’ argument concerning the difference in the 1870 and 1970 constitutions does not require a different result. Compare Ill. Const. 1870, art. IV, §17, with Ill. Const. 1970, art. VIII, §l(b).

Plaintiffs point to article VIII, section 1(b) of the constitution, which provides in part that the State “shall *** make payments from public funds only as authorized by law.” (Ill. Const. 1970, art. VIII, §l(b).) They tie section 13 of the Act to this constitutional language, i.e., arguing that section 13 provides the authorization by law referred to in article VIII, section 1(b), thereby mandating payment of the salaries. This court does not read section 13 this broadly.

While we are aware that there are certain circumstances under which some State funds may be expended without a corresponding legislative appropriation (see People ex rel. Kirk v. Lind-berg (1974), 59 Ill. 2d 38, 320 N.E.2d 17 (and cases cited therein)), none of those exceptions apply to the instant case. (See also Ill. Rev. Stat. 1989, ch. 127, par. 167.02.) Stated simply, when State money has once been received by the State Treasurer, the constitution prevents its withdrawal except in pursuance of an appropriation made by law. (Green v. Black (1933), 352 Ill. 623, 626, 186 N.E. 462, 463; People ex rel. Board of Trustees of University of Illinois v. Barrett (1943), 382 Ill. 321, 348-49, 46 N.E.2d 951, 965; Adams v. Nudelman (1940), 375 Ill. 217, 30 N.E.2d 742.) An appropriation must become effective in order to prevent government operations from being brought to a complete stop. People ex rel. Kirk, 59 Ill. 2d at 42-43, 320 N.E.2d at 19.

Since the legislature has not passed an appropriation which the Governor has signed into law, the Comptroller is prohibited from issuing paychecks to State workers at this time.

We are in sympathy with the broad spectrum of State workers, including those of the courts and even counsel who argued before us on behalf of the State, who are being subjected to financial hardship and frustration because of the continuing governmental impasse. This sympathy is tempered by the limitations imposed upon us by our constitution. We recognize that the constitution places specific and general obligations on the State for the benefit of the people of the State. While we now hold that the issue of general breakdown of government is not before us, we are not saying that the courts are barred from intervening in the event that the legislative or executive branches fail to perform their constitutional functions.

For the foregoing reason, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

LUND, P.J., and GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
    THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Petitioners, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4 — 90—0627
    Opinion filed July 16,1991.

      Roland W. Burris, Attorney General, of Springfield (Lydia S. Mills and Nancy S. Short, Special Assistant Attorneys General, of counsel), for petitioners.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
   JUSTICE GREEN

delivered the opinion of the court:

On October 12, 1989, complainant Illinois Nurses Association (INA) filed an unfair labor practice charge with the Illinois State Labor Relations Board (Board) against respondents Illinois Department of Central Management Services (CMS) and Illinois Department of Corrections (DOC). On November 22, 1989, the Board issued a complaint against respondents which alleged, in most significant part, that CMS and DOC failed to bargain in good faith in violation of section 10(a)(4) of the Illinois Public Labor Relations Act (Act) (111. Rev. Stat. 1989, ch. 48, par. 1610(a)(4)), by refusing to execute a “supplemental agreement” pertaining to a grievance concerning subcontracting of nursing services by DOC at its facilities. On August 14, 1990, after an evidentiary hearing and receiving recommendations of a hearing officer, the Board entered a decision and order finding respondents guilty of unfair labor practices in violation of section 10(a)(4) of the Act and, derived from that offense, section 10(a)(1) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(1)). Illinois Department of Central Management Services, Department of Corrections, 6 Pub. Employee Rep. (111.) par. 2038, No. S — CA—90—48 (Illinois State Labor Relations Board, Aug. 14, 1990).

Respondents took judicial review to this court (Ill. Rev. Stat. 1989, ch. 48, par. 1611(e)). They maintain that under contract law and labor law, no binding agreement to settle the grievance was ever reached. They contend that any finding to the contrary was against the manifest weight of the evidence and clearly wrong. We agree with CMS and DOC and reverse.

Section 10(a)(4) of the Act provides that the following is an unfair labor practice:

“[T]o refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative.” (Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(4).)

Section 7 of the Act defines the duty to bargain, in part, as:

“[T]he mutual obligation *** to negotiate in good faith with respect to wages, hours, and other conditions of employment, *** or the negotiation of an agreement, or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 1607.

Section 10(a)(1) of the Act, which the Board also found respondents guilty of violating, provides an unfair labor practice occurs when an employer “interfere[s] with, restraints] or coerce[s] public employees in the exercise of the rights guaranteed in [the] Act.” (Ill. Rev. Stat. 1989, ch. 48, par. 1610(a)(1).) The Board concluded a failure to bargain in good faith inherently constitutes an interference with employees’ rights.

The record of proceedings before the Board shows that since 1984, INA, CMS, and DOC have been parties to a collective-bargaining agreement which contains a four-step grievance procedure under which the last step is final and binding arbitration. Sometime in 1984 INA filed a grievance alleging that DOC violated the subcontracting provision of the collective-bargaining agreement. The grievance proceeded through the various steps and arbitration began. The parties then agreed to a consent award which was issued by the arbitrator.

Subsequently, INA filed a complaint in the circuit court of Cook County in case No. 86 — CH—8877, alleging that Michael Lane, Director of DOC, had violated the consent award. The circuit court deemed the consent award too vague for enforcement and remanded to the arbitrator for further proceedings. The court’s order stated it “retained jurisdiction over the matter.” During arbitration on remand, the arbitrator suggested the parties again attempt a settlement. Then, INA’s representative, Sally Stix, and the representative for CMS and DOC, Gene Vernon, negotiated concerning the subcontracting of nursing services by DOC. In the process, a document entitled “Supplemental Agreement” was developed. Whether this document constituted a binding agreement between the parties is the heart of the litigation. INA filed the instant unfair labor practice charge with the Board when DOC concluded no binding agreement had been reached and refused to sign the alleged agreement.

The Director of CMS is the Department’s executive head, with responsibility for conducting negotiations over salaries, work hours, and other terms and conditions of employment with respect to State employees on behalf of their employer, the Governor of Illinois. (See Ill. Rev. Stat. 1989, ch. 127, par. 63bl09(7).) Therefore, the authority to negotiate collective-bargaining agreements is vested by State statute in CMS, Vernon’s employer, and not in the directors of the various State agencies. The evidence was undisputed that on previous occasions Vernon had negotiated labor agreements on behalf of CMS which were deemed valid by the parties without higher approval and some of these had been with Stix.

Here, unlike in prior negotiations between Stix and Vernon, INA demanded that Director Michael Lane of DOC sign any agreement resolving the grievance. Stix testified the reason for this was that previously Director Lane had failed to follow an agreement agreed upon by negotiations and INA wanted to be sure he was aware of the terms of any agreement resolving this dispute. The “supplemental agreement” was at least tentatively agreed upon at a meeting between Stix and Vernon in Springfield, on March 27, 1989. Two other people from each side attended the meeting. Correspondence between Stix and Vernon preceded the meeting. The format of the “supplemental agreement” provided for the signature of Lane as the only person signing on behalf of the public employer. No signature line was provided for anyone signing on behalf of CMS.

CMS and DOC maintain the evidence presented to the hearing officer for the Board conclusively showed the parties understood the “supplemental agreement” would become binding only upon Lane’s approval. When Vernon was asked, at the evidentiary hearing, whether he informed INA that neither CMS, he nor the other two persons with him had authority to enter into a binding agreement without Lane’s approval, Vernon stated, “I believe I did it on several occasions, but I certainly indicated on March 27 that the tentative agreement would have to be submitted to Director Lane for his review and approval.” When asked if Vernon had told Stix at the meeting on March 27 that the agreement was subject to review and approval by Lane, Stix responded, “I don’t recall him telling me that.” She was not asked if he had told her of the need for Lane’s approval at any other time and she never testified on that point.

Other evidence and testimony strongly supported Vernon’s assertion that the persons negotiating the agreement were aware that any proposed agreement reached on that date was subject to Lane’s review, approval, and signature. First, by cover letter of November 9, 1988, with her initial proposed settlement agreement, Stix stated that “[d]ue to the problems INA has had concerning this issue, [INA] insists that (Corrections) Director, (Michael) Lane, sign the final settlement.” Second, Stix did testify that at the March 27 meeting she mentioned to those present that she was concerned with whether Lane would “approve” the settlement. Third, Jimmy Butler, a DOC employee who was present at the March 27 meeting, testified Vernon did state at that meeting that the proposed agreement was not final but would be presented to Lane for approval. Fourth, a June 20, 1989, letter by Stix to Vernon expressed concern because of the “failure” of persons from DOC to “approve” the settlement terms worked out at the March 27 meeting. Fifth, Matt Brown, INA business agent, testified he understood the document developed at the March 27 meeting was to be sent to Lane for his “review and signature.” However, he also testified he understood that Vernon’s approval of the document was binding on DOC and CMS.

Under the statutory provision previously cited, an authorized agent of CMS clearly had authority to bind the State to an agreement settling a grievance with an authorized employees’ representative; and, by prior dealings, Vernon clearly had apparent authority to do so unless INA had been advised otherwise. The Board’s hearing officer found Vernon’s testimony that he informed INA that any March 27 agreement was subject to Lane’s approval was accurate. Considering this, and the supporting testimony and evidence we have described, the hearing officer determined that the parties understood the agreement worked out on March 27 was tentative and subject to Lane’s approval, citing Central National Bank v. Fleetwood Realty Corp. (1982), 110 Ill. App. 3d 169, 441 N.E.2d 1244. Accordingly, the hearing officer recommended the complaint be dismissed.

The Board rejected the hearing officer’s recommendation. It accepted the hearing officer’s finding that Vernon had told INA negotiators at the March 27 meeting that any settlement agreement was subject to Lane’s approval. However, the Board deemed that fact was not very significant. The Board indicated any requirement for Lane’s approval was a deviation from past practices and, thus, required that the notice of the requirement be more explicit than any given here. The Board also held any notice of Vernon’s lack of authority was given too late to be effective.

In reaching this conclusion, the Board cited, e.g., Metco Products, Inc. v. NLRB (4th Cir. 1989), 884 F.2d 156, 132 L.R.R.M. 2777, where the court enforced a National Labor Relations Board (NLRB) order holding an employer guilty of an unfair labor practice and requiring the employer to execute a collective-bargaining agreement (see Metco Products, Inc. (1988), 289 N.L.R.B. 76). The evidence before the agency showed that during negotiations with the employees’ union, the employer had been represented by an attorney who purported to be head of the employer’s bargaining committee and did most of the talking on behalf of the employer. The evidence before the agency was disputed as to whether the lawyer had informed the union that an otherwise binding agreement was subject to approval by the employer’s chief executive officer who had attended none of the bargaining sessions. The evidence favorable to the employer indicated that, on occasion, the lawyer negotiating for the employer had told union negotiators he would have to clear certain tentative agreements with the respondent’s chief executive officer.

In Metco, the NLRB adopted a hearing officer’s determination that the employer’s negotiator had apparent authority to bind the employer. The Metco court noted, with apparent approval, that:

“The NLRB has long held that ‘when an agent is appointed to negotiate a collective-bargaining agreement that agent is deemed to have apparent authority to bind his principal in the absence of clear notice to the contrary.' University of Bridgeport, 229 NLRB 1074, 95 LRRM 1389, 1390 (1977).” (Metco, 884 F.2d at 159, 132 L.R.R.M. at 2778.)

The court stated that the laudable purpose of the foregoing rule is to negate ambiguity as to the authority of a negotiator. However, the court also stated that the issue of whether a labor negotiator has apparent authority is to be determined according to common law agency principles, citing NLRB v. Georgetown Dress Corp. (4th Cir. 1976), 537 F.2d 1239,1244, 92 L.R.R.M. 3282, 3285.

The Metco court concluded the question of whether the employer’s lawyer had apparent authority to bind the employer was a question of fact (NLRB v. Donkin’s Inn, Inc. (9th Cir. 1976), 532 F.2d 138, 91 L.R.R.M. 3015), and one upon which the agency determination will not be upset if supported by substantial evidence (Universal Camera Corp. v. NLRB (1951), 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456). Here, we must follow the determination of the Board on a factual issue unless that determination is contrary to the manifest weight of the evidence. Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085,1088.

The Board also deemed pertinent its decision in City of Burbank, 4 Pub. Employee Rep. (Ill.) par. 2048, No. S — CA—88—19, at X — 334 n.3 (Illinois State Labor Relations Board, Nov. 7, 1988), wherein it explained:

“While final approval authority is often reserved to the governing body, in both the private and public sector, the process envisions and encourages approval because the bargaining representative of the governing body is under an obligation to keep that body advised as to the progress of the negotiations and, presumably, gets direction from that body as he or she is at the negotiation table.”

We interpret the foregoing to indicate that, in labor negotiations, some inference exists that the negotiators have authority to bind their principal.

When questions of construction of statutes, such as the Act, are concerned, courts generally accord deference to the interpretation placed upon the statute by the agency charged with its administration. Nevertheless, that agency’s interpretation is not binding and will be rejected when it is erroneous. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.) Here, the legal question involved actually more nearly concerns the law of agency than that of contracts. In any event, according to Metco, the question should be resolved on common law principles subject to a rule, applicable to principles of labor law, requiring clarity in the notice given by a negotiator that he or she lacks authority to bind the principal. The Metco court said nothing about any requirement that the notice of lack of authority of a negotiator be given at any particular time in negotiations. No case has been called to our attention which holds that a party is bound to a labor contract or grievance settlement when a sufficiently clear notice of lack of authority of a negotiator is given just prior to formation of the tentative agreement which would constitute a binding agreement if the negotiator had authority to bind his or her principal. No common law rule requires that notice of lack of authority be given by a negotiator at any earlier time.

Here, the undisputed fact that INA required any agreement settling the grievance to be signed by Lane is of great importance in considering the clarity and timeliness, if that is a factor, of notice of lack of Vernon’s authority. INA itself had specified a condition which raised a question as to what authority Vernon had. If the understanding between the parties was that whatever Stix and Vernon worked out would be binding, and then they would try to get Lane to sign such an agreement, Stix never testified this was the situation. Such an understanding would be consistent with the testimony of INA business agent Matt Brown, but it is not consistent with the testimony of the other witnesses.

The Board recognizes that, at least at the meeting on March 27, Vernon told Stix something about his lack of authority to enter into a binding grievance settlement agreement, or his unwillingness to do so absent Lane’s approval. Even if the prior request for Lane’s signature and all of the discussion concerning that request had been based upon an assumption that Stix and Lane would reach a binding settlement agreement and they would then try to get Lane to sign it, Vernon’s allegedly new position that his tentative approval was not binding on his principal would seem to be crystal clear. That Stix understood this was borne out by her later letter in which she expressed concern about getting Lane’s approval.

We hold that the determination of the Board that INA was given insufficient notice that the tentative settlement of the grievance was dependent upon Lane’s approval was contrary to the manifest weight of the evidence. Accordingly, we reverse the decision of the Board finding CMS and DOC guilty of unfair labor practices.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REYNALD MOLINA VELASCO, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0343
    Opinion filed July 16,1991.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

A jury convicted defendant, Reynald Velasco, of criminal sexual assault and attempt (criminal sexual assault) (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(2), 8 — 4), and he was sentenced to consecutive terms of imprisonment of eight years and four years, respectively.

Defendant appeals and makes the following arguments: (1) the State did not establish beyond a reasonable doubt that the complainant was unable either to understand the nature of a sexual act or to give knowing consent; (2) defendant was denied effective assistance of counsel when his attorney failed to object at trial to complainant’s competency to testify; (3) the videotape of complainant’s interview with police was improperly admitted because it constituted inadmissible hearsay and violated his sixth amendment right to confrontation; (4) the videotape was improperly admitted because its prejudicial effect outweighed its probative value; (5) the trial court improperly admitted evidence of defendant’s prior acts of child molestation; (6) the State did not prove sexual penetration beyond a reasonable doubt; and (7) the court improperly considered the report of an expert on sexual offenders in sentencing defendant.

We reverse and remand for a new trial.

Defendant was charged with two counts of criminal sexual assault upon complainant, his stepdaughter. Count I alleged that on June 2, 1989, he committed an act of sexual penetration on complainant, and count II alleged that an act of sexual penetration occurred between July 27,1986, and June 1, 1989.

Complainant is a 31-year-old woman who has Down’s syndrome. On June 2, 1989, complainant’s mother, Mercedes Velasco, came upon defendant, her husband, and complainant in Mercedes’ bedroom. Mercedes testified that they were lying on the bed and defendant’s face was on top of complainant’s crotch. She also testified that both complainant and defendant were clothed, but that complainant was wearing big, wide-legged shorts. Mercedes was unable to tell whether there was contact between defendant’s face and complainant’s genitals.

After witnessing this scene and obtaining an order of protection against defendant, Mercedes received a five-page, handwritten letter from defendant, who was apparently attempting to reconcile their marital problems. In the letter, defendant admitted he “took advantage of [complainant’s] body by touching her on her private parts” and that complainant “was not the first girl I did touch. All I can remember is I started at age six and it took 37 years before I got caught.”

After answering questions regarding her competency to testify, complainant testified regarding the alleged sexual assaults. She referred to her genitals as her “pussycat” or “puddycat” and testified that defendant “played with herself” twice by blowing on her “pussycat.” She indicated defendant touched her genitals, breasts, and buttocks. She testified that defendant’s mouth touched her “pussycat.”

Dawn Hula, a sexual-abuse therapist, spoke with defendant on June 6, 1989, four days after the incident alleged in count I. Defendant told her that he had been touching complainant’s breasts and her vaginal area with his fingers, and that it had been occurring for approximately three years. Stephen Stines, defendant’s boss, also testified that defendant told him that he had molested his wife’s daughter, but that defendant “didn’t go into a lot of detail.”

At the end of its case in chief, the State introduced into evidence (and played for the jury) the videotape of complainant’s interview with police.

Defendant testified that on June 2, 1989, he was lying in bed when complainant came in the bedroom and lay down beside him. He told her that her mother wanted her downstairs. When complainant did not leave, he pushed her away, but then noticed she was about to fall. Defendant testified that he grabbed complainant, and she grabbed his legs, and “we ended up in an awkward position” when his wife walked in. Defendant testified that at one time complainant had enticed him to get on top of her, that they “rubbed bodies” fully clothed, and he ejaculated. Defendant admitted touching complainant's breasts, but explained he did it in a tickling or nonsexual manner. Defendant denied any sexual penetration occurred. The jury returned verdicts of guilty on both counts.

I. Admission Of The Videotape Of Complainant’s Statement To Police

The State introduced a videotape of complainant’s interview with Officer Gene Woodard, made on June 12, 1989, approximately nine days after the alleged incident charged in count I. The interview took place at the YWCA’s women’s shelter. Complainant’s mother and a social worker were also present, and they asked questions of complainant as well. The court admitted the videotape (1) as an excited utterance, and (2) as a corroborative complaint under section 115 — 10 of the Code of Criminal Procedure of 1963 (Code), permitting videotape evidence “[i]n a prosecution for a sexual act perpetrated upon a child under the age of 13.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a).) Defendant objected to the admission of the videotape at trial and in a post-trial motion. We find the trial court committed reversible error in admitting the videotape because it constitutes inadmissible hearsay.

A. The Videotape Constituted Hearsay

Hearsay is defined as testimony of a statement made out of court offered to establish the truth of the matter asserted therein. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226.) A statement offered for some purpose other than for the truth of the matter asserted therein is not hearsay and may be admitted. The State argues that the videotape was not introduced primarily to show the truth of the matters asserted (that defendant sexually assaulted complainant), but instead was offered (1) to permit the jury to compare how complainant spoke on the videotape with how she testified in court, (2) to illustrate the interviewing technique so the jury could assess the credibility of the complainant’s complaint to police, and (3) to allow the jury to assess whether complainant had the mental capacity to consent to a sexual act. The State also contends that the videotape does not constitute hearsay because complainant was available in court for cross-examination. We do not find these arguments persuasive.

First, to permit the State to introduce evidence of a witness’ prior statement simply to “compare” it to the witness’ in-court testimony would nullify the rule against hearsay. Under this theory, any out-of-court statement made by a witness would be admissible to “compare” to the witness’ in-court testimony.

Second, the videotape was not properly introduced to show the technique and circumstances surrounding the interview because no evidence was introduced at trial regarding what complainant said during the interview. Thus, there was no need to introduce the videotape to show that the statements complainant made in the interview were the result of acceptable interviewing technique.

Third, we do not agree with the State’s contention that the videotape was properly admitted to help the jury assess whether complainant had the capacity to consent to a sexual act because the jury was able to assess complainant’s ability to do so from her demeanor and in-court testimony; the videotape was not necessary for that purpose.

Finally, the State contends that an out-of-court statement is not inadmissible hearsay if the declarant is available in court for cross-examination. This is not the law in Illinois. The Illinois Supreme Court recently stated, “ ‘[t]he presence or absence in court of the declarant of the out-of-court statement is *** irrelevant to a determination as to whether the out-of-court statement is hearsay.’ ” People v. Lawler (1991), 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899, quoting M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.1, at 564-65 (5th ed. 1990).

B. The Videotape Was Improperly Admitted As an Excited Utterance or a Corraborative Complaint

In the event that the court found the videotape to constitute hearsay, the State alternatively argues that the trial court was correct to admit it as an exception to the hearsay rule. We disagree.

1. Excited Utterance or Spontaneous Declaration

A statement constitutes a spontaneous declaration or excited utterance when there is (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, (2) an absence of time to fabricate, and (3) the statement relates to the circumstances of the occurrence. (People v. Gacho (1988), 122 Ill. 2d 221, 241, 522 N.E.2d 1146, 1155.) In the present case, we find that the second criterion was not met.

The videotape was made approximately nine days after the alleged incident of sexual assault occurred. During those nine days, complainant discussed the details of the alleged sexual assault with her mother. Because of the lapse of time and the continued discussion of the incident, the statements made in the videotape could not constitute excited utterances.

In situations involving a child’s statement regarding sexual assault (and the court and the State regarded complainant as a child in this respect because of her mental capacity), a court will generally allow more time to elapse in evaluating whether a statement was a spontaneous declaration. (People v. Bitter (1986), 146 Ill. App. 3d 477, 481, 497 N.E.2d 137, 139.) This court has also recognized that child victims or witnesses are more likely than adults to remain startled for a longer period of time and less likely than adults to fabricate. (People v. Van Scyoc (1982), 108 Ill. App. 3d 339, 342, 439 N.E.2d 95, 97.) However, even if we consider complainant a child witness and apply the general rule of permitting a greater lapse of time to occur before a statement loses its spontaneity, the statements complainant made in the videotape do not constitute excited utterances.

While we agree with the State that lapse of time is not the dis-positive factor in analyzing whether a statement is an excited utterance, it is nonetheless an important factor. We also agree that questioning of a witness is permitted and does not necessarily destroy the spontaneity of the witness’ remarks. However, in this case complainant made her statements in response to leading questions, a circumstance that weighs against a finding of spontaneity. Given all of the circumstances in this case, we conclude that the statements made in the videotape were not spontaneous declarations or excited utterances. The trial court erred in admitting the videotape on this basis.

2. Corroborative Complaint Under Section 115 — 10 of the Code

Last, we also find that the trial court improperly admitted the videotape under section 115 — 10 of the Code, which permits admission of videotape evidence in a “prosecution for a sexual act perpetrated upon a child under the age of 13.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a).) This section explicitly applies only in prosecutions for sexual acts perpetrated on children under the age of 13. The statute is framed in terms of age, not functional ability or IQ. Complainant, at 31, does not fall within its express terms, and this court is duty-bound to honor those terms. If, as a result of this decisión, the legislature decides to broaden those terms, so be it; we do not possess the authority to judicially amend legislative enactments.

C. Prejudicial Effect Versus Probative Value and Confrontation Clause Challenges

Because we have found that the videotape constituted hearsay and did not fall within a recognized exception so as to permit its admission, and further because we have concluded that its admission amounted to reversible error, we need not address defendant’s remaining issues pertaining to the videotape.

II. Complainant’s Competency

Defendant argues he was denied effective assistance of counsel when his attorney failed to challenge the competency of complainant to testify. Complainant was questioned outside the presence of the jury to determine her ability to distinguish between the truth and a lie. In light of our holding that the admission of the videotape constituted reversible error, we need address this issue only briefly.

Under section 115 — 14 of the Code, every person is presumed competent to testify and will be held competent unless he or she is (1) incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation, or (2) incapable of understanding the duty of a witness to tell the truth. (Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 14(a),(b); People v. Trail (1990), 197 Ill. App. 3d 742, 748, 555 N.E.2d 68, 72.) Defendant had the burden of demonstrating that complainant was not competent. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14(c); People v. Hoke (1991), 213 Ill. App. 3d 263, 272.) Although confused at times, complainant testified that she knew what the truth was and what a lie was; she testified that she would not tell any lies. The evidence demonstrated that complainant was competent to testify; thus, defendant’s ineffective assistance of counsel argument fails.

III. Reasonable doubt

Defendant next argues that two elements of the offense of criminal sexual assault were not proved beyond a reasonable doubt: (1) complainant was unable to understand the nature of the act or was unable to give knowing consent, and (2) defendant committed an act of sexual penetration upon complainant. When reviewing defendant’s claim that the State did not establish these elements beyond a reasonable doubt, this court must examine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) We address these arguments only in order to determine whether to remand this cause for a new trial. If defendant was not proved guilty beyond a reasonable doubt, double jeopardy would bar his retrial. Our holding that the evidence was sufficient in no way implies that we have made a finding as to defendant’s guilt which would bind the trial court on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

A. Complainant’s Ability To Consent to a Sexual Act

Defendant was convicted under section 12 — 13(a)(2) of the Criminal Code of 1961, which states that a person commits an act of sexual assault if he “commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(2).) We find no merit in defendant’s contention that the State failed to prove beyond a reasonable doubt that complainant was unable to understand the nature of a sexual act or to give knowing consent to it.

Complainant’s mother, Mercedes Velasco, testified that complainant was born with Down’s syndrome, and has lived with Mercedes since birth, except for one year when complainant lived with her sister. She stated that complainant’s functional level was somewhere between that of a six year old and an eight year old, and that she had been classified as trainably mentally handicapped. She stated complainant had never indicated that she was cognizant or aware of sexuality or sexual contact, and “doesn’t comprehend” where babies come from.

Cheryl Matthews, a mental health counselor who has bachelor’s and master’s degrees in education, as well as 13 years’ experience working with mentally retarded children and adults, stated that complainant was moderately mentally retarded with an IQ of 53, and a functional level of a seven to eight year old. Matthews testified that based upon her experience and training, as well as her dealings with complainant over 5V2 years, complainant would not be able to understand the nature of a sexual contact or overture. She further testified complainant is unable to understand the “long-term ramifications” of a sexual act.

Defendant téstified complainant engaged in various acts with sexual overtones, without apparently understanding their sexual nature, such as walking around the house nude, and attempting to join defendant and his wife in bed while they were engaging in sexual conduct. Complainant’s behavior also indicated she did not understand or comprehend the nature of sexual acts.

Evidence describing complainant’s functional level established that she can take care of her personal hygiene and usually dresses herself, is able to take care of the family dog, and knows her own telephone number and address. However, complainant is incapable of living independently, unable to tell the difference between coins, and has no concept of time.

In People v. Blunt (1965), 65 Ill. App. 2d 268, 273, 212 N.E.2d 719, 722, this court stated that mere mental derangement or deficiency was insufficient to show a rape victim could not give knowing consent because of her mental handicap, and that the mental deficiency “must be of sufficient magnitude to throttle effective consent.” However, this standard is not met merely by showing that a complainant understands what an act of sexual intercourse involves, has some understanding of sexual activity, and knows “where babies come from.” (People v. McMullen (1980), 91 Ill. App. 3d 184, 189, 414 N.E.2d 214, 217.) Although the complainant in McMullen seemed to understand the physical nature of sexual activity, she did not understand how sexual activity affects a person’s life and how illicit sexual activity is regarded by others. The court concluded as follows:

“[She] was unable to understand the social and personal costs of the act. Her inability to understand this important facet of the consequences and nature of sexual activity, combined with other testimony concerning her mental deficiencies, is sufficient to support a guilty verdict based upon her incapacity to consent to intercourse.” McMullen, 91 Ill. App. 3d at 190, 414 N.E.2d at 217.

Based on Blunt and McMullen, the State in this case established beyond a reasonable doubt that complainant was unable to give effective consent to the acts of sexual penetration defendant committed.

B. Sexual Penetration

Defendant next claims that the State did not prove beyond a reasonable doubt that he committed an act of sexual penetration on complainant, which is an element of the offense of criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(2).) Sexual penetration is defined as “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration.” (Ill. Rev. Stat. 1989, ch. 38, par. 12— 12(f).) The offense of criminal sexual assault does not require physical penetration of complainant’s vagina. People v. Gardner (1988), 172 Ill. App. 3d 763, 766, 527 N.E.2d 155, 157.

The State proved beyond a reasonable doubt that sexual penetration occurred. Defendant acknowledged that he had made certain admissions from which the inference could be drawn that he had committed acts upon the complainant which fall within the legal definition of sexual penetration:

“Q. [Defense counsel]: Okay. Also in there you wrote that you have confessed to your boss, Mark Stines. What did you confess to?
A. [Defendant]: I said, T think I did it. I think I did it— what they are accusing me.’ And then I explained to him what was the reason why I did it. You know, the way I look at it they are charging me of penetration.
Q. Well, at that time how would you have defined the term ‘sexual penetration’?
* * *
A. To me, sexual penetration is — you are sticking something in somebody’s body. You know. That’s sexual penetration.”

While at trial defendant denied that any sexual penetration occurred, the jury could choose to disbelieve this testimony and give credence to the earlier statement he made to his boss that he had committed an act of sexual penetration. The jury could conclude that defendant changed his story at trial in order to avoid conviction. While complainant’s testimony may have been inconsistent at times, she did state that an act occurred which falls within the statutory definition of sexual penetration (defendant's mouth touching her genitals). It was within the province of the jury to determine the weight to be given that testimony and to find it credible. Thus, there was sufficient evidence in the record to support the jury’s finding that sexual penetration had occurred beyond a reasonable doubt.

IV. Other Crimes Evidence

Defendant also challenges the admission of other crimes evidence, i.e., evidence of defendant’s admissions about prior acts of child molestation introduced through the testimony of Stephen Stines, defendant’s supervisor, and also through a letter defendant wrote to his wife. Stines testified that on October 2, 1989, defendant told Stines, without going into details, that he had molested his wife’s daughter but that defendant “just said that he touched her in her private parts.” Stines also testified that defendant told him he molested his neighbor’s daughter in Delaware, and “his best friend’s little girl here in Illinois.” Stines stated defendant said he molested girls to “get his kicks,” and that he “had also used the idea that it would be their little secret, as he had done with his wife’s daughter, and that little girls were easy.” In the letter, defendant stated that complainant was not the first girl that he touched, that he started at age six, and that it took 37 years to get caught.

As a general rule, evidence of other crimes committed by the defendant, independent of the crime for which he is being tried, is inadmissible. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200, 1204.) The law distrusts the inference that because a person committed other crimes, he is more likely to have committed the crime charged. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.) Evidence of other crimes may be admitted to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824.) To show modus operandi, the evidence of separate crimes is relevant and admissible only upon a strong and persuasive similarity to the crime charged and the separate offense, so that a substantial and meaningful link exists between the offenses being compared. People v. Tate (1981), 87 Ill. 2d 134, 141, 429 N.E.2d 470, 474.

In the present case, there was insufficient evidence presented to show the prior acts of molestation were sufficiently similar to the crime charged so as to be admissible to show defendant’s modus operandi. Additionally, they do not fall within any other exception to the prohibition against other crimes evidence. Defendant was charged with the sexual assault of a 31-year-old woman who had the mental capability of a six to eight year old. The prior acts of molestation included incidents of molestation of a 10- and a 13-year-old girl. No details of these incidents were presented; as a result, the court had no basis on this record to conclude that they were similar enough to the crime charged to permit the State to introduce those acts as evidence of modus operandi. The court abused its discretion by admitting evidence of these other crimes.

On retrial, Stines and Mercedes may testify about admissions defendant made regarding this complainant, but not about defendant’s conduct involving other girls. The letter defendant sent Mercedes must be redacted to remove any evidence of other crimes in order for it to be admissible.

V. Conclusion

In light of our findings on the other issues, we need not address defendant’s argument regarding sentencing.

Accordingly, for the reasons stated, we reverse the judgment of the circuit court of Vermilion County, and remand the cause for a new trial consistent with the views herein stated.

Reversed and remanded.

GREEN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. YVONNE D. POLLARD, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0080
    Opinion filed July 18,1991.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On November 5, 1990, following a stipulated bench trial in the circuit court of Woodford County, defendant Yvonne Pollard was found guilty of unlawful possession of a controlled substance, being less than 15 grams of cocaine. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b).) She was subsequently placed on 30 months’ probation and ordered to serve 48 days’ incarceration as a condition. She now appeals.

Defendant was arrested for the instant offense on April 22, 1990. On June 4, 1990, defendant filed a motion seeking to quash her arrest and suppress the evidence seized. In the motion, she alleged she was arrested by Metamora police and that said arrest occurred outside the city limits. Accordingly, she argued that the police, being outside their jurisdiction, were without authority to make this arrest.

The evidence presented at the motion to suppress hearing establishes that on April 22, 1990, at 4:30 a.m., Metamora police officer Jeff Wernsman stopped the vehicle for a broken taillight. Defendant, a black female, was driving the car which also contained three other occupants. Shortly after the stop, Officer Allen Smallwood arrived at the scene. After a warning about the taillight, the officers let the vehicle go.

Just then the officers received a report over the radio, in response to a computer check Wernsman requested, to the effect that if a black female was driving the car, she had a suspended driver’s license. The officers proceeded to chase the vehicle and stopped it in Germantown Hills, which is outside the Metamora city limits. It was determined after an investigation that defendant did, in fact, have a suspended driver’s license, and she was placed under arrest. The other occupants were asked to exit the car and did so.

Wernsman then observed a handgun jutting out from under one of the seats and seized it. At this point, all the occupants of the car were arrested. Defendant indicated she was cold and asked the officers to retrieve her coat from the car. They did so but, before returning it to her, Wernsman patted it down. He discovered a small plastic bag in the pocket which contained a substance subsequently identified as cocaine. The court denied the motion to suppress.

On November 5, 1990, a stipulated bench trial occurred. The parties presented the court a written stipulation of facts which indicated that Wernsman would testify to the stop and arrest; that a detective would testify defendant subsequently admitted to him the substance was hers; and that an employee of the crime laboratory would testify the substance was cocaine. The court found defendant guilty and, on December 27,1990, imposed sentence. This appeal followed.

Defendant’s first contention is that, since her stipulated bench trial was tantamount to a guilty plea, she should have been admonished pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402). (See People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760; People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872.) She maintains that since this was not done, her case must be remanded for a new proceeding.

In People v. Horton (1991), 143 Ill. 2d 11, 570 N.E.2d 320, the supreme court again addressed the question of when a stipulated bench trial was legitimate and when it was tantamount to a guilty plea requiring the giving of the Rule 402 admonitions. In Horton, the defendant was involved in two stipulated bench trials involving separate offenses. In each case, defendant had filed a motion to quash his arrest and suppress the evidence seized which was denied.

In the first case, it was stipulated as to what the witnesses would testify. In closing argument, counsel stated that defendant was not contesting the sufficiency of the evidence. (Horton, 143 Ill. 2d at 16-17, 570 N.E.2d at 322.) The supreme court concluded this was not tantamount to a guilty plea. The court explained:

“In the case at bar, defense counsel did not stipulate to the legal conclusion to be drawn from the evidence, as counsel did in Smith. Rather, defense counsel stipulated to the State’s evidence, and then during closing argument, commented that the evidence was sufficient to convict. Comments during closing argument are not considered evidence. Thus, when counsel conceded the sufficiency of the evidence to convict, defendant was not, in effect, entering a guilty plea. Furthermore, we do not believe that defendant’s first stipulated bench trial was a ‘mere formality,’ as was the defendant’s trial in Stepheny. In Stepheny, the attorneys and the judge privately agreed that the defendant was guilty, and merely went ‘through the motions of a trial.’ (Stepheny, 56 Ill. 2d at 238.) In defendant’s first stipulated bench trial, despite the fact that defense counsel conceded the sufficiency of the evidence, the State still had to prove defendant guilty beyond a reasonable doubt. There was no private agreement that defendant was guilty. Thus, we conclude that defendant’s first stipulated bench trial was not tantamount to a guilty plea even though counsel conceded the sufficiency of the evidence.
In so holding, we adopt the rule uniformly applied by the appellate court that a stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense. A guilty plea waives all nonjurisdictional defenses or defects. (People v. Jackson (1970), 47 Ill. 2d 344, 348.) As noted in the appellate court opinion, a stipulated bench trial can avoid the waiver rule while still allowing the parties to proceed with the benefits and conveniences of a guilty plea procedure. (193 Ill. App. 3d at 702; see People v. Sullivan (1979), 72 Ill. App. 3d 533, 538.) We believe that this is what counsel did in defendant’s first stipulated bench trial. Counsel realized that defendant’s only viable defense theory was the suppression of the identification and fingerprint evidence. Thus, he opted to proceed through a stipulated bench trial, and preserve defendant’s suppression issue.” Horton, 143 Ill. 2d at 21-22, 570 N.E.2d at 324-25.

In the second bench trial, the State indicated to the court what its evidence would show. Defense counsel then stated: “ ‘[I]n terms of [the] sufficiency of the evidence, we are stipulating.’ ” (Emphasis in original.) (Horton, 143 Ill. 2d at 18, 570 N.E.2d at 323.) The court found this procedure called for an opposite result:

“Regarding defendant’s second stipulated bench trial, we find that defense counsel not only conceded the sufficiency of the evidence, but he in fact stipulated to the sufficiency of the evidence to convict. As stated earlier, after the State detailed the stipulation pertaining to Mr. Marzolo’s testimony, defense counsel stated ‘[b]ut, in terms of [the] sufficiency of the evidence, we are stipulating.’ This comment places defendant’s second trial directly within the confines of our prior holding in Smith. Thus, even though defendant presented and preserved a defense in his second stipulated bench trial, Smith applies and defendant should have ‘be[en] afforded the protections set forth by Rule 402.’ See Smith, 59 Ill. 2d at 243.” (Emphasis in original.) Horton, 143 Ill. 2d at 22, 570 N.E.2d at 325.

Thus, what can be gleaned from this case is that when a defendant intending to present and preserve a defense stipulates to evidence (i.e., to what witnesses would testify), and the ultimate conclusion is up to the court as to whether the evidence is sufficient to convict, then the procedure is properly considered a bench trial and no admonitions need be given. This is true even if counsel admits or concedes to the court prior to trial or in closing argument that defendant is not contesting the sufficiency of the evidence to convict. However, when a defendant stipulates that the evidence is sufficient to convict, this is tantamount to a guilty plea because the court is not called upon to determine if the State has proved defendant guilty beyond a reasonable doubt and the admonitions must be given. This is true even if defendant in stipulating was doing so intending to preserve a defense.

It is now necessary to apply these “gleanings” to the present controversy.

On November 5, 1990, defendant’s case was called for bench trial. At that time, the parties indicated to the court that they were presenting “a stipulation of the facts in this case.” The parties then explained this was all the evidence to be presented. The court asked if the parties wished closing arguments. The State declined. Defense counsel then stated:

“Your Honor, I think what was anticipated [was] that the Court would find the Defendant guilty of the charge. We would ask that any conviction be reserved until such time as we have a sentencing hearing. The reason I say that is that my client is eligible for 14 — 10 probation.”

The court then recited the evidence contained in the stipulation and found defendant guilty.

This procedure clearly falls within the first situation contained in Horton. Defendant obviously wished and intended to preserve her motion to suppress argument which she also makes on appeal. The stipulation only involved facts and evidence which would have been presented at trial. The court still had to review them and determine if the State had met its burden.

We do not believe counsel’s quoted language changes this analysis. The comment was made during the time reserved for argument. In Horton, counsel told the court both at pretrial and at closing argument that defendant was not contesting the sufficiency of the evidence to convict. (Horton, 143 Ill. 2d at 16-17, 570 N.E.2d at 322.) Here, counsel’s comment is simply another way of saying the same thing. Accordingly, we conclude that this bench trial was not tantamount to a guilty plea and no Rule 402 admonitions were therefore required.

Defendant next argues that the court erred in denying her motion to suppress because her arrest occurred outside the Metamora city limits and was not authorized by sections 7 — 4—7 and 7 — 4—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, pars. 7 — 4—7, 7— 4 — 8). These sections provide that adjoining municipalities within a county form a police district and that police from any municipality within the district may travel throughout the district to preserve peace and safeguard the lives, rights, and property of citizens. (People v. O’Connor (1988), 167 Ill. App. 3d 42, 44, 520 N.E.2d 1081, 1082.) Extraterritorial arrests have been upheld pursuant to these sections where officers, while in adjoining municipalities, observed the commission of an offense. (See People v. Bains (1987), 152 Ill. App. 3d 951, 505 N.E.2d 13; People v. Lawson (1976), 36 Ill. App. 3d 767, 345 N.E.2d 41.) She believes the court should have taken judicial notice that Germantown Hills and Metamora are not adjoining municipalities. Accordingly, since they are not, she maintains these sections are inapplicable to her case.

A similar argument was made and rejected in the case of one of her codefendants (see People v. Thompson (1991), 215 Ill. App. 3d 514), because it was held the arrest was authorized by separate statutory provision.

Under the common law, peace officers generally lacked the authority to make warrantless arrests outside the territorial limits of the political entity by which they were employed, unless they were in hot pursuit of a suspected felon fleeing from their own territory. (Bains, 152 Ill. App. 3d at 953, 505 N.E.2d at 15.) However, the common-law rule has been modified by section 107 — 5(c) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 5(c)), which provides an arrest may be made anywhere within the jurisdiction of this State. In construing this provision, one court stated:

“While there is no case law interpreting the scope of this provision, we believe it lays to rest the notion that a police officer is limited by the concept of territorial boundaries or jurisdiction when making an arrest. Therefore, it is proper for a police officer to make a warrantless arrest in an adjoining county when he has probable cause to believe that the accused committed an offense in the county in which the officer holds office. This is true even though the officer had merely entered the adjoining county because of some suspicious activity and was not then in fresh pursuit of the offender.” (Emphasis added.) People v. Durham (1979), 71 Ill. App. 3d 725, 727, 390 N.E.2d 517, 518.

Durham is very similar to the present case. There, the officer received a report that someone shot into a house and the defendant, due to bad blood with the victim, was given as a suspect. The officer proceeded to the general vicinity, and he eventually stopped defendant’s car across the county line in another county whereupon evidence of the crime was uncovered. The court, as noted, held that section 107 — 5 of the Code authorized the stop and the arrest. This analysis and conclusion has been followed by subsequent courts. People v. Aldridge (1981), 101 Ill. App. 3d 181, 186, 427 N.E.2d 1001, 1005; People v. Carraher (1990), 199 Ill. App. 3d 965, 969-70, 557 N.E.2d 975, 978-79; Thompson, 215 Ill. App. 3d at 520.

It is clear that, based upon a radio report such as in the present case, police officers have reasonable grounds to make an investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and section 107 — 14 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14) to investigate a possible license violation. (See People v. Barnes (1987), 152 Ill. App. 3d 1004, 505 N.E.2d 427.) Defendant does not argue otherwise. We conclude that section 107 — 5 of the Code and Durham allow the officers, in circumstances such as this, to make this investigatory stop outside their jurisdiction in order to investigate a violation which might have occurred within it. Accordingly, we find the court properly denied defendant’s motion to suppress.

Affirmed.

GREEN and STEIGMANN, JJ., concur.