text:
      In re MARRIAGE OF LAURA M. MICHAEL, n/k/a Laura M. Fullerton, Petitioner-Appellant and CHARLES A. MICHAEL, Respondent-Appellee.
    Third District
    No. 3—91—0355
    Opinion filed April 9, 1992.
    James R. Standard, of Monmouth, for appellant.
    Ronald D. Stombaugh, of Monmouth, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The petitioner mother, Laura M. Fullerton, filed a petition to enforce child support provisions of the parties’ divorce decree. The trial court denied the petition, finding that Laura and the respondent father, Charles A. Michael, had agreed to reduce the amount of child support from $150 per week to $110 per week. Laura appeals from that decision. We reverse.

The record shows that the parties were granted a dissolution of their marriage on January 27, 1987. The judgment of dissolution of the marriage awarded custody of the parties’ two minor children to Laura and ordered Michael to pay $110 per week in child support. After 12 months, the amount of support was to be increased to $150 per week. The support payments were to be paid to the Warren County circuit clerk and not directly to Laura.

On December 19, 1990, a hearing was held on Laura’s petition. At that hearing, Michael testified that when the parties’ marriage was dissolved he was working about 10 to 15 hours of overtime per week. He stated that his hours were subsequently reduced and that the $110 per week in child support he began paying in November of 1987 was about 25% of his net income. Michael also stated that he had discussed his work situation with Laura and that she had agreed to a reduction in child support from $150 to $110 per week.

Michael further testified that in 1988 and 1989 the Warren County circuit clerk sent him notices that he was in arrears on his support obligation. After the first notice, Michael’s attorney drafted a written agreement to reduce the amount of support.

Laura testified that she had refused to sign the proposed agreement. Sometime later, Michael’s attorney prepared a second agreement. Laura did not sign that document either, but apparently kept it in her possession.

The trial court found that the parties had an agreement to reduce Michael’s support obligation. The court further found that $110 per week was 25% of Michael’s net income. The court then entered an order reducing Michael’s support obligation to $110 per week retroactive to November 1,1987.

At the outset, we note that Michael claims that the record on appeal is inadequate. However, we find that contention to be without merit, since the record contains a certified bystanders report of the hearing on Laura’s petition.

Laura first argues on appeal that she did not enter into an agreement to reduce Michael’s child support obligation. In the alternative, she contends that even if she did enter into an agreement, it was unenforceable as a matter of law.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) covers modifications of child support and it provides that “the provisions of any judgment respecting *** support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) In Blisset v. Blisset (1988), 123 Ill. 2d 161, 167-68, 526 N.E.2d 125, the Illinois Supreme Court stated the law regarding modification of child support as follows:

“The modification of a child support obligation is a judicial function, administered exclusively by the court as a matter of discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 329.) The court is obligated in marital dissolution proceedings to protect the best interests of the children involved. (See Ill. Rev. Stat. 1983, ch. 40, par. 602; see also Ill. Rev. Stat. 1983, ch. 40, par. 502.) Moreover, although property disposition agreements between spouses are binding upon the court, unless unconscionable, in marital dissolution proceedings, the court is not bound by agreements providing for the support, custody, and visitation of the children. (Ill. Rev. Stat. 1983, ch. 40, par. 502(b).) Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children’s interests. Former spouses might agree to modify child support obligations, benefiting themselves while adversely affecting their children’s best interests. Parents may not bargain away their children’s interests. (See Huckaby v. Huckaby (1979), 75 Ill. App. 3d 195, 199; Anthony v. Anthony (Iowa 1973), 204 N.W.2d 829, 833.) It is for this reason, then, that parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children. See Finley v. Finley (1980), 81 Ill. 2d 317, 329; Hart v. Hart (Mo. App. 1976), 539 S.W.2d 679.”

In the instant case, we do not find that the parties had an agreement to reduce support payments. Moreover, even if the parties did enter into such an agreement, it was unenforceable as to installments accruing prior to due notice of the filing of a motion to modify and a showing that an agreement reached between the parties was in accord with the children’s best interests.

Here, Charles failed to file the required motion to modify or to give proper notice. Instead, he merely asserted in his answer to Laura’s petition that there was an agreement to reduce support. The alleged agreement was therefore unenforceable as a matter of law. See Baker v. Baker (1990), 193 Ill. App. 3d 294, 549 N.E.2d 954.

As the supreme court noted in Blisset, the reason that a motion for modification and a showing of a substantial change in circumstances are required is to protect the best interests of the children. In setting the original support award, the court was required to apply the statutory guidelines, and if it deviated therefrom, it was required to make express findings as to its reasons for doing so. If the parties were allowed to modify support without court involvement, it would circumvent the statutory framework of protecting the children’s interests.

Charles argues that despite the lack of an enforceable agreement, Laura should be equitably estopped from collecting delinquent child support payments.

We disagree. A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person. (In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 547 N.E.2d 749; Johnston v. Johnston (1990), 196 Ill. App. 3d 101, 553 N.E.2d 93.) The party asserting a claim of estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts and such reliance should be reasonable. Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.

In the present case, Charles had an attorney draw up two agreements to reduce his support obligation. Laura did not sign either document, and at the time the second one was drafted, the law was clear in Illinois that such agreements were unenforceable and required judicial involvement. Moreover, even after the dates of the alleged agreements, the circuit clerk continued to send Michael notices that he was in arrears on his support obligation. Under the circumstances, we are unable to say that Charles’ reliance on Laura’s alleged conduct was reasonable.

For the foregoing reasons, the judgment of the circuit court of Warren County finding an agreement to modify child support is reversed, and the cause is remanded to the circuit court of Warren County for further proceedings on petitioner’s petition to enforce child support provisions consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and GORMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MINNIE WHEELER, Defendant-Appellant.
    Second District
    No. 2—90—0390
    Opinion filed April 16, 1992.
    Rehearing denied May 8, 1992.

      G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva, and Donald B. MacKay, of Downers Grove (John X. Breslin, William L. Browers, and Mary Beth Burns, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Following a bench trial, Minnie Wheeler, defendant, was found guilty of 10 counts of forgery. She was sentenced to 30 months’ probation and ordered to pay a $1,500 fine. On appeal, she argues that the trial court erred by (1) denying her motion to suppress certain statements taken from her subsequent to an alleged violation of her constitutional right to counsel; and (2) improperly shifting the burden of proof to her, rather than the State, on her motion to suppress. The State argues that defendant made a voluntary, knowing and intelligent waiver of her right to counsel, and that the trial court properly placed the initial burden of proof on the State when deciding defendant’s motion. We affirm.

On April 13, 1989, defendant was charged with 10 counts of forgery in violation of section 17 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)). The Kane County State’s Attorney filed the charges by way of a form entitled “COMPLAINT FOR PRELIMINARY HEARING.” The charges regard defendant’s involvement in a scheme involving 10 forged checks that totalled $8,100 and which were drawn from another individual’s checking account at a bank in Aurora.

On October 5, 1989, a hearing was held on defendant’s motion to suppress certain statements she made to the Aurora police subsequent to her alleged requests to see her attorney. Detective Gregory Anderson of the Aurora police, the officer who interviewed defendant, and defendant testified at the hearing.

Defense counsel first called Detective Anderson, who testified that he arrested defendant at her apartment pursuant to an arrest warrant on April 25, 1989. Anderson interviewed defendant at the Aurora police station at about 1:30 p.m. that day. He advised defendant that she had been charged with 10 counts of forgery. He then read defendant her Miranda warnings from a preprinted form, which was apparently offered into evidence but which is not in the record on appeal. Defendant told Anderson that she understood them. Anderson then asked defendant to read the first warning aloud, which she did. He then told her that if she understood it, to initial it, which she did. He also told her to read the rest of the warnings to herself and to initial them if she understood them, to read the two waiver statements, and to sign the form. Anderson then watched as she initialed each of the remaining three warnings. He then conducted a 30- to 45-minute conversation with defendant, during which time she made certain incriminating statements.

According to Anderson, defendant initially denied any involvement in the offenses charged and told the detective that she was afraid to talk to him because she thought “her attorney would be mad at her.” Anderson asked her what she meant, and defendant stated “that if she talked to [Anderson] that her attorney would not represent her.” Anderson responded by telling defendant that “the attorney was on her side and he would stand behind her.” According to Anderson, defendant never told him that she wished to cease the questioning; she never told him that she wished to have an attorney present; she never asked him to contact her attorney; and she never asked to call her attorney. The trial judge personally questioned Anderson regarding whether defendant ever told him that she did not want to answer any questions or whether she ever asked to speak with her attorney. Anderson repeated his previous testimony that defendant never stated that she did not want to answer questions and never asked for her attorney.

Defendant’s testimony at the suppression hearing is as follows. Detective Anderson and defendant were alone in the interview room. Anderson began to ask questions and defendant asked for her attorney. Anderson then told defendant “I know you didn’t do this ***, you may have been with them but I know that you didn’t do this. There is a master mind behind it.” Defendant stated that she was crying and, for the second time, asked for her lawyer. She told Anderson that “I can’t talk to you because my lawyer will be mad.”

According to defendant, Anderson then read her the Miranda rights waiver form, had her read it and asked her to initial each line after she read it. Defendant objected to signing the form. Anderson explained the form to her again, and defendant eventually signed it. After signing the form, defendant began crying and said “fn]o, I’m not going to say anything. I’m not going to say anything.” Anderson kept asking her questions and inquired if her sister Mary Ann was involved.

Defendant further stated at the suppression hearing that she asked for her lawyer at least four times during her interview with Detective Anderson. She also claimed that she was not allowed to make a telephone call, even though she had asked to call her lawyer. Defendant testified that Anderson promised that if she helped him, he would be with her in the morning when she went before the judge and that she would not be prosecuted. Defendant stated that she signed the Miranda form only after Anderson told her that it meant that she had been read her rights and understood them, not that she was waiving them.

Detective Anderson was then called to testify on behalf of the State. Anderson acknowledged that he knew defendant’s attorney’s name. He also admitted that he was aware of defendant’s initial reluctance to talk with him, but continued to interview her.

After arguments from counsel, the trial judge took the suppression matter under advisement. On December 15, 1989, the trial judge denied defendant’s motion to suppress. The trial judge indicated that while defendant stated that she asked for an attorney numerous times during the course of the interview, Detective Anderson stated otherwise. The trial judge stated that the transcripts did not truly reflect defendant’s testimony in that “her demeanor while she was on the stand *** was vague, she was halting, she was uncertain.” By denying defendant’s motion, the trial judge clearly found Detective Anderson’s testimony more convincing.

On January 23, 1990, a stipulated bench trial was held. Stipulations were presented by the prosecution, and the court found defendant guilty on all counts. At a sentencing hearing held on March 29, 1990, defendant was ordered to serve a 30-month term of probation and pay a $1,500 fine. This timely appeal followed.

RIGHT TO COUNSEL

We first address defendant’s argument that the trial court erred by denying her motion to suppress certain statements that she made subsequent to an alleged violation of her sixth amendment right to counsel and, in the alternative, her fifth amendment right to counsel. We note that “[i]n reviewing a ruling on a motion to suppress, a reviewing court’s analysis is limited; we must determine whether the circuit court’s finding was against the manifest weight of the evidence.” (People v. Reid (1990), 136 Ill. 2d 27, 56.) In addition, on a motion to suppress, it is the trial court’s duty to resolve conflicting evidence and determine the credibility of the witnesses. People v. Case (1991), 218 Ill. App. 3d 146, 154; see People v. Clark (1986), 114 Ill. 2d 450, 459-60.

Since it is not the function of an appellate court to gauge the credibility of the witnesses at a suppression hearing, as defendant apparently wants us to, we will accept Detective Anderson’s version of the facts since that is plainly what the trial court did. Under either a sixth amendment analysis or a fifth amendment analysis, this case will therefore turn on whether we find that defendant’s statement to Detective Anderson that she was afraid that her attorney “would be mad at her” or that “if she talked to [Anderson] that her attorney would not represent her” constituted a request for an attorney. We begin with a sixth amendment analysis.

The sixth amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall *** have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) The Illinois Supreme Court stated in People v. Hayes (1990), 139 Ill. 2d 89:

“A person’s sixth amendment right to counsel attaches only after adversary judicial criminal proceedings have been initiated against him, whether by way of a formal charge, preliminary hearing, indictment, information, or arraignment. [Citations.] The sixth amendment’s right to counsel guarantee assures that the accused receives the assistance of counsel when confronted with ‘the intricacies of the law and the advocacy of the public prosecutor’ at trial. [Citation.] It also ensures that the defendant receives the assistance of counsel at certain ‘critical’ preindictment proceedings, where the accused is confronted by the procedural system, an expert adversary or both, and where the results of the confrontation might determine the defendant’s fate and make the trial itself a mere formality.” Hayes, 139 Ill. 2d at 123.

See McNeil v. Wisconsin (1991), 501 U.S. 171, 175-79, 115 L. Ed. 2d 158, 166-69, 111 S. Ct. 2204, 2207-09.

The Hayes court then held that whether an accused’s sixth amendment right to counsel attaches upon the filing of a criminal complaint depends on “the degree to which the State’s prosecutorial forces have focused upon the accused.” (Hayes, 139 Ill. 2d at 125.) In Hayes, the prosecutor reviewed the criminal complaint against the defendant before it was filed in the circuit court. However, the supreme court determined that the “prosecutor’s involvement in the procurement of the warrant *** was not significant and did not signal a commitment by the State to prosecute the defendant.” (Hayes, 139 Ill. 2d at 125-26.) In so finding, the court relied on two facts: first, that the complaint for preliminary examination was presented in an ex parte proceeding by a police officer, rather than an assistant State’s Attorney; and second, that the complaint for preliminary examination, upon which the warrant was issued, charged the defendant with the offense of attempted armed robbery rather than the murder of which the defendant was ultimately convicted.

Similarly, in People v. Thompkins (1988), 121 Ill. 2d 401, the court held that the defendant’s sixth amendment right to counsel had not attached following his arrest pursuant to an arrest warrant, because adversary judicial proceedings had not been initiated against him. The court noted that only a complaint for preliminary examination charging the defendant with murder had been issued and the defendant had been neither indicted nor arraigned. (Thompkins, 121 Ill. 2d at 433.) It is not clear whether the State’s Attorney in Thompkins personally filed the complaint in court.

Pursuant to the holdings in Hayes and Thompkins, we conclude that in this case the complaint for preliminary hearing did not constitute a commitment by the State to prosecute the defendant and that the defendant’s sixth amendment right to counsel therefore had not attached at the time she was interviewed by Detective Anderson. We note that at the time of the interview the defendant had not been arraigned, charged by information or indicted. While defendant argues that the Kane County State’s Attorney himself filed the complaint, we do not believe that fact alone rises to the level of adversarial proceedings necessary for the sixth amendment right to counsel to attach. We conclude that when defendant was interviewed on April 25,1989, her sixth amendment right to counsel had not yet attached.

We next consider the trial court’s denial of defendant’s motion to suppress under a fifth amendment analysis. The fifth amendment provides, in pertinent part, that “[n]o person shall *** be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) The Illinois Supreme Court stated in People v. Patterson (1992), 146 Ill. 2d 445:

“In Miranda, the United States Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, his fifth amendment privilege against self-incrimination is jeopardized. (U.S. Const., amend. V; Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) Procedural safeguards must be put into effect to protect the privilege; the individual must be warned prior to questioning that he has the right to remain silent, that anything he says can be used against him in court, that he has the right to an attorney, and that if he cannot afford an attorney one will be provided for him prior to questioning if he so desires. [Citation.] In the absence of a Miranda warning or waiver, no evidence obtained as a result of interrogation can be used against the individual.” Patterson, 146 Ill. 2d at 450-51.

See McNeil, 501 U.S. at 176-79, 115 L. Ed. 2d at 167-69, 111 S. Ct. at 2208-09.

Our supreme court spoke to the issue of waiver of Miranda rights in People v. Thompkins (1988), 121 Ill. 2d 401:

“[T]hese rights may nevertheless be validly waived where, with full awareness and comprehension of all the information [that] Miranda requires the police to convey, the defendant voluntarily decides to speak. [Citation.] The waiver must be voluntarily made, constituting a knowing and intelligent relinquishment of a known right. [Citations.] Furthermore, once an accused has been advised of his rights and indicates that he understands them, his choosing to speak and not to request counsel is evidence that he knows his rights and chooses not to exercise them.” (Thompkins, 121 Ill. 2d at 433-34.)

The State has the burden at a suppression hearing of proving, by a preponderance of the evidence, that defendant voluntarily made the statements in question. People v. Reid (1990), 136 Ill. 2d 27, 56.

We cannot agree with defendant that her telling Detective Anderson that her attorney “would be mad at her” or that “if she talked to [Anderson] that her attorney would not represent her” constituted the invocation of her fifth amendment right to counsel. In People v. Sommerville (1990), 193 Ill. App. 3d 161, this court addressed a similar argument. There, the defendant argued that he invoked his right to counsel when he asked a friend, allegedly in the presence of the arresting officers, “to call my attorney.” We disagreed. While noting that under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, a defendant invokes his fifth amendment protection when he asserts “in any manner and at any stage of the [proceeding]” his right to counsel, we concluded that not every reference to an attorney constitutes an invocation of the right to counsel. (Sommerville, 193 Ill. App. 3d at 169.) We based our decision on previous decisions including People v. Evans (1988), 125 Ill. 2d 50, 75-76 (an inquiry into the availability of an attorney did not constitute an invocation of defendant’s right to counsel); People v. Krueger (1980), 82 Ill. 2d 305, 311 (“[m]aybe I need a lawyer” did not constitute an effective request for counsel; the court noted that simply referring to an attorney, no matter how vague, indecisive, or ambiguous, does not automatically constitute an invocation of the right to counsel); People v. Farrell (1989), 181 Ill. App. 3d 446, 451 (defendant’s intention to retain some unnamed attorney was an ambiguous assertion of his right to counsel); and People v. Tackett (1986), 150 Ill. App. 3d 406, 419 (defendant’s statements “I might be needing [an attorney]” and “I probably should” after he was told he could speak to an attorney did not constitute an effective invocation of the right to counsel). (Sommerville, 193 Ill. App. 3d at 169.) In this particular case, we conclude that while defendant may have referred to her attorney during the interview, she did not invoke her fifth amendment right to counsel.

Furthermore, the record shows that during the interview defendant acknowledged that she understood each of her Miranda rights by her initialing each right on the preprinted form that Detective Anderson provided her. We are mildly concerned that this preprinted form that defendant initialed was not made part of the record on appeal. The undisputed testimony from both defendant and Detective Anderson shows that after she initialed each right and signed the waiver at the bottom of the form, she spoke with Detective Anderson. We therefore believe the record shows defendant waived her fifth amendment right to remain silent and to have the assistance of counsel at her April 25, 1989, interview with Anderson. See Thompkins, 121 Ill. 2d at 434.

We therefore conclude that the trial court order denying defendant’s motion to suppress statements made at the April 25, 1989, interview was not against the manifest weight of the evidence.

BURDEN OF PROOF

We next address defendant’s argument that the trial court erred during the suppression hearing by shifting the burden of proof to defendant, rather than the State, thereby denying her the fundamental right to due process.

Even though the State has not presented a waiver argument on this issue, we note that defendant failed to object at trial or to raise the burden of proof issue in her post-trial motion. Our supreme court stated in People v. Reid (1990), 136 Ill. 2d 27, that “waiver rules serve at least two purposes. First, timely objections allow the circuit court to promptly correct any error. [Citation.] Second, a party who fails to object cannot obtain the advantage of receiving a reversal by failing to act.” (Reid, 136 Ill. 2d at 38.) We conclude that defendant has waived our consideration of this issue. See People v. Enoch (1988), 122 Ill. 2d 176, 186-88; Ill. Rev. Stat. 1989, ch. 38, par. 116-1(c).

Even if we were to review the issue under a plain error analysis pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), as defendant urges us to, we find no error by the trial court.

It is well established that the State has the burden at a suppression hearing to prove, by a preponderance of the evidence, that defendant’s statements were voluntarily given. (Reid, 136 Ill. 2d at 56; People v. Sommerville (1990), 193 Ill. App. 3d 161, 168.) Our supreme court stated in Reid that “[o]nce the State has established its prima facie case, the burden shifts to defendant to show that his waiver was not knowing, intelligent or voluntary. [Citations.] The circuit court may, in its discretion, reverse the order of proof so that defendant presents his or her evidence first.” Reid, 136 Ill. 2d at 51.

Defendant refers to the following comments made by the trial judge when he denied defendant’s motion to suppress:

“And if I recall her demeanor when she was on the stand, she was vague, she was halting, she was uncertain. And the transcript looks real good, but not from what I recall.
Based on her testimony as well as the police I don’t think that you’ve established it by a preponderance.” (Emphasis added.)

The State responds by citing to an earlier comment by the trial judge:

“I’m kind of in a quandry [sic] on this. This is a motion to suppress a statement. Basically it’s the State’s burden.” (Emphasis added.)

We have reviewed both comments in the context of the entire suppression hearing transcript and agree with the State that no error occurred. We find that the trial judge properly placed the initial burden of proving a prima facie case on the State and then shifted the burden to defendant. (See Reid, 136 Ill. 2d at 51.) The trial judge’s comment that defendant failed to establish “it by a preponderance” was most likely a shorthand and inartful way of saying that defense counsel had not successfully rebutted the State’s prima facie case of a voluntary waiver.

The trial court may have confused matters by allowing the defense to put its case first, followed by the State’s case. The relevant statute provides that “[t]he burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State.” (Ill. Rev. Stat. 1989, ch. 38, par. 114—11(d).) While our supreme court has stated that it does not matter which party goes first (Reid, 136 Ill. 2d at 51), we believe that to first allow the State the opportunity to prove a prima facie case of a knowing, intelligent and voluntary waiver by defendant, followed by defendant’s arguments to the contrary, would more closely track the statute. Nevertheless, we conclude that the trial court did not place the burden of proof on defendant at the suppression hearing and thus find no error in that regard.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    STANLEY SKRYPEK, Plaintiff-Appellee, v. JOSEPH A. MAZZOCCHI, Defendant-Appellant.
    Second District
    No. 2 — 91—0779
    Opinion filed April 9, 1992.

      James T. Magee, of Magee, Negele & Associates, of Round Lake, for appellant.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Joseph A. Mazzocchi, appeals from an order of the circuit court of Lake County which denied his motion to vacate a default judgment entered in favor of plaintiff, Stanley Skrypek. Defendant has raised three issues on appeal: (1) whether the default judgment should have been vacated because it was void; (2) whether the default judgment should have been vacated pursuant to section 2 — 1301 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1301) based upon substantial justice; and (3) whether the default judgment should have been vacated pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). We reverse and remand.

Plaintiff filed his two-count complaint against defendant on February 23, 1990. Plaintiff alleged that defendant breached a contract in which he agreed to repair and remodel plaintiff’s home and that defendant improperly filed a contractor’s lien against the property. Plaintiff sought damages in the total amount of $6,600. Because of the amount of the claim, the cause was assigned to mandatory arbitration (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001A; 134 Ill. 2d R. 86(b)).

Defendant was served with summons and a copy of the complaint on April 11, 1990. The summons stated that defendant was required to appear on April 25, 1990, at 9 a.m. “to answer the complaint in this case, a copy of which is hereto attached.” The summons also stated: “IF YOU FAIL TO DO SO, A JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF ASKED IN THE COMPLAINT.” The summons also stated that, if an appearance and answer were filed by defendant, the cause would be heard by arbitration on June 27,1990, at 1:30 p.m.

Defendant filed a written appearance on April 24, 1990. Nevertheless, an order was entered on April 25, 1990, which stated that defendant had failed to appear and was in default and that judgment was entered in favor of plaintiff in the amount of $2,810.11. On May 2, 1990, defendant filed an answer to the complaint. He also filed a verified counterclaim seeking $761.16 plus costs. He alleged that this was the balance due from plaintiff for repair work performed on the subject premises.

On July 27, 1990, defendant filed a motion to vacate the default judgment. He alleged that the default judgment was entered without notice to him. He also alleged that he appeared on June 27, 1990, for an arbitration hearing and was advised that the case was not scheduled. He argued that the court was without jurisdiction to enter a default judgment and asked that the judgment be vacated.

A hearing was held regarding defendant’s motion on April 4, 1991. An order was entered granting plaintiff leave to file a response to defendant’s motion, and the hearing was continued to April 18, 1991. On April 18, an order was entered which granted defendant leave to file “such additional motion or pleading as deemed appropriate,” and the cause was set for further hearing on May 15,1991.

Defendant filed an amended motion on April 24, 1991. Defendant stated that the motion was brought pursuant to section 2 — 1301 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301). Defendant alleged additional facts in this motion. He alleged that the summons served upon him directed that an appearance be filed on or before April 25, 1990, and an answer within 10 days thereafter. We note that the copy of the summons contained in the record does not contain this language. In the appendix to his brief, defendant has included a copy of a blank summons which states on the back, “If you have filed a written appearance on or before the return day, you must file an answer not later than 10 days after the return day.” However, matters outside the record cannot be considered on appeal. Hanson v. Illinois Liquor Control Comm’n (1990), 201 Ill. App. 3d 974, 980.

Defendant also alleged in his amended motion that he first learned of the default judgment on June 26, 1990, when plaintiff’s counsel left a telephone message for defendant’s counsel which advised of the entry of the default judgment and suggested a discussion of settlement. He further alleged that the court file was not available when he appeared for the arbitration hearing set for June 27, 1990, and that he was first able to view the file on July 5,1990.

Defendant argued that the court lacked jurisdiction to enter the default judgment because he had filed a timely written appearance and was entitled to notice prior to the entry of any default. Defendant further argued that the court had jurisdiction to vacate the default because a void order may be vacated at any time and also because he filed a timely appearance, answer and counterclaim, and the counterclaim remained pending.

In the alternative, defendant contended that the default judgment should be vacated pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). He alleged that he had a meritorious defense that no sums were due by him to plaintiff which was demonstrated by a copy of a letter from plaintiff attached to the motion. He also alleged that there was no lack of due diligence on his part and that equity and justice required that the default judgment be vacated.

Plaintiff filed his response to the amended motion on May 15, 1991. Plaintiff argued that the court was without jurisdiction to grant relief pursuant to section 2 — 1301 of the Code because the motion was filed more than 30 days after final judgment was entered. Plaintiff also argued that defendant was not entitled to relief pursuant to section 2 — 1401 of the Code because he acted without diligence. Plaintiff asserted that local court rule 17.03(a) provided: “Both plaintiff and defendant shall appear on the return date unless an appearance and answer, as well as any other responsive pleading thereto has been filed on or before the return date.” (Emphasis added.) (Circuit Court of Lake County R. 17.03(a).) Plaintiff thus argued that defendant did not act with due diligence because he failed to appear in court on April 25, 1990, failed to file his motion to vacate until one month after he learned of the default judgment, and failed to request a hearing on his motion until eight months after it was filed. Plaintiff also contended that defendant failed to allege facts demonstrating a meritorious defense to the claim.

Following a hearing, an order was entered on May 15, 1991, which denied defendant’s motion and dismissed defendant’s counterclaim. Defendant then filed a motion to reconsider this ruling which was denied on July 2,1991. This timely appeal followed.

We initially note that plaintiff has not filed a brief in this matter. We will, however, consider the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128. We also note that the record does not include a report of proceedings or bystander’s report for any of the proceedings in this cause. Nevertheless, because there was no testimony given, transcripts of the hearings regarding defendant’s motion are not vital to a review of the question whether defendant’s motion to vacate the default judgment should have been granted, and the record is adequate for such review. See In re B.H. (1991), 218 Ill. App. 3d 583, 586; McNames v. Rockford Park District (1989), 185 Ill. App. 3d 291, 293.

Defendant first argues that his motion to vacate the default judgment should have been granted because the default was entered without notice to him, after he filed his appearance, and was therefore void. Defendant contends that the procedure in this cause violated fundamental due process and that, therefore, the court was without inherent authority to enter the default judgment. Defendant also argues that the judgment was void because he was not given immediate notice of the default as required by section 2 — 1302(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1302(a)). We cannot agree.

It is well established that a judgment is void when it is entered by a court which lacks jurisdiction of the parties or of the subject matter, or by a court which lacks the inherent power to enter the particular order involved. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309.) A void judgment may be attacked at any time, either directly or collaterally. (R.W. Sawant, 111 Ill. 2d at 309.) However, a “judgment that is merely erroneous is not void and is not subject to collateral attack.” American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 919; see also Potenz Corp. v. Petrozzini (1988), 170 Ill. App. 3d 617, 620.

In Spencer, two of the defendants filed special and limited appearances objecting to personal jurisdiction over them, and one of the defendants filed an answer to the complaint. (Spencer, 100 Ill. App. 3d at 918.) The trial court subsequently entered an order which found that it had personal jurisdiction over the defendants and set the case for status. The status date was later changed, without notice to the defendants. The defendants did not appear on the status date and were found to be in default for failure to appear or plead. Spencer, 100 Ill. App. 3d at 919.

The defendants in Spencer also argued that the default judgment entered against them was void because of the lack of or defective notice of proceedings. (Spencer, 100 Ill. App. 3d at 919.) The appellate court disagreed, noting that Illinois’ courts have held that a defaulted party is not entitled to notice of a plaintiff’s intention to move for default. (Spencer, 100 Ill. App. 3d at 920; see also Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 914; Limar-Pinehurst, Inc. v. Welter (1976), 38 Ill. App. 3d 800, 804-05 (judgment denying the defendant’s motion to vacate a default judgment affirmed where the default was entered after the defendants filed a written appearance but did not file an answer).) In this cause, defendant could be considered technically in default, based upon the language on the front of the summons, because he did not file an answer before the return date or personally appear on the return date. The failure to notify defendant prior to the entry of the default judgment therefore did not render the judgment void.

The court in Spencer also noted that the failure to notify a defendant after a default judgment has been entered does not render it void. (Spencer, 100 Ill. App. 3d at 920; see also Kaput v. Hoey (1988), 124 Ill. 2d 370, 379; Flisk v. Central Area Park District (1990), 203 Ill. App. 3d 253, 258.) Based on Spencer, we conclude that, while the default judgment entered in this cause may have been erroneous, it was not void. The cases cited by defendant do not persuade us to the contrary. He has cited cases which deal with a situation where orders were held void when entered without notice to a party not found in default (see Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 881) or a situation where orders were held void when notice was not given pursuant to section 2 — 604 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 604), which requires notice to a defaulted party when relief is sought beyond that prayed for in the original pleading (see Rauscher v. Albert (1986), 145 Ill. App. 3d 40, 46-47). Neither of those situations is present here.

Defendant next argues that his motion was properly brought pursuant to section 2 — 1301(e) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e)) and should have been granted because substantial justice supports vacating the judgment. Section 2 — 1301(e) provides:

“(e) The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e).

Defendant’s motion was not filed within 30 days after the entry of the default judgment. Defendant contends, however, that section 2— 1301(e) still applies because the default judgment entered on April 25, 1990, was not “final.” He argues that this is true because his timely counterclaim, filed May 2, 1990, was still pending. Defendant therefore asserts that his motion was filed “before final order or judgment” and should have been granted pursuant to section 2 — 1301(e).

We agree with defendant that section 2 — 1301(e) applies if the default is not a final order. (See Hall v. Jacobs, Camodeca & Timpone (1985), 134 Ill. App. 3d 516, 520; In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1063.) We must therefore determine whether the default entered in this cause was final. A “ ‘judgment is final if it decides the controversy between the parties on the merits and fixes their rights, so that, if the judgment is affirmed, nothing remains for the trial court to do but to proceed with its execution.’ ” (People v. Kuhn (1988), 126 Ill. 2d 202, 207, quoting In re J.N. (1982), 91 Ill. 2d 122, 127; see also Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334-35.) At the time the default judgment in this cause was entered, it was clearly a final judgment because it entered judgment in favor of plaintiff and set the amount of damages, thereby fixing the rights of the parties. There was nothing else pending.

We recognize that there is some logic to defendant’s argument that his counterclaim was “pending” at the time he filed his motion to vacate so there had not been a final resolution of the litigation. However, defendant has cited no factually equivalent authority for his contention that the filing of a counterclaim, after a default judgment setting damages was already entered, causes the default judgment to become a nonfinal order. We decline to so hold. A trial court loses jurisdiction over a final judgment unless, within 30 days after its entry, a timely motion directed against the judgment is filed. (134 Ill. 2d R. 303(aXl); see also Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 115.) In this cause, the default judgment was final when it was entered. Defendant did not file a “motion directed against the judgment” within 30 days, but only filed his answer and counterclaim. We therefore conclude that defendant’s section 2 — 1301(e) motion was not timely.

Defendant finally argues that he was entitled to relief pursuant to section 2 — 1401 of the Code. We agree. As we have determined that the default judgment in this cause was not void and was final when entered, defendant’s motion to vacate, filed more than 30 days after its entry, must be construed as a petition for relief from a final judgment under section 2 — 1401 of the Code. Northern Illinois Gas, 199 Ill. App. 3d at 115.

We conclude that defendant’s section 2 — 1401 petition should have been granted because the default judgment was erroneously entered. The judgment stated that summons was served on defendant and that defendant failed to appear. However, defendant had, in fact, filed a written appearance the day before the default judgment was entered. We recognize that plaintiff argued in the trial court that defendant was in default because he failed to file an appearance and answer and also failed to appear personally on the return date. However, the default judgment was based on a finding that defendant totally failed to appear. This finding was erroneous.

Defendant did appear prior to the entry of the default judgment, and his motion to vacate should have been granted in the interest of justice and fairness. A default judgment should be vacated pursuant to section 2 — 1401 when it is entered under unfair or unjust circumstances. (See Romito v. Williamson (1989), 180 Ill. App. 3d 142, 145.) “One of the guiding principles *** in the administration of section 2— 1401 relief is that the petition invokes the equitable powers of the circuit court, which should prevent enforcement of a default judgment when it would be unfair, unjust, or unconscionable.” Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225; see also Halle v. Robertson (1991), 219 Ill. App. 3d 564, 569.

Typically, a determination regarding whether a section 2 — 1401 petition to vacate a default judgment should be granted depends on whether the allegations in the petition have adequately established the existence of a meritorious defense, due diligence in presenting the defense in the original action and due diligence in filing the section 2— 1401 petition. (See Airoom, 114 Ill. 2d at 220-21.) Under these unique circumstances, however, where the default judgment was erroneously entered, we need not determine whether defendant adequately established the exercise of due diligence and the existence of a meritorious defense.

We do note, however, that the record supports defendant’s claim that he exercised due diligence both in presenting his defense to the circuit court and in filing the section 2 — 1401 petition for relief. Defendant filed his written appearance 13 days after he was served with summons, and his answer and counterclaim were filed only 21 days after the service date. This was in compliance with the language defendant alleged was included on the summons he received. Plaintiff did not notify defendant that a default judgment was entered until two months after its entry. The fact that plaintiff did not give defendant immediate notice of the entry of the default order as required by section 2 — 1302(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1302(a)) is a factor to consider in determining whether a defendant exercised due diligence. (See Genesis & Sons, Ltd. v. Theodosopoulos (1991), 223 Ill. App. 3d 276, 281-82.) Only a month after he became aware of the judgment, defendant filed his motion to vacate the default judgment.

For the foregoing reasons, we conclude that the trial court abused its discretion in denying defendant’s petition for relief pursuant to section 2 — 1401. Accordingly, the judgment of the circuit court of Lake County is reversed, and this cause is remanded.

Reversed and remanded.

WOODWARD and DUNN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    NELLIE M. BURKE, Plaintiff-Appellant, v. NICK GRILLO et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0739
    Opinion filed April 1, 1992.

      Howard S. Miller and Thomas J. Stiberth, both of Howard S. Miller & Associates, of Elgin, for appellant.
    Michael Resis and Julie L. Trester, both of Querrey & Harrow, Ltd., of Chicago, and John G. Foreman, of Querrey, Harrow & Callahan, RC., of Geneva, for appellee Nick Grillo.
    Larry A. Mancini and Thomas J. Long, both of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellee City of Elgin.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Nellie M. Burke, appeals from an order of the circuit court of Kane County which granted the motions for summary judgment filed by defendants, the City of Elgin (City) and Nick Grillo. Plaintiff has raised three issues on appeal: (1) whether Grillo, plaintiff’s landlord, owed a duty to plaintiff to maintain in a reasonably safe condition the area where she fell; (2) whether the City owed plaintiff a duty to maintain in a reasonably safe condition the area where she fell; and (3) whether the City had constructive notice of the defective condition on the property so that it was not immune from liability pursuant to section 3 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102).

Plaintiff filed her complaint against defendants on May 3, 1990. Plaintiff alleged that, on May 12, 1989, she was injured when she fell onto a sidewalk because of a defective condition of the sidewalk. In count I, plaintiff alleged that the City was negligent because it had a duty “to exercise reasonable care and diligence to keep and maintain the public sidewalk in a reasonably safe condition for ordinary use” but “caused or permitted the said sidewalk to be and remain in a poor state of construction in that it was not level with the grade of the area around it so that it was unsafe for public use.”

In count II, plaintiff alleged that defendant Grillo “owned, managed, controlled and maintained” the property at 821 Bode Road in Elgin, Illinois. She alleged that he had a duty to keep and maintain his property in a reasonably safe condition but “caused or permitted the property to be and remain in a poor state of construction and disrepair in that he allowed the property to exist with a large difference in grade between the grass and the sidewalk.” Plaintiff sought damages for her injuries from both defendants.

Each of the defendants filed an answer to the complaint. Grillo filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005) on January 4, 1991. Grillo alleged that the area where plaintiff fell was not located upon premises which he owned. He alleged that a plat of survey certified by a registered land surveyor showed that the area of the “dip” was approximately seven feet from his premises. He argued that, as the plaintiff’s fall did not occur upon property owned by him, there was no factual issue regarding any duty owed to plaintiff. Grillo attached a copy of a transcript of plaintiff’s deposition, taken December 6, 1990, to the motion. He also attached the plat of survey.

The City filed its motion for summary judgment on January 17, 1991. The City argued that it had no duty to maintain its property for pedestrians injured while walking on property outside of designated crosswalks or walkways. It also contended that, even if a duty existed, there was no liability on its part because it did not have actual or constructive notice of the defect as required by section 3 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102). The City attached to its motion a copy of the transcript of plaintiff’s deposition, a copy of the transcript of Grille’s deposition, taken November 15, 1990, and the amended affidavit of Melford Dahl.

In her deposition, plaintiff testified that she was 72 years old. She had lived for more than 10 years in an apartment in a 16-unit apartment building located at 821 Bode Road. She baby-sat for her granddaughter, Ryan Burke, while her daughter worked. On the day of the incident, she was outside in front of the apartment building with her granddaughter. Ryan was 5V2 years old at that time. Ryan was bouncing a beach ball, and the ball began rolling toward the street. Plaintiff began walking fast to get the ball. Her foot caught in a big dip next to the sidewalk. She fell and fractured her wrist. Plaintiff also stated that her glasses fell off when she fell. She wears glasses because she is nearsighted.

Plaintiff initially stated that she did not know how big the hole was and could not describe the size of the hole. She later indicated, however, that the hole was approximately 2V2 to 3 inches deep and was 2V2 to 3 feet long. She stated that she walked on the sidewalk in front of her apartment building on a daily basis. She had never noticed the dip prior to the date of the incident “because the grass was growing up there.” She did not know anyone who had fallen in that area prior to the May 12, 1989, incident. She testified that Grillo cut the grass in front of the apartment and that Grillo maintained the grass on a regular basis. Grillo or his son shoveled the sidewalk in front of the apartment building.

In his deposition, Grillo testified that he or his son cut the grass at the apartment building. They mowed the part of the lawn which contained the dip. To his knowledge, no one else had ever fallen at that spot.

Photographs of the property were identified by plaintiff during her deposition, and copies of the photographs were attached to the transcript of the deposition. The photographs and the plat of survey show that a sidewalk runs from the front door of the apartment building to the street. There is grass growing on either side of the sidewalk. Another sidewalk runs parallel to and right next to the street in front of the building. A portion of the grassy area next to this sidewalk belongs to the City. Plaintiff pointed out on the photographs that she fell close to the sidewalk next to the street, on the property owned by the City.

Dahl stated in his affidavit that he was city engineer for the City. He further stated:

“2. That in my capacity as City Engineer, I am familiar with the records maintained by the CITY OF ELGIN with respect to defects which were found to exist on property owned by the City.
3. That a review of these records reveals that, prior to May 12, 1989, the CITY OF ELGIN had never received any notice of a defect existing on or about the property owned by the City adjacent to 821 Bode Road and had no actual knowledge of any defect existing at that location.
4. That there are in excess of five hundred (500) miles of sidewalks and parkways in the CITY OF ELGIN.”

Plaintiff filed a response to each defendant’s motion for summary judgment. Attached to her response to the City’s motion were the affidavits of Howard Burke, plaintiff’s husband, and Sandra Burke, plaintiff’s daughter. Both Sandra and Howard stated that they were familiar with the area in which plaintiff “alleges to have fallen.” Both affidavits also stated that “this area contains a rut approximately two and a half feet long, eight inches wide and four inches deep” and that the rut existed in this area of the premises for more than a year prior to plaintiff’s fall. Plaintiff argued that, based on these facts, the City had constructive notice of the condition given the description of the condition and the length of time it existed.

Both defendants filed a reply to plaintiff’s argument, and a hearing regarding both defendants’ motions for summary judgment was subsequently held. The court granted summary judgment to both defendants. This timely appeal followed.

On appeal, plaintiff first argues that summary judgment should not have been entered in favor of Grillo because the area in which she fell was a common area controlled and maintained by Grillo. She contends, relying on Smith v. Rengel (1981), 97 Ill. App. 3d 204, that Grillo therefore owed her a duty to keep and maintain this area in a reasonably safe condition even though it was just beyond the premises actually owned by Grillo.

Grillo argues that summary judgment was properly granted in his favor, noting that summary judgment is proper when the undisputed facts demonstrate that a defendant owed the plaintiff no duty. He asserts that he owed no duty to plaintiff in this cause because the facts established that he did not own the property abutting the public sidewalk or cause the “dip” next to the sidewalk where plaintiff fell. He contends that, under these circumstances, he had no duty to maintain or repair the property which was under the control of a municipality. He relies on Thiede v. Tambone (1990), 196 Ill. App. 3d 253, Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, and Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party to summary judgment is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact which should be tried. (Purtill, 111 Ill. 2d at 240.) In making this determination, the evidence is to be construed strictly against the moving party and liberally in favor of the opponent. Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.

Therefore, the first issue before us is whether a genuine issue of material fact exists regarding plaintiff’s claim of negligence against Grillo, precluding summary judgment. To state properly a cause of action for negligence, a plaintiff must establish that the defendant owed her a duty of care, that there was a breach of that duty by the defendant, and that the plaintiffs injury was proximately caused by the breach. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6.) “The question of whether the defendant owed the plaintiff a duty of care is a question of law to be determined by the court.” (Marshall, 143 Ill. 2d at 6.) In the absence of a showing of facts from which the court could infer the existence of a duty to the plaintiff, no recovery is possible as a matter of law, and summary judgment in favor of the defendant is proper. Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.

We therefore agree with Grillo that summary judgment is proper where the court determines, as a matter of law, that the defendant does not owe the plaintiff a duty of care. We also conclude that the trial court correctly determined that Grillo did not owe plaintiff a duty under these circumstances.

We recognize that the court in Smith v. Rengel (1981), 97 Ill. App. 3d 204, found that the defendant landlord owed a duty to the guest of one of his tenants under very similar facts. In Smith, the guest was injured when he stepped into a hole next to the sidewalk. (Smith, 97 Ill. App. 3d at 205.) The hole was located in a boulevard owned by the City of Bloomington.

The court in Smith first noted that “where a landlord reserves a portion of his premises for common use with his tenants, he is under a duty to use ordinary care to keep that portion in a reasonably safe condition.” (Smith, 97 Ill. App. 3d at 205-06.) The Smith court then stated that this “duty owed by the landlord has been extended beyond the naked and precise property lines to include means of ingress and egress.” (Smith, 97 Ill. App. 3d at 206, citing Cooley v. Makse (1964), 46 Ill. App. 2d 25, and McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345.) The court then determined that there was evidence in the record that the landlord’s wife and son had mowed the grass in the boulevard, had shoveled snow from it, and had filled any holes found in it with dirt. It concluded that “[s]uch evidence of control is sufficient to raise a duty in law on the adjacent landowner to use ordinary care to maintain the boulevard in a reasonably safe condition for his tenants and their invitees and social guests.” Smith, 97 Ill. App. 3d at 206.

In this cause, also, Grillo and his son mowed the grass and shoveled the snow from the area where the hole was located. However, we decline to hold that these facts alone established a duty on the part of Grillo to maintain property belonging to the City. We conclude that the court in Smith interpreted our decisions in Cooley and McDonald too broadly.

In Cooley, we held that both the operator and the owner of a tavern owed a duty to a patron who fell on a brick walk which was adjacent to the tavern but was owned by the City of La Salle. (Cooley, 46 Ill. App. 2d at 32.) The walk ran from the sidewalk along the street to the front entrance of the building. The only purpose of the walk was to provide ingress and egress to the tavern building. (Cooley, 46 Ill. App. 2d at 28.) We noted that, based on that fact, the use of this walk was factually much different from that enjoyed by the general public on a normal sidewalk, street or public way. {Cooley, 46 111. App. 2d at 28.) We recognized the general rule that an owner of land is not liable for injuries occurring upon land not owned or occupied by him, but determined that “[ujnder the peculiar facts of this case *** the duty of the defendants *** to their invitees extends beyond naked and precise property lines.” Cooley, 46 Ill. App. 2d at 30-31.

In McDonald, the plaintiff was injured when she stepped into a hole in a parkway owned by the City of Elgin. The parkway was located by a public sidewalk across from the parking lot maintained by the defendant for its tavern and bowling patrons. (McDonald, 1 Ill. App. 3d at 348.) We determined that the property owner owed a duty of care to the plaintiff, noting that the evidence revealed that the defendant assumed control of the public sidewalk and parkway for the ingress and egress of its patrons and used the sidewalk for parting purposes, thereby blocking the sidewalk and preventing its normal use. McDonald, 1 Ill. App. 3d at 352.

The general rule is that an owner or occupier of premises is not liable for personal injuries incurred on a public sidewalk which is under the control of a municipality. (Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 534.) McDonald and Cooley have been interpreted as holding that an owner or occupier of premises has a duty to insure that a public sidewalk is safe only when it appropriates the sidewalk for its own use. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 432.) We recently agreed with this interpretation in Thiede v. Tambone (1990), 196 Ill. App. 3d 253, 260.

In Thiede, the plaintiff was a jogger who fell on a portion of the sidewalk which intersected with the driveway of the defendant’s apartment building. (Thiede, 196 Ill. App. 3d at 255.) We held that the defendant apartment owners did not have a duty to maintain and repair the public sidewalk. (Thiede, 196 Ill. App. 3d at 261.) We stated:

“[T]he record does not establish that defendants affirmatively appropriated or assumed a special use of the sidewalk. There is no evidence to suggest that defendants prevented the general public from using the sidewalk in any way, or that defendants obstructed the sidewalk, parked on the sidewalk or conducted business thereon. [Citations.] We conclude that defendants did not appropriate the public sidewalk for a special use or business purpose. In the absence of such a conclusion, the law will not impose a duty on defendants to maintain and repair the public sidewalk.” Thiede, 196 Ill. App. 3d at 261.

We went on to state, however, that an abutting landowner does have a duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk. (Thiede, 196 Ill. App. 3d at 261-62.) We determined that the plaintiff in Thiede had alleged sufficient evidence that the defendants caused the defective condition of the sidewalk to survive the defendants’ motion for summary judgment. Thiede, 196 Ill. App. 3d at 263-64.

In this cause, there is no evidence that Grillo affirmatively appropriated the public sidewalk or the city-owned area beside it for his own use. There is also no evidence that Grillo caused the hole by the sidewalk. Based on Thiede, the trial court correctly determined that Grillo did not owe a duty of care to plaintiff. In her reply brief, however, plaintiff argues that Dodd and Thiede are inapplicable to this situation because they involved plaintiffs injured on public sidewalks rather than a grassy area beside a sidewalk. Plaintiff has not explained why this makes a difference, and we are not persuaded that a landlord has a greater duty regarding city-owned property beside a sidewalk than regarding the public sidewalk itself. We note that McDonald, which was relied on by the courts in Dodd and Thiede, did involve a hole in a parkway. We therefore conclude that our reasoning in Thiede is applicable to this situation and decline to follow the broad holding of Smith.

Plaintiff next argues that the trial court erred in granting summary judgment in favor of the City. Plaintiff maintains that the City owed her a duty to guard against the condition which gave rise to her fall and that the City had constructive notice of the defect.

We recognize that Illinois’ courts have held that municipalities have a duty of care to maintain in a reasonably safe condition parkways and other areas intended for limited pedestrian use. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 9-10; Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, 94-95; Griffin v. Village of Willowbrook (1991), 212 Ill. App. 3d 211, 213-14.) However, we need not determine whether such a duty existed based upon these facts because we conclude that plaintiff did not establish that the City had notice of the condition as required by section 3 — 102 of the Act.

The tort liability of a municipality is governed by the Tort Immunity Act. (West v. Kirkham (1992), 147 Ill. 2d 1, 5; see also Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411-12.) The purpose of the Act is to protect local governments and their employees from liability arising out of the operation of government, and the Act therefore grants immunities and defenses. (Vesey, 145 Ill. 2d at 412, citing Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1.) Section 3 — 102(a) of the Act provides that a local public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” 111. Rev. Stat. 1989, ch. 85, par. 3 — 102(a).

Plaintiff argues that, given the description of the condition along with the length of time it existed, the City, through the exercise of due diligence and reasonable care, would have come to know of this condition prior to plaintiff’s fall. We cannot agree.

Constructive notice under section 3 — 102(a) of the Act “is established where a condition has existed for such a length of time, or was so conspicuous, that authorities exercising reasonable care and diligence might have known of it.” (Finley v. Mercer County (1988), 172 Ill. App. 3d 30, 33; see also Coultas v. City of Winchester (1991), 208 Ill. App. 3d 238, 240.) The burden of proving notice is on the party charging it. Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 774.

In arguing that a genuine issue of material fact exists regarding whether the City had constructive notice of the hole which caused plaintiff’s fall, plaintiff is apparently relying on the description of the hole she gave in her deposition and the affidavits of Howard and Sandra Burke. The affidavits described the hole as being 21/a feet long, 8 inches wide and 4 inches deep. Both affidavits also stated that the hole existed for more than a year prior to plaintiff’s fall. Neither affidavit, however, stated that this rather shallow hole was conspicuous or even that either of the affiants had seen the hole prior to the accident. Plaintiff testified that she did not notice the hole, even though she walked by it on a daily basis, “because the grass was growing up there.”

We conclude that plaintiff failed to meet her burden to provide facts showing that the City had constructive notice of the condition. As no genuine issue of material fact existed regarding constructive notice, summary judgment was properly granted for the City. We find substantial support for this conclusion in Pinto. In that case, the plaintiff fell in a hole on a parkway belonging to the Village of Alsip. The parkway was in front of an apartment building. One of the owners of the building testified that she never saw the hole prior to the accident even though she mowed and fertilized the lawn five days before the injury. The other owner testified that he filled the hole both times it appeared but did not notice any hole when he mowed the lawn a month or two before the accident. After the accident, the hole was found to be about five or six feet deep. (Pinto, 168 Ill. App. 3d at 772-73.) The court stated:

“Under these circumstances, we find that [the plaintiff] failed to present sufficient evidence that the hole was plainly visible or that the hole was apparent for so long a time prior to the injury to permit an inference that the Village was constructively notified of the existence of the hole. [Citation.] It would be an unreasonable burden to place upon the Village to expect it to inspect for holes in a parkway lawn, absent any notice that a hole existed in the parkway lawn or absent any notice that a defect in one of its systems might cause a dangerous condition on the parkway.” Pinto, 168 Ill. App. 3d at 775.

We conclude that the same reasoning applies in this cause. Here, as noted, there was likewise no evidence that the hole was plainly visible or that it was apparent for a long time prior to the injury.

In her reply brief, plaintiff argues that, as she is a grandmother in her 70’s, her failure to take notice of the defect was due to her poor powers of observation. She contends that it is therefore inappropriate to substitute her observations “with the standard of inspection to which a municipality is held.” We find this argument patently without merit. While plaintiff testified that she wears glasses because she is nearsighted, there was no evidence presented by plaintiff that her powers of observation are in any way impaired when she is wearing her glasses. We decline the invitation to assume that the abilities of a 72-year-old grandmother to observe are inferior to those of anyone else.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

GEIGER and NICKELS, JJ., concur.


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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY W. PETERSON, Defendant-Appellant.
    Second District
    No. 2 — 90—0530
    Opinion filed March 30, 1992.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Gary Peterson, pleaded guilty to one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. BQVz, par. 1402(b)), one count of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. SGVa, par. 1401(a)(2)), and one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A— 2). The circuit court of McHenry County sentenced defendant to a prison term of 18 months for the unlawful possession count, 11 years and $75,000 fíne for the unlawful delivery count, and 6 years for the armed violence count. On appeal, defendant argues that (1) the armed violence conviction must be vacated because it was based upon the same act as the unlawful delivery conviction, (2) the armed violence conviction should be reduced to a Class 2 felony if it is not vacated, (3) the trial judge relied upon improper factors in aggravation at sentencing, and (4) he is entitled to credit toward his fine for the days he was incarcerated on a bailable offense in accordance with section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14). We affirm in part and vacate in part.

On May 12, 1989, a police officer met with defendant and White (codefendant) in order to carry out a prearranged drug transaction. While in his car, defendant handed the officer two ounces of cocaine. The officer returned the cocaine and walked away from the car, allegedly to get $2,300 to accomplish the deal. The police then arrested defendant. The police found an unloaded gun in the car and an additional gram of cocaine in defendant’s personal property. At sentencing, defendant admitted that he was to be paid $200 to give White a ride in order to carry out the drug deal. Defendant also admitted that he received $60 to $80 before the transaction took place.

The presentence report stated that defendant had snakes and serpents tattooed on both his forearms. This was shown to be incorrect at the sentencing hearing when defendant held up his arms and showed the court that he did not have these tattoos. The prosecution stated that defendant was the subject of an ongoing investigation and had been involved in a previous drug deal and in conversations arranging drug deals. Defendant denied such involvement and contended that the State’s information was incorrect and was a matter of mistaken identity. Defendant also denied the accuracy of references in the presentence report that he had outstanding warrants for traffic offenses in Lake County. In support of this contention, defendant stated that he was called to court twice for DUIs allegedly committed while he was in custody for the present offense. Defendant also objected to the characterization of his criminal record by the presentence report as “lengthy,” when, in fact, he only committed two alcohol-related offenses as a minor and had been convicted of three criminal offenses as an adult. Finally, defendant objected to information in the presentence report indicating that he used an alias and that he maintained a Mexican bank account.

Defendant first argues that the armed violence conviction must be vacated because it was based upon the same act as his conviction of unlawful delivery of a controlled substance. The general rule is that where there is a single act there can be but one conviction of a crime. (People v. Donaldson (1982), 91 Ill. 2d 164, 168.) Therefore, if defendant’s armed violence conviction is based upon the same act as his conviction of unlawful delivery of a controlled substance, then one of these convictions must be vacated.

According to the Criminal Code of 1961, “[a] person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A — 2.) In Donaldson, the court identified the policy underlying this statute as one which seeks to “increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony.” (Donaldson, 91 Ill. 2d at 168.) In Donaldson, the court held that convictions of both armed violence and aggravated battery causing great bodily harm were improper. The court explained that the underlying felony charge, aggravated battery causing great bodily harm, “does not require proof of a fact in addition to those required to prove the offense of armed violence based on the underlying felony of aggravated battery causing great bodily harm.” (Donaldson, 91 Ill. 2d at 170.) Thus, the court held that the aggravated battery felony becomes an included offense upon conviction of the armed violence charge.

In contrast, in People v. Green (1990), 199 Ill. App. 3d 927, the defendant was convicted of and sentenced for (1) armed violence predicated on unlawful possession of a controlled substance; and (2) unlawful possession of a controlled substance with intent to deliver. The intent to deliver charge was not held to be an offense included in the armed violence charge because the armed violence charge was predicated upon unlawful possession, not unlawful delivery. Because the defendant was carrying separate parcels of controlled substances, the two acts of possession and delivery could be viewed as separate and distinct, and defendant could be convicted of and sentenced for each of them. Green, 199 Ill. App. 3d at 932.

In the present case, defendant’s armed violence conviction was predicated upon unlawful delivery. Thus, it arose out of the same act underlying the unlawful delivery conviction.

Under these circumstances, the general rule is that judgment should be entered and sentence imposed on the more serious offense. (Donaldson, 91 Ill. 2d at 170.) The present case poses some difficulty in this respect because one would normally expect an act involving the delivery of a controlled substance to be more serious when such an act is performed while the actor is armed. However, the trial judge in the present case sentenced defendant to 11 years on the unlawful delivery conviction but to only 6 years on the armed violence conviction. However, in Donaldson, the court considered that the armed violence statute was intended to enhance the mandatory minimum sentence to be imposed upon conviction of a felony. (Donaldson, 91 Ill. 2d at 169.) Before presenting our own resolution of the matter, we examine the approaches other courts have taken when addressing multiple convictions and sentences for single acts.

The most basic approach to sentencing for convictions involving an included offense is simply to hold that the predicate felony conviction is void and, therefore, must be vacated. (People v. Johnson (1990), 200 Ill. App. 3d 1018.) However, other courts have more closely examined the elements of the offenses committed in order to determine which is more serious. For example, in People v. Edwards (1988), 167 Ill. App. 3d 324, the court vacated the defendant’s armed violence conviction because the predicate felony of attempted murder was viewed as a specific intent crime and was deemed more serious than the general intent crime of armed violence. Likewise, in People v. Olsen (1987), 161 Ill. App. 3d 945, we vacated an armed violence conviction which we considered to be less serious than an aggravated criminal sexual assault. Finally, our supreme court noted that, where both the armed violence and its predicate felony are Class X offenses, the defendant may be convicted of and punished for either offense, “since neither is ‘more serious’ than the other.” People v. Simmons (1982), 93 Ill. 2d 94, 98; see also People v. Richards (1983), 118 Ill. App. 3d 550, 553.

In the present case, we view defendant’s conviction of unlawful delivery of a controlled substance as the more serious offense. Therefore, we vacate defendant’s conviction of armed violence predicated upon unlawful delivery of a controlled substance. In effect, we defer to the trial judge’s determination that defendant’s conviction of the specific intent crime of unlawful delivery of a controlled substance was more deserving of a greater sentence than the general intent crime of armed violence. In light of this determination, it is unnecessary to address defendant’s request that the armed violence conviction be reduced to a Class 2 felony. Furthermore, because separate sentences were imposed, we see no need to remand for resentencing on this issue. People v. Payne (1983), 98 Ill. 2d 45.

Defendant next argues that his 11-year sentence was excessive where the court considered compensation received as an aggravating factor in sentencing. According to People v. Conover (1981), 84 Ill. 2d 400, compensation should not be considered as an aggravating factor for offenses such as burglary where compensation is implicit in the crime itself. Thus, the proceeds of the crime itself cannot be viewed as a form of compensation which could aggravate criminal sanctions because such proceeds were already accounted for by the legislature in defining the crime of burglary. However, Conover distinguishes such proceeds of the crime from payments made to commit the crime by pointing out that the legislature “intended to impose a harsher sentence on one who is paid to commit a burglary or theft than on one who commits it on his own volition.” (Conover, 84 Ill. 2d at 405.) Thus, there is a difference between receiving proceeds of the crime and being paid or hired to commit the crime. The latter may be considered in aggravation; the former may not.

In the present case, defendant testified that he collected between $60 and $80 before the drug transaction took place. It would appear then, from defendant’s own testimony, that he was hired to partake in the offense. Under these circumstances, Conover would dictate that compensation is not an improper factor to be considered in aggravation at sentencing. Because defendant here received remuneration beyond the proceeds of the crime itself, we determine that the receipt of compensation was a proper factor to consider in aggravation at sentencing. See People v. Kendall (1991), 213 Ill. App. 3d 782, 789; People v. Verser (1990), 200 Ill. App. 3d 613, 621; People v. Hunt (1981), 100 Ill. App. 3d 553, 558.

Defendant next argues that the imposition of an 11-year prison term for unlawful delivery of a controlled substance was excessive where the court considered unverified information about defendant’s criminal record and character in aggravation but ignored the mitigating factors that this was defendant’s first drug offense and that defendant demonstrated responsibility with his work and his son. We determine that defendant’s claim with respect to the trial court’s reliance on unverified information in the presentence report is not supported by the record. While defendant did receive a somewhat lengthy sentence, such a decision was well within the discretion of the trial court. Such a sentence is not, by itself, evidence that improper reliance was placed upon inaccurate information which the defendant effectively rebutted at sentencing. Moreover, considering that defendant could have received a 30-year sentence for the Class X offense he committed, 11 years do not appear to be an abuse of discretion.

Finally, defendant argues that he is entitled to $1,215 of credit toward his $75,000 fine in light of section 110 — 14 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14). Section 110 — 14 provides that any person incarcerated on a bailable offense who does not supply bail is entitled to a credit toward levied fines of $5 a day for each day so incarcerated. The State agrees that defendant is entitled to $1,215 credit toward his $75,000 fine because of the 243 days he was incarcerated from the time of his arrest until sentencing. Because defendant was in compliance with section 110 — 14 and because the State concedes this point, we hold that defendant should receive a $1,215 credit toward his $75,000 fine pursuant to section 110 — 14 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14).

The judgment of the circuit court of McHenry County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

GEIGER and NICKELS, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBIN K. STEWART, Defendant-Appellant.
    Second District
    No. 2 — 90—0426
    Opinion filed March 30, 1992.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, and Dwight H. O’Keefe, of Brown, Hay & Stephens, of Springfield, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan (Williám L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury in the circuit court of Lake County convicted defendant, Robin Stewart, of attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — l(aXl)) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2), and the court sentenced him to a term of 34 years’ imprisonment. Defendant appeals, contending (1) that the court erred in refusing to declare a mistrial for the State’s noncompliance with discovery and (2) that the court erred in sentencing him to an extended term.

At the center of this case is a love triangle. Defendant was indicted for the attempted murder of David Moffat. Moffat was engaged in a relationship with Desiree Tarello. Defendant and Tarello had previously cohabited and had a child, Robin, Jr., together. The evidence demonstrated that defendant was jealous of Tarello’s relationship with Moffat.

On August 31, 1989, Moffat was baby-sitting Robin, Jr., at Tarello’s apartment. He had relieved Eric Petersen, a neighbor of Tarello’s, who had been watching him earlier in the evening. Late that evening or early the next morning, defendant let himself into the apartment with a key. Moffat testified that he arose to shake defendant’s hand and defendant began stabbing him with a knife. Defendant testified that Moffat was the aggressor. According to defendant, Moffat attacked him with a pool cue, and defendant drew his knife merely to keep Moffat away from him. Moffat eventually collapsed and defendant left the apartment.

Moffat was taken to the hospital. Two doctors, the emergency room physician and a surgeon, described Moffat’s wounds and his treatment. The surgeon, Dr. Ryan, noted 21 to 22 separate injuries. The emergency room doctor, Dr. Gillespie, opined that if Moffat had not received immediate medical attention, he would have died from his wounds. Police officers described finding Moffat in a pool of blood and finding a trail of blood throughout the apartment.

Based on this evidence, the jury found defendant guilty of attempted murder and armed violence. Finding that the offense was committed in an exceptionally brutal and heinous fashion, the court sentenced defendant to an extended-term sentence of 34 years’ imprisonment. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(b)(2), 1005 — 8—2(a)(2).) The court denied defendant’s post-trial motion, and he appeals.

Defendant’s first contention on appeal is that the court committed reversible error in denying his motion for a mistrial based on the State’s failure to comply with discovery. In response, the State does not contend that no violation occurred, but argues that a mistrial was too severe a sanction under the circumstances and that defendant declined to avail himself of less drastic remedies.

Prior to trial the court entered an order requiring the State to provide defendant with, among other things, “any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements.” (See 134 Ill. 2d R. 412 (a)(ii).) At trial defendant raised, among other things, the issue of self-defense. On direct examination, Moffat testified that sometime prior to August 31 he had a telephone conversation with defendant in which defendant said, “come on over, Dave, come on over, *** I’m going to kick your mother f-— ass.” Defendant immediately moved for a mistrial on the ground that the State had not provided the substance of this oral statement in discovery in violation of Rule 412 and the court’s order.

Although the prosecutor claimed that he had orally complied with discovery, the court apparently believed that the statement should have been turned over and was not. The court stated it would bar further testimony and instruct the jury to disregard the remark already made. Defense counsel responded that he did not want the testimony barred. The court thereafter recessed the trial to allow defense counsel to interview the witness. Defendant did not request a further continuance, but renewed his demand for a mistrial.

Defendant contends that the court should have declared a mistrial based on the State’s violation of Rule 412. The State responds that, even if Rule 412 was violated, defendant waived this issue by failing to request a continuance and, in any event, the sanction of a mistrial was too severe.

Supreme Court Rule 415 provides an array of sanctions for a discovery violation. (134 Ill. 2d R. 415.) The court can order disclosure, grant a continuance, exclude the evidence or enter such an order as seems just under the circumstances. The correct sanction to be applied is left to the trial court’s discretion, and the judgment of the trial court is given great weight. (People v. Morgan (1986), 112 Ill. 2d 111, 135; People v. Weaver (1982), 92 Ill. 2d 545, 558-59.) Declaring a mistrial is a “drastic sanction”; generally a trial court can, by sustaining an objection and instructing the jury to disregard the statement, cure any error. (Morgan, 112 Ill. 2d at 135.) A new trial for a discovery violation should only be granted where defendant is prejudiced and the trial court fails to eliminate the prejudice. People v. Eliason (1983), 117 Ill. App. 3d 683, 693.

In the instant case, defendant has simply failed to demonstrate any prejudice from the alleged discovery violation. The trial court offered defendant the most severe sanction available short of a mistrial: exclusion of the evidence and an instruction to the jury to disregard the statement it had already heard. Defense counsel rejected this sanction because he wanted the statement admitted for strategic reasons.

As noted, defendant relied primarily on the defense of self-defense, and the record contains some evidence to support this defense. Defendant testified that Moffat initiated the confrontation of August 31. Moffat himself testified regarding a pool cue which he kept for protection. Tarello’s sister testified that Moffat once talked to her about the possibility of blowing up defendant’s car (although she did not believe he was serious). However, Moffat also testified that he had no reason to fear defendant.

Considering this evidence, defense counsel was justified in believing that defendant’s threat to “kick [Moffat’s] *** ass” could potentially have cut both ways. While in one respect it tended to undermine the self-defense theory by showing that defendant made prior threats against Moffat, it also tended to impeach Moffat’s testimony that he was not afraid of defendant, thus supporting at least an inference that Moffat was the aggressor in the fight.

Given defendant’s position that he did not want the statement stricken, we fail to see how he could have been prejudiced by the State’s failure to disclose the statement in discovery. After defense counsel declined the court’s offer to strike the statement, the court immediately recessed the trial to permit defense counsel to interview Moffat. In addition, we note that the State had previously provided Moffat’s name on its list of potential witnesses, so that defense counsel at least had the opportunity to interview him prior to trial. Defendant does not explain how his trial strategy would have been significantly different had he known of Moffat’s proposed testimony prior to trial. Moreover, as defendant did not even request a continuance following Moffat’s allegedly unexpected testimony, he “did not preserve his contention that he could have materially mitigated the harmful effect of the evidence had he been prepared to meet it.” People v. Nelson (1980), 92 Ill. App. 3d 35, 45. The cases cited by defendant are distinguishable. In Nelson and People v. Greer (1980), 79 Ill. 2d 103, the courts held that a new trial was not required. In People v. Boucher (1978), 62 Ill. App. 3d 436, and People v. Miles (1980), 82 Ill. App. 3d 922, the State introduced in rebuttal undisclosed statements which directly contradicted defendants’ testimony. In the instant case, the undisclosed statement was introduced in the State’s case in chief, and defendant thus still had an opportunity to respond to it during his portion of the case. Moreover, defendant unequivocally stated that he did not object to the statement being admitted. A mistrial could not have aided defendant’s case in any material respect.

Defendant’s second contention is that the court erred in sentencing him pursuant to the extended-term provisions of the Unified Code of Corrections. The State responds that the circumstances of the crime were sufficiently brutal and heinous to justify the extended sentence. The imposition of a sentence is a matter within the trial court’s discretion, and its decision will not be disturbed on review absent an abuse of that discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153.

The imposition of an extended-term sentence does not require proof of the infliction of torture or unnecessary pain. (People v. La Pointe (1981), 88 Ill. 2d 482, 501.) Courts have not developed any precise standards for determining when an extended-term sentence is appropriate. Rather, consideration of the issue depends upon the facts and circumstances of each case.

Defendant relies primarily on People v. Kane (1986), 140 Ill. App. 3d 928, in support of his argument that the court abused its discretion in imposing an extended-term sentence in this case. In Kane, the appellate court vacated an extended-term sentence where defendant, with premeditation, killed a cab driver with a single shot to the head. The court held that, while an element of brutality is inherent in any murder, the circumstances were not so “exceptional” as to warrant an extended-term sentence. Kane, 140 Ill. App. 3d at 930-31.

Kane is inapposite to the present case. It has been held that the legislature, in enacting the extended-term sentencing provisions, did not intend to convert every offense into an exceptional one justifying an enhanced sentence. (People v. Andrews (1989), 132 Ill. 2d 451, 466; People v. Evans (1981), 87 Ill. 2d 77, 88-89.) In Kane, the manner of killing, a single gunshot to the head, was no more brutal than necessary to accomplish the criminal objective. In essence, the court found that while the act was undoubtedly cold-blooded and brutal, it was not exceptionally brutal. Obviously, a degree of brutality is implicit in the murder statute itself and the ordinary sentence provided for that offense. There was simply no evidence of brutality beyond what was necessary to the murder. The Kane court also noted defendant’s young age and his expression of remorse following the act.

In the instant case, there is sufficient evidence of the “brutal and heinous” nature of the attack to justify the extended-term sentence. The jury found that defendant committed an unprovoked attack on Moffat. Defendant’s three-year-old son was present in the apartment at the time. Defendant repeatedly stabbed Moffat, then left the apartment without calling an ambulance. The emergency room doctor who treated Moffat opined that without immediate medical attention he probably would have died. This doctor and the surgeon described in graphic detail the wounds which Moffat received. Dr. Ryan recorded 21 or 22 separate injuries throughout his body. Dr. Gillespie observed that when Moffat was brought to the emergency room he suffered from “numerous stab wounds including wounds to the chest, had decreased breath sounds and signs of bleeding from multiple sites.” A surgeon was called because of a stab wound penetrating the abdomen and collapsed lung or lungs.

The court noted that this was “a close case” for imposition of an extended term and the sentence reflects that finding. The sentence imposed is only four years longer than the maximum nonextended term for attempted murder. Given the numerous injuries inflicted on the victim, we do not find that the court abused its discretion in imposing an extended-term sentence.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS, P.J., and NICKELS, J., concur.