text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL CLEMONS, Defendant-Appellant.
    Second District
    No. 2—87—0428
    Opinion filed February 10, 1989.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Daniel Clemons, was charged by indictment with three counts of murder and one count of armed robbery. A jury rejected his insanity defense and found him guilty but mentally ill of two counts of murder and one count of armed robbery, but not guilty of murder during the course of armed robbery. Defendant received a concurrent sentence of an extended term of 80 years’ imprisonment for murder and an extended term of 60 years’ imprisonment for armed robbery.

Defendant raises four issues on appeal: (1) whether placing the burden on defendant to prove his insanity by a preponderance of the evidence unconstitutionally shifts the burden of proof to defendant; (2) whether defendant was proved guilty beyond a reasonable doubt of armed robbery where defendant’s original intent was murder and only after he inflicted deadly blows upon his victim did he decide to take a dollar; (3) whether defendant’s extended-term sentence of 80 years’ imprisonment for murder should be reduced; (4) whether defendant’s extended-term sentence of 60 years’ imprisonment for armed robbery must be reduced where it was not the most serious offense for which he was convicted. We affirm.

During trial, defendant’s tape recorded statement to the police in which he admitted killing his father was played to the jury. That statement revealed the following: On May 8, 1986, defendant waited in his father’s house for his father to come home. When his father arrived, defendant hit him over the head twice with a hammer and then stabbed him in the stomach. Defendant then left the house and went to a bar and had a beer. He returned to the house to get some food stamps and found the knife he had left in his father’s stomach lying on the floor. Defendant stated that he thought his father could still be alive so he covered his father with a blanket and hit him over the head with a sledge hammer. Then defendant returned to the bar where he phoned his sister to request that she go to their father’s house to turn off the stove, which resulted in the discovery of the body.

Defendant also admitted to taking a dollar from his father’s wallet at some point during one of the beatings. Defendant’s statement does not make clear whether he took the dollar immediately after the first beating or if he took the dollar after returning to the house from the bar. In one part of his statement, defendant said he told his father he was going to get some money out of him after he first started hitting him. He also states, however, that he took the dollar after he returned from the bar.

Testifying for the defense, Dr. Leo Goldman, a psychiatrist, testified defendant was probably schizophrenic and might also suffer from organic brain disease. He stated defendant had a low IQ of 70 that would affect his ability to cope with schizophrenia. Goldman concluded defendant was not able to appreciate the criminality of his conduct when he killed his father. Dr. Marshall Silverstein, a clinical psychologist, testified defendant was unable to conform his behavior to the requirements of the law on May 8, 1986. In rebuttal, the State called Dr. Henry Lahmeyer, a psychiatrist, who testified that none of the defendant’s mental problems interfered with his ability to understand the criminality of his actions.

Defendant first contends that section 6 — 2(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e)) unconstitutionally shifts the burden of proof to a defendant to prove by a preponderance of the evidence that he is insane. This court recently rejected this argument in People v. McDarrah (1988), 175 Ill. App. 3d 284, 294, pointing out that several decisions of our courts, as well as the United States Supreme Court in Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002, have recognized the constitutionality of placing the burden of proof on defendant to prove insanity by a preponderance of the evidence.

McDarrah also rejected a contention similar to defendant’s in this case that Leland is distinguished because the jury in that case was instructed to consider the defendant’s evidence on insanity with all the other evidence in regard to defendant’s ability to premeditate, form a purpose, to deliberate, act wilfully, and act maliciously. (McDarrah, 175 Ill. App. 3d at 295.) As in McDarrah, the defendant here contends that the absence of an instruction similar to the one in Leland denied defendant due process since the jury was instructed pursuant to section 6 — 2(e) that it could not consider whether defendant met his burden of proving insanity until it first determined that the State proved defendant guilty beyond a reasonable doubt (Ill. Rev. Stat. 1985, ch. 38, par 6 — 2(e)). The court’s rejection of this argument, quoted below, is dispositive:

“Although section 6 — 2(e) precluded the jury from considering whether defendant sustained his burden of proving insanity until it first determined whether the State sustained its burden of proving all of the elements of the offense, nothing in that statute or in the instructions given in this case precluded the jury from using defendant’s evidence to find one of the State’s elements (i.e., mens rea) missing. (See Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e).) *** Accordingly, we hold that section 6 — 2(e), placing the burden of proving insanity on defendant and requiring that the jury be instructed to first determine whether the State met its burden of proving defendant guilty beyond a reasonable doubt before considering whether defendant sustained his burden of proving insanity, is constitutional.” (Emphasis in original.) McDarrah, 175 Ill. App. 3d at 295.

Defendant next contends that the evidence does not support his conviction of armed robbery for taking a dollar from the victim because his use of force against the victim was for the purpose of murder, not robbery. A person commits robbery “when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1985, ch. 38, par. 18—1(a).) Armed robbery is the commission of robbery while armed with a dangerous weapon. Ill. Rev. Stat. 1985, ch. 38, par. 18—2(a).

Defendant argues that this case is similar to People v. Tiller (1982), 94 Ill. 2d 303, 316, cert, denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121, where the court held that the use of force or threat of force must be used as a means of taking the property from the victim. In Tiller, defendant was convicted of murder on an accountability theory and of armed robbery for taking the murder victim’s vehicle. The defendant had left the scene before the murder was committed by a codefendant and only later returned to take the vehicle which was parked nearby. The court held that the force used in the commission of the murder would not sustain the defendant’s conviction for armed robbery because “there [was] no evidence to show that the force exerted against [the victim] was for the purpose of depriving her of the [vehicle].” Tiller, 94 Ill. 2d at 316.

This case is distinguishable from Tiller, as demonstrated by the recent supreme court case, People v. Williams (1987), 118 Ill. 2d 407, 416. In Williams, a defendant found guilty of rape was also found guilty of armed robbery for taking the victim’s necklace. The appellate court, citing Tiller, reversed; it held that the State failed to present sufficient evidence to establish how or when the defendant came into possession of the victim’s necklace. (People v. Williams (1986), 145 Ill. App. 3d 482, 490.) The supreme court reversed this decision, stating:

“We do not believe that the instant case is governed by Tiller, for here the offenses were essentially a single series of continuous acts committed by the defendant. *** In the assault, the defendant bound, gagged, and blindfolded the victim, struck her and raped her, and threatened to kill her. Whether the defendant took the necklace from the victim’s person or whether he picked it up off the floor after committing the assault, we believe that in this case there was the necessary concurrence between the defendant’s use or threat of force and his taking of the necklace to give rise to the offense of armed robbery under the statute.” Williams, 118 Ill. 2d at 416.

As in Williams, the evidence in this case establishes a series of acts committed by defendant where the necessary concurrence between defendant’s use of force and his taking of the dollar gives rise to the offense of armed robbery. Defendant beat his father over the head twice with a hammer, stabbed him in the stomach, and beat him with a sledge hammer. At some point during these beatings defendant took a dollar from his father. Defendant’s taped statement to the police establishes that he used this force not only as a means to kill, but also as a means to take property. Defendant said the following:

“SERGEANT HENDLEY: Is that when you came back and got the food stamps and the dollar out of his pocket?
DEFENDANT: Yes. Now I took the dollar out of his pocket first. I hit him and all that. I — , you know — I, you know, said that’s what they’re all telling me. You know, I’m broke all month. And I said yeah, I’m gonna get some money out of you. I was mad. I say I’m gonna take some money from you.
SERGEANT HENDLEY: When you first started hitting him?
DEFENDANT: Yeah.”

In reviewing the sufficiency of the evidence to sustain a conviction, the relevant inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the elements of the crime beyond a reasonable doubt. (Williams, 118 Ill. 2d at 416.) From defendant’s statement to the police, the jury could have found beyond a reasonable doubt that defendant used a dangerous weapon against his father as a means to take property from him.

. Though defendant’s statement does not make clear whether he took the dollar immediately after the first attack or whether he took it after returning to the house from the bar, a point at which his father was already dead, either case supports the jury’s verdict. In Williams the court held that even if the necklace was picked up from the floor after the attack, the necessary concurrence between defendant’s use of force and his taking the necklace was present. (Williams, 118 Ill. 2d at 416.) In this case, even if defendant did not take the dollar until after he returned from the bar, the necessary concurrence between the use of force and the taking would still exist since the taking of the dollar resulted from the use of force from the first attack.

Defendant also contends that the jury’s verdict of not guilty of felony murder in the commission of armed robbery is inconsistent with a guilty verdict for armed robbery and proves that the jury actually found that force was not used in taking the dollar. There is no merit to this argument. The verdicts are not legally inconsistent. It is likely that the jury acquitted defendant on this felony murder count because defendant’s original intent was murder rather than robbery. Thus, the jury found that this was not a case where the murder arose out of a primary purpose to commit armed robbery. This finding does not negate the jury’s verdict of guilty for armed robbery; rather, it shows that the jury believed that defendant developed the purpose of robbery after he began attacking his father to kill him. Thus, the jury concluded that defendant’s use of force carried out two purposes, murder and then robbery, but since the original purpose was murder, it could not find defendant guilty of murder while in the commission of armed robbery.

In his third issue, defendant asks this court to reduce his sentence of an extended term of 80 years’ imprisonment for murder (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)(1)). A sentence will be reduced by a reviewing court only if the trial court has abused its discretion and the sentence constitutes a substantial departure from the law. (People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Rogers (1986), 141 Ill. App. 3d 374, 381-82.) When the sentence imposed is within the limits established by the legislature, it will not be modified merely because a reviewing court might have balanced the appropriate factors differently and imposed a different sentence. People v. Dunnegan (1987), 151 Ill. App. 3d 973, 985.

Defendant’s sentence of an extended term of 80 years’ imprisonment for murder does not constitute an abuse of discretion by the trial court. An extended term may be imposed for murder where the “offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).) The trial court’s finding that this was an exceptionally brutal murder indicative of wanton cruelty is clearly supported by the evidence that defendant beat the victim first with a hammer, then a knife, and finally a sledge hammer. Furthermore, the record does not support defendant’s contention that the court did not give adequate consideration to two factors: (1) the low recidivism rate for this type of offense; (2) the strides modern science could make to help defendant with his mental impairments. The trial judge mentioned these factors in sentencing defendant, but found that it was not likely that defendant could be rehabilitated. Nonetheless, the judge did consider these factors as reason not to impose a life sentence or a consecutive sentence.

Finally, defendant correctly contends that his extended sentence of 60 years’ imprisonment for armed robbery must be reduced because an extended-term sentence may only be imposed for “the class of the most serious offense of which the offender was convicted.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a); People v. Jordan (1984), 103 Ill. 2d 192, 206; People v. Treece (1987), 159 Ill. App. 3d 397, 417.) Since defendant was sentenced to an extended term for murder, he cannot be sentenced to an extended term for robbery. Accordingly, defendant’s sentence of 60 years’ imprisonment should be reduced to 30 years’ imprisonment, the maximum non-extended term for armed robbery, a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-l(a)(3)).

The judgment of the circuit court of Lake County is affirmed, and the sentence is affirmed as modified.

Affirmed as modified.

UNVERZAGT, P.J., and INGLIS, J., concur.


source: Caselaw Access Project

author: JUSTICE WOMBACHER

license: Public Domain

text:
      In re ESTATE OF MARY GRUSKE, Deceased (I.H. Mississippi Valley Credit Union, Petitioner, v. Lynda Ryberg, Ex’r of the Estate of Mary Gruske, Respondent-Appellee and Cross-Appellant (Debbie Beauchamp et al., Petitioners-Appellants and Cross-Appellees)).
    Third District
    No. 3—88—0295
    Opinion filed February 16, 1989.

      Samuel S. McHard and Stephen T. Fieweger, both of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island (Stuart R. Lefstein, of counsel), for appellants.
    Robert G. Scott, of Rock Island, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court found that the estate of Mary Gruske, deceased (the estate), had not overcome the presumption that Mary had possessed the required donative intent when she established a joint credit union account with the claimants, Debbie Beauchamp, Ronnie L. Ziemer and Loretta Caron. The court further found that Mary had later effectively terminated the joint account. The claimants appeal.The estate cross-appeals.

The record shows that on November 18, 1982, Mary executed a will. In the will, she left her nephew, William Ryberg, 40% of the residue of her estate. She named William’s wife, Lynda, executor of the will and left her 20%. The remainder of the estate went to other relatives, including 20% to Mary’s sister, Clara Ziemer.

In March of 1983, Mary suffered a stroke and spent her remaining four years of life in a nursing home. In the fall of 1983, Mary told Clara that she wished to make Clara’s grandchildren, the instant claimants, joint tenants in her savings account at I.H. Mississippi Valley Credit Union (the credit union). She subsequently signed a credit union form naming Clara and the claimants joint tenants. The form provided in relevant part:

“The _ Credit Union is hereby authorized to recognize any of the signatures subscribed hereto in the payment of funds or the transaction of any business for this account.
* * *
The right or authority of the credit union under this agreement shall not be changed or terminated by said owners, or any of them except by written notice to said credit union which shall not affect transactions theretofore made.”

Mary died on January 17, 1987, at age 85. Only then did Clara leam that the credit union had a December 12, 1984, letter signed by Mary, which stated in relevant part: “Please change the name on my account from Mary Gruske and Clara Ziemer to just Mary Gruske alone.”

Lynda Ryberg, as executor of the estate, subsequently withdrew the $60,741.07 in the credit union account, which consisted of $35,574.91 in a regular share account and $25,166.16 in a certificate account. In response, the claimants filed a $60.741.07 claim against the estate, contending that the money belonged to them as the surviving joint tenants. The claimants subsequently stipulated that they had no claim to the certificate account. Though they attempted to withdraw this stipulation in a post-trial motion, the trial court denied their request.

At the hearing on the matter, the trial court allowed Lynda and William Ryberg to testify about Mary’s termination of the joint tenancy. Lynda testified, and William generally reiterated, that on December 12, 1984, Mary was reviewing her financial records with Lynda and William. At one point, Mary stated that Clara’s name was on the credit union account merely as the next of kin. When Lynda told her that Clara was a joint tenant in the account, Mary said that it was her money alone, that a mistake had been made, and that she did not want anyone else’s name on the account. William and Mary then composed the above-quoted letter, which William typed and Mary read and signed.

Lynda also testified that after her stroke, Mary sometimes was confused about financial matters. However, when Lynda would explain the transactions to her, Mary seemed to understand.

The trial court found that the estate had not rebutted by clear and convincing evidence the presumption that Mary had the required donative intent when she created the joint account. It further found, however, that Mary had effectively terminated the rights of the other joint tenants with her December 12,1984, letter.

On appeal, the claimants first argue that the court erred in finding that Mary terminated their rights to the funds in the joint account. They contend that the joint-share agreement did not authorize one tenant to unilaterally terminate the rights of the other tenants.

It is well established in Illinois that an agreement creating a joint account governs the rights of the parties thereto. (Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 440 N.E.2d 194.) An instrument creating a joint account under the statutes presumably speaks the whole truth, and one seeking to go behind the terms of the agreement has the burden of establishing that its effect was not intended. 109 Ill. App. 3d 24, 440 N.E.2d 194.

The last paragraph of the instant joint-share agreement stated that the authority of the credit union could not be terminated “by said owners, or any of them” except by written notice. Accordingly, it expressly provided for termination of the credit union’s authority over the money by any one of the tenants. Since by law the agreement also governed the rights of the tenants among themselves, and since the claimants failed to establish that the plain meaning of the agreement did not express the parties’ true intentions, the trial court properly ruled that Mary could unilaterally terminate the joint account.

The claimants next argue that the trial court’s determination that Mary competently and knowingly terminated the joint-share account was against the manifest weight of the evidence.

The burden of proving mental incompetence is on the party seeking to set aside a transaction. (Eslick v. Montgomery (1972), 3 Ill. App. 3d 447, 278 N.E.2d 412.) Persons of mature age are presumed to be mentally competent; their incompetence cannot be inferred merely from old age, physical illness or defective memory. (3 Ill. App. 3d 447, 278 N.E.2d 412.) Impairment of the mind incident to old age and disease will not invalidate a transaction so long as the person in question was able to comprehend the nature of the transaction and to protect her interests. 3 Ill. App. 3d 447, 278 N.E.2d 412.

In the instant case, the evidence tending to establish that Mary was incompetent included her age, her stroke, her confusion over certain matters, and her failure to include the names of the claimants in her letter requesting the removal of the joint tenants. As noted in Eslick, age and illness are not sufficient by themselves to establish incompetence. Additionally, Lynda Ryberg explained that Mary was confused not in a general sense, but only about specific financial matters. Lynda noted that when she explained the financial transactions to her, Mary appeared to understand. Mary’s failure to name the claimants in her December 12, 1984, letter is not especially probative of mental incompetence, since their names never appeared on any of the credit union statements due to a lack of space. Further, Lynda’s and William’s testimony concerning Mary’s state of mind on December 12, 1984, tended to show that she was competent and understood the nature and effect of her actions. Based on the record as a whole, we find that the trial court’s determination that Mary was competent when she terminated the joint tenancy agreement was not against the manifest weight of the evidence.

The claimant’s third argument on appeal is that the trial court erred in allowing Lynda and William to testify regarding Mary’s execution of the December 12, 1984, letter. Specifically, they contend that the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201) prohibits testimony from parties who have a direct pecuniary interest in the outcome of the litigation.

In Bank of Viola v. Staley (1985), 131 Ill. App. 3d 531, 475 N.E.2d 1110, this court addressed a similar issue and held that even where one has an interest in an estate, one may testify on behalf of the estate. Here, the claimants brought suit against the estate, seeking to reduce its assets. Though Lynda was a legatee under the will, she defended the suit as executor. She and William testified on behalf of the estate, with the objective of protecting the estate’s assets. Accordingly, their testimony was not barred by the Dead Man’s Act.

Our decision renders moot the claimant’s argument regarding the trial court’s denial of their post-trial motion to withdraw their stipulated release of any claim to the certificate account. Likewise, the estate’s cross-appeal of the court’s finding that it had not rebutted the presumption of donative intent, and the claimant’s motion to dismiss the cross-appeal, are rendered moot.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE HEIPLE WOMBACHER, J., PRESIDING JUSTICE STOUDER,

text:
    FIRE INSURANCE EXCHANGE, as Subrogee, Plaintiff-Appellant, v. ROBERT GEEKIE, SR., Defendant-Appellee.
    Third District
    No. 3-87-0787
    Opinion filed February 10, 1989.
    Rehearing denied March 22, 1989.

      STOUDER, P.J., dissenting.
    Peter G. Panno and Joshua G. Vincent, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Bruce L. Carmen, of counsel), for appellant.
    Law Offices of George E. Krippner, P.C., of Geneva (Kathleen M. Krippner, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Fire Insurance Exchange brought this subrogation action against the defendant, the tenant of its insured, alleging the defendant was liable for damage he caused to the leased premises. The defendant moved for summary judgment on grounds that the landlord’s insurer cannot maintain a subrogation action against a tenant who damaged the leased premises by causing a fire. The defendant’s motion was granted and Fire Insurance Exchange filed the instant appeal. We reverse and remand.

In 1980, Robert Geekie, Jr., purchased a home from his father, Robert Geekie, Sr., the defendant herein. The son then orally leased the home to his father and became his landlord. At that time, the landlord/son purchased a policy insuring the premises for losses due to fire and the tenant/father purchased a renter’s policy. The landlord and tenant had no other discussions or express agreements regarding insurance.

On February 8, 1986, while the tenant was repairing an antique automobile in the garage of the leased premises, a fire extensively damaged the structure and the contents of the premises. Fire Insuranee Exchange, the landlord’s insurer, paid the landlord $83,644 as a result of the loss. Fire Insurance Exchange then filed the instant complaint against the tenant to recover for the damage which resulted when the tenant allegedly caused the fire. After various motions by the parties were filed, the trial court granted summary judgment in favor of the defendant tenant. In doing so, the court relied on Anderson v. Peters (1986), 142 Ill. App. 3d 182 (Heiple, J., dissenting), an earlier decision issued by this court.

The question now before us is whether the landlord’s insurer can maintain a subrogation action against a tenant who owns an insurance policy which provides coverage for losses due to his negligence in causing a fire on the leased premises. In resolving this issue, we have reviewed our reasoning and resultant holding in Anderson. Based on our careful review of that case, of Illinois law, and of the law of other jurisdictions, we have determined that Anderson was incorrectly decided and we now overrule that previous decision.

In Anderson, the tenants rented an apartment pursuant to an oral lease. The premises were damaged by a fire which was the result of the tenants’ negligence. After paying the landlords for the damages, the landlords’ insurer joined with them in a suit against the tenants. The trial court dismissed the complaint. In affirming the trial court’s decision, this court acknowledged that a tenant bears a common law responsibility for damage to the demised premises resulting from his own negligence. However, the decision then went on to abandon the common law of Illinois and held that, absent an express agreement to the contrary, a tenant is considered the co-insured of the landlord. This court adopted a portion of an Oklahoma case (Sutton v. Jondahl (Okla. Ct. App. 1975), 532 P.2d 478) in support of this departure from the established principles of Illinois law.

In Sutton, the landlord’s fire insurance carrier sued a tenant and his 10-year-old son to recover a fire loss caused by the boy. After stating that subrogation was begotten of a union between equity and the natural justice of placing the burden of a loss where it ought to be, the Oklahoma court determined that subrogation should not be available to the insurance carrier because the law considers the tenant a co-insured of the landlord, absent an express agreement between them to the contrary. The court reasoned that the tenant actually paid the premiums as part of the monthly rental. Persuaded by so-called public policy considerations, this court followed the reasoning of the Sutton court and considered the tenants in Anderson to be co-insureds of the landlord even though there was no such agreement between the parties.

The established law in Illinois is that in the absence of an express agreement to the contrary, a tenant is liable for damages to the leased premises resulting from his failure to exercise due care. (Ford v. Jennings (1979), 70 Ill. App. 3d 219.) This general rule has been applied in cases in which a tenant’s negligent acts caused a fire which damaged the demised premises. (E.g., First National Bank v. G.M.P., Inc. (1986), 148 Ill. App. 3d 826.) Courts in numerous other jurisdictions have also held that a tenant is liable for injury to the leased premises resulting from a fire due to the tenant’s negligence. (Annot., Liability of Tenant for Damage to the Leased Property Due to his Acts or Neglect, 10 A.L.R.2d 1012, 1023-25 (1950 & Supp. 1985).) Illinois courts have given a liberal interpretation to exculpatory yield-up clauses, which expressly or impliedly relieve a tenant from liability for fire damage caused by the tenant’s negligence. (Cerny-Pickas & Co. v. C.R. John Co. (1955), 7 Ill. 2d 393.) However, if such a clause is not included in a lease, traditional landlord-tenant law, which holds the tenant responsible for his negligent acts, still applies.

Illinois law supports a tenant’s right to contract in his lease agreement to shift the burden of the loss suffered as a result of his negligently caused fires. When the landlord and tenant have not included in their contract a term shifting the burden, however, a court should not indulge in a legal fiction to create such a term and alter the parties’ contract.

Turning to the case at bar, we note that the tenancy was established by an oral lease and that both landlord and tenant maintained separate insurance policies. Nothing in the record suggests that the landlord intended to exonerate the tenant from his own negligence or carry him as a co-insured. Accordingly, we hold that the tenant here is liable for his negligence, if any, and Fire Insurance Exchange can rightfully maintain a subrogation action against him. This result is consistent with previously established Illinois precedent and, importantly, it satisfies equitable concerns by placing the burden of the loss where it ought to be — on the negligent party.

Accordingly, we reverse the order of the circuit court of Will County and remand the cause for further proceedings.

Reversed and remanded.

WOMBACHER, J.,

concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I respectfully disagree with the reasoning and result reached by my colleagues. I believe we should adhere to our recent decision in Anderson v. Peters (1986), 142 Ill. App. 3d 182, 491 N.E.2d 768, which would mandate the decision of the trial court be affirmed.

The majority has cavalierly reversed the decision in Anderson, which was relied on by the trial court in granting the defendant judgment in his favor in his motion for summary judgment.

Although I grant that the majority has the power to reverse a prior decision of the Third District Appellate Court, the procedure does not represent good appellate practice. It seems to me reasonable appellate practice should require that different panels should adhere to prior decisions of other panels of the same district, particularly those of recent occurrence. Otherwise we would have, as we now have in this district, a rule of law which depends on the panel which hears the appeal, a situation which serves no useful purpose. The problem could be avoided easily by following the rules of reliance on precedents.


author: JUSTICE LEWIS

text:
    GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (William Kuehn, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—87—0745WC
    Opinion filed January 19, 1989.

      Acton, Meyer, Smith & Miller, of Danville (Thomas R. Smith, of counsel), for appellant.
    Richard K. Johnson, of Katz, Friedman, Schur & Eagle, of Chicago, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, William Kuehn, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries received on May 1, 1980, while in the course of his employment with respondent, General Motors Corporation. At the hearing before the arbitrator, claimant contended that his injuries arose out of and in the course of his employment, which was disputed by respondent. The arbitrator found that claimant’s injuries did arise out of and in the course of his employment and that claimant was completely and permanently disabled and was entitled to receive compensation for life. On review, the arbitrator’s decision was affirmed by the Industrial Commission and confirmed by the circuit court of Vermilion County. Respondent appeals this decision.

The only issue raised on appeal is whether the Industrial Commission’s determination that claimant’s condition arose out of and in the course of his employment was against the manifest weight of the evidence. Respondent contends that there was insufficient direct evidence presented regarding the cause of claimant’s injuries to support a finding of an accidental injury arising out of and in the course of claimant’s employment pursuant to section 2 of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.2).

At the hearing before the arbitrator, claimant testified that he was working as a truck driver for respondent on May 1, 1980. On that date, he was driving a forklift truck in the “hard iron area,” when he either hit a pothole or attempted to avoid the pothole and hit something else. Claimant was unable to recall anything after that, and nine days later his wife brought him home from the hospital. Claimant did not remember the name of the hospital or the city where the hospital was located.

Claimant saw Drs. Gene Moore, Fitzhugh-Bell, and Lunsford after he was discharged from the hospital. Claimant testified that he cannot think clearly and that he has persistent daily headaches. Prior to May 1, 1980, claimant did not suffer headaches as constantly as he currently does.

Marlene Kuehn, claimant’s wife, testified that on May 1, 1980, she was notified that claimant had had an accident. She was told that claimant had regained consciousness but that he was not acting normally. Mrs. Kuehn went to Lakeview Hospital in Danville, Illinois, and upon her arrival, she was informed that claimant had been transferred to Burnham City Hospital in Champaign.

When Mrs. Kuehn first saw claimant at Burnham City Hospital, claimant did not recognize her. She observed that claimant had a big bump on his forehead above his right eyebrow. The next day, claimant still did not know her and did not know his children. While at the hospital, claimant behaved strangely and was unable to identify common items such as a bicycle.

Mrs. Kuehn brought claimant home from the hospital eight days after his admittance. Within two days of his arrival home, claimant began to have “blackouts” or to “space out,” and after the blackouts, claimant frequently slept. Mrs. Kuehn described claimant’s “blackouts” as follows: “[H]e starts shaking and his eyes started [sic] rolling around. And when I called his name, he didn’t hear me. He doesn’t hear me when he’s spaced out.” Prior to May 1, 1980, claimant had never had blackout spells. Mrs. Kuehn called Dr. Gene Moore and reported these blackouts to him, and he instructed her to take claimant to Riley Hospital for an electroencephalogram (EEG). She further testified that, at various times, Dr. Moore referred claimant to Drs. Fitzhugh-Bell and Lunsford, and that claimant had seen Dr. Imperial for the purpose of obtaining social security benefits. Mrs. Kuehn corroborated claimant’s testimony that he suffers from constant headaches.

The admission records and discharge summary from Burnham City Hospital were admitted into evidence. These records established that claimant had suffered a “head injury” and “cerebral contusion.” According to these records, claimant had hit a pothole while driving his forklift and had fallen or had been knocked from the machine, causing him to strike his head and to be knocked unconscious. Claimant regained consciousness prior to his arrival at Lakeview Hospital, but he was bewildered and disoriented. The doctor at Lakeview Hospital found claimant had no specific abnormalities other than his affect being abnormal.

Claimant was transferred from Lakeview Hospital to Burnham City Hospital. Upon admission at Burnham City Hospital, claimant was still disoriented, he had a slight abrasion on his right forehead, and he had a great deal of tenderness in the C7-T1 area posteriorly; however, his reflexes were equal, his handgrips were weak but equal, and his “pupils, fundi, EOMs” and eardrums were normal.

The discharge summary from Burnham City Hospital dated May 9, 1980, noted that claimant was admitted as an emergency following a head injury incurred at work. The exact mechanism of claimant’s head injury was unknown, but it was determined that claimant was unconscious at the scene of the accident for about 20 minutes. Dr. Belber, claimant’s treating physician, found that claimant was perplexed, confused, and that he had a severe memory deficit upon admission but that claimant’s condition improved during claimant’s stay at the hospital. The test results of an EEG, a CAT scan (computerized axial tomography), a spinal puncture and skull X rays had revealed no abnormalities. Dr. Belber’s final diagnosis of claimant’s condition was “[cjlosed head injury, with cerebral contusion syndrome, with full recovery.”

A letter dated September 12, 1980, from Dr. Gene Moore to Dr. Fred Pierce, respondent’s plant physician, was admitted into evidence. Attached to Dr. Moore’s letter was a neuropsychological report by Dr. Fitzhugh-Bell in which the findings of her examination of claimant on July 15, 1980, were summarized. Dr. Moore’s letter stated that because claimant gave an incoherent account of his accident, it would probably never be determined what happened. Dr. Moore concluded that claimant “was apparently injured and knocked unconscious in an accident at the General Motors Foundry.” Dr. Moore found that it was possible but unlikely that claimant had had a seizure or blackout at the time of the accident, and that claimant’s history made it unlikely that he suffered from epilepsy. Dr. Moore confirmed that claimant had had a seizure since he had been discharged from the hospital, but that claimant’s EEGs were normal. Dr. Moore was “inclined to believe” that claimant had suffered an injury at work.

According to Dr. Moore, claimant presented the “classical picture of someone who had had a post concussion type of injury,” i.e., that claimant “is unable to relate the details of this injury, he complains of headaches, he has blackouts, he is spacey [sic], confusion is his predominant symptom, and he acts a little bit on the dumb side.” Dr. Moore explained that these symptoms are characteristic of a post-concussion injury and that the symptoms usually present no neurological findings when the traditional tests are performed. Dr. Fitzhugh-Bell’s neuropsychological tests confirmed his opinion.

Dr. Kathleen Fitzhugh-Bell’s report stated that claimant was interested and cooperative but that he was sad, confused, and tangential. She had administered a wide variety of tests and she discussed the tests results in this report, finding that claimant was impaired in complex reasoning, abstract thinking, and development of concepts; in visual analysis and appropriate shifting of behavior according to concepts or instructions; and in tasks requiring simple motor speed (finger tapping). The tests for aphasic and perceptual disorders revealed that claimant had deficits which do not occur in adults with normal brain functions. Her hypothesis of the possible neurological significance of the tests was that “[t]he neuropsychological rating (Impairment Index) based upon the Halstead neuropsychological indicators which contribute to the Index is consistent with mild but significant cerebral damage and dysfunction.”

A letter dated July 12, 1982, from Dr. Thomas Lunsford to Dr. Gene Moore stated that it was Dr. Lunsford’s impression that the claimant “probably has a progressive deteriorating type of brain disease, which may have been subtle or symptomatically not existent at the time of his injury, but was probably aggravated by it at that time.” Dr. Lunsford said that he could not determine the type of actual injury incurred by claimant on May 1, 1980, but, based on claimant’s behavior immediately after the accident, he concluded that claimant had had “some degree of post concussive change, which probably was involved in a further chain reaction and now progressive dementia.”

Claimant lastly presented a letter from Dr. Lunsford dated June 15, 1982, which was sent to the Social Security Disability Determination Division. Dr. Lunsford advised in this letter that claimant “seems to demonstrate an organic brain syndrome with some sort of episodic interruption in behavior.” He reported that the neuropsychological examination of Dr. Fitzhugh-Bell revealed that claimant had a “considerable amount of organic brain impairment.” Further, he found that a recent repeat study by Dr. Fitzhugh-Bell suggested deterioration of cerebral function, implying the possibility of progressive difficulties. In his opinion, he did not believe that claimant would be a very productive individual unless he were in a very protective environment, i.e., an environment in which no intellectual demands were made, in which there was no demand for fine motor movement or movement against time, or in which there was no demand for any degree of motor coordination. He indicated that claimant demonstrated “aphasia, memory loss, [and] severe depression.”

Borland Roy testified that on May 1, 1980, he was working for respondent as a lift truck driver when a man named Bill advised him that a man was “down.” Roy proceeded to the site of the accident, where he observed claimant lying on his back on the ground with his head next to some “tubs.” When he attempted to question claimant, he did not respond. Roy did not examine claimant but only drove the ambulance in which claimant was placed. While at the scene, Roy observed that claimant’s hard hat, required wearing when driving a forklift, lay on the back of the seat of claimant’s forklift, where it would normally be kept if claimant were not wearing the hat.

Bill Peel testified that on May 1, 1980, at around 8:15 p.m. or 8:30 p.m., he was going to the “hard iron area” when he saw claimant lying on the ground beside his truck. Peel had passed by claimant’s truck 10 to 15 minutes earlier and it was his opinion that claimant’s forklift truck was in the same position when he found claimant as it had been when he observed it previously.

When Peel saw claimant lying on the ground, he stopped to investigate. He found claimant lying parallel to the left side of the truck approximately three feet away. The forklift truck was stopped and was touching the front of some “tubs.” Claimant’s head was approximately 18 inches from the tubs. He checked claimant and then went for help. Peel called an ambulance, obtained assistance, and returned to the site of the accident.

Upon returning to the scene, Peel found claimant in the same position as he had left him. Peel observed a black spot on claimant’s cheek from the ground. Peel moved claimant’s forklift and when he got into the truck, he noted that the truck was in neutral gear and that it had been turned off. Peel observed that claimant’s hard hat and gloves, required safety equipment, were on the hood of the truck behind the seat, where these items are usually kept when not being worn. Peel stated that there were many places in need of repair in the area where claimant had been driving his truck and that some of the potholes were deep. One such nearby hole was to the left and behind claimant’s truck.

Richard Newell testified that he did an accident investigation report on claimant’s incident. He attempted to obtain a statement from claimant about the accident but claimant was only able to tell him that he was coming around a corner and saw a hole. Claimant could not recall what happened after that. Claimant did not remember Ne-well when he saw claimant in the hospital.

Newell’s accident report revealed that claimant had been at work for 5 hours and 15 minutes prior to the occurrence. According to the report, claimant “stated he saw the hole in the pavement and swerved to avoid it, at this time he hit something and ‘the lights went out.’ ” Newell was unable to find an object that had been hit by the truck. Newell had noted that there was a pothole 25/s inches deep with sand in it nearby claimant’s forklift, but that the sand did not reveal any tire marks which would match the forklift truck’s tires. No witnesses to the accident were found.

Respondent introduced claimant’s medical records from Lakeview Hospital into evidence. This record stated that claimant was found unconscious on the ground at work but that he was conscious upon his admission to the hospital. Claimant spoke normally, but he was disoriented, bewildered and he was unaware of the time and the place. Claimant complained of a headache, but the doctor noted no other symptoms. The doctor’s diagnosis was that claimant had had a head injury.

An EEC report and CAT scan report were admitted into evidence. The EEC report was normal and the CAT scan report stated that claimant had a “[njormal noncontrast CT scan.”

A follow-up report by Dr. Belber dated June 5, 1980, indicated that claimant “stutters, gets ‘spacey,’ [sic] drives his car to different places and doesn’t know why he went there, will buy things and not remember he did it, has no interest in things and lack of drive, and has headaches.” Dr. Belber felt that “these are all changes due to his injury; they’re in a complex organic psycho-social area, which is most likely related to some sort of basic hypothalamic or frontal lobe injury, which is not detectable by the usual CAT scan, EEC, brain scan testing, but I feel it’s most definitely on an organic basis; in any event, it’s quite likely that he’ll be able to return to work without restrictions, in a couple of weeks, and he was given a note to do so.” An addendum by the doctor stated that claimant also had blurred vision.

Claimant was examined by Dr. Jerome Peters, at respondent’s request, and Dr. Peters prepared a one-page letter report dated October 21, 1980, based upon his examination. Dr. Peters performed psychological tests which revealed that claimant had “median temporal lobe involvement, maximum on the left.” Dr. Peters found that claimant had had one documented seizure since his accident. Claimant was unable to relate any details of his injury but complained of blackouts and of headaches. Neuropsychological tests revealed substandard performance by claimant. Dr. Peters based his opinion of left cerebral involvement on “extinction of the left ear on auditory bilateral stimulation,” “dysnomia,” “visual letter agnosia,” and “tactile form discrimination poorer on the right than left.” Dr. Peters found that claimant’s “verbal greater-than-other-modality deficit” a “striking” feature of the examination. Dr. Peters concluded his letter by referring to claimant’s “concussion and irritative reaction to injury.”

Dr. Thomas Lunsford sent a letter dated March 8, 1982, to Dr. Gene Moore summarizing his examination of claimant on this date. Dr. Lunsford stated that the results of claimant’s neurological workup were not unusual except for the neuropsychological testing, which suggested that claimant had some sort of organic brain insult. Dr. Lunsford noted that claimant had attended junior college previous to his injury and had made “B’s” and “C’s” but that now claimant is barely able to read and understand the newspaper, becomes confused, and has difficulty in understanding television programs. Dr. Lunsford found claimant depressed and more so recently because of his son’s accidental death.

Dr. Fitzhugh-Bell’s report of her subsequent neuropsychological testing of claimant on April 23, 1982, revealed that claimant’s abilities had declined since her prior testing of him 21 months before, and that claimant’s impairment index was consistent with “at least moderate impairment of cerebral functions.” She gave as her opinion that claimant’s test “results continue to be consistent with disruption of functions of each cerebral hemisphere, and implicate both hemispheres more diffusely than did the earlier results.”

In a letter dated November 30, 1982, to Dr. Pearce from Dr. Gene Moore, Dr. Moore diagnosed claimant’s condition as “pre-senile dementia.” In Dr. Moore’s opinion, claimant had suffered a cerebral insult on May 1, 1980, and that but for his pre-senile dementia, claimant would have recovered uneventfully from this trauma. Dr. Moore could not state with certainty whether the trauma suffered by claimant aggravated his pre-senile dementia.

Additional records introduced by respondent revealed that claimant had fallen down the stairs at home on January 21, 1980. Claimant suffered an acute lumbar strain, and he received treatment for this from Dr. Welty, a chiropractor. Because of his back injury, claimant was unable to work from January 21, 1980, until March 10, 1980. Other medical records revealed that the only medical problems, other than routine complaints, for which claimant received treatment prior to the incident of May 1, 1980, consisted of an ulcer and an acute anxiety attack.

On review before the Industrial Commission, claimant and his wife again testified. Claimant testified that he currently sees Dr. Imperial every month and that he takes three medications. Claimant continued to suffer from daily headaches and his activities consisted of staying home and watching television.

Claimant’s wife testified that claimant continued to suffer from blackouts and from headaches. She stated that claimant functions but that he does not function properly, citing as examples that claimant would call her up and tell her he could not find the car when he had not driven and that claimant would intellect a statement into their conversations that did not correspond to what they had been discussing.

William Saucier, a retired special agent of the Federal Bureau of Investigation, testified that on two separate occasions, April 1, 1985, and April 18, 1985, he observed claimant get into his car alone and drive away. Saucier followed claimant for only about a mile each time and then he returned to claimant’s home to watch for claimant’s return. According to Saucier, claimant operated his car in a normal manner in traffic and appeared to have no difficulty with driving his vehicle.

Additionally, the depositions of Dr. Onur Melen, a neurologist, and Dr. Boris Imperial, a psychiatrist, were introduced into evidence. Dr. Onur Melen testified that he had examined claimant on July 11, 1984. He found that claimant’s affect was flat, that claimant was depressed, and that he was disoriented and did not know much about current events. Dr. Melen was impressed by claimant’s depression, but he also determined that claimant had a significant cognitive impairment. Dr. Helen explained that cognitive impairment may manifest itself as a result of depression.

When questioned about Alzheimer’s disease (formerly senile dementia) as a possible explanation for claimant’s condition, Dr. Helen stated that Alzheimer’s disease was not traumatic in origin; however, trauma could precipitate, aggravate or accelerate a preexisting organic brain disease. He explained that with Alzheimer’s disease, a CAT scan would show an atrophy of the brain. Dr. Helen was uncertain whether claimant’s cognitive impairment had an organic basis such as Alzheimer’s disease, and that if he were to choose a diagnosis of claimant’s condition, he would select “traumatic encephalopathy” in lieu of Alzheimer’s disease. He defined “traumatic encephalopathy” as a “term given to individuals who show varying degrees of emotional and cognitive impairment following a significant head injury.” Dr. Helen explained that a CAT scan would be negative if a person had received mild injuries; however, it was more likely that an EEC would be positive.

Dr. Boris Imperial’s deposition disclosed that he first saw claimant on July 22, 1982, for the purpose of obtaining social security benefits, but that claimant returned to him for treatment on January 18, 1984. In 1982, Dr. Imperial found claimant’s cognitive processes very much impaired. Claimant was also disoriented. Dr. Imperial explained that the cognitive process has to do with reasoning, memory, and judgment. He diagnosed claimant’s condition as being “psycho-motor epilepsy, an Organic Personality Syndrome, an Organic Affective Syndrome, and an Amnestic Syndrome.”

Dr. Imperial reexamined claimant when he began treatment of him in January of 1984. Dr. Imperial saw claimant approximately once a month, and his original diagnosis of claimant, which he made in 1982, remained unchanged. Claimant continued to be confused, to be intellectually deteriorated, to have severe headaches, to suffer from blackout spells (disordered consciousness), and to have his memory impaired. In July 1984, Dr. Imperial also found claimant to be depressed. In his opinion, claimant’s depression was caused by his awareness that he was no longer the same person he was before the incident of Hay 1, 1980, and his awareness of his mental deterioration. Additionally, his son’s death contributed to his depression.

Dr. Imperial stated that an EEC and a CAT scan are not 100% diagnostic. He explained that with mild trauma there may not be external signs of injury but that the brain may be severely injured, and that mild head trauma can result in cognitive impairment. He noted that if the hospital records indicated there was an injury to the right side of claimant’s head, that this indicated that there was some evidence of external injury. Dr. Imperial agreed with Dr. Helen’s diagnosis of post-traumatic encephalopathy. In Dr. Imperial’s opinion, claimant’s mental condition and intellectual deterioration were secondary to brain injury, and his condition was permanent.

Respondent contends that the evidence was insufficient to indicate the cause of claimant’s injuries, that the evidence presented indicated that no work-related accident occurred, and that claimant’s fall was idiopathic. Therefore, respondent argues that the Industrial Commission’s determination that claimant’s current ill-being was the result of accidental injuries arising out of and in the course of employment was manifestly erroneous.

For an injury to be compensable under the Workers’ Compensation Act, a claimant must sustain injuries from an accident arising out of and in the course of his employment. (Ill. Rev. Stat. 1979, ch. 48, par. 138.2.) The term “accident” is not a technical legal term, and as it is used in the Act, it is a comprehensive term almost without boundaries as related to some untoward event. (Peoria County Belwood Nursing Home v. Industrial Comm’n (1985), 138 Ill. App. 3d 880, 487 N.E.2d 356, affd (1987), 115 Ill. 2d 524, 505 N.E.2d 1026.) An “accident” can be established by a claimant by the theory of repetitive trauma or by tracing a work-related injury to a specific accident which is identifiable as to time and place or as to a specific moment of collapse of a person’s physical structure, identifiable to time and place. Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106, 507 N.E.2d 1185; Butler Manufacturing Co. v. Industrial Comm’n (1986), 140 Ill. App. 3d 729, 489 N.E.2d 374.

Whether claimant’s injuries were a result of a work-related accident arising out of and in the course of his employment was a factual determination within the province of the Industrial Commission. This determination can be based upon direct or circumstantial evidence and the reasonable inferences that can be drawn from that evidence, and the inferences drawn by the Industrial Commission will not be set aside upon review merely because other inferences could be drawn. (General Electric Co. v. Industrial Comm’n (1984), 129 Ill. App. 3d 352, 472 N.E.2d 486; Board of Education v. Industrial Comm’n (1983), 96 Ill. 2d 239, 449 N.E.2d 839.) The Industrial Commission’s determination that an accident arose out of and in the course of employment will not be overturned unless it is against the manifest weight of the evidence. Elliot v. Industrial Comm’n (1987), 153 Ill. App. 3d 238, 505 N.E.2d 1062.

In this case, the Industrial Commission found that claimant’s current state of ill-being was the result of an accident. While there was a dearth of direct evidence to support this determination, the circumstantial evidence presented was sufficient. Claimant had been driving a forklift truck for approximately 5 hours and 15 minutes prior to the incident. Claimant either swerved to avoid hitting a pothole and hit something else or he hit the pothole, which caused him to fall or to be thrown from his truck. When claimant was found, he was lying unconscious upon the ground parallel to his truck, which was three feet away. There was testimony that there were numerous potholes in the area in which claimant was working and that there was a deep pothole to the left and to the rear of claimant’s truck.

The medical records from Burnham City Hospital indicated that claimant had an abrasion on his forehead over his right eyebrow and that claimant had a head injury. Claimant’s head injury was traceable to a specific time and a specific place. From this evidence, the Industrial Commission could have inferred that an untoward event had occurred causing claimant to hit his head. Thus, while the actual facts of the incident were unknown, the circumstantial evidence supported the Industrial Commission’s determination that there was an accident.

Further, the medical evidence supported the determination that claimant’s head injury, which he suffered during this accident, was the cause of claimant’s current mental state. The totality of the medical evidence established that claimant’s mental deterioration was the result of a trauma to the head. The testimony disclosed that prior to May 1, 1980, claimant was a mentally sound individual, but that after the accident, claimant’s mental condition deteriorated. The only reasonable explanation for claimant’s condition was that the accident caused his current state of ill-being. Therefore, the Industrial Commission’s determination that claimant’s ill-being was caused by a work-related accident and that it arose out of and in the course of his employment was not against the manifest weight of the evidence.

Respondent argues that there was conflicting evidence presented that claimant did not have an accident. Respondent states that the evidence that claimant’s truck was turned off when claimant was found and that his hard hat was behind the seat gave rise to the inference that claimant had shut off his truck and that he had not hit a pothole. Again, it is the Industrial Commission’s province to weigh conflicting evidence and to resolve the conflict. (Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 509 N.E.2d 1330.) The inference that claimant received his injury from a work-related accident was a reasonable inference from the evidence presented.

Even if claimant had not struck a pothole but instead fell as he got out of his forklift and struck his head during his fall, his condition would still be compensable. Respondent argues that since claimant had had a fall down the stairs over four months previously, it was this former back injury which caused him to fall on May 1, 1980, and therefore, his fall was idiopathic and noncompensable. Idiopathic falls result from an internal, personal origin and are not compensable in Illinois, while unexplained falls are compensable. Elliot, 153 Ill. App. 3d 238, 505 N.E.2d 1062; Oldham v. Industrial Comm’n (1985), 139 Ill. App. 3d 594, 487 N.E.2d 693; Chicago Tribune Co. v. Industrial Comm’n (1985), 136 Ill. App. 3d 260, 483 N.E.2d 327; Sears, Roebuck & Co. v. Industrial Comm’n (1979), 78 Ill. 2d 231, 399 N.E.2d 594.

The evidence in this case does not sustain respondent’s argument that claimant’s fall was idiopathic. The medical evidence demonstrated that claimant was released after his back injury to return to work on March 10, 1980. There was no evidence presented that claimant’s back injury had created an organic weakness likely to cause him to fall or that he had injured his head when he sustained his back injury. Likewise, there was no evidence presented that claimant fell as a result of a seizure. If claimant’s injury was caused by a fall as he alighted from his forklift truck, it can only be determined to be an unexplained fall and not an idiopathic one. A reviewing court can affirm the Industrial Commission’s decision if there is any legal basis in the record to support its decision regardless of the Industrial Commission’s findings or reasoning. (Butler Manufacturing Co., 140 Ill. App. 3d 729, 489 N.E.2d 374.) Since claimant’s award could be sustained on the theory that his ill-being was the result of an unexplained fall at work, thereby arising out of and in the course of his employment, the Industrial Commission’s decision is not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Vermilion County, confirming the Industrial Commission’s decision, is affirmed.

Judgment affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    BOARD OF EDUCATION OF MUNDELEIN ELEMENTARY SCHOOL DISTRICT NO. 75, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0241
    Opinion filed February 9, 1989.
    Everett E. Nicholas, Jr., and Phillip H. Gerner III, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for petitioner.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gregory J. Malovance and William G. Miossi, both of Winston & Strawn, of Chicago, and Sandra Holman, of Illinois Education Association, of Springfield, for respondent Mundelein Education Association.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner, Board of Education of Mundelein Elementary School District No. 75 (District or Board), appeals the revised order issued by the Illinois Educational Labor Relations Board (IELRB), requiring the District to engage in mandatory bargaining with the respondent, Mundelein Education Association, IEA-NEA (MEA), over the unilateral changes in the teachers’ wages, hours, or terms and conditions of employment. (Mundelein Elementary School District No. 75, 4 Pub. Employee Rep. (Ill.) par. 1052, case No. 85 — CA—0057—C (Illinois Educational Labor Relations Board, March 4, 1988).) The District’s primary argument is that the revised order is the result of an improper reconsideration by the IELRB of its previous order. The District raises four additional arguments addressed to the revised order. We conclude that the IELRB had no authority to reconsider its previous order. We vacate the revised order and do not address the remaining issues presented in this appeal.

Prior to the 1985-86 school year, the District operated three elementary schools (grades K through 6) and a junior high school (grades 7 through 8). For the 1985-86 school year, the District adopted a middle school (grades 6 through 8) format.

On July 25, 1983, the Board directed that the administration study the possibility of adopting a middle school format in the District. In December 1983, the District’s systemwide policy committee (SPG) established a middle school committee to study the middle school concept. The SPG is a faculty curriculum council consisting of representatives from each school, the learning center area, the special services area, the business manager, the building principals, and the superintendent. The MEA president, Frances Hansen, was a member of the SPG.

The principal of the junior high was head of the middle school study committee, which included several members of the MEA, including Joan Reese, who later became the MEA president. A report from this committee called for converting the junior high school to a middle school for grades 6 through 8. The middle school concept included “as a core component team planning and scheduling.”

At a meeting in August 1984, the Board voted to reorganize the school for the 1985-86 school year. The Board held public hearings on the matter on October 8 and October 15, 1984. After these hearings, a report, which summarized the possible alternatives for reorganization, was submitted to the Board and was also given to the MEA. The Board scheduled a special meeting for October 29, 1984, at which a final decision was to be made.

While the meetings regarding reorganization were ongoing, the District and the MEA were in the process of negotiating a new collective-bargaining agreement. Negotiations began in the spring of 1984 and continued until an agreement was reached on October 24, 1984. During this time, both sides negotiated over a maintenance-of-standards clause. While the MEA repeatedly told the District it did not want to interfere with the reorganization plan, it wanted assurances that preparation time for teachers as well as the length of the work day would remain the same. Both of these matters were finally incorporated into the new collective-bargaining agreement reached on October 24,1984.

On October 29, 1984, the District decided to establish a middle school, including grades 6 through 8, at the then junior high school. The MEA was then asked to become involved in implementing the new school format. In December 1984, meetings were held by the middle school committee which began discussions involving the new schedules for teachers. The District also met with the MEA president in December 1984 to discuss the reorganization. No bargaining was requested by the MEA at this time regarding any aspect of the reorganization or its impact on the teachers’ working conditions.

Proposed teaching schedules were first presented to the middle school teachers in January 1985. However, no final decision on the new schedules was made until February 25, 1985. These proposed schedules reflected an increase of one period each day over the schedule as it then existed in the school.

On March 18, 1985, the junior high school teachers were provided with the final schedule for the 1985-86 school year. During the 1984-85 school year, the junior high school day included seven teaching periods, one of which was used as a teacher planning period and each of which was 52 minutes in length. Each teacher taught five academic classes and a “mini course.” The mini courses were intensive, “exploratory” courses scheduled for one week after spring vacation. The 1985-86 teaching schedule consisted of eight teaching periods each day, each 45 minutes in length, one' of which was a planning period. Teachers each taught an “exploratory” course, plus five academic classes. The exploratory courses were elective courses, scheduled for one period each school day for 4V2 weeks. Most of the teachers in the middle school were assigned an “exploratory course” in the same subject area as the “mini” course they had taught the previous year. The 1985-86 schedule did not lengthen or extend the teacher work day, which remained from 7:45 a.m. to 3 p.m. The record reflects that the parties disputed whether teacher-student contact time was changed in the 1985-86 schedule.

On April 3, 1985, the MEA president Hansen sent a letter to Board president Wayne DeVries stating that the District had “unilaterally made a change in the working conditions of the teachers at the Carl Sandburg middle school.” Hansen demanded that the district “bargain on this working condition” and requested a meeting within 60 days. On May 10, 1985, Hansen again wrote to DeVries regarding the bargaining demand. DeVries replied by letter on May 17, 1985, stating that the issues “would be more appropriately discussed and clarified through a meeting of the mutual concerns committee as delineated in Article XIII of the contractual agreement.” In reply, Hansen demanded bargaining on May 20, 1985. On June 4, 1985, new MEA president Joan Reese reiterated the demand to bargain and set a deadline of June 9, 1985, for the District to reply. On June 10, 1985, Reese again wrote to DeVries setting forth suggested dates for meetings. On June 18, 1985, DeVries wrote to the MEA stating that the District would not engage in mid-term bargaining, but again expressed a willingness to discuss the issue as a “mutual concern.”

On July 23, 1985, the MEA filed an unfair labor practice charge, alleging that the District violated sections 14(a)(1) and 14(a)(5) of the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1985, ch. 48, pars. 1714(a)(1), (a)(5)) by refusing to bargain with the MEA concerning changes made in employees’ working conditions. The Executive Director of the IELRB investigated this charge and on November 18, 1985, issued a complaint. The complaint alleged that the District violated sections 14(a)(1) and 14(aX5) of the IELRA by refusing to bargain with the MEA over the impact of the addition of one class period to the schedule and the change in the teachers’ preparation time. Hearings were held on April 14, 15, and 16, 1986, in Chicago.

The hearing officer, in his recommended decision and order issued on October 23, 1986, found that the District unlawfully refused to bargain with the MEA over the impact of the decision to reorganize. However, he concluded that the decision to reorganize was a matter of inherent managerial policy which need not be bargained. The hearing officer further ordered make-whole relief with regard to those employees affected. Mundelein Elementary School District No. 75, 2 Pub. Employee Rep. (Ill.) par. 1135, case No. 85 — CA—0057—C (Illinois Educational Labor Relations Board, Oct. 23, 1986) (hearing officer).

On November 7, 1986, the District filed exceptions to the hearing officer’s decision and a brief in support of those exceptions. The MEA filed a response to the District’s exceptions and a supporting brief on December 24, 1986. After review of the hearing officer’s recommended decision and order and the exceptions thereto, the IELRB issued an order on October 29, 1987, reversing in part and affirming in part the hearing officer’s recommended order. Mundelein Elementary School District No. 75, 3 Pub. Employee Rep. (Ill.) par. 1115, case No. 85 — CA—0057—C (Illinois Educational Labor Relations Board, Oct. 29, 1987).

In its October 1987 order, the IELRB found that the District had a duty to bargain under section 4 of the IELRA (Ill. Rev. Stat. 1985, ch. 48, par. 1704) over the impact of its decision to reorganize on the MEA members’ wages, hours, and terms and conditions of employment. Specifically, the IELRB found that the District was required to bargain regarding the number of teaching periods, but not required to bargain over the alleged changes in the teacher’s preparation time. The issue of preparation time was the subject of a clause in the parties’ new collective-bargaining agreement signed in January 1985 and thus had already been bargained by the parties.

The IELRB declined to order make-whole relief since it could not calculate the loss, if any, to the teachers who had to prepare an “exploratory” course in place of a “mini” course. The IELRB ordered impact bargaining as the sole remedy.

On November 3, 1987, the District wrote to the IELRB and requested that it amend its October 29, 1987, order by adding the word “impact” to the bargaining order and notice to employees and by changing the period within which the District was required to begin bargaining from 10 days to 35 days. (Mundelein, 3 Pub. Employee Rep. (Ill.) par. 1115, at VII — 395 (part VII of order at Nos. 1, 2(a) of relief ordered).) The change in the number of days was requested in order that the District be afforded its statutory appeal rights. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 103.) The IELRB adopted both of these changes in its November 10, 1987, revised order. Mundelein, 3 Pub. Employee Rep. (Ill.) par. 1120, at VII — 413 through VII — 414 (part VII of order at Nos. 1, 2(a) of relief ordered).

On November 25, 1987, the MEA filed a motion for reconsideration. The MEA stated that the IELRB had failed to address the issue of the unilaterally imposed increase in the teaching periods and instructional time, and that its denial of make-whole relief was inconsistent with other IELRB decisions. On December 3, 1987, the District filed a response to the MEA’s motion, alleging that (1) the IELRB had made the necessary and proper findings in support of its decision; (2) a make-whole remedy was inappropriate; and (3) the MEA failed to meet the IELRB’s previously adopted standards for granting motions for reconsideration.

On March 4, 1988, the IELRB issued a revised opinion, modifying its October 29, 1987, order. (Mundelein Elementary School District No. 75, 4 Pub. Employee Rep. (Ill.) par. 1052, case No. 85 — CA— 0057 — C (Illinois Educational Labor Relations Board, March 4, 1988).) The IELRB concluded that the District had an affirmative obligation to bargain with the MEA over any unilateral change resulting from the addition of the exploratory class. In so ruling, the IELRB recognized the scenario as involving bargaining under section 10 of the IELRA (Ill. Rev. Stat. 1985, ch. 48, par. 1710), and further recognized that the decision to reorganize to middle school format was antecedent to and separate from the potential change in teachers’ workload. The IELRB then modified the remedy for the bargaining violation and awarded make-whole relief. In addition, the IELRB ordered the District to comply with the previous bargaining order issued in October 1987.

The District contends that the IELRB had no authority, either by statute or agency rule, to reconsider its initial order of October 29, 1987. The District urges that because this initial order was characterized by the IELRB as a “final order,” the only method for review was a judicial review pursuant to section 16(a) of the IELRA. (Ill. Rev. Stat. 1987, ch. 48, par. 1716(a).) The District further states that even if reconsideration authority could be found, the IELRB misapplied its previously adopted standards for reconsideration motions. The IELRB acknowledges it was not authorized by statute or formal rule to reconsider its previous orders but urges that its past practice of reconsidering its initial orders effectuates a de facto rule which authorizes reconsiderations.

The MEA’s position on appeal is that the initial order was not a final order because material issues were yet to be determined after the first order. Because the order was not final, the MEA contends that the reconsideration issue is not properly before this court. The MEA also contends that the District itself requested a reconsideration of the first order when it requested changes to this order by its letter of November 3, 1987, and therefore, it cannot now object to the MEA’s later request for a reconsideration. In response to this argument, the District strenuously argues that its November 3, 1987, letter merely requested changes because of the clerical errors in the order of October 29, 1987, which errors made the relief ordered inconsistent with the text of the opinion. Moreover, the District contends these changes do not amount to a reconsideration of the matter by the IELRB and do not represent a complete change in the decision of the IELRB as was evidenced by the March 4,1988, opinion.

We find that the IELRB had no authority to reconsider its order issued on October 29, 1987, and we further agree with the District that its letter requesting clarification of the first order was not a reconsideration of any issue before the IELRB.

An administrative decision is a final order if it terminates the proceedings before the agency and fixes the rights and liabilities of the parties involved. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101.) An agency, being a creation of statute, has only those powers specifically conferred upon it. (Pearce Hospital Foundation v. Public Aid Comm’n (1958), 15 Ill. 2d 301, 154 N.E.2d 691.) It has no inherent authority to amend or change a decision it has made. (Reiter v. Neilis (1984), 125 Ill. App. 3d 774, 778, 466 N.E.2d 696, 699; Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 224 N.E.2d 671.) In situations where administrative agency rules purporting to authorize rehearings from agency decisions were not involved, the supreme court has consistently held that an administrative agency may allow a rehearing, or modify and alter its decisions, only when authorized to do so by statute. Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 521 N.E.2d 913; Pearce Hospital, 15 Ill. 2d at 307, 154 N.E.2d at 695; see also Caldwell v. Nolan (1988), 167 Ill. App. 3d 1057, 1061, 522 N.E.2d 175, 179.

The IELRA does not expressly grant the IELRB the authority to reconsider its orders. Nor does the IELRA include any guidelines to be followed should a party request reconsideration of the IELRB’s orders. The IELRB is given the authority in section 5(h) of the IELRA (Ill. Rev. Stat. 1985, ch. 48, par. 1705(h)) to “adopt, promulgate, amend or rescind rules and regulations in accordance with ‘The Illinois Administrative Procedure Act’ *** as it deems necessary and feasible to carry out this Act.”

Additionally, the Administrative Review Law, section 3 — 101, indicates legislative recognition to agency rules providing rules on petitions for rehearing in tolling the time for seeking judicial review. Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101.

However, we need not determine whether or not section 5(h) of the IELRA accords the IELRB the power and authority to adopt rules for reconsideration petitions. The IELRB admits and our research confirms that the IELRB has not adopted a formal rule regarding reconsiderations of its decisions.

Section 1105.220 of the Illinois Administrative Code (80 Ill. Adm. Code 1105.220 (Supp. Jan. 1, 1986)), which governs IELRB decisions and exceptions thereto, states in part as follows:

“(c) The Board shall review the Hearing Officer’s decision and any exceptions *** and shall issue and serve upon all parties its decision and order. This written decision and order shall include the Board’s reasons for its decision. This decision is a final decision for the purposes of the Administrative Review Law. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.)”

The IELRB argues that its previous decision in Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1106, case No. 84— CA — 0057—C (Illinois Educational Labor Relations Board, Aug. 20, 1986), which announced the standards the IELRB will use in deciding motions for reconsideration, provides the necessary authority for it to reconsider its decisions.

In Berkeley, the IELRB set out the following four standards: (1) The offer of newly discovered or previously unavailable evidence; (2) the existence of fraud; (3) the discovery of new matters or issues which for reasons outside of the control of the parties seeking reconsideration were not previously reviewed; and (4) instances of procedural infirmities or an objectively demonstrable error of fact or law made by the board. The IELRB calls these standards “defacto rules.” In further support of its position, the IELRB cites to Ackerman v. Department of Public Aid (1984), 128 Ill. App. 3d 982, 471 N.E.2d 931, where the court held that an informal procedure of an agency had the force and effect of a rule. The IELRB’s reliance on Ackerman for authority is misplaced in the context of this case.

In Ackerman, the agency involved had followed a procedure of conducting administrative hearings over the telephone. This procedure was never formally adopted as a rule but was the only avenue whereby an individual could get a hearing before the agency. The issue in that case involved a person seeking to be reimbursed under section 14.1(b) of the Illinois Administrative Procedure Act (IAPA) (Ill. Rev. Stat. 1983, ch. 127, par. 1014.1(b)) for their costs and attorney fees. This section provides that where “a party has any administrative rule invalidated by a court for any reason *** the court shall award the party *** reasonable expenses of the litigation, including reasonable attorney’s fees.” The Ackerman court found, only for purposes of section 14.1(b), that the procedure used by the agency had the effect, force, and impact of a rule and awarded the person his costs under this section. The Ackerman court did not, as the IELRB suggests, state that an informal or unauthorized procedure used by an agency is a valid rule in the context for which it was relied upon, i.e., in Ackerman, a procedure for conducting agency hearings. The holding of the Ackerman case is confined to the facts of that case and provides no authority to support the IELRB’s contention in this case.

Moreover, we find the standards adopted by the IELRB in Berkeley are not rules that can be utilized by the IELRB because it acted beyond its authority in announcing the standards. As we stated, section 5(h) of the IELRA (Ill. Rev. Stat. 1985, ch. 48, par. 1705(h)) provides that the IELRB shall adopt rules in accordance with the IAEA. Section 4 of the IAEA (Ill. Rev. Stat. 1985, ch. 127, par. 1004) authorizes the adoption of rules by an agency. Sections 5 through 5.03 of the IAEA (Ill. Rev. Stat. 1985, ch. 127, pars. 1005 through 1005.03) provide that no action by an agency to adopt a rule shall be valid unless taken in compliance with section 5. Further, section 5(a) of the IAEA provides that before an agency may adopt any rule, notice and opportunity to comment thereon must be given to the general public in accordance with section 5.01 of the IAEA. (Ill. Rev. Stat. 1985, ch. 127, par. 1005.01.) The IELRB’s actions in announcing, by agency opinion, the standards it will apply to reconsideration motions were contrary to the express rulemaking requirements set forth in the IAEA and outside the authority granted in section 5(h) of the IELRA, and thus, are void.

We next address the MEA’s argument that the order issued on November 10, 1987, was itself the result of a reconsideration by the IELRB of its initial order. We do not agree. An examination of the letter addressed to the IELRB reveals that the request was for a correction in the order portion of the decision so that the order itself was consistent with the opinion from which it was derived and also not in conflict with the statute regarding the appeal period provided to the District. The October 1987 opinion concluded that there was an impact bargaining violation by the District when it failed to bargain the “impact” of its decision to reorganize the schools on the wages, hours, and terms and conditions of teachers’ employment. However, the October 1987 order for bargaining did not include the word “impact” but ordered bargaining in such general terms that, according to the District, the order could be construed as requiring bargaining on an impact as well as a decisional basis. The order issued on October 29, 1987, was not substantively changed by the decision issued November 10, 1987, unlike the March 4, 1988, order. Rather, the decision issued in November clarified the October decision. We conclude that the November 10, 1987, order was not a reconsideration of the initial order.

The March 4, 1988, order was the result of an improper reconsideration by the IELRB of its initial decision. An order entered by an administrative agency which lacks the inherent power to make or enter it is void. (Weingart, 122 Ill. 2d at 17, 521 N.E.2d at 920.) Accordingly, we vacate the March 4, 1988, order (Mundelein, 4 Pub. Employee Rep. (Ill.) par. 1052) issued by the IELRB.

Vacated.

SPITZ and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BATES, Defendant-Appellant.
    Fourth District
    No. 4—88—0233
    Opinion filed February 9, 1989.

      Dan Kirwan and Edwin J. Anderson, both of State Appellate Defender’s. Office, of Mt. Vernon, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from an order granting the State’s motion to dismiss defendant’s amended petition under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.).

After a jury trial in May 1979, defendant was found guilty of the offenses of attempt (murder), armed robbery, and aggravated battery. He was thereafter sentenced to consecutive terms of 30 years’ imprisonment for attempt (murder) and 15 years’ imprisonment for armed robbery.

In his direct appeal, defendant questioned the propriety of the prosecutor’s closing argument and the cross-examination of defendant; argued he was denied effective assistance of counsel due to counsel’s failure to file a post-trial motion; challenged the imposition of consecutive sentences for attempt (murder) and armed robbery as based on the same offense and as improperly imposed where the court did not make use of the maximum terms available with concurrent sentencing; and argued his conviction for aggravated battery, upon which no sentence was imposed, must be vacated because it resulted from the same conduct as the greater offense of attempt (murder). This court affirmed the convictions and sentences for attempt (murder) and armed robbery, but reversed the conviction for aggravated battery and vacated the judgment on that conviction. People v. Bates (1980), 80 Ill. App. 3d 1207 (order under Supreme Court Rule 23), appeal denied (1980), 81 Ill. 2d 594, 414 N.E.2d 271.

Defendant initiated post-conviction proceedings in March 1987, and the public defender of Morgan County was appointed to represent him, with leave granted to amend the petition. The amended petition argued defendant’s constitutional rights were substantially denied during the course of trial, alleging (1) defendant was denied effective assistance of counsel where counsel failed to advise him he had a right to substitution of judge, during trial made no timely objections, and also failed to exercise defendant’s right of cross-examination, suppress in-court identification of defendant, file a post-trial motion to vacate the judgment, failed to advise defendant he could be sentenced to consecutive sentences if convicted, or challenge the manner in which potential jurors were selected; (2) the jury selected was chosen from a list of registered voters and systematically eliminated blacks; (3) defendant was denied effective representation on his direct appeal where counsel indicated a transcript of voir dire would be appended to the record and additional argument made on jury selection but none was forthcoming; and (4) pretrial publicity was so excessive defendant was unable to receive a fair trial and his motion for change of venue should have been granted. The petition was supported by an affidavit by defendant attesting that the matters contained therein were true. After hearing arguments of counsel, the trial judge granted the State’s motion to dismiss.

On appeal, defendant does not argue error in the dismissal of the petition as to any ground stated therein. Rather, the single issue raised on appeal is whether defendant’s mittimus must be amended so he may receive credit for 121 days, rather than 119 days, of credit for time spent in custody on these offenses prior to entry of sentence. The arrest card and presentence investigation report show defendant was arrested on February 11, 1979, and was sentenced on June 11, 1979, a period encompassing 121 days. Defendant relies on People v. Scheib (1979), 76 Ill. 2d 244, 250, 390 N.E.2d 872, 875, where, in referring to section 5— 8—7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—7(b)), the court stated, “This section applies, generally, whenever a sentence of imprisonment is imposed and it requires that credit be given for all time spent in custody for the same offense.” (Emphasis in original.) Accordingly, defendant maintains the failure of the attorneys involved in the direct appeal or counsel in the post-conviction proceedings to raise any issue regarding the additional two days of sentence credit has substantially prejudiced him and amounts to ineffective assistance of counsel, citing People v. Allen (1986), 151 Ill. App. 3d 391, 502 N.E.2d 1260. Alternatively, defendant argues if his claim has not been properly preserved or is not of constitutional dimension, this court should consider the issue in the interests of an orderly administration of justice and remand his case for a determination of the correct number of days’ credit for time served on the theory that the mittimus may be corrected at any time, citing People v. Scott (1969) , 43 111. 2d 135, 251 N.E.2d 190, People v. Anderson (1950), 407 Ill. 2d 503, 95 N.E.2d 366, and People v. Miles (1983), 117 Ill. App. 3d 257, 453 N.E.2d 68.

The State argues that, although defendant’s calculation of sentence credit appears to be correct, he is not entitled to relief under the Act, and further, this issue has been waived as it was not included in the post-conviction petition, raised on direct appeal, or called to the trial court’s attention by objection at sentencing. We agree.

First, as the supreme court stated in People v. French (1970) , 46 Ill. 2d 104, 107-08, 262 N.E.2d 901, 904, cert. denied (1971) , 400 U.S. 1024, 27 L. Ed. 2d 636, 91 S. Ct. 590:

“Defendant’s contention that his court-appointed attorney on appeal in the appellate court was incompetent was not raised in the original or amended petition at the post-conviction hearing. Section 122 — 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 3D] states: ‘Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.’ ”

(Accord People v. Brouhard (1972), 53 Ill. 2d 109, 114, 290 N.E.2d 206, 209; People v. Baker (1982), 92 Ill. 2d 85, 95, 440 N.E.2d 856, 861.) Second, our supreme court has consistently held that where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been raised but were not are deemed waived. See People v. Jones (1985), 109 Ill. 2d 19, 24, 485 N.E.2d 363, 365, cert. denied (1986), 475 U.S. 1090, 89 L. Ed. 2d 735, 106 S. Ct. 1481.

On the merits, the State argues the error is not of such constitutional magnitude to be cognizable under the Act and, moreover, is so de minimis that counsel cannot be branded ineffective under the sixth amendment. (See People v. Gaines (1985), 105 Ill. 2d 79, 92-94, 473 N.E.2d 868, 875-76, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666.) The Act was signed to afford to the convicted an opportunity to inquire into the constitutional integrity of the proceedings in which the judgment was entered. (People v. Pier (1972), 51 Ill. 2d 96, 98, 281 N.E.2d 289, 290.) In proceedings under the Act, the petitioner has the burden of proof and must show he has been deprived of a substantial constitutional right before he is entitled to any relief. (Gaines, 105 Ill. 2d at 97, 473 N.E.2d at 877.) So section 122 — 1 expressly requires a defendant to assert “there was a substantial denial of his rights under the Constitution”; and section 122 — 2 that the petition “clearly set forth the respects in which petitioner’s constitutional rights were violated.” Ill. Rev. Stat. 1987, ch. 38, pars. 122—1,122—2.

We conclude the issue is not of constitutional stature. (Baker, 92 Ill. 2d at 95, 440 N.E.2d at 861, citing People v. Seidler (1974), 18 Ill. App. 3d 705, 310 N.E.2d 421; see also People v. Rife (1974), 18 Ill. App. 3d 602, 610, 310 N.E.2d 179, 185-86, appeal denied (1974), 56 Ill. 2d 590; People v. Null (1973), 13 Ill. App. 3d 60, 299 N.E.2d 792.) Sentence credit for time served prior to the entry of sentence is a statutory right (see Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b) (formerly Ill. Rev. Stat. 1971, ch. 38, par. 119 — 3, succeeding Ill. Rev. Stat. 1961, ch. 38, pars. 754b, 803b); see Ill. Ann. Stat., ch. 38, par. 119—3, Committee Comments, at 41 (Smith-Hurd 1964)) and is subject to waiver where it could have been raised in the trial court or on direct appeal but was not. See generally Annot., Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R.3d 182 (1977).

For these reasons we affirm the judgment of the circuit court of Morgan County.

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.