text:
      In re J.F.S. III, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.F.S. III, a Minor, Respondent-Appellant).
    Fourth District
    No. 4—89—0484
    Opinion filed March 22, 1990.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Respondent J.ES. III appeals from an order of the circuit court of Champaign County entered June 12, 1989, in which it committed him to the Department of Corrections, Juvenile Division (DOC). Respondent maintains the circuit court’s order must be vacated, because the State failed to comply with the notice provisions of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.). Respondent also maintains section 5—33(2) of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805—33(2)), which prohibits a trial court from imposing a determinate term sentence to DOC upon a juvenile who commits misdemeanors, violates the equal protection clauses of the United States and Illinois constitutions. We affirm.

As to respondent’s allegation that section 5 — 33(2) of the Act violates the equal protection clauses of the United States and Illinois constitutions, we note that this exact issue was raised and rejected by this court in In re T.L.B. (1989), 184 Ill. App. 3d 213, 539 N.E.2d 1340, appeal denied (1989), 127 Ill. 2d 617. We see no reason to overturn that ruling.

Plaintiffs first contention involves another phase of the continuing problems involved with the operation of the notice to parents provision of the Act in regard to delinquency proceedings. This case brings into consideration, for the first time, operation of section 5— 14(b)(2) of the Act, which states in part:

“[W]hen a petition has been filed alleging that the minor is a delinquent and the minor is in detention or shelter care, the adjudicatory hearing shall be held within 10 judicial days after the date of the order directing detention or shelter care, or the earliest possible date in compliance with the notice provisions of Section 5 — 15 and 5 — 16 as to the custodial parent, guardian or legal custodian ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 37, par. 805—14(b)(2).

Here, on April 10, 1989, the minor was paroled from the Illinois Department of Corrections, Juvenile Division. Shortly thereafter, on May 16, 1989, a supplemental petition was filed in the circuit-court of Champaign County charging the minor with further acts of delinquency. The petition was set for hearing on June 21, 1989. The petition listed the names of the minor’s parents. The mother’s address in Rantoul, Illinois, was listed, and his father was stated to live in Harrisburg, Illinois, and a post office box was listed as his place of residence. Personal service was obtained against both parents. On May 25, 1989, a further supplemental petition was filed against the minor and set for June 5, 1989. At the time, the minor was in detention. The mother was served with summons and appeared, but no service was obtained on the father. A further adjudicatory decree was entered at that hearing. A dispositional hearing was set for June 12, 1989. The mother appeared at the hearing, but the father was not noticed and did not appear. At that hearing, the court entered the order from which appeal was taken.

The record clearly shows the mother was the custodial parent. However, considering the availability of the father, error would have ordinarily resulted from the failure to gain service on the father by a summons informing him of the second supplemental petition of May 25, 1989, and the short date set for hearing. (See People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297.) However, section 5—14(b)(2) of the Act indicates that when a short hearing date is required because of the minor being in detention, the only parent who need be served is a custodial parent. Accordingly, under the circumstances here, the notice to the custodial mother and her appearance in court on June 5, 1989, enabled the court to acquire jurisdiction of the proceedings on the May 25, 1989, supplemental petition and to enter a valid adjudicatory order at that time.

At the request of the minor, a dispositional hearing was held on June 12, 1989, only seven days after the adjudicatory hearing. Section 5 — 22(2) of the Act requires further notice to “all parties-respondents” prior to the holding of a dispositional hearing. (Ill. Rev. Stat. 1987, ch. 37, par. 805—22(2).) The father was a party respondent to those proceedings, but received no notice. The custodial mother was notified and did appear. In the case of In re J.I.D. (1988), 177 Ill. App. 3d 733, 532 N.E.2d 549, we followed the holding of the Appellate Court for the Third District in the case of In re G.L. (1985), 133 Ill. App. 3d 1048, 479 N.E.2d 1234, and held that failure to give the required notice for a dispositional hearing did not deprive the court of subject-matter jurisdiction to hold such a hearing where, as here, the court had jurisdiction to hold the adjudicatory hearing. Nevertheless, we held that failure of such notice could create reversible error. In In re J.I.D., the mother, to whom notice of the dispositional hearing had been given, had previously appeared in the case and had shown significant interest in the minor, and we concluded the failure to notify her was reversible error. See also In re D.L.W. (1989), 187 Ill. App. 3d 566.

Here, the record indicated the father and the minor did not have a close relationship. Accordingly, no error resulted from the failure to notify the minor’s father of the dispositional hearing.

We affirm.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD R. LANGFORD, Defendant-Appellant.
    Fourth District
    No. 4—89—0531
    Opinion filed March 8, 1990.
    William R. Kelly, of Kelly & McCarthy, of Peoria, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert

      J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:.

Defendant, Donald Langford, was charged by information in September 1988 with a Class 4 felony violation of the Timber Buyers Licensing Act (Act) (Ill. Rev. Stat. 1987, ch. 111, par. 701 et seq.). Pursuant to a plea agreement, Langford pleaded guilty to a Class A misdemeanor offense under that act. After the trial court imposed the maximum Class A misdemeanor sentence, Langford filed a motion to withdraw his guilty plea. The trial court denied that motion and Langford appeals.

We reverse and remand for further proceedings.

Defendant was charged with violating section 5 of the Act, which states the following:

“It shall be unlawful and a violation of this Act:
***
(b) For any timber buyer to cut or cause to be cut or appropriate any timber without the consent of the timber grower.” Ill. Rev. Stat. 1987, ch. 111, par. 705(b).

The penalties section of the Act provides as follows:

“(a) Except as otherwise provided in this Section any person in violation of any of the provisions of this Act, or administrative rules thereunder, shall be guilty of a Class A misdemeanor.
(b) Any person convicted of violating subsections (a) or (b) of Section 5 of this Act is guilty of a Class 4 felony if the aggregate value of the timber purchased, cut, caused to be cut or appropriated, is over $300.” Ill. Rev. Stat. 1987, ch. 111, pars. 711(a), (b).

The information originally charged that the aggregate value of the timber appropriated was over $300. On the day of trial, defendant and the State entered into a plea agreement. If the defendant pleaded guilty, the State would amend the charge to a misdemeanor and recommend a maximum jail sentence of 30 days. However, after considering the presentence report prepared by the probation office, the court sentenced defendant to one year in the county jail, levied a fine of $500, imposed restitution in the amount of $5,000, and ordered reimbursement of $100 to the county for the services of court-appointed counsel.

Subsequently, defendant filed a motion to reconsider his sentence and for leave to withdraw his plea of guilty. At the hearing on this motion, the court ordered that the balance of defendant’s incarceration be converted from straight time to periodic imprisonment and that defendant begin making restitution payments in monthly installments. The court did not consider defendant’s motion for leave to withdraw his guilty plea. That issue was resolved pursuant to defendant’s second motion to withdraw his guilty plea. At the hearing on that motion, defendant argued, inter alia, the information was void because it failed to allege a mental state and because the facts in the charge, if true, did not allege a crime. Before this court, he elaborated further on that argument, explaining that the information did not allege that he is a “timber buyer.” Defendant’s motion was denied.

Whether a guilty plea should be withdrawn is within the sound discretion of the trial court. This discretion will not be disturbed unless the defendant establishes that (1) the plea was entered due to a misapprehension of the facts or law, (2) he has a worthy defense, or (3). his guilt is in doubt and justice requires that the case be tried. (People v. Spicer (1970), 47 Ill. 2d 114, 116, 264 N.E.2d 181, 182; People v. Van Ostran (1988), 168 Ill. App. 3d 517, 520-21, 522 N.E.2d 851, 853.) The standard of review is whether the trial court committed an abuse of discretion. Spicer, 47 Ill. 2d at 117, 264 N.E.2d at 183.

Both section 5 of the Act (Ill. Rev. Stat. 1987, ch. 111, par. 705) and the information charging defendant under the Act fail to designate a mental state. At the hearing on the motion to withdraw the guilty plea, the trial court indicated that it thought the charge against defendant could be an absolute liability offense. We disagree.

When a statute does not prescribe a mental state, any mental state as defined in sections 4—4, 4—5, or 4—6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 4—4, 4—5, 4—6) is applicable unless the crime is a strict liability offense. (People v. Whitlow (1982), 89 Ill. 2d 322, 333, 433 N.E.2d 629, 633.) The mental states defined in the relevant sections are intent, knowledge, and recklessness. Absolute liability cannot be imposed for an offense for which the offender may be jailed unless the legislature clearly indicated its intent to require that result. (Whitlow, 89 Ill. 2d at 332, 433 N.E.2d at 633; Ill. Rev. Stat. 1987, ch. 38, par. 4—9.) Neither the Timber Buyers Licensing Act nor its legislative history reveals any such intent.

In Whitlow, the Illinois Supreme Court had to determine which mental state, if any, should be applied to charges alleging various securities law violations when the statute was silent as to the alleged offender’s mental state. The court reviewed the analogous Federal securities laws and the cases interpreting them. Based thereon, the court concluded that scienter is an element of offenses charged under the Illinois securities law. The supreme court noted that the term scienter “embraces intentional or knowing misconduct.” (Whitlow, 89 Ill. 2d at 334, 433 N.E.2d at 634.) However, because the indictment in Whitlow charged defendants with knowing and deliberate violations of securities law, that indictment did not fail to allege a mental state. (Whitlow, 89 Ill. 2d at 335, 433 N.E.2d at 634.) The information at issue in the present appeal does not allege a mental state.

We know of no Federal counterpart to the Illinois Timber Buyers Licensing Act. However, Illinois statutes contain several crimes against property. A “knowing” mental state is typically required for these offenses to be committed. See, e.g., Ill. Rev. Stat. 1987, ch. 38, pars. 16—1 (theft), 19—1 (burglary), 20—1 (arson), 21—1 (criminal damage to property).

We hold that the information was deficient because it did not allege a mental state. Because the trial court misapprehended the law regarding the issue of the mental state required to be alleged in a charge under the Act, we hold it abused its discretion by refusing to vacate defendant’s guilty plea.

Defendant also argues that the information was void for failing to allege that he was a timber buyer. The Act’s scope is in fact limited to timber buyers (Ill. Rev. Stat. 1987, ch. 111, par. 705(b)), and the accused’s status as a timber buyer is an element of the offense. The omission of the allegation that defendant was a timber buyer similarly renders the information deficient and is an additional reason to permit defendant to withdraw his guilty plea.

Defendant has raised other issues on appeal. Because we are reversing the denial of the motion to withdraw defendant’s guilty plea for the reasons previously stated, we need not address them.

Reversed and remanded.

LUND and SPITZ, JJ’, concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEE WILLIE KEYS, Defendant-Appellant.
    Fourth District
    No. 4—89—0496
    Opinion filed March 8, 1990.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After a bench trial, defendant was convicted of two counts of delivery of a controlled substance. The trial court sentenced defendant to two concurrent three-year terms of imprisonment and fined him $100. Defendant appeals, claiming ineffective assistance of counsel and the right to full credit toward the $100 fine imposed.

The record shows that defendant was arrested on January 8, 1987. The next day, January 9, a four-count information was filed in Vermilion County charging defendant with two counts of delivery of a controlled substance and two counts of possession of a controlled substance in violation of sections 401(c) and 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(c), 1402(b)). Defendant was subsequently released on bail, and the charges involving possession of a controlled substance were nolprossed prior to the bench trial.

On January 23, 1987, a trial date of May 6, 1987, was set. However, no trial or hearing occurred on May 6, 1987. Later, a trial date of February 17, 1988, was set, and on that day the parties appeared before the court. Defendant addressed the court and stated his dissatisfaction with his attorney, a public defender, for not quickly resolving the matter. The public defender replied:

“Mr. Keys did express to me that he wished to have the matter resolved as soon as possible. Best of my recollection he did not ask for a speedy trial demand under section 103 — 5(b) or anything close to that or that something be filed, which would set in motion a deadline.
I indicated it was general policy of our office not to file such demand in that what that does frankly is to alert the Court and the State to set the trial at an early date, and at least in certain cases, if the defendant is at liberty, on bail, we find that sometimes, most of the time, tactical advantages will arise in the matter if there is not a speedy trial demand set.”

The court then explained the reason for the delay, blaming court congestion and a judge’s retirement. Defendant asked for, and received, a continuance.

On February 23, 1988, the public defender withdrew from the case and another attorney was appointed to represent defendant. The matter was continued several more times on defendant’s motions. In April 1988, defendant fled the State of Illinois and was absent for a court appearance on May 11, 1988. Defendant was taken into custody in Memphis, Tennessee, on September 23, 1988, and remained incarcerated until his bench trial on January 4, 1989, where he was convicted of the two counts of delivery of a controlled substance.

Defendant first contends that the trial court denied him the sixth amendment right to the effective assistance of counsel. Specifically, defendant argues that the public defender ignored his clear directions to file a 160-day speedy trial demand, resulting in the delay from January 9, 1987, until February 17, 1988. Defendant claims that had the public defender filed for a speedy trial, he would have been entitled to a dismissal of the charges against him, as the speedy trial statute provides that every person on bail shall be tried within 160 days from the date defendant demands trial. Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b).

To establish ineffective assistance of counsel, defendant must first show that his counsel's performance fell below an objective standard of reasonableness. Defendant must then show that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Owens (1989), 129 Ill. 2d 303, 544 N.E.2d 276.

As defendant notes, Illinois courts have recognized that a failure of defense counsel to move for a dismissal under the 120-day rule of the Illinois speedy trial statute (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(a)) may constitute the deprivation of the effective assistance of counsel in violation of the sixth amendment. (People v. Howard (1985), 130 Ill. App. 3d 967, 474 N.E.2d 1345; People v. Morris (1954), 3 Ill. 2d 437, 121 N.E.2d 810 (involving the predecessor statute to section 103 — 5).) Likewise, defendant argues, the failure of defense counsel to file a 160-day speedy trial demand, pursuant to section 103—5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b)), constituted a violation of the sixth amendment right to the effective assistance of counsel. Defendant’s argument fails for two reasons: (1) the record does not support defendant’s view that he instructed counsel to file a demand for a speedy trial; and (2) the decision to file a demand for a speedy trial is a strategic matter left for counsel. Furthermore, defendant has waived the issue for appeal.

Defendant had the statutory right to a speedy trial. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b).) Because defendant was admitted to bail, he had to demand a speedy trial to be tried within the 160 days provided by section 103 — 5(b). Defendant claims that he instructed his attorney to procure a speedy trial. What the record shows, however, is that defendant asked counsel to resolve the matter as soon as possible, and that counsel advised defendant it would be to defendant’s advantage not to demand a speedy trial. After being told of tactical advantages, defendant never insisted that counsel demand a speedy trial. Nor did defendant inform the court that he desired a speedy trial until February 17, 1988. Defendant acknowledges that all delays after February 17, 1988, are attributable to him.

Even if we were to find that defendant insisted defense counsel demand a speedy trial, the decision to not file a demand for speedy trial is a strategic matter left to the attorney. Defendant argues, however, that he has the right to make his own defense (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525), and that a speedy trial is a fundamental right. (Dickey v. Florida (1970), 398 U.S. 30, 37, 26 L. Ed. 2d 26, 31-32, 90 S. Ct. 1564, 1568; People v. Jones (1981), 84 Ill. 2d 162, 168, 417 N.E.2d 1301, 1304.) Defendant further argues that the decision as to whether or not to demand a speedy trial cannot be deemed a trial tactic, as the only realistic tactical reason not to file the demand would be for the sake of delay alone. Thus, defendant maintains, it should be his decision whether to file a demand for a speedy trial.

While the accused has the right to make decisions involving certain fundamental rights, strategic matters involving the superior ability of trained counsel are left for the attorney. (Jones v. Barnes (1983), 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312.) Fundamental rights the Supreme Court has found to be personal to the defendant include: (1) the decision to plead guilty or take action tantamount to entering a guilty plea; (2) the decision to waive the right to jury trial; (3) the decision to testify on his own behalf; and (4) the decision to forgo an appeal. (Jones, 463 U.S. at 751, 77 L. Ed. 2d at 993, 103 S. Ct. at 3312.) According to a leading treatise, the Supreme Court has also indicated in holdings or dictum that, in certain matters, the ultimate decision is best left to counsel, including: (1) whether to bar the prosecution from using unconstitutionally obtained evidence (Wainwright v. Sykes (1977), 433 U.S. 72, 91, 53 L. Ed. 2d 594, 610, 97 S. Ct. 2497, 2508); (2) whether to obtain a dismissal of an indictment on the ground of racial discrimination in the selection of the grand jury (Tollett v. Henderson (1973), 411 U.S. 258, 267-68, 36 L. Ed. 2d 235, 243-44, 93 S. Ct. 1602, 1608); (3) whether to wear civilian clothes, rather than prison garb, during trial (Estelle v. Williams (1976), 425 U.S. 501, 508-14 & nn.3 & 9, 48 L. Ed. 2d 126, 133-36 & nn.3 & 9, 96 S. Ct. 1691, 1695-98 & nn.3 & 9); (4) whether to strike an improper jury instruction (Engle v. Isaac (1982), 456 U.S. 107, 128-29 & n.34, 71 L. Ed. 2d 783, 801 & n.34, 102 S. Ct. 1558, 1572 & n.34); (5) whether to include a particular nonfrivolous claim among the issues briefed and argued on appeal (Jones, 463 U.S. 745, 754, 77 L. Ed. 2d 987, 995, 103 S. Ct. 3308, 3314); (6) whether to forgo cross-examination (Taylor v. Illinois (1988), 484 U.S. 400, 418, 98 L. Ed. 2d 798, 816, 108 S. Ct. 646, 657); (7) whether or not to put certain witnesses (other than defendant) on the stand (Taylor, 484 U.S. 400, 418, 98 L. Ed. 2d 798, 816, 108 S. Ct. 646, 657); and (8) whether to disclose the identity of certain witnesses in advance of trial (Taylor, 484 U.S. 400, 418, 98 L. Ed. 2d 798, 816, 108 S. Ct. 646, 657). (See 2 W. LaFave & J. Israel, Criminal Procedure §11.6, at 57-58 (1984); at 12-13 (1989 Supp.).) Lower court rulings have added to the list of decisions belonging to defense counsel, including whether to seek a continuance and thereby relinquish a statutory right to trial within a specified period. People v. Carr (1972), 9 Ill. App. 3d 382, 292 N.E.2d 492.

No authority has been brought to our attention that suggests the decision to demand a speedy trial is personal to the defendant. Instead, courts have recognized the importance of not demanding a speedy trial as a powerful delay tactic. (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182; People v. Joseph (1975), 33 Ill. App. 3d 315, 337 N.E.2d 110.) The Supreme Court in Barker noted that delay may work to the accused’s advantage and is not an uncommon defense tactic. As time passes, witnesses may become unavailable, or their memory might fade. And, if these witnesses support the prosecution, the case against defendant will be weakened, (Barker, 407 U.S. at 521, 33 L. Ed. 2d at 111, 92 S. Ct. at 2187.) Defense counsel in the instant case stated that it was his office’s general policy to not demand a speedy trial for tactical purposes.

Furthermore, Illinois courts have recognized that the decision to demand a speedy trial may be determined by counsel over defendant’s objections. (Carr, 9 Ill. App. 3d 382, 292 N.E.2d 492.) In Carr, the trial court granted defense counsel a continuance over the strenuous objection of defendant, who demanded speedy trial. The trial court allowed defense counsel to make the decision, even though, in doing so, defendant relinquished the statutory right to be tried within 120 days of his arrest. See also People v. Ford (1975), 34 Ill. App. 3d 79, 339 N.E.2d 293.

The two cases defendant cites as authority to show that a failure to move for a dismissal under the 120-day rule of the Illinois speedy trial statute may constitute ineffective assistance of counsel are readily distinguishable from the present case. Both Howard and Morris dealt with defendants confined to prison during the delay in question. A defendant confined to prison need not file a demand for speedy trial to be brought to trial within the statutory 120 days after being taken into custody. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(a).) The defendant in Morris spent more than 120 days in prison between his arrest and hearing, and thus had the undeniable right to discharge under the predecessor statute to section 103—5 (Ill. Rev. Stat. 1953, ch. 38, par. 748). However, at trial, defendant’s attorney, a public defender, failed to move for a dismissal of the charges. The Illinois Supreme Court agreed that defendant had been denied the effective assistance of counsel because the public defender failed to move for a dismissal of the charges pursuant to the 120-day rule, and because the attorney admitted paying little attention to the case.

The defendant in Howard used a similar argument as the defendant in Morris, that his attorney failed to seek a discharge under the 120-day rule provided in section 103 — 5(a). The Howard court, however, found no merit in defendant’s argument, as the 120-day speedy trial term had been temporarily suspended by trial continuances requested by defendant. These two. cases would only have significance in the present case if defense counsel had demanded speedy trial, 160 days had passed, defendant had the undeniable right to discharge under section 103 — 5(b), and counsel subsequently failed to raise the issue during trial.

Because the decision to demand speedy trial is a strategic matter left for counsel, and because the record shows that defendant failed to instruct his attorney to demand a speedy trial, defendant has not shown that his counsel’s actions fell below an objective standard of reasonableness as required by Strickland. As such, defendant’s claim for ineffective assistance of counsel must fail.

Moreover, we find defendant has waived the issue for review. A defendant’s failure to include an issue in a post-trial motion results in a waiver of that issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record shows that defendant failed to include this issue in his motion for a new trial. Therefore, the ineffective assistance of counsel issue is waived. People v. Tyrrel (1989), 185 Ill. App. 3d 57, 540 N.E.2d 828.

Defendant’s next contention is that he is entitled to full credit toward the $100 fine that was imposed. The State concedes the point. Defendant was assessed a statutory fine of $100. Prior to the commencement of trial, defendant was incarcerated for 111 days of the two years between his arrest and trial. Defendant is entitled to $5-a-day credit for each day incarcerated because the offenses in question were bailable. (Ill. Rev. Stat. 1987, ch. 38, par. 110—14.) Accordingly, the fine is vacated.

Affirmed in part; vacated in part and remanded.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES R. WALLER, a/k/a Roger R. Waller, Defendant-Appellant.
    Fourth District
    No. 4—89—0308
    Opinion filed March 15, 1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court;

After a jury trial, defendant was convicted of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(6).) He appeals, arguing he was denied a fair trial by improper admission of evidence of other crimes. Defendant also argues he is entitled to additional credit against his sentence.

We affirm defendant’s conviction and sentence.

The facts will be reviewed only as necessary to determine the issues.

Illinois State Trooper Woods testified after placing defendant in the squad car, he radioed for assistance. He then waited for a backup officer to arrive. Woods stated that during the struggle outside of the vehicle, he noted defendant had an odor of alcohol on his breath. Defendant had difficulty in standing. While defendant was seated in the squad car, Woods came to the conclusion that defendant was under the influence of alcohol and determined defendant should be charged with driving under the influence (DUI).

Woods asked for defendant’s identification. Defendant responded that his identification was in his wallet in his back pocket. Jane More-field, defendant’s companion, got defendant’s wallet out of his pocket and handed Woods a driver’s license. The license belonged to Charles R. Waller. Woods stated he asked if defendant had any other identification. Defendant told Morefield not to give him anything else out of the wallet. After looking at the license, Woods asked defendant if he were Charles R. Waller. Defendant stated he was. Defendant admitted driving the vehicle.

During cross-examination, Woods stated that he knew Charles Waller was defendant’s brother from information he obtained through a computer once they had returned to the station. From the computer check, he found defendant had been arrested in Champaign and Piatt Counties.

Defendant testified that he had consumed six or seven beers and half of a rum and Coke before driving home. He stopped because he saw a disabled car on the shoulder. He was not aware that he was being followed by a squad car. He and Morefield switched seats so that defendant could exit the car from the passenger side. Defendant was lying between the seats when Woods approached the Blazer because he was attempting to straighten the head of one of Morefield’s children. The child was sleeping on the backseat of the Blazer. Defendant stated he never told Woods that he was Charles Waller.

Initially, defendant argues he was denied a fair trial by testimony concerning his DUI and by the testimony on cross-examination about his prior arrests. Defendant has waived review of this issue. In a criminal case, both a trial objection and a written post-trial motion are necessary to preserve review of an issue. (People v. Enoch (1988), 122 Ill. 2d 176, 185-91, 522 N.E.2d 1124, 1129-34, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Defendant did not file a post-trial motion. Therefore, he has waived review of the prejudicial effect of the other crimes evidence.

On the merits, we note no error occurred in admitting testimony concerning defendant’s intoxication. Evidence of collateral crimes, crimes for which the defendant is not on trial, is inadmissible if relevant merely to establish a defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, such evidence is admissible if offered as part of the narrative of the offense or to impart meaning to an otherwise unexplained appearance by the police. (Lindgren, 79 Ill. 2d 129, 402 N.E.2d 238; People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837; People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179.) Lindgren narrowed the “narrative” exception. Evidence of offenses which are distinct from the offense charged, undertaken for different reasons, and which occurred at a different time and place may n’ot be admitted under the narrative-of-the-offense exception. (Lindgren, 79 Ill. 2d at 140, 402 N.E.2d at 242-43.) Here, Woods observed indicia of defendant’s intoxication while he was wrestling with defendant at the scene. The DUI occurred immediately prior to and at the place of the aggravated battery. Additionally, defendant’s possible intoxication explained his initial denial of driving, switching seats, and use of his brother’s identification.

On cross-examination, Woods stated he learned Charles Waller was defendant’s brother from information obtained in a computer check. Defendant did not object that this answer was nonresponsive. Generally, a party may not complain of evidence which he brought out. Even had review of this error been properly preserved, we do not believe the reference denied defendant a fair trial.

Defendant next argues he is entitled to additional credit for time spent in custody. Defendant was arrested for DUI and aggravated battery on August 26, 1988. He posted bond for each charge on August 27, 1988. He was then released from custody. On January 23, 1989, defendant was sentenced to six months’ imprisonment for the DUI offense. He began serving his sentence that day. However, defendant’s bond for the aggravated battery offense continued until March 23, 1989. The trial court credited defendant’s sentence for the aggravated battery for the two days served prior to his release on bond.

Individuals sentenced to prison are generally entitled to one day’s credit on their sentence for each day spent in custody, prior to their arrival at the Department of Corrections, as a result of the offense for which they were sentenced to prison. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b).) In People v. Arnhold (1987), 115 Ill. 2d 379, 504 N.E.2d 100, the court, in addressing a speedy-trial issue, held that a defendant who had posted bond on one charge and who was subsequently arrested and returned to prison on another charge is not returned to custody on the first charge until his bond is withdrawn or revoked.

Several courts have held that when a defendant who is serving a sentence for a previous offense fails to post bond while awaiting trial or sentencing on a second offense, he is entitled to credit on the sentence for the second offense for the period between the date he was charged with the second offense and the sentencing date. (See People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112; People v. Higgerson (1987), 157 Ill. App. 3d 564, 510 N.E.2d 574; People v. Powell (1987), 160 Ill. App. 3d 689, 513 N.E.2d 1162, cert. denied (1988), 486 U.S. 1025, 100 L. Ed. 2d 232, 108 S. Ct. 2001.) These courts reason that even if the defendant were not serving a sentence for the first offense, he would be subject to detention as a result of his failure to post bond with respect to the second charge. In those situations, a defendant is incarcerated as a result of both offenses prior to being sentenced for the second offense. Defendant maintains he was incarcerated for both offenses.

The holdings of Bradney, Higgerson, and Powell do not apply in the instant case. Here, under the holding of Arnhold, defendant was not returned to custody for the aggravated battery offense until his bond was revoked, withdrawn, or he was sentenced for that offense. This occurred on March 23, 1989, the sentencing date for the instant offense. Defendant was not subject to detention for both offenses on January 23, 1989, the date he began serving his sentence for the DUI conviction. Thus, the court did not err in calculating the applicable credit for time served.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANNON A. McCLURG, Defendant-Appellant.
    Fourth District
    No. 4—89—0692
    Opinion filed March 8, 1990.

      Paul R. Wilson, Jr., of Wilson & Lanto, P.C., of Rantoul, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Shannon Ann McClurg, defendant, appeals from the judgment of conviction entered by the circuit court of Champaign County after a jury found her guilty of driving while under the influence of alcohol (DUI). (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2).) Defendant was sentenced to intensive probation for a period of 12 months, and was ordered to pay a fine of $100, court costs of $114, and $25 per month as a supervision fee. The conditions of defendant’s probation included performance of 300 hours of public service work during the first 10 months of probation, refraining from the consumption of alcohol, 30 days’ home confinement, and abiding by a curfew set by the personnel of the Probation Supervision Program of the Champaign County Court Services Department.

The first issue to consider on appeal is whether defendant’s “motion in arrest of judgment” should have been granted by the trial court. The defendant was originally issued a uniform traffic citation on April 1, 1989, alleging that she was “driving under the influence” in violation of section 11 — 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501). However on June 9, 1989, four days before trial, the State filed an information alleging the defendant was DUI in violation of section 11 — 501(a)(2) of the Code. The record reflects, however, that the information was first brought to defendant’s attention on June 13, 1989, the day the hearing of this matter commenced, and at which time defendant was arraigned on the information.

The record does not disclose defendant filed a formal motion in arrest of judgment. Instead, defendant merely questioned at the hearing whether the State was filing a new charge against defendant. The trial court refused to answer the question. However, a complaint which fails to allege an offense is void and may be attacked at any time, even on appeal. (People v. Heard (1970), 47 Ill. 2d 501, 266 N.E.2d 340.) Therefore, the issue herein raised by defendant will be considered on appeal.

The State contends the filing of the information clarified the allegation in the citation and cured any defect therein. The defendant, on the other hand, argues the citation is void because it fails to state a cause of action, and therefore, the substantive amendment thereto in the information is also void.

A complaint which does not set forth the essential elements of an offense fails to state an offense and does not sufficiently notify an accused of the charges against her. A charge which fails to state an offense cannot support a judgment. People v. Smith (1984), 99 Ill. 2d 467, 459 N.E.2d 1357; People v. Leach (1972), 3 Ill. App. 3d 389, 279 N.E.2d 450.

In People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70, the Illinois Supreme Court pointed out that the subsections of section 11—501(a) of the Code are separate statutory offenses, referring specifically to driving with a blood-alcohol level of 0.10 (section 11—501(a)(1) of the Code) and DUI (section 11 — 501(a)(2) of the Code). Relying on Smith and Ziltz, the appellate court in People v. Utt (1983), 122 Ill. App. 3d 272, 461 N.E.2d 463, decided that where a uniform traffic citation alleged simply that defendant was “driving under the influence,” the charge was not sufficient, requiring a reversal of that conviction.

Prior to Utt, the Illinois Supreme Court decided Heard, in which the court reasoned as follows:

“Here, the complaint lacked the necessary certainty to charge an offense and therefore it was void and vulnerable to attack at any time. [Citations.] The State cannot properly invoke section 111 — 5 of the Code of Criminal Procedure which permits the amendment of a complaint, information or indictment for formal defects because here the defect is fundamental and the complaint void. (See People v. Billingsley, 67 Ill. App. 2d 292[, 213 N.E.2d 765].) It is true that section 111 — 5 includes pleading in the disjunctive as an example of a formal defect, but from what we have said it is clear that the legislature was speaking of instances where the use of the disjunctive created but a formal error. The section was not intended to permit the State to vivify a void charge.” (Heard, 47 Ill. 2d at 505, 266 N.E.2d at 343.)

In People v. Tucker (1971), 131 Ill. App. 2d 598, 598-99, 268 N.E.2d 191, 191-92, the following decision was made:

“A jury found defendant guilty of driving a motor vehicle while under the influence of intoxicating liquor. He was fined $100.00 and his driver’s license was revoked. Defendant appeals from the judgment on the verdict and initially contends that the complaint fails to charge a violation of law.
The complaint charged that defendant drove a motor vehicle upon a public highway in violation of Section 47 of the Uniform Act Regulating Traffic on Highways, Ill. Rev. Stat., ch. 95½, §144 (1965) by ‘driving under the influence.’
In People v. Stringfield (1962), 37 Ill. App. 2d 344, 346[, 185 N.E.2d 381, 383,] this court stated:
‘This section of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. (1961), c[h.] 95½, § 144) states that it is unlawful for any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within this state. “Driving under the influence” does not describe either of these offenses.[’]
This court further stated at page 348[, 185 N.E.2d at 383]:
‘The information was void and the conviction must be reversed.’
The People move that this court allow an amendment of the complaint by furnishing the phrase ‘of intoxicating liquor,’ and for authority cite People v. Sirinsky, 47 Ill. 2d 183[, 265 N.E.2d 505]. In Sirinsky, the court observed that the caption of the complaint was amended in this court on oral argument to reflect that the People of the State of Illinois, rather than the Municipality of Evanston was the complainant. In the case at bar the sought after amendment pertains to a substantive rather than formal amendment. In People v. Billingsley (1966), 67 Ill. App. 2d 292, [213 N.E.2d 765,] this court expressed language pertinent to the case at bar. At page 301[, 213 N.E.2d at page 770,] we said:
‘Section 111 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1963, c[h.] 38, par. 111—5) authorizes amendment at anytime because of formal, but not substantive, defects in an indictment, information or complaint. See People v. Hall (4th Dist. 1964), 55 Ill. App. 2d 255, 259, 204 N.E.2d 473. However, the complaint in the case at bar was defective in a substantive matter in that it did not allege a criminal offense. It was not amended in the trial court and we deem it improper to reverse and remand for that purpose. In view of our determination that the complaint was fatally defective, it is improper to remand the cause for the futility of a new trial (People v. Minto (1925), 318 Ill. 293, 296, 149 N.E. 241[, 242-43]), and we need not consider the other errors assigned herein.’
We reverse the judgment.” Tucker, 131 Ill. App. 2d at 598-99, 268 N.E.2d at 191-92.

In support of the State’s argument, the case of People v. Rentsch (1988), 167 Ill. App. 3d 368, 521 N.E.2d 213, is cited for the proposition that the information properly stated the charge against the defendant and therefore the trial court properly denied defendant’s motion in arrest of judgment. However, Rentsch did not discuss the amendment to a complaint which failed to properly allege an offense. Instead, Rentsch decided that where the indictment properly alleged the elements of the offense of unlawful possession of controlled substance, the fact that the charge did not specify whether defendant was being prosecuted for the cocaine in his pocket, or the PCP in the back room of the record shop he leased and operated, did not render the indictment defective where defendant had filed a motion for a bill of particulars, the motion had been granted, and the State provided a 149-page written response.

The most recent cases on this subject have distinguished charges brought in a formal complaint, indictment, or information from those made in a uniform traffic citation. In People v. Doherty (1986), 139 Ill. App. 3d 1028, 487 N.E.2d 1227, Utt was distinguished. In Doherty the uniform traffic citation alleged defendant was driving under the influence in violation of section 11 — 501(a)(2). Reading the charge to include the cited subsection of the statute, the Doherty court found the traffic citation to be sufficient and distinguished Utt wherein the uniform traffic citation merely referred to “section 11— 501(a)” of the Code. Doherty quotes People v. Atwell (1984), 129 Ill. App. 3d 724, 726-27, 473 N.E.2d 89, 91:

“ ‘Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged.’ ” Doherty, 139 Ill. App. 3d at 1032.

In People v. Cummings (1988), 176 Ill. App. 3d 293, 530 N.E.2d 672, without providing any insight as to the specific charge made in the traffic citation, the court decided:

“Additionally, we find unpersuasive the defendant’s contention that the charging instrument was confusing because it did not indicate whether he was being charged with driving a vehicle while intoxicated or with being in actual physical control of a vehicle while intoxicated. Traffic offenses need not be charged with the specificity of indictments; naming the offense and citing the statute are generally sufficient. (People v. Clark (1977), 47 Ill. App. 3d 568, 362 N.E.2d 407.) The complaint here was sufficient to charge the offense for which the defendant was convicted. For the above reasons, we conclude that the defendant was properly convicted of driving while under the influence of alcohol.” (Cummings, 176 Ill. App. 3d at 298, 530 N.E.2d at 676.)

And in People v. Askeland (1988), 166 Ill. App. 3d 78, 519 N.E.2d 494, it was decided that the allegation in a traffic ticket of “driving under the influence,” without reference to alcohol, was sufficient to apprise the defendant of the charges against her where the pretrial motions indicated she knew of the charge against her.

In the case at bar, defendant was apprised of the charges against her, if not by the uniform traffic citation, then surely by filing of the information prior to trial. If defendant was surprised by this, defendant could have requested a continuance, but did not. We are left with the impression, therefore, that defendant was not surprised by the allegation, but was alerted to a possible argument against the complaint by the filing of the information. Defendant does not argue a violation of the constitutional right to due process, and therefore, this court need not discuss that possibility.

Public policy and the law have changed since Utt. Now, in DUI cases, there is an overriding policy to protect the public from drunk drivers. Therefore, less strictness is required of the traffic citations now than was the case at the time of Utt. In LaFave and Israel on Criminal Procedure (2 W. LaFave & J. Israel, Criminal Procedure §19.2, at 437 (1984)), it is indicated that a shift in public policy occurred in the United States such that courts would not allow guilty individuals to escape punishment by arguing the defendant could not comprehend what is palpable and evident to everyone else in the exercise of common sense.

As a result, we hold that the uniform traffic citation in this case sufficiently apprised defendant of the charges against her such that she could defend herself and it was not void for failure to properly allege an offense. Moreover, since the original traffic citation was not void, the State’s amendment by information was also not void.

Also, before trial, the defendant asked the trial court to appoint a special prosecutor because the aforementioned information was verified by Richard J. Black, the assistant State’s Attorney prosecuting the case. Defendant argues that, by doing so, Black indicated he had personal knowledge of the facts alleged and Black was, therefore, a material witness in the case. Merely because the State’s Attorney signed the affidavit on an information does not in any way establish that the State’s Attorney is a material witness in the case. Even though a State’s Attorney does not know of the facts to his own personal knowledge, the State’s Attorney may verify the information based on his knowledge of the facts derived from others which satisfies him of the existence of the facts. (People v. Kennedy (1922), 303 Ill. 423, 135 N.E. 762.) The trial court properly denied defendant’s motion to appoint a special prosecutor.

The next question to consider is whether the failure of the trial court to provide a court reporter during voir dire denied defendant her right to due process. The trial judge advised defendant in open court that there were not enough court reporters to make one available during jury selection. However, the trial judge also indicated that a court reporter would be available at a later time so that a record could be made.

The defendant recognizes that it is her duty, as appellant, to provide the reviewing court with a record of proceedings. She argues, however, that the failure to provide a court reporter deprived her of the ability to preserve her objections for review. This simply is not so. The Illinois Supreme Court rules clearly provide alternative methods for preserving the record where no verbatim transcript is available. (107 Ill. 2d Rules 323(c),(d).) Defendant submitted neither a bystander’s report nor agreed statement of facts. Therefore, defendant has waived any argument concerning the sufficiency of the record and the propriety of the trial court’s rulings during voir dire. See People v. Gregorich (1979), 71 Ill. App. 3d 251, 389 N.E.2d 619.

Next, we consider whether defendant was proved guilty beyond a reasonable doubt. Under the decision of Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, in determining -whether the elements of the charged offenses have been proved beyond a reasonable doubt, the reviewing court need only examine the record, viewing the evidence in the light most favorable to the prosecution, with the objective of deciding whether any rational trier of fact could have found the essential elements of the offenses to have been proved beyond a reasonable doubt. Every reasonable hypothesis of innocence need not be excluded to sustain the conviction. It is the function of the trier of fact to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in the testimony, and the reviewing court will not retry the defendant. See People v. Eyler (1989), 133 Ill. 2d 173.

Viewing the evidence in its aspects most favorable to the State, it is obvious that a rational trier of fact could have found the essential elements of driving while under the influence of alcohol and, thereby, found defendant to have been proved guilty beyond a reasonable doubt. City of Champaign police officer Jerry Gamble testified he was on duty in his patrol car on April 1, 1989, at approximately 12:25 a.m. at the intersection of Fourth and Springfield in Champaign, when he observed the defendant’s automobile speed through a red light without stopping. The officer followed the defendant’s vehicle and activated his red light. The defendant angled her vehicle into a parking lot on the opposite side of the street, gradually crossing oncoming lanes of traffic. After stopping her vehicle, she exited. In doing so, she used the side of her car for balance as she walked to the rear of her car. Gamble stated, “She was very wobbly on her feet, didn’t have any balance. Her steps were exaggerated.”

According to Gamble, the defendant was very talkative and carefree in their conversation. Her speech was slurred and confused. She would switch topics during the conversation, volunteering information without any questions being asked. The defendant approached Gamble so that they were closer than the normal conversational distance. At this time, Gamble smelled an alcoholic odor on the defendant’s breath.

The defendant asked Gamble why he stopped her. He told her it was for running a red light. The defendant then said, “Oh, yeah, I guess so,” and did not seem concerned about it. Gamble testified that shortly after stopping the defendant, but before arresting her, the defendant admitted that she had been drinking. The defendant was given three field-sobriety tests, and failed all three. It was Gamble’s opinion that defendant was under the influence of alcohol, based on his experience and observations of defendant. The defendant did advise Gamble she had taken medication, identified as “Diocloxide,” within six hours of her stop.

City of Champaign police officer Christopher Wagner testified he was called to assist Gamble in the stop of the defendant on April 1, 1989, at approximately 12:25 a.m. Wagner testified he could smell a moderate amount of alcohol on the defendant’s breath while standing three to four feet away from her. Wagner testified the defendant’s conversation “jumped from one topic to another.” Wagner corroborated the defendant having failed the field-sobriety tests, and he noted her speech was slurred and rambling. Wagner, too, opined that defendant was under the influence of alcohol.

Kathleen Snorewicz, the 19-year-old passenger in defendant’s vehicle, admitted she and defendant had been drinking, but denied defendant was under the influence of alcohol. She stated she observed defendant have only one drink. No evidence was presented concerning the behavioral effects from taking the medication, “Diocloxide.” Based on this evidence, defendant was clearly proved guilty beyond a reasonable doubt.

The remaining issue to consider is whether defendant was deprived of a fair trial by prosecutorial misconduct. The examples of prosecutorial misconduct relied on by defendant are these: (1) the prosecutor was allowed to ask leading questions of witnesses and on redirect examination to read police reports to witnesses to determine the contents of police reports, without utilizing the proper procedures for refreshed recollection on past recollection recorded; (2) the prosecutor was allowed to ask witnesses to testify concerning another person’s state of mind; and (3) the cumulative effect of these errors and the 30 additional objections, although sustained, prejudiced defendant in the minds of the jurors, particularly where the prosecutor repeated questions after the objections were sustained.

Without laboriously quoting every portion of the record to which defendant refers in her brief, we can assure the parties that the transcript has been reviewed and no prosecutorial misconduct has been discovered. Where defense counsel objected to the form of the question or lack of foundation, or some similar objection, and the objection was sustained, the prosecution either rephrased the question or moved on to a different subject. Where the police officer was questioned on redirect as to what was included in the police report, this line of questioning was in response to and invited by the cross-examination by defendant on the subject of what was omitted from the police report. Furthermore, considering the evidence and the fact this is not a close case, any error which might arguably have occurred with regard to the redirect examination concerning police reports was harmless beyond a reasonable doubt.

Accordingly, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE HAMILTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0419
    Opinion filed March 8, 1990.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Following a bench trial in the circuit court of Livingston County, defendant Andre Hamilton was found guilty but mentally ill on two counts of the felony offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, pars. 12—4(b)(6), (e).) The circuit court sentenced defendant to an extended nine-year term of imprisonment. Defendant now appeals.

This case arose out of an incident at the Pontiac Correctional Center on July 6, 1988. Defendant contacted a guard with a request for nonemergency medical attention during his evening cell count. The guard called in the request after the cell count had been completed. He then returned to the cell of defendant, and defendant threw a hot solution of caustic liquid at the guard. The guard suffered serious burns on his head with permanent damage to his vision as a result of the attack.

The sole issue on review is whether defendant was denied effective assistance of legal counsel at trial. We affirm.

A defendant has the right to effective assistance of counsel in State criminal proceedings. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8.) “Effective assistance means competent, but not perfect and successful, representation.” People v. Montgomery (1986), 141 Ill. App. 3d 428, 435, 490 N.E.2d 206, 211, cert. denied (1986), 479 U.S. 866, 93 L. Ed. 2d 151, 107 S. Ct. 224.

Illinois employs a two-prong test for determining the competency of legal counsel. (People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56.) Under this test, a defendant bears the burden of proving his case was so seriously prejudiced by the deficient conduct of counsel that a just result was not produced at trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Such a determination will take the totality of the circumstances into account to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

Defendant contends legal counsel prejudiced his case by switching the defense strategy from insanity to mental illness at trial. In effect, he argues counsel conceded to the prosecution on the issue of insanity without first subjecting his case to critical adversarial testing. United States v. Cronic (1984), 466 U.S. 648, 656-57, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045; see also People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513.

The facts in this case do not show legal counsel failed to subject his case to critical adversarial testing at trial. “Errors in judgment, discretion, tactics or trial strategy do not establish incompetence.” (People v. Smith (1988), 172 Ill. App. 3d 94, 111, 526 N.E.2d 849, 859.) The record shows counsel took affirmative action to build a case for defendant. He initiated an investigation into the mental health of defendant prior to trial. Defendant was evaluated as suffering from a paranoid type of chronic schizophrenia, but there was no psychological evidence he “lackfed] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” at the time of the incident. (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(a).) Given this unfavorable psychological evaluation, legal counsel could not have developed a successful insanity defense at trial. Counsel acted in the best interests of defendant in switching to the ultimately viable mental illness defense. See Ill. Rev. Stat. 1987, ch. 38, par. 115—3(c).

Defendant, under the circumstances in this case, was not denied the effective assistance of legal counsel at trial. We affirm the judgment of the circuit court of Livingston County.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    REBECCA A. KIRKMAN, by Margaret Kirkman, her Mother and Next Friend, Plaintiff, v. DONALD KIRKMAN et al., Defendants (Bushnell Tank Company et al., Defendants and Counterclaimants; Donald Kirkman et al., Counterdefendants; Bushnell Tank Company, Third-Party Plaintiff-Appellant; Steven Jones, Third-Party Defendant-Appellee). — LARRY KIRKMAN, Plaintiff, v. TRACEY WALKER, d/b/a Whitey’s Car Wash, et al., Defendants (Bushnell Tank Company et al., Defendants and Counterclaimants; Bushnell Tank Company, Third-Party Plaintiff-Appellant; Don Kirkman, Third-Party Defendant; Steven Jones, Third-Party Defendant-Appellee).
    Fourth District
    Nos. 4—89—0745, 4—89—0746 cons.
    Opinion filed March 8, 1990.

      Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellant.
    Robert P. Moore and David R. Moore, both of Law Offices of Robert P. Moore, P.C., of Champaign, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Bushnell Tank Company (Bushnell) appeals from an order of the Douglas County circuit court granting summary judgment for third-party defendant Steven Jones in each of the cases consolidated here on appeal.

We affirm.

Jones purchased a new 1986 Chevrolet pickup truck for use in his insulation hauling business. He purchased a 110-gallon auxiliary gas tank, manufactured by Bushnell, from Mattoon Rural King Supply, Inc. (Rural King), on November 1, 1987. The tank was installed in the bed of the truck next to the cab.

Don Kirkman began driving the truck for Jones in February 1987. In March, Don noticed a “pinhole” leak on a welded seam of the auxiliary tank and patched it himself. Jones learned of the leak when he saw Don fixing it. Don continued driving the truck for Jones until Don purchased it on July 1, 1987. After Don patched the tank in March 1987, it did not leak again until July 4,1987.

On July 4, 1987, Don drove the truck to Tuscola, Illinois, to purchase gasoline for the truck and auxiliary tank. He was accompanied by his two-year-old daughter, Rebecca, Don’s brother, Larry Kirkman, and Larry’s son, Tony. Don noticed the auxiliary tank was leaking again, so he drove to a nearby store and purchased a gas tank repair kit. Don then drove to a car wash in Tuscola to repair the tank. Tracey Walker owns the car wash.

Don and Larry decided to repair the truck at the car wash so the leaking gasoline could run into a drain. They attempted to repair the tank while the children remained in the backseat of the truck’s cab. The gasoline dripping into the car wash’s drain ignited, resulting in a fireball and fire which destroyed the truck and car wash and severely injured Rebecca and Larry.

Rebecca, through her mother, filed suit against her father, Walker, and Bushnell. Larry sued Walker, Rural King, and Bushnell. Rebecca alleged Bushnell sold the tank to Rural King, which in turn sold it to Jones. The tank left the manufacturer allegedly in an unreasonably dangerous condition because the seams were improperly welded, resulting in the leak. The leak and accompanying fumes from the leaking gasoline allegedly caused the fire, which injured Rebecca.

Bushnell filed a third-party complaint against Jones, alleging Rebecca’s injuries were proximately caused by Jones’ negligence. Jones’ alleged acts of negligence included failing to notify Bushnell of the prior leak, failing to request repair or replacement under Bushnell’s warranty, failing to have the tank inspected and repaired by a qualified person after the first leak, and allowing Don to attach a patch on the leak. Bushnell sought contribution from Jones.

Larry’s complaint against Bushnell contained allegations similar to those in Rebecca’s complaint against Bushnell. Bushnell filed another third-party complaint against Jones repeating the allegations made against Jones in the third-party complaint filed in Rebecca’s case.

Jones moved for summary judgment against Bushnell, alleging there were no genuine issues of material fact. Title to and possession of the truck had passed to Don four days before the accident. Don had driven the truck for four months before purchasing it from Jones and had noticed and repaired the first leak. The tank did not leak after Don repaired it in March until July 4. Jones argued a finding by the circuit court that he owed Rebecca or Larry a duty would violate Illinois public policy. Finally, even if he did owe a duty, Jones argued the intervening acts of Don proximately caused the injuries.

The circuit court granted Jones’ motion for summary judgment, finding that Jones did not have title to or possession of the truck and tank on the date of the accident and owed no duty to Rebecca or Larry.

Summary judgment is appropriate where the pleadings, depositions, and affidavits show (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223, 1224; see also Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) “On appeal from an order granting summary judgment, the reviewing court must consider all grounds and facts urged below to determine if a genuine issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law.” Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 741, 415 N.E.2d 434, 440.

Bushnell asserts Jones is subject to liability in tort under the provisions of section 388 of the Restatement (Second) of Torts. That section states,

“One who supplies directly *** a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the matter for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” (Emphasis added.) Restatement (Second) of Torts §388, at 300-01 (1965).

The scope note preceding this section indicates it applies to all persons who supply chattel for the use of others. Comment k makes clear that one supplying a chattel for another must warn of dangerous conditions, “if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.” Restatement (Second) of Torts §388, comment k, at 306 (1965).

In Trust Co. v. Lewis Auto Sales, Inc. (1940), 306 Ill. App. 132, 28 N.E.2d 300, the appellate court affirmed a trial court ruling directing a verdict for defendant, seller of a used car. Defendant sold the used car to Ozeran. Ozeran’s friend Glickman usually drove the car; Ozeran drove it only on the date of the accident. Glickman testified the brakes on the car never functioned properly. The car was taken to the defendant several times for repair, but the problem was never remedied. The brakes failed while Ozeran was driving, and he struck and killed Aranoff.

The court wrote,

“In the Restatement of the Law on Torts, §388, it is said to be the secondhand dealer’s duty to inform the buyer of the defective condition of the automobile. In the instant case the testimony on behalf of plaintiff shows beyond doubt that Ozeran, the vendee, knew of the defective condition of the brakes.
*** We are of the opinion the trial court correctly ruled upon defendant’s motion for a directed verdict, and the judgment is affirmed.” Trust Co., 306 Ill. App. at 137, 28 N.E.2d at 302.

A later Illinois case described the duty to warn as follows. “In Illinois, the duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur. [Citation.] An alternative formulation of the duty is found in section 388 of the Restatement (Second) of Torts.” (Baylie v. Swift & Co. (1975), 27 Ill. App. 3d 1031, 1042, 327 N.E.2d 438, 447.) The court went on to discuss comment k of section 388. The supplier has a duty to warn only when he has no reason to believe the person receiving the chattel will perceive the danger.

“This is akin to the notion of ‘unequal knowledge’ *** and appears to reflect the thinking of this court when it noted that ‘[t]he purpose of warning is to apprise a party of the existence of a danger of which he is not aware ***. There is no duty to warn against risks which are known and obvious.’ Bakovich v. Peoples Gas Light & Coke Co., 45 Ill. App. 2d 182, 188-89, 195 N.E.2d 260.” Baylie, 27 Ill. App. 3d at 1043, 327 N.E.2d at 447.

The pleadings, depositions, and affidavits in this case indicate Jones knew of the previous leak in the gas tank but did not warn Don of the dangers before Don purchased the truck. However, the language of section 388, comment k and the case law analyzing section 388 indicate Jones was not required to warn Don.

Don was driving the truck when the first leak developed and he fixed it. He subsequently drove the truck for four months, which meant he was responsible for filling the tank with gasoline. Finally, Don’s deposition testimony indicates he understood and appreciated the dangers present when gasoline leaked out of the tank. His awareness of these dangers prompted him to go to the car wash to attempt to repair the tank. Jones knew Don knew about the first leak as it was Don who repaired the leak. This, coupled with the fact that Don drove the truck for four months, provided Jones with ample reason to believe Don would discover a future leak and realize the danger involved. There was no unequal knowledge between the seller and buyer in this instance. Thus, Jones is not subject to liability in tort under section 388.

Section 389 of the Restatement (Second) of Torts states,

“One who supplies directly *** a chattel for another’s use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject- to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.” (Emphasis added.) Restatement (Second) of Torts §389, at 311 (1965).

Again, Don was not ignorant of the dangerous character of the auxiliary tank, either before or after he purchased it. Jones is not subject to liability in tort under section 389.

Bushnell raises an additional issue under Illinois’ contribution statute (Ill. Rev. Stat. 1987, eh. 70, par. 302(a)), alleging that public policy considerations underlying the statute require that Jones remain a party to the lawsuits until juries can determine whether he bears any liability.

The statute states, in pertinent part,

“Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property *** there is a right of contribution among them, even though judgment has not been entered against any or all of them.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).)

Because we have already determined Jones is not liable in tort to Bushnell, the contribution statute is inapplicable, and we decline to address the merits of this argument.

There were no genuine issues of material fact and Jones was entitled to judgment as a matter of law. The circuit court properly granted Jones’ summary judgment motion.

Judgment of the circuit court is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
    CHARLES WISSMILLER, Plaintiff-Appellee, v. LINCOLN TRAIL MOTOSPORTS, INC., et al., Defendants (Honda R&D Company, Ltd., Defendant-Appellant).
    Fourth District
    No. 4—89—0521
    Opinion filed March 8, 1990.

      Costigan & Wollrab, P.C., of Bloomington, and Shepherd, Sandberg & Phoenix, P.C., of St. Louis, Missouri (Robert W. Neirynck, Reed W. Sugg, and Rodney M. Sharp, of counsel), for appellant.
    James Walker, Ltd., of Bloomington (Dean Engelbrecht, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Honda R&D Company, Ltd. (R&D), appeals a circuit court order which overruled its special and limited appearance for the purpose of objecting to in personam jurisdiction. R&D contends it lacks sufficient minimum contacts with Illinois to justify the exercise of long-arm jurisdiction over it, and in any event, it was not properly served with process.

This litigation arose out of an accident which occurred on August 9, 1986, during an all-terrain vehicle (ATV) race at the Clark County Fair. While the plaintiff, Charles Wissmiller, was riding on a three-wheel, Honda model 250R all-terrain cycle, he allegedly fell or was thrown from the vehicle and sustained permanently disabling injuries. On December 24, 1987, Wissmiller filed a complaint against numerous defendants. His complaint was subsequently amended to allege liability on the part of American Honda Motor Company, Inc. (American Honda), and Honda Motor Company, Ltd. (Honda), which is American Honda’s parent company. The counts directed to Honda and American Honda alleged a proximate cause of Wissmiller’s injuries was design defects in the ATV which he was riding at the time of the accident.

On August 5, 1988, Wissmiller was granted leave to further amend his complaint by adding a seventh count, which named R&D as an additional defendant. In this count, Wissmiller again alleged the accident in which he was injured was attributable to design defects in the Honda model 250R ATV. On October 3, 1988, a summons directed to R&D was served on CT Corporation System (CT), which is American Honda’s registered agent in Illinois. On the same day, CT returned this summons to Wissmiller’s attorney with a statement to the effect that (1) it was not the registered statutory agent for R&D in Illinois, and (2) the Secretary of State had “no listing for this entity being either incorporated or qualified in Illinois as to date.” On November 3, 1988, Wissmiller moved for a default judgment against R&D, and the court allowed this motion on November 9,1988.

On December 8, 1988, R&D entered a special and limited appearance and filed a motion to quash service of process pursuant to section 2 — 301(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—301(a)). This motion alleged Wissmiller’s attempt to serve R&D by serving process on CT was ineffective, because American Honda is not a de facto agent of R&D for the purpose of service of process. Also, R&D alleged Wissmiller’s attempted service of process was ineffective because process was not served upon it through Japan’s Minister of Foreign Affairs, and because the summons and complaint were not translated into Japanese. R&D asserted that under the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,” better known as the Hague Convention (opened for signature November 15, 1965, 20 U.S.T. 361-73, T.I.A.S. No. 6638, 658 U.N.T.S. 163 (reprinted in 28 U.S.C.A. Fed. R. Civ. P. 4, at 130-45 (West Supp. 1989); VIII Martin-dale-Hubbell Law Directory, Pt. VII, Selected International Conventions, at 1-9 (1987))), both of these requirements had to be fulfilled in order for process to be validly served upon it. Alternatively, R&D contended it did not have sufficient minimum contacts with Illinois to permit the exercise of “long-arm” jurisdiction over it.

In an order entered May 25, 1989, the circuit court set aside the default judgment which it had previously entered against R&D, but overruled R&D’s special and limited appearance. On July 10, 1989, this court allowed R&D’s motion for leave to appeal under Supreme Court Rule 306 (107 Ill. 2d R. 306) from the circuit court order which overruled its special and limited appearance.

We conclude the circuit court’s July 10, 1989, order must be reversed because R&D was not properly served with process. R&D makes a two-pronged attack on the purported service of process upon it. First, it argues the purported service of process was not valid under Illinois law because there is no evidence (1) American Honda, on whose agent the process directed to R&D was served, exercises any control over R&D, or (2) such service would have made R&D aware of the pendency of this action. R&D asserts it is doubtful one sister corporation could ever control the affairs of another sister corporation, and therefore, service of process on a sister corporation as agent of another sister corporation can never be proper as a matter of law. R&D notes in Geick v. American Honda Motor Co. (C.D. Ill. 1987), 117 F.R.D. 123, the court held even American Honda and Honda are not so closely related that service of process on American Honda constitutes effective service on Honda. R&D further observes CT returned to Wissmiller’s attorney and to the trial court the process directed to R&D which was served upon CT in its capacity of registered agent for American Honda.

Second, R&D contends the purported service of process upon it was invalid because of nonconformity to the procedures prescribed by the Hague Convention. R&D implies the Hague Convention sets forth the exclusive methods for service of process upon parties having their principal places of business in signatory nations other than the forum nation. R&D contends the purported service of process upon it violated the terms of the Convention because process was not submitted to Japan’s Minister of Foreign Affairs for service upon R&D and because the documents served were not translated into Japanese.

Wissmiller argues the Hague Convention is inapplicable to this case, and R&D was properly served with process by means of substituted service in Illinois. Wissmiller further maintains since R&D did not file a report of the proceedings at the May 25, 1989, hearing at which the circuit court determined R&D was properly served with process, this court must presume (1) in making that ruling, the circuit court acted within its discretion, and (2) the circuit court’s judgment conforms to the law and has a sufficient factual basis.

There appear to be no Illinois cases dealing with the question of whether a subsidiary corporation may be served with process by means of service on another corporation which is a subsidiary of a common parent. However, several cases do address the question of whether a parent corporation may be served with process through service on a subsidiary. In such cases, the focus is on whether the parent corporation is “doing business” in Illinois, which in turn depends on the relationship between the parent and the subsidiary. Among the relevant factors in determining whether the parent-subsidiary relationship establishes the parent is doing business in Illinois are (1) the control exercised by the parent over the subsidiary, (2) obligations of the subsidiary to service the parent’s products, (3) inclusion of the subsidiary’s name and address in the parent’s advertising, (4) joint sponsorship of promotional activities, (5) interlocking directorships, (6) the sites of meeting of the subsidiary’s board of directors, and (7) whether the subsidiary is authorized to prosecute trademark infringement suits in the parent’s name. Maunder v. DeHavilland Aircraft of Canada, Ltd. (1984), 102 Ill. 2d 342, 466 N.E.2d 217; Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857; Schlunk v. Volkswagenwerk Aktiengesellschaft (1986), 145 Ill. App. 3d 594, 495 N.E.2d 1114, aff’d (1988), 486 U.S. 694, 100 L. Ed. 2d 722, 108 S. Ct. 2104.

The mere existence of a parent-subsidiary relationship is insufficient to establish the close ties necessary for a subsidiary to be deemed a parent’s agent for service of process. (See, e.g., Geick, 117 F.R.D. 123.) On the other hand, it is not necessary that a parent’s control of a subsidiary be so pervasive as to make the.two corporations essentially one, or to make the subsidiary an alter ego or a mere department of the parent. Schlunk, 145 Ill. App. 3d 594, 495 N.E.2d 1114.

In the present case, Wissmiller presented virtually no evidence concerning the relationship between Honda, American Honda, and R&D, aside from the bare statement in his complaint that American Honda and R&D are subsidiaries of Honda. By contrast, Hiroshi Kurosawa, R&D’s manager, technical administration, stated in his affidavit filed in support of R&D’s special and limited appearance:

“8. *** Honda R&D Co., Ltd. is a separate and distinct corporation from American Honda Motor Co., Inc. and is a wholly owned subsidiary of Honda Motor Co., Ltd.
9. *** Honda R&D Co., Ltd. has its own Board of Directors and its own employees who determine policies and carry out the business of Honda R&D Co., Ltd.
10. *** Honda R&D Co., Ltd. does not control or supervise the daily business affairs of American Honda Motor Co., Inc. *** American Honda Motor Co., Inc. is totally autonomous from Honda R&D Co., Ltd. and each set their own policies and operate their business separate and apart from each other.”

Also filed in support of R&D’s special and limited appearance was an affidavit of Edward Glynn, assistant to the executive vice-president, product legal, of American Honda. In this affidavit, Glynn stated:

“7. *** American Honda Motor Co., Inc. is a separate and distinct corporation from Honda R&D Co., Ltd. *** Honda R & D Co., Ltd. does not control or supervise the daily business affairs of American Honda Motor Co., Inc.”

When the statements contained in the Kurosawa and Glynn affidavits are considered in view of the bare allegation of a parent-subsidiary relationship contained in Wissmiller’s complaint, it becomes apparent that the record does not support a conclusion American Honda and R&D have such a close relationship as to make American Honda R&D’s agent for service of process.

The absence from the record of a transcript of the May 25, 1989, hearing does not require affirmance of the circuit court order overruling R&D’s special and limited appearance. Where the parties rely solely on facts contained in the complaint and affidavits, a transcript of the hearing on a special and limited appearance is not necessary for review of the circuit court ruling thereon. (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131.) In this case, the parties do not rely on facts other than those stated in Wissmiller’s complaint and in the Glynn and Kurosawa affidavits.

The two cases on which Wissmiller relies in support of his argument as to the necessity for a transcript of the May 25, 1989, hearing are distinguishable from the case at bar. In Price v. Grefco, Inc. (1989), 187 Ill. App. 3d 514, 543 N.E.2d 521, the plaintiff contended the circuit court improperly ordered him to direct a third party to release copies of his medical records and erred in dismissing his action as a sanction for his failure to do so. The plaintiff did not cause to be included in the record on appeal transcripts of any of the hearings which preceded these orders, and the record apparently contained little or nothing relevant to the question of whether the plaintiff acted properly in refusing to comply with the circuit court’s discovery orders. Thus, this court could not determine from the record whether any of the matters upon which the plaintiff relied in support of his contention, that the circuit court’s discovery and dismissal orders were improper, were actually presented to the circuit court before it entered those orders. In the present case, by contrast, the affidavits which R&D filed in the circuit court prior to entry of the May 25, 1989, order fully support its arguments on appeal, and R&D does not rely on any evidence other than that which the record clearly indicates was before the circuit court when it overruled R&D’s special and limited appearance.

Likewise, in Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246, the plaintiff-appellant contended an insurer waived the contractual limitation period contained in an insurance policy and, therefore, was estopped from asserting it. As a result of the lack of a report of proceedings, the record on appeal did not contain the facts relevant to the purported waiver and estoppel. Therefore, the appellate court rejected the plaintiff’s waiver and estoppel argument. In the present case, unlike Davis, the plaintiff-appellant’s contentions are not premised on facts not in the record filed in the appellate court.

Because we hold Wissmiller did not establish American Honda is R&D’s agent for service of process, and the record is thus insufficient to support a holding R&D was properly served with process, resolution of the remaining issues raised by the parties is unnecessary to our disposition of this appeal. However, because of the possibility of further circuit court proceedings, we briefly address two of these issues. First, if American Honda were R&D’s agent for service of process, compliance with the procedures for service of process prescribed by the Hague Convention would not be necessary. The Hague Convention applies only where process is actually served in a foreign country. Where service is properly effected in the forum nation, the Convention is wholly inapplicable. (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988), 486 U.S. 694, 707-08, 100 L. Ed. 2d 722, 735-36, 108 S. Ct. 2104, 2112.) Thus, if American Honda were R&D’s agent for service of process, it would not be necessary for Wissmiller to have the complaint and summons translated into Japanese or otherwise comply with the Hague Convention.

We further observe that contrary to R&D’s contentions, it has been held a defective design is a product for purposes of establishing long-arm jurisdiction over a foreign defendant. See, e.g., Wessinger v. Vetter Corp. (D. Kan. 1987), 685 F. Supp. 769.

The circuit court’s May 25, 1989, order overruling the special and limited appearance of Honda R&D Company, Ltd., is reversed. This cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

GREEN and STEIGMANN, JJ., concur.


text:
    WADE A. WHELCHEL, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—89—0480
    Opinion filed March 22, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Carl R. Draper, of Feldman & Wasser, of Springfield, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Wade A. Whelchel filed a petition with the defendant Secretary of State (Secretary) requesting either the reinstatement of his driving privileges or the issuance of a restricted driving permit (RDP). The Secretary denied both requests. Upon administrative review, the Sangamon County circuit court reversed that decision as to the RDP and ordered the Secretary to issue an RDP. The Secretary now appeals from that order, and we affirm the denial of full reinstatement and reverse as to the issuance of the RDP.

The petition of the plaintiff was set for hearing on April 1, 1988. The plaintiff offered the following evidence in support of his petition: (1) his driving record; (2) his substance-abuse evaluations; and (3) his character witnesses.

The plaintiff has been charged with multiple traffic offenses in the State of Illinois. He was convicted of speeding on four separate occasions between November 1978 and July 1981. The plaintiff was also twice convicted of driving while intoxicated (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501) and of driving without a license (Ill. Rev. Stat. 1987, ch. 95½, pars. 6—205(a)(2), 6—303) on separate occasions in August 1981, September 1982, and October 1985.

The plaintiff underwent his first substance-abuse evaluation in September 1982. He was classified as a Level II problematic user of alcohol. (92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).) Based on that classification, the examiner recommended outpatient counseling for the plaintiff. The plaintiff successfully completed four counseling sessions. The plaintiff underwent his second substance-abuse evaluation in October 1987. He was classified as a Level I nonproblematic user of alcohol. (92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).) Based on that classification, the examiner recommended no additional counseling for plaintiff.

The character witnesses were all members of the immediate family of the plaintiff. They have individually supported the plaintiff in his effort to abstain from the use of alcohol. The witnesses also offered favorable testimony on the current life-style of the plaintiff. They agreed the plaintiff had significantly improved his life-style through abstinence from alcohol beginning in February 1987.

The officer presiding at the hearing was not clearly convinced the plaintiff had resolved his alcohol problem. The hearing officer discounted the reliability of the second substance-abuse evaluation on the plaintiff because the examiner had not reviewed the recorded information about the plaintiff in its entirety. He also noted the examiner had not addressed the fact the plaintiff had continued to abuse alcohol following counseling on his DUI convictions. Absent reliable evidence to the contrary, the hearing officer could not find the plaintiff a safe and responsible driver entitled to either full or partial reinstatement of his driving privileges. (See 92 Ill. Adm. Code §§1001.430(c), 1001.440, at 3520 (Supp. 1988).) The hearing officer properly recommended the Secretary deny the petition without addressing hardship on its merits.

The sole issue on review is whether the decision of the Secretary to deny the plaintiff an RDP is against the manifest weight of the evidence.

Under the administrative review statute, findings of an agency on questions of fact are considered to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) This statute has been construed to mean courts may not interfere with factual findings unless an agency has administered its authority in an arbitrary and capricious manner. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088.) The function of the reviewing court is thus limited to determining whether the findings of an administrative agency are contrary to the manifest weight of the evidence. Markowski v. Edgar (1986), 151 Ill. App. 3d 176, 180, 502 N.E.2d 1304, 1307.

The findings of an administrative agency are manifestly erroneous only when an opposite conclusion is clearly evident from the proof presented on a question of fact. (Koeck v. Edgar (1989), 180 Ill. App. 3d 332, 337-38, 535 N.E.2d 1019, 1022.) “That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency’s decision.” (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653, 456 N.E.2d 998, 1002-03.) To the contrary, the proof presented must be viewed in the light most favorable to the administrative agency, with support given to its findings unless a rational trier of fact would otherwise agree legal error is manifestly evident. Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1093-94, 492 N.E.2d 929, 933.

The restoration of driving privileges, whether full or partial, is not an automatic matter in Illinois. (Ill. Rev. Stat. 1987, ch. 95½, pars. 6—206, 6—208.) The relevant inquiry is whether restoration of driving privileges will endanger the safety or welfare of the public on the highways of Illinois. Ill. Rev. Stat. 1987, ch. 95½, pars. 6—206(c)(3), 6—208(b).

Section 6—205 of the Illinois Vehicle Code sets forth the procedures for the grant of an RDP in hardship cases. That section provides in pertinent part:

“[T]he Secretary of State in his discretion *** may, if application is made therefor, issue to [a person whose license has been revoked] a restricted driving permit granting the privilege of driving a motor vehicle between [his] residence and [his] place of employment or within the scope of [his] employment related duties, or to allow transportation *** for the receipt of necessary medical care *** if [he] is able to demonstrate that no alternative means of transportation is reasonably available and [he] will not endanger the public safety or welfare; provided that the Secretary’s discretion shall be limited to cases where undue hardship would result from a failure to issue such restricted driving permit.” Ill. Rev. Stat. 1987, ch. par. 6—205(c).

The circuit court ordered the Secretary to issue an RDP to plaintiff even though the hardship issue was not fully addressed. Because the hearing officer was legitimately concerned about the public safety and welfare, the RDP was properly denied on that basis. Further, we conclude the plaintiff has not suffered any undue hardship by the denial of an RDP under the circumstances in this action. The plaintiff currently lives at the residence of his mother in Colchester, Illinois. She generally drives him to and from work at a nearby garage. The plaintiff is employed full time as a mechanic at Depoy Auto Service. He specializes in the repair of engine transmissions, which generally requires a test drive of the vehicle. To date, though inconvenient, two other employees have finished that repair requirement for the plaintiff at Depoy. “Inconvenience is not undue hardship.” (Koeck, 180 Ill. App. 3d at 341, 535 N.E.2d at 1025.) The Secretary could therefore reasonably decide to deny the plaintiff an RDP. See Breiner v. Edgar (1985), 130 Ill. App. 3d 1010, 474 N.E.2d 1373.

The judgment of the Sangamon County circuit court is affirmed insofar as it affirmed denial of reinstatement of full driving privileges; and reversed insofar as it ordered issuance of an RDP, and the Secretary’s order is reinstated.

Affirmed in part; reversed in part and Secretary’s order reinstated.

SPITZ and STEIGMANN, JJ., concur.