author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KURT POTTHAST, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1777
    Opinion filed September 12, 1991.

      Michael J. Pelletier and Marc Davidson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Sólita L. Pandit, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant and his codefendant, Thomas Michael Harris, were tried simultaneously before two juries. Following trial, defendant was convicted of two counts of delivery of a controlled substance and sentenced to concurrent terms of six years’ imprisonment. On appeal, defendant contends that he was denied his constitutional right to effective assistance of counsel.

The evidence adduced at trial is as follows. Officer Daniel Byron of the North Eastern Metropolitan Enforcement Group (MEG) testified that on May 7, 1986, he received a telephone call from a man named Nick, whose casual acquaintance Byron had made while working as a police officer in Des Plaines, Illinois. Nick told Byron that he had arranged to introduce another person to a man named Kurt that afternoon at a specified Wendy’s restaurant. Nick advised Byron that Kurt would be driving a white Corvette, and that the purpose of the meeting was the purchase by Nick’s companion of one-eighth ounce, an “8-ball,” of cocaine from Kurt. Nick told Byron that neither he nor the other person would be going to the meeting, and that Byron could do whatever he wanted with the information. Byron met with other MEG officers to discuss Nick’s call, arrange an undercover surveillance of the meeting and obtain $275 of MEG funds with which to make the cocaine purchase.

Shortly after Byron and his partner, Officer Steven Livas, arrived at the Wendy’s, a white Corvette with two occupants entered the restaurant lot. The officers approached the car and asked the driver if he was Kurt, to which the driver, identified in court as defendant, responded that he was. Livas introduced himself as Nick and Byron as his partner, Dan. Defendant introduced his companion, identified in court as Harris, as his brother Mike. After a brief, general conversation, Livas asked defendant if he had the package, whereupon Harris removed a Newport cigarette box from between his legs and handed it to defendant, who in turn handed it to Livas. Livas looked inside the box, in which there was a clear plastic bag containing a white powdery substance. Livas told defendant that if the sample of cocaine was good, he and Dan would be interested in buying 8 to 10 ounces on a weekly basis. Defendant stated that that would not be a problem. While Livas returned to the MEG car to test the substance for cocaine, Byron remained next to the Corvette conversing with defendant and Harris. Livas returned to the Corvette and told defendant that the cocaine looked good and that they were interested in buying 8 to 10 ounces early the next week. Defendant repeated that there would be no problem except that he needed one day’s notice to make a purchase of that quantity. The officers remarked on the quality and condition of the Corvette. Defendant responded that selling cocaine and being careful in doing so allowed one to drive cars of the Corvette’s quality. Byron said that he liked doing business with people who were reliable and careful; and defendant replied that, like a retail business, a lot of money could be made selling cocaine by having a good product and being reliable. When Byron asked defendant how they could contact him, defendant gave Byron the telephone number of his electronic pager. Byron told defendant that he would contact him in the early part of the following week, gave defendant the $275 of agency funds, and left.

The following Monday, May 12, 1986, Byron called defendant on his pager number and told defendant that he wanted to purchase 8 to 10 ounces of cocaine. Defendant suggested a meeting beforehand to discuss the details of the transaction. At approximately 9:30 p.m. on May 13, 1986, Byron met defendant and Harris at Garbo’s bar. Defendant told Byron that everything was ready and informed Byron of the price per ounce of cocaine, which Byron agreed to pay. Defendant advised Byron that Harris would meet him at a specified Wendy’s restaurant the next day and take him to the location where he, defendant, would be working to conduct the cocaine transaction.

On May 14, 1986, Byron and Livas met with other MEG officers to arrange a surveillance of Byron’s meeting with defendant. They also withdrew $5,100 of MEG funds from which they had copied the serial numbers. When Byron met Harris, he told Harris that he would follow him in his own car because once he had the cocaine, he had to leave town in a hurry. Upon arriving at a residence on Normandy Avenue, Harris led Byron to a garage in the backyard. When Byron entered the garage, he saw a brown paper bag on top of a stack of car parts. Defendant handed him the bag, which contained a clear plastic bag inside of which were three smaller plastic bags containing white powder. Byron and defendant left the cocaine in the garage and walked out front to Byron’s car where he had left the money. When they returned to the garage, they exchanged the cocaine and money. As defendant was counting the money into Harris’ hands, Byron activated an arrest signal. Livas and the other officers on surveillance then entered the garage and placed defendant and Harris under arrest.

On cross-examination, Byron stated that when Nick called, he asked him what his connection was with Kurt and what motivation he had for calling concerning the drug transaction, but Nick would not tell him. Byron denied that Nick had previously informed him of drug deals or that Nick asked for or received anything in return for the information. He stated that he discussed Nick’s call with the other MEG officers, but acknowledged that he made no mention of Nick or Nick’s telephone call in his MEG report, to the assistant State’s Attorneys or in his prior testimony before the grand jury or at the preliminary hearing.

Officer Livas’ testimony was substantially the same as Byron’s concerning the first drug transaction at Wendy’s and the events he observed from his surveillance position outside the garage where the second transaction occurred. On cross-examination, Livas stated that information concerning drug deals comes from various sources, including “people who are looking to work off a beef,” i.e., people who have been arrested and agree to provide information about other crimes in exchange for a sentence of probation rather than imprisonment, but that in this case the information came from an anonymous caller. He did not know anyone named Venegas or Keleman. A computer check of the license plates on the Corvette revealed that the plates were registered in defendant’s name, but to a car other than the Corvette. Livas never learned who owned the Corvette.

It was stipulated that the Newport cigarette box contained 3.5 grams of cocaine and that the three bags recovered from the garage contained 83.3 grams of cocaine. Following these stipulations and the largely corroborative testimony of an officer on the MEG surveillance team, the State rested.

Defendant testified to the following: In spring, 1986, he was developing his own automobile body repair business. He worked out of his garage on Kedzie Avenue and also rented a garage on Normandy Avenue from a Chicago police officer. From 6 p.m. to 6 a.m., he worked handling calls for Mike’s Towing.

Defendant knew several persons, including Herman Venegas, who frequented the bar next door to his garage and whose cars he sometimes worked on, to be drug dealers. Beginning in April 1986, George Keleman, a neighborhood friend of defendant, began coming to the garage three or four times each week asking if defendant had seen Venegas. Defendant said that he had not, but if he did he would tell Venegas that Keleman was looking for him. In late April, defendant saw Keleman and Venegas go into the bar next door where they remained for approximately an hour.

On May 6, 1986, Keleman stopped by defendant’s garage, said that he was looking for Venegas and that he was in trouble with some people he met from the northwest suburbs, where Keleman had recently moved. Keleman explained that he had promised those people a large quantity of drugs but did not have them. Keleman asked defendant and Harris to go to the Wendy’s and drop off a Newport package to these people because he was afraid something would happen to him if he went there without the promised quantity of drugs. At first, defendant refused but after Keleman pleaded that it was a matter of life and death and that if defendant and Harris would help him that one time he would not ask for any other favors, defendant and Harris agreed to go. The following day, Keleman came to the garage and gave defendant a Newport cigarette box. Defendant and Harris put the license plates from defendant’s car on a customer’s white Corvette on which they had been working, and drove it to the Wendy’s, where they were approached by a man (Officer Livas), who asked them if they had something for him from George. Defendant responded that they did. A second man, who Livas introduced as Dan (Officer Byron), came up to the car. They gave the cigarette package to Livas, who took it back to the MEG car. While Livas was gone, Byron commented on the nice car defendant was driving. Defendant explained that they had been working on it. Byron mentioned that he was thinking of having his old Monte Carlo restored. Defendant replied that he had a lot of experience with cars and that if Byron wanted work done, Byron could contact him through the pager he used in his job with Mike’s Towing. When Livas returned, he gave defendant $275, which Livas said was the agreed price, and the officers then left. Defendant gave Keleman the money when Keleman came to the garage later that afternoon.

Several days later, defendant and Harris were in Garbo’s, a neighborhood bar they often patronized. Keleman came in for a short while and then left. At approximately 9:30 p.m., Byron came in, sat next to defendant and asked where Venegas was, stating that he was supposed to meet Venegas there. Defendant told Byron he didn’t know. Byron then asked if Keleman was around, to which defendant replied that he had just left. Byron remained in the bar for approximately an hour, talking primarily about his car.

On May 14, 1986, as defendant was working in the garage he rented, Keleman came in with a paper bag containing three ounces of cocaine. Keleman asked defendant if he could meet some people there in the garage rather than in public. Defendant and Harris told Keleman that it was not a good idea, particularly since the garage was owned by a police officer. Keleman said that the meeting would take only a few minutes and then asked Harris if he would go meet one of the persons and bring him back to the garage. Harris agreed and left. A few minutes later, Keleman said he was going out to buy some cigarettes and left without taking the bag of cocaine. Approximately 20 minutes later, Harris returned with Byron, who asked where Venegas was. Defendant said that he did not know but that Keleman had left a bag for him and would be returning in a few minutes. When defendant and Byron walked out to the street to look for Keleman, Byron stopped at his car and opened the door, but defendant did not see him remove anything. Unable to find Keleman on the street, defendant and Byron returned to the garage. Byron told defendant that he had some money for him, but defendant responded that Byron would have to wait for Keleman. Byron nevertheless removed some money from his shirt pocket, and a few seconds later several police officers entered the garage and placed him and Harris under arrest. Defendant testified that neither he nor Harris touched the money nor the bag of cocaine, and that prior to May 7 and 14, defendant had never been involved in any narcotics transaction or arrested.

In the State’s rebuttal, Christine Norwood testified that she and her husband owned Mike’s Towing, and that defendant had last worked for them in late 1985. She further testified that drivers carried the company’s pagers only during their shifts, after which they returned them to the company or left them in the truck for the next driver. The numbers Norwood testified were those of the company’s pagers were not the same as the number Officer Livas testified defendant gave to Byron on May 7.

Defendant and Harris were both found guilty of two counts of delivery of a controlled substance and, after the denial of their post-trial motions, sentenced to concurrent terms of six years’ imprisonment. This appeal followed.

Opinion

On appeal, defendant claims he was denied effective representation by his trial counsel. To determine whether a defendant has been denied effective assistance of counsel, reviewing courts generally use the two-part test established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and first followed by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Under that test, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. The fundamental concern underlying this test is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

When evaluating ineffective representation claims, courts ordinarily will not extend their review to areas involving the exercise of judgment, trial tactics or strategy (People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089), as even the best attorneys would not necessarily agree on the same strategy for a particular case (Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 695, 104 S. Ct. at 2065; People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513). Thus, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” (Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), and judge counsel’s performance not in hindsight but on the basis of all the facts and circumstances at the time of trial (Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065). Further, a defendant is entitled to competent, not perfect, representation, and the fact that a tactic was unsuccessful does not establish incompetence. People v. Barfield (1989), 187 Ill. App. 3d 190, 543 N.E.2d 812.

In rare cases, a defendant claiming ineffective assistance of counsel need not demonstrate actual prejudice. The Supreme Court has recognized that there are some circumstances so likely to prejudice the accused that such prejudice will be presumed. In United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, a companion case to Strickland, the Court stated that the sixth amendment requires, at a bare minimum, that defense counsel act as a true advocate for the accused; and that where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047, followed by the supreme court in People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513.

Defendant contends that the circumstances in this case are such that prejudice must be presumed under the standard in Cronic because counsel did not act as a true advocate and failed to subject the State’s case to meaningful adversarial testing. It is defendant’s position that his attorney adopted a defense theory which conceded his guilt, in that pleading the defense of entrapment required him to admit commission of the offenses; and that because counsel did not thereafter present any evidence of entrapment by police officers or agents, the jury, like that in Hattery, had no other option but to find him guilty. Defendant asserts that counsel’s unprofessional performance resulted from his misapprehension of the law of entrapment. Defendant argues that counsel apparently believed that entrapment could be established merely by showing that defendant was coerced to sell drugs by an acquaintance, i.e., George Keleman, without also showing that Keleman was a police officer or agent. Defendant maintains that counsel’s decision to plead entrapment without producing evidence of police inducement amounted to the functional equivalent of a guilty plea eliminating the requirement of proving actual prejudice.

Defendant alternatively contends that even if counsel’s performance is analyzed under the Strickland test, he has met his burden of showing that he was prejudiced by counsel’s failure to comprehend the defense theory he advanced. Relying primarily on People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, defendant argues that because the jury was properly instructed on the law of entrapment, the only way it could have acquitted him was to improperly ignore the court’s instruction. We do not find counsel’s representation in the case at bar ineffective under either the Hattery or Chandler analysis.

In People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, notwithstanding the entry of a plea of not guilty, defense counsel conceded the defendant’s guilt of the murder and his eligibility for the death penalty in the opening statement, presented no evidence and made no closing argument during the guilt/innocence phase of trial. Counsel’s strategy consisted solely of attempting to show through cross-examination that defendant’s actions were the result of compulsion, which is not a defense to murder, though it is a mitigating factor sufficient to preclude imposition of the death penalty. Applying the Cronic standard, the court reversed the defendant’s conviction, finding that his counsel’s strategy of conceding guilt, without the defendant’s consent, merely in the hope of obtaining a more lenient sentence deprived the defendant of the right of having the State’s case subjected to meaningful adversarial testing required by the sixth amendment.

In People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, the defendant was charged with residential burglary, arson and four counts of murder, including felony murder and murder based on accountability. At trial, defense counsel failed to present any witnesses, failed to cross-examine several key prosecution witnesses and conducted only a cursory examination of others. In closing argument, counsel conceded that the defendant had entered the victim’s home but argued that the defendant should not be convicted of murder because his codefendant, not he, had stabbed and killed the victim. The defendant was found guilty of murder and was sentenced to death.

On appeal, the defendant argued that counsel’s concession of guilt constituted per se ineffective assistance of counsel under Hattery. The Chandler court disagreed, finding that counsel’s remarks did not constitute an unequivocal concession of guilt as those in Hattery. The court also observed that the holding in Hattery had been narrowed in People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118, in which the court held that a concession of guilt by defense counsel does not always constitute per se ineffectiveness of counsel. The Johnson court reasoned that counsel risks losing credibility with the trier of fact if he contests those charges of which there is overwhelming evidence of guilt and no reasonable defense. Thus, the court in Chandler ruled that counsel’s remarks were not presumptively prejudicial under the Hattery analysis.

The Chandler court did, however, find that the defendant met his burden under the Strickland test. The court noted that defense counsel’s strategy, of convincing the jury that although defendant had broken into the victim’s home he did not kill the victim, was based on counsel’s mistaken belief that the jury could acquit the defendant of murder if it believed he did not inflict the fatal stab wounds. The court observed that since the jury was properly instructed on the law of accountability and felony murder, even if counsel had succeeded in persuading the jury that defendant did not stab the victim, the jury could return a not guilty verdict only if it improperly ignored those instructions. The Chandler court concluded that defense counsel’s failure to present any evidence or effectively cross-examine the State’s witnesses, together with his incomprehension of the law of accountability and felony murder, amounted to no defense at all and deprived defendant of a fair trial. The court also found that there was a reasonable probability that but for counsel’s deficient performance, the result of the trial would have been different.

With regard to counsel’s performance in the instant case, a review of the entire record reveals, first, that counsel: filed and argued a pretrial motion for severance; presented a cogent opening statement; interposed valid objections and side-bar arguments during the State’s case; thoroughly cross-examined the State’s witnesses on key points of testimony; conducted a comprehensive direct examination of defendant; moved for a directed verdict; made a forceful closing argument stressing the State’s burden of proof, challenging the credibility of the State’s witnesses, noting the inconsistencies in testimony and the absence of various pieces of evidence, and arguing the improbabilities of the prosecution’s case; requested an instruction on the lesser offense of possession; presented a written and oral motion for a new trial, compiled a file of character reference letters, including one from a gang crimes unit commander recommending leniency, and made an effective presentence argument in mitigation, all which the trial judge expressly stated persuaded him to impose the minimum sentence; and prepared a notice of appeal. In contrast to counsel in Hattery and Chandler, defense counsel acted competently and conscientiously in the overall preparation and trial of defendant’s case.

We turn then to defendant’s argument that defense counsel’s performance was nevertheless prejudicially deficient because he pursued a defense theory, i.e., entrapment, which he did not understand, which he adduced no evidence to support, and which left the jury no choice but to return a guilty verdict.

Initially, we note that prior to trial, defense counsel declared his intention to defend on the theory of entrapment. He also stated in his opening remarks that there was no dispute that defendant had transferred the cigarette package, which contained 3.5 grams of cocaine, to the undercover officers on May 7; and that he gave “some narcotics to some undercover police officers.” A close reading of the opening statement further reveals, however, that defense counsel never conceded that defendant delivered the 83.3 grams of cocaine to the officers on May 14. With respect to that date, counsel stated only that “there was a quantity of cocaine in that garage that afternoon,” and that $5,100 “was brought by these officers and transferred to Mr. Harris or to [defendant]” (emphasis added). He asserted that the cocaine was brought to the garage not by defendant, but by Keleman, whom he described as “the person working with the police officers for some specific reason.” Counsel suggested that Keleman had a prearrangement with the police and that he left the garage under the pretense of going to the store so as to leave defendant “holding the bag” when the police arrived.

Neither, as defendant asserts, did counsel elicit from defendant a confession of the May 14 delivery. Defendant denied, both on direct and cross-examinations, that he handled the bag of cocaine or the money, or otherwise participated in the delivery of narcotics that day. Counsel later argued this denial in support of his request for an instruction on the lesser offense of possession of cocaine on the ground that the jury could believe that, at most, defendant was, by virtue of his control of the premises and knowledge of the presence of cocaine, guilty of “constructive possession” of narcotics. The trial court acknowledged that “the thrust of [defendant’s] testimony was denial,” and the prosecutor agreed.

The focus of defense counsel’s closing argument with respect to the events of May 14 was credibility and reasonable doubt. He argued, essentially, that the meeting was a “set up” by Keleman and the police, and that Byron was lying when he testified that defendant sold him the cocaine. He pointed out the failure of the State to produce evidence of defendant’s fingerprints on either the bag of cocaine or the money and the absence in the police reports of many of the facts about which the officers testified. He concluded his argument with an entreaty to the jurors that if they could not resolve all doubts they had, it was their duty to find defendant not guilty. Thus, counsel’s concession of defendant’s guilt was only as to the delivery of 3.5 grams of cocaine, a Class 2 felony, on May 7. He did not concede defendant’s guilt of the delivery of 83.3 grams, a Class X felony, on May 14. Consequently, defendant’s claim of ineffective assistance on that basis must fail.

Finally, we consider defense counsel’s decision to assert entrapment as to the May 7 transaction and defendant’s claim that counsel did not understand the elements necessary to support the defense. It is axiomatic that in pleading entrapment, an accused necessarily admits having committed the crime, albeit only because of improper governmental inducement. (People v. Gillespie (1990), 136 Ill. 2d 496, 557 N.E.2d 894; People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872.) However, as with any other affirmative defense, in order to raise the defense of entrapment at trial, a defendant need only present some “slight evidence” that he was entrapped (People v. Wielgos (1991), 142 Ill. 2d 133, 136, 568 N.E.2d 861; People v. Raess (1986), 146 Ill. App. 3d 384, 496 N.E.2d 1186), whereupon it becomes incumbent upon the State to prove, in addition to each of the statutory elements of the offense, the absence of entrapment beyond a reasonable doubt (People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528; People v. Raess, 146 Ill. App. 3d 384).

The record reveals that counsel understood that it was necessary to show governmental inducement. In pretrial remarks he stated that defendant’s position would be that he was “induced by a police officer and/or agent of the police officer to act in the manner that he did.” Counsel posited that theory in his opening statement, saying that Keleman was a “dope dealer” who was “working with the police officers for some specific reason.” From the evidence earlier summarized, it is clear that counsel then attempted to deduce, through the cross-examination of the police officers and the direct examination of defendant, that the informant, whom Officer Livas claimed was anonymous, and whom Byron stated was a man named “Nick,” was actually Keleman; that Keleman had contacted the police and arranged the drug transaction to “work off a beef”; that defendant had no criminal record whatsoever; that the incautious manner in which defendant conducted himself during the May 7 drug transaction was inconsistent with that of an experienced drug dealer; that he was not predisposed to commit this or any other crime; and that he made the cocaine delivery only because Keleman prevailed upon their friendship to induce him to do so.

In our view, defense counsel elicited sufficient evidence to meet the threshold requirement for raising the defense of entrapment, and by doing so, placed upon the State the additional burden of disproving the defense. That the entrapment defense was not successful does not render counsel’s decision to employ it or his performance in advancing it deficient.

Further, defendant does not suggest nor, on the basis of the overwhelming evidence in the record before us, can we conceive of another defense theory which would have been any more effective. Counsel asserted both entrapment and reasonable doubt. He subjected the State’s case to vigorous and meaningful adversarial testing. There is no reasonable probability that but for defense counsel’s trial strategy and performance the result of the trial would have been different. Defendant received effective representation, and his conviction is, therefore, affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    CHICAGO TITLE AND TRUST COMPANY, Trustee, Plaintiff-Appellee, v. BASKIN CLOTHING COMPANY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1766
    Opinion filed September 13, 1991.

      Grace Allen Newton and Carey M. Stein, both of Chicago, for appellant.
    Gottlieb & Schwartz, of Chicago (Loren J. Mallon and Gini S. Marziani, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

In a declaratory judgment suit brought by the fee owner land trust against its commercial tenant, Baskin, the plaintiff sought a declaration by the court finding that Baskin is obligated under its written lease with plaintiff and that Baskin be ordered to comply with all lease terms and obligations. The complaint also sought damages in the amount of $36,694.35 plus liquidated damages, interest, attorney fees and other sums as proven. The court granted plaintiff’s motion for summary judgment and following prove up awarded plaintiff damages of $160,176.60 and attorney fees pursuant to the lease. Defendant appeals the court’s orders of May 4, 1989, which entered summary judgment in favor of plaintiff, the order of June 20, 1989, for $160,176.60 following prove up of damages and the order of July 7, 1989, for attorney fees.

On appeal defendant raises seven issues: (1) whether an award of summary judgment to plaintiff was improper in light of the existence of genuine issues of material fact; (2) whether variations in the lease agreement negotiated between plaintiff-lessor and Charles A. Stevens serve to discharge Baskin; (3) whether Baskin can be held liable after plaintiff-lessor exercised its option to terminate the lease by giving advance written notice to Baskin and Stevens that the lease was rejected; (4) in the alternative whether Baskin can be obligated under the lease after January 31, 1989, in light of plaintiff’s advance notice that the lease would terminate on that date; (5) whether the court committed reversible error in ruling that plaintiff’s representations that the lease was terminated were irrelevant and in its refusal to consider these representations or to allow Baskin relevant discovery on the question; (6) whether the trial court erred in ruling that plaintiff had mitigated its damages; (7) whether the trial court erred in awarding plaintiff attorney fees and costs.

On February 12, 1970, Chicago Title and Trust Co., as trustee under land trust No. 53113, as lessor, and defendant Baskin, an Illinois corporation, a wholly owned subsidiary of Hartmarx Specialty Stores, Inc., as tenant, executed a 25-year commercial lease for certain retail store space in the Lakehurst Shopping Center located at Waukegan Road and Illinois Highway 120, in Waukegan, Illinois. Chas. A. Stevens & Co., an Illinois corporation, also a wholly owned subsidiary of Hartmarx, was designated and executed the agreement as guarantor of the lease. Hartmarx had offices in Chicago, Illinois. The lease was amended by letters of amendment executed by the trustee and by Baskin on April 28, 1971, and on June 27, 1978, to increase the fixed minimum rent and to decrease the total square footage of leased space.

On September 30, 1982, lessor Chicago Title & Trust Co., land trust No. 53113, transferred and assigned its interest in certain Lakehurst Shopping Center leases, including the Baskin lease, to Teachers Realty Corporation, an Ohio corporation, which simultaneously assigned its interest to Chicago Title & Trust Company trust No. 1082512, the plaintiff in this litigation.

On August 9, 1984, the lessor land trust beneficiary, Lakehurst Joint Venture, a partnership with offices in Cleveland, Ohio, acting through its agent, Jacobs, Visconsi & Jacobs Co., and lessee Baskin, executed an amendment to the lease to sublease a portion of the tenant’s space to a third-party tenant.

On January 1, 1985, Baskin assigned its lease to Chas. A. Stevens. While both parties acknowledge the assignment, no copy of an executed document assigning the lease space to Stevens is part of the record. No allegation is made that the lessor participated in the assignment or approved of it.

On January 14, 1988, lessor and Stevens executed a document entitled “Option to Terminate Lease,” which gave lessor the sole right to terminate the Baskin-Stevens lease. Baskin did not participate or execute the written option to terminate.

On or about June 21, 1988, Chas. A. Stevens filed its petition in bankruptcy in the United States District Court, case number 88B 9575. The bankruptcy referee entered an automatic stay order on that date.

On August 2, 1988, lessor by its attorney filed an objection to Stevens’ motion for approval of the sale of certain inventory. In the objection pleading signed by plaintiff-lessor’s attorney, paragraph 7 states in part: “On or about January 12, 1988, Landlord and Stevens entered into an option to terminate which will terminate the lease on January 31, 1989.”

On August 4, 1988, plaintiff lessor moved in the bankruptcy proceeding to modify the automatic stay order to permit lessor to bring a forcible entry and detainer action in the State court to recover possession of the leased premises, alleging that Stevens had paid no rent from June 21, the date the bankruptcy petition was filed, and as of August 1, Stevens owed lessor $43,071.15. The motion further alleged:

“The Debtor has not assumed the lease. Pursuant to Section 365(d)(4) [11 U.S.C. §365(d)(4) (1988)] if the Debtor does not assume or reject an unexpired lease of non-residential real property on which the Debtor is a lessee within sixty days of after [sic] the date of the order for relief, then such lease is deemed rejected, and the Debtor is required to immediately surrender such non-residential real property to Landlords.”

The motion further stated: “The Debtor has no equity in the Lease. The three leases will terminate on January 31, 1989.” The record is silent as to the bankruptcy court ruling on the motion.

Thereafter on October 24, 1988, plaintiff-lessor filed its complaint for declaratory judgment against Baskin seeking a declaration of the respective rights of the parties under the lease, a declaration that Baskin is obligated under the lease and required to comply with all its terms and obligations, entry of judgment in favor of plaintiff-lessor against defendant Baskin in the sum of $36,694.35 through October 1, 1988, plus liquidated damages, interest, costs, attorney fees and other sums proved at trial or prove up. Baskin answered the complaint on December 1, with a general denial and prayed for dismissal of the suit.

On March 1, 1989, plaintiff moved for summary judgement based on section 8.2 of the rider to the lease, which stated in relevant part:

“Notwithstanding anything to the contrary contained in this Lease, tenant may without Landlord’s consent assign this Lease or sublet the demised premises to Tenant’s parent or to a subsidiary or affiliate of said parent or to any corporation growing out of a consolidation or merger of any of the aforesaid provided, however, Tenant and its successor or assignee and Guarantor, shall continue and remain fully liable hereunder.”

Defendant responded to the motion on March 30 representing that discovery was required to determine the intent of the parties with respect to the interpretation and meaning of the lease provisions, that in its application to modify the automatic stay in the bankruptcy proceedings plaintiff represented that the lease would terminate on January 31, 1989, and therefore that defendant’s obligations under the lease ended as of January 31.

Plaintiff in his reply filed on April 19 asserted that the relevant lease language was unambiguous so that parol evidence was not required to determine the clear intent of the parties, that counsel’s representation that the lease would terminate on January 31, 1989, was error, that plaintiff’s counsel by phone and by letter dated September 14, 1988, acknowledged her representations as to termination were error and that she was advised by debtor’s counsel that the error was inconsequential, that all parties were aware it was an error, and no reliance was placed on the mistaken pleadings, that plaintiff has never exercised its option to terminate the lease and therefore that Baskin’s claim that the lease terminated on January 31, 1989, was unfounded.

On May 4 the court entered its order finding no genuine issues of material fact and that plaintiff was entitled to judgment as a matter of law on the issue of Baskin’s liability under the lease. The court found the language of section 8.2 of the rider to the lease was clear and unambiguous and that the course of the parties’ conduct need not be considered. The court found that the pleadings of plaintiff’s counsel in the Stevens bankruptcy proceedings did not terminate the lease. Summary judgment was entered for plaintiff and the matter was set for prove up on the issue of the amount of plaintiff’s damages and attorney fees.

On June 16 defendant was given leave to file its amended answer to the complaint, adding as affirmative defenses allegations that plaintiff had failed to mitigate its damages and that plaintiff had committed a breach of the covenant of quiet enjoyment.

In its judgment order of June 20, the court entered judgment in favor of plaintiff and against defendant Baskin in the sum of $160,176.60 as and for plaintiff’s rental damages through June 20, 1989, and found that plaintiff had taken reasonable steps to mitigate its damages. The court stated this order and the May 4 order for summary judgment were final and appealable. The court retained jurisdiction to consider plaintiff’s damages for attorney fees.

On July 7 the court found plaintiff had proved and was entitled to an award of attorney fees and granted plaintiff fees in the sum of $14,596 and $301.03 in costs. The order was made final and appealable. Defendant appeals the orders of June 20 and July 7, 1989.

Section 2 — 1005 of the Illinois Code of Civil Procedure provides for the entry of summary judgment if the pleadings, depositions and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Where the pleadings and other evidence raise no triable issue of material fact and the movant is clearly entitled to judgment, the court will grant summary judgment. Village of Rosemont v. Lentin Lumber Co. (1986), 144 Ill. App. 3d 651, 659, 494 N.E.2d 552; Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 197; Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 247, 423 N.E.2d 1170.

Summary judgment is appropriate where the issue before the court is the construction of the provisions in a contract. (Village of Rosemont v. Lentin, 144 Ill. App. 3d at 659; Village of Fox Lake v. Aetna Casualty & Surety Co. (1989), 178 Ill. App. 3d 887, 903.) Because summary judgment is a drastic remedy, the pleadings and evidence before the court must be construed most strictly against the moving party and liberally in favor of the nonmovant. (Village of Fox Lake v. Aetna, 178 Ill. App. 3d at 903; Duffy v. Midlothian, 92 Ill. App. 3d at 197.) The opponent of the summary judgment motion may rely on reasonable inferences drawn from pleadings, admissions, exhibits and affidavits submitted and, if the court finds that a genuine issue as to material fact exists, summary judgment is improper and should not be entered. Duffy v. Midlothian, 92 Ill. App. 3d at 197.

Defendant contends that genuine issues of material facts exist and that the court erred in entering summary judgment in plaintiff’s favor. Specifically, defendant contends that plaintiff and Stevens, the successor tenant, varied the terms of the lease without defendant’s consent or participation by entering into the option to terminate agreement on January 14, 1988, and that defendant therefore was discharged from its obligation as early as January 14, 1988, when the underlying agreement was changed.

Defendant further argues that summary judgment is inappropriate where the inferences sought to be drawn by the parties concern questions of motive, intent or subjective feelings. (Montgomery Ward v. Wetzel, 98 Ill. App. 3d at 250.) Defendant argues that because plaintiff twice gave notice to Stevens, the successor tenant, and therefore to Baskin, that the lease would terminate on January 31, 1989, the plaintiff had exercised its option to terminate. The notice to terminate appeared in pleadings filed by plaintiff with the court in the Stevens bankruptcy proceedings. Defendant contends that accordingly all tenant rights and obligations terminated at the very latest on January 31,1989, as to both Stevens and defendant.

Initially we consider the clarity of the language of section 8.2 of the rider to the lease. The original lease identifies Baskin as the tenant and Chas. A. Stevens as the guarantor of tenant’s obligations under the lease. Both are Illinois corporations and are identified as wholly owned subsidiaries of Hartmarx Specialty Stores, Inc. Section 8.2 of the lease rider specifically permitted Baskin as tenant to assign the lease or sublet the leased premises to its parent company, Hartmarx, or to a subsidiary or affiliate of Hartmarx, i.e., Chas. A. Stevens, without lessor’s consent but with the express caveat that “Tenant and its successor or assignee and Guarantor shall continue and remain fully liable” on the lease. Plaintiff is the successor in interest to the original lessor in the lease.

Baskin’s assignment of the lease, without plaintiff’s participation or consent, to its affiliate Chas. A. Stevens, as authorized by section 8.2 of the rider, clearly did not relieve Baskin of its primary tenant obligations under the lease. There is no ambiguity in the language of section 8.2. But the lease is silent as to whether the guarantor category is extinguished by the assignment or whether Baskin became the guarantor of the successor tenant’s performance when the lease was assigned. We believe that Baskin’s liability remained that of the primary tenant under the terms of the lease even though the lease was assigned to Stevens. The lease terms provided that a sublease would not absolve Baskin.

Three years later on January 14, 1988, plaintiff and the successor tenant Stevens executed an option to terminate the lease which reserved only to the lessor the right to exercise the option by giving advance written notice to tenant 60 days prior to termination. The agreement expressed tenant’s desire to terminate the lease. Defendant Baskin was not a party to the option to terminate agreement and no evidence was elicited that Baskin’s interests were represented in these negotiations.

The original lease of February 12, 1970, at article X, permitted termination by the lessor upon tenant default and its failure to cure the default after notice or if tenant filed a bankruptcy petition which was not dismissed within 90 days or for other enumerated causes, provided that upon such occurrence lessor could retake possession of the premises without terminating the lease and with or without notice to the tenant, and provided for liquidated damages in sums computed to the end of the lease term. The lessor had the right but no obligation to relet the premises upon such terms as the lessor deemed satisfactory and in such event the tenant would be liable for any deficiencies and costs of such reletting.

The option to terminate included tenant’s (Stevens’) acknowledgment that its obligation to continuously conduct business in the leased premises was a material condition of the lease and acknowledged its agreement to comply with such condition through the termination date. The agreement provided for certain liquidated damages to be paid to the lessor in the event lessor exercised its option, notified the tenant of the termination date and tenant nonetheless continued to occupy the premises after the termination date. The agreement provided that upon lessor’s election to terminate “[a]ll other obligations of the Tenant under the Lease will be terminated” upon tenant fulfilling certain conditions, i.e., tender of payment of all accrued rents and other charges, nondefault by tenant of any lease terms, and production of accounting statements of gross sales upon which percentage rent computations are made. The agreement further provided: “Upon satisfaction by Tenant of its obligations as set forth herein, said Lease shall be deemed terminated, and Landlord and Tenant shall be released from any and all further liability thereunder.”

Defendant argues that because the January 14, 1988, option to terminate varied the lease terms from the original agreement in which Baskin participated and because Baskin was not a party to the option agreement nor did defendant consent to these variations in lease provisions, its obligations subsequent to January 14 were discharged.

Defendant contends the guarantor is discharged from its obligation where the creditor varies the terms of the principal obligation, here the lease, without the guarantor’s consent. (McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629; State Bank v. Cirivello (1978), 74 Ill. 2d 426.) Defendant contends that it was deprived of an opportunity to object to the lease variations agreed to in the option agreement and that its right to enforce the landlord’s lease commitments and to occupy the leased premises was extinguished or greatly curtailed by the execution of the option agreement by lessor and Stevens without defendant’s participation or consent. Defendant contends for those reasons its obligations under the lease were extinguished upon execution of the option agreement.

Plaintiff responds that Baskin did not raise this argument in the trial court and cannot raise it for the first time on appeal. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825.) Plaintiff further argues that, even if this court considers the defendant’s variance argument, the rule that such changes in the underlying agreement operate to discharge a guarantor will apply only to the guarantor. Since Baskin was not the original guarantor nor is Baskin now the guarantor by reason of the assignment of the lease to Stevens, the rule does not apply here.

Defendant contends that there remain genuine issues as to material fact as to the motive or intent of the lessor in executing the option to terminate agreement with Stevens and as to the import of lessor’s representations as to lease termination on January 31, 1989 in the Stevens bankruptcy proceedings. Defendant argues that for these reasons summary judgment was improper, that plaintiff’s representations as to termination are germane to the rights of the parties and that the court’s refusal to consider these representations was reversible error. Defendant argues that the court erred in refusing to allow Baskin relevant discovery on these questions.

Next defendant contends that plaintiff exercised its option with Stevens to terminate the lease by giving the requisite advance written notice to Stevens twice in the bankruptcy proceedings. On August 2, 1988, plaintiff filed objections to Stevens’ motion for approval of sale of certain inventory and in its objections referred to the “option to terminate [of January 14, 1988,] which will terminate the lease on January 31, 1989.” Again on August 4, plaintiff moved to modify the automatic bankruptcy stay order to permit lessor to file a forcible entry and detainer action in the circuit court of Cook County to recover possession of the leased premises. Plaintiff alleged in its motion that the lease would terminate on January 31, 1989. These representations were made on lessor’s behalf by its attorney of record, who informed the trial court in this litigation that as an officer of the court she thereafter advised Stevens’ attorney by telephone and by letter that she made the representations as to a January 31, 1989, lease termination in error. However, she acknowledged that she did not amend the pleadings in the bankruptcy court to correct the alleged errors. She argues here that the judge took the position that representations in the bankruptcy proceeding had no bearing on this case.

Defendant argues that these representations were advance written notice to the then-primary tenant, Stevens, of the exercise of lessor’s option to terminate, the lease on January 31. Baskin argues that in light of this advance notice and plaintiff’s exercise of its option to terminate, the trial court erred in permitting the plaintiff to arbitrarily reinstate the lease and erred in finding Baskin obligated under the lease after January 31.

Defendant cites Wanderer v. Plainfield Curtain Corp. (1976), 40 Ill. App. 3d 552, for its holding that in the event of termination pursuant to the exercise of an option to terminate, any lessor’s damages are fixed as of the date of the termination and the tenant is released from further liability.

Defendant argues that lessor’s representations of a January 31 lease termination in the bankruptcy proceedings are relevant to this action to determine the intentions of the parties (First Bank & Trust Co. v. Post (1973), 10 Ill. App. 3d 127), and the court’s refusal to consider them and to allow defendant discovery pursuant thereto constitutes reversible error. Baskin argues that testimony and subsequent conduct should be considered to determine plaintiff’s intentions in light of its statements to the trial court which are inconsistent with the unequivocal representations as to termination in the bankruptcy pleadings.

We note that Hartmarx Specialty Stores, Inc., appears on the service list for plaintiff’s filing of the August 2, 1988, objections to debtor’s motions for approval of sale of certain inventory and extension of time to assume or reject certain leases, and for plaintiff’s August 4 lessor’s motion to modify automatic stay to permit the filing of a forcible entry and detainer action to permit lessor to take immediate possession of the premises and to require debtor tenant to vacate and turn the premises over to plaintiff. Baskin’s name does not appear on the service list.

Plaintiff responds that the trial judge has discretion to control the scope of discovery, and where the discovery request is intended to gain disclosure of irrelevant material or there is insufficient evidence of its relevance, the court can refuse or limit discovery. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 1125, 424 N.E.2d 1193.) Where the requested discovery is refused by the trial court because it would not produce evidence material to the matter in controversy and absent abuse of the trial court’s discretion, the reviewing court will affirm the trial court’s refusal of discovery. (Harris Trust & Savings Bank v. Chicago College of Osteopathic Medicine (1983), 116 Ill. App. 3d 906, 912, 452 N.E.2d 701; Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 540-41, 494 N.E.2d 900.) Plaintiff contends that the defendant’s discovery requests initially sought information from 1970 forward dealing with mall security and safety in support of the affirmative defense of breach of the covenant of quiet enjoyment, but then contended the information sought was relevant to plaintiff’s mitigation of damages. Because the affirmative defenses of breach of a quiet enjoyment covenant and failure to mitigate were not raised until a month after the trial court entered summary judgment, plaintiff argues the court’s denial of discovery was not an abuse of discretion.

Defendant responds that the standard is not whether the discovery sought is admissible evidence but whether the discovery would lead to admissible evidence and that for this reason great latitude is permitted in the scope of discovery. (Bass v. Cincinnati, Inc. (1989), 180 Ill. App. 3d 1076, 1082, 536 N.E.2d 831.) Relevancy is determined by reference to the issues; something is relevant if it tends to prove or disprove something in issue. (Pemberton v. Tieman (1983), 117 Ill. App. 3d 502, 505, 453 N.E.2d 802.) Defendant correctly contends that the issue in this case is whether plaintiff terminated the lease, and accordingly, the requested discovery is relevant.

When the assignment of the lease occurred in 1985, Stevens became the tenant with the first obligation to comply with the lease terms. However, Baskin agreed to be bound on the lease whether an assignment occurred or it did not. The assumption of these obligations by Stevens from the date of the assignment in 1985, when Stevens became the occupying tenant, until its bankruptcy and release from the tenancy in that proceeding did not alter Baskin’s continuing obligation to fulfill the tenant commitments under the lease nor did it affect Baskin’s right to resume occupancy of the leased premises until 1996 when the lease term expires.

A question of material fact exists as to whether lessor, while releasing Stevens, intended to hold Baskin to full compliance with the tenant obligations until the lease expired in 1996 or whether lessor intended to and did terminate the lease and all tenant obligations thereunder by its participation and representations made in the Stevens bankruptcy proceeding. The statements made in the bankruptcy proceedings, while not conclusive, are probative on the question of whether the lease was terminated notwithstanding the affidavit of plaintiff’s attorney to the contrary. Baskin should be afforded an opportunity to take discovery to determine whether the lease was terminated since the events in the bankruptcy court occurred outside Baskin’s presence and without its participation or consultation. We find that the trial court erred in ignoring completely the events and attorney representations which took place in the bankruptcy court.

We conclude that summary judgment was inappropriate and that the court’s judgment order should be reversed and remanded for a new hearing on the motion for summary judgment. Prior to the hearing, Baskin should be given the opportunity for discovery on the sole issue of whether the plaintiff in fact had terminated the lease, and should then have the opportunity to submit any further affidavits or pleadings as are appropriate based on any new facts discovered. The plaintiff should be permitted to submit any further proof in support of its contention that the lease had not been terminated. Accordingly, we reverse the trial court’s entry of summary judgment in plaintiff’s favor and remand this cause for further proceedings in accordance with this opinion.

Defendant next raises the issue of lessor’s mitigation of its damages, and argues that if this court finds Baskin liable under the lease, damages were improperly awarded because the evidence failed to prove that plaintiff took all reasonable steps to find a replacement tenant for the space. Defendant cites MBC, Inc. v. Space Center Minnesota, Inc. (1988), 117 Ill. App. 3d 226, 233-34, where the court held that lessor’s failure to offer the space to a prospective replacement tenant on the same terms as the original lease and its attempts to secure alternate leases at considerably higher rentals constitutes a breach of its duty to exercise reasonable diligence to mitigate damages. Defendant contends that plaintiff breached its duty to mitigate by failing to advertise the space in trade journals, to advertise locally, to use services of local brokers, or to offer the space at the original lease amount and that it encouraged prospective tenants to consider other space, and for these reasons plaintiff is not entitled to recover damages from Baskin.

Plaintiff contends that a trial court’s finding as to damages should not be .disturbed unless the finding is against the manifest weight of the evidence. (MBC, Inc. v. Space Center Minnesota, Inc., 117 Ill. App. 3d at 234.) While in MBC, Inc. the court found the lessor had failed to mitigate when it attempted to relet the premises at rates 50% higher than the breached lease, the trial court here found that finding did apply to the facts of this case. Testimony here established that plaintiff made a substantial effort to rent the space but was unable to interest potential tenants even before considerations of financial terms occurred. Plaintiff contends the record discloses ample evidence to support the court’s finding that plaintiff made reasonable efforts to mitigate its damages. Plaintiff argues a plea of failure to mitigate damages is an affirmative defense which must be pled and proved by defendant (Illiana Machine & Manufacturing Corp. v. Duro-Chrome Corp. (1987), 152 Ill. App. 3d 764, 769, 504 N.E.2d 974), and because the evidence supports the court’s finding that the lessor had made a good-faith effort to relet the space, the finding should not be overturned.

Defendant replies that reasonable diligence requires lessor to attempt to lease the property at or near the contract (lease) rate (MBC, Inc. v. Space Center, 177 Ill. App. 3d at 234; J.L. Williams v. Kaiser Aluminum (N.D. Tex. 1975), 396 F. Supp. 288; Mar-Son, Inc. v. Terwaho Enterprises, Inc. (N.D. 1977), 259 N.W.2d 289), and plaintiff’s failure to attempt to relet at the lease rate constituted a breach of the duty to mitigate.

We find the record supports the trial court’s finding that plaintiff had met the lease requirement to mitigate its damages.

Finally, defendant contends that because plaintiff should not have prevailed in this litigation, its fees and costs should not have been assessed against defendant. As an alternative argument, defendant argues that plaintiff’s fee petition should be reduced or denied because of inconsistent and duplicative entries and inadequate documentation. Sanchez v. Schwartz (7th Cir. 1982), 688 F.2d 503; Neely v. City of Grenada (5th Cir. 1980), 624 F.2d 547; Ramos v. Lamm (10th Cir. 1983), 713 F.2d 546, 554.

Plaintiff’s defense to this contention is that Baskin did not question its basic liability for the fees nor did it contest the reasonableness of the fee rates. Plaintiff argues that defendant questioned only the charges for amount of conference time among plaintiff’s counsel and a time period discrepancy. These questions were answered to the trial court’s satisfaction, and after careful scrutiny, the court found plaintiff’s petition reasonable. In Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 275, 465 N.E.2d 139, the court held that the trial court’s decision on an award of attorney fees will not be reversed absent an abuse of discretion. We find the court carefully considered the plaintiff’s petition for fees and defendant’s objections and that no abuse of discretion occurred here.

Accordingly, if summary judgment is subsequently regranted or if judgment is entered for plaintiff following a trial, the issues of mitigation of damages and attorney fees need not be addressed again since the court committed no error in these determinations. However, if summary judgment is denied and judgment is entered for Baskin, then the orders on mitigation and attorney fees would be moot and should be vacated.

For all of the foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KUCHAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1222
    Opinion filed September 13, 1991.

      Michael J. Pelletier and Sally Swiss, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Kenneth T. McCurry, and Jillian Cerone-Marisie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

In March 1987, defendant, James Kuchan, was indicted for murder, feticide and concealment of a homicidal death. On July 21, 1988, defendant was reindicted and charged with murder and concealment of a homicidal death, but instead of including the feticide offense, defendant was charged with intentional homicide of an unborn child. Following a bench trial, defendant was found guilty of murder by the trial court and sentenced to an extended term of natural life, with 40 years’ concurrent imprisonment for intentional homicide of an unborn child. (At the close of the State’s case, the court entered judgment for defendant on the offense of concealment of a homicide.) Defendant alleges the following errors on appeal: trial counsel’s failure to move for a speedy trial dismissal of the charge of intentional homicide of an unborn child deprived defendant of effective assistance of counsel; the indictment for intentional homicide of an unborn child failed to allege an essential element; and that the trial court improperly imposed a natural life sentence for murder upon defendant. (Except as to the propriety of the sentence, defendant does not challenge his conviction for murder.)

In view of the nature of the issues on appeal, the facts may be set forth briefly. The evidence established, both through defendant’s confession and other testimony, that on March 14, 1987, defendant choked to death his wife, Donna Kuchan. At the time of her death, the deceased was approximately seven months pregnant. The crime was committed in the parties’ apartment. In his confession, defendant stated that the deceased complained to him about his use of cocaine, they argued, and he choked her to death. For three days, defendant left the deceased’s body in the bathroom, and told no one about what happened. During those three days, defendant used cocaine, drank beer, and watched television.

The deceased’s mother and sister testified for the State as to their unsuccessful attempts during that three-day period to see or talk to the deceased. Defendant repeatedly told them that the deceased was not at home.

The deceased’s co-worker, a nurse’s aide, testified for the State for the limited purpose of showing the circumstances of defendant’s arrest. On March 17, 1987, defendant came to the co-worker’s place of work and asked her to come to his apartment because the deceased was having trouble breathing. When they arrived at the apartment, defendant locked the door and told the co-worker that the deceased was in the bedroom. The co-worker entered the bedroom, and defendant sexually molested her at knife point. Defendant told the co-worker that he and the deceased had argued and that the deceased had returned to her mother’s home. When defendant finally allowed the coworker to leave the apartment, she immediately contacted the police.

The police officers obtained a search warrant and went to defendant’s apartment. When the officers received no response to their knock, they forced entry and found defendant inside. The officers then found the deceased’s body in the bathroom. Her body was in the early stages of decomposition.

Dr. Nancy Jones, who performed the autopsy on the deceased, testified for the State that the deceased had been dead between three and five days. The female fetus that was removed from the deceased was between seven and eight months gestation, weighed 3 to 3V2 pounds, and would have been viable with immediate medical intervention.

Defendant testified that he and the deceased argued about her pregnancy. She told defendant that he was not the father of the child and that she wanted to put the child up for adoption. Defendant did not remember choking the deceased.

After a hearing in aggravation and mitigation, the trial court sentenced defendant to an extended term of natural life for murder, and to a concurrent term of 40 years for intentional homicide of an unborn child.

We direct our attention first to defendant’s argument of ineffective assistance because defense counsel failed to move for a speedy trial dismissal of the intentional homicide of an unborn child charge. After his arrest in March 1987, defendant was indicted on two counts of murder, two counts of feticide, and one count of concealment of a homicidal death. The record shows that 16 continuances were granted; 13 by agreement of the parties, and three continuances were requested by defendant. On July 21, 1988, defendant was reindicted and charged with two counts of murder and concealment of a homicidal death. However, the feticide counts were dropped, and two counts of intentional homicide of an unborn child were added. (The State nolprossed the March 14, 1987, indictment.) Defendant maintains that the State’s failure to bring defendant to trial within the 120 days provided by the speedy trial act (Ill. Rev. Stat. 1987, ch. 38, par. 103— 5(a)) precludes prosecution of the offense of intentional homicide of an unborn child.

Defendant relies upon People v. Hawkins (1991), 212 Ill. App. 3d 973, 571 N.E.2d 1049, for the proposition that where new and additional charges arise from the same facts as the original charge and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new charges runs from the date custody began on the original charges. In Hawkins, defendant was arrested and charged with robbery on June 1, 1987. Subsequently, the State amended the information filed against defendant to include a charge of armed robbery. The defendant in Hawkins argued successfully in this court that since the two charges stemmed from the same incident, the State knew of its ability to file an armed robbery charge at the time it filed the original robbery charge against defendant. This court held that defendant’s confinement prior to the filing of new charges arising from the same incident for which he was arrested could not be charged to defendant for speedy trial act purposes. Consequently, we found that defense counsel’s failure to move for dismissal of the charge for violation of the speedy trial act violated defendant’s right to effective assistance of counsel.

We find, however, that Hawkins is factually distinguishable from this case. Armed robbery is not the same offense as robbery; it contains separate elements and is classified differently for purposes of sentencing. Yet defendant here contends that there are substantive differences between the elements included in the feticide charge as opposed to those contained in the offense of intentional homicide of an unborn child. The feticide statute provided:

“§9 — 1.1. Feticide, (a) A person commits the offense of feticide who causes the death of a fetus if, in performing the acts which caused the death, be [sic] without lawful justification:
(1) either intended to kill or do great bodily harm to the mother carrying the fetus or knew that such acts would cause death or great bodily harm to the mother; or
(2) he knew that the acts created a strong probability of death or great bodily harm to the mother; or
(3) he was attempting or committing a forcible felony against the mother other than voluntary manslaughter; and
(4) he knew, or reasonably should have known under all of the circumstances, that the mother was pregnant.
(b) For purposes of this Section, ‘fetus’ means a fetus which the physician or pathologist performing the fetal autopsy determines, based upon the particular facts of the case before him, to have been capable, at the time of its death, of sustained life outside of the mother’s womb with or without life support equipment, and such capacity for sustained life is proven beyond a reasonable doubt.
* * *
(d) Penalty. The sentence for feticide shall be the same as for murder, except that the death penalty may not be imposed.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 9— 1.1. (Repealed by Pub. Act 84 — 1414 §2, eff. Sept. 19, 1986; Pub. Act 85-293, art. II, §21, eff. Sept. 8,1987.)

The newly enacted statute designed to replace the feticide statute provides:

“§9 — 1.2. Intentional Homicide of an unborn child, (a) A person commits the offense of intentional homicide of an unborn child if, in performing acts which cause the death of an unborn child, he without lawful justification:
(1) either intended to cause the death of or do great bodily harm to the pregnant woman or her unborn child or knew that such acts would cause death or great bodily harm to the pregnant woman or her unborn child; or
(2) he knew that his acts created a strong probability of death or great bodily harm to the pregnant woman or her unborn child; and
(3) he knew that the woman was pregnant.
(b) For purposes of this Section, (1) ‘unborn child’ shall
mean any individual of the human species from fertilization until birth, and (2) ‘person’ shall not include the pregnant woman whose unborn child is killed.
* * *
(d) Penalty. The sentence for intentional homicide of an unborn child shall be the same as for first degree murder, except that the death penalty may not be imposed.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.2.

Defendant argues that at the time of his arrest on March 14, 1987, he was improperly charged with the feticide statute because it had already been repealed by Public Act 84 — 1414, section 2, effective September 19, 1986. However, amendatory Public Act 84 — 1450 temporarily revived the feticide statute, and applies to acts occurring on or after January 1, 1987, which cause the death of another. Advisory Public Act 85 — 293, effective September 8, 1987, again repealed the feticide statute. Our legislature has provided that in instances of multiple amendments of the same subject matter, the act last acted upon by the General Assembly is controlling to the extent of such conflict. (Ill. Rev. Stat. 1987, ch. 1, par. 1105.) Thus, at the time defendant murdered the deceased and her female fetus, the feticide statute had not yet been officially repealed.

Review of the legislative history reveals that the intentional homicide of an unborn child statute was intended to fill a loophole that had been present in the feticide statute requiring viability of the fetus to be proven beyond a reasonable doubt. The revised statute “replaces the current Illinois feticide law which has been found to be, although well-meaning, not adequate for protecting wanted unborn children.” (84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 81 (statements of Representative Pullen).) It is also instructive to review introductory comments made in the Senate by Senator Kelly in comparing the two bills, to wit:

“[TJhat particular law is the same as this one, the only difference is this covers from the beginning of conception until the three-month period which is the viability ***.” 84th Ill. Gen. Assem., Senate Proceedings, May 13, 1986, at 74 (statements of Senator Kelly).

A comparison of the two statutes set forth above indicates minor revisions; namely, the feticide statute refers to “mother carrying the fetus” as opposed to “pregnant woman” as set forth in the later statute. The principal difference lies in the protection afforded to an unborn child from fertilization until birth, as opposed to encompassing only an unborn child who has reached the fetal stage of development and is therefore capable of sustaining life outside of the mother’s womb at the time of death.

In this case, the female fetus carried by the deceased at the time of her death was within the purview of the protection afforded by both the feticide and subsequent intentional homicide of an unborn child statute. Dr. Jones testified that the female fetus removed from the deceased was between seven and eight months gestation, weighed 3 to 3x/2 pounds, and would have been viable with immediate medical intervention.

In order to prevail under a claim of ineffective assistance of counsel, a defendant must prove two elements: (1) that his attorney failed to perform as a reasonably competent attorney, and (2) there exists a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

We find that defense counsel’s motion for a speedy trial dismissal of the charge of intentional homicide of an unborn child would have been futile. We hold that the State’s reindictment of defendant on July 21, 1988, was proper. No new offense was added by the second indictment, nor was the offense changed in degree or severity. (People v. Delaney (1975), 28 Ill. App. 3d 315, 328 N.E.2d 656.) The purpose of the intentional homicide of an unborn child statute was to protect the unborn from fertilization until birth; however, that protection was already extended to the fetus in this case by virtue of the feticide statute under which defendant was originally charged at the time of his arrest in March 1987.

Accordingly, we find that defendant was not denied his sixth amendment right of effective assistance of counsel. In essence, the intentional homicide of an unborn child statute was a technical revision of the feticide statute requiring proof of the same elements and imposing an identical sentence upon conviction. Therefore, defense counsel would not have prevailed upon a motion for a speedy trial dismissal pursuant to section 103 — 5(a) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)).

Defendant next contends that where the indictment for intentional homicide of an unborn child failed to allege an essential element, the trial court should have reversed defendant’s conviction for that offense. In the first count of the second indictment, the State charged that defendant:

“without lawful justification intentionally and knowingly choked and killed Donna Kuchan with his hands, knowing that his acts would cause great bodily harm or death to Donna Kuchan or her child.”

In the second count, the State charged that defendant

“without lawful justification intentionally and knowingly choked and killed Donna Kuchan with his hands, knowing that his acts created a strong probability of death or great bodily harm to Donna Kuchan or her unborn child.”

In the initial indictment, both counts read that defendant’s actions caused “the death of a fetus carried by its mother Donna Kuchan.” Defendant maintains that the State’s failure to specifically allege the death of the unborn child in the second indictment requires that defendant’s conviction must be reversed.

We find no merit in defendant’s argument. Section 111 — 3 of the Code of Criminal Procedure of 1963 provides that a charging instrument must set forth “the nature and elements of the offense charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3(a)(3).) Moreover, our supreme court has held that in certain instances, the statute alleged to have been violated can itself adequately inform the defendant of the nature and elements of the offense charged. People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57, citing People v. Wisslead (1985), 108 Ill. 2d 389, 484 N.E.2d 1081.

We have concluded that the intentional homicide of an unborn child indictment was a continuation of the original feticide indictment, which specifically alleged the death of the fetus. Thus, defendant was adequately apprised of the charges against him, and the second indictment created no notice problem for him or his counsel. United States v. Lowe (7th Cir. 1988), 860 F.2d 1370, 1381.

Defendant finally contends that the trial court abused its discretion in sentencing him to natural life when there were no facts to support the trial court’s finding that the offense was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” pursuant to section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2)).

At the sentencing hearing, the judge received the following facts in aggravation. Defendant was previously convicted of residential burglary and felony attempted burglary on May 15, 1984, and was released on parole on March 16, 1986. The deceased’s sister testified that defendant had previously broken the deceased’s nose, and that on a former occasion defendant had tried to kill the deceased. In mitigation, testimony was presented that the 32-year-old defendant had an extensive history of drug and alcohol usage, that he came from a broken home, and that defendant’s mother, stepfather and grandfather died during the pendency of this case. The trial judge considered defendant’s criminal background, but stated that he based his sentence primarily on the facts of this case.

Review of the record reveals that after choking to death his pregnant wife, defendant left her body in the bathroom for over three days while, by his own admission, he “partied with cocaine,” drank beer and watched television. We agree with the trial judge’s finding that “this crime was so vile and repulsive as to almost defy description,” and we find that the court properly imposed a sentence of natural life.

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

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re R.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.M., Respondent-Appellant).
    First District (1st Division)
    No. 1—87—3800
    Opinion filed September 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Thomas E Finegan, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Susan Wigoda, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Respondent, the natural mother of R.M., appeals from the termination of parental rights over and appointment of a guardian with rights to consent to adoption of R.M. At issue is whether respondent’s unfitness under the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501 et seq.) was sufficiently proved and whether, in that regard, evidence was improperly excluded pertaining to respondent’s care of her other child, M.M., R.M.’s natural sister.

We affirm.

R.M. was born on March 18, 1977. On April 15, 1978, R.M. was hospitalized for treatment of several injuries, including a fracture of the left elbow and swelling of the right ear lobe. Evidence of previous fractures was apparent as well. Based, in part, on those injuries, the Illinois Department of Children and Family Services instituted proceedings for adjudication of wardship as to R.M. (see Ill. Rev. Stat. 1983, ch. 37, par. 704 — 1). As a result, both R.M. and M.M. were adjudicated wards of the court (see Ill. Rev. Stat. 1983, ch. 37, par. 705 — 1). M.M. was subsequently returned to respondent’s custody following the divorce of respondent and her husband.

Respondent thereafter moved to have custody restored as to R.M., as well. The State, in turn, filed a petition seeking to terminate parental rights over R.M. and to appoint a guardian with the right to consent to adoption (see Ill. Rev. Stat. 1983, ch. 37, par. 705 — 9). The petition alleged respondent was unfit because she was unable to discharge parental responsibilities because of mental or developmental disabilities as provided in section l(D)(p) of the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(p)).

In proceedings pursuant to the State’s petition, respondent successfully moved for a directed verdict. On appeal, we determined respondent’s motion was improperly granted in view of evidence presented by the State and reversed and remanded the matter. (In re R.M. (1st Dist. 1986), No. 83—2151 (unpublished order under Supreme Court Rule 23).) Ultimately, respondent was determined to be unfit and the State’s petition was granted.

This appeal followed.

Respondent argues here that, instead of proving respondent’s unfitness to discharge parental responsibilities, evidence presented by the State addressed only what was in the best interests of R.M. To that extent, respondent contends, the State failed to establish the requisite disability as set forth in section l(D)(p) of the Adoption Act.

Unfitness of a natural parent under section l(D)(p) is based on the “inability to discharge parental responsibilities” and must be supported by evidence from a psychiatrist or clinical psychologist. (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(p).) The inability to discharge parental responsibilities may be based either on mental impairment or mental illness, terms left undefined under the Adoption Act, or, by cross-reference to, respectively, sections 1 — 106 and 1 — 116 of the Mental Health and Developmental Disabilities Code, a developmental disability or mental retardation as defined therein. (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(p); Ill. Rev. Stat. 1983, ch. 911/2, pars. 1— 106, 1 — 116.) Additionally, “sufficient justification” must exist to beHeve that the inability to discharge parental responsibilities will extend “beyond a reasonable time period.” (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(p).) Where unfitness pursuant to that section has been sufficiently determined (see Ill. Rev. Stat. 1983, ch. 37, par. 705 — 9), that determination must be affirmed on appeal unless it is contrary to the manifest weight of the evidence. In re N.F. (1989), 178 Ill. App. 3d 662, 533 N.E.2d 952, appeal denied (1989), 126 Ill. 2d 559, 541 N.E.2d 1108.

Sufficient evidence existed in the instant case to support the determination that respondent was unfit. Testimony of two experts established that respondent suffered from a mental impairment or mental illness which rendered her unable to care for R.M. as a parent.

Dr. Robert Galatzer-Levy, a psychiatrist and psychoanalyst, testified based on interviews he conducted with respondent alone and with respondent when R.M. was present. He spoke with respondent about a number of issues, including the physical care of R.M. Respondent felt that R.M. should be in her custody because she was R.M.’s biological mother. In that regard, respondent had made the peculiar remark that R.M. should eat the food of respondent’s ethnic descent. Galatzer-Levy indicated the remark was meant literally.

When asked about temper tantrums R.M. had exhibited, including episodes of “head banging” against her crib, and how respondent would respond to such situations, respondent simply answered that the problems arose because R.M. was not in respondent’s, her biological mother’s, care. To Galatzer-Levy, that response evidenced a gross misunderstanding of R.M.’s psychological state and respondent’s incapacity to understand R.M.’s condition. Galatzer-Levy indicated respondent was unable to understand R.M.’s physical condition as well. He stated that pediatricians had advised respondent that R.M. was allergic to dogs and cats and would have a physical reaction if exposed to them. However, respondent remarked that she did not “believe in that stuff.”

Galatzer-Levy stated respondent suffered from a “borderline personality disorder” and thereby lacked the capacity to care for R.M. He described the disorder as both severe and chronic, affecting all areas of personality. The disorder impairs the ability to understand and comprehend emotional states of others such that the individual afflicted lacks the capacity to empathize, generally. Under stress, the individual cannot tell what is real from what is not. Morality is impaired to the extent that matters are viewed exclusively in terms of the individual’s own immediate needs. Injustice done to others cannot be comprehended.

However, Galatzer-Levy testified, the disorder would not impair respondent’s ability to care for herself on a day-to-day basis and might not affect respondent’s care for another child who did not exhibit the same psychiatric condition suffered by R.M. But the fact that respondent might be able to so care for another child did not indicate respondent would be able to care for R.M. While he considered the condition treatable, treatment would involve intensive psychotherapy in a hospital setting, four to six times per week, for four to seven or more years and the prognosis was not good. Thus, it was GalatzerLevy’s opinion that, as of that time and for the foreseeable future, respondent’s condition precluded her from caring for R.M. as a parent. Further, he stated he could not envision circumstances likely to alter that determination.

Dr. Nev Littner, a child psychiatrist, testified based upon his examination of various reports, including those of Dr. Robert GalatzerLevy, as well as interviews with R.M. and R.M.’s foster parents. Littner was aware that respondent was diagnosed as suffering from a borderline personality disorder. Littner’s own explanation of the disorder was that it was a behavioral state between “the lowest limit of neurosis and the limit of psychosis” in which stress could trigger a psychotic episode.

Consistent with Galatzer-Levy’s opinion, Littner stated it was possible that a person suffering from that disorder might be capable of caring for one child but incapable of caring for another. That possibility, however, did not alter Littner’s conclusion that respondent’s disorder rendered her incapable of understanding or meeting the needs of R.M. and, therefore, incapable of mothering R.M. He explained that a woman suffering from such a disorder might react differently to one child “because of what that one child reminds her of and stirs up in her” than to another child.

The opinions of Galatzer-Levy and Littner, above, support the determination that respondent suffered from a mental impairment or mental illness which rendered her unfit under section l(D)(p) of the Adoption Act to care for R.M. Further, Galatzer-Levy’s testimony regarding the effort and length of time needed to treat respondent’s disorder sufficiently established that respondent’s inability to discharge parental responsibilities over R.M. would continue beyond a reasonable time. We therefore find no reason to disturb the judgment of the circuit court.

Respondent also contends that by sustaining the State’s objections to respondent’s counsel’s questions regarding respondent’s care of her other daughter, M.M., the trial judge improperly excluded evidence that respondent was capable of caring for R.M. Respondent’s attorney was permitted to make offers of proof as to the issue of the care of M.M.

In In re M.C. (1990), 201 Ill. App. 3d 792, 559 N.E.2d 236, we addressed the identical argument, ruling that the preclusion of testimony as to the care rendered to one child is irrelevant to the determination of the fitness to care for another child. For the same reason, the preclusion of testimony in the instant case concerning respondent’s care of M.M. cannot constitute an abuse of discretion because such testimony would be irrelevant as to the care of R.M.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.

      Respondent’s former husband did not participate in any of the adjudicatory proceedings involving R.M. and was defaulted by publication.