author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLARD DIDLEY, Appellant.
    Third District
    No. 3—90—0406
    Opinion filed May 17, 1991.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant pled guilty to two counts of unlawful delivery of a controlled substance in contemplation of receiving a specific sentence. He was not informed, however, that in addition to the stated terms and conditions of his sentence, he would be required to serve a two-year term of mandatory supervised release (formerly known as parole). We are now called on to determine whether a trial court’s failure to admonish the defendant as to the applicable term of mandatory supervised release renders the defendant’s plea of guilty involuntary. We conclude that it does.

On April 13, 1989, the defendant, Willard Didley, was charged by indictment with two counts of unlawful delivery of a controlled substance. On June 16, 1989, the defendant pled guilty to both charges. At the defendant’s plea hearing, the court informed the defendant he had a right to plead not guilty, to a trial by jury, and to present and confront witnesses. The defendant stated to the court he understood these rights. The prosecutor then explained the range of sentences to which the defendant would be exposed as a result of his plea. The defendant again stated he understood and that he wished to persist in his plea of guilty.

After the court was satisfied the defendant was pleading guilty knowingly and voluntarily, the court inquired whether there were any negotiated pleas in the case. The assistant State’s Attorney, Mr. Ted Hamer, replied that the parties had entered into a negotiation. Mr. Hamer then informed the court that the parties agreed that the defendant would be sentenced to 10 years in the Department of Corrections, pay fines in the amount of $3,200, restitution in the amount of $3,800, and pay the court costs within two years of his release. The court concurred in the plea and the defendant was sentenced accordingly.

On April 20, 1990, the defendant filed an amended post-conviction petition alleging his plea was involuntary because he was not advised that in addition to a term of imprisonment, he would be required to serve a three-year term of mandatory supervised release. At the post-trial hearing, the trial court found that the defendant had not been informed of the mandatory supervised release term. In an attempt to correct this error, the trial judge ordered the defendant not be required to serve the three-year mandatory supervised release term.

The People concede the trial court was without authority to enter an order abrogating the mandatory release term. (See People v. Morgan (1984), 128 Ill. App. 3d 298, 470 N.E.2d 1118.) The error having been confessed, we need not address the matter further.

The true issue before us is whether the trial court’s failure to admonish the defendant as to the applicable term of mandatory supervised release rendered the defendant’s guilty plea involuntary.

This exact issue was addressed in United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180. In Baker, the defendant pled guilty in the circuit court of Will County, Illinois, to charges that he had committed armed violence in violation of sections 33A — 2 and 12— 2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, pars. 33A—2, 12 — 2(a)(1)), and violated the Illinois Hypodermic Syringes and Needles Act (Ill. Rev. Stat. 1989, ch. 38, par. 22—53). The defendant pled guilty and was sentenced pursuant to an agreement reached by defense counsel and the prosecutor. As in the case at bar, Baker was not informed that under Illinois law he would have to serve two years on parole after his prison term expired.

While in prison for a subsequent parole violation, Baker filed a writ of habeas corpus claiming the circumstances surrounding his plea of guilty violated the due process clause of the fourteenth amendment. The basis of Baker’s claim was that he agreed to plead guilty in exchange for a specific sentence. The parties presented a negotiated disposition to the trial court for its approval. The court concurred in the disposition and sentenced him accordingly. Baker was never told about the mandatory term of parole he would be required to serve. This, Baker argued, violated the constraints of fundamental fairness articulated in Santobello v. New York (1971), 404 U.S. 257, 261-63, 30 L. Ed. 2d 427, 432-33, 92 S. Ct. 495, 498-99. Not being advised about the parole term also violated the due process clause because the sentence actually imposed upon him was more onerous than he had been promised. The court agreed and ordered that the State adhere to the agreement as originally presented to the court.

The People correctly point out in their brief that we are not bound by the decisions of Federal courts, other than the United States Supreme Court, concerning questions of constitutional law. (People v. Cosey (1978), 66 Ill. App. 3d 670, 674-75, 384 N.E.2d 95, 99.) We nonetheless choose to follow the Baker decision. Upon a careful reading of the Illinois Supreme Court’s decision in People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696, the fourth district’s opinion in People v. O’Toole (1988), 174 Ill. App. 3d 800, 529 N.E.2d 54, and a plain reading of Supreme Court Rule 402 (134 Ill. 2d R. 402), we are persuaded the court in Baker was correct.

In McCoy, the defendant pled guilty to a charge of burglary. The defendant was not informed that, in addition to a term of imprisonment, he would be required to serve three years on parole. The record showed the defendant pled guilty to the offense in exchange for a recommendation from the prosecutor that he be sentenced to one to three years in the Illinois Department of Corrections. The court followed the prosecutor’s recommendation and sentenced the defendant to one to three years.

The defendant subsequently filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, par. 122—1 et seq.), contending that the trial court’s failure to admonish him at the time of his plea that the mandatory parole term was a part of the sentence was a per se constitutional violation entitling him to post-conviction relief. The court dismissed the defendant’s petition, ruling that although Supreme Court Rule 402 does require a defendant be admonished that the mandatory period of parole pertaining to the offense is a part of the sentence that will be imposed (People v. Wills (1975), 61 Ill. 2d 105, 109, 330 N.E.2d 505, 508), every deviation from Rule 402 does not require reversal. The court opined that after a review of the entire record, it showed the defendant’s plea was made knowingly and intelligently, and failure to warn of the mandatory parole period did not constitute a per se violation of a defendant’s constitutional rights.

The court ruled no violation occurred because the bargain agreed to by the parties was that the State would recommend a sentence. The State kept its end of the bargain and, luckily for the defendant, the court followed the State’s recommendation. As the court noted:

“The record shows clearly that the defendant understood that the quid pro quo for the plea of guilty was the recommendation that there be concurrent sentences of 1 to 3 years, that the defendant knew that the court was not bound to accept the recommendation and could sentence the defendant to a term of not less than 1 nor more than 20 years.” (Emphasis added.) McCoy, 74 Ill. 2d at 403.

The court then went further and differentiated between the situation in McCoy and the issue raised in Baker. In Baker, the defendant agreed to plead guilty in return for a specific sentence. The trial court accepted the parties’ negotiation, yet the State sought to impose upon the defendant an unbargained-for term of supervised release. In sum, Baker was not given the benefit of his bargain. In contrast, the defendant in McCoy received the benefit of his bargain when the assistant State’s Attorney recommended to the court he be sentenced to one to three years in the Department of Corrections.

In People v. O’Toole (1988), 174 Ill. App. 3d 800, 529 N.E.2d 54, the court also ruled on this very issue. In O’Toole, the defendant pled guilty to the offense of indecent liberties with a child. In exchange for the defendant’s plea of guilty, he was advised he would be sentenced to “a flat ten years.” The defendant was not admonished that his sentence would include a two-year term of mandatory supervised release. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(d).) The defendant filed a petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.), seeking to set aside his guilty plea as neither voluntarily nor intelligently made. The court granted the defendant’s motion.

The court ruled that where a defendant has pled guilty in contemplation of receiving a specific sentence, the imposition of a harsher sentence than bargained for is not permissible. The People contend O’Toole was wrongly decided. We do not agree.

In Illinois, our supreme court has provided by Supreme Court Rule 402 that all defendants be fully informed of the consequences of a guilty plea and the rights they are relinquishing by pleading guilty. Rule 402 specifically provides that if a defendant pleads guilty pursuant to an agreement reached between the State and the accused which contemplates the imposition of a specific sentence, and the trial judge indicates he will not concur with the agreement reached by the parties, the trial judge “shall so advise the parties and then call upon the defendant either to affirm or to withdraw his plea of guilty.” (134 Ill. 2d R. 402(d)(2).) In other words, a defendant has the right, prior to sentencing, to either affirm or withdraw his plea of guilty if the defendant will not receive the benefit of his bargain with the State. The State contends that after the plea has been accepted, however, the State may impose additional and unbargained-for terms or conditions on the defendant and he has no right to object. We disagree.

In order for a guilty plea to withstand appellate or post-conviction review, the record must reflect the defendant’s plea was entered as a knowing, intelligent act, done with sufficient awareness of the relevant circumstances and likely consequences. (Brady v. United States (1970), 397 U.S. 742, 749, 25 L. Ed. 2d 747, 757, 90 S. Ct. 1463, 1469.) This requires a trial court to use the “utmost solicitude *** in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” (Boykin v. Alabama (1969), 395 U.S. 238, 243-44, 23 L. Ed. 2d 274, 280, 89 S. Ct. 1709, 1712.) The reason reviewing courts must scrutinize guilty pleas with such a watchful eye is “[sjeveral federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.” Boykin, 395 U.S. at 243, 23 L. Ed. 2d at 279, 89 S. Ct. at 1712.

Supreme Court Rule 402 is simply the embodiment of these important constitutional principles and the vehicle through which our supreme court has sought to enforce the constitutional dictates of the United States Supreme Court. Simply put, a defendant has the right to know the consequences of pleading guilty. When a defendant has pled guilty in contemplation of receiving a specific sentence, imposing additional and unbargained-for terms or conditions is not permissible. The defendant should be allowed to plead anew.

The decision of the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, denying defendant’s petition for post-conviction relief is hereby reversed. Defendant’s plea of guilty, judgment of conviction and sentence are hereby vacated and this cause is remanded to the circuit court with directions to allow the defendant to replead.

Reversed in part; vacated in part and remanded with directions.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    SOYLAND POWER COOPERATIVE, INC., Plaintiff and Counterdefendant-Appellee, v. ILLINOIS POWER COMPANY, Defendant and Counterplaintiff-Appellee (Lewis Powell et al., Interveners-Appellants).
    Fourth District
    No. 4—90—0713
    Opinion filed May 23, 1991.
    Rehearing denied June 20, 1991.
    James C. Craven, and Thomas F. Londrigan and Gordon W. Gates, both of Londrigan, Potter & Randle, P.C., both of Springfield, for appellants.
    A. James Shatter and James E. Peckert, both of Kehart, Shatter, Hughes & Webber, P.C., of Decatur, and Thomas E. Wack and Peter W. Herzog III, both of Bryan, Cave, McPheters & McRoberts, of St. Louis, Missouri, for appellee Soyland Power Cooperative.
    Allan Horwich, Edward J. Finn, and Yvonne E. Mena, all of Schiff, Hardin & Waite, of Chicago, and Edward J. Cunningham, of Brown, Hay & Stephens, of Springfield, for appellee Illinois Power Company.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In September 1986, this lawsuit began as a double derivative action by members of 22 electric distribution cooperatives (Powell) against Illinois Power, resulting from the failure or delay of Western Illinois Power Cooperative, Inc. (WIPCO) (a generation cooperative), and Soyland Power Cooperative, Inc. (Soyland) (a transmission cooperative), to sue Illinois Power for alleged wrongdoing in its construction of the nuclear power plant near Clinton, Illinois. The electric distribution cooperatives were, at one time, members of WIPCO and Soyland. During the pendency of this litigation, WIPCO and Soyland merged into one entity — Soyland.

In April 1988, pursuant to a motion filed by Soyland, the derivative claims initiated by Powell were ordered dismissed with prejudice and Soyland was realigned as plaintiff. (Powell’s class action count against Illinois Power, however, remained intact and was severed from the derivative action.) Powell appealed those orders, and in 1989, this court affirmed; subsequently, both the Illinois Supreme Court and the United States Supreme Court denied Powell’s further appeals of those orders. See Powell v. Western Illinois Electric Cooperative (1989), 180 Ill. App. 3d 581, 586-87, 536 N.E.2d 231, 233-34, appeal denied (1989), 127 Ill. 2d 640, 545 N.E.2d 129, cert. denied (1990), 493 U.S. 1079, 107 L. Ed. 2d 1038, 110 S. Ct. 1132.

On April 18, 1990, after two years of extensive pretrial litigation and maneuvering, Soyland and Illinois Power entered into a preliminary settlement agreement. On April 23, 1990, Powell filed a petition to intervene and to compel disclosure of the settlement terms. Shortly thereafter, Powell withdrew his petition and asked the trial court for leave to file an amended petition. Powell’s request was granted and, on June 15, 1990, Powell filed a petition to intervene as a matter of right, pursuant to section 2—408(a)(2) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—408(a)(2)). Four weeks later, on July 19, 1990, Powell filed a petition to disclose the terms of the settlement.

On September 12, 1990, the trial court entered two separate orders. First, the court denied Powell’s two petitions, and second, the court granted Illinois Power and Soyland’s motion to dismiss their pending action. Powell appeals, arguing that his petition to intervene as a matter of right should have been granted and that the court should have ordered a hearing on Illinois Power and Soyland’s settlement agreement to determine whether the terms of that agreement should be disclosed to the public. We affirm.

The right to intervene is not unqualified. In determining whether to grant a petition to intervene as of right, a trial court must consider whether the petition to intervene is timely, whether the petitioner’s interest is sufficient, and whether that interest is being adequately represented by someone else in the lawsuit. (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App. 3d 140, 144, 468 N.E.2d 428, 431.) In addition, all of the provisions of the intervention statute must be met. (Kendrick v. Standard Oil Co. (1967), 81 Ill. App. 2d 176, 185, 225 N.E.2d 437, 442.) Absent a clear abuse of discretion, the trial court’s judgment in these matters will not be reversed on appeal. Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 923, 420 N.E.2d 599, 602.

In denying Powell’s petition to intervene as a matter of right, the trial court stated the following:

“Two years ago this court decided that this was a lawsuit that included Illinois Power and Soyland. They’ve been litigating for a couple of years.
The court held at that time that Mr. Powell, et al. was not a proper party to do that, because it was a corporate matter.
That did go the Appellate Court, and the Appellate Court agreed with this court.
There was another case against the stockholders that I didn’t hear that went to the Appellate Court, and the Appellate Court decided that against Mr. Powell too.
I don’t think that Mr. Powell is [sic] a shareholder or stockholder, whatever you want to call him — a shareholder I guess it is — has any right in this court to be a party to this matter, and if the two litigants decide to settle this case the court’s not going to approve the settlement because the court has not been advised as to what the settlement is. But if they want to dismiss their lawsuit they have a right to do so, and the court will allow them to do it.
If it turns out that the settlement made by Soyland and the directors of Soyland is fraudulent and a fraud on this court, I think there is a vehicle which Powell, et al. could come in and have that agreement set aside as a fraud.
But that’s a different — a different lawsuit and a different time.
The court’s going to deny your motion to intervene ***.”

We find Powell’s interest in the outcome of this litigation speculative and thus insufficient to intervene as a matter of right. While a party need not have a direct interest in the pending suit in order to intervene, the intervenor must stand to gain or lose by the direct legal operation and effect of a judgment in the suit. (First National Bank v. Clay-Hensley Comm’n Co. (1988), 170 Ill. App. 3d 898, 906, 525 N.E.2d 217, 222-23.) If a party’s interest is speculative or hypothetical, this does not constitute an interest sufficient to warrant intervention. Clay-Hensley, 170 Ill. App. 3d at 906, 525 N.E.2d at 223.

On the record before us, Powell asserts no clear interest in the outcome of this litigation. Powell even admits in his reply brief that in his petition to intervene he asserts no tangible prayer for relief, “merely requesting] the court to review the terms of the settlement in light of the history of this case and in light of the interest and claims of the ratepayers-members. Nowhere [does Powell] request that control of the suit be transferred to [him] or taken away from Soyland management.” We deem this “interest” Powell claims in the instant cause to be speculative and insufficient to warrant intervention.

We also find that Powell failed to comply with the plain language of the intervention statute (section 2 — 408 of the Code) because he failed to file with his petition to intervene an initial pleading or motion which he proposed to file once his petition to intervene was granted. In relevant part, section 2 — 408(e) of the Code states the following:

“(e) A person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—408(e).)

Illinois Power, at the hearing on Powell’s petition to intervene, objected to this deficiency as follows:

“There is another statute, Section 2 — 408(e), part of the same statute, which says that a person desiring to intervene has to present a petition setting forth, the grounds for intervening accompanied by a pleading which he or she proposes to file.
That requirement for a pleading has not been fulfilled here, either with their original motion to intervene or with a later one. It’s a direct violation of the rule. It’s — the purpose of the rule is obvious.
We can’t — we’re entitled to know what their claims are before an intervention decision is made.
But you can’t tell from this record, and indeed Mr. Craven, I think, indicated this morning that he doesn’t really know what he wants. He doesn’t know whether they want to take over this case again or whether they want an injunction to prohibit this settlement or whether they want an injunction against any settlement, or there is no request for relief, and the rule has not been complied with.”

We agree. Had Powell requested an extension of time within which to file his accompanying initial pleading or motion, the decision to grant or deny that particular request would have been within the discretion of the trial court. However, no such motion or request was ever made. Thus, Powell failed to meet the requirements of the intervention statute.

The purpose of section 2 — 408(e) of the Code is to give both the trial court and any opposing party a clear indication of the relief the potential intervenor will be seeking if his petition to intervene is granted. This purpose is achieved by the requirement that the potential intervenor’s initial pleading he proposes to file be attached to the petition to intervene. Only when the goals of the potential intervenor are revealed in this fashion can the trial court and any opposing party assess the appropriateness of the petition to intervene. Indeed, the very case before us, with the confusion we have already cited as to the goals of the potential intervenors, demonstrates the wisdom of the policy underlying the requirement of section 2 — 408(e) of the Code that the intervenor’s proposed initial pleading be attached to the petition to intervene.

For the foregoing reasons, the trial court’s denial of Powell’s petition for leave to intervene as a matter of right is affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
      In re ESTATE OF DONALD L. STUFFING, Deceased (Daniel Voorhis et al., as Adm’rs de bonis non of the Estate of Donald L. Stuffing, Deceased, Petitioners-Appellants, v. Alfred M. Wooleyhan et al., Respondents-Appellees).—In re ESTATE OF LESLIE E. STUFFING, Deceased (Daniel Voorhis et al., as Adm’rs de bonis non of the Estate of Leslie E. Stuffing, Petitioners-Appellants, v. Alfred M. Wooleyhan et al., Respondents-Appellees).
    Fourth District
    Nos. 4—90—0756, 4—90—0763 cons.
    Opinion filed May 23, 1991.
    March & McMillan, P.C., of Macomb (Jeff W. DeJoode, of counsel), for appellants.
    R.P. O’Connell, of Richard P. O’Connell, Ltd., of Quincy, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Petitioners Daniel Voorhis and Roger Voorhis, on behalf of the estates of Leslie E. Stuffing and Donald L. Stuffing, appeal an order of the circuit court of Adams County entered October 1, 1990, dismissing their petitions for citations against respondents Alfred M. Wooleyhan and John C. Wooleyhan, former attorneys for both estates. Petitioners contend they are entitled to issuance of citations against respondents under section 16—1 of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1989, ch. 110½, par. 16—1) to discover and recover assets in the form of excessive attorney fees belonging to the estates. We reverse and remand.

Section 16 — 1 of the Act, in pertinent part, provides:

“(a) Upon the filing of a petition therefor by the representative or by any other person interested in the estate or, in the case of an estate of a ward by any other person, the court shall order a citation to issue for the appearance before it of any person whom the petitioner believes (1) to have concealed, converted or embezzled or to have in his possession or control any personal property, books of account, papers or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his representative or (2) to have information or knowledge withheld by the respondent from the representative and needed by the representative for the recovery of any property by suit or otherwise. The petition shall contain a request for the relief sought.
* * *
(d) The court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title and the right of property and may enter such orders and judgment as the case requires.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110½, pars. 16—1(a), (d).

The petitions for citations on behalf of both estates were filed on June 27, 1990, and were later consolidated. The petitions alleged (1) petitioners are the co-administrators de bonis non and the personal representatives of both estates; (2) petitioners believe respondents have “taken, converted or have in their possession or control certain property, described as” excessive attorney fees belonging to the estates; (3) excessive attorney fees were paid to respondents by the former executor of each estate without the filing and approval of the claim by the probate court; (4) these assets should be returned to the estates because they were acquired through “undue influence, abuse of fiduciary and confidential relationship, [and] were excessive payment for work actually performed”; and (5) petitioners believe respondents “have knowledge or information concerning the property belonging to the [d]ecedent herein, or to the [e]state of the [djecedent and which they withheld from petitioners.”

Additionally, the petition on behalf of the estate of Leslie E. Stuffing alleged $30,000 of excessive attorney fees were paid to respondents by Donald L. Stuffing while serving as the executor of that estate. The petition on behalf of the estate of Donald L. Stuffing alleged $16,000 of excessive attorney fees were paid to respondents by the Illinois State Bank of Quincy while serving as executor of that estate. Both petitions further alleged a fiduciary and confidential relationship existed between the above-mentioned former executors and respondents when respondents were paid the alleged excessive attorney fees.

In the prayer for relief, both petitions requested respondents (1) be cited to appear before the court to answer questions regarding the “property in their hands”; (2) be ordered to return such property if the court finds it to belong to the estates; (3) be cited to answer questions regarding any information withheld by respondents and needed to recover the property; (4) be required to account to the petitioners for all attorney fees acquired in “excess of reasonable compensation for work actually performed, or through breach of fiduciary relationship and undue influence”; and (5) pay costs and attorney fees.

The record indicates the following events led to the filing of the petitions for citations against respondents. On May 10, 1983, the Illinois State Bank of Quincy was appointed administrator de bonis non with the will annexed for the estate of Leslie E. Stuffing due to the death of the executor, Donald L. Stuffing. A final account and report was filed by Illinois State Bank of Quincy on October 3, 1984, prior to its resignation. Apparently, all attorney fees paid to respondents for their legal work on the estate of Leslie E. Stuffing were paid by Donald L. Stuffing as executor, since the final account did not list any disbursement of attorney fees. The final account and report was approved October 3, 1984. At that time, petitioners were appointed coadministrators de bonis non with the will annexed for the estate of Leslie E. Stuffing. Petitioners filed an objection to attorney fees in the probate court on December 20,1984.

Pursuant to the will of Donald L. Stuffing, the Illinois State Bank of Quincy was appointed as executor of his estate following his death. On June 28, 1985, the Illinois State Bank of Quincy resigned as executor and petitioners were appointed coadministrators de bonis non with the will annexed of the estate of Donald L. Stuffing. On July 17, 1985, the Illinois State Bank of Quincy filed its final account and report listing as a disbursement in 1983 approximately $16,000 in attorney fees paid to respondents. On August 6, 1985, petitioners filed an objection to attorney fees. The record does not indicate the final account and report of the Illinois State Bank of Quincy was ever approved.

Furthermore, there is no indication from the record that petitioners’ objections to attorney fees were ever heard by the court. Apparently, a series of recusals and continuances delayed the hearing. Prior to filing the petitions for citations, petitioners, on January 16, 1985, filed a request for production of documents, requesting respondents to produce all agreements made with the former personal representative of both estates regarding attorney fees for legal services for the estates. Petitioners also requested all of respondents’ time records regarding legal services rendered to the estates. In addition, petitioners requested to take respondents’ depositions on January 24, 1986, and February 21, 1986. There is no indication in the record whether respondents complied with petitioners’ requests. On January 27, 1986, petitioners filed a request for respondents to file affidavits stating their production of documents, if any, was complete.

Then on August 14, 1989, petitioners filed a motion to compel compliance for production of documents, alleging the documents previously requested had not been produced by respondents. Following a hearing, the circuit court entered an order on September 5, 1989, denying petitioners’ motion to compel. On June 27, 1990, petitioners filed the petitions for citations against respondents.

Petitioners recognize section 16 — 1 of the Act is not the only method of discovering and recovering assets allegedly belonging to an estate. Nevertheless, petitioners contend that based on the inherent difficulty in obtaining information about the assets of a decedent, section 16 — 1 of the Act provides the most expeditious process for discovering alleged estate assets. This is particularly significant under circumstances where they have been denied the usual discovery procedure. Moreover, petitioners argue, under these circumstances, the recovery of assets in the form of excessive attorney fees is proper under a citation proceeding because respondents are alleged to have obtained wrongful possession not only by charging excessive fees, but also by exerting undue influence and breaching a fiduciary duty owed to the executors who paid them.

Conversely, respondents claim the petitions against them fail to set forth sufficient facts to establish they have “concealed, converted or embezzled or *** have in [their] possession or control any personal property” belonging to either estate as required in section 16 — 1 of the Act. In addition, respondents argue petitioners are attempting to use a citation proceeding to recover a debt owed, if at all, to the estate, which is clearly improper.

The parties refer to two Illinois decisions which have addressed the issue of whether attorney fees charged to an estate can be challenged in a citation proceeding. Respondents rely on the decision in In re Estate of Lundmark (1963), 42 Ill. App. 2d 80, 191 N.E.2d 657, where the appellate court affirmed the order of the probate court striking and dismissing a petition brought pursuant to section 183 of the Act (Ill. Rev. Stat. 1961, ch. 3, par. 183 (a predecessor to section 16—1 of the Act)). That petition alleged that, without prior approval of the court, excessive and unreasonable fees were paid to those respondents, the former attorney and conservator of the estate. Petitioner requested that a rule be entered requiring respondents to account for the fees and return any of the fees the court deemed improper.

The appellate court noted the uniqueness of that petitioner’s attempted use of a citation, and then held there was no language in the statute from which it can be inferred such proceedings were intended to be used to challenge excessive attorney fees paid by an estate. The court also noted the petition failed to request the issuance of a citation.

Section 16 — 1(a) of the Act specifically provides that a citation proceeding may only be brought against one who is believed to have “concealed, converted or embezzled or *** [has] *** possession or control” of assets belonging to an estate. These terms are accorded their ordinary legal definitions and all the elements of the alleged wrongful act must be proved at the citation proceeding for the petitioner to be entitled to relief. (In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259.) Here, the petitions alleged respondents have “taken, converted or have in their possession or control certain property.” The petitions also indicate respondents obtained possession of alleged estate assets by charging excessive fees in addition to exerting undue influence and breach of fiduciary duty.

As respondents correctly point out, the petitions allege a number of legal conclusions. However, “[a]n allegation that certain property belonging to the estate is in the possession of the respondent, coupled with a prayer for a proper order by the court, has been found to be a sufficient basis for the trial court’s jurisdiction.” (In re Estate of DeKoekkoek (1979), 76 Ill. App. 3d 549, 552, 395 N.E.2d 113, 116.) Here, any improperly obtained fees, while in the hands of the attorneys, would be assets belonging to the estate within the meaning of section 16 — 1(a) of the Act, and the disposition of those funds would constitute a conversion within the meaning of that statutory provision.

Petitioners rely on the decision in DeKoekkoek, where a petition was filed under section 16 — 1 of the Act alleging that the respondent, former attorney for the decedent, charged her excessive attorney fees and unlawfully discounted a certificate of deposit. Following the citation proceeding, a judgment was entered against the respondent ordering him to refund attorney fees and the amount of the note’s improper discount on the certificate of deposit. The appellate court held the allegations and request for relief contained in the petition could properly be maintained in a citation proceeding, but reversed because the evidence did not support the trial court’s findings against the respondent.

The court distinguished Lundmark, because there that petition alleged only that the attorney fees were excessive, and requested for a rule to issue, not for issuance of a citation. In comparison, the petition in DeKoekkoek contained additional allegations as to the ownership of the money, as well as the proper prayer for relief, as required in section 16 — 1 of the Act.

We recognize that, in DeKoekkoek, the additional allegation that respondent wrongfully discounted a certificate of deposit belonging to the estate concerns a kind of personal property, which is more certainly that which can be discovered and returned to the estate under section 16 — 1 of the Act, than the additional allegations in the instant case. Here, the petitions alleged respondents wrongfully obtained assets of the estate through undue influence and breach of fiduciary duty, in addition to charging excessive attorney fees. Furthermore, petitioners have attempted to discover information regarding the fees paid to respondents through the usual discovery process. Apparently they have had little success. Under these circumstances, if the petitions for citations are denied, petitioners will have no way of gaining information they need to recover the alleged estate assets. Clearly, a purpose of section 16 — 1 of the Act is to provide a means of obtaining information from respondents needed to recover estate assets. Accordingly, we find the instant .case to be closer to DeKoekkoek than Lundmark.

Notably, the Lundmark decision was made when the probate court existed as a separate system, prior to the unification of the court system in 1964. That court’s limited ability to handle complicated cases may have had some bearing on its decision. This is no longer a problem, and the expeditious and summary proceedings provided in section 16 — 1 of the Act are preferred in cases concerning estate assets.

Last, respondents argue petitioners are essentially asking that respondents be made judgment debtors to the estate for the amount of excessive attorney fees. In Johnson v. Nelson (1930), 341 Ill. 119, 173 N.E. 77, the supreme court held section 81 of the Probate Act, regarding a citation proceeding at that time, cannot be used to collect a debt owed to the estate. In Johnson, there was no question as to who held title to the alleged estate property, only whether it was a loan owing to the estate or a gift to that respondent. The court found that when a debtor-creditor relationship exists a citation proceeding is unavailable.

Similarly, in In re Estate of Pinckard (1980), 94 Ill. App. 3d 34, 417 N.E .2d 1360, the appellate court reversed the circuit court’s order for respondents, the partners of the estate’s deceased former attorney, to return assets in the form of excessive attorney fees belonging to the estate. The appellate court deemed a citation proceeding could not be used, there, to recover a debt and impose liability upon third parties for another’s conversion of assets under the theory of apparent partnership. Unlike the instant case, prior to the citation proceeding, a judgment against the respondents had been entered following a hearing on the petitioner’s objection to attorney fees.

The instant case can be distinguished from Johnson and Pinchard, because neither a debtor-creditor relationship nor a judgment against respondents existed prior to the petitions for citations. Under the circumstances in those cases, a citation proceeding would be unnecessary because there would be no need to discover information or determine ownership of alleged assets. Here, ownership of the alleged estate assets has yet to be decided; accordingly, we find this case not to be analogous to an attempted collection of a debt.

For the above-stated reasons, we reverse the circuit court’s order dismissing the petitions for a citation under section 16 — 1 and remand.

Reversed and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT M. GOVIN, JR., Defendant-Appellant.
    Fourth District
    No. 4—90—0512
    Opinion filed May 23, 1991.
    Rehearing denied June 21, 1991.

      Michael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, for appellant.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Sangamon County, defendant was convicted on April 25, 1990, of the offense of controlled substance trafficking (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(a)). On June 22, 1990, the court sentenced him to 12 years’ imprisonment and 3 years’ mandatory supervised release. On appeal, defendant contends (1) the proof did not support the conviction; (2) he was not subject to trial in Illinois; (3) the statute under which he was charged was void for vagueness; and (4) the court erred (a) in not conducting an evidentiary hearing on a motion to suppress, (b) rulings on closing argument, (c) rulings on instructions, (d) allowing replay of tapes before the jury, and (e) sentencing. We affirm.

At times pertinent, section 401.1(a) of the Illinois Controlled Substance Act (Act), of which defendant was convicted, provided:

“(a) Except for purposes as authorized by this Act, any person who knowingly brings or causes to be brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or deliver a controlled or counterfeit substance is guilty of controlled substance trafficking.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(a).

We consider first the sufficiency of the proof of guilt because, if that failed, we would reverse without remandment. In making that determination on review, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The State maintains it proved beyond a reasonable doubt that defendant was guilty of the offense charged because he was accountable for the conduct of Steve Kaplan, who caused the delivery of cocaine into the State of Illinois with the purpose it be delivered. A person is legally accountable for the conduct of another when:

“(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However, a person is not so accountable, unless the statute defining the offense provides otherwise, if:
* * *
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.”
Ill. Rev. Stat. 1987, ch. 38, par. 5—2.

To establish criminal guilt by accountability, the State must prove beyond a reasonable doubt:

“[T]hat the accused solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense, that such participation occurred either before or during the perpetration of the crime, and that this participation was with the concurrent, specific intent to promote or facilitate the commission of the offense.” People v. Grice (1980), 87 Ill. App. 3d 718, 724-25, 410 N.E.2d 209, 215.

See People v. Scherzer (1989), 179 Ill. App. 3d 624, 639, 534 N.E.2d 3.043, 1054; People v. Totah (1989), 192 Ill. App. 3d 239, 250, 548 N.E.2d 678, 685.

The evidence of a chain of events which ties defendant to the offense with which he was charged begins with authorized tapes of conversations during telephone calls which Mark Rowan, a State informer, had initiated from Illinois to defendant in Florida during November 1988. Rowan testified he had been buying cocaine from defendant for years and all those substances so purchased had been sent to Joseph Liberman in Springfield, Illinois. In the telephone conversations, Rowan indicated he wished to engage in a substantial narcotics transaction, but defendant indicated he was quitting doing that and moving to Washington, D.C., but he would talk to a person who might help Rowan and see if he could give that person’s telephone number to Rowan. The tapes of those telephone conversations indicated Rowan and defendant agreed that defendant’s compensation for his help would be the forgiveness of a $100 debt, which Rowan contended defendant owed for some shortages in a previous illegal transaction.

Steve Kaplan testified for the State that of 12 years prior to. November 1988, he had known defendant and, in the past, he sold defendant marijuana and cocaine when defendant would phone and say he had a customer wishing to purchase one of those substances. Kaplan further testified defendant had telephoned him in late November 1988, stating he was moving to Washington, D.C., and wanted Kaplan’s permission to give Kaplan’s phone number to a friend who wanted to buy cocaine. Kaplan also testified that later Rowan telephoned him and, as a result of an agreement reached in that phone call, Kaplan shipped one ounce of cocaine to Springfield, Illinois, during the second or third week of December 1988. Both Kaplan and Rowan had narcotics charges pending against them. Rowan had agreed to act as an informer for the State and to help the State, and he initiated the phone calls to defendant and Kaplan. Both Rowan and Kaplan testified they had been given no promises by the State. Kaplan was not an informer and acted without knowing of Rowan’s relationship with law enforcement.

Thus, substantial evidence was presented that for unauthorized purposes Kaplan caused cocaine to be brought into Illinois for the purpose of delivery within the meaning of section 401.1(a) of the Act. Substantial evidence also indicated that before the commission by Kaplan of that offense, with the intent to facilitate that offense, defendant aided Kaplan in the planning of the offense by giving Kaplan’s phone number to Rowan and did nothing to deprive the effectiveness of his prior efforts in the commission of the offense. That evidence also indicated defendant otherwise made no proper effort to prevent the commission of the offense.

Without objection by the State, the circuit court instructed the jury as to the defense of entrapment. However, a reasonable jury could clearly determine beyond a reasonable doubt that defendant was not entrapped. The tape of the conversations between defendant and the informer, Rowan, indicated Rowan made entreaties to defendant for his help but even 20 such requests by an informer do not require a trier of fact to find the entrapment defense not negated. (People v. Foreman (1987), 153 Ill. App. 3d 346, 505 N.E.2d 731.) Nor would such a finding be required by any appeals to their friendship which Rowan may have impliedly made. (People v. Washington (1967), 81 Ill. App. 2d 162, 225 N.E.2d 673.) The evidence strongly showed a predisposition on the part of defendant to commit the offense by accountability. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 526 N.E.2d 871.) Any reluctance shown by defendant concerned getting more directly involved than he did. Nothing in the tapes indicated that any coaxing was required to get defendant to make arrangements with Kaplan for Rowan to phone him.

A reasonable trier of fact could conclude the evidence proved beyond a reasonable doubt that defendant, without being entrapped, was accountable for a violation by Kaplan of section 401.1(a) of the Act. Jackson, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; Collins, 106 Ill. 2d 237, 478 N.E.2d 269.

Defendant maintains he cannot be prosecuted in Illinois because any offense he may have committed occurred outside this State; he never came to Illinois and never sent drugs there. Defendant’s argument is countered by the broad scope of section 1 — 5 of the Criminal Code of 1961 (Code), which states, in part:

“(a) A person is subject to prosecution in this State for an offense which he commits, while either within or outside the State, by his own conduct or that of another for which he is legally accountable, if:
(1) The offense is committed either wholly or partly within the State; or
(2) The conduct outside the State constitutes an attempt to commit an offense within the State; or
(3) The conduct outside the State constitutes a conspiracy to commit an offense within the State, and an act in furtherance of the conspiracy occurs in the State; or
***
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State.” Ill. Rev. Stat. 1987, ch. 38, par. 1—5.

In People v. Caruso (1987), 119 Ill. 2d 376, 519 N.E.2d 440, the supreme court held that an accused was properly charged in Illinois with the offense of child abduction (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10—5(b)(1)) upon allegations he detained his daughters in Ohio in violation of a custody order of an Illinois court in a divorce proceeding. The supreme court stated:

“The purpose of section 1 — 5 is to establish a broad jurisdictional basis for the prosecution in Illinois of offenses involving persons, property, and public interests in the State ***. [Citation.] The provisions of section 1 — 5 are to be interpreted according to that purpose.
Section 1 — 5 reflects the holding of Strassheim v. Daily (1911), 221 U.S. 280, 55 L. Ed. 735, 31 S. Ct. 558, where the United States Supreme Court held:
‘Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power.’ Strassheim, 221 U.S. at 285, 55 L. Ed. at 738, 31 S. Ct. at 560.”
Caruso, 119 Ill. 2d at 382, 519 N.E.2d at 442.

Here, evidence indicated that defendant, acting in Florida with the intent that cocaine be delivered in Illinois, aided and abetted a transaction by which cocaine was caused to be delivered in Illinois. The charges against defendant were properly brought in Illinois.

The defendant next argues the controlled substance trafficking statute is unconstitutionally vague and impermissibly broad in scope. The defendant contends the phrase “causes to be brought into this State” is vague and “lacking in the appropriate definiteness and violates due process of law protections found in the Fifth and Fourteenth Amendments to the United States Constitution.” He claims the phrase is so vague, he could not have known his conduct would violate the statute. He maintains he did not cause the drug transaction between Rowan and Kaplan, but was merely a conduit. He claims he lacked intent to participate in a criminal act. We disagree.

“In construing a statute, it is of course fundamental that a court is to ‘ascertain and give effect to the legislative intent.’ [Citations.] *** Although penal statutes are to be strictly construed in favor of the accused, they must not be so rigidly construed as to defeat the intent of the legislature. [Citations.] On the contrary, statutes are presumed constitutional, and ‘[i]t is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can reasonably be done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged.’ People v. Bales (1985), 108 Ill. 2d 182, 188, quoting Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389.” People v. Haywood (1987), 118 Ill. 2d 263, 270-71, 515 N.E.2d 45, 49.

See also United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-66, 83 S. Ct. 594, 597-98.

A statute is unconstitutionally vague “when ‘men of common intelligence must necessarily guess at its meaning.’ (Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 37 L. Ed. 2d 830, 837, 93 S. Ct. 2908, 2913, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.)” (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 205, 414 N.E.2d 731, 737; see also Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 285, 430 N.E.2d 1012, 1015.) “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” (National Dairy Products Corp., 372 U.S. at 32-33, 9 L. Ed. 2d at 565, 83 S. Ct. at 598.) A conviction under a criminal statute which does not provide adequate notice that the conduct charged is prohibited is violative of due process. Wright v. Georgia (1963), 373 U.S. 284, 293, 10 L. Ed. 2d 349, 356, 83 S. Ct. 1240, 1246; see also People v. Wawczak (1985), 109 Ill. 2d 244, 249, 486 N.E.2d 911, 913.

The phrase “causes to be brought into the State” is not unconstitutionally vague. The word “cause” is a common word, easily understood. The statute indicates to any reasonable person that anyone who knowingly participates in a drug transaction as a result of which controlled substances are brought into this State for purposes of manufacture or delivery will be guilty of a criminal offense. The unrebutted evidence indicated the defendant was an experienced drug dealer. He knew Rowan was in Illinois and sought to purchase cocaine for buyers in Illinois. The defendant’s role as a conduit was an essential link in the chain of events which culminated in the delivery of one ounce of cocaine to Rowan in Springfield, Illinois.

The mental state of the defendant required for his conviction on a theory of accountability was that he aided the commission of the offense described in section 401.1(a) of the Act with the intent the offense be committed. The evidence fully supported a determination by the jury that defendant intended that by lining Rowan up with Kaplan, cocaine would be caused to be delivered in Illinois.

Defendant’s contention that the trial court erred in denying him an evidentiary hearing on a motion to suppress refers to that court’s denial of an evidentiary hearing on defendant’s motion to suppress the tapes of the previously described telephone conversations with defendant. He relies upon Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, where the court held that under certain circumstances where an accused makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth was included by the affiant in the warrant affidavit” and the '.tatement was necessary for a finding of probable cause, the accused is entitled to an evidentiary hearing and a voiding of the warrant if the preliminary showing is established by a preponderance of the evidence. Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2674.

We need not decide whether the requirements of Franks are applicable to motions to suppress tapes of wiretaps, as here authorized pursuant to article 108A of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 108A—1 et seq.). As pointed out by the circuit court, the record here shows defendant’s motion failed to state with particularity the portion of the affidavit supporting the wiretap request which was false and defendant failed to support the motion with an offer of proof as to evidence which would indicate falsity. (Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 89 S. Ct. at 2684; People v. Eyler (1989), 133 Ill. 2d 173, 201, 549 N.E.2d 268, 280.) The circuit court properly denied the requested evidentiary hearing.

Defendant asserts that the trial court erred in denying a mistrial after the prosecutor, in closing argument, stated: “Mr. Govin cannot say that he did not know that the cocaine was intended to be delivered into Illinois, Rowan told him that in the very first conversation they had about the subject on November 23 of 1988.” Defense counsel immediately objected, approached the bench, and moved for a mistrial on the basis that the prosecutor violated defendant’s fifth amendment rights by commenting on the defendant’s failure to testify. The prosecutor stated the comment was made to show the defendant knew the cocaine was going to Illinois, not to reflect on the defendant’s failure to testify. The court stated:

“Alright, I think the context in which the comment was made would naturally run to the Defendant’s argument at this time, and I don’t think it would be construed as a comment on his failure to testify, so your Motion for Mistrial will be denied. If you want me to give a cautionary instruction right now to the jury, I will; if you don’t[,] I won’t.”

Defense counsel stated he did not want a cautionary instruction.

“In determining whether improper comment has been made on a defendant’s failure to take the witness stand and testify, a court will consider whether ‘ “the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify”.’ (Dixon, 91 Ill. 2d at 350, quoting People v. Hopkins (1972), 52 Ill. 2d 1, 6; see also People v. Morgan (1986), 112 Ill. 2d 111, 133-34.) In making that determination, a reviewing court should examine the challenged comments in the context of the entire proceeding. United States v. Robinson (1988), 485 U.S. 25, 32, 99 L. Ed. 2d 23, 31, 108 S. Ct. 864, 869; Hopkins, 52 Ill. 2d at 6.” People v. Arman (1989), 131 Ill. 2d 115, 125-26, 545 N.E.2d 658, 663-64.

The trial court is in a better position to determine the prejudicial effect of a remark made during argument and, unless the court clearly abused its discretion, the ruling regarding the remark should be upheld on review. (People v. Holloway (1983), 119 Ill. App. 3d 1014, 1021-22, 457 N.E.2d 466, 472.) A prosecutor may comment on the uncontroverted nature of the evidence. (People v. Smith (1988), 165 Ill. App. 3d 905, 913, 520 N.E.2d 841, 845; People v. Saldana (1986), 146 Ill. App. 3d 328, 337, 496 N.E.2d 757, 765; People v. Thompson (1984), 123 Ill. App. 3d 523, 462 N.E.2d 1268.) The prosecutor’s comment in this case was a comment on the uncontroverted evidence; it was not a comment on the defendant’s failure to testify in his own behalf, which would violate defendant’s constitutional rights.

Defendant’s complaint concerning the trial court’s ruling on instructions concerns the court’s refusal of various instructions tendered by defendant concerning (1) impeachment of Rowan and Kaplan because they could receive benefits from the prosecution, and (2) accountability. None of these instructions were contained in Illinois Pattern Instructions in criminal cases (IPI-Criminal) and, in every case, the subject was covered by IPI-Criminal instructions. The jury was aware from the evidence of the fact that Rowan and Kaplan could receive favors from the State in regard to their pending charges. The jury was instructed that in weighing the testimony of witnesses, the jury should consider the witnesses’ interest and bias. The jury was also instructed by IPI-Criminal as to the elements of accountability. The court did not abuse its discretion in the rulings on these instructions.

“It is fundamental that an accused, like the State, is entitled to the submission of appropriate jury instructions on the law applicable to the theory of defense if there was evidence introduced at trial in support of that theory [citations], but it is the trial court which determines, after consideration of the facts and the governing law, whether the jury should be instructed on a particular subject and, then, whether the Illinois Pattern Instructions in Criminal Cases (IPI-Criminal) contains an instruction which accurately states the law on that subject. (107 Ill. 2d R. 451(a).) If there is an appropriate IPI instruction, it must be used. (107 Ill. 2d R. 451(a).) However, the decision to give or refuse a non-IPI instruction is a matter within the sound discretion of the trial court. [Citations.] An abuse of discretion in the refusal of such instruction occurs only where there is no IPI instruction applicable to the subject on which the jury should have been instructed (107 Ill. 2d R. 451(a); Peo ple v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282), and the jury was, therefore, left to deliberate without proper instructions [citation]. Conversely, refusal to give a non-IPI instruction does not constitute an abuse of discretion if there is an applicable IPI instruction and/or the essence of the refused instruction is covered by other given instructions.” (Emphasis in original.) People v. Thomas (1988), 175 Ill. App. 3d 521, 528, 529 N.E.2d 1071, 1075.

During its deliberations, the jury sent the court a note which asked: “If it has to be an officer of the law doing the actual speaking to be considered entrapment, can it be someone else working with the police, e.g. was Rowan — was Rowan considered *** an agent of the police (per the definition of entrapment) ***.” The defendant then requested the court instruct the jury that Rowan could be an agent of the police. The court refused to give the requested instruction and instead sent a note to the jury advising: “You have been given the law on this issue. It is for you to decide the facts and apply the law as it has already been defined to you.” The court proceeded properly. Giving the instruction requested by the defendant would have been improper as that instruction contained a “conclusion” by the court “based on [the court’s] view of the evidence.” People v. Pryor (1989), 181 Ill. App. 3d 865, 871, 537 N.E.2d 1141,1145.

During jury deliberations, the jury also requested a transcript of the tapes of the phone conversations between Rowan and the defendant. Over defense objection, the court had the tapes replayed before the jury in the courtroom. Each juror was also furnished with a transcript of the tapes which that juror could read while listening to the tapes. However, neither the tapes nor the transcript was taken back to the jury room when the jurors retired to deliberate further.

The trial court had discretion to allow or refuse the jury’s request for a review of testimony. (People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169; People v. Olinger (1986), 112 Ill. 2d 324, 349, 493 N.E.2d 579, 591.) In deciding whether to allow a requested review of testimony, the court “must start with the assumption that the jury feels it would be helpful. The court must then determine if there is a possible basis for the jury’s belief. *** The trial court must also determine what harm the proposed review of testimony might do to the jury's deliberations.” (Emphasis in original.) (People v. Bell (1976), 44 Ill. App. 3d 185, 194, 357 N.E.2d 1256, 1263; see also People v. Rogers (1982), 110 Ill. App. 3d 410, 415, 442 N.E.2d 529, 533.) Defendant contends he was prejudiced because replay of the tapes highlighted certain portions of the evidence. However, this evidence was crucial not only to the State’s theory of the case but also to defendant’s theory that he was not accountable for the commission of the offense. The court did not breach its discretion in the procedures used.

We summarily dispose of defendant’s final contention that the court erred in sentencing by imposing a sentence disparate to that of Liberman, Kaplan, and Rowan. The record presented by defendant to the trial court was insufficient for it to make a comparison between his sentence and those given Kaplan and Rowan. (People v. Kline (1982), 92 Ill. 2d 490, 509, 442 N.E.2d 154, 163.) Liberman’s sentence was much greater than that given defendant. No error in sentencing occurred.

We affirm the conviction and sentence.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. MISCH, Defendant-Appellant.
    Fourth District
    No. 4—90—0673
    Opinion filed May 23, 1991.

      W. Keith Davis, of Jennings, Novick, Ensign & Ostling, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (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 STEIGMANN

delivered the opinion of the court:

Defendant, Thomas C. Misch, appeals the trial court’s denial of his petition to rescind a statutory summary suspension of his driver’s license, which resulted from application of the provisions of section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1). On appeal, defendant argues (1) the arresting officer did not have reasonable grounds to believe that defendant was driving a motor vehicle while under the influence of alcohol or drugs or a combination thereof (DUI), and (2) section 11 — 501.1 of the Code does not authorize the statutory summary suspension of defendant’s driving privileges based upon the positive test for cannabis in his blood and urine. We disagree and affirm.

Defendant’s first argument need not long detain us. He does not argue that any impropriety occurred when McLean County deputy sheriff Scott Shumaker stopped the pickup truck that defendant was driving on July 27, 1990, the night in question; instead, defendant argues that Shumaker’s interaction with the defendant at the scene where the pickup truck was stopped did not provide Shumaker with reasonable grounds to believe that defendant was driving the pickup truck while under the influence of alcohol, other drug, or a combination thereof. (See Ill. Rev. Stat. 1989, ch. 95½, par. 2—118.1(b)(2).) Defendant made the same argument to the trial court, and it provided written findings as follows:

“Deputy Shumaker testified as to his observations of defendant’s driving, the defendant’s physical appearance, the faint odor of alcohol on defendant’s breath, the smell of alcohol on defendant’s clothing, the defendant’s performance on field sobriety tests, cups with alcohol residue found in the vehicle, and a statement by the passenger in defendant’s vehicle concerning the consumption of cannabis. Based upon a totality of the evidence presented, the Court finds that reasonable grounds to believe that the defendant was driving a motor vehicle while under the influence of alcohol and/or drugs has been shown and that [defendant] has not borne his burden of proof as to that issue.”

The trial court’s findings of fact at the hearing on defendant’s petition to rescind his statutory summary suspension will not be reversed unless those findings are against the manifest weight of the evidence. (See People v. Sanders (1988), 176 Ill. App. 3d 467, 469, 531 N.E.2d 61, 63.) Our review of the record in this case demonstrates that the trial court’s findings were soundly based. In addition to the evidence specifically cited by the trial court, we note that defendant admitted to Shumaker that he had been drinking. Further, in a wonderfully descriptive phrase, Shumaker described defendant’s demeanor as they conversed as follows: “I got this 30-foot stare in a 10-foot room.” Shumaker testified that, “A couple of times I even turned around and looked to see if there was something back there that he was looking at.” However, Shumaker saw nothing to account for the defendant’s strange behavior. At that point, Shumaker shined his “very strong police flashlight” into defendant’s eyes, yet defendant’s pupils remained “very wide open.”

Shumaker also testified that defendant was unable to recite the alphabet, that after defendant reached the letter “p,” he stated, “k, y, x.” According to Shumaker, only after he acquired all of the above information, in addition to that referred to by the trial court, did he arrest defendant for DUI. On this record, the trial court’s decision clearly was not contrary to the manifest weight of the evidence.

In his brief, defendant also makes the following argument: “[T]here exist no reasonable grounds to believe a driver to be under the influence of any substance, within the meaning of the Illinois Motor Vehicle Code, unless there is objective and unambiguous evidence of impaired driving ability ***.” We emphatically disagree and reaffirm what we wrote in People v. Sides (1990), 199 Ill. App. 3d 203, 556 N.E.2d 778, wherein we discussed a similar issue:

“In assessing the defendant’s mental and physical faculties at a time relevant to the charge that he was driving an automobile while under the influence of alcohol, it is entirely appropriate for the jury to consider the defendant’s ability to perform the simple physical tasks which comprise the field-sobriety tests. The jury’s inference that a defendant who had difficulty performing some of these tasks may have been similarly impaired in his ability to think and act with ordinary care when in operation of an automobile is entirely justified and one which the law permits the jury to draw.
Certainly in our modern society, a juror’s common observations and experiences in life would include not only the driving of an automobile, but a familiarity with the degree of physical and mental acuity required to do so. No expert testimony is needed nor is a showing of scientific principles required before a jury can be permitted to conclude that a person who performs badly on the field-sobriety tests may have his mental or physical faculties ‘so impaired as to reduce his ability to think and act with ordinary care.’ ” (Sides, 199 Ill. App. 3d at 206-07, 556 N.E.2d at 779-80.)

Just as a jury may infer that a defendant’s ability to drive a motor vehicle is impaired, based upon the factors discussed above, so may a police officer draw the same inference. No direct evidence that the defendant actually drove a motor vehicle in an erratic or unlawful manner is required either to sustain a defendant’s conviction for DUI or to provide probable cause for his arrest for DUI.

Last, defendant argues that section 11 — 501.1 of the Code does not authorize a statutory summary suspension of the driver’s license of drivers whose blood-alcohol tests do not disclose an alcohol concentration of 0.10 or more grams per 100 milliliters of blood, but who otherwise test positively for the presence of cannabis in their blood or urine. Resolution of this issue requires us to analyze a recent amendment to the Code in the context of the facts in this case.

After defendant was arrested for DUI, he was taken to a hospital where Shumaker requested defendant to provide blood and urine samples. Defendant complied, and the results of those tests proved negative for the presence of alcohol and positive for the presence of cannabis.

Prior to defendant’s compliance with Shumaker’s request that defendant provide these samples, Shumaker provided defendant with a warning, as required by section 11 — 501.1(c) of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(c)), that, in part, stated the following: “If you submit to a chemical test(s) disclosing any amount of a drug, substance, or compound resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act, your driving privileges will be suspended for a minimum of 3 months.”

A few days later, after the test results from the hospital had been received, Shumaker filed his sworn report, pursuant to the provisions of section 11 — 501.1(f) of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(f)). That report informed defendant that his license was going to be suspended, effective 46 days later, because he had submitted to testing which disclosed “any amount of a drug, substance, or compound in your blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act.”

Citing section 11 — 501.1(d) of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(d)), defendant argues that a statutory summary suspension can occur only when a person either refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more. Section 11 — 501.1(d) of the Code reads as follows:

“If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, or any amount of a drug, substance, or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act, the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested pursuant to paragraph (a) [of this section] and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more.” Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.1(d).

Defendant argues that the above language “clearly and unambiguously” requires a law enforcement officer to certify either that the tests were requested and that the person refused to submit to a test, or that the suspect submitted to a test which disclosed an alcohol concentration of 0.10 or more. In the present case, defendant did not refuse to submit to a test, nor did his test results disclose an alcohol concentration of 0.10 or more; instead, those tests disclosed the presence of cannabis in his blood and urine. Defendant concedes that the legislature may have intended that drivers who have ingested cannabis should suffer a suspension of their driving privileges, just as do drivers who have blood-alcohol test results of 0.10 or more, but he maintains that this court cannot construe section 11 — 501.1(d) as if the legislature had explicitly so stated.

The same argument was presented to the trial court and rejected. The trial court found that the statutory warning, notice, and filing provisions pertaining to statutory summary suspension had been complied with by Deputy Shumaker, and that when section 11 — 501.1 of the Code is read in its entirety in conjunction with section 6 — 208.1 of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 6—208.1), the “legislative intent was fully expressed” to include defendant’s situation. We agree.

We begin our analysis regarding legislative construction with a brief review of the applicable rules. In- American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 238, 537 N.E.2d 284, 288, the supreme court wrote that “[t]he fundamental principle of statutory construction is to give effect to the intent of the legislature.” In Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370, this court wrote the following:

“The primary function of the courts in interpreting and construing statutes is to ascertain and give effect to the legislature’s intent in enacting the statute. [Citation.] Courts should first look to the statutory language as the best indication of the intent of the legislature [citation] and examine the entire statute [citation]. Additionally, courts seek to determine the objective the statute sought to accomplish and the problems it sought to remedy.” Department of Revenue, 150 Ill. App. 3d at 1047, 501 N.E.2d at 1377.

See also Howard v. Forbes (1989), 185 Ill. App. 3d 148, 151, 541 N.E.2d 685, 687-88.

In this case, the statute in question, the entirety of which we should examine to determine legislative intent, is section 7 of Public Act 86 — 1019 (Pub. Act 86 — 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7010), which modified sections 2—118.1, 6 — 206, 6 — 208.1, 11— 500, 11-501, 11-501.1, and 11-501.5 of the Code. (See Ill. Rev. Stat. 1989, ch. 95V2, pars. 2-118.1, 6-206, 6-208.1, 11-500, 11-501, 11 — 501.1, 11 — 501.5.) The intent of the legislature becomes crystal clear as each of the above sections of the Code are analyzed to determine how they were amended by section 7 of Public Act 86 — 1019. We will quote from relevant provisions pertaining to each of the above sections, emphasizing the portions of each added by section 7 of Public Act 86-1019.

“Sec. 2 — 118.1. Opportunity for hearing — statutory summary alcohol or other drug related suspension, (a) A statutory summary suspension of driving privileges under Section 11 — 501.1 shall not become effective until the person is notified in writing of the impending suspension and informed that he may request a hearing in the circuit court of venue under paragraph (b) of this Section and the statutory summary suspension shall become effective as provided in Section 11 — 501.1.
(b) Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. * * *
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The scope of the hearing shall be limited to the issues of:
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4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, or any amount of a drug, substance, or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” (New material indicated by italics.) Pub. Act 86— 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7010-11.
“Sec. 6 — 206. Discretionary authority to suspend or revoke license or permit — Right to a hearing, (a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of such person’s records or other sufficient evidence that such person:
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28. Has 7 as a driver, while operating a motor vehicle, been convicted of the illegal possession, while operating or in actual physical control, as a driver, of a motor vehicle, of more than 5 grams of any controlled substance prohibited under the Illinois Controlled Substances Act or more than 30 grams of cannabis prohibited under the provisions of the Cannabis Control Act, in which case such person’s driving privileges shall be suspended for one year, and any such driverT who while operating a motor vehicle-, is convicted of a second or subsequent offense, within 5 years of a previous conviction, for the illegal possession, while operating or in actual physical control, as a driver, of a motor vehicle, of more than 5 grams of a controlled substance prohibited under the provisions of the Illinois Controlled Substances Act or more than 30 grams of cannabis prohibited under the Cannabis Control Act shall be suspended for 5 years. The clerk of the court shall forward notice of such convictions to the Office of the Secretary of State.” (New material indicated by italics — deletions by strikeouts.) Pub. Act 86— 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7011-13.
“Sec. 6 — 208.1. Period of statutory summary alcohol or other drug related suspension, (a) Unless the statutory summary suspension has been rescinded, any person whose privilege to drive a motor vehicle on the public highways has been summarily suspended, pursuant to Section 11 — 501.1, shall not be eligible for restoration of the privilege until the expiration of:
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2. Three months from the effective date of the statutory summary suspension imposed following the person’s submission to a chemical test which disclosed an alcohol concentration of 0.10 or more, or any amount of a drug, substance or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act, pursuant to Section 11 — 501.1.” (New material indicated by italics.) Pub. Act 86 — 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7015.
“Sec. 11 — 500. Definitions. For the purposes of interpreting Sections 6 — 206.1 and 6 — 208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code or any person who has not had a driver’s license suspension for Section 11 — 501.1 within 5 years prior to the date of the current offense, except in cases where the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more, or any amount of a drug, substance, or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act and was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” (Emphasis in original.) Pub. Act 86-1019, §7, eff. July 1,1990; 1989 Ill. Laws 6995, 7017.
“Sec. 11 — 501. Driving while under the influence of alcohol, other drug, or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
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5. There is any amount of a drug, substance or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, as now or hereafter amended or a controlled substance listed in the Illinois Controlled Substance Act as now or hereafter amended.” (New material indicated by italics.) Pub. Act 86— 1019, §7, eff. July 1,1990; 1989 Ill. Laws 6995, 7017.
“Sec. 11 — 501.1. Suspension of drivers license — Statutory summary alcohol or other drug related suspension — Implied consent, (a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11 — 501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 or a similar provision of a local ordinance. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered. A urine test may be administered even after a blood or breath test or both has been administered.
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(c) A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor véhicle as provided in Section 6 — 208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person’s blood or breath is 0.10 or greater, or any amount of a drug, substance or compound resulting from the, unlawful use or consumption of cannabis, as covered by the Cannabis Control Act as now or hereafter amended, or a controlled substance listed in the Illinois Controlled Substance Act, as now or hereafter amended, is detected in such person’s blood or urine, a statutory summary suspension of such person’s privilege to operate a motor vehicle, as provided in Sections 6— 208.1 and 11 — 501.1 of this Code, will be imposed.
(d) If the person refuses testing or submits to a test which discloses an alcohol concentration of 0.10 or more, or any amount of a drug, substance, or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act, the law enforcement officer shall immediately submit a sworn report to the circuit court of venue and the Secretary of State, certifying that the test or tests was or were requested pursuant to paragraph (a) and the person refused to submit to a test, or tests, or submitted to testing which disclosed an alcohol concentration of 0.10 or more.
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(f) The law enforcement officer submitting the sworn report under paragraph (d) shall serve immediate notice of the statutory summary suspension on the person and such suspension shall be effective as provided in paragraph (g). In cases where the blood alcohol concentration of 0.10 or greater or any amount of a drug, substance or compound resulting from the unlawful use or consumption of cannabis, as covered by the Cannabis Control Act, as now or hereafter amended, or a controlled substance listed in the Illinois Controlled Substance Act, as now or hereafter amended, is established by a subsequent analysis of blood or urine collected at the time of arrest, the arresting officer shall give notice as provided in this Section or by deposit in the United States mail of such notice in an envelope with postage prepaid and addressed to such person at his address as shown on the Uniform Traffic Ticket and the statutory summary suspension shall begin as provided in paragraph (g).” (New material indicated by italics.) Pub. Act 86— 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7018-19.
“Sec. 11 — 501.5. Preliminary Breath Screening Test. If a law enforcement officer has probable cause to believe that a person is violating or has violated Section 11 — 501 or a similar provision of a local ordinance, the officer, prior to an arrest, may request the person to provide a sample of his or her breath for a preliminary breath screening test using a portable device approved by the Department of Public Health. The results of this preliminary breath screening test may be used by the law enforcement officer for the purpose of assisting with the determination of whether to require a chemical test as authorized under Sections 11 — 501.1 and 11 — 501.2, and the appropriate type of test to request. Any The chemical test authorized under Sections 11 — 501.1 and 11 — 501.2 may be requested by the officer regardless of the result of the preliminary breath screening test, if probable cause for an arrest exists. The result of a preliminary breath screening test may be used by the defendant as evidence in any administrative or court proceeding involving a violation of Section 11 — 501 or 11 — 501.1.” (New material indicated by italics — deletions by strikeout.) Pub. Act 86 — 1019, §7, eff. July 1, 1990; 1989 Ill. Laws 6995, 7020.

An examination of the above statutes demonstrates both the clarity of the legislature’s intent and the sloppiness (in section 11— 501.1(d)) with which it attempted to express that intent. We are certain that the legislature intended, by enacting section 7 of Public Act 86 — 1019, to equate the treatment under the law of drivers who have any amount of certain unlawful drugs, substances, or compounds in their blood or urine with the treatment under the law of drivers whose blood-alcohol test results are 0.10 or greater. Based upon that conclusion, and in order to fulfill this legislative intent, we will construe section 11 — 501.1(d) of the Code to read that the law enforcement officer shall immediately submit a sworn report certifying that the person from whom a test was requested either (1) refused to submit, or (2) submitted to testing which disclosed an alcohol concentration of 0.10 or more, or (3) submitted to testing which disclosed any amount of a drug, substance, or compound in such person’s blood or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act.

Having so construed section 11 — 501.1(d) of the Code, nothing is left of defendant’s argument that a statutory summary suspension was not authorized in this case. Accordingly, the judgment of the trial court denying defendant’s petition to rescind the statutory summary suspension is affirmed.

Affirmed.

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