author: JUSTICE DOYLE

text:
    MARY KOFFSKI et al., Plaintiffs-Appellants, v. THE VILLAGE OF NORTH BARRINGTON et al., Defendants-Appellees.
    Second District
    No. 2—92—0475
    Opinion filed February 22,1993.
    John Bernard Cashion, of Chicago, for appellants.
    David R. Quade and Heidi J. Aavang, both of Diver, Grach, Quade & Masini, of Waukegan, for appellee Village of North Barrington. '
    Philip J. Ryan and Scott R. Landa, both of Ryan & Ryan, Ltd., of Waukegan, for appellees Richard G. Evans and Stephen R. Koch.

      Randall W. Graff and Jeffrey S. Herden, both of Landau, Omahana & Kopka, Ltd., of Chicago, for appellee Robert A. Greene.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, Mary Koffski and James A. Koffski, filed a complaint in the circuit court of Lake County against defendants, the Village of North Barrington, Richard G. Evans, Stephen R. Koch and Robert A. Greene, seeking damages relating to personal injuries sustained by Mary Koffski in two separate automobile accidents. Approximately one year later, plaintiffs voluntarily dismissed their State court action against all defendants (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009). Following the dismissal of one claim, and during the pendency of a second, filed against the same defendants in the United States District Court for the Northern District of Illinois, plaintiffs filed a motion pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401) seeking to vacate the circuit court’s order granting plaintiffs’ motion for voluntary dismissal. Plaintiffs bring this timely appeal from the order of the circuit court granting defendants’ motion to dismiss plaintiffs’ section 2 — 1401 motion. Additionally, defendants have filed a motion to dismiss the appeal, and plaintiffs have responded with a motion to stay. We ordered both motions taken with the case.

The dispositive issue raised on appeal is whether the trial court abused its discretion in dismissing plaintiffs’ section 2 — 1401 petition to vacate an order granting a voluntary dismissal of plaintiffs’ State court claim where they refiled the same cause of action against the same defendants in Federal district court which was subsequently dismissed for lack of subject-matter jurisdiction.

While the issues do not require a full recitation of the underlying facts, it is necessary to detail the procedural history of the present litigation. On February 9, 1990, plaintiffs filed a five-count complaint in the circuit court of Lake County seeking damages related to personal injuries sustained by Mary Koffski in two separate automobile accidents. Approximately one year later, on February 13, 1991, the circuit court granted plaintiffs’ motion for a voluntary dismissal of all actions filed against all defendants.

On July 12, 1991, plaintiffs filed a complaint in the United States District Court for the Northern District of Illinois against the same defendants. The district court subsequently dismissed plaintiffs’ complaint for lack of subject-matter jurisdiction based upon an absence of diversity of citizenship.

On November 27, 1991, plaintiffs filed a second complaint in the district court against the same defendants on the same cause of action. Prior to the district court’s ruling on defendants’ motion to dismiss, plaintiffs, on February 10, 1992, filed a “motion for relief from judgment” pursuant to section 2 — 1401 in the circuit court of Lake County. In their motion, plaintiffs stated that the voluntary dismissal was taken to avoid the adverse consequences of an earlier order entered by the circuit court and with the knowledge that a second refiling was permitted “ordinarily.” Plaintiffs further averred that the voluntary dismissal was not the result of inadvertence or lack of diligence, and that they had a meritorious cause of action. Additionally, plaintiffs stated that if the district court dismissed their second Federal cause of action, the equities would favor the reopening of the State court action.

In his motion to dismiss plaintiffs’ section 2 — 1401 motion, which was subsequently adopted by the other defendants, Greene argued that plaintiffs’ motion should be dismissed because of the pending action in the Federal court and that plaintiffs should not be allowed to seek relief from an order granting their own motion for voluntary dismissal because they were allowed to refile under section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217). Alternatively; Greene argued that even if plaintiffs were allowed to utilize a section 2 — 1401 petition to vacate the voluntary dismissal, it would be tantamount to a de facto refiling of their action which is barred under Flesner v. Youngs Development Co. (1991), 145 Ill. 2d 252, 254 (“section 13 — 217 expressly permits one, and only one, refiling of a claim even if the statute of limitations has not expired”) because plaintiffs had already refiled their cause of action in the Federal court (referring to the first Federal filing).

On March 18, 1992, the circuit court granted defendants’ motion to dismiss plaintiffs’ section 2 — 1401 motion. At the hearing on defendants’ motion to dismiss, the trial court stated that section 2 — 1401 did not apply to the case at bar based upon its historical application.

Subsequently, in its memorandum opinion and order, docketed April 2, 1992, the district court dismissed plaintiffs’ second Federal cause of action. This time, however, the district court determined that section 13 — 217 barred plaintiffs from refiling a second time and that their cause of action was barred by the applicable statute of limitations. Following its preliminary determination that section 13 — 217 is a substantive rule of law, thus requiring its application under the “Erie doctrine” in a Federal diversity case, the district court found that plaintiffs’ case must be dismissed because they had already used their opportunity to refile under section 13 — 217 by filing their first action in the district court which was dismissed for lack of subject-matter jurisdiction. The court further noted that “it is well settled in Illinois that plaintiffs are permitted only one refiling of an action under section 13 — 217.”

Plaintiffs subsequently appealed the district court’s second dismissal to the United States Court of Appeals for the Seventh Circuit. In addition to this pending appeal in the Federal appeals court, plaintiffs indicate in their brief that they have filed with that court a motion requesting the entry of an order certifying a question of State law to the Illinois Supreme Court pursuant to Rule 52 of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit (7th Cir. R. 52) and Illinois Supreme Court Rule 20 (134 Ill. 2d R. 20). The questions plaintiffs seek to certify are:

“(1) Whether after dismissal of an action in State or federal court for any reason other than on the merits, Chapter 110 Section 13-217 ILLINOIS REVISED STATUTES permits a second refiling, in either state or federal court, after a first refiled action in federal court has been dismissed for lack of jurisdiction; and
(2) Does the dismissal of a first refiled action in federal court for lack of proper jurisdiction constitute an exception, in construing the aforesaid state statute, to the rule announced by the Illinois Supreme Court in Flesner v. Youngs Development Co., 145 Ill. 2d 252, 582 N.E.2d 720, 164 Ill. Dec. 157 (1991), just as Fanaro v. First National Bank of Chicago, 160 Ill. App. 3d 1030, [parallel citation omitted] (1987), prior to Flesner, appears to be an exception to the rule prohibiting a second refiling.”

On April 16, 1992, plaintiffs appealed from the circuit court’s order dismissing their section 2 — 1401 motion. Defendants have filed a motion to dismiss the appeal, and, in response, plaintiffs have filed a motion to stay the proceedings. Before proceeding to the merits, we will address the parties’ motions.

Defendants have filed a motion to dismiss the present appeal pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(3)). Section 2 — 619 provides, in relevant part:

“§2 — 619. Involuntary dismissal based upon certain defects or defenses, (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. ***
* * *
(3) That there is another action pending between the same parties for the same cause.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(aX3).

At the outset we question defendants’ use of a section 2 — 619 motion to dismiss in the appellate court. The introductory committee comments to the supreme court rules provide, in relevant part:

“[T]he *** civil appeals rules establish a complete and self-contained system of appellate procedure applicable except as indicated in rule 1, to all civil appeals in both the Supreme and Appellate Court. Consulting the Civil Practice Act ordinarily will not be necessary.” (Ill. Ann. Stat., ch. 110A, Introductory Committee Comments, at XVII (Smith-Hurd 1985).)

Additionally, the historical and practice notes to section 1 — 107 of the Code of Civil Procedure provide, in part:

“The Illinois Supreme Court is granted exclusive jurisdiction over the regulation of appeals by the Judicial Article of the Constitution of 1970, and its rules (Article III, Civil Appeals Rules, (ch. 110A, par. 301 et seq.) ***) [to] determine the manner of such appeals.” Ill. Ann. Stat., ch. 110, par. 1 — 107, Historical & Practice Notes, at 34-35 (Smith-Hurd 1983).

Considering the exclusive jurisdiction of the supreme court to regulate appeals through the promulgation of rules and the separation of powers contemplated by our constitution, we determine that defendants should not be permitted to utilize a procedural mechanism enacted by the legislature and designed for use in the trial court as a means to obtain the dismissal of an appeal. Moreover, the supreme court rules expressly contemplate the limited use of motions in the appellate court (see 134 Ill. 2d R. 361), and, therefore, it is those rules, and the case law decided thereunder, that should serve as the procedural basis for bringing matters before this court. We note that the supreme court rules do not expressly provide a substantive basis for dismissal of an appeal similar to that provided in section 2— 619(a)(3), nor have defendants urged a construction of the rules that would provide such a basis.

Additionally, section 2 — 619 expressly provides that its use is limited “within the time for pleading.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619.) This adds further support to the conclusion that section 2— 619 was not intended for use in the appellate court because by the time an action finds its way to this court, the time for pleading has long since passed. Accordingly, defendants’ motion is denied.

In response to defendants’ motion to dismiss, plaintiffs contend that the appeal should be stayed, rather than dismissed, until the Federal appeals court disposes of plaintiffs’ appeal from the dismissal of their second Federal claim. Because we have denied defendants’ motion to dismiss, it is unnecessary to consider plaintiffs’ request that we stay the proceedings as an alternative to dismissal. Furthermore, a review of plaintiffs’ motion reveals that the issues raised are substantially similar to those raised on appeal, and the relief sought is essentially identical to the relief sought on appeal to the extent that plaintiffs seek a stay in their appellate brief. Additionally, we note that plaintiffs have urged no alternative basis upon which to stay the proceedings, nor have they provided this court with a basis upon which this court has the authority to stay the appeal. Accordingly, plaintiffs’ motion is denied.

Plaintiffs’ primary appellate contention is that section 2 — 1401 should provide an exception to the general rule which prohibits vacating a prior order of voluntary dismissal. Plaintiffs argue that “the theory” with respect to the right of a plaintiff who has voluntarily dismissed an action, without, at the time of the motion, having requested leave to reinstate it in the future, is that the plaintiff has an absolute right to refile the action. Plaintiffs argue that in the present case they have been deprived of their “absolute” right to refile. Their argument rests upon the notion that when the refiling occurs in a Federal court, it is not the exercise of their “absolute” right of refiling because it is conditioned upon Federal rules with respect to diversity jurisdiction. Therefore, plaintiffs conclude that a section 2— 1401 petition should be allowed, as a matter of fairness and equity, to rectify the situation where Federal jurisdictional rules impair their right to refile following a voluntary dismissal in State court.

Defendants respond that plaintiffs’ use of a section 2 — 1401 petition is an attempt to avoid the intended purpose of the rule established in Flesner wherein the court held that section 13 — 217 permits one, and only one, refiling of a claim following a voluntary dismissal (Flesner, 145 Ill. 2d at 254), and that plaintiffs’ petition seeks a de facto refiling of their claim which is expressly precluded by Flesner and section 13 — 217.

A section 2 — 1401 petition provides a comprehensive statutory procedure by which final orders, judgments and decrees may be vacated after 30 days from the entry thereof. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401(a); Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220.) Its purpose is to bring before the court matters of fact which were unknown at the time the judgment was entered and, if known, would have affected or altered the judgment. (In re Marriage of Lindjord (1992), 234 Ill. App. 3d 319, 325.) In order to be entitled to relief under section 2 — 1401, the petitioner must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. Airoom, 114 Ill. 2d at 220-21.

When a party files a motion to dismiss attacking a section 2— 1401 petition, the motion admits all well-pleaded facts and challenges only the legal sufficiency of the petition. (Lindjord, 234 Ill. App. 3d at 325.) A reviewing court will not disturb the judgment of the trial court absent an abuse of discretion. Lindjord, 234 Ill. App. 3d at 325.

Due diligence requires the petitioner to show that his inaction was the result of an excusable mistake and that he acted reasonably, not negligently, when he failed to pursue his cause of action. (Dassion v. Homan (1987), 161 Ill. App. 3d 141, 145.) The conduct of the parties shall be considered in determining the reasonableness of the petitioner’s excuse. (Dassion, 161 Ill. App. 3d at 145.) Section 2 — 1401 is not intended, however, to relieve parties from their own mistakes or their attorney’s mistake. Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505; Manning v. Meier (1983), 114 Ill. App. 3d 835, 838.

Although plaintiffs argue that the vagaries of Federal jurisdictional rules have frustrated and impaired their “absolute” right to refile a maintainable cause of action under section 13 — 217, we perceive their dilemma to be entirely the result of their own doing. Plaintiffs’ decision to voluntarily dismiss their State claim and seek relief in Federal court in lieu of refiling in State court was primarily a tactical decision. In their section 2 — 1401 petition, plaintiffs candidly admit that the purpose of their voluntary dismissal was to avoid the effects of an earlier order which would have limited the presentation of their expert witness’ qualifications at trial, and counsel’s knowledge that plaintiffs were going to relocate to another State.

Additionally, following the voluntary dismissal, plaintiffs sought, on two separate occasions, to invoke the subject-matter jurisdiction of the Federal district court in order to pursue their claim. It was only during the pendency of the second Federal claim, the first having been dismissed for lack of diversity of citizenship, that plaintiffs chose to file their section 2 — 1401 petition. It is apparent that plaintiffs’ reason for petitioning to vacate was a result of either their mistaken interpretation of law governing Federal diversity jurisdiction or their failure to appreciate fully the risks inherent in seeking to invoke the subject-matter jurisdiction of the district court instead of refiling in State court. For example, in their section 2 — 1401 petition, plaintiffs stated that the ruling of the district court “is somewhat of a coin flip because the reported decisions on the ‘residence’ qualifications for diversity citizenship go either way.” We conclude, therefore, that plaintiffs’ tactical decision to voluntarily dismiss their State claim, and subsequent miscalculation of the Federal district court’s interpretation of its jurisdictional rules and section 13 — 217 of the Code of Civil Procedure which resulted in the dismissal of their Federal claims, should not entitle plaintiffs, in the absence of fraud on the part of defendants (see Dassion, 161 Ill. App. 3d at 145), to relief under section 2 — 1401. Accordingly, we affirm the trial court’s dismissal of plaintiffs’ section 2 — 1401 motion to vacate its earlier order granting plaintiffs’ voluntary dismissal.

Furthermore, to hold otherwise would contradict the rules and policies enunciated by our supreme court pertaining to voluntary dismissals. To allow a plaintiff to allege a mistaken interpretation of law or miscalculated tactical decision as a basis upon which to vacate a voluntary dismissal under section 2 — 1401 would amount to an invitation to circumvent the mandate of section 13 — 217 which permits only a single refiling after a voluntary dismissal (Flesner, 145 Ill. 2d at 254 (statute permits only single refiling even though underlying statute of limitations has not yet expired); Gendek v. Jehangir (1988), 119 Ill. 2d 338, 343-44 (statute permits only single refiling within one-year saving period), and the rule which prohibits plaintiffs from appealing an order of voluntary dismissal (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 306). The purpose of section 13 — 217 is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. (Gendek, 119 Ill. 2d at 343.) It is intended to serve as an aid to the diligent, not a refuge for the negligent. (Gendek, 119 Ill. 2d at 343.) As our supreme court has stated:

“While a section 2 — 1009 motion in conjunction with section 13 — 217 may protect the right of a plaintiff to have a decision in the particular case made on the merits of the claim by potentially permitting ‘two bites of the apple’ when the first bite turns sour, the statutory scheme does not allow a third bite.” Gibellina v. Handley (1989), 127 Ill. 2d 122,134.

Although the procedural posture of the above-cited cases differs from the present case, we find the spirit and intent of the principles enunciated therein to be equally persuasive in denying plaintiffs’ section 2 — 1401 petition. In the absence of any specific allegations of fraud by a defendant, plaintiffs’ use of a section 2 — 1401 petition in this context would result in a circumvention of the single refiling rules articulated in Flesner and Gendek. Permitting plaintiffs to vacate a voluntary dismissal by way of a section 2 — 1401 petition would in effect eviscerate the one-year limitation period specified by the statute and the applicable underlying statutes of limitation. The net effect would be to permit plaintiffs to engage in a potentially endless succession of refilings to avoid the consequences of an adverse trial court order. (See generally Gibellina, 127 Ill. 2d at 137.) That is one of the problems that the single refiling rules specifically seek to eliminate.

Additionally, the rationale underlying the prohibition against allowing plaintiffs to appeal from an order of voluntary dismissal applies equally to the present case. As a rule, plaintiffs are prevented from appealing an order granting a voluntary dismissal because it is the plaintiff that requested the order. (Kahle, 104 Ill. 2d at 306.) They are protected from prejudice, however, by the operation of section 13 — 217, which affords them the absolute right to refile the case within one year of a voluntary dismissal. (Kahle, 104 Ill. 2d at 306.) If plaintiffs are to be precluded from utilizing an appeal to avoid the effects of an order of voluntary dismissal because it was plaintiffs who requested the order, it would seem to follow that they should not be permitted to use a section 2 — 1401 petition to vacate the same unappealable order which was entered at their insistence.

Plaintiffs contend, however, that we should not be persuaded by the rationale of the above-cited cases. Plaintiffs direct our attention to Fanaro v. First National Bank (1987), 160 Ill. App. 3d 1030, as support for the proposition that where the first refiled action is not a “maintainable” action, a second refiled action is allowable in order to effectuate the purposes of section 13 — 217. Plaintiffs conclude that because they never had a maintainable cause of action in the Federal court, they did not receive the refiling that they were otherwise entitled to under section 13 — 217. In Fanaro, the court held that a plaintiff’s refiling of State claims in Federal court on the basis of pendent jurisdiction, which were subsequently terminated as a result of the dismissal of the appended-to Federal claims, did not constitute the single allowable refiling under section 13 — 217. Fanaro, 160 Ill. App. 3d at 1036.

Although we offer no opinion as to the continued vitality of the rule articulated in Fanaro after Flesner, we find plaintiffs’ reliance on it misplaced. The basis for the dismissal of plaintiffs’ first Federal cause of action here was a lack of subject-matter jurisdiction. They did not lose their State claims based upon the termination of pendent jurisdiction, which distinguishes this case from Fanaro. In Fanaro, the court noted:

“It was not a dismissal for lack of subject matter jurisdiction since the district court never affirmatively acted to exercise pendent jurisdiction and never considered whether the claims could have been maintained. [Citation.]
*** [W]hen the interposed Federal action was dismissed, causing pendent jurisdiction to be terminated, that termination did not constitute the single allowable refiling under section 13-217.” (Fanaro, 160 Ill. App. 3d at 1036-37.)

Accordingly, we find Fanaro unpersuasive as applied to the circumstances of this case.

For the foregoing reasons, we affirm the order of the circuit court of Lake County dismissing plaintiffs’ petition to vacate.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM OLSON, Defendant-Appellant.
    Fourth District
    No. 4—92—0384
    Opinion filed February 11,1993.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Defendant William Olson was charged with unlawful delivery of less than one gram of cocaine (Ill. Rev. Stat. 1989, ch. BG^, par. 1401(d)) and unlawful delivery of between 15 and 100 grams of cocaine (Ill. Rev. Stat. 1989, ch. BG^, par. 1401(a)(2)(A)). Defendant pleaded guilty to the second charge and was sentenced to 15 years of imprisonment. The first charge was nol-prossed. Defendant appeals, contending (1) the trial court’s questioning of him at the sentencing hearing was an abuse of discretion, (2) the trial court improperly used the results of a drug test as an aggravating factor at sentencing, and (3) he is entitled to $330 credit against his street-value drug fine. We affirm and remand with directions to the trial court to credit $330 toward the street-value fine.

When defendant’s case was called for trial September 23, 1991, defendant informed the court he wished to plead guilty to count II. The factual basis to support the plea indicated defendant had sold 28.4 grams of cocaine to an undercover officer. The trial judge admonished defendant and accepted his plea. As a condition of defendant’s release pending sentencing, the court ordered that defendant be tested to determine if he had recently used a controlled substance. Later that day defendant tested positive for marijuana and cocaine and was then incarcerated until the sentencing hearing.

At the sentencing hearing, defense counsel presented letters from defendant’s girlfriend and her son as evidence in mitigation. The State presented no evidence beyond that in the presentence investigation report. After argument by counsel, defendant read a lengthy prepared statement to the court. The court then questioned defendant extensively about defendant’s personal drug use and beliefs about drugs in general. The court inquired as to defendant’s insistence that he was not a drug dealer and about defendant’s failure to pursue rehabilitation while on bond. After reviewing the presentence investigation report, the trial court acknowledged that defendant had a long and impressive employment history. However, the court expressed concern over defendant’s two prior convictions for delivery of a controlled substance in 1976. Of most concern to the court was defendant’s rationalization and minimization of the significance of his behavior and the fact that defendant made no effort to deal with the problem or suggest he needed help until shortly before the sentencing hearing.

Defendant filed a motion to reconsider sentence which argued that he had not committed any offenses in the 15 years between his first conviction and the conviction in this case. Defendant stated that he had admitted his addiction to illegal substances and his need for treatment. Defendant argued that the evidence did not suggest he regularly or routinely provides or sells controlled substances, but rather that he provided drugs for a friend who solicited the drugs from him. The trial judge denied defendant’s motion, stating he believed defendant was an experienced drug seller and that he found defendant’s positive test for cannabis and cocaine to be the most aggravating factor in sentencing. This appeal followed.

Defendant first contends the trial court’s extensive questioning was an abuse of discretion because it went beyond mere inquiry into the truth. Defendant failed to object to the court’s questioning at the time it was made and did not raise the issue in his post-trial motion. In order to preserve for appeal an alleged error committed at trial a party must both make a contemporaneous objection and raise the issue a second time in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) However, Enoch did not involve a sentencing hearing or a post-sentencing motion. Where it is alleged that something occurred at sentencing which constituted error, it is only necessary that the matter be somehow brought to the attention of the trial court, by a contemporaneous objection if possible, otherwise by means of a post-trial motion. (People v. Turner (1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 110; cf. People v. Saldivar (1986), 113 Ill. 2d 256, 266, 497 N.E.2d 1138, 1142 (not necessary to interrupt judge and point out he was considering wrong factors in aggravation).) No objection to the court’s questioning was made in this case, either at the sentencing hearing or by means of a post-sentencing motion. Defendant argues the court’s questioning constituted plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The supposed error in this case was not in the admission of evidence but in the abandonment of a neutral role by the trial judge. Because of the important interests at stake we choose to address the issue even though it was not properly preserved for appeal.

We reject defendant’s argument that the court’s questioning was an abuse of discretion. In the absence of a claim of the privilege against self-incrimination, a trial judge may properly make inquiries of a defendant at a sentencing hearing, irrespective of whether defendant testifies or exercises his right of allocution. (People v. Iseminger (1990), 202 Ill. App. 3d 581, 599, 560 N.E.2d 445, 456.) Defendant correctly states that a judge may only question a defendant so as to elicit truth, not to be an advocate. Defendant cites People v. Stephens (1973), 12 Ill. App. 3d 215, 219, 297 N.E.2d 224, 227, which held the interrogation improper because it went beyond the realm of eliciting the truth of the witness’ testimony and tended to discredit her. The court’s examination of defendant in the instant case was not designed to discredit defendant’s testimony but rather to expound upon facts and information already in the record. In addition, the court’s inquiry in Stephens occurred during a jury trial rather than, as here, a sentencing hearing. We have carefully reviewed the transcript and are not persuaded the trial court departed from its proper role in questioning defendant.

A defendant at a sentencing hearing still enjoys a privilege against self-incrimination. (Estelle v. Smith (1981), 451 U.S. 454, 462-63, 68 L. Ed. 2d 359, 368-69, 101 S. Ct. 1866, 1872-73 (no basis to distinguish between guilt and penalty phases so far as fifth amendment privilege concerned); see State v. Rucas (1987), 12 Kan. App. 2d 68, 72, 734 P.2d 673, 675-76 (privilege continues at least through sentencing since risk ends no earlier than that); see Ellison v. State (1985), 65 Md. App. 321, 338-41, 500 A.2d 650, 658-60 (risk of incrimination terminates when sentence pronounced and judgment becomes final), aff’d (1987), 310 Md. 244, 528 A.2d 1271.) When a defendant properly exercises his fifth amendment rights, his refusal to answer should not be considered in any way. (Iseminger, 202 Ill. App. 3d at 605, 560 N.E.2d at 460 (Knecht, J., specially concurring).) In Iseminger defendant refused to testify at the sentencing hearing, was found to be in direct civil contempt and only then asserted his rights under the fifth amendment. We vacated the finding of contempt because of the trial court’s failure to conduct a hearing to determine the legitimacy of defendant’s fifth amendment claim. We further sought to discourage the trial judge (the trial judge here) from ever ordering a defendant, upon pain of contempt, to answer a court’s question at a sentencing hearing. The court did not err in asking the questions here, and defendant did not object to answering them.

Defendant next contends the trial court committed error by using the results of an unauthorized drug test as the main aggravating factor at sentencing. After defendant pleaded guilty the trial court ordered that he take a drug test and pass it as a condition of his bond. Defendant failed the test and was incarcerated until sentencing. At the sentencing hearing the trial judge noted defendant’s failure to pass the test as an aggravating factor. In denying defendant’s motion to reconsider sentence, the trial judge said he considered defendant’s positive test for marijuana and cocaine to be the “most aggravating” of the factors presented. Defendant argues that since the trial judge had no authority to order the drug test, he could not use the results as an aggravating factor in sentencing. Defendant also failed to object to this issue at the sentencing hearing or include it in his post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) Courts apply the plain error doctrine to redress “serious injustices which have been done to the defendant.” (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233, 238.) “Rule 615(a) does not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. As noted *** the rule has been designed as a means of meliorating the harshness of the strict application of the general waiver rule.” (People v. Precup (1978), 73 Ill. 2d 7, 16-17, 382 N.E.2d 227, 231.) The plain error rule “is not a ‘catch-all’ provision permitting the supreme court, much less this court, to review any order or judgment of the trial court simply because this court may think the trial court erred.” People v. Baker (1990), 195 Ill. App. 3d 785, 790, 552 N.E.2d 421, 424.

Defendant was sentenced for a Class X felony, and the sentence imposed was in the midrange of possible penalties. At the time of sentencing the trial court indicated it was most concerned about defendant’s prior convictions and minimization of his conduct. The issue defendant now raises could have been easily addressed if he had refused to take the drug test, or objected to the trial court considering the results on sentencing. We cannot say that requiring the test and considering the results, under the facts of this case, was an error “ ‘ “so substantial as to deprive defendant of a fair trial” [citation].’ ” Baker, 195 Ill. App. 3d at 789, 552 N.E.2d at 424, quoting People v. Szabo (1986), 113 Ill. 2d 83, 94, 497 N.E.2d 995, 999.

Even were we to consider the issue, we cannot say that the judge erroneously considered the drug test results. The conditions to which a defendant must adhere while on bond are contained in section 110— 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 10). Those conditions include a requirement that he or she: “[s]ubmit himself or herself to the orders and process of the court,” and “[n]ot violate any criminal statute of any jurisdiction.” (Ill. Rev. Stat. 1989, ch. 38, pars. 110 — 10(a)(2), (a)(4).) The court may impose other conditions if necessary to assure defendant’s appearance in court, protect the public from defendant, or prevent defendant’s unlawful interference with the orderly administration of justice. (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 10(b).) Those other conditions may include that defendant:

“(5) Refrain from engaging in certain activities or indulging in intoxicating liquors or in certain drugs;
(6) Undergo treatment for drug addiction or alcoholism;
(7) Undergo medical or psychiatric treatment;
* * *
(15) Such other reasonable conditions as the court may impose.” Ill. Rev. Stat. 1989, ch. 38, pars. 110 — 10(b)(5), (b)(6), . (b)(7), (b)(15).

Since the offense committed here concerned delivery of a controlled substance, defendant’s current usage of drugs is a relevant consideration under the bond conditions listed in either section 110— 10(a) or 110 — 10(b) of the Code. (Ill. Rev. Stat. 1989, ch. 38, pars. 110 — 10(a), (b).) Although drug tests are not specifically listed as a condition to be imposed, such tests could reasonably be viewed as treatment for drug addiction in section 110 — 10(b)(7) or as a reasonable condition the court could impose under section 110 — 10(b)(15). (Ill. Rev. Stat. 1989, ch. 38, pars. 110 — 10(b)(7), (b)(15).) The court did not sua sponte order defendant to take a drug test; if defendant had not sought release on bond, the court would not have had occasion to consider section 110 — 10. Defendant never objected to taking the test.

Once the test was properly ordered and performed, the trial court was not required to ignore it in determining an appropriate sentence. The imposition of such a test is contemplated by the provision in section 5 — 3—2 of the the Unified Code of Corrections, which provides that, in compiling the presentence investigation report, “[t]he investigation shall include a physical and mental examination of the defendant when so ordered by the court.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(b).) We find the trial judge did not commit error in ordering the drug test and did not abuse his discretion in considering the result as an aggravating factor in defendant’s sentencing.

Defendant finally contends, and the State concedes, that he is entitled to $330 credit against his street-value fine since he was in custody for 66 days prior to being sentenced. Defendants who are assessed a street-value drug fine are entitled to $5-per-day credit against the fine for every day spent in custody prior to sentencing. (See People v. Pickens (1992), 226 Ill. App. 3d 1001, 1006, 590 N.E.2d 535, 539.) Defendant is entitled to the credit requested against his fine.

For the foregoing reasons, we affirm the judgment of the circuit court of McLean County, but remand with directions to the trial court to credit $330 against defendant’s street-value fine.

Affirmed and remanded with directions.

KNECHT and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD BAKER, Defendant-Appellant.
    Fourth District
    No. 4—92—0613
    Opinion filed February 18,1993.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Ronald Baker pleaded guilty to criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13(a)(3)), in exchange for the State’s agreement to drop five counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14), and limit its recommendation at an open sentencing hearing to 10 years’ imprisonment. Defendant was sentenced to 10 years’ imprisonment. Defendant appeals, alleging the trial court abused its discretion in fashioning such a sentence. We disagree and affirm.

Defendant married C.C. in October 1989. C.C. had three children from previous relationships: B.C., S.C. and D.S. Defendant, C.C., and the three children lived together as a family unit until defendant’s arrest on November 15,1991.

On November 12, 1991, B.C. told his junior high school principal he had been sexually abused at home. B.C. was interviewed by Officer Larry Zonfrilli. B.C. told Zonfrilli that on approximately 30 occasions over a period of several months defendant had forced B.C. to engage in oral and anal intercourse. B.C. was 11 years old during most of the abuse, but turned 12 on October 4, 1991. The abuse generally occurred at home while C.C. was at work, but also occurred on one occasion when defendant took B.C. on an overnight camping trip. B.C. told Zonfrilli that sometimes anal intercourse would cause him to have abdominal pain, and if he told defendant, defendant would stop for awhile but continue later. On at least one occasion after being forced to engage in anal intercourse by defendant, B.C. experienced bleeding when he had a bowel movement. On another occasion, defendant forced B.C. to engage in anal intercourse in the shower, and after the act was completed, defendant inserted a tube into B.C.’s rectum.

S.C., B.C.’s eight-year-old brother, was also interviewed. S.C. told Officer John Grabow defendant never let S.C. out, beat him a lot, and forced him to engage in anal and oral intercourse. Defendant ejaculated in S.C.’s mouth, on his stomach, and on his back. S.C. was under the impression the abuse was a punishment for something he had done. S.C. told Grabow the abuse began during the 1990 school year, and continued throughout the summer. S.C. could not tell Grabow how many times he had been sexually abused by defendant, but stated it happened a lot.

B.C., S.C. and their half-brother, D.S., were placed in foster care and C.C. initiated dissolution proceedings against defendant. After his arrest, defendant began to attend counseling sessions.

Defendant was 37 at the time of his arrest. He alleges he was sexually abused when he was 12 years old by his older brother. He has a general equivalency diploma and an accounting certificate from a community college. He enlisted in the Air Force, but was honorably discharged after a short time due to a nervous condition. Defendant was unemployed at the time of his arrest and had a sporadic employment history over a period of years. Defendant had no prior convictions other than a speeding ticket. At the sentencing hearing, defendant stated he had made a grave mistake and wished to correct it. The defense argued a term of intensive probation would be appropriate.

The trial court found the family member probation, available to defendants convicted of the sexual assault of a family member (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3(e)), would be inappropriate under the circumstances. The court noted defendant’s lack of criminal record and subjection to sexual abuse as a child were mitigating factors. The court also noted the aggravating factors. Specifically, the court found defendant began the sexual abuse not long after he became a family member and the abuse did not occur in an isolated incident, but was part of an ongoing course of conduct. Finally, the court found defendant not only should have been aware of the pain he inflicted on occasion, but based on his own experience as an abused child, was “certainly aware of the harm generally that this could and would undoubtedly cause to the young boy.” The court concluded the harm done and the nature and circumstances of the offense outweighed the factors in mitigation. Accordingly, the court sentenced defendant to 10 years’ imprisonment. Defendant’s motion to reconsider was denied. Defendant appeals, alleging he should have been sentenced to probation, or, in the alternative, to a minimum sentence of six years.

On appeal, the defendant alleges the circuit court abused its discretion in sentencing him to 10 years’ imprisonment because it did not adequately consider (1) he did not cause or threaten serious physical harm to another, nor did he contemplate his criminal conduct would cause or threaten such harm; (2) he had been sexually abused as a child and did not receive treatment; (3) his character and attitudes indicated he was unlikely to commit another crime; and (4) his rehabilitative potential.

Defendant’s first contention is completely unsupportable. The trial court specifically stated it was considering the issues of whether defendant’s conduct caused harm and whether he contemplated it would cause harm. Additionally, contrary to defendant’s assertion on appeal that his conduct caused no harm, the trial court found defendant should have known the pain he was causing the victim and certainly knew of the harm his conduct would undoubtedly cause a young boy. The trial court’s findings are wholly supported by the evidence. Defendant’s sexual assault of B.C. caused B.C. physical pain, as evidenced by B.C.’s abdominal pain while defendant had anal intercourse with him and by B.C.’s bleeding during a bowel movement.

Although defendant would have us believe he did not contemplate he would harm B.C. by sexually assaulting him, defendant also alleges he has suffered depression for 15 years and has had difficulties in his schooling, marriage, military service and employment, and sexually assaulted his stepson, all as a result of the sexual abuse he himself suffered as a child. Clearly a person who has suffered such an extensive list of difficulties as a result of sexual abuse was aware of the psychological trauma victims suffer as a result of being sexually assaulted. The trial court properly found the physical and psychological harm defendant caused B.C. constituted an aggravating factor. Harm, including psychological trauma, is an aggravating factor which may warrant a sentence in excess of the minimum sentence. People v. Back (1992), 239 Ill. App. 3d 44, 80; People v. Leamons (1984), 127 Ill. App. 3d 1056, 1071, 469 N.E.2d 1137,1148.

Defendant’s contention the trial court did not adequately consider he had been sexually abused as a child must also be rejected. At the sentencing hearing, defendant’s counsel argued the sexual abuse defendant suffered as a child was a mitigating factor. The trial court accepted this argument and recognized there is a likelihood a person who has been abused as a child may develop into a perpetrator of the same type of abuse. However, the court found the mitigating factors were outweighed by the aggravating factors.

Defendant next contends the trial court did not adequately consider that his character and attitudes indicated he was unlikely to commit another crime. The trial court was presented with letters written by family friends on behalf of defendant, and evidence defendant sought counseling. However, the court was also provided with evidence regarding the nature and circumstances of the crime and a psychological assessment of defendant indicating he had a chronic sexual disorder and was resistant to change. The trial court is in the best position to determine how the character and attitudes of the defendant reflected upon the likelihood of his committing another crime. This is because the trial court is in a better position to make a firsthand reasoned judgment based on defendant’s general moral character, credibility, social habits, and age. (People v. Anders (1992), 228 Ill. App. 3d 456, 467, 592 N.E.2d 652, 659.) Although the trial court did not specifically mention the likelihood of defendant’s committing another crime, it was argued by both the State and the defense in closing arguments. In imposing sentence, the court has no obligation to recite and give value to each fact presented at the sentencing hearing. (People v. Votava (1991), 223 Ill. App. 3d 58, 80, 584 N.E.2d 980, 995.) Thus, we must also reject defendant’s argument on this point.

Finally, defendant contends his 10-year sentence does not adequately take into account his rehabilitative potential. Although the Illinois Constitution requires a court to consider a defendant’s rehabilitative potential, it does not require the court to give greater weight to rehabilitation than to the seriousness of the offense. Rehabilitation does not outweigh other factors warranting a severe sentence. People v. Reid (1987), 160 Ill. App. 3d 491, 493, 513 N.E.2d 517, 518.

Defendant alleges he suffers from a sexual disorder and he may be successfully rehabilitated through available treatment. In support of his position that his sentence ought be reduced in light of his potential for rehabilitation, defendant directs our attention to People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859. Harris was sentenced to 25 years’ imprisonment on a conviction for aggravated criminal sexual assault. (Harris, 187 Ill. App. 3d at 836, 543 N.E.2d at 860.) The criminal act which served as the basis of the aggravated criminal sexual assault conviction was the penetration of a child’s vagina by the defendant’s finger. (Harris, 187 Ill. App. 3d at 837, 543 N.E.2d at 861.) In sentencing defendant to 25 years’ imprisonment, the trial court stated, “little or no treatment is available at least that medical or other sciences have available” for sexual offenders. The appellate court stated there is treatment available, and that in cases factually similar, and more severe, lesser sentences were rendered. Thus, the appellate court vacated the defendant’s 25-year sentence and remanded for resentencing. Harris, 187 Ill. App. 3d at 847, 543 N.E.2d at 868.

We disapproved of the Harris decision in People v. Helton (1990), 195 Ill. App. 3d 410, 552 N.E.2d 398. Specifically, we noted although the appellate court in Harris found the sentence to be within the statutory range and the trial court considered all factors in aggravation and mitigation, the appellate court proceeded to reweigh the factors. We noted the reweighing of sentencing factors has been repeatedly disapproved of by the Illinois Supreme Court. (Helton, 195 Ill. App. 3d at 420, 552 N.E.2d at 405 (and cases cited therein).) Accordingly, we affirmed Helton’s 15-year sentence for aggravated criminal sexual assault resulting from an act similar to that committed by Harris.

In People v. Terneus (1992), 239 Ill. App. 3d 669, 675-79, we further criticized Harris and rejected a similar argument of excessive sentence based on a comparison of the defendant’s case with several other reported decisions involving defendants convicted of aggravated criminal sexual assault who received less severe sentences than defendant Terneus received.

In the present case the circuit court gave adequate consideration to the aggravating and mitigating factors. The court did not abuse its discretion in finding the aggravating factors outweighed the mitigating factors and sentencing defendant to 10 years’ incarceration. We decline to reweigh the sentencing factors and instead affirm defendant’s sentence.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


text:
      In re MARRIAGE OF CYNTHIA L. LaTOUR, f/k/a Cynthia L. Duschinsky, Petitioner and Counterrespondent-Appellee, and PAUL A. DUSCHINSKY, Respondent and Counterpetitioner-Appellant.
    Fourth District
    No. 4—92—0683
    Opinion filed February 25,1993.

      Marvin H. Gesell, of Bloomington, for appellant.
    E Donald Heck, Jr., of Pollock, Ennis & Heck, of Quincy, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Cynthia LaTour and Paul Duschinsky were married in 1978, and had four children before their marriage was dissolved in 1985. LaTour was awarded custody of the four children, “subject to [Duschinsky’s] reasonable rights of visitation at reasonable times and places.” La-Tour lives in Quincy while Duschinsky lives in the Chicago suburbs. In order to facilitate visitation, the order of dissolution provided LaTour “shall take the said children to the Dixie Truck stop in [McLean] on weekends when requested by Duschinsky with sufficient advance notice to [LaTour].”

On May 7, 1992, Duschinsky filed a petition to modify visitation. Duschinsky alleged LaTour refused to allow him reasonable visitation at reasonable times and places. Duschinsky requested he be granted weekend visitation on a specific weekend each month from Friday at 6 p.m. until Sunday at 6 p.m., alternating Christmas and spring break vacations, alternating Easter and Thanksgiving weekends, and one month per summer. At this time Duschinsky also filed a petition for a rule to show cause alleging LaTour violated court orders by denying him visitation, refusing to sign tax forms he needed to claim the children as his dependents for tax purposes, and failing to provide him with copies of the children’s medical bills he needed to obtain reimbursement from his insurer. A rule to show cause was signed by the court on June 10, 1992.

On July 9, 1992, LaTour filed a motion to strike the petition to modify the visitation order and the rule to show cause, alleging the issues raised had already been litigated by the parties and ruled upon by the court and the circumstances of the parties had not changed since the prior rulings.

On July 20, 1992, the court held a hearing on the petition to modify, the rule to show cause, and the motion to strike. The court granted the motion to strike with respect to the tax issues, finding they had already been litigated. Duschinsky represented the parties had reached an agreement regarding the children’s medical bills; thus, that matter did not need to be litigated. The court then heard testimony regarding the petition to modify and whether LaTour should be held in contempt of court for allegedly refusing Duschinsky visitation. After the hearing, the trial court denied Duschinsky’s request with regard to specific weekend visitation and modified the visitation order with respect to weekend, holiday and summer visitation. The court found Duschinsky failed to meet his burden on the rule to show cause. Duschinsky was additionally ordered to pay $350 of LaTour’s attorney fees. Duschinsky appeals, alleging the trial court erred in making these rulings. We agree in part and disagree in part. Accordingly, we affirm in part and reverse in part, remanding with directions.

I. Visitation

Duschinsky contends the trial court erred in denying his request that a more specific visitation schedule be set by the court, and in modifying visitation to provide weekend visitation and the three-week summer visitation were to be at times agreed upon by the parties. Duschinsky contends (1) the modification of the visitation order operates as a restriction of his visitation rights and is an unlawful delegation of the court’s responsibilities to LaTour, and (2) the denial of Duschinsky’s requests was an abuse of discretion. We agree and reverse.

Under the visitation provision of the original order, subject to the limitations of reasonableness, Duschinsky had an unconditional right to -visitation with his children on any given weekend, if he provided LaTour with sufficient advance notice. Although not due to the fault of any one party, this arrangement did not work. Sometimes Duschinsky would fail to provide LaTour with sufficient advance notice. Sometimes LaTour would refuse to transport the children to McLean, alleging the unavailability of her husband or financial circumstances. Sometimes LaTour consented to visitation, but refused to transport the children to McLean, as required by the visitation order, or refused to transport them to McLean at a time outside Duschinsky’s working hours.

The modified order grants Duschinsky visitation on alternating Christmas and spring vacations; alternating Easter, Labor Day and Thanksgiving weekends; and for three weeks during the summer. However, the summer visitation is to occur at a time agreed upon by the parties, and regular weekend visitation is also to occur at times agreed upon by the parties.

While granting Duschinsky specific visitation on holidays, the modification actually provides Duschinsky with a lesser ability to obtain weekend visitation than the original order. Under the original order, Duschinsky, upon providing LaTour with sufficient advance notice, had an unconditional right to visitation on any given weekend. Under the modification, weekend visitation is conditioned upon the agreement of the parties.

Although Duschinsky and LaTour have, on occasion, been able to reach an agreement, the record is replete with evidence that they have failed to agree, on multiple occasions, regarding numerous issues involving the children. Moreover, the testimony at the hearing indicated LaTour and Duschinsky do not talk on the telephone because they cannot complete a telephone conversation without arguing. Prior to the summer of 1992, Duschinsky and LaTour had not spoken on the telephone for two years. Visitation arrangements were generally made between Duschinsky and the children, who then discussed the matter with LaTour. Other times Duschinsky made arrangements through LaTour’s husband.

Duschinsky alleges conditioning his ability to exercise his visitation rights on LaTour’s agreement effectively restricts his visitation. The court may not restrict a parent’s visitation rights unless it finds that the visitation would seriously endanger the child’s physical, mental, moral, or emotional health. (Ill. Rev. Stat. 1991, ch. 40, par. 607(c).) In this case, the court did not make a finding of serious endangerment, nor would such a finding have been possible since the parties stipulated Duschinsky was a fit and proper person, and his home was an appropriate place for visitation. Thus, Duschinsky alleges, the trial court erred in conditioning his weekend visitation and summer visitation upon LaTour’s agreement.

A restriction on visitation is action which limits, restrains, or confines visitation within bounds. (In re Marriage of Tisckos/Stewart (1987), 161 Ill. App. 3d 302, 310, 514 N.E.2d 523, 528.) A termination of visitation is a restriction (In re Marriage of Dunn (1987), 155 Ill. App. 3d 247, 254, 508 N.E.2d 250, 255), as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction. (Tisckos/Stewart, 161 Ill. App. 3d at 310, 514 N.E.2d at 528.) Eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction. (See Gibson v. Barton (1983), 118 Ill. App. 3d 576, 579-80, 455 N.E.2d 282, 284-85.) Nor is the interruption of a weekend visitation, so that the child may attend religious services, a restriction. TisckosJStewart, 161 Ill. App. 3d at 311, 514 N.E.2d at 528-29.

In the present case the condition does not merely shorten visitation to accommodate the activities of the children. Rather, the condition operates to grant the ultimate determination of whether Duschinsky may exercise his visitation rights to LaTour. Thus, if LaTour fails to agree to visitation on any given weekend, Duschinsky may not see his children. Based upon the parties’ history of discord, and their inability to communicate and reach agreements, we believe the court’s modification was a restriction and, accordingly, was in error.

Duschinsky additionally alleges conditioning his visitation on the parties’ agreement was a delegation of the court’s power and an abuse of discretion. While conditioning weekend visitation on the agreement of the parties might be reasonable in other cases, it was imprudent in the present case. The evidence indicated the children wanted to attend visitation with their father, but were also involved in a variety of extracurricular activities. Duschinsky and LaTour have demonstrated they cannot agree. Yet, the court refused Duschinsky’s request for visitation according to a structured schedule, leaving the time for such visitation up to the agreement of the parties.

Duschinsky and LaTour require structure. Under ideal circumstances, given the children’s busy schedules, Duschinsky and LaTour should confer monthly, and determine on which weekend most of the children would be able to schedule visitation, and schedule visitation accordingly. If the parties can work out visitation under this approach, they should be encouraged to do so. However, there must be a scheduled visitation which will occur when they fail to agree. Duschinsky has acknowledged that under a structured visitation schedule, those children involved in extracurricular activities on his weekend for visitation will not be able to attend visitation.

The order of the trial court is affirmed with respect to the visitation schedule for spring break, Easter, Labor Day, Thanksgiving, and Christmas, as well as the determination that Duschinsky should be allowed three weeks’ visitation in the summer. The trial court is reversed with respect to the denial of Duschinsky’s request for a structured visitation schedule. The matter is remanded to the circuit court for a determination of the weekend on which visitation shall occur; at what time on Friday LaTour is to deliver the children to Duschinsky in McLean; at what time on Sunday Duschinsky is to deliver the children to LaTour in McLean; and which three weeks during the summer the children are to visit Duschinsky. Visitation is then to occur as set forth by the circuit court unless the parties agree otherwise.

The children now range in age from 9 to 14. Their busy and appropriate extracurricular schedules need not dictate visitation, but a visitation schedule also should not dictate or unduly restrict their activities. It would be reasonable for the court to provide that children with extracurricular activities scheduled on Duschinsky’s weekend for visitation need not attend that visitation. Many activities are seasonal, or limited in duration, and ought not preclude any child from participating in most of the scheduled visitations.

II. LaTour’s Attorney Fees

Duschinsky alleges the circuit court erred in requiring him to pay $350 of LaTour’s attorney fees. LaTour contends Duschinsky has waived this issue by his failure to raise it in the trial court. LaTour cites In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 571 N.E.2d 1135, in support of her petition.

In Cheger, Francine Cheger presented evidence through testimony and billing statements from her attorney that she incurred $4,072.55 in attorney fees as a result of a false pleading filed by David Cheger in their dissolution action. (Cheger, 213 Ill. App. 3d at 381-82, 571 N.E.2d at 1142.) David did not object to the sufficiency of the billing statements at trial, nor did he object to their introduction into evidence. (Cheger, 213 Ill. App. 3d at 382, 571 N.E.2d at 1142.) On appeal, David alleged the court erred in ordering him to pay Francine’s attorney fees because no itemized bill was presented, no evidence was presented on the necessity and reasonableness of the fees, and there was no showing of Francine’s inability and David’s ability to pay the fees. (Cheger, 213 Ill. App. 3d at 381, 571 N.E.2d at 1142.) This court found David had waived any argument regarding the sufficiency of the billing statements. Notably this court did not find David waived the issue of the parties’ relative ability to pay the fees, but found, on the merits of the issue, that the evidence established Francine had no money to pay the fees while David did. Cheger, 213 Ill. App. 3d at 382, 571 N.E.2d at 1142.

The rule of waiver is a limitation on the parties and not on the courts; a reviewing court may ignore the waiver rule in order to achieve a just result. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333, 431 N.E.2d 58, 61.) The party who waived the question is bound by his waiver, but the court, which has the responsibility of achieving a just result, is not. People v. Hoskins (1984), 101 Ill. 2d 209, 219, 461 N.E.2d 941, 946.

In the present case, as in Cheger, we determine Duschinsky waived any objection to the reasonableness and necessity of the fees by his failure to object in the trial court. However, also as in Cheger, we address the issue of the parties’ relative ability to pay on its merits.

In In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 569 N.E.2d 1097, this court recognized the allowance of attorney fees is within the sound discretion of the trial court. However, the Hensley court reversed an award of attorney fees where the evidence indicated both parties were “short of money” and unable to pay all their monthly expenses. We noted the propriety of an award of attorney fees depends on (1) a showing of the party seeking them of an inability to pay, and (2) a demonstration of the ability of the other party to do so. As there was no evidence presented at trial that Janelle Hensley was unable to pay her attorney fees and Les Hensley was better able to do so, this court reversed, finding the trial court should have ordered each party to pay his or her own attorney fees. Hensley, 210 Ill t 1054, 569 N.E.2d at 1103-04.

The evidence at the hearing indicated LaTour was employed, but she testified, without explanation, that she did not have the money to pay her attorney fees. The evidence additionally established Duschinsky was unemployed, received $279 per week in unemployment benefits, $240 of which he was required to pay to LaTour for child support, and he had to take out a loan to pay his own attorney fees. We additionally note this was not a situation where LaTour had to initiate litigation in order to enforce an order of the court, obviating the need for a showing of the relative financial positions of the parties. Rather, Duschinsky was forced to initiate litigation in order to obtain visitation, which had not been regularly occurring due to the parties’ inability to reach agreement. Under these circumstances, the order requiring Duschinsky to pay LaTour’s attorney fees fails to take into consideration the parties’ relative ability to pay, is unequitable and an abuse of discretion, and must be reversed.

III. The Rule To Show Cause

Duschinsky alleges the trial court erred in placing the burden of proof on him with respect to the allegations in the petition for a rule to show cause. In a civil contempt proceeding, the burden of proving the defendant is in contempt is on the party bringing the action, and the defendant must be proved guilty by a preponderance of the evidence. People v. Thomas (1991), 220 Ill. App. 3d 110, 128, 580 N.E.2d 1353, 1366.

In In re Marriage of Logston (1984), 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175, the supreme court stated, “[t]he noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt. Therefore, once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay.”

Similarly, in In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 98, 507 N.E.2d 912, 921, on the issue of contempt for failure to make child support payments, we stated “[fjollowing a showing of failure to make payment, the burden then rests upon the alleged contemnor to show his noncompliance was not wilful and contumacious and that he had a valid excuse for his failure to pay.”

Likewise, in Gibson, this court stated, “[t]he failure to pay child support as required by court order is prima facie evidence of contempt. [Citation.] If such a showing is made, it is incumbent upon the alleged contemnor to show that the failure to comply was not wilful and contumacious.” Gibson, 118 Ill. App. 3d at 583-84, 455 N.E.2d at 287.

Additionally, in the case of failure to satisfy a court-ordered property settlement, this court stated, “[i]f it is established that a party has failed to comply with a divorce decree, prima facie evidence of contempt is established. The burden then shifts to the alleged contemnor to show the conduct was not wilful.” Taapken v. Taapken (1976), 39 Ill. App. 3d 785, 788, 350 N.E.2d 794, 796-97.

Significantly, these cases all speak of a showing or establishment that a court order has been violated before the burden shifts to the alleged contemnor to demonstrate the noncompliance was not wilful. Duschinsky alleges he met his burden of showing LaTour violated a court order by filing a verified petition for a rule to show cause, and the court, by issuing the rule to show cause, necessarily made a finding there had been a prima facie showing LaTour violated the court’s order. We disagree. The mere allegation in a petition for a rule to show cause is insufficient to establish, by a preponderance of the evidence, that a court order has been violated.

A petition for a rule to show cause is the method for notifying the court that a court order may have been violated, and the petitioner requests a hearing on the issue. The petition for a rule to show cause and the rule to show cause operate together to inform the alleged contemnor of the allegations against her. The rule to show cause is the method by which the court brings the parties before it for a hearing. It also notifies the alleged contemnor of the time and place of the hearing. Thus, the petition for a rule to show cause initiates the contempt proceedings, but it does not establish that a violation of a court order has in fact occurred. The rule to show cause, issued by the court, is not a finding a violation of a court order has occurred, but part of the process of notifying the alleged contemnor of the charges, and time and place of the hearing. At the hearing, the burden is on the petitioner to show a violation of a court order has occurred. Once this showing has been made, the burden shifts to the alleged contemnor to show the violation was not wilful.

In the present case, although the evidence demonstrated visitation was not adequately achieved under the visitation order, the evidence did not establish LaTour was solely at fault. Thus, the trial court properly found Duschinsky failed to meet his burden of establishing LaTour had violated an order of the court. Accordingly, the order of the circuit court, with respect to this matter, is affirmed.

IV. Conclusion

The circuit court’s order modifying visitation is affirmed as to its specification of holiday and spring vacations, but is reversed and remanded with directions as to weekend and summer visitation. The circuit court is reversed insofar as it ordered Duschinsky to pay $350 of LaTour’s attorney fees. The court’s ruling on the petition for rule to show cause is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

LUND and GREEN, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD L. McQUEEN, Defendant-Appellant.
    Fourth District
    No. 4—92—0763
    Opinion filed February 25,1993.

      Cavanagh & O’Hara, of Springfield (Patrick J. O’Hara and Michael W. O’Hara, of counsel), for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Edward F. Flynn, of Hull, Campbell & Robinson, of Decatur, for amicus curiae.

   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In August 1992, the State charged defendant, Ronald L. McQueen, with residential picketing, in violation of section 21.1 — 2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 21.1 — 2). Later that month, the trial court conducted a stipulated bench trial on that charge. The court found defendant guilty and sentenced him to six months’ court supervision. Defendant appeals, arguing that (1) the court erred by not holding that an exception within the residential picketing statute applied to defendant, and (2) the State failed to prove him guilty beyond a reasonable doubt. Although we conclude that the trial court properly construed the statute, we agree with defendant that the State failed to prove him guilty beyond a reasonable doubt and therefore reverse.

I. Facts

The sole evidence presented at defendant’s trial consisted of the following stipulation, as stated by the prosecutor in open court:

1. Dr. and Mrs. Thomas Fulbright own the house and grounds at 560 Powers Lane, Decatur, Macon County, Illinois, and occupy that house as their residence.

2. Prior to August 13, 1992, Dr. and Mrs. Fulbright entered into a contract with Gates and Johnson Lumber Company (hereafter Gates and Johnson) for certain repairs and remodeling of their residence at 560 Powers Lane. Dr. and Mrs. Fulbright had no control over the hiring of subcontractors by Gates and Johnson. Gates and Johnson, as general contractor, hired Mark Wolfer to work as subcontractor in connection with certain aspects of the repair and remodeling at 560 Powers Lane, specifically construction and roofing work.

3. Gates and Johnson were solely responsible to pay Wolfer, as subcontractor, any payment to which he was entitled for services performed upon 560 Powers Lane.

4. Defendant, Ronald L. McQueen, is a member of the Sheet Metal Workers, Local 218. On August 13, 1992, defendant and Tim Massey (another member of Local 218) carried picket signs on behalf of Sheet Metal Workers, Local 218. Their signs specifically indicated that the picketing was intended to provide notice to the public that Wolfer was not meeting the prevailing wage and other economic conditions as established for sheet metal workers in the area. Defendant carried the sign upon the thoroughfare in front of 560 Powers Lane.

5. Decatur police officer Dan Holt asked defendant to leave the area of the residence at 560 Powers Lane. Defendant responded that he would not leave, but that, if arrested, he would go peacefully with Holt. Holt then arrested defendant.

6. At the time of his arrest, only defendant and Massey were picketing 560 Powers Lane.

7. At all times during his picketing, defendant did so peacefully, did not block ingress or egress of 560 Powers Lane, and did not utter any verbal threats of any kind.

8. Defendant picketed 560 Powers Lane only when Wolfer or his employees were working on that residence.

9. Wolfer is a subcontractor whose business includes the construction and repair of roofs.

After argument by counsel, the trial court found (1) the residential picketing statute (section 21.1 — 2 of the Code) clear and unambiguous; and (2) the evidence contained in the stipulation sufficed to prove defendant guilty.

II. Statutory Construction

In 1967, the legislature added article 21.1 — dealing with residential picketing — to the Code. (1967 Ill. Laws 940.) That article, as amended, consists of three sections, with the first (section 21.1 — 1) containing the legislature’s finding and declaration, the second (section 21.1 — 2) describing the prohibited conduct, and the third (section 21.1 — 3) containing the sentence. (Ill . Rev. Stat. 1991, ch. 38, pars. 21.1 — 1, 21.1 — 2, 21.1 — 3.) Section 21.1 — 1 of the Code reads as follows:

“The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary.” Ill. Rev. Stat. 1991, ch. 38, par. 21.1 — 1.

Section 21.1 — 2 of the Code reads as follows:

“It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.” Ill. Rev. Stat. 1991, ch. 38, par. 21.1-2.

Defendant argues on appeal (as he did at trial) that the exception provided in the first sentence of section 21.1 — 2 of the Code — “when the residence or dwelling is used as a place of business” — applies because the Fulbrights’ residence became a “place of business” when Wolfer and his employees arrived on those premises to perform construction and roofing work. (Ill. Rev. Stat. 1991, ch. 38, par. 21.1 — 2.) Defendant explains this argument further as follows:

“The Illinois residential picketing statute [(section 21.1 — 2 of the Code)] is clearly intended to enjoin picketing of the residences of individuals involved in public controversies or labor disputes where such residences are not the situs of the dispute. But when the residence is used as a place of business *** then during that time picketing is not proscribed.” (Emphasis in original.)

Defendant further asserts the following:

“The State and the Court construed the statutory exception narrowly. They interpreted the provision ‘used as a place of business’ to [mean] that it is applicable only when the owner uses the residence as a business. But the statute does not say: ‘except when the owner uses the residence or dwelling as a business.’ The statute refers to situs, not to the owner of the property. The statute refers to a place of business, not to a business. Nor does the statute contemplate that the residence somehow must metamorphose exclusively into a business or place of business. Thus, as here, 560 Powers Lane, Decatur, Illinois, was not only the residence of the owners, but also a place of business for Mark Wolfer, [and therefore] subject to the exception of the statute.” (Emphasis in original.)

Defendant also argues that because “the plain language of the exception provision of the statute is subject to at least two valid interpretations,” the statute is ambiguous, and Illinois law requires courts to resolve such ambiguities in favor of defendants in criminal cases.

We disagree with defendant’s statutory interpretation. As did the trial court, we find section 21.1 — 2 of the Code clear and unambiguous. Specifically, we hold that the “place of business” exception contained in the first sentence of that section applies only when the owner of the residence in question uses it as a business.

The overarching rule of statutory construction is to ascertain and give meaning to what the legislature intended when it enacted the statute in question. In People v. Scharlau (1990), 141 Ill. 2d 180, 192-93, 565 N.E.2d 1319, 1324-25, the supreme court discussed statutory construction as follows:

“[T]he judicial role in construing statutes is to ascertain legislative intent and give it effect. To aid in accomplishing this, a court will seek to determine the objective the legislature sought to accomplish and the evils it desired to remedy. ***
Courts normally are required to interpret words in a statute according to their plain and ordinary meaning [citation], unless this would defeat the legislative intent [citation].”

Construing the residential picketing statute (section 21.1 — 2 of the Code) as defendant argues would give it an overly technical interpretation and would fail to provide the protection to residences the legislature intended. In section 21.1 — 1 of the Code, the legislature makes clear its desire to shelter and protect individuals and families within their residences in order to avoid “disrupting] home, family and communal life” (Ill. Rev. Stat. 1991, ch. 38, par. 21.1 — 1), unless they decide to use their residence as a place of business and thereby accept the consequences of doing so. If a homeowner chooses to use his residence as a place of business, then that decision brings with it the hurly-burly and turmoil of the outside business world, including picketing.

If we accepted defendant’s interpretation of section 21.1 — 2 of the Code, a residence would obtain protection from picketing only when utterly bereft of any commercial involvement. In other words, if, as defendant argues, the situs of the business involving repair and remodeling of this residence is the residence itself, then it could as well be argued that a residence that receives cable television, contains a certain brand of furniture, has a particular make of automobile parked in its garage, or receives subscriptions to particular magazines or newspapers can appropriately be picketed by some person aggrieved by the local cable television company, the particular furniture or automobile manufacturer, or the newspaper or magazine publisher. Clearly the legislature intended no such result.

In an effort to persuade this court of the unreasonableness of the State’s position that the “place of business” exception under section 21.1— 2 of the Code applies only to the business of the residence’s owner, defendant raises the following rhetorical questions in his brief: (1) “[I]s construction work performed on apartment complexes and condominiums exempt from picketing simply because the structures may be considered ‘residential’ for its occupants?” And (2) “[A]re owners of a residence exempt from employee pickets *** when they ‘hire’ individuals to come into their residence to perform services as employees,” such as domestics? Consistent with what we find to be the plain language of the statute in question, we conclude that the answer to each of these questions is yes.

Further, contrary to defendant’s argument, we find no ambiguity in either section 21.1 — 2 of the Code or the legislative intent underlying it. Thus, we hold that the doctrine of Illinois law that courts should resolve statutory ambiguities in favor of criminal defendants does not apply here.

The United States Supreme Court had occasion to construe an earlier version of section 21.1 — 2 of the Code, which then contained the following additional exception within the second sentence thereof: “[T]his Article *** does not prohibit the peaceful picketing of a place of employment involved in a labor dispute ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 21.1- 2.) In Carey v. Brown (1980), 447 U.S. 455, 459-60, 65 L. Ed. 2d 263, 269, 100 S. Ct. 2286, 2289-90, the Supreme Court held that section 21.1 — 2 of the Code as then written violated the equal protection clause of the fourteenth amendment. After the Carey decision, the legislature enacted Public Act 81 — 1270 (Pub. Act 81 — 1270, §1, eff. July 3, 1980 (1980 Ill. Laws 288, 289)), amending section 21.1 — 2 of the Code, to delete the constitutionally offensive clause. Even though the Court in Carey did not address the precise issue before us in this appeal, its discussion regarding the policy underlying section 21.1 — 2 of the Code offers guidance nonetheless:

“ ‘[N]o mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.’ Gregory v. Chicago, 394 U.S. 111, 118[, 22 L. Ed. 2d 134, 140, 89 S. Ct. 946, 950] (1969) (Black, J., concurring).
Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual ‘to be let alone’ in the privacy of the home, ‘sometimes the last citadel of the tired, the weary, and the sick.’ [Citations.] The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” (Carey, 447 U.S. at 470-71, 65 L. Ed. 2d at 276, 100 S. Ct. at 2295-96.)

Our construction of section 21.1 — 2 of the Code is fully consistent with the Supreme Court’s discussion regarding preserving the sanctity of the home. Defendant’s interpretation of that section would be destructive of these values, and we reject it.

III. Sufficiency Of The Evidence

Although we agree with the State that the trial court correctly construed section 21.1 — 2 of the Code, we still must address defendant’s argument that the evidence before the court in the stipulation of facts does not prove him guilty of residential picketing beyond a reasonable doubt. The argument of the parties on the sufficiency of the evidence focuses on the first sentence of section 21.1 — 2 of the Code, which reads as follows: “It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as aplace of business.” (Emphasis added.) (Ill. Rev. Stat. 1991, eh. 38, par. 21.1 — 2.) Citing the emphasized language, defendant argued at trial and to this court that the stipulation contains no evidence to show that the residence at 560 Powers Lane was not “used as a place of business” on the day defendant picketed that residence. In response, the State argues that “[t]he structure at 560 Powers Lane was unquestionably used solely as a residence,” but cites nothing in the stipulation to support that assertion.

We earlier rejected defendant’s interpretation of the “place of business” exception contained within the first sentence of section 21.1— 2 of the Code as applying to anyone except the owner of the residence in question. However, the following question must still be addressed: What evidence in this record shows that Dr. and Mrs. Fulbright, the people who reside at 560 Powers Lane, do not use that residence as a place of business? The answer is that the record — namely, the stipulation-says nothing at all on this point. The significance of this silence depends on which party bears the burden of proof regarding this exception. For the reasons that follow, we hold that the State bears the burden of proof, and because the State failed to meet its burden, we must reverse defendant’s conviction.

Our research did not reveal much law in this State regarding which party has the burden of proof concerning statutory exceptions. This court discussed this issue in People v. Ellis (1979), 71 Ill. App. 3d 719, 390 N.E.2d 583, in which the defendant was charged with driving while his license or permit was suspended or revoked. In 1977, the statute at issue in Ellis provided criminal penalties for any person driving a motor vehicle on any highway of this State “at a time when his drivers license or permit or privilege so to do *** is revoked or suspended ***, except as may be allowed by a restricted driving permit issued under this Act.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 95/2, par. 6 — 303(a).) The defendant in Ellis argued that “the State had the specific burden of proving that he did not possess a valid restricted driving permit.” (Ellis, 71 Ill. App. 3d at 720, 390 N.E.2d at 585.) This court rejected defendant’s argument and wrote the following:

“The general rule in Illinois is that where an act is made a crime and there are exceptions embraced in the enacting clause creating the offense which affect the description of that offense, the State must allege and prove that the accused does not come within the exception. In other words, where the exception is descriptive of the offense it must be negatived in order to charge the accused with the offense. On the other hand, if the exception rather than being a part of the description of the offense, merely withdraws certain acts or persons from the operation of the statute, it need not be negatived, and its position in the act, whether in the same section or another part of the act, is of no consequence. Such exceptions are generally matters of defense. [Citations.] In the instant case, the exception merely withdraws persons with restricted driving permits from the operation of the statute and in no sense is descriptive of the offense." (Emphasis added.) Ellis, 71 Ill. App. 3d at 720-21, 390 N.E.2d at 585.

Following Ellis, we hold that the “place of business” exception contained in the first sentence of section 21.1 — 2 of the Code “is descriptive of the offense” of residential picketing, and therefore the State must prove the absence of that exception beyond a reasonable doubt in order to sustain a conviction of residential picketing. As we explained earlier, the gravamen of the offense of residential picketing is the picketing of residences, and when the owner of a residence chooses to use it as a place of business, the legislature did not intend to provide any special protections to that residence under section 21.1 — 2 of the Code. For that reason, we hold that the “place of business” exception is an exception “embraced in the enacting clause creating the offense which affect[s] the description of that offense.” Ellis, 71 Ill. App. 3d at 720-21, 390 N.E.2d at 585.

Parenthetically, we note that the two other exceptions contained within section 21.1 — 2 of the Code are not “descriptive of the offense,” and the State need not prove the absence of those exceptions beyond a reasonable doubt in the absence of some evidence thereon being presented by the defense. These two other exceptions are contained within the second sentence of section 21.1 — 2 of the Code and pertain to (1) a person peacefully picketing his own residence, and (2) the peaceful picketing of the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.

Our conclusion that the State has the burden of negating the “place of business” exception contained in the first sentence of section 21.1 — 2 of the Code is bolstered by the cases construing sections 24 — l(aX4) and 24 — l(aX10) of the Code (Ill. Rev. Stat. 1991, ch. 38, pars. 24 — l(aX4), (aX10)). Section 24 — l(aX4) of the Code reads as follows:

“A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any *** firearm.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 24 — l(aX4).)

In People v. Chmilenko (1976), 44 Ill. App. 3d 1060, 1062, 358 N.E.2d 1247, 1249, the court construed section 24 — l(aX4) as follows: “We hold that the exceptions contained in section 24 — l(aX4) [(Ill. Rev. Stat. 1973, ch. 38, par. 24 — l(aX4))] are a part of the substantive definition of the offense. As such, the State must, by proof beyond a reasonable doubt, negate these statutory exceptions.” See also Illinois Pattern Jury Instructions, Criminal, No. 18.02 (3d ed. 1992) (hereafter IPI Criminal 3d).

Section 24 — l(aX10) of the Code reads as follows:

“A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(10) Carries or possesses on or about his person, upon any public street *** or other public lands within the corporate limits of a city *** except when on his land or in his own abode or fixed place of business, any *** firearm.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 24 — l(aX10).)

In People v. Proctor (1980), 85 Ill. App. 3d 190, 196, 406 N.E.2d 570, 574, the court construed the above emphasized language of section 24— l(aX10) of the Code and wrote the following: “The statutory exceptions must be negated by the State beyond a reasonable doubt.” See also People v. Anderson (1983), 117 Ill. App. 3d 806, 808, 454 N.E.2d 34, 35; IPI Criminal 3d No. 18.02, at 13.

Last, we note that the information in this case described the residence at 560 Powers Lane and concluded with the following: “such residence or dwelling not being used as a place of business.” Thus, the State appropriately charged the offense of residential picketing by alleging that the residence located at 560 Powers Lane was not being used as a place of business. However, at trial the State failed in the stipulation of the parties to present any evidence to meet its burden of proof to negate that exception.

IV. Conclusion

For the reasons stated, we reverse the judgment of the circuit court of Macon County.

Reversed.

KNECHT and COOK, JJ., concur.