author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAY C. SPIVEY, Defendant-Appellee.
    Second District
    No. 2 — 91—0329
    Opinion filed June 18, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Ray C. Spivey, was charged with one count of attempted murder, two counts of attempted aggravated criminal sexual assault, two counts of home invasion, two counts of aggravated battery, one count of residential burglary and three counts of armed violence against S.C. The defendant filed a motion to suppress statements he made to the police and an assistant State’s Attorney while he was in custody at the Du Page County jail.

The State appeals from the court’s order suppressing the defendant’s statements. The issue on appeal is whether the statements made by the defendant were in violation of his sixth amendment rights when the defendant was questioned about an offense on which adversary proceedings had not been initiated but where the defendant had previously been formally charged in another possibly related case.

On October 1, 1990, Detective Sergeant David Day, who had been investigating the attempted murder of S.C. and separate offenses occurring one year earlier involving the victim L.E, received an anonymous phone call regarding the defendant. The L.F. case involved offenses at the same apartment complex as in the S.C. offense. The caller indicated that the defendant was involved in both the L.F. and S.C. cases and was in Mississippi. On October 2, Detective Day and Detective Patrick Quinn flew to Mississippi with a search warrant to obtain a sample of the defendant’s blood and to examine his finger pursuant to their investigation of the S.C. case.

Quinn read the Miranda warnings to the defendant. The defendant indicated that he understood his rights and was willing to speak with Detectives Quinn and Day. At that point, he either denied knowledge of the S.C. or L.F. offenses, or refused to talk about them. The defendant was driven to a laboratory, and his finger was examined.

On October 5, Detective Day obtained a complaint and arrest warrant for the defendant in connection with the L.F. case. The defendant was subsequently arrested and brought to the Du Page County jail.

Joseph Birkett, deputy chief of the felony division of the Du Page County State’s Attorney’s office, was then assigned to prosecute the defendant. On October 18, he went to the jail to view lineups related to the two cases. Also present was Detective Quinn. After the L.F. lineup, an S.C. lineup occurred. After that lineup, Birkett requested that the defendant’s finger be photographed for the S.C. case. As the defendant entered a secured area where the camera was being set up, he approached Birkett. Birkett asked him to extend his hand for examination, and the defendant then asked if he had been identified and what was going on.

Birkett cautioned the defendant not to talk to him, explaining to the defendant that he was represented by a lawyer. The defendant insisted that he did not have a lawyer, that no one had been to see him and that he wanted to talk to Birkett. Birkett told the defendant that he could not talk about the pending L.F. case, but would talk to him regarding the S.C. case.

After Birkett gave Miranda warnings to the defendant, the defendant told Birkett that he understood his rights and orally waived them. During the subsequent questioning, Birkett made notes memorializing the defendant’s statements. After 45 minutes of questioning, the defendant signed a Miranda waiver form. Thereafter, the defendant read Birkett’s notes concerning statements, and he made several changes.

During the bench trial on the S.C. case, the defendant moved to suppress the statements made at the Du Page County jail. In granting the defendant’s motion for suppression, the court found that the relationship between the L.F. case and the S.C. case was “close” and that the defendant was entitled to his sixth amendment right to counsel when he was questioned after the lineup. It further found that the authorities, rather than the defendant, had initiated the questioning in violation of the defendant’s sixth amendment rights. Upon oral requests by the State for clarification of the court’s basis for granting the defendant’s motion to suppress, the court noted that its decision was based on the defendant’s sixth amendment rights and that the court did not reach the fifth amendment issues “because it was not necessary.”

On appeal, the State initially argues that the sixth amendment right to counsel should not apply to the statements here, where there was no evidence that the two crimes were closely related. It notes that the offenses occurred a year apart and involved separate victims. The State further argues that the court’s finding that authorities initiated the questioning was against the manifest weight of the evidence. Alternatively, the State argues that even if the authorities initiated the interrogation, the defendant’s fifth amendment rights were not violated because he had only invoked his right to silence, not his right to have an attorney present.

We first address the State’s argument that the defendant’s sixth amendment right to counsel had not attached because the crimes were not closely related. The fifth amendment to the United States Constitution guarantees the right to have counsel present during custodial interrogation. (People v. Martin (1984), 102 Ill. 2d 412, 419.) Unlike the fifth amendment right to counsel, the right to counsel assured by the sixth amendment does not attach until adversary judicial proceedings have been initiated. (Martin, 102 Ill. 2d at 419.) The sixth amendment right to counsel does not attach in an uncharged case merely because the defendant’s sixth amendment right to counsel has attached to an unrelated charge. (Martin, 102 Ill. 2d at 420-23.) However, in Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477, the Supreme Court implicitly recognized that if the right to counsel has attached in a charged offense, then the sixth amendment right to counsel may also be triggered for any uncharged but closely related offense.

The United States Supreme Court has not yet explained how closely related two offenses must be for the sixth amendment rights to attach to elicitation of evidence on an uncharged offense. (See People v. Clankie (1988), 124 Ill. 2d 456, 463.) However, in Clankie, the Illinois Supreme Court held that the two offenses must be “extremely closely related” to trigger attachment of sixth amendment rights in an uncharged offense. Clankie, 124 Ill. 2d at 463-64.

In Clankie, the defendant's sixth amendment rights had attached with regard to several burglary counts with which he had been charged. Due to a conflict of interest with his attorney, the defendant was granted a new trial. Before the second trial, pursuant to a warrant for a wiretap device, the defendant was heard to make statements implicating himself in a burglary of a particular residence, on a particular date; he described his entry and what items he removed. The defendant, in fact, described a burglary that he had been charged with in the first trial, but where the information charged that it occurred on a different date, two weeks earlier. The defendant was subsequently charged with a burglary on that date described in the wiretap.

The defendant moved to suppress his statements, arguing that they were obtained in violation of his sixth amendment rights. The State argued that the defendant’s sixth amendment rights had not attached because he had not been charged with the particular burglary in question when he made his statements. The court, however, noted that the two charges clearly referred to the same burglary, but that the charged dates were merely different. (Clankie, 124 Ill. 2d at 465.) Thus, the court concluded, under those facts, the defendant’s sixth amendment rights attached to the latter charged offense before he was formally charged. Clankie, 124 Ill. 2d at 463-66.

A trial court’s determination on a motion to suppress statements of the defendant will not be disturbed by a court of review unless the court abused its discretion or its decision is manifestly against the weight of the evidence. (People v. Pecoraro (1991), 144 Ill. 2d 1, 11.) Here, the record indicated that the crimes occurred over a year apart and were related only by the fact that they both occurred in the same apartment building and involved some similarity in their facts. Even the court noted that the dates of the offenses were different and that the crimes were different.

We find that the offenses were not “extremely closely related” and, thus, that the defendant’s sixth amendment rights had not yet attached to the offenses at bar. (See Clankie, 124 Ill. 2d at 463-64.) We, therefore, find that the court erred in suppressing the evidence based on the sixth amendment right to counsel. See Martin, 102 Ill. 2d at 420-23.

The defendant makes no arguments on appeal predicated on the fifth amendment to support suppression. For the above reasons, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings.

Reversed and remanded.

McLaren and QUETSCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COLWELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH TREADWAY, Defendant-Appellant.
    Second District
    No. 2 — 91—0921
    Opinion filed June 22, 1993.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Kenneth Treadway, appeals the order of the circuit court dismissing his petition under the Post-Conviction Hearing Act (Act) (111. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq. (now, as amended, 725 ILCS 5/122 — 1 et seq. (West 1992))). Defendant alleged that he was denied the effective assistance of trial counsel, who failed to support the defense of voluntary intoxication by referring defendant to an expert to determine defendant’s tolerance for alcohol. Defendant contends that the trial court erred in dismissing the petition by finding that defendant did not show that the outcome of the trial would have been different.

The underlying facts of the cause are reported in our opinion affirming defendant’s conviction. (People v. Treadway (1985), 138 Ill. App. 3d 899.) In 1983, defendant without provocation brutally assaulted a woman in a tavern, and the jury found him guilty of attempted murder, armed violence, aggravated assault, and aggravated battery (111. Rev. Stat. 1983, ch. 38, pars. 8 — 4(a), 9 — 1(a), 33A — 2, 12 — 2(aXl), 12 — 4(a) (now, as amended, 720 ILCS 5/8 — 4(a), 5/9 — 1(a), 5/33A — 2, 5/12 — 2(aXl), 5/12 — 4(a) (West 1992))). Defendant presented the defense of voluntary intoxication. The State’s witnesses testified that defendant did not appear intoxicated. At trial, defendant was his only witness, and he testified that he drank numerous alcoholic beverages that day. He also said that he drank to excess quite often but no one could tell he was drunk. 138 Ill. App. 3d at 901.

Defendant filed a pro se post-conviction petition in which he claimed he was denied the effective assistance of counsel. Defendant alleged that he and trial counsel agreed medical professionals would test him in a controlled environment to monitor defendant’s reactions to alcohol. Defendant claimed he did not have the mental state to kill the victim. Defendant alleged that if he had been tested he would have had the evidence which would have made the outcome of the trial different. Defendant averred that these statements were true.

The circuit court dismissed the petition as frivolous (see 111. Rev. Stat. 1989, ch. 38, par. 122 — 2.1 (now 725 ILCS 5/122 — 2.1 (West 1992))) because it found the allegations were barred by res judicata. This court reversed, because the facts underlying the allegations of the ineffective assistance of counsel were outside the record of the direct appeal and could not have been raised in that proceeding. People v. Treadway (1990), 203 111. App. 3d 1105 (unpublished order under Supreme Court Rule 23); cf. People v. Wright (1986), 111 Ill. 2d 18, 26 (new evidence presented at post-conviction hearing).

After the cause was remanded, the prosecutor filed a motion to dismiss the petition, and the court appointed an attorney to represent defendant. This counsel filed a supplemental motion which contained only one elaboration of defendant’s previous allegations. He elaborated that defendant discussed the retention of an expert numerous times with his trial counsel.

The circuit court dismissed the petition because it did not think that, based on the record before it, the outcome of the trial would have been different. The circuit court also stated that armed violence was a general intent crime to which voluntary intoxication was not a defense. Defendant filed a timely notice of appeal.

Under the Post-Conviction Hearing Act, the defendant bears the burden of establishing that a substantial deprivation of his constitutional rights occurred at his original trial. (People v. Johnson (1993), 154 Ill. 2d 227, 239.) The circuit court may hold an evidentiary hearing where the allegations of the post-conviction petition make a substantial showing of a violation of the defendant’s constitutional rights and the petition is supported by affidavits, records, or other evidence or explains why these items are not attached. (154 Ill. 2d at 239-40, citing Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2 (now 725 ILCS 5/122 — 2 (West 1992)).) The affidavits which must accompany a post-conviction petition must identify with reasonable certainty the sources, character, and availability of alleged evidence supporting the defendant’s allegations. Johnson, 154 Ill. 2d at 240.

A circuit court will generally dismiss a post-conviction petition which is not supported by affidavits other than the defendant’s averments. (Johnson, 154 Ill. 2d at 240.) A post-conviction petitioner who attacks the competency of his trial counsel for failing to call or contact certain witnesses must attach the affidavits of such witnesses to his post-conviction petition and explain the significance of their testimony. 154 Ill. 2d at 240-41.

To prove the ineffective assistance of counsel, defendant had to show that but for the alleged error of counsel, the result of the trial would likely have been different. (People v. Caballero (1989), 126 Ill. 2d 248, 270.) We are aware of one Illinois case that has found an attorney ineffective for failing to support an intoxication defense. See Wright, 111 Ill. 2d at 31 (counsel failed to present intoxication evidence that would have resulted in a conviction of involuntary manslaughter rather than murder); see also People v. Quinn (1988), 173 Ill. App. 3d 597, 606-07 (defendant failed to show his counsel neglected to investigate the defense); State v. Schultz (1984), 140 Ariz. 222, 681 P.2d 374; 5 Proof of Facts 2d §23, at 217-18 (1975) (psychiatrist employing controlled dosages of alcohol to determine the defendant’s reactions); Annot., 17 A.L.R.4th 575, 720 (1982) (listing cases in which counsel was ineffective for not calling an expert); Annot., 8 A.L.R.3d 1236 (1966) (intoxication generally).

Here, the circuit court was correct in its assessment that the defendant’s petition did not show the result of the trial would have been different; defendant did not attach any relevant affidavits which established the significance of defendant’s allegations and which showed that the outcome of the trial likely would have been different. See Johnson, 154 Ill. 2d at 240-41.

In an ordinary case (where the post-conviction petition is filed by counsel), a circuit court in ruling upon a motion to dismiss a post-conviction petition which is not supported by affidavits may reasonably presume that the post-conviction counsel made a concerted effort to obtain affidavits in support of the post-conviction claims but was unable to do so. (Johnson, 154 Ill. 2d at 241.) However, Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) requires post-conviction counsel to file an affidavit certifying that he or she has researched the allegations of the pro se petition and presented it to the court. Rule 651(c) requires a showing that post-conviction counsel: (1) consulted with the petitioner to ascertain his contentions of constitutional deprivation; (2) examined the record of the proceeding of the original trial; and (3) made any amendments to the pro se petition necessary to present the petitioner’s constitutional contentions adequately. (Johnson, 154 Ill. 2d at 238.) Although a counsel’s duty to comply with Rule 651(c) is mandatory, a counsel’s failure to file an affidavit will be excused when the record demonstrates that counsel adequately fulfilled the above duties.

Here, counsel did not file a Rule 651(c) certificate. A transcript of a status hearing reveals that counsel told the circuit court that he had written to defendant. However, the record does not show that counsel examined the record of the original proceeding. Also, counsel did not amend the petition to present the claim adequately. While counsel submitted a supplement to the petition, it merely restated allegations made in the pro se petition. This amendment is insufficient to satisfy the requirements of Rule 651(c). See Johnson, 154 Ill. 2d at 243-45.

The purpose of Rule 651(c) is not merely formal. The rule assures that all indigents are provided proper representation when presenting claims of constitutional deprivations under the Act. This design would not be fulfilled were we to allow counsel to ignore the rule. (People v. Alexander (1990), 197 Ill. App. 3d 571, 573.) The Act provides for the appointment of counsel (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 4 (now, as amended, 725 ILCS 5/122 — 4 (West 1992))), and Rule 651(c) effectuates the promise of effective counsel (Johnson, 154 Ill. 2d at 237-38).

Here, the court dismissed the petition because defendant did not show that the outcome of his trial would have been different had an expert bolstered defendant’s claim that he lacked the specific intent to kill. However, the court could not presume that no such evidence existed in the absence of post-conviction counsel’s certification that he investigated the allegations, for example, by interviewing trial counsel or an expert. (Johnson, 154 Ill. 2d at 241.) Thus, we must reverse the dismissal and remand the cause for counsel to comply with Rule 651(c).

While neither party has raised the issue of Rule 651(c) compliance, we note that the rules adopted by the supreme court are rules of procedure and not suggestions; it is incumbent upon counsel and the courts alike to follow them. (People v. Wilk (1988), 124 Ill. 2d 93, 103; People v. Kendall (1991), 213 Ill. App. 3d 782, 786.) The failure to comply with Rule 651(c) will result in a string of petitions alleging ineffective assistance of post-conviction counsel and of appellate counsel. Compliance with Rule 651(c) is necessary for a proper review of the proceedings. The failure to comply with the rule is a plain error which we may review under Rule 615(a) (134 Ill. 2d R. 615(a)).

Finally, defendant raises the issue of whether the defense of intoxication can apply to the general-intent offense of armed violence under the prior statute which provided that a person who is in an intoxicated state is responsible for his conduct unless the condition “[n]egatives the existence of a mental state which is an element of the offense.” (HI. Rev. Stat. 1983, ch. 38, par. 6 — 3(a); cf. 720 ILCS 5/ 6 — 3(a) (West 1992) (“render him incapable of forming a specific intent”).) The State does not respond to this argument, and post-conviction counsel did not respond to the State’s argument below. Because we reverse the judgment and remand this cause and the record and arguments are not developed for an adequate review, we need not address the argument here.

For the above reasons, the order of the circuit court is reversed, and the cause is remanded for further proceedings in compliance with Rule 651(c).

Reversed and remanded.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE GREEN

text:
      In re PAT BRAZELTON, Asserted to be a Person Subject to Administration of Psychotropic Medication (The People of the State of Illinois, Petitioner-Appellee, v. Pat Brazelton, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0659
    Argued March 23, 1993.
    Opinion filed June 10, 1993.

      John B. Lower and Jeff M. Plesko (argued), both of Guardianship & Advocacy Commission, of Anna, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns the operation of section 2 — 107.1 of the Mental Health and Developmental Disabilities Code (Code) (111. Rev. Stat. 1991, ch. 911/2, par. 2 — 107.1), which provides for procedures whereby a court order may be obtained for the administration of psychotropic medication to a person for that person’s benefit but against his or her will. The circuit court here entered such an order. One of the issues raised, whether the legislation meets constitutional muster, is now before the Illinois Supreme Court {In re C.E. (Cir. Ct. Cook Co., Mar. 30, 1992), No. 91 — COT—06, appeal allowed (1992), No. 73605). We need not pass on that question here because we conclude that even if the legislation is valid, reversal is required for other reasons.

On July 10, 1992, Dr. Barry M. Rebeck, a psychiatrist, filed a petition in the circuit court of Macon County, pursuant to section 2 — 107.1 of the Code, seeking authority for the clinical staff of Adolf Meyer Mental Health and Developmental Center of Decatur (Meyer Center) to administer psychotropic medicine to respondent Pat Brazelton against her will. The court set the matter for hearing on July 21, 1992, and an assistant public defender was appointed to represent respondent. Respondent was personally served with notice of that hearing on July 13, 1992. Appointed counsel was present in court on July 20, 1992, when a request by the petitioner to continue the proceedings was allowed without objection by respondent’s counsel. The cause was continued until August 4,1992.

On August 4, 1992, respondent appeared with counsel and made an oral motion for a jury trial. The court denied the motion for the stated reason that the Code makes no provision for a jury trial in regard to a section 2 — 107.1 petition. The court then conducted a bench hearing on the petition and found for the petitioner. On August 6, 1992, the court entered an order authorizing the Meyer Center clinical staff to administer psychotropic medication to respondent for a period not to exceed 90 days. On August 12, 1992, on respondent’s motion, the court stayed the foregoing order until further order of the court.

Respondent has appealed, contending (1) the court’s order violated constitutional and statutory guarantees; (2) the proof did not support the order entered; and (3) the court erred in denying respondent a jury trial. As we have indicated, no useful purpose would be served by our attempting to decide the constitutional issue here. The question of statutory violation is so intertwined with the first question that our attempts to decide that would also be useless. Moreover, we need not decide either of the foregoing questions because error in the handling of the jury trial issue requires reversal. We do pass upon the sufficiency of the evidence to support the verdict because, if insufficient, we must reverse outright. If the evidence was strong enough to uphold the order, we can merely reverse and remand for a new trial if the supreme court upholds the validity of section 2 — 107.1 of the Code. Accordingly, we consider the sufficiency of the evidence first.

The State’s only witness was Dr. Rebeck, who testified as follows: (1) he most recently observed respondent on the day of the hearing and the day before; (2) respondent had been diagnosed with a serious mental illness; (3) respondent’s behavior had deteriorated, i.e., according to family reports she used to be gainfully employed and due to her illness she had been unable to work for the last few years; (4) prior to her being admitted to the Meyer Center she was so preoccupied with her delusions and her fixations she could no longer function independently; (5) respondent’s illness existed for both “a period marked by the continuing presence of those symptoms” and by the “repeated episodic occurrence of symptoms”; and (6) a course of treatment including the administration of psychotropic medication had been developed for respondent which was “consistent within a reasonable degree of psychiatric certainty as to appropriateness and likelihood of benefit.”

Dr. Rebeck described the proposed treatment of psychotropic medications as including “either a long[-]acting form that could be injected or an oral form, if the patient would comply with taking that and depending upon her response. The dosage and the amount would be demonstrated by her response.” Specifically, Dr. Rebeck testified he would prescribe Haldol or Prolixin Enanthate or similar antipsychotic medications based on how respondent responds to the medications.

Dr. Rebeck further testified (1) he believed the benefits of psychotropic medication would outweigh the harm of the medication; (2) at that time respondent lacked the capacity to make a reasonable decision about taking the medication; (3) the staff members at the Meyer Center had repeatedly attempted to talk with respondent; however, she was preoccupied with her delusional thoughts; (4) the staff had attempted to obtain respondent’s voluntary agreement to take the medication; and (5) he considers the involuntary administration of psychotropic medication essential to respondent’s proper treatment.

On cross-examination, Dr. Rebeck testified as follows: (1) he had not observed respondent ever behave in a threatening manner to herself or others aside from being verbally aggressive when her delusions were challenged; (2) respondent’s mother told him that “prior to her being admitted to [the] hospital [respondent] was driving in a car and because of her response to a perceived disturbance she almost accidentally drove her car off a bridge”; (3) he based his opinion.that respondent’s behavior was deteriorating on the fact she could not independently function or work because of her preoccupation with delusional thoughts; (4) less restrictive services such as psycho-education and psychotherapy would be futile for respondent because she neither believed she had a mental illness nor was she willing to hear about having a mental illness; and (5) without the administration of medication, respondent would be subject to either long-term hospitalization or isolation at home while totally dysfunctional.

Respondent testified on her own behalf as follows: (1) she was 46 years old; (2) she worked outside the home for 12 years and had lived independently; (3) she had no prior hospitalizations and she was involuntarily admitted to the Meyer Center because of a “harassment situation because they would not open up to a hypnosis that was being done[;] I didn’t want to go in and they put me in anyway”; (4) she had never harmed herself or others; (5) she had the mental capacity to decide whether to take psychotropic medication; (6) she refused the medication because she felt “psychotropics, as explained to [her], [was] the same as ‘moban’ medicine which was given to [her] by a doctor in Louisville. Did no good. Didn’t get rid of the harassment going on. Not only that it made [her] extremely miserable”; and (7) when she took the other medication she “shook constantly.”

On cross-examination, respondent testified that she was never hospitalized in Louisville, Kentucky, but medication had been prescribed for her. The following colloquy took place regarding her experience in Kentucky:

“Q. [State’s Attorney]: Were you in a hospital there?
A. [Respondent]: No, I wasn’t in a hospital. I was working at Citizen’s Fidelity as a program analyst there. I was in the process, being harassed. I had complained about a bugging where I worked at which turned into sound waves and hypnosis through an investigation.
Q. Who do you think is responsible for this?
A. It has been said Pinkerton Security.
Q. I’m sorry?
A. It has been said Pinkerton Security. It has also been brought out my husband and his father who were in the security business was also involved in hypnotizing me by sound waves or methods of sound waves.
Q. Do you think that is still going on?
A. I know it is still going on right here in your hospital.”

The proof required for the court to grant a section 2 — 107.1 order is set forth in section 2 — 107.1(d) of the Code, which states:

“Psychotropic medication shall not be administered to the recipient unless it has been determined by clear and convincing evidence that all of the following factors are present:
(1) That the recipient has a serious mental illness or developmental disability.
(2) That because of said mental illness or developmental disability, the recipient exhibits deterioration of his ability to function, suffering, or threatening or disruptive behavior.
(3) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in paragraph (2) of subsection (d) of this Section or the repeated episodic occurrence of these symptoms.
(4) That the benefits of the psychotropic medication will outweigh the harm.
(5) That the recipient lacks the capacity to make a reasoned decision about the medication.
(6) That other less restrictive services have been explored and found inappropriate.”
111. Rev. Stat. 1991, ch. 91V2, par. 2 — 107.1(d).

Section 2 — 107.1(d) of the Code requires proof “by clear and convincing evidence.” (Ill. Rev. Stat. 1991, ch. 911/2, par. 2— 107.1(d).) However, as this court stated in the case of In re Jeffers (1992), 239 Ill. App. 3d 29, 35, 606 N.E.2d 727, 731, that requirement is one for the trial court under section 2 — 107.1(d) of the Code and we will give great deference to the determination of the trier of fact and should “reverse only if the trial court’s decision is manifestly erroneous.” That was not the case here. Dr. Rebeck’s testimony covered every aspect of the required proof.

Respondent objected to Dr. Rebeck’s reliance on hearsay reports from respondent’s family in regard to her deterioration in her ability to function. Where, as here, hearsay evidence is received without objection, it should be considered for whatever probative value it has. (People v. Collins (1985), 106 Ill. 2d 237, 263, 478 N.E.2d 267, 278.) The use of hearsay information, if reasonably relied upon, is one of the usual ways for a psychiatrist to make a diagnosis. (See People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485.) The information Rebeck related was sufficient for him to conclude that respondent had a serious illness and was exhibiting a deteriorating ability to function. The evidence concerning the bridge episode helped in making that determination. The indications of paranoia apparent in respondent’s testimony also supported the court’s decision on this issue.

In giving his opinion that the benefits of the proposed medication exceeded the harm which could be caused, Dr. Rebeck stated in cautious terms that the proposed medication was reasonably likely to be appropriate, and the result of not using the medication would likely be long-term hospitalization or isolation in a dysfunctional state at home. The refusal of the respondent to take the medication was readily apparent from all of the testimony.

The respondent was not entitled to have the petition dismissed in bar of action for lack of proof and we will not reverse without remandment.

Respondent’s claim to a right to trial by jury on the section 2 — 107.1 petition arises from subsection (c) thereof, which states:

“Unless otherwise provided herein, the procedures set forth in Article VIII of Chapter 3 of this Act, including the provisions regarding appointment of counsel, shall govern hearings under this Section.” 111. Rev. Stat. 1991, ch. 91^2, par. 2— 107.1(c).

Section 3 — 802 of the Code, which is part of chapter 3, article VIII, of the Code states:

“The respondent is entitled to a jury on the question of whether he is subject to involuntary admission. The jury shall consist of 6 persons to be chosen in the same manner as are jurors in other civil proceedings.” 111. Rev. Stat. 1991, ch. 91V2, par. 3 — 802.

The statement in section 3 — 802 of the Code that a respondent is entitled to a jury trial on the question of involuntary admission does not “provide otherwise” in regard to a right of a section 2— 107.1 respondent to a jury trial arising from the incorporation of section 3 — 802 procedures. Section 3 — 802 was part of the Code when it became effective January 1, 1979. (See Pub. Act 80 — 1414, eff. January 1,1979 (1978 Ill. Laws 1462, 1484).) Section 2 — 107.1 became effective August 13, 1991 (see Pub. Act 87 — 124, §1, eff. August 13, 1991 (1991 Ill. Laws 992)) and made procedures and rights previously limited to certain proceedings also applicable to actions under section 2 — 107.1. Nothing else in the Code provides that a respondent’s right to jury trial is not applicable to section 2 — 107.1. The State admits the foregoing interpretation is correct and that respondent had a right to a jury trial but maintains respondent waived that right.

The State’s theory of waiver begins with section 6 — 100 of the Code, which states that “[¡judicial proceedings conducted pursuant to this Act shall be conducted in accordance with the Civil Practice Law, except to the extent the provisions of this Act indicate to the contrary or are inconsistent, in which case this Act governs.” (Ill. Rev. Stat. 1991, ch. 91^2, par. 6 — 100.) Section 2 — 1105 of the Civil Practice Law states that “[a] defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer” or the right to a jury is waived (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1105). In civil cases, Supreme Court Rule 101(d) requires an answer or appearance to be filed within 30 days of service upon that defendant. 134 Ill. 2d R. 101(d).

On the other hand, neither section 2 — 107.1 of the Code nor article VIII of chapter 3 of the Code imposes any duty upon a respondent to file a responsive pleading. The practice is not to file a responsive pleading and an implied requirement to do so would be inconsistent with the intent that section 2 — 107.1 creates a “speedy and efficient” manner of treating mentally ill patients who lack the capacity to make reasoned decisions in regard to medication. Report of the Governor’s Commission to Revise the Mental Health Code of Illinois 45 (1989).

The State emphasizes the decision of the supreme court in Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 356 N.E.2d 42, where that court upheld a circuit court decision to deny a 12-person jury to a defendant in an ordinance violation case where he made his request the day the case was called for trial. The plaintiff had previously demanded a six-member jury, and the case had been tried before such a jury. The court pointed out that in City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 292 N.E.2d 382, it had held that in such a case the right to a jury trial was governed by section 64 of the then Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 64), which was the same as the present section 2 — 1105 of the Civil Practice Law. The Walker court pointed out that the difficulty with that analogy was that section 64 of the Civil Practice Act referred to filing a demand at the time of answer and defendants to ordinance violation charges were not required to file answers. However, the court concluded that since the defendant had 10 months after the filing of the charges before the case went to trial, defendant was unduly tardy in not requesting a jury until day of trial.

The Walker court analogized the situation in an ordinance violation case to that in a small claims case where Supreme Court Rule 285 required a defendant’s demand for a jury was required to be filed at the time of appearance. (See 43 Ill. 2d R. 285.) The State maintains that would be an appropriate rule to apply to section 2— 107.1 proceedings. However, as we have indicated, the Code makes no provision for any appearance by or on behalf of a respondent prior to hearing.

The Walker court also pointed out that a motion for leave to file a late jury demand could have been filed under then section 59 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 59), which provided for, upon good cause shown, a discretionary granting by a trial court of additional time to take any step prior to judgment. (Walker, 64 Ill. 2d at 300, 356 N.E.2d at 49.) The Walker court noted that in Hudson v. Leverenz (1956), 10 Ill. 2d 87, 139 N.E.2d 255, the supreme court had upheld a discretionary decision of a trial court to allow the filing of a late jury demand. Similarly, in Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201, the supreme court upheld an appellate court’s judgment reversing a circuit court order denying a late request for a jury trial.

The foregoing cases have several implications which would seem to be applicable to the time for making jury demands in section 2— 107.1 proceedings. One is that no exact time limit is imposed. Another is that the demand must be made in a reasonable time. The third is that the court must exercise a discretion before denying a late request for a jury trial.

Here, the case had originally been set for hearing on July 21, 1992, but was continued on the motion of petitioner until August 4, 1992. Respondent’s counsel could have made a jury request at that time. The requirement of section 2 — 107.1 of the Code that a hearing be held within 30 days of the filing of the petition placed a further restriction on the court unless a request by a respondent for a jury trial which would require a delay beyond the 30-day deadline would constitute a waiver by a respondent of the 30-day rule. Here, the 30-day period would have expired in less than a week from the time respondent made a jury request. Most importantly, the difficulties that arise when a party waits until the day of trial to make a jury demand are readily apparent. Clearly, if the court here had considered respondent’s demand, recited difficulties that would arise in obtaining jurors or other disruptions to court proceedings, no error would result in the denial of the request for a jury.

Here, the court did not exercise the discretion it possessed. No effort was made to determine whether a jury could easily be obtained. The legislature obviously deemed the right of trial by jury an important aspect of the sensitive decision which must be made in determining whether mind-altering substances can be imposed upon an individual who does not want the medicine. Under the circumstances, we deem highly significant the statement of the supreme court in regard to a trial court’s ruling on a request to make a tardy request for a jury trial. That court stated that the issue on review is not whether the reviewing court “would have allowed the [request], but whether the action was a reasonable exercise of sound discretion.” (Emphasis added.) (Hernandez, 73 Ill. 2d at 95, 382 N.E.2d at 1203.) Respondent did not have that benefit here.

The State maintains that the circuit court’s failure to exercise discretion in determining whether respondent’s jury demand was too late is harmless error at worst because the proof of the petitioner’s case was so strong that a jury would have been sure to approve it. Just as we gave deference to the determination of the court in finding in favor of the petitioner, we do not assume another trier of fact would have decided the same way. A jury viewing the witnesses could have concluded that Dr. Rebeck’s opinions were based on too skimpy actual knowledge of the respondent. We do not agree that any error was harmless.

Because of the importance of the right to trial by jury, the uncertainty as to when the demand for such a trial should be made here, and the lack of exercise of discretion by the court before denying a jury trial, we hold that the order appealed must be reversed and the cause remanded to the circuit court of Macon County. That court should await the final decision by the supreme court in the case of C.E. and if the validity of section 2 — 107.1 of the Code is upheld, grant respondent’s jury request and proceed to try the issues before a jury. If the supreme court should determine that section 2 — 107.1 is invalid, the court should then dismiss the petition.

Reversed and remanded with directions.

KNECHT and COOK, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER L. PRIER, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0636
    Opinion filed March 25, 1993.
    Rehearing denied June 9, 1993.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Michael Atterberry, State’s Attorney, of Petersburg (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 McCULLOUGH

delivered the opinion of the court:

Defendant Lester L. Prier appeals from the order of the circuit court of Menard County summarily dismissing his pro se petition for post-conviction relief as frivolous and patently without merit. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(aX2).) We affirm.

Following a bench trial, judgments of conviction were entered against defendant for the unlawful possession of a stolen vehicle in violation of section 4— 103(aXl) of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 95x/2, par. 4 — 103(a)(1)), and of theft of property having a value in excess of $300 in violation of section 16 — 1(a)(1) of the Criminal Code of 1961 (111. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)), although defendant received the maximum extended term of 14 years on only the unlawful possession of a stolen vehicle conviction. No sentence was imposed on the theft conviction. In defendant’s direct appeal, this court affirmed the judgment of conviction for unlawful possession and vacated the judgment for theft. People v. Prier (1990), 195 Ill. App. 3d 1112, 582 N.E.2d 328 (unpublished order under Supreme Court Rule 23).

In the post-conviction petition, defendant alleged (1) he was deprived of the effective assistance of counsel, (2) his right to be free from double jeopardy for the same offense was violated, and (3) he had been falsely imprisoned prior to trial. On appeal, however, defendant raises only one issue, to wit: whether the petition for post-conviction relief contained allegations of the denial of defendant’s constitutional right to the effective assistance of counsel which, if proved, would entitle him to a new sentencing hearing.

Defendant’s post-conviction petition alleged, in relevant part, as follows:

“2. Trial Counsel failed to call and/or subpoena witnesses at the sentencing hearing in mitigation which severely prejudiced the defendant. Defendant informed trial counsel of his past cooperation [sic] with many police agencys [sic]. Thus defendants [sic] was denied ‘Due Process’ in his sentencing hearing, (affidavits attached)[.]”

Attached to the petition for post-conviction relief were affidavits of Officer David A. Hurrelbrink of the Springfield, Illinois, police department and Lawrence Tumulty, a retired Springfield, Illinois, police officer. In these affidavits, the affiants detailed a number of instances in which defendant cooperated with the police leading to the apprehension of criminal suspects. With regard to this allegation, the trial court’s written order stated:

“As to the sentencing hearing subsequent to Defendant’s conviction, the affidavits which Defendant has attached to his Petition fail to state that the affiants would have testified on behalf of the Defendant at the sentencing hearing, and furthermore, even if they had done so, the Court would have imposed the same sentence due to the extensive prior criminal history of the Defendant.”

The Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.) sets out a three-step process for adjudicating petitions for post-conviction relief. The trial court is not to decide the petition on the merits at the first stage. Instead, at the first stage, the trial court considers the petition, with no input from the State or further pleadings from defendant, in order to determine if it is frivolous and patently without merit. If the petition is not dismissed as frivolous and patently without merit, counsel may be appointed to represent an indigent defendant, and said counsel will be afforded an opportunity to amend the petition. At that point, the State may move to dismiss. The third and final stage is an evidentiary hearing if the petition is not dismissed on the State’s motion. People v. Dredge (1986), 148 Ill. App. 3d 911, 912-13, 500 N.E.2d 445, 446.

In this case, the proceeding was only in the first stage. In Dredge, this court stated:

“In determining the particularity with which a pro se petitioner for post-conviction relief must state alleged deprivations of constitutional rights in her petition, we note that such petitioners are often persons of limited education. (See Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; People v. Wilson (1986), 146 Ill. App. 3d 567.) Therefore, we conclude that in order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. (See People v. Baugh (1985), 132 Ill. App. 3d 713, 477 N.E.2d 724.) Requiring pro se petitioners to state their claims in greater detail than this would have the practical effect of depriving many such persons of their right of meaningful access to the courts. (Cf. People v. Wilson (1986), 146 Ill. App. 3d 567.)” (Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47.)

Based on this appeal and numerous others which have come before this court since Dredge, it is evident that an explanation of the term “gist of a meritorious claim” must be made.

Perhaps we should start by explaining what it is not. A “gist of a meritorious claim” is not a bare allegation of a deprivation of a constitutional right. The trial court is not required to accept the allegation as establishing a deprivation of a constitutional right even though no opposing pleading has been filed.

“Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right.” People v. Lemons (1993), 242 Ill. App. 3d 941, 946, citing People v. Porter (1988), 122 Ill. 2d 64, 74, 521 N.E.2d 1158, 1161.

The Act requires that the allegations in the petition for post-conviction relief be supported by affidavit, the record, or other evidence. (Ill. Rev. Stat. 1991, ch. 38, pars. 122 — 1, 122 — 2.) However, the trial court is not prevented from closely scrutinizing the supporting documents at the first stage in the process to determine whether the allegations are frivolous or patently without merit. Indeed, we believe the enactment of section 122 — 2.1 of the Act encouraged such an analysis. Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1; Lemons (1993), 242 Ill. App. 3d at 946.

Defendant alleged that trial counsel provided ineffective assistance by failing to present at the sentencing hearing mitigating evidence of which counsel had been made aware. The attached affidavits indicate such evidence did exist. The pro se petition could be construed as alleging a failure of trial counsel to investigate the existence of the evidence, rather than being indicative of a tactical decision not to present evidence which counsel deemed would have no impact on the outcome of the sentencing hearing. However, the defendant, in order to be successful in this proceeding, must plead and prove (1) that his trial counsel’s representation at the sentencing hearing fell below an objective standard of reasonableness, and (2) that, without the ineffective representation, there would be a reasonable probability that the outcome at sentencing would have been different. People v. Daugherty (1990), 204 Ill. App. 3d 614, 618, 561 N.E.2d 1384, 1386-87.

At the time of defendant’s sentencing hearing on June 5, 1989, he was 27 years old. In spite of his youth, defendant had been convicted of 13 additional felonies in the prior nine years, consisting of eight burglaries in 1980 for which defendant was sentenced to concurrent six-year terms of imprisonment (Sangamon County case Nos. 80— CF — 509, 80 — CF—520, 80-CF-521, 80-CF-527, 80-CF-528, 80-CF — 529, 80 — CF—530, and 80-CF-544), a 1980 felony theft conviction for which he was sentenced to two years’ probation (Sangamon County case No. 80 — CF—193), and convictions in 1988 for three felony thefts and criminal damage (Sangamon County case Nos. 85— CF — 370, 86 — CF—34) for which he was sentenced to concurrent terms of probation of 30 months and ordered to perform 200 hours of public service work. The trial court found that defendant’s imprisonment was necessary for the protection of the public and that a lesser sentence would deprecate the seriousness of the offense and be inconsistent with the ends of justice. The trial court, considering that defendant had in the past been sentenced to imprisonment and to terms of probation and still continued his life of crime, found that defendant had little rehabilitative potential. Therefore, defendant was sentenced to a maximum extended term of 14 years. Ill. Rev. Stat. 1987, ch. 95V2, par. 4-103(b); ch. 38, pars. 1005-5-3.2(b)(l), 1005-8-2(aX4).

In assessing whether the pro se petition for post-conviction relief is frivolous and patently without merit, the trial court may examine the petition, affidavits, and record to determine if the pro se petition has alleged facts on which a valid claim of prejudice to defendant can be based. (See People v. Fern (1993), 240 Ill. App. 3d 1031, 1041.) In light of the aggravating evidence, the information contained in the affidavits submitted in support of defendant’s petition for post-conviction relief is insignificant, and we agree with the trial court that the defendant has failed to allege facts which would demonstrate that he was prejudiced by the failure of his counsel to present this evidence at the sentencing hearing. (See People v. Neal (1990), 142 Ill. 2d 140, 151, 568 N.E.2d 808, 813.) In Neal, the supreme court reviewed the aggravating circumstances of the murder and the proposed mitigating evidence, stating:

“In light of this aggravating evidence, evidence that two coworkers thought petitioner was a good person and that a jailer said petitioner stayed out of trouble while in jail seems rather insignificant indeed. The information alleged in and appended to the post-conviction petition was insufficient to demonstrate prejudice and require a departure for this court’s holding in petitioner’s direct appeal. Since petitioner has not overcome the prejudice prong of the test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, both of his claims of ineffective assistance of counsel must fail.” Neal, 142 Ill. 2d at 151, 568 N.E.2d at 813.

For the foregoing reasons, the judgment of the circuit court of Menard County dismissing defendant’s pro se post-conviction petition as frivolous and patently without merit is affirmed.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
      In re GUARDIANSHIP OF DOROTHY AUSTIN et al. (The People of the State of Illinois, Petitioner-Appellee, v. Dorothy Austin et al., Respondents-Appellants).
    Fourth District
    No. 4 — 92—0641
    Argued March 24, 1993.
    Opinion filed June 10, 1993.

      James B. Moses, Jr., of Guardianship & Advocacy Commission, of Peoria, and William Sheidemantel (argued), of Guardianship & Advocacy Commission, of Decatur, for appellants.
    No brief filed for the People.
    Patrick O’Brien, of Eureka, guardian ad litem.

   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

The Office of State Guardian (OSG) appeals from guardianship orders entered for 14 persons, 10 of the orders naming OSG as limited guardian of the person and estate, and four naming family members as limited guardians of the person and estate. OSG contests (1) the limitations placed upon the guardians’ authority to consent to certain medical and placement decisions, and (2) the inclusion within the orders of the appointment of guardians of the estate. We affirm the 10 guardianship orders naming OSG as limited guardian of the person and estate and dismiss the appeals involving the four respondents for whom family members were appointed as guardians.

I. Background

On March 20, 1992, OSG filed petitions for the appointment of temporary guardians and “For Appointment of Limited Guardians of the Person and Plenary Guardian of the Estate” of 14 allegedly disabled persons (hereinafter referred to as wards) (see 111. Rev. Stat. 1991, ch. IIOV2, par. lla — 2) who all then resided at Elmwood Manor, an unlicensed room and board facility in Woodford County scheduled to close on April 1, 1992. By the time of the first hearings, held on April 30 and May 4, 1992, all the wards had been transferred to other residential facilities and the temporary guardianship petitions became moot.

In its petitions for limited guardianship, OSG alleged that each respondent was a disabled person incapable of managing her own person and estate as shown by the physician’s report and sought the following: (1) an adjudication that respondent was a disabled person; (2) its appointment “as limited guardian of the person and plenary guardian of the estate, *** with the power to give medical consents [and] enter into contracts on behalf of the ward”; (3) the limited guardian of the person be granted the power to admit the ward to an appropriate residential facility without further court order; and (4) for such other relief as the court may deem just and equitable.

The only medical evidence presented during the hearings on the petitions concerning the wards’ disabilities was the reports of Dr. Ingalsbe (their physician at Elmwood Manor) and testimony by caseworkers and the managing administrator of OSG. The guardian ad litem (GAL) appointed by the court waived the appearance of each of the wards and Dr. Ingalsbe. Each of Dr. Ingalsbe’s reports listed the following for each ward: (1) a March 11, 1992, examination of the ward, (2) the medical or psychiatric diagnosis, (3) a recommended living arrangement providing 24-hour supervision for the ward, and (4) a recommended appointment of a limited guardian. None of Dr. Ingalsbe’s reports indicated the type or duration of medication prescribed for the wards. Instead, caseworkers from OSG testified to the type of psychotropic medication prescribed by Dr. Ingalsbe for 12 wards (two wards were not receiving psychotropic medication). OSG presented no evidence regarding the intended effect of the medication, how the medication would ameliorate the symptoms in each ward’s diagnosis, or any alternatives to continued medication.

On May 19, 1992, the trial court entered orders appointing OSG as limited guardian of the person and estate for 10 of the wards, and family members as guardians for the remaining four. All of the orders stated that no physical or “chemical restraint” was authorized beyond the expiration of a 30-day period following the last date psychotropic medicine had already been prescribed for the wards. The orders also denied the guardian the power to make the decision to forego life-sustaining treatment pursuant to the Health Care Surrogate Act (Surrogate Act) (Ill. Rev. Stat. 1991, ch. llO1^, par. 851 — 1 et seq.) and limited the guardian’s authority to make residential placement of the respondent to a shelter care or higher level of care facility.

OSG then filed a motion for reconsideration alleging that (1) the trial court failed to distinguish between “chemical restraint” and “psychotropic medication” and should have granted the guardians authority to consent to the administration of psychotropic medication; (2) the guardians should not have been denied the authority on behalf of the ward to forego life-sustaining treatment pursuant to the Surrogate Act; (3) the court erred in limiting the guardians’ authority to make residential placement decisions; and (4) the court erred in appointing guardians of the estate for each ward.

On July 7, 1992, the court entered subsequent guardianship orders for each of the 14 wards. Those orders contained the following provisions:

“That the Limited Guardian shall have the following powers or limitations upon powers:
1. To execute medical consents.
2. To enter into contracts.
3. To release necessary information.
4. To authorize direct payment of Social Security or other governmental benefit income to such care facilities as are hereunder authorized.
5. No physical or chemical restraint is authorized other than what was then in use and approved at the time of the hearing on the Petition.
6. To authorize emergency use of physical or chemical restraint for up to 30 days without further Court order on the condition that such restraint, of any length, is promptly submitted for Court approval.
7. No power is granted to make a decision to forgo life-sustaining treatment without further application and notice to the Court and the Guardian ad Litem. Such application will be scheduled and heard on an emergency basis if requested.
8. To make residential placement of the Respondent in a matter [sic] that maximizes the Respondent’s self-reliance.
_(Also applicable if checked) In view of the evidence regarding medication required for the treatment and/or restraint of the Respondent, residential placement shall consist of at least Shelter Care or a higher level of care.” (Emphasis in original.)

We note that in case Nos. 92 — P—35 and 92 — P—37, the wards were not receiving psychotropic medication, and residential placement was not limited to a shelter care or higher level of care. OSG appeals on behalf of all 14 wards, raising the same issues as in its motions for reconsideration relating to the limits imposed on the guardians’ decision-making authority and challenging the appointment of guardians of the estates.

II. Standing To Appeal

We initially note that OSG was appointed limited guardian of the person and estate in only 10 of the 14 cases which it purports to appeal. In the other four cases, the court appointed family members limited guardians of the person and estate (regarding respondents Evyonne Beenders (case No. 92 — P—25), Mary Cady (case No. 92 — P— 26), Sharlene Donaldson (case No. 92 — P—27), and Jeanette Hitchcock (case No. 92 — P—31)). We hold that OSG lacks standing to pursue an appeal in these four cases. The guardianship orders in those cases do not affect OSG. A party can only appeal from judgments or orders of the circuit court by which he has been aggrieved. (See Gordon v. Gordon (1955), 6 Ill. 2d 572, 574, 129 N.E.2d 706, 708; In re East Lake Fork Special Drainage District (1985), 137 Ill. App. 3d 473, 476, 484 N.E.2d 507, 509.) We therefore dismiss the appeal as to the guardianship orders naming family members as limited guardian of the person and estate.

III. Chemical Restraint Limitation

OSG initially argues that the trial court failed to distinguish "chemical restraint” from psychotropic medication and thereby erred in limiting OSG’s authority to consent to medical treatment for the wards utilizing psychotropic drugs as authorized by the wards’ physician. The court ordered the wards transferred to shelter-care facilities under the Nursing Home Care Act. (Ill. Rev. Stat. 1991, ch. Ill 1k, par. 4151 — 101 et seq.) Regulations promulgated pursuant to the Nursing Home Care Act prohibit the use of pharmaceuticals for the purpose of patient restraint:

“No chemical, medication or tranquilizer shall be employed by a facility as a restraint or confinement in lieu of or in addition to any physical restraint or confinement. Such chemicals, medications or tranquilizers may only be employed as part of a duly prescribed therapeutic medical treatment program authorized by the resident’s physician and documented in the resident’s clinical record.” 77 Ill. Adm. Code §330.4230(c) (1991).

A review of the record indicates that the trial court, in utilizing the term “chemical restraint” when referring to prescribed medication, was concerned with the lack of evidence that the psychotropic medication administered to the wards was necessary to therapeutically treat their psychiatric conditions, not merely to restrain their behavior. While caseworkers from OSG testified about the type and dosage of psychotropic drugs currently prescribed for the wards, the court found that the caseworkers were not qualified to establish whether the purpose was therapeutic treatment or personal restraint. The court did not hold that the mere use of such medication necessarily constitutes restraint. Rather, the court’s prohibition on “chemical restraint” here was based on the fact that no proper medical evidence was presented establishing the need and purpose for using psychotropic drugs with these wards.

Antipsychotic or psychotropic drugs are medications commonly used in treating mental disorders. (Washington v. Harper (1990), 494 U.S. 210, 214, 108 L. Ed. 2d 178, 193, 110 S. Ct. 1028, 1032.) “[T]he effect of these and similar drugs is to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational state of mind.” (Washington, 494 U.S. at 214, 108 L. Ed. 2d at 193, 110 S. Ct. at 1032.) However, these drugs can also have serious, even fatal side effects. (See Washington, 494 U.S. at 230, 108 L. Ed. 2d at 203, 110 S. Ct. at 1041.) Further, regulations applicable to psychotropic drug treatment under the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 911/2, par. 1 — 100 et seq.) provide that psychotropic drugs shall not be prescribed for periods exceeding 30 days. 59 Ill. Adm. Code §112.90(a)(5) (1991).

OSG argues that the trial court should not have limited its authority to consent to the administration of psychotropic medications because it is the role of the guardian, not the courts, to make decisions for a ward when her physician believes psychotropic medication is appropriate. In support of its position, OSG cites In re Ingersoll (1989), 188 Ill. App. 3d 364, 368, 544 N.E.2d 409, 412 (diagnoses and treatment of a mental health disorder is a highly specialized area of medicine better left to the experts who are the most knowledgeable sources of diagnoses, treatment and prognoses), and In re Orr (1988), 176 Ill. App. 3d 498, 509, 531 N.E.2d 64, 71-72 (the court exceeded the statutory authority of the Code by ordering the forced administration of psychotropic drugs to a person involuntarily committed to a mental health facility as the court’s place in the treatment process was to review the plan periodically and monitor the person’s progress when a guardian had not been appointed).

We find both Ingersoll and Orr distinguishable. In Ingersoll, the court focused on the sufficiency of the evidence to involuntarily admit the respondent to a mental health facility, not a guardian’s authority to consent to psychotropic drug treatment. Similarly, Orr did not involve consent by a guardian. Furthermore, Orr was decided prior to the recently enacted section 2 — 107.1 of the Code, which provides a method of circumventing the refusal of psychotropic medication by court petition, hearing, and order. Relevant provisions of that section provide the following:

“Notwithstanding the provisions of Section 2 — 107 of this Act [allowing patient refusal of services and medication], psychotropic medication may be administered to a recipient of services against his will under the standards and procedures of this Section:
(a) Any person 18 years of age or older, including any guardian, may petition the circuit court for an order authorizing the administration of psychotropic medication to a recipient of services.
(b) The court shall hold a hearing within 30 days of the filing of the petition.
(d) Psychotropic medication shall not be administered to the recipient unless it has been determined by clear and convincing evidence that all of the following factors are present:
(1) That the recipient has a serious mental illness or developmental disability.
(2) That because of said mental illness or developmental disability the recipient exhibits deterioration of his ability to function, suffering, or threatening or disruptive behavior.
(3) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in paragraph (2) of subsection (d) of this Section or the repeated episodic occurrence of these symptoms.
(4) That the benefits of the psychotropic medication will outweigh the harm.
(5) That the recipient lacks the capacity to make a reasoned decision about the medication.
(6) That other less restrictive services have been explored and found inappropriate.
(g) A guardian shall only be authorized to consent to the administration of psychotropic medication under the standards and procedures of this Section.” (Ill. Rev. Stat. 1991, ch. 911/2, par. 2 — 107.1.)

OSG argues that because none of the wards in these cases have refused psychotropic medication, section 2 — 107.1 of the Code does not limit its authority to consent to treatment of the wards with such medication.

In construing this provision we note that section 2 — 107.1 of the Code twice refers to guardian authorization of psychotropic medication. Section 2 — 107.1(a) of the Code provides that any person, “m- eluding any guardian” (emphasis added), may file a petition to authorize the administration of psychotropic medication when a patient refuses treatment. (Ill. Rev. Stat. 1991, ch. 911/2, par. 2 — 107.1(a).) Section 2 — 107.1(g) of the Code requires the guardian to use this procedure to obtain authorization to consent to the use of psychotropic drugs. At oral argument, counsel for OSG conceded that under its interpretation of the statute (namely, that it only applies when a ward refuses psychotropic drugs), section 2 — 107.1(g) becomes duplicative of section 2 — 107.1(a) and adds nothing to the guardian’s obligation to seek a court order for psychotropic treatment unless the ward refuses consent. We refuse to attribute such redundancy to the legislature.

Statutes should be construed as a whole, with reasonable meaning attributed to every word, phrase, or section such that none are rendered superfluous or meaningless. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661; In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297, 478 N.E.2d 326, 329.) In applying this rule to section 2 — 107.1, we conclude the plain meaning of section 2— 107.1(g) requires a petition, hearing, and court order before a guardian can authorize the administration of psychotropic medication — even if the ward does not refuse consent.

As applied to the facts of this case, OSG needed to present proof by clear and convincing evidence of all the factors specified in section 2 — 107.1(d) of the Code, regardless of any ward’s failure or inability to refuse psychotropic drug treatment. We do not view the court’s role under this statutory scheme as an unwarranted intrusion into the area of therapeutic medical decisions made for psychiatric treatment. Instead, the court merely oversees the guardian’s decision making to ensure that the guardian complies with the statutory protections of section 2 — 107.1 of the Code. In this case, the medical reports on each of the wards did not suffice as proof of all the factors required by section 2 — 107.1(d) of the Code. Because the trial court, therefore, had no basis on which to grant OSG authority to consent to psychotropic treatment under section 2 — 107.1 of the Code, it certainly did not err in limiting the use of chemical restraint without further proceedings.

We further note that section 11a — 9 of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1991, ch. llO1^, par. 11a — 9(a)) provides for the submission of a report when a petition for appointment of a guardian is filed. Such report must contain “(1) a description of the nature and type of the respondent’s disability; (2) evaluations of the respondent’s mental and physical condition ***; (3) an opinion as to whether guardianship is needed, the type and scope of the guardianship needed, and the reasons therefor; (4) a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefor; [and] (5) the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110*72, par. 11a — 9(a).) We construe section 11a — 9(aX4) of the Probate Act to encompass the limiting provisions of section 2 — 107.1 of the Code as an “appropriate” component of the report where a guardian seeks judicial consent for treatment with psychotropic drugs.

Given that the legislature has expressly addressed the conditions under which a guardian may consent to treatment of a disabled person with psychotropic medication and the absence in this case of proof by clear and convincing evidence of the factors specified in section 2— 107.1 of the Code, we cannot conclude the trial court’s decision in limiting the use of chemical restraint of the wards was manifestly erroneous. (See Orr, 176 Ill. App. 3d at 505, 531 N.E.2d at 69.) As these were OSG’s petitions, OSG bore the burden to present sufficient evidence that each respondent needed this medication, and it simply did not do so. The GAL’s waiver of the physician’s appearance did not fulfill the proof requirement or relieve OSG of its burden of proof. We conclude that the limitations stated in the court's July 1992 orders were within its discretion.

IV. Denial Of Power To Decide To Forego Life-sustaining Treatment

OSG next argues the trial court abused its discretion in denying the guardian the authority to forego life-sustaining treatment of the wards pursuant to provisions of the Surrogate Act. OSG claims that the court had a duty to not “unduly limit” the guardian’s exercise of judgment. OSG, citing provisions of the Illinois Power of Attorney Act (HI. Rev. Stat. 1991, ch. lHWa, par. 801 — 1 et seq.) and section 11a — 17(d) of the Probate Act (HI. Rev. Stat. 1991, ch. llOVa, par. 11a — 17(d)), contends that Hlinois law and public policy “clearly favor” decision making on matters of health care without judicial intervention.

Assuming arguendo that the public policy urged by OSG may be culled from those provisions, OSG does not allege that any of the wards have executed a durable power of attorney designating OSG her agent so as to invoke provisions of the Hlinois Power of Attorney Act, nor that section 11a — 17(d) of the Probate Act mandates that OSG be given the power to act as a surrogate solely by virtue of its status as guardian. Therefore, the grant of authority that OSG seeks must be found, if at all, within the provisions of the Surrogate Act.

Section 20 of the Surrogate Act provides that decisions to forego life-sustaining treatment by a surrogate decision maker are lawful without resort to the courts when a person does not possess “decisional capacity” and suffers from a “qualifying condition.” (HI. Rev. Stat. 1991, ch. lHP/a, par. 851 — 20.) Section 10 of the Surrogate Act defines “decisional capacity” as “the ability to understand and appreciate the nature and consequences of a decision regarding forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.” (111. Rev. Stat. 1991, ch. llO1^, par. 851 — 10.) Moreover, “a diagnosis of mental illness or mental retardation, of itself, is not a bar to a determination of decisional capacity,” and the attending and concurring physicians must make such determination to a reasonable degree of medical certainty and set forth the determination in the patient’s medical records. (HI. Rev. Stat. 1991, ch. lKPfe, par. 851 — 20(c).) Similarly, the attending and concurring physicians shall document the existence, cause, and nature of a “qualifying condition” in the patient’s medical records. HI. Rev. Stat. 1991, ch. llO1^, par. 851 — 20(e).

In this case, no evidence of record exists that any of the wards are without “decisional capacity” and require a surrogate decision maker, or that they exhibit a “qualifying condition.” Under such circumstances, each of the wards, not the guardian, retains the “fundamental right” to make decisions contemplated by the statute. (HI. Rev. Stat. 1991, ch. lHP/a, par. 851 — 5(a).) We therefore conclude that the trial court did not abuse its discretion in limiting the authority of OSG as guardian of the wards by denying it the power to act as decision maker under the Surrogate Act. We note, however, that the provision in the court’s July 1992 orders does not preclude OSG from initiating proceedings under the Surrogate Act, with notice and the presentation of proof.

V. Residential Placement Provision

OSG next argues that the trial court erred in ordering residential placement of the wards in shelter care or a higher level of care because the guardian should have flexibility in making placement decisions. Paragraph 8 of the trial court’s orders first directs the guardian to make residential placement in a manner that maximizes the respondent’s self-reliance, and, second, regarding all but two of the wards (Nos. 92 — P—35, 92 — P—37), imposes the limitation on placement where evidence existed of medication requirements. OSG contends that the court erred in considering only the type of medication the wards received, instead of the obligation to encourage the maximum self-reliance and independence of the wards by allowing the guardian the authority to select the least-restrictive environment appropriate. (See 111. Rev. Stat. 1991, ch. llOVa, par. 11a — 3(b).) OSG does not contend that the shelter-care facilities ordered by the court are not the least-restrictive environment appropriate for any of the wards, nor does it demonstrate how shelter-care placement will impact the wards’ self-reliance or independence.

The physician’s reports for each ward recommend 24-hour supervision for the monitoring of medications or control of individual manifestations of the reported illness or both. The managing administrator for OSG testified that shelter care would better serve each ward than would an unlicensed room and board, although proximity to family was also a placement consideration. During the hearing on the petitions and in response to OSG’s request, the court indicated that it would consider less restrictive living arrangements for each of the wards upon proof such placement would be beneficial. Other than noting that some of the wards had lived in a room and board setting for many years, OSG did not present such evidence.

Section 11a — 14.1 of the Probate Act gives the court authority to specify the conditions under which the guardian may place a ward in a residential facility. (111. Rev. Stat. 1991, ch. llOVa, par. 11a — 14.1.) Because the evidence does not demonstrate that the placement ordered by the court is not necessitated by the wards’ physical and mental limitations, we hold that the court did not abuse its discretion by limiting the placement options of the guardian.

VI. Appointment As Guardian Of Estates Of Respondent Wards

OSG last argues that the trial court should not have appointed OSG as guardian of the estate because none of the wards had any estate to administer except social security benefits. Upon review of the records before us, we wonder why, then, did OSG petition to become plenary guardian of estate of each ward, alleging that none could manage her estate as shown by the physician’s report appended to each petition? We note that the record contains no motion to strike that portion of the petitions which sought guardianship of the estate of each of the wards as required by section 11a — 8 of the Probate Act. (111. Rev. Stat. 1991, ch. llOVs, par. 11a — 8.) The court indicated that it included an order for a guardian of the estate as well as a guardian of the person to protect any assets which any ward might acquire in the future. The court noted the guardian would incur a minimal additional burden when filing its report on placement location because the guardian would also need to include a confirmation that all social security funds had been used for the ward’s upkeep or personal allowance.

On appeal, OSG now argues that because it or family members serving as guardian of the person or a representative payee for social security benefits can simply “assist” each ward with finances, the trial court’s appointment of a guardian of the estate is against the manifest weight of the evidence. In contesting its appointment as guardian of the estates, OSG cites several cases in which proof of the incompetency of a person for whom guardianship was sought was at issue on appeal. (See In re Estate of Mackey (1980), 85 Ill. App. 3d 235, 406 N.E.2d 226; In re Estate of Barr (1986), 142 Ill. App. 3d 428, 491 N.E.2d 1241; In re Estate of McPeak (1977), 53 Ill. App. 3d 133, 368 N.E.2d 957.) Although OSG asserts that the trial court did not inquire into whether any of the wards would benefit by appointment of a guardian of the estate, the physician reports indicated that none of the wards could make her own financial decisions. Because the cases cited by OSG all involve an initial determination of incompetency, which is not contested here, they do not pertain to whether the circuit court abused its discretion in appointing a guardian of the estate when no current estate except social security benefits exists.

OSG next points out that under the circuit court’s reasoning, every disabled person would need a guardian of both the person and the estate based solely on a speculative future estate generated from an unknown source, even though the Probate Act clearly envisions the appointment of a guardian of the person without appointment of a guardian of the estate (see 111. Rev. Stat. 1991, ch. llO1^, pars. 11a— 3(a), 11a — 12(b)).

The guardianship orders in this case state the following: “The Guardian shall make a report to the court as to the respondent’s person and estate every three years *** confirming that all social security or other governmental income sources have been paid to a placement facility authorized by this Order and/or for personal allowance. An itemized account shall be made as to all other receipts and disbursements.”

In view of the court’s finding of a need to collect and account for funds which might in the future flow to a ward incapable of managing her financial affairs, as well as to ensure that social security benefits are applied to the placement facility in which the ward resides, we cannot conclude the court abused its discretion and will not disturb its finding or substitute our opinion. (See In re Estate of Galvin (1983), 112 Ill. App. 3d 677, 682, 445 N.E.2d 1223, 1226.) If OSG is going to handle the money for the wards, it was absolutely appropriate to order it to provide an accounting as a corollary responsibility. See Ill. Rev. Stat. 1991, ch. llOVa, par. 24 — 11(a).

VII. Conclusion

For the reasons stated, we affirm the 10 guardianship orders naming OSG guardian of the person and estate of the wards.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


text:
    RANDY DICKENS, Plaintiff-Appellant, v. QUINCY COLLEGE CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0972
    Argued May 19, 1993.
    Opinion filed June 10, 1993.

      Andrew C. Schnack III (argued), of Schnack, Schnack & Cashman, of Quincy, for appellant.
    R.R O’Connell (argued), of Richard P. O’Connell, Ltd., of Quincy, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by plaintiff Randy Dickens from an order of the circuit court of Adams County dismissing his complaint against defendant Quincy College Corporation. Plaintiff’s complaint sought damages for breach of an employment contract as football coach.

On appeal, plaintiff raises two issues: (1) whether the trial court misapplied section 1 of the Frauds Act, commonly known as the statute of frauds (111. Rev. Stat. 1991, ch. 59, par. 1), to the oral extension of the parties’ written contract because the extension was supported and ratified by sufficient memoranda; and (2) whether, as a matter of law, part performance or promissory estoppel created an exception to the statute of frauds applicable to the case at bar. We affirm.

According to plaintiff’s amended complaint, on April 23, 1986, the parties entered into a written employment contract. Plaintiff was to be paid $30,000 per year as a full-time employee, and the duration of the contract was from June 1, 1986, to June 1, 1989. It was alleged that plaintiff at all times duly performed all conditions and terms of the contract and faithfully, fully, and properly discharged the duties of employment. During the period from June 1, 1986, to June 1, 1989, the contract was modified in that plaintiff was given annual increases in salary. When the written contract expired, the parties entered into an oral contract “with written memorandum” for employment for the period of September 1, 1989, to September 1, 1990. During October 1989, plaintiff was orally advised by James Toal, defendant’s president, that the contract between the parties would be extended for two years commencing September 1, 1990, under the same terms and conditions as his previous contract and at a salary of $37,692 per year. It was further alleged that, at that same time and place, plaintiff accepted Toal’s offer. Plaintiff continued as defendant’s head football coach until March 25, 1991, when he was terminated from defendant’s employ effective June 1, 1991.

In count I of plaintiff’s amended complaint, this termination of employment is alleged to be a breach of contract which was the direct and proximate cause of plaintiff's loss of income and benefits and the expending of considerable sums of money seeking other employment. Count II of the amended complaint further alleged as follows:

“11. In reliance upon the representations of the Defendant, Plaintiff performed all acts and duties assigned to him as football coach and employee of Defendant.
12. That the Defendant accepted the services of the Plaintiff up to and through March 25,1991.
13. That the Defendant advertised and made known to the general public and potential students the additional Contract extensions of Plaintiff and used said extensions to its own benefit.
14. The Plaintiff gave up various other opportunities for advancement in reliance upon the promises of employment made by the Defendant.
15. That Plaintiff and his family, to whom he has both a moral and legal obligation to support, relied upon the promises made by the Defendant.
16. That Plaintiff performed all the terms and conditions of the Contract extension as required, and the Defendant up to March 25,1991, accepted these benefits.”

The ad damnum to both counts sought money damages.

In response, and pursuant to section 2 — 619(a)(7) of the Illinois Code of Civil Procedure (Code) (111. Rev. Stat. 1991, ch. 110, par. 2— 619(aX7)), defendant filed a motion to dismiss asserting that plaintiff’s claim was unenforceable trader the statute of frauds. No affidavits were filed with the motion to dismiss. After hearing arguments of counsel, the trial court granted the motion to dismiss.

Subsequently, plaintiff filed a timely motion for reconsideration. In support of the motion, plaintiff filed a memorandum to which was attached a photocopy of an April 9, 1990, letter from Toal to plaintiff informing plaintiff his salary for 1990-91 would be $37,692, a 5.5% increase over his closing 1989-90 salary. Also attached as an exhibit was a photocopy of a newspaper article reporting that defendant had announced it had “rewarded” plaintiff with a two-year contract extension. However, the record does not disclose the date of publication of the newspaper article. No affidavits accompanied these exhibits. The motion for reconsideration was denied.

Section 2 — 619(a)(7) of the Code allows for involuntary dismissal if the claim asserted is unenforceable by reason of the statute of frauds. If the grounds for seeking the dismissal of a complaint do not appear on the face of the complaint, the motion is to be supported by affidavit. (111. Rev. Stat. 1991, ch. 110, par. 2 — 619(a).) The party opposing the motion to dismiss may file counteraffidavits. 111. Rev. Stat. 1991, ch. 110, par. 2 — 619(c); Michel v. Gard (1989), 181 Ill. App. 3d 630, 635-36, 536 N.E.2d 1375,1379.

Plaintiff’s first argument is that the statute of frauds does not apply to this casé because it involves the oral extension of a prior written contract. As pertinent to the case at bar, section 1 of the statute of frauds provides:

“[N]o action shall be brought *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (111. Rev. Stat. 1991, ch. 59, par. 1.)

Plaintiff’s argument is illogical. Plaintiff concedes the underlying purpose of the statute of frauds is to prevent fraud. The statute of frauds applies to oral employment contracts which cannot be performed within one year. (See Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill. 2d 507, 509-11, 202 N.E.2d 516, 518-19; Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 254, 529 N.E.2d 281, 286.) Plaintiff cites no case which exempts oral extensions of written contracts which extensions cannot be performed within one year.

The written contract in this case expired June 1, 1989. The complaint alleges an oral contract extension from September 1, 1989, to September 1, 1990. Apparently, this extended contract was fully performed because plaintiff was not fired until March 1991, effective June 1, 1991. Therefore, the contract which plaintiff seeks to enforce in this case is the oral two-year extension of the prior written and oral contracts. According to the allegations of the amended complaint, the two-year extension, which was to begin September 1, 1990, was agreed to by the parties in October 1989. At the time of the alleged agreement, the two-year extension would not even begin for almost 11 months and obviously could not be performed within one year from the date of the agreement. The statute of frauds applies to this case.

Next, plaintiff argues the dismissal was premature because, through discovery, he may find sufficient memoranda to satisfy the statute of frauds. This is speculative. Plaintiff submitted no affidavits which indicated that such documents exist. In the event material facts are not obtainable, the reason therefor must also be set out in an affidavit. (134 Ill. 2d R. 191(b).) Plaintiff did not submit any affidavits to explain why he could not obtain sufficient material to oppose defendant’s motion to dismiss prior to conducting discovery.

Plaintiff also did not submit an affidavit which indicated the exhibits attached to the memorandum in support of the motion for reconsideration were true and correct copies of the documents. As Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 396-97, 256 N.E.2d 44, 47, pointed out, letters between parties may not constitute sufficient evidence of an agreement so as to comply with the statute of frauds. Here, Toals’ April 9, 1990, letter stated what plaintiff’s salary would be for 1990-91, but it did not otherwise state any terms of the contract, although the original written contract was very simple in form. Of significance is the absence of any indication of a two-year extension of the prior contract, or any other period to be covered by the alleged agreement beyond the 1990-91 school year. Moreover, plaintiff admitted at oral argument before this court that he was paid through the end of the 1990-91 school year and there had been full compliance with the terms of the letter.

Obviously, there is an even greater problem with the newspaper article as it was prepared and reported by someone other than the parties to the litigation. The article is nothing more than a third person’s written notation of an oral statement, and is not the parties’ written memorialization of an agreement. Therefore, even assuming the newspaper reporter submitted an affidavit indicating the article accurately reflected what was said, that would be merely evidence of an oral agreement, unenforceable under the statute of frauds.

In order to satisfy the statute of frauds, the writing need not be on a single piece of paper. Nevertheless, all the essential terms must be in writing, and there must be an express reference to the other writings or such a connection between the documents, physical or otherwise, as to demonstrate that they relate to the same contract. (Chapman v. Freeport Securities Co. (1988), 174 Ill. App. 3d 847, 854, 529 N.E.2d 6, 10; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 303-04, 390 N.E.2d 428, 434; Bower v. Jones (7th Cir. 1992), 978 F.2d 1004, 1009.) Not all of the documents need to be signed, as long as those that are signed were signed with the full understanding of the connections to the contract. (Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1029, 560 N.E.2d 942, 946.) These facts must be pleaded or reasonably inferable from facts which have been pleaded. See Prodromos, 202 Ill. App. 3d at 1030, 560 N.E.2d at 947.

In the case at bar, the only written document pleaded was the original written contract. There are no allegations of the existence of any other documents in the complaint which refer to an extended contract of employment. The documents attached to plaintiff’s memorandum in support of the motion for reconsideration are (1) not supported by affidavit; (2) the newspaper article is not a document generated by or signed by a representative of defendant; and (3) the letter from Toal does not refer to a two-year extension of the employment contract and there are no well-pleaded facts which would suggest that Toal, in signing the letter, understood he was agreeing to a two-year extension of plaintiff’s contract of employment.

Next, we consider whether the amended complaint alleged facts which invoke doctrines which bar the application of the statute of frauds, i.e., partial performance and promissory estoppel. We consider the contention relating to partial performance first. Plaintiff’s heavy reliance on Vail v. Board of Education of Paris Union School District No. 95 (7th Cir. 1983), 706 F.2d 1435, is misplaced. Vail involved a section 1983 civil rights action (see 42 U.S.C. §1983 (1982)), and the question on appeal was whether plaintiff had a property right protected by due process. The court found a protected property right, and rejected defendant’s contentions that the contract was unenforceable for a number of reasons, including the statute of frauds. Specifically referring to the statute of frauds argument, the court noted that the statute of frauds is no bar to enforcement of a contract when there has been partial performance. The court then went on to state that, even assuming the contract was unenforceable under State law, that fact did not preclude the establishment of a protected property interest. Vail, 706 F.2d at 1437-40.

In Culbertson v. Carruthers (1978), 66 Ill. App. 3d 47, 52-53, 383 N.E.2d 618, 623, the court stated:

“Part performance which will take a parol contract out of the statute of fraud [sic] is rooted in the equitable concept of reliance. When one party to an oral contract has so far performed his part of the agreement that to allow the other party to invoke the statute of frauds would perpetrate a fraud upon him, chancery will intervene to enforce the contract. However, it is clear that one of the prerequisites in such a case is that the performance must be in reasonable reliance upon the contract. (Brunette v. Vulcan Materials Co., 119 Ill. App. 2d 390, 256 N.E.2d 44.)”
“ ‘The equitable doctrine [of part performance] is not made available in an action at law merely by reason of the facts that a statute permits both legal and equitable causes of action to be united in one complaint or that in an action at law plaintiff may have the benefit of the doctrine of estoppel[.]’ In the instant case the plaintiff had an adequate remedy at law for damages against the bank and, for that reason, would not have been entitled to seek equitable relief. The doctrine of part performance would have had no application to an action at law for damages and, hence, could not have operated to take the alleged oral agreement out of the Statute of Frauds.” (Gibbons v. Stillwell (1986), 149 Ill. App. 3d 411, 416-17, 500 N.E.2d 965, 969, quoting 37 C.J.S. Statute of Frauds §249, at 757 (1943).)

In the case at bar, the fact plaintiff sought money damages in both counts precluded him from raising the partial performance exception to the statute of frauds. See Cohn v. Checker Motors Corp. (1992), 233 Ill. App. 3d 839, 845, 599 N.E.2d 1112, 1117; Taylor v. Canteen Corp. (C.D. Ill. 1992), 789 F. Supp. 279.

The plaintiff also contends the defendant is estopped from denying responsibility for the alleged contract. Equitable estoppel requires a misrepresentation by word or conduct about material facts or the concealment of material facts. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 776-77, 433 N.E.2d 315, 324.) In order for plaintiff to avoid the application of the statute of frauds, plaintiff must plead and prove a misrepresentation on the part of defendant. This plaintiff has not done. Furthermore, at oral argument before this court, plaintiff admitted he was not raising equitable estoppel as an exception to the statute of frauds in this case.

The next question which must be addressed is whether plaintiff can avoid the application of the statute of frauds on the theory of promissory estoppel. Generally, promissory estoppel is used to imply a contract where none exists. The facts which give rise to promissory estoppel are (1) a promise, (2) reasonable and justifiable reliance on the promise by the promisee, (3) the promise was such that the promisor should have reasonably expected and foreseen it would induce action or forbearance of a definite and substantial character on the part of the promisee, and (4) the promisee relied on the promise to his detriment or injury. Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 309-10, 565 N.E.2d 990, 1004; Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d 520, 527, 459 N.E.2d 1038, 1045; Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co. (1980), 90 Ill. App. 3d 768, 770, 413 N.E.2d 209, 211.

There is a difference between equitable estoppel, which is an exception to the statute of frauds, and promissory estoppel, which is not. (See Cohn, 233 Ill. App. 3d at 845-46, 599 N.E.2d at 1117-18.) If promissory estoppel were an exception to the statute of frauds, contracts could be implied and the statute of frauds easily avoided.

As noted in Taylor (789 F. Supp. at 285), a too liberal application of promissory estoppel to employment situations can cause a significant impact on the concept of employment at will. In Libby-Broadway Drive-In, Inc. v. McDonald’s System, Inc. (1979), 72 Ill. App. 3d 806, 810-11, 391 N.E.2d 1, 4, the court declined to apply promissory estoppel as an exception to the statute of frauds. The court stated that the moral wrong of refusing to be bound by an agreement which is not in compliance with the statute of frauds does not warrant the application of the doctrine of promissory estoppel since the breach of a promise which is not regarded as binding under the law is not fraud. Quoted in Libby-Broadway Drive-In is the appellate court opinion in Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 19, 195 N.E.2d 250, 254, aff'd (1964), 31 Ill. 2d 507, 202 N.E.2d 576, which concluded that allowing an action to be based on an inference of a fraudulent promise or misrepresentation simply because the oral promise or agreement was invalid by reason of the statute of frauds would completely repeal the statute. It is logical that, if the statute of frauds bars enforcement of an oral contract which cannot be performed within one year, it also bars the courts from using promissory estoppel to imply the existence of a contract which cannot be performed within one year.

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

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.