author: PRESIDING JUSTICE RARICK JUSTICE GOLDENHERSH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERY HANKS, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0090
    Opinion filed March 13, 1991.

      GOLDENHERSH, J., concurring in part and dissenting in part.
    Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
    Rob Roth, State’s Attorney, of Albion (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court;

Defendant, Jeffery Hanks, was charged in the circuit court of Edwards County with theft over $300. Believing that a witness for the State would be unavailable to testify at trial, defendant made a pretrial request to depose Gary Thompson, who was living in Georgia, but this request was denied. After a trial by jury, Hanks was found guilty and sentenced to three years’ imprisonment.

At trial, Nadine Wolfe testified that she owned and operated Sabre Construction Company. On the morning of March 19, 1987, she discovered that the company office had been burglarized and numerous items had been stolen, including 40 $1,000 United States savings bonds.

Gary Thompson, Hanks’ brother-in-law, who was serving a sentence in the Atlanta penitentiary at the time of trial, testified that around the first of April, 1987, he saw Hanks and John Banks at his house in Florida. They showed Thompson a group of savings bonds and told him they had obtained them from someone who had been arrested for burglary. They gave the bonds to Thompson to sell, agreeing to split the proceeds. When Hanks and Banks called Thompson sometime later to inquire about the bonds, Thompson told them he had been unable to sell them so he had burned them.

Paul Menninger, a Secret Service agent, testified that he interviewed Hanks and Banks, that they admitted possession of the bonds, and that they had given the bonds to Thompson.

John Banks testified that he found the bonds in a bag by the front gate of his trailer. He did not look to see what was in the bag, but simply tossed it into his car. Later, while in Florida, Thompson discovered the bonds and suggested selling them. Banks replied that he wanted nothing to do with them, and Thompson allegedly replied, “You’re right. I need to burn them.” After returning to Illinois and learning of the burglary, Banks called Thompson to get the bonds back, but Thompson told him that he had burned them.

Hanks’ testimony corroborated Banks’ testimony.

During a break in the trial, Thompson told defense counsel that he had attempted to sell the bonds to Federal agents and they had audiotaped his conversation with them. Defense counsel requested that these tapes be made available as they might contain information with which he could impeach Thompson, but the court responded that the prosecution was not responsible for providing these tapes because the prosecution had not been told of their existence, and that defendant failed to show how the tapes would be beneficial to him.

The jury began deliberations at approximately 11 a.m. and continued throughout the day. At 9 p.m. the court gave the jury a Prim instruction. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The foreman responded that the jury was deadlocked on one issue, would like to go home, and start over the next day. The court replied:

“Why don’t you go back in the jury room, have your sandwiches, refresh yourselves a bit, and try to deliberate a little further, and if you feel that you’re unable to reach a decision yet tonight, then let me know with a note under the door, or within a reasonable time I’ll be getting back with you and ask where you’re standing at that point.”

At 10 p.m., the court inquired if a verdict was possible, and the foreman stated that they were going back over the facts and there was a “slight possibility” of a verdict that night. The court then stated:

“Well, perhaps I should advise you of something. If we break for the evening, there is a rule in criminal cases, such as this case, that the jury has to be kept, as I say, sequestered, during the night, which means that we would have to probably house you at a hotel. Hopefully, they would still have room at Windsor Oaks, in Grayville. We would have to transport you there and bring you back tomorrow to resume your deliberations, if you wanted to break before reaching a verdict. So, with that understanding, would you like to continue to work yet tonight, or do you think that you’ve worked as much as you can work and want to go to a hotel and come back in the morning?”

The foreman responded that the jury would continue to deliberate, and the court told the foreman that if he felt the jury could still reach a verdict that night, it could continue to deliberate. A guilty verdict was returned 45 minutes later.

On appeal, Hanks argues that he was denied a fair trial as a result of the trial court’s refusal to order the disclosure of the tape of Thompson’s conversations with the Secret Service agents. The trial court ruled that the prosecutor had complied with Supreme Court Rules 412(a)(i) and (g) by using due diligence in attempting to obtain these statements by requesting the release of the reports of the investigating officers. The court also ruled that the materials in the hands of the Secret Service should have been provided pursuant to the requests made by the prosecutor and that the defendant had failed to show why the statements would be advantageous to the defense.

Under Supreme Court Rule 412(f), the State has a duty to “ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.” (134 Ill. 2d R. 412(f).) The rule does not specify what “investigative personnel” it covers or what persons whose possession and control of material and information must be imputed to the State.

In People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38, our supreme court held that Alabama law enforcement officials were not agents of the State whose possession and control of information could be imputed to the prosecutor’s office. The court found support for this conclusion in Rule 412(g), which provides that the trial court shall mandate that discoverable material be made available to the defense by subpoena or court order where the State’s diligent good-faith efforts to procure such information had been unsuccessful and “such material or other governmental personnel are subject to the jurisdiction of the court.” Because Alabama law enforcement officials were not subject to the jurisdiction of Illinois courts, the court reasoned, the State had no obligation under Rule 412 to procure the material in question.

Unlike Thompkins, we are not dealing with law enforcement officials in a sister jurisdiction, who are clearly not subject to the jurisdiction of Illinois courts, but with a Federal agency that operates nationwide. Defendant cites several cases which he contends hold that Federal agencies are an arm of the State for purposes of Rule 412. In People v. Sumner (1966), 72 Ill. App. 2d 258, 218 N.E.2d 236, the Federal Bureau of Investigation interviewed two prosecution witnesses. Despite a request by the defendant, the State’s Attorney refused to disclose whether he had copies of the reports and no effort was made to obtain them from the Bureau. The cause was remanded to the trial court with directions to conduct an inquiry into the existence, availability, proper producibility, and relevancy of the statements in question. The court did not address the applicability of Rule 412 to Federal agencies. In People v. Rose (1978), 65 Ill. App. 3d 264, 381 N.E.2d 1215, the trial court refused to require the State to disclose to the defendant statements given to the FBI by two accomplice witnesses. On appeal, the court remanded the cause and instructed the trial court to conduct a hearing to determine whether the statements in question were in existence and subject to production. Again, the court did not specifically determine whether Rule 412 applied to the FBI. Further, in contrast to these cases, the State’s Attorney in the present case clearly made an effort to obtain the material in the possession of the Secret Service. He contacted the local agent in Mt. Vernon and requested “copies of any and all reports that you have regarding this matter,” as well as a list of all witnesses and agents. When the agent failed to respond, the State’s Attorney contacted the agent’s superior in Springfield. While he did not specifically ask for “tapes,” there is no indication that he knew of the tape’s existence. He also issued a subpoena duces tecum for “all reports and original bonds.” This could hardly be considered less than due diligence.

Hanks argues that Federal agents in both Florida and Georgia are subject to subpoena power of Illinois courts by virtue of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 156 — 1 et seq.). Section 3 of the Act provides that if a person in another State which has adopted the Act is a material witness in a prosecution pending in a court in this State, a judge of such court may issue a certificate under the seal of the court stating such and specifying the number of days the witness will be required. This certificate is then presented to a judge at a court of record in the county where the witness is found. The Act has been adopted by every State in the union. Under Hanks’ argument, the State would be responsible pursuant to Rule 412(f) for maintaining a flow of information between the prosecutor’s office and all Federal investigative agencies nationwide. We find it difficult to believe such was the legislature’s intent in adopting the Act, and Hanks cites no authority otherwise. Under such interpretation, the Alabama law enforcement officials in Thompkins would have been agents of the State. We hold that the Act does not operate to extend to the State’s obligations under Rule 412.

Given our supreme court’s rationale in Thompkins, we are persuaded that the State had no duty under Rule 412 to procure the tape of Thompson’s conversations with the Secret Service agents. The tape was in the possession of agents in either Florida or Georgia (the record is not clear on this), clearly beyond the jurisdiction of Illinois courts. Whether Rule 412 applies to material in the possession of Federal agencies within Illinois is not before us and therefore we need not address that issue.

Hanks also argues that the jury’s verdict was the result of fatigue brought on by the long hours of deliberation and the trial court’s indication to the jury that it would be sequestered for the night if a verdict could not be reached. The length of time a jury is permitted to deliberate is left to the discretion of the trial court. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170.) Lengthy deliberations, far from indicating that the jury was coerced, indicate that careful consideration was given to all the evidence. (People v. Munguia (1975), 33 Ill. App. 3d 880, 338 N.E.2d 574.) Regarding the court’s reference to sequestration, it has been held that merely informing a jury that it might be sequestered is not per se coercive. (People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913, appeal denied (1983), 96 Ill. 2d 542.) Extremely brief deliberations after a reference to sequestration, however, lead to an inference that the reference to sequestration coerced the jury into rendering a verdict. (People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868.) In determining whether a reference to sequestration is coercive, the totality of the circumstances must be considered to determine whether the language used actually interfered with the jury’s deliberations or coerced a verdict to the prejudice of the defendant. (People v. Thomas (1989), 185 Ill. App. 3d 1050, 542 N.E.2d 100.) Based upon a careful review of the dialog between the court and the foreman, and the actual language the court employed, we find that the instruction to continue deliberations and reference to sequestration was simple, neutral and not coercive. (People v. Campbell (1987), 163 Ill. App. 3d 1023, 516 N.E.2d 1364; cf. People v. Ferro (1990), 195 Ill. App. 3d 282, 551 N.E.2d 1378.) Likewise, the length of time the jury deliberated after the reference to sequestration demonstrates that such reference did

not influence the verdict. In Thomas, the jury returned a guilty verdict 35 minutes after the court’s reference to sequestration. The court held that 35 minutes was a sufficient time for the jury to reevaluate its views without being influenced by the court’s comments. The defendant relies on People v. Friedman (1986), 144 Ill. App. 3d 895, 494 N.E.2d 760, and People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, both of which are readily distinguishable. In Branch, the court singled out, in the presence of his fellow jurors, the one juror who would not vote guilty and then gave an incomplete Prim instruction. A guilty verdict was returned 10 minutes later. In Friedman, the verdict was returned five minutes after the court indicated that the jury would be sequestered. In both cases, the reference to sequestration clearly influenced the verdict. We believe the jurors in the present case had sufficient time to reevaluate their views and were not influenced by the court’s reference to sequestration.

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

Affirmed.

HARRISON, J., concurs.

JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I agree with my colleagues that the trial court in this instance properly handled the question of the jury deliberation and its resultant verdict. I also agree with the majority’s determination on the questions of discovery, or lack of it, and the trial court’s conclusion that the prosecutor had complied with Supreme Court Rule 412 by using due diligence in attempting to obtain these statements. The actions of the State’s Attorney in attempting to obtain this discovery, in my opinion, were fully in compliance with the letter and the spirit of Rule 412, and are commendable and should be used as an example to other similarly placed State’s Attorneys. I also agree with the majority in its construction of People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 48.

This leaves us with a problem, however, which is basic to our system of justice. Given the State’s attempt to comply with the applicable discovery rules and the Federal government’s refusal to cooperate with our State’s authorities in discharging their discovery duties, has defendant been deprived of a basic fundamental right, the right to a fair trial? On the basis of the record before us, this court is not able to say.

An analogous situation occurred in People v. Sumner (1966), 72 Ill. App. 2d 258, 218 N.E.2d 236. The court in Sumner noted the crucial part in a trial that able cross-examination played, and quoted Mr. Justice Brennan in Jencks v. United States (1957), 353 U.S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007, as follows:

“Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.” (353 U.S. at 667, 1 L. Ed. 2d at 1111, 77 S. Ct. at 1013.)

In Sumner, the cause was remanded to the trial court with directions to conduct an inquiry as noted in the majority opinion, into the “existence, availability, proper producibility, and relevancy of the statements in question.”

The attempt by the State’s Attorney to comply with our discovery rules is exemplary. The trial court correctly noted the State’s attempted compliance with discovery and in all other respects handled this case in a commendable manner. We should not stop our inquiry short, however, and must consider the vital question whether a Federal agency’s indifference to a valid request for discoverable materials has resulted in this defendant being denied a basic fundamental right, his right to a fair trial. Such a basic constitutional right should not be held hostage to the indifference of a governmental agency over which this State has no control. Such a cavalier attitude toward fundamental rights is unbecoming to any governmental agency, and we should not compound the effects of such indifference by refusing to deal with its consequences.

I would therefore remand this cause to the trial court with specific directions to conduct an inquiry as to the effect, if any, of the refusal of this Federal agency to cooperate in the reasonable requests of the State’s Attorney and forward this discoverable material on defendant’s right to a fair trial.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. DURBIN, a/k/a Tony Durbin, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0811
    Opinion filed March 13, 1991.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Michael Kiley, State’s Attorney, of Shelbyville (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, James Durbin, was charged in the circuit court of Shelby County with unlawful delivery of a controlled substance. He pleaded guilty and was sentenced to three years’ imprisonment and ordered to pay restitution of $440 to the Village of Moweaqua and $140 to the Illinois State Police. The $440 was expended by the Village of Moweaqua to fund the confidential source who made several controlled buys from Durbin in order to gain his trust and confidence. The $140, provided by the State Police, was used to make the buy which resulted in the present charge. Additionally, $60 Durbin had in his possession when his home was searched was ordered forfeited to the State. On appeal, Durbin argues that the trial court erred in ordering him to make restitution to the Illinois State Police and the Village of Moweaqua, and in ordering the $60 forfeited to the State. Specifically, he maintains that the Village of Moweaqua and the Illinois State Police were not “victims” within the meaning of the restitution statute and that property forfeiture is not a permissible sentencing alternative.

Initially we note, as the State points out, that Durbin did not advance either of these arguments in his Rule 604(d) motion to withdraw his guilty plea. Rule 604(d) provides that “any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (107 Ill. 2d R. 604(d).) Our supreme court stated emphatically that rules such as Rule 604(d) “are in fact rules of procedure and not suggestions” and must be adhered to. {People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 220-21.) In Wilk, our supreme court indicated that a Rule 604(d) motion to withdraw a guilty plea was not necessary where a defendant was appealing only his sentence. {Wilk, 124 Ill. 2d at 109-10, 529 N.E.2d at 224.) In People v. Favelli (1988), 176 Ill. App. 3d 618, 623, 531 N.E.2d 386, 389, the Second District of the Appellate Court held that while a Rule 604(d) motion to withdraw a guilty plea was not a prerequisite for an appeal which only challenged the sentence, the language of Rule 604(d) nevertheless required such a defendant to file a motion to reconsider the sentence as a condition precedent to an appeal. The Favelli court noted that the defendants in Wilk had filed motions to reconsider prior to seeking an appeal, thus preserving the purpose and spirit of Rule 604(d) by giving the trial court an opportunity to correct any error in sentencing. Favelli was followed in the subsequent cases of People v. Carroll (1990), 195 Ill. App. 3d 445, 552 N.E.2d 361, and People v. Fern (1990), 199 Ill. App. 3d 983, 557 N.E.2d 1011; but see People v. Smith (1990), 198 Ill. App. 3d 695, 556 N.E.2d 307. We believe the Favelli court’s interpretation of Rule 604(d) in light of Wilk to be correct. Durbin’s argument regarding the court’s order of restitution was not advanced in his motion to reconsider his sentence. Pursuant to Wilk and Favelli, it is therefore waived.

Regarding the argument that the trial court erred in ordering that the $60 seized by the police during the search of his home be forfeited to the State, Durbin contends that property forfeiture is not a permissible sentencing alternative under section 5 — 5—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3). The State argues that Durbin also failed to advance this argument in his motion to reconsider his sentence, but a void judgment may be attacked at any time. (People v. Sale (1990), 195 Ill. App. 3d 160, 551 N.E.2d 1359.) Durbin acknowledges that the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56V2, par. 701 et seq.) provides that forfeiture proceedings may be instituted against the property of persons convicted of distributing drugs, but maintains that such forfeiture proceedings are.a separate process of law and not part of the criminal proceeding. We agree. Section 12 of the Cannabis Control Act requires:

“(b) Property subject to forfeiture under this Act may be seized by the Director or any peace officer upon process issued by any court having jurisdiction over the property. Seizure by the Director or any peace officer without process may be made:

(1) If the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal proceeding or in an injunction or forfeiture proceeding based upon this Act;

(2) If there is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(3) In accordance with the Code of Criminal Procedure of 1963, as amended.

(c) In the event of seizure pursuant to subsection (b), proceedings under subsection (d) shall be instituted promptly.

(d) Property taken or detained under this Section shall not be subject to replevin, but is deemed to be in the custody of the Director subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings.” (Ill. Rev. Stat. 1989, ch. 561/2, par. 712.)

The statute clearly implies that a separate proceeding be instituted. (See People v. Apartment #16 in the Two-Story Brick Apartment Building Located at 188# Juniper, Rantoul (1977), 52 Ill. App. 3d 912, 916, 368 N.E.2d 787, 790.) Other cases, while not explicitly stating that separate proceedings are required, seem to implicitly acknowledge as much. (See People v. Ziomek (1989), 179 Ill. App. 3d 303, 534 N.E.2d 5308; In re Fifty-three Thousand Two Hundred Sixty-Three Dollars (1987), 159 Ill. App. 3d 114, 512 N.E.2d 740; People v. Snyder (1977), 52 Ill. App. 3d 612, 367 N.E.2d 752 (forfeiture actions are in rem proceedings against property and are civil in nature).) The State cites People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938, for the proposition that separate forfeiture proceedings were unnecessary because the property in question was seized pursuant to a search warrant, i.e., it was not seized “without process.” In Anderson, the court stated that the statutory language “shall be instituted promptly” applies only to property seized “without process.” (Anderson, 74 Ill. App. 3d at 371, 392 N.E.2d at 945.) The language in section (c), however, clearly applies to property seized both with or without process. To the extent Anderson indicates otherwise, we decline to follow it. Further, even in Anderson, the State did in fact file a motion for forfeiture. That portion of the trial court’s judgment ordering the forfeiture is reversed and remanded with directions that it be vacated.

The judgment of the circuit court of Shelby County is affirmed in part, and reversed and remanded with directions in part.

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

LEWIS and WELCH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY L. MEADOR, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0327
    Opinion filed March 14, 1991.
    R. Edward Veltman, Jr., of Crain, Cooksey & Veltman, Ltd., of Centraba, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Gary L. Meador, was charged with two counts of aggravated criminal sexual abuse and one count of aggravated criminal sexual assault. After a jury trial in the circuit court of Fayette County, defendant was found guilty of one count of aggravated criminal sexual abuse. The trial court granted a directed verdict on the other count of aggravated criminal sexual abuse, and the jury found defendant not guilty of the charge of aggravated criminal sexual assault. Defendant was sentenced to four years’ probation conditioned on periodic imprisonment in the county jail. The sole issue on appeal is whether defendant was proved guilty of aggravated criminal sexual abuse beyond a reasonable doubt. Defendant contends the evidence was insufficient to sustain his conviction because the victim’s testimony was neither clear and convincing nor substantially corroborated by other evidence. We affirm.

At some time between Christmas 1987 and early March of 1988, the victim and defendant were sitting on a couch in the living room of defendant’s trailer. Defendant pulled the victim over to him, lifted up his bathrobe and made the victim, then age nine, put her hand on his “private.” He then made her “push it up and down” until “white sticky stuff came out” on her hand. When defendant heard the victim’s mother coming out of the bathroom, he pushed the victim away and told her to wipe her hand on his clothing. Defendant denied this encounter occurred and instead related a different incident of sexual contact. Defendant claimed he was lying on the bed in his bedroom with a pillow over his head while the victim’s mother was in the bathroom. According to defendant, the victim came up to him and touched his “private.” Defendant claimed he grabbed the victim’s arm and pulled her away. The jury chose to believe the victim’s version of the contact between the two. Again, the sole issue on appeal is whether the evidence was sufficient to prove defendant guilty of aggravated criminal sexual abuse beyond a reasonable doubt.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) It is not our function to retry defendant; rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277; see also People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276; People v. Hall (1990), 194 Ill. App. 3d 532, 535, 551 N.E.2d 763, 765.) Defendant asserts that in sex-offense cases a conviction can be upheld only when there is either some corroboration of the victim’s testimony by some other evidence, fact, or circumstance in the case, or the victim’s testimony is otherwise clear and convincing. While this apparently has been the “standard” applied in most sex-offense cases in the past, we are reminded of the supreme court’s declaration in People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344, that the reasonable doubt test as set forth in Collins should be applied in reviewing the sufficiency of the evidence in all criminal cases. (133 Ill. 2d at 291, 549 N.E.2d at 346.) We therefore choose with this opinion to join the fourth district in rejecting the prior standard of review in reviewing the sufficiency of the evidence in sex-offense cases. We too believe the clear and convincing rule has outlived its usefulness, being both arbitrary and archaic in nature. (See People v. Roy (1990), 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208, 1221; People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, 742.) In no other category of crime is the testimony of the crime victim automatically suspect and held to a different standard in order to sustain a conviction. While it has been claimed that criminal charges involving sexual conduct are easier made and harder to defend against than in other classes of charges, so as to justify the use of the clear and convincing or corroboration rule (see, e.g., People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707), the truth of the matter is that accused perpetrators of sex offenses are not in fact “subject to capricious convictions by inflamed tribunals of justice,” but rather the opposite is more often true. (See Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365, 1373-84 (1972).) We also note we have no jury instruction in this State which requires closer scrutiny of a sex-crime victim’s testimony than that of other witnesses. (See People v. Rincon-Pineda (1975), 14 Cal. 3d 864, 538 P.2d 247, 123 Cal. Rptr. 119 (use of such instruction specifically repudiated); see also Taylor v. State (1972), 257 Ind. 664, 278 N.E.2d 273; State v. Feddersen (Iowa 1975), 230 N.W.2d 510; Annot., 92 A.L.R.Sd 866 (1979).) Nor do we have any instruction which directs the jury to make a preliminary determination whether a sex-crime victim’s testimony is clear and convincing or substantially corroborated prior to arriving at a verdict. The use of such terminology on review serves only to cause confusion. We therefore choose to follow the dictates of Pintos and apply the standard of Collins in all future sex-offense cases.

Turning to the case before us now, even though the evidence against defendant is conflicting, viewed in the light most favorable to the prosecution it does provide a rational basis upon which a juror could find aggravated criminal sexual abuse to have been proved beyond a reasonable doubt. It is true the State did have difficulty eliciting any testimony from the victim at trial pertaining to any alleged sex offenses. But, what testimony was elicited was clear and detailed with respect to the description of the incident itself and displayed a certain knowledge a child victim would not likely have acquired in any other way than through sexual assault or abuse. The victim candidly admitted she did not tell the investigators everything because she was afraid and did not like talking about the matter. The fact minor discrepancies existed as to the precise time of the offense and the location of everyone during the offense does not render the victim’s testimony incredible. Such discrepancies affect only the weight of her testimony and are to be evaluated by the trier of fact. (See, e.g., People v. Barlow (1989), 188 Ill. App. 3d 393, 412-13, 544 N.E.2d 947, 960; People v. Deal (1989), 185. Ill. App. 3d 332, 337-38, 541 N.E.2d 695, 699.) We further note defendant had the opportunity to commit the crime and did admit to some sort of sexual contact with the child. Moreover, many details of his version corroborated those of the victim; specifically, the victim’s mother was in the bathroom at the time of the touching, defendant was wearing a bathrobe, and defendant shoved the victim away at the end of the incident. Additionally, both defendant and the victim used the term “private” in describing the incidents. The only real difference between the two versions is defendant’s mental state. Again, the resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. (E.g., Roy, 201 Ill. App. 3d at 185, 558 N.E.2d at 1221.) Viewing all of the evidence together, we believe defendant was proved guilty of aggravated criminal sexual abuse beyond a reasonable doubt.

For the aforementioned reasons, we affirm the judgment of the circuit court of Fayette County.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RON D. TYLER, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0616
    Opinion filed March 14, 1991.

      Paul Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Ron Tyler, was charged with the offense of possession of less than 200 grams of a substance containing methamphetamine. This appeal is from the trial court’s order granting defendant’s motion to suppress evidence. We affirm.

At a preliminary hearing on April 11, 1989, the State presented the testimony of State Trooper David Crackel. Trooper Crackel testified that at approximately 4 p.m. on September 11, 1988, he was directed to the scene of a single-car accident on Funkhouser Road. Defendant, the driver of the vehicle, was unconscious when he was removed from the car by the emergency medical technicians. After defendant was taken by ambulance to the hospital, Trooper Crackel proceeded to examine the vehicle for the purpose of preparing an accident report and inventory. Peering inside the vehicle, Trooper Crackel discovered on the floorboard a “sandwich baggy” with a green leafy substance, which he believed to be cannabis, in it.

Trooper Crackel then proceeded to the hospital to determine the driver’s identity. He observed hospital personnel working with the defendant. Defendant’s jeans had been cut off and were in a basket beneath the defendant’s gurney. Crackel proceeded to examine “the pockets of Tyler’s jeans to look for a drivers [sic] license.” Crackel reached into each of the pockets, and in one of the pockets he found a small vial, which was later determined to contain methamphetamine. Crackel testified that when he arrived at the hospital neither Tyler’s mother nor his wife was there. Crackel did not know whether any of Tyler’s other relatives were there before he started examining Tyler’s jeans.

At the hearing on defendant’s motion to suppress, Crackel testified that when he examined Tyler’s jeans, the only clothing Tyler had on was a hospital gown. Crackel had removed the vial from Tyler’s jeans before Tyler’s mother, Peggy Knight, arrived at the hospital.

Tyler’s mother, Peggy Knight, testified that when she was informed that her son was at the emergency room, she telephoned the emergency room to learn her son’s condition. Knight testified that she advised the emergency room nurse that she was Tyler’s mother and asked what his condition was. The nurse advised Knight that she needed to get to the hospital as quickly as possible. When she arrived at the hospital, Tyler’s wife and sister were already there. Knight testified that an officer, who was in the hall, asked her for whom she was looking and when she told him “Ronnie Tyler,” he pointed to the defendant’s treatment room. Knight entered the treatment room and noticed that Tyler was wearing his trousers. Approximately 10 minutes after Knight was asked to leave the treatment room, Tyler was taken to surgery.

Following the hearing on the motion to suppress, the trial court entered an order granting defendant’s motion, finding:

“(a) The search was not incident to an arrest.

(b) The search was not pursuant to consent.

(c) The seizure was not of evidence in plain view.

(d) The search was of an article in which the defendant had a substantial expectancy of privacy.

(e) The search was made without a warrant.

(f) The removal of a vial from a pants pocket and the opening of the vial to examine the contents were not necessary as part of a search for a driver’s license.”

The State argues that the search was justified because of (1) Trooper Crackel’s need to ascertain Tyler’s identity, (2) the lack of Tyler’s privacy interest in his clothing, and (3) the existence of probable cause to believe the jeans contained contraband.

The fourth amendment to the Federal Constitution guarantees the individual the right to be free from unreasonable searches and seizures. In considering fourth amendment issues, our fundamental inquiry is whether or not the search or seizure was reasonable under all of the circumstances. (United States v. Chadwick (1977), 433 U.S. 1, 9, 53 L. Ed. 2d 538, 547, 97 S. Ct. 2476, 2482; Cooper v. California (1967), 386 U.S. 58, 59, 17 L. Ed. 2d 730, 732, 87 S. Ct. 788, 789-90; People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.) Generally, unless the trial court’s ruling on a motion to suppress is manifestly erroneous, it will not be disturbed. People v. Industrial Salvage, Inc. (1985), 136 Ill. App. 3d 1068, 1071, 484 N.E.2d 322, 323.

In support of the argument that the search was justified, the State argues that Trooper Crackel acted reasonably in searching for the defendant’s wallet in order to determine his identity. The State cites People v. Smith (1969), 44 Ill. 2d 82, 254 N.E.2d 492, in support of its argument. In that case, a police officer examined a wallet which he had taken from a semiconscious shooting victim and discovered an incriminating note. In upholding the admission of the note, the Smith court observed that the conduct of the officer in securing the wallet was a reasonable and appropriate police measure. (Smith, 44 Ill. 2d at 87, 254 N.E.2d at 495.) The State draws our attention, in particular, to the Smith court’s unwillingness to find that the officer unreasonably seized the wallet, even though the court found that it was “apparently not necessary to use the wallet to identify the appellant.” (Smith, 44 Ill. 2d at 87, 254 N.E.2d at 495.) The State contends that although it is arguable whether it was necessary for Trooper Crackel to conduct the search in order to ascertain Tyler’s identity, the holding in Smith conclusively establishes that the officer’s search was nonetheless reasonable. An examination of the facts in Smith demonstrates that the State’s position is untenable.

Smith is distinguished from the instant case in that there the wallet was removed from the defendant at the scene of the offense, whereas here the trooper conducted the search at the hospital over an hour after the accident. In Smith, ascertaining the victim’s identity by seizing his wallet was justified in that at the time of the search: the victim was still at the scene of the incident; the victim was semi-conscious; a wallet typically contains cards identifying its owner in the event of illness or accident; and a wallet might provide information of value in the handling of the wounded man, e.g., information concerning his blood type, a possible diabetic condition, an inability to tolerate certain medications or anaesthetics, or a religious affiliation. (See Smith, 44 Ill. 2d at 87-88, 254 N.E.2d at 495-96.) The officer in the instant case did not have the same need to ascertain the defendant’s identity or to determine any of the other information.

Here, Trooper Crackel testified that he did not arrive at the hospital until approximately one hour after the accident. When Crackel arrived hospital personnel were already attending to Tyler. In addition, there is a conflict in the testimony presented below as to whether Trooper Crackel already knew the identity of Tyler prior to his search of Tyler’s clothing. Although the trial court made no specific finding as to whose testimony was more credible, it did find all issues and controverted facts in favor of the defendant. Courts generally defer to the trial court on questions of testimonial credibility and will draw from the evidence all reasonable inferences in support of the judgment. See People v. Lagle (1990), 200 Ill. App. 3d 948, 954, 558 N.E.2d 514, 519.

We further note that in Smith the court held that, “[t]hough the identification of the appellant was not apparently a problem, the securing of his wallet to safeguard it was not unreasonable under the circumstances.” (Emphasis added.) (Smith, 44 Ill. 2d at 87, 254 N.E.2d at 496.) In the instant case, by the time Trooper Crackel arrived at the hospital, Tyler had been admitted, and there was testimony that his relatives were also there. There is no question that safeguarding of Tyler’s property by the police was unnecessary.

In addition to the foregoing, we find Trooper Crackel’s own testimony persuasive on the proposition that the search was beyond the scope of the officer’s stated reason for conducting the search:

“Q. And your reason for going through the jeans was what?

A. To find his drivers [sic] license.

Q. Okay. And did you find his drivers [sic] license?

A. I don’t remember if they were in his jfeans or not. I don’t think they were, but I couldn’t say for sure one way or other, now.

Q. So, did you feel the outside of the pants, or did you just reach directly into the pocket?

A. I felt — reached into the pockets. They were all cut up. I reached into his pockets.

Q. And when you felt a vial, did it feel like a drivers [sic] license or not?

A. No, sir, it did not.

Q. But you went ahead and pulled it out of the pant pocket?

A. Yes, sir, just to see what it was.”

Based on the foregoing, we cannot accept the State’s contention that the evidence was seized as a result of a justified search in order to ascertain Tyler’s identity.

The State also contends, relying on People v. Sutherland (1980), 92 Ill. App. 3d 338, 415 N.E.2d 1267, that the search was reasonable because Tyler did not have a privacy interest in his clothing which had been removed. In Sutherland, the defendant, a robbery suspect, was taken to the hospital for treatment of a gunshot wound. The defendant’s clothes were removed, and a policeman obtained them from a security guard. The court affirmed the denial of defendant’s motion to suppress. In so holding, the court found that the defendant did not ask or indicate that when his clothing was removed at the hospital it was not to be given to anyone else, nor did the defendant otherwise demonstrate an actual intent to preserve the privacy of his apparel.

In Sutherland, there was testimony that it was common practice for police to inventory the clothing of gunshot-wound victims. The hospital security guard testified that in the past he had given the clothing of such victims to the police. The court found that under the circumstances, “any subjective expectation of privacy was not of the type ‘that society is prepared to recognize as reasonable.’ ” (Emphasis added.) (Sutherland, 92 Ill. App. 3d at 343, 415 N.E.2d at 1271, quoting Smith v. Maryland (1979), 442 U.S. 735, 740, 6 L. Ed. 2d 220, 226-27, 99 S. Ct. 2577, 2580.) The instant case does not involve a gunshot-wound victim, and Trooper Crackel was not conducting the search in furtherance of an inventory. Furthermore, there has been no showing that it was common practice for the police to conduct an inventory under facts such as in this case, nor has there been a showing that it was hospital policy to relinquish personal effects to the police.

In order to determine whether the challenged police conduct offends the fourth amendment, we must decide whether defendant had a “reasonable expectation of privacy” with regard to his clothes. (Terry v. Ohio (1968), 392 U.S. 1, 9, 20 L. Ed. 2d 889, 899, 88 S. Ct. 1868, 1873; Katz v. United States (1967), 389 U.S. 347, 361, 19 L. Ed. 2d 576, 587-88, 88 S. Ct. 507, 516.) Here, there is nothing in the record to indicate that Tyler was physically capable of asking or signalling that he did not want anyone other than hospital personnel or his family to be given his clothing. The State concedes in its brief that Tyler could not have expressed a privacy interest in his pants which had been removed because of his unconscious condition. Although he was injured in the accident, Tyler kept the vial of methamphetamine on his person when he was taken to the hospital. Even though his clothing was removed, it was placed in a basket under Tyler’s gurney and, in accordance with hospital policy, was given to Tyler’s relatives. Under the facts presented, there exists no justification for the intrusion into Tyler’s clothing.

We also reject the State’s contention that the officer’s conduct was permissible under the doctrine of plain view. That doctrine provides that when an officer in the performance of his duty lawfully discovers evidence within his view, the taking of such evidence does not constitute an unreasonable seizure. (People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697; People v. Berg (1977), 67 Ill. 2d 65, 364 N.E.2d 880.) As determined above, the officer’s search was not justified for the purpose of conducting an inventory, or for ascertaining Tyler’s identity. Trooper Crackel, therefore, was not legally authorized to have his hand inside the pockets of Tyler’s pants. Trooper Crackel could only discover the evidence after reaching into the pocket. Based on the facts, we do not agree that the plain view doctrine is applicable to this case.

Finally, the State alleges that the search was proper even if Trooper Crackel’s sole purpose was to discover evidence of an additional offense. Defendant acknowledges that a warrantless search, as was conducted here, may have been effected by the officer if the search was incident to a lawful arrest. (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 1.) Defendant argues, however, that in order to uphold a search made pursuant to section 108 — 1 of the Criminal Code of Procedure of 1963, there must first be a valid arrest of the individual.

The State concedes that Trooper Crackel did not arrest Tyler prior to conducting the search but contends that, since Trooper Crackel had probable cause to arrest Tyler at the time of the search, the search was lawful. There are instances where probable cause exists for arrest, and where a search and arrest are practically simultaneous, it may be immaterial that the search preceded the arrest. (See People v. Hall (1980), 90 Ill. App. 3d 1073, 414 N.E.2d 201; People v. Jones (1977), 56 Ill. App. 3d 414, 371 N.E.2d 1093.) However, in order for a search made incident to a lawful arrest, and which precedes an arrest, to be valid, the search must be made immediately prior to the arrest. (Rawlings v. Kentucky (1980), 448 U.S. 98, 111. 65 L. Ed. 2d 633, 645-46, 100 S. Ct. 2556, 2564; Jones, 56 Ill. App. 3d 414, 371 N.E.2d 1093.) While the record is unclear when Tyler was actually arrested for the instant offense, it is clear that he was not arrested on September 11, 1988. As the search made prior to the arrest cannot be viewed as the type of single transaction evident in Rawlings, Hall, and Jones, we cannot view the search in the instant case as a lawful search incident to arrest. See People v. Vollrath (1981), 95 Ill. App. 3d 866, 870, 420 N.E.2d 760, 763.

For the reasons stated, we affirm the trial court’s order granting the defendant’s motion to suppress.

Affirmed.

HOWERTON and LEWIS, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY GORDON FLOYD, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0512
    Opinion filed March 15, 1991.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Mark Stanley, State’s Attorney, of Carmi (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Tommy Gordon Floyd, appeals from a judgment of the circuit court of White County which summarily dismissed his pro se post-conviction petition. As grounds for his appeal, defendant contends that the dismissal is void and must be set aside because the circuit court violated section 122 — 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1) when it failed to render its dismissal order within 30 days of when defendant mailed his petition to the clerk of the circuit court. For the reasons which follow, we hold that the 30-day statutory period did not, in fact, commence at the time the petition was allegedly mailed. We therefore affirm.

Defendant was convicted of murder and sentenced to 30 years’ imprisonment. On direct appeal to this court we affirmed. (People v. Floyd (1987), 160 Ill. App. 3d 80, 512 N.E.2d 1378.) Thereafter, defendant initiated this action for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). The certificate of service attached to defendant’s petition indicates that it was mailed to the State’s Attorney for White County on June 13, 1989. There is no evidence as to when it was sent to the clerk of the court. We know, however, that the clerk received the petition two days later, on June 15, 1989. The clerk file-stamped the petition with that date and made an entry in the record sheet for the case which provided, “Petition for Post-Conviction [Relief] received [and] docketed for consideration by the Court pursuant to Section 122 — 2.1. Petition for Post-Conviction promptly brought to attention of Court.”

Section 122 — 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1) states, in part:

“(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. * * *
(2) If *** the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.”

Our supreme court has made clear that the 30-day rule set forth in this statute is mandatory, not directory. Accordingly, a trial court’s noncompliance with the rule will render any summary dismissal of a petition void. People v. Porter (1988), 122 Ill. 2d 64, 86, 521 N.E.2d 1158, 1167, cert. denied (1988), 488 U.S. 837, 102 L. Ed. 2d 77, 109 S. Ct. 102.

In this case, the circuit court did summarily dismiss defendant’s petition in a written order dated July 17, 1989. There is no dispute that this order was timely if June 15, 1989, is regarded as the date of “filing and docketing” under the statute. This is so because July 15, the thirtieth day after June 15, fell on a Saturday, and the time in which the trial court was required to act was therefore automatically extended to the following Monday, which was July 17. (Ill. Rev. Stat. 1989, ch. 1, par. 1012.) Defendant, however, argues that the actual date of “filing” here was the date when the petition was mailed, June 13, 1989. Because more than 30 days had elapsed between this date and the date of dismissal, defendant reasons that the order of dismissal was void and must now be set aside.

A threshold problem with defendant’s argument is that the record before us shows only that the petition was mailed to the White County State’s Attorney on June 13. It does not indicate when or even how the petition was transmitted to the clerk of the circuit court. As a result, there is no evidentiary basis for the proposed earlier “filing” date urged by defendant.

Even if defendant had established that his petition was in fact mailed to the clerk on June 13, his position would still be untenable. For certain purposes, documents are deemed to be filed with the clerk of the circuit court on the day they are mailed to the clerk’s office. (See Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 533 N.E.2d 1072 (notices of appeal).) However, where, as here, a petition commences a new action and is not merely a continuation of some prior proceeding (People v. Morris (1977), 47 Ill. App. 3d 732, 735, 365 N.E.2d 424, 426-27), the petition is not deemed to have been filed until it passes into the actual physical possession of the clerk. The date of mailing is not controlling. Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 500 N.E.2d 692.

In any case, defendant’s analysis overlooks that the mandatory 30-day period which is at the heart of this dispute commences not simply when a petition is filed, but when it is filed and docketed. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a).) For a petition to be “docketed” does not mean that it must be placed on the trial court’s call. However, the reference to “docketing” in the statute does presuppose some ministerial action performed by the clerk upon the receipt of the petition. (People v. Byers (1990), 196 Ill. App. 3d 502, 509, 554 N.E.2d 317, 321.) Obviously, such action cannot occur while a petition is still in the mail. Accordingly, even if a petition were deemed to be filed at the time it is mailed, it cannot possibly be regarded as having been “docketed” at that time. Thus, the 30-day period cannot begin to run upon mailing of the petition alone.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE WELCH

text:
    ROBERT ARNESON, Plaintiff-Appellee and Cross-Appellant, v. BOARD OF TRUSTEES, McKendree College, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5-89-0867
    Opinion filed March 15, 1991.

      Delmar O. Koebel, of Lebanon, for appellant.
    Charles J. Kolker, of Law Offices of Charles J. Kolker, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Robert Arneson, brought an action for breach of an employment contract against defendant, Board of Trustees, McKendree College. After a bench trial, the circuit court of St. Clair County entered judgment in favor of plaintiff and against defendant in the sum of $17,087 plus costs of suit, on April 25, 1989. Defendant appeals from the December 4, 1989, order of the St. Clair County circuit court denying his motion to reconsider the April 25, 1989, judgment, claiming that the court erred as a matter of law in determining that the McKendree College Faculty Manual was incorporated by reference in Arneson’s employment contract. In the alternative, defendant contends that if the manual was incorporated in the contract as a matter of law, plaintiff cannot recover for breach of said contract because he failed to mitigate his damages. Plaintiff appeals from the December 4, 1989, order denying his motion to reconsider the April 25, 1989, judgment, as well, claiming that the court erred in denying his prayer for prejudgment interest on the amount of damages found in the court’s judgment, from May 31,1982, through April 25, 1989.

Plaintiff has a master’s degree in psychology, and his prior work experience includes positions as a juvenile probation officer, a correctional counselor and coordinator, and an assistant directorship and directorship of State councils on crime control. In addition to his teaching assignments at McKendree College, plaintiff has taught at the Air Force Academy and junior colleges in Colorado. Plaintiff had been employed by defendant as an instructor in the criminal justice program for the 1977-78, 1978-79, 1979-80, 1980-81, and 1981-82 academic years. Plaintiff was a probationary, nontenured faculty member, subject to review in his first, second, fourth, and sixth years of service, before receiving a contract for the following year. Plaintiff was in his fifth year of service during the 1981-82 academic year.

Plaintiff entered into his final employment contract with defendant on March 20, 1981, which appointed him as a probationary instructor in criminal justice studies from September 1, 1981, until May 31, 1982, at an annual salary of $17,087. The terms of the employment contract included, inter alia, the following:

“3. *** The faculty member agrees to adhere to policies enacted by the Board of Trustees, administration and/or general faculty of McKendree College, submit to regular and thorough evaluations of professional competence, and conduct his/her duties conscientiously and professionally.
4. The faculty member agrees to observe the rules and regulations of the College, ***.
5. *** A probationary appointment is for one year unless otherwise stated on this contract.”

Introduced into evidence as plaintiff’s exhibit No. 6 was the McKendree College Faculty Manual, published January 1981 by its faculty affairs committee on structure. Plaintiff contends that the faculty manual was a part of the contract between defendant and himself because paragraph 3 of the contract refers to “policies” and paragraph 4 refers to “rules and regulations of the College.” Appendix F-3, section (c), of the faculty manual provides as follows:

“Regardless of the stated term or other provisions of any appointments, written notice that a probationary appointment is not to be renewed will be given to the faculty member in advance of the expiration of his appointment, as follows: (1) Not later than March 1 of the first academic year of service if the appointment expires at the end of that year; or, if a one-year appointment terminates during an academic year, at least three months in advance of its termination; (2) not later than December 15 of the second academic year of service if the appointment expires at the end of that year; or, if an initial two-year appointment terminates during an academic year, at least six months in advance of its termination; (3) at least twelve months before the expiration of an appointment after two or more years of service at the institution. The institution will notify faculty members of the terms and conditions of their renewal by March 15.”

Based on this provision contained in the faculty manual, plaintiff contended that he was entitled to notice at least 12 months in advance of the termination date of the 1981-82 employment contract in order not to renew his contract for the 1982-83 academic year. He alleged in his complaint that President Gerrit TenBrink orally notified him on July 15, 1982, that his appointment as a member of the McKendree College faculty would not be renewed for 1982-83.

Defendant acknowledged the existence of the faculty manual, but President TenBrink testified that although the manual had been presented to the Board of Trustees, it had refused to adopt the manual except for a paragraph relating to academic freedom. However, President TenBrink acknowledged that he had told both the faculty and the Board that he would try to the best of his ability to follow the manual when he found it practical and appropriate to do so. Moreover, he admitted that he could not think of any situation in which he had not followed the manual.

Ted Anderson, academic dean of McKendree College from 1981 through 1985, testified that part of his responsibility as dean included the evaluation and recommendations to the president concerning the probationary faculty. He served as chair of the contract for renewal, promotion, and tenure committee (hereinafter CRPT committee). The committee reviewed student evaluations of the faculty member, as well as evaluations by the chairperson of the department and peer evaluation. Plaintiff made application for promotion in 1981, and the CRPT committee recommended the promotion in the fall of 1981; however, Anderson testified the actual promotion would not have been confirmed by defendant until the May 1982 board of directors meeting.

Dean Anderson acknowledged that as to the faculty, the rules and regulations of the college would primarily have been encompassed in the faculty manual as well as the faculty contracts. Anderson testified that he used the faculty manual as a guiding document for his interactions with the faculty. He also acknowledged that the manual covered a grievance procedure if a faculty member was to be dismissed “for cause.”

Dean Anderson testified that early in March 1982, he had received three complaints from students about plaintiff and notified plaintiff that he intended to follow up on these complaints by a telephone survey of the students in his class. Plaintiff did not receive a contract on March 15, 1982, and was notified at a meeting with Dean Anderson on March 17, 1982, that Anderson would not recommend renewal of plaintiff's contract. Anderson testified that he also notified President TenBrink on March 17, 1982, that he was not recommending renewal of plaintiffs contract for the 1982-83 academic year. Anderson delivered a copy of this notification to plaintiff on or about March 26, 1982, along with a memorandum detailing the reasons behind his recommendation to the president. In Anderson’s memorandum concerning the recommendation he stated that students had complained that plaintiff was dismissing his evening classes an hour and a half before their scheduled dismissal time, that plaintiff had failed to distribute a syllabus, that his March 3, 1982, class was cancelled without notifying the dean, the department chair, or the academic records office, and that a number of his students felt that one of his classes had very little substance.

Plaintiff filed a grievance with the faculty grievance inquiry committee on March 25, 1982, contending that he was unfairly denied contract renewal for 1982-83. Plaintiff explained to the inquiry board in response to the dean’s charges that he conducted his evening classes -without breaks so that he could dismiss his students early and that no one had said he could not do this before. He also stated that he had given his class an oral syllabus at the first class session but was unable to submit a written syllabus to the department chair by that point in the semester due to typing delays in the secretarial staff. With regard to the cancelled class, plaintiff explained that he had had car trouble that day and was unable to obtain alternate transportation, but was able to notify all but one of his students that he was cancelling the class. The inquiry committee notified plaintiff on March 30, 1982, that because the dean was treating the nonrenewal as a “dismissal for cause,” it would be necessary for plaintiff to petition the faculty grievance hearing committee for a formal hearing.

Plaintiff requested a formal hearing on his grievance on April 12, 1982. This committee, by letter to President TenBrink on May 13, 1982, found that while plaintiff was guilty of negligence in meeting his contractual duties during the spring term of 1982, the committee could come to no definitive stand as to the proper disciplinary action to be taken by the administration. It recommended that, before exercising its right of dismissal, the administration should further investigate plaintiff’s teaching pattern over the previous five years. Plaintiff asked that the governing board review his case on July 27, 1982. The board of directors approved a motion on December 22, 1982, concurring with the findings of the faculty grievance hearing committee that plaintiff was guilty of negligence in meeting his contractual duties and with the judgment of the administration that he was dismissed for cause.

President TenBrink testified that he accepted the dean’s recommendation and assumed that plaintiff understood that he was not being renewed when he was not issued a contract on March 15, 1982. He also testified that he accepted the part of the grievance hearing committee’s recommendation that found plaintiff delinquent in his duties because that was the same recommendation he had received from the dean in March 1982. President TenBrink also noted that plaintiff had failed to complete an evaluation of the criminal justice program by the end of the 1981-82 academic year and that evaluation was part of plaintiff’s teaching assignment for the year. However, he admitted that this was not part of the four items Anderson listed as reasons for the dismissal with cause because the evaluation was not due until the end of the school year. President TenBrink denied that his decision not to renew plaintiff’s contract for the 1982-83 academic year was based on any financial conditions or problems of funding the criminal justice department studies. However, he acknowledged that Federal funding for the program was being phased out and that in the fall of 1982 students could no longer major in criminal justice.

In May 1982 President Tenbrink offered plaintiff a position as chief of security for the college at the same salary he would have received as a faculty member, but plaintiff refused the offer because he felt it was beneath someone of his experience and qualifications. Plaintiff applied for unemployment compensation, to which defendant filed an objection claiming that plaintiff was ineligible for benefits because he had refused employment as chief of security. The unemployment division determined, however, that plaintiff was eligible for benefits because it found after hearing that the position offered by defendant was not comparable to that of college instructor. Plaintiff also testified that he applied to other colleges in the area seeking employment as a criminal justice instructor without avail. Finally, in October 1982 plaintiff started a scuba-diving business which suffered a $30,000 loss during its first year of operation.

Although defendant contended at trial that plaintiff was not being renewed for cause, because he had not satisfactorily fulfilled the 1981-82 contract, this contention is not propounded on appeal. Instead, defendant argues that the faculty manual was not incorporated into its contract with plaintiff, who was employed on a year-to-year basis, and thus it had an absolute right not to renew plaintiff’s contract for the 1982-83 academic year. A contract may incorporate all or part of another document by reference. (McWhorter v. Realty World-Star, Inc. (1988), 171 Ill. App. 3d 588, 592, 525 N.E.2d 1205, 1207.) The reference must show, however, an intention to incorporate the document and make it a part of the contract. (McWhorter, 171 Ill. App. 3d at 592, 525 N.E.2d at 1207.) The question of the existence of a contract is a matter of law for determination by the court. (Robinson v. Christopher Greater Area Rural Health Planning Corp. (1991), 207 Ill. App. 3d 1030.) Whether the faculty manual, including the provisions on notice for nonrenewal and the grievance procedures for dismissal, was part of plaintiff’s contractual rights is therefore a question of law. (Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 521, 545 N.E.2d 373, 376.) Where a question of law is raised by an appeal, this court may determine the issue independently of the trial court’s judgment. McWhorter, 171 Ill. App. 3d at 591, 525 N.E.2d at 1207.

Although plaintiff could not be considered an “at will” employee because he was employed for a definite term, the faculty handbook specifically referred to various time limits for notice to be given by the administration if a nontenured probationary employee was not to have his employment contract renewed for the following year. The supreme court has held with respect to “at will” employees that an employee handbook or other policy statement can create enforceable contractual rights limiting the employer’s right of immediate dismissal of an employee, if the traditional requirements for contract formation are present:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318.)

Defendant attempts to distinguish the faculty manual in this case from cases like Duldulao, which have found employment manuals to be part of the employment contract on the basis that the manual was not prepared and disseminated by the employer board of trustees, but by a faculty committee representing the employees. Moreover, defendant notes that it refused to adopt the manual except for its provisions regarding academic freedom. However, we find that defendant is estopped from any disavowal of adopting the faculty manual as part of the rules and regulations of McKendree College, because of admissions made in testimony by its president and academic dean and by its conduct in observing the procedures set forth in the manual in dealing with its faculty members.

To be estopped, a party must have engaged in conduct which reasonably causes the other person to change his position by lulling the claimant into a false sense of security. (Phillips Petroleum, Products Co. v. Industrial Comm’n (1983), 94 Ill. 2d 200, 205, 446 N.E.2d 234, 236.) Both President TenBrink and Dean Anderson acknowledged that the manual constituted a part of the “rules and regulations” by which a faculty member was required to abide, specifically referenced in the yearly employment contract. For the faculty member to be required to abide by the rules with no parallel obligation for the college to observe or recognize them would render the rules and regulations of the college to be without mutuality. Moreover, while President TenBrink contended that he would only follow the faculty manual if he deemed it “appropriate” to do so, he acknowledged that he could think of no prior situation in which he had not followed the manual. Defendant also observed the notice procedures by sending out renewal contracts by the March 15 deadline each year. Finally, it is apparent that Anderson, TenBrink and the board of trustees itself took part in plaintiffs grievance procedure.

Indeed, defendant’s theory at trial belies the contention on appeal that the faculty manual was not incorporated into plaintiffs contract by reference to “rules and regulations.” Dean Anderson followed the “for cause” dismissal grievance procedure as stated in the faculty manual by giving plaintiff written notices of the charges constituting the “cause” for the dismissal, and President TenBrink followed the procedure by accepting at least some of the findings made by the grievance hearing committee. Moreover, the full board reviewed the findings of this committee as the final review of the dismissal set forth by the grievance procedure. Therefore, we find that the manual was incorporated into the employment contract when defendant caused its faculty to rely on the manual being part of the “rules and regulations” to which both parties would be subject. We affirm the finding of the court below that there was a breach of that employment contract, as defendant has not argued in the alternative that the court below erred in finding that it did not establish adequate cause for plaintiffs termination.

In the alternative, defendant does argue that if there was a breach of contract the trial court erred in denying its affirmative defense that plaintiff failed to mitigate his damages. We disagree. A wrongfully discharged employee must act to mitigate his damages by seeking similar employment, and his damages will be reduced by those sums which he earns or could have earned through the exercise of reasonable diligence in seeking employment. (Schwarze v. Solo Cup Co. (1983), 112 Ill. App. 3d 632, 445 N.E.2d 872, 876.) However, when the alternate employment is an offer of reemployment by the original employer, the employee need not always accept such an offer or be precluded from seeking damages. (Schwarze, 112 Ill. App. 3d at 638, 445 N.E.2d at 876.) It has been recognized that if an employee is hired for a specific position, a subsequent demotion or diminution of duties may be a breach of the employment contract. (Schwarze, 112 Ill. App. 3d at 639, 445 N.E.2d at 877.) Moreover, the fact that the salary was the same does not erase the stigma attached to the demotion and change of duties. Schwarze, 112 Ill. App. 3d at 639, 445 N.E.2d at 877.

Plaintiff testified that he refused the offer of the chief of security position because it was “beneath him.” We agree that this position offered by President TenBrink was beneath plaintiff’s qualifications, both in experience and in education. The board reviewing defendant’s objection to plaintiff’s application for unemployment agreed that the position of chief of security was not similar employment to that of instructor on the faculty of the college. We therefore affirm the finding of the court below denying defendant’s affirmative defense.

We will now address the issue raised on cross-appeal: whether the trial court erred in failing to award prejudgment interest on the amount of the damages awarded from the last day of the 1981-1982 employment contract until the date of the judgment. The prejudgment interest statute provides as follows:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance [;] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (111. Rev. Stat. 1987, ch. 17, par. 6402.)

Plaintiff argues that this statute applies to the damages awarded for the breach of his employment contract, citing Finazzo v. Mid-States Finance Co. (1965), 63 Ill. App. 2d 161, 211 N.E.2d 290. In Finazzo, the employer breached its employment contract by failing to pay the employee a bonus of a percentage of the company’s net earnings in addition to his base salary. The court awarded the employee prejudgment interest on the amount of the net earnings percentage bonus the court calculated was owed under the contract. (Finazzo, 63 Ill. App. 2d at 176, 211 N.E.2d at 298.) In the instant case, however, plaintiff was not awarded damages for amounts found due and owing on the 1981-82 employment contract but was awarded the damages proximately caused by defendant’s failure to give the proper notice, that his appointment would not be renewed, in advance of the expiration of his contract.

Where, as in the instant case, an employment contract has been breached by the employer by failure to give proper notice cancel-ling the contract at the time of the discharge, the employee is entitled to the compensation and benefits he would have received during the additional time necessary for the notice to have been of proper length. (Kemnetz v. Elliott Farmers Grain Co. (1985), 136 Ill. App. 3d 226, 230, 482 N.E.2d 1076, 1079.) Appendix F-3, section (c), of the faculty manual required that probationary employees, like plaintiff, who had served at least two years at the institution, were entitled to be notified at least 12 months before the expiration of their appointment that the appointment would not be renewed. The notice of non-renewal given in March 1982 would only have been proper notice of cancelling plaintiff’s 1982-83 appointment. The damages awarded by the court were therefore proper under the Kemnetz case because it reasonably found that this would have approximated the minimum salary plaintiff could have expected had his contract been renewed for the 1982-83 academic year. Therefore, because the award did not represent money owed on an “instrument of writing” or “money withheld by an unreasonable and vexatious delay of payment,” and considering the finding of the court below that defendant had a good-faith defense to the breach of contract case, we hold that the court did not err in ruling that plaintiff was not entitled to prejudgment interest.

For these reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

RARICK, P.J., and HARRISON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILBERT J. HAMMONDS, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0393
    Opinion filed March 21, 1991.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Mark Howard Clarke, State’s Attorney, of Cairo (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court;

The defendant, Gilbert Hammonds, appeals from the circuit court’s denial of his petition for post-conviction relief. Hammonds argues that he was denied effective assistance of counsel prior to and at the time he entered his guilty plea to the charge of murder and that he was denied his right to a full evidentiary hearing on his post-conviction petition. He prays that this court remand this cause for such a hearing. We affirm.

On October 8, 1986, Hammonds was charged with murder. Public Defender Michael Cole was appointed to represent Hammonds. Cole filed motions to change venue and suppress defendant’s confession. Thereafter, Public Defender Gloria Thurston was appointed to represent Hammonds. On January 6, 1987, Hammonds pleaded guilty to the charge of murder in exchange for a negotiated sentence of 20 years’ imprisonment. No motion to withdraw this plea was ever filed. Hammonds filed a pro se petition for post-conviction relief on September 17, 1987. On October 6, 1987, he filed a motion requesting appointment of counsel in the matter of his post-conviction petition.

Public Defender Larry Beard was appointed to represent Hammonds on the post-conviction petition and filed an amended petition on May 5, 1988. It was alleged therein that the defendant’s guilty plea had been the result of ineffective assistance of counsel rendered by both Michael Cole and Gloria Thurston; that defendant’s confession had been coerced; that defendant’s right to counsel had been violated when the police interrogated him after counsel was appointed but without counsel being present; that Cole had told defendant that he would continue to represent defendant on a per-hour basis after Cole had resigned as public defender; and that Felts had threatened to kill the defendant immediately before the defendant shot Felts. Attached to the post-conviction petition was an affidavit from Public Defender Thurston, which states in pertinent part:

“4. After my appointment as Public Defender on November 15, 1986, Michael Cole told me that he understood that he was to handle the above-entitled cause.
5. I held back until I understood from Judge Spomer and States Attorney Clarke that I was to handle the above-entitled cause, and so repeatedly asked Cole for his notes and case file.
6. Finally on December 3, 1986, I met with Cole and he gave me a case folder with 9 pages of notes of research cases and lists of motions he intended to file and tapes of a conference with Jeff Woodruff and of a telephone conversation among T.A., Mae and Lucian Hammonds. I received no notes of interviews with the defendant and no notes of any investigations conducted by Cole.
7. On December 5, 1986, I interviewed the defendant for the first time. When he came to the door of the interview room he looked in and asked ‘Where is he?’ I introduced myself as the new Public Defender, but the defendant seemed reluctant to speak with me and kept asking what happened to Cole. He also seemed unable to remember the precise facts of the situation.
8. Although the case seemed to need a great deal of investigation, I did not ask the court for extra funds for investigation.
9. Shortly before the January pretrial date for defendant, States Attorney Clarke offered to agree to a continuance to the February pretrial date. I made no motion for a continuance.
10. In early November, 1986, prior to the time I was hired, States Attorney Clarke advised me that he and the judge wanted someone with court room experience as public defender, someone who could ‘move cases.’ I felt pressure to please the judge by pleading cases quickly.
11. Although it was clear from the first discovery packet furnished by the state that the Illinois Division of Criminal Investigation had made several tapes of statements by witnesses, I never requested to listen to tapes other than the October 15 tape available at the Alexander County Sheriffs [sic] Department.”

Also attached to the post-conviction petition was an affidavit signed by defendant Hammonds, attesting that he had repeatedly requested assistance of counsel prior to questioning by the police, but the police continued to question him without providing an attorney; that Cole told Hammonds that Hammonds should proceed with Thurston, but that Cole would merely be using her to gather information in preparation for the trial; that Cole advised Hammonds that his fee was $4,000; that when Hammonds pleaded guilty, he did so believing that Judge Spomer, State’s Attorney Clarke, and Cole were conspiring against him by sending Thurston to represent him when Thurston knew nothing about the case; and that Cole had never advised Hammonds that he had withdrawn as defense counsel.

Two hearings were conducted on Hammonds’ post-conviction petition. Hammonds was not present at either hearing. In addition, neither Cole nor Thurston was present at the hearings. At the second hearing, the court questioned attorney Beard as to why the defendant had not raised his post-conviction claims in a motion to withdraw his guilty plea. Attorney Beard claimed that the defendant had been unable to do so because the facts were not of the record at that time. When asked to point to evidence in the record to support defendant’s claim, Beard could not point to any reference in the record to support his claim. After the hearing, the court entered its order finding that Hammonds’ claims of error were waived because he had not filed a motion to withdraw his guilty plea. The court further found that even assuming Hammonds did not waive his right to raise alleged errors at the post-conviction stage, the evidence presented in support of the petition was insufficient to support defendant’s claims.

Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) provides in part that, “No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” Generally, the lapse of more than 30 days from the imposition of sentence divests the trial court of jurisdiction to entertain a motion to vacate a plea of guilty or “ ‘to adjudicate the merits thereof.’ ” (People v. Green (1983), 116 Ill. App. 3d 815, 820, 452 N.E.2d 767, 771, quoting People v. Stojetz (1977), 46 Ill. App. 3d 205, 207, 360 N.E.2d 1139, 1140.) One exception to a filing of a motion under Supreme Court Rule 604(d) has been made where the failure to file such a motion constituted ineffective assistance of counsel. (People v. Morguez (1980), 90 Ill. App. 3d 471, 413 N.E.2d 128.) In the instant case there was no motion to withdraw Hammonds’ guilty plea, and Hammonds does not contend that the failure to file said motion was due to ineffective assistance of counsel. We find, therefore, that the trial court did not err in finding that Hammonds had waived his right to raise any nonconstitutional claims.

Although the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) is not an alternative means for reviewing nonconstitutional issues, a hearing on a petition under the Act is warranted if the petition makes a substantial showing that the petitioner’s constitutional rights have been violated. (People v. Wilk (1988), 124 Ill. 2d 93, 107, 529 N.E.2d 218, 223, citing People v. Rose (1969), 43 Ill. 2d 273, 279-80, 253 N.E.2d 456, 461.) The sixth amendment right to counsel encompasses the right to effective assistance of counsel. (Strickland, v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063.) In this case the the trial court did find that Hammonds waived his right to raise even constitutional claims in his post-conviction petition. Although the trial court erred in finding that Hammonds waived his right to raise an ineffective assistance of counsel claim in his post-conviction petition, we hold such to be harmless error in that the trial court did consider the evidence presented at the hearing on Hammonds’ post-conviction petition and made a finding based on that evidence.

Defendant claims that he was denied effective assistance of counsel at the time of the entry of his guilty plea. In order to establish that he was denied effective assistance of counsel, defendant must show that his counsel’s performance was deficient, that is, counsel made errors so serious that she was no longer functioning as the "counsel” guaranteed by the sixth amendment and that the deficient performance prejudiced his defense, that is, counsel’s errors were so serious as to deprive defendant of a fair trial. (People v. Albanese (1984) , 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255, cert. denied (1985) , 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The two-prong test of Strickland applies to challenges to guilty pleas based upon ineffective assistance of counsel. (Hill v. Lock-hart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.) Counsel’s performance is considered deficient if it falls below an objective standard of reasonableness. (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) It is not enough to show that counsel’s errors had some conceivable effect on the outcome of the proceedings. To establish actual prejudice, defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant argues that his appointed counsel, Gloria Thurston, was ineffective because she did not fully investigate the case before allowing defendant to plead guilty. To the contrary, the record shows that this is not the case. Thurston’s involvement in this case entailed, among other things: requesting a transcript of the preliminary hearing; filing a motion for bail reduction and appointment of a statistician; representing Hammonds at a hearing on the motion for bail reduction and appointment of a statistician; moving for a continuance of the trial date, which was granted by the court; representing defendant at a hearing on a motion to change venue; and filing a motion to suppress statements, a motion to disclose Hammond’s criminal record, an answer to the State’s motion for discovery, a motion for substitution of the judge, and a motion for a bill of particulars. Thurston’s answer to discovery included 43 names of witnesses whom counsel might call and listed as possible defenses self-defense, justifiable use of force in defense of person, serious provocation resulting in sudden and intense passion, and intoxication.

Defendant has not cited any instance where Thurston’s representation of him prior to the entering of his plea or at the time of the taking of his plea prejudiced him. Hammonds’ has not shown how his alleged misbelief that attorney Cole was representing him instead of Thurston hindered Thurston’s representation of Hammonds. The statements made by Thurston in her affidavit do not support defendant’s claim that Thurston was unprepared to represent Hammonds, that she was unaware of the defenses available to Hammonds, or that she compromised Hammonds’ defense. The record indicates that defense counsel performed the duties required in this case. There is a strong presumption that a defense attorney’s conduct falls within the range of reasonable professional assistance and the defendant must overcome that presumption. (People v. Perry (1989), 183 Ill. App. 3d 534, 551, 540 N.E.2d 379, 390.) Defendant in the case at bar has not overcome that presumption.

Defendant also contends that he was coerced into entering his guilty plea because he feared that Cole, Judge Spomer, and the State’s Attorney were conspiring to deny him a fair trial if he insisted on a jury trial. The record of his guilty plea shows that Hammonds was admonished concerning the rights he was relinquishing, which included the right to trial and to present witnesses on his behalf. Hammonds also stated that he was not being forced to enter his plea, that no promises had been made to him, that he was satisfied with his defense counsel, and that he had sufficient time to discuss his plea with counsel. After Hammonds entered his guilty plea, the court advised him that if he changed his mind concerning the plea, he must first file a motion to withdraw his plea within 30 days from the date upon which he entered his plea. Further, Hammonds was admonished that if he desired an attorney to represent him, counsel would be provided if Hammonds was found to be indigent. The admonitions given by the court as required under Supreme Court Rule 402 (134 Ill. 2d R. 402) are intended to protect those accused of crime by ensuring that they have not pled guilty by mistake or under a misapprehension and that they have not been coerced or improperly advised to plead to crimes they did not commit. (People ex rel. Daley v. Suria (1986), 112 Ill. 2d 26, 32, 490 N.E.2d 1288, 1290.) Based on the foregoing, we find Hammond’s claim that his plea was coerced to be without merit.

Finally, we further find that Hammond’s counsel at the hearing on his post-conviction petition was not ineffective. Defendant argues on appeal that he was denied the right to testify at the hearing and that had he been permitted to testify, he would have presented sufficient facts to support his petition. Hammonds also argues that counsel was ineffective for failing to present Cole and Thurston at the hearing. We find Hammond’s contentions to be without merit.

Attached to defendant’s post-conviction petition was his affidavit which set forth his allegations of error. In defendant’s brief on appeal defendant fails to set forth any facts different from what were already presented to the trial court in his affidavit. Furthermore, Hammonds fails to specify what evidence Cole and Thurston would have provided which was not already before the court. We cannot say that counsel who represented Hammonds at the hearing on his post-conviction petition was ineffective under Strickland, as there has been no showing that Hammonds was prejudiced by counsel’s conduct.

For the reasons stated above, we affirm the decision of the circuit court.

Affirmed.

WELCH and HARRISON, JJ., concur.