author: JUSTICE RIZZI

text:
    ROSEBUD ANANE, Adm’r of the Estate of Daniel K. Anane, Deceased, Plaintiff-Appellant, v. PETTIBONE CORPORATION et al., Defendants (American Process Systems Corporation, Defendant-Appellee).
    First District (3rd Division)
    No. 1 — 88—3076
    Opinion filed September 12, 1990.

      John B. Davidson, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Lenard C. Swanson and Sarah L. Olson, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Rosebud Anane, administrator of the estate of Daniel K. Anane, deceased, filed a products liability action against multiple defendants after the death of her husband due to a factory accident. Plaintiff appeals from the order of the circuit court granting the motion of American Process Systems Corporation (American) to dismiss her amended complaint on the ground that the action was barred by the two-year statute of limitations.

On appeal, plaintiff argues that the trial court’s granting of the motion to dismiss was erroneous because American was (1) estopped from raising a limitations defense and (2) American was timely served before the expiration of the limitations period pursuant to the relation back theory of section 2 — 616(d) of the Illinois Code of Civil Procedure (111. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)). We agree and reverse the order granting the motion to dismiss.

Daniel K. Anane was employed at Tomoegawa, a factory located in Wheeling, Illinois. On June 25, 1984, while working at or in a ribbon blender (mixing) machine, he was injured when the machine activated. Daniel suffered a traumatic leg amputation and various bone fractures and was flown to the University of Chicago Hospital, where he died on the operating table. His widow and three minor children survived him.

In August 1984, a few weeks after Daniel’s death, plaintiff’s counsel obtained a court order to inspect and test the blending machine. On September 28, 1984, plaintiff inspected the machine in order to identify the manufacturers and distributors. The complaint named as defendants C.A. Riley Electric Construction Co., the installer of the electric control panel, Instrumentation Services Inc., manufacturer of a unit of the electric control panel, and Beardsley & Piper Division, Pettibone Corporation (Pettibone). Plaintiff believed that Pettibone was the manufacturer of the blending machine because the machine had a Pettibone nameplate. Plaintiff alleged that since the machine was without adequate safety devices, it was unreasonably dangerous and susceptible to abrupt and unintended activation.

Although the machine displayed the Pettibone nameplate, it was manufactured by American. Pettibone ordered the ribbon blender machine involved in the accident at Tomoegawa from American on March 13, 1979. In February 1979, Pettibone and American had a contractual relationship whereby American manufactured and assembled blending machines for the Pettibone label and Pettibone marketed and sold the. machines. The contract provided that American would hold Pettibone harmless from any liability due to faulty design. In addition, the parties agreed to notify each other of any lawsuits and to cooperate in the conduct of any such lawsuit. Specifically, the contract provided:

“10. (a) In jurisdictions where American cannot be made a defendant or a third party defendant, subject to the proviso in the following sentence, American will indemnify and hold B&P harmless from any liability, including costs and expenses incurred in defending B&P including attorneys’ fees, resulting from alleged improper construction, materials, workmanship, and design, or from a failure of the Product to comply with specifications or any implied or expressed warranties of American, where such liability in fact arises from acts or omissions which are within American’s sole and exclusive control, or from joint and/or concurrent acts of American and a third party, other than B&P, who is an employee, agent, contractor, or subcontractor of American in the construction, installation, modification, repair, maintenance, or adjustment of the Product. Provided, American shall have the right to disagree with any amount paid by B&P in the settlement of any liability and, if the parties cannot agree, the amount of American’s liability under the indemnity provisions in the first sentence of this paragraph, may be litigated by the parties. Where such liability arises from the joint and/or concurrent acts or omissions of American and B&P and/or a third party, the ultimate liability or obligation of American to B&P shall be determined in accordance with their proportionate degree of negligence, fault or liability, as ultimately agreed upon between the parties or as determined by a court of competent jurisdiction.
* * *
(c) In the event of an occurrence, accident, claim or suit against either party, resulting from alleged or claimed defects in American Product, written notice containing particulars, to the extent then known to the party, sufficient to identify the time, place, individuals or companies, and the circumstances thereof, and the names and addresses of the injured party and of available witnesses if then known to the parties, shall initially be given by that party to the other as soon as practical.
(d) If a claim is made or suit is brought against either party, resulting from alleged defects in American Products, that party shall immediately forward to the other party a copy of every demand, notice, summons or other process received in the initial service.
(e) Each party shall cooperate with the other in the conduct of suits to the extent such cooperation is not in conflict with its own interests.”

The contractual arrangement encompassing the above-cited provisions was terminated as of June 1, 1981. Plaintiff was not aware, however, that American was the manufacturer of the product or of the contract between Pettibone and American until September 1986.

Plaintiff served Pettibone with summons on October 12, 1984, less than four months after the occurrence. On October 29, 1984, Pettibone’s in-house counsel informed Stephen Bent, president of American, of the suit. At that time, Bent was already aware of the lawsuit. The following day, October 30, 1984, Pettibone’s counsel delivered to Bent a copy of the summons. In addition, outside counsel for Pettibone and American met and discussed the lawsuit.

Pettibone filed an appearance on November 2, 1984, and its answer on February 28, 1985. Pettibone did not, however, implead American as a third-party defendant or disclose American as the manufacturer. The complaint alleged: “The defendant, Beardsley & Piper, a division of Pettibone Corporation (hereinafter Beardsley) had designed, manufactured, sold, delivered and placed in the stream of commerce, a blender or mixing machine bearing the model number PRB 36; a unit of said model having been sold to Tomoegawa.” In response, Pettibone answered: “The defendant neither admits nor denies the allegations set forth in [paragraph [tjhree, [cjount I, having insufficient knowledge and belief as to the truth, and demands strict proof thereof.” Pettibone did not attach an affidavit of the truth of the statement of want of knowledge as required by the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 610(b).

On February 14, 1985, plaintiff filed and served written interrogatories asking Pettibone to identify the machine’s manufacturer. On March 7, 1985, plaintiff filed and served upon Pettibone a request for production of documents requesting, inter alia, all contracts of purchase, invoices and correspondence pertaining to the sale or manufacture of the machine. Pettibone refused to comply with the discovery requests and in January 1986, prior to the hearing on plaintiff’s motion to compel, approximately 18 months after the occurrence, filed a bankruptcy petition.

On February 27, 1986, the circuit court granted Pettibone’s motion staying all proceedings, including discovery, against Pettibone. Not until September 3, 1986, two years and two months after the occurrence, at a bankruptcy discovery conference, did Pettibone disclose to plaintiff’s counsel for the first time that the machine was manufactured by American. Pettibone also revealed that the president of American had been informed of the lawsuit in 1984.

Consequently, on November 12, 1986, plaintiff filed a fourth amended complaint naming American as an additional defendant. In its January 28, 1987, answer, American acknowledged that it had manufactured the blending machine in question. Nonetheless, on February 17, 1987, American filed a motion to dismiss the complaint as time barred.

The amended complaint additionally alleges that (1) Pettibone delayed disclosure to plaintiff that Pettibone had not manufactured the machine and that American was the manufacturer; (2) the action was filed within the statute of limitations period and any failure to serve American was due to nondisclosure and inadvertence; (3) pursuant to the attached agreement between Pettibone and American each party was under an express obligation to notify and inform the other of every demand, notice, summons or process received relating to any claim or suit resulting from alleged defects in products, including the ribbon blender manufactured by American; (4) in order to improve the marketing of American products, American products were sold using Pettibone’s name; (5) Pettibone fulfilled its obligation to notify American of the instant action and concealed the fact that American was the manufacturer; (6) under these circumstances service upon Pettibone constituted service upon American’s agent; and (7) the same operative facts pled against Pettibone were the same facts alleged against American and American was aware of the cause of action.

On September 13, 1988, the trial court found that the action against American was time barred and granted American’s motion to dismiss. Specifically, the court stated that “[cjounts I, III, IV and VI of plaintiff’s 8th [ajmended [cjomplaint are dismissed completely as against American. Counts II and V of plaintiff’s 8th [ajmended [cjomplaint are dismissed as against American, except for the claims of the minor plaintiffs. This ruling is final and there is no just reason to delay an appeal or enforcement therefrom.”

Plaintiff argues that American is estopped from invoking the bar of the statute of limitations because (1) the Pettibone nameplate misled plaintiff from identifying the manufacturer of the product; and (2) American and Pettibone deliberately delayed disclosure of American as the manufacturer. Secondly, plaintiff argues that the elements of the relation back doctrine of the Illinois Code of Civil Procedure (111. Rev. Stat. 1985, ch. 110, par. 2 — 616(d)) are present since American and Pettibone pursuant to their contract were in privity and acted as agents with respect to this litigation. We believe that American is estopped from asserting a statute of limitations defense. We also believe that plaintiff timely served process upon American pursuant to the relation back theory of section 2 — 616(d) of the Illinois Code of Civil Procedure.

American had the Pettibone nameplate placed on its machine. Pettibone had a duty to inform plaintiff when answering the complaint and interrogatories and responding to the request for production of documents that (1) Pettibone was not the manufacturer of the machine; (2) American was the manufacturer; and (3) to produce the contractual agreement. Pettibone and American led plaintiff to believe that Pettibone was the manufacturer of the machine and upon which plaintiff relied to her prejudice. Under these circumstances, American is estopped from asserting the bar of the statute of limitations. Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 777, 433 N.E.2d 315, 324.

The doctrine of estoppel requires proof of the following six elements: (1) words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made. Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074,1079, 416 N.E.2d 385, 389-90.

In the present case, (1) the Pettibone nameplate concealed that American was the machine’s manufacturer; (2) American knew that the representation of Pettibone as the manufacturer was untrue; (3) plaintiff did not know that Pettibone was not the manufacturer; (4) American should have expected that the nameplate would have been relied upon by the plaintiff; (5) plaintiff relied upon the nameplate and diligently pursued discovery; and (6) plaintiff would be prejudiced if American is permitted to deny that it manufactured the product. Accordingly, we find that American is estopped from asserting the defense of the statute of limitations as a bar to plaintiff’s cause of action.

In addition, a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute prescribing or limiting the time in which an action may be brought if certain conditions are met. (Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 587, 488 N.E.2d 1111, 1113.) An amendment to a complaint will relate back to the original time of filing if each of the five following conditions is met: (1) the time prescribed or limited had not expired when the original action commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his agent or partner, even though he was served in the wrong capacity or as agent of another; (4) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading even though the person was not named originally as a defendant. (111. Rev. Stat. 1985, ch. 110, par. 2 — 616(d).) This statute is to be construed liberally to the end that causes are decided on their merits and not by procedural technicalities. Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 590, 488 N.E.2d 1111, 1115.

Given the parties’ contractual agreement, we conclude that Pettibone was an agent for the purpose of service of process upon American. (Hix v. Amato (1977), 50 Ill. App. 3d 761, 365 N.E.2d 1148.) Pettibone was held out to the public as manufacturer of the machine. Defendant never submitted sufficient answers to interrogatories, an affidavit, or documents in response to plaintiff’s requests. Plaintiff’s efforts to ascertain the identity of the manufacturer were reasonable. (Myers v. Centralia Cartage Co. (1981), 94 111. App. 3d 1139, 1143, 419 N.E.2d 465, 468.) Any mistake as to the identity of the person who should have been named as the proper party defendant was induced, if not caused, by the representations of Pettibone. Campbell v. Feuquay (1986), 140 111. App. 3d 584, 590, 488 N.E.2d 1111, 1115.

The decision as to whether amendments to the pleadings should be allowed rests with the sound discretion of the trial court; and the test for determining whether that discretion has been abused is whether the trial court’s decision furthers the ends of justice. (Feuquay, 140 Ill. App. 3d at 590.) This test has not been satisfied here.

We therefore conclude that the trial court abused its discretion in finding that plaintiff was not entitled to amend the complaint under section 2 — 616 of the Illinois Code of Civil Procedure. We also conclude that the trial court erred in dismissing plaintiff’s cause of action.

Accordingly, the order of the circuit court of Cook County granting American’s motion to dismiss is reversed and this matter is remanded for further proceedings.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY E. DAVIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—0651
    Opinion filed September 12, 1990.

      Darryl M. Bradford, Scott C. Tomassi, and K. Clark Shirle, both of Jenner & Block, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Margaret M. Regan, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Larry Davis, was convicted for armed robbery on June 13, 1979, following a bench trial and was sentenced to 12 years in the Illinois Department of Corrections. On direct appeal, this court affirmed the defendant’s conviction. (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210.) The defendant now appeals from the circuit court’s dismissal of his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2 et seq.). The petition alleged, inter alia, that: (1) the defendant was denied effective assistance of trial counsel; (2) a statement made by the defendant was erroneously admitted at trial in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; and (3) the defendant was denied effective assistance of appellate counsel. After an evidentiary hearing, the trial court denied the defendant’s petition for relief on the ground that he failed to show that his trial was reduced to a charade or a sham as a result of the alleged ineffective assistance of trial counsel. The trial court refused to consider the defendant’s claims asserting a Miranda violation and ineffective assistance of appellate counsel. The remaining counts in the petition are not relevant to this appeal.

The evidence produced at the defendant’s trial reveals the following. On the afternoon of July 26, 1978, three armed men robbed the Chicago Spring and Bumper Company, an automobile repair shop located at 4611 West Lake Street in Chicago. The complaining witness, Henry Jeffery, testified that he was seated at his desk with a customer named Renard Taylor. Jeffery and Taylor then walked into the garage area whereupon Jeffery noticed two men: one standing near a doorway and the other standing near a Coke machine. Jeffery identified the man standing near the Coke machine as the defendant. Jeffery testified that he was eight feet away from the defendant and observed him for approximately a minute and a half until he was distracted by some shouting behind him. Upon turning around, Jeffery saw two of his mechanics running and a third man holding a long-barreled gun. The defendant ordered Jeffery to lie down on the floor. Everyone else was ordered to do the same. The defendant then entered the office area and escorted Jeffery’s secretary, Joyce Bell, into the garage area, where she too was ordered to lie down on the floor.

The defendant ordered a customer to give him money whereupon the customer pointed to Jeffery, telling the defendant that Jeffery was the owner. The defendant walked over to Jeffery and pointed a nickle-plated handgun at Jeffery’s back and asked for the location of the money. Jeffery told the defendant the money was in the office. The defendant then picked Jeffery off the ground, and they entered the office area, where the defendant took $200 from the cash register. The defendant then ordered Jeffery to give him all the money in his pockets. Jeffery testified that at this point, he noticed that the defendant had placed a nylon stocking over his head. The defendant had not been wearing the stocking when Jeffery first noticed him standing near the Coke machine. Jeffery stated, however, that he could see the defendant’s face through the stocking. The other customers were forced to hand over their money to the defendant’s accomplices. One of the robbers had a leather satchel in which they placed the money. The defendant and the second man exited through the front entrance and fled on foot. Jeffrey never saw how or where the third man departed.

On August 7, Jeffery viewed a lineup and identified the defendant. At trial, Jeffery was shown a photograph of the lineup and when asked if the man he identified in the lineup was the same person he pointed to in court, Jeffery replied “I think so.” On cross-examination, Jeffery conceded that he was tentative when he identified the defendant at the lineup. He further admitted that he asked to see the lineup a second time and had to observe the participants from all sides before making an identification. During redirect, Jeffery explained in regard to the lineup that “I said there was no doubt in my mind that the number three man was the man but I felt I did not see his face long enough to say positive that that was the man.” Jeffery further stated that after seeing the defendant in court, there was no doubt in his mind that the defendant was the gunman who robbed him.

Joyce Bell testified that she was working in the office when a man with a gun entered and asked her where the money was located. Bell responded that she had only been employed at the shop for two days and did not know where anything was located. The gunman then walked behind her, pointed his gun at her back, and told her to get on the floor in the garage area alongside everyone else. Bell identified the defendant in court as the gunman. Bell also viewed a lineup on August 7 during which she made a positive identification. Bell further testified that she noticed that the defendant was wearing a nylon stocking over his face but that the stocking was made of a very sheer nylon that she could see through very clearly. During cross-examination, Bell stated that she had told an officer at the lineup that the gunman had reddish hair. (The defendant, who is an African-American, maintains that he has black hair and has always had black hair.)

Virgil Butrum testified that he was a customer observing his car being repaired in the garage area when the robbery occurred. Butrum stated that he heard a voice telling him to “freeze” and that he saw a man holding a machine gun. The man told him to lie on the floor. Butrum testified that a weapon, marked as exhibit number 2, was similar to the machine gun he observed during the robbery.

The State’s last witness, Officer Robert Pietrowski, testified that he and three other officers were questioning the defendant about his name and address on August 7 while the defendant was in custody for an unrelated offense. Defense counsel objected to the prosecutor’s question asking for the defendant’s response on the grounds that the defendant’s response was hearsay and the subject matter of the conversation was not disclosed in discovery. The trial judge overruled the objection, but offered defense counsel a continuance to mitigate any possible surprise. The offer was declined. Pietrowski then testified that he heard the defendant tell an Officer Miller that his address was 718 North Drake, second floor, rear apartment. He further testified that he obtained and executed a search warrant at 718 North Drake on August 7 where he recovered a semi-automatic .45 caliber rifle and a .45 caliber magazine. Officer Pietrowski identified exhibit number 2, the same weapon identified by Virgil Butrum as the type of weapon used in the robbery, as the weapon he recovered from the defendant’s apartment.

The defense called two police officers to testify. Officer Thomas Piekarski stated that he conducted the August 7 lineup and that four persons viewed the lineup. In addition to Jeffery and Bell, the lineup was also viewed by Mr. Eddie Thigpen, a Chicago Spring and Bumper employee, and Mr. Martin Turpel. Renard Taylor viewed a lineup on August 8. Officer Camelia Antoinette Portis also testified regarding statements by witnesses she recorded at the scene, but nothing material was elicited.

In his closing statement, defense counsel argued that the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt because the identification testimony by Jeffery and Joyce Bell lacked credibility, and the weapon found in the defendant’s apartment was only shown to be “similar” to the type of weapon used in the robbery. The trial judge found the defendant guilty.

Prior to sentencing, the defendant filed a pro se motion for a new trial alleging ineffective assistance of counsel. The trial judge appointed a State Appellate Defender to represent Davis for his post-trial motion, and the appellate defender subsequently substituted an amended post-trial motion. Following a hearing, the trial judge denied the motion. The crux of the post-trial motion was trial counsel’s failure to investigate the disappearance of the defendant’s briefcase after the police confiscated it upon his arrest for an unrelated offense. The defendant testified that when advised he was a suspect in the robbery, he asked to see his briefcase. The contents were then spilled on the table and he noticed that an appointment book was missing. The defendant asserted in his post-trial motion that the book contained information that would have revealed his whereabouts at the time of the robbery. The trial judge concluded that trial counsel never received a clear communication from the defendant as to the value of the papers in the briefcase and therefore the defendant was not denied effective assistance of counsel. No other deficiencies in representation were alleged. The trial judge further concluded that the evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt notwithstanding Joyce Bell’s characterization of the defendant as having reddish hair, and he commented that he did not think it was unreasonable to characterize the defendant’s hair as having a red cast to it.

On direct appeal, the defendant argued that: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial because the State suppressed evidence; (3) the statement by the defendant disclosing his address was admitted in violation of Miranda v. Arizona; and (4) he was denied his right to effective assistance of trial counsel. The defendant’s ineffective assistance of trial counsel claim was broadened to include failure to adequately prepare for trial and failure to move for mistrial. In affirming the defendant’s conviction, the appellate court held that the evidence was sufficient (103 Ill. App. 3d at 794) and rejected the defendant’s contention that the State improperly suppressed evidence on the ground that the personal effects in the briefcase were not shown to be material to the defendant’s defense. (103 Ill. App. 3d at 795.) The appellate court further held that the defendant’s address was obtained during the routine booking process and Miranda warnings were therefore not required (103 111. App. 3d at 796), and that the defendant was. not denied effective assistance of counsel. The court stated that the record showed that trial counsel conducted careful cross-examination, made appropriate objections when necessary, moved for a directed verdict, and presented an organized closing argument. 103 Ill. App. 3d at 796.

Between 1980 and 1984, the defendant filed three petitions in Federal court for a writ of habeas corpus. Each was denied for failure to exhaust State remedies. Before dismissing the third petition, the district court appointed present counsel, the law firm of Jenner and Block, and gave the defendant 60 days to amend his third petition. The petition was so amended and later dismissed on August 28, 1985. The presiding judge, Prentice Marshall, dismissed the petition reluctantly, stating that the evidence suggested that the defendant had not received a fair trial. In a lengthy memorandum opinion, Judge Marshall gave this account in the following passage:

“Petitioner’s counsel failed to interview a single eyewitness to the robbery — a fact significant because of the several eyewitnesses to the robbery, only three identified petitioner in a lineup. Two of these testified at petitioner’s trial. The identifications by both of these witnesses were shaky. During the robbery, the robber wore a nylon stocking over his head and face, but neither witness mentioned the stocking to police. It was not until trial that they mentioned the stocking. One witness initially reported to the police that the robber had red hair. Petitioner is a black man with black hair. The other witness failed to identify petitioner in the first lineup and could only identify him after a second look from all sides.” United States ex rel. Davis v. Lane (N.D. Ill. August 27, 1985), No. 83 — C—6194, slip op. at 5.'

The defendant subsequently filed the present petition for post-conviction relief on August 6, 1986. As stated earlier, the defendant alleged, inter alia, that he was denied a fair trial due to ineffective assistance of trial counsel; that his statement disclosing his address was admitted in violation of Miranda v. Arizona; and that he was denied effective assistance of appellate counsel. Specifically, the gravamen of the defendant’s first claim was trial counsel’s failure to interview and call as witnesses persons identified in police reports as eyewitnesses to the robbery. He further alleged that evidence outside the record would demonstrate that the statement he made to the police disclosing his address was not elicited during routine booking and was therefore admitted in violation of Miranda v. Arizona. Finally, the defendant alleged that appellate counsel was incompetent for failing to raise these issues on appeal.

A hearing was held on February 15 and 16, 1989, during which it was revealed that Robert Stoller, the public defender who was appointed to represent the defendant, was replaced by another public defender, Peter Bell, sometime prior to trial. Peter Bell met with the defendant for the first time only two days before trial and his initial meeting lasted only 15 minutes as the defendant was upset by the change in representation. Bell was only able to ask basic biographical questions and, according to the defendant, Bell did not seem to have a grasp of the facts. The defendant became agitated and terminated the interview. The testimony revealed that Mr. Bell did not seek a continuance and that he could not recall the reasons for not requesting one. Bell also stated that he could not recall a specific time or date for conferring with Stoller about the case but that it would have been inconceivable that they did not as they would have met as a matter of course.

Prior to trial, Stoller and Bell had in their possession police reports listing the names, addresses, and phone numbers of eyewitnesses to the robbery. Also contained in these reports were the results from a series of lineups. These reports, which were never admitted into evidence at the defendant’s trial, indicated that while Joyce Bell positively identified the defendant, Jeffery and Taylor only made tentative identifications and two other witnesses, Eddie Thigpen and Martin Turpel, were unable to pick out the defendant as one of the robbers. The reports further indicated that three other eyewitnesses refused to view lineups altogether. Despite having this information, Stoller could not recall whether he interviewed any of these witnesses. Bell testified that he had a recollection of speaking with three witnesses but that he could not remember who they were. He also stated that he remembered the existence of an interview sheet containing information as to one witness but that the sheet was now missing from the file. When asked why he did not call any of the other eyewitnesses at trial, Bell stated that he must have concluded that whatever he was told by them would not have been helpful. Bell further stated that he did not interview either Joyce Bell or Jeffery even though he had predicted that Joyce Bell and Jeffery would be called as witnesses. An entry on the public defender’s docket sheet indicated, however, that Joyce Bell was unavailable as she had moved.

The police reports also indicated that a cap had been discovered at the scene and inventoried. The trial testimony revealed that the gunman identified as the defendant wore some kind of “headgear” described as a “cap over something.” Mr. Bell testified that he did not investigate the cap to check whether there were any hair samples on the cap that could have been tested for identification purposes. The trial testimony also reveals, however, that the second man, who carried a knife during the robbery, also wore a cap. Only one cap was found and inventoried.

The defendant then sought to elicit testimony regarding trial counsel’s failure to impeach Joyce Bell and Jeffery. The trial judge refused to admit such testimony on the ground that the issue should have been raised on appeal. The defendant made an offer of proof showing that Joyce Bell and Jeffery testified at trial that the defendant wore a stocking mask and that this information was not contained in the police reports.

The defendant also sought to introduce evidence, some of which was admitted and some of which was refused, showing that the defendant’s address was not elicited during routine booking as stated by the prosecution at trial, but in fact, was elicited during a custodial interrogation. The trial judge refused to consider the issue on the grounds that the issue should have been raised on appeal, and the defendant made several offers of proof. The thrust of the defendant’s Miranda theory was that he gave an incorrect address upon arrest which is reflected in the arrest report that was filled out during booking, and that the defendant’s true address was obtained later during a custodial interrogation without being advised of his Miranda rights. The record also reveals that the defendant was arrested with three other persons, one of whom may have disclosed the defendants true address and informed the police that the defendant had a gun in his apartment.

The defendant also sought to introduce the testimony of Eddie Thigpen, but the court refused to permit him to testify. An offer of proof was made showing that Thigpen was never contacted by any public defender and could have testified at trial that he could not identify the defendant as one of the robbers during a lineup. After the offer of proof was completed, the trial judge allowed into evidence the statement that Thigpen had never been contacted by any public defender.

The defendant also made an offer of proof on another issue concerning trial counsel’s failure to accept the trial judge’s offer of a continuance when Officer Pietrowski gave surprising testimony about the defendant’s statement revealing his true address. Finally, the defendant made an offer of proof regarding his alleged inadequate representation at the appellate level after the trial court refused to hear evidence on that issue, ruling that the issue was “a matter that has already been addressed in the appellate court level, and I can’t rule on that.” As indicated above, the lower court applied the “farce or sham” standard in determining the issue of ineffective assistance of trial counsel and denied the defendant’s petition for post-conviction relief.

On this appeal, the defendant contends that the trial judge erroneously applied the “farce or sham” standard and that under the correct standard, the evidence admitted at the hearing is sufficient to show ineffective assistance of trial counsel. The defendant maintains that the evidence adduced at his post-conviction hearing proves that trial counsel was unprepared for trial as counsel did not meet with him until two days before trial and was unfamiliar with the facts and possible defenses. The defendant asserts that his trial counsel’s failure to prepare resulted in the absence of Eddie Thigpen and Martin Turpel at trial. The defendant argues that their testimony, which would have revealed their prior failure to identify the defendant at the lineups, would have created a reasonable doubt as to the defendant’s guilt when considered in conjunction with what Judge Marshall characterized as the “shaky” testimony of Henry Jeffery and Joyce Bell. The defendant asserts that the trial counsel’s failure to have the cap investigated for hair samples deprived the defendant of potentially exonerating evidence.

In the alternative, the defendant contends he is entitled to a new hearing because the excluded evidence, when considered in combination with the admitted evidence, would show that he was denied effective assistance of trial counsel. The defendant further contends that his statement disclosing his address to the police was admitted in violation of Miranda v. Arizona. On direct appeal, this court held that Miranda warnings were not required because the address was obtained during booking. The defendant asserts that the police reports, which reveal that the defendant gave an incorrect address during booking, demonstrate that the defendant’s correct address must have been obtained during a custodial interrogation. Finally, defendant argues that the trial judge erred in refusing to allow evidence regarding his claim that he was denied the effective assistance of appellate counsel.

The Post-Conviction Hearing Act affords convicted criminal defendants a proceeding to collaterally attack the final judgment of conviction where it is alleged that substantial violations of constitutional rights occurred in their trials. (People v. Owens (1989), 129 Ill. 2d 303, 307-08, 544 N.E.2d 276.) The scope of the proceeding is limited to issues which have not been, and could not have been, adjudicated previously. (Owens, 129 Ill. 2d at 308.) The determination of the trial judge in a post-conviction proceeding will not be disturbed on appeal unless it is manifestly erroneous. (People v. Lovitz (1984), 127 Ill. App. 3d 390, 398, 468 N.E.2d 1010.) After careful review of the record and the arguments presented to us, we reverse and grant the petitioner a new trial. We agree that the evidence admitted in the post-conviction hearing establishes that the petitioner was denied effective assistance of trial counsel. Our decision renders it unnecessary to reach the defendant’s remaining claims.

Before explaining our reasons for reversing, we briefly respond to those contentions of the State seeking to bar our consideration of the merits on procedural grounds. The State contends that the question concerning the failure to interview and call witnesses is waived because the police reports were in the defense’s possession and, therefore, the issue could have been raised on direct appeal. It is well settled that “all issues actually decided on direct appeal are res judicata, and all those which could have been presented [on direct appeal] but were not are deemed waived.” (E.g., People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631.) The question here, therefore, is whether the failure to interview and call witnesses listed in the police reports could have been raised on direct appeal even though the reports were never admitted into evidence at trial. The State relies upon People v. Jones (1985), 109 Ill. 2d 19, 23, 485 N.E.2d 363, where the court applied the waiver rule because “every ground for ineffectiveness that defendant has properly raised was apparent from the original appellate record or could have been supplemented to that record under our Rule 329 (87 Ill. 2d R. 329).” The State cites no authority, however, showing that Supreme Court Rule 329 would have permitted the defendant to supplement the record on appeal with the police reports in question. As Rule 329 applies to “[m]aterial omissions or inaccuracies or improper authentication,” the State’s argument is not convincing. See People v. Tinsley (1974), 16 Ill. App. 3d 360, 361, 306 N.E.2d 310.

The State further asserts that the court should not address the failure to interview and call witnesses on the ground that the defendant failed to attach affidavits to his petition showing the significance of the potential testimony of the absent eyewitnesses. (See People v. Jennings (1952), 411 Ill. 21, 26, 102 N.E.2d 824; People v. Carmickle (1981), 97 Ill. App. 3d 917, 920, 424 N.E.2d 78.) This contention is without merit, however, as an evidentiary hearing has already been conducted and, as the State did not raise the issue below, the State cannot raise it now for the first time on appeal. People v. Washington (1967), 38 Ill. 2d 446, 449, 232 N.E.2d 738.

“The ‘benchmark’ for judging a claim of ineffective assistance of counsel is ‘whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” (People v. Garza (1989), 180 Ill. App. 3d 263, 267, 535 N.E.2d 968, quoting Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.) In evaluating counsel’s performance, matters of judgment, discretion and trial tactics are not reviewable. (People v. Reed (1980), 84 Ill. App. 3d 1030, 1042, 405 N.E.2d 1065.) The mere fact that the trier of fact rejected the defendant’s defense or that another attorney aided by hindsight would have handled the case differently is not indicative of incompetence. (Reed, 84 Ill. App. 3d at 1043.) Claims of ineffective assistance of counsel must be resolved on a case-by-case basis. Garza, 180 Ill. App. 3d at 269.

In ruling against the defendant, the trial judge commented as follows:

“The Petitioner is under *** the obligation to show by evidence that the trial and the assistance of the counsel that he had at his trial reduced the trial at which he was found guilty to, I think the courts call it, a charade.
And that the level of legal counseling is so low that it just about amounts to no counsel at all.”

The State concedes that the trial judge was in error. At the time of the defendant’s trial in 1978, the “farce or sham” standard governed where the accused was represented by retained or private counsel. (People v. Royse (1983), 99 Ill. 2d 163, 168, 457 N.E.2d 1217.) Where the accused was represented by appointed counsel, as was the defendant here, the applicable standard held that counsel was constitutionally ineffective if counsel was actually incompetent, and the incompetence produced substantial prejudice to the defendant without which the result would have been different. People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.

The parties are in agreement that the Greer standard is the correct standard. The defendant also advises us that he does not contend that the current standard enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, applies retroactively. Under Strickland, the defendant must show: (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable probability that but for counsel’s unprofessional performance, the result would have been different. (E.g., Owens, 129 Ill. 2d at 309.) We note, however, that our disposition of this appeal would not differ under either standard as we agree with the second district that the two standards are “essentially the same.” People v. Young (1985), 136 Ill. App. 3d 107, 112-15, 482 N.E.2d 1008. See also People v. Lewis (1984), 105 Ill. 2d 226, 244, 473 N.E.2d 901 (stating that the result would be the same under Strickland and Greer).

It is clear that “[t]he failure to interview witnesses may indicate actual incompetence (People v. Witherspoon (1973), 55 Ill. 2d 18), particularly when the witnesses are known to trial counsel and their testimony may be exonerating (People v. Stepheny (1970), 46 Ill. 2d 153).” (People v. Greer (1980), 79 Ill. 2d at 123. See also People v. Bell (1987), 152 Ill. App. 3d 1007, 1011-13, 505 N.E.2d 365; People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701.) The defendant’s trial counsel had in his possession police reports which contained the names, addresses and phone numbers of several eyewitnesses who were present during the robbery, two of whom were unable to pick out the defendant while viewing lineups. Moreover, the police reports indicated that of the several eyewitnesses, only Joyce Bell made a positive identification while Jeffery only made a tentative identification. Notwithstanding the value of this information, Eddie Thigpen was never contacted. The inability of Thigpen and Turpel to pick out the defendant while viewing lineups calls into question the reliability of the identifications by Jeffery and Bell. The failure to at least interview and secure the attendance of Thigpen at trial was, in our judgment, incompetent.

Our conclusion that trial counsel was incompetent is not inconsistent with this court’s previous decision on direct appeal that trial counsel conducted careful cross-examination, made appropriate objections when necessary, moved for a directed verdict, and presented an organized closing argument. (103 Ill. App. 3d at 796.) That decision was based solely on the evidence contained in the record. As explained by one court:

“[Representation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. Such omissions, of course, will rarely be visible on the surface of the trial, and to that extent the impression of a trial judge [or reviewing judge] regarding the skill and ability of counsel will be incomplete.” Moore v. United States (3d Cir. 1970), 432 F.2d 730, 739.

The State contends, however, that no prejudice has been shown as a result of counsel’s omissions. Prejudice is established where the defendant shows a reasonable probability that but for counsel’s unprofessional errors, the result would have been different. (Garza, 180 Ill. App. 3d at 268.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Garza, 180 Ill. App. 3d at 268.) The State makes the blanket assertion that the failure of Thigpen and Turpel to identify the defendant in a lineup “adds nothing to defendant’s case.” We disagree. Standing alone, the identification testimony by Jeffery and Bell was sufficient to convict. Their testimony, however, was crucial in view of the fact that the weapon recovered from the defendant’s apartment was only shown to be “similar” to the type of weapon used in the robbery and there was no other evidence linking the defendant to the robbery. Moreover, the defendant’s semi-automatic rifle was only shown to be similar to the type of gun used by the third gunman. The first gunman identified as the defendant had used a nickleplated handgun that was never recovered. Had the failure of Thigpen and Turpel to identify the defendant been brought to the attention of the trial judge, the identification testimony by Jeffery and Bell may not have carried as much weight. We believe that under the circumstances, had this additional information been presented, a rational trier of fact may have concluded that a reasonable doubt existed on the question of guilt. Consequently, we hold that there exists a reasonable probability that the outcome would have been different had trial counsel been adequately prepared.

Accordingly, we reverse the judgment of the circuit court denying the defendant’s petition and grant the defendant a new trial.

Judgment reversed.

RIZZI and WHITE, JJ., concur.


author: JUSTICE WHITE

text:
    TIE SYSTEMS, INC., Plaintiff-Appellee, v. TELCOM MIDWEST, INC., d/b/a Telcom Midwest, Ltd., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1— 89—2654
    Opinion filed September 12, 1990.

      Joe R. Milburn and John A. Clark, both of Kanter & Mattenson, Ltd., of Chicago, for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard C. Clark, David R. Canfield, and Edward M. Kay, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Defendants Telcom Midwest, Inc., Michael Fainman, James Van Wolvelear, Sandra Priola, Melissa Friedow, David Bandy, and Cyrel Scher have filed an interlocutory appeal from the circuit court’s grant of a temporary restraining order in favor of plaintiff Tie Systems, Inc. Defendants argue that the court’s order was against the manifest weight of the evidence and overly broad.

On November 29, 1987, TIE/Communications, plaintiff's parent company, purchased the assets of the Honeywell Communications Services Business. The purchase included Honeywell's contracts, its service and maintenance agreements with customers, and its customer lists and related data. On the same date, plaintiff was formed and the Honeywell customer lists and maintenance agreements were transferred to it. The individual defendants are former Honeywell employees who came to work for plaintiff after the acquisition.

In July 1989, plaintiff filed a five-count complaint for injunctive relief charging defendants with breach of contract, misappropriation of trade secrets, tortious interference with contractual relations, conspiracy, and violation of the Illinois Trade Secrets Act (111. Rev. Stat. 1987, ch. 140, pars. 351 through 359). Plaintiff alleged that the corporate defendant, Telcom, was formed by Michael Fainman in February 1989 and that the individual defendants left plaintiff’s employ for Telcom between February 1, 1989, and May 1, 1989. Plaintiff further alleged that the individual defendants acquired confidential and proprietary information while employed with plaintiff and were using that information for the benefit of Telcom.

In August 1989, plaintiff filed motions for a temporary restraining order and a preliminary injunction. In its motions, plaintiff alleged that it had near-permanent and ongoing relationships with its customers and that it maintained a confidential customer list, service and maintenance agreements, and other confidential and proprietary information. Plaintiff further alleged that defendants had obtained this information and were using it to solicit plaintiff’s customers and interfere with its customer relations. Plaintiff alleged that as a result of defendants’ activities plaintiff had sustained severe and irreparable injury to its long-standing customer accounts and an erosion of its business, including loss of customer accounts.

At a hearing on plaintiff’s motions, Raymond Baker testified that he became president of plaintiff nine months after the Honeywell acquisition, that approximately 1,100 of plaintiff’s 4,000 customers were obtained in the acquisition, and that plaintiff spent in excess of $1 million a year in maintaining its customers. Baker also testified that in recent months plaintiff had lost a number of customers to Telcom and that contract cancellations were occurring on a daily basis.

Baker testified that after he became president, he took steps to protect plaintiff’s customer lists and other proprietary information by developing a computerized customer list and eliminating the Honeywell practice of releasing complete customer lists to prospective customers. Another step taken was the removal of sales files from the salespersons’ desks to a central filing area. Baker testified that the sales files contained information about the customers’ phone systems, their maintenance contracts, work done subsequent to the installation of the systems, and customer cut-over dates.

Baker explained that cut-over dates were the dates on which customers would renew their contract with plaintiff or buy services or other materials based on the contract. According to Baker, the dates were important because other vendors might be able to persuade a customer to do business with them by contacting the customer at the cut-over date. Baker also stated that unlike the customer lists, renewal dates and cut-over dates were kept confidential and never disseminated to prospective customers.

Julie Koster and Margaret Stayart, employees in plaintiff’s customer service department, testified that during the last week of April 1989, they saw Cyrel Scher going through plaintiff’s filing cabinets and removing a large number of files. Koster stated that a salesperson usually would not need such a large amount of files. Koster also stated that the area in which the files were stored was open to all employees and that the file cabinets were not locked.

Bob Elstner, an installation supervisor, testified that near the end of April 1989, he observed Scher carrying an armload of files to her car. Elstner claimed it was unusual for a salesperson to remove such a large amount of files from the building.

Jeffrey Jolitz, purchasing manager for one of plaintiff’s customers testified that on May 10, 1989, one month before his cut-over date, he was contacted by Scher on behalf of Telcom. Jolitz testified that Scher offered to service his company at a percentage of the price charged by plaintiff.

Subsequently, Julie Koster was recalled to testify concerning newly discovered evidence. Koster testified that she had recently discovered that approximately 500 of plaintiff’s sales files were missing and that defendants had been responsible for the majority of the customers whose files were missing. A list of the names of the customers whose files were missing was admitted into evidence over defendants’ objection. The list included Jeffrey Jolitz’s company.

Michael Fainman was called as a witness on defendants’ behalf. He testified that he began working for Honeywell in 1983 and that it was Honeywell’s practice to distribute complete customer lists with every proposal. Fainman testified that this practice continued during the period immediately after the plaintiff corporation was formed but was discontinued in October 1988, when the information was stored on plaintiff’s computer system. Fainman stated that neither he nor the other individual defendants had access to plaintiff’s computer system.

Fainman testified that he resigned from plaintiff’s employ on February 1, 1989, and that Telcom was incorporated on February 24, 1989. Fainman stated that at the time of the hearing Telcom had approximately 150 customers and that 50% to 60% of them were formerly plaintiff’s customers. Fainman stated that Telcom obtained its customers by contacting those customers the individual defendants had formed relationships with while employed at Honeywell.

When questioned about cut-over dates, Fainman stated the dates were important because contracts were signed on those dates and because they provided a reference point for payments and warranties. However, Fainman testified that it was not necessary to have any particular documents to determine a cut-over date because the information could be obtained from the customer or Illinois Bell. On cross-examination, Fainman testified that it was not normal procedure to give out cut-over dates and that Illinois Bell would not release information about cut-over dates without the customer’s permission.

On September 5, 1989, the trial court entered a memorandum order granting plaintiff’s motion for a preliminary injunction. The order stated that, while plaintiff’s customer lists were generally distributed and could be obtained from many sources, there was no indication that the termination dates, were known to anyone but the customers and plaintiff’s employees. The court found that the dates amounted to a trade secret, that defendants’ acquisition of and use of them was inconsistent with the interests of their former employer, and that defendants should be enjoined from soliciting plaintiff’s customers and from disclosing or using the dates pending the outcome of the litigation. Defendants have filed an interlocutory appeal from the trial court’s grant of the preliminary injunction.

To prevail on a motion for a preliminary injunction, a plaintiff must prove that: (1) it possesses a clearly ascertainable right which needs protection; (2) irreparable injury will occur without the protection of a an injunction; (3) the remedy at law is inadequate; and (4) there is a likelihood of success on the merits of the case. Cincinnati Tool Steel Co. v. Breed (1985), 136 Ill. App. 3d 267, 482 N.E.2d 170; Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 425 N.E.2d 1034.

The decision to grant or deny injunctive relief rests within the sound discretion of the trial court and its findings may not be disturbed absent a showing of an abuse of discretion. (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302.) In reviewing a trial court’s action on a motion for a preliminary injunction, this court’s role is limited to determining whether the trial court correctly exercised its broad discretionary powers. Lincoln Towers, 99 Ill. App. 3d at 355.

Defendants argue on appeal that the trial court’s grant of a preliminary injunction in plaintiff’s favor was contrary to the manifest weight of the evidence. Defendants contend that plaintiff failed to establish that it had any protectible business interests or that there was a likelihood that it would be successful on the merits.

Defendants devote several pages of their brief to the argument that plaintiff’s customer lists were not confidential and did not constitute a protectible business interest. Defendants ignore the fact that the trial court held that plaintiff had a protectible interest in the cut-over dates, not the customer lists. Thus, the confidentiality of the customer lists is not at issue and we are concerned only with whether the trial court properly found that plaintiff had a protectible business interest in the cut-over dates.

The record reveals that the defendants did not sign confidentiality agreements or enter into restrictive covenants while employed by plaintiff. In this situation, a protectible business interest will be found where a trade secret or a near-permanent customer relationship existed and a breach of confidentiality occurred. (Lincoln Towers, 99 Ill. App. 3d at 356.) In the present case, the trial court found that plaintiff’s cut-over dates constituted a trade secret.

A trade secret has been defined as a secret plan, process, tool, mechanism, or compound known only to its owner and those of his employees to whom it is necessary to confide. (Palin Manufacturing Co. v. Water Technology, Inc. (1982), 103 Ill. App. 3d 926, 431 N.E.2d 1310.) The factors considered in determining whether information constitutes a protectible trade secret include the extent that information is known outside the employer’s business, the extent the information is known by employees and others in the business, the extent of measures taken by the employer to guard the information, the value of the information to the employer and competitors, the effort or money spent in developing the information, and the ease or difficulty with which the information can be acquired or duplicated. (Burt Dickens & Co. v. Bodi (1986), 144 Ill. App. 3d 875, 494 N.E.2d 817; Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App. 3d 423, 468 N.E.2d 797.) In Burt Dickens, this court held that, under certain circumstances, expiration dates could constitute a trade secret. Burt Dickens, 144 Ill. App. 3d at 880-82.

In the present case, both Michael Fainman and plaintiff’s president Raymond Baker testified to the value of the cut-over dates and both testified that the dates normally would not be disclosed to those outside of the business. On the issue of the measures plaintiff took to guard the cut-over dates, the testimony of plaintiff’s employees indicates that the customer files containing the cut-over dates were not kept under lock and key and that all employees had access to the files during business hours. However, the absence of precautions restricting access to the information does not establish that the information is not confidential, particularly where, as here, there is evidence that a former employee removed files from the employer’s premises. Cincinnati Tool Steel Co., 136 Ill. App. 3d at 279; Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 451 N.E.2d 1338.

In arguing that the information concerning cut-over dates was not a trade secret, defendants point to Fainman’s testimony that the dates could be obtained from the customers themselves. However, the fact that the expiration dates could be obtained from customers was not found to be controlling in Burt Dickens. There, this court upheld a finding that the dates were trade secrets, stating that it would be a monumental task to duplicate plaintiffs customer expiration dates by contacting each of plaintiffs 1,600 customers. (Burt Dickens, 144 Ill. App. 3d at 882.) We find that our earlier holding is applicable in the present case, where plaintiff had 4,000 customers (1,100 of whom were former Honeywell customers) and where obtaining the cut-over dates would entail a similar effort.

Thus, we hold that the evidence presented supports the trial court’s finding that the dates constituted a trade secret. We now turn to the issue of whether defendants obtained the information through a breach of confidentiality.

A breach of confidentiality occurs when an employee acts in a manner inconsistent with his employer’s interest by surreptitiously copying or memorizing secret information for use after his termination in the solicitation of his employers customers. (Prudential Insurance Co. of America v. Van Matre (1987), 158 Ill. App. 3d 298, 511 N.E.2d 740; Burt Dickens, 144 Ill. App. 3d at 882; Lincoln Towers, 99 Ill. App. 3d at 358-59.) As we stated above, there is evidence in the present case that one of the defendants removed a large number of files from plaintiff’s central filing area one week before she left plaintiff’s employ. In addition, there was testimony that a large number of plaintiff’s files were missing.

Defendants argue that the trial court erred in admitting evidence about the missing files. We disagree.

Julie Koster testified that the list of missing files was prepared at the instruction of her department manager, after it was discovered that some customers had cancelled their maintenance agreements with plaintiff. Koster stated that the list was prepared by going through the main file, which contained folders on all plaintiff’s customers, and then checking the sales files to determine whether there was a corresponding file for each customer. The list contained the names of the customers for whom Koster found no corresponding sales files. On cross-examination, Koster testified that she did not know whether sales files ever existed for every name on the list. However, she also testified that during the course of her duties she had come into contact with sales files for some of the customers on the list and that those files were now missing.

Defendants claim that the list was inadmissible as a business record because there was no evidence that plaintiff had previously prepared this type of list. Defendants also attack the reliability of the list, arguing that Roster’s testimony demonstrates that the list was not based on her personal knowledge, but on her assumption that sales files had been prepared for every name on the list.

Supreme Court Rule 236 (107 Ill. 2d R. 236) provides that any writing or record made as a memorandum of an occurrence or event is admissible as evidence of that occurrence or event if made in the regular course of business and if it was in the regular course of business to make such a writing or record at the time of such occurrence or event or within a reasonable time thereafter.

We find that plaintiff’s list was admissible under Rule 236. We do not believe a contrary finding is required simply because plaintiff had never before made such a list. The fact that a record was made in response to a singular occurrence or event does not require a conclusion that it was not made in the regular course of business. See Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 487 N.E.2d 798; Newark Electronics Corp. v. City of Chicago (1970), 130 Ill. App. 2d 1021, 264 N.E.2d 868.

Rule 236 also provides that circumstances surrounding the making of a writing or record, including lack of personal knowledge by the maker, will affect the weight given the writing or record, not its admissibility. Accordingly, there is no merit to defendants’ argument concerning Roster’s lack of personal knowledge.

We find that the trial court properly considered the list in granting plaintiff’s motion. We also find that the list of missing files, together with the testimony that one of the defendants was seen removing files from plaintiff’s premises, was sufficient to support a conclusion that defendants obtained confidential information through a breach of confidentiality.

Having found that there was evidence of a protectible interest, we now consider whether plaintiff has established a likelihood of success on the merits.

To establish a likelihood of success on the merits, it is not necessary that a plaintiff make out a case which in all events will warrant relief at the final hearing. (Williams & Montgomery, Ltd. v. Stellato (1990), 195 Ill. App. 3d 544, 522 N.E.2d 1100; Shapiro v. Regent Printing Co. (1989), 192 Ill. App. 3d 1005, 549 N.E.2d 793; MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) All that is necessary is that the plaintiff raise a fair question as to the existence of a right needing protection, leading the court to belleve that the plaintiff will be entitled to the prayed-for relief if the proof presented at trial should sustain its allegations. Disher v. Fulgoni (1984), 124 Ill. App. 3d 257, 464 N.E.2d 639.

We have already found that there was evidence to support the trial court’s finding that a protectible right exists. We now find that the trial court could properly conclude that plaintiff would be entitled to relief if it sustained its allegations that defendants removed plaintiff’s files and used the cut-over dates contained therein to solicit plaintiff’s clients.

In light of the foregoing, we find no error in the trial court’s granting of plaintiff’s motion for a preliminary injunction.

Defendants argue that even if injunctive relief was proper, the trial court’s order was overly broad. They contend that if the court’s order was based on its belief that defendants were using the cut-over dates contained in the missing files to solicit plaintiff’s customers, the injunction order should have been limited to the customers whose files were missing.

Relying on Burt Dickens, plaintiff argues that the injunction order was not overly broad. In Burt Dickens, while employed by plaintiff, an insurance agency specializing in aviation policies, defendant compiled a list of plaintiff’s customers along with the expiration dates of their policies. After leaving plaintiff’s employ, defendant began using the expiration dates to solicit plaintiff’s customers. This court found that the dates were trade secrets and upheld the trial court’s order enjoining defendant from soliciting any of plaintiff’s customers. The court rejected defendants’ argument that the order was overly broad because it prohibited him from using sources other than the list to solicit plaintiff’s customers. The court stated that it would be impossible to determine whether defendant was using the list or other means to solicit plaintiff’s customers. Burt Dickens, 144 Ill. App. 3d at 885.

We find that the situation in Burt Dickens is distinguishable from that in the present case. Here, plaintiff has alleged that a certain number of files are missing and that defendants are using the cut-over dates in those files to solicit plaintiff’s customers. There has been no claim that defendants acquired or copied the cut-over dates of plaintiff’s other customers and there was testimony that defendants maintained personal relationships with some of the customers. Accordingly, we hold that the injunction order was overly broad and that defendants should be prohibited from contacting only those customers whose files are missing.

Defendants also argue that the court’s order was deficient because it failed to comply with the requirements of section 11 — 101 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 11— 101.) This argument is without merit. The court’s injunction order contained its finding that the cut-over dates were a trade secret, it stated the reasons for the entry of the injunction, and it specified the acts to be enjoined. Thus, the order clearly met the requirements of section 11 — 101.

Finally, defendants argue that plaintiff failed to establish its standing to assert its claims against defendants. Defendants argue that there was no evidence establishing that plaintiff had any ownership rights in the Honeywell assets acquired by TIE/Communications and that, therefore, the trial court erred in finding that plaintiff had a protectible interest in the assets. This argument also is without merit.

Plaintiff’s president, Raymond Baker, testified that in August 1988, TIE/Communications acquired his previous company, Teletek, and merged it with plaintiff. Baker testified that following the merger plaintiff’s assets, including customer information and other assets acquired in the Honeywell purchase, were transferred to his charge. We believe that this evidence is sufficient to establish that plaintiff has a real interest in the cause of action. Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 371 N.E.2d 881; and see General Motors Acceptance Corp. v. Elder (1960), 24 Ill. App. 2d 55,163 N.E.2d 721.

In conclusion, the order of the trial court enjoining defendants from soliciting plaintiff’s customers is affirmed. However, we restrict application of the injunction to the approximately 500 customers whose files plaintiff alleges are missing.

Affirmed with restriction.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ELZEY, Defendant-Appellant.
    First District (4th Division)
    No. 1— 87—2393
    Opinion filed September 13, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Laurie N. Feldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

After a jury trial, defendant, Michael Elzey, was found guilty of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2). Defendant was sentenced to 18 years in the Illinois Department of Corrections. On appeal, defendant raises the following issues: (1) whether he received effective assistance of counsel at a post-trial hearing; (2) whether the trial court failed to exercise its discretion properly in determining whether the probative value and the need for evidence of other crimes outweighed the prejudice to him; (3) whether the trial court considered an improper factor in imposing sentence; and (4) whether the trial court erred in refusing to order the State to disclose favorable work product.

We affirm.

At trial, the evidence established that on October 20, 1980, at approximately 10:30 p.m., complainant and defendant exited a bus at the corner of 67th Street and Langley Avenue in Chicago. Complainant got off of the bus from the front and defendant exited from the rear. As complainant walked in the direction of her residence, she noticed that defendant was following her. After walking some distance behind complainant, defendant ran up to complainant and told her to give him her wallet or he would kill her. Complainant observed a gun in defendant’s hand. She also noticed that he had what she described as a “wandering eye.”

Complainant then searched through her handbag for her change purse. When it became apparent that complainant could not locate her change purse, defendant grabbed her arm and started to drag her down the street. Defendant punched her in the face and again threatened to kill her when she tried to resist him.

Richard Adams, complainant’s 14-year-old neighbor, saw defendant holding complainant’s arm. When defendant noticed that Adams was looking at him, he pointed his gun at Adams and told him to go back the other way. Adams ran home and called the police. Adams also noticed that complainant’s assailant had peculiar eyes.

Defendant then dragged complainant into an alley and down into the basement area of a building where he raped and robbed her. Before and after raping her, defendant looked between complainant’s legs, using a flashlight.

Complainant then dressed and ran home. After telling her mother that she had been raped and robbed, her mother called the police. Complainant later identified defendant as her assailant from a photographic display and a lineup. Adams also identified defendant, from a photographic display, as the man who pointed the gun at him.

Another alleged victim of rape by defendant was also called upon to testify against him. This victim testified that on January 26, 1981, at approximately 9:45 p.m., she exited a bus on 67th Street and Ken-wood Avenue in Chicago. Defendant also got off of the same bus and began to follow her. When defendant caught up with complainant, he pulled a gun on her. He told her to continue walking. As they walked, he held her around the waist and pointed the gun at her side.

Defendant led her to an abandoned building where he raped and robbed her. Before raping her, he also looked between this victim’s legs, using a flashlight. After the rape, the victim immediately notified the police, who later accompanied her to the scene of the crime. They, however, were unable to locate her assailant.

The next time the victim saw defendant was, by coincidence, at Wyler’s Children’s Clinic on February 25, 1981. The police were able to apprehend defendant at that time.

Defendant presented various witnesses that contradicted complainant’s testimony regarding the lighting conditions. The defense also brought out the fact that the other victim did not describe her assailant as having a wandering eye to the police officers investigating the incident. There was also testimony that the type of secretion testing performed on defendant does not produce conclusive results.

On March 2, 1982, after hearing all of the evidence, the jury returned guilty verdicts on the rape and armed robbery charges against defendant. Post-trial motions and a sentencing hearing were scheduled to be held on March 31, 1982. However, prior to the scheduled sentencing date, defendant was found unfit for sentencing. At this time, defendant’s trial counsel also raised the issue of defendant’s fitness at the time of trial. Trial counsel expressed concern as to whether he could effectively represent defendant since he had failed to raise the issue of defendant’s fitness at the time of trial. Counsel then moved for the appointment of a new attorney to represent defendant on the limited issue of his fitness for trial. The trial court ordered defense counsel to continue his representation of defendant until defendant became fit for sentencing.

Defendant was subsequently found fit for sentencing. A sentencing hearing was scheduled for March 23, 1983. However, one day before the scheduled hearing, defendant escaped from custody. He was not apprehended until almost four years later.

Defendant was again evaluated for his fitness for sentencing. Trial counsel renewed his request that the court appoint another attorney on the issue of defendant’s fitness at the time of trial. Subsequently, defendant was found fit for sentencing based on the opinion of Dr. Robert Reifman, director of the psychiatric institute of the circuit court.

At a later hearing, trial counsel questioned Dr. Reifman concerning defendant’s fitness for trial. Dr. Reifman opined that defendant was “probably fit for trial at the time.” Trial counsel then filed an affidavit, at the court’s suggestion, relating that he saw no noticeable change in defendant’s behavior from the time he began to represent defendant to the time defendant was found fit for sentencing. The trial court then found defendant fit at the time of trial and denied counsel’s motion for a new trial. Defendant was later sentenced to a term of 18 years. It is from this decision that defendant appeals.

The first issue defendant raises for our review is whether the trial court erred in failing to appoint independent counsel to represent him on the issue of his fitness for trial. The question of fitness for trial was raised by defense counsel only after defendant was found unfit for sentencing. Defendant reasons that his trial counsel’s competency was placed in issue since he failed to raise the question of fitness during trial. Moreover, defendant argues, the court’s refusal to appoint independent counsel to represent him on the issue of fitness for trial was error since his trial counsel would be restricted in his advocacy of this issue. Trial counsel, defendant claims, put his own performance at trial under scrutiny for overlooking this issue initially. Defendant contends that counsel’s continued representation of him created a per se conflict of interest. We disagree.

A defendant found unfit for sentencing does not necessarily raise a bona fide doubt as to the defendant’s fitness to stand trial, since the cause of unfitness may be due to factors that arose after trial. (People v. Riley (1980), 89 Ill. App. 3d 438, 442.) Whether a retrospective finding of unfitness to stand trial applies depends upon the circumstances of each case. (People v. Brown (1985), 131 Ill. App. 3d 859, 865-66.) Whether a bona fide doubt of fitness has been raised is a decision resting largely within the discretion of the trial court as the trial court, unlike a court of review, is in a position to observe defendant and evaluate his conduct. People v. Murphy (1978), 72 Ill. 2d 421, 431.

In the instant case, the trial court found that defendant had been fit to stand trial based on its own observations of defendant during and after trial, defense counsel’s observations of defendant, and expert opinion that defendant was “probably” fit to stand trial. However, the decision of the trial court that defendant challenges is not whether the trial court properly concluded that he was fit for trial but whether the trial court erred in failing to appoint independent counsel to represent him on this issue.

Defendant equates the failure to raise this issue of fitness or sanity at the time of trial to ineffective assistance of counsel. This argument is simply without merit. As the Illinois Supreme Court has stated:

“[T]he mere fact that counsel failed to advise their client to defend on [insanity] grounds does not amount to a denial of due process. Insanity is a defense to be asserted at the trial as any other defense; and the decision not to advise such a defense, even if it were a mistake, does not of itself show that the defendant was inadequately represented. Mistakes of counsel will not amount to a denial of due process unless on the whole the representation is of such a low caliber as to be equivalent to no representation at all, and to reduce the proceedings to a farce or a sham.” People v. Heirens (1954), 4 Ill. 2d 131, 143-44.

There is nothing in the record to indicate that defendant was not properly represented, either at trial or at any of the post-trial proceedings. Further, defendant cites to no authority to support his theory of a per se conflict of interest. We find no cases which mandate the appointment of independent counsel in circumstances such as this. We, therefore, find that the trial court did not err in failing to appoint independent counsel on this post-trial issue.

The next issue defendant raises is whether the trial court failed to balance the probative value and need for other crime evidence against the prejudicial impact on the jury. Prior to trial, defendant filed a motion in limine to preclude the introduction of the other crime of rape that was allegedly committed by him. The trial court denied defendant’s motion on grounds that, pursuant to People v. Tate (1981), 87 Ill. 2d 134, and People v. Wojtasik (1982), 104 Ill. App.. 3d 263, the crime sought to be admitted was sufficiently similar to the crime charged so as to warrant its admission. However, defendant argues that the trial court neglected to rule on whether the probative value and need for introduction of the crime outweighed the prejudice to defendant, regardless of whether the crimes shared common characteristics.

Although defendant arguably waived this issue by his failure to raise an objection to the admittance of this evidence on grounds that the trial court failed to apply a balancing test, we find that defendant

has failed to prove that the court did, in fact, fail to balance these competing interests. The trial judge stated, after reviewing defendant’s motion in limine, that he was cognizant of the law with respect to the admission of prior crimes. We cannot conclude that the balancing test was not applied. Further, there is no requirement that the trial court articulate the factors considered in its application of the balancing test. (People v. Comes (1980), 80 Ill. App. 3d 166, 176.) A reviewing court will assume that the trial court gave appropriate consideration only to relevant factors in balancing these competing interests. (People v. Purnell (1984), 129 Ill. App. 3d 253, 260-61.) We, therefore, find that defendant’s contention fails with respect to this issue.

Next, defendant argues that the trial court imposed sentence on the basis of conclusions not supported by the facts of the case. Specifically, defendant points to the trial court’s description of the crime of rape:

“It is probably the most horrifying kind of victimization another human being can be submitted to. It’s probably worse than murder because the rape victim lives to think about it and the murdered victim doesn’t.”

Defendant objects to the trial court’s assumption that the complainant will live on to think about this incident. Although this issue was arguably waived by defendant’s failure to raise an objection after the statement was made, we find defendant’s argument without merit, as defendant takes this remark out of context. The trial court was characterizing the seriousness of the crime of rape, in general. The court was not referring specifically to complainant or her mental state as a result of the crime. Further, the statement was made in the context of a lecture to defendant. The court was responding to defendant’s speech concerning the reformation of his behavior, among other topics. After making the remark, the trial court went on to commend defense counsel on his representation of defendant.

The record simply does not support defendant’s assertion that trial court considered complainant’s reliving of the rape as a factor in aggravation. Rather, we find that the court was merely describing the seriousness of the crime of rape, in general. The seriousness of the crime charged may properly be considered as a factor in aggravation. People v. Saldivar (1986), 113 Ill. 2d 256, 268-69.

Finally, defendant contends that the trial court erred in refusing to order the State to disclose favorable work product. Prior to the introduction of the other crime evidence, defendant sought discovery of the second page of a felony review memorandum which noted why charges should not be pursued in the other rape case against defendant. The State explained that although the second page could not be located, it was not discoverable because it was the work product of one of the assistant State’s Attorneys who noted only conclusions as to why he rejected the charges of the other crime.

The author of the memorandum explained that whatever he wrote in a felony review memorandum he would also copy that same information into a log. The log which contained the information on the second page of the memorandum in question was then presented to the court for an in camera inspection. Defendant contends that excerpts describing the other crime and the reasons noted as to why the author of the memo felt that charges should not be brought against defendant should have been introduced.

Specifically, the author of the memo noted that charges should not be brought because (1) the lighting at the time of the incident was minimal; (2) there was no corroborating evidence to show that defendant was connected with the rape; and (3) the identification of defendant was suspect, since a significant amount of time had passed between the arrest and the occurrence.

The trial court ruled that the log contained work product which was not discoverable. It was also found that the State’s thought process in determining whether to bring charges against defendant for the alleged other crime was not probative of the instant case.

Supreme Court Rule 412(j)(i) does not require the disclosure of legal research, reports, or memoranda to the extent that they contain conclusions, opinions, or theories of the State or of defense counsel. (107 Ill. 2d R. 412(j)(i).) The log excerpts were properly found to be work product under the rule, since they were clearly conclusions or theories as to why charges should not be brought.

As an exception to the work product rule, Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, requires the disclosure of evidence favorable to the accused. We, however, find no violation of Brady since the information defendant sought to reveal to the jury was brought out in open court. (People v. Míreles (1979), 79 Ill. App. 3d 173, 195-96.) The victim of the other crime testified that the lighting was minimal and the State conceded that the lighting was minimal; the victim also testified that she identified defendant approximately one month after the alleged rape; and the defense argued, in closing, that the identification of defendant as the perpetrator of this other crime was suspect. We, therefore, find that defendant’s argument also fails with respect to this issue.

For the foregoing reasons, the decision of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE McMORROW

text:
    HECTOR MARIO VELEZ LOTERO, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellee.
    First District (4th Division)
    No. 1— 89—0201
    Opinion filed September 13, 1990.

      Linda Kahn and John Lewis, both of O’Keefe, Lewis & Bruno, P.C., of Skokie, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and T. Michael Leuer, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

The instant appeal questions whether the petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) of Hector Lotero (hereinafter defendant), an alien, is sufficient to state a claim based on ineffective assistance of counsel with respect to his plea of guilty to a narcotics charge. The defendant’s post-conviction petition and supporting affidavit indicated that the defendant’s trial counsel informed the defendant that although the attorney was “not an immigration attorney,” the attorney believed there would be no immigration consequences to defendant’s plea of guilty because (1) the defendant was married to a United States citizen and had a United States child by that marriage, and (2) the defendant would receive an expungeable term of probation in exchange for the guilty plea. We conclude that such a post-conviction petition is sufficient to state a claim for ineffective assistance of counsel rendering defendant’s plea of guilty involuntary. We reverse the trial court’s dismissal of defendant’s post-conviction petition and remand the matter for further proceedings consistent herewith.

Defendant is a national of Columbia. In 1985, he pleaded guilty to possession of less than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1402(b)) and received two years’ probation (hereinafter the section 410 probation). (Ill. Rev. Stat. 1985, ch. 56½, par. 1410.) Approximately 18 months later, the State petitioned to vacate defendant’s section 410 probation on the ground that defendant had committed the offense of delivery of a controlled substance in 1986. (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2).) A few months thereafter, defendant was arrested by agents of the United States Immigration and Naturalization Service (INS) and exclusion/deportation proceedings were instituted against him. It appears from the record that these INS proceedings were dismissed upon defendant’s voluntary departure from the United States in 1989.

In October 1988, after defendant was arrested by the INS but before he voluntarily departed, defendant filed a petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) requesting that his 1985 guilty plea be vacated on the ground that it was involuntary because of ineffective assistance of counsel when the plea was entered. As ultimately amended, defendant asserted in the post-conviction petition that “the specific basis for his plea of guilty was in reliance on the advice of his attorney that there would be no potential immigration consequences, as to deportation.” Defendant stated that he would not have pleaded guilty if he had been advised that he could be deported because of the guilty plea.

In support of his petition for post-conviction relief, defendant attached the affidavit of the attorney who had represented him at the 1985 narcotics proceedings culminating in defendant’s guilty plea. Relative to the effect a guilty plea would have on defendant’s immigration status, the attorney’s affidavit stated, “That in response to [defendant’s] questions over his status, I informed him that I was not an immigration attorney, but because he was married to an American citizen and had a son by her, who was an American citizen, and the plea in his case would be to Section 1410 probation, and expungeable, that it was my belief that such a plea would not have any consequences on his immigration status.”

The trial court dismissed defendant’s petition for post-conviction relief without an evidentiary hearing, and defendant appeals. A petition for post-conviction relief based on ineffective assistance of counsel must allege facts to show that the attorney’s representation fell below an objective standard of competence, and that, to a degree of reasonable probability, the attorney’s ineffective assistance affected the outcome of the proceeding. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Where a defendant contends that his attorney’s ineffective assistance rendered his guilty plea involuntary, the defendant must show that his attorney’s advice did not satisfy the objective standard of competence expected of attorneys in criminal cases, and that, to a degree of reasonable probability, defendant would not have entered his guilty plea if his attorney had given him competent advice. Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366; People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307.

In People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, the Illinois Supreme Court determined that an attorney’s representation was ineffective where the attorney erroneously advised the alien defendant that there would be no deportation consequences to the defendant’s plea of guilty to narcotics charges, because the defendant was married to a United States citizen and had a United States child by this marriage. The Illinois Supreme Court reasoned that it is the responsibility of the defendant’s trial counsel to advise him of the collateral consequences of deportation where the defendant is an alien and is considering the entry of a guilty plea. Subsequent Illinois Appellate Court decisions have held that it is the responsibility of counsel to research and advise the alien defendant of the immigration consequences of a plea of guilty to a narcotics charge. People v. Maranovic (1990), 201 Ill. App. 3d 492; People v. Miranda (1989), 184 Ill. App. 3d 718, 722-23, 540 N.E.2d 1008; People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182; see also People v. Huante (1990), 194 Ill. App. 3d 159, 550 N.E.2d 1155, appeal allowed (1990), 132 Ill. 2d 550 (defendant’s trial counsel has duty to inquire of defendant’s immigration status where circumstances place counsel on notice that his client might be alien).

According to the record, defendant’s trial counsel in the case at bar advised defendant that although the attorney “was not an immigration attorney,” the attorney believed that defendant would not be subject to deportation if he pleaded guilty to the narcotics charge, because (1) defendant is married to a United States citizen and has a United States citizen by this marriage, and (2) defendant would receive an ex-pungeable section 410 probation in exchange for his guilty plea. The defendant’s attorney apparently undertook no research in spite of his admitted lack of knowledge or experience with respect to the questions posed by defendant. Under these circumstances, we conclude that the representation provided by defendant’s trial counsel fell below the objective range of competence expected of attorneys in criminal matters.

In addition, we determine that defendant’s post-conviction petition was sufficient to demonstrate that his attorney’s legal advice affected the outcome of his guilty plea. Initially, we note that the advice given by defendant’s attorney was erroneous. The first reason suggested by defendant’s trial counsel, viz. defendant’s marriage to and parentage of United States citizens, was no bar to defendant’s potential deportation upon the entry of a guilty plea to a narcotics charge. See, e.g., People v. Correa, 108 Ill. 2d 541, 485 N.E.2d 307.

In addition, the defendant’s trial counsel’s reliance upon section 410 probation was in error. At the time defendant entered his guilty plea in 1985, there was conflicting precedent with respect to whether a sentence of probation for a narcotics conviction, expungeable if fully served without adverse incident, was sufficient to subject an alien to deportation prior to expiration of the term of probation. The greater weight of authority held that such a probationary conviction was sufficient to warrant the defendant’s deportation. (See, e.g., Kolios v. Immigration & Naturalization Service (1st Cir. 1976), 532 E2d 786; Gonzalez de Lara v. United States (5th Cir. 1971), 439 F.2d 1316; Ocon-Perez v. Immigration & Naturalization Service (9th Cir. 1977), 550 F.2d 1153; contra Rehman v. Immigration & Naturalization Service (2d Cir. 1976), 544 F.2d 71; see generally Annot., 26 A.L.R. Fed. 709 (1976 & 1989 Supp.).) The advice of defendant’s trial counsel that a section 410 probation would not carry any adverse deportation consequences was erroneous in light of this Federal precedent.

Defendant’s post-conviction petition alleges that he relied upon his trial counsel’s erroneous advice when defendant chose to plead guilty rather than exercise his right to demand trial. Defendant asserts that he would not have pleaded guilty had he received adequate and competent legal advice regarding the immigration consequences of his guilty plea. As a result, we conclude that defendant’s petition was sufficient to state a claim for ineffective assistance of counsel rendering involuntary his 1985 plea of guilty to the charge of possession of less than 30 grams of a controlled substance.

We do not believe that defendant’s voluntary departure from the United States, during the pendency of his deportation proceedings and with the approval of the INS, renders moot defendant’s post-conviction petition. There is nothing in the record to indicate that, if the defendant were to reenter the United States, the INS could not reopen deportation proceedings against him because of his 1985 plea of guilty to the narcotics charge resulting in his section 410 probation. Thus, the threat of potential deportation remains regardless of whether defendant stayed in this country or voluntarily departed from it. See People v. Miranda (1989), 184 Ill. App. 3d 718, 726-27, 540 N.E.2d 1008.

For these reasons, the order of the circuit court is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

LINN AND JOHNSON, JJ., concur.