text:
    FIRST UNITED BANK, f/k/a United Bank of Crete-Steger, Plaintiff, v. PAUL HOFMANN et al., Defendants (Kathleen M. Fennell, Plaintiff-Appellee; Anthony G. Argeros, Contemnor-Appellant).
    Third District
    No. 3-91-0801
    Opinion filed April 27, 1992.

      Anthony G. Argeros, pro se, and Roger C. Elliott, both of Elliott & McClure, P.C., of Momence, for appellant.
    John McAuley, of Rigsby & McAuley, of Chicago, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Anthony G. Argeros, attorney for defendants Paul and Hertha E. Hofmann, appeals a judgment compelling the defendants to comply with discovery and finding Argeros in contempt of court. We affirm the discovery order and reverse the contempt finding.

The record shows that First United Bank initially filed a complaint against the defendants seeking to foreclose on a mortgage. The plaintiff, Kathleen M. Fennell, intervened by filing a complaint against the defendants for specific performance of a real estate contract. Her complaint and the defendants’ answer established the following facts: On March 15, 1990, the parties signed a written agreement. Under its terms, the defendants were to convey certain real property to the plaintiff in return for her payment of $120,000. The agreement also provided that each party’s attorney would have five days to review all of the terms except purchase price, closing date, and date of possession. If either attorney objected to any of the terms, he was to serve written notice of his objection on the other party. In the absence of proper notice, the objection provision would be waived and the contract would continue in full force and effect.

The parties also agreed that in a letter dated March 19, 1990, the defendants’ attorney objected to the following terms of the agreement: riders one through four; the escrow provision; the provisions concerning liens, conveyances, and encumbrances; the provisions concerning prorations and the survey; and the general conditions and stipulations. The attorney gave no reason for his objections.

On motion of the First United Bank, the trial court dismissed the foreclosure complaint on October 23, 1990. The dismissal order stated that the note secured by the mortgage had been paid in full and that the mortgage had been released.

The plaintiff subsequently served interrogatories and a request to produce on the defendants. The defendants objected to providing the following information: the nature of their interest in the real property; the date and manner in which they acquired the interest; the amount of consideration given for the interest; whether another party had an interest in the property; various details about any such party’s interest; whether another party had acquired an interest in the property subsequent to the defendants’ acquisition of interest; various details about that party’s acquisition of interest; whether the defendants had received any other offers to purchase an interest in the property subsequent to the plaintiff’s offer; various details about the offer; a copy of any land trust agreement; a copy of any mortgages and trust deeds currently encumbering the property; a copy of any notes secured by the mortgages and trust deeds; and the defendants’ reasons for disapproval of the contract.

The trial court subsequently ordered the defendants to comply with discovery. When they refused, the court found attorney Argeros to be in contempt and fined him $100.

On appeal, Argeros first argues that the trial court erred in ordering the defendants to answer the interrogatories. He contends that the questions were immaterial and not likely to lead to admissible evidence. He further argues that the questions related to the issue of good faith, and that good faith is not relevant in an action for specific performance of a real estate contract. Argeros relies on Pionke v. Beitz (1991), 211 Ill. App. 3d 656, 570 N.E.2d 570, in support of the latter proposition.

The supreme court rules authorize broad discovery “regarding any matter relevant to the subject matter involved in the pending action.” (134 Ill. 2d R. 201(b)(1).) Discovery is a mechanism for ascertaining the truth and promoting a fair resolution of the cause. (Computer Teaching Corp. v. Courseware Applications, Inc. (1990), 199 Ill. App. 3d 154, 556 N.E.2d 816.) Traditionally, the trial court is accorded great latitude in determining the scope of discovery, as the proper range of discovery includes not only what is admissible at trial, but also that which leads to what is admissible at trial. (Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 443 N.E.2d 1125.) A reviewing court will not interfere with the trial court’s discovery rulings absent a manifest abuse of discretion. Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 368 N.E.2d 584.

Here, the purpose of most of the interrogatories was to determine who presently held an interest in the property. Obviously, the determination of such a question is relevant to an action for specific performance of a real estate contract concerning the property. We therefore find proper all interrogatories relating to the present holders of any interest in the property.

Additionally, the interrogatories related to whether the defendants had used good faith in complying with the contract. We find these questions to be proper. In this regard, Argeros’ reliance on Pionke is misplaced. Pionke did not state that good faith is never relevant in an action for specific performance of a real estate contract. Rather, it said that good faith was irrelevant in that case, given that one of the contracts was not signed by either party and it was clear that the parties had failed to agree to essential contract terms. Here, by contrast, the parties signed a real estate contract. Having done so, they were obligated to use good faith in complying with its terms. (Osten v. Shah (1982), 104 Ill. App. 3d 784, 433 N.E.2d 294.) Based on the foregoing, we find that the trial judge did not abuse his discretion in ordering the defendants to comply with discovery.

Argeros further argues on appeal that the contempt order should be reversed because he acted in good faith in testing the court’s discovery order.

It is well settled that a contempt order is an appropriate method for testing the validity of a discovery order. (Dunkin v. Silver Cross Hospital (1991), 215 Ill.App. 3d 65, 573 N.E.2d 848.) Here, there is no indication that Argeros acted in bad faith or with disdain for the court. (See Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273.) Accordingly, we reverse the order holding Argeros in contempt and fining him $100.

The judgment of the circuit court of Will County pertaining to the discovery order is affirmed; the court’s order holding Argeros in contempt of court and fining him $100 is reversed.

Affirmed in part; reversed in part.

GORMAN and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVARISTO SESMAS, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY ZAMORA, Defendant-Appellant.
    Third District
    Nos. 3—91—0623, 3—91—0627 cons.
    Opinion filed April 27, 1992.

      J. Barton Kalish, of J. Barton Kalish & Colleagues, of Chicago, for appellants.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendants were passenger and driver of a car which contained three kilograms of cocaine in a false compartment in the gas tank. Upon conviction at a bench trial, each was given a street-value fine of $1,120,166 and sentenced to 30 years’ imprisonment for controlled substance trafficking. We affirm.

On February 4, 1991, Illinois State Trooper James Lower noticed a 1974 Ford LTD driving erratically eastbound on Interstate 80 near Princeton. Lower followed the car and observed it swerve onto the shoulder three more times. At that point, he pulled the car over.

Mary Zamora was driving and Evaristo Sesmas was in the front passenger seat. At the officer’s request, both produced identification. When asked who owned the car, Sesmas responded that it belonged to a friend of his named Lou. Zamora then added that the owner was Louis Espendoza. Sesmas eventually found the car’s registration in the glove compartment. This indicated that the car belonged to Alejandro Bustillos.

Trooper Lower returned to his squad car to run a check on the driver's licenses and the registration, all of which were from Arizona. The officer was informed that the licenses and registration were valid and that neither defendant had any outstanding warrants. The check also showed that Zamora had previously been arrested, but not convicted, for possession of a weapon and possession of cannabis. Sesmas had no prior record.

Lower then filled out a warning citation and a consent to search waiver. He also called for backup.

Trooper Lower returned to defendants’ car, accompanied by Trooper Robert Cessna, who had arrived in response to Lower’s request for backup. After Zamora signed the warning citation, Lower returned the defendants’ licenses, stating “That’s all there is to the stop.” Lower then asked Zamora if she had ever been arrested. She initially mentioned only traffic offenses, but admitted the weapon and drug arrests when confronted with the information. In response to inquiry by Lower, Zamora denied presently possessing drugs or weapons.

Lower next asked Zamora if she minded if he searched the car. She had no objection, handed the keys to the officer and voluntarily exited the vehicle. Once out of the car, Zamora was asked to sign the consent-to-search form. Trooper Lower explained what it was and that it was voluntary. Zamora signed it.

Trooper Cessna then ordered Sesmas out of the car. During a pat-down search of Sesmas, Cessna found a plastic baggy containing a white powdery substance and placed Sesmas under arrest.

Meanwhile, Zamora told Sgt. Daniel Gillette, the third officer to arrive, that she had a gun in her purse. Sgt. Gillette opened the purse, which was on the front seat, and found a .25 caliber automatic pistol, loaded with one round. The purse also contained a magazine for the weapon, holding three rounds.

Zamora was arrested and read her Miranda rights. Zamora and Sesmas were transported to the Bureau County jail.

Trooper Craig Graham was then called to the scene and was told by Lower that a small amount of drugs had been discovered on Sesmas. Graham, a member of the K-9 unit, had his dog Thor search the car. Thor indicated that drugs were under the back seat, but an interior search revealed nothing. Graham looked under the car and noticed that the bolts holding the gas tank in place appeared to have been recently removed.

The car was then towed to a local service station. A fog had developed, making it hazardous to conduct a further search of the car along the roadside. At the garage, the search was continued.

After putting the car up on a hoist, the police removed the gas tank and found a false compartment containing three kilograms of cocaine and an ounce of heroin. Subsequent tests showed that the cocaine was 93% to 95% pure and had a stipulated street value of $1,120,166. In the trunk of the car, police found a suitcase belonging to Sesmas. It held two baggies, one containing $600 in cash and the other containing $1,000 in cash. In Zamora’s purse, the police found a pager belonging to Sesmas.

The defendants filed a motion to quash the arrests and suppress the evidence. The court suppressed the drugs that were found on Sesmas, but denied the motion as to the gun and the drugs in the gas tank.

When in custody, Zamora gave a statement to the Bureau County sheriff’s department and also testified at the suppression hearing and trial. She stated that she was Sesmas’ common-law wife and had lived with him for 10 years. They had left Phoenix on January 31, 1991. The stated purpose of the trip was to visit Sesmas’ uncle in Chicago, but Zamora did not know where he lived. Zamora claimed that they planned to contact a radio station which supposedly helped to locate people. Sesmas had driven the whole way except for the 10 miles preceding their arrest. She denied having knowledge of the drugs and was unsure whose car it was.

Through a Spanish interpreter, Sesmas also gave a statement and testified. He claimed that he had gone to Mexico to visit his mother and it was there he learned his uncle was sick. Upon returning to Phoenix, Sesmas met with a man named El Negro and arranged to drive his car to Chicago. Sesmas claimed that both his and Zamora’s cars were not operational. Once he was in Chicago, he was to call a woman who would in turn contact El Negro to pick up the car. Sesmas did not know where his uncle lived, but was going to call his mother, who would find out the address. Sesmas did not know his mother’s phone number.

Following a bench trial, Zamora was convicted of possession of a controlled substance with intent to deliver, controlled substance trafficking and armed violence (No. 3 — 91—0627). Sesmas was convicted of possession of a controlled substance with intent to deliver and controlled substance trafficking (No. 3 — 91—0623). Each was fined $1,120,166 and sentenced to 30 years’ imprisonment on the trafficking count. Because both defendants charge the same errors, the two cases were consolidated on appeal.

The defendants first claim that the trial court erred when it denied the motion to quash arrest and suppress evidence.

Initially, we find that the trial court was correct in suppressing the material found during the pat-down search of Sesmas. The right to frisk does not automatically follow the right to stop. (People v. Kramer (1991), 208 Ill. App. 3d 818, 566 N.E.2d 756.) An officer may conduct a pat-down search only if he has a reasonable belief that he is dealing with an armed and dangerous individual and that his safety or the safety of others is in danger. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Brown (1989), 190 Ill. App. 3d 511, 546 N.E.2d 95.) The officers made no such claim here. Accordingly, the trial court acted properly in suppressing this evidence.

Turning then to the search of the car, we must determine whether the trial court erred in not quashing the arrest and suppressing the evidence. Such a decision will only be overturned on review if it is manifestly erroneous. People v. Rodriguez (1987), 154 Ill. App. 3d 401, 506 N.E.2d 1064.

A threshold question is whether Sesmas has standing to object to the search. He made no objection at the time the search was conducted. The general rule is that a passenger lacks standing to challenge the search of another’s car unless the passenger had a legitimate expectation of privacy in the place searched. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421; People v. Manikowski (1989), 186 Ill. App. 3d 1007, 542 N.E.2d 1148.) Here, Sesmas had no reasonable expectation of privacy in the gas tank of the car. Nor would his interests be any stronger than Zamora’s and she consented to the search.

Sesmas argues that a passenger does have standing to challenge a search of an automobile if the search was precipitated by an unlawful seizure or stop. (People v. Manke (1989), 181 Ill. App. 3d 374, 537 N.E.2d 13.) However, as discussed below, this was not an unlawful seizure or stop. Sesmas thus does not have standing to contest the search, and the trial court was correct in denying Sesmas’ motion.

Zamora, as driver of the vehicle, does have standing and we must therefore turn to the lawfulness of the search of the car as it relates to her conviction.

The circumstances here would not justify a nonconsensual, warrantless search. Stopping a car for a minor traffic violation does not by itself justify a search. (People v. Penny (1989), 188 Ill. App. 3d 499, 544 N.E.2d 1015.) The officer must reasonably believe that he is confronting a situation more serious than a routine traffic violation. (People v. Lawrence (1988), 174 Ill. App. 3d 818, 529 N.E.2d 63.) Such a belief would not be supported on these facts.

But we are not faced with that situation. Zamora signed a consent form which gave the officers permission to search. Therefore, unless the consent was illegally obtained or the search exceeded the scope of the consent, the search was lawful. People v. Harris (1990), 199 Ill. App. 3d 1008, 557 N.E.2d 1277.

Defendants agree that the initial stop was proper. They contend, however, that after the warning citation had been issued, it became an unlawful seizure because the police no longer had any basis for detaining them.

As noted, this was a valid stop for a traffic violation. The trooper then requested identification, which is not unreasonable, nor does it constitute a fourth amendment seizure. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) After the officer had issued the warning citation, he asked Zamora about her arrest history. He also asked her whether she presently possessed any narcotics or weapons. This type of questioning has been repeatedly upheld as nonintrusive and non-coercive. (See, e.g., People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225; People v. Smith (1984), 124 Ill. App. 3d 914, 464 N.E.2d 1206.) The reasonableness of the duration and scope of the questioning must be determined from the totality of the circumstances. People v. Jones (1989), 190 Ill. App. 3d 416, 545 N.E.2d 1332.

Here, the police officer was faced with a situation where defendants were a long way from home and yet there was some confusion as to who owned the car in which they were travelling. Zamora misrepresented her arrest record when questioned by Trooper Lower. The trooper then secured Zamora’s consent to search the vehicle. The duration of this exchange was minimal. Any inconvenience to defendants was minor and reasonable. Therefore, defendants’ continued detention after the issuance of the warning citation did not amount to an illegal seizure.

The trial judge found that the continued detention was consensual and of reasonable duration. Accordingly, he denied the motion to suppress. The court’s decision is not manifestly erroneous. People v. Murray (1990), 137 Ill. 2d 382, 560 N.E.2d 309.

Alternatively, defendants argue that the consent given by Zamora was ineffective because it was not the product of her free will. Defendants contend that Zamora’s unfamiliarity with the English language and her limited education, when combined with the menacing presence of two officers, evidenced the fact that her will was overborne.

It is well established that a party may consent to a search conducted without a warrant and thus eliminate the need for probable cause and a search warrant. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) Miranda warnings need not be given in order to obtain valid consent. (Smith, 124 Ill. App. 3d at 921, 464 N.E.2d at 1211.) Moreover, ignorance of knowledge of the right to refuse to consent does not vitiate the voluntariness of the consent but is merely a factor to consider. (Smith, 124 Ill. App. 3d at 920, 464 N.E.2d at 1211.) The State bears the burden of proving by a preponderance of the evidence that the consent was freely and voluntarily given. People v. Guerrieri (1990), 194 Ill. App. 3d 497, 551 N.E.2d 767.

Here, there is no evidence that Zamora was coerced. None of the officers displayed their weapons. They did not tell her that she had to consent. Quite to the contrary, Trooper Lower testified that he explained the voluntary nature of the consent. The officers did not threaten to arrest the defendant or to impound the vehicle if consent was refused. (Cf. People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954 (consent may be involuntary where defendant must choose between consenting and being arrested).) Zamora agreed to allow the search, exited the car without being ordered to do so, and then handed the keys to the officer. Trooper Lower testified that he explained the voluntary nature of the consent form. Despite her alleged difficulty with the English language, Zamora was able to read at trial from the form, which stated in part:

“I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form.
I further state that no promises have been made, nor have any threats, force, or physical or mental coercion of any kind whatsoever been used against me to cause me to consent to the search described above or to sign this form.”

Looking at this evidence, we find that it was not unreasonable for the trial judge to have found that Zamora adequately understood the situation and that her will was not overborne.

Furthermore, the scope of the search was proper. The standard for measuring the scope of a suspect’s consent under the fourth amendment is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect. Florida v. Jimeno (1991), 500 U.S._, 114 L. Ed. 2d 297, 111 S. Ct. 1801.

Here, the consent form specifically granted the officers authority to search “any part, compartment, enclosure, or trunk of the vehicle and the contents of any object or container found therein.” In addition, the use of a trained narcotics dog has repeatedly been held to be inoffensive to an individual’s rights. (See, e.g., People v. Campbell (1977), 67 Ill. 2d 308, 367 N.E.2d 949.) The fact that the vehicle was moved from the highway to another location is of no significance. A car which could properly have been searched on a highway can be searched as well without a warrant at a police station or garage. (Manikowski, 186 Ill. App. 3d at 1012, 542 N.E.2d at 1152.) Such a move does not constitute a second search but merely a continuation of the first consensual search. (Manikowski, 186 Ill. App. 3d at 1012, 542 N.E.2d at 1152.) In Manikowski, a move was occasioned by the approach of bad weather. The move was occasioned in this case by the development of fog which made any further roadside search hazardous. Therefore, the situation presented here is of one, albeit interrupted, consensual search which we find was reasonable under the circumstances.

Defendants’ next contention is that the trial court erred when it determined the credibility of the arresting officer’s version of his conduct during the arrest based on the trial court’s personal observation of the officer in court on other occasions.

In denying the motion to quash arrest and suppress evidence, the trial court stated:

“And finally an important consideration that no one would ever know from reading the record. And that is the fact that Trooper Lower in his testimony has indicated to the Court by his demeanor and manner while testifying that his approach to this entire incident and to every stop that he makes, he has testified before me before. That under such circumstances that he is very courteous, polite, easy going, certainly not abrasive, threatening or intimidating in any manner. Whenever he does testify he displays a sense of humor and demeanor that I’m sure his communications with defendants stopped by him is such that they do not feel that they’re being pressured or intimidated into consenting to a search.”

Generally, a judge’s experience and observations are not judicially noticeable facts capable of immediate substantiation by easily accessible sources of indisputable accuracy. (People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890.) A police officer’s testimony is to be given the same weight and credibility as the testimony of any other witness. People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655.

The court acted improperly by mentioning Lower’s prior testimony as a basis for his credibility. However, any error here is harmless. In ruling on the issue during the post-trial motion, the judge stated that even disregarding the prior conduct of Trooper Lower, the outcome would have been the same. These comments do not warrant a reopening of the suppression hearing or a new trial.

Defendants next argue that the State failed to prove beyond a reasonable doubt that defendants had knowledge and possession of the drugs. They argue that the evidence is insufficient to show that they were even aware that the gas tank contained the drugs.

When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Defendants were convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401) and controlled substance trafficking (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401.1). Knowledge is a key element in each of these crimes. Conviction for possession with intent to deliver requires that the defendant knowingly possessed the narcotics. Conviction for trafficking requires that the defendant knowingly brought or caused to be brought the controlled substance into this State for the purpose of its delivery or manufacture.

The element of knowledge is seldom susceptible to direct proof. It may, however, be proven by evidence of acts, declarations or conduct of the accused from which the inference may be drawn that he knew of the existence of the drugs at the place they were found. People v. Alexander (1990), 202 Ill. App. 3d 20, 559 N.E.2d 567.

The same is true of possession. Where drugs are found in an area under the defendant’s control, an inference arises that the defendant had knowledge and control of the narcotics, absent other facts and circumstances which might leave a reasonable doubt as to the defendant’s guilt. (People v. Wiley (1988), 174 Ill. App. 3d 444, 528 N.E.2d 26.) When drugs are found in a car, it is control of the vehicle rather than ownership which is pertinent to proof of control of the area where the drugs are found. People v. Whalen (1986), 145 Ill. App. 3d 125, 495 N.E.2d 122.

Knowledge and control of narcotics are questions of fact for determination by the trier of fact, and its decision will not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory, as to create a reasonable doubt of guilt. People v. Rouser (1990), 199 Ill. App. 3d 1062, 557 N.E.2d 928.

Turning then to the facts of the instant case, we find the the trial court’s findings are supported by the evidence. Defendants were in a borrowed car on a cross-country trip. The gas tank’s greatly reduced capacity would cause the defendants to stop frequently to refuel. When asked who owned the car, defendants gave conflicting answers. Zamora lied to the trooper about her prior arrests. She then denied having a gun, despite her later admission that there was a loaded automatic pistol in her purse on the front seat of the car. A pager belonging to Sesmas was also found in Zamora’s purse. The money found in Sesmas’ luggage was wrapped in baggies, which is not normally the way people carry money, but is not unknown in the drug trade. The trial court also chose to disbelieve defendants’ story about travelling to Chicago to visit a sick uncle whom Sesmas had not seen in 10 years and whose phone number and address were unknown to the defendant.

When viewing the evidence in the light most favorable to the prosecution, we find that it is sufficient to support a finding of knowledge and possession. Additionally, although defendants do not raise the issue, we note that the evidence was sufficient to also prove the intent element of the offense. The large amount of drugs, coupled with its purity, gives rise to a reasonable inference that it was not for personal use. (People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178.) We therefore find that the State did prove the elements of the offense beyond a reasonable doubt.

Defendants’ final contention is that the controlled substance trafficking statute is unconstitutional. They argue that it violates due process and that the minimum sentence is disproportionately excessive.

The controlled substance trafficking statute prohibits people from bringing narcotics into Illinois for the purpose of manufacture or delivery. (Ill. Rev. Stat. 1989, ch. par. 1401.1(a).) The penalty for a violation of this section is no less than twice the minimum and no more than twice the maximum authorized for manufacture or delivery. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401.1(b).) Both defendants were sentenced to 30 years’ imprisonment under the trafficking statute. Ill. Rev. Stat. 1989, ch. 56V2, pars. 1401(a)(2)(D), 1401.1 (15-year minimum doubled for interstate trafficking).

Penalty provisions bear a presumption of constitutionally. The legislature, under the State’s police power, has wide discretion to prescribe penalties for defined offenses. (People v. Upton (1986), 114 Ill. 2d 362, 500 N.E.2d 943.) Legislation will survive a due process challenge so long as it is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety and general welfare. Upton, 114 Ill. 2d at 373, 500 N.E.2d at 948.

The Generally Assembly, in enacting this statute, set out a lengthy section entitled “Legislative intent.” (Ill. Rev. Stat. 1989, ch. 56V2, par. 1100.) Defendants focus on language contained therein that the “occasional petty distributor” is not to be punished with the same severity as large-scale traffickers. Given their lack of a prior record, defendants argue that they are, at worst, occasional petty distributors.

The facts, however, do not support their contention. Defendants were convicted of possessing three kilograms of almost pure cocaine having a street value of $1,120,166. While defendants’ acts may qualify as occasional, the amount can hardly be described as petty. Indeed, because it is over 900 grams, it falls into the category of the highest amount of drugs statutorily recognized. Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)(2)(D).

We therefore reject defendants’ contention that the legislature should have differentiated between dealers and deliverers or that the penalty should be lower for first-time offenders.

The legislature’s specific intent was to deter the abuse of controlled substances and to penalize most heavily the traffickers. The statute which doubles the penalties in cases when the substance is brought in from out of State is reasonably designed to remedy that evil. The controlled substance trafficking act is not violative of due process.

Nor does it provide for disproportionately excessive sentences. Absent a clear violation of a constitutional limitation, as where the penalty under the statute is so disproportionate to the offense that it is cruel or degrading or shocks the moral sense of the community, we will not interfere with the legislature’s determination of the character and extent of the penalty for the crime. People v. Castro (1987), 151 Ill. App. 3d 664, 503 N.E.2d 376.

In addressing similar claims, the United States Supreme Court recently upheld a Michigan law which mandated life in prison without parole for possession of more than 650 grams of cocaine. Harmelin v. Michigan (1991), 501 U.S___ 115 L. Ed. 2d 836, 111 S. Ct. 2680.

We find it reasonable for the legislature to determine that interstate drug traffickers should be penalized more severely than intrastate traffickers. The punishment provided for in the act is proportionate to the offense and is therefore constitutional.

Accordingly, we affirm the judgment of the Bureau County circuit court.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL B. LOSTUTTER, Defendant-Appellant.
    Third District
    No. 3—91—0588
    Opinion filed April 28, 1992.
    Edwin J. Anderson, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Joan Scott, State’s Attorney, of Lewistown (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Daniel B. Lostutter, appeals the dismissal of his post-conviction petition. We affirm.

The record shows that a jury convicted the defendant of one count of aggravated criminal sexual abuse and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12— 16(c)(1), 12 — 14(b)(1)). The trial court sentenced him to concurrent prison terms of 7 years, 25 years, and 25 years, respectively. On appeal, this court reversed one of the defendant’s aggravated criminal sexual assault convictions and affirmed the other. People v. Lostutter (3d Dist. 1988), No. 3 — 87—0830 (unpublished order under Supreme Court Rule 23).

Thereafter, the defendant filed a post-conviction petition in which he alleged that his trial counsel was ineffective for failing to object to certain instructions, failing to tender alternate instructions, and failing to file a post-trial motion. He also claimed that his appellate counsel was ineffective for failing to present these particular claims of ineffective assistance of trial counsel. The trial court found that the decision not to challenge the instructions could have been a matter of trial strategy and dismissed the petition.

The defendant’s first contention on appeal is that he received ineffective assistance of counsel because his trial counsel failed to tender proper jury instructions and failed to object to the jury instructions that were used. Specifically, with regard to his remaining aggravated sexual assault conviction, he notes that while there was only one charge, the victim testified to three different acts of anal penetration. Nonetheless, the jury was only instructed generally as to aggravated criminal sexual assault. He argues that because of the lack of specificity in the instructions, and because his attorney did not tender an instruction directing the jurors to unanimously agree on one act as the basis for the crime underlying the verdict, his conviction may have been based upon an improper composite jury verdict.

In order to establish ineffective assistance of counsel, a defendant must show both that his counsel’s representation fell below an objective standard of reasonableness and a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A review of counsel’s competency does not extend to those areas involving the exercise of professional judgment, discretion, or trial tactics. (People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3.) This is true even if in hindsight other counsel or a reviewing court might have acted in a different manner had they been defense counsel. People v. Johnson (1978), 63 Ill. App. 3d 745, 380 N.E.2d 531.

In the instant case, we simply disagree with the defendant’s assessment of the evidence the jurors heard and the instructions they received. The specific charge the defendant was found guilty of, count III, alleged in pertinent part that the defendant had committed aggravated criminal sexual assault by committing an act of sexual penetration in that he placed his penis in the anus of C.J. At trial, C.J. testified to other acts of sexual contact between himself and the defendant, but only to one instance where the defendant had inserted his penis into C.J.’s anus. The instruction on aggravated criminal sexual assault the jury received indicated that to sustain the charges in counts II and III, the State had to prove the requisite ages and that an act of sexual penetration had occurred. Sexual penetration was defined as any contact, however slight, between one person’s sex organ and the mouth or anus of another, including but not limited to fellatio or anal penetration. The guilty verdict form shows that the jury found the defendant “guilty of the offense of aggravated criminal sexual assault as to Count III.”

From our reading of these instructions, it seems clear that the jury was informed of the specific charge contained in count III, that is, that the defendant had inserted his penis into C.J.’s anus. At trial, C.J. testified to only one instance when this had occurred. Under these circumstances, we do not believe that the jurors could have been confused as to what they were finding the defendant guilty of pursuant to count III. Thus, on this record, we cannot say that the defendant has demonstrated that but for his trial counsel’s failure to object to the instructions given, or to tender a general unanimity instruction, the result of the proceeding would have been different. In our view, trial counsel’s decision not to object to the instructions given or tender a general unanimity instruction was a matter of professional judgment.

Additionally, we note that it is not incompetent for appellate counsel to fail to raise an issue on direct appeal which counsel believes is without merit, unless counsel’s appraisal of the merits is patently erroneous. (People v. Crater (1984), 124 Ill. App. 3d 1074, 465 N.E.2d 162.) Here, the defendant has asserted his appellate counsel was ineffective because he did not raise the issue of trial counsel’s incompetency with regard to the jury instructions. Given our determination that trial counsel was not ineffective, we cannot say that appellate counsel was ineffective for failing to raise this issue.

The defendant next contends that this court should remand his case to the circuit court because his post-conviction counsel did not file a Rule 651(c) certificate. (134 Ill. 2d R. 651(c).) He further argues that counsel’s failure to comply with the rule was demonstrated by his not making the trial transcripts available to the court and by his failure to otherwise indicate proper review of the record.

Rule 651(c) requires that the record on appeal from a post-conviction proceeding must disclose that appointed counsel took the necessary steps to secure adequate representation of the post-conviction petitioner’s claims. However, the absence of such a certificate from the record is harmless error if the record establishes that counsel met the requirements of the rule. People v. Szabo (1991), 144 Ill. 2d 525, 582 N.E.2d 173.

The record indicates that after post-conviction counsel was appointed, he filed a lengthy, detailed petition for post-conviction relief which amended the defendant’s previously filed pro se petition and more clearly set out the defendant’s claim that he had received ineffective assistance of trial and appellate counsel. Also, following a hearing on the State’s motion to dismiss the amended petition, post-conviction counsel filed another amended petition for post-conviction relief. It included a lengthy affidavit signed by the defendant, which clearly appears to have been drafted and prepared with the assistance of post-conviction counsel, who notarized it. Post-conviction counsel also attached copies of the general jury instruction given at the defendant’s trial, the appellate court opinion in the defendant’s case, and a copy of a Federal district court’s opinion dismissing the defendant’s petition for a writ of habeas corpus. These documents prepared by post-conviction counsel indicate that he was familiar with the trial record and had discussed the defendant’s contentions with him.

Additionally, at the hearing on the defendant’s petition, his post-conviction counsel called him to testify about what had occurred at trial with regard to the jury instructions. Post-conviction counsel also made extensive arguments to the trial judge concerning the defendant’s claims, discussing both the facts of the case and the law. We note also that the trial judge indicated that he had read the court file in this case. Accordingly, the record reveals that counsel met the requirements of Rule 651(c) and, therefore, the failure to file a Rule 651(c) certificate was harmless error.

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

Affirmed.

HAASE and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JACKIE D. HUNDLEY, Defendant-Appellee.
    Third District
    Nos. 3—91—0250 through 3—91—0252 cons.
    Opinion filed April 22, 1992.
    Rehearing denied May 28, 1992.

      Samuel Naylor VI, State’s Attorney, of Carthage (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Capps, Ancelet & Stoverink, of Carthage (Albert V. Ancelet, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Jackie D. Hundley, was charged with the offense of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402). Cocaine was found in Hundley’s unattended automobile by an Illinois State trooper during a warrantless inventory search. Hundley filed a motion to suppress evidence which was granted by the trial court. The State appeals. We affirm.

On October 1, 1988, Hundley was involved in a one-car accident near the intersection of U.S. Highway 136 and Fountain Creek Road in Hancock County. Hundley’s vehicle struck a utility pole near the highway and came to rest in an adjacent ditch. Trooper Anthony Grace investigated the accident. He discovered Hundley’s unattended vehicle was locked and severely damaged from the accident. Hundley was not present. Trooper Grace called a tow truck to remove the vehicle from the ditch. The trooper opened the automobile with a “slim jim.” The trooper testified the vehicle was opened so the transmission could be shifted to avoid further damage to the vehicle when it was towed from the ditch.

An inventory search of the contents of the vehicle was performed by the trooper. He found a closed cigarette case which he opened. Inside the case he found cigarettes and a snorting tube containing cocaine residue. The trooper testified that he opened the cigarette case because in his experience he had found women often put their driver’s licenses and money in these containers. No purse or other valuables were found in Hundley’s vehicle. Trooper Grace testified he prepared an inventory list pursuant to State Police policy and gave copies of it to his commanding sergeant and the tow truck operator. No inventory form was ever introduced into evidence at the suppression hearing. At the conclusion of the hearing, the State admitted into evidence the Division of State Troopers’ General Order DST ENF 13 (General Order), which contains the policy and procedure to be followed during a warrantless inventory search of an impounded vehicle.

In presenting a motion to suppress evidence, the defendant has the burden of proving the search and seizure were unlawful. (People v. Janis (1990), 139 Ill. 2d 300, 565 N.E.2d 633.) A trial court’s decision on a motion to suppress evidence will generally not be reversed unless it is manifestly erroneous. At a hearing on a motion to suppress, it is the trial court’s function to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.

An inventory search is a judicially created exception to the warrant requirement of the fourth amendment. (Illinois v. Lafayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605.) Three requirements must be satisfied for a valid warrantless inventory search of a vehicle: (1) the original impoundment of the vehicle must be lawful (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092); (2) the purpose of the inventory search must be to protect the owner’s property and to protect the police from claims of lost, stolen, or vandalized property and to guard the police from danger (Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092); and (3) the inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search. Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739,107 S. Ct. 738.

Initially, we note Trooper Grace lawfully impounded Hundley’s vehicle. The vehicle skidded off the roadway and had sheared off a utility pole. The fallen power line created a hazard which impeded the flow of traffic. Hundley’s vehicle was locked and unattended until it was towed from the ditch. The Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 100 et seq.) authorizes the removal of a vehicle under these circumstances. According to section 4 — 203(d) of the Code:

“When an abandoned, unattended, wrecked, burned or partially dismantled vehicle is creating a traffic hazard because of its position in relation to the highway or its physical appearanee is causing the impeding of traffic, its immediate removal from the highway or private property adjacent to the highway by a towing service may be authorized by a law enforcement agency having jurisdiction.” Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 203(d).

Trooper Grace was responsible for the safety of Hundley’s vehicle and its contents since Hundley was not at the scene of the accident.

After the trooper ordered the vehicle removed from the ditch, it was then towed to an unguarded storage facility. Hundley’s vehicle was then exposed to possible theft or vandalism because it was parked at an unguarded storage facility. Under these circumstances, it was reasonable for Trooper Grace to inventory the contents of Hundley’s vehicle. When vehicles are impounded, police departments generally follow a standardized procedure for inventorying the contents of the impounded vehicle. Such standardized police procedures were developed in response to three distinct needs: (1) the protection of the owner’s property; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. (Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.) Section 13 — 3 of the General Order enumerates the standardized Illinois State Police objectives regarding warrantless inventory searches of impounded vehicles. Section 13 — 3 of the General Order provides in pertinent part:

“OBJECTIVES
(a) To safeguard property in those cases where the actual owner or person in charge of such property is for any reason unable to provide ordinary care and protection for such property.
(b) To protect those persons who actually remove and take custody of vehicles/boats towed by authority of the Division of State Troopers.
(c) To protect the interests of the Division of State Troopers.”

Based upon our review of the record, we find Trooper Grace’s warrantless inventory search of Hundley’s impounded vehicle met the reasonable objectives of the General Order. The inventory search was undertaken for the purpose of protecting Hundley's property and to discourage claims against the State Police for theft or vandalism. However, we clearly find from the record that Trooper Grace did not open the closed cigarette case pursuant to a standardized State Police procedure. The General Order was silent concerning the opening of closed containers by State troopers during a warrantless inventory search of an impounded vehicle.

The trial court suppressed the evidence because Trooper Grace did not produce the required inventory form. The trooper testified that he completed the inventory form, but it was not introduced into evidence at the suppression hearing. The trial court ruled as follows:

“I believe the Supreme Court in the Bertine case is saying that since we are dealing with another exception to an individual’s Fourth Amendment rights, the officer must dot the i’s and cross the t’s so that the trial court does not have to determine the officer’s motives in connection with the search.”

We believe the issue in this instant matter is not whether Trooper Grace prepared an inventory list pursuant to the General Order, but whether the trooper had legal authority to open Hundley’s closed cigarette case. While we affirm the trial court’s order suppressing the evidence, we do not agree with the trial court’s analysis of the law governing warrantless inventory searches of impounded vehicles. The trial court was not correct in suppressing the evidence merely because Trooper Grace did not produce an inventory list at the suppression hearing. Instead, the trial court’s inquiry should have been whether there were any existing standardized police procedures governing the opening of closed containers found within lawfully impounded vehicles.

We hold that Bertine allows police to open all closed containers during a warrantless inventory search of an impounded vehicle where there are standardized police procedures which require the opening and inventorying of the contents of all closed containers.

In Bertine, the defendant was stopped for driving under the influence of alcohol. After the defendant was taken into custody, a police officer, acting pursuant to standardized police procedure, inventoried the defendant’s van. The officer discovered a closed backpack, which he opened. Inside the backpack the officer found various containers holding controlled substances, cash, and cocaine paraphernalia.

The police officer in Bertine followed a reasonable standardized police procedure which required the officer to open all closed containers during an inventory search of an impounded vehicle. The Supreme Court in Bertine stated that police should be given limited discretion in opening closed containers discovered within lawfully impounded vehicles, “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” (Bertine, 479 U.S. at 375, 93 L. Ed. 2d at 748, 107 S. Ct. at 743.) Justice Blackmun cautioned that the police should not be allowed discretion to turn a warrantless inventory search of an impounded vehicle into “a purposeful and general means of discovering evidence of crime.” Bertine, 479 U.S. at 376, 93 L. Ed. 2d at 749, 107 S. Ct. at 743 (Blackmun, J., concurring).

In the instant appeal, we note the General Order of the Illinois State Police was silent regarding the opening of closed containers found during a warrantless inventory search of an impounded vehicle. While the General Order requires a trooper to inventory areas of an impounded vehicle where people normally store their property, it fails to require a trooper to open closed containers. Sections 13 — 2 and 13 — 4(a)(2) of the General Order provide in relevant part:

“13 — 2 POLICY
*** A physical inventory shall be made of all vehicles towed, except when the vehicle is towed at the owner’s request.
* * *
13 — 4 Procedure
(a) Forms ***
(2) An examination and inventory of the contents of all vehicles/boats towed or held by authority of Division personnel shall be made by the officer who completes the Tow-In Recovery Report. This examination and inventory shall be restricted to those areas where an owner or operator would ordinarily place or store property or equipment in the vehicle/boat; and would normally include front and rear seat areas, glove compartment, map case, sun visors, and trunk and engine compartments.”

In People v. Lear (1991), 217 Ill. App. 3d 712, 577 N.E.2d 826, the defendant was stopped for speeding when the trooper was informed the defendant’s driver’s license was suspended. The defendant’s vehicle was immediately towed, impounded and searched. The trooper discovered a closed drawstring bag in the trunk. Upon opening the bag, the trooper discovered two loaded handguns. The defendant was charged with possession of a firearm without the requisite firearm owner’s identification card (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 2) and unlawful use of weapons (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(4)). The defendant moved to suppress the introduction of the gun into evidence. The trial court granted his motion.

The court in Lear affirmed the trial court’s suppression of the evidence found inside the closed bag. In Lear, the court followed Bertine and concluded that when the trooper opened the closed drawstring bag, he violated the defendant’s fourth amendment rights. The court reasoned the guns were properly suppressed absent testimony that the inventory search was conducted pursuant to a standardized police procedure which required the opening and inventorying of all closed containers in every impounded vehicle. Lear, 217 111. App. 3d at 714-15, 577 N.E.2d at 828.

According to the Supreme Court in Florida v. Wells (1990), 495 U.S. 1, 109 L. Ed. 2d 1, 110 S. Ct. 1632, the police should be given discretion to open closed containers when the police are unable to ascertain the contents of the closed containers and standardized police procedure requires the closed containers to be opened for further inventory. In Wells, the defendant was stopped for driving under the influence of alcohol. The defendant agreed to take a breathalyzer test and permitted the trooper to inventory the trunk of his vehicle. The trooper forced open a locked suitcase found in the trunk of the defendant’s vehicle. The trooper discovered in the suitcase a substantial quantity of marijuana. The Supreme Court in Wells reaffirmed its earlier holding in Bertine. (Wells, 495 U.S. at 3, 109 L. Ed. 2d at 6, 110 S. Ct. at 1635.) The Supreme Court in Wells once again affirmed the validity of warrantless inventory searches which follow a standardized police procedure requiring the opening of all closed containers in impounded vehicles. However, the Florida State Police in Wells, just like the Illinois State Police here, did not have any standardized procedure regarding the opening of closed containers discovered during a warrantless inventory search of an impounded vehicle.

The Supreme Court stated:
“A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.” (Wells, 495 U.S. at 4, 109 L. Ed. 2d at 6, 110 S. Ct. at 1635.)

The Supreme Court in Wells held the warrantless inventory search of the locked suitcase did not satisfy the fourth amendment because there was no standardized police procedure governing the opening and inventory of closed containers found in impounded vehicles. Wells, 495 U.S. at 5,109 L. Ed. 2d at 7, 110 S. Ct. at 1635.

Here, we find Trooper Grace opened the closed cigarette case using his own discretion without the benefit of a standardized police procedure requiring the opening of all closed containers. For a valid warrantless inventory search of an impounded vehicle, it is not incumbent upon the Illinois State Police to “dot all the i’s and cross all the t’s.” Police are allowed reasonable discretion in a warrantless inventory search of an impounded vehicle to open closed containers provided they act according to a standardized police procedure which mandates the opening of all closed containers and the inventorying of their contents in every impounded vehicle.

For the reasons indicated, the judgment of the circuit court of Hancock County is affirmed.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOCK A. DOOLEY, Defendant-Appellant.
    Third District
    No. 3-90-0379
    Opinion filed February 28, 1992.
    Rehearing denied April 7, 1992.

      Arthur J. Inman, of Peoria, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Tazewell County, defendant, Jock A. Dooley, was found guilty of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(bXl)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(1)). He was sentenced to consecutive prison terms of six years each on the sexual assault counts and a consecutive three-year term on the sexual abuse count. He contends on appeal that (1) the trial court erred in imposing five consecutive sentences, (2) his sentence was excessive, and (3) he was prejudiced at trial by the ineffective assistance of counsel.

According to the bill of indictment charging defendant, two of the four counts of aggravated criminal sexual assault arose from an incident which occurred on March 24, 1989. The incident underlying the other two counts assertedly took place in November 1988. The count for criminal sexual abuse also related to November 1988. At the time of the alleged incidents, the complainant was a 12-year-old girl who lived at the defendant’s apartment with her mother, the defendant, and her younger half-brother. Defendant was the mother’s boyfriend. Additional facts will be recited as needed to resolve the issues.

Defendant’s first contention is that the trial court erred in making all five of his sentences consecutive. Section 5 — 8—4(a) of the Unified Code of Corrections (Code) provides for consecutive sentences as follows:

“When multiple sentences of imprisonment are imposed on a defendant at the same time, *** the sentences shall run concurrently or consecutively as determined by the court. *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 4(a).

It is acknowledged by defendant that, when section 12 — 13 and section 12 — 14 offenses are perpetrated as part of a single course of conduct involving a single criminal objective, the sentences must be consecutive. Thus, defendant concedes that the convictions arising from the March 24, 1989, incident require consecutive sentences. He further concedes that the convictions stemming from the November 1988 occurrence require consecutive sentences. Defendant points out, however, that the two groups of offenses were separated by several months and urges that they do not constitute a single course of conduct and, therefore, do not require all consecutive sentences. In essence, defendant argues that the two groups of consecutive sentences may run concurrently with each other. As correctly noted by defendant, the trial court expressed belief that it was statutorily required to impose consecutive sentences on all the charges against defendant. Defendant takes the position that the trial court misconstrued the controlling statute.

We recently addressed the precise question at issue here in People v. Bole (1991), 223 Ill. App. 3d 247. Defendant in Bole pleaded guilty to three violations of section 12 — 13(aX3) (criminal sexual assault). Defendant had perpetrated the three offenses against the same victim but on three separate and distinct occasions. Nevertheless, the trial court found that defendant qualified for mandatory consecutive sentences under section 5 — 8—4(a). Defendant was given separate sentences for the three separate occasions, all to run consecutively. On appeal we reviewed the statute and found the pertinent language to be clear and unambiguous. We concluded that, by its plain meaning, the mandatory consecutive sentencing provision in section 5 — 8—4(a) was intended to apply only to situations where the relevant offenses occurred during a single course of conduct. Our conclusion was supported by the history of section 5 — 8— 4(a), which we examined in considerable detail.

In Bole we discussed People v. Ewald (1991), 210 Ill. App. 3d 7, a case recently decided by our colleagues in the fourth district. Ewald held that section 5 — 8—4(a) mandates consecutive sentences where multiple offenses include section 12 — 13 or 12 — 14 violations, even if the offenses arose from distinctly separate courses of conduct. Ewald has been followed by the Appellate Court, Fifth District, in People v. Hough (1991), 221 Ill. App. 3d 447, 453-55, and People v. Haun (1991), 221 Ill. App. 3d 164,176-77.

The Ewald case, which had only recently been decided, was acknowledged, but challenged, by the defendant in Bole. In the instant case, the State relies on Ewald. However, in Bole we specifically disagreed with, and declined to follow, the interpretation of section 5 — 8— 4(a) which was announced in Ewald and subsequently adopted in Hough and Haun. Defendant has not presented, and we have not become aware of, any sound reason to retreat from the position we reached in Bole. On the contrary, upon reexamining our opinion in Bole for purposes of deciding this case, we are confident that the reasoning we applied and the conclusion we reached there remain valid and vital. We therefore reaffirm that, where the offenses, or groups of offenses, were committed during separate and distinct courses of conduct, section 5— 8 — 4(a) requires consecutive sentences for the offenses within each individual course of conduct but not for the collective offenses from all courses of conduct.

As we mentioned above, the trial court imposed consecutive sentences on all of defendant’s convictions because it believed section 5— 8 — 4(a) required such sentences. We have now construed the statute to mandate consecutive sentences only where single courses of conduct are involved. Accordingly, this matter must be remanded, and defendant must be resentenced in light of this construction. We observe, as we did in Bole, that, although defendant is not eligible for mandatory consecutive sentences for the separate causes of conduct, he still qualifies for consecutive terms under the exercise of the trial court’s discretion under section 5 — 8—4(b). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).

Inasmuch as the matter of consecutive sentences must be remanded for reconsideration by the trial court, we decline to address defendant’s second contention, which asserts that the sentence he received was excessive.

We turn now to defendant’s argument that he was denied the effective assistance of counsel because his trial attorney failed to timely disclose his alibi defense. During his direct examination at trial, defendant began to testify that he could not have sexually abused the complainant on March 24, 1989, as charged, since he was in Tennessee fishing at the time. The prosecutor interrupted this testimony and, in a sidebar, objected that the testimony was improper since the State had been given no notice of an alibi defense. The court directed that the defendant’s alibi testimony be stricken. Later in the trial, however, the court admitted testimony, given by Howard McClaskey, that he and defendant had left on a fishing trip shortly before midnight on the evening of March 23, 1989, and did not return until March 26. Defense counsel subsequently argued the alibi to the jury in closing argument.

Defendant raised in his post-trial motion the issue of counsel’s failure to give notice of an alibi defense. During the hearing on the motion, defendant testified that eight or nine months before trial he had told his trial attorney that he had an alibi. It is uncontested that the record contains nothing to show that defense counsel gave notice of an alibi defense to the prosecution or the court prior to trial.

Defendant stresses that counsel’s failure to give notice of an alibi defense put him in a position where he took the stand, testified, and denied the charges, but was unable to even mention, much less present documentary evidence, that he had an alibi. According to defendant, such an omission in his testimony was particularly prejudicial since a defendant would certainly be expected to emphasize his own alibi if he had one. Moreover, defendant insists, he was prejudiced not only with regard to the March charges but also the November charges in that, if he had been able to impeach half the charges against him, by implication he could have attacked the credibility of his accuser on the remaining charges. Defendant concludes that his trial counsel was sufficiently ineffective to warrant a new trial.

In order to prevail on a claim that his sixth amendment right to the effective assistance of counsel has been denied, a defendant must prove (1) that his legal representation was seriously deficient and (2) that he was prejudiced by counsel’s deficient performance. (People v. Chandler (1989), 129 Ill. 2d 233, 242, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) A defendant can provide the necessary proof by showing that counsel’s errors were so critical that they deprived him of a fair trial, that is, a trial with a reliable result. (Chandler, 129 Ill. 2d at 242.) A defendant must affirmatively demonstrate that counsel’s errors actually had an adverse effect on the defense. (Strickland, 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067.) Defendant can carry this burden by showing a reasonable probability that, absent the errors, a reasonable doubt as to his guilt would have existed. (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69; People v. Bean (1990), 137 Ill. 2d 65, 130.) If an ineffective assistance claim can be disposed of on the ground that counsel’s conduct was not sufficiently prejudicial, that course should be followed rather than focusing on counsel’s deficiencies. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Johnson (1989), 128 Ill. 2d 253, 271.) Upon review of the record in this case, we are of the opinion that defendant cannot make a showing of prejudice sufficient to sustain his claim.

Defendant’s attack on his trial attorney’s performance is confined to the attorney’s failure to inform the State that he intended to present an alibi defense and to furnish to the State specific information as to the place where defendant claimed he was at the time of the alleged offense. These disclosures are required by Supreme Court Rule 413(d) (134 Ill. 2d R. 413(d)), and the failure to make them, absent a showing of good cause, is ground for excluding evidence of the alibi (People v. Partee (1987), 157 Ill. App. 3d 231, 253; People v. Braxton (1980), 81 Ill. App. 3d 808, 815). Defendant’s testimony that he had told his attorney about his alibi eight or nine months before trial was not contradicted. We conclude that defense counsel should have given notice of an alibi defense. This simple step would have assured that defendant could testify as to his own alibi. However, we cannot say that, merely because he did not testify, defendant received an unfair trial and, therefore, is entitled to a new trial.

First of all, evidence of defendant’s alibi was placed before the jury. Howard McClaskey testified that he and defendant were in Tiptonville, Tennessee, fishing, on March 24, 1989, the date of one of the alleged offenses. The witness said he and defendant left between 11:30 p.m and midnight on March 23, 1989, and returned on March 26. This alibi testimony was argued to the jury during defense counsel’s closing argument. Defendant nowhere claims that his own testimony, or other evidence he might have presented, would have shown anything more than was revealed by McClaskey’s testimony or argued in closing argument. Therefore, while defendant’s testimony may have reinforced in the jurors’ minds that he was claiming he was not present when the offense occurred, that testimony would have been essentially cumulative.

More significantly, by the end of the trial defendant’s purported alibi turned out to be not much of an alibi after all. During the State’s case complainant testified that defendant assaulted her on March 24, 1989. Howard McClaskey then testified that he and defendant were gone on a fishing trip on March 24. McClaskey also indicated that the trip took place on Easter weekend and that he and defendant left Thursday night because he had Good Friday off from work. During rebuttal the complainant agreed that defendant had, indeed, gone on a fishing trip around the time asserted by McClaskey. According to complainant, however, the sexual assault occurred before he left.

Complainant explained that she had thought the incident occurred on a Friday but it must have been a Wednesday or a Thursday. When asked why she thought the incident had occurred on March 24, complainant responded that it had happened at a time when she did not have school the next day, and the 24th was a Friday. On cross-examination during rebuttal, complainant testified that the offenses occurred on the last day of school before Easter vacation. The trial judge took judicial notice that March 23, 1989, was a Thursday and March 24, 1989, was Good Friday.

In the final analysis, complainant did not dispute that defendant was gone on March 24, 1989. Rather, she maintained that she had been assaulted before he left, whichever date that may have been. As a result, whether defendant was in Tennessee on March 24 was not significant in terms of defendant having an alibi. Complainant testified the March assaults occurred, not while defendant was in Tennessee, but before he left for Tennessee. Thus, defendant’s purported alibi did not place him elsewhere at the time of the March offenses and did not serve him well as an alibi.

To summarize, in light of complainant’s rebuttal testimony, defendant’s asserted alibi was left with little viability. Consequently, the relevance of evidence concerning the alibi was questionable. Nevertheless, such evidence was, in fact, presented to the jury through Howard Mc-Claskey’s testimony. Had defendant testified regarding an alibi, his testimony would have been essentially the same as McClaskey’s and, thus, would have been cumulative. Too, the alibi went only to the March violations. It would not have helped defendant directly with regard to the November charges. Under these circumstances, we do not believe defendant has shown a reasonable probability that, if counsel had disclosed an alibi defense, and defendant had been allowed to testify as to that alibi, he could have created a reasonable doubt of his guilt. (See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) Since we cannot find that defendant was seriously prejudiced, neither can we find that the result of his trial was unreliable. As deficiencies in trial counsel’s performance did not deprive defendant of a fair trial, a new trial is not warranted.

Therefore, the verdict and judgment of conviction of the circuit court of Tazewell County are affirmed, the sentence is vacated, and the matter is remanded for resentencing.

Affirmed in part; vacated in part and remanded.

INGLIS, P.J., and GEIGER, J., concur.