author: PRESIDING JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLENN AULER, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0224
    Opinion filed October 4, 1993.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Larry Dunn, State’s Attorney, of Olney (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant Glenn Auler pled guilty to the aggravated criminal sexual abuse of an 11-year-old girl. He was sentenced to four years in prison, fined $1,000, and ordered to pay restitution to cover counseling costs should the victim choose to seek counseling. The defendant was the victim’s grandmother’s live-in companion of 22 years when this incident occurred.

Defendant appeals only his sentence. He contends that he is entitled to a new sentencing hearing (1) because the trial court considered an improper aggravating factor, and (2) because a four-year prison term is excessive in light of his age and his medical condition. He also argues that the trial court abused its discretion by fining him $1,000 without considering his ability to pay and that the restitution order is void and ambiguous and must be vacated. We affirm the sentence and fine but vacate the restitution order and remand that portion of the sentence to the trial court.

Defendant first challenges the trial court’s application of section 5 — 5—3.2(a)(14) of the Unified Code of Corrections (Ill. Rev. Stat., 1990 Supp., ch. 38, par. 1005 — 5—3.2(a)(14)) to his case. Section 5 — 5—3.2(aX14) states that the trial court may consider, as an aggravating factor, that the defendant held a position of trust or supervision in relation to a victim who was under the age of 18 when the abuse was committed. (Ill. Rev. Stat., 1990 Supp., ch. 38, par. 1005— 5 — 3.2(a)(14).) The statute describes the type of position of trust or supervision it applies to as being “such as, but not limited to” those of a teacher, scout leader, baby-sitter or day-care worker. Defendant argues that the trial court erred when it determined that he held a position of trust with the victim. He asserts that he was not acting as anything more than a surrogate grandfather, or a family member, when the incident occurred. He suggests that the position of trust as an aggravating factor does not apply to family members. We disagree.

The position-of-trust aggravating factor in section 5 — 5—3.2(a)(14) applies to anyone charged under one or more of the 10 statutes specifically listed in that section. (Ill. Rev. Stat., 1990 Supp., ch. 38, par. 1005 — 5—3.2(a)(14).) These statutes include the following: indecent solicitation of a child; sexual relations within families; soliciting for a juvenile prostitute; juvenile pimping; exploitation of a child; child pornography; criminal sexual assault; aggravated criminal sexual assault; criminal sexual abuse; and aggravated criminal sexual abuse.

The defendant is charged under the aggravated criminal sexual abuse statute, section 12 — 16 of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(1)(i)-) A family member could also be charged under this statute (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(b) (now 720 ILCS 5/12 — 16(b) (West 1992))) and would have to be charged under sexual relations within families statute (Ill. Rev. Stat. 1991, ch. 38, par. 11-11 (now 720 ILCS 5/11-11 (West 1992))). The legislature made no distinction, based on family ties, between subsections (b) and (c)(1)(i) when it determined that the position-of-trust aggravating factor in section 5 — 5—3.2(a)(14) would apply to section 12— 16. We decline to create such a distinction.

We also disagree with defendant’s argument that the position-of-trust aggravating factor did not apply to him because it was meant to apply only to individuals whose position of trust was far removed from that held by the defendant as a surrogate grandfather. The defendant suggests that, as a surrogate grandfather, he is not within the class of individuals against whom this aggravating factor was meant to apply because he does not, as a result of his position, have special access to children. In support of this argument, defendant cites People v. Bosley (1990), 197 Ill. App. 3d 215, 553 N.E.2d 1187, which applied this factor in sentencing a church pastor, and People v. Stephenson (1990), 198 Ill. App. 3d 189, 555 N.E.2d 802, which involved a manager of a relief home for the retarded.

Other cases, however, have applied this factor in sentencing a stepfather (People v. Burke (1992), 226 Ill. App. 3d 798, 589 N.E.2d 996) and a mother’s boyfriend (People v. Landis (1992), 229 Ill. App. 3d 128, 593 N.E.2d 893). The Landis court held that the trial court correctly applied the position-of-trust aggravating factor because the mother let the defendant into her home and near the children expecting him to act properly toward them. (Landis, 229 Ill. App. 3d at 137, 593 N.E.2d at 899.) Unquestionably, the victim’s grandmother in this case trusted her live-in “mate” of 22 years with the child. This is, however, only half the trust at issue. Perhaps more central to determining whether the defendant was in a position of trust or supervision is an examination of the victim’s trust in the defendant due to his position of trust or supervision in relation to her. Relevant questions include whether the defendant is someone the victim would naturally trust because of the position he or she holds in relation to the victim and whether the defendant was someone the victim would obey with little or no objection. Teachers, pastors, day-care workers, and baby-sitters all fall into these categories. So too do parents, stepparents, grandparents, and surrogates such as the defendant.

This conclusion is supported by People v. Kaminski (1993), 246 Ill. App. 3d 77, 615 N.E.2d 808, which interprets the phrase “position of supervision” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(4)). In Kaminski, the defendant was charged with the criminal sexual assault of a 17-year-old minor, his sister-in-law, while he held a position of supervision in relation to her. The defendant argued unsuccessfully that as a one-time overnight social host he was not in a position of supervision when he assaulted the victim. (Kaminski, 246 Ill. App. 3d at 82.) The court noted that “it is the position of ‘trust, authority or supervision’ which often provides a heightened opportunity for the sexual assault to occur” and that the vulnerability of a child in such circumstances is a separate factor which justifies a stronger penalty. (Kaminski, 246 Ill. App. 3d at 81, 619 N.E.2d at 811.) We agree.

Here, the victim considered the defendant her grandfather. The defendant admitted that he acted in this role. He, therefore, held the position of trust or supervision toward the victim that grandparents traditionally occupy in relation to their grandchildren. Accordingly, the trial court did not err when it concluded that the position-of-trust factor in aggravation was applicable in this case.

The defendant next argues that his four-year prison term is excessive and that his case must be remanded for the trial court to consider a sentence of probation. The sentence is excessive, he contends, because the trial court did not adequately consider his age and medical condition as mitigating factors.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883.) Defendant pled guilty to a Class 2 felony. He was eligible for a sentence of three to seven years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(5).) In sentencing the defendant, the trial court not only considered factors in aggravation and in mitigation, but it also reviewed letters from the defendant’s friends and health care professionals.

In aggravation, the trial court considered: (1) that the defendant has a history of prior criminal activities; (2) that there was a prior similar incident; (3) that the defendant had refused to accept responsibility and lacked remorse; (4) that the sentence was necessary to deter others from committing similar offenses; and (5) that the defendant held a position of trust or supervision in relation to the victim.

In mitigation, the trial court noted that the defendant intended no physical harm to the victim. Also noted, with concern, was the fact that imprisonment posed a danger to the defendant’s medical condition. The trial judge stated that he carefully considered the 67-year-old defendant’s medical condition, which included possible coronary artery disease, hypertension, and an overweight condition. He concluded that these afflictions were not life threatening.

Finally, the trial court stated that probation would depreciate the seriousness of the offense and would “be inconsistent with the ends of justice.” Given this careful consideration of defendant’s age and medical condition and the seriousness of the crime, we conclude that the trial court did not abuse its discretion when it sentenced the defendant to four years in prison.

Nor did the trial court abuse its discretion by fining the defendant $1,000. The defendant contends that the record supports the conclusion that he has no financial ability to pay the fine.

A fine may be imposed as part of a sentence. In determining the fine, the court shall consider the defendant’s financial resources and future ability to pay. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9— 1(d)(1).) What is required is that the record show that the court considered the financial resources and future ability of the defendant to pay. (People v. Maldonado (1985), 109 Ill. 2d 319, 324, 487 N.E.2d 610, 612.) The trial judge stated that he was aware of the defendant’s financial condition. He went on to state that, in setting the fine, costs, and restitution, he considered the defendant’s statement about his financial condition, the fact that he had filed bankruptcy in 1991, the suspension of his pension benefits during incarceration, and the loss of a part-time job. The record sufficiently demonstrates that the court considered the defendant’s financial resources and his future ability to pay.

Defendant’s last argument is that the restitution order is void and must be vacated. Alternatively, he contends that the restitution order must be remanded and a more specific order must be entered.

Section 5 — 5—6(g) of the Unified Code of Corrections states that the court shall, after determining defendant’s ability to pay, require the defendant to pay for the victim’s counseling services in this case. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(g).) These payments are made to the circuit court clerk and are transmitted by the clerk to the proper person or agency. The court may require the payments for a period not to exceed five years after the sentencing. Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6(g).

This provision permits an order of restitution for prospective counseling expenses in sex abuse cases. (People v. Cole (1990), 193 Ill. App. 3d 990, 996, 550 N.E.2d 723, 728, abrogated in part by People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.) However, in order to provide for the finality of a sentence, such an order should include the following factors:

“(1) a maximum dollar limit; (2) a time frame for counseling and proof of expenses incurred, e.g., within one year of sentencing, or the term of probation where probation is imposed; (3) that the court services department or probation office monitor and administer the payment of restitution; (4) in the event that a dispute develops, that either party may petition the court for resolution thereof; and (5) when bond money is being withheld for use for restitution, a date when any bond monies not so used will be remitted to defendant.” Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 728.

The trial court’s order of restitution does not meet the Cole requirements because it does not fix a sufficiently clear and definite sentence, one that may be enforced without further judicial action. (Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 727.) Therefore, the cause is remanded for the trial court to specify the amount, duration, and other conditions of the restitution. People v. Hileman (1989), 185 Ill. App. 3d 510, 517, 541 N.E.2d 700, 704.

The defendant’s sentence of four years’ imprisonment is affirmed. The imposition of the fine is affirmed. The case is remanded for the trial court to specify the maximum amount, duration, and other conditions of the restitution order.

Affirmed and remanded with directions.

WELCH and MAAG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH PRESIDING JUSTICE CHAPMAN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN JENKINS, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0017
    Opinion filed October 5, 1993.

      CHAPMAN, P.J., specially concurring.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Kimbara G. Harrell, of Olney, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro, and Edward G. Coleman, of Springfield (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a jury trial in the circuit court of Jackson County on November 7, 1991, defendant, Kevin Jenkins, was convicted of unlawful delivery of a controlled substance. On December 11, 1991, defendant filed a motion for a new trial, which was denied on December 16, 1991. On December 19, 1991, defendant was sentenced to eight years of imprisonment in the Illinois Department of Corrections (DOC) with credit for 147 days served. He was ordered to pay $500 restitution to the Southern Illinois Enforcement Group, a street-value fine in the amount of $500, and a discretionary fine of $2,000, plus court costs and surcharges. Defendant did not file a motion for reduction of sentence pursuant to section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c)) within 30 days of the imposition of sentence. Furthermore, no objection to the imposition of the discretionary fine of $2,000 or the order of restitution was made at the time of his sentencing hearing.

Defendant appeals only his sentence and the orders for restitution imposed by the trial court. He argues that the trial court abused its discretion (1) by sentencing him to eight years in prison; (2) by ordering him to pay a $2,000 discretionary fine in addition to a $500 street-value fine; and (3) by ordering him to pay $500 restitution to the Southern Illinois Enforcement Group. He also argues that he is entitled to a $5-per-day credit toward his fine for the 147 days he spent in jail prior to sentencing. Finally, he contends that he received ineffective assistance of counsel because his trial counsel failed to file a post-sentencing motion to reduce sentence.

Defendant was convicted of an offense which is a Class 1 felony (Ill. Rev. Stat. 1991, ch. 56V2, par. 1401(bX2)). Section 5 — 8—1(c) of the Unified Code of Corrections provides:

“(c) A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.
If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, the proponent of the motion shall exercise due diligence in seeking a determination on the motion and the court shall thereafter decide such a motion within a reasonable time.
If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.
A motion to reduce a sentence shall not be considered to have been timely filed unless it is filed with the circuit court clerk within 30 days after the sentence is imposed ***.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(c).

In People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1115, we held compliance with this section to be mandatory to avoid waiver of sentencing issues when they were the sole issues on appeal. We drew a parallel between section 5 — 8—1(c) and post-trial motions required to preserve issues on appeal (Ill. Rev. Stat. 1991, ch. 38, par. 116 — 1(b)), and motions to withdraw pleas of guilty, which are mandatory for perfection of an appeal (134 Ill. 2d R. 604(d)). Citing People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, and People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, we noted that where a defendant fails to file these post-trial motions, the trial court has been denied the opportunity to correct any error that might have occurred, thus burdening appellate counsel and courts of review with the time and expense of preparing and processing appeals. Macke, 224 Ill. App. 3d at 816, 587 N.E.2d at 1114.

The special concurrence declines to follow this court’s decision in Macke, due to the belief that Macke erroneously held that a trial-level motion to reduce sentence was a jurisdictional prerequisite to perfection of an appeal. Admittedly, some of the Macke decision is couched in language which could be interpreted as finding that a motion to reduce sentence is a jurisdictional prerequisite to appeal. However, when read as a whole, the decision views failure to file a motion to reduce sentence as a waiver of that issue where it is the sole question on appeal. Notably, the defendant’s appeal in Macke was not dismissed for lack of jurisdiction, but rather, the trial court’s decision was affirmed.

The Second District of the Appellate Court has cited the Macke decision for the proposition that where a defendant does not raise an excessive-sentence issue in his post-trial motion and does not challenge the basis of his sentence in a motion to reconsider or reduce his sentence, the issue is deemed waived on appeal. In People v. Spencer (1992), 229 Ill. App. 3d 1098, 1101; 595 N.E.2d 219, 221, the court considered the issue raised by the defendant, despite the fact that the issue could have been deemed waived. In People v. Lewis (1992), 235 Ill. App. 3d 1003, 1005-06, 602 N.E.2d 492, 493, appeal allowed (1993), 148 Ill. 2d 649, 610 N.E.2d 1271, the court relied on Macke and dismissed the defendant’s appeal. It stated that the defendant had waived her right to appeal issues relating to her sentencing by failing to file a timely motion to reduce her sentence pursuant to section 5 — 8—1(c). It found that Macke expanded but did not change or overrule any prior cases which had discussed whether a defendant waived the right to appeal a sentence imposed by failing to file a motion to reduce the sentence. It found that the dismissal of appeals where a defendant failed to properly preserve any error that might have occurred by sentencing was appropriate and promoted judicial economy in the finality of judgments. Lewis, 235 Ill. App. 3d at 1006, 602 N.E.2d at 493.

Subsequently, the second district chose to reach the merits of a number of these cases despite acknowledgement of Macke and Lewis as precedent for considering sentencing issues to be waived through a defendant’s failure to file a post-sentencing motion. In People v. Pfister (1993), 240 Ill. App. 3d 931, 936, 608 N.E.2d 1230, 1234, the court clearly delineated the scope of its Lewis decision, stating that it was “limited to a finding that when appealing only the sentence after a trial on the merits, the failure to file a post-sentencing motion results in waiver.” (Emphasis added.) It rejected language in Macke which it believed indicated that this court believed a post-sentencing motion to be a condition precedent to filing an appeal. We are in agreement with the Pfister "court in our belief that the failure to file such a motion after a trial on the merits could, and in this case does, result in waiver. (See Pfister, 240 Ill. App. 3d at 935, 608 N.E.2d at 1233.) In the case at bar, defendant failed to file a motion to reduce his sentence after conviction in a trial by jury, thus waiving the issue on his appeal of his sentence only.

The first district has expressed agreement with Macke, Lewis, and Pfister in People v. Gomez (1993), 247 Ill. App. 3d 68. Because Lewis had been granted leave to appeal but the case was still under review, the court considered the merits of the defendant’s appeal.

The third and fourth districts have chosen not to follow Macke. In People v. Sims (1992), 233 Ill. App. 3d 471, 473, 599 N.E.2d 137, 138-39, the Third District Appellate Court found that a post-sentencing motion was not necessary to preserve error as to sentencing issues. This finding was predicated on the court’s opinion that where a defendant asks for probation and the court sentences him to two years’ imprisonment: “¡T]t does not appear that a useful contemporaneous objection could be made. A motion to reduce sentence might complain one more time of the failure to award probation, but such a motion would add nothing to the original request, and provide the trial court with no opportunity which it had not already enjoyed. Defendant’s position as to sentencing was made known to the court and was not waived.” (Sims, 233 Ill. App. 3d at 473, 599 N.E.2d at 138-39.) The special concurrence in the opinion in Sims aligned itself with our decision in Macke. It observed that the majority opinion suggested that trial judges would routinely deny post-sentencing motions or that defendants would only rehash what had already been presented to trial judges, who were unlikely to admit their mistakes, making it an unproductive and wasteful exercise to point out those mistakes after sentencing. The special concurrence pointed out the necessity of filing a motion to permit the judge to reconsider the sentence and either reiterate the important factors which prompted the sentence imposed or to actually make some change in the sentence if it was excessive under the law and the facts, making a clear record on appeal. (Sims, 233 Ill. App. 3d at 476, 599 N.E.2d at 140 (Knecht, J., specially concurring).) In People v. Alvarado-Aguilar (1993), 244 Ill. App. 3d 433, 434, 613 N.E.2d 342, 343, the third district again rejected Macke, citing its decision in Sims.

In People v. Turner (1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10, the Fourth District Appellate Court declined to follow our decision in Macke. It found no waiver of the issue for failure to file a post-trial motion raising the issue of excessive sentence, stating that duplicate motions to reduce sentence would not promote judicial economy but rather would prolong cases in the trial court, requiring additional effort by the parties and by the courts. Turner, 233 Ill. App. 3d at 456, 599 N.E.2d at 110.

Although the filing of a post-trial motion raising the issue of excessive sentence or objecting to the imposition of various fines might well prolong the disposition of the case at the trial court level and require additional effort by the State’s Attorney, defense counsel, and the court, the trial court is the appropriate venue in which to raise these issues. It permits the defendant to present argument in support of his position and the State’s Attorney to perhaps present further evidence in support of the sentence imposed and provides the court with the opportunity to rethink its decision. The court may then either amplify the reasons for imposition of the sentence imposed or respond to the defense arguments and make a downward adjustment in the defendant’s sentence or the fines imposed. In any event, the record presented on appeal will be clarified, promoting judicial economy and finality of judgments.

The supreme court recently addressed the issue of preservation of alleged sentencing errors in People v. Pasch (1992), 152 Ill. 2d 133, 216, 604 N.E.2d 294, cert. granted (1993),_U.S___ 124 L. Ed. 2d 678, 113 S. Ct. 2927. In Pasch, the court discussed issues which were properly preserved and refused to review an error alleged to have taken place during the sentencing hearing, stating:

“In reviewing this issue, we find that defendant has waived any alleged error here by failing to object to such testimony and to raise this issue in a post-sentencing motion. (See [People v.] Enoch [1988], 122 Ill. 2d 176[, 522 N.E.2d 1124].) This waiver rule applies not only during the trial, but also during the sentencing hearing.” [Pasch, 152 Ill. 2d at 216, 604 N.E.2d at 330.)

Although the error alleged in Pasch was an evidentiary one, rather than an alleged error in sentencing per se, the court clearly indicated that both a contemporaneous objection and a post-sentencing motion are necessary to avoid waiver of sentencing errors on appeal.

Given this court’s prior decision in Macke and the recent discussion by the supreme court in Pasch of waiver of sentencing issues, defendant herein waived the issues of the length of his sentence and the imposition of a $2,000 discretionary fine and a $500 street-value fine.

The issue of the order entered requiring defendant to pay $500 restitution to the Southern Illinois Drug Enforcement Group was not waived, however. This court found in People v. Lawrence (1990), 206 Ill. App. 3d 622, 625, 565 N.E.2d 322, 324, that when public monies have been expended to purchase drugs by undercover agents, the governmental agency that funded the purchase is not a victim within the ambit of section 5 — 5—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(b)). Because this order of restitution was imposed following a guilty verdict, rather than as an essential term of a plea agreement into which both parties have entered for legal consideration and were thus bound (see Lawrence, 206 Ill. App. 3d at 625, 565 N.E.2d at 324; People v. Brumas (1990), 204 Ill. App. 3d 542, 548, 561 N.E.2d 1366, 1370), it cannot be upheld. Because a void order may be attacked at any time, defendant has not waived this issue for appeal through failure to file a post-sentencing motion. (People v. Davis (1993), 156 Ill. 2d 149, 155.) The restitution order is therefore vacated.

The record indicates that defendant spent 147 days in custody prior to sentencing. It is devoid of proof that the clerk of the circuit court satisfied the statutory requirement of informing defendant in writing that he was entitled to a credit of $5 per day upon application to the court against his fine for each day spent incarcerated. Thus, defendant did not waive the issue and may legitimately make such application for credit on appeal. (People v. Tippett (1992), 232 Ill. App. 3d 921, 922, 598 N.E.2d 292, 293.) Pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), defendant’s $2,000 discretionary fine is modified to reflect credit of $735 for 147 days spent in custody prior to sentencing.

The defendant’s sentence of eight years’ imprisonment was in the midrange of the 4- to 15-year term permissible for the Class 1 felony of unlawful delivery of 5.2 grams of cocaine. (Ill. Rev. Stat. 1989, ch. SG1^, par. 1401(cX2); Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3(cX2).) The record shows that the court was well aware of the mitigating and aggravating factors presented and considered them in fashioning a sentence which was not an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882, 885.) Moreover, the court’s imposition of a $2,000 fine without making a specific finding that defendant had the ability to pay was appropriate, given that it was aware of facts which favored such a fine. (People v. Ivy (1985), 133 Ill. App. 3d 647, 656, 479 N.E.2d 399, 406.) Had these issues not been waived under Macke, defendant would not have prevailed. His counsel’s failure to make a contemporaneous objection and to file a post-sentencing motion cannot therefore be construed to constitute ineffective assistance of counsel.

For the above reasons, the order of the circuit court of Jackson County sentencing defendant to eight years’ imprisonment and the order imposing a $500 street-value fine are affirmed, based upon defendant’s waiver of these sentencing issues through failure to contemporaneously object and file a post-sentencing motion. The trial court’s order to defendant to pay $500 restitution to the Southern Illinois Drug Enforcement Group is vacated. Pursuant to Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), the $2,000 fine is modified to reflect a credit of $735 for defendant’s 147 days in jail prior to sentencing.

Affirmed in part as modified; vacated in part.

MAAG, J., concurs.

PRESIDING JUSTICE CHAPMAN,

specially concurring:

I agree with the majority’s result, but I write separately because of my disagreement with Macke. The majority clarifies Macke by indicating that Macke did not require the filing of a motion to reduce sentence as a jurisdictional prerequisite to an appeal of a sentencing issue and instead treats the failure to file such a motion as a waiver of sentencing errors. While this clarification is an improvement, it does not, in my opinion, go far enough. I do not think Macke should be followed for the following reasons.

Section 5 — 8—1(c) of the Unified Code of Corrections states:

“A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 30 days after the sentence is imposed. However, the court may not increase a sentence once it is imposed.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-l(c) (now 730 ILCS 5/5-8-l(c) (West 1992)).

The plain language of the statute, which says that a motion to reduce a sentence may be made, does not support the conclusion in Macke that “[sjection 5 — 8—1(c) requires that before a defendant can appeal only his sentence, he must first file a motion to reduce his sentence.” (Emphasis added.) (Macke, 224 Ill. App. 3d at 816, 587 N.E.2d at 1114.) Generally, when the word “may” is used in a statute, it implies permissive or discretionary rather than mandatory action. In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326; Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 585 N.E.2d 156.

In addition, Macke added emphasis to a portion of the statute, presumably in support of its conclusion, that I believe supports the proposition that a motion to reduce a sentence is not necessarily required before a defendant may appeal his sentence. The emphasized language in Macke reads:

“If a motion to reduce a sentence is timely filed within 30 days after the sentence is imposed, then for purposes of perfecting an appeal, a final judgment shall not be considered to have been entered until the motion to reduce a sentence has been decided by order entered by the trial court.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c) (as quoted and emphasized in People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114).

This portion of section 5 — 8—1(c) does not make a motion to reduce a sentence a prerequisite to perfecting an appeal challenging only the sentence. Instead, it tolls the running of the time for an appeal until after the trial court rules on this motion, if such a motion is filed. The “If” that begins the quote is the important word in this analysis because it implies not that a motion must be filed but that a motion may be filed, an implication contrary to the conclusion of Macke.

Finally, Macke’s reliance on People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, and People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, is misplaced. Enoch construed the statute requiring post-trial motions for a new trial. That statute states that “[a] written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 116—1 (now 725 ILCS 5/ 116 — 1 (West 1992)).) In Enoch, the supreme court relied upon this emphasized language in reaching its decision that a post-trial motion for a new trial is clearly mandated by statute. “The requirement for a written post-trial motion is statutory, and the statute requires that a written motion for a new trial shall be filed by the defendant.” (Emphasis in original.) Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130.

Similarly, in Wilk, the supreme court construed Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), which governs appeals from judgments entered on a plea of guilty. Rule 604(d) at that time stated: “No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).) Wilk held that Rule 604(d) “establishes a condition precedent for an appeal from a defendant’s plea of guilty.” (People v. Wilk (1988), 124 Ill. 2d 93, 105, 529 N.E.2d 218, 222; see also People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334.) No similar condition precedent is established by the language of section 5 — 8—1(c).

While it may be desirable for a defendant to file a motion to reduce sentence in the trial court, particularly if, as with the Southern Illinois Enforcement Group issue here, the motion raises an easily correctable error in the sentencing scheme, section 5 — 8—1(c) does not make the failure to file the motion either a jurisdictional defect or a waiver of the defendant’s right to appeal. Macke takes the position that requiring the motion will promote judicial economy and finality of judgments in all cases. While motions to reduce sentences will promote judicial efficiency in many cases, the fourth district’s conclusion that the opposite may result in some cases also has merit. People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10 (duplicative motion to reduce sentence will not promote judicial economy but will prolong cases in the trial court, requiring additional effort by the parties and by the courts).

The appellate districts are split on Macke. The third and fourth districts have rejected it. (People v. Turner (4th Dist. 1992), 233 Ill. App. 3d 449, 599 N.E.2d 104; People v. Sims (3d Dist. 1992), 233 Ill. App. 3d 471, 599 N.E.2d 137; People v. Alvarado-Aguilar (3d Dist. 1993), 244 Ill. App. 3d 433, 613 N.E.2d 342.) The first and second districts have apparently adopted Macke. People v. Lewis (2d Dist. 1992), 235 Ill. App. 3d 1003, 602 N.E.2d 492, appeal allowed (1993), 148 Ill. 2d 649, 610 N.E.2d 1271; People v. Gomez (1st Dist. 1993), 247 Ill. App. 3d 68.

The second district, however, has not adhered to Macke in all cases. For example, while Lewis (235 Ill. App. 3d at 1006, 602 N.E.2d at 493) held that a defendant who fails to file a motion to reduce sentence waives the right to appeal the sentence, People v. Hess (1993), 241 Ill. App. 3d 276, 609 N.E.2d 371, People v. Spencer (1992), 229 Ill. App. 3d 1098, 595 N.E.2d 219, and People v. Lindsay (2d Dist. 1993), 247 Ill. App. 3d 518, 617 N.E.2d 389, acknowledged Macke but chose to reach the merits. In addition, the second district has clarified and limited its holding in Lewis in People v. Pfister (1993), 240 Ill. App. 3d 931, 608 N.E.2d 1230. Pfister held that Lewis was “limited to a finding that when appealing only the sentence after a trial on the merits, the failure to file a post-sentencing motion results in waiver.” (Pfister, 240 Ill. App. 3d at 936, 608 N.E.2d at 1232.) In so holding, the second district expressly rejected the following Macke analogy:

“ ‘Requiring a defendant to file a motion to reduce his sentence is similar to requiring a post-trial motion to preserve issues on appeal (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(b)) and requiring a defendant who pleads guilty to move to withdraw that plea before appealing. (134 Ill. 2d R. 604(d).)’ ” (Emphasis in Pfister, 240 Ill. App. 3d at 934, 608 N.E.2d at 1233, quoting People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114.)

The second district thus concluded that a motion to reduce sentence under section 5 — 8—1(c) is not a condition precedent to filing an appeal, but the failure to file such a motion could result in waiver. Pfister, 240 Ill. App. 3d at 935, 608 N.E.2d at 1233.

Similarly, the first district adopted Macke and cited Macke, Lewis, and Pfister but, because the supreme court was reviewing the issue, went on to consider the merits of the defendant’s appeal. People v. Gomez (1st Dist. 1993), 247 Ill. App. 3d 68.

In view of my conclusion that section 5 — 8—1(c) does not impose either a jurisdictional requirement or a waiver choice on the defendant, I would address the merits of defendant’s appeal.

Defendant first argues that his sentence is excessive and must be reduced to the minimum four-year prison term. In support of this argument, the defendant points out that he was convicted of the unlawful delivery of 5.2 grams of cocaine, just over the minimum amount (5 grams) for which probation is unavailable. (Ill. Rev. Stat. 1989, ch. 38, 1005 — 5—3(cX2)(D) (now 730 ILCS 5/5-5-3(cX2XD) (West 1992)).) He also contends that his minimal criminal history, his minor child, and his drug addiction were not adequately considered as mitigating circumstances.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of this discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Defendant was convicted of the unlawful delivery of 5.2 grams of cocaine, a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(cX2) (now 720 ILCS 570/401(cX2) (West 1992)).) Section 5 — 5—3(cX2)(D) of the Unified Code of Corrections requires the trial court to impose a sentence of not less than the minimum term of imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3(c)(2)(D) (now 730 ILCS 5/5-5-3(cX2)(D) (West 1992)).) The sentence for a Class 1 felony is a prison term not less than four years and not more than 15 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — l(aX4) (now 730 ILCS 5/5 — 8—1(a)(4) (West 1992)).) Defendant’s eight-vear prison sentence is well within the statutory sentencing range. The record demonstrates that the trial court listened to arguments in aggravation and in mitigation and stated the factors it relied upon in sentencing. The trial judge specifically noted in aggravation that the evidence showed that the defendant was active in the drug-selling business and that he had two prior misdemeanor convictions. Defendant’s prior convictions were for criminal trespass to a vehicle and reckless conduct and unlawful use of weapons. In mitigation, the judge noted that the defendant intended no bodily harm to another. I conclude that the trial judge, who heard the evidence and observed the defendant at trial, did not abuse his discretion by sentencing the defendant to an eight-year prison term. See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Nor did the trial judge abuse his discretion by imposing a $2,000 discretionary fine upon the defendant without first specifically determining whether the defendant had the ability to pay. A trial court’s decision to impose a fine as part of the defendant’s sentence is entitled to great deference and weight. (People v. Ivy (1985), 133 Ill. App. 3d 647, 656, 479 N.E.2d 399, 405-06.) A specific finding of an ability to pay is not necessary where such a finding is implicit in the imposition of the fine because the trial court is aware of facts that support its determination. (Ivy, 133 Ill. App. 3d at 656, 479 N.E.2d at 405.) Here, the record reveals that the defendant twice claimed he was employed. In his motion to reduce bond he alleged he was employed part-time with his uncle. During the presentence investigation, he also claimed he was employed prior to his conviction. In addition, no specific time frame or method of payment for this fine was imposed by the court. In light of these facts, I conclude the trial judge did not abuse his discretion by imposing a $2,000 fine on the defendant without first specifically determining whether he has the ability to pay.

I agree with the majority’s discussion of the restitution to the Southern Illinois Drug Enforcement Agency. On the issue of the 147 days’ credit, the State concedes that defendant is entitled to the credit, and I agree with the majority’s modification of the fine.

The defendant’s final argument is that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to file a motion to reduce sentence as required by People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113. While I do not agree with Macke, I would agree with the majority’s disposition of this issue.


text:
    MADISON MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. UNIVERSAL UNDERWRITERS GROUP et al., Defendants-Appellants (Helen Nagy et al., Defendants-Appellees; Jason E. Dorris et al., Defendants).
    Fifth District
    No. 5—92—0571
    Opinion filed September 24, 1993.
    — Rehearing denied October 26, 1993.
    Jay S. Judge, of Judge & James, Ltd., of Park Ridge, and Michael S. Weinberg, of Goffstein, Kraus, Sherman, Seigel & Weinberg, of St. Louis, Missouri, for appellant Universal Underwriters Group.

      Dale L. Bode and John E. Sabo, both of Walker & Williams, P.C., of Belleville, for appellee Madison Mutual Insurance Company.
    Charles C. Compton, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellees Helen Nagy and John Nagy.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Jason Dorris was driving a loaner car owned by Wood River Ford while his parents’ car was being serviced, and he was involved in an accident with Helen Nagy. Dorris is insured under his father’s automobile policy issued by Madison Mutual Insurance Company (Madison Mutual). Wood River Ford has coverage with Universal Underwriters Group (Universal). Madison Mutual sought a declaratory judgment of the rights and liabilities of the parties with respect to the insurance policies and a declaration that the Universal policy affords primary coverage as a result of the accident. The trial court ruled that the Universal policy affords primary coverage and that Madison Mutual’s insurance policy affords excess coverage. Universal and Wood River Ford appeal.

Before reaching the substantive issue, we must first determine whether this court has jurisdiction. The Nagys question appellate jurisdiction because the trial court’s order did not declare the limits of liability under Universal’s policy applicable to the subject accident. For this court to have jurisdiction, the order of the trial court must be a final order (134 Ill. 2d R. 301) unless it comes within one of the exceptions set forth by the supreme court rules. A final order is one which fixes, determines, and disposes of the parties’ rights regarding the litigation on some definite, separate part of the litigation. (Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351, 480 N.E.2d 533, 535; Wasserman v. Rosengarden (1980), 84 Ill. App. 3d 713, 715, 406 N.E.2d 131, 133.) To determine the finality of an order, the court must consider the substance rather than its form. (Pottorf, 134 Ill. App. 3d at 351, 480 N.E.2d at 535.) Madison Mutual’s prayer that the trial court determine and adjudicate the rights and liabilities of the parties with respect to the insurance policies was a general prayer for relief, whereas the true relief requested was that the trial court declare that the Universal policy affords primary coverage. We believe the order of July 31, 1992, was final and appealable because the court determined which insurance policy afforded primary coverage and thereby granted the only relief the court could have granted. This appeal is properly before this court.

It is undisputed that Dorris is covered under the policy with Madison Mutual. What is at issue is whether Dorris is covered under Universal’s policy of insurance. To determine whether a person is insured under Universal’s policy, we turn first to the language of the policy:

“WHO IS AN INSURED
With respect to the Auto Hazard:
1. YOU;
2. Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the AUTO must be by YOU or within the scope of YOUR permission;
3. Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.”

The parties agree that Dorris does not fall within the definitions set forth in paragraph one or two. Definition number three is the only one under which he could qualify as an insured. The term in definition three, “required by law,” is the dispositive term at issue. Universal argues that because Dorris was already insured when he borrowed Wood River Ford’s vehicle he was not a person “required by law” to have any additional insurance and, therefore, he is not covered under Universal’s policy. Universal concedes that if Dorris had been an uninsured motorist he would have been covered by its policy, but Universal contends that it is only when a Wood River Ford customer is uninsured that he falls within definition number three.

The construction of an insurance policy’s provisions is a question of law. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 108, 607 N.E.2d 1204, 1212.) If the terms of an insurance policy are clear and unambiguous, a court must afford them their plain, ordinary, and popular meaning. (Outboard, 154 Ill. 2d at 108, 607 N.E.2d at 1212; United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 74, 578 N.E.2d 926, 930.) With this standard in mind, we ask, “What is the plain, ordinary, and popular meaning of the term ‘required by law to be an insured’?”

The trial court determined that section 7 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 7 — 601) required Dorris to have automobile liability insurance when he was operating the vehicle. Section 7 — 601 provides in pertinent part:

“[N]o person shall operate, register or maintain registration of, and no owner shall permit another person to operate, register or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered, by a liability insurance policy.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 953-/2, par. 7-601.)

It is not clear from the language of the statute whether it is the operator or the owner that must provide the mandatory insurance. However, in this case we need not determine whether the owner or the operator of the vehicle was required to provide the mandatory insurance. Suffice it to say, when Dorris was operating the loaner vehicle, section 7 — 601 required him to be covered by a liability insurance policy.

The trial court found that by virtue of the statute Dorris, while operating the loaner vehicle, was a person required by law to be an insured and thus, given the language of Universal’s policy, Dorris was a person insured under the policy. Universal argues that because Dorris had insurance coverage with Madison Mutual at the time of the accident, he was not a person “required by law” to be an insured under Universal’s policy. This argument defies logic given the plain and ordinary meaning of the Universal policy’s definition of insured. The basic difficulty with Universal’s interpretation of its definition of insured is that it equates “required by law” with someone who is otherwise uninsured, thus requiring or needing insurance. The third definition of insured in the Universal policy makes no mention of whether the person required by law to be insured has insurance coverage under a separate policy. Whether or not a person is insured under a separate policy when he or she borrows a car from Wood River Ford is of no consequence in determining whether he or she is “required by law” to have insurance under Universal’s definition of insured. Under Universal’s policy the only conditions upon the person being deemed an insured are those conditions unambiguously set forth in the definition itself. Universal argues that there is no law prohibiting it from limiting the definition of who may be an insured under its policy. While this may be true, the fact is the limitations upon who may be an insured under definition number three do not eliminate Dorris as an insured as Universal contends.

We note parenthetically that the parties argue extensively over the interpretation of section 7 — 601 of the Illinois Vehicle Code and whether it is the owner or the operator of the vehicle that is required by law to carry insurance. We do not believe this question is of import in this case, given the issue at bar: whether Dorris is an insured under Universal’s policy. We conclude that the trial court did not err in determining that Dorris is an insured under the Universal insurance policy.

Universal also argues on appeal that in the event its policy is deemed to provide coverage to Dorris, the amount of coverage would be limited to the amount required by the Illinois Vehicle Code. The trial court determined that Universal’s insurance coverage is primary and Madison Mutual’s insurance coverage is excess. The trial court made no declaration as to the limits of liability under Universal’s policy, and we decline to address an issue not decided by the trial court.

For the foregoing reasons, we affirm the decision of the circuit court of Madison County.

Affirmed.

LEWIS and MAAG, JJ., concur.


author: JUSTICE LEWIS JUSTICE GOLDENHERSH,

text:
    GILBERT’S ETHAN ALLEN GALLERY, Plaintiff-Appellee and Cross-Appellant, v. ETHAN ALLEN, INC., Defendant-Appellant and Cross-Appellee (Bly and Sons, Inc., Defendant and Cross-Appellee).
    Fifth District
    No. 5-91-0746
    Opinion filed September 3, 1993.
    — Rehearing denied October 20, 1993.

      GOLDENHERSH, J., dissenting.
    Dennis E. Rose, of Donovan, Rose, Nester & Szewczyk, P.C., of Belle-ville, for appellant.
    Roy C. Dripps, of Lakin Law Firm, of Wood River, for appellee Gilbert’s Ethan Allen Gallery.
    Jerome S. Kraus and Lori R. Koch, both of Goffstein, Kraus, Sherman, Morganstern & Seigel, of St. Louis, Missouri, for appellee Bly & Sons, Inc.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant Ethan Allen, Inc. (Ethan Allen), appeals from a judgment of the circuit court of Madison County in favor of plaintiff, Gilbert’s Ethan Allen Gallery, on plaintiff’s claim that Ethan Allen violated the Illinois Antitrust Act (the Illinois Act) (Ill. Rev. Stat. 1985, ch. 38, par. 60 — 1 et seq.). Plaintiff cross-appeals a judgment in favor of defendant Ely & Sons, Inc. (Ely), on plaintiff’s claim that Ely violated the Illinois Act. The issues on appeal are: (1) whether the trial court applied the correct legal test in finding that Ethan Allen violated section 3(3) of the Illinois Act (Ill. Rev. Stat. 1985, ch. 38, par. 60 — 3(3)); (2) whether the trial court erred in computing damages for plaintiff; (3) whether the trial court erred in finding that Ely did not violate the Illinois Act; and (4) whether the trial court erred in refusing to order attorney fees to plaintiff. We reverse on issue (1) and affirm on issue (3). Issues (2) and (4) need not be discussed.

I

Ethan Allen is a manufacturer and distributor of furniture whose products are distributed to the consumer through a network of authorized dealers. Plaintiff was an Ethan Allen dealer from 1956 to 1972 and an exclusive Ethan Allen dealer from 1972 to 1985. Plaintiff’s store was located in Alton, but plaintiff advertised throughout the metropolitan St. Louis area and made most of its sales to residents from Missouri. Ethan Allen’s share of the metropolitan St. Louis furniture market was more than 1% but less than 2%. In 1985, Ethan Allen terminated its relationship with plaintiff and informed plaintiff that it would no longer recognize plaintiff as an authorized dealer. As a result of that termination, Ely became the sole authorized dealer of Ethan Allen furniture in the St. Louis metropolitan area. Ely has one store located in Fairview Heights, Illinois, and one in Chesterfield, Missouri. Plaintiff, meanwhile, became a competitor of Ely and Ethan Allen by becoming a Drexel furniture dealer.

Plaintiff brought this action alleging its termination was a result of a conspiracy between Ethan Allen and Ely to fix prices in violation of the Illinois Act. (Ill. Rev. Stat. 1985, ch. 38, pars. 60 — 3(2), (3).) At a bench trial, the court heard evidence that it is Ethan Allen’s practice to publish suggested retail prices, and it prefers its dealers to set their resale prices accordingly. Former Ethan Allen sales representative Jack Tripp testified that he serviced plaintiff’s account with Ethan Allen. Tripp further stated that an Ethan Allen executive told him in 1984 that plaintiff would not be an Ethan Allen dealer much longer because it was a discounter and sold furniture for less than the suggested price.

Lewis Gilbert testified that Nathan Ancell, chairman of the board of Ethan Allen, informed him that Ethan Allen strongly disapproved of plaintiff’s discounting policy. Gilbert further testified that he lost $126,000 as a result of the termination by Ethan Allen. After Ethan Allen’s termination, plaintiff became a Drexel furniture dealer. The $126,000 sum represented the cost to change the furniture displays Ethan Allen required him to maintain. He stated that the changeover required him to close down the store for a period of time and operate at a reduced level for an additional period of time, resulting in additional losses of $226,000 in 1987 and $140,000 in 1988.

At the close of evidence, the court entered judgment in favor of plaintiff on its claim against Ethan Allen and against plaintiff on its claim against Ely. The court concluded that Ethan Allen’s actions forcing plaintiff from the marketplace constituted a violation of section 3(3) of the Illinois Act (Ill. Rev. Stat. 1985, ch. 38, par. 60 — 3(3)). The court awarded plaintiff $492,000 in damages plus costs of suit, but not attorney fees.

Ethan Allen appeals the judgment against it, and plaintiff cross-appeals the judgment in favor of Ely. Plaintiff does not argue or contend on appeal that Ethan Allen violated section 3(2) of the Illinois Act, which section prohibits conspiracies to restrain trade or commerce. We reverse as to the judgment against Ethan Allen in favor of plaintiff and affirm as to the judgment against plaintiff in favor of Bly.

II

The first issue we are asked to address by Ethan Allen is whether the trial court correctly applied the law in finding that Ethan Allen violated section 3(3) of the Illinois Act, which provides that every person shall be deemed to have committed a violation of the Illinois Act if they:

“(3) Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining prices in such trade or commerce.” (Ill. Rev. Stat. 1985, ch. 38, par. 60-3(3).)

Section 11 of the Illinois Act provides, in pertinent part:

“When the wording of this Act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act.” (Ill. Rev. Stat. 1985, ch. 38, par. 60— 11.)

Ethan Allen argues that the wording of section 3(3) of the Illinois Act is similar to that of section 2 of the Sherman Antitrust Act (Sherman Act) (15 U.S.C.A. §2 (West Supp. 1993)) and that the trial court should have followed Federal precedent in this case. The Federal case law addressing section 2 of the Sherman Act requires that a market-share analysis be made to determine if competition is sufficiently injured so that the monopolizing activities constitute a violation of the Illinois Act. Eastman Kodak Co. v. Image Technical Services, Inc. (1992), 504 U.S. 451, 119 L. Ed. 2d 265, 112 S. Ct. 2072; Wigod v. Chicago Mercantile Exchange (7th Cir. 1992), 981 F.2d 1510.

In the case before us, the trial court found that while there was a dearth of Illinois cases construing section 3(3) of the Illinois Act, M B L (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371, indicated that violation of section 3(3) of the Illinois Act is a “per se” violation which makes a market-share analysis or a rule-of-reason analysis unnecessary. The trial court further noted that section 3(3) of the Illinois Act and section 2 of the Sherman Act are different. Section 2 of the Sherman Act provides:

“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.” (15 U.S.C.A. §2 (West Supp. 1993).)

Comparing the two statutes, the trial court reasoned that section 2 of the Sherman Act prohibits monopolizing, attempts to monopolize, and conspiracy to monopolize trade or commerce, while section 3(3) of the Illinois Act prohibits monopolizing only when it is done for the purpose of excluding competition or of controlling, fixing, or maintaining prices. After concluding that section 3(3) of the Illinois Act differs from the Federal antitrust statute because the Illinois Act is narrower in scope, the trial court stated that it had “to determine [from the evidence] whether or not a monopoly existed and whether the monopoly existed for the purpose of excluding competition or fixing prices.”

As we will attempt to make clear, the trial judge correctly stated the issues in the case but he did not set the issue out completely. The trial court had to determine from the evidence whether Ethan Allen had monopoly power over any substantial part of trade or commerce. It may have been that the failure to add the underlined words caused the trial judge to overlook the necessity of proof that Ethan Allen had monopoly power over a substantial part of trade or commerce in furniture. The trial judge did state in his order:

“Where there are two viable entities doing the same thing in the same general area, and the supplier to the two entities runs one of the entities out of business and turns it all over to the other attempting to control the prices in the marketplace — that is the abuse referred to by the drafters of the statutes.”

This statement and the disregarding of the deficiency in evidence as to relevant market and market share by the trial judge lead us to the conclusion that the trial judge was considering Ethan Allen furniture, a single brand, to be the relevant market. The court’s reasoning does have a certain logic in that it follows that Ethan Allen would have a monopoly power over a substantial part of trade or commerce in Ethan Allen products. Similarly, Ethan Allen ceased doing business with plaintiff, one of two outlets for Ethan Allen products was eliminated, and thus, competition was eliminated as to Ethan Allen products.

It is not clear from the trial court’s ruling as to whether the trial court applied the construction of Federal law by the Federal courts as a guide in construing the Illinois Act. The trial judge seemed to have used the “per se” violation concept developed by the Federal courts in reaching his decision. “[P]er se rules are appropriate only for ‘conduct that is manifestly anticompetitive, ’ [citation], that is, conduct ‘ “that would always or almost always tend to restrict competition and decrease output,” ’ [citations]. See also *** National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 55 L. Ed. 2d 637, 98 S. Ct. 1355, 1365 (1978) (agreements are per se illegal only if their ‘nature and necessary effect are so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality’).” Business Electronics Corp. v. Sharp Electronics Corp. (1988), 485 U.S. 717, 723-24, 99 L. Ed. 2d 808, 816, 108 S. Ct. 1515, 1519.

Plaintiff argues, however, that the wording of the Illinois Act is different from the wording of the Sherman Act and, therefore, the trial judge was correct in not using the principles developed by the Federal courts in construing section 2 of the Sherman Act as a guide in construing the Illinois Act. It is ironic that plaintiff then spends the remainder of his argument maintaining that the Federal courts’ concept of the “per se” rule should apply to this case.

It is quite clear that the Federal law should be used as a guide in construing section 3(3) of the Illinois Act. Our colleagues in the First and Second District Appellate Courts have specifically ruled that section 2 of the Sherman Act is analogous to section 3(3) of the Illinois Act. (See Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1973), 14 Ill. App. 3d 141, 302 N.E.2d 79; Ray Dancer, Inc. v. D M C Corp. (1992), 230 Ill. App. 3d 40, 594 N.E.2d 1344.) The “Bar Committee Comments — 1967” to section 3(3) (740 ILCS 10/3, Bar Committee Comments — 1967, at 18 (Smith-Hurd 1992)) have indicated for years that while section 3(3) is narrower in scope than section 2 of the Sherman Act, section 2 of the Sherman Act should be used in construing section 3(3). The “Historical and Practice Notes — 1970” by Phillip W. Tone and John G. Stiffler in Smith-Hurd Illinois Annotated Statutes also indicate that the scope of section 3(3) is essentially that of section 2 of the Sherman Act, but somewhat more restricted. (Ill. Ann. Stat., ch 38, par. 60 — 3, Historical and Practice Notes — 1970, at 463 (Smith-Hurd 1977).) In People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 291 N.E.2d 648, our supreme court stated that “the Federal antitrust experience under the Sherman Act is applicable to questions arising under the Illinois Antitrust Act and can serve as a useful guide.” (Crawford Distributing Co., 53 Ill. 2d at 339, 291 N.E.2d at 652.) In People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 435 N.E.2d 463, our supreme court once again stated that in construing the Illinois Act, they were guided by analogous provisions of Federal legislation. The Federal district and appellate courts used section 2 of the Sherman Act in construing the Illinois Act. See State of Illinois ex rel. Hartigan v. Panhandle Eastern Pipe Line Co. (C.D. Ill. 1990), 730 F. Supp. 826, aff’d (7th Cir. 1991), 935 F.2d 1469.

The point to this short and admittedly incomplete history of the Illinois Act is that our legislature, the supreme court, the First and Second District Appellate Courts, the Federal district and appellate courts, and legal scholars all believe that Federal court cases construing the Sherman Act should be used as a guide in construing the Illinois Act. Thus, in determining what proof is needed in order to establish the presence of a “monopoly” or what is “trade or commerce,” we should be guided by section 2 of the Sherman Act and the Federal cases construing such. We cannot simply say the words are not similar or identical when in fact the words and concepts are similar and identical. Both Acts deal with monopolies, unfair trade practices, and the attempt to monopolize trade or commerce.

Admittedly, section 3(3) of the Illinois Act does not pertain to interstate commerce or a conspiracy to monopolize. There are also a growing number of Illinois cases construing section 3 of the Illinois Act, so that references to Federal cases are not as necessary as they were in the past. Saying we should be guided by the Federal cases does not mean that we are bound to strictly apply the Federal court’s interpretation of the Sherman Act to the Illinois Act. We recognize that the Illinois Act requires more proof than section 2 of the Sherman Act for a court to find that a defendant violated section 3(3) of the Illinois Act, in that not only must the plaintiff prove that defendant established, maintained, used, or attempted to acquire monopoly power over any substantial part of trade or commerce but, in addition, plaintiff must prove that defendant did so for the purpose of excluding competition or controlling, fixing, or maintaining prices in that trade or market. Whereas, under the Sherman Act, proof of the purpose is not required for a violation of section 2 of the Sherman Act. The fact that the Illinois Act requires more proof against a defendant in most instances does not mean that we should totally ignore the Federal law as a guide.

The trial court cited M B L (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E. 2d 371, for the proposition that a violation of section 3(3) is a per se violation, thereby making a market-share analysis unnecessary. It is not clear from the reading of Diekman that Diekman holds such. In Diekman, the parties were at the pleading stage when the trial court dismissed Diekman’s amended counterclaim as not stating a cause of action under the Illinois Act. The counterclaim used the words of section 3(3) in alleging a monopoly power over a substantial part of trade or commerce in the sale and distribution of urethane timing belts. But the counterclaim also used the words contained in section 3(2) of the Illinois Act by alleging that counterdefendants conspired and combined to establish this monopoly over the sale or distribution of urethane timing belts by MBL (USA), a counterdefendant, purchasing from Meeder, a counterdefendant (who appears to have been a former competitor of MBL (USA)), covenants not to compete that were given by counterplaintiff and agreeing between themselves to threaten and file baseless litigation against counterplaintiff, a potential competitor. Diekman cited, as its authority for reversing the dismissal of the counterclaim and in saying that the allegations were “per se” violations of the Illinois Antitrust Act, People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005, which case concerned the dismissal of a complaint that alleged a conspiracy by competitors to fix prices as prohibited by section 3(1) of the Illinois Act.

There is no question that when competitors conspire to fix prices, production, or services, a violation of section 3(1) of the Illinois Act occurs and it is a “per se” violation requiring only proof that the competitors conspired. (See Carriage Way West, Inc., 88 Ill. 2d at 309 (for a discussion of such).) Keep in mind that “per se” violations are normally agreements between competitors or agreements that would restrict competition and decrease output. No market analysis is needed for a section 3(1) violation, because the agreement in and of itself is a violation. There is also no question that when persons contract, combine, or conspire to unreasonably restrain trade or commerce such can be a violation of section 3(2) of the Illinois Act. However, the supreme court pointed out in People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 435 N.E.2d 463, that violations of sections 3(2) and 3(4) require, in addition to proof of the conspiracy, a determination of a geographic market that corresponds to commercial realities and is economically significant. The reason the market analysis is needed to prove a violation of sections 3(2) and 3(4) is that section 3(2) requires a showing that defendant’s acts unreasonably restrained trade or commerce and section 3(4) requires a showing that competition was substantially lessened or a monopoly was created in any line of commerce. The fact that section 3(3) requires the proof of a monopoly over any substantial part of trade or commerce indicates even more specifically than sections 3(2) and 3(4) do that a market analysis is a necessity.

Diekman, therefore, does not stand for the proposition that proof of a violation of section 3(3) is a “per se” violation so that no further proof is required under section 3(3) as to a monopoly by a defendant over a substantial part of trade or commerce. Diekman stands for the proposition that, if a complaint alleges a monopoly by defendants and a conspiracy by defendants to exclude another competitor from competition, such a complaint will withstand a motion to dismiss, as all pleaded facts are presumed to be true for purposes of the motion to dismiss. Diekman does not relieve the plaintiff from the necessity of proving the allegations contained in the complaint at the trial.

The plaintiff did not present any proof of a relevant market for furniture or a market analysis showing the percent of the furniture market held by defendant. Ethan Allen presented uncontradicted testimony that the relevant market was the metropolitan St. Louis area and that it held not more than 2% of the relevant market. The trial judge, even thousrh he stated in his order that he had to determine from the evidence whether a monopoly existed, did not make a determination of the relevant market or the market share held by defendant. Nor did he ever find that Ethan Allen had a monopoly over a substantial part of the furniture trade or commerce. It is difficult to conceive, nor does plaintiff suggest, how one could prove a “monopoly power over a substantial part of trade or commerce” without some showing as to what the trade and commerce was in the merchandise in question and what part of the trade or commerce that Ethan Allen controlled. We cannot presume that a defendant has monopoly powers simply because plaintiff alleges such. We cannot presume that Ethan Allen violated the criminal laws of this State merely because it did business in Illinois. We cannot presume that Ethan Allen furniture is the only furniture sold in the trade or commerce of Illinois or the metropolitan St. Louis area.

Turning now to plaintiff’s argument, and the trial judge’s apparent interpretation of section 3(3), that since Ethan Allen is the sole manufacturer and supplier in Ethan Allen products to retailers, there was a monopoly over a substantial part of trade and commerce in Ethan Allen products. If we were to adopt plaintiff’s argument, all one would have to do in order to prove a violation of the criminal law (Ill. Rev. Stat. 1989, ch. 38, par. 60 — 3(3)) by a defendant would be to show that defendant manufactured a product or sold franchises for a copyrighted name, talked and disagreed with plaintiff about prices for its product, and caused plaintiff a loss by discharging or terminating plaintiff’s relationship with defendant. Plaintiff is arguing that all attempts by a manufacturer or franchisor to control, maintain, or fix prices the dealer or franchisee charges the consumers are illegal under section 3(3). Therefore, if plaintiff were correct, the hamburger franchisor, whose franchisee may have 15 fast-food competitors within three blocks and who did not want to cooperate in a national campaign for 99-cent hamburgers, could not terminate the franchise of a franchisee for fear of being held to have violated the antitrust laws of Illinois. It may even be that under the plaintiff’s theory a car dealer, who had the only agency in the town or county, could not fire his employee who sold a car at less than what the dealer set as a minimum price for fear that he would be violating the restraint of trade laws. We would be upsetting business practices developed over the centuries, even though they do not substantially affect or restrain trade or commerce.

“Trade or commerce” is defined as including “all economic activity involving or relating to any commodity or service,” and “commodity” means “any kind of real or personal property.” (Ill. Rev. Stat. 1985, ch. 38, par. 60 — 4.) “Commodity” is not limited to a specific brand, nor is “trade and commerce” limited to a specific brand.

If we were to construe section 3(3) of the Illinois Act to mean monopoly over a specific brand of merchandise, then the word “monopoly” would be superfluous as every manufacturer has a monopoly over its product or brand name. Even in those cases where the manufacturer had a 100% share of a relevant market, the plaintiff would not pay for an expensive market analysis to prove such, as such analysis would be unnecessary and apparently irrelevant. The words “[establish, maintain, use, or attempt to acquire” would be superfluous, because every manufacturer establishes, maintains, uses, and attempts to acquire complete control over its product. In fact, some manufacturers attempt to obtain patents and copyrights over products and names. Surely, they are not violating Illinois law. The words “over a substantial part” would be even more superfluous, because every manufacturer has a monopoly over 100% of its product. The words “trade or commerce” would be superfluous, because the only trade or commerce we would be discussing would be trade and commerce in the manufacturer’s product. Applying the plaintiff’s construction to section 3(3) without the superfluous language, it would read: “Every person shall be deemed to have committed a violation of this Act who shall: control, fix, or maintain prices of that person’s product.” Such a law would make every businessperson in Illinois, no matter if the business has only one-hundredth of 1% of the market and has 100 competitors, guilty of restraint of trade.

When we review the Federal cases as to whether there can be a monopoly in a particular commodity, the leading case of United States v. E.I. Du Pont de Nemours & Co. (1956), 351 U.S. 377, 100 L. Ed. 1264, 76 S. Ct. 994, sets out:

“The ultimate consideration in such a determination is whether the defendants control the price and competition in the market for such part of trade or commerce as they are charged with monopolizing. Every manufacturer is the sole producer of the particular commodity it makes but its control in the above sense of the relevant market depends upon the availability of alternative commodities for buyers: i.e., whether there is a cross-elasticity of demand between cellophane and the other wrappings. This interchangeability is largely gauged by the purchase of competing products for similar uses considering the price, characteristics and adaptability of the competing commodities.” (E.I. Du Pont, 351 U.S. at 380-81, 100 L. Ed. at 1272-73, 76 S. Ct at 999.)

We must ask whether there were competing products to Ethan Allen furniture. “ ‘When a product is controlled by one interest, without substitutes available in the market, there is monopoly power.’ ” (National Collegiate Athletic Association v. Board of Regents (1984), 468 U.S. 85, 112, 82 L. Ed. 2d 70, 91, 104 S. Ct. 2948, 2966, quoting E.I. Du Pont, 351 U.S. at 394, 100 L. Ed. at 1280, 76 S. Ct. at 1006.) The burden was on plaintiff to prove that there were no substitutes available in the market for Ethan Allen furniture. Ethan Allen maintains that not only were there substitutes available for its furniture, but those substitutes controlled 98% of the relevant market. Plaintiff never denied or disputed this claim.

Plaintiff, and apparently the trial court, used the concepts in Federal cases involving vertical price fixing. (See Business Electronics Corp. v. Sharp Electronics Corp. (1988), 485 U.S. 717, 99 L. Ed. 2d 808, 108 S. Ct. 1515; Monsanto Co. v. Spray-Rite Service Corp. (1984), 465 U.S. 752, 79 L. Ed. 2d 775, 104 S. Ct. 1464.) Vertical price fixing in those cases was in violation of section 1 of the Sherman Act. (15 U.S.C.A. §1 (West Supp. 1993).) Plaintiff argues that Federal law should not apply at all as a guide to interpreting section 3(3) of the Illinois Act, but plaintiff is really being inconsistent if he wishes now to use the concepts under section 1 of the Sherman Act to interpret section 3(3) of the Illinois Act. There is no authority anywhere to support this argument. Suffice it to say that those cases and the authorities cited therein discuss the illegality of conspiracies and agreements to fix prices. There is no evidence of an agreement or conspiracy to vertically fix prices in this case, as we will discuss later in relation to the denial of the claim against Ely. “Independent action is not proscribed. A manufacturer of course has the right to deal, or refuse to deal, with whomever it likes, as long as it does so independently. [Citations.] Under Colgate, the manufacturer can announce its resale prices in advance and refuse to deal with those who fail to comply.” Monsanto, 465 U.S. at 761, 79 L. Ed. 2d at 783-84, 104 S. Ct. at 1469.

Even assuming arguendo that there was an attempted vertical price agreement or restraint in this case, the threshold requirement under section 3(3), that plaintiff prove that defendant established, maintained, used, or attempted to acquire a monopoly over any substantial part of trade or commerce, was not met. The lowest percentage of the market share that we could find in cases before the Supreme Court of the United States that constituted a monopoly by a defendant or defendants was 66.6%. (American Tobacco Co. v. United States (1946), 328 U.S. 781, 90 L. Ed. 1575, 66 S. Ct. 1125.) Ethan Allen with its 2% or less of the market in the metropolitan St. Louis area did not even begin to approach the market control or power necessary to constitute a substantial part of trade or commerce. The law need not concern itself with nonmonopolists raising prices, as the free market will regulate and punish those who needlessly raise prices. Thus, the trial court erred in applying the law and in presuming that Ethan Allen had a monopoly power which constituted a violation of the Illinois Act.

In plaintiff’s cross-appeal, it first argues that the court erred in finding that Ely did not conspire to force it out of the market place. Plaintiff submits that the trial court’s judgment in favor of Ely was against the manifest weight of the evidence. In reviewing a bench trial, we will not disturb the trial court’s finding unless the trial court’s holding is manifestly against the weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624; Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656, 485 N.E.2d 1248.) Where testimony is contradictory, the trial judge as the trier of fact is in a superior position to observe the conduct of testifying witnesses, to determine their credibility, and to weigh the evidence. (Schulenburg, 37 Ill. 2d at 356, 226 N.E.2d at 626.) A careful review of the record shows that the trial court’s judgment in favor of Ely was not against the manifest weight of the evidence. There was testimony by Jack Tripp, the former Ethan Allen employee, that he knew of no agreements between Ethan Allen and Ely to terminate plaintiff. Moreover, plaintiff does not present any conflicting evidence that there was, in fact, such an agreement between Ely and Ethan Allen or that Ely conspired with Ethan Allen. Although plaintiff cites the trial court’s statement that Ely would probably benefit from plaintiff’s demise as an Ethan Allen dealer, plaintiff does not offer any proof that Ely conspired to achieve that status. Clearly, the fact that Ely benefits from plaintiff’s loss does not, in and of itself, constitute an antitrust violation. The circumstantial evidence that plaintiff would have us scrutinize simply does not warrant a reversal of the trial court’s judgment.

For all of the foregoing reasons, we reverse the judgment against Ethan Allen and affirm the judgment in favor of Ely.

Defendant Ethan Allen requested in its prayer for relief that the judgment be reversed and a judgment be entered in Ethan Allen’s favor. In the alternative, Ethan Allen requested that this case be remanded for a new trial. The parties did not discuss or brief what a proper disposition should be if this court reversed the judgment. Normally, the appropriate action, when a case is tried under an incorrect theory of law, is to reverse and remand for a new trial (Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 322 N.E.2d 5.) We accordingly are granting Ethan Allen’s alternative request by remanding this cause for a new trial.

Affirmed in part; reversed and remanded in part.

RARICK, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent from the majority’s reversal on issue (1). In affirming the judgment concerning Ely, I concur.

In my belief the majority mistakenly construes, and assumes, that section 3(3) of the Illinois Antitrust Act (the Illinois Act) (Ill. Rev. Stat. 1985, ch. 38, par. 60 — 3(3)) is sufficiently similar to section 2 of the Sherman Antitrust Act (Sherman Act) (15 U.S.C.A. §2 (West Supp. 1993)) so that Federal precedents are controlling in the interpretation of the Illinois Act. A closer examination of the language of the two statutes shows they are not sufficiently similar, as the trial court correctly found. The historical notes and bar committee comments also support this.

The trial court correctly applied the law in finding that Ethan Allen violated section 3(3) of the Illinois Act, which provides that every person shall be deemed to have committed a violation of the Illinois Act if they:

“(3) Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining prices in such trade or commerce.” (Ill. Rev. Stat. 1985, ch. 38, par. 60-3(3).)

Section 11 of the Illinois Act provides, in pertinent part:

“When the wording of this Act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act.” Ill. Rev. Stat. 1985, ch. 38, par. 60 — 11.

In the case before us, the trial court found that section 3(3) of the Illinois Act is worded differently than section 2 of the Sherman Act, which reads:

“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fíne not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.” 15 U.S.C.A. §2 (West Supp. 1993).

Upon comparing the two statutes, the trial court correctly reasoned that section 2 of the Sherman Act prohibits monopolizing, attempts to monopolize, and conspiracy to monopolize trade or commerce, while section 3(3) of the Illinois Act prohibits monopolizing only when it is done for the purpose of excluding competition or of controlling, fixing, or maintaining prices. After concluding that section 3(3) of the Illinois Act differs significantly from the Sherman Act, the trial court found little value in Federal precedent and declined to use the construction of the Federal law by Federal courts in resolving this case.

Ethan Allen argues that the trial court erred in declining to apply Federal law to the case at bar. In support of this argument, Ethan Allen cites Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1973), 14 Ill. App. 3d 141, 302 N.E.2d 79, where our colleagues on the First District Appellate Court held that section 2 of the Sherman Act is substantially the same as that of section 3(3) of the Illinois Act. (Maywood Sportservice, Inc., 14 Ill. App. 3d at 151, 302 N.E.2d at 86; see also Ray Dancer, Inc. v. D M C Corp. (1992), 230 Ill. App. 3d 40, 594 N.E.2d 1344.) I would decline to adopt that position, and I agree with the trial court that the two statutes are not identical or similar. The language of the two statutes, as well as the comments to the Illinois Act, stand contrary to the position of both cases. The lack of analysis in depth of the two statutes in Maywood and Ray Dancer suggests that this was not at issue in either case. We are free, however, to conduct a more extensive statutory analysis, which I think leads to a conclusion contrary to the majority’s position. Further, the General Assembly’s enactment of section 11 indicates an intent that Illinois antitrust law not be in total lockstep with the Federal Acts; the majority’s position renders section 11 useless. Both the language and the intent of the State and Federal Acts are different. Therefore, section 11 of the Illinois Act does not apply, and we should not consider Federal precedent as binding.

The comments to the statute further support this conclusion. As noted in the historical and practice notes concerning subsection 3(3):

“Subsection (3) prohibits establishing, maintaining, acquiring, or attempting to acquire monopoly power in order to exclude competition or fix prices. Its scope, essentially that of Section 2 of the Sherman Act, is somewhat more restricted than the federal law.
* * *
Subsection 3(3) of the Illinois Act is narrower than its federal counterpart. It not only adopts the ‘abuse’ theory, but it covers only two types of abuses, albeit the two which are important from a practical standpoint. It prohibits monopolizing only when it is done for the purpose of excluding competition or fixing prices.” Ill. Ann. Stat., ch. 38, par. 60 — 3, Historical and Practice Notes — 1970, at 463 (Smith-Hurd 1977).

Similarly, the bar committee comments to subsection 3(3) state:

“This section would penalize the monopolist only when he acted for the forbidden purposes of excluding competition or of fixing prices. It is, therefore, directed only to abuses and attempted abuses of monopoly power rather than to its mere existence. To that extent the prohibition is somewhat narrower than that applied to Section 2 of the Sherman Act and is also somewhat more specific.” (Ill. Ann. Stat., ch. 38, par. 60 — 3(3), Bar Committee Comments — 1967, at 454 (Smith-Hurd 1977).)

Again, the cases cited by the majority for the proposition that section 3(3) and the Federal Act are identical do not go into any appreciable depth of analysis of the two Acts. When we analyze the comments as well as the statutory language, we must conclude that the Acts are different and therefore, pursuant to legislative intent, should be construed differently as section 11 allows.

Similarly, the trial court was not inconsistent in using Federal per se violation cases for guidance in determining that issue while stating that Federal cases are not binding on the court, as noted by the majority. As noted by the majority, our supreme court has indicated that the Federal precedents can be useful guidance; they do not, however, necessarily fall under section 11 and become binding precedent.

As the trial court correctly points out, there is a dearth of Illinois cases addressing section 3(3) of the Illinois Act. M B L (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371, holds that a violation of section 3(3) of the Illinois Act is a “per se" violation of the Act, which makes a market-share analysis or rule-of-reason analysis unnecessary. Accordingly, we should hold that the trial court applied the correct principles of law in finding that Ethan Allen violated section 3(3) of the Illinois Act.

Although Ethan Allen does not dispute the existence or amount of plaintiff’s actual damages, Ethan Allen claims that the damages are not recoverable as a matter of law. In support of this argument, Ethan Allen asserts that Federal law precludes the type of damages plaintiff received in this case. We should properly hold that Federal law is not controlling on this case, however. Section 7(2) of the Illinois Act provides, in pertinent part:

“(2) Any person who has been injured in his business or property, or is threatened with such injury, by a violation of Section 3 of this Act may maintain an action in the Circuit Court for damages, or for an injunction, or both, against any person who has committed such violation. *** In an action for damages, if injury is found to be due to a violation of *** [] *** subsections (2) or (3) of Section 3 of this Act, the person injured shall recover the actual damages caused by the violation, together with costs and reasonable attorney’s fees ***.” (Ill. Rev. Stat. 1991, ch. 38, par. 60-7(2).)

Ethan Allen’s argument and supporting cases are inapplicable to the case at bar, and the language of the Illinois Act clearly allows for actual damages and attorney fees. Since Ethan Allen did not dispute plaintiff's evidence at trial on the issue of damages and does not claim on appeal that plaintiff did not sustain actual damages, we need not further discuss this issue.

As stated earlier, section 7(2) of the Illinois Act provides that persons injured by violations of section 3(3) “shall recover the actual damages caused by the violation, together with costs and reasonable attorney’s fees.” (Ill. Rev. Stat. 1991, ch. 38, par. 60 — 7(2).) In Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 566 N.E.2d 1283, our supreme court held:

“The fundamental of statutory construction is to ascertain and give effect to the intent of the legislature. [Citation.] In construing statutory provisions as being mandatory or directory, the word ‘shall’ is regarded as indicative of a mandatory legislative intent. [Citations.] This court has recognized, however, that, while ‘shall’ ordinarily indicates a mandatory legislative intention, it may be construed as permissive if the context so indicates. [Citations.]
Legislative intent can be ascertained from a consideration of the entire Act, its nature, its object and the consequences that would result from construing it one way or the other.” Fumarolo, 142 Ill. 2d at 96, 566 N.E.2d at 1301-02.

Here, the language of section 7(2) indicates a mandatory construction. In that same section, the statute directs the court to use discretion in awarding treble damages. An examination of the General Assembly’s omission of that directive to use discretion with regard to attorney fees and its use of the word “shall” indicates that the General Assembly intended that the award of attorney fees be mandatory in a case such as this. I would therefore reverse the trial court’s order denying plaintiff attorney fees and remand the case for determination of plaintiff’s reasonable attorney fees.

For the foregoing reasons, I respectfully dissent.