author: JUSTICE UNVERZAGT

text:
    ROBERT E. KELLEHER, a Minor, by his Father and Next Friend, Robert D. Kelleher, Plaintiff and Petitioner-Appellee, v. JASON HOOD et al., Defendants-Appellees (Health Care Service Corporation, d/b/a Blue Cross-Blue Shield of Illinois, Respondent in Lien Adjudication-Appellant).
    Second District
    No. 2—92—0214
    Opinion filed December 15, 1992.

      Jeffrey B. Levens, of Augustine, Kern & Levens, Ltd., of Chicago, for appellant.
    James E. Ocasek, of Cooney & Conway, and David J. Fitzpatrick, of Matayas & Norris, both of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Health Care Service Corporation (HCSC), appeals from the denial of its lien on a minor’s estate. Respondent contends that the circuit court of Du Page County erred in applying the law, and that the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §1001 et seq. (1988)) preempts Illinois case law.

Petitioner, Robert D. Kelleher, father and next friend of his minor son, Robert E. Kelleher (Bobby), has filed an amended motion to dismiss the appeal on the ground that the appeal was not timely filed. We first consider this preliminary question.

The following facts are relevant to our disposition of petitioner’s motion to dismiss the appeal. On November 6, 1991, the trial court granted petitioner’s motion to dismiss respondent’s lien seeking reimbursement for paid medical expenses from Bobby’s settlement with other parties in the suit. After granting petitioner’s motion, the court set a hearing for an order of distribution on November 13, 1991, and said with reference to respondent’s counsel:

“Send him [HCSC counsel] a copy of the proposed order with respect to distribution, and you can take a look at that. And at that time I imagine there is going to be an order of dismissal entered too, and it will be for presentation of vouchers. And so we will have a final order at that time if you want to pursue it to the next level.”

The trial court did not make a finding of enforceability or appealability with respect to its November 6,1991, ruling.

On November 13, 1991, the trial court entered a final distribution order. At the same time, the court made a finding of enforceability and appealability.

On December 11, 1991, respondent filed a motion to reconsider ruling in the trial court. Petitioner answered by filing a motion to strike, arguing the November 6, 1991, order was final and appealable pursuant to Rule 304(b)(1) of the supreme court rules (134 Ill. 2d R. 304(b)(1)), and that respondent’s motion had therefore been filed beyond the 30-day time limitation for filing post-trial motions or appeals.

On January 28, 1992, the trial court denied petitioner’s motion to strike and ruled respondent’s motion to reconsider had been timely filed. The trial court stated:

“Well, the motion to strike is denied. I think [HCSC] counsel’s argument is persuasive. In the final order [of November 6, 1991] there was no 304(a) language granted, and it really wasn’t even a dismissal of the claim or a party. Counsel I guess could have argued for a 308 finding that there is a question of law. No findings were given, and the final order was entered a week later. And I think his motion to reconsider is timely brought.”

Petitioner’s motion now before this court raises the same issue as to whether respondent timely filed. Petitioner contends that his motion should be granted and respondent’s appeal should be dismissed because the appeal is not timely. Petitioner argues that the trial court made a final determination of respondent’s status as a lienholder on November 6, 1991. Petitioner cites Supreme Court Rule 304(b)(1) (134 Ill. 2d R. 304(b)(1)) to support his position. Petitioner argues that Rule 304(b)(1) made it mandatory that respondent appeal or file its motion for reconsideration within 30 days of the trial court’s November 6, 1991, ruling. Petitioner concludes that respondent’s trial court motion to reconsider filed December 11,1991, was not timely.

Respondent contends its December 11, 1991, motion to reconsider was timely filed and therefore its appeal is timely. Respondent argues that the trial court order of November 6, 1991, was not a final and appealable order. Respondent maintains that Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) controlled the matter, and not Rule 304(b)(1). Respondent reads Rule 304(a) to allow respondent to await a final and appealable order (which it argues was made November 13, 1991) before it was required to appeal or file post-trial motions.

Supreme Court Rule 304 reads in pertinent part as follows:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.
(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, or other similar proceeding which finally determines a right or status of a party.” 134 Ill. 2d R. 304.

Here, Rule 304(a) has general applicability because the trial court order of November 6, 1991, applied to fewer than all of the claims or parties in a multiple-party action. Because the trial court made no express written finding of enforceability and appealability pursuant to its order, respondent could not appeal the order under Rule 304(a). Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 1102.

Rule 304(b)(1) does not require petitioner to appeal the trial court order of November 6, 1991. The order was not final with respect to respondent’s claim because the order contemplated future action. In re Estate of Robertson (1986), 144 Ill. App. 3d 701, 712.

Furthermore, it would not serve the purpose of Rule 304(b)(1) to make an appeal of the November 6, 1991, order mandatory in this case. One of the central reasons for making appeals mandatory under Rule 304(b)(l) is to insure the certainty of some issues during lengthy procedures such as estate administration. (People ex rel. A.M. v. Herlinda M. (1991), 221 Ill. App. 3d 957, 963-64.) Here, there is no need for such safeguards because on November 6, 1991, the trial court clearly indicated it intended to make a final appealable order on the matter in question on November 13, 1991, one week after the order in question.

For the above reasons, we deny petitioners’ motion to dismiss this appeal. We now move on to consider the issues raised on appeal by •respondent.

DENIAL OF LIEN AGAINST MINOR’S ESTATE

Respondent appeals from a circuit court order denying its reimbursement lien against funds received by the estate of Bobby Kelleher, a minor, as a result of Bobby’s settlement with responsible tortfeasors.

On February 2, 1990, petitioner’s son, Bobby, a minor at the time, was the rear-seat passenger in a car driven by Jason Hood. The car collided with another car driven by Sylvia S. Winiecki. In the collision, Bobby was injured. He received emergency and follow-up medical care for his injuries.

Respondent, d/b/a Blue Cross and Blue Shield, administers a group health and welfare plan (the Plan). The Plan paid a total of $6,332 for approximately 80% of Bobby’s medical expenses. The Plan has been organized under ERISA.

The Plan has a reimbursement provision which provides as follows:

“If you or one of your covered dependents are injured by the act or omission of another person and benefits are provided for Covered Services described in this Certificate, you agree:
(a) to immediately reimburse Blue Cross and Blue Shield for any payments received, whether by action at law, settlement or otherwise, to the extent that Blue Cross and Blue Shield has provided benefits to you or your covered dependents; and
(b) that Blue Cross and Blue Shield will have a lien to the extent of benefits provided. Such lien may be filed with the person whose act caused the injury, the person’s agent or a court having jurisdiction in the matter.”

On August 15, 1990, petitioner, as Bobby’s father and next friend, sued the drivers of the two vehicles involved in the collision as well as Leonard Stateczny, the owner of the car driven by Hood. The complaint alleged the suffering of economic loss as a result of the collision, in part because medical bills were incurred. The parties to the suit reached a settlement which the court approved on September 3, 1991. The settlement was for $37,500. The court ordered the net amount of the settlement after court-approved fees, $27,538.55, placed in a bank account for Bobby.

Before the settlement was approved, respondent claimed a lien on the settlement citing the reimbursement provision of the Plan. On August 19, 1991, petitioner filed a motion to adjudicate lien seeking to deny the lien. Petitioner relied on Illinois case law that does not allow subrogation against a minor’s estate for medical expenses.

On November 6, 1991, the circuit court ruled that respondent’s lien “does not apply to the funds recovered by the minor.” In making its ruling, the court agreed with petitioner that Illinois case law was dispositive of the issue.

On appeal respondent contends that the Illinois cases deemed controlling by the circuit court (In re Estate of Hammond (1986), 141 Ill. App. 3d 963, and Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158) (the Cases) are not controlling in this case. Respondent specifically alleges that the Cases are not controlling because: (1) there are fundamental and dispositive distinctions between the facts of the Cases and the facts of this case; (2) there are strong public policy reasons for not following the Cases; and (3) courts often allow payments from minors’ estates notwithstanding the Cases.

Respondent first attempts to distinguish Hammond and Woodring from the facts of this case. Respondent notes that the Cases involved medical payments made pursuant to med-pay provisions in an automobile insurance plan while petitioner’s case involves medical payments made pursuant to a health and welfare plan which, respondent asserts, is not even insurance. Respondent contends that because Hammond and Woodring were both med-pay-auto-insurance cases they are limited to med-pay-auto-insurance cases and therefore are not applicable here.

Respondent also attempts to distinguish the Cases from the facts of this case with respect to whether the medical services provided were on the minor’s own credit. Respondent contends that the medical services rendered to Bobby, unlike the minors in Hammond and Woodring, were on his own credit. To support this contention, respondent asserts that medical service providers typically ask whether a child seeking medical services is covered under a health plan. Respondent asserts that an affirmative answer shows that the services are provided on the child’s own credit. Without addressing whether Bobby was asked this question and what his answer might have been, respondent argues that hospital bills showing petitioner was a guarantor of Bobby’s hospital expenses establish that the hospital must have rendered services to Bobby on his own credit.

Finally, respondent argues that the naming of a minor family member as a covered dependent “manifests the parties’ intent to confer third-party beneficiary status upon the child, and makes him a ‘direct contract beneficiary.’ ”

In response to the above arguments, petitioner points to the plain language of the Plan’s reimbursement clause and argues that under the clause only petitioner, the subscriber to the Plan, and not his covered dependents, agrees to reimbursement. Petitioner maintains that Hammond and Woodring only prohibit reimbursement from settlements received by minors and therefore do not affect reimbursement from subscribers. Petitioner also argues that respondent has not shown that Hammond and Woodring are limited to med-pay-auto-insurance cases and that the Hammond and Woodring analysis implicitly rejected respondent’s contention that the services were provided on the minor’s own credit even if that point had been established.

Hammond and Woodring are in agreement on the following rules. Because parents are primarily liable for the medical expenses of their minor children, the parent has the obligation to pay the medical expenses of the minor child, and an action to recover for medical expenses lies in the parent, not the child. (Hammond, 141 Ill. App. 3d at 965.) Because of the parents’ primary liability, medical expenses paid on behalf of a minor child are deemed to be for the benefit of the parent, not the child. (Hammond, 141 Ill. App. 3d at 965.) A minor is liable for the sale of necessaries such as medical expenses only if on his own credit, and not the credit of another, including a parent. (Woodring, 71 Ill. App. 3d at 160.) Because the benefits are deemed received by the parent, a minor’s estate has received no benefit, and an insurer who paid the benefits has no subrogation rights against a payment by a tort-feasor in settlement of a claim by the minor’s estate. Woodring, 71 Ill. App. 3d at 160.

Contrary to respondent’s assertions, we find nothing in these cases limiting them to med-pay-auto-insurance cases. The gist of the cases is that a minor child’s medical expenses are the liability of the child’s parents and therefore it is the parents who receive any medical benefits paid in the name of a minor child. It follows that because the parents have received the benefits, the child has not, and the child’s estate cannot be reached by liens seeking reimbursement for benefits it has not received. These principles apply whenever medical expenses are involved and are not limited by who paid the medical expenses. Accordingly, respondent’s argument attempting to distinguish Hammond and Woodring on the ground that they only apply to med-pay-auto-insurance cases fails.

As noted by respondent, the Hammond and Woodring principles suggest an exception to the rule prohibiting subrogation liens against a minor's estates for medical expenses if the minor received the benefits on his own credit. However, in this case, respondent has failed to show that Bobby received the benefit on his own credit. Respondent did not show that the hospital (or any of the other medical providers in the case) even asked Bobby anything with respect to credit. Respondent has failed to provide any evidence in this case to support its premise.

Respondent’s contention that petitioner acting as a guarantor proves Bobby received the service on his own credit also fails. Petitioner acting as a guarantor simply does not establish that services were rendered on Bobby’s own credit.

Finally, In re Estate of Scott (1991), 208 Ill. App. 3d 846, the case relied on by respondent for its contention that naming a family member as a covered dependent confers third-party beneficiary status, is inapposite. Scott involves a clause in an employee benefit plan which gives specific third-party beneficiary rights, and the case does not involve a minor. (Scott, 208 Ill. App. 3d 846.) Here there is no clause conferring specific third-party beneficiary rights, and, again, the gist of the matter is that a minor’s estate is in question.

For the above reasons, we find that Illinois case law, unless preempted, is applicable in this case and that the circuit court correctly relied on the case law in denying respondent’s lien.

We find respondent’s public policy and inherent court power arguments unpersuasive. The only question remaining in this case is whether ERISA preempted the Illinois case law in question.

ERISA PREEMPTION

At issue is whether the ERISA preemption clause acts to preempt the State law (Hammond and Woodring) relied on by the trial court in making its ruling. The ERISA preemption clause provides as follows:

“Except as provided in subsectibn (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. §1144(a) (1988).

Respondent contends that the State law in question clearly “relates to” the Plan and therefore falls under the ERISA preemption clause. Respondent argues that ERISA preemption acts any time the outcome of a dispute regarding some aspect of an ERISA plan turns on whether a court applies State law. Respondent maintains that ERISA preemption applies in this case because the Hammond and Woodring rules adversely affected the ruling with respect to the reimbursement clause of the Plan.

Petitioner contends ERISA does not preempt State law here because there is no conflict between the State law in question and the ERISA plan in question. Petitioner relies on the plain language of the Plan’s reimbursement clause. Petitioner argues that the clause simply does not encompass the issue of recovery from the estate of a minor dependent of a subscriber and therefore the State law controlling that issue does not “relate to” the Plan.

As the contentions of the parties show, the key to the ERISA preemption clause is the words “relate to.” The outcome of this case depends on the construction given to those words.

Congress used the words “relate to” in the ERISA preemption clause in their “broad sense” and did not intend that the clause only apply to State laws specifically designed to affect ERISA plans. (F M C Corp. v. Holliday (1990), 498 U.S. 52, 58, 112 L. Ed. 2d 356, 364, 111 S. Ct. 403, 408.) A State law relates to an ERISA plan if it has a “connection with or reference to such a plan.” Pilot Life Insurance Co. v. Dedeaux (1987), 481 U.S. 41, 47, 95 L. Ed. 2d 39, 48, 107 S. Ct. 1549, 1553.

But there are limits to the reach of the ERISA preemption clause. ERISA preemption does not extend to State laws of general applicability that make no reference to an ERISA plan and function irrespective of such a plan. (Ingersoll-Rand Co. v. McClendon (1990), 498 U.S. 133, 140, 112 L. Ed. 2d 474, 484, 111 S. Ct. 478, 483.) ERISA preemption does not apply to a State law which affects an ERISA plan “in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” (Shaw v. Delta Air Lines, Inc. (1983), 463 U.S. 85, 100 n.21, 77 L. Ed. 2d 490, 503 n.21, 103 S. Ct. 2890, 2901 n.21.) ERISA does not preempt a State law which has only a tangential impact on an ERISA plan. Golen v. Chamberlain Manufacturing Corp. (1985), 139 Ill. App. 3d 53, 57.

Here, neither the ERISA statute nor a reasonable reading of the Plan’s reimbursement clause requires the preemption of the State laws set forth in Hammond and Woodring. ERISA itself is silent with respect to reimbursement and subrogation in ERISA plans. (Davis v. Line Construction Benefit Fund (W.D. Mo. 1984), 589 F. Supp. 146, 149.) The Plan’s reimbursement clause only entitles respondent to reimbursement from the subscriber.

The Plan’s reimbursement clause provides, “If you or one of your covered dependents are injured *** you agree (a) to immediately reimburse.” This plain language clearly limits the duty to reimburse to the subscriber and does not extend the duty to covered dependents.

The part of the Plan’s reimbursement clause which allows liens does not change this. Subsection (b) of the reimbursement clause allows the placing of liens to the extent of benefits provided, but does not specifically extend the scope of recovery beyond the subscriber. Based on our reading of the Plan’s reimbursement clause as a whole, we conclude that the Plan allows reimbursement, including by liens, only from a subscriber and not from covered dependents.

The only minors involved in reimbursement cases such as this case are likely to be covered dependents. Because the Plan’s reimbursement clause limits its reach to subscribers who are unlikely to be minors, State law controlling the rights of minors has only a tangential impact on the Plan. Moreover, the State laws do not affect the design of the Plan to seek reimbursement from a nonminor subscriber.

Hammond and Woodring do not directly refer to ERISA or to employee health and welfare benefit plans. As respondent pointed out, Hammond and Woodring themselves involve med-pay provisions in auto insurance policies. We conclude that these State laws are of general applicability, make no reference to an ERISA plan, and function irrespective of such plans. Therefore any connection of these State laws to this ERISA plan is tenuous and remote. Unlike cases where ERISA preemption is necessary, the State laws in this case do not prevent the administrator of this ERISA plan from doing what the Plan permits, seeking reimbursement from a subscriber to the Plan.

Respondent raises a final question regarding ERISA preemption. The question is whether ERISA preempts State laws that adversely impact Federal uniformity. Respondent answers the question affirmatively and concludes “[ujnless Plaintiff is prepared to demonstrate that the precedent of Hammond applies equally to ERISA-plan subscribers in general, and [the Plan] subscribers in particular, anywhere in the country, it is preempted by the Plan’s reimbursement provision.”

Respondent points to a Minnesota decision (Hunt v. Sherman (Minn. 1984), 345 N.W.2d 750) and asserts that, on facts parallel to those here, the Minnesota Supreme Court held that ERISA preempted Minnesota case law which would have denied reimbursement. Respondent concludes that because Hunt produced a result different from that in Hammond and Woodring ERISA requires the preemption of the Cases or else there will not be Federal uniformity.

Respondent is correct that ERISA preemption can apply to State laws “that risk subjecting plan administrators to conflicting state regulations.” (F M C Corp. v. Holliday, 498 U.S. at 59, 112 L. Ed. 2d at 365, 111 S. Ct. at 408.) However, respondent has failed to show how the Illinois State laws in this case would risk subjecting plan administrators to conflicting State regulations.

Hunt is different from this case. The subrogation clause in Hunt gave the Hunt ERISA plan administrator specific subrogation rights “to each participant’s right of recovery.” (Hunt, 345 N.W.2d at 751.) The reimbursement clause here, as shown above, gives the Plan administrator reimbursement rights only with respect to the subscriber. Because of the difference between the clauses in these cases, we are not persuaded that ERISA uniformity considerations require the preemption of the State laws in question here. The Plan’s reimbursement clause, whether construed under the laws of Illinois or Minnesota, limits the duty to reimburse to the subscriber. Under either State law, then, reimbursement under the Plan cannot be had from a minor’s estate. Because respondent has failed to show a negative effect on Federal uniformity in the case at bar, we conclude that Federal uniformity does not require the preemption of Hammond and Woodring.

For all the foregoing reasons, we hold that on the facts of this case ERISA does not preempt the State laws espoused in Hammond and Woodring.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN D. SONNTAG, Defendant-Appellant.
    Second District
    No. 2—91—0887
    Opinion filed December 18, 1992.

      Diane Mueller, of Madsen, Sugden & Gottemoller, of Crystal Lake (Ralph E. Madsen, of counsel), for appellant.
    Thomas E Baker, State’s Attorney, of Woodstock, and Joan M. Kripke, of Chicago (William L. Browers and John X. Breslin, both of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Brian D. Sonntag, appeals from a trial court order denying his motion to vacate his guilty plea to four counts of unlawful delivery of a controlled substance and two counts of criminal drug conspiracy. He raises the following issues: whether the trial court erred in entering convictions of the inchoate offenses, as well as the substantive opes; and whether sections 401(a)(7) and 401(b)(7) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, pars. 1401(a)(7), (b)(7)) violate both the equal protection and due process clauses of the United States Constitution and the State of Illinois Constitution.

On October 31, 1990, defendant was indicted on the following offenses: four counts of unlawful delivery of a controlled substance (greater than 10 objects containing in them lysergic acid diethylamide (LSD)); two counts of criminal drug conspiracy; and one count of unlawful delivery of a controlled substance while on school property. On March 4, 1991, defendant entered a “blind” plea of guilty to all counts of the indictment except that of unlawful delivery of a controlled substance while on school property which was nol-prossed by the State. At the time of his plea, defendant was admonished that the charges against him were all Class X felonies. (See Ill. Rev. Stat. 1989, ch. 56½, pars. 1401(a), 1405.1(c).) A presentence investigation and report was ordered.

On April 3, 1991, new counsel on behalf of the defendant filed a motion to withdraw his plea of guilty. The motion, inter alia, alleged that the classification of the charge of unlawful delivery of a controlled substance of greater than 10 objects as a Class X felony was irrational, unreasonable and arbitrary and, thus, violated the defendant’s right to due process and equal protection. The trial court denied the motion to vacate the guilty plea.

On July 12, 1991, the trial court sentenced the defendant to concurrent sentences of 12 years in the Department of Corrections on each of the six counts. Defendant’s motion for reconsideration of his sentence was denied. This appeal followed.

Defendant contends, first, that he was improperly sentenced for both the inchoate and substantive offenses in this case. (See Ill. Rev. Stat. 1989, ch. 38, par. 8—5.) The State argues that defendant has waived this issue inasmuch as he failed to raise it in either his motion to vacate his guilty plea or in his motion to reconsider his sentence. However, the State concedes that the issue may be reviewed under the plain error doctrine (134 Ill. 2d R. 615(a)) and confesses error. Therefore, we vacate defendant’s convictions and sentences on the two counts of criminal drug conspiracy.

Defendant also requests that, in the event this court reverses his convictions on the conspiracy counts, the cause be remanded for a new sentencing hearing. Where a defendant is convicted of multiple offenses, reversal of one conviction does not per se require that the defendant be resentenced on the remaining conviction or convictions, as long as the record shows that the trial court considered the offenses separately and sentenced the defendant separately on each offense. (People v. Hagan (1990), 199 Ill. App. 3d 267, 290-91.) We note that at the sentencing hearing the trial court did not delineate between the conspiracy and the delivery charges. However, the trial court explained that it was imposing the 12-year sentences because it believed that defendant would, given the opportunity, engage in similar conduct in the future and that such a sentence would both identify the problem with such conduct to the defendant and would assist him in dealing with the problems he would face upon being released. We are satisfied that the sentences imposed were not so interrelated as to require a new sentencing hearing. Cf. Hagan, 199 Ill. App. 3d 267.

Defendant contends sections 401(a)(7) and 401(b)(7), as amended by Public Act 86—604, violate both the equal protection clause and the due process clause of the United States Constitution and the State of Illinois Constitution. Defendant was found guilty and sentenced under section 401(a)(7), which provides that a person shall be guilty of a Class X felony if he delivers “either: (i) 10 grams or more but less than 100 grams of any substance containing [LSD], or an analog thereof, or (ii) 10 or more objects or 10 or more segregated parts of an object or objects containing in them or having upon them any amount of any substance containing [LSD] or an analog thereof.” (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(7).) Section 401(b)(7) provides that a person shall be guilty of a Class 1 felony if he delivers “either: (i) more than 3 grams but less than 10 grams of a substance containing [LSD], or an analog thereof, or (ii) more than 3 objects or more than 3 segregated parts of an object or objects *** containing in them or having upon them any amount of any substance containing [LSD], or an analog thereof.” (Ill. Rev. Stat. 1989, eh. 56½, par. 1401(b)(7).) The thrust of defendant’s challenge to the above statute is that, despite their differing potency, the same number of grams are considered to be equal to the same number of objects.

The State questions defendant’s standing to challenge the constitutionality of section 401(b)(7) since he was not sentenced under that section of the statute. A party does not have standing to challenge the constitutional validity of a statutory provision if he is not directly affected by it unless the unconstitutional feature is so pervasive as to render the entire act invalid. (People v. Mayberry (1976), 63 Ill. 2d 1, 6.) A party who attacks a statute as unconstitutional must bring himself within the class aggrieved by the alleged unconstitutionality. (Mayberry, 63 Ill. 2d at 6.) Given that both sections of the statute equate grams of LSD with objects containing LSD, we conclude that defendant has standing to challenge both sections of the statute.

Like all legislative enactments, these statutory provisions carry a strong presumption of constitutionality, and all doubts must be resolved in favor of their validity. (People v. Esposito (1988), 121 Ill. 2d 491, 497.) The burden rests on the defendant, as the challenging party, to rebut this presumption and to introduce evidence which demonstrates that the statute is unconstitutional. Esposito, 121 Ill. 2d at 497.

Defendant contends that section 401 creates an unreasonable classification violative of the equal protection provisions of the United States and the Illinois Constitutions. Courts generally employ a two-stage analysis to determine whether a legislative classification deprives individuals of equal protection. Initially, the court determines the proper level of scrutiny to be applied to the challenged classification. When the statute trader consideration affects a fundamental right or discriminates against a suspect class, courts will subject the legislation to strict scrutiny and uphold it only if it serves a compelling State interest. (Esposito, 121 Ill. 2d at 499.) Where, as here, the classification does not affect a fundamental right or discriminate against a suspect class, the proper standard for judging the statute is the rational basis test. Under this test, a statutory classification must bear a rational relationship to a valid legislative purpose, and the classifications created by the statute will be set aside only if based on reasons totally unrelated to the pursuit of a legitimate State goal. (121 Ill. 2d at 500.) A classification scheme will be upheld if any state of facts may reasonably be conceived which would justify the classification. It is only required that there be a reasonable basis for distinguishing between the classes created by the legislation. Mayberry, 63 Ill. 2d at 9.

As set forth in the statement of legislative intent found in the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1100), the Act seeks, inter alia, to “penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society.” The Act goes on to state in pertinent part as follows:

“It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances. To this end, guidelines have been provided, along with a wide latitude in sentencing discretion, to enable the sentencing court to order penalties in each case which are appropriate for the purposes of the Act.” Ill. Rev. Stat. 1989, ch. 56½, par. 1100.

In Chapman v. United States (1991), 500 U.S. 453, 114 L. Ed. 2d 524, 111 S. Ct. 1919, Chapman was convicted of selling 10 sheets (1,000 doses) of blotter paper containing LSD. Section 841(b)(1)(B)(v) of title 21 of the United States Code calls for a mandatory minimum sentence of five years for the offense of distributing more than one gram of a “mixture or substance containing a detectable amount of [LSD].” (21 U.S.C. §841(b)(1)(B)(v) (1988).) Although the LSD by itself only weighed 50 milligrams, together with the blotter paper, it weighed 5.7 grams which resulted in the imposition of the mandatory minimum sentence of five years on Chapman. He challenged the constitutionality of including the “carrier medium” in the weight calculation for purposes of sentencing.

The Supreme Court first explained that LSD in an average dose weighs 0.05 grams and that there are 20,000 pure doses in a gram. Because it is such a small amount, the pure dose must be sold to retail customers in a “carrier.” Pure LSD is dissolved in a solvent, such as alcohol, and either the solution is sprayed on paper or gelatin, or paper is dipped in the solution. The solvent evaporates, leaving minute amounts of LSD trapped in the paper or gelatin. The paper or gelatin weighs much more than the LSD. Thus, the 10 sheets of blotter paper carrying the 1,000 doses weighed 5.7 grams while the LSD by itself weighed less than the one gram necessary to trigger the five-year mandatory minimum sentence.

Chapman argued that by including the weight of the carrier, a major wholesaler of LSD, caught with 19,999 doses of pure LSD would not be subject to the five-year mandatory minimum sentence while a minor “pusher” with 200 doses on blotter paper or even one dose on a sugar cube would be subject to the mandatory minimum sentence. In upholding Chapman’s conviction and sentence, the Supreme Court found that Congress had a rational basis for its choice of penalties for LSD distribution in that it intended to punish severely large-volume drug traffickers at any level. The larger the quantity the more severe the penalty, regardless of the purity of the drug itself. The Court rejected Chapman’s argument that those selling different numbers of doses will be subject to the same penalties. The court found that although varying degrees of culpability might be subject to the same sentence, it did not mean that the penalty system for LSD was unconstitutional since the distributors made their own choice of carriers.

The State points out that the Illinois legislature has followed Congress’ lead and refused to draw a distinction between “wholesalers” and “retailers” of substances such as LSD. Our legislature has, however, drawn a distinction between unlawful users/petty distributors and unlawful purveyors/traffickers. The equal protection clause does not deny the States the power to classify in the exercise of their police power, and it recognizes the existence of a broad latitude and discretion in classifying. (People v. McCabe (1971), 49 Ill. 2d 338, 340-41.) “ ‘Whether the enactment is wise or unwise; whether it is based on sound economic theory; whether it is the best means to achieve the desired results, and whether the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.’ ” McCabe, 49 Ill. 2d at 341, quoting Thillens, Inc. v. Morey (1957), 11 Ill. 2d 579, 593.

We are cognizant of the fact that the power to classify may not be used arbitrarily in the sense that it discriminates against one in favor of another similarly situated. (McCabe, 49 Ill. 2d at 341.) Given the method of distributing LSD, it is not the amount of the drug that becomes important but the ease of distribution of the drug in the carrier form. Without focusing on the number of carriers, the intent of the legislature to eradicate the heavy traffickers in LSD could never be realized. The more objects, regardless of what they weigh, the more LSD that can be sold to more “customers.” The distribution becomes more widespread as a result, regardless of actual weight.

Defendant cites People v. Christy (1990), 139 Ill. 2d 172. In that case, our supreme court held that the penalties for aggravated kidnapping and armed violence were unconstitutionally disproportionate, because two statutes with identical elements could not result in two different penalties. Defendant argues that since the elements for a violation of section 401(a)(7)(i) and section 401(a)(7)(ii) are identical their penalties should be identical. Defendant points out that had the objects he was charged with delivering been weighed all four delivery counts against him would have been Class 3 felonies rather than the Class X ones he was sentenced for in this case.

Christy is distinguishable from the case at bar. As we have explained above, the evil sought to be eradicated is the widespread distribution of LSD. Therefore, it would make no sense to punish those who deal in objects less severely simply because the objects weigh less, as this factor only helps to increase the distribution. As the Supreme Court in Chapman stated:

“[Chapman] argue[s] that those selling different numbers of doses, and, therefore, with different degrees of culpability, will be subject to the same minimum sentence because of choosing different carriers. The same objection could be made to a statute that imposed a fixed sentence for distributing any quantity of LSD, in any form, with any carrier. Such a sentencing scheme — not considering individual degrees of culpability— would clearly be constitutional. Congress has the power to define criminal punishments without giving the courts any sentencing discretion.” (Emphasis added.) 500 U.S. at 466-67, 114 L. Ed. 2d at 539, 111 S. Ct. at 1928.

We conclude that the legislature had a rational basis for the penalty provisions found in sections 401(a)(7)(i) and (a)(7)(ii) and 401(b)(7)(i) and (b)(7)(ii) and that, therefore, defendant was not denied his constitutional right to equal protection.

Defendant also argues that he was denied his constitutional right to due process.

Legislation will survive a substantive 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. (People v. Pehrson (1989), 190 Ill. App. 3d 928, 932.) While acknowledging that the ends to be achieved, namely, the protection of society from the evils of LSD, are proper, defendant argues that classifying punishment for the delivery of LSD according to the amount of objects is an unreasonable method of achieving that end. Defendant’s reliance on People v. Bradley (1980), 79 Ill. 2d 410, however, is misplaced. In that case our supreme court, citing the legislative intent of the Act that drug traffickers are to be punished more severely than those who merely possess drugs, held that a penalty section that imposed a more severe sentence for the possession of a drug than delivery of the same amount of the drug was violative of the due process clause of the Illinois Constitution. (Bradley, 79 Ill. 2d at 418.) It was a clear violation of legislative intent to punish the possessors of drugs more severely than the distributors who facilitate the ever widening use of unlawful drugs. In the case before us, we are concerned only with the delivery of LSD.

Defendant argues further that under the statute while an individual who delivers 10 objects of LSD is guilty of a Class X felony, an individual who delivers 2 grams of LSD in a paper bag is guilty only of a Class 3 felony under either the object or weight provision even though the 2 grams could have become 40,000 objects and been distributed to 40,000 people. However, as the Supreme Court stated in Chapman, a statute that imposed a fixed sentence for distributing any quantity of LSD, in any form, with any carrier, not considering the individual degrees of culpability, would not be unconstitutional. Chapman, 500 U.S. at 456-57, 114 L. Ed. 2d at 533, 111 S. Ct. at 1923.

Defendant maintains that sections 401(a)(7) and (b)(7) violate the void for vagueness doctrine embodied in the due process clause of the Constitution.

Due process requires that a statute must not be so vague that men of common intelligence must necessarily guess at its meaning or application. (People v. Fabing (1991), 143 Ill. 2d 48, 53.) The statute must provide sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions, and its prohibitions must be sufficiently definite when measured against common understanding and practices. (Fabing, 143 Ill. 2d at 53.) However, a statute is unconstitutionally vague on its face only if it provides no standard of conduct at all, meaning that the ambiguity is so pervasive that the statute is incapable of any valid application. (143 Ill. 2d at 55.) The determination of whether a statute is void for vagueness must be made in the factual context of each case. (People v. Bales (1985), 108 Ill. 2d 182, 189.) A defendant therefore may be prosecuted under a statute without violating his due process rights if his conduct clearly falls within the statutory proscription even though the statute may be vague as to other conduct. Bales, 108 Ill. 2d at 189.

There is no dispute that defendant engaged in conduct proscribed by the statute, namely, the delivery of LSD. Defendant argues that law enforcement officials will be unable to determine that a “segregated part” refers to a separately demarcated subsection of a larger object and not to drops of LSD on one piece of blotter paper. In Chapman, the Court dealt with a similar argument as follows:

“[Chapman] do[es] not claim that the sentencing scheme at issue here has actually produced an arbitrary array of sentences, nor did [his] motions in District Court contain any proof of actual disparities in sentencing. Rather, [he] challenge^] the Act on its face on the ground that it will inevitably lead to arbitrary punishments. While hypothetical cases can be imagined involving very heavy carriers and very little LSD, those cases are of no import in considering a claim by persons such as [Chapman], who used a standard LSD carrier. Blotter paper seems to be the carrier of choice, and the vast majority of cases will therefore do exactly what the sentencing scheme was designed to do — punish more heavily those who deal in larger amounts of drugs.” (Chapman, 500 U.S. at 466, 114 L. Ed. 2d at 539, 111 S. Ct. at 1928.)

In his own case, defendant does not dispute the number of objects containing LSD he was charged with delivering, thus indicating that the law enforcement officials had no difficulty making the above determination in his case. We therefore reject defendant’s argument that sections 401(a) and (b) are unconstitutionally vague.

We conclude on the basis of the above that the penalty provisions of sections 401(a)(7) and (b)(7) did not deny defendant his right to due process or equal protection. We therefore vacate defendant’s convictions of and sentences for criminal drug conspiracy counts and affirm defendant’s convictions of and sentences for the delivery counts.

Affirmed in part; vacated in part.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK McGHEE, Defendant-Appellant.
    Second District
    No. 2—91—0521
    Opinion filed December 15, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Frank McGhee, was indicted in the circuit court of Kane County on one count of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a)), one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2) and one count of attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1). Following a jury trial, defendant was found guilty of all three offenses and sentenced to concurrent 35-year extended terms of imprisonment on the armed robbery and attempted murder convictions.

Defendant raises the following issues on appeal: (1) whether he was denied a fair and impartial jury; (2) whether he was denied a fair trial by the combination of police officer testimony regarding defendant’s fingerprint cards and another witness’ testimony that defendant told him that defendant committed robberies for a living; (3) whether defendant was denied the effective assistance of counsel based on his trial counsel’s refusal to allow him to testify; (4) whether defendant was proved guilty beyond a reasonable doubt; and (5) whether the trial court abused its discretion in sentencing him to concurrent 35-year extended terms of imprisonment.

The following facts were adduced at defendant’s trial. During voir dire, the court addressed venireperson Lawrence Becker concerning the possibility of “some involvement” between the court and Becker. The following discussion occurred between the trial judge and Becker:

“Q. [Trial Judge]: I’m in the process of buying a home from Westway Construction Company.
A. [Mr. Becker]: Right.
Q. Is there anything that I have said or done as a customer that is going to influence you in any way in terms of your ability to be a fair and impartial juror in this case?
A. Well, I really don’t know, I can’t—
Q. In other words, so far nothing has happened with me as a customer, I take it?
A. Right.
Q. You understand it’s the lawyers who are going to present the case, and the jurors who are going to decide the facts, and I’m simply going to tell you what the law is?
A. Is there going to be anything in the construction of your home that’s going to interfere with our relationship?
Q. I certainly hope not. We have never met before, though; is that correct?
A. That’s correct.”

The following discussion also took place between the prosecutor and Becker:

“Q. [Prosecutor]: Mr. Becker, are you ready, willing, and able to serve as a juror in this case?
A. [Mr. Becker]: I do have some time restraints that I wasn’t happy with this, but otherwise, yes.
Q. And that was going to be one of my next questions is do you have any obligations, what have you, that are distracting you, or perhaps going to—
A. I’m active in my community. For example, tonight I have a planning commission meeting which is to take place shortly.
I also do some bookkeeping on the side, and there is year-end tax situations that I’m confronted with.
Q. And as far as scheduling goes, we hope that this matter finishes sometime Wednesday.
Do you think that you will be able to put these concerns aside and concentrate on the matter at hand?
A. I’d have to.”

Becker was selected as an alternate juror. Defendant did not object to Becker’s selection. Later, defendant did not object when Becker replaced an ill juror. Nor did defendant raise in his post-trial motion any issue regarding Becker being on the jury.

Also prior to trial commencing, defendant moved to bar the testimony of Joe Gonzalez that defendant had told him that defendant committed robberies for a living and that defendant intended to rob the Saratoga Hotel. The court denied defendant’s motion.

The first witness to testify for the prosecution was the victim, Philip Fetzer. According to Fetzer, he was assigned to work at the Saratoga Hotel on July 27, 1990, from 11 p.m. to 7 a.m. as the night auditor and desk clerk. He has no memory of the incident. He remembered saving a computer program at home before going to work. The next thing he recalled was being transferred out of the intensive care unit at the hospital. Fetzer was unable to recognize anyone in the courtroom as the person who shot him, nor was he able to remember having seen defendant. On cross-examination, Fetzer was shown a photograph of defendant but did not recognize him. When asked whether he had ever seen defendant before, he .responded that he believed defendant and his family had stayed at the hotel prior to the incident.

Fetzer explained that he had been shot near the right temple. He suffered the loss of sight in his left eye, blurred patches in his right eye, loss of sense of smell and damaged nerves on the right side of his face.

Thomas Fetzer, a North Aurora police officer and the victim’s brother, testified that on July 27, 1990, sometime after 5 a.m., he was dispatched to the Saratoga Hotel based on a report of an armed robbery and a subject bleeding from his head. Upon arriving, Officer Fetzer observed his brother lying on the floor and bleeding profusely from the head. The victim was unconscious, had labored breathing, had a rapid and weak heartbeat and appeared to be dying.

After regaining consciousness at the scene, the victim told Officer Fetzer that someone shot him. He described the assailant as a black male armed with a dark-colored revolver. He also told Officer Fetzer that the black male kept telling him to open the safe, and, when the victim told him he could not do so, the black male starting shouting at him to do it. The black male then shot him.

Officer Fetzer described several photographs that depicted the front counter, the registration area, the cash register and the night clerk’s chair. The photographs also showed United States currency on the floor near the chair and a piece of a plastic bag on the chair.

Officer Bill Lomax identified a fingerprint card bearing defendant’s name as a “fingerprint card that the Aurora police department maintains for arrestees that come through [the] jail.” He further testified that he took the set of fingerprints on the card from defendant on June 10, 1988. Deputy Gerard Casale of the Kane County sheriff’s department identified a fingerprint card as containing the fingerprints he took from defendant. Defendant’s attorney asked Deputy Casale what date he took the fingerprints, to which Casale responded “in 1988 sometime.”

Officer Steven Schindlbeck of the North Aurora police department also responded to the Saratoga Hotel on July 27, 1990, approximately two minutes after being dispatched. He identified in a photograph a dollar bill which was found near the bottom of a staircase located east of the front desk. Additionally, he identified a torn plastic bag depicted in a photograph as one found at the base of two vending machines located alongside the stairway. There was no blood near the torn bag.

Jefferson Wise was called to testify by the prosecution. He testified that he had prior convictions of home invasion, felony deceptive practices, felony retail theft and misdemeanor retail theft. When asked whether he had conversed with defendant regarding the robbery at the Saratoga Hotel, he said no. When shown a written statement given by him to a North Aurora police officer in which he stated that defendant had bragged about robbing the Saratoga Hotel, Wise testified that the statement was false. The statement, which was admitted as substantive evidence, also stated that defendant told Wise about how he was going to spend the money from the robbery.

On cross-examination, Wise explained that he gave the false statement to the police because he wanted to get back at defendant for kicking him out of defendant’s house because Wise had stolen defendant’s car. Wise changed his mind because he did not feel that a friend of his should do that much time. Wise had left the Aurora area with Joe Gonzalez, who had never met defendant until sometime later when Gonzalez was in jail with defendant.

On redirect examination, Wise denied that defendant had threatened his life in. the past. He also could not recall stating at a prior sentencing hearing that defendant had threatened his life. Wise denied on re-cross-examination that defendant had threatened him concerning his testimony in this case.

Joe Gonzalez testified pursuant to a plea agreement in an unrelated case. His agreement was to tell the truth in this case in exchange for a 30-month extension of probation in two felony cases, a reduction of driving while under the influence to reckless driving and an agreement not to prosecute a theft charge. According to Gonzalez, he first met defendant in the Kane County jail in August 1990. While they were in jail, defendant told Gonzalez that he “committed robberies for a living.” Defendant also explained to Gonzalez how he went into the Saratoga Hotel prior to the robbery to see how things were set up because he was going to rob the place. He told Gonzalez his intent was to rob the Saratoga Hotel.

On cross-examination, Gonzalez admitted that defendant told him only that he intended to rob the hotel but never that he had actually done so. Gonzalez further testified that shortly after meeting with the prosecutor in this case he was released from jail and spent Christmas at home. He also admitted that he heard in jail that Jeff Wise had accused defendant of being involved in the Saratoga Hotel robbery.

Inspector Willard Rowe of the Illinois State Police testified that on August 24, 1990, he had a conversation with defendant at the Kane County jail. When asked whether he was involved in the armed robbery at the Saratoga Hotel, defendant denied it but stated that he and his family had stayed there sometime during the winter of 1989. Inspector Rowe then asked defendant to explain why defendant’s fingerprints were found at the hotel on July 27, 1990. Defendant’s demeanor changed at that point, and he became irrational and upset. Defendant also told Rowe that there was a big mistake and that he was being set up.

Sergeant Charles Larson of the Illinois State Police bureau of crime scene services testified that he collected a torn plastic bag that was draped over a chair behind the reception desk of the hotel. He also collected an amount of United States currency from the floor behind the counter. He also collected a single dollar bill from the floor near a stairway and a torn plastic bag which was located in front of two soft drink machines. He did not see any blood on the plastic bag. The soft drink machines were in an area approximately 50 to 60 feet from the front desk.

James Ercoli, a forensic scientist with the Illinois State Police bureau of forensic sciences, testified that he made observations of the two tom plastic bags and was of the opinion that they may have been part of one bag at one time. Stephen McKisson, a document examiner and training coordinator for the Illinois State Police crime lab, also inspected the two torn bags for the purpose of determining whether they were from the same bag. Based on numerous points of matching between the two portions of torn bag, he opined that they were at one time a single plastic bag.

James Fazekas, an Illinois State Police forensic scientist specializing in fingerprint examination, testified that he discovered three latent prints on the portion of plastic bag found near the vending machines at the crime scene. Both of the fingerprints on the bag were positively matched to defendant’s right ring fingerprint contained on his Aurora police department fingerprint card. The third print, a palm print, did not match defendant’s palm print on his Kane County fingerprint card.

Fazekas admitted on cross-examination that there is no way to determine how long defendant’s fingerprint was on the bag. He found no latent prints suitable for comparison on the plastic bag found behind the hotel counter or on any of the money collected from the scene. He found no other prints which matched any of defendant’s prints.

Following the denial of defendant’s motion for a directed verdict, defendant called Reginald Weathersby. Outside the presence of the jury, Weathersby, through his attorney, invoked his fifth amendment privilege against self-incrimination and expressed his intent not to testify.

Defendant’s mother testified in his behalf. On July 27, 1990, she resided with defendant, her two handicapped sons and her boyfriend, Gustavo Balderas. On the evening of July 26, 1990, she and her boyfriend went to play bingo at about 6 p.m. At that time, defendant was home with her handicapped sons who require care. When they returned home at 10:30 or 11 p.m., defendant was watching television. She went to bed after coming in and awoke at 8 a.m. the following morning. Defendant was on the sofa at that time. Gustavo Balderas, defendant’s mother’s boyfriend, corroborated her testimony regarding defendant being at home. He also testified that to his knowledge defendant never left the home that evening. Defendant did not testify.

The jury began its deliberations at about 4:15 p.m. A photocopy of the front of defendant’s North Aurora police fingerprint card was given to the jury. The portion referring to retail theft was whited out. The court explained to the jury that if it wanted to eat around 6 p.m. it would have to order food around 5 p.m. because it takes about an hour to get meals delivered. The jury found defendant guilty of all three counts. At that time, the court noted that the food for the jury would arrive in five minutes.

Defendant filed, on February 5, 1991, a pro se “motion to dismiss counsel and motion for appointment of counsel.” On that same date, he also filed a pro se “motion in arrest of judgment and motion for a new trial.” Defendant’s attorney also filed an amended motion for a new trial. The trial court dismissed defendant’s pro se motions with the exception that it reserved ruling on the allegation that defendant’s trial attorney withheld evidence that would have proved defendant’s innocence. New counsel was appointed to represent defendant in that regard. In dismissing the pro se motion to dismiss counsel and appoint new counsel, the court found that defendant’s trial counsel’s decision to advise defendant not to testify was a matter of trial tactics.

On March 14, 1991, the court conducted a hearing on the amended motion for a new trial and on the remaining pro se allegation that defendant’s trial counsel withheld exculpatory evidence. Defendant was represented on the pro se allegation by appointed counsel different from his trial counsel. In the latter regard, defendant testified that Reggie Weathersby had actually performed the crimes charged and that defendant’s trial counsel knew about Weathersby’s involvement. Specifically, defendant referred to partial fingerprints of Weathersby that defense counsel had determined were from the crime scene. According to defendant, defense counsel told him that the partial prints belonged to Weathersby but that such evidence would not hold up in court.

On cross-examination, defendant admitted that defense counsel had mentioned points of identification regarding the fingerprints and that their retained, expert only found one point of identification between Weathersby’s prints and a print taken from the crime scene. Defense counsel also told defendant that such identification was insufficient to be admissible. On redirect examination, defendant testified that he asked defense counsel to offer the fingerprint identification regarding Weathersby into evidence but defense counsel refused to do so.

Defendant’s trial attorney, Keith Brown, testified that defendant first told him about Weathersby about three weeks prior to trial. Brown then discovered that the State had never compared Weathers-by’s fingerprints to any of the prints found at the crime scene. Brown arranged to have a private fingerprint examiner compare Weathers-by’s finger and palm prints with those from the crime scene. According to Brown, the examiner advised him that there was one print at the scene that had one or two points of comparison that were the same as one of Weather shy’s prints but that that was insufficient for admissibility. Brown, in turn, explained that to defendant. Brown further testified that, as part of his trial strategy, he recommended to defendant not to testify. He did so because he felt the State’s evidence was not strong enough to convict defendant, because defendant’s testimony might have bolstered the State’s evidence and because cross-examination of defendant would have raised potentially unexplainable issues.

In denying defendant’s pro se motion, the court ruled that Brown’s decisions regarding the fingerprint evidence and defendant’s testimony were matters of trial strategy and that defendant received adequate representation.

On April 18, 1991, the court conducted a hearing on defendant’s amended motion for a new trial and a sentencing hearing. The court denied defendant’s amended motion.

As to sentencing, the court considered defendant’s presentence investigation report. The presentence investigation report discloses that defendant was adjudicated delinquent in 1985 based on an aggravated battery charge. As an adult, he had one traffic conviction and two misdemeanor convictions. Defendant has an llth-grade education with no vocational training. He lived with his mother and his twin handicapped brothers, whom he cared for while his mother worked.

Officer A1 Tiegelmann testified for the State that he spoke with Jeff Wise on August 9, 1990, at the Kane County jail. Wise told him that Wise and defendant were involved in a home invasion on June 7, 1990. On cross-examination, Officer Tiegelmann acknowledged that the victims of the home invasion were unable to identify defendant in a photographic lineup.

Detective Peter Burgert testified that he investigated a home invasion that occurred on June 26, 1990. Pursuant to that investigation, he recovered a lady’s shoulder purse from the crime scene which contained, among other things, a roll of duct tape. Jeff Wise told Detective Burgert that the purse had belonged to defendant’s mother. A fingerprint examiner from the State crime lab was able to match a fingerprint on the tape to one of defendant’s fingerprints. On cross-examination, Detective Burgert admitted that the victims were unable to pick defendant’s photograph out of a photographic lineup.

Several witnesses, including defendant’s mother, testified to defendant’s good character. Defendant’s mother also testified that defendant provided care for his two handicapped brothers.

Defendant also testified in his own behalf. After being admonished that his testimony could be used against him in a retrial, defendant testified that at 3 a.m. on the date of the incident he was at his house when Reggie Weathersby stopped by. According to defendant, Weathersby asked him to go to a restaurant to eat, and defendant agreed. When defendant got in Weathersby’s car, there was a plastic bag on the front seat which he picked up and threw in the backseat.

As they neared the restaurant, Weathersby revealed his plan to rob the Saratoga Hotel. Defendant refused to go along, exited the car and walked home. At about 5 p.m. that evening, Weathersby told defendant that when he robbed the Saratoga Hotel he was drunk and the gun went off accidentally. Weathersby panicked, ran and left the money and bag there.

Defendant testified that he had not come forward with the information earlier because he was afraid of doing so while in jail. According to defendant, Weathersby told him not to worry, that he would tell the truth as to who robbed the Saratoga Hotel.

The court began its sentencing comments by noting that it did not consider defendant’s continued claims of innocence to be detrimental to his sentencing. The court stated that it considered all aggravating and mitigating factors. Specifically, the court considered defendant’s misdemeanor offense in aggravation. It also found that the fact the victim was shot was an aggravating factor as to the armed robbery conviction. The court found no mitigating factors to be present in the case. In that regard, the court stated that while defendant helped with his brothers there was no evidence that he had primary responsibility for their care and there was no explanation why defendant’s mother or stepfather could not help or why no assistance was obtained from various social service agencies.

In considering whether to give an extended-term sentence, the court initially stated that it “[could] not find that the conduct of the defendant was exceptionally brutal or heinous.” The court further noted that defendant’s conduct caused serious harm and that defendant, “arguably, received compensation.” The court also commented that, while modest, there was “a history of prior delinquency or criminal activity.” The court sentenced defendant to a concurrent 35-year extended term of imprisonment on the armed robbery and attempted murder convictions and vacated the armed violence conviction.

The first issue we address is whether defendant was denied a fair and impartial jury. Defendant maintains that because of a business relationship between the trial judge and one of the jurors, the juror, “who quite possibly feared the loss of business should a not guilty verdict result,” unfairly influenced the other jurors to find defendant guilty. In a closely related argument, defendant contends that the same juror also unfairly influenced the jury to find defendant guilty because the juror was pressed for time. Defendant also argues that his trial counsel was ineffective for failing to challenge the juror for cause.

The failure to challenge a juror for cause or to exercise a peremptory challenge waives any objection to that juror. (People v. Ford (1960), 19 Ill. 2d 466, 475; see Kingston v. Turner (1987), 115 Ill. 2d 445, 465.) Furthermore, the failure to challenge a juror for cause is strong evidence that counsel was convinced the juror was not biased and had not formed an opinion of the defendant’s guilt. People v. Torres (1973), 54 Ill. 2d 384, 389.

In the present case, the trial judge initiated a discussion with juror Lawrence Becker relating to the judge’s purchase of a home from Becker’s employer, a construction company. Defense counsel did not challenge this juror based on his apparent business relationship with the judge, and, as such, any challenge on that basis was waived. Likewise, defense counsel did not assert a challenge when the juror stated that he had “some time restraints that [he] wasn’t happy with this” and that he would “have to” put his personal and professional concerns aside in serving on the jury. Any challenge based on Becker’s having indicated a propensity to reach a speedy verdict was also waived.

Notwithstanding any such waiver, the bases for challenging Becker for cause now raised on appeal are without support in the record. There is nothing in the exchange between the judge and the juror concerning the purchase of the judge’s home that remotely suggests any bias or predisposition on the part of Becker. We also strongly disapprove of appellate counsel’s assertion that Becker sought to preserve his employer’s business relationship with the judge by rendering a guilty verdict. Such assertion necessarily implies an opinion on the part of the trial judge that defendant was or should be found guilty. Such a bald implication of judicial predisposition without any evidentiary support is beyond the realm of acceptable advocacy and should be avoided.

There is also no evidence demonstrating Becker’s desire to reach a speedy verdict. His stating that he would “have to” put his own concerns aside, without more, is nothing more than an acknowledgement of his duties as a juror. The additional statement that Becker had some time restraints that made him unhappy about being a juror does not evidence Becker’s inclination to hurry the deliberations. Standing alone, these two statements would not be sufficient cause to have excluded Becker as a juror. Similarly, the fact that the jury appears to have returned a guilty verdict in less than two hours fails to demonstrate any undue influence exercised by Becker on the other jurors.

We accordingly turn to defendant’s contention that his defense counsel was ineffective for failing to challenge Becker for cause on these two bases. To show ineffective assistance of trial counsel, a defendant must prove that trial counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive the defendant of a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) As discussed above, there was no legitimate basis for challenging alternate juror Becker for cause. Consequently, the failure to do so did not rise to the level of ineffective counsel as defined in Allánese.

The next issue is whether defendant was denied a fair trial as a result of the combination of the testimony of two police officers regarding defendant’s fingerprint cards and another witness’ testimony that defendant told him that defendant committed robberies for a living. While defendant concedes that evidence of other crimes is admissible to prove motive, intent, modus operandi, identification, plan or design, he contends that the use of the fingerprint cards was unnecessary to establish his identity, and, therefore, the officers’ testimony concerning the cards unfairly prejudiced him. He maintains the introduction of the statement regarding his admitting doing robberies for a living lacked similarities to the charged offense sufficient to render it probative of his motive or intent in this case.

We begin our analysis by pointing out that to preserve properly a trial error for appellate review a defendant must both object at trial and raise the issue in his written post-trial motion. (People v. Pecoraro (1991), 144 Ill. 2d 1, 17; People v. Enoch (1988), 122 Ill. 2d 176, 186.) Here, defendant failed to object to the testimony regarding the fingerprints. Thus, the issue now presented related to the fingerprint cards was waived.

Nevertheless, there is an exception to the waiver rule where the evidence is closely balanced or the alleged error is of such magnitude to have deprived the defendant of a fair and impartial trial. (Pecoraro, 144 Ill. 2d at 17.) We need not decide in this case whether such plain error existed as we do not consider any error to have occurred here.

Generally, evidence of other crimes is inadmissible if relevant merely to establish a defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) Evidence of other crimes is admissible, however, to establish modus operandi, intent, identity, motive or absence of mistake. (People v. Evans (1988), 125 Ill. 2d 50, 82.) The supreme court has held that evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. Evans, 125 Ill. 2d at 82.

In this case, defendant argues that references to a fingerprint card from the Aurora police department and a fingerprint card from the Kane County sheriff’s department, both generated in 1988, evidenced his having committed other crimes. Officer Lomax identified a fingerprint card bearing defendant’s name as one used by the Aurora police department “for arrestees that come through the jail.” He added that he took the fingerprints from defendant in 1988. While this testimony suggests that defendant had in fact committed another offense prior to the charges in this case (see People v. Hudson (1972), 7 Ill. App. 3d 333, 337), it does not imply the precise nature of the offense. We have previously held that when the evidence of prior criminality is inferential and not direct, the dispositive issue as to the propriety of admitting such evidence depends upon the probative and prejudicial effect of the nexus between the admitted evidence and the prior criminality. (People v. Bartels (1975), 30 Ill. App. 3d 551, 555.) Here, the mere inference that defendant had committed some offense in the past, without some suggestion as to the nature and circumstances of that offense, fails to rise to a level of prejudice sufficient to overcome the obvious probative value such evidence provided in connecting defendant to this crime. It may very well be that defendant’s fingerprints were on an arrest card at the Aurora police department as a result of some minor offense or because of his failure to post bond on a traffic offense. Without any further indication as to the basis for his fingerprints on the arrest card, there is insufficient evidence of defendant having committed a prior criminal offense, evidence of which would have unduly prejudiced him in this case.

Even if it was error for the State’s witness to have referred to defendant’s fingerprint card as being one used for “arrestees,” any error was harmless under these circumstances. Officer Lomax’s reference to the fingerprint card as one used for arrestees was the only evidence to that effect. While the State’s fingerprint examiner testified that she used the Aurora police department fingerprint card to identify defendant’s fingerprint on the plastic bag, such reference was even less specific than Lomax’s as to any inference that defendant had been involved in prior criminal activity. There was no additional mention in the State’s case, or in its closing argument, of the specific nature of the fingerprint card. Furthermore, the reference to the card as one used for arrestees did not give rise to a strong inference, if any, that defendant had actually been arrested for a criminal offense more serious than a minor misdemeanor or traffic offense. Accordingly, we cannot conclude that defendant suffered the level of prejudice likely to have affected the outcome of his trial.

Without unnecessary elaboration, we further conclude that Deputy Casale’s testimony that he took defendant’s fingerprints on a separate fingerprint card for the Kane County sheriff’s office was not error. The mere mention of this fingerprint card which was used at trial to exclude defendant’s palm print as being identical with a latent palm print obtained from the crime scene, without more, does not imply that defendant had committed a prior crime. There are a variety of reasons for a police department to have fingerprints on file other than those of an arrestee. (People v. Prewitt (1987), 160 Ill. App. 3d 942, 949.) Accordingly, we find no error in the admission of Deputy Casale’s testimony under these circumstances.

Defendant also asserts that the testimony of Joe Gonzalez that defendant told Gonzalez he committed robberies for a living was error. As noted earlier, evidence of other crimes is inadmissible except to establish modus operandi, intent, identity, motive or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) In the present case, defendant’s statement that he commits robberies for a living is particularly relevant to his motive for committing the robbery in this case. While motive is not an essential element of a crime, any evidence that tends to show that an accused had a motive for committing the crime is relevant because it renders more probable that defendant in fact committed the offense. (People v. Smith (1990), 141 Ill. 2d 40, 56.) The fact that defendant may have committed robberies as a regular source of income makes it more probable that he committed the one in this case. Moreover, the statement concerning committing robberies was made in conjunction with and arguably lent meaning and significance to defendant’s further statement to Gonzalez that he intended to rob the Saratoga. As such, Gonzalez’ testimony was not erroneously admitted.

In so holding, we note that defendant’s reliance on People v. Phillips (1989), 127 Ill. 2d 499, People v. Matthews (1985), 137 Ill. App. 3d 870, and People v. Watson (1981), 98 Ill. App. 3d 296, is misplaced as all of those cases address the applicability of the modus operandi exception to other crimes evidence. Modus operandi, by its very definition, requires evidence of the particular methods of performing a criminal act. We perceive no reason to engraft the similarity-of-crimes requirement of that exception onto the motive exception applicable in this case.

Defendant’s next contention is that the trial court erred in failing to appoint new counsel to represent him in his pro se motion alleging ineffective assistance of trial counsel. Our supreme court has held that the failure to appoint new counsel to argue the defendant’s pro se post-trial motion alleging ineffective assistance of counsel can be error under certain circumstances. (People v. Nitz (1991), 143 Ill. 2d 82, 134, citing People v. Krankel (1984), 102 Ill. 2d 181.) In Nitz, the supreme court adopted the approach of several appellate decisions (see, e.g., People v. Washington (1984), 184 Ill. App. 3d 703) which concluded that there is no per se rule that new counsel must be appointed every time a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel. (Nitz, 143 Ill. 2d at 134.) Rather, in determining whether new counsel should be appointed, the trial court should examine the factual matters underlying a defendant’s claim. If the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. (Nitz, 143 Ill. 2d at 134.) If, however, the allegations show possible neglect of the case, new counsel should be appointed. Nitz, 143 Ill. 2d at 134.

Accordingly, we apply the analysis enunciated in Washington and adopted in Nitz to the facts of this case. Here, defendant’s handwritten, pro se motion to dismiss counsel and appoint new counsel alleged, in part, that his trial counsel was ineffective because he “refused to allow” defendant to testify when he knew defendant’s testimony would have demonstrated the guilt of Reggie Weathersby. Defendant’s handwritten, pro se motion in arrest of judgment and for a new trial also alleged that trial counsel “refused to allow” defendant to testify and “deceived defendant into believing that his chances were better if he did not testify.”

At a subsequent proceeding, the court engaged in a discussion with defendant as to whether defendant wanted to persist in his allegations of ineffective assistance of trial counsel. Defendant initially told the court that he did not want his trial attorney dismissed and that he was satisfied with him. In further discussing with defendant trial counsel’s performance, the court explained to defendant that even if he had taken the stand and intended to testify regarding Reggie Weathersby, his testimony would have either implicated himself as an accomplice or would have been inadmissible hearsay. At that point, the trial court considered trial counsel’s refusal to allow defendant to testify as a matter of trial strategy. Upon further discussion with the court, defendant stated that everything in his motion was true but that he did not want to dismiss trial counsel. After argument by both counsel, the trial court found that defendant’s claim of ineffective assistance of counsel lacked merit and that it pertained to a matter of trial strategy. The court, therefore, refused to appoint new counsel on that issue.

We have reviewed the motions and record on this issue and conclude that the trial court properly applied the law and reached the correct disposition of defendant’s claim of ineffective assistance of trial counsel. Absent some evidence that trial counsel actually refused to allow defendant to testify against defendant’s wishes, his apparent advice to defendant not to do so was merely a matter of trial strategy. As a general rule, a trial counsel’s advice as to whether a defendant should take the stand is uniquely one of trial strategy We see nothing in the facts of this case to conclude otherwise.

We next address the issue of whether defendant was proved guilty beyond a reasonable doubt of armed robbery and attempted murder. In this regard, defendant raises three contentions in an effort to demonstrate the weakness of the State’s evidence. First, he argues that Jeff Wise’s testimony is “wholly unworthy of belief” because he recanted his statement to the police at trial and because the statement itself was ambiguous and did not specifically pertain to the charged offense. Second, he maintains that Gonzalez’ testimony is suspect because of the “very sweet deal” he arranged with the prosecution, because there was no corroborative evidence to support Gonzalez’ statement that defendant had gone to the Saratoga Hotel before the date of the robbery to look the place over and because Gonzalez did not testify to any specific aspects of the offense that would completely implicate defendant. Lastly, defendant asserts that the fingerprint evidence placing him at the crime scene was explained by defendant at the sentencing hearing.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (People v. Morgan (1991), 142 Ill. 2d 410, 439.) It is not the function of the reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt. (Morgan, 142 Ill. 2d at 439.) Rather, determinations of the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. (Morgan, 142 Ill. 2d at 439.) The relevant question on appeal 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. Eyler (1989), 133 Ill. 2d 173, 191.) This reasonable doubt test should be applied in all criminal cases, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291.

In this case, there was evidence sufficient for a rational trier of fact to have found defendant guilty beyond a reasonable doubt. While Jeff Wise testified that his earlier statement to the police that defendant had bragged about robbing the Saratoga Hotel was false, that statement was admitted as substantive evidence. Even though Wise explained why he gave the police statement earlier, the question of whether to believe Wise’s trial testimony or his prior statement was one uniquely in the jury’s realm. Likewise, the jury was aware that Gonzalez testified against defendant in exchange for an extension of his probation in an unrelated case, a reduction of a charge and an agreement not to prosecute a theft charge. It was for the jury to decide whether to believe Gonzalez and how much weight, if any, to give to his testimony.

As to the fingerprint evidence, it established defendant’s unexplained presence at the scene of the armed robbery and attempted murder. Furthermore, his fingerprints were on part of a plastic bag which appeared to have been used in the crime itself as the other part of the bag was found on a chair behind the counter and with money apparently from the hotel scattered around. While defendant argues in his appellate brief that we should consider his explanation for why his fingerprints were on the bag, which explanation he first offered at his sentencing hearing, we decline to do so. We are aware of no authority that compels us to consider such evidence, and we think the reasons for not doing so are too numerous and too obvious to mention. When viewed in its entirety, the evidence in this case supports the jury’s determination that defendant was guilty of armed robbery and attempted murder beyond a reasonable doubt.

The last contention presented by defendant is that the trial court abused its discretion in sentencing him to a 35-year extended-term sentence because: (1) he had only three prior misdemeanor convictions; (2) he maintained his innocence and testified at the sentencing hearing as to Reggie Weathersby’s commission of the offense; and (3) the trial court failed to give proper weight to the mitigation evidence and his potential for rehabilitation. Section 5—5—3.2(b) of the Unified Code of Corrections provides that a sentencing court may consider various factors as reasons to impose an extended-term sentence. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3.2(b).) The only factor listed therein that arguably applies in this case concerns a defendant’s conviction of a felony and the court’s finding “that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3.2(b)(2).) The infliction of torture or unnecessary pain is not required to find that a crime was brutal or heinous. (People v. Benkowski (1991), 215 Ill. App. 3d 615, 620.) Rather, “brutal” is defined as grossly ruthless, devoid of mercy or compassion and cruel or cold-blooded. (Benkowski, 215 Ill. App. 3d at 620.) “Heinous” is defined as hatefully or shockingly evil, grossly bad or enormously and flagrantly criminal. (Benkowski, 215 Ill. App. 3d at 620.) Consequently, premeditation and cold-bloodedness are sufficient factors to justify an extended sentence. Benkowski, 215 Ill. App. 3d at 620-21.

A trial court need only find a single required factor in aggravation to impose an extended-term sentence. (Benkowski, 215 Ill. App. 3d at 621.) While the statutory requirement that the trial judge set forth on the record his reasons for a particular sentence does not obligate the judge to recite each factor and set a value on it (People v. Garrison (1991), 209 Ill. App. 3d 979, 982), the judge must nevertheless enumerate on the record his consideration of the requisite aggravating factors in imposing an extended-term sentence. People v. Hanna (1989), 185 Ill. App. 3d 1069, 1078.

In this case, the trial court stated on the record that it “[could] not find that the conduct of the defendant was exceptionally brutal or heinous, indicative of wanton cruelty.” The court then went on to consider “the provisions of Chapter 38, Section 1005—8.2 [sic].” The court added that “[e]xtended term, assuming appropriate factors are found under 1005—8.2 [sic], is thirty to sixty years.” Finally, the court stated “that based on everything the Court has considered, and all of the statutory provisions *** the defendant is hereby sentenced to an extended term of thirty five years.”

We are unable to ascertain from the record what the trial court considered as a basis for the imposition of the extended-term sentence. It appears from the court’s comments that it did not consider defendant’s conduct to be exceptionally brutal or heinous. There is also some indication that the court may have erroneously applied the statutory aggravating factors relevant to the imposition of a normal-term sentence as a basis for the imposition of an extended-term sentence. On the other hand, there is some evidence which would arguably support a trial court’s finding that defendant’s conduct was exceptionally brutal or heinous. It is apparent that the record is ambiguous at best as to the basis for imposing an extended-term sentence. Under these circumstances, we conclude that it is necessary to remand this cause for resentencing. In doing so, we are careful to express no opinion as to what sentence should be imposed or whether an extended-term sentence would be appropriate in this case. We further note that to the extent the trial court considered defendant’s receipt of any proceeds of the armed robbery as an aggravating factor, it erred in doing so. See People v. Hunt (1981), 100 Ill. App. 3d 553, 557-58.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County finding defendant guilty of armed robbery and attempted murder, reverse that part of the judgment sentencing him to two 35-year extended terms of imprisonment, and remand this cause for resentencing.

Affirmed in part; reversed and remanded in part.

INGLIS, P.J., and UNVERZAGT, J., concur.