text:
    WILLIAM MARRERO, Plaintiff-Appellant, v. HOWARD A. PETERS III et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0600
    Opinion filed June 4, 1992.
    William Marrero, of Pontiac, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, William Marrero, appeals from an order of the Livingston County circuit court denying his complaint for a writ of mandamus. On appeal, he argues the court-appointed public defender rendered ineffective assistance of counsel during the mandamus proceedings in the circuit court. We affirm the circuit court’s denial of the writ.

In June 1991, plaintiff, an inmate at the Pontiac Correctional Center (Pontiac), filed a pro se motion seeking a writ of mandamus. He named Howard Peters, warden at Pontiac, the Prisoner Review Board, and Kenneth McGinnis, Director of the Illinois Department of Corrections (DOC), as defendants. Plaintiff’s complaint alleged the defendants approved the recommendation of a prison adjustment committee and revoked one year of his good conduct credits following a disciplinary hearing.

The credits were revoked because the committee determined plaintiff engaged in intimidation, threats, assaults, fighting and insolence in a June 1990 incident involving a prison guard. He entered a not guilty plea at the disciplinary hearing. Although plaintiff admitted being present while another inmate fought with a guard, he denied involvement in any physical or verbal confrontation. Plaintiff’s complaint alleged he violated no rules, the evidence presented at the disciplinary hearing was circumstantial and conflicting, and the revocation procedure violated his fourteenth amendment due process rights.

Plaintiff alleged a statutory right not to have good conduct credits revoked except in accordance with due process of law. He contended the defendants owed him a mandatory, nondiscretionary duty not to revoke good conduct credits except through a procedure complying with due process requirements. He alleged the defendants violated this duty. He also alleged a right to have his record expunged and credits restored, because the disciplinary hearing allegedly violated due process standards. He alleged the defendants owed a duty to expunge his record and they failed or refused to do so. We note plaintiff’s complaint does not specify how his due process rights were violated.

Plaintiff sought a writ of mandamus ordering the defendants to restore his good conduct credits, expunge DOC records and hold a hearing conforming to due process standards to determine if there was a basis for the allegations against him and to determine whether his good conduct credits should be revoked.

DOC’s administrative review board reviewed plaintiff’s grievance and all available information regarding the altercation and disciplinary hearing. The panel stated it was satisfied there had been compliance with procedural due process safeguards and believed defendant committed the infractions. The review board denied plaintiffs grievance.

On July 1, 1991, the circuit court, at plaintiff’s request, appointed the Livingston County public defender to represent him. The court set the cause for hearing by telephone conference on July 29,1991.

On July 22, 1991, the State filed a motion to dismiss plaintiff’s mandamus complaint. The State argued mandamus was not an appropriate forum for litigation of due process claims. The State argued mandamus issues only where a prisoner has a clear right to the relief sought. A constitutional duty can be compelled only after the duty has been established. Plaintiff failed to establish the existence of the duties he alleged defendants owed. Even if defendants did owe him a duty, plaintiff failed to adequately allege violation of any due process right.

Following the telephone conference, the court issued a written order, in August 1991 denying plaintiff’s complaint, stating:

“[T]he court finds that the plaintiff is unable to clearly show that the defendants have failed to perform those duties imposed upon them by regulation, statute, or case-law authority, but merely that he is dissatisfied with the administrative determination made in his case and that the defendants improperly exercised their judgment or discretion in a manner inconsistent with the law.”

This pro se appeal followed.

Plaintiff contends he was denied effective assistance of counsel because the public defender never contacted or interviewed him, investigated the allegations in his complaint, filed an answer to the State’s motion to dismiss, informed him the State had filed a motion to dismiss, or appeared in court to argue his case. He claims counsel’s performance was so lacking it constituted a complete denial of counsel at a critical proceeding.

Plaintiff’s claim of ineffective assistance of counsel is without merit. The sixth amendment of the United States Constitution states, in part: “In all criminal prosecutions, the accused shall enjoy the right *** to have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) This constitutional right to counsel applies only in criminal cases. “Complaints for writs of mandamus *** are civil in nature. Consequently, indigent prisoners do not have a constitutional right to the appointment of counsel in such cases.” Doherty v. Caisley (1984), 104 Ill. 2d 72, 76, 470 N.E.2d 319, 321.

The circuit court may, in its discretion, appoint counsel to represent an indigent prisoner in a mandamus proceeding. The circuit court in this case.

“in the exercise of its discretion, appointed [the Livingston County public defender] to represent the indigent plaintiff *** pursuant to Tedder v. Fairman, 92 Ill. 2d 216 (1982) ***. This was done [to] insure that the plaintiff would have ‘meaningful access’ to the trial court so that the pro se plaintiff would have someone to articulate the legal issues involved in this proceeding.”

The court dismissed the public defender after denying plaintiff’s complaint because “plaintiff has demonstrated through the pleadings he has filed that he can adequately present the issues in question should there be an appeal of this ruling.”

In Tedder v. Fairman (1982), 92 Ill. 2d 216, 227, 441 N.E.2d 311, 315-16, the supreme court stated:

“[0]nce a circuit court, in its discretion, has determined that appointment of the public defender is appropriate to represent an indigent prisoner, limited to a grievance relating to the conditions of his confinement, then that assistant public defender is expected to exercise due diligence in proceeding with the assigned case.”

The inquiry is whether the public defender in this case exercised due diligence in representing the plaintiff. We believe the supreme court’s reference to due diligence in Tedder is an admonition to counsel to go forward in good faith. The plaintiff in this case prepared a clear and understandable complaint seeking mandamus. His court-appointed attorney appeared before the circuit court, via a telephone conference, and argued his position. While we generally expect counsel to consult with a client, we cannot conclude, given the circumstances of this case, the public defender’s performance fell below the due diligence standard.

Even were we to conclude the public defender did not exercise due diligence in his representation of the plaintiff, there is no remedy available to plaintiff on appeal. If this were a criminal proceeding and counsel’s performance did not meet the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, we would reverse and remand for further proceedings. But mandamus is a civil action in which there is no constitutional right to counsel. Thus, we would be unable to provide any remedy on appeal.

The order of the circuit court dismissing plaintiff’s mandamus complaint is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    BELLFLOWER TOWNSHIP, Petitioner-Appellee, v. ILA KUMLER, Respondent-Appellant.
    Fourth District
    No. 4—91—0822
    Opinion filed May 28, 1992.
    Jack C. Vieley, of Peoria, for appellant.
    John N. Stevens, of Bloomington, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

In 1984, Ila Kumler (Kumler) was appointed Supervisor (Supervisor) of Bellflower Township (Township) by the Township’s Board of Trustees (Board), to serve the balance of her deceased husband’s term. She was then elected Supervisor in 1985 and 1989 by the voters of the Township. In 1989, the Board purported to disqualify her from serving as Supervisor, pursuant to section 11 — 9 of the Township Law of 1874 (Township Law) (Ill. Rev. Stat. 1989, ch. 139, par. 108). The Township sought an injunction against Kumler in McLean County circuit court and later filed a motion for summary judgment, which the court granted. Kumler appeals from the order granting summary judgment. We reverse.

On June 22, 1989, the Township filed a petition in the McLean County circuit court alleging Kumler neglected to keep proper accounts of various public funds, distribute township tax receipts into proper funds, properly account for interest earned on township tax receipts, account for interest earned in the proper funds, properly report township expenses and payment of township expenses to the Board, and issue payments to herself in proper amounts “in that she issued excessive payments to herself in the amount of $900.00 per year for the years 1985, 1986, 1987 and 1988.” The petition alleged the Board had explained proper reporting procedures to Kumler and demanded she comply with them, but she refused to do so.

The petition alleged on May 9, 1989, the Board demanded Kumler reimburse the Township for overpayments she made to herself ($3,600), but she refused to comply. At a meeting of the Board held May 9, 1989, the Board declared Kumler disqualified to act as Supervisor and assessed a forfeiture of $50, pursuant to statute. (See Ill. Rev. Stat. 1989, ch. 139, par. 108.) The Board demanded Kumler return Township books, records and checks, but she refused to do so.

The petition did not specify the relief sought and is apparently missing one or more pages. However, the Township also filed a petition for injunction on June 22, 1989. The petition for injunction repeated many of the allegations enumerated in the aforementioned petition, but also alleged irreparable harm and inadequate remedies at law. The Township sought an injunction ordering Kumler to return the Township’s books, records, and checks; desist from continuing to draw checks on Township funds; refund $3,600 in overpayments made to herself with 6% interest; and pay the $50 forfeiture.

Kumler filed a response to the petition and to the petition for injunction. She contended a public officer could not forfeit her office unless convicted of a crime. (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 3.) The criminal statute requires intentional, reckless or knowing conduct. Kumler also alleged the Board lacked statutory authority to disqualify her from office and seek an injunction against her.

On November 2, 1989, the Township filed an amended petition and an amended petition for injunction. The amended petitions added allegations of misconduct to those made originally. The amended petitions alleged Kumler retained Township employment records, thus making it impossible for the Township to file employment reports and pay taxes due for the first quarter of the year. Due to the Township’s failure to file a quarterly report of employment taxes and to pay the taxes, the Federal and State governments assessed penalties and interest. The amended petitions also alleged Kumler retained all blank forms for filing various reports and, as a result, the Township was unable to file its taxes for the second quarter. The Township sought an order directing Kumler to pay the penalties and interest assessed by the Federal and State governments.

On March 15, 1991, the Township filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005). The motion alleged the parties stipulated to preparation of an audit of Township records and an audit had been completed. The motion alleged there were no genuine issues of material fact and listed numerous documents, attached to the motion, as support for the contention. The motion sought summary judgment for the Township “determining that Petitioner’s termination of the Respondent was appropriate, that Respondent must be required to return all books, records, accounts, certificates of deposit and other documents and properties of the Township to the Petitioner.”

The circuit court entered an order on October 25, 1991, granting the Township’s motion for summary judgment. The court found Kumler failed to perform the various duties of her office as outlined in the audit report: “[T]he number and specific examples of ILA KUMLER’S failures are extensive, and that fact combined with the length of time for which the failures continued, are sufficient to form the conclusion that the Respondent’s failure to properly perform the duties of her office was wilful.” The court also found the Board’s disqualification of Kumler was lawful and proper pursuant to statute. (See Ill. Rev. Stat. 1989, ch. 139, par. 108.) Because there were no genuine issues of material fact, the court granted the motion. This appeal followed.

On appeal, we must first determine whether the Board had authority to disqualify Kumler. The circuit court based its decision regarding the Board’s authority on section 11 — 9 of the Township Law, which states: “If any supervisor shall refuse, or shall wilfully neglect to perform any of the duties of his office contained in the preceding sections of this article, he shall forfeit to the town the sum of $50 and be disqualified to act as the supervisor of said town.” (Ill. Rev. Stat. 1989, ch. 139, par. 108.) The Township Law is silent as to who makes the finding of wilful neglect and disqualifies the Supervisor.

The Board receives financial information prepared by the Supervisor. The Board also has statutory authority to accept the resignations of town officers (Ill. Rev. Stat. 1989, ch. 139, par. 99) and previously had authority to temporarily replace town officers who become physically incapacitated while in office (Ill. Rev. Stat. 1989, ch. 139, par. 97). The Board contends because it has those statutory powers, it must also have the power to disqualify the Supervisor. Otherwise, the Township will suffer while awaiting the outcome of court action.

Kumler contends because the Township Law does not specifically give the Board authority to disqualify the Supervisor, the Board does not have such power. We agree. She cites Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 433 N.E.2d 726, as support for her argument. There, the defendant township entered a lease agreement with a computer company. The township defaulted on the contract and the computer company sued. The appellate court concluded the township lacked power to enter the contract for which there had been no full, prior appropriation. The contract was unenforceable. “[T]ownships, like all other non-home-rule units, have no inherent powers, but only those granted to them by the constitution or authorized by statute.” Diversified Computer Services, 104 Ill. App. 3d at 857, 433 N.E.2d at 730.

In Boyd v. Ford (1985), 133 Ill. App. 3d 626, 479 N.E.2d 337, the voters of Wood River Township filed petitions with the town clerk seeking a referendum to submit a proposition to discontinue the maintenance and operation of the township’s hospital. An objection was filed asserting the legislature never provided a means or method whereby the voters of a town could seek a referendum to discontinue hospital operations. The township electoral board voted to sustain the objection. The circuit court affirmed the electoral board. The appellate court agreed, stating:

“The legislature has not seen fit to provide any means or mechanism for discontinuance of operations of a township hospital. If the legislature elects to permit the creation and operation of a township hospital, but denies the township the power to discontinue operations of such hospital, it may do so. Townships, like all other non-home-rule units of local government, have no inherent powers, but only those granted to them by the constitution or authorized by statute. [Citations.] This being the case, the petitioner’s only avenue for relief must be in asking the legislature to enact legislation establishing a procedure whereby they may seek the discontinuance of operations of the Wood River Township Hospital.” Boyd, 133 Ill. App. 3d at 633, 479 N.E.2d at 343.

Section 11 — 9 of the Township Law provides for disqualification of the Supervisor if she refuses or wilfully neglects to perform any of the duties of her office. The statute is silent as to who shall make the determination of wilful neglect and disqualify the Supervisor. The statute does not expressly or implicitly give this power to the Board. Because neither the State constitution nor the Township Law grants the Board power to evaluate the Supervisor’s performance and disqualify her from serving in her elected office if warranted, we hold the Board was without legal authority to do so.

Instead, the circuit court should make the initial determination of whether the Supervisor should be disqualified based on wilful neglect of duties. A neutral judicial officer should make this determination for two reasons. First, it will prevent an elected official from being disqualified from an office bestowed upon her by the voters simply because the Supervisor and the Board disagree on the Supervisor’s performance of the duties of the office. The audit and the court’s grant of summary judgment suggest the Board had serious cause for concern in this case, but those concerns do not give the Board the power to disqualify an elected official. Second, an initial determination of guilt by the court ensures the constitution’s prohibition against bills of attainder (U.S. Const., art. I, §§9, 10; Ill. Const. 1970, art. I, §11) is not violated. Bills of attainder are “legislative acts inflicting punishment on certain persons without judicial trials.” Pickus v. Board of Education (1956), 9 Ill. 2d 599, 611, 138 N.E.2d 532, 538; see also Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376; People v. Gurell (1983), 98 Ill. 2d 194, 456 N.E.2d 18.

If the Board believes it should have the power to disqualify the Supervisor, it must ask the legislature to establish a specific and constitutional procedure for it to do so. For now, the Board must file an appropriate complaint in the circuit court and ask the court to determine whether sufficient evidence exists to establish the Supervisor has wilfully neglected her duties and should suffer the penalty of a fine and a disqualification from office.

Kumler also argues the circuit court erred in granting summary judgment for the Township. We need not address this argument because we have decided the Board was without authority to disqualify Kumler.

The judgment of the McLean County circuit court is reversed.

Reversed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF BERNADETTE J. AHLNESS, Petitioner-Appellant, and DANIEL E. AHLNESS, Respondent-Appellee.
    Fourth District
    No. 4—91—0801
    Opinion filed May 28, 1992.
    Mark W. Rigazio, of Gomien, Root & Rigazio, of Morris, for appellant.
    Sidney E. Smith, of Law Offices of Sidney E. Smith, of Pontiac, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

In this dissolution proceeding, the trial court awarded petitioner Bernadette J. Ahlness permanent maintenance, the marital residence, other miscellaneous assets, and $70,000 payable in 10 annual installments of $7,000. The judgment provided there would be no interest on the $70,000 unless late payments occurred. Interest at the rate of 8% would become owing on late installments, and interest on the late installment would be retroactive for a period of one year prior to the time the payment was due. This obligation was secured by a court-imposed lien on a chiropractic clinic building awarded to respondent Daniel E. Ahlness. Petitioner now appeals, contending she is entitled to the statutory interest of 9%. It is uncertain whether she claims that the 8% should have been 9%, or that interest on the entire $70,000 should accrue at the rate of 9% from the date of the court’s judgment.

It is readily apparent that the trial court carefully considered the awards of property and maintenance in this dissolution action, which involved a marriage that began in June 1962. An attempt at a 50-50 division of assets was obviously being made. In providing for the $70,000 obligation, the trial judge stated, in part:

“On the one hand, I realize that that is a large asset and she is not getting any of the benefit of it for some time. But, then, on the other hand, I am looking at this. I don’t know where any different amount of cash flow could come from to pay this. If at some point Dr. Ahlness decides he wants to keep the clinic and wants to get out from underneath this, just wants to be done with it, the two of you can always negotiate for some amount to pay off the balance so she can get maybe a smaller amount earlier. But that is up to the two of you. Short of that, you have to pay $7,000 a year, starting January 1st of 1993 for ten years, or when the building is sold or transferred, then it is all accelerated and it all becomes due.”

Section 2 — 1303 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303) provides in pertinent part:

“Interest on judgment. Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time.”

Plaintiff cites In re Marriage of Morris (1989), 190 Ill. App. 3d 293, 546 N.E.2d 734, as authority for her position, or positions. The judgment supplemental to the dissolution of marriage in Morris provided the husband was to pay the wife $125,000, without interest:

“ ‘(a) $50,000 on or before October 10,1984
(b) $50,000 on or before October 10,1985
(c) $25,000 on or before October 10, 1986.’ ” (Morris, 190 Ill. App. 3d at 295, 546 N.E.2d at 735.)

The Morris appellate majority applied section 2 — 1303 of the Code, finding that the 9% rate applies, but held:

“[IJnterest *** accrues beginning with the date that the payments became due under the supplemental judgment. (See Fin ley, 81 Ill. 2d 317, 410 N.E.2d 12; Pope v. Pope (1954), 2 Ill. 2d 152, 117 N.E.2d 65; Dunn v. Thompson (1988), 174 Ill. App. 3d 944, 529 N.E.2d 297.) Interest will not attach for the period between the entry date of the supplemental judgment and the date the money judgments became due.” (Morris, 190 Ill. App. 3d at 298, 546 N.E.2d at 737.)

Thus, Morris is not authority for holding that section 2 — 1303 of the Code requires the statutory interest to begin on the entire $70,000 at the time of the court’s judgment. In Morris, as in the present case, payments were treated as not owing until the date provided by the court for payment. We see no reason why the specific lien attached to the clinic by the court’s judgment would change this outcome.

Morris does stand for the proposition that once a judgment becomes collectible, the statutory rate of 9% must apply. Here, however, the 8% interest ordered by the trial court if payments are late accrues beginning one year prior to the due date of the payment. The interest-retroactive treatment is an incentive for prompt payment and, if it comes into play, will initially result in a rate of return in excess of the 9% rate which would accrue when payment became due. In light of the retroactive treatment, we find the trial court’s use of 8% adequate.

This case is a good example of why part of Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, should be given broad application. Part of Finley dealt with whether retroactive interest was required when awarding past-due periodic support payments. The Finley court commented:

“[A] divorce proceeding partakes so much of the nature of a chancery proceeding that it must be governed to a great extent by the rules that are applicable thereto. [Citation.] In a chancery proceeding, the allowance of interest lies within the sound discretion of the trial judge and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with justice and equity. [Citations.]” (Finley, 81 Ill. 2d at 332, 410 N.E.2d at 19.)

Finley also quotes from Groome v. Freyn Engineering Co. (1940), 374 Ill. 113, 131, 28 N.E.2d 274, 283:

“ ‘In a proper case, equitable considerations permit a court of equity to allow or disallow interest as the equities of the case may demand.' ” Finley, 81 Ill. 2d at 332, 410 N.E.2d at 19.

An examination of the comments and written judgment by the trial court indicates careful consideration was given to the requirements of both sections 503 and 504 of the Illinois Marriage and Disso-

lution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, pars. 503, 504). The trial court, having heard the evidence, was best aware of the economic burdens which would be facing both petitioner and respondent. To have ordered payments which would jeopardize respondent’s professional building could have jeopardized his career and endangered the maintenance payments provided for in the judgment. In our opinion, the property settlement issue was treated in an equitable manner and judgment of the trial court is affirmed.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
      In re S.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. S.M., Respondent-Appellant).
    Second District
    No. 2—90—0949
    Opinion filed June 5, 1992.
    Rehearing denied July 13, 1992.

      G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

This is an appeal by S.M., a minor, after he was committed to the Department of Corrections, juvenile division, following his violation of certain conditions of his probation. The sole issue presented for review is whether the trial judge abused his discretion in revoking the minor’s probation and committing him to the Department of Corrections (DOC). We reverse and remand.

We proceed with a chronological recitation of the facts. On November 10, 1987, the State filed a petition for an adjudication of wardship pursuant to section 5 — 13 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 13) alleging that S.M., born in December 1974, was a delinquent minor in that he committed a burglary on October 21, 1987, in violation of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)). On December 12, 1987, a supplemental petition was filed alleging S.M. was delinquent in that he committed a battery on November 8, 1987, in violation of section 12 — 3(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(1)). On March 10, 1988, S.M. admitted the allegation in the original petition, and the court found the minor to be a delinquent pursuant to section 5 — 20 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 20). The court allowed the State to dismiss the supplemental petition. Three months later, S.M. was made a ward of the court and put on probation until August 12, 1989, pursuant to sections 5 — 23(l)(aXl) and 5 — 24 of the Act (Ill. Rev. Stat. 1987, ch. 37, pars. 805 — 23(l)(a)(l), 805 — 24). There were 10 conditions attached to S.M.’s probation, including that S.M. “is to attend school all day every day, unless home sick in bed, and obey school authorities.”

On May 5, 1989, the State filed a petition to revoke S.M.’s probation pursuant to section 5 — 25 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 25), alleging S.M. violated his probation on April 28, 1989, when he was suspended from Rochelle Junior High School for five days because of continuous behavioral problems. On July 6, 1989, S.M. admitted the allegation in the petition to revoke probation. The State recommended that S.M. be placed in Rosecrance for his substance abuse problem, then into Focus House. Both are treatment facilities for minors. The trial judge lectured the minor on how close he was to being sent to the DOC and then modified the probation, extending it to August 31, 1990. Two conditions were added to his probation: (1) that Donald King of the Ogle County probation office was named as guardian of the minor; and (2) that S.M. “abstain from the use of alcohol or chemicals unless prescribed by a physician.”

A progress report was filed with the court on September 20, 1989, in which probation officer Susan Lehman wrote that S.M. was placed in Focus House on August 23, 1989. Lehman noted that a random urinalysis conducted on September 1, 1989, indicated that S.M. tested positive for marijuana. She cautioned, however, that this could have been attributed to his regular use of the drug before placement. She said that Focus House would continue to perform random urinalysis tests on S.M. In an attached letter to Lehman’s report, Greg Martin, director of Focus House, stated that while S.M. did not seem “invested” in the program, he presented no major behavioral problems.

On October 25, 1989, a probation violation report was filed with the court, stating that S.M. had been drinking at home when his mother was not there. It was later discovered that S.M.’s mother, Linda Alvarado, was not at home on weekends during S.M.’s visits, resulting in S.M. being left unsupervised. The court issued an order of protection, ordering Ms. Alvarado to reside with and monitor S.M. on the weekends.

A second progress report was filed with the court on February 26, 1990. In that report, probation officer Diane Biggs wrote that S.M. was in treatment at Rosecrance until January 26, 1990. Biggs wrote that S.M. had told her that he wanted to quit using drugs and his affiliation with the Latin Kings gang. He reported that he was attending Alcoholics Anonymous (AA), Alateen and Sobriety meetings, and meetings with Greg Martin and Eileen Cole of Focus House. Ms. Alvarado told Biggs that S.M. was doing much better and that she was happy with his progress. Biggs wrote that S.M. had “made improvements regarding himself and his future” and gave him an “excellent” rating for progress.

At a court hearing on March 1, 1990, Ms. Biggs stated that S.M. was doing a “wonderful job”; that he was seen memorizing the steps associated with Narcotics Anonymous; that he had tried to get a friend to go to AA meetings; and that he was trying to get his brother to stop using drugs. The court stated that it was “very pleased” with S.M.’s progress.

On April 3, 1990, the State filed a petition to revoke S.M.’s probation, which was based on a probation violation report filed one day earlier. The petition alleged that: (1) S.M. did not return to Focus House on March 31 when he was told to do so; (2) he did not attend baseball practice the week of March 26; and (3) that he tested positive for marijuana on March 27. On April 19, S.M. denied the allegations in the petition. On May 31 and June 7, two more probation violation reports were filed with the court alleging that S.M. was blatantly disobeying authority figures at Rosecrance, that he was “throwing *** gang signs,” that he returned back to Rosecrance late on May 27, that he was discharged on May 29 because of behavior problems and that he failed to attend an AA meeting on June 4. On June 11 the State filed an amended petition to revoke probation, containing the above allegations.

On July 12, 1990, S.M. admitted some of the allegations in the State’s petition. S.M. denied throwing gang signs and denied missing AA meetings, explaining that he was attending meetings in Rockford. The trial judge determined that S.M. was voluntarily admitting to certain parts of the amended petition and admonished S.M. as to the rights he would be waiving by the admission and the possible dispositions available.

The State offered the following factual basis for S.M.’s partial admission to the petition. S.M. was told on March 31 to return to Focus House later that day but did not, nor did he tell staff members where he was. Furthermore, S.M. returned late to Rosecrance on May 27 after receiving a pass and, between May 27 and May 29, he argued with teachers at Rosecrance resulting in an unsuccessful discharge on May 29. The trial court accepted S.M.’s admission and scheduled a dispositional hearing for August 16.

On August 16, 1990, S.M. and his mother appeared for the dispositional hearing. S.M. testified in his own behalf, telling the trial judge that, contrary to the information in the third addendum to the social history, he had not driven his mother’s car in June, that he had telephoned the probation department to inform it that he could not make an appointment on June 22, and that he was no longer involved in gangs. S.M. also told the court that he was working eight hours a day, five days a week, earning $5 hourly in a landscaping business. He stated that he had not used drugs for awhile, was going to try out for football and was doing “pretty good.” On cross-examination, S.M. again denied driving his mother’s car in June; however, his answer seemed to imply that he had driven the car at some point. S.M. also stated that he had not had any recent gang involvement, although he had spoken with one alleged gang member who was in treatment at Rosecrance.

In rebuttal, the prosecution presented the testimony of juvenile officer Debra Wilcox of the Rochelle police department. Wilcox stated that she had three reports over the summer concerning S.M. Two of the reports concerned S.M.’s alleged involvement in hitting or pushing another youngster. Wilcox told the court that S.M. approached her “on more than one occasion” to tell her he was no longer in the Latin Kings gang. However, Wilcox stated that she had seen S.M. in the company of people she knows to be “gang related.” Wilcox admitted that she had not been able to investigate the three reports.

The trial judge, after hearing arguments from counsel, stated:

“And I’m very unhappy because you have great potential that you have thrown away. The only time you have followed the rules is when you have been in a structured setting, such as Focus House and Rosecrance, and even there[,] negative reports come out concerning your behavior, your course of conduct, your continuing course of conduct, of your behavior, which is unacceptable. And the resources that are available to us have been used, all of them, and the results have been so far negative.
Accordingly, I find that I have no other alternative but to commit you to the Department of Corrections.”

S.M.’s mother interrupted the trial judge and asked if the cause could be continued so that she could hire an attorney to better represent S.M. The trial judge then continued speaking and admonished S.M. as to his rights to an appeal. S.M.’s mother then continued speaking, stating in essence that her son was doing well and that “he’s going to be bad now.” S.M. filed this timely appeal. We note that S.M.’s attorney and the State took eight months each to file their respective briefs in this case.

The only issue before this court is whether the trial judge abused his discretion in revoking S.M.’s probation and committing him to the DOC. The disposition of a minor rests within the sound discretion of

the trial judge, and absent a showing of abuse, the trial court’s determination will not be reversed by this court. In re Griffin (1982), 92 Ill. 2d 48, 54; In re T.M. (1991), 210 Ill. App. 3d 651, 657.

We initially review the relevant sections of the Act. Section 5 — 23 sets forth the various dispositional alternatives available to the trial judge as to a minor found delinquent under the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 23), including commitment to DOC under section 5 — 33 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 33). Section 5 — 23(l)(b) restricts the trial court’s consideration of commitment to the DOC as a disposition to those cases where (1) the minor is 13 years of age or older, and (2) a term of incarceration is permitted by law for adults found guilty of the offense for which the minor was adjudicated delinquent. (Ill. Rev. Stat. 1989, ch. 37, par. 805— 23(l)(b).) Here, S.M. was over the age of 13 and a term of imprisonment is permitted for adults found guilty of burglary. See Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(b) (burglary is a Class 2 felony); Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(5) (sentence of imprisonment for Class 2 felony shall be not less than three years and not more than seven years).

Additionally, section 5 — 33(1) sets forth certain findings the trial court must make prior to committing a delinquent minor to the DOC:

“When any delinquent has been adjudged a ward of the court under this Act, the court may commit him to the Department of Corrections, Juvenile Division, if it finds that (a) his parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the best interests of the minor and the public will not be served by placement under Section 5 — 29 [(Ill. Rev. Stat. 1989, ch. 37, par. 805 — 29)]; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent.” (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 33(1).)

Although no Illinois law requires the use of least restrictive alternatives, commitment to the DOC should only be used when less severe alternatives would not be in the best interests of the minor and the public. In re G.S. (1990), 194 Ill. App. 3d 740, 743; In re B.S. (1989), 192 Ill. App. 3d 886, 891.

We find the judge’s conclusion that he “had no other alternative but to commit [S.M.] to the Department of Corrections” to be an insufficient finding under section 5 — 33(1) (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 33(1)). While there is not a requirement that the trial judge repeat the actual words of section 5 — 33(1) when committing a minor to the DOC, the statute does require a finding by the trial judge that either (1) the minor’s parents are unfit, unable or unwilling to care for him and that the best interests of the minor and the public would not be served by alternative placement under section 5 — 29 (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 29 (allowing placement with a relative, probation officer, an agency or training school)) or (2) incarceration is necessary to protect public safety. (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 33(1).) Under certain circumstances, a court of review can imply such findings based on the evidence in the record. (See, e.g., In re D.K. (1984), 125 Ill. App. 3d 309, 311 (trial court’s cursory statement committing minor to the DOC was supported by the record).) We have reviewed the record in this case and determine that we cannot imply the requisite section 5 — 33(1) findings necessary to commit S.M. to the DOC.

The judgment of the circuit court of Ogle County is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD BANEY, Defendant-Appellant.
    Second District
    No. 2—90—1121
    Opinion filed June 10, 1992.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Edward Baney, defendant, was found guilty of the offense of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) by a general verdict entered by a jury. He was sentenced to a term of 25 years’ imprisonment. The sole issue on appeal is whether the jury should have been given an instruction on the offense of reckless conduct. For the following reasons, we affirm.

In the early afternoon of January 27, 1990, defendant, age 16, drove his friends Christopher Ster, age 17, and Richard Ster, age 15, to the North Suburban Library in Loves Park, Illinois. On the ride to the library Christopher stated, without any apparent prodding, that he wanted to kill somebody. Approximately 15 minutes after Christopher made this statement, defendant gave him a butterfly knife with a six-inch blade.

After arriving at the library, the boys looked at some books on martial arts and returned outside. At this time, Christopher stated that he wanted to steal a woman’s purse. Defendant went to move his car to a nearby alley, upon suggestion by Christopher, while the Sters returned to the library. While the Ster brothers were in the restroom, the victim, George Reger, age 73, entered. As the victim was about to leave, Christopher embedded the knife into his neck. While the victim attempted to remove the knife, Christopher instructed Richard to take his wallet. Richard walked over to the victim, but was frightened by the amounts of blood. Both boys ran from the library through the back door and into defendant’s automobile, which was now parked across the street. While in the automobile, Christopher stated that he killed someone. Both boys knelt on the floorboards while defendant drove home. After Christopher cleaned the knife, defendant returned home and put it in a box. The knife was later recovered by Loves Park police officer Steve Dickson pursuant to a search. A test of the knife disclosed a bloodstain consistent with the blood of the victim.

The victim was still alive after the stabbing. He was taken to the hospital, where he died later that day. An autopsy revealed that the victim incurred three stab wounds to the back of the neck. One substantial wound was one inch wide and three inches deep. The cause of death was determined to be hemorrhagic shock due to the stab wound which injured the vertebral artery.

On January 30, 1990, defendant was charged by indictment with the offense of first degree murder in that he intended to kill or do great bodily harm to the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1(a)(1).) An amended bill of indictment, filed April 24, 1990, added a second count of felony first degree murder, in that defendant killed the -victim while attempting to commit the forcible felony offense of robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3).) Christopher Ster, whose cause proceeded separately, was also named as a defendant in each count.

Defendant’s case proceeded to a jury trial, where the State proceeded on an accountability theory. At the instruction conference, the defense tendered an instruction on reckless conduct as a lesser included offense. (See Illinois Pattern Jury Instructions, Criminal, No. 11.13 (2d ed. 1981).) The instruction was denied, and the court instructed the jury on the two alternate first degree murder charges of the amended indictment. The jury returned a general verdict of guilty of first degree murder.

On appeal, defendant contends that the court should have instructed the jury on the offense of reckless conduct as a lesser included offense of first degree murder based solely on defendant’s own conduct in relation to the offense. However, defendant was not charged with the offense of reckless conduct. A defendant cannot be convicted of an offense for which he was not charged unless the offense for which he was found guilty is a lesser included offense of the one charged. (People v. Schmidt (1988), 126 Ill. 2d 179, 183.) Under Schmidt, the court may not give an instruction on a lesser uncharged offense unless it is a lesser included offense of the offense charged. (People v. Booker (1991), 214 Ill. App. 3d 286, 288-89; see also People v. Austin (1991), 216 Ill. App. 3d 913, 916.) An included offense “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a).) Stated differently, a lesser included offense is one where its elements are subsumed in the greater offense so that it is impossible to commit the greater offense without committing the lesser included offense. (People v. Maldonado (1992), 224 Ill. App. 3d 913, 917; Austin, 216 Ill. App. 3d at 916.) An instruction on a lesser included offense will be given upon a defendant’s request if there is slight evidence in support of the offense. (People v. Ivory (1991), 217 Ill. App. 3d 619, 623.) However, “an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense.” People v. Perez (1985), 108 Ill. 2d 70, 81, citing Hopper v. Evans (1982), 456 U.S. 605, 612-13, 72 L. Ed. 2d 367, 373-74, 102 S. Ct. 2049, 2053-54; see also Ivory, 217 Ill. App. 3d at 623.

In this case, defendant was convicted of first degree murder on an accountability theory. The law of accountability provides that where two or more individuals engage in a common criminal design, any acts committed by one party are considered acts of the entire group, which can be imputed to every member of the group. (People v. Carlson (1992), 224 Ill. App. 3d 1034, 1045.) To establish a defendant’s legal accountability for a crime, in this case first degree murder, the State must prove, beyond a reasonable doubt, that the accused solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense, that such participation occurred either before or during perpetration of the crime, and that this participation was with concurrent specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 5— 2(c); see also People v. Holloway (1991), 225 Ill. App. 3d 47, 53.) The key element of accountability is affirmative conduct by the accomplice which aids, encourages, or entices the principal to commit the illegal act. (Holloway, 225 Ill. App. 3d at 53.) The specific intent to promote or facilitate the crime necessary to find a defendant guilty of any offense on this theory can be shown by evidence that defendant and the principal shared a community of unlawful purpose. (People v. Willis (1991), 217 Ill. App. 3d 909, 922.) Important factors are a defendant’s presence during the perpetration of the offense, whether he maintained a close affiliation with his companions after the offense was committed, and whether he fled from the scene or reported the crime. People v. Coleman (1991), 223 Ill. App. 3d 975, 992.

In contrast to the mental state of intent required to find a defendant guilty on an accountability theory, a person commits the offense of reckless conduct “if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 12— 5(a).) A person acts recklessly, for purposes of this offense:

“[W]hen he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow ***; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.)

To ascertain whether a defendant’s actions were reckless or intentional, courts look to the manner in which the weapon was used and the severity of the victim’s injuries. People v. Foster (1987), 119 Ill. 2d 69, 88; People v. Solis (1991), 216 Ill. App. 3d 11, 18.

In this case, defendant contends that he is entitled to an instruction on reckless conduct as a lesser included offense of first degree murder because his actions in providing the knife and the transportation to and from the scene of the crime were reckless. However, defendant was found guilty on an accountability theory. According to the express terms of the statute defining accountability, a defendant can only be found guilty of an offense by this theory if he had the specific intent to aid or abet in committing the offense. Thus, a defendant’s actions in committing an offense as an accomplice cannot be reckless. The mental states are mutually exclusive. For this reason, we find defendant’s contention that he was entitled to a jury instruction on reckless conduct because he acted recklessly in providing the knife to be without merit.

Thus, the issue is not whether defendant acted recklessly in providing Christopher Ster, the principal, with the knife, in driving him to the library, or in aiding in his escape. Rather, the issue is whether there was some evidence to suggest that the principal’s actions in stabbing the victim were done recklessly. The evidence in this case is clear and uncontradicted that Christopher Ster intentionally stabbed the victim without warning or provocation. The lack of evidence that the fatal act was anything but intentional negates any claim of recklessness. (People v. McGee (1991), 213 Ill. App. 3d 458, 470-71; cf. People v. Mocaby (1990), 194 Ill. App. 3d 441, 448-50; People v. Ford (1987), 163 Ill. App. 3d 497, 504-05.) Thus, defendant was not entitled to an instruction on reckless conduct as a lesser included offense of first degree murder as there was insufficient evidence to conclude that the principal, Christopher Ster, acted recklessly in stabbing the victim.

Furthermore, the jury in this case returned a general verdict finding defendant guilty of first degree murder on the theory of accountability. The jury’s return of the general verdict raised a presumption that defendant was found guilty on both counts of first degree murder. (People v. Thompkins (1988), 121 Ill. 2d 401, 456.) Thus, the jury implicitly found that the State sustained its burden of proving defendant had the specific intent to promote first degree murder and, also, that there was sufficient evidence to find the principal, Christopher Ster, intended to kill or do great bodily harm to the victim (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), which requires the mental state of intent (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 4), or that Ster killed the victim while attempting to commit the forcible felony of robbery (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3)), which requires no mental state other than to commit the forcible felony.

Even if we assume arguendo that reckless conduct is a lesser included offense of first degree murder, it could only have applied to the intentional murder count. The offender’s mental state is not at issue in felony murder. Consequently, any error which may have occurred by refusing the reckless conduct instruction could only be attributed to the intentional murder count. Nevertheless, any such error was harmless since a reckless conduct instruction was not factually available on the felony murder charge. Thus, we determine the jury was properly instructed on first degree murder and not reckless conduct because the record is completely devoid of any evidence that the principal, Christopher Ster, committed the offense wantonly. Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.

Moreover, as stated in People v. O’Neil (1990), 194 Ill. App. 3d 79, 91, “the offenses of [first degree] murder and reckless conduct require mutually exclusive mental states.” Thus, the same evidence of the principal’s conduct does not establish, separately, the requisite mental states. See O’Neil, 194 Ill. App. 3d at 91.

For the foregoing reasons, we find that the trial court did not abuse its discretion in denying the instruction on reckless conduct tendered by the defense. Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN P. PAVLOVSKIS, Defendant-Appellant.
    Second District
    No. 2—90—1157
    Opinion filed June 10, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, John Pavlovskis, appeals from his conviction and sentence of 50 years’ imprisonment for the crime of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)), which was ordered to run consecutively to his sentence of 10 years’ imprisonment for the crime of aggravated kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 2(a)(1)). Defendant raises the issues of whether a therapist may supply evidence concerning the psychological impact of the crime upon the victim when section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 1406) provides only the victim or her family may supply the statement; and whether the therapist in the present cause was qualified to provide the victim impact evidence.

Defendant pleaded guilty to the above crimes. The prosecutor read a factual basis for the plea. The victim, a nine-year-old girl, was walking home with her sister and a friend in Janesville, Wisconsin. Defendant was standing near a car. He told the victim that he was a police officer and that he wanted her to help him find a little girl whose picture he displayed. He grabbed her by the head and forced her into the car. He drove to a liquor store and put her in the trunk of the car.

From Wisconsin defendant motored into Winnebago County, Illinois, where he drove to a rural field and the car became stuck in mud. After he made her push the car out of the mud, he drove to a store where he bought pop and allowed her to call home, but the phone line was busy. He then drove to another field where he sexually penetrated her vagina and anus. They drove to another field where he again penetrated her vagina and anus. After further driving, the victim fell asleep, but was awakened by defendant attempting to make her perform fellatio. Defendant then drove her to her home in Wisconsin.

At the sentencing hearing, the State introduced Pat GrahamToohey as its only witness. She was the educational services supervisor for Family Advocate, Inc., an agency funded by the United Way to provide therapy to abused children and their families. She had 13 years’ experience there and was responsible for the initial intake of all victims, training of new staff, supervision of four master level therapists and coordinating the interview rooms. The agency provided counseling at the time of the immediate crisis and also long-term counseling for victims who need more help resolving the effects of abuse. She herself had performed both crisis intervention work and long-term counseling since 1985. She had worked with over 750 children in a variety of capacities. She had a college degree in human relations and attended numerous seminars and workshops regarding child sexual victimization.

The prosecutor asked Pat Graham-Toohey about the negative effects of sexual abuse and assault. When defense counsel objected that she had not been qualified as an expert, the trial court allowed her to answer because she had practical experience. She responded that victims frequently feel hurt, damaged or different as a result of the assault. They feel that they have lost control over their bodies and of their environment. They feel helplessness and anger in many cases.

Graham-Toohey interviewed the victim in a one-on-one relation in eight-hour or longer sessions. Graham-Toohey also talked with the victim’s mother via telephone. Graham-Toohey prepared a victim impact statement based in part on her personal contact with the victim, the medical report and a report made by a clinical psychologist, Dr. Michael Michalik. He was a psychologist in Rockford with experience in assessing victims of sexual assault. The medical report and Dr. Michalik’s evaluation were admitted into evidence.

Graham-Toohey described her interview with the victim. The victim was initially cooperative, but when they traced the events of the day of the occurrence, she started to tremble. Her eyes started to tear, and she pulled her legs up to her chest and her arms around her body. Her voice became barely audible. She could not control her trembling.

At later sessions, the victim told Graham-Toohey that she was afraid to go outside her house. She was afraid to go to bed and found it hard to fall asleep. She was afraid of cars similar to defendant’s and of men who resembled him. She felt her body was hurt or damaged from the intrusiveness of the assaults. She found it hard to look in a mirror because she felt that other people could tell just by looking at her that something was wrong with her. Based on defense counsel’s objection, the trial court prohibited Graham-Toohey from testifying about whether these problems related to an emotional disorder; since she was not an expert, she could not make a diagnosis. However, the court permitted her to testify that the victim’s behavior was consistent with Dr. Michalik’s diagnosis.

At later sessions, Graham-Toohey worked with the victim to help her face the horror and terror she felt even though the victim was afraid to face her emotions. The victim told Graham-Toohey how much pain she felt and that she had never been so afraid as she had during the offense. She began to tremble and to get tearful again. During the kidnapping, she concentrated on pleasant memories of her past and the details of the car.

On cross-examination, Graham-Toohey admitted that the victim had never used the words “damaged,” “horror,” “terror,” or “incredible.” These words came from Graham-Toohey’s subjective opinion of what the victim felt. She realized that, to some degree, subjective opinions should not influence her work. Graham-Toohey did not study the area of child abuse in college or take graduate level courses in it. Her training arose from going to seminars, working with 750 victims over 13 years, and reading books. She was not certified by any governmental agency, but she knew of no available tests to show that she was qualified. Other people could do the work without formalized training. Dr. Michalik frequently referred victims to the Family Advocate for treatment. Although he had a doctorate degree, she said his qualifications did not exceed hers because he was only a clinical psychologist while her experience was in the field of child sexual abuse. She considered his report when she wrote the victim impact statement.

On redirect examination, Graham-Toohey explained that she used the words “terror” and “horror” because the victim had a limited vocabulary. Graham-Toohey observed those traits in the victim’s demeanor as evidenced by the trembling. Family Advocate was licensed.

Defendant’s former fiancee and another friend testified in mitigation for defendant, especially in regard to his alcohol problem. Following the allocution and the arguments of counsel, the trial court sentenced defendant to 50 years’ imprisonment for the aggravated sexual assault and 10 years’ imprisonment for the kidnapping. The trial court stated it considered the presentence report, the arguments, the statutes, the allocution, the cruelty of the offense itself, the emotional impact upon the victim, a 25-year-old conviction, the alcohol problem and the threat to society which defendant represented.

The victim impact statement was attached to the presentence report as an addendum. It shows a few differences from the psychological evaluation prepared by Dr. Michalik. The evaluation noted that the victim was feeling safe when she was home. She was trying to minimize the experience. She was affected with low self-esteem and a moderate distortion of cognitive functions. She was very guarded and had a suppression of affect frequently seen in children who had experienced a major emotional trauma. Dr. Michalik was surprised that her outlook on life was quite optimistic. His diagnosis of her was post-traumatic stress disorder. Dr. Michalik recommended counseling through Family Advocate to help her work through her negative feelings.

The victim impact statement written by Pat Graham-Toohey described the victim as being extremely fearful of being alone. She was afraid to play outside with friends. On a family camping trip, the rural scenes reminded her of the abduction. Most of the items in the report were the same as those items repeated in Graham-Toohey’s testimony. The report notes the findings of Dr. Michalik’s evaluation in several points. However, it also states that “during the course of her development and maturation, the girl can be expected to experience varying levels of terror and helplessness, body integrity concerns, and rage stemming from the trauma inflicted upon her.” This last statement was quoted by the trial court when it discussed the reasons for the lengthy sentence.

Defendant contends that the trial court should not have considered the victim impact statement because it was not written by a person authorized by the statutes. Section 6 of the Act provides that where a victim of a violent crime is present in the courtroom at the time of sentencing, she, upon her request, shall have the right to address the court regarding the impact which the defendant’s criminal conduct has had upon her. If the victim chooses to exercise this right, “the impact statement must have been prepared in writing in conjunction with the Office of the State’s Attorney prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing.” (Ill. Rev. Stat. 1989, ch. 38, par. 1406.) Section 3 of the Act defines “victim” as the actual person who suffered the injury as well as the parents or siblings of a victim who is physically or mentally incapable of exercising her rights. (Ill. Rev. Stat. 1989, ch. 38, par. 1403(a).) Section 3 of the Bill of Rights for Children (Ill. Rev. Stat. 1989, ch. 38, par. 1353) provides that, where the victim is a child, the parents or guardians shall have the right to address the court regarding victim impact.

In addition to those statutory provisions, section 5 — 4—1(a)(6) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 4—1(a)(6)) directs the trial court to afford the victim the opportunity to make a statement concerning the impact of the crime provided that the statement is prepared in writing in conjunction with the State’s Attorney prior to the hearing. The trial court should also consider the presentence report (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 4—1(a)(2)), which should set forth the effect the offense had upon the victim (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(a)(3)).

Defendant notes that no testimony or written statements of the nine-year-old victim or her parents were either incorporated into the statement or produced at the hearing. Instead, an employee of Family Advocate, Inc., with no formal training presented her own assessment of the effect of the assault upon the victim. Defendant contends that Graham-Toohey was neither authorized nor qualified to present the evidence. Also, defendant contends that even if Graham-Toohey’s assessment could be included in the presentence report, she was not authorized to testify at the hearing.

The State first argues that the issue is waived because trial counsel did not specifically raise it during his motion to reconsider the sentence. Counsel did, however, state in his motion for reconsideration that he wanted to reiterate the arguments he made at the sentencing hearing. In light of the extensive arguments made at the sentencing hearing, the timely objections to the testimony and the written statement (cf. People v. Israel (1989), 181 Ill. App. 3d 851, 865 (defendant accepted victim’s psychiatrist as an expert witness); People v. Lybarger (1990), 198 Ill. App. 3d 700, 703 (defendant did not object to impact statement by victim’s therapist)), and the fact that a victim impact statement affects the fundamental fairness of the hearing (People v. Phillips (1989), 127 Ill. 2d 499, 536), we may relax the waiver rule and review the matter under the plain error doctrine (127 Ill. 2d at 536).

Victim impact statements are admissible during the sentencing phase of a criminal trial. (Payne v. Tennessee (1991), 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597; People v. Felella (1989), 131 Ill. 2d 525, 536.) The impact evidence may also be introduced in the presentence report. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(a)(3); People v. Tennin (1987), 162 Ill. App. 3d 520, 527.) The evidence should be relevant and reliable to be admitted. (People v. LaPointe (1981), 88 Ill. 2d 482, 494-96; People v. Howard (1991), 147 Ill. 2d 103, 158; People v. Spears (1991), 221 Ill. App. 3d 430, 437; Tennin, 162 Ill. App. 3d at 527.) The foreseeable consequences of a defendant’s actions upon a victim and her family are relevant to the sentencing determination. People v. Hernandez (1990), 204 Ill. App. 3d 732, 746-47.

Section 5 — 3—2 of the Code requires that a presentence report set forth the effect of an offense upon the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(a)(3); People v. Bachman (1981), 92 Ill. App. 3d 419, 424-25.) In addition, the trial court must consider as a factor in aggravation whether the defendant’s conduct caused or threatened serious harm. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1).) Psychological harm caused by a child molester is a proper consideration in aggravation. (People v. Fisher (1985), 135 Ill. App. 3d 502, 506.) Emotional harm to minors from sexual abuse is nearly inevitable. Scudder v. Hanover Insurance Co. (1990), 201 Ill. App. 3d 921, 929.

Thus, Graham-Toohey could testify concerning aggravation and mitigation. While she was not qualified to make a statement pursuant to section 5 — 4—1(a)(6), she could still testify concerning the other matters. (See People v. Mott (1990), 204 Ill. App. 3d 573, 579.) Section 5 — 4—1(a)(6) of the Code and section 6 of the Act are inapplicable to the situation where the therapist is called as a "witness by the State to present evidence in aggravation. (People v. Estrella (1988), 170 Ill. App. 3d 292, 295.) These statutory sections give the victim a right to be heard on her own motion rather than on the motion of the State. (170 Ill. App. 3d at 296-97.) Thus, because the victim was not making an impact statement on her own pursuant to the Act, the restrictions of section 6 of the Act did not apply. 170 Ill. App. 3d at 297.

We also note here that some procedural safeguards were present before the trial court. Graham-Toohey testified with regard to a written report made available to defendant. She was available for extensive cross-examination. Some of Graham-Toohey’s testimony concerned facts which she herself observed, especially how the victim would draw herself into a defensive posture, cry and tremble when her attention was drawn to the scene of the crime, and would qualify as lay testimony. (See People v. McDarrah (1988), 175 Ill. App. 3d 284, 293.) It is unlikely that a nine-year-old girl could provide the testimony showing the true extent of her psychological trauma. (Cf. Israel, 181 Ill. App. 3d at 865 (eight-year-old girl emotionally unable to testify regarding impact).) The matter could be, and in the case before us was, appropriately addressed by an expert witness rather than the victim herself.

The next issue is whether Graham-Toohey was qualified to present the evidence regarding the future impact on the victim. We find no abuse of the trial court’s discretion in its determination that she gained enough practical experience from treating 750 abused children that she could predict the harm that would be suffered by the victim in the cause before the court. (See People v. Server (1986), 148 Ill. App. 3d 888, 897-99.) No less than formal academic training, practical experience in a field may serve to qualify a witness as an expert on a particular subject. (Schaffner v. Chicago & Northwestern Transportation Co. (1989), 129 Ill. 2d 1, 37.) We also note that the trial court did not allow Graham-Toohey to overstep the bounds of her expertise. (Cf. People v. Bradley (1988), 172 Ill. App. 3d 545, 550-51 (expert allowed to describe symptoms of child abuse victims but not the existence or nature of a syndrome).) The matter of the psychological diagnosis was left to the psychologist’s report.

Defendant urges that the sentencing hearing not be converted into a trial on the question of victim impact, which is not a stated objective of the Unified Code of Corrections. Defendant argues that the Code focuses on the protection of society and the rehabilitation of offenders (see Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1—2) rather than exacting a particularized form of revenge for an individual victim of a crime. However, another purpose of the Code is to prescribe sanctions proportionate to the seriousness of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1—2(a).) With the assault of a child, the testimony of an expert may be necessary to explain the significance and extent of the harm to a child where the commission of the crime is otherwise described in mere technical and sanitized words and the victim is unable to articulate the harm or is unaware of the future longevity of her trauma.

Moreover, the Supreme Court in Payne addressed defendant’s concern that the sentencing not degenerate into a “mini-trial” on the victim’s character. (Payne, 501 U.S. at 823, 115 L. Ed. 2d at 734, 111 S. Ct. at 2607.) Trial courts are charged with the duty of weighing all the factors in mitigation and aggravation (see Payne, 501 U.S. at 822, 115 L. Ed. 2d at 733, 111 S. Ct at 2606; Phillips, 127 Ill. 2d at 535-37; La Pointe, 88 Ill. 2d at 493), of which the victim impact is only an additional factor (Payne, 501 U.S. at 824-25, 115 L. Ed. 2d at 735, 111 S. Ct. at 2608; People v. Johnson (1992), 149 Ill. 2d 118, 153). By considering all the factors, the trial court can prevent the proceedings from becoming a mini-trial concerning the victim’s character; trial courts can competently exclude irrelevant and inflammatory evidence. (See Payne, 501 U.S. at 831, 115 L. Ed. 2d at 739, 111 S. Ct. at 2612 (O’Connor, J., concurring); Hernandez, 204 Ill. App. 3d at 747.) Thus, we find no error in allowing a trial court to consider the testimony of an expert witness concerning the impact on the victim.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILFORD MACKEY, Defendant-Appellant.
    Second District
    No. 2—90—0619
    Opinion filed June 3, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Wilford Mackey, appeals from the circuit court’s order entered May 23, 1990, dismissing his second petition for post-conviction relief. In that order, the court found that defendant waived any claim not raised in his prior petition and that the denial of his original petition was res judicata as to any claim raised there. We affirm the judgment of the circuit court.

In December 1982, defendant and a codefendant were charged by indictment with murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(3)). The codefendant implicated defendant, who then made a confession regarding his participation in the murder and led police to the recovery of a knife alleged to have been used in the crime. Prior to trial, defendant moved to suppress his statement and the physical evidence, and this motion was denied.

On July 28, 1983, defendant pleaded guilty to the offense after having been extensively admonished by the trial court of his rights and of the possible sentences, including a term of 20 to 40 years, an extended term of 40 to 80 years, or life imprisonment. The State presented a detailed factual basis for the plea, and the plea was accepted. On October 26, 1983, the court again meticulously admonished defendant of his rights and the possible sentences. The court ascertained that defendant understood the waiver of his rights and the circumstances and consequences of his plea. Defendant persisted in his plea. The State again presented a detailed factual basis. After vacating the earlier plea, the court accepted defendant’s second guilty plea after being satisfied that defendant understood its consequences. A judgment of conviction was entered.

At the sentencing hearing on November 21, 1983, defense counsel acknowledged that defendant was a participant in the crime, pleaded for leniency and sought a minimum sentence. The court again reviewed the sentencing alternatives and asked defendant if he wished to make any statement; he declined to do so. The court sentenced defendant to a term of 50 years’ imprisonment. On December 12, 1983, defendant filed his initial motion to withdraw his plea or to reduce his sentence. In March 1984, after the court appointed substitute counsel to avoid any conflict of interest, defendant filed a subsequent motion to withdraw his guilty plea or to reduce the sentence.

In his motion to withdraw his plea, defendant argued that he did not understand the admonishments at the guilty plea proceedings, that his counsel misled him and misrepresented the sentence he would receive by telling him that he could receive a term of 15 to 20 years, and that his sentence was excessive and disproportionate. Sometime in March, defendant also addressed a handwritten letter to the trial court complaining that his lawyer misled him and that codefendant received a lesser sentence of 40 years’ imprisonment. Defendant also acknowledged that he was at the scene of the crime and stabbed the victim, but did not kill him.

Defendant’s original counsel filed an affidavit essentially denying defendant’s allegations that she had misled him as to the sentence he could receive. She stated that she had advised him that he could receive a sentence up to and including life imprisonment, although such a term was unlikely. On May 9, 1984, after hearing the testimony of defendant, the contrary testimony of his original counsel and the arguments of substitute counsel, the trial court denied defendant’s motion.

Defendant appealed the denial of his motion to this court and, after noting the arguments raised in his motion, argued only that his sentence was excessive and disparate. This court affirmed the trial court’s judgment in People v. Mackey (1985), 135 Ill. App. 3d 1164 (unpublished order under Supreme Court Rule 23).

On November 12, 1985, defendant filed his first pro se petition for post-conviction relief (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.). Defendant again argued that his guilty plea was not voluntarily and knowingly made because his trial attorney told him that the State had agreed that he should get only a 15- to 20-year term. He also alleged that he had been coerced into pleading guilty because his attorney told him that he could receive a death sentence or life imprisonment. Newly appointed counsel amended the petition to a disparate sentencing claim and alleged that defendant should not have received an extended term. The trial court granted the State’s motion to deny the petition on March 25, 1986. The trial court denied defendant’s petition on the basis of res judicata and waiver.

Defendant again appealed, and this court affirmed the judgment in another unpublished order. (People v. Mackey (1987), 156 Ill. App. 3d 1172 (unpublished order under Supreme Court Rule 23).) In that order, after reviewing the record and finding that there was no issue meriting further appeal, this court also granted appellate counsel’s Anders motion to withdraw.

On January 18, 1990, defendant filed his second petition for post-conviction relief, arguing that he received the ineffective assistance of counsel because his trial attorney allegedly coerced him to plead guilty, failed to present an alibi defense, and failed to present properly his motion to withdraw his guilty plea. Defendant also added that he did not receive the effective assistance of appellate counsel in his direct appeal. New counsel was appointed to represent defendant on his second post-conviction petition. Counsel informed the trial court that he had reviewed the file in the case in detail, had read the transcripts, and had conducted research on the matter. Counsel concluded that he was in a position analogous to that of an attorney who files an Anders motion to withdraw from the appeal of a case, and he could find no meritorious basis upon which to oppose the State’s motion to dismiss the petition. Defense counsel acknowledged that he had not spoken with defendant.

The court noted that it too had carefully reviewed the entire file, and the court agreed with defense counsel’s assessment of the case. The court observed that, with the exception of the newly raised issue of an alibi defense, defendant’s claims had been presented and adjudicated before. However, the court also took notice that the record included a letter dated March 2, 1984, written to the court in which defendant admitted that he was a participant in the crime. The court concluded that defendant’s belated alibi defense was a travesty and that defendant had no meritorious claim that he had not already had the opportunity to present. The court dismissed the petition, and this appeal followed.

On appeal, defendant raises the sole issue that the attorney appointed to assist him on his second post-conviction petition failed to comply with Supreme Court Rule 651(c) and that his representation was ineffective since counsel failed to consult with him, as required by the rule, to ascertain defendant’s contentions regarding his deprivation of any constitutional right. (See 134 Ill. 2d 651(c).) Defendant relies on this court’s decision in People v. Alexander (1990), 197 Ill. App. 3d 571. In Alexander, defense counsel’s failure to comply fully with the requirements of the rule was deemed inadequate representation and resulted in the reversal of the trial court’s order dismissing defendant’s post-conviction petition.

Relying on People v. Free (1988), 122 Ill. 2d 367, the State responds that, where a defendant has been given a complete opportunity to present his claim of a deprivation of his constitutional rights, he is not entitled to bring a second post-conviction petition. We agree. In Free, the supreme court pointed out that the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122 — 1 through 122 — 8) contemplates only one post-conviction petition and any claim of a substantial denial of constitutional rights not raised in the original or in an amended petition is waived. Therefore, a ruling on a post-conviction petition has res judicata effect with respect to all claims that were raised or could have been raised in the initial petition. (Free, 122 Ill. 2d at 375-76.) A court may consider a successive post-conviction petition where the original proceeding was deficient in some fundamental way. However, where a defendant has had one complete opportunity to show a substantial denial of his constitutional rights, the second petition may be properly dismissed. Free, 122 Ill. 2d at 375-76, citing People v. Logan (1978), 72 Ill. 2d 358, 370.

As in Free, defendant makes no serious attempt to justify our consideration of his second post-conviction petition. Indeed, he does not argue the merits of his potential claims, but, rather, he argues that a violation of Rule 651(c) requires a reversal of the dismissal and a remand for further proceedings. Defendant’s claims turn on whether his guilty plea was voluntarily and knowingly made and whether he was afforded the effective assistance of his trial counsel in entering his plea. It is clear from the record that defendant was properly and thoroughly admonished of his rights and that he acknowledged that he understood the consequences of his plea.

Prior to the filing of his second post-conviction petition, defendant had at least four complete opportunities to present his claims on this basis: twice in the trial court and twice on appeal. In each instance, defendant’s claims were found to be without merit. We have again carefully reviewed the record. There was no basis for defendant to pursue his claims in a second post-conviction petition. Defendant has not demonstrated that the first post-conviction proceeding was fundamentally deficient. The ruling on the initial post-conviction petition, which this court affirmed, has res judicata effect with respect to all claims that were raised or could have been raised; any claim which could have been raised but was not raised in the original post-conviction proceeding is waived. Therefore, it is of no avail to defendant to argue that counsel who represented him on the second post-conviction petition did not comply with the requirements of Rule 651(c).

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and DUNN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON FORREST, Defendant-Appellant.
    Second District
    Nos. 2—90—1082, 2—90—1086 cons.
    Opinion filed June 10, 1992.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Marshall M. Stevens, and Martin P. Moltz, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

In August 1990, defendant, Jason Forrest, entered a guilty plea to the offense of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) and theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1). He was sentenced to concurrent terms of seven years for the burglary conviction and five years for the theft conviction. The sole issue presented on this appeal is whether defendant is entitled to a new sentencing hearing because the trial judge considered a prior adjudication of delinquency which was later reversed on appeal. We affirm.

In April 1990, defendant was charged by complaint with the offense of possession of burglary tools (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 2(a)), possession of stolen property (Ill. Rev. Stat. 1989, ch. 38, par. 15 — 6) and residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)). An indictment relating to the residential burglary charge was subsequently filed. Two additional charges of residential burglary were filed against defendant.

On July 10, 1990, the parties stated in court that a plea negotiation had been agreed upon. Defendant would plead guilty to a reduced charge of burglary in one case and to a reduced charge of felony theft in another. In return, the State agreed that no consecutive or extended term would be sought and that a remaining charge would be dismissed. The trial judge admonished defendant pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402) of the rights he was waiving by pleading guilty. The court also found a factual basis for defendant’s guilty pleas which established that defendant committed the offense of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1) by taking over $300 worth of jewelry and coins from Kent Gallimore and that he committed the offense of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) by entering the home of Glen Longshore in Lake Villa without authority and with intent to commit a theft.

At the sentencing hearing held on August 21, 1990, the court considered defendant’s presentence investigation report. Defendant was 17 years old, and the two convictions at issue were his only convictions as an adult. The presentence report listed seven incidents on defendant’s juvenile record. The most recent adjudication of delinquency was for a probation violation which resulted in his commitment to the Juvenile Division of the Department of Corrections. That order of adjudication and commitment was later reversed on appeal by this court because defendant’s parents were not notified of the petition to revoke his probation. In re J.A.F. (2d Dist. April 15, 1991), No. 2 — 89—0451 (unpublished order under Supreme Court Rule 23).

The trial court in the instant case imposed concurrent terms of seven years’ imprisonment for defendant’s burglary conviction and five years for his theft conviction. His motion to reconsider his sentence was heard on September 20, 1990, and denied. Defendant filed timely notices of appeal to his convictions for burglary and theft, which this court ordered to be consolidated on March 7, 1991.

Defendant argues on appeal that he is entitled to a new sentencing hearing because the trial judge considered the prior adjudication of delinquency which we later reversed on appeal. Defendant argues that the prior juvenile adjudication constitutes the most recent and one of the most serious components of his criminal record presented to and considered by the trial court. He contends that since that particular adjudication was reversed, his juvenile record is now less serious than that which was before the trial court at sentencing. As authority for the proposition that he is entitled to reconsideration of his sentence since the trial court considered the prior adjudication which was later reversed, defendant cites People v. Coty (1982), 105 Ill. App. 3d 398, and People v. Reynolds (1982), 105 Ill. App. 3d 698.

The State responds with three arguments, one of which we find dispositive. The State argues that even if the trial judge incorrectly considered an improper aggravating fact, the error is harmless where it is clear from the record that the weight placed upon the improperly considered factor was so insignificant that it did not lead to a greater sentence, citing People v. Bourke (1983), 96 Ill. 2d 327, 332-33.

Our review of the record leads us to agree with the State that defendant’s lengthy juvenile record renders whatever reliance the trial court placed on his most recent juvenile adjudication, which we later reversed, to be harmless error. We are cognizant of the fact that defendant received maximum terms for both the burglary conviction, seven years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(5) (for a Class 2 felony, the sentence shall be not less than three years and not more than seven years)), and the theft conviction, five years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(6) (for a Class 3 felony, the sentence shall be not less than two years and not more than five years)). However, defendant, almost 18 years of age at the time of sentencing in 1990, has a lengthy juvenile record dating back to 1984 and covering three States.

In August 1984, when defendant was almost 12, he was arrested in Silver Lake, Wisconsin, for criminal damage to property and placed on probation. In December 1985, when defendant was 13, he was arrested in Pleasant Prairie, Wisconsin, for theft from an automobile and again placed on supervision. Four months later, defendant was arrested in Kenosha County, Wisconsin, for his involvement in operating a motor vehicle without the owner’s consent, impersonating a police officer and making false alarms. Defendant was thereafter committed to the Wisconsin Department of Corrections. In January 1987, defendant was arrested in Lake County, Illinois, for criminal damage to property, residential burglary and theft. He was placed on juvenile probation until June 1988. In April 1987, defendant was arrested in Florida on five counts of burglary and one count of grand theft. After violating his subsequent juvenile probation, defendant was committed to the Florida Department of Corrections. In July 1987, defendant was arrested in Elk Grove, Illinois, for criminal damage to property, for which he received a 30-day juvenile detention. Finally, in September 1987, defendant was arrested in Round Lake Beach, Illinois, for criminal trespass to a motor vehicle and disorderly conduct. On December 7, 1987, defendant was placed on 20 months of juvenile probation and also ordered into residential placement at the Ladd Lake juvenile treatment program. In March 1989, defendant was found to have violated his probation by leaving the Ladd Lake facility in December 1987 and was committed to the Illinois Department of Corrections.

Our reversal of the latter juvenile adjudication, because defendant’s parents were not notified of the petition to revoke his probation (In re J.A.F. (2d Dist. April 15, 1991) No. 2 — 89—0451 (unpublished order under Supreme Court Rule 23)), is what defendant bases his argument for a new sentencing hearing on. Given defendant’s six other encounters with the juvenile justice system, we determine that any reliance by the trial judge on defendant’s last adjudication was harmless error. We also note that we reversed that last adjudication on technical grounds, rather than on the basis of the weight of the evidence. We conclude that there is no reason to remand for a new sentencing hearing.

Cases invoked by defendant in support of his argument are inapposite to our conclusion. In both People v. Coty (1982), 105 Ill. App. 3d 398, and People v. Reynolds (1982), 105 Ill. App. 3d 698, the court remanded the case for a new sentencing hearing because the trial judge considered a prior conviction which was later reversed. (Coty, 105 Ill. App. 3d at 400; Reynolds, 105 Ill. App. 3d at 705.) The State correctly notes that in People v. Jackson (1990), 200 Ill. App. 3d 92, this court rejected earlier case law requiring a remand whenever a trial judge relied on evidence of an offense for which defendant was subsequently acquitted. (Jackson, 200 Ill. App. 3d at 97-99.) Jackson therefore distinguishes the two cases relied on by defendant.

For the above reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

DUNN and DOYLE, JJ., concur.