text:
    THE COUNTY OF MENARD, Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—90—0024
    Opinion filed September 27, 1990.
    Rehearing denied October 29, 1990.

      Carol Pope, State’s Attorney, of Petersburg, and Andrew A. Peterson and Timothy D. Speedy, both of Jackson, Lewis, Schnitzler & Krupman, of White Plains, New York, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Gilbert Feldman, of Cornfield & Feldman, of Chicago, for respondent American Federation of State, County, and Municipal Employees.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Respondent County of Menard (County) challenges the decision of the Illinois State Labor Relations Board (ISLRB or Labor Board) (County of Menard, 6 Pub. Employee Rep. (Ill.) par. 2006, No. S—CA—87—46 (Illinois State Labor Relations Board, Dec. 11, 1989)) finding the County violated sections 10(a)(1) and 10(a)(2) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(2)) by discharging Donald Withered, a maintenance employee at the County’s Sunny Acres Nursing Home (nursing home). The County’s previous appeal in this case challenged the September 23, 1987, decision of the Labor Board, which found the County had violated section 10(a)(2) of the Act by discharging Withered. In County of Menard v. Illinois State Labor Relations Board (1988), 177 Id. App. 3d 139, 531 N.E.2d 1080, we reversed and remanded the cause to the Labor Board for application of the Wright Line test to the facts found below. The County now contends: (1) it was prejudicial error for the Labor Board not to consider evidence presented at the supplemental hearing; and (2) the County met its burden under the Wright Line test and the Labor Board’s decision was against the manifest weight of the evidence. We affirm.

PROCEDURAL BACKGROUND

On August 21, 1986, Witherell was dismissed from his position at the nursing home by the Menard County Board (County Board), which has the exclusive authority to hire and fire employees. On September 5, 1986, the American Federation of State, County, and Municipal Employees (AFSCME or union) filed charges with the Labor Board alleging Witherell was discharged due to his union activity. The Labor Board’s Executive Director issued a complaint December 24, 1986, alleging violations of sections 10(a)(1) and (a)(2) of the Act. Hearings followed and the hearing officer issued a recommended decision March 24, 1987. (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2043, No. S—CA—87—46 (Illinois State Labor Relations Board, June 1, 1987 (Hearing Officer’s decision of March 24, 1987, appended)).) The hearing officer concluded since the County Board, which had the exclusive authority to hire and fire employees, possessed no antiunion motivation, Witherell was not unlawfully fired. The Labor Board adopted the hearing officer’s factual findings but reversed his conclusions of law. The cause was remanded to the hearing officer to determine whether the nursing home’s administrator, Warren Dick, possessed illegal motivation in bringing the charges against Witherell, which resulted in Witherell’s termination by the County Board. See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2043, No. S—CA—87—46 (Illinois State Labor Relations Board, June 1,1987).

The hearing officer issued a supplemental recommended decision and order July 8, 1987, finding Dick was motivated by antiunion hostility and the discharge was based on Witherell’s protected activity, resulting in violations of the Act. (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S—CA—87—46 (Illinois State Labor Relations Board, Sept. 23, 1987 (Hearing Officer’s supplemental decision of July 8, 1987, appended)).) The Labor Board adopted the hearing officer’s supplemental decision on September 23, 1987; however, the Labor Board found that several findings of antiunion hostility made by the hearing officer in the supplemental decision were not supported by the record. The Labor Board concluded enough evidence of antiunion motivation existed in the record, however, to support the hearing officer’s conclusion. See County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S—CA—87—46 (Illinois State Labor Relations Board, Sept. 23, 1987).

Pursuant to the County’s petition for review, we reversed and remanded, instructing the Labor Board to apply the test set forth in Wright Line, a Division of Wright Line, Inc. (1980), 251 N.L.R.B. 1083, 105 L.R.R.M. 1169, instead of the test in State of Illinois (De partments of Central Management Services & Corrections), 1 Pub. Employee Rep. (Ill.) par. 2020, No. S—CA—54 (Illinois State Labor Relations Board, Sept. 13, 1985), which the Labor Board had previously applied. In our opinion, we stated “we reverse and remand this cause to the ISLRB for application of the Wright Line test to the facts found below.” Menard, 177 Ill. App. 3d at 152, 531 N.E.2d at 1089.

On October 20, 1989, the Labor Board issued an order determining it was necessary to conduct a supplemental hearing in this matter. The matter was assigned to another hearing officer, who found the court opinion unclear as to whether the case needed to be reopened for further evidence. The hearing officer scheduled a supplemental hearing and instructed the parties they would be afforded the opportunity to present further evidence. The parties would be allowed to argue the admissibility of the evidence received in their briefs. The hearing officer stated he would make a decision regarding the admissibility of the evidence in his recommendation to the Labor Board. On March 17, 1989, AFSCME petitioned the appellate court to clarify the terms of the remand. This motion was denied on March 27, 1989.

A supplemental hearing was held on April 25, 1989. At this hearing, Warren Dick and Pamela S. Behrans testified for the County. On August 17, 1989, the hearing officer issued his recommended decision and order. (County of Menard, 6 Pub. Employee Rep. (Ill.) par. 2006, No. S—CA—87—46 (Illinois State Labor Relations Board, Dec. 11, 1989 (Hearing Officer’s decision pursuant to appellate remand of Aug. 17, 1989, appended)).) The hearing officer adopted the factual findings of the Labor Board’s September 23, 1987, decision (County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2058, No. S—CA—87—46 (Illinois State Labor Relations Board, Sept. 23, 1987)) and recommended the evidence offered during the supplemental hearing not be considered in the disposition. He cited the absence of such a direction in the court’s previous decision. The hearing officer concluded the County had met its burden under the Wright Line test and, accordingly, he recommended the complaint be dismissed. On December 11, 1989, the Labor Board issued its supplemental decision and order in which it adopted the hearing officer’s findings of fact and his conclusion rejecting the supplemental evidence. However, the Labor Board rejected the hearing officer’s conclusion of law and found, under the Wright Line test, the County had violated sections 10(a)(1) and 10(a)(2) of the Act. The County has now appealed this ruling, arguing (1) the ISLRB erred in not considering the remand; (2) the ISLRB did not comply with the order on remand, and its decision is not supported by the record; and (3) the County met its burden under Wright Line, so the ISLRB’s finding the employee’s discharge constituted an unfair labor practice should be reversed.

ANALYSIS

With respect to the first issue, the Labor Board did not err in excluding the evidence offered at the supplemental hearing. It is generally held when a reviewing court remands a cause with specific directions, they must be followed exactly; but if specific directions are not given, the trial court (or, as here, the administrative agency) is required to examine the appellate court’s opinion and determine from it what further proceedings would be proper and consistent with the opinion. John Burns Construction Co. v. Interlake, Inc. (1984), 125 Ill. App. 3d 26, 465 N.E.2d 639.

Our previous opinion stated: “[w]e reverse and remand this cause to the ISLRB for application of the Wright Line test to the facts found below.” (Emphasis added.) (Menard, 177 Ill. App. 3d at 152, 531 N.E.2d at 1089.) The plain meaning of this statement does not require the admission of additional evidence and does provide clear, specific directions for remand. The Wright Line test is such that there was no need for additional evidence.

With respect to the remaining issues raised by the County, we have considered the facts as found by the hearing officer(s) and the ISLRB. Witherell started working for the County in 1971. From 1971 until April 1980, Witherell worked in the County’s highway department. From April 1980 until August 21, 1986, Witherell worked at the nursing home. When Witherell started at the nursing home, he was given the job title of maintenance director. Warren Dick was hired in February 1982, as the nursing home administrator. As administrator, Dick was responsible for the overall financial state of the nursing home, all personnel matters at the home, and for ensuring the nursing home complied with regulations.

Witherell was on call 24 hours a day and was frequently called into the nursing home diming his scheduled time off. Because the nursing home paid no overtime, Witherell was permitted to take off compensation time for every hour of overtime he worked. Witherell performed his work with little or no supervision and generally ensured the physical and mechanical problems of the nursing home were overcome. Dick admittedly recognized this fact and, in 1983, named Witherell “Employee of the Month.” Witherell was subsequently elected “Employee of the Year” by the nursing home staff.

The first notable conflict between Dick and Witherell occurred on October 1, 1985, when Dick told Witherell he was going to have to start punching in and out on a time clock. This initial conflict preceded union activity at the nursing home. Dick had evaluated employees in light of the requirements of Garcia v. San Antonio Metropolitan Transit Authority (1985), 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005, and determined Witherell was not exempt under the Fair Labor Standards Act of 1988 (29 U.S.C. §201 et seq. (1988)) so had to be paid overtime. To effectuate this, Witherell was required to punch the time clock.

On October 3, 1985, Witherell tore up his time card and refused to punch in. On October 7, 1985, Witherell was issued a new time card, but again refused to use it. On October 8, 1985, Dick called Witherell into his office to issue him a written warning for failure to use the time clock. Witherell asked whether Dick would fire him if he failed to use the time clock. Dick said that he might. Witherell said he did not mind using the time clock, but thought he was being discriminated against because it was not required of other supervisors. Witherell then complained to Dick that he had not been consulted about a repairman’s visit that day to repair a dishwasher. Dick told Witherell it was not necessary to consult Witherell before he called a repairman. Witherell then told Dick he was going home sick because he was too nervous to work. He told Dick he was going to call some people. Dick’s secretary, Mary Raikes, witnessed this conversation, took shorthand notes, and transcribed the conversation. This was done pursuant to Dick’s request as, he testified, he had earlier been involved in an employment discrimination suit and as a result of that he now has the practice of making someone witness and transcribe “important conversations.”

The union began organizing the employees of the nursing home in October 1985. In October or November 1985 a group of employees met with Dick to discuss the union. The employees and Dick discussed pay raises and charges of employment harassment. The employees said they wanted to settle this matter without bringing in the union. Dick said there were no problems on the other two shifts and the troublemakers were all on the day shift. Dick said he thought bringing in the union was a personal vendetta against him. Dick never mentioned any names, but used the masculine pronoun when referring to the person with the vendetta against him. All employees at the meeting understood Dick to be referring to Witherell.

In February 1986, Witherell called Merle Kirby, chairman of the County Board, and asked to meet with him over lunch. Kirby assented. Witherell told Kirby the employees in the county could work out their problems without bringing in the union. Witherell told Kirby that Dick was abusing and mistreating the employees at the nursing home and all the problems could be cured if Dick was discharged. Kirby told Witherell that Dick thought only three to four employees were causing all the problems at the nursing home. Witherell said that was not true. Kirby said he would go to the nursing home and talk to the employees; however, he never did.

Also in February 1986, Dale Allen was assigned to assist Witherell. Allen had a learning disability, which made it difficult to perform complicated tasks. Witherell taught Allen to perform some of the simpler tasks, such as mowing the yard, trimming the weeds, and painting curbs. In March 1986, Allen began complaining to Dick that Witherell was harassing him because of his union preference. Dick would then call Witherell into his office and tell Witherell to stop. Witherell believed Allen complained to Dick when he assigned Allen a job which Allen thought was distasteful.

Beginning in April 1986, employees at Sunny Acres started wearing buttons either for or against the union. Witherell wore a button stating “We Care, We Count, AFSCME 111.” Dick saw Witherell wearing the button and posting union literature on the bulletin board. Between early February and the June 6, 1986, election, Witherell hosted 25 to 30 union meetings at his house. Witherell also sat with the union representative at meetings with agents of the Labor Board. Witherell was very open about his support for the union.

On May 29, 1986, Witherell was taking his 2 p.m. break with some of the housekeepers outside by the nursing home’s utility shed. After the break, Dick accused Witherell of holding a union meeting in the shed. Witherell denied he was holding a union meeting. Dick told Witherell not to hold any union meetings in the shed.

On June 4, 1986, two days before the union election, Dick came to see Witherell in the maintenance shop. Dick told Witherell he did not want Witherell working inside the building that day and that he instead wanted Witherell to work outside. When Witherell asked why, Dick responded he did not want Witherell in the building where he could “talk union.” He also told Witherell he did not want Witherell to “talk union” to the laundry supervisor on the job.

On the evening of June 5, 1986, the night before the union election, Witherell called Dan Austin, chairman of the advisory board. Witherell told Austin he had some of the employees from the nursing home at his house and wanted Austin to come speak to them. Austin refused. Witherell then stated he would bring the employees over to Austin’s house. Again, Austin refused. Witherell then told Austin if he knew what was good for him, he would get out there right away.

After speaking with Austin, Witherell then called County Board member Everett Moss. Moss came to speak with the employees. When Moss arrived, Witherell was present with the employees, as well as neighbors of Witherell, who were asked to witness the conversation. The employees told Moss that Barbara Gordon, the assistant administrator at the nursing home, had been asking them to frame Witherell’s wife, who is also employed by the nursing home, so that she would be fired. Moss promised to do something and came to the nursing home the next day to meet with Dick. Because of the election, however, he decided to take no action.

At the next advisory board meeting, held June 24, 1986, Austin told the County Board he felt Witherell had threatened him on June 5, 1986. Moss told the County Board of the employees’ complaints regarding Gordon. The County Board dismissed the employees’ complaint as absurd and instructed Dick to issue Witherell a written reprimand for his remarks to Austin. Because of prior warnings, Dick wanted to terminate him. The County Board convinced Dick that was not a good idea because of Witherell’s activity on behalf of the union. Dick met with Witherell on June 26, 1986, to give him the written reprimand. Witherell said nothing when the reprimand was issued. Once Dick gave Witherell the reprimand, Witherell sarcastically responded, “Thank you very much,” and left.

On August 4, 1986, C.T. Young, regional architect for the Illinois Department of Public Health, performed an inspection survey of the nursing home. Young inspected the premises to monitor compliance with State and Federal regulations. When Young finished his inspection, he cited the nursing home for five repeat violations of the regulations. Dick attributed the three most serious of these to Witherell. The first violation concerned the door on the housekeeping smoking lounge, which overlapped its frame by one inch and, therefore, did not close properly. The second violation concerned the doors to the sun room. Regulations required these doors be opened by 15 pounds of pressure or less; however, the doors were very difficult to open. The third and most critical violation concerned the propping open of the inside fire doors with wedges. Young threatened to force the nursing home to install a very expensive system to insure the doors automatically closed if the practice of propping open the doors with wedges was not discontinued.

Dick met with Witherell on the morning of August 4, 1986, to inform him of the deficiencies. Dick told Witherell of the problem with the doors being propped open and told him he was responsible for ensuring compliance. Withered protested, asking how he could be held responsible if he was on the roof fixing an air conditioner, or if he happened to be in Springfield that day. Dick told Withered he could spot-check the premises on the evenings and weekends. Dick then told Withered to inspect the premises and remove ad the wedges. Dick posted a memo to ad employees informing them that wedges were not to be used to prop doors open and that Withered was responsible for monitoring compliance. On August 5, 1986, Dick gave Withered notice that failure to correct ad deficiencies by an agreed upon date would result in discipline.

On August 5, 1986, Dick found a door propped open with a wedge. Dick told Withered he needed to do a better job monitoring compliance. The director of nursing found the doors to the laundry room, maintenance room, and boiler room propped open on August 7, 8, and 10, 1986. Withered had been present on each of these days. Dick gave the laundry supervisor a written warning for leaving the laundry door propped open and was going to do the same with Withered. However, Withered was terminated before Dick had an opportunity to issue the written warning.

For several years, the nursing home had problems with its sewer system. The sewage from the kitchen had clogged the sewer pipes in one of the nursing home’s five wings, the D wing. The result of this was the sewage would back up into the kitchen, laundry room, and throughout the D wing. In order to clean out the sewer, Withered had to remove the toilet from the D-l bathroom and pass an eel through the sewer pipes to break up and dislodge the clog. The sewage problem was so bad Withered was forced to dislodge a clog sometimes as often as two or three times a month. Frequently the clog was not fully dislodged and the procedure would have to be repeated more than once a day. The toilet was replaced after each time the sewage pipes were cleaned and the household staff was informed, so as to clean up the D-l bathroom.

Dick was aware of the procedure for unclogging the sewer pipes. As the eel used by Withered was not long enough to reach the clog from the clean-out in the D-wing had, Withered suggested the nursing home purchase a longer automatic eel, and that a new clean-out be installed in the D-wing had closer to where the sewer pipes clogged. Dick, however, rejected these suggestions and instructed Withered to continue to remove the clogs in the same manner.

On August 8, 1986, the director of nursing received a complaint from a resident’s family that the D-l bathroom had been out of order for a long time. When she investigated, she found a blanket on the floor with dried excrement on it, the sewage hole open, the toilet pushed under the sink with excrement on it, and excrement on the floor and baseboards. She immediately questioned her nurses and nurses’ aides about it, one of whom said the bathroom had been that way for over a month.

The director of nursing informed Dick of the condition of the D-l bathroom, and Dick performed his own investigation. Dick concluded the stool had been off the D-l bathroom for almost two months. As a result of the investigation into the D-l bathroom incident, by the end of September the housekeeping supervisor received a three-day suspension for neglecting her responsibilities and 36 nurses’ aides received verbal warnings.

On August 14, 1986, Witherell arrived at Sunny Acres at 6:45 a.m. and checked the building and grounds pursuant to his morning routine. The day before, Witherell had told Allen to mow the grass around the nursing home’s gazebo and clean up the area. Allen had mowed the grass such that clippings were strewn across the sidewalks and gazebo. Shortly after 7 a.m., Witherell told Allen the gazebo area “looks like shit,” and that if it was not cleaned out by 10 a.m. when the patients’ families started to arrive “the shit was going to hit the fan.” Allen went immediately to Dick’s office to complain about the way he had been treated. Dick had not yet arrived, so Allen waited until Dick arrived at approximately 8 a.m. Allen told Dick what Witherell had said to him. Dick’s secretary witnessed and transcribed the conversation.

Dick then called Witherell into his office. Dick confronted Witherell with Allen’s accusations and asked Witherell whether that was a proper way to talk to a subordinate. Witherell denied saying “the shit will hit the fan.” Dick advised Witherell the incident warranted a written reprimand for failure to exhibit appropriate supervisory conduct. Witherell stated Allen complained to Dick whenever he did not want to do a job. Dick concluded the conversation by stating Witherell should use corrective discipline with Allen. Dick then asked Witherell about the stool in the D-l bathroom. Dick told Witherell he was negligent in leaving the stool off for such a long time. Witherell said Dick was aware of the problem in the D-l bathroom. Dick asked Witherell how long the stool had been off and Witherell replied it had been off for approximately one day, sometimes longer. Dick then expressed dissatisfaction with a manner in which Witherell handled the D-l bathroom incident. Dick’s secretary was present to witness and transcribe this conversation. Dick took no disciplinary action against Witherell at this time, but continued to investigate.

Withered went back to the maintenance shop and found Aden there. Aden asked what he should do next. Withered told him to finish painting the curbs, which he had started the day before. Aden again went directly to Dick. Aden told Dick Withered had instructed him to paint the curb and he did not know what paint to use. Dick accompanied Allen back to the maintenance shop to confront Withered. When he arrived at the maintenance shop, Dick asked Withered for the paint. Withered told Allen it was in the cabinet. Aden then said that he needed a pan and brush. Withered asked Aden where he had left his pan and brush from the time before. Aden said they were in the shed. Withered told Aden to go get them. Dick told Withered to accompany him and Aden out to the shed to get Aden’s supplies.

As they were walking toward the shed, Withered lost his temper and said, “I’ve about had it with you.” Dick said, “What are you going to do about it?” Withered responded, “I’d like to meet you in front of the building some night after work.” Dick said, “Don’t get cocky with me, bucko.” Withered said, “Just walk away, walk away.” Dick then told Withered he was out of line. Withered stated, “I would like to meet you on a country road and flatten you.” Dick said, “So you’re going to wait on a country road for me?” Withered responded, “Raise a hand, just raise a hand.” Dick told Withered he was suspended and to clock out. Withered said he would clock out when he was good and ready. Dick said, “I’m ordering you to clock out now.” They then walked back to the building together. Withered got into his truck and left. Both Mervin Lascelles, a maintenance assistant, and Aden were present during this interaction.

On August 20, 1986, a predisciplinary hearing was held. Present during this hearing were County Board member John Hollis, County attorney Tim Reardon, Dick and his secretary, Tom McLaughlin and Norma Duba from AFSCME, and Withered. At the opening of the meeting Dick read the charges against Withered, which consisted of disruptive behavior and disorderly conduct in the incident of August 14, 1986; gross negligence in regard to the removal of the toilet from the sewer pipe in the D-l bathroom; failure to follow instructions to check the building and ensure compliance with the propping open of doors or the use of wedges; and failure to exhibit appropriate supervisory conduct over employee Dale Aden regarding Witherell’s remarks that the gazebo area “looked like shit” and “the shit was going to hit the fan.” The advisory board unanimously recommended the County Board discharge Withered. At a later executive session, the County Board voted unanimously to discharge Withered.

The ISLRB has found the elements necessary to prove an unlawful discharge are (1) union or protected concerted activity, (2) employer knowledge of such activity, (3) animus toward such activity, and (4) an adverse employment action under suspect circumstances. County of Peoria, 3 Pub. Employee Rep. (Ill.) par. 2028, No. S —CA—336 (Illinois State Labor Relations Board, March 23,1987).

However, under the Wright Line doctrine, more is involved when evidence is introduced to show the employee might have been discharged regardless of any antiunion animus. Our supreme court recently had occasion to consider whether an employee discharge constituted an unfair labor practice charge under the Act in City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 538 N.E.2d 1146. There, the court discussed the proof requirements in such cases as follows:

“Where an employer is charged with an unfair labor practice because of the discharge of an employee engaged in protected activity, the charging party must first show, by a preponderance of the evidence, that the adverse employment action was ‘based in whole or in part on antiunion animus — or * * * that the employee’s protected conduct was a substantial or motivating factor in the adverse action.’ (NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 401, 76 L. Ed. 2d 667, 675, 103 S. Ct. 2469, 2474.) Since motive is a question of fact, the Board may infer discriminatory motivation from either direct or circumstantial evidence, and, because motive involves a factual determination, the Board’s finding must be accepted if supported by substantial evidence. (NLRB v. Nueva Engineering, Inc. (4th Cir. 1985), 761 F.2d 961, 967.) Antiunion motivation may reasonably be inferred from a variety of factors, such as an employer’s expressed hostility towards unionization, together with knowledge of the employee’s union activities (Turn-bull Cone Baking Co. v. NLRB (6th Cir. 1985), 778 F.2d 292, 297), proximity in time between the employees’ union activities and their discharge (NLRB v. E.I. DuPont De Nemours (6th Cir. 1984), 750 F.2d 524, 529), disparate treatment of employees or a pattern of conduct which targets union supporters for adverse employment action (Eisenberg v. Wellington Hall Nursing Home, Inc. (3rd Cir. 1981), 651 F.2d 902, 905; NLRB v. Supreme Bumpers, Inc. (6th Cir. 1981), 648 F.2d 1076, 1077), inconsistencies between the proffered reason for discharge and other actions of the employer (Turnbull, 778 F.2d at 297), and shifting explanations for the discharge (NLRB v. Dorothy Shamrock Coal Co. (7th Cir. 1987), 833 F.2d 1263, 1268; NLRB v. Rich’s Precision Foundry, Inc. (7th Cir. 1981), 667 F.2d 613, 626).” (Burbank, 128 Ill. 2d at 345-46, 538 N.E.2d at 1149-50.)

The supreme court went on to state once the charging party has established a case of discharge based in part on antiunion animus, the employer can avoid a finding it violated the statute by demonstrating the discharged employee would have been fired for a legitimate business reason notwithstanding the employer’s antiunion animus. This then triggers a determination of whether the reasons advanced are bona fide or pretextual. As stated by the court, when the employer advances legitimate reasons for the discharge and is found to have relied upon them in part, then the case is characterized as one of “dual motive.” The employer must then demonstrate by a preponderance of the evidence that the employee would have been terminated notwithstanding his union involvement. (Burbank, 128 Ill. 2d at 346-47, 538 N.E.2d at 1150, citing NLRB v. Transportation Management Corp. (1983), 462 U.S. 393, 400-02, 76 L. Ed. 2d 667, 674-76, 103 S. Ct. 2469, 2473-74, and Roscello v. Southwest Airlines Co. (5th Cir. 1984), 726 F.2d 217, 222-23.) Whether the employer’s evidence meets the preponderance standard is itself a question of fact, and, as such, the agency’s determination thereon must be accepted as prima facie true and correct.

This court discussed the standard of review applicable to administrative review actions in Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 1093, 492 N.E.2d 929, 933:

“ ‘That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency’s decision.’ (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653, 456 N.E.2d 998, 1002-03.) In our research, we find that other districts have alternatively stated the rule as follows: In order to set aside the agency decision the reviewing court must find that all ‘reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous.’ (Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1023, 349 N.E.2d 504, 508; O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998; Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 485 N.E.2d 871; see Sicinski v. Will County Police Department Merit Com. (1985), 131 Ill. App. 3d 966, 476 N.E.2d 808; Knop v. Department of Registration & Education (1981), 96 Ill. App. 3d 1067, 421 N.E.2d 1091.)”

This court went on to refer to the standard of review stated in Jackson v. Virginia (1979), 443 U.S. 307, 318, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89, and held that for a reviewing court to find an agency’s decision against the manifest weight of the evidence, the reviewing court must determine, after viewing the evidence in the light most favorable to the agency, that no rational trier of fact could have agreed with the agency’s decision. (Agans, 142 Ill. App. 3d at 1093-94, 492 N.E.2d at 933.) That this court might have reached a different conclusion is not an adequate basis to set aside the decision on appeal.

Here, the ISLRB found the supervisor’s recommendation that Witherell be discharged was, in part, illegally motivated, which is the basis for the County to be found in violation of the Act. Viewing the evidence in the light most favorable to the ISLRB, we are unable to say no rational trier of fact could agree with that assessment.

In this difficult case, the County was then required to show the employee would have been discharged in any event. The Labor Board found the County did not prove this assertion by a preponderance of the evidence. It is not our province to reweigh the evidence. Nor can we say the record is so devoid of evidence to support the requisite inferences as to require an opposite result. We do not suggest by our holding the County of Menard had an antiunion animus, but certain of the administrator’s conduct was deemed by the ISLRB to support the inference of antiunion bias and some unlawful motivation in pursuing the employee’s discharge. The ISLRB also concluded the employer did not meet the standard of proof to show the discharge was for other legitimate reasons.

While it may have been reasonable in a practical sense to discharge an employee whose troublesome relations with his superior were disruptive, particularly when the proffered reasons for discharge appeared legitimate, the Act places the factual determination of whether the employment action constituted an unfair labor practice in the ISLRB. This determination was not contrary to the manifest weight of the evidence.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL HOUSE, Defendant-Appellant.
    Fourth District
    No. 4—90—0075
    Opinion filed September 27, 1990.
    Rehearing denied October 29, 1990.

      Kelly D. Long, of Kelly D. Long Law Office, of Hillsboro, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate . Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a trial in absentia, defendant was convicted of perjury (Ill. Rev. Stat. 1985, ch. 38, par. 32—2), unlawful use of firearms by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1), and aggravated assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—2(a)(1)). The trial court sentenced defendant to five years on the perjury conviction to be served consecutively with concurrent sentences of five years for the weapons offense and 364 days for the aggravated assault.

Subsequently, défendant filed a post-conviction petition (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) challenging procedural aspects of his trial, the amendment of the indictment, sentencing, and other matters. He appeals the denial of his petition for post-conviction relief. Defendant argues (1) he was entitled to certified mail notice of his trial date prior to his trial in absentia; (2) amendment of the information deprived the circuit court of jurisdiction over the cause; (3) he was denied his constitutional right to a fair trial; (4) the trial court abused its discretion by sentencing defendant to a consecutive term of imprisonment for perjury; (5) the trial court denied defendant appeal of his conviction; and (6) Judge Cook’s denial of defendant’s motion for a substitution of judge was an abuse of discretion.

On August 6, 1986, a multicount information was filed concerning an incident which occurred on August 2, 1986, and defendant’s subsequent statements at a hearing concerning bail. Only salient portions of the information will be discussed herein. Count I of the information charged defendant, while under oath during a hearing to set bail in People v. Sebastian, Adams County case No. 86 — CM—339, falsely testified he was John R. Sebastian and had no prior criminal convictions.

Count III alleged defendant committed the offense of unlawful possession of firearm (Ill. Rev. Stat. 1985, ch. 38, par. 24— 3.1(aX3)) in that he possessed a .22 caliber revolver after being released from the Algoa Correctional Center, in Jefferson City, Missouri, where he had been imprisoned for selling controlled substances.

On August 25, 1986, the trial court found probable cause to believe the felony offenses alleged had been committed and defendant committed them. Defendant was arraigned on September 9, 1986. The court advised defendant that counts I, II, and III were Class 3 felonies. The court told defendant that a two- to five-year term of imprisonment was possible for each Class 3 felony.

Defense counsel requested trial be set in November. The following exchange then occurred:

“THE COURT: Do you want him advised as to trial in absentia!
[STATE’S ATTORNEY]: Yes.
THE COURT: Mr. House, come back up here. One last thing, Mr. House, on these charges. I would advise you that now that the trial date is going to be November 12th, okay—
THE DEFENDANT: Yes.
THE COURT: —I’m going to tell you on the record here that since these cases are set for November 12th, that means if you fail to show up at that time for the trial — for instance, if you get out on bond and if you don’t appear on November 12th — the State’s Attorney can ask the Court to go ahead and try the case without your being present. Your failure to appear after being notified of the date, which I have just done, in effect waives your right to be present, waives your right to face the witnesses, those who are called to testify against you, and waives your right to cross-examine them in person. Of course, your attorney would be here, but what I’m saying is that if you fail to appear without good cause, the case will be tried without you. You are waiving your right to be present. Do you understand that?
THE DEFENDANT: I understand.”

Defendant was released after posting bond on September 9,1986.

On October 31, 1986, a pretrial hearing occurred. Defendant failed to appear. Defense counsel requested a continuance. The court denied the motion and ordered the defendant to appear for trial on November 12, 1986. The State made an oral motion for trial in absentia should defendant fail to appear on November 12, 1986. In its order, the court noted defendant could be tried in absentia upon appropriate proof, if he failed to appear on November 12,1986.

Defendant failed to appear on November 12,1986.

On November 17, 1986, the State filed a written motion for a trial in absentia. The State also filed a motion for a separate trial on the perjury count. On November 20, 1986, after a hearing, the court found defendant’s absence was wilful and granted the motion for a trial in absentia. The trial occurred on November 26,1986.

On November 24, 1986, the State filed a motion for leave to file an amended information. Only amended count III is at issue. Amended count III charged defendant committed unlawful use of firearms by a felon pursuant to section 24—1.1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1). The prosecutor stated the failure to charge defendant pursuant to section 24 — 1.1 of the Code was a typographical error. Defendant had been advised the weapons counts were Class 3 felonies. Defense counsel objected to the amendment, noting it raised a misdemeanor to a felony offense. The judge allowed the amendment after noting defendant was admonished as to the Class 3 felony and understood it was a felony charge. Therefore, the court found no prejudice occurred in correcting the statutory reference.

At trial, Don McClelland testified he first saw defendant on August 2, 1986, at the Doghouse Tavern in Quincy. Defendant was with a woman. McClelland and George Lupo were in the parking lot when defendant and the woman left the tavern. While in the parking lot, McClelland noticed defendant beating the woman. Defendant and the woman drove out of the parking lot before McClelland and Lupo drove out of it. Defendant continued beating the woman as he was driving. Defendant put his brakes on when he hit the woman. McClelland testified defendant’s vehicle nearly collided with McClelland’s vehicle. McClelland decided to prevent defendant from hitting the woman. Defendant pulled into a junkyard. McClelland got out of his vehicle and shouted at defendant. He and defendant exchanged words. Then, McClelland noticed a weapon in defendant’s hand, and defendant started shooting. McClelland stated the weapon was a small-caliber pistol, but he was too far away to determine the type. The bullet hit the windshield of McClelland’s vehicle. Lupo was seated in McClelland’s vehicle at the time.

Lupo identified a photograph of defendant as John Sebastian. He had met Sebastian prior to August 2, 1986, while he was managing the Doghouse Tavern. His testimony concerning the shooting was substantially similar to McClelland’s testimony.

Sergeant Anthony Grootens of the Adams County sheriff’s department testified he arrested defendant later that evening. He observed defendant operating a motorcycle, with a woman passenger. After defendant was taken into custody, Grootens noticed a .22 caliber handgun to the east side of the motorcycle near where defendant was standing. After defendant had been advised pursuant to Miranda, defendant said the weapon fell out of his pocket when he got off the bike.

Cathe Baker, deputy county clerk of Adams County, testified People’s exhibit No. 1, a photograph of defendant, was a photograph of John Sebastian. On August 4, 1986, she administered the oath to defendant, at a bond hearing in People v. Sebastian. Defendant stated he was John Sebastian and did not have any prior offenses. Judge Wooley heard the testimony and set bond. A few days later, she saw defendant again. He then stated he was Karl House.

Adams County Sheriff’s Deputy Clay Doane testified he arrested defendant on August 5, 1986. Initially, defendant stated he was John Sebastian. Defendant had a driver’s license with that name. After being advised of his rights, defendant stated his real name was Karl House.

The court admitted a certified copy of a Missouri felony conviction of Karl House into evidence.

Defendant filed a petition for post-conviction relief on August 4, 1989. Defendant moved for a substitution of judge on October 4, 1989. Defendant alleged Judge Cashman was prejudiced because he had made the rulings complained of in the post-conviction petition. Judge Cook denied the motion for substitution of judge on October 22, 1989. Judge Cook noted defendant had not presented any facts tending to show bias.

The hearing on defendant's post-conviction petition occurred on November 3, 1989. Defendant testified that although he remembered being advised that trial would occur if he were not present, he did not remember being told he could be sentenced. Defendant did not receive notice of the November 24, 1986, trial date by certified mail. He did not waive a preliminary hearing on the amended information, nor did he authorize his attorney to object to severance of the perjury charge. Defendant admitted that he did not appear for his trial date, was a fugitive, and was not at the address on his bond slip. He understood he was charged with a felony possession of a weapon.

Initially, defendant argues his felony convictions must be reversed because he did not receive notice of his actual trial date as specified in section 115—4.1(a) of the Code of Criminal Procedure of 1963 (Criminal Code) (Ill. Rev. Stat. 1985, ch. 38, par. 115—4.1). An accused has a constitutional right to be present at all stages of his trial and to confront witnesses against him. (People v. Owens (1984), 102 Ill. 2d 145, 464 N.E.2d 252.) However, a defendant may not prevent his trial by voluntarily absenting himself from it. When a defendant is released on bond, he has a duty to present himself for trial. (People v. Velasco (1989), 184 Ill. App. 3d 618, 540 N.E.2d 521.) Allowing a defendant to impede the trial proceedings by voluntarily absenting himself would permit him to benefit from his failure to present himself at trial. People v. Steenbergen (1964), 31 Ill. 2d 615, 203 N.E.2d 404.

Therefore, a voluntary absence is considered a waiver of the accused’s right to be present at trial. (People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634.) Illinois has enacted a legislative scheme designed to ensure that a trial in absentia is not held unless the defendant has made a valid waiver of his right to be present at trial and confront witnesses against him. People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.

The State maintains this court need not consider defendant’s post-conviction claim of inadequate notice of his trial date because a mere violation of a statutory provision occurred. A violation of a statute or rule of procedure which does not constitute a deprivation of constitutional rights may not be considered under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.; People v. Orndoff (1968), 39 Ill. 2d 96, 233 N.E.2d 378.) However, the right to be present at trial is one which is founded in the constitution. (Ill. Const. 1970, art. I, §13; U.S. Const., amend. VI; People v. Lester (1988), 165 Ill. App. 3d 1056, 519 N.E.2d 1127.) Therefore, absence of notice pursuant to the statutes presents a constitutional question.

Section 115 — 4.1(a) of the Criminal Code states:

“(a) When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. *** The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 115-4.1(a).

Defendant argues his conviction of the felony charges must be reversed since he was not present when the trial court set the November 24, 1986, trial date, nor was he served with notice of the date by certified mail.

Defendant relies upon four cases in urging this court to reverse his felony convictions. In People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1090, defendant personally appeared at his arraignment. His case was set for a trial readiness call on April 14, 1986, and for a jury trial on April 21, 1986. Defendant did not appear on April 14, 1986, and the court allotted the case for a further trial readiness call on April 17, 1986. Defense counsel stated he would notify defendant of the change, but failed to do so. On April 17, 1986, after defendant failed to appear, the court granted the State’s motion for a trial in absentia. The court set a new trial date for April 30, 1986. Defense counsel was to notify defendant of the new date. On April 29, 1986, the court discovered counsel had not notified defendant of the April 30, 1986, date and ordered the State’s Attorney’s office to do so.

This court noted the record did not support a finding that notice of the April 30, 1986, trial date was served by certified mail. This court found that Williams’ convictions had to be reversed because he did not receive notice of his new trial date by certified mail. The court held the certified mailing procedure set forth in section 115 — 4.1(a) of the Criminal Code was mandatory. The Williams court relied upon Watson (109 Ill. App. 3d 880, 441 N.E.2d 152).

In Watson, this court held a defendant was not advised pursuant to section 113 — 4(e) of the Criminal Code of the possibility of a trial in absentia. Additionally, the court held setting a case for the “January jury call” in defendant’s presence was insufficient to notify him of the specific trial date.

In Lester, this court held the trial court was without authority to try Lester in absentia because it completely failed to orally admonish him of that possibility. (Lester, 165 Ill. App. 3d 1056, 519 N.E.2d 1127; Ill. Rev. Stat. 1987, ch. 38, par. 113 —4(e).) In dicta, this court stated certified mail notice of the trial date was mandatory.

In People v. Smith (1989), 189 Ill. App. 3d 80, 544 N.E.2d 1162, defendant was arraigned on July 11, 1982. He was advised of the possibility of a trial in absentia, and his trial date was set for September 12, 1988. On September 12, 1988, the defendant personally appeared with counsel, and the trial was set for September 19. On September 19, 1988, the case was set for September 21, 1988. Defendant did not appear on the September. 21, 1988, date. The State made a motion for trial in absentia, and the court continued the cause until September 23,1988, for a hearing.

On September 23, defense counsel stated he told defendant on September 18 that no trial would occur on September 19. However, counsel asked defendant to call him on September 19. Defendant did not do so, and defense counsel had been unable to contact defendant. The court granted the State’s motion for a trial in absentia, and defendant was convicted.

This court reversed defendant’s felony conviction. It noted section 115—4.1(a) of the Criminal Code provides that when a date for a trial in absentia is set and defendant is not present, the clerk shall send defendant notice by certified mail of the trial date. The provision was mandatory. The Smith court rejected the State’s argument that an exception existed when defendant was present at the time the original trial date is set and, thereafter, fails to inform the court of his address. This court, citing Williams and Lester, noted that defendant’s constitutional right to be present at his trial necessitated strict construction of statutes dealing with trial in absentia.

Defendant, in the instant case, relies upon Williams, Watson, Smith, and Lester. However, the facts in the instant case are somewhat distinguishable from each of those cases.

However, the facts in the case at bar are very similar to those presented in People v. Velasco (1989), 184 Ill. App. 3d 618, 540 N.E.2d 521, appeal denied (1989), 127 Ill. 2d 637. Velasco entered a not guilty plea on December 7, 1984, and on January 23, 1986, posted bond. On February 4, 1986, Velasco and his attorney appeared in court. The court set March 10 as the trial date and admonished Velasco that a trial would occur in his absence if he failed to appear. Velasco failed to appear on March 10, 1986. The court granted the State’s motion for bond forfeiture and continued the matter for two days. On March 12, the court ruled Velasco would be tried in absentia. Jury selection started the next day.

Velasco, in a similar fashion to defendant, argued he was entitled to notice by certified mail of the March 13 trial date. Velasco relied on Williams. The Velasco court distinguished Williams because the new trial date was set for Williams and the court directed the clerk of the court to send notice of the new date to him. The Velasco court also noted that Watson dealt with a situation in which the defendant was not personally advised of the specific trial date. Neither factor salient in Williams or Watson was present in Velasco or the instant case. The Velasco court stated:

“In the instant, case, defendant was personally present in open court when the specific trial date was set. Thus, we do not agree, nor do we read Watson as holding, that additional notice by certified mail was required under section 115 — 4.1.

Moreover, the Watson court specifically noted that Watson was not admonished of his right to be present at trial or of the consequences of his failure to appear. Neither is there any statement in Williams or facts from which we can infer that the trial court admonished Williams, at the. arraignment proceeding when his case was set for trial, that his failure to appear on that date could result in his being tried in absentia as is required by section 113 — 4(e). In contrast to those cases, it is undisputed in the instant case that defendant was admonished that if he failed to appear on March 10, trial would proceed in his absence and. that he affirmatively responded T understand.’ Having been present in open court when his specific trial date was set and having been apprised of his right to be present and the consequences of his failure to appear, we find that there was compliance with the protective requirements of sections 113—4 and 115—4:1, and that the trial was therefore properly conducted in defendant’s absence.” Velasco, 184 Ill. App. 3d at 628-29, 540 N.E.2d at 527-28.

Although we agree that the Williams, Watson, and Smith cases initially appear to support defendant’s position, as noted by the First District Appellate Court in Velasco, Williams and Watson are clearly distinguishable from the instant situation. Defendant was present in open court when his specific trial date was set. That trial date was never continued. In contrast to Williams, a new trial date was not set in defendant’s absence. In Watson, no specific trial date was set by the court and defendant was not advised that he could be tried in absentia if he did not appear.

Similarly, Smith is distinguishable. In Smith, defendant was not personally present on September 19, 1988, when the court set his trial for September 21, 1988. Smith’s counsel’s presence at the September 19, 1988, hearing was insufficient to notify defendant of the new trial date. Since defendant in the instant case was personally present when the court set his trial date, was admonished that trial would occur in his absence if he failed to appear, and no new trial date was ever set, certified mail notice would not be necessary under a literal reading of the statute or under Velasco. No error occurred in trying defendant in absentia.

Defendant next argues the trial court lost jurisdiction over the cause when it granted the State’s motion to amend the information to correct formal defects. (Ill. Rev. Stat. 1985, ch. 38, par. 111—5.) Defendant contends amendment of the statutory section references in counts II and III was a fundamental change in the charge. Defendant asserts he was entitled to a new probable cause hearing and arraignment. The trial court granted the State’s pretrial motion to dismiss amended count II. Therefore, only the propriety of amended count III is before the court.

Section 111—5 of the Criminal Code provides the information may be amended at any time to correct formal defects, which include miswriting, misspelling, or grammatical errors. (Ill. Rev. Stat. 1985, ch. 38, par. 111—5.) If the amendment does not involve a material change in the averments of the original information, the original information is not abandoned and trial may be had on it as amended without a new plea. (People v. Meeks (1978), 59 Ill. App. 3d 521, 375 N.E.2d 1001.) However, when the amendment seeks to change the nature of the offense with which the defendant is charged, the amendment is not technical. (People v. Heard (1970), 47 Ill. 2d 501, 266 N.E.2d 340; People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106.) An error in the citation of a statutory provision is a formal rather than substantive defect, when the amendment does not affect the substance of the charge. The finding that the matter is a formal defect is strengthened when the defendant is not surprised by the amendment. People v. Wise (1984), 128 Ill. App. 3d 330, 470 N.E.2d 1155.

Count III stated:

“COUNT III. That on or about the 2nd day of August, 1986, in Adams County, Illinois, KARL HOUSE committed the offense of UNLAWFUL POSSESSION OF FIREARMS in that said defendant having been convicted of the offenses of Selling Controlled Substance and Selling Methamphetamine, in violation of 195.221, Missouri Revised Statutes, in Randolph and Macon Counties, State of Missouri, and thereafter released from Algoa Correctional Center in Jefferson City, Missouri, on November 25, 1980, for said offenses did knowingly have in his possession firearms, to wit: a .22 caliber revolver, in violation of Chapter 38, Section 24 — 3.1(a)(3) of the Illinois Revised Statutes.”

Amended count III stated:

“COUNT III. That on or about the 2nd day of August 1986, in Adams County, Illinois, KARL HOUSE committed the offense of UNLAWFUL USE OF FIREARMS BY A FELON in that he knowingly possessed on or about his person a firearm being a .22 caliber revolver after having been convicted of a felony, the offense of Selling Controlled Substance, in violation of 195.020, Missouri Revised Statutes, in Randolph and Macon Counties, State of Missouri, in violation of Chapter 38, Section 24 — 1.1 of the Illinois Revised Statutes.”

Original count III charged defendant with misdemeanor possession of a firearm by a felon. Section 24—3.1 of the Code states:

“(a) A person commits the offense of unlawful possession of firearms or firearm ammunition when:
* * *
(3) He has been convicted of a felony under the laws of this State or any other jurisdiction, and has any firearm or firearm ammunition in his possession ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 24—3.1(a)(3).)

A violation of this section is a Class A misdemeanor.

Amended count III charged defendant with unlawful use of a firearm by a felon and necessitated proof that defendant had the weapon “on or about his person.” Section 24 — 1.1(a) of the Code states:

“It is unlawful for a person to knowingly possess on or about his person *** any weapon prohibited under Section 24 — 1 of this Act or any firearm *** if the person has been convicted of a felony ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1(a).)

Unlawful use of weapons by a felon is a Class 3 felony. (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1(b).) At his arraignment, the court advised defendant that unlawful possession of a firearm was a Class 3 felony. At the post-conviction hearing, defendant admitted he believed he was charged with a felony.

The amendment, in the instant case, was technical in nature. Original count III stated defendant possessed a weapon after having been convicted of a felony. Amended count III did not change these allegations but made them more specific by alleging defendant possessed the weapon on or about his person. The statutory section accordingly changed. Defendant admitted he knew from the time of the arraignment that he was charged with a felony. Therefore, defendant was not surprised by the amendment. The amendment did not change the substance of the original charge. Wise, 128 Ill. App. 3d 330, 470 N.E.2d 1155; Meeks, 59 Ill. App. 3d 521, 375 N.E.2d 1001.

Even were the court to find the amendment of count III absent a new arraignment was improper, the jurisdiction of the circuit court would not be affected. The jurisdiction of the circuit courts is not conferred by indictment or information, but by article YI of the constitution. (People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456; Ill. Const. 1970, art. VI, §9; People v. Mitchell (1983), 116 Ill. App. 3d 44, 451 N.E.2d 934.) Thus, the trial court properly denied defendant’s petition for post-conviction relief.

Defendant next argues the trial court erred in denying the State’s motion for severance of the perjury charge. Defendant contends joinder of the “non-related” perjury charge had to prejudice him, the perjury charge did not meet the “same transaction test” for purposes of joinder, and it was improper to impose consecutive sentences. Post-conviction relief is limited to errors which deprive an accused of constitutional rights. Challenges to the sufficiency of the evidence or allegations of error in statutory interpretation do not ordinarily constitute substantial deprivation of constitutional rights. (Orndoff, 39 Ill. 2d 96, 233 N.E.2d 378; People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.) Since defendant merely alleges the perjury count should not have been tried with the weapons and assault counts because it was not part of the same transaction, he is alleging a statutory violation. (Ill. Rev. Stat. 1985, ch. 38, par. 111—4(a).) However, defendant contends in his reply brief that he is alleging the prejudice caused by the improper joinder deprived him of a fair trial.

Defendant’s actions during the trial waived any contention of improper joinder. Defense counsel vigorously opposed the State’s motion for severance. Under sections 111—4 and 114—7 of the Criminal Code, it is error for the court to join unrelated offenses. (Ill. Rev. Stat. 1985, ch. 38, pars. 111—4, 114—7.) Charges may be severed if the State or defendant may be prejudiced by their joinder. People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550.

However, a defendant may be tried on wholly unrelated offenses if he agrees to such a procedure. (People v. Benka (1983), 117 Ill. App. 3d 221, 223-24, 453 N.E.2d 71, 72-73.) Thus, even if this court were to find joinder was error, defendant’s conduct in opposing severance would constitute his agreement to the joinder of trial of the offenses. (Benka, 117 Ill. App. 3d 221, 453 N.E.2d 71; People v. Jones (1967), 84 Ill. App. 2d 33, 228 N.E.2d 566.) Additionally, a failure to move for severance prior to trial waives any allegation of prejudice caused by the joinder. People v. Terry (1988), 177 Ill. App. 3d 185, 532 N.E.2d 568.

Defendant’s contention that his attorney acted without his consent is meritless. Generally, a client is bound by the acts or omissions of his counsel. (People v. Eddington (1978), 64 Ill. App. 3d 650, 381 N.E.2d 835.) This rule applies even though the client is not personally present when the attorney acts. People v. Henderson (1977), 45 Ill. App. 3d 798, 359 N.E.2d 909.

Defendant next argues he was improperly convicted of perjury because the bail-setting statute did not require him to testify under oath. Since his oath was “voluntary,” his false statements could not be considered perjury. A person commits perjury when, while under oath, in a proceeding or in any other matter where by law such oath is required, he knowingly makes a false statement which is material to the issue in question. (Ill. Rev. Stat. 1985, ch. 38, par. 32—2(a).) The statute on determining the amount of bail states the court may consider “reliable information” presented by the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 110—5(a).) It does not state defendant’s testimony must be under oath to be reliable. Defendant argues his oath was, therefore, voluntary and no perjury occurred. We disagree.

In People v. Watson (1980), 85 Ill. App. 3d 649, 406 N.E.2d 1148, the court addressed an identical argument raised in connection with the Election Code. The court found the oath was required although section 10—10 of the Election Code did not literally state an oath was necessary. Section 10—10 stated the electoral board was authorized to administer oaths and examine witnesses. (Ill. Rev. Stat. 1979, ch. 46, par. 10—10.) The Watson court noted that a voluntary oath, one neither required nor authorized by law, cannot constitute perjury.

Section 1 of “An Act to revise the law in relation to oaths and affirmations” (Act) provides:

“All courts, and all judges and the clerk thereof, the county clerk, deputy county clerk, and notaries public, have power to administer oaths and affirmations to witnesses and others, concerning anything commenced or to be commenced, or pending before them respectively.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 101, par. 1.)

Section 5 of the Act provides that all oaths taken pursuant to the Act shall subject the person falsely swearing to a perjury charge. (Ill. Rev. Stat. 1985, ch. 10l, par. 5.) Here, the hearing to determine bond was a matter pending before the court. Defendant was under oath as authorized pursuant to section 1 of the Act. Therefore, upon testifying falsely, he was subject to a perjury charge. His oath was not voluntary. It is the inherent power of the court to require witnesses in matters pending before it be sworn to tell the truth. Ill. Rev. Stat. 1985, ch. 101, par. 5; Watson, 85 Ill. App. 3d 649, 406 N.E.2d 1148.

Defendant next argues his statements at the bond hearing may have been obtained in violation of his fifth amendment rights. Therefore, they were inadmissible at his perjury trial. Defendant’s contention pertaining to lack of Miranda warnings is meritless. Initially, defendant’s argument in this court is based upon speculation. Defendant has an obligation to present a record which is adequate for a determination of the issues raised. (People v. Dakuras (1988), 172 Ill. App. 3d 865, 527 N.E.2d 163.) Absent a sufficient record, the court need not consider the allegation. Defendant admits his argument is based upon speculation. No record of the bond hearing has been presented to this court. Therefore, this court does not consider the argument.

Defendant next argues the evidence was insufficient to convict him as there was no testimony that he was the person named in the certified copy of the out-of-State conviction. Defendant’s argument has no current validity. In People v. Davis (1983), 95 Ill. 2d 1, 31, 447 N.E.2d 353, 367-68, the supreme court adopted the general rule that identity of name gives rise to a presumption of identity of person. Davis dealt with proof of a prior conviction as an aggravating factor during sentencing. The instant case deals with proof of a prior conviction as an element of the offense charged. However, the Davis presumption applies. People v. Bond (1989), 178 Ill. App. 3d 959, 533 N.E.2d 1163.

Defendant argues he should not have been given consecutive sentences because the perjury count was treated as part of the same transaction for purposes of trial. In People v. Stokes (1988), 172 Ill. App. 3d 534, 526 N.E.2d 899, the court rejected an argument that a trial court had made contradictory findings in allowing joinder and then ordering consecutive sentences. The court noted section 111— 4(a) of the Criminal Code provides for joinder of offenses if they are based upon two or more acts which are part of the same comprehensive transaction. However, to determine the propriety of consecutive sentences, the trial court must decide if the offenses were independently motivated. The appellate court noted the joinder provisions addressed judicial economy. Consecutive sentencing provisions address the need to protect the public, deter crime, punish offenders, and rehabilitate defendants. The appellate court held joinder of offenses was not inconsistent with imposition of consecutive sentences. In the instant case, although the perjury offense was joined with the unlawful use of weapons offense and aggravated assault offense for purposes of trial, the false statement had a separate motivation or criminal objective. Consecutive sentences were appropriate.

Defendant next contends he was denied his right to appeal. Defendant contends he was never advised of his right to an appeal and no timely notice of appeal was filed for him. This court need not consider the merits of this argument. Defendant does not cite any authorities in support of his contention. He also does not provide any argument in support of his contention. Such an assertion fails to comply with Supreme Court Rule 341(e)(7) and may be deemed waived. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072; People v. Deacon (1985), 130 Ill. App. 3d 280, 473 N.E.2d 1354; 107 Ill. 2d R. 341(e)(7).) We note, however, a failure to advise the defendant of his right to an appeal does not raise a question of constitutional dimension. The rule that a defendant must be advised of his right to appeal is considered a procedural rule. (People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1.) A defendant who is a fugitive has no constitutional right to an appeal. (People v. Sayles (1985), 130 Ill. App. 3d 882, 474 N.E.2d 870.) In the instant case, defendant was a fugitive at the time of sentencing. No error occurred.

Defendant argues he was entitled to a substitution of judge during the post-conviction proceedings. He contends Judge Cashman, because he made the rulings at trial, would not have been as impartial as a new judge. Defendant acknowledges that section 122 — 8 of the Post-Conviction Hearing Act, which provided for a judge other than the trial judge, was declared unconstitutional. (Ill. Rev. Stat. 1985, ch. 38, par. 122— 501.) There is no absolute right to a substitution of judge for post-conviction proceedings. (People v. Wilson (1967), 37 Ill. 2d 617, 230 N.E.2d 194.) In fact, post-conviction proceedings should be heard by the judge who rendered the original judgment, unless there is a showing of prejudice. (People v. Neal (1984), 123 Ill. App. 3d 148, 462 N.E.2d 814.) Defendant did not offer any facts showing prejudice. Therefore, he has not established any bias on Judge Cashman’s part.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT, P.J., and SPITZ, J, concur.


author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL FIELDS, Defendant-Appellant.
    Fourth District
    No. 4—90—0020
    Opinion filed September 27, 1990.
    Rehearing denied October 30, 1990.

      STEIGMANN, J., specially concurring.
    Daniel D. Yuhas and Jon McPhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Michael Fields appeals his conviction of attempt (residential burglary) and argues his trial counsel was ineffective because (1) a jury instruction on an included offense was not tendered; and (2) counsel failed to object to prejudicial testimony from police officers. We affirm.

In the early morning hours of July 4, 1989, Danville police received a call from Betty Brooks, who lived at 422 North Gilbert in Danville. Brooks testified she was awakened at 1:30 a.m. by a loud noise that sounded like a loud slam. About five minutes later, Brooks heard a scraping noise. After investigating, Brooks discovered her bathroom window was broken and raised all the way to the top. Brooks also discovered the screen had been torn. Brooks did not see who broke her window.

Officer Keith Garrett testified that when he arrived at the scene, he saw Officer Brent Young holding defendant at gunpoint on the sidewalk in front of the victim’s house. Garrett testified he recognized the defendant. When he handcuffed the defendant, Garrett noticed defendant’s clothes were damp. When Garrett inspected the broken bathroom window, he saw the screen was cut and there was a red chalk mark on the vinyl casing around the window on the outside. On the ground about seven feet to the left of the window, Garrett found a red brick. When he was at the police station, Garrett testified he also noted fresh scratches on defendant’s lower back.

Officer Mark Forsythe testified Brooks’ call was logged in at 1:36 a.m. on July 4 and he was the first to arrive at the scene. He drove past 422 North Gilbert, turned into an alley one house south and circled behind the victim’s house. Forsythe did not see anyone in front or behind the house. As Forsythe went back around to the front of the victim’s house, he observed Officer Young had stopped a male suspect in front of 422 North Gilbert. Forsythe testified he recognized the suspect to be the defendant. Forsythe then testified he knew defendant’s mother and sister lived at 404 North Gilbert and he assumed defendant lived with them. Young told Forsythe defendant was wearing a pair of children’s sweat pants cut as a shirt and had a pair of shorts on underneath his blue jeans.

Forsythe then observed the broken window and the torn screen. He noticed also the outside frame of the window was dented and the dent was covered with a red powdery substance. Forsythe saw a red brick on the ground six feet from the broken window. Forsythe walked to the apartment building where defendant lived (404 North Gilbert) and saw a pile of bricks stacked next to this building. The bricks had the same striations or markings as the one Forsythe had seen under the broken window.

Forsythe testified that on the sidewalk where defendant was stopped by Officer Young, he found small green needles that were the same as those on a bush in front of the residence at 420 North Gilbert. In the front yard of 420 North Gilbert, Forsythe saw footprints in the dew on the grass near four to five large bushes. He also observed the ivy plants in the front of 420 North Gilbert looked like they had been stepped on. Forsythe stated he did not see any green needles on the sidewalk beyond where defendant was stopped by Officer Young.

Officer Brent Young also testified Brooks’ call was received at 1:36 a.m. on July 4. He arrived at the scene within 1 to IV2 minutes, stopped in front of 422 North Gilbert and saw defendant standing on the property line between 420 and 422. Young testified defendant “came out of nowhere.” Young got out of his car and ordered defendant to lie down on the sidewalk. After defendant was handcuffed, Young noticed defendant’s clothes were damp. Young approached the front porch of 420 North Gilbert and found a two-sided dagger on the walkway and a pair of gloves in the bushes. One glove was suspended on one of the bush branches. Young found quite a few green needles from these bushes a couple of feet from the spot where he stopped defendant on the sidewalk. Young also noticed a trail of green needles from the first spot to where defendant was stopped on the sidewalk. Later, at the police station, Young observed a green needle similar to those found on the sidewalk on defendant’s left buttock and fresh scratches on defendant’s lower back.

Karen Beck, defendant’s girlfriend, testified for defendant that she lived with defendant at 404 North Gilbert. Beck stated defendant had been drinking at his sister’s apartment on July 3, 1989, until 12:30 a.m. on July 4, when Beck and defendant returned to their apartment. Beck and defendant then had a fight about the laundry. Defendant took some of Beck’s son’s clothes, ripped them to fit him like a shirt, and left the apartment to make a phone call. Beck stated defendant left the apartment about 1:39 a.m. by the backdoor on the alley. Beck recalled the time to be 1:39 a.m. because she remembered looking at the clock on the videocassette recorder. After 20 minutes passed, Beck walked down the hallway of her apartment building to the front entrance where she saw flashlights outside. Beck testified on direct that defendant’s mother then came out of her apartment at the top of the stairway and said, “Oh, my God, Mike is in jail again.” Beck recalled it had drizzled that morning. Beck also admitted being placed on probation earlier in 1989 for deceptive practices. On cross-examination, Beck stated she voluntarily told an investigator that defendant left their apartment at “1:30 something” on July 4.

In rebuttal, Larry Rollins, a Danville police investigator, testified he spoke with Beck on July 25, 1989, when Beck came to see him voluntarily. At that time, Rollins stated Beck told him she and defendant were back in their apartment on July 4, 1989, about one hour before defendant left “about 1:30 a.m.” Beck also told Rollins defendant did not break into anyone’s apartment, but if he did, it was the booze that made him do it.

Defendant first argues his trial counsel was ineffective for not tendering an instruction on the included offense of criminal damage to property. The State argues the failure to tender such an instruction was a matter of trial tactics and discretion of trial counsel and did not constitute ineffective assistance of counsel.

Under the test adopted in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, representation by counsel is ineffective when it is determined that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Where, as here, the claimed incompetence involves failure to tender an included offense instruction, prejudice to a defendant would exist if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater offense. Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995; People v. Mitchell (1984), 105 Ill. 2d 1, 13-14, 473 N.E.2d 1270, 1276.

The offense of criminal damage to property requires proof that the defendant knowingly damaged any property of another without consent. (Ill. Rev. Stat. 1989, ch. 38, par. 21—1(1)(a).) The offense of attempt (residential burglary) requires proof that the defendant intended to enter, without authority, the dwelling place of another with intent to commit a felony or theft therein. Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 19—3(a).

We conclude counsel’s decision not to tender an instruction on the lesser offense was a matter of trial strategy. The evidence established defendant was found near the victim’s home within minutes of Brooks’ call to the police. Further, the victim testified she first heard a loud noise, presumably glass breaking, and then heard, several minutes later, a scraping sound, most likely the sound of the window screen being cut. Defendant’s theory at trial was that he was not the perpetrator but only an innocent bystander. Defendant did not contend, as he does now on appeal, that he did not intend to enter the victim’s house but merely intended to damage her window. Counsel’s actions at trial were aimed at providing the jury with only two options: finding defendant guilty or not guilty of attempt (residential burglary). (See People v. Barnard (1984), 104 Ill. 2d 218, 231-32, 470 N.E.2d 1005, 1009-10.) We find the evidence supports the offense of attempt (residential burglary) but not the lesser offense of criminal damage to property. Accordingly, we discern no prejudice to defendant in counsel’s representation.

Defendant next contends his trial counsel was ineffective for not objecting to the testimony of two police officers that they recognized the defendant at the scene. Defendant argues the testimony served no purpose but to imply to the jury that defendant had a prior criminal record. We disagree. Incompetency of trial counsel is not established by the mere failure to object to evidence. (People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677, 686; People v. Stokes (1981), 95 Ill. App. 3d 62, 69, 419 N.E.2d 1181, 1188.) The decision of when to object to evidence is a matter of trial strategy. (People v. Clark (1987), 160 Ill. App. 3d 877, 883, 513 N.E.2d 937, 941; Stokes, 95 Ill. App. 3d at 69, 419 N.E.2d at 1188.) One trial strategy available to defendant’s counsel in this case was to ignore the testimony of the police officers to avoid unduly emphasizing it to the jury. (People v. Campbell (1987), 163 Ill. App. 3d 1023, 1031, 516 N.E.2d 1364, 1370.) The testimony of both officers did not necessarily imply defendant had a prior criminal record and was admissible. (People v. Rogers (1940), 375 Ill. 54, 59, 30 N.E.2d 77, 79.) Additionally, even though defendant’s contention is without merit, it loses further credence where the evidence shows defendant’s own witness on direct testimony stated, “Oh, my God, Mike is in jail again.”

Finally, defendant argues his trial counsel was ineffective for not seeking a limiting instruction regarding the following testimony of Karen Beck on direct:

“I walked down the hallway, through my apartment, to the front entrance; and I looked outside; and I saw flashlights. And at this time I was at the bottom of the stairway. Mike’s mother comes out of her apartment, which is exactly at the top of the stairway, and says, ‘Oh, my God, Mike is in jail again.’ ”

We note this testimony was presented by defendant’s witness on direct. Any prejudice to defendant, though inadvertent, was of defendant’s own making. (People v. Bridgeforth (1972), 51 Ill. 2d 52, 66, 281 N.E.2d 617, 624-25.) Moreover, defendant’s counsel may well have decided to leave well enough alone and not risk drawing more attention to the testimony by asking for a limiting instruction. Such a decision is trial strategy which is not subject to appellate review. People v. Gallardo (1983), 112 Ill. App. 3d 764, 768, 445 N.E.2d 1213, 1217; People v. Phillips (1982), 110 Ill. App. 3d 1092, 1104, 443 N.E.2d 655, 663.

For the foregoing reasons, the defendant’s conviction and sentence for attempt (residential burglary) are affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

While I concur in the judgment affirming the defendant’s conviction, I do so for reasons different from those set forth in the majority opinion.

The only issue defendant raises on appeal is his claim that he was denied the effective assistance of counsel at his trial. The most serious of trial counsel’s alleged errors is his failure to tender a jury instruction on the lesser included offense of criminal damage to property. The majority opinion concludes that trial counsel’s decision not to tender such an instruction was a matter of trial strategy. My difficulty with this conclusion is that the record on appeal contains nothing touching upon that issue.

In People v. Kunze (1990), 193 Ill. App. 3d 708, 550 N.E.2d 284, this court was also confronted with an argument that the defendant’s lawyer at trial did not provide effective assistance of counsel. In addressing that argument, this court made the following observations:

“Where, as here, consideration of matters outside of the record is required in order to adjudicate the issues presented for review, the defendant’s contentions are more appropriately addressed in proceedings on a petition for post-conviction relief. (Ill. Rev. Stat. 1987, ch. 38, pars. 122—1 through 122—8.) We therefore decline to adjudicate in this direct appeal Kunze’s contentions concerning the alleged incompetence of Kunze’s trial counsel. An adjudication of a claim of ineffective assistance of counsel is better made in proceedings on a petition for post-conviction relief, when a complete record can be made and the attorney-client privilege no longer applies.” Kunze, 193 Ill. App. 3d at 725-26, 550 N.E.2d at 296.

I think the practice we followed in Kunze should be followed here as well. If resolution of the defendant’s claim that he received ineffective assistance of counsel were deferred to a hearing on a post-conviction petition which raised that issue, then the court and both parties would have the benefit of directly hearing trial counsel’s explanation as to why he took the actions he did and failed to take other actions.

The record on direct appeal almost never contains anything explaining the trial tactics of defense counsel. If, as here, those trial tactics are to be the subject of scrutiny, then a record should be developed in which they can be scrutinized. We have no such record in this case. Only a hearing on a post-conviction petition can provide that record.

For the reasons stated, I would affirm the judgment of the trial court, decline to adjudicate on this direct appeal defendant’s contentions concerning the alleged incompetence of his trial counsel, and defer the matter for resolution by the filing of a post-conviction petition.