author: JUSTICE COOK

text:
      In re MARRIAGE OF NANCY E. DANIELS, n/k/a Nancy E. Priepot, Petitioner-Appellant, and JERRY L. DANIELS, Respondent-Appellee.
    Fourth District
    No. 4—92—0665
    Opinion filed April 8, 1993.

      A. Michael Kopec, of Stratton, Dobbs & Nardulli, of Springfield, for appellant.
    Timothy J. Reardon, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Springfield, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

The circuit court of Sangamon County denied Jerry Daniels’ (Jerry’s) petition for modification of judgment, but ordered each party to pay one half of the unreimbursed orthodontic expenses of their daughter. Nancy Daniels, n/k/a Priepot (Nancy), appeals the portion of the order dividing orthodontic expenses. We reverse and remand.

Nancy and Jerry were divorced August 27, 1979. The judgment of dissolution of marriage, entered pursuant to a settlement agreement, provided in paragraph 9(m):

“Respondent shall maintain major medical insurance on the minor children of the parties comparable to that now in force through his employment, and he shall pay and be responsible for all medical expenses for said children not covered by insurance, including dental and optical expenses.”

On February 21, 1989, the circuit court entered an order by agreement modifying Jerry’s monthly support payments to include an automatic yearly increase and reaffirming all provisions in paragraph 9(m) of the original judgment. On August 3, 1990, Jerry filed the petition for modification of judgment which is the subject of this appeal. In his petition, Jerry stated his take-home pay would be diminishing and he would be unable to continue to pay the automatic agreed increase in his child support obligation. Jerry also stated that changes had occurred in the major medical insurance coverage available to him through his employer, namely (1) his plan now required a second opinion as to surgical procedures, and (2) his coverage only pays for services which the medical provider and claim reviewer deem “medically necessary.” Specifically, Jerry alleged:

“(b) *** A request from Petitioner that Defendant/Respondent pay the $3,375.00 cost of orthodontic treatment for [their daughter] Theresa Daniels has been declined on the basis that the requested services are not deemed ‘medically necessary’, i.e., for health, as opposed to cosmetic reasons. Further the maximum payable for orthodontic expenses under the Major Medical Plan of Defendant/Respondent is $1,000.00 of which $100.00 has been paid to date. Thus, Defendant/Respondent should not be held fully liable for payment of expenses for such medical treatment unless both parties agree in writing.”

At the hearing on his petition Jerry testified as to his income and living expenses and stated that he would not be receiving his cost-of-living raise for 1990. He also testified to changes in his health insurance coverage. Jerry stated his dental plan carried a $1,000 lifetime per-person coverage for orthodontic treatment, of which $100 had been paid out. Jerry later admitted the amount had been raised to $1,200. He had no knowledge whether the balance of this amount would be paid out. Jerry’s counsel then presented by stipulation a letter from Dr. Sternstein, Theresa’s orthodontist. The letter indicated that Theresa’s malocclusion was not life threatening, but the severity of crowding would increase. “This will have a deleterious effect on the health and permanency of her dentition, eating efficiency and her temporomandibular joint. I, therefore, would strongly recommend that this problem be corrected.” The letter indicated that Theresa could be treated at a later date quite successfully. Jerry stated he had attended meetings with Dr. Stern-stein, Nancy, and Theresa which left doubt in his mind whether the orthodontia was medically necessary.

Nancy testified to her income and living expenses. She explained that Theresa was 15 years old and in need of braces. Nancy said the crowding of Theresa’s teeth was quite visible. Nancy was not questioned further on the issue of orthodontia. The closing arguments of counsel were not recorded because the trial judge dismissed the court reporter. However, the parties filed a bystander’s report and agreed statement of facts on November 23, 1992, which states in relevant part: “2. During the closing argument of counsel for Plaintiff/Appellant, the Honorable George Ray raised the issue whether the original Judgment of Dissolution of Marriage in this cause addressed the issue of payment of orthodontia expenses.”

In an order filed October 12, 1990, the trial court denied Jerry’s request to modify the cost-of-living adjustment or payment of medical expenses. The court further stated: “However, since the payment of [orthodontia] expenses is not provided for in the judgment, each party shall pay one-half of the balance of any [orthodontia] expenses after the application of insurance proceeds.” Nancy filed a motion to reconsider, and attached an affidavit stating she met with Jerry in August 1979 to work out the agreed divorce settlement. At that time they discussed the children’s need for dental work and the fact that Theresa would probably need braces. Nancy averred that Jerry indicated at the meeting that he would pay for any expenses needed by the children and his attorney indicated he would draft the agreement to reflect that intent. Jerry filed a response to Nancy’s motion and attached his own affidavit which stated he never unequivocally committed himself to pay the cost of orthodontic treatment and that Nancy could have included specific language as to orthodontic treatment in the original judgment but did not. The circuit court denied Nancy’s motion in a docket entry on July 20,1992.

We first reject Nancy’s argument that it was error for the court to raise and decide the orthodontia issue sua sponte and without pleadings, argument or evidence, as an interpretation of the original judgment. It is necessary for a judge to determine what an order says before the judge can determine whether the order should be modified. We would reject Nancy’s argument even if a further pleading were required. Generally the filing of a petition setting out the relief sought is a prerequisite to the granting of relief under the Act. (In re Marriage of Azotea (1990), 200 Ill. App. 3d 182, 184, 558 N.E.2d 550, 552 (petition to show cause filed against wife could not support order setting arrearages owed by husband).) Nevertheless, the statement of specific allegations in a petition, or even the filing of a petition itself, may be waived if the issue is actually tried and no objection is made. (In re D.W. (1989), 184 Ill. App. 3d 194, 198, 539 N.E.2d 1337, 1340 (allegation of abuse instead of unfitness); Harris v. Harris (1990), 196 Ill. App. 3d 815, 825, 555 N.E.2d 10, 17 (failure to plead conflict of interest in answer); In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 970, 479 N.E.2d 1152, 1156 (request for child support fully litigated, but no petition filed).) “Except in case of default, the prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 604.

Jerry’s petition appears to allege that orthodontic expenses are only cosmetic, and are not medically necessary, and to request that an order be entered requiring him to pay something less than the full amount of those expenses. An order directing Jerry to pay 50% of the orthodontic expenses would be within the scope of the petition to modify, whether the original order required Jerry to pay all, or none, of those expenses. The testimony addressed the financial aspects of the orthodontia and whether the treatment was “medically necessary” as determined by Jerry’s insurance plan. That testimony assumed that orthodontia was part of the “dental” costs to be paid by Jerry under the original judgment. The judge believed the judgment did not provide for orthodontic expenses and his order attempted to clarify and resolve the issue fairly and in a way that would benefit the child. The judgment did provide who should pay orthodontic expenses, however, and it was not necessary for the trial court to enter a new order. Orthodontia expenses are included in the term “dental care,” and the expenses here were Jerry’s full responsibility under the terms of the original judgment. In re Marriage of Mitteer (1993), 241 Ill. App. 3d 217, 223.

In Mitteer, the husband appealed the trial court’s decision ordering him to pay part of his child’s orthodontic expenses. Pursuant to the parties’ judgment of dissolution, the husband had been ordered to maintain medical, dental, and prescription drug insurance on the child through his employer and to pay 50% of all uncovered costs if he was unable to maintain such insurance. {Mitteer, 241 Ill. App. 3d at 218.) In finding the husband was required to pay $1,000, or slightly less than one-half, of the unreimbursed orthodontia expenses the court stated:

“We are cognizant that many would consider dental expense distinct from orthodontic treatment. While such treatment may have long been considered cosmetic, we believe the time has come to reject that conclusion. Proper dental treatment, including orthodontic corrections, has become accepted based on personality development and strictly health reasons. *** Without proper orthodontic work, dental problems and appearance problems develop. By this decision, we hold that the provision for dental insurance and dental expense includes orthodontic treatment.” Mitteer, 241 Ill. App. 3d at 223.

In accordance with Mitteer, we reverse that part of the trial judge’s order which finds that the judgment of dissolution did not address the issue of orthodontia. Our finding is consistent with the record, which indicates “orthodontia” is included under the dental portion of Jerry’s health insurance plan and that such plan provides for $1,200 lifetime coverage per person toward such expenses.

When the trial court denied Jerry’s petition to modify, it did so in the belief that Jerry would be required to pay only 50% of the unreimbursed orthodontic expenses. Because our order changes that balance, we remand so that the trial court may consider whether its decision on the petition to modify should be changed. Finally we observe that although a provision for dental expense generally includes orthodontia, orthodontia may not be necessary in a particular case, just as any other medical expenses may not in fact be necessary. Although a trial court, under proper circumstances, could order in a judgment of dissolution that expenses be paid which were not necessary, the judgment here did not do so. We understand from the trial court’s orders in this case that it found the particular expenses were necessary. If that is not correct the trial court may address the issue further on remand. The decision whether expenses are necessary is ultimately one for the trial court, not for the parties or an insurance company.

Reversed and remanded.

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


source: Caselaw Access Project

license: Public Domain

text:
    DAVID BYBEE, Adm’r of the Estate of Jessie Bybee, Deceased, et al., Plaintiffs-Appellees, v. THOMAS O’HAGEN, Indiv. and d/b/a Loami Lakes Estate, Defendant-Appellant (Barbara Hart et al., Defendants).
    Fourth District
    No. 4-92-0787
    Opinion filed April 8, 1993.

      Stratton, Dobbs & Nardulli, of Springfield (A. Michael Kopec, of counsel), for appellant.
    Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris, of counsel), for appellees.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiffs seek damages resulting from a February 18, 1990, fire at the mobile home in which they resided. Counts I, III, V, and VII of plaintiffs’ fourth-amended complaint allege damages resulting from their landlord’s (defendant Thomas O’Hagen’s) violation of the Smoke Detector Act (Act) (Ill. Rev. Stat. 1989, ch. 1271/2, par. 801 et seq.). Defendant filed a motion to dismiss based on plaintiffs’ failure to allege negligence or lack of due care, and contending a mere violation of the Act does not create an implied cause of action based on strict liability. The trial court denied the motion to dismiss and subsequently denied defendant’s motion for reconsideration, stating:

“[T]his is an appropriate instance for implying a private cause of action in order to further the policy behind the statute of having smoke detectors placed in all dwelling units.
*** The allegations here are that the owner failed to provide a smoke detector, and, accordingly, as to that allegation I am of the opinion that a theory of absolute liability is appropriate.”

The trial court certified for appeal the questions (1) whether a private cause of action exists based on the Act, and (2) whether any such cause of action is one in strict liability. This court allowed defendant’s permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308.134 Ill. 2d R. 308.

I. THE ACT CREATES AN IMPLIED PRIVATE CAUSE OF ACTION

The installation of smoke detectors is required by the Act:

“Every dwelling unit shall be equipped with at least one approved smoke detector in an operating condition within 15 feet of every room used for sleeping purposes.” (Ill. Rev. Stat. 1989, ch. 127x/2, par. 803(a).)

The Act establishes specific duties for both owners and tenants:

“It shall be the responsibility of the owner of a structure to supply and install all required detectors. *** It shall be the responsibility of a tenant to test and to provide general maintenance for the detectors within the tenant’s dwelling unit or rooming unit, and to notify the owner or the authorized agent of the owner in writing of any deficiencies which the tenant cannot correct.” (Ill. Rev. Stat. 1989, ch. 127x/2, par. 803(d).)

The Act also provides for criminal penalties:

“Willful failure to install or maintain in operating condition any smoke detector required by this Act shall be a Class B misdemeanor.” (Ill. Rev. Stat. 1989, ch. 127x/2, par. 804(a).)

The Act does not expressly authorize individuals to bring a private right of action for violations. Plaintiffs, however, argue that a private right of action should be implied. “Clearly, provisión of a criminal penalty does not necessarily preclude implication of a private cause of action for damages.” (Emphasis in original.) Cort v. Ash (1975), 422 U.S. 66, 79, 45 L. Ed. 2d 26, 37, 95 S. Ct. 2080, 2088; see also Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 155, 128 N.E.2d 691, 693; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172,185, 384 N.E.2d 353, 359.

We first address two general principles, the first being that:

“Generally, a landlord is not liable for injuries sustained by a tenant as a result of a defective condition within the four corners of the demised premises. [Citation.] There are, however, five notable exceptions to this rule: (1) a latent defect existed at the time of the leasing which lessor should have known about; (2) a fraudulent concealment by a landlord of a dangerous condition; (3) the defect causing the harm amounts to a nuisance; (4) the landlord makes a promise to repair a condition at the time of leasing; and (5) the landlord violates a statutory requirement of which tenant is in the class designed to be protected and the resulting harm is reasonably foreseeable.” (Moreno v. Balmoral Racing Club, Inc. (1991), 217 Ill. App. 3d 365, 367, 577 N.E.2d 179, 180-81.)

The second rule is that the violation of a statute designed to protect human life or property is prima facie evidence of negligence. A party injured by such a violation may recover by showing the violation proximately caused the injury, the statute was intended to protect individuals from the kind of injury suffered, and the injured party belonged to the class of persons whom the rule was intended to protect from injury. Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 78-79, 117 N.E.2d 74, 78; Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 238, 507 N.E.2d 1193, 1198; Moreno, 217 Ill. App. 3d at 368, 577 N.E.2d at 181 (landlord’s duty to tenant); Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 434-35, 581 N.E.2d 656, 661; Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1992).

Plaintiffs were members of the class for whose benefit the Act was enacted, and their injury is one the Act was designed to prevent. Plaintiffs allege a fire in the mobile home they were leasing caused injury and death. A reasonable interpretation of the Act is that it is intended to protect inhabitants of dwellings from smoke or fire injuries. The first district recently determined the Act “appears to be intended to protect the lives and property only of the occupants of the dwelling units in which the smoke detectors are required.” (Uehara v. Schlade (1992), 236 Ill. App. 3d 252, 264, 603 N.E.2d 646, 653.) As plaintiffs are within the class recognized by Uehara, we need not decide whether we would define the class so narrowly. In addition, we find that a private cause of action is consistent with the underlying purpose of the Act. (See Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849 (allowing an implied private cause of action based on a violation of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.)); Corgan v. Muehling (1991), 143 Ill. 2d 296, 574 N.E.2d 602 (allowing an implied private cause of action based on a violation of the Psychologist Registration Act (Ill. Rev. Stat. 1981, ch. 111, par. 5301 et seq.)); Rodgers v. St. Mary’s Hospital (1992), 149 Ill. 2d 302, 597 N.E.2d 616 (allowing an implied private cause of action under the X-Ray Retention Act (Ill. Rev. Stat. 1987, ch. 111-lz, par. 157 — 11)); cf. Rhodes v. Mill Race Inn, Inc. (1984), 126 Ill. App. 3d 1024, 1027, 467 N.E.2d 915, 917 (Safety Glazing Materials Act (Ill. Rev. Stat. 1981, ch. 111-k, par. 3101 et seq.) “prohibitory in nature, rather than remedial”; therefore, private right of action beyond scope of statute and “thus is not consistent with its purpose”).) As in Rodgers and Corgan, nothing in the statute suggests that the legislature intended to limit the available remedies for violations of the Smoke Detector Act. We follow the supreme court’s decisions in Sawyer, Corgan, and Rodgers, and hold that an implied private cause of action is consistent with the Smoke Detector Act.

Implication of a private right of action is necessary to provide an adequate remedy at law under the Act. (See Cort, 422 U.S. at 78, 45 L. Ed. 2d at 36-37, 95 S. Ct. at 2088; Rodgers, 149 Ill. 2d at 308, 597 N.E.2d at 619; Sawyer, 89 Ill. 2d at 391, 432 N.E.2d at 854-55; Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 419, 484 N.E.2d 473, 478; see also Restatement (Second) of Torts §874A, Comment h, at 308-10 (1979).) Defendant argues plaintiffs could have brought a negligence action under the Premises Liability Act (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.) for failure to exercise reasonable care or to warn of a defect. We disagree. As the full title states, the Premises Liability Act “regulate[s] the duty which an occupier of a premises owes to his visitors” (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.). It does not regulate the landlord-tenant relationship. Nor was there a common law duty for a landlord to provide a smoke detector. (Webster v. Heim (1980), 80 Ill. App. 3d 315, 317, 399 N.E.2d 690, 691-92; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 426, 399 N.E.2d 656, 658.) As mentioned previously, the general rule is that a landlord is not liable for injuries to a tenant resulting from defective conditions where the premises are wholly demised. One of the exceptions to that general rule is where the injury results from the violation of a statute or ordinance which prescribes a duty for the protection and safety of persons or property. Magnotti v. Hughes (1978), 57 Ill. App. 3d 1000, 1004, 373 N.E.2d 801, 804; Webster, 80 Ill. App. 3d at 317, 399 N.E.2d at 692; Moreno, 217 Ill. App. 3d at 367, 577 N.E.2d at 181.

In Galayda, Magnotti, and Webster plaintiffs brought negligence actions against landlords for injuries sustained from fires at the leasehold. In these cases the complaints were dismissed for failure to state a cause of action. In Magnotti, the court stated that “[n]o ‘rule’ is suggested which would require a lessor to provide fire extinguishers, smoke detectors, or other warning devices.” (Magnotti, 57 Ill. App. 3d at 1006, 373 N.E.2d at 805.) In Galayda, this court held that “at common law the owner of land was not required to anticipate a fire upon his premises. It therefore follows that in the absence of some statute, rule or regulation, neither is he required to maintain an alarm or detection system for fire.” (Galayda, 80 Ill. App. 3d at 426, 399 N.E.2d at 658.) Magnotti, Webster, and Galayda were decided prior to the Act’s requirement that “[ejvery dwelling unit shall be equipped with at least one approved smoke detector in an operating condition within 15 feet of every room used for sleeping purposes.” (Ill. Rev. Stat. 1989, ch. 127Vz, par. 803(a).) There is now an exception to the general rule of landlord immunity; tenants have a cause of action where their landlord has violated the Act.

II. THE IMPLIED PRIWTE CAUSE OF ACTION CREATED UNDER THE ACT IS NOT BASED ON STRICT LIABILITY

It is easy to argue that a criminal statute imposing no more than a small fine should impose an absolute duty in a tort action, even for large damages, where the statute recognizes no excuse for its violation. Statutes are usually not so interpreted, however. (See W. Keeton, Prosser & Keeton on Torts §36, at 227 (5th ed. 1984).) Strict liability has been imposed to protect the public in situations where people would be unable to protect themselves, such as child labor violations and inherently dangerous activities; where the public would not be in a position to realize the risk until the harm had already occurred, as in the regulation of train equipment, scaffolding acts, and pure food cases; and where there are hidden defects, such as building code violations and regulations on automobile brakes. (See W. Keeton, Prosser & Keeton on Torts §36, at 227-28 (5th ed. 1984); Gorczynski v. Nugent (1948), 402 Ill. 147, 83 N.E.2d 495; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Jackson v. Nestle-Beich, Inc. (1992), 147 Ill. 2d 408, 589 N.E.2d 547.) Normally, however, violation of a statute is not a strict liability tort unless the court finds that the legislature clearly intended to impose strict liability. “In the ordinary case, all that is required is reasonable diligence to obey the statute, and it frequently has been recognized that a violation of the law may be reasonable, and may be excused.” W. Keeton, Prosser & Keeton on Torts §36, at 228 (5th ed. 1984).

Plaintiffs have presented no evidence indicating that the legislature intended to impose strict liability for a violation of the Act. While imposition of strict liability upon a landlord under the Act would encourage the use of smoke detectors, plaintiffs have not shown that the legislature clearly intended to impose strict liability for such a violation. The Act provides that “[w]illful failure to install or maintain in operating condition any smoke detector required by this Act shall be a Class B misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 121Vz, par. 804(a).) It seems unlikely the legislature intended a strict liability tort action when it provided a criminal penalty only for a willful failure to install or maintain a smoke detector. Further, the lack of a smoke detector cannot be considered a hidden danger, or such an unreasonable danger that a plaintiff could not realize the risk involved. (E.g., Spivey v. Brown (1986), 150 Ill. App. 3d 139, 144, 502 N.E.2d 23, 26 (“In this case, the fireplace, in its normal state, was not an inherently dangerous instrument”).) To impose strict liability the danger must go beyond that which would be contemplated by the ordinary consumer. Restatement (Second) of Torts §402A, Comment i, at 352-53 (1965); Becker v. Aquaslide ‘N’ Dive Corp. (1975), 35 Ill. App. 3d 479, 489, 341 N.E.2d 369, 376.

We hold the implied private cause of action created by the Act is a negligence action and not a strict liability action. This cause is remanded to the circuit court for further proceedings consistent with this opinion.

Certified questions answered; cause remanded.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELANO DENSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—1686
    Opinion filed February 26, 1993.

      Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Kevin J. Golden, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

On April 12, 1990, defendant, Delano Denson (Denson), pled guilty to one count of unauthorized use of a weapon by a felon and one count of robbery. On May 11, 1990, defendant mailed a pro se motion to withdraw his guilty plea. After hearing, defendant’s motion to vacate his guilty plea was denied.

Defendant raises three issues on appeal: (1) whether the trial court erred in failing to provide Denson with a transcript of the guilty plea proceedings as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)); (2) whether the trial court conducted an adequate hearing to determine the merits of defendant’s claim that his guilty plea was involuntary; and (3) whether the trial court erred in allowing Denson to proceed pro se without first ascertaining whether Denson wanted legal counsel other than the public defender present who Denson was alleging was ineffective and coerced his original plea.

At oral argument in this case, the court learned that Denson is due to be released in one week. Unfortunately, this appeal has followed the current course of many criminal appeals in which the defendant has either served his term or is eligible for parole by the time the appeal is decided. We mention this to express the court’s concern over delays in all aspects of the appellate system, but stress that these concerns have no bearing on our determination of the merits of this or any other appeal pending before this court.

The facts of the case are as follows. On April 12, 1990, Denson entered a plea of guilty to one count of unauthorized use of a weapon by a felon and one count of robbery. At this hearing defendant was represented by Assistant Public Defender LaFarell Moffett (APD Moffett). The trial judge accepted Denson’s plea and imposed concurrent sentences of seven and two years for robbery and unlawful use of a weapon, respectively.

The transcript from April 12, 1990, discloses the following. The trial court admonished the defendant that his attorney had requested a conference in the matter. The matter was passed and the record indicates that a conference would be held. After a conference, the trial judge read each of the charges to the defendant. Defendant indicated that he understood each of the charges and expressed his desire to plead guilty. Prior to accepting the defendant’s guilty pleas, the trial judge advised the defendant of his rights and attempted to determine whether the defendant understood those rights. The trial judge asked and Denson indicated he understood that by pleading guilty to the charge of unlawful use of a firearm by a felon, he could be sentenced to the penitentiary for a term of not less than two nor more than five years, or under certain circumstances, not less than 5 nor more than 10 years. The court then stated: “As to the charge of robbery, that’s a class 2 felony, but because of your prior contact of which we have been made aware, it becomes a class X felony. So the possible penalty in that case is not less than 6 nor more than 30, and under certain circumstances extended not less than 30 but no more than 60 years.” Denson stated he understood. Denson testified that he understood that he had a right not to plead guilty and that by pleading guilty he was giving up certain rights including the right to a jury trial. The judge asked if Denson understood what a jury trial was and asked Denson to explain to him what it means. Denson replied, “Twelve people decide my case.” Denson asked the judge if he would get credit for the two months he had already served since his arrest on the robbery charge.

The trial court also informed Denson that by pleading guilty he was waiving his right to a bench trial, his right to confront witnesses, his right against self-incrimination, his right to remain silent, the right to cross-examine witnesses, the right to object to unreasonable searches and seizure, and the right to object to identification testimony. Defendant indicated that he understood he was waiving each of those rights.

When the trial court asked if Denson was entering the guilty plea freely and voluntarily, Denson responded, “What do you mean?” To which the trial court questioned, “Nobody threatened you?” Denson replied, “No.” The trial court indicated that if Denson chose to plead guilty, the State would recommend seven years in the Department of Corrections on the robbery charge, and two years on the unlawful use of a weapon charge, the sentences to run concurrently. Denson stated he understood that. Finally, the trial judge asked Denson if anyone had made him any other promises. Denson replied, “No.”

Before imposing sentence the trial judge advised Denson that he had a right to a presentence investigation and written report and that if Denson chose to give up that right, the trial judge was allowed to impose sentence at that time. APD Moffett indicated that Denson had executed the appropriate waiver. When asked if he had anything to say before the trial court imposed sentence, Denson replied, “Upon my release, I hope I become a better young man. That’s all.”

On May 11, 1990, Denson mailed notice of a motion to withdraw his guilty plea to the court. In the affidavit attached to the motion, Denson alleged the ineffectiveness of his counsel, specifically asserting: (1) that his counsel coached him to plead guilty; (2) his counsel failed to consult with him before trial and never investigated any of the facts of the case; (3) that counsel never intended to take the case to trial; (4) Denson was intimidated by threats of receiving a maximum term if he did not plead guilty; and (5) Denson did not understand the court system or the extent of his guilty plea.

On June 11, 1990, at the hearing on the motion to vacate Den-son’s guilty plea, APD Moffett appeared on the record and informed the court that Denson filed a motion to withdraw his guilty plea alleging ineffective assistance of counsel. APD Moffett indicated that he was the attorney who represented Denson on the date the pleas were entered, that both of the charges were conferenced and pleas of guilty were entered at that time. He further indicated that the motion sought to withdraw the plea of guilty to the robbery charge and Den-son was seeking to proceed on a pro se basis.

The trial court admonished Denson that he had a right to an attorney and to have one appointed to him. Denson indicated that he understood each of those rights, yet he still wished to proceed alone. A transcript of the prior guilty plea proceedings was not prepared prior to this hearing. After passing the matter to allow the State to look at the motion, the trial court asked Denson if there was anything he wanted to add to his written motion or if he had any witnesses he wanted to call. Denson responded no to each of the questions.

The prosecutor indicated that his recollection was that APD Moffett asked that the case be passed, so he could consult with the defendant, and that APD Moffett spent a considerable amount of time with Denson before he returned to inform the State that Denson was willing to accept the plea. The prosecutor stated that before the plea was actually taken, the trial judge admonished defendant at length regarding his rights. The trial court asked Denson if there was anything he wished to say. Denson responded, “At that time that I was — I was coming to conference for a cop-out for the two years. I wasn’t ready for the robbery case, your Honor. *** You know, so he explained all that to me, but I misunderstood all that because I was warned — we had set a date for conference for the UUW.”

The trial court denied the motion to vacate the plea of guilty. The trial judge advised Denson that he had a right to appeal the decision of the trial court and asked if Denson wanted him to appoint somebody for purposes of appeal. Denson indicated that he wanted someone appointed and asked if it was possible for him to “get a time cut or anything on the case?” The court responded, “[I]t’s always possible to have anything done, but in this case, and I have a clear recollection of this case, we would not be of such a mind.” Denson filed this timely appeal.

For the following reasons, we must reverse and remand the matter for further proceedings.

Denson’s hearing on his motion to vacate his guilty plea was held on June 11, 1990. The transcript of his original plea proceedings held on April 12, 1990, was not prepared until June 24, 1992. Defendant argues that since Denson was not provided with a copy of this transcript prior to the June 11, 1990, hearing, the trial court failed to assure that the mandates of Supreme Court Rule 604(d) were adhered to.

Supreme Court Rule 604(d) provides in pertinent part:

“If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost. The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (134 Ill. 2d R. 604(d).)

The mandates of Supreme Court Rule 604(d) must be strictly adhered to. (People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, 221-23; see also People v. Hoskins (1992), 237 Ill. App. 3d 897, 605 N.E.2d 117; People v. Byers (1990), 196 Ill. App. 3d 502, 507-08, 554 N.E.2d 317;

People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30.) The Illinois Supreme Court in People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221, stated:

“[T]here is a general perception in our criminal justice system, in spite of our holdings in People v. Frey (1977), 67 Ill. 2d 77, and People v. Stacey (1977), 68 Ill. 2d 261, that a complete relaxation of Rule 604(d) is acceptable in this State. We hold today that it is not.
At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions. It is incumbent upon counsel and courts alike to follow them. Rules 402, 604(d) and 605(b), which concern guilty pleas, are meant to mesh together not only to ensure that defendants’ constitutional rights are protected, but also to avoid abuses by defendants.”

Applying Wilk to the instant case, we hold that the failure to provide Denson with a transcript of the plea proceedings prior to the hearing on the motion to withdraw the plea fell short of the necessary strict compliance.

In People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, defense counsel did not file a Rule 604(d) certificate, counsel did not review the transcript of the guilty plea hearing and defendant was indigent and not supplied a copy of the transcript. The Fifth District Appellate Court stated:

“We are obliged to follow the supreme court ruling in Wilk and hold that defendant be allowed to file a new motion to withdraw his guilty plea and be allowed a new hearing due to defense counsel’s error in not filing the required Rule 604(d) certificate and by not reviewing the guilty plea transcript. This is so even though, as pointed out by the State, defense counsel’s failure to examine a verbatim transcript of the hearing was most likely de minimis since the hearing was held only one week after the actual guilty plea hearing and defense counsel could most likely remember what was said at the hearing. Moreover, even though the guilty plea hearing transcript, which was a part of the record on appeal, reveals that the plea was voluntary, we are compelled to follow the supreme court’s directive in Wilk that Rule 604(d) contains rules which must be followed and are not merely suggestions. We no longer approach these cases in terms of whether the error in failing to comply with Rule 604(d) was harmless or prejudicial, but instead follow a rule of strict compliance.” (Hayes, 195 Ill. App. 3d at 960-61.)

We find the reasoning in Hayes persuasive on this issue. In the present case, as in Hayes, the transcript of the plea proceedings is contained in the record on appeal, and although the transcript reveals that the plea was voluntary, a strict interpretation of Rule 604(d) does not allow us to dismiss the error as harmless.

The State acknowledges that defendant did not receive a copy of the plea transcript, but maintains that this error was harmless. The State cites several cases which have held the failure to strictly comply with Supreme Court Rule 604(d) to be harmless error. See People v. Gabala (1991), 211 Ill. App. 3d 351, 570 N.E.2d 377; People v. Taylor (1982), 110 Ill. App. 3d 1140, 443 N.E.2d 699 (failure to file a formal certificate as required by rule only harmless error as long as defense counsel substantially complied with rule); People v. Lyell (1982), 109 Ill. App. 3d 819, 441 N.E.2d 78 (strict compliance with Rule 604(d) is required and failure to comply will be held reversible error except in situations where the record indicates that the failure to comply was harmless error); People v. Steinmetz (1982), 110 Ill. App. 3d 439, 442 N.E.2d 645 (failure to file certificate of compliance or transcript harmless error where record shows trial counsel performed every function contemplated by the rule); People v. Hopson (1981), 101 Ill. App. 3d 564, 428 N.E.2d 680 (strict compliance with requirement for filing a certificate that counsel had consulted with defendant to ascertain his contentions of error in entering a plea of guilty were harmless error where record reveals that counsel has performed all the functions required by the rule).

With the exception of People v. Gabala, all the cases cited by the State preceded the Illinois Supreme Court’s decision in Wilk. In Gabala, the court held that substantial compliance with Rule 604(d) is adequate under certain circumstances. However, recently, in People v. James (1992), 233 Ill. App. 3d 963, 599 N.E.2d 960, this division held that failure to file a certificate as required by Rule 604(d) fell short of the necessary strict compliance. Applying Wilk, this court recognized that the holding in James conflicted with Gabala, but also stated that the court believed Gabala was contrary to the clear import of Wilk. We must agree with this court’s holding in James.

In light of the Illinois Supreme Court’s holding in Wilk, and this court’s own holding in James, we must find that the trial court erred in failing to strictly comply with Supreme Court Rule 604(d). Therefore, we reverse the decision of the trial court denying the defendant’s motion to withdraw his plea of guilty, and remand the cause for further post-plea proceedings. Defendant will be allowed to file a new motion to withdraw his guilty plea and will be allowed a hearing on the new motion.

Defendant’s second argument is that the trial court failed to conduct an adequate hearing on defendant’s motion to withdraw his guilty plea. The general rule is that it is within the sound discretion of the trial court to determine whether a guilty plea may be withdrawn, and absent showing of an abuse of discretion, a reviewing court will not disturb that decision. People v. Davis (1991), 145 Ill. 2d 240, 244, 582 N.E.2d 714.

“ Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, ■ or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.’ ” (Davis, 145 Ill. 2d at 244, quoting People v. Morreale (1952), 412 Ill. 528, 531-32, 107 N.E.2d 721.)

The burden is on the defendant to establish that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impression. (People v. Hale (1980), 82 Ill. 2d 172, 176, 411 N.E.2d 867.) However, in light of our determination that the matter must be remanded to the trial court for a new hearing, we need not address the adequacy of the initial hearing.

Defendant also argues that the trial court erred in allowing him to proceed pro se without first determining whether he wanted the assistance of legal counsel other than the assistant public defender who had originally represented him. Since we have remanded the matter for a new hearing, we need not address the merits of this issue. It is apparent from' Denson’s argument on appeal that defendant is aware that he may have different counsel appointed or proceed pro se.

Accordingly, for all the reasons set forth above, we reverse the decision of the trial court denying the motion to vacate the guilty plea and remand the matter for a new hearing on the motion.

Reversed and remanded with directions.

GORDON, P.J., and COUSINS, J., concur.

      The filing of a certificate by an attorney is not at issue in this case as the defendant appeared pro se.

      We note, although Gabala was decided subsequent to Wilk, the court relied only on cases decided prior to Wilk. See People v. Lyell (1982), 109 Ill. App. 3d 819, 441 N.E.2d 78; People v. Lange (1978), 59 Ill. App. 3d 603, 375 N.E.2d 919; People v. Norris (1977), 46 Ill. App. 3d 536, 361 N.E.2d 105; People v. Evans (1977), 46 Ill. App. 3d 689, 690, 361 N.E.2d 77.


author: JUSTICE COUSINS

text:
    MID-TOWN PETROLEUM, INC., Plaintiff-Appellant, v. ROBERT M. GOWEN et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—92—2849
    Opinion filed February 26, 1993.

      Katz, Randall & Weinberg, of Chicago (Warren Lupel and Charles E. Alexander, of counsel), for appellant.
    Ernest L. Gowen & Associates, Ltd., of Oak Forest (Ernest L. Gowen, of counsel), for appellees.
   JUSTICE COUSINS

delivered the opinion of the court:

After a preliminary hearing, the trial court entered an order denying the motion of plaintiff, Mid-Town Petroleum, Inc. (Mid-Town), for a preliminary injunction to enjoin defendant, Robert M. Gowen (Gowen), from soliciting, calling upon, diverting, or taking away any of the customers or accounts of Mid-Town. Plaintiff, Mid-Town, files this interlocutory appeal pursuant to Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)).

On appeal, plaintiff contends that the trial court abused its discretion in denying plaintiff’s request for preliminary injunction in that the trial court’s findings are against the manifest weight of the evidence.

We affirm.

Background

The plaintiff, Mid-Town, is in the business of selling and distributing petroleum products. The defendant, Paulson Oil (Paulson), is in the same business. Gowen was a 15-year employee, as a sales representative with Mid-Town from 1977 to April 7, 1992, when he resigned. In August 1991 while employed by Mid-Town, Gowen signed an employment agreement in which he agreed, among other things, to refrain from soliciting business from customers at Mid-Town for a period of 18 months following termination of employment. Gowen was promoted to sales manager simultaneously with the signing of the August agreement. A written job description of Gowen’s duties as sales manager provided, among other things, that he would report to the chief executive officer (CEO). On April 6, 1992, Gowen was informed by the CEO that he would no longer report to the CEO. He formally resigned from Mid-Town the next day. On April 27, 1992, Gowen commenced employment as a sales representative for Paulson. Admittedly, he immediately began to solicit business from some customers he had serviced at Mid-Town.

On May 11, 1992, plaintiff, Mid-Town, filed its verified complaint against defendants, Gowen and Paulson, for injunctive and other relief. On motion of plaintiff for a temporary restraining order and preliminary injunction filed May 11, 1992, the trial court, on May 13, 1992, entered a temporary restraining order and set July 24, 1992, for hearing on the preliminary injunction motion. A hearing on the motion for preliminary injunction was commenced and concluded on July 24, 1992. At the conclusion of the hearing, the trial court determined that it was unlikely that the plaintiff would win on the merits concerning enforceability of the employment agreement. The court dissolved the temporary restraining order and denied the motion for preliminary injunction. Only two witnesses, William Battersby, chief executive officer of Mid-Town, and the defendant, Robert M. Gowen, testified at the hearing.

Battersby testified as follows.

Mid-Town is engaged in the business of distributing and selling lubricant oils, and he had served as president and chief executive officer since approximately May 1991.

Upon his election as president and chief executive officer, he initiated a practice of requiring all employees to sign an employment agreement. No such practice existed prior to 1991.

He informed Gowen, as he had all other employees, that he, Go-wen, would have to sign the employment agreement or be discharged. Gowen initially refused to sign in July 1992. Then, on August 21, 1992, Gowen was also appointed sales manager, which was a new position at Mid-Town. At that time, Gowen signed the employment agreement,

Gowen received no consideration other than continuation of his employment in return for execution of the employment agreement.

In April 1992, Battersby told Gowen that he was going to change Gowen’s responsibilities as sales manager so that, among other things, Gowen would no longer report to the CEO.

The salesmen would call Gowen on their car phones. Battersby felt it was taking too much time out of Gowen’s selling. When informed of the change, Gowen mentioned that he thought it was in everyone’s best interest that he leave Mid-Town’s employment. Battersby thought Go-wen viewed it as a major change in his sales management position and just didn’t want to face the salesmen. Battersby rejected an offer of Go-wen to stay on two weeks longer after resignation.

Mid-Town had six salesmen when the agreements were signed. Mid-Town now has four salesmen. Gowen has never been replaced as sales manager. The position of sales manager had not existed prior to August 1991. It was Battersby’s idea to create the position.

Battersby was 35 years old at the time of the evidentiary hearing. He had been employed at Mid-Town for approximately 12 years. He was hired by his father, Ray Battersby, who was his predecessor as president.

Gowen testified as follows.

Mid-Town had two salespersons already employed when he first started. He had 150 solid customers while employed with Mid-Town.

An employment agreement was presented to him in July by Battersby which he refused to sign. Battersby advised him that he would no longer work for Mid-Town if he refused to sign. Gowen again refused to sign in July.

Approximately four weeks later, Battersby again requested that he sign the employment agreement, and he again refused. A few days later, sometime during late August 1991, Battersby informed him that Mid-Town needed a sales manager and he qualified for that position. Battersby said he had no idea what a sales manager did and instructed Gowen to prepare a job description outlining what he felt the job of sales manager would encompass. He did so and presented it to Battersby a day or two later. Battersby glanced at it, told him it was fine, and offered him the job.

Battersby then asked him to sign the employment agreement. He signed. Gowen felt that the sales manager position was a window of opportunity for his career.

On April 6, 1992, Battersby informed him that there were going to be some changes taking place. He would no longer report to Battersby. He would no longer have responsibility for the salesmen. He would report to Ron Valacity, vice-president. The salesmen would report on a daily basis to Ron Valacity. He would be responsible only for the training of the salesmen, product training. The next day, he advised Battersby that this change was unacceptable and that he was resigning. Battersby told him he was doing them a favor. He received two weeks’ vacation pay and a profit-sharing check for money he had accumulated.

In a letter to Mid-Town, written after his resignation, Gowen indicated that he signed the agreement in consideration of receiving the job as general sales manager. He worked for Keystone and sold lubricants for nine years before he began work for Mid-Town. He received no training when he went to work for Mid-Town. He wasn’t assigned any existing accounts when he went to work for Mid-Town. He had no specific territory. His last salary at Mid-Town was around $32,000 annually or $635 weekly.

The agreement regarding the sales manager’s position provides: reporting to the CEO, William Battersby. The agreement further provides that the newly created position of sales manager will start by splitting the areas of responsibilities between 80% personal sales (with a stronger concentration on larger accounts) and 20% sales management duties. Every six months the percentages are to be reviewed. Duties of the sales manager are set forth. The duties include: sales training; coordinating specific market penetration with telemarketing and CEO; positive motivation; semi-annual reviews to start of all sales personnel, and developing long- and short-term marketing plans.

During the course of arguments, the trial court made the following comments:

“Sounds to me like the oral agreement tó promote Mr. Gowen was combined with and based on consideration that he sign the employment contract. In other words, there was one contract which was the contract to promote him combined with his signing the employment contract. That’s what it sounds like to me. Another question comes. Did the reduction in the duties of Mr. Gowen — were they so substantial as to terminate the sales manager’s job except for holding training sessions for sales persons? In other words, they didn’t report to him. He no longer had his position where he reported to the chief officer and president, but to a vice president like all the other sales persons') and I’d like to hear any arguments you might have against that.

Mr. Lupel: Sure, your honor. Two things. First, in order to find that the Court would have to disbelieve the plaintiff and believe the defendant, it was the plaintiff’s testimony that this was not the case. That they were not signed contracts ***.

THE COURT: *** [Wje’re talking about a conclusion of law as to whether or not they’re combined contracts.”

After the testimony of the witnesses Battersby and Gowen, the following proceedings ensued:

“Mr. Lupel: If the court please, the plaintiff has nothing further.

Mr. Gowen: Your honor, if I may, with plaintiff resting, I’d like to submit a motion for directed verdict.

THE COURT: I want to know if you have any other witnesses?

Mr. Gowen: I have nothing further.

THE COURT: Okay, for the record, I’m combining the motion for directed verdict and the closing arguments.”

At the very conclusion of all proceedings, the court ruled:

“THE COURT: Okay. It is my decision that I can’t say there’s likelihood that plaintiff will win on the merits as to the enforceability of the employment agreement. And so, I am going to dissolve the TRO.”

Plaintiff brings this interlocutory appeal.

Opinion

Although phrased in the negative, the sole finding which the trial court expressed in its decision at the conclusion of the hearing was that it was unlikely the plaintiff would prevail on the merits of the case. This is one of the issues on which a party seeking an injunction must carry the burden of persuasion.

We now consider whether or not the trial court’s denial of the plaintiff’s request for a preliminary injunction was against the manifest weight of the evidence thereby abusing discretion.

A party seeking a preliminary injunction must carry the burden of persuasion on four issues: (1) that there is no adequate remedy at law and there will be irreparable injury if the injunction is not granted; (2) the threatened injury to him will be immediate, certain, and great if the injunction is denied while the loss or inconvenience to the defendant is comparatively small and insignificant if granted; (3) there is a reasonable likelihood of prevailing on the merits of the case; and (4) there would be no injurious effect upon the general public. (Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1144, 441 N.E.2d 927, 931; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 398, 372 N.E.2d 125, 128; McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 417, 364 N.E.2d 420, 421.) The trial court is vested with a large measure of discretion to grant or refuse to grant a preliminary injunction and its determination will not be overturned on review absent a showing of the abuse of discretion. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502, 392 N.E.2d 1148, 1151; Office Electronics, 56 Ill. App. 3d at 398, 372 N.E.2d at 128.) A preliminary injunction is an extraordinary remedy and should be granted with the utmost care. Shorr Paper Products, 74 Ill. App. 3d at 505, 392 N.E.2d at 1153; Office Electronics, 56 Ill. App. 3d at 398, 372 N.E.2d at 128.

The sole role of an appellate court in addressing the grant or refusal to grant an interlocutory decree in an action for injunctive relief is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers. (Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414, 416-17.) Thus, a court of review looks to the sufficiency of the evidence not to determine controverted rights or to decide the merits of the case, but only for the limited purpose of ascertaining whether the trial court abused its discretion. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166, 1171; Armour & Co. v. United American Food, Processors, Inc. (1976), 37 Ill. App. 3d 132, 135, 345 N.E.2d 795, 798.

A post-employment restrictive covenant will be enforced if the terms are reasonable. Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 744, 566 N.E.2d 379, 384.

Illinois courts have signaled support for the rule that continued employment for a substantial period beyond the threat of discharge is sufficient consideration for a restrictive covenant. (Office Electronics, 56 Ill. App. 3d at 399 (agreement entered into 12 years after employment began is enforceable where employee continued working for over four years; covenant was a “quid pro quo of *** continued employment”); Smithereen Co. v. Renfroe (1945), 325 Ill. App. 229, 243-44, 59 N.E.2d 545 (agreement entered into three years after employment began is enforceable because agreement was made “in consideration of the employment of defendant by the plaintiff” and defendant in fact “continued in the employ of plaintiff” for five more years).) Although not directly addressing the issue of consideration, other Illinois courts have enforced restrictive covenants entered into after employment began where the employee continued in the job for a substantial period. Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648; Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433; Shorr Paper Products, 74 Ill. App. 3d 498, 392 N.E.2d 1148.

The defendant contends that the evidence fails to establish sufficient consideration to support the covenant in the employment agreement. We agree.

The facts addressed establish that Gowen had been in plaintiff’s employment since 1977. None of plaintiff’s employees had been asked to sign an employment agreement prior to July 1991. Gowen refused to sign the agreement in July 1991, although Battersby told him that he would be terminated if he didn’t sign. Battersby then offered him the sales manager’s position, which provided that he would report to Battersby, the CEO, among other duties. He did not sign the employment agreement until the sales manager position was offered and agreement reached as to the description of the sales manager position.

He continued employment from the end of August 1991 to April 6, 1992. The day before he formerly resigned, Battersby, among other things, told Gowen that he would no longer be reporting as sales manager to the CEO. At the time Gowen resigned, Battersby told him that he was doing them a favor. No sales manager position existed at MidTown before 1991, and none has existed since April 6,1992.

During the course of arguments, the trial court commented:

“Sounds to me like the oral agreement to promote Mr. Gowen was combined with and based on consideration that he sign the employment contract. *** Another question comes. Did the reduction in the duties of Mr. Gowen — were they so substantial as to terminate the sales manager’s job except for holding training sessions for sales persons?”

The defendant cited the Millard case before the trial court and argues its holding on appeal. (Millard, 207 Ill. App. 3d 736, 566 N.E.2d 379.) In Millard, the employee, Bernero, worked for Millard from September 1980 through January 26, 1989. He had no previous work experience in the field. He signed three post-employment agreements dated September 30, 1980, January 1, 1981, and November 21, 1985. After the third agreement, he continued employment until January 26, 1989. Continued employment for a substantial period was sufficient consideration. (Millard, 207 Ill. App. 3d at 745, 566 N.E.2d at 384.) In Millard, we note that the trial court issued a preliminary injunction based on a post-employment contract and the trial court’s decision was affirmed.

Here, Gowen’s continued post-contract employment was approximately seven months. We note, here, that Gowen’s continued post-contract employment was comparatively insubstantial.

In McRand, defendants did not sign employment agreements when plaintiff hired them, but continued to be employed for eight years and nine years, respectively, after signing an original covenant and were employed for two years after signing the covenant before resigning. (McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.) In McRand, the appeals court stated: “We therefore find that sufficient consideration exists ***.” McRand, 138 Ill. App. 3d at 1056, 486 N.E.2d at 1314.

The principles of McRand were applied in the recent case of Corron & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 494 N.E.2d 785. In Corroon, the court wrote: “[ajpplying these principles [of McRand] to the instant case, we conclude that, as a matter of law, sufficient' consideration exists ***. The record shows that Magner signed the agreement on September 24, 1979, and resigned on June 30, 1984. Thus, plaintiff gave to Magner four years of continued employment in exchange for signing the agreement.” Corroon, 145 Ill. App. 3d at 163, 494 N.E.2d at 791-92.

Again, when measured with facts which support the holding in Corroon, the time period Gowen worked after the agreement is insubstantial. The time period Gowen worked before the agreement is substantial.

In this case, the trial court had to weigh the testimony regarding the offer, acceptance and reduction of the sales manager position. We believe the facts are sufficient to support a finding by the trial court that Gowen would not have continued employment without the offer to become sales manager.

Absent adequate consideration, a covenant, though otherwise reasonable, is not enforceable in equity. (Millard, 207 Ill. App. 3d at 744, 566 N.E.2d at 384.) Whether Gowen received adequate consideration is a question of fact in this case. Both fact and credibility issues were before the court. In a trial before the court without a jury, the credibility of witnesses and the weight to be accorded their testimony are still to be determined by the trier of fact. Unless manifestly against the weight of the evidence, the findings will not be disturbed. Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 181,148 N.E.2d 584, 591.

Finally, plaintiff strongly argues that any consideration is sufficient to support a contract. This argument is the bedrock of contract law. However, while a peppercorn can be considered sufficient consideration to support a contract in a court of law, a peppercorn may be insufficient consideration in a court of equity to support a prayer for the issuance of a preliminary injunction. Equity is defined as follows:

“Justice administered according to fairness as contrasted with the strictly formulated rules of common law. *** The term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.” Black’s Law Dictionary 540 (6th ed. 1990).

We hold that the trial court properly denied the plaintiff’s motion for preliminary injunction and did not thereby abuse its discretion.

Affirmed.

GORDON, P.J., and McNULTY, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN EVANS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—3510
    Opinion filed March 2, 1993.
    Rita A. Fry, Public Defender, of Chicago (Denise R. Avant, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Kevin Evans was arrested on January 31, 1991, and on February 13, 1991, he was indicted for his unlawful possession of a stolen automobile in violation of section 4 — 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 4 — 103(a)(1)). On February 1, 1991, while in pretrial detention, he submitted a form by which he made a demand for a jury trial. At some point during the pretrial phase of this action, the State proffered a negotiated plea to defendant’s counsel, a public defender, but, apparently, this offer was not conveyed to defendant until he appeared before the trial court on the day of his trial, which had been previously continued five times.

Counsel for defendant informed the court that the State had offered defendant a term of three years in the custody of the Illinois Department of Corrections in exchange for a guilty plea to the crime charged, but that she had not as yet told him of it. Although the trial court initially ordered her to inform defendant of the offer, the judge subsequently assumed the responsibility himself. After the court advised defendant of the offer by the State, it demanded to know immediately if he would accept it, stating that the case would be an easy one to try as the only witness to the incident was already in court.’ When defendant asked for time to consider the offer, the court replied that he already had been given all the time he would receive.

Defendant responded by stating that he was ready to go to trial, presumably intending to decline the State’s offer. From this statement, the trial court found that defendant had waived his right to a jury trial and that the waiver was made knowingly and intelligently. Neither the prosecutor nor defense counsel advised the court of defendant’s written jury demand, which presumably was in their files of the case. Consequently, the court proceeded to conduct a bench trial.

After both sides waived opening statements, the State called Chicago police officer Cawley, a foot patrolman, who testified that on January 31, 1991, while directing traffic at the corner of 1130 West Lawrence Avenue, he observed defendant and another African-American male in a 1986 Buick stopped in the eastbound lane of Lawrence Avenue, with defendant in the driver’s seat. The vehicle was tagged with license plates unique to auto dealers and still bore the warranty sticker on a side window. Cawley stated that these factors, combined with the lateness of the day and the fact that it was a holiday, caused him to wonder whether the two occupants of the vehicle were on a test drive or whether the car was stolen.

Accordingly, he instructed defendant to pull to the side of the road in order that Cawley could check the status of the vehicle. At first, defendant appeared to comply with Cawley’s instructions, but at the last moment, he fled eastbound on Lawrence. At that point, in response to his query, Cawley received word over his radio that a 1986 Buick with the license number of the one driven by defendant was reported stolen from Allen Jacob Buick on January 27, 1991. Cawley immediately issued a flash message for the apprehension of defendant.

Defendant was ultimately stopped at Wilson Avenue and Sheridan Road, where he was detained and identified by Cawley as being the subject of his earlier flash message. On cross-examination, Cawley admitted that when he originally spotted the vehicle on Lawrence Avenue, the steering column of the Buick was not “peeled back,” exposing the inner workings of the column, which is one way of telling that the auto was stolen. Cawley also conceded that, in fact, he saw keys in the ignition.

The parties stipulated that if called to testify, Anthony Anderson, an agent of Allen Jacob Buick, would state that the dealership owned the 1986 Buick found in defendant’s possession, that the car was stolen on January 27, 1991, and that no agent of the dealer had authorized anyone, including defendant, to take possession of the auto. After the State rested, defendant moved for a “directed finding,” which the trial court denied. The defense then rested, and the court found the defendant guilty of the crime charged.

A presentence investigation report revealed that defendant had two prior convictions. In December 1987, he was convicted of unlawful use of a weapon and sentenced to 24 months’ probation, and in December 1988, he was convicted of the manufacture and/or delivery of a controlled substance, namely cocaine, and sentenced to four years in the custody of the Illinois Department of Corrections. Defendant’s education extended only to the tenth grade. He was last employed in 1987, when he worked in the fast-food industry. The report also indicated that defendant, although unmarried, was the father of a three-year-old girl.

At the sentencing hearing, the State, relying on the facts of the case and defendant’s prior convictions as factors in aggravation, sought an extended-term sentence. As mitigating factors, defendant pointed to his age (21 years old at the time of the hearing); his employment history (worked for two fast-food restaurants only a few years before); and that he was never convicted of a violent crime.

The court sentenced defendant to an extended term of nine years’ imprisonment. It expressly stated that it based its sentencing decision on defendant’s prior criminal history. In the process of passing sentence, the court offered defendant suggestions on matters he should ponder while serving his sentence; for instance, that he should decide what to do with his future in view of his lack of education and, more important, he should determine how best to provide for the future of his daughter. After the sentencing hearing, defendant timely filed his notice of appeal.

I

Although defendant raises three issues on appeal, given our resolution of the first one, we need not reach the other two. The main issue is whether defendant made a knowing and intelligent waiver of his right to be tried by a jury. Defendant asserts that because the record contains no affirmative act or statement on his part or that of his counsel which manifested either a relinquishment of the right or even an understanding of the consequences of a waiver (i.e., having a bench trial with the court sitting as the trier of fact), the trial court, by not securing such a waiver on the record, committed reversible error.

The State responds that the failure of the defendant and his counsel to object to the trial court’s express finding that defendant waived his right to a jury trial, as well as the defense’s tacit acquiescence in the court’s subsequent conduct of the trial as a nonjury matter, sufficiently conveyed the message that defendant waived his right to a jury trial. In the State’s view, its acquiescence argument is consistent with and, in fact, merely a logical extension of the holding in prior cases that where a defendant’s counsel orally waives the right to a jury trial in the defendant’s physical presence, the defendant will be deemed to have approved of the waiver and thus to have been bound by it.

A

We note, without the State’s urging the point, that defendant failed to assert the issue of the inadequacy of his jury waiver in his post-trial motion for a new trial, but raises it for the first time on appeal. In People v. Smith (1985), 106 Ill. 2d 327, 478 N.E.2d 357, our supreme court implied that the adequacy of a jury waiver would be susceptible to the waiver rule later enunciated in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124. But, as Smith observed: “The waiver rule is one of administrative convenience rather than jurisdiction, however, and we have provided by rule that plain errors affecting substantial rights may be noticed on review though not brought to the trial court’s attention [citation].” Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360, citing 87 Ill. 2d R. 615(a).

Consequently, while defendant’s failure to raise this issue in his motion for a new trial may constitute a waiver of it for the purposes of appeal, invocation of the plain error rule is appropriate here. It has long been noted that “[i]t is solely within the discretion of the reviewing court to consider alleged errors not raised or presented at trial.” (People v. McCullum (1977), 66 Ill. 2d 306, 315, 362 N.E.2d 307, 311; see also People v. McAdrian (1972), 52 Ill. 2d 250, 255, 287 N.E.2d 688, 691.) Under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), we may address and rectify errors not properly preserved which affect the substantial rights of a defendant. The supreme court has explained that substantial rights are deleteriously affected where either the evidence is “closely balanced” or where the error is of such magnitude that its commission denied the accused a fair trial. People v. Young (1989), 128 Ill. 2d 1, 46-47, 538 N.E.2d 453, 471.

Defendant asserts that the trial court, in its anxiety to resolve the case before it, glossed over the fundamental nature of the right and that this would be the type of trial mistake the plain error rule was intended to correct. Moreover, in People v. Hall (1991), 221 Ill. App. 3d 864, 583 N.E.2d 54, we recently invoked the plain error rule to review the validity of a jury waiver even though the State argued waiver, because the defendant did not raise the issue in his post-trial motion. Here, in contrast to Hall, the State does not rely on or even contend that the issue is waived. The State therefore will not be heard to complain that it will suffer prejudice as a result of our invocation of plain error to review the issue of jury waiver. Accordingly, given this lack of prejudice to the State, the long-recognized importance of trial by jury in our system of government, and the trial court’s cursory manner of treating with defendant’s right to a jury, we elect to consider this issue as being within the scope of the plain error doctrine.

B

In Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, the Supreme Court discussed the importance of the right to a trial by jury and it held that because the right was “fundamental to the American scheme of justice,” the due process clause of the fourteenth amendment prohibits the imposition of “serious” punishment unless the State has afforded the defendant a trial by jury. (Duncan, 391 U.S. at 149, 20 L. Ed. 2d at 496, 88 S. Ct. at 1447.) Subsequently, in Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the court held that because a plea of guilty waives fundamental rights, including the right to a trial by jury, the acceptance of any such plea will be constitutionally infirm unless the record clearly manifests that the defendant knows and understands the rights he foregoes by his plea. Accordingly, one may reasonably infer that it would be equally invalid to accept the bare waiver of the right to a jury trial, absent a clear manifestation that defendant truly appreciated what he has waived. See Smith, 106 Ill. 2d at 339, 478 N.E.2d at 362 (Moran, J., concurring in part, dissenting in part).

The right to trial by jury is guaranteed as well by the Illinois Constitution, which states: “In all criminal prosecutions, the accused shall have the right to *** have a speedy public trial by an impartial jury ***.” (Ill. Const. 1970, art. I, §8.) To enforce this State right to a trial by jury as well as its co-existent Federal counterpart, our legislature , enacted section 103 — 6 of the Code of Criminal Procedure, which provides in pertinent part: “Every person accused of an offense shall have the right to a trial by jury unless (i) understanding^ waived by defendant in open court.” Ill. Rev. Stat. 1991, ch. 38, par. 103 — 6.

In construing this provision, our supreme court has held that it imposes an obligation on the trial court to ascertain and ensure that the election to forego a trial by jury is made both expressly and with an understanding of the nature of the rights waived. (Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360; People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197; County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 356, 282 N.E.2d 720, 722; People v. Clark (1964), 30 Ill. 2d 216, 220, 195 N.E.2d 631, 634.) Although the determination of whether defendant has waived this right with knowledge and understanding is not formulaic, it nevertheless turns on the facts and circumstances of each case, as evidenced by its record. People v. Tye (1990), 141 Ill. 2d 1, 24, 565 N.E.2d 931, 942; Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360; Frey, 103. Ill. 2d at 332, 469 N.E.2d at 197.

Smith provides the analytical method by which we determine whether a trial court has complied with its duty to ascertain that a waiver of a jury trial was knowingly and intelligently made. The court in that case found that where the common law record indicates that the defendant opts for a bench trial, it gives rise to an inference that the jury waiver was made with knowledge and understanding of its implications. It then becomes incumbent on the defendant, the party alleging it, to establish the error by showing that the common law record does not correctly reflect what actually transpired. He can accomplish this by providing a verbatim transcript of the proceeding, “a proposed report of the proceedings or an agreed statement of facts.” Smith, 106 Ill. 2d at 334, 478 N.E.2d at 361.

In Smith, the common law records in both cases incontrovertibly indicated that the defendants waived a trial by jury. In one case, the half-sheet, contained the stamped legends “TRIAL BY COURT-FINDING OF GUILTY” and “PLEA OF NOT GUILTY JURY WAIVED.” (Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360.) In the other case, the common law record included an entry which stated: “Cause comes for Bench Trial.” (Smith, 106 Ill. 2d at 332, 478 N.E.2d at 359.) The court held that these were sufficient to create an inference of a knowing and intelligent waiver of a jury trial by both defendants. It then became the defendants’ obligation to rebut the inference by offering something which would memorialize when the waiver indicated on the half-sheet allegedly occurred and which would contradict the common law record’s reflection of waiver. In the absence of an inconsistent transcript or its suitable substitute, the court presumed the correctness of the common law entry showing waiver and that it was knowingly and intelligently made.

In the instant case, the common law record fails unequivocally to give rise to an inference of a valid waiver, as it is self-contradictory. Rather than offering proof of a knowing and intelligent waiver, it could actually be said to provide sufficient evidence that the jury waiver was not even made. On February 1, 1991, defendant made an express written demand for a jury trial by filing a demand for trial form and marking the box indicating that a jury was desired. On the other hand, the half-sheet, without making any reference to the withdrawal of the preexisting jury demand, contains an entry which indicates that defendant chose a bench trial, thus arguably waiving his right to a jury and presumably retracting the earlier jury demand. However, in view of the unequivocal nature of the jury demand and the recognized importance of the right to a jury trial, we find the ambiguous entry on the half-sheet insufficient to give rise to a Smith inference that defendant withdrew his jury demand or that he subsequently waived the right to a jury.

Furthermore, even assuming the half-sheet entry of July 29, 1991, to be sufficiently clear, the report of proceedings rebuts any inference of waiver that might be gleaned from the half-sheet notations of that day. The transcript shows that the trial court did not attempt to explain to defendant the nature of the rights he would forego, nor did it attempt to ascertain if defendant already knew of them. Instead the court, seemingly on its own motion, found waiver presumably from defendant’s silence. The salient portion of the transcript, after the defendant’s case was called, reads as follows:

“Ms. Strzalka [Counsel for defendant]: Judge, this is Mr. Evans. This case is set for trial today, Judge. The State’s made Mr. Evans an offer which I have not yet had a chance to convey to him due to other matters.

THE COURT: Convey it. The offer is three years. Do you want it or not? The police officer is right in back of you, sitting right there. You know how long it would take to put this case on? Just like that.

All right, now, do you want to play some more games in the system, or you want to dispose of this case right now, or we’ll go to trial?

DEFENDANT: Can I get some time to think about it?

THE COURT: No, you have got all the time that you are going to get to think about it. And you should have thought about it before you got to this point.f]

DEFENDANT: I’m ready to go to trial.

THE COURT: You’re ready to go to trial. Have a seat over there. The Court finds there is an informed and intelligent election on the part of the defendant to waive his right to trial, the right to jury. Accordingly, we’ll proceed to bench trial.” (Emphasis added.)

In Smith, the court held that a record which does not address the subject of jury waiver sufficiently rebuts the inference raised by a half-sheet entry which states that the defendant waived a trial by jury. Here, the record is not merely silent on jury waiver, but on the contrary, clearly manifests that defendant made no such waiver; he stated only that he was prepared to go to trial. Section 103 — 6 creates a presumption that where a defendant does not affirmatively act to expressly waive his right to a jury, he must be tried before jury. Thus, the trial court, by inferring waiver from silence, erred in finding that the defendant waived a jury. Accordingly, we are bound to conclude, as did our supreme court in similar circumstances, that “[i]t is apparent from the record, then, that the requirements of an understanding waiver made in open court were not satisfied, and therefore the cause must be remanded for a new trial.” Smith, 106 Ill. 2d at 337, 478 N.E.2d at 362, citing Kickapoo Creek, Inc., 51 Ill. 2d 353, 282 N.E.2d 720; People v. Montgomery (1981), 96 Ill. App. 3d 994, 422 N.E.2d 226; People v. Coleman (1978), 59 Ill. App. 3d 1050, 376 N.E.2d 277.

C

The State, however, maintains that although neither the defendant nor his attorney expressly waived the right to a jury, the trial court’s finding of waiver may be affirmed nonetheless. To do so, the State asks that we extend the rule of People v. Sailor (1969), 43 Ill. 2d 256, 253 N.E.2d 397, wherein our supreme court held that a waiver of the right to a jury made by defendant’s counsel will be valid and will bind the defendant if made in his presence and without objection. (See also People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762.) The State’s argument in summary is that since defense counsel knew the consequences of the court’s statement that it would hold a bench trial, and yet did not object, she implicitly waived her client’s right to a jury trial, and defendant, by remaining silent in view of her acquiescence, is bound to her implicit waiver just as the defendants in Sailor and Murrell were bound by their attorneys’ express waivers.

We find this argument unavailing for several reasons. First, the statute itself does not allow the trial court to infer from the defendant’s silence that he waives the right to a jury. Rather, the cases construing section 103 — 6 have held that it is satisfied only by an express waiver made by the defendant or his agent. (See Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360 (“[0]ur decisions have imposed on the circuit courts the duty of ensuring that a defendant’s waiver of his right to a jury trial be made expressly and understanding^”) (emphasis added); see also Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197; Kickapoo Creek, Inc., 51 Ill. 2d at 356, 282 N.E.2d at 722; Clark, 30 Ill. 2d at 220, 195 N.E.2d at 634.) Clearly, none of these cases allows us to find waiver by piling inferences onto inferences as the State’s proposed “extension” of Sailor would require.

Furthermore, Sailor itself does not support the State’s proposed extension of its rule. There, the court premised its holding on the pragmatic notion that a defendant normally acts through his agent, the attorney, and that courts necessarily rely on the professional competence of attorneys to ensure that their affirmative acts are made in the interest of adequately representing their clients. Absent this reliance, the court’s conducting of a trial would be impracticable, as the judge would constantly be compelled to ask the defendant for assurances that an action taken by his attorney was authorized.

However, given the ambiguity of silence, it would not be reasonable for a trial court to rely on or infer anything from an attorney’s acquiescence; the court could never be certain that the silence actually conveys the message it perceives, much less that the defendant approves of that message. For instance, in the case at bar, it may very well be that the silence of the attorney and defendant conveys not a jury waiver, but only a lack of defendant’s appreciation of the consequences of the court’s finding that he waived a jury trial. This possibility is precisely what section 103 — 6 was enacted to avoid. Under it, a waiver is valid only if affirmatively and unequivocally made; thus, we are precluded from finding waiver in silence.

More important, in a case not cited by either party, we have already addressed and rejected the State’s argument that silence by both the defendant and counsel can constitute a valid waiver of the right to a jury trial. In People v. Ceaser (1974), 17 Ill. App. 3d 650, 307 N.E.2d 753, the defendant sought reversal of a conviction after a bench trial because the record was devoid of any indication that he was advised of or waived his right to a trial by jury. The court agreed, rejecting the argument that the waiver was apparent because the defendant sat through three days of trial without a jury while being represented by counsel, and never once objected to the conduct of the trial. The court recognized that any member of the bar would know that the defendant had a right to a jury, and that it was a “commonsense inference” to suggest that both counsel and the defendant by remaining silent implicitly waived the right. The court concluded:

“However, our statute [Ill. Rev. Stat. 1967, ch. 38, par. 103— 6] and the case law require more than the drawing of ‘commonsense inferences’ for the waiver [of the right to jury trial] to be effective. *** For us to say that the defendant here ‘understandably waived’ a jury trial we must have something more than the face of a three-day trial without a jury. A silent record does not show an affirmative compliance with the statute and this is required.” Ceaser, 17 Ill. App. 3d at 650-51, 307 N.E.2d at 754.

The State’s acquiescence argument here is merely a recasting of the “commonsense inference” argument rejected in Ceaser. However, nothing has transpired in the nearly 20-year period since the handing down of that decision to affect the logic of its holding or to warrant a retreat therefrom. Section 103 — 6 still requires an affirmative indication by the defendant or defense counsel which unambiguously manifests a knowing and intelligent waiver of the right to a jury trial. Such a waiver is totally lacking in the record here. Thus, the trial court’s finding was clearly erroneous, and, therefore, its judgment of guilty must be reversed and the cause remanded for a new trial. As a final matter, we deem it appropriate to remind the trial attorneys in this case that although our supreme court has held that the onus is on the trial court to determine that the defendant makes a knowing waiver of the right to a jury trial, counsel for the State and the defendant, as officers of the court, have the concomitant duty to maintain the integrity of the criminal justice system. The appeal of this issue and the subsequent remand of this action because of it could easily have been avoided if either the State or defense counsel had simply informed the court that defendant had filed a trial demand and had requested a jury. The trial court would then have been on notice that, contrary to its mistaken belief, defendant desired a trial by jury. Instead, the attorneys did nothing. They, along with the trial court, share responsibility for the retrial of this action and its additional cost to the taxpayers of Illinois. However, since we may not visit the omissions of the attorneys on defendant and since the trial court failed to carry out its duty to secure an adequate waiver of a jury trial, we are forced to reverse the judgment of the trial court and remand for a new trial.

Reversed and remanded.

McCORMICK, P.J., and DiVITO, J., concur.

      We are not offered any information in the record as to what holiday annually falls on January 31 or what holiday may have been observed on Thursday, January 31,1991.

      Statutory procedures requiring an express waiver of trial by jury in open court, thus ensuring on-the-record proof that the waiver was knowing and intelligent, have been a part of the Illinois Code of Criminal Procedure since 1827. See Rev. Laws 1827, par. 162, §176.

      The case was actually a consolidation of two separate appeals on the validity of jury waivers. The cases were People v. Smith, No. 59851 and People v. Flowers, No. 59911.

      The half-sheet entry on the date of the trial, July 29, 1991, cryptically reads: “P PcPNGB trial FGPSi ordered Mot for P + DMHd ANSWto Disc Filed O/C 8-29-91.” We assume “B trial” indicates a bench trial, manifesting defendant’s waiver of a jury trial.

      We note from the record that from February 11, 1991, when defendant first appeared before the court, until the commencement of trial, July 29, 1991, when the above colloquy took place, this action was continued five times. This could account for the trial court’s apparent irritation. The record, however, does not indicate at which party’s prompting the continuances were granted. Moreover, the many continuances do not absolve the trial court of its obligation to ensure that defendant does not waive so fundamental a right rashly but does so only after adequate contemplation.


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. HETZEL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—91—2514
    Opinion filed March 3, 1993.
    — Rehearing denied April 22, 1993.

      Daniel E. Radakovich, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Carol A. Mengel, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a bench trial, defendant Michael A. Hetzel was convicted of two counts of murder and one count of armed violence in connection with the stabbing death of his neighbor, a 27-year-old woman, in Lyons, Illinois. The 16-year-old defendant was sentenced on October 30, 1986, to 30 years’ imprisonment in the Department of Corrections for murder, concurrent with a term of 15 years for armed violence. Defendant was confined to juvenile facilities at the Department of Corrections. The convictions were affirmed on direct appeal on March 22, 1989. People v. Hetzel (1989), 181 Ill. App. 3d 85, 536 N.E.2d 909.

On October 26, 1990, nine days before defendant’s twenty-first birthday, defendant filed a petition to vacate the judgment or in the alternative to modify or reduce his sentence. The trial court held that it did not have jurisdiction to hear evidence in support of defendant’s petition, and defendant was precluded from introducing evidence on the merits of his petition, which was based upon his positive behavior since incarceration and his prospective rehabilitative possibilities.

Defendant bases his right to a hearing on these issues by reason of the provisions of section 5 — 8—6(c) of the Unified Code of Corrections. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—6(c).

We affirm the trial court’s determination that the statute did not establish the court’s authority to hear evidence in support of defendant’s petition. The statutory language upon which defendant relies empowers the trial court to change or amend the commitment order as it relates to the place of confinement rather than the authority to retry the issues of the initial conviction, sentencing or to sit as a parole board.

The statute in question provides as follows:

“§5-8-6 Place of Confinement. ***

* * *

(c) All offenders under 17 years of age when sentenced to imprisonment shall be committed to the Juvenile Division of the Department of Corrections and the court in its order of commitment shall set a definite term. Such order of commitment shall be the sentence of the court which may be amended by the court while jurisdiction is retained; and such sentence shall apply whenever the offender sentenced is in the control and custody of the Adult Division of the Department of Corrections. The provisions of Section 3 — 3—3 shall be a part of such commitment as fully as though written in the order of commitment. The committing court shall retain jurisdiction of the subject matter and the person until he or she reaches the age of 21 unless earlier discharged. However, the Juvenile Division of the Department of Corrections shall, after a juvenile has reached 17 years of age, petition the court to conduct a hearing pursuant to subsection (c) of Section 3 — 10—7 of this Code.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-6(c).

Defendant claims that the hearing was authorized because the statute provided that “the committing court shall retain jurisdiction of the subject matter and the person until he or she reaches the age of 21 unless earlier discharged.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8 — 6(c).

The State first suggests that this argument was not presented in the trial court and the issue was accordingly waived. When a minor has been given a long-term sentence which by its terms requires that he spend his formative teen years and early productive adult years in our correction system, we cannot evade consideration of this issue on technical or procedural grounds.

Accordingly, we will address the substance of the State’s argument.

The State argues that the quoted sentence from section 5 — 8—6(c) must be read in the context of the entire paragraph. This paragraph relates to “place of confinement” and addresses the terms and conditions surrounding the order of commitment. Moreover, the section expressly incorporates section 3 — 3—3 (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3 — 3), which provides the terms of eligibility for parole or release of adult and juvenile prisoners which would be determined by the Prisoner Review Board after an appropriate parole hearing. Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3 — 5 et seq.

We do not believe that the statute is ambiguous. The legislature’s intent appears clear and we discern that the best indicator of that intent is the language employed by the legislature. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656.) In construing the meaning and intent of a statute, it must be read as a whole and its title is considered in such construction. Wilcoxen v. Paige (1988), 174 Ill. App. 3d 541, 528 N.E.2d 1104.

It is clear that this subsection of the statute relating to place of confinement was enacted to ensure that juvenile offenders were maintained separately from adults. While the Department of Corrections must be given some flexibility in assigning persons to various of its institutions, offenders under 17 years of age would be committed to the juvenile division and upon reaching the age of 17 would be subject to a hearing to determine whether they should remain in a juvenile facility or be transferred at that time to an adult facility. See Ill. Ann. Stat., ch. 38, par. 1005 — 8—6, Council Commentary, at 209 (SmithHurd 1982).

The statute has been narrowly construed to apply only to prisoners sentenced to the juvenile division of the Department of Corrections rather than pretrial detainees held in county jails. (Cooper v. Elrod (N.D. Ill. 1985), 622 F. Supp. 373.) Cooper confirmed the import of section 5 — 8 — 6 by imposing upon the Department the obligation to provide a prior judicial hearing before transferring a person over 17 and under 21 to the adult division.

Cases that have considered subsection (c) have not challenged the validity of the sentence but rather the use of the Department of Correction’s facilities to house certain juvenile defendants. People v. Bailey (1983), 116 Ill. App. 3d 259, 452 N.E.2d 28.

Further, subsection (c) directs that the court conduct a hearing pursuant to subsection (c) of section 3 — 10 — 7 of the Uniform Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 10 — 7(c)). This section deals with interdivisional transfers and requires the trial court to consider all relevant factors including the nature of the offense, the offender’s sentence and previous record, adjustment within the juvenile division, level of maturity, rehabilitative progress and vocational potential, and the necessity for the offender’s transfer.

We do not believe that subsection (c) of section 5 — 8 — 6 was intended to create an additional forum for review of the validity or propriety of defendant’s sentence and therefore affirm the judgment of the circuit court of Cook County.

Affirmed.

RIZZI and CERDA, JJ., concur.