text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT B. SULLIVAN, Defendant-Appellee.
    Second District
    No. 2—91—0637
    Opinion filed April 28, 1993.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Lawrence M. Bauer, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, of Aurora, and Vincent C. Argento and Jesse V. Barrientes, both of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court;

The State appeals pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Kane County granting the motion of defendant, Robert B. Sullivan, to quash arrest and suppress evidence.

Defendant was arrested when his van was illegally parked on August 30, 1989, because his name was on the active warrant list for the Batavia police department. After his arrest, his van was first searched pursuant to an inventory search and later searched pursuant to a search warrant. As a result of contraband found during the second search, defendant was charged with two counts of unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(b)(2)). On September 19, 1989, the defendant was indicted on two counts of unlawful possession with intent to deliver a controlled substance. On May 9, 1991, defendant’s motion to quash arrest and suppress evidence was granted following a hearing. The State filed a certificate of impairment and appeals. The sole issue on review is whether it was manifestly erroneous for the trial court to grant the defendant’s motion to quash arrest and suppress evidence based on a stale warrant or a traffic violation. We affirm.

A hearing on the motion to suppress was conducted, at which the two arresting officers and the defendant testified. Based on that testimony, the events that occurred on August 30, 1989, were as follows: at 1:23 p.m. Batavia police officer Carl Ensign observed the defendant’s van parked in a shopping center parking lot tow-away zone. Ensign radioed to see if there were any active warrants on the defendant. He received a response by radio that there was a valid warrant for defendant for contempt of court. Ensign approached the defendant and advised him that there was a warrant for his arrest in a civil case. Defendant told Officer Ensign that the warrant had been dismissed and asked the officer for permission to look for his bond receipt in the van. Ensign would not permit defendant to look for it. At that point, defendant got out of the van at Ensign’s request. Ensign then arrested the defendant. Sergeant Michael Rappley backed up Ensign. At the scene, the police began to search the van. Defendant refused permission for the search of the van. Ensign then took the defendant to the Batavia police station. Evidently, the defendant had been sued previously in a civil case and a judgment had been rendered against him. He had failed to make a court appearance on a citation to discover assets. Upon learning of the body attachment, the defendant had posted bond on it and had been released the previous month. Evidently, his name was not taken off the active warrant list. On August 30, 1989, when they had the defendant in custody, the police discovered that the warrant was not outstanding, and defendant was released after 15 to 20 minutes.

When the defendant was taken into custody at the shopping center parking lot, Sergeant Rappley remained at the scene of the arrest with the intent of inventorying defendant’s vehicle and having it towed to the police department garage. The Batavia police department has an inventory search policy. He found several things in the van, such as defendant’s wallet, a small amount of cash, a checkbook, some cocktail straws in a Curad bandage box, and more straws in a baggie. Sergeant Rappley believed the straws to be paraphernalia commonly used to inhale cocaine. Rappley had had prior contact with the defendant, as he had arrested the defendant on a traffic stop one year earlier when he found cocaine packaged in the defendant’s vehicle. After the search, the van was towed to the police department garage.

In order to verify his theory on the cocktail straws, and after a call to the State’s Attorney’s office, Rappley ordered a dog sniff. The dog, which was trained to detect the presence of drugs by odor, reacted to a box of the suspected paraphernalia on two tests. On advice of an assistant State’s Attorney, Rappley drafted a search warrant and presented it to a judge. Although Rappley knew that the warrant on which the defendant was arrested was not a valid warrant, he did not include that information in the search warrant affidavit. The judge signed the search warrant. By this time, the defendant had been released without charge. However, the van was kept in police custody. Another search of the van was conducted. This time, controlled substances were found, and the defendant was subsequently arrested for a second time and charged. Defendant was indicted on two counts of unlawful possession with intent to deliver a controlled substance. The trial court granted the defendant’s motion to quash and suppress evidence after a hearing. The State filed a certificate of impairment and notice of appeal.

A trial court’s rulings on a motion to quash arrest and a motion to suppress will not be disturbed on review unless they are manifestly erroneous. People v. Gacho (1988), 122 Ill. 2d 221, 234, 237.

The State relies on People v. Mourecek (1991), 208 Ill. App. 3d 87, 94, to stand for the proposition that no matter what the police articulate as the reason for the stop, if the police had actual probable cause to arrest the defendant, they are not foreclosed from later justifying the arrest by proving probable cause on another basis. Thus, the State contends, a basis independent from the stale warrant existed for the arrest, that is, the fact that defendant’s vehicle was illegally parked was probable cause for his arrest. Moreover, the State argues that defendant’s second arrest was made after the search of defendant’s van pursuant to the search warrant which revealed the presence of controlled substances. Thus, the State argues, probable cause was established for both arrests. Furthermore, the State maintains, the first search was proper as it was incident to the arrest of the defendant and the second search was proper as it was based on the search warrant. Defendant asserts that any evidence obtained from a search incident to an arrest on an inactive warrant must be suppressed. Furthermore, he argues, a traffic violation such as illegal parking in a tow-away zone does not establish probable cause to subject an individual to a custodial arrest accompanied by a search incident to that arrest.

According to the testimony, the arrest and subsequent search were performed due to the officer’s belief that there was a warrant out for defendant’s arrest. Where police fail to update their warrant records to remove an individual’s name from an active warrant list, any evidence obtained from a search incident to the arrest on that inactive warrant must be suppressed. (People v. Joseph (1984), 128 Ill. App. 3d 668, 673.) In Joseph, the police failed to update their records to show that a warrant had been recalled. The court concluded that when an arresting officer relies on information in the criminal justice system which is incorrect, an arrest is invalid. (Joseph, 128 Ill. App. 3d at 673; accord Mourecek, 208 Ill. App. 3d at 92.) On this basis, it would be improper for the State to rely on the stale warrant to establish probable cause to arrest defendant and search his vehicle.

The State likens the present case to Mourecek, wherein the arrest was made pursuant to an equipment violation on a vehicle. However, Mourecek may be distinguished. In that case, although the initial stop was made on a vehicle equipment violation, probable cause was established by the fact that live ammunition was in plain view in the vehicle, and defendant indicated he had no identification, thus permitting the arresting officer to conclude that defendant did not have the requisite firearm owner identification (FOID) card. Defendant’s possession of live ammunition and a firearm on his person while failing to possess a FOID card constituted an offense. (Mourecek, 208 Ill. App. 3d at 94.) In the present case, the defendant was merely illegally parked in a tow-away zone. Under those circumstances it would have been proper to issue a ticket, but not to subject defendant to custodial arrest and then a search of his vehicle. A stop of a vehicle for a minor traffic violation does not, by itself, justify a search of the detainee’s person or vehicle. (People v. Penny (1989), 188 Ill. App. 3d 499, 502.) In order to establish probable cause, an officer must reasonably believe he is confronting a situation more serious than a minor traffic violation. (Penny, 188 Ill. App. 3d at 502.) There was no reason for such a belief in this case. Defendant was merely illegally parked. He was arrested outside his vehicle. There was no reason for the arresting officer to believe he was confronting a situation more serious than a minor traffic violation. Thus, probable cause was not established for the arrest and search of the vehicle on the basis of the traffic violation. Thus, because no probable cause was established to permit the arrest of defendant and permit the first search of his vehicle, we determine that any evidence obtained as a result of this arrest and search was unlawfully obtained. Furthermore, as the search warrant was based on a stale warrant for defendant’s arrest and on evidence gathered during the first, unlawful search, we determine that any evidence obtained pursuant to the search warrant was unlawfully obtained. Thus, on the basis of the reasoning herein set forth, we affirm the trial court’s order granting the defendant’s motion to quash arrest and suppress evidence.

The order of the circuit court of Kane County granting defendant’s motion to quash arrest and suppress evidence is hereby affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    MENDOTA TOWNSHIP HIGH SCHOOL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Russel Dean Lubbs, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—92—0043WC
    Opinion filed March 11, 1993.
    1993. Rehearing denied May 14, 1993.

      Julia A. Donnelly, of Nyhan, Pfister, Bambrick & Kinzie, P.C., of Chicago (Edward M. Pfister, of counsel), for appellant.
    Law Offices of Strodel, Kingery & Duree, Associates, of Peoria (Arthur R. Kingery, of counsel), for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Mendota Township High School District No. 280 (Mendota) appeals from the award of disability benefits to claimant, Russel Dean Lubbs. Claimant sought benefits pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) for problems with his back stemming from an injury during a basketball game on February 17, 1986, while in Mendota’s employ as an athletic coach and science teacher. Approximately six months after the basketball incident, claimant suffered a ruptured disc during a sneezing episode. The arbitrator found a causal connection between the basketball incident and the ruptured disc and awarded claimant 92/? weeks of temporary total disability and 100 weeks of permanent disability representing 20% disability. On appeal, the Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court of Champaign County confirmed the Commission’s decision. Mendota argues on appeal the Commission’s decision finding a causal connection between claimant’s condition of ill-being and the basketball injury is against the manifest weight of the evidence.

Claimant testified before the arbitrator that on February 17, 1986, while participating in a varsity basketball scrimmage, he came down with a rebound and immediately felt pain in his lower back. Claimant informed the head coach of his injury and stopped participating in the scrimmage. The next day, claimant saw his family physician, Dr. Spenader. Dr. Spenader diagnosed claimant’s pain as lumbosacral strain and ordered physical therapy. On March 6, 1986, claimant aggravated his back condition while playing racquetball. At this point, Dr. Spenader referred claimant to Dr. Meier, an orthopedic surgeon. Dr. Meier diagnosed a lumbar sprain with preexisting degenerative disc disease. Apparently claimant had injured his lower back in 1984 while assisting another teacher in moving a player piano. Although Dr. Meier believed the symptoms would resolve within six weeks, claimant testified his back pain progressively worsened over the summer to the point of being unable to dress himself without difficulty. On September 5, 1986, claimant again saw Dr. Meier. While claimant’s straight-leg-raising and neurological exams were normal, the doctor did note some paraspinal spasm and a limitation of lumbar motion. On September 12, 1986, while attending a high school football game, claimant suffered a sneezing episode. Claimant testified he immediately experienced the onset of excruciatingly severe lower-back pain with radiation down his leg and left buttock. Dr. Meier again examined claimant on September 14 and found significant changes indicating a herniated nucleus pulposus. Claimant was referred to Dr. Vanlandingham, a neurosurgeon, for treatment. Dr. Vanlandingham opined that the basketball injury probably resulted in a tear of the posterior longitudinal ligament or of the annulus fibrosis, which weakened and then ruptured when the sneezing episode occurred. While Dr. Vanlandingham did not find any tear upon performing the surgery to correct claimant’s condition, he also stated such tears would not necessarily be noted. Mendota’s expert, an orthopedic surgeon who reviewed claimant’s medical records only, testified that the actual rupture or herniation was secondary to the sneeze and that there was no way of knowing whether claimant had torn the annulus or had suffered a weakening of his disc at the time of the basketball injury. The Commission found for claimant on the basis of Dr. Vanlandingham’s testimony and that of claimant. The Commission further declared that Mendota failed to prove the racquetball incident constituted an intervening accident.

It is well established that in workers’ compensation cases it is the function of the Commission to decide questions of fact and causation, to judge the credibility of witnesses, and to resolve conflicting medical evidence. (E.g., O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221, 223-24; International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 244, 263 N.E.2d 49, 53.) Though we may draw different inferences from the evidence, findings of the Commission will not be reversed on appeal unless they are against the manifest weight of the evidence. (O’Dette, 79 Ill. 2d at 253, 403 N.E.2d at 224; Republic Steel Corp. v. Industrial Comm’n (1962), 26 Ill. 2d 32, 43, 185 N.E.2d 877, 883; Caterpillar, Inc. v. Industrial Comm’n (1992), 228 Ill. App. 3d 288, 291, 591 N.E.2d 894, 896.) In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must clearly be apparent. (Caterpillar, 228 Ill. App. 3d at 291, 591 N.E.2d at 896.) In this instance, although claimant may have aggravated the condition of his back on one or more occasions, we cannot say that an opposite conclusion clearly is apparent or that the decision of the Commission is contrary to the manifest weight of the evidence.

The only issue is whether there is a causal relationship between the basketball injury suffered by claimant while coaching on February 17, 1986, and his subsequent back problems. The Commission resolved the matter in claimant’s favor. Mendota now argues on appeal that the sneezing episode was the actual intervening cause of claimant’s back problems. It is true both medical experts agreed the sneezing episode was the immediate cause of claimant’s disc rupture. This does not mean it was the sole cause, however. The record reveals claimant’s initial back problems were triggered by the basketball accident and continued to escalate throughout the summer. The fact that other incidents, whether work related or not, may have aggravated his condition further are irrelevant as long as they do not constitute intervening causes. Claimant need only prove some act or phase of his employment was a causative factor in the ensuing injury in order to recover benefits under the Act. (See Republic, 26 Ill. 2d at 45, 185 N.E.2d at 884; Caterpillar, 228 Ill. App. 3d at 293, 591 N.E.2d at 897.) He need not prove it was the sole causative factor, nor even that it was the principal causative factor of his injury. (Republic, 26 Ill. 2d at 45, 185 N.E.2d at 884.) A nonemployment-related factor which is a contributing cause with the compensable injury in an ensuing injury or disability does not constitute an intervening cause sufficient to break the causal connection between the employment and claimant’s condition of ill-being. (International Harvester, 46 Ill. 2d at 247, 263 N.E.2d at 54.) Had it not been for the original basketball injury, in all probability claimant’s back problems would not have reached the stage they did in such a short period of time. Based on the record as a whole, along with the Commission’s explicit finding on credibility and evaluation of medical testimony, the determination that claimant’s sneezing episode and racquetball injury were only contributing causes, not intervening ones, is not against the manifest weight of the evidence.

For the aforementioned reasons, we affirm the decision of the circuit court of Champaign County confirming the decision of the Commission.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and STOUDER, JJ., concur.


author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD DIETERMAN, JR., Defendant-Appellant.
    Second District
    No. 2—91—0225
    Opinion filed April 30, 1993.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellant.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

The trial court granted the State’s petition to revoke the probation of defendant, Richard Dieterman, and resentenced defendant to 21/a years’ imprisonment. On appeal, defendant claims that his underlying conviction of felony driving while his licence was revoked (Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 303(d)) violated the prohibition against double jeopardy in both the United States and the Illinois Constitutions.

Defendant was charged with the misdemeanor of driving while his license was revoked on May 10, 1988 (Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 303(a)). Defendant pleaded guilty to that offense. The cause was continued until June 9, 1988, for sentencing. The State moved to vacate defendant’s guilty plea and charge defendant with felony driving while his license was revoked at the June 9, 1988, sentencing hearing (Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 303(d)). Defendant moved to dismiss the felony charge on the ground that it violated the double jeopardy clause because he had already pleaded guilty to a misdemeanor stemming from the same conduct that formed the basis of the felony charge.

The trial court held a hearing on July 29, 1989, on the State’s motion to vacate and defendant’s motion to dismiss. The hearing revealed the following facts. Prior to May 24, 1988, Assistant State’s Attorney Donald Larson informed defendant’s attorney, David Towns, that the State intended to enhance the misdemeanor charge against defendant to a felony. Charles Popp, also defendant’s attorney, convinced Assistant State’s Attorney Margy Kreitlow to represent the State at defendant’s plea hearing so that defendant could enter his guilty plea to the misdemeanor charge. Popp informed neither the trial court nor Kreitlow that Larson intended to file the felony charge. Kreitlow claimed in an affidavit that she was unaware at the plea hearing that Larson intended to file a felony charge against defendant. Larson claimed in an affidavit that he was outside the courtroom working on negotiations in another case when the trial court heard the misdemeanor plea. Larson claimed that had he been present he would have approached the bench, filed the felony information, and attempted to convince the trial court not to accept the plea to the misdemeanor.

The trial court denied defendant’s motion to dismiss the felony charge and granted the State’s motion to vacate defendant’s plea to the misdemeanor charge. The trial court found that prosecuting defendant on the felony charge did not violate double jeopardy. Specifically, the trial court found that the defense had “circumvented” the State’s attempt to file the felony charge. According to the trial court:

“[T]he defendant is not allowed to come in quickly with a plea of guilty in order to avoid the filing of the enhanced charge, and the defense here was aware that the State was preparing to do that even though they [sic] had not done it.”

Defendant pleaded guilty to the felony charge on October 7, 1988, and the trial court sentenced him to two years’ probation and nine months’ work release or periodic imprisonment. The trial court later reduced defendant’s sentence of work release or periodic imprisonment to seven months. Defendant never directly appealed this guilty plea or sentence.

The State filed a petition to revoke defendant’s probation on May 23, 1990, which charged that defendant drove with his license revoked on October 28, 1988, and April 13, 1989. Defendant admitted to driving while his license was revoked on April 13, 1989, and the State, in exchange, dismissed the allegation that he drove with his license revoked on October 28, 1988. The trial court found that defendant had violated the terms of his probation, and it sentenced him to 21/2 years’ imprisonment and a $500 fine.

Defendant appeals the trial court’s revocation of his probation and the sentence the court then imposed. He claims that the underlying felony conviction was void because it resulted from a prosecution which violated the double jeopardy clauses of the United States and Illinois Constitutions. We affirm.

The fifth amendment to the United States Constitution provides that “[n]o person shall *** be subject for the same offense to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.) The Illinois Constitution, article I, section 10, provides that no person shall “be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. 1, §10.

Supreme Court Rule 604(d) provides that a defendant must file a motion to withdraw his guilty plea and vacate the judgment within 30 days of the date when sentence is imposed, in order to appeal a judgment entered on a guilty plea. (134 Ill. 2d R. 604(d).) If the trial court denies this motion, defendant must file a notice of appeal within 30 days in order to preserve his right to appeal. (134 Ill. 2d Rules 604(d), 606(b).) The timely filing of a Rule 604(d) motion and a notice of appeal are jurisdictional prerequisites to a review of defendant’s guilty plea. (People v. Wilk (1988), 124 Ill. 2d 93, 105; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538.) In an appeal from an order revoking a defendant’s probation, the court cannot consider the correctness of the underlying judgment of conviction unless that judgment is void. People v. Stueve (1977), 66 Ill. 2d 174, 178.

In Stueve, defendant pleaded guilty to one count of unlawful possession of a controlled substance and one count of attempted delivery of a controlled substance. He was sentenced to probation and he did not appeal the judgment. After the trial court granted the State’s petition to revoke defendant’s probation, defendant appealed, contending that his underlying conviction was improper. The appellate court affirmed the possession conviction but reversed the conviction for attempted delivery on the ground that the factual basis for the guilty plea was insufficient to show that the two offenses were “independently motivated.” (Stueve, 66 Ill. 2d at 176-77.) The supreme court reversed the appellate court. The supreme court pointed out that “[i]t scarcely seems necessary to state that the judgment of the [trial court] which had unquestioned jurisdiction of the subject matter and the person was not a void judgment whether or not the multiple convictions were proper.” (Stueve, 66 Ill. 2d at 179.) The supreme court then held that the appellate court did not have jurisdiction to review the judgments of conviction because defendant had not filed a timely notice of appeal from those judgments. Stueve, 66 Ill. 2d at 178.

We cannot, therefore, review defendant’s double jeopardy claim unless a double jeopardy violation would render void the judgment on defendant’s guilty plea to the felony charge. For example, where defendant is convicted of a crime that has no statutory authority, the judgment is void, and defendant can challenge it at any time. People v. Lev (1988), 166 Ill. App. 3d 173, 176; People v. Bratcher (1986), 149 Ill. App. 3d 425, 429.

Menna v. New York (1975), 423 U.S. 61, 46 L. Ed. 2d 195, 96 S. Ct. 241, sheds some light on whether the double jeopardy clause creates a jurisdictional bar to subsequent prosecutions for the same offense. In Merma, defendant was held in contempt of court for refusing to testify before a grand jury and sentenced to a term of imprisonment. The following year, the State indicted defendant for the same failure to testify. After the trial court declined to dismiss the indictment on the ground that it violated the double jeopardy clause, defendant pleaded guilty to the offense. In a per curiam opinion, the Supreme Court recognized that under Tollett v. Henderson (1973), 411 U.S. 258, 36 L. Ed. 3d 235, 93 S. Ct. 1602, a defendant waives many of his constitutional rights by pleading guilty to an offense. The Court held, however, that by pleading guilty a defendant does not waive his right to be free from a successive prosecution in violation of the double jeopardy clause. Menna, 423 U.S. at 62, 46 L. Ed. 2d at 197, 96 S. Ct. at 242.

The Court, in a footnote, explained its reasoning as follows:

“Neither [Tollett], nor our earlier cases on which it relied [citations], stand for the proposition that counseled guilty pleas inevitably ‘waive’ all antecedent constitutional violations. If they did so hold, the New York Court of Appeals might be correct [in affirming defendant’s conviction on the ground that he waived his objection to the double jeopardy violation by pleading guilty]. However, in Tollett we emphasized that waiver was not the basic ingredient of this line of cases [citation]. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore, does not bar that claim.
We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.” (Emphasis in original.) Menna, 423 U.S. at 62 n.2, 46 L. Ed. 2d at 197 n.2, 96 S. Ct. at 242 n.2.

Clearly, under Menna, defendant in this case could have appealed his felony conviction on the ground that it violated double jeopardy even though that conviction followed a guilty plea. Although defendant admitted factual guilt by pleading guilty, he did not relinquish his objection to being hailed into court in the first place. Nothing in Menna indicates, however, that the double jeopardy clause deprives a trial court of jurisdiction to enter a conviction where defendant had been prosecuted previously for the same offense. In fact, the Court stated: “We do not hold that a double jeopardy claim may never be waived.” Menna, 423 U.S. at 62 n.2, 46 L. Ed. 2d at 197 n.2, 96 S. Ct. at 242 n.2.

The double jeopardy clause concerns the very authority of the State to require a defendant to answer its charges. (Blackledge v. Perry (1974), 417 U.S. 21, 31, 40 L. Ed. 2d 628, 636, 94 S. Ct. 2098, 2104.) However, it does not, as defendant argues, concern the authority of a trial court to enter a judgment. This is not a case where there is no statutory authority for defendant’s conviction or where there is some defect that goes to the very foundation of the conviction. The case law establishes that the right to be free from double jeopardy is a personal right that can be waived. People v. Scales (1960), 18 Ill. 2d 283, 285; People v. Green (1984), 125 Ill. App. 3d 734, 744; see also United States v. Broce (1989), 488 U.S. 563, 575-76, 102 L. Ed. 2d 927, 940, 109 S. Ct. 757, 765-66; Ricketts v. Adamson (1987), 483 U.S. 1, 10, 97 L. Ed. 2d 1, 12, 107 S. Ct. 2680, 2686; People v. Camden (1987), 115 Ill. 2d 369, 378-79 (defense counsel failed to object to mistrial; therefore, he impliedly acquiesced and second trial was constitutionally permissible).

Defendant argues that we can review the double jeopardy violation as “plain error.” A reviewing court could review a double jeopardy claim under the plain error doctrine of Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) if defendant had failed to raise the claim before the trial court but had timely appealed his conviction. (People v. Mink (1990), 141 Ill. 2d 163, 172.) However, a defendant cannot invoke the plain error doctrine once he has foregone his right to appeal. (See People v. Owens (1989), 129 Ill. 2d 303, 316-17.) At the very least, defendant must file a claim under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.) and establish “cause” and “prejudice” for his failure to raise his double jeopardy claim on direct review. Owens, 129 Ill. 2d at 317.

Defendant next argues that he was denied the effective assistance of counsel when his trial counsel failed to file a motion to withdraw his guilty plea to the felony charge and failed to file a notice of appeal. (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063-64.) Because defendant failed to appeal his conviction, however, we have no jurisdiction to review his claim that the ineffective assistance of his trial counsel rendered his conviction unconstitutional. (People v. Combs (1990), 197 Ill. App. 3d 758, 762.) Defendant can only make his ineffective assistance of counsel claim in a petition for post-conviction relief (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.). People v. Wilk (1988), 124 Ill. 2d 93, 107.

We are precluded by the doctrine of res judicata from considering defendant’s double jeopardy claim.

The judgment of the circuit court of Boone County is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE LYTTON

text:
    HELEN SHAW, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellee.—JANICE CAMP, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellee.
    Third District
    Nos. 3—92—0549, 3—92—0550 cons.
    Opinion filed April 21, 1993.

      Capps, Ancelet & Stoverink, of Carthage (Rodney G. Clark, of counsel), for appellants.
    Roland W. Burris, Attorney General, of Springfield (Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

This consolidated appeal involves two cases challenging decisions of the Board of Review of the Illinois Department of Employment Security (Board), which upheld referees’ decisions denying unemployment insurance benefits to plaintiffs Helen Shaw (Shaw) and Janice Camp (Camp). In filing suit, each plaintiff named as a defendant the “Department of Employment Security, State of Illinois” (Department) but failed to name the Department’s Director or the Board of Review. The circuit court dismissed the cases for plaintiffs’ failure to name a necessary party, and the plaintiffs appealed. We affirm.

On March 11, 1992, the Board of Review of the Illinois Department of Employment Security issued a final decision affirming a referee’s decision which denied unemployment insurance benefits to Helen Shaw. On March 27, 1992, the Board issued a similar decision affirming the denial of benefits to Janice Camp.

On March 23, 1992, Shaw filed a complaint in the circuit court of Hancock County, seeking administrative review of the Board’s decision. Likewise, on March 27, 1992, Camp filed suit in the same court, seeking administrative review. Both complaints named as defendant the “Department of Employment Security, State of Illinois.” Neither complaint named the Department’s Director or the Board of Review as defendants and neither plaintiff served the Director or the Board with summons.

On April 23 and 27, 1992, the Department filed motions to dismiss the two complaints. The Department alleged that both plaintiffs had failed to name the Board as a defendant and failed to serve the Board. The Department alleged that since the Board had issued the decisions which were being appealed, the Board was a necessary-party in each case. Under the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.), the Department asserted that the plaintiffs were required to name the Board as a party and cause summons to issue within 35 days from the date the Board served its decision. The Department also asserted that the Director was a necessary party which the plaintiffs had failed to name and serve.

On June 1, 1992, each defendant responded by filing a motion to amend complaint and add additional parties. Each plaintiff also submitted a brief in support of her motion.

On July 1, 1992, the circuit court granted the Department’s motion to dismiss and denied plaintiffs’ motions to amend. Shaw and Camp then filed timely notices of appeal, and their cases were consolidated for purposes of this appeal.

The Unemployment Insurance Act provides that a decision of the Board of Review shall be reviewable only under and in accordance with the Administrative Review Law. (Ill. Rev. Stat. 1991, ch. 48, par. 520.) The Administrative Review Law requires that every action to review a final administrative decision be commenced by the filing of a complaint and the issuance of summons within 35 days from the date a copy of the decision sought to be reviewed was served upon the party affected thereby. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.) Unless review is sought within the time and manner provided within the Administrative Review Law, the parties shall be barred from obtaining judicial review of such administrative decision. Ill. Rev. Stat. 1991, ch. 110, par. 3-102.

“[I]n any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties *** before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107(a).) “Administrative agency” is defined as the “person, body of persons, group, officer, board, bureau, commission or department of the state *** having power under law to make administrative decisions.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101.) Within the context of this case, the entity with power to make the administrative decision was the Board of Review of the Illinois Department of Employment Security (Ill. Rev. Stat. 1991, ch. 48, par. 473), and it was the Board that issued the final decision from which Shaw and Camp sought administrative review. In seeking review of the Board’s final decisions in their respective cases, however, neither plaintiff named the Board as a defendant.

Nevertheless, Shaw and Camp assert that the circuit court erred in dismissing their complaints. First, the plaintiffs argue that they were not required to name the Director of the Department as a party. Second, the plaintiffs contend that they should have been allowed to amend their complaints to add any necessary parties. Third, plaintiffs assert that they acted in good faith and gave the defense ample time and notice to respond. After reviewing each of these issues, we affirm the decision of the circuit court.

Initially, Shaw and Camp assert that the Director of the Department of Employment Security was not a necessary party, and, therefore, failure to name and serve the Director was not fatal to plaintiffs’ complaints. We agree.

In Stone v. Department of Employment Security Board of Review (1991), 213 Ill. App. 3d 739, 572 N.E.2d 412, the Second District Appellate Court considered this precise issue. In Stone, the plaintiff failed to name the Director of the Department as a defendant in the administrative review case filed in circuit court. The appellate court held, however, that this failure did not deprive the circuit court of jurisdiction. While a plaintiff seeking administrative review is required to name as defendants all “parties of record to the proceedings before the administrative agency” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107), and the Director is deemed a party to any “judicial action” involving a Board decision (Ill. Rev. Stat. 1991, ch. 48, par. 520), the statutes do not state that the Director is a party to the Board’s administrative action. Thus, a defendant seeking review of a Board decision is not required to name the Director as a defendant. Stone, 213 Ill. App. 3d at 742.

While conceding that they failed to name the Board of Review in their complaint and that the Board is a necessary party, the plaintiffs assert that the circuit court erred in denying their motions to amend their complaints and add the Board as a defendant. Under existing case law, we are compelled to affirm the circuit court’s decision.

In Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, the Illinois Supreme Court considered the issue of whether plaintiffs seeking administrative review could amend their complaints and add a necessary party after the 35-day statutory period for the filing of a complaint. Noting that the filing of the complaint is a jurisdictional requirement under section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103), the court concluded:

“Since the Administrative Review Law is a departure from common law, the procedures it establishes must be strictly adhered to in order to justify its application. Winston v. Zoning Board of Appeals (1951), 407 Ill. 588[, 95 N.E.2d 864].

* * *

The board contends that the circuit court properly denied [plaintiff] leave to amend his complaint. It argues that the Administrative Review Law requires that all parties to the administrative proceeding be made defendants and that summons issue within 35 days from the date that a copy of the administrative decision was served upon the party seeking review. Since [plaintiff] failed to name the [necessary party] as defendant and issue summons on him within the 35-day period, his action for administrative review was barred. We agree.” Lockett, 133 Ill. 2d at 353-54.

Notwithstanding the Lockett decision, Shaw and Camp argue that they were entitled to amend their complaints to add the Board even after the 35-day period. First, plaintiffs argue that the Lockett decision focused solely upon section 3 — 107 of the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 107). Plaintiffs argue that the supreme court failed to address or consider the significance of other applicable statutory provisions. Section 1 — 108 of the Code of Civil Procedure (Code) indicates that, except as otherwise provided, the Code applies to proceedings under the Administrative Review Law. (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 108.) Section 2 — 616 of the Code, in turn, provides that in certain situations, a plaintiff may amend his complaint to name additional parties after the time has lapsed for bringing an action or asserting a right. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616.) Plaintiffs argue that under section 2 — 616, the circuit court should have allowed them to amend their complaints after the time period for filing a complaint had elapsed. Further, section 1 — 106 of the Code provides:

“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. The rule that statutes in derogation of the common law must be strictly construed does not apply to this Act or to rules made in relation thereto.” (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 106.)

Nothing in the Administrative Review Law explicitly prohibits the amending of a complaint or the adding of additional parties after the 35-day period. Moreover, the Administrative Review Law is contained within the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 1 — 101(c), 3-101 et seq.).

In Bradshaw v. Barnes (1986), 145 Ill. App. 3d 866, 496 N.E.2d 276, the Fourth District Appellate Court adopted a position similar to that now advanced by Shaw and Camp, i.e., that section 2 — 616 of the Code authorizes the amending of administrative review complaints after the 35-day period to add necessary parties.

We are not unsympathetic to plaintiffs’ position in this case. However, in Lockett, the supreme court stated, “We are aware that the appellate court has held a failure to name and issue summons against necessary parties within the 35-day limit can be cured by subsequent amendment.” (Lockett, 133 Ill. 2d at 356.) Then, citing Bradshaw and another case, the supreme court stated, “To the extent those cases conflict with our holding today, they are overruled.” (Lockett, 133 Ill. 2d at 356.) It is clear that the supreme court considered the significance of section 2 — 616 of the Code and that the court rejected the position now advanced by Shaw and Camp.

Finally, the plaintiffs argue that they should be allowed to amend their complaint because they acted in good faith. Plaintiffs misconstrue the “good-faith” discussion within Lockett, where the supreme court noted the distinction between the timely filing of a complaint and the timely issuance of the summons. The court stated that the latter is “mandatory” while the former is “jurisdictional.” (Lockett, 133 Ill. 2d at 354-55.) Thus, even where the summons is not issued within the prescribed 35 days, the court indicated that the case need not be dismissed if the plaintiffs acted in good faith in seeking the timely issuance of summons. (Lockett, 133 Ill. 2d at 355.) Since the issue in the case is whether the plaintiffs filed their complaints against all the necessary parties within the 35-day period, plaintiffs’ assertions of good faith cannot cure the jurisdictional defects.

Accordingly, the judgment of the circuit court of Hancock County is affirmed.

Affirmed.

McCUSKEY, P.J., and BARRY, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE EDWARD WARD, Defendant-Appellant.
    Third District
    No. 3-92-0277
    Opinion filed April 6, 1993.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, George Edward Ward, pled guilty to criminal damage to property and two counts of burglary (720 ILCS 5/19 — 1, 21 — 1 (West 1992)). He was sentenced to concurrent 3- , 20- , and 20-year terms of imprisonment, respectively. The defendant appeals.

The record shows that the defendant broke a plate glass window, entered a commercial building, and then ran out with some candy, change, and a shirt. The items were traced to shops inside the building.

At the sentencing hearing, the trial judge found that the defendant was eligible to be sentenced as a Class X offender because of his prior Class 2 felony convictions. (730 ILCS 5/5 — 5—3 (West 1992).) The judge then noted the defendant’s lengthy criminal record as an aggravating factor and the nonviolent nature of the crimes as a mitigating factor. After being sentenced, the defendant replied, “Twenty years. Are you kidding? *** That’s unfair [Y]our [Hjonor.” The defendant’s trial counsel did not file a motion to reconsider sentence, a motion to withdraw the guilty plea, or a notice of appeal.

The defendant subsequently wrote a letter to the trial judge which was treated as a post-conviction petition. In this petition, the defendant alleged he had received ineffective assistance of counsel because his counsel failed to file a motion to reconsider sentence or to withdraw the guilty plea. The defendant also asked that new counsel be appointed to assist him in his post-conviction petition. The court appointed new counsel, who then filed a supplement to the post-conviction petition. The supplement reiterated that the defendant’s trial counsel was ineffective for failing to preserve the defendant’s rights on appeal.

The trial judge dismissed the post-conviction petition without an evidentiary hearing. He found that “beyond a reasonable doubt [the defendant’s] efforts on appeal to have that sentence declared excessive would have failed.”

On appeal, the defendant argues that his trial counsel was ineffective for failing to preserve his appellate rights. He further contends that the sentence was excessive because it was based on improper double enhancement and was unduly harsh. He requests that this court address the merits of the excessive sentence issue, find the sentences to be excessive, and reduce them.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel’s unprofessional errors, the results of the proceedings would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052.

In the instant case, defense counsel could have preserved the defendant’s appellate rights by filing an appropriate motion and, if that motion was denied, a notice of appeal. Because of his failure to do so, we find that his representation fell below an objective standard of reasonableness. Therefore, we find that the first prong of Strickland is satisfied.

To examine the second prong of Strickland, we must determine whether counsel’s unprofessional errors led to a different result. We must therefore address the merits of the defendant’s sentencing arguments.

The defendant first argues that his sentence was excessive because it was based upon improper double enhancement.

A sentencing court cannot use a prior conviction to enhance the seriousness of an offense and then use the same conviction as an aggravating factor. (People v. Owens (1990), 205 Ill. App. 3d 43, 563 N.E.2d 75.) However, where it can be determined from the record that the weight placed on an improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

We find that the trial court erred in relying on all ten convictions in aggravation, since only two of the Class 2 convictions could be used for enhancement purposes. However, we further hold that the error had no impact on the sentence. A review of the record shows that the trial court’s concern was that the defendant had a serious record of criminal activity. Even if two convictions were removed from consideration, the eight remaining felony convictions were more than sufficient to support the trial court’s finding. (See People v. Harvey (1987), 162 Ill. App. 3d 468, 515 N.E.2d 337.) We therefore find that any error was harmless.

The defendant also argues that his sentence was unduly harsh.

The trial court is the proper forum in which a suitable sentence is to be determined, and the trial judge’s decision in regard to the sentence is entitled to great weight. (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) When it is contended that the sentence imposed in a particular case is excessive, but within the limits prescribed by the legislature, the reviewing court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law in its spirit and purpose, or is manifestly in excess of the proscription of the Illinois Constitution. People v. Taylor (1965), 33 Ill. 2d 417, 211 N.E.2d 673.

The defendant had numerous prior felony convictions. A review of the defendant’s record indicates that his probation had once been revoked, his parole had once been revoked, and he had unsuccessfully completed a period of TASC supervision. Finally, the defendant committed the instant offenses just three days after he was paroled from the Department of Corrections. Under these circumstances, we find that the trial judge did not abuse his discretion in sentencing the defendant to a 20-year term of imprisonment.

Because we have found that the defendant’s sentence was proper, the second prong of Strickland was not satisfied. Therefore, the defendant’s trial counsel was not ineffective for failing to perfect a direct appeal of the defendant’s sentence. Accordingly, we find that the trial judge properly dismissed the petition without an evidentiary hearing.

Based on the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY, P.J., and LYTTON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON GULLY, Defendant-Appellant.
    Fifth District
    No. 5-91-0675
    Opinion filed April 13, 1993.

      Robert Agostinelli and Mark D. Fisher, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Following a jury trial, defendant, Leon Gully, was convicted of aggravated kidnapping, armed robbery, and aggravated criminal sexual assault. He was sentenced to concurrent terms of imprisonment of 10 years for aggravated kidnapping, 20 years for armed robbery, and 25 years for aggravated criminal sexual assault. Defendant’s convictions and sentences were affirmed on appeal. People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091.

Thereafter, defendant filed two pro se post-conviction petitions; appointed counsel filed an amended post-conviction petition. Pursuant to an evidentiary hearing, the amended petition for post-conviction relief was denied. Defendant appeals and raises two issues for our review: (1) whether the trial prosecutor committed reversible error by violating the advocate-witness rule and by failing to perfect impeachment of an alibi witness and (2) whether defendant was denied a fair trial by the prosecution’s use of inflammatory expert opinion testimony. We affirm the circuit court’s order denying post-conviction relief.

On December 14, 1984, at about 12:30 a.m., the victim was driving home from her job at the National Stockyards Inn near East St. Louis, Illinois. At a stop sign, she pulled up behind another car. When the car in front of her did not proceed through the intersection, the victim began to back up in order to pull around the front car. However, the car in front backed up into her car. The driver of the front car approached the victim and apologized for backing into her car. At this point the victim became suspicious, and as she tried to leave the scene, two male passengers from the front car pulled a gun on her and forced her to unlock the car doors. They entered the car and shoved her head down. One of the two men removed her jewelry while the other man turned her car around and started driving back towards East St. Louis. The victim was taken to a vacant dead-end street. At this point, the driver of the front car pulled up and told the two men he did not want any part of what they were doing; the driver left the scene. The two men then ordered the victim to get into the back seat and remove her clothes. One of the men had intercourse with the victim while the other made her engage in oral sex. After the first man left the car, the second man then had intercourse with the victim. The first man opened the car door and asked “Jules or Julian” to give him his pants. “Jules” threw the pants from the car and told “Leon” to shut the door. During this exchange, the victim was able to see “Leon’s” face in the car’s dome light. (People v. Gully (1986), 151 Ill. App. 3d 795, 797, 502 N.E.2d 1091, 1093.) The victim was then allowed to dress and ordered to search for the car keys which the men had dropped. She found the keys and handed them to “Leon,” whose face she again observed at this time. The victim was then ordered to walk toward the woods. Once she reached the woods, the victim ran to the interstate, where she flagged down a motorist who took her to the National City police department. The victim was then taken to St. Elizabeth’s Hospital in Granite City, where a nurse used a Vitullo rape kit to obtain a vaginal swab and smear which was later submitted for forensic analysis. East St. Louis police officers recovered the victim’s car.

In her initial statements to the authorities, the victim stated that all three men in the car which hit hers were armed. She later testified that that was incorrect; only the two men who got into her car were armed, but the driver of the other car was not. One man was armed with a long-barrelled .38 or .44 caliber revolver. The other man had a snub-nosed .38 caliber revolver. The victim described “Jules” as 5 feet 8 inches or 5 feet 9 inches, slender, 160 pounds, light complected with short hair, and clean shaven. She described “Leon” as 5 feet 9 inches or 5 feet 10 inches, stocky, 180 to 185 pounds, 27 or 28 years old with a round face, a medium Afro, and darker complected than “Jules.” She later testified that the descriptions of Jules and Leon were reversed and that she could identify Leon but not Jules. On the same day as the assault, the East St. Louis police department received a telephone call from someone claiming knowledge of the crimes. The caller identified Leon Gully, Terry Lewis, and Jackie Wilson as the three men involved in the robbery and assault. The police identified the caller as Kenneth Chaney. Pursuant to questioning, Wilson implicated defendant, Lewis, and Chaney as the three men involved in the offenses. Pursuant to Chaney’s call, the police arranged a photographic array for the victim to view. Fourteen days after the assault, the victim viewed a 60-photograph array and identified defendant as the assailant named “Leon.” Defendant is 5 feet 4 inches or 5 feet 5 inches, weighs 155 pounds, and is three inches shorter than Chaney. Parenthetically, we note that Chaney was subsequently convicted and sentenced for his part in the assault and robbery.

Terry Lewis, a convicted burglar, testified at trial to a conversation he had had with defendant shortly before Christmas 1984. Lewis testified that defendant told him that he and Chaney had taken jewelry from a woman and were going to sell it to a pawn shop.

Jackie Wilson, also a convicted burglar, testified that he was the driver of the car on the night of December 14, 1984. He testified that he tried to convince defendant and Chaney not to harm the woman; Wilson fled because he did not wish to get into any more trouble. Wilson further testified that the next day defendant told him that he and Chaney had raped the woman and Chaney had taken her jewelry. Defendant also told Wilson that Chaney had called him by name during the incident. Wilson testified that defendant and his girlfriend, Rachelle Rogers, had asked him not to testify.

Susanne Davis testified that she purchased a ring from Rachelle Rogers for $40 shortly before Christmas 1984. The victim identified the ring as one of the pieces of jewelry taken in the robbery. Rogers testified that Chaney brought the rings to her home and defendant told her she could wear the rings. Rogers admitted giving a statement that the defendant told her that he had raped and robbed a woman. Later on, Rogers claimed she signed the statement only because investigators threatened to take her child away. Rogers also testified that she had previously seen defendant with a .38 caliber snub-nosed revolver.

Dennis Aubuchon, a forensic scientist, testified that he found seminal fluid on the vaginal swab and smear contained in the Vitullo rape kit. After analyzing blood and saliva samples taken from defendant, Aubuchon concluded that defendant was a nonsecreter, meaning his blood type would not be reflected in his bodily secretions such as sweat, saliva, or semen. Aubuchon concluded that defendant could not be excluded as the donor of the semen found in the victim. According to Aubuchon, approximately 30% of the black population are nonsecreters. Defendant is black. Aubuchon further testified that Kenneth Chaney, also a black man, was a nonsecreter as well.

The defense called Phyllis Childers as an alibi witness. Childers is defendant’s relative and neighbor. Childers testified that the defendant was at her home on the night of December 13-14, 1984, and that defendant did not leave until the following morning sometime between 7 and 8:30 a.m. Childers testified that she, the defendant, and several others spent the night “drinking and getting high.” Childers testified that her sister, Senatta Bland, and the defendant fell asleep in the basement of the home early in the morning of December 14. According to Childers, the defendant and Bland were asleep when Childers left at approximately 4:30 or 5 a.m. to get milk coupons for her children and the two were still sleeping when Childers returned at 8 a.m. Timothy Gully, defendant’s brother, who was in the home part of that time, corroborated Childers’ testimony. On cross-examination, Childers denied that she had made a prior statement placing defendant in her home overnight in either the month of October or November rather than December.

Defendant testified in his own behalf. He stated that on the night of December 13-14, 1984, he split his time between Rogers’ home, his home, and Childers’ home. He further testified that he was at his home on December 13 from noon until 9:30 p.m. and that he arrived at Childers’ home at “exactly” 9:30 p.m. and stayed there all night. He later testified that he did not go to Childers’ home until approximately 12:30 a.m. on the morning of December 14. At another point, he testified that he had been at Rogers’ home from some time in the afternoon of December 13 until 7 or 8 o’clock that evening. He further admitted that he had previously told investigators that he had spent the entire night with Rogers and had never left the house and that Rogers would corroborate his story.

Defendant further testified that he had taken no part in the robbery and assault on December 14. He denied making inculpatory statements to Wilson and Lewis. Defendant testified that Chaney gave him the jewelry, which defendant agreed to hold until Chaney paid off a preexisting debt to defendant. Defendant disclaimed any knowledge that the jewelry had been stolen. Defendant’s 10-year-old brother, Perry Gully, testified that Chaney had brought jewelry to the Gully home about a week before Christmas 1984.

In rebuttal, investigators Robyn Blaha and Ed Muzzey testified that when they interviewed Phyllis Childers about a week prior to trial, she remembered drinking with defendant one night and that defendant had ended up staying overnight in her home sometime before Thanksgiving, possibly in October 1984.

After deliberating approximately 12 hours, the jury returned verdicts of guilty on all three counts. The convictions were upheld on direct appeal. (People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091.) Defendant now appeals the circuit court’s order denying his petition for post-conviction relief.

Defendant first claims he was denied a fair trial when the trial prosecutor violated the advocate-witness rule in the cross-examination of alibi witness Phyllis Childers and in the prosecutor’s failure to perfect the impeachment of Childers.

The advocate-witness rule precludes an attorney from acting as advocate and witness in the same case. (See People v. Janes (1985), 138 Ill. App. 3d 558, 566-67, 486 N.E.2d 317, 323.) The rule reflects the inconsistency between the role of an advocate and that of a witness; the function of an advocate is to advance or argue the cause of another, while that of the witness is to state the facts objectively. (Janes, 138 Ill. App. 3d at 567, 486 N.E.2d at 323.) The rule, however, is not absolute. A prosecuting attorney may testify in a criminal case in which he is engaged if, in the discretion of the trial court, such testimony is necessary. Janes, 138 Ill. App. 3d at 567, 486 N.E.2d at 323.

Here, the defendant contends the prosecutor violated the rule when she cross-examined defense witness Phyllis Childers about a prior conversation between Childers and the prosecutor. On direct examination, Childers provided defendant with an alibi when she testified that defendant spent the evening of December 13-14 at her home. Obviously, if defendant spent the night at Childers’ home, he could not have been one of the participants in the robbery and assault. On cross-examination, the prosecutor questioned Childers about a conversation they had had several days prior to trial. The pertinent testimony is as follows:

“Q. [Assistant State’s Attorney] Do you recall our conversation that we had?

A. [Phyllis Childers] Yes, I do.

Q. And do you recall what you told me about this particular date?

A. Yes, I do.

Q. And what do you recall telling me?

A. I told you that I left — I left and returned. I left about the 25th of December and I returned the first part of the year. And you asked me did Leon call me and have me say anything or something.

Q. About this night that Leon was with you the whole night, spent the whole night with you, ate dinner with you, do you recall telling me when that happened, what date that was?

A. No, because you didn’t ask me.

Q. Do you recall telling me it had to be some time in October?

A. No, I recall telling you it was cold.

Q. You recall telling me it was some time in October, that it was definitely before Thanksgiving?

A. No, I didn’t tell you that.

Q. Do you recall telling me that you left November 18 for Springfield and did not return until some time—

A. I recall I told you I left November 18 and I returned back. The 25th of December I left again and I also returned back the first part of the year.

Q. You left November 18?

A. I come back about the 20th something of December. Then I went back.

Q. When did you leave for Springfield? Do you recall telling me it was November 18 that you left for Springfield.

A. Yes, I do.

Q. And you came back December 25.

A. No, I don’t recall telling you that.

Q. Did you just say that you came back December 25?

A. I said I left November 18. I come back the 20th something of November. I turned around and left again December 20 something. That’s what I said.

Q. Do you recall telling me that you were — you left in November for Springfield and you were gone until some time late in December?

A. No. I don’t recall telling you that. I didn’t tell you that.

Q. So today you are able to remember December 13?

A. I remember it because the 14th I had to pick up my kids’ milk coupons and I had to go back across the street where my sister lives with my mom at the other house to get the appointment slip and the card I have to pick the coupons up. That’s how I know Leon was still there because I went in the basement.

Q. Regarding this particular night, the night you had been with Leon all evening, do you recall telling me the reason why you remember that night is because Leon had called you and told you about that night?

A. No, I don’t. You asked me did Leon call me. Them was your words. You asked me those.

Q. What did you tell me?

A. I told you, ‘No, I haven’t talked to Leon.’ That’s what I told you. And you told me that you would be the one prosecuting me or something. I said, T don’t care.’ That’s what I said.”

Clearly, the prosecutor was attempting to impeach Childers with her prior inconsistent statements that defendant spent the night in her home in November or October rather than December 1984. Generally, impeachment of a witness with a prior inconsistent statement is a proper trial tactic. (See People v. Batchelor (1990), 202 Ill. App. 3d 316, 559 N.E.2d 948.) Defendant contends that such impeachment is improper in the instant case since the prior statements were made to the prosecutor rather than a third party. Defendant asserts that when the prosecutor asked Childers whether she recalled making the prior statements to the prosecutor by asking, “Do you recall telling me ***?” the prosecutor was essentially saying “You told me ***.” Defendant argues that this improper questioning transformed the prosecutor into a witness even though she did not actually take the stand. Defendant maintains the error was compounded when, during closing argument, the prosecutor again brought up Childers’ prior inconsistent statements:

“Do you really believe that Leon Gully was at home all night with his mother and family until 12:30? Is it interesting to you that it totally contradicts the evidence of Phyllis who he was supposed to be with all day, drinking with, going to dinner with, who when I talked to on Friday thinks the date is sometime in October and tells us that it was from a call from Leon Gully that she knows what date to remember and then today can testify that she is positive that it was December 14 and December 13? Was she credible to you?”

Defendant contends that in addition to violating the advocate-witness rule, the prosecutor erred in failing to perfect the impeachment of Childers with the rebuttal testimony of Agents Blaha and Muzzey, thus depriving him of his right to a fair trial. The prosecutor asked Childers about three prior inconsistent statements — that defendant spent the night at her home in November or October 1984; that Childers was out of town on December 13 and 14, 1984; and that defendant telephoned Childers and told her he spent the night of December 13-14, 1984, at her home. The witness denied making any of these statements. In an attempt to rebut this testimony, the prosecutor called Agents Blaha and Muzzey, who both witnessed the conversation between the prosecutor and Childers. Both agents testified that Childers said she thought defendant had spent the night at her house prior to Thanksgiving 1984, possibly in October. However, neither witness related anything about the prosecutor’s claim that Childers had said she was out of town on December 13-14, 1984. With respect to the prosecutor’s suggestion that defendant told Childers that he spent the night of December 13-14 at her home, the agents testified that Childers had said defendant called her to ask Childers if she remembered the time they (Childers and defendant) were at her home drinking together, but the agents did not testify that Childers had said defendant had given her the December dates. Defendant contends that as the prosecutor completed impeachment with respect to only one of the prior inconsistent statements, but not the other two, the aborted impeachment deprived him of the right to a fair trial. Lastly, defendant contends that as the evidence in this case was closely balanced, the prosecutor’s misconduct was especially damaging to the defense because Childers was a crucial witness; the improper treatment of Childers deprived defendant of critical alibi testimony.

• 1 We must note that the alleged prosecutorial misconduct of which defendant now complains was not objected to at trial, raised in defendant’s post-trial motion, raised on direct appeal, or raised in defendant’s pro se or amended post-conviction petitions. As the issue was not raised in defendant’s amended post-conviction petition, the issue is waived. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 3.) As the State accurately notes, the alleged prosecutorial misconduct was apparent of record and therefore could have been raised as an issue on direct appeal. The judgment of the reviewing court on appeal is res judicata as to all issues decided, and any claim that could have been presented on direct appeal is, if not presented, thereafter barred under the doctrine of waiver. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, 833.

Defendant invokes the plain-error doctrine as a vehicle to review the claim of prosecutorial misconduct. The plain-error rule permits a court on direct appeal to take notice of plain errors and defects affecting substantial rights which were not brought to the attention of the trial court. (People v. Owens (1989), 129 Ill. 2d 303, 316, 544 N.E.2d 276, 281.) However, the rule cannot be used to consider procedurally defaulted claims when defendant collaterally attacks his conviction or sentence under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1 et seq.). (Owens, 129 Ill. 2d at 316, 544 N.E.2d at 281.) Use of the plain-error rule to review procedurally defaulted claims raised for the first time in a post-conviction petition would nullify the affirmance obtained on direct appeal. (See Owens, 129 Ill. 2d at 316-17, 544 N.E.2d at 281.) Procedurally defaulted claims may be reviewed in post-conviction proceedings only when fundamental fairness so requires; the principle of fundamental fairness applies only when a defendant shows cognizable “cause” for failure to make a timely objection and shows “actual prejudice” flowing from the errors of which he now complains. (Owens, 129 Ill. 2d at 317, 544 N.E.2d at 282.) To satisfy the “cause and prejudice” standard, defendant must show not simply that the errors created a possibility of prejudice but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension. (Owens, 129 Ill. 2d at 317-18, 544 N.E.2d at 282.) We do not believe defendant has demonstrated that the alleged prosecutorial misconduct worked to his actual and substantial disadvantage such that it infected the entire trial with an error of constitutional magnitude.

Defendant also alleges ineffective assistance of trial and appellate counsel for failure to preserve the issue of prosecutorial misconduct or raise the issue on direct appeal. We note that although defendant’s post-conviction petition did assert ineffective assistance of trial and appellate counsel, the specific allegations of incompetence contained in the petition were not those now raised on appeal and, therefore, the trial court did not consider these allegations during the hearing on defendant’s post-conviction petition. As the claim of ineffective assistance of trial and appellate counsel for failure to raise the issue of prosecutorial misconduct below or on appeal was not included in the amended petition for post-conviction relief, the claims are waived for purposes of review. Ill. Rev. Stat. 1991, ch. 38, par. 122— 3.

Finally, defendant asserts ineffective assistance of post-conviction counsel for failure to include the issue of prosecutorial misconduct in the amended petition for post-conviction relief. We address the substance of this claim but only within the context of the claim of incompetence of post-conviction counsel. (See People v. French (1991), 210 Ill. App. 3d 681, 689, 569 N.E.2d 934, 939.) While not expressly stated, defendant implies that post-conviction counsel was deficient for failure to amend the petition to allege ineffective assistance of trial and appellate counsel for their failure to raise the issue of prosecutorial misconduct.

While a defendant has a statutory right to a reasonable level of assistance in a post-conviction proceeding, there is no constitutional right to assistance of post-conviction counsel. (People v. Owens (1990), 139 Ill. 2d 351, 359, 564 N.E.2d 1184, 1189; Williams v. Chrans (7th Cir. 1991), 945 F.2d 926, 932.) The entitlement to a reasonable level of assistance in a post-conviction proceeding is not coextensive with the constitutional right to assistance of trial counsel. (Owens, 139 Ill. 2d at 364, 564 N.E.2d at 1189.) This is because trial counsel acts as a shield to protect defendant from being “haled into court” by the State and stripped of his presumption of innocence. (Owens, 139 Ill. 2d at 364, 564 N.E.2d at 1190.) However, a post-conviction petitioner has already been stripped of the presumption of innocence and has generally failed to obtain relief on direct review. Post-conviction counsel is appointed not to protect the petitioner from the prosecutorial forces of the State but to shape his complaint into the proper legal form and to present those complaints to the court. (Owens, 139 Ill. 2d at 364-65, 564 N.E.2d at 1190.) The record in the instant case reveals that defendant’s post-conviction attorney consulted with him, examined the record of the trial proceedings, and filed an amended post-conviction petition and several supplements thereto. Defendant now alleges appointed counsel was incompetent for failure to include in the amended petition a claim of prosecutorial misconduct. However, there is no requirement that post-conviction counsel must amend the petition to include a certain claim. (People v. Spreitzer (1991), 143 Ill. 2d 210, 221, 572 N.E.2d 931, 936.) In order to show inadequate representation, a defendant must show that the petition could have been amended to state a case upon which relief could be granted. People v. Wren (1992), 223 Ill. App. 3d 722, 731, 585 N.E.2d 1216, 1222.

We do not believe that the petition would have stated a case upon which relief could have been granted even if post-conviction counsel had amended the petition to include a claim of constitutional error in the prosecutor’s alleged violation of the advocate-witness rule and incomplete impeachment of alibi witness Phyllis Childers. Assuming, arguendo, the prosecutor violated the advocate-witness rule, we believe any error was harmless. While defendant argues the prosecutor’s conduct deprived him of the benefit of crucial alibi testimony, we note that defendant’s testimony was not necessarily consistent with the alibi provided by Childers. Defendant has failed to demonstrate any actual prejudice resulting from the alleged violation. People v. Langdon (1980), 91 Ill. App. 3d 1050, 1057, 415 N.E.2d 578, 584.

The same applies with respect to the alleged incomplete impeachment of Childers. On direct examination, Childers testified that defendant spent the night at her home on December 13-14, 1984. On cross-examination, the prosecutor questioned her about three alleged prior inconsistent statements, that is, that defendant spent the night at her home sometime before Thanksgiving 1984, that Childers was out of town on December 13-14, and that defendant had telephoned her and told her he spent the night of December 13-14 at her home. Childers denied that she made these prior statements. Blaha and Muzzey both testified that Childers had said defendant had spent the night at her house prior to Thanksgiving 1984, possibly October. Blaha also testified that Childers had stated that defendant had contacted her and asked her if she remembered one particular occasion when they had been drinking at her residence. Childers responded that she did remember drinking with defendant on one particular occasion at which time defendant asked her if she could verify that he was with her at the residence at that particular time. Childers stated that she was not sure but believed that particular time was before Thanksgiving, possibly in October. The agents provided no testimony as to Childers being out of town at the time the offenses were committed, but we believe this error was harmless as Childers was so thoroughly impeached with two of her three prior inconsistent statements. Finally, we note that Childers’ alibi testimony was not necessarily consistent with defendant’s testimony. Childers testified that defendant arrived at her home at 12:30 p.m. on the afternoon of December 13 and stayed there all night. She testified that he never left her home, except for a 30-minute period sometime between 8 and 9 p.m. Defendant testified that he was at home on December 13 from noon until 9:30 p.m. when he went to Childers’ home. He also testified that he did not reach Childers’ home until 12:30 a.m. on the morning of December 14. He further admitted that he had previously told investigators that he spent the entire night of December 13-14 with Rachelle Rogers.

With respect to the prosecutor’s alleged inflammatory statement attacking the credibility of Childers during closing argument, we find no error as the jury was instructed that closing argument does not constitute evidence. The jury instruction cured any possible prejudice. People v. Spann (1981), 97 Ill. App. 3d 670, 678, 422 N.E.2d 1051, 1058.

In sum, we cannot find that post-conviction counsel was incompetent for failure to amend the petition to include a claim of prosecutorial misconduct. Even assuming such misconduct, it did not amount to reversible error, as evidence of defendant’s guilt was overwhelming. The victim saw her assailant “Leon” three times during the robbery and assault which took place on December 14, 1984. Furthermore, the victim identified defendant from a 60-photograph array two weeks after the incident. At trial, the victim identified defendant with “absolute certainty.” Two witnesses testified that defendant admitted his participation in the crimes to them. Defendant’s girl friend, Rachelle Rogers, testified that defendant told her he had robbed a woman. Rogers had previously seen defendant with a .38 caliber snub-nosed revolver, a type of gun used in the offense. Rogers sold the victim’s jewelry to Susanna Davis. Furthermore, at the time of his arrest, defendant lied to police, telling them his name was Timothy Gully rather than Leon Gully. Additionally, there was testimony that defendant contacted a witness and asked him not to testify. Lastly, defendant’s testimony was not consistent with the alibi provided by Childers.

Finally, defendant claims he was denied a fair trial when the prosecution presented the inflammatory expert opinion testimony of Dennis Aubuchon. Aubuchon compared a semen sample taken from the victim with blood and saliva samples taken from defendant. He testified that defendant was a nonsecreter, meaning that defendant’s blood type would not be reflected in his bodily secretions. Aubuchon concluded that defendant could not be excluded as the donor of the semen taken from the victim. He noted that 30% of the black population were nonsecreters.

Defendant contends this testimony was inflammatory and completely irrelevant to any disputed issue at trial. This issue is subject to the analysis presented above. The issue is waived for failure to include it in the amended post-conviction petition. (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 3.) Additionally, post-conviction counsel was not ineffective for failure to raise the issue in the amended post-conviction petition, as inclusion of the issue would not have stated a claim upon which relief could have been granted. As inclusion of the issue would not have warranted relief, trial and appellate counsel were not ineffective for failure to raise it below or on direct appeal. See People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

We affirm the trial court’s order denying defendant’s petition for post-conviction relief.

Affirmed.

WELCH and LEWIS, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GUTIERREZ, Defendant-Appellant.
    Fifth District
    No. 5—91—0375
    Opinion filed April 14, 1993.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and G. Edward Moorman, of Alton, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a bench trial based on stipulated evidence in the circuit court of Franklin County, defendant, Jerry Gutierrez, was found to have committed the offenses of unlawful cannabis trafficking in that he knowingly brought 2,500 or more grams of cannabis into the State of Illinois for purposes of delivering it to Indiana in violation of section 5.1 of the Cannabis Control Act (the Act) (Ill. Rev. Stat. 1989, ch. 56%, par. 705.1); unlawful possession of cannabis with intent to deliver in that he knowingly and unlawfully possessed with intent to deliver more than 500 grams of a substance containing cannabis in violation of section 5(e) of the Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(e)); and unlawful possession of cannabis in that he knowingly and unlawfully had in his possession more than 500 grams of a substance containing cannabis in violation of section 4(e) of the Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 704(e)). Defendant was sentenced to 10 years in the Department of Corrections on count I, unlawful cannabis trafficking, and was fined $128,500. Defendant appeals, contending his motion to suppress should have been granted because he did not consent to the search of the trunk of his automobile where the cannabis was found. We affirm.

At approximately 12:07 p.m. on December 31, 1990, defendant was stopped by an Illinois State trooper, Michael Swift, on Interstate 57 northbound at milepost 74 for traveling too fast for conditions (the road was icy) and for following too closely. Defendant was issued a written warning for improper lane usage, traveling too fast for conditions, and following too closely. Defendant was traveling alone, and Swift noted that he was nervous upon questioning. Swift questioned defendant as to his destination. Defendant told Swift he was traveling from Texas to Indiana to visit his sister. At the scene, Swift requested a check of defendant’s criminal history by radio. The check revealed that defendant was previously arrested for possession of cocaine. Swift then asked defendant whether he would agree to a search of his vehicle. According to Swift, defendant consented both orally and by signing a written consent form which read as follows:

I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.”

Swift testified that he did not ask defendant for a limited search of the passenger compartment but requested a search of the entire vehicle.

A search of the vehicle was conducted. Upon opening the trunk of defendant’s car, Swift smelled a strong odor of cannabis. Swift opened a suitcase found in the trunk of defendant’s car and discovered 25,704 grams of a substance later identified as cannabis. Swift stated that defendant told him the cannabis was his and that he intended to sell it in Indiana. Defendant testified that after he was given warning tickets, Trooper Swift asked him if he could search his car for “weapons.” Defendant was given a consent form to sign, which he did. According to defendant, he did not read the form but did ask Swift what he intended to search. Swift replied, “The passenger area.” Defendant then signed the form and told Swift to “go ahead.”

Defense counsel filed a motion to suppress before trial. A hearing was held on defendant’s motion. Ultimately, the trial court denied defendant’s motion on the basis that there was probable cause for the traffic stop and, while there was no probable cause to search the vehicle, defendant consented to the search of his vehicle. The trial court specifically stated:

“The defendant also contends that the search of the defendant’s vehicle was done without probable cause. The officer conducted a complete search of the vehicle, including the trunk, after warning tickets were issued to the defendant.
It is clear that there was no probable cause, at that point, for the search of the defendant’s automobile. The basis of the search by the police officer was not because probable cause existed prior to the search, but this search was based on a written Consent to Search signed by the defendant at the time the warning citations were issued to him. The defendant consented to the search of the vehicle by description, which consent included luggage and contents thereof, as more fully shown by the Consent introduced in evidence as People’s Exhibit Number 2.”

After the trial court denied defendant’s motion to suppress, the parties agreed to a stipulated bench trial. Defendant was ultimately convicted and sentenced on count I.

It is well settled that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514; People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.) A person may, however, consent to a search conducted without a search warrant, but in order for the consent to be considered a waiver of the person’s fourth amendment rights, the State must prove by a preponderance of the evidence that the consent was voluntarily given. (People v. Harris (1990), 199 Ill. App. 3d 1008, 1012, 557 N.E.2d 1277, 1279.) Where a search is justified on the basis of consent, the trial court’s finding will not be disturbed on appeal unless it is clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5; People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.

The instant case is analogous to People v. Woolery (1990), 193 Ill. App. 3d 892, 550 N.E.2d 616, in which our colleagues on the Fourth District Appellate Court held that a defendant’s consent to search his automobile was authority to search the entire vehicle, including the trunk. In Woolery, as here, there was conflict between the testimony of the arresting officer and the defendant. The defendant testified he made it clear that consent was for the passenger compartment only, whereas the arresting officer testified that no such limitation was given. The Woolery court noted that the trial court believed the officer’s testimony over the defendant’s and that “[t]he trial court’s determination that consent to search the entire vehicle was voluntarily given was not clearly unreasonable.” 193 Ill. App. 3d at 895-96, 550 N.E.2d at 618.

Here, we cannot agree with defendant that the trial court’s finding that the trooper’s testimony was more credible than defendant’s was manifestly erroneous. Instead, we agree with the Woolery court that a defendant can voluntarily consent to an otherwise improper search knowing that such a search may well result in the discovery of a large quantity of drugs. We have carefully reviewed the record in this case and cannot say the trial court’s determination was incorrect. While there was conflict in the testimony between defendant and Trooper Swift as to what the search was meant to entail, the consent form clearly shows that defendant agreed to a search of the entire vehicle. The consent form does not limit the area to be searched to the passenger compartment.

For the foregoing reasons, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NORMAN BAILEY, Defendant-Appellee.
    Fifth District
    No. 5—92—0475
    Opinion filed April 23, 1993.

      William Haine, State’s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Ronald R. Slemer, of Edwardsville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Norman Bailey, was arrested and charged with driving while under the influence of alcohol on May 1, 1992, after he allegedly backed up and hit another car in a municipal parking lot in Edwards-ville. Defendant refused to submit to a breathalyzer test after he was given the “Warning to Motorists” and he was served with a notice of statutory summary suspension. On May 4, 1992, defendant filed a petition seeking a hearing to rescind the statutory summary suspension of his privilege to drive. At the May 28, 1992, hearing, the trial court held that a parking lot, whether public or private, is not a highway for the purposes of statutory summary suspension and ordered rescission of defendant’s statutory summary suspension. The State’s motion to reconsider was denied. The State appeals, contending that the trial court erred in holding that as a matter of law there can be no statutory summary suspension of a defendant’s privilege to drive stemming from the act of driving while intoxicated on a parking lot in the State of Illinois. We reverse and remand.

Any person who drives or is in actual physical control of a motor vehicle upon the public highways of the State of Illinois is deemed to have given implied consent to the testing of his blood, breath, or urine to determine the alcohol content thereof. (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1(a).) If a person refuses to submit to such testing after being warned that refusal to submit to the test will result in the statutory summary suspension of his privilege to drive, that person’s privilege to operate a motor vehicle will be suspended for a period of six months. Ill. Rev. Stat. 1991, ch. 95x/2, par. 11 — 501.1(c).

The implied consent statute requires a nexus between driving on a public highway at the time of or shortly before the arrest and being subjected to the implied consent provision of the Illinois Vehicle Code. (People v. Foster (1988), 170 Ill. App. 3d 306, 310, 524 N.E.2d 681, 684.) The Illinois Vehicle Code defines “highway” as:

“The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Ill. Rev. Stat. 1991, ch. 95x/2, par. 1 — 126.

The implied consent statute reflects the concern of the legislature over the threat to the public imposed by drivers impaired by alcohol or other drugs and serves to deter and remove problem drivers from the highways, thus making the highways safer. (Koss v. Slater (1987), 116 Ill. 2d 389, 395, 507 N.E.2d 826, 829.) The implied consent statute assists in the determination of which drivers suspected of intoxication are in fact under the influence of alcohol. Because the implied consent statute is remedial in nature, the supreme court has held that it should be liberally construed to accomplish this goal. People v. Wegielnik (1992), 152 Ill. 2d 418, 425, 605 N.E.2d 487, 490.

The defendant asserts that the language of the implied consent statute makes it applicable solely to acts of drunken driving which occur upon public highways. He argues that the locus of the incident in the case at bar was a municipal parking lot, not a highway. Therefore, defendant contends that the implied consent statute would not apply to his act of drunken driving, and the rescission of his statutory summary suspension was proper. The State maintains that a municipal parking lot, maintained and posted by the municipality, is an area which falls within the statutory definition of “highway” and, therefore, is encompassed by the implied consent statute.

When construing a statute, the court must look first to the language of the statute, giving the terms of the statute their plain and ordinary meaning. (Trinity Bible Baptist Church v. Federal Kemper Insurance Co. (1991), 219 Ill. App. 3d 156, 160, 578 N.E.2d 1375, 1377.) The language of section 11 — 501 of the Illinois Vehicle Code (the Code), which addresses driving under the influence of alcohol, applies to drivers of any vehicle within the State and is not limited to the public highways. (Ill. Rev. Stat. 1991, ch. 95^2, par. 11 — 501.) It has been found applicable to those who drive under the influence of alcohol on private as well as public property. (See People v. Foster (1988), 170 Ill. App. 3d 306, 310, 524 N.E.2d 681, 684.) Although the implied consent statute had similarly broad language prior to its amendment in 1982, after that amendment, the language of the implied consent statute restricted the implied consent provisions to those who drive or who are in actual control of the vehicle upon the public highways. The courts have held that the implied consent provisions of the Code do not apply to those impaired drivers observed operating a vehicle in a private parking lot. See People v. Montelongo (1987), 152 Ill. App. 3d 518, 523, 504 N.E.2d 936, 938; People v. Kissel (1986), 150 Ill. App. 3d 283, 286, 501 N.E.2d 963, 965.

The parking lot, in which the defendant allegedly backed into another car, was a municipal parking lot, maintained by the municipality and posted with municipal parking lot signs. In People v. Jensen (1976), 37 Ill. App. 3d 1010, 1013, 347 N.E.2d 371, 374, the court found that a publicly maintained parking lot was a locus which fell within the statutory definition for “highway” for the purposes of a prosecution for driving on a suspended license.

The defendant in Jensen was observed by a Cook County Forest Preserve District ranger as he got into his car, started it, and drove about 10 feet, progressing to the “roadway.” On discovering that the defendant had no driver’s license, the ranger arrested him for driving a vehicle on a public highway of Illinois while his license was suspended or revoked. The record did not reveal whether the “roadway” was part of the parking lot. The court relied upon Ebert v. Incorporated Village of Garden City (1960), 21 Misc. 2d 607, 608, 196 N.Y.S.2d 878, 880, in finding that a publicly maintained parking lot was a highway for the purpose of the statute. The Ebert case found: “While a municipal parking field is, as the word ‘parking’ implies, primarily a place where vehicles are left stationary and unattended, it is essential for the use for which it is provided that both cars and pedestrians have passageway on and through it.” {Ebert, 21 Mise. 2d at 608, 196 N.Y.S.2d at 880.) The Jensen court noted that the Illinois statute defining the word “highway” adopts a broad definition of the word. It went on to state:

“This is not a case in which literal interpretation of the language of the statute would lead to absurd results which the legislature could not have contemplated. The prospect of people driving in publicly-maintained parking lots with suspended licenses could be as offensive as their driving on a fast-moving expressway. The purpose of prohibiting persons from driving with a suspended license was clearly to prevent them from driving a car any place maintained by the public for the passage of traffic. We, therefore, hold that the defendant was driving on a highway with a suspended license [when he drove on a publicly maintained parking lot].” Jensen, 37 Ill. App. 3d at 1013, 347 N.E.2d at 374.

Although the Jensen court was interpreting the statutory definition of “highway” for the purposes of a prosecution for driving with a suspended license, that interpretation of the statute is equally apposite for the application of the implied consent statute. The municipal parking lot in the case at bar, publicly maintained and posted by the municipality, was open to the use of the public for the use of vehicular travel and thus fell within the statutory definition of highway. Defendant’s act of driving while intoxicated on this municipal parking lot was one which fell within the implied consent statute.

We note that the trial judge indicated in his struggle with defining “highway”: “Roads are dedicated. They can be vacated.” However, roads through forest preserves, fairgrounds, and city parks are not necessarily dedicated. Surely, the legislature did not intend to allow intoxicated persons to drive through our parks or fairgrounds without fear of a statutory summary suspension simply because the “way” was not dedicated. The statutory language defining “highway” in the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95V2, par. 1 — 126) is much broader than the language used in the Illinois Highway Code defining “highway.” Ill. Rev. Stat. 1991, ch. 121, par. 2 — 202.

The trial court, therefore, erred in granting defendant rescission of his statutory summary suspension as a matter of law. The judgment of the trial court is reversed, and this cause is remanded to the circuit court of Madison County for further proceedings not inconsistent with the opinion of this court.

Reversed and remanded.

CHAPMAN, P.J., and WELCH, J., concur.