author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELYRIA ALCALA, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—3198
    Opinion filed June 7, 1993.
    Rehearing denied August 2, 1993.

      Michael J. Pelletier and Todd Avery Shanker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Joan F. Frazier, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant, Elyria Alcala, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(C)) and was sentenced to a 13-year prison term.

We affirm.

Defendant’s conviction was obtained with the aid of Octavio Villegas, who had agreed to cooperate with the Cook County State’s Attorney’s office of narcotics investigation following his own arrest for drug possession.. The conviction arose from a transaction to sell cocaine in which Michael Trejo, a Cook County State’s Attorney investigator, posed as purchaser.

Villegas testified that he met defendant in a bar at 93rd Street and Commercial Avenue. He had seen defendant before because she worked at the bar as a bartender. On April 22, 1989, Villegas approached defendant at the bar and told her that he “knew some one who would buy.” Defendant replied that she “had some” and “to bring” the person who would buy. No specific amount of drugs was discussed. The next day, Villegas called defendant and then contacted police regarding the sale.

At 1:30 p.m., Villegas and Trejo arrived at defendant’s home, located at 9825 South Exchange Avenue, in Chicago. Villegas entered the home first and then signaled for Trejo to come in. Ville-gas introduced defendant and Trejo. Defendant and Trejo then went into another room, where Villegas could not hear what was being said.

Trejo testified that he arrived at defendant’s home with Ville-gas. Villegas entered the home first while Trejo waited by the car. After a couple of minutes, Villegas motioned for Trejo to come in. Villegas introduced Trejo to a woman, identified as defendant, sitting on a couch. Another woman sat on the couch, but Trejo was not introduced to her. Defendant stood up, shook hands with Trejo, and instructed him to follow her to another room.

Trejo followed defendant to what appeared to be a woman’s bedroom. Defendant sat on the bed and asked Trejo how much “coca” he wanted. Trejo explained that the term “coca” was Spanish slang for cocaine. Trejo responded that he wanted “a half a key.” Again, Trejo explained that the term was slang for one half of one kilo of cocaine. Defendant then reached into a drawer and pulled out a “little brown cassette box.” The box contained a clear, plastic “baggie” which defendant handed to Trejo. Trejo asked if the bag contained “a half a key,” and defendant assured him that it did, but that if he was “shorted,” he was to return, and she would make up the difference. Trejo continued to examine the substance in the bag which he stated was “kind of rocky.” Defendant told him that the “stuff” came from Waukegan and not from “the neighborhood.” Trejo then asked her how much the drug would cost to which defendant replied $16,500. Trejo told her the price was too high and offered only $16,000. Defendant turned this counteroffer down, indicating that she had to “make a profit.” Trejo then agreed to the price and asked her to come outside to his car for the money. Defendant refused and told Trejo that she would wait there. Trejo asked her again to come out to his car, and again, defendant refused. Trejo ultimately capitulated to defendant’s request.

Trejo went out to his car and opened his trunk, which indicated to Trejo’s backup surveillance units that the deal was “going down.” Trejo reentered the home and, with defendant, exchanged the money for the drugs. At that point, the backup units entered the residence and arrested them.

Chicago police officer Robert Navigato was part of the surveillance team assigned to monitor Trejo’s drug purchase. Navigato watched Trejo and Villegas arrive together at the residence and later enter the home separately. When Navigato saw Trejo open the trunk of the car, he and his fellow surveillants entered the home. As he entered the home, he saw a young Hispanic woman seated on the couch in the living room with Villegas. He then saw Trejo exiting from a bedroom followed by defendant, who was inside the bedroom doorway. Navigato arrested defendant and read her the Miranda warnings from his police handbook.

Navigato described the bedroom from which defendant and Trejo emerged as a female’s room because perfumes, jewelry, and powders were displayed on the dresser. When Navigato told defendant that she was under arrest for selling drugs, she denied that she had done anything wrong and that she had any knowledge of drugs. Defendant agreed to sign a consent to search form, which was read into evidence. After she signed the form, Navigato informed her that she had just sold drugs to an undercover police officer. Defendant then began to cry and stated that she was “sorry” that she ever “got involved.” Navigato then asked her if there were any more drugs in the house. Defendant pointed to the nightstand in the room, in which Navigato subsequently found two more packets of cocaine.

Defendant was then taken to the kitchen and interviewed by a State’s Attorney investigator. Defendant admitted to the sale and stated that she had obtained the cocaine from her ex-husband, Jose Romero.

Navigato then resumed his search of the residence and discovered two “Ohaus” scales in a closet in defendant’s bedroom. Navigato explained that these scales were “triple beam,” very accurate, and inevitably found at drug raids because of their popularity with drug dealers. Navigato also found $900 in United States currency on the dresser in defendant’s bedroom. In defendant’s nightstand, Navigato discovered “snow seals,” papers used to package cocaine in quantities of one gram or less.

Defendant was taken to the police station at 35th Street and Normal Avenue, where she signed a Miranda release form. During her interview, defendant admitted that her “end” of the transaction was to be $500 and a ticket to Hawaii to visit her daughter.

The State also presented the testimony of two other officers assigned to provide backup to Trejo. Investigator William R Walsh of the Cook County State’s Attorney office entered defendant’s residence after she had been placed under arrest. Walsh observed officers discovering the scales in the bedroom. Walsh also observed defendant being interviewed at the kitchen table. Defendant told her interrogators that she was “going to have to pay the price” for her actions. At that time, two of defendant’s grandchildren came into the house. Defendant stated that she did not want to be led away in handcuffs in front of the children. Walsh agreed to the request and did not use handcuffs until defendant was placed into the squad car. As defendant exited her home, she told her grandchildren to “learn a lesson from this,” “not to do what” she “had done” and that .she “was sorry.” Defendant then turned to the other woman in the apartment, who was “crying,” “screaming” and “carrying on” and told her to “shut up,” “quit crying,” and to “take care of the kids.” Defendant told Walsh that the woman was not involved in the transaction.

Chicago police officer Raymond Golnick also testified to the events which occurred during the raid. Villegas was Golnick’s informer. Although the raiding team was not aware of the exact amount of drugs to be purchased, they were aware that they were “going” for “at least a half a kilo.” Golnick was present when defendant signed the consent to search form in her bedroom. Golnick observed Navigate discover the packets of cocaine in defendant’s nightstand. He also was present when the scales and cocaine packaging papers were found.

Golnick interviewed defendant at the police station. There, defendant told him that the drugs had been given to her by her ex-husband, Jose Romero. She did not mention either “Armando” or “Lupe.” Defendant stated that she was to receive $500 and a plane ticket to Hawaii for her participation in the purchase.

The parties stipulated that if called to testify Art Kruske, a Chicago police chemist, would state that he had analyzed the white substance purchased by Trejo from defendant, utilizing the proper and correct testing procedures. In Kruske’s expert opinion, the bag contained 495.1 grams of cocaine. The two packets discovered in the nightstand contained 59.82 grams of cocaine. The cocaine was found to 87.4% pure.

Defendant asserted an entrapment defense and sought to establish that she had been induced to participate in the transaction by both Villegas and a young woman named Lupe. Defendant resided at her home with her three grandchildren, Lupe, and Lupe’s boyfriend, Armando. Defendant had met Lupe a year prior to her arrest. Lupe had recently undergone surgery and asked defendant if she could stay with her at her house.

It was defendant’s testimony that on April 19, 1989, she discovered Lupe in tears because one of Lupe’s children was “going blind” and Lupe needed money for the surgery. Lupe explained that Armando and Villegas “had a buyer” for drugs. When defendant asked what that had to do with her, Lupe responded that they needed defendant to act as an interpreter. Defendant refused to help. Defendant stated that she had never been involved with drugs and “couldn’t handle this.”

Over the next few days, Lupe continued to cry and ask defendant for her assistance. Again, defendant refused to help. On April 22, Lupe and defendant went out to eat dinner. At the restaurant, Villegas came over to their table and Lupe informed him that she “would meet [him] later.” Villegas then left. Lupe and defendant then went to the LaPlaya Lounge on 93rd Street. The bar was owned by defendant’s nephew, and defendant was “helping out” by taking care of it while he was out of town. Villegas entered the bar, and he and Lupe went into a rear stockroom. Defendant followed them and was introduced to Villegas by Lupe as the man “that has the buyer.” Defendant told them that she did not wish to be involved. Villegas told her that “nothing will happen” if she let him use her house and she acted as an interpreter. Villegas also told her there was no reason to be afraid and promised her $500 and a plane ticket to Hawaii. Defendant explained that her daughter was to undergo surgery in Hawaii and that she could not afford the airfare. Defendant also admitted she was concerned about being arrested and was aware that what she was to do was wrong.

According to defendant, Villegas called defendant’s home the next day and asked for Lupe. After 11 a.m., Armando came to the house with the drugs, which were contained in a “Crown Royal” satchel. The drugs were left on the kitchen table. Lupe then called Villegas, and he later arrived at the home with Trejo. When Trejo entered the house, Villegas instructed defendant to bring the “merchandise” from the kitchen to the bedroom. There, Trejo opened the satchel and asked defendant for a scale. Trejo then offered her $16,000 for the drugs. Defendant told him that “they” had said $16,500. Trejo agreed to the price and subsequently left the house to retrieve the money. When he reentered with the money, he placed her under arrest.

Defendant denied ever seeing the two packets of drugs, the scales, and the other paraphernalia which had been found in her bedroom and had no idea how those items came to be discovered in her home. Defendant stated that the $900 found on her dresser represented the “receipts” from her nephew’s bar. Defendant denied telling police that Jose Romero had delivered her the drugs. Defendant stated that she was not a drug dealer and only became involved because she “felt sorry for a person because I have children of my own, and I put myself in her place.” Defendant also denied that police ever gave her Miranda warnings. Defendant admitted signing the consent to search form.

On appeal, defendant argues that the State failed to prove her guilt beyond a reasonable doubt, in view of the evidence of entrapment. The State responds that defendant has waived this claim because she did not raise it in her post-trial motion for a new trial. We disagree.

Our review of the post-trial motion reveals that defendant included in it the argument that the State failed to prove her guilty beyond a reasonable doubt. This sufficiently preserved the issue for appeal.

Section 7 — 12 of the Criminal Code of 1961 provides that a defendant cannot be found guilty of an offense where the conduct forming the basis for the offense was incited or induced by a public officer or agent for purposes of obtaining evidence to prosecute. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12.) This affirmative defense is inapplicable, however, where defendant merely is provided with the opportunity or the facility for committing the offense in furtherance of a criminal purpose originating with the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12.) Accordingly, defendant’s predisposition to commit crime is the critical inquiry. (People v. Gannon (1991), 213 Ill. App. 3d 560, 565, 572 N.E.2d 1133; People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, cert. denied sub nom. Thomas v. Illinois (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316.) Generally, predisposition is established by a defendant’s willingness to participate in criminal activity before his initial exposure to government agents. (People v. Poulos (1990), 196 Ill. App. 3d 653, 661, 554 N.E.2d 448.) Factors to be considered in assessing predisposition include the defendant’s initial reluctance or her ready willingness to commit the crime, the defendant’s familiarity with drugs and her willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s prior or current drug usage, the defendant’s participation in testing or cutting the drugs, and whether defendant had ready access to a drug supply. See People v. Poulos, 196 Ill. App. 3d at 661 (and cases cited therein).

A defendant who asserts the entrapment defense is entitled to instruct the jury on the defense, if, when viewing evidence presented in a light most favorable to the defendant, there is some evidence supporting the defense. (Ill. Rev. Stat. 1989, ch. 38, pars. 7— 12, 3 — 2; People v. Poulos, 196 Ill. App. 3d 653, 554 N.E.2d 448.) In order to convict, the State must then prove defendant guilty beyond a reasonable doubt as to the defense together with all other elements of the crime. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 2(b).) Our courts have recognized that the determination of defendant’s predisposition to commit crime is fact dependent and, as such, is an issue to be decided by the trier of fact. People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528; People v. Gannon, 213 Ill. App. 3d at 565.

Upon review, that determination is given particular deference. (See People v. Gannon, 213 Ill. App. 3d at 565.) Accordingly, this court must affirm, where, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267) unless entrapment can be found as a matter of law. (See People v. Tipton, 78 Ill. 2d at 487; see also People v. Paulos, 196 Ill. App. 3d 653, 554 N.E.2d 448.) Entrapment as a matter of law is not established where there is any substantial evidence from which it may be inferred that the criminal intent to commit a particular offense originated in the mind of the accused. People v. D’Angelo (1992), 223 Ill. App. 3d 754, 585 N.E.2d 1239, appeal denied (1992), 145 Ill. 2d 638, 596 N.E.2d 632.

Initially, we note that defendant’s sufficiency of the evidence argument can succeed only if her trial testimony is taken as true. That testimony, however, conflicted with that presented by the State’s witnesses. Where, as here, entrapment is involved, a reviewing court is precluded from substituting its judgment for that of the jury with regard to the weight of the evidence or the credibility of witnesses. (People v. Lambrecht (1992), 231 Ill. App. 3d 426, 595 N.E.2d 1358, appeal denied (1992), 146 Ill. 2d 641, 602 N.E.2d 465.) That is so because it is the trier of fact’s responsibility to weigh the credibility of the witnesses and to resolve the conflicts and inconsistencies. (People v. Aguilar (1991), 218 Ill. App. 3d 1, 578 N.E.2d 109, appeal denied (1991), 142 Ill. 2d 656, 584 N.E.2d 131.) Here, the jury heard both Villegas’ and defendant’s versions of the events giving rise to the transaction and apparently resolved the discrepancies against defendant. Moreover, defendant’s version of what occurred in the house with Trejo during the actual sale was markedly different from Trejo’s testimony. Again, these conflicts and inconsistencies were resolved against defendant.

Keeping the foregoing principles in mind and viewing the testimony presented in a light most favorable to the State, defendant’s conviction must be affirmed. Villegas testified that he told defendant that he “knew someone who would buy.” Defendant did not refuse this offer, but told Villegas “to bring” him around. This court must accept Villegas’ testimony as true as all the evidence must be viewed in the light most favorable to the State. (See People v. D’Angelo, 223 Ill. App. 3d at 777.) The transaction was set for the next day. This evidence established defendant’s “ready willingness” to commit the crime and her “ready access” to a drug supply. Trejo testified that when he was examining the cocaine, defendant told him “the stuff” came from Waukegan and was not from the neighborhood, apparently to indicate the high quality of the cocaine. She also assured Trejo to return if he found that he was “shorted.” This evidence tends to establish defendant’s “familiarity” with drugs and her willingness to “accommodate the needs” of drug users. Trejo’s testimony further established that defendant was familiar with the slang used in the drug trade. Additionally, defendant’s refusal of Trejo’s lower price offer indicates her eagerness to make a profit. Indeed, defendant’s own testimony established that she was willing to make a profit from what she knew to be an illegal act. This evidence, taken as a whole, is sufficient to establish defendant’s predisposition to commit the crime. Defendant, however, points to her reluctance to get involved in the transaction as evidence of her lack of predisposition. Again, the only evidence of such reluctance was provided by defendant’s own testimony. A close reading of her testimony, however, reveals that this reluctance can be interpreted as a demonstration of the “natural hesitancy and caution of one acquainted with and engaged in illegal activity.” (See People v. D’Angelo, 223 Ill. App. 3d at 779.) The evidence, when taken as a whole, sufficiently supports the jury’s rejection of defendant’s entrapment defense and its finding of guilt.

During its deliberations, the jury sent a note to the judge which contained the following inquiry:

“Was Octavio [Villegas] considered an agent of any of the following: the Chicago Police Department, State’s Attorney’s Office, DEA, other prosecuting body in this trial.”

Defense counsel sought to have the question answered “directly” that “yes, he is an agent.” The State asked that the jury be told that it has the evidence, the exhibits, and the instructions and to resume its deliberations. The circuit court agreed, and the jury was instructed in that manner. Defendant now argues that the court committed error by failing to answer the inquiry in the affirmative.

Generally, jurors are entitled to have their questions answered. (People v. Reid (1990), 136 Ill. 2d 27, 39, 554 N.E.2d 174; People v. Clark (1972), 52 Ill. 2d 374, 391, 288 N.E.2d 363.) The circuit court has a duty to instruct the jury where clarification is requested, the original instructions are incomplete, and the jurors are manifestly confused. (People v. Reid, 136 Ill. 2d at 39.) Moreover, the circuit court is obliged to answer a jury’s questions even if the jury has received proper instructions. People v. Reid, 136 Ill. 2d at 39.

Nevertheless, our supreme court has indicated that, under the appropriate circumstances, a circuit court may, in the exercise of its discretion, refrain from answering a jury’s questions. (People v. Reid, 136 Ill. 2d at 39.) Such a course of action is acceptable if the jury instructions are readily understandable and sufficiently explain the relevant law (People v. Palmer (1982), 111 Ill. App. 3d 800, 444 N.E.2d. 678) and further instructions would serve no useful purpose (People v. Jones (1976), 40 Ill. App. 3d 771, 353 N.E.2d 79) or would potentially mislead the jury (People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319) or if the inquiry involves a question of fact. (People v. Hooker (1977), 54 Ill. App. 3d 53, 369 N.E.2d 147.) A circuit court also may properly refuse to answer a jury inquiry if an answer or explanation by the court would cause the court to express an opinion which would probably direct a verdict one way or the other. (People v. Reid, 136 Ill. 2d at 39.) Furthermore, if the inquiry may require “ ‘a colloquy between the court and the jury, a further explanation of the facts, and perhaps an expression of the trial court’s opinion on the evidence,’ ” then the court may decline to answer the question. People v. Reid, 136 Ill. 2d at 39-40, quoting People v. Tostado (1981), 92 Ill. App. 3d 837, 839, 416 N.E.2d 353.

The State suggests that had the trial judge answered the jury’s inquiry with a direct “yes” answer, the judge would have offered an expression of his opinion as to the evaluation of the evidence. Support for this position appears in both the committee comments to the entrapment statute and People v. Wielgos (1991), 142 Ill. 2d 133, 568 N.E.2d 861.

According to the committee comments accompanying the entrapment statute, there are four elements of the defense, including “the concept of committing the offense originates with the State or its agent.” (Ill. Ann. Stat., ch. 38, par. 7 — 12, Committee Comments, at 440 (Smith-Hurd 1989).) Our supreme court has ruled that this element “implicitly includes a finding that an agency relationship exists between the government officer and the alleged entrapping party.” (People v. Wielgos, 142 Ill. 2d at 137.) In view of this, the jury’s inquiry, whether Villegas was considered an agent, sought a factual determination that they, as jurors, were required to make. Accordingly, the circuit court correctly refused to answer the inquiry.

Defendant next alleges that she was denied her constitutional right to confront witnesses when the circuit court disallowed defense counsel’s questions regarding the extension of time given by the State’s Attorney’s office to Villegas with regard to his agreement.

At trial, Villegas stated that he was arrested on June 28, 1988, for possession of drugs and weapons. Seeking to avoid a lengthy prison term, Villegas entered into an agreement with authorities on December 15, 1988. This agreement called for Villegas’ assistance in obtaining five indictments stemming from drug seizures of at least 60 grams. In the agreement, Villegas was given until January 31, 1989, to complete his part of the contract. On cross-examination, defense counsel asked Villegas if defendant’s arrest was the “one that gets you off the hook,” to which Villegas responded in the affirmative. Counsel also asked Villegas if he was given an extension of time because defendant’s arrest occurred some three months after the expiration of the original contract. Villegas admitted that he had been given an extension. Villegas further admitted that he had aided police in the arrest of an individual known as Armando on April 12, 1990. Counsel proceeded to develop another line of questioning. He then returned to the subject of the time extension, seeking to determine the expiration date of the extension. Objections to these two questions were sustained on the grounds that they had been asked and answered.

In its redirect examination, the prosecutor established that the extension was to expire on May 30, 1989. Although invited to recross-examine the witness, defense counsel declined.

The sixth amendment to the United States Constitution protects the defendant’s right of cross-examination. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) The exposure of a witness’ motivation in testifying is a proper and important function of that right. (Davis v. Alaska, 415 U.S. at 316-17, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1110.) Although the scope of the cross-examination lies within the discretion of the circuit court, that discretion must be exercised in such a way as to allow the defendant wide latitude in establishing bias, motive, or interest by that witness. People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.

In the present case, the crux of defendant’s argument is that the defense “twice attempted to adduce when Villegas’ contract extension terminated but the court sustained objections each time. The date Villegas’ contract extension terminated was directly relevant to demonstrating Villegas’ bias, interest, and motive to testify falsely.” We agree that the trial judge improperly sustained the objections to defense counsel’s questions. Despite this error, however, defense counsel established that defendant’s arrest represented the final arrest under the agreement and the fact that Ville-gas benefited from it. Moreover, the information counsel sought to elicit, the expiration date of the contract extension, was brought out in redirect examination. Inexplicably, defense counsel did not recross-examine the witness although given the opportunity to do so by the circuit court. Had that information not been elicited during redirect examination, defendant’s argument would be meritorious and this court could have found reversible error. (See People v. Perez (1991), 209 Ill. App. 3d 457, 568 N.E.2d 250 (it is reversible error, in entrapment case, to limit defense counsel’s inquiries to informant because such a case turns on witness credibility).) However, we hold that reversal is unwarranted in the present case in view of defense counsel’s failure to follow up on the very information now asserted as error.

Defendant next maintains that she received ineffective assistance of counsel when her trial counsel failed to file a motion to suppress evidence obtained during an illegal search.

Generally, in order to establish ineffective assistance of counsel, a defendant must show both that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In adopting Strickland, our supreme court noted that a defendant bears a heavy burden to overcome the strong presumption in favor of a finding that defense counsel’s advocacy was effective. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Further, the determination of the reasonableness of trial counsel’s actions must be evaluated from counsel’s perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2051.

The basis for defendant’s claim of ineffectiveness is that the warrantless police entry into and subsequent search of her home following her arrest did not fall under any of the exceptions to the requirement of first obtaining a warrant.

This issue was addressed by the supreme court in People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, cert. denied (1982), 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 383. There, the court held that the warrantless entry into defendant’s residence, a hotel room, for the purpose of effecting an arrest during a drug buy did not violate defendant’s fourth amendment rights because police reasonably believed that a felony was being committed. (People v. Eichelberger, 91 Ill. 2d at 370.) That arrest being valid, the officers then had the right to conduct a contemporaneous search of defendant’s person and the area within her immediate control. People v. Eichelberger, 91 Ill. 2d at 371.

Parenthetically, we note that defendant allowed Villegas into her home. Villegas then motioned for Trejo to join them. When Trejo entered the living room, he was introduced to defendant, who shook hands with him and asked him to follow her into a bedroom, where the cocaine was shown to him. This type of scenario has been recognized by our courts as a consensual entry. See People v. Galdine (1991), 212 Ill. App. 3d 472, 571 N.E.2d 182, appeal denied (1991) , 141 Ill. 2d 549, 580 N.E.2d 123; United States v. Scherer (7th Cir. 1982), 673 F.2d 176, cert. denied (1982), 457 U.S. 1120, 73 L. Ed. 2d 1334, 102 S. Ct. 2935.

Given that defendant’s arrest was obtained legally, defendant’s assertions regarding her “tainted” consent to search form necessarily must fail.

As the foregoing analyses show, trial counsel did not act unreasonably in failing to present a motion to suppress evidence. It has been recognized that “[d]efense counsel has no duty to advance specious claims of constitutional deprivation.” (People v. Gray (1981), 95 Ill. App. 3d 879, 884, 420 N.E.2d 856.) Defendant, therefore, has failed to meet her burden in establishing that counsel was ineffective.

Defendant next contends that several comments made by the prosecutor during closing argument operated to deny her a fair trial. The State responds that the claim is waived due to defendant’s failure to make either a contemporaneous objection or to include the issue in her post-trial motion.

Our supreme court has held repeatedly that a defendant must both make a contemporaneous objection at trial and include the issue in the post-trial motion in order to preserve properly a claim of error for appellate review. (See, e.g., People v. Pasch (1992) , 152 Ill. 2d 133, 604 N.E.2d 294; People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Indeed, none of the contentions made by defendant in this court were included in her post-trial motion. Accordingly, they are waived. However, defendant asks that we excuse the waiver under the plain error exception to the waiver rule. (134 Ill. 2d R. 615(a).) That exception is invoked in instances where the evidence is closely balanced or where the alleged error deprived defendant of a fair and impartial trial. (People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743.) Although defendant argues that the evidence as to her predisposition to commit crime was closely balanced, the evidence, set forth in detail above, as to predisposition was to the contrary. Moreover, none of the errors complained of here appear to be so substantial as to warrant the application of the second prong of the waiver exception. For these reasons, we decline to excuse the waiver.

Finally, defendant claims that her 13-year prison sentence should be reduced by one year to the statutory minimum of 12 years. She maintains that the trial judge impermissibly increased her sentence based upon his consideration of factors which are inherent in the offense, namely the amount of cocaine involved and the harm to society caused by the drug trade. Additionally, she argues that the trial judge did not give sufficient consideration to the mitigating factors, including that she was a 53-year-old mother of nine and grandmother of three, with no prior criminal background.

Sentencing is discretionary with the circuit court and will not be changed upon review absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) There exists, a presumption that the circuit court based its sentence on proper legal reasoning, and for that reason, reviewing courts are reluctant to reduce a sentence which is within the applicable statutory guidelines. People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641.

It should be noted that the sentence imposed in the present case falls within the applicable statutory guidelines. Defendant was convicted of the delivery of 495.1 grams of 87.4% pure cocaine, which carries a sentencing range of not less than 12 years and not more than 50 years. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(C).) Additionally, defendant’s argument regarding factors inherent in the offense has been rejected by the appellate court. In People v. Peter (1991), 220 Ill. App. 3d 626, 581 N.E.2d 128, appeal denied (1992), 143 Ill. 2d 645, 587 N.E.2d 1022, the fifth division of this court noted that it is not improper for the circuit court to have noted the amount of the drug at issue when deciding what might be an appropriate sentence within the sentencing range. (People v. Peter, 220 Ill. App. 3d at 632.) Indeed, the quantity of a drug in excess of the minimum, 400 grams, but less than 900 grams, “is susceptible to the same range of sentencing.” (People v. Peter, 220 Ill. App. 3d at 632.) Accordingly, the fact that defendant delivered a quantity of drugs in excess of the minimum for that sentencing range and the fact that the drug had a high purity level, “indicating its potency and potential for having a far-reaching impact on society” (People v. Peter, 220 Ill. App. 3d at 632) are considered factors which the circuit court may properly take into account when setting sentence. Furthermore, the trial judge indicated that it had considered defendant’s lack of criminal background as a factor in mitigation. For these reasons, no abuse of sentencing discretion is apparent in the present case.

Defendant’s conviction and sentence are affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN LACKLAND, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—2986
    Opinion filed June 7, 1993.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant John Lackland was found guilty of armed robbery and was sentenced to 10 years’ imprisonment. Defendant appeals his conviction on the grounds that the circuit court erred in denying defendant’s motion for substitution of judge pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114-5(a) (now 725 ILCS 5/114-5(a) (West (1992))) and in barring defendant from impeaching a witness with prior statements. Defendant also argues that the State made improper closing argument regarding defendant’s silence after being read his Miranda rights. We reverse and remand this cause for a new trial.

On June 16, 1987, at approximately 7 a.m., an armed robber held up a cashier at the McDonald’s restaurant located at 7601 South Vincennes, Chicago. On December 3, 1987, defendant went into the above McDonald’s and bought a cup of coffee, at which time a cashier identified defendant as the June 16 armed robber. The police were called, defendant was arrested and charged with armed robbery.

Prior to trial, this cause was assigned to Judge Philip Carey at the Markham, Illinois, courthouse. Judge Carey ordered that defendant undergo a behavior clinic examination to determine his fitness for trial. On October 31, 1988, the public defender reported to Judge Carey that an initial report revealed that defendant was unfit for trial and probably insane. The second behavior clinic examination found that defendant was fit to stand trial, but made no finding as to defendant’s sanity. Judge Carey, therefore, ordered another examination of defendant to determine sanity and continued the cause until December 7, 1988. On December 7, defendant failed to appear in court. The court was informed that defendant was in the Tinley Park Mental Hospital. Before continuing the cause again, Judge Carey noted for the record that he had received a report from the Psychiatric Institute stating that an examination of defendant had been performed by Dr. Albert Stipes. In Stipes’ opinion, defendant was unfit for trial but would be fit for trial within a year if sent to a hospital and treated with medication. Judge Carey continued the cause until December 14, 1988.

On December 14, the public defender advised Judge Carey that defendant had been admitted to the Tinley Park Mental Hospital on December 7, but had been subsequently transferred to a facility at 520 North Ridgeway. Then, the public defender recommended that the cause be transferred to the central criminal courts building at 26th and California for a fitness hearing. Judge Carey agreed, stating that the cause would be transferred “to the Chief Judge for a hearing on fitness next week.”

On December 22, 1988, the chief judge at 26th and California transferred the cause to Judge Maloney for a fitness hearing. In Judge Maloney’s courtroom, the cause was then continued by agreement on January 20 and February 10 and 14, 1989. On March 16, the court was informed that defendant was in Hartgrove Hospital. The following day, the court ordered another examination of defendant, and the cause was continued until April 20, 1989.

On April 20, Judge Maloney advised the parties that Stipes had filed a new report, finding defendant fit for trial with medication and legally sane at the time of the offense. Thereafter, the State noted that a restoration proceeding was necessary in light of the previous findings of unfitness. The court agreed and set the hearing for May 25, 1989.

The restoration hearing was eventually held on June 28, 1989. The parties stipulated that if called, Stipes would testify that he initially examined defendant on November 14, 1988, found defendant unfit to stand trial and that since that time, he has followed defendant’s progress. Stipes would further testify that he examined defendant again on April 10, 1989, and found him fit, with medication, to stand trial. Judge Maloney found that upon the stipulated evidence, defendant was fit for trial. Then, defense counsel requested that the case be returned to Judge Carey in Markham. Judge Maloney rejected the above request, stating that “once [the cases] come here they stay here. The only case that were [sic] ever sent back was a violation of probation.” Defendant then requested one status date before setting the case for trial. The cause was continued to July 25, 1989.

On July 7, 1989, defendant filed a motion for substitution of judges, pursuant to the Code of Criminal Procedure of 1963, section 114 — 5(a) (Ill. Rev. Stat. 1987, ch. 38, par. 114-5(a) (now 725 ILCS 5/ 114 — 5(a) (West 1992))). The motion was argued before Judge Maloney on August 4. Judge Maloney denied the motion, stating that the case was assigned to his courtroom on December 22, 1988, and therefore, the motion was filed “months too late.” The cause was set for trial.

At trial, Gloria Hall testified that on June 16, 1987, she was working at the McDonald’s at 7601 South Vincennes as a cashier. At about 7 a.m., Hall observed defendant enter the McDonald’s and walk around the dining area. Hall asked defendant if she could help him, but he did not respond. Then, defendant entered the work area. She told defendant that he was not permitted to come behind the counter. Defendant ordered her to open the cash register. When Hall hesitated, defendant grabbed her by the arm and put a gun to her head. Hall testified that she looked directly at defendant while he held her. She called for her manager, Mary Ann Pitts, to open the register. When Pitts opened the register, defendant removed the money and put it in a paper bag. Immediately after the robbery, the police were notified. Hall gave police officers a description of the robber and accompanied the officers as they unsuccessfully searched the neighborhood for the offender.

Additionally, Hall testified that on December 3, 1987, at about 5:30 p.m., she was sitting in the dining area of the McDonald’s having a meeting, when she saw defendant enter the restaurant, order coffee and sit six feet away from her. Hall informed the manager that she recognized defendant as the armed robber. The police were summoned. When the police arrived, defendant was arrested. Hall identified defendant as the armed robber in a lineup and at trial.

On cross-examination, defense counsel asked Hall if she had ever spoken with investigators from the public defender’s office. The State immediately objected and requested a sidebar. During the sidebar, the State informed the court that it did not know to what defense counsel was referring. The State explained that if defense counsel had any memorandum that a statement was made by this witness, it had not received it, and that defense counsel had thereby violated discovery rules. Defense counsel responded that the State did not receive the notes containing Hall’s statements because he considered them work product and not proper discovery materials. The circuit court sustained the State’s objection and disallowed cross-examination of Hall regarding statements she made to the public defender’s private investigator.

Next, Pitts testified that the day of the robbery, she initially observed defendant through a two-way mirror from her office. Then she walked out of her office into the counter area of the restaurant and noticed that defendant was behind the counter. Defendant was holding Hall by the arm when he ordered her to open the register. Pitts also testified that she viewed a lineup during which she stated that she thought defendant looked like the June 16 robber, but that she could not be “one hundred percent sure.” Pitts did at trial, however, identify defendant as the robber.

Officer Norris Anderson testified on behalf of the State that he responded to a call on December 3, 1987, at the McDonald’s on South Vincennes. Anderson stated that he spoke with Hall, who pointed out defendant as the man who committed the armed robbery on June 16 while holding her at gunpoint. Anderson arrested defendant and read him the Miranda rights. At the station, Anderson attempted to elicit the following information from defendant: name, address, height, weight and birth date. Defendant refused to disclose the information. Defendant did, however, eventually give Detective William Higgins the above information.

Assistant State’s Attorney Edward Schreiber testified that on December 3, 1987, he interviewed defendant regarding his possible involvement in the June 16 robbery. Schreiber read defendant his Miranda rights, which defendant acknowledged he understood. After a short period, defendant admitted that he was present during the robbery but that he did not do it. Defendant claimed to be a bystander. Schreiber, therefore, asked defendant what he saw during the robbery. Initially, defendant remained silent, until he retracted his earlier statement and claimed that he was not present during the robbery. Defendant refused to make any other comments to Schreiber.

Next, defendant testified on his own behalf, stating that at the time of the robbery, he was living at 77th and Normal, three blocks from the McDonald’s. He testified that he never robbed the McDonald’s or put a gun to anyone’s head. Defendant did recall being arrested at the restaurant and telling Schreiber that he did not know why he was arrested. He further testified that he explained to Schreiber that he was an innocent bystander who had purchased a cup of coffee. Defendant admitted on the witness stand that he told Schreiber that he was present during the robbery. Then, defendant retracted that admission and denied telling anyone he was present during the robbery. Defendant claimed that he asked Schreiber “if I was the one that stuck it up, what would happen, would I do time because I did it or would I get away.”

The defense also called Officer Richard Clark as a witness. Clark testified that he went to McDonald’s at about 7:20 a.m. the day of the robbery and took Hall’s statement. Hall described the robber as a black male, in his 20’s, 5 feet 6 inches tall, brown eyes, black hair, dark complected, wearing a blue hat, blue shirt, gray pants and white gym shoes. Clark did not recall whether Hall mentioned that the robber had a goatee or a mustache.

Following closing argument, the jury found defendant guilty of armed robbery. Defendant appeals his conviction.

Defendant first contends that the circuit court erred in denying his motion for automatic substitution of judges. (Ill. Rev. Stat. 1987, ch. 38, par. 114-5(a) (now 725 ILCS 5/114-5(a) (West 1992)).) The circuit court’s basis for denying the motion was that it was untimely filed. We disagree. Under the applicable statute, a defendant may “10 days after a cause involving only one defendant has been placed on the trial call of a judge” move the court in writing for a substitution of judge or any two judges. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a) (now 725 ILCS 5/114-5(a) (West 1992)).) Thus, a defendant has an absolute right to a substitution of judge if the motion is filed within 10 days after the case is placed on the judge’s trial call. (People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890.) Additionally, this statute should be construed liberally “to promote rather than defeat” substitution. Walker, 119 Ill. 2d at 471, 519 N.E.2d at 891.

In the case at bar, the circuit court denied defendant’s motion for automatic substitution of judges on the ground that the motion was untimely filed. The circuit court reasoned that the case had been placed on its trial call on December 22, 1988, the motion for substitution of judge was filed on July 7, 1989, and therefore, the motion was not filed within the 10-day statutory limit. The circuit court additionally reasoned that defendant was found fit to stand trial and sane at the time of the offense on April 20, 1989. We note that this case was initially on Judge Carey’s trial call in Markham, until he transferred it to 26th and California for a fitness hearing. The only matter, thus, in front of Judge Maloney was defendant’s fitness to stand trial. On April 20, 1989, the Psychiatric Institute filed its opinion that defendant was currently fit to stand trial with Judge. Maloney. Judge Maloney did not, however, make a ruling on defendant’s fitness until June 28, 1989.

A review of relevant case law reveals that defendant in the instant case was not clear or certain, as required by case law, that Judge Maloney had actually put. the case on his trial call. In People v. Gunning (1982), 108 Ill. App. 3d 429, 439 N.E.2d 108, which involved a charge of driving under the influence of alcohol, the defendant’s motion for substitution of judge was denied on the ground that one particular judge heard all of the traffic cases in that county, and hence, the defendant was on notice that his case would be heard by that judge. Therefore, the defendant had constructive knowledge from the earliest date of his proceedings that he would be tried by that particular judge. The circuit court in Gunning consequently held that the defendant, by waiting until the court explicitly stated that it would hear the trial, filed its automatic substitution motion too late. On appeal, the Gunning court, citing People v. Samples. (1982), 107 Ill. App. 3d 523, 437 N.E.2d 1232, held that

“it is of no consequence that Judge DeLaMar was the judge assigned to traffic matters. Defendant did not know, and could not know, until October 28 that in fact Judge DeLaMar was assigned to his specific case.” Gunning, 108 Ill. App. 3d at 432, 439 N.E.2d at 110.

In the case at bar, defendant did not' know until June 28, 1989, that Judge Maloney had set the case on his trial call. The date at which the automatic substitution statutory time period begins to run, in this case, would have been June 28, 1989. Moreover, defendant was not ruled fit to stand trial by Judge Maloney until June 28, 1989. Thus, prior to June 28, defendant was not fit to exercise his right under the automatic substitution statute. It is defendant’s right and responsibility to direct such a motion, not defense counsel’s right. We find that defendant’s case was not placed on Judge Maloney’s trial call until June 28, 1989. Defendant’s motion for substitution, therefore, was timely, and the circuit court erred in not granting such substitution. Due to the erroneous denial of defendant’s automatic substitution, all proceedings which followed that denial are null and void. (People v. Thomas (1978), 58 Ill. App. 3d 460, 374 N.E.2d 795.) Accordingly, we reverse and remand this cause for a new trial.

Defendant’s second contention is that the circuit court abused its discretion when it precluded defense counsel from impeaching Hall with statements she had allegedly made to an investigator from the public defender’s office. The State argues that the circuit court properly precluded such impeachment because defense counsel failed to disclose, in violation of discovery practices, the existence of the statements to the State prior to trial. Since we are remanding this cause for a new trial, it is unnecessary to discuss whether defense counsel’s neglect to disclose Hall’s statements amounted to a discovery violation, because the State is now aware that the statements exist and can specifically request them prior to the new trial. Therefore, we decline to discuss this moot issue.

Notwithstanding the fact that this cause is remanded for a new trial, we feel compelled to discuss defendant’s last contention, that the State violated his due process rights by arguing that he had remained silent and refused to answer questions after receiving the Miranda warnings and by arguing that his silence was proof of his guilt, because this issue has the potential to reoccur at the new trial. During closing argument, the State argued:

“Think of [defendant’s] actions the night he was arrested. Did he cooperate with the police at that time? He wouldn’t tell him his height. He wouldn’t tell him his weight. He wouldn’t tell him his address. Wouldn’t even tell him his name. If you are innocent, you got nothing to hide. ” (Emphasis added.)

Again, during rebuttal closing argument, the State further commented on defendant’s silence by arguing:

“Look at the defendant’s behavior, he gets arrested. He wouldn’t tell them his name, he wouldn’t tell them his address, he wouldn’t tell them his date of birth. That is consciousness of guilty [sic]. Use your common sense. You have to put this together.” (Emphasis added.)

The United States Supreme Court has held that the Miranda warnings require that a person taken into custody be advised immediately that he has certain rights. Further, the Supreme Court stated:

“Silence in the wake of these warnings may be nothing mqre than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. [Citation.] Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio (1976), 426 U.S. 610, 617-18, 49 L. Ed. 2d 91, 97-98, 96 S. Ct. 2240, 2244-45.

The State attempts to argue that defendant waived this argument by failing to make a trial objection and include the issue in a written post-trial motion. Although the waiver argument is moot because the cause is being remanded for a new trial, we note that numerous Illinois cases have held that Doyle violations constitute “plain error.” (E.g., People v. Nolan (1987), 152 Ill. App. 3d 260, 504 N.E.2d 205; People v. Earl (1980), 89 Ill. App. 3d 980, 412 N.E.2d 645; People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38.) In the instant case, defendant remained silent when originally questioned about his name, address, height, weight and birth date. The State used this silence during closing argument as evidence of defendant’s guilt.

The State argues that under Pennsylvania v. Muniz (1990), 496 U.S. 582, 110 L. Ed. 2d 528, 110 S. Ct. 2638, the questions concerning the above matters fall within the routine booking exception to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Muniz is distinguishable from the case at bar in two significant respects. First, the defendant in Muniz was not advised of his Miranda rights prior to being asked “routine booking” questions. Here, defendant was advised of his rights prior to being questioned. Second, the State in Muniz was attempting to admit answers the defendant gave to police regarding routine booking information. In the case at bar, the State commented on defendant’s silence as being evidence of guilt, not on any substantive answers as in Muniz. Therefore, Muniz is not persuasive under the circumstances in the instant case.

Under Doyle, defendant’s due process rights were violated by the State’s comments in closing argument that defendant’s silence after receiving the Miranda warnings was “consciousness of guilt.” This opinion, therefore, should serve as a caution to the State regarding closing arguments in the new trial.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand this cause for a new trial.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    DAVID TABER, Plaintiff-Appellant, v. EDITH S. TABER, n/k/a Edith S. Moore, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 91—1317
    Opinion filed June 7, 1993.

      Sheldon Engel, of Chicago, for appellant.
    Linda S. Kagan, of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal in a post-judgment dissolution of marriage case.

Edith Taber and David Taber were married on August 29, 1948. On June 24, 1974, David, then age 51, filed a complaint for divorce against Edith, then age 49. On September 26, 1974, a judgment for divorce was entered. On that date, the parties’ three children — Alan, Michael and Jessie — were 22, 20 and 16 years old, respectively.

The judgment incorporated the parties’ “oral agreement with respect to their property.” The agreement included the following provisions:

“Both Plaintiff [David] and Defendant [Edith] are employed, Plaintiff at a gross salary of $30,000 per year and Defendant at a gross salary of $22,000 per year;
The residential property at 2000 Lincoln Street, Evanston, is in joint tenancy and shall remain in joint tenancy, but that the Defendant shall reside and be entitled to" exclusive possession of said premises as long as she wishes;
That while in such occupancy Defendant shall pay the mortgage, taxes, upkeep and insurance upon the said premises;
At Defendant’s option the property may be sold and the net proceeds divided equally between the parties;
The furniture and furnishings in the house at 2000 Lincoln Street shall remain for the use of the Defendant as long as she lives there but at such time as she may remove [sic], then the parties will determine who shall have possession of said such furniture and furnishings as of the time of such removal.”

Other property which the parties’ agreement addressed included books, photographic equipment, a baby grand piano, vehicles, savings accounts, and securities. The parties also agreed to waive alimony and that they would equitably divide the educational expenses of the children.

The judgment “Ordered, Adjudged and Decreed” that: Edith shall receive custody of Jessie, with David having full rights of visitation; the question of child support was reserved for further consideration; David shall maintain his life and hospitalization insurance for the benefit of the children; and David would be responsible for extraordinary medical and dental expenses for Jessie. Edith and David, the latter through his attorney, signed the divorce judgment.

Edith married James Moore in December 1975. Edith and James have resided at 2000 Lincoln Street, Evanston, since their marriage.

On December 15, 1989, David filed a “petition for declaratory judgment and for order of sale of marital home or, in the alternative, for order that James Moore be evicted from the premises.” The petition sought a declaration that the award of the Evanston home to' Edith “was a form of child support,” modifiable upon a showing of a substantial change of circumstances. David alleged that Jessie’s cessation of use of the Evanston home as of 1981 constituted such a change of circumstances. David asserted that his delay in bringing this action was due to “personal tragedies” and, in any event, did not prejudice Edith. The petition alternatively sought eviction of James Moore from the Evanston home on the ground that the award of “exclusive” possession to Edith prohibited her from living with a second husband.

On April 1, 1991, without holding an evidentiary hearing, the circuit court entered a final written order which denied David’s petition in its entirety. The order provided that: “the award of exclusive possession of the Evanston home created a property right (as to which the Court has no jurisdiction to modify) and was not a form of child support”; and “James Moore’s occupation of the Evanston home as his residence along with Edith Moore did not terminate Edith Moore’s exclusive possession of the Evanston home.”

On appeal, David asserts that the circuit court erred in denying his petition without first holding an evidentiary hearing. David asserts that the 1974 divorce judgment is ambiguous and, thus, the court erred in not considering extrinsic evidence to clarify whether the award of possession of the Evanston home to Edith was intended to be an indefeasible property right or a modifiable award of nonmonetary child support or other modifiable subsidy. David further asserts that the circuit court erred by not interpreting the word “exclusive” to prohibit James Moore from residing in the Evanston home with Edith.

“The normal rules pertaining to the construction of contracts are applicable to the interpretation of the provisions of a divorce decree. [Citation.] The settlement provisions within the divorce decree should be construed so as to give effect to the intention of the parties. [Citations.] The intent of the parties must be determined from the contract as a whole and not from any one clause standing alone. [Citations.] Further, in construing a contract, meaning and effect must be given to every part, and no part should be rejected as surplusage unless absolutely necessary since it is presumed that each provision was inserted deliberately and for a purpose. [Citations.] The parties’ intent must be determined solely from the language of the contract unless the language is ambiguous, in which case extrinsic evidence may be introduced to explain the language. [Citation.] A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. [Citation.] Language is not rendered ambiguous simply because the parties do not agree upon its meaning.” White v. White (1978), 62 Ill. App. 3d 375, 378-79, 378 N.E.2d 1255.

Applying the foregoing rules of construction to the 1974 divorce judgment, we find the exclusive possession provision to be unambiguous. Further, we conclude that the award of exclusive possession of the Evanston home to Edith constituted a property disposition which cannot be modified (see Ill. Rev. Stat. 1989, ch. 40, par. 510(b)) and not an award of nonmonetary child support or other modifiable subsidy.

First, we must construe the 1974 judgment as a whole. It speaks in terms of incorporating the parties’ “oral agreement with respect to their property.” Indeed, the first four of five paragraphs of the agreement relate to the Evanston home. The second paragraph contains the exclusive possession provision in question. Following the fifth paragraph, the next five paragraphs address various properties, including books, photographic equipment, automobiles and savings accounts. Only the last two paragraphs of the agreement address matters other than property. The fact that substantially all of the parties’ agreement related to the disposition of the parties’ marital property undermines David’s claim that the exclusive possession provision was other than what it purports to be — a disposition of property.

Second, the parties’ situation in life demonstrates that the exclusive possession provision was intended to be a property disposition. The judgment states that both David and Edith were gainfully employed. Both parties waived alimony. Of their three children, only Jessie was a minor. Jessie, however, was nearing his majority. His needs, therefore, were diminished. The judgment’s provisions relative to Jessie reflect this diminished need. Given the parties’ life situation, it was reasonable for them to focus on finally disposing of their marital property rather than providing for their children or each other. The judgment and agreement reflect this theme.

Other provisions of the agreement demonstrate that the parties intended their disposition of the marital home to be final. Most importantly, Edith received exclusive possession of the Evanston home “as long as she wishes.” The plain meaning of these words connotes finality. Also, under the agreement, Edith was to pay during her possession the mortgage, taxes, insurance and upkeep of the property. The judgment gave her no corresponding allowance for these expenses, and David was to contribute nothing. These provisions similarly connote finality of the award.

Lastly, the judgment does in fact address the subject of child support for Jessie (it reserved the question), alimony (the parties waived it) and other expenses which the parties may incur in completing the raising of their now mature children (e.g., education and extraordinary medical and dental expenses for Jessie). The fact that the judgment addressed these matters undermines David’s claim that the exclusive possession provision was some undisclosed form of nonmonetary child support or nonmonetary alimony.

David relies upon Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31, In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 479 N.E.2d 1152, and Barlow v. Barlow (1978), 56 Ill. App. 3d 629, 372 N.E.2d 422, to support his argument that the exclusive possession provision was other than a property disposition. These cases are distinguishable. In each of the cited cases, the particular circumstances surrounding the award of the marital home persuaded the court to conclude that it was not a property award.

For example, in Lamp, the wife received possession of the marital home until she remarried or until the youngest child reached majority. The husband was responsible for mortgage and taxes and the wife paid no rent. At the time of the husband’s petition for modification, the youngest child was 12 years old, and all children lived with the defendant. The supreme court concluded that the award of possession was not a property award, but a form of support for the benefit of the minor children. Accordingly, the supreme court affirmed the sale of the house. Lamp is clearly distinguishable from the present case.

In Stanley, the decree provided that a 25/60 portion of the value of the use of the marital residence was to be allocable to maintenance and a 35/60 portion to child support. Possession was also to terminate upon the wife’s remarriage. The award of possession to Edith in the present case is in no way similar to the award in Stanley.

In Barlow, a 1962 divorce decree gave the wife “use” of the marital home without specifying any time limitation. The wife received custody of the parties’ four minor children, and the husband was required to pay $65 per week in child support. Both parties waived alimony. One year later, the wife successfully petitioned for a modification of the divorce decree. The modification required the husband to pay one-half the mortgages and taxes on the marital home.

In 1976, the husband filed a petition to partition the marital home, terminate the wife’s use and divide the sale proceeds. The husband asserted that the award of “use” of the home to the wife was to provide a home to the couples’ children. Since the youngest child had reached majority, the wife’s use of the home no longer existed. The wife responded to the husband’s petition that the decree gave her use of the home for life. After admitting extrinsic evidence to clarify the meaning of the award of use of the home to the wife, the court granted the husband’s petition. This decision was affirmed on appeal. Again, the facts in this case are clearly distinguishable from these in Barlow.

Each case must turn on its own facts. While we agree with David’s argument that substance, not form, should control (see Warren v. Warren (1980), 88 Ill. App. 3d 543, 410 N.E.2d 915) and that an award of possession of the marital home has, in some cases, been determined to be other than an award of property, the judgment here, both in substance and form, constituted a property disposition with respect to the Evanston home. The judgment, in this regard, is unambiguous. Extrinsic evidence, therefore, was properly excluded. For these reasons, the circuit court properly determined that the award of the Evanston home to Edith unambiguously created a property right and not some form of nonmonetary child support of other modifiable subsidy.

We next address David’s alternative argument that James Moore should have been evicted from the house. David’s argument is spurious. The word “exclusive” within the judgment manifestly relates to the possession of the home as between David and Edith, not Edith and some third party. Taking David’s argument to the extreme, Edith’s possession would terminate in the event her own mother lived in the home. David’s argument, to be accepted, would require this court to make a forced construction of the judgment. This we will not do.

David makes other arguments on appeal which the foregoing analysis renders moot. We accordingly do not address these arguments.

For the foregoing reasons, the April 1, 1991, order of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE HARTMAN

text:
    STEVEN CHARLES, Plaintiff-Appellant, v. RICHARD S. GORE, Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 92—0797
    Opinion filed June 8, 1993.

      Francis E. Goodman, P.C., of Chicago (Francis E. Goodman and Margaret Goodman Smith, of counsel), for appellant.

      Michael H. Wasserman, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Steven Charles, appeals from a default judgment that revived a 1983 judgment against him in favor of defendant, Richard S. Gore. Charles presents as issues for review whether (1) the circuit court had jurisdiction over him, (2) the circuit court abused its discretion in consolidating two related actions, and (3) the default judgment reviving the 1983 judgment is void.

Gore and Charles, who was formerly known as Steven Typlin, were partners in the Gore and Typlin Partnership (Partnership). On December 16, 1976, they, as partners, signed a collateral note, payable on demand, in the amount of $50,000 to secure a loan that Gore, as creditor, made to the Partnership, as debtor. The note authorized the entry of confessed judgment against the Partnership. On the reverse side of the note, Charles (then Typlin) personally guaranteed one-half of the note amount, “waiving demand, non-payment and protest.”

Gore and Charles have filed several lawsuits involving this note. In the first action (No. 78 — L—16403), on August 16, 1978, Gore obtained a judgment by confession against Charles for $60,982.50 (the 1978 confessed judgment), including $10,982.50 in interest and fees. On September 7, 1978, Gore served Charles with a summons to confirm the 1978 confessed judgment. Without filing a special appearance to contest either personal or subject matter jurisdiction, Charles moved to open the judgment and for leave to file a verified answer and affirmative defense in order to defend against the judgment on its merits. In an order dated October 26, 1978, the circuit court denied this motion and, instead, confirmed the 1978 confessed judgment. No appeal was taken from this order, which had been made final and appealable.

Gore took several steps to execute upon his 1978 judgment, including a citation to disclose assets and garnishment actions, which netted him title to Charles’ automobile (by court order) and $104 in cash. At the citation proceeding, Charles appeared and testified that he owned no other property; however, Gore learned that an assertedly fraudulent conveyance of real property was made by Charles to a trust of which his wife was beneficiary.

In the second action (No. 79 — CH—3152), on May 18, 1979, Gore filed a complaint, later developing into a third amended complaint, for a creditor’s bill and to set aside the fraudulent conveyance of real estate by Charles to his wife. On two occasions, Charles filed motions in this case to dismiss Gore’s complaints, based upon the allegations that the underlying judgment by confession was void. Both motions were denied. No appeals from these orders were taken by Charles. Instead, Charles filed an appearance and an answer in January 1982. No jury trial was sought. Charles thereafter discontinued his defense of the case. Charles failed to attend his deposition and did not comply with other discovery requests by Gore. On motion for failure to comply, respond, appear or defend, the circuit court entered an order of default against him. The prove up order noted that Gore testified and filed an affidavit. The circuit court specifically found that Charles defrauded Gore and entered the 1983 judgment against Charles for $111,908.36. On January 27, 1983, Charles’ attorney was allowed to withdraw and Charles was granted time within which to secure new counsel.

On January 30, 1980, Gore filed a complaint (No. 80 — L—2480), alleging, among other things, formation of the Partnership for trading and investing in securities; a loan of $20,000 for purchasing of membership in the Chicago Mercantile Exchange (Exchange), as well as other loans made by Gore to Charles to be used for investments; the $50,000 collateral note; additional advances of money; that Charles used these funds for his own benefit and personal use; and that Charles secretly sold the Exchange membership. Gore sought a finding of fraud and an award of $103,000 in compensatory damages and $309,000 in punitive damages. On March 3, 1980, Charles successfully moved to dismiss this action on the ground that Gore was barred from pursuing this action under res judicata principles, since judgment previously had been confessed against him. On appeal, the dismissal was reversed, the appellate court holding that the issue raised in the 1980 lawsuit, fraud, was different from the confession of judgment action and the identity of causes of action required for res judicata were not present. Gore v. Typlin (1982), 108 Ill. App. 3d 1205 (unpublished order under Supreme Court Rule 23).

Next, Gore filed a petition to revive the 1983 judgment on June 22, 1990 (the revival proceeding). The court quashed alias summons on July 10, 1991, and no service since has been made. On July 22, 1991, Charles filed a complaint seeking a declaration that the 1983 judgment is void (No. 91 — CH—6672) (the declaratory judgment action). Gore moved to consolidate the declaratory action with the revival proceeding. Charles opposed this motion. The circuit court granted the motion and consolidated the cases.

Following the consolidation, Gore moved to default Charles in the revival proceeding. In opposition, Charles filed a response and presented oral argument. The circuit court entered a default judgment reviving the 1983 judgment on February 7, 1992, with appropriate Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language inserted. From this order, Charles appeals.

Several separate actions, all filed in 1991 and subsequently consolidated, remain pending before the circuit court, including (1) the declaratory judgment action, (2) Gore’s petition to revive the 1978 confessed judgment, and (3) Charles’ declaratory judgment action requesting the 1978 confessed judgment be declared void.

I

Charles initially contends that the circuit court lacked jurisdiction over him in the revival proceeding because Gore never served him.

Gore counters, first, that Charles consented to the court’s jurisdiction by filing his declaratory judgment action, making service of process unnecessary in the revival proceeding. In support of this argument, Gore analogizes consolidating cases to joining counterclaims. True, Gore could have counterclaimed against Charles in the declaratory judgment action because Charles consented to the court’s jurisdiction by filing that action. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 614(a) (now 735 ILCS 5/2 — 614(a) (West 1992)); Bonner v. Westbound Records, Inc. (1979), 76 Ill. App. 3d 736, 741-42, 394 N.E.2d 1303.) Gore, however, chose to consolidate rather than counterclaim. A consolidation does not operate to establish jurisdiction where there was none before. (Colletti v. Crudele (1988), 169 Ill. App. 3d 1068, 1076, 523 N.E.2d 1222.) Consequently, Gore’s argument that a consolidation should be treated as a counterclaim fails, and the consolidation here did not confer jurisdiction.

Next, Gore argues that service of process was unnecessary because Charles appeared generally in the revival proceeding by opposing the motion for default.

A judgment is valid where a court has acquired jurisdiction over the parties; absent a general appearance, personal jurisdiction can be acquired by service of process. (State Bank v. Thill (1986), 113 Ill. 2d 294, 308, 497 N.E.2d 1156.) A general appearance is any action taken in a lawsuit that is not strictly limited to an attack on in personam jurisdiction. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 301 (now 735 ILCS 5/2 — 301 (West 1992)).) A party appearing generally waives all objections to any defects of jurisdiction, process, or service. Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77.

Charles claims that he only responded to the motion for default as a party in the declaratory judgment action and that he reserved his rights in the revival proceeding. Section 2 — 301 of the Civil Practice Law allows a party to make a special appearance “as to an entire proceeding or as to any cause of action therein.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 301 (now 735 ILCS 5/2 — 301 (West 1992)).) A special and limited appearance, however, confínes a party to contesting solely the question of in personam jurisdiction. (Colletti, 169 Ill. App. 3d at 1077.) Here, Gore moved for a default judgment after the consolidation. Gore served a copy of the petition to revive on Charles, but had never properly obtained in personam jurisdiction in the revival proceeding. Charles opposed this motion by filing a response and supporting memorandum, and by presenting oral argument. Both attorneys captioned their documents “[the declaratory judgment action] Consolidated into [the revival proceeding].” Charles inserted the phrase “without prejudice to his rights in [the declaratory judgment action]” in his response to the motion for default. On these facts, Charles clearly contested the motion for default on its merits and did not limit himself to the question of in personam jurisdiction. Charles may not limit his general appearance by inserting the aforementioned phrase and thereby convert it into a special appearance. Any action, such as this, which recognizes a case as being in court, will be deemed a general appearance unless the action was for the sole purpose of objecting to jurisdiction over the person. In re Marriage of Villarosa (1992), 237 Ill. App. 3d 983, 984-85, 605 N.E.2d 586 (and cases therein collected).

Therefore, Charles appeared generally and waived all objections to any defects of jurisdiction, process, or service.

The default judgment reviving the 1983 judgment is not void for lack of jurisdiction.

II

Charles next alleges that the circuit court abused its discretion by consolidating the declaratory judgment action into the revival proceeding.

Section 2 — 1006 of the Civil Practice Law provides that “actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1006 (now 735 ILCS 5/2 — 1006 (West 1992)).) Where two actions present virtually identical issues, and a failure to consolidate the actions could result in inconsistent judgments, then consolidation is clearly proper. (Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 968, 438 N.E.2d 558.) The circuit court has broad discretion in considering a motion to consolidate. Horn v. Rincker (1981), 84 Ill. 2d 139, 147, 417 N.E.2d 1329.

Here, both actions involved similar issues: Gore sought to revive the 1983 judgment; Charles is seeking a declaration that the 1983 judgment is void and, in effect, that there was no judgment to revive. Inconsistent judgments possibly could have been rendered. Moreover, the cases involved the same parties, and both were pending in the circuit court’s chancery division. The circuit court properly determined that the consolidation was an aid to convenience.

Did the consolidation prejudice a substantial right? First, Charles claims that his right to service of process in the revival proceeding was prejudiced. As we previously noted, however, Charles waived all objections to any defects of service by appearing generally and opposing the motion for default.

Second, Charles contends that his right to a jury trial was prejudiced. A party who desires a jury trial must file a demand at the time the action is commenced or, for a defendant, when the answer is due. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1105(a) (now 735 ILCS 5/2 — 1105(a) (West 1992)); see Djomlija, 107 Ill. App. 3d at 968-69.) Here, although Charles filed a jury demand in the declaratory judgment action, he failed to request a jury in the revival proceeding after the cases were consolidated and before his answer was due. In fact, he never requested a jury trial in the revival proceeding although he opposed the motion for default. Therefore, the consolidation did not prejudice his right to a jury trial.

Finally, Charles argues that his right to a change of venue was prejudiced. The circuit court must award a change of venue if requested by petition before the judge has ruled on any substantial issue in the case. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1001(c) (current version at 735 ILCS 5/2 — 100l(a)(2)(ii) (West 1992)); Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 250, 311 N.E.2d 673; Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 440-41, 517 N.E.2d 5.) If a request is made after a ruling on a substantial issue, the petition may be filed but it becomes a discretionary matter. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1001(c) (current version at 735 ILCS 5/2 — 1001.5(c) (West 1992)).) In this case, Charles claims he was unable to request a change of venue because the court in the revival proceeding already had made substantial rulings. He points out that a revival proceeding is considered part of the original action; it appears that he refers to substantial rulings made from 1979 to 1983. Charles, however, never requested a change of venue in the revival proceeding. At the hearing on the motion to consolidate, Charles mentioned that he would request a change of venue if the cases were consolidated. The then-presiding judge told Charles to petition for a change of venue before Judge Albert Green after the consolidation, but Charles never did so. Having failed to request a change of venue, Charles’ right to a venue change was not prejudiced.

In conclusion, we find that the circuit court properly granted the consolidation as an aid to convenience and did not prejudice any substantial right of Charles.

III

Charles last contends that the default judgment reviving the 1983 judgment is void because the underlying judgments are void.

Charles first claims that the underlying 1983 judgment is void because it granted money damages that, were not requested in the complaint. Count I of the complaint in No. 79 — CH—3152 was a creditor’s bill based upon the 1978 confessed judgment, which sought the exercise of equitable power to subject the real estate transferred by Charles to his wife for the fraudulent purpose of avoiding payment of any judgment rendered against him. See People ex rel. Hartigan v. Anderson (1992), 232 Ill. App. 3d 273, 597 N.E.2d 826.

Count II in No. 79 — CH—3152 was an action to set aside a fraudulent conveyance of real estate by Charles in order to prevent satisfaction of the 1978 confessed judgment. More particularly, Gore sought the following relief in count II: (1) subject the real estate to an execution lien; (2) enjoin Charles and his wife from transferring any interest in the real estate; (3) set aside Charles’ prior conveyance of the real estate to his wife; (4) appoint a receiver for the real estate and trust; (5) direct the sheriff to levy upon, advertise, and sell the real estate and apply the proceeds to satisfaction of the 1978 confessed judgment plus Gore’s reasonable attorney fees, costs, and accrued interest on the 1978 judgment at the statutory rate; (6) determine the respective rights of other parties to the real estate; and (7) “[g]rant such other and further relief which this Court may deem proper.” No money damages per se were identified or sought.

It is improper in cases of default to award relief in excess of that prayed for unless notice is first given as provided by rule. (Ill. Rev. Stat. 1983, ch. 110, par. 2-604 (now 735 ILCS 5/2-604 (West 1992)).) Supreme Court Rule 105(a)_ provides that if new or additional relief is sought, then parties who have appeared but are in default are entitled to the same notice as parties not in default. (134 Ill. 2d R. 105(a).) A party has a right to assume that relief granted on default will not exceed or substantially differ from that requested in the complaint. (Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437, 440, 399 N.E.2d 1015; Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 482, 378 N.E.2d 1130 (Dils).) In cases of default, a court that grants an award in excess of the ad damnum exceeds its authority and that portion of the decree in excess of the ad damnum is void. (Rauscher v. Albert (1986), 145 Ill. App. 3d 40, 46-47, 495 N.E.2d 149 (Rauscher)] Dils, 62 Ill. App. 3d at 482.) Additionally, a judgment against a party upon a complaint that states no cognizable cause of action against that party is entirely void. (Hoopingarner v. Peric (1975), 28 Ill. App. 3d 53, 57, 328 N.E.2d 171.) A void judgment can be attacked at any time, directly or collaterally. R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309, 489 N.E.2d 1360.

Gore asserts that the subject matter of the lawsuit was Charles’ fraudulent conduct in conveying real estate to avoid a debt owed Gore and therefore Charles should have anticipated money damages. Gore distinguishes Dils and Rauscher because they involved awards of money damages in excess of that requested, unlike this case, where Gore’s complaint requested no specified amount, but asked for an award of accrued interest, costs, and attorney fees. Gore then correctly cites Joseph A. Thorsen Co. v. Evans (1980), 82 Ill. App. 3d 1119, 1124, 403 N.E.2d 666 (Evans), as holding that an award of monetary damages on default was appropriate because defendant had notice of the potential for such damages.

The case sub judice is closer on its facts to Evans. There, defendant had notice of the possibility of money damages because plaintiff’s complaint requested an accounting and compensatory and punitive damages; therefore, the entry of $62,500 in compensatory damages and $50,000 in punitive damages was not void. (Evans, 82 Ill. App. 3d at 1123-24.) Here, although the instant complaint did not request any money damages, it did seek attorney fees, costs, and interest, as well as such further relief as the court deemed proper. By virtue of the elapsed time and the many actions undertaken by Gore to secure the relief ultimately granted, Charles had ample reason to anticipate substantial awards of interest and attorney fees. Charles was represented by counsel until after an answer was filed in the underlying case. He elected not to replace his withdrawn attorney. His inattention to pending litigation has led to this result. There was no error.

Next, Charles argues that the underlying 1978 confessed judgment is void because the court entering it never obtained in personam jurisdiction over him.

We must determine whether Charles properly may pursue this challenge. Initially, we note that there are five ways a defendant may challenge a judgment by confession: (1) defend a confirmation proceeding; (2) move to open the judgment under Supreme Court Rule 276 (134 Ill. 2d R. 276); (3) move to vacate the judgment under section 2 — 1301(e) of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e) (now 735 ILCS 5/2 — 1301(e) (West 1992))) within 30 days after entry; (4) move to vacate the judgment under section 2 — 1401 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401 (now 735 ILCS 5/2 — 1401 (West 1992))) within two years after entry; and (5) seek a declaration that the judgment is void ab initio, as Charles presently is doing here. (See generally 4 R. Michael, Illinois Practice §42.6, at 375-80 (1989) (hereinafter Michael).) A void judgment can be attacked at any time, directly or collaterally. R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309, 489 N.E.2d 1360.

Because a plaintiff may move to confirm a judgment by confession and a defendant may move to open such a judgment, the interrelationship between these procedures occasionally raises difficulties. (Michael §42.6, at 379-80.) Here, Gore previously had initiated a confirmation proceeding and served Charles. Charles responded by moving to open the 1978 confessed judgment in order to defend it on its merits. The circuit judge denied the motion to open and stated that the 1978 confessed judgment was “confirmed.” Under these circumstances, Charles elected to open the confessed judgment, instead of defending the confirmation proceeding, and that election is binding. (Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 216, 400 N.E.2d 975; cf. Schultz v. Gignac (1981), 94 Ill. App. 3d 399, 418 N.E.2d 991; City-Wide Re alty Co. v. Fryer (1979), 70 Ill. App. 3d 649, 388 N.E.2d 980.) Charles should have raised all known issues within the proceeding elected (Burkett v. Finger Lake Development Corp. (1975), 32 Ill. App. 3d 396, 402-03, 336 N.E.2d 628, citing Brunswick v. Mandel (1974), 59 Ill. 2d 502, 322 N.E.2d 25), including the issue of whether the 1978 confessed judgment was void for lack of jurisdiction. Having failed to raise the issue in his motion to open, Charles was thereafter barred from raising it in a subsequent proceeding.

For the reasons set forth above, we affirm the circuit court’s judgment.

Affirmed.

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

       The applicable statute governing venue changes (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1001) has since been amended and resectioned under two titles, substitution of judge (735 ILCS 5/2 — 1001 (West 1992)) and change of venue (735 ILCS 5/2— 1001.5 (West 1992)).