author: JUSTICE INGLIS

text:
      In re ROBERT HATALA (The People of the State of Illinois, Petitioner-Appellee, v. Robert Hatala, Respondent-Appellant).
    Second District
    No. 2—89—1077
    Opinion filed July 27, 1990.
    William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Robert Hatala, appeals from an order of the circuit court of Kane County continuing his involuntary hospitalization in the Department of Mental Health and Developmental Disabilities. Respondent contends: (1) the State’s petition for continuation of his involuntary hospitalization was not timely filed; and (2) the State failed to comply with the notice requirements and failed to file a current treatment plan. We reverse.

Respondent was involuntarily hospitalized on December 5, 1986. His hospitalization has been continued from time to time by court order. On April 7, 1989, the court ordered that respondent’s hospitalization be continued for another 180-day period. On October 4, 1989, the State filed another petition for the continuation of respondent’s hospitalization. A hearing on the petition was conducted on October 6, 1989. Following the hearing, the court ordered respondent hospitalized for another 180-day period. Respondent filed a timely notice of appeal.

Respondent first contends that the circuit court had no jurisdiction to hear the State’s October 4, 1989, petition because the State failed to file the petition before the expiration of the prior order.

Section 3 — 813(a) of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a)) provides:

“Prior to the expiration of the initial order if the facility director believes that the patient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court. *** If no petition is filed prior to the expiration of the initial order, the patient shall be discharged.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a).)

Furthermore, the initial period of admission shall not exceed 60 days, with the second period also not exceeding 60 days. Section 3 — 813(b) of the Code (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(b)) provides that, thereafter, additional 180-day periods of treatment may be sought pursuant to the procedures set out in this section. Therefore, the filing procedures are the same for 60-day and 180-day continuation petitions: that is, they must be filed prior to the expiration of the existing order.

The parties agree that the prior 180-day order was entered on April 7, 1989. They disagree, however, concerning when the 180-day period expired. Respondent contends that the period began on the day the order was entered, April 7, 1989, and that the 180-day period expired on October 3, 1989. Therefore, since the State did not file its petition on or before October 3, 1989, respondent should have been discharged.

The State disagrees, arguing instead that it had until October 4, 1989, to file the 180-day petition. The State relies on section 1.11 of the Statute on Statutes (Ill. Rev. Stat. 1989, ch. 1, par. 1012), which states that “[t]he time within which any act provided by law is to be done shall be computed by excluding the first day and including the last.” Using this method of computation, the State had until October 4, 1989, to file the petition.

We would agree with the State if section 3 — 813 of the Code provided that the State must file its petition within 180 days of the entry of the prior order. That is the type of language which section 1.11 is meant to interpret. That, however, is not the language of section 3— 813. Section 3 — 813 provides that the State must file its new petition prior to the expiration of the existing order or the patient shall be discharged. (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a).) To determine when the 180-day period at issue expired, we must first determine when it started.

The only reasonable answer is that the 180-day period started on the day the order was entered, that is, on the day respondent was subject to the order. The order does not state otherwise, so we must assume that it was effective to subject respondent to involuntary hospitalization on the day it was entered, April 7, 1989. Thus, we conclude that April 7, 1989, was the first day of the 180-day period. If April 7, 1989, is day one, then the 180-day order expired on October 3, 1989, and the State’s petition, filed on October 4,1989, was not timely.

Involuntary commitment proceedings affect important liberty interests; thus, the need for strict compliance with statutory procedures is essential. (In re Stone (1989), 178 Ill. App. 3d 1084, 1086; In re King (1986), 148 Ill. App. 3d 741, 745.) Noncompliance with statutorily prescribed involuntary commitment procedures renders the judgment entered in such a cause erroneous and of no effect. (In re Franklin (1989), 186 Ill. App. 3d 245, 248.) In the present case, the State did not follow the prescribed statutory requirements. When the State failed to file its petition prior to the expiration of the 180-day period, respondent was entitled to be discharged. See In re Bloyer (1989), 185 Ill. App. 3d 245, 247 (respondent must be discharged because the petition was not filed within the statutory period); In re Vancil (1989), 183 Ill. App. 3d 204, 205-06 (discussing mandatory discharge for the State’s failure to file a 60-day petition prior to expiration of initial involuntary admission order); In re Smith (1986), 145 Ill. App. 3d 1002, 1005 (same). But see People v. Lang (1989), 189 Ill. App. 3d 384, 388 (filing of tenth commitment petition one day late did not render the tenth, eleventh, and twelfth orders void).

We find further support for our determination after considering an analogous situation present when dealing with criminal defendants and credit for time served. A defendant held in custody for a criminal offense is entitled to one day of a sentence credit for each partial day in which he is held in custody. (People v. Williams (1986), 144 Ill. App. 3d 994, 996.) Given that important liberty interests are present in both criminal and involuntary commitment cases, we find that any partial day during which a person is involuntarily committed must be included in the relevant calculation under section 3—813 of the Code. See In re Walker (1990), 200 Ill. App. 3d 159, 162.

In light of our decision on this issue, we need not consider the other issues raised by respondent.

The judgment of the circuit court of Kane County is reversed. Respondent is released from any further commitment pursuant to the order entered on October 6,1989.

Reversed.

REINHARD and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    MARGARET MILLER, Plaintiff-Appellee, v. ROBERT REYNOLDS et al., Defendants-Appellants.
    Second District
    No. 2—89—1296
    Opinion filed July 26, 1990.
    Rehearing denied August 27, 1990.

      Steven L. Larson and Linda E. Spring, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellants.
    Robert B. Patterson and Danielle Jaeschke, both of Drumke & Patterson, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants, Robert and Eileen Reynolds, appeal from the judgment of the circuit court of Lake County entered on a jury verdict in favor of plaintiff, Margaret Miller, for $375,000 ($750,000 less 50% attributable to plaintiff’s negligence) in her action seeking recovery under a theory of negligence for injuries sustained in a fall while on a ladder on defendant’s premises at a time when plaintiff was employed by defendants as a domestic employee.

Defendants raise the following issues on appeal: (1) whether plaintiff’s claim is barred by the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.); (2) whether defendants owed plaintiff a duty to warn her about dangers inherent in the use of a ladder; (3) whether defendants’ failure to warn proximately caused plaintiff’s injuries; (4) whether the trial court erred in instructing the jury; and (5) whether the trial court erred in excluding certain expert testimony.

Evidence adduced at trial establishes the following facts. On June 4, 1986, plaintiff, who was 61 years of age, sustained serious injuries when she fell from an eight-foot magnesium ladder while attempting to bait a raccoon trap on the roof of defendants’ house. At that time, plaintiff was employed foil time by defendants as a live-in cook and housekeeper. Plaintiff had been employed by defendants for about two years prior to her accident. She testified that her duties consisted mainly of cooking and housekeeping. Her duties were principally confined to the interior of the house, although on occasions she performed chores outside the house. She had not climbed the ladder during her employment but had held it for Mrs. Reynolds on several occasions.

Several days prior to her accident, plaintiff heard animal noises above the ceiling and informed defendants. On June 3, 1986, an animal control officer visited defendants’ home and, using a ladder provided by defendants, placed a raccoon trap on the flat roof about two feet from the edge. Plaintiff testified that she and Mrs. Reynolds were present when the trap was placed, and the officer instructed them how to set and bait the trap. The officer testified that he baited the trap at that time. Plaintiff, however, testified that, in Mrs. Reynolds’ presence, the animal control officer then asked her for food to put in the trap. Plaintiff responded that she would get the food and put it in the trap. Mrs. Reynolds expressed no objection. Plaintiff went inside to get food. When she returned, Mrs. Reynolds and the animal control officer were gone. Plaintiff climbed the ladder and baited the trap.

On the morning of June 4, she again climbed the ladder to check the trap and observed a raccoon inside. She informed the defendants that she had climbed the ladder and a raccoon was in the trap. Mrs. Reynolds told her to call the animal control officer to take the raccoon away, which she did. Nothing was said to her about climbing the ladder. When the animal control officer came, he took the raccoon, set the trap, and told plaintiff “the same things applied that I talked to you about yesterday.” After he left, she climbed the ladder and put food in the trap. Plaintiff testified that she did not consider climbing the ladder outside as part of her housekeeping job, but felt that defendants wanted her to do the job of putting food in the trap because they had made no comment to her earlier when she told them she had done so.

Plaintiff climbed the ladder again about 1 p.m. and tossed food in the trap. At 4 p.m. she again climbed the ladder and tossed some food in the trap. This time she felt the ladder wobble, placed her hands on the edge of the roof, and the ladder fell over. She hung from the roof for a short time, fell, and was seriously injured.

Mr. Reynolds testified that plaintiff’s job involved indoor work and did not involve climbing ladders. He further stated that if he had seen plaintiff on a ladder, he would have fired her. Mrs. Reynolds similarly acknowledged that plaintiff’s job was indoor work and her duties were to clean the house, launder, cook, and perform other work of that nature. Plaintiff was not in charge of the raccoon problem, and her duties did not involve climbing ladders. She assumed plaintiff was present when the animal control officer came out on June 3 and heard his instruction on how to check and bait the trap. She did not remember plaintiff telling her and her husband that she had checked the trap on the morning of June 4.

Plaintiff submitted evidence that she suffered a broken leg requiring surgery. Complications followed which required additional surgery and lengthy hospitalization and resulted in disfigurement and partial disability of plaintiff’s leg.

The jury returned a verdict in favor of plaintiff in the amount of $750,000 but found plaintiff 50% negligent, and the award was reduced to $375,000. The jury responded negatively to a special interrogatory asking “[d]id the plaintiff’s injuries arise out of the course of her employment?”

Defendants initially contend that plaintiff’s sole remedy for her injuries is pursuant to the Workers’ Compensation Act and that she was not entitled to recovery in a common-law negligence action. During the proceedings below, defendants’ motion to dismiss, motion for summary judgment, and post-trial motion all raised the exclusivity of the Workers’ Compensation Act and were denied.

Section 5(a) of the Workers’ Compensation Act provides, in pertinent part, as follows:

“5. (a) No common law or statutory right to recover damages from the employer, *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).)

This provision requires exclusive resort to the workers’ compensation remedy for any injury arising out of and in the course of the employment. (Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 447, 448 N.E.2d 866.) While the question of whether an injury arose out of and in the course of employment has most often been litigated in workers’ compensation actions, where compensability under the Workers’ Compensation Act is at issue, the tests for compensability under the Act and the exclusivity of the Act are identical (Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 85, 481 N.E.2d 684), and exclusivity may be raised as an affirmative defense to a common-law action. Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 317-18, 370 N.E.2d 165.

It is undisputed that the Act is applicable to the employment relationship here. (Ill. Rev. Stat. 1985, ch. 48, par. 138.3(18).) Plaintiff maintains, however, that her injury did not arise from and in the course of her employment and, accordingly, her common-law action was not barred.

“Arising out of” refers to the causal connection between the employment and the accidental injury. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 480, 548 N.E.2d 1033; Unger, 107 Ill. 2d at 85, 481 N.E.2d at 687.) The requirement that the injury occurred “in the course of” employment is concerned with the time, place and circumstances of the injury. (Paganelis, 132 Ill. 2d at 480, 548 N.E.2d at 1038-39; Unger, 107 Ill. 2d at 85, 481 N.E.2d at 687.) “An injury will generally be found to arise ‘in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto.’ ” (Unger, 107 Ill. 2d at 85-86, 481 N.E.2d at 687, quoting Chmelik v. Vana (1964), 31 Ill. 2d 272, 278, 201 N.E.2d 434.) Typically, an injury arises out of one’s employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common-law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 58, 541 N.E.2d 665.

Plaintiff contends that the act of baiting the raccoon trap was not within the scope of her duties as established by evidence at trial. In support of her contention that her injuries did not occur in the course of her employment, she points to the testimony at trial, including defendants’ testimony, that her duties pertained to the interior of the house and did not include climbing ladders. It has been stated, however, that “[a]n act outside an employee’s regular duties which is undertaken in good faith to advance the employer’s interests, whether or not the employee’s own assigned work is thereby furthered, is within the course of employment.” (1A A. Larson, Workmen’s Compensation Law §27.00 (1985).) This principle is clearly applicable here and brings plaintiff’s injury within the course of her employment as a matter of law. It is also clear that plaintiff’s injury arose out of the employment.

Plaintiff’s argument that the act of checking and baiting the raccoon trap was beyond the scope of her duties such that her common-law action was not barred is also unpersuasive for another reason. It has been stated:

“ ‘[I]f the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, any injury incurred as a result will not be within the course of employment.’ (Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 128.) Nevertheless, the employer may be held liable in that case ‘if he has knowledge of or has acquiesced in such a practice of [sic] custom.’ (81 Ill. 2d 125, 128; see 1A A. Larson, Workmen’s Compensation sec. 27.31(b) (1982).)” (Bradway v. Industrial Comm’n (1984), 124 Ill. App. 3d 983, 985, 464 N.E.2d 1139, 1141.)

The undisputed evidence here is that Mrs. Reynolds was present and expressed no objection when plaintiff was asked to find food for the trap by the animal control officer. Furthermore, plaintiff testified that she apprised defendants that she was tending to the trap, and they voiced no objection. Based on this evidence, even to the extent plaintiff’s conduct could be deemed to expose her to a risk outside the reasonable exercise of her duties, defendants’ acquiescence is a necessary inference.

Under the facts here, we conclude that plaintiff’s injury arose from and in the course of her employment as a matter of law, and, accordingly, she was barred from maintaining a common-law negligence action against defendants, her employers. A jury verdict will only be reversed when the evidence, viewed most favorably to the party prevailing in the trial court, nevertheless so overwhelmingly favors the appellant that no contrary verdict could stand. (York v. Stiefel (1983), 99 Ill. 2d 312, 321, 458 N.E.2d 488; Gruse v. Belline (1985), 138 Ill. App. 3d 689, 695, 486 N.E.2d 398; see Hindle, 68 Ill. 2d at 319, 370 N.E.2d at 169.) Applying this standard and the applicable principles of law to the evidence here, the jury’s verdict must be reversed. In view of our decision on this issue, it is unnecessary to consider the remaining issues raised by defendants.

The judgment of the circuit court of Lake County is reversed.

Reversed.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN L. LILLARD, Defendant-Appellant.
    Fourth District
    No. 4—89—0718
    Opinion filed July 26, 1990.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 11, 1989, defendant shot and killed Abera Miles. A jury convicted defendant of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). Defendant appeals, arguing as follows: (1) he was denied a fair trial by the prosecutor’s misstatement of the law during closing argument; (2) the trial court abused its discretion in admitting and allowing the jury to view two photographs of the victim; (3) the trial court’s ruling on the State’s motion in limine regarding testimony about cocaine found in decedent’s possession denied defendant his sixth amendment right to present a defense; (4) the trial court abused its discretion by allowing use of a prior weapons conviction for impeachment purposes; and (5) the armed violence conviction must be vacated.

We affirm defendant’s first-degree murder conviction and vacate the armed violence conviction.

Reasonable doubt is not an issue in this case. For that reason, only the facts concerning the issues raised by the defendant on appeal will be reviewed.

Vivian Reed testified defendant lived with her and her four children at 603 East Fairchild. Decedent, Abera Miles, was her nephew. This residence was the scene of the crime involved. It is clear from the evidence of the various parties that the defendant and the decedent were not good friends and had argued many times in the past. With respect to the source of one argument between the decedent and the defendant, on cross-examination, Vivian stated decedent had given a tape player to defendant. Defendant was supposed to pay decedent $25 on January 12, 1989. According to Vivian, both men argued a lot. Defendant would always tell decedent to quit “disrespecting his house.” Decedent always told defendant that it was decedent’s house. Decedent called himself “Big Daddy Caine.” However, Vivian did not know what the phrase meant. Defendant and decedent always argued so she did not take their argument seriously. Vivian further stated that after decedent said he was “Big Daddy Caine” on January 11,1989, defendant said he was not having that stuff in his house.

Investigator Larry Rollins testified that defendant gave a tape-recorded statement on January 12, 1989. Officer Rollins testified defendant stated decedent said defendant owed decedent $25 for a cassette radio.

The defendant testified that while he and the decedent were in the house the defendant told decedent to come upstairs. The defendant told decedent to come in and shut the door. The two men talked about what “Big Daddy Caine” meant. Defendant told decedent he did not want “Big Daddy Caine” in the house. The two also discussed $25 which defendant owed decedent for a radio. Defendant said decedent said, “Well, you owe me some money for that Big Daddy Caine.” And defendant stated, “Well, you’ll get your money tomorrow, your $25 for the radio.” Decedent had purchased the cassette tape player for defendant. Defendant was to pay him back on payday.

On cross-examination, defendant admitted he did not refer to “Big Daddy Caine” in his statement to the police.

Testimony of witnesses placed decedent unarmed at the bottom of the stairs when the shooting occurred. According to defendant, he and decedent were going down the stairs, decedent turned and charged up three or four steps. Defendant shot him, stating on cross-examination he did not see decedent carrying a weapon nor did decedent indicate he was carrying a weapon.

As rebuttal evidence, the prosecutor introduced defendant’s 1985 conviction of unlawful use of a firearm by a felon.

The jury found defendant guilty of first-degree murder and armed violence. Subsequently, the court sentenced defendant to two concurrent 30-year terms of imprisonment.

During closing argument, the prosecutor used a chart to illustrate the elements of first-degree murder and the justification defenses. Initially, the prosecutor correctly stated the elements of first-degree murder and discussed the justification defenses. However, in talking about self-defense in relation to the first-degree murder charge, the prosecutor stated that once the jury had eliminated the possibility that defendant reasonably believed his actions were necessary for purposes of first-degree murder, it could not go on to consider whether his belief was unreasonable, for purposes of second-degree murder. In rebuttal, the prosecutor made a similar statement. However, the jury received Illinois Pattern Jury Instructions, Criminal, Nos. 7.01A, 7.05A, and 7.06A (2d ed. Supp. 1987) (IPI Criminal 2d). Additionally, both attorneys and the trial judge stated the court would instruct the jury on the law.

Defendant argues, in essence, that the prosecutor’s statement, the jury need not consider the unreasonableness of defendant’s belief if it excluded “self-defense,” so confused the jury that he was materially prejudiced and denied a fair trial. The State concedes the prosecutor misstated the law, but argues the error was cured.

Generally, a prosecutor’s remarks in closing argument do not amount to reversible error unless they constitute a material factor in defendant’s conviction or result in substantial prejudice to him. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.) Although a misstatement of the law may constitute reversible error (People v. Cobb (1989), 186 Ill. App. 3d 898, 915-16, 542 N.E.2d 1171, 1183-84), the prejudicial effect of improper remarks is lessened by correct jury instructions (Terry, 99 Ill. 2d 508, 460 N.E.2d 746; Burke, 136 Ill. App. 3d 593, 483 N.E.2d 674).

Section 9 — 1(a) of the Criminal Code of 1961 (Code) states:

“First degree Murder ***. (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a).)

Section 9 — 2(a) of the Code states:

“Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
* * *
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1987, ch. 38, par. 9— 2(a).)

Section 7 — 1 of the Code states:

“Use of Force in Defense of Person. A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.

The disputed portion of the prosecutor’s closing argument is confusing and erroneous. The prosecutor initially argued that if the jury determined defendant did not have a “reasonable belief” that it was necessary to defend himself, then his actions were not justified. The prosecutor, however, went on to argue that if the jury found no justification for purposes of first-degree murder, there was no possibility of finding second-degree murder, because it could not consider the unreasonableness of defendant’s belief. The jury must consider the reasonableness of defendant’s belief that his action was necessary to defend himself if defendant presents this defense. The prosecutor compounded the error by further arguing that if the jury excluded “self-defense” it need not consider “unreasonable belief.”

However, the jury was correctly instructed. The court admonished the jury to follow the instructions as given to it, the court read the instructions to the jury, and gave it a copy to take to the jury room. Additionally, both attorneys at one point correctly argued the unreasonable belief as a mitigating factor. The prosecutor also stated as a preface to the objectionable portion of his argument that he believed the jury need not go on to consider defendant’s unreasonable belief argument. This emphasized that it was the prosecutor’s argument rather than the law which the prosecutor was stating to the jury.

We find the error was cured by proper instructions, admonition to the jury, and the correct statement of the applicable law by counsel. (See Terry, 99 Ill. 2d 508, 460 N.E.2d 746; Cobb, 186 Ill. App. 3d 898, 542 N.E.2d 1171.) We note the trial court, in the instant case, did not rule on defendant’s objections to the argument. A better practice is for the trial courts to sustain or overrule the objections when they are raised.

Defendant next argues the trial court abused its discretion in admitting and allowing the jury to view five photographs. Defendant contends the photographs were highly prejudicial, gruesome, and irrelevant. After closing argument, the State argued People’s exhibit Nos. 26, 25, and 19 should go to the jury. After hearing argument on the question, the court stated exhibit Nos. 19 and 26 would be sent to the jury.

Absent plain error, defendant has waived review of this question. Defendant did not object at trial to admission of the photographs. He objected to admission of the photographs in his post-trial motion, but not to their “publication” to the jury. Generally, a trial objection and a post-trial motion raising the question are necessary to preserve review of an issue. (People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715; 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.) Since defendant did not object to the admission of the photographs at trial, he waived review of the admissibility of the photographs. Although defendant did object to the publication of exhibit Nos. 19 and 26 at trial, he only contested “admission” in his post-trial motion. Thus, he has also waived the “publication” question.

On the merits, no error occurred. The decision about admission of photographs is left to the discretion of the trial court. (People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972; People v. Peterson (1988), 171 Ill. App. 3d 730, 525 N.E.2d 946.) When photographs are relevant to establish any fact in issue, they are admissible, despite their gruesome nature. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Photographs are admissible if they aid in the medical testimony, even though defendant concedes the cause of death. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208; People v. Williams (1985), 137 Ill. App. 3d 736, 484 N.E.2d 1191.) The trial court must balance the prejudicial effect of the photographs with their probative value.

Here, exhibit No. 19 was an emergency room photograph of decedent, taken immediately after lifesaving measures had stopped. It is bloody; the victim’s eyes are partially open; and it does show surgical clamps on an incision which had been made into decedent's chest. However, the photograph also shows the bullet wound. It is illustrative of the emergency room measures and was useful in conjunction with the medical testimony as to cause of death. Exhibit No. 26 is a photograph of decedent’s body after it had been cleaned and before the autopsy. It too shows the bullet wound and a surgical incision. Since both photographs illustrated medical testimony, showed the bullet wound, and neither photograph was unduly gruesome, no abuse of discretion occurred in publishing them. Lindgren, 79 Ill. 2d 129, 602 N.E.2d 208; Speck, 41 Ill. 2d 177, 242 N.E.2d 208.

Defendant next argues the trial court erred in granting the State’s motion in limine to preclude testimony concerning the 0.4 grams of cocaine and money found on decedent’s person. Defendant contends on appeal that the court’s ruling prevented him from presenting a defense based upon decedent’s drug dealings. The record resolves this issue. The trial court never ruled the testimony about decedent’s purported drug dealings was absolutely inadmissible or that defendant could not present a defense.

On April 17, 1989, the prosecutor made an oral motion in limine to prevent testimony about two packets containing the 0.4 grams of cocaine found in decedent’s pockets. The prosecutor noted drugs had not been mentioned in discovery as a factor in the shooting. However, defense counsel indicated an intent to use the drugs in structuring a defense. The prosecutor argued the drugs were not relevant to defendant’s justification defense as the argument was over money owed for a radio. Defense counsel argued decedent’s reference to himself as “Big Daddy Caine” could, by inference, be a reference to himself as a drug dealer. Counsel noted this had been a point of dispute between defendant and decedent in the past. Defense counsel noted the cocaine, in addition to the money, found on decedent’s person could show by inference decedent had been selling drugs. Counsel further argued “the jury might wish to make [sic] that Mr. Miles had come there to Fair Oaks *** to potentially use the Reed household as a place at which an individual could meet him and pick up these drugs.” Defense counsel further argued this might explain defendant’s actions.

The court noted there could be some relevancy, but that an adequate foundation had to be presented. The trial judge stated making a bold assertion that this scenario happened “without anything more” would not be allowed. However, he reasoned that if the proper foundation were set forth, the information would be admissible. The court initially reserved ruling on the use of the cocaine found on decedent’s body. The court clarified by saying the drugs were not relevant merely because decedent possessed them. The court then stated it would not preclude reference to the drugs if: (1) the defendant established a proper foundation, and (2) the drugs were relevant to the defense.

Prior to opening statement, defense counsel stated the record would implicitly show defendant believed decedent was a drug dealer, they discussed it, and decedent by implication needed $25 to pay his supplier. Counsel asked for a ruling on use of statements about the drugs and money found on decedent’s person for purposes of opening argument. The court asked what relevance the drug had to the shooting if there was no evidence defendant knew they were there. The trial judge ruled, for purposes of opening statement, discussion of the drugs on decedent’s person was not relevant. The judge then stated that if defendant could establish the cocaine had some bearing on the case, or knowledge of it which could be imputed to defendant and make him act the way he did, it would be admissible.

The record, thus, establishes that the trial court ruled, for purposes of opening statement, that mention of the cocaine and the money on decedent’s person could not be made. From the record, the trial court did not preclude the “drug dealer/crack-house” defense from being raised. Defendant did not ask to present testimony concerning the drugs found in decedent’s pockets after defendant testified.

Defense counsel in fact elicited testimony that decedent called himself “Big Daddy Caine,” that defendant told decedent he would not have that stuff in his house, that the men discussed what “Big Daddy Caine” meant, and that decedent had been carrying a weapon earlier that day. However, defendant never stated decedent was a drug dealer or presented any testimony indicating they had argued over decedent’s wish to turn the house into a cocaine distribution center. Defendant also did not state decedent was selling drugs on January 11, 1989; therefore, he believed defendant possessed a weapon. If this type of evidence had been presented, the court might have admitted testimony about the cocaine and money found on decedent’s person. The court’s ruling did not absolutely preclude presentation of evidence about the drugs and money found in decedent’s clothing.

Under the circumstances presented here, the court’s ruling did not in fact prevent defendant from presenting a defense. Therefore, no error occurred.

Defendant argues the trial court abused its discretion by allowing the State to use a prior felony conviction for impeachment. Defendant contends that since the present offense involves the use of a weapon and defendant had been previously convicted of unlawful use of a weapon by a felon, the jury would believe he had a propensity to commit this type of crime. After defendant rested, the prosecutor offered a certified copy of defendant’s February 1, 1985, conviction. The prosecutor proposed submitting the certified copy, which stated defendant had been convicted of unlawful use of firearm by a felon, by possession of a .22 caliber rifle, after having previously been convicted of assault with a deadly weapon.

Defendant objected based upon the prejudicial impact of the prior conviction. The court stated the certified copy of the 1985 conviction would be admitted for impeachment purposes. However, the court deleted reference to the prior assault and restricted the reference to a “1985 unlawful use of firearms by a felon” conviction. The court also admonished the jury and instructed the jury that the prior felony was only to be used in determining defendant’s credibility.

Evidence of a prior crime may be used for impeachment if the offense was a felony or involved dishonesty and if it occurred within 10 years of the current offense. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) The trial court in all cases must balance the probative value of the prior offense with its prejudicial effect. (Williams, 137 Ill. App. 3d 736, 484 N.E.2d 1191.) In the instant case, the trial judge balanced the probative value of the 1985 conviction with its prejudicial effect. He limited the reference to the title of the offense. He deleted all reference to the predicate felony. The court also admonished the jury and instructed it that the prior felony was usable only in assessing credibility. No abuse of discretion occurred merely because the offenses involved weapons.

The armed violence conviction must be vacated. Where multiple convictions arise from the same act, sentence may be imposed only on the more serious offense. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Here, defendant shot decedent once, causing decedent’s death. Defendant was convicted of armed violence and first-degree murder. The armed violence conviction, as the less serious offense, must be vacated.

For the above reasons, we affirm defendant’s conviction of first-degree murder and vacate his conviction of armed violence.

Affirmed in part; vacated in part.

GREEN and STEIGMANN, JJ., concur.


text:
      In re MARRIAGE OF DUWAYNNE Z. AZOTEA, Petitioner-Appellant, and NANCY J. AZOTEA, Respondent-Appellee.
    Fourth District
    No. 4—89—0855
    Opinion filed July 19, 1990.

      F. Donald Heck, Jr., of Pollock, Ennis & Heck, of Quincy, for appellant.
    Gerald L. Timmerwilke, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is nearing the last chapter (all child support terminated June 28, 1989) in a continuing battle between Duwaynne Z. Azotea (husband) and Nancy J. Azotea (wife) concerning child support, arrearages, and medical bills with respect to a judgment of dissolution originally entered by the trial court on July 20, 1979. On August 28, 1989, the trial court entered an order finding the husband owed the wife $3,164.48 in back child support, the wife owed the husband $2,430 in back support, and entered a judgment in favor of the wife and against the husband for the difference, $734.48, and judgment for wife, $1,027.25 for husband’s share of medical expenses incurred by the wife for the child.

The husband appeals, asserting that the trial court erred in setting his child support arrearages at $3,164.48 and further that the trial court erred in entering judgment against him in the sum of $1,027.25 for his share of the medical expenses of the parties’ child. For reasons that follow, we affirm in part as modified and reverse in part.

It is first necessary to set forth the matters which were before the court for hearing which resulted in the order of August 28, 1989. First there was a petition to show cause and for other relief filed by the husband on November 2, 1988, asserting that the custody of the child was changed to the husband on October 1, 1987, and that the wife was ordered to pay the sum of $30 per week for child support. Further, that the wife failed to make child support payments and was in arrears in the sum of $1,560. In a separate count not pertinent to these proceedings and which was later dismissed, the husband asked for a change in the amount of support. Also before the court was a petition for contempt and for relief filed by the wife asserting that the original dissolution of marriage judgment, entered on July 20, 1979, provided that the husband was to carry health insurance through his employer for the minor child of the parties and any expense not covered to be divided equally, that the wife has incurred medical bills totaling $2,091.50 for the minor child, that the husband has refused to pay his portion of those expenses, that he should be held in contempt for failure to pay his portion of said bills, and she should be awarded attorney fees. Then, on June 28, 1989, the wife filed an additional petition asserting that the child’s custody had been changed to the husband by agreement of the parties, that the child now was living separate and apart from her father in her own apartment, that wife continues to pay the child support of $30 per week, that there is a substantial change in circumstances, and requests that she be granted custody of the daughter or in lieu thereof that the child support payments be made directly to the child.

A hearing on the three petitions was held on August 17, 1989. The trial court in its order determined that from the date of the dissolution, July 20, 1979, to October 1, 1987, the husband should have paid $14,560 in child support, that he had paid $11,395.52, which left an arrearage of $3,164.48. The court also found the wife incurred noncovered medical expenses in the amount of $2,054.50, of which the husband should pay half, $1,027.25. The trial court further found the wife had failed to pay child support as ordered by the court and was in arrears in the amount of $2,430. The trial court found each of the parties to be in contempt for failing to pay child support as ordered, both were to pay the attorney fees they had incurred, and further found the husband was in contempt for failure to provide medical insurance through his employer, but not for failing to pay the noncovered expenses for which the wife had never made a timely demand for payment until the petition was filed.

The first matter to be considered is whether the trial court erred in setting the husband’s child support arrearage at $3,164.48. There are two serious flaws in the trial court’s determination of the husband’s arrearage. First, there is no petition on file before the trial court concerning child support arrearage owed by the husband. The matter came to the attention of the court not by any proper pleading filed by the wife, but by her testimony that she did not pay the child support she was ordered to pay for the reason that the husband still owed her child support for the time period when she had the custody of the child. A judgment of dissolution requires strict adherence to its terms. Because one party believes the other has violated the judgment does not excuse his own noncompliance. The husband’s failure to pay child support is not a justifiable excuse or cause for the wife to fail to abide by a court order requiring her to pay support. The trial court erred in determining a child support arrearage due from the husband when in fact the issue was not before the court pursuant to any proper pleading. In re Marriage of Fox (1989), 191 Ill. App. 3d 514, 548 N.E.2d 71; In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 479 N.E.2d 1152.

Additionally, with respect to the husband’s arrearage in child support, the trial court in its order determined the arrearage from the date of the judgment, July 20, 1979, to the date of change of custody, October 1, 1987. This also was error even if the question of the husband’s arrearage were before the court. On at least five separate occasions, the trial court in this case entered orders with respect to arrearages insofar as the husband was concerned, February 26, 1981, February 11, 1982, June 21, 1982, June 9, 1983, and October 18, 1984. The trial court had no authority to go behind the date of October 18, 1984, in determining any arrearage due from the husband. Specifically, the order entered October 18, 1984, provided in part “that arrearages of child support are hereby set as of October 18, 1984, in the sum of $1,711.” This determination as of this date, October 18, 1984, is res judicata as to the amount of support owed by the husband up to that date. (In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156.) As stated heretofore, because there was no proper pleading on file bringing to the court’s attention the failure of the husband to pay support, the trial court’s entry of judgment insofar as the husband’s arrearage is concerned is error and is set aside.

No appeal was taken by the wife with respect to the trial court’s finding that she was in arrears in the payment of child support due from her to the husband in the amount of $2,430.

The second issue raised in this appeal is whether the trial court erred in entering judgment against the husband in the sum of $1,027.25 as his share of the medical expenses of the child. The husband’s principal argument against the allowance of this expense is that by the order of October 1, 1987, the custody of the child was changed to him; nothing was said then, nor was any pleading on file by the wife at that time concerning any failure to pay medical expenses; and she, because of this failure to bring it to the attention of the court at that time, has now foregone any right to recovery of the medical expenses and laches should apply. Trial courts and reviewing courts should look with disdain on the actions of a party in failing to bring to the attention of the court at the appropriate time any pending matters which should be resolved prior to the change in custody. However, she is not foreclosed from bringing the instant action for medical expenses. As shown by the evidence, the principal portion of the medical expenses was incurred in the year 1987, The husband does not argue that the amount of the expenses was not legitimate nor properly incurred by the wife. There is nothing in the record to indicate any detriment to the husband or reliance by him that she would not seek enforcement of medical expense provision. The evidence does show the amount of those expenses, and the trial court did not err in awarding the wife the sum of $1,027.25 as reimbursement for one-half of the medical expenses incurred in behalf of the child. The husband’s laches argument is without merit. Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125; In re Marriage of Cuberly (1985), 135 Ill. App. 3d 55, 481 N.E.2d 830.

In summary, we have a finding against the husband in the amount of child support of arrearages $3,164.48, which was entered in error; a finding by the court that the wife was in arrears in the payment of support in the amount of $2,430; and a finding by the court that the husband owes the "wife $1,027.25 as his share of the medical expenses incurred for the child. The finding that the husband was in arrears in the payment of support being in error, the judgment of the trial court is modified and judgment is entered against the wife and in favor of the husband in the amount of $1,402.75 ($2,430, wife’s arrearage, less medical expenses owed wife by husband, $1,027.25).

Affirmed in part as modified; reversed in part.

LUND and STEIGMANN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DOUGLAS, Defendant-Appellant.
    Fourth District
    No. 4—89—0832
    Opinion filed July 26, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On October 20, 1989, the defendant Michael Douglas was sentenced to eight years’ imprisonment in the penitentiary. The defendant had been charged by indictment on July 20, 1989, with one count of home invasion and two counts of residential burglary. The jury returned verdicts finding the defendant guilty of residential burglary and not guilty of home invasion. The defendant filed timely notice of appeal, the only issue being whether the trial court abused its discretion in denying the defendant alcohol and substance abuse treatment pursuant to section 10—102 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1989, ch. 111½, par. 6360—2).

The facts will be reviewed only as necessary to a disposition of this appeal. At the sentencing hearing, the defendant presented two "witnesses, Angela LeGrand, who performed an evaluation for Treatment Alternatives to Street Crime (TASC), and Dave McCausland. Le-Grand testified that she believed the defendant was addicted to alcohol and secondarily to marijuana, was eligible for treatment, and recommended treatment in Chicago with a long-term treatment program of between 9 and 12 months. McCausland believed that Douglas needed long-term residential treatment, that he was chemically dependent with alcohol being the primary dependency and marijuana being a secondary dependency. Defendant had no prior convictions and was eligible for TASC. The trial court denied the defendant treatment under section 10—102 of the Act.

Section 10—102 of the Act (Ill. Rev. Stat. 1989, ch. HV-k, par. 6360 — 2) provides two options to the court "with respect to a defendant who seeks treatment under the provisions of that act.

First, if the court, on the basis of the report and other information, finds that the individual is an addict or alcoholic and is likely to be rehabilitated through treatment, the defendant shall be placed on probation and under the supervision of a designated program and under the supervision of proper probation authorities unless:

“[1] [G]iving consideration to the nature and circumstances of the offense and to the history, character and condition of the individual, the court is of the opinion that no significant relationship exists between the addiction or alcoholism of the individual and the crime committed, or [2] that his imprisonment or periodic imprisonment is necessary for the protection of the public, and the court specifies on the record the particular evidence, information or other reasons that form the basis of such opinion.” Ill. Rev. Stat. 1989, ch. 111½, par. 6360 — 2.

Second, if the court finds, based upon the report or other information, that the defendant is not:

“[1] [A]n addict or an alcoholic likely to be rehabilitated through treatment, or [2] that his addiction or alcoholism and the crime committed are not significantly related, or [3] that his imprisonment or periodic imprisonment is necessary for the protection of the public, the court shall impose sentence as in other cases.” Ill. Rev. Stat. 1989, ch. 111½, par. 6360—2.

The court at the time of sentencing stated:

“[F]rom all the information, the totality of information that has been provided me, including the defendant’s own statements, or in some cases lack thereof, I am not satisfied that Mr. Douglas’ problem with alcohol is as serious or significant as has been portrayed here. More importantly, from all of the information provided me plus the nature and the circumstances [of] the offense and, again, Mr. Douglas’ own statements, the evidence of his own statements, I have very serious doubts about any significant connection between Mr. Douglas’ drinking generally and the crime with [sic] which he stands convicted.
*** [W]e know that injury did result from this offense, the residential burglary ***. * * * [I] feel that it’s not inappropriate to consider that incarceration of Mr. Douglas is necessary for protection of the public. For all of those reasons, I believe that a sentence under Chapter 111½ is not an appropriate sentence in this case ***.”

As stated in People v. Hirschmann (1988), 175 Ill. App. 3d 150, 153, 529 N.E.2d 760, 762:

“The trial court’s determination of a defendant’s eligibility for treatment and sentencing under the Act will not be reversed on review absent a showing that the trial court acted in an arbitrary manner or abused its discretion.”

Although the trial court did not indicate whether the defendant was an addict or alcoholic, the trial court did substantially comply with the provisions of section 10 — 102 of the Act. The trial court found that the crime committed and the alcoholism or addiction, if any, were not significantly related and also found that imprisonment was necessary for the protection of the public. This is compliance with section 10—102 of the Act. (Ill. Rev. Stat. 1989, ch. 111½, par. 6360—2.) The trial court did not act arbitrarily, nor did it abuse its discretion in denying defendant’s request.

The sentence of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS L. NOVAK, Defendant-Appellant.
    Fourth District
    No. 4—90—0090
    Opinion filed July 26, 1990.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On December 26, 1989, defendant Dennis Novak filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, pars. 122—1 through 122—8) in the circuit court of Adams County. On January 3, 1990, the State filed a motion to dismiss. On January 23, 1990, a hearing was held with only the State present, and the court, granting the motion, dismissed defendant’s petition. Defendant appeals, alleging this procedure violates the requirement of the Act. The State now agrees. We reverse and remand.

The Act sets forth the procedure to be used in evaluating claims of defendants for post-conviction relief. First, the petition is docketed for the limited purpose of an examination by a judge, who must then take one of two actions: (1) he may dismiss it as “frivolous” or “patently without merit” (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.1(a)(2)), in which case the order is appealable; or (2) he may order it docketed for further consideration as provided for in the succeeding sections of the statute. However, in initially examining the petition, the judge must do so inops consilii, that is, without input by the State or further pleadings from the petitioner. (People v. Ramsey (1985), 137 Ill. App. 3d 443, 447, 484 N.E.2d 555, 557.) There also can be no appointment of counsel or leave to proceed in forma pauperis until it is determined that the petition will not be dismissed under section 122—2.1(a). Ramsey, 137 Ill. App. 3d at 447, 484 N.E.2d at 557-58.

It is only if the petition survives this initial examination that the State may then file pleadings in response within the confines of section 122—5. (People v. Cooper (1986), 142 Ill. App. 3d 223, 225-26, 491 N.E.2d 815, 816; Ramsey, 137 Ill. App. 3d at 447, 484 N.E.2d at 558.) A motion to dismiss filed by the State prior to the court having made the initial determination as to the frivolousness of the petition is a nullity. (Ramsey, 137 Ill. App. 3d at 447, 484 N.E.2d at 558.) Thus, any order granting such an improperly filed motion has no effect. People v. Brothers (1989), 179 Ill. App. 3d 788, 791, 535 N.E.2d 45, 47-48; People v. Jackson (1988), 176 Ill. App. 3d 15, 17, 530 N.E.2d 993, 994; People v. Day (1987), 152 Ill. App. 3d 416, 420, 504 N.E.2d 979, 981.

In the present case, it is clear the court skipped the determination required by section 122—2.1(a) and proceeded to dismiss the petition pursuant to the State’s motion. It is equally clear that, due to the failure to make this initial determination, the order to dismiss is invalid and has no impact. We must, therefore, as requested by both parties, reverse and remand for compliance with the procedures mandated by the Act.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    CHARLES R. OLAF, Plaintiff-Appellant, v. CHRISTIE CLINIC ASSOCIATION et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0894
    Opinion filed July 26, 1990.

      Ronald E. Boyer; of Boyer & Thompson, Ltd., of Watseka, for appellant.
    Loma K. Geiler, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellee Christie Clinic Association.
    Joseph D. Pavia, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellee Personal Care HMO.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff brings this appeal alleging the trial court erred in granting defendants’ motions for summary judgment. We affirm.

Plaintiff, Dr. Charles R. Olaf, filed a complaint against defendants, Christie Clinic Association (Christie) and Personal Care HMO (Personal Care), alleging the agreement between himself and Christie was wrongfully terminated and his patients were unlawfully notified. In 1984, Christie entered into a contract with Dr. Olaf wherein Dr. Olaf became associated with Christie as a provider of health services for Personal Care at his practices in Paxton and Cissna Park. The contract provided Dr. Olaf was to be paid for his medical services to subscribers of Personal Care by Christie and the contract could be terminated by either party by written notice given at least 90 days in advance of termination. The contract provided for annual review and recited Dr. Olaf “elects during the term of this agreement to participate on an exclusive basis with CHRISTIE in said prepaid health services programs.”

After several years as a provider for Personal Care, Dr. Olaf also became a provider for CarleCare, a competing health maintenance organization (HMO). On June 5, 1987, Christie notified Dr. Olaf it would invoke the 90-day termination clause of their contract unless he disassociated himself from CarleCare. When Dr. Olaf refused to terminate his services for CarleCare, Personal Care mailed to its participants, who were also patients of Dr. Olaf, a letter which stated effective September 3, 1987, Dr. Olaf will no longer be a participating physician with Personal Care HMO. The letter asked the participants to select a new primary-care physician as soon as possible.

Dr. Olaf filed suit claiming the actions of Christie and Personal Care had resulted in the loss of patients and the termination of his medical practice. The complaint alleged a conspiracy existed between Christie and Personal Care which had the purpose of destroying Dr. Olaf’s medical practice and lessening competition.

Defendants filed answers to the complaint alleging they were justified in terminating the contract with Dr. Olaf and in sending letters to Dr. Olaf’s participating patients. In response to Christie’s and Personal Care’s motion to strike the complaint, counsel for Dr. Olaf stated the complaint should be understood to state a single cause of action for the conspiracy of Christie and Personal Care to tortiously interfere with the contractual relationship between Dr. Olaf and his patients. The trial court amended the complaint accordingly.

Defendants filed motions for summary judgment. Personal Care’s motion was accompanied by affidavits which explained and justified the action taken toward Dr. Olaf. Attached to Dr. Olaf’s response to the motions for summary judgment were unverified letters and memoranda from Christie and Personal Care. Dr. Olaf did not submit any counteraffidavits in addition to this response. The trial court allowed defendants’ motions for summary judgment. The trial court found there was no genuine issue of material fact and that Dr. Olaf had violated the terms of his agreement with Christie.

Summary judgment is properly granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295.) In making this determination, the court is to construe the evidence strictly against the moving party and liberally in favor of the opponent. Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 388 N.E.2d 47.

Although a party is not required to prove his case at summary judgment, some facts must be presented to support the elements of its claim. If the party moving for summary judgment supplies evidentiary facts which, if uncontradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint or answer alone to raise issues of material fact. (In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 458 N.E.2d 1065.) Thus, the consequence of failing to file a counter-affidavit is that any statements in the affidavits supporting the motion for summary judgment stand as admitted and must be taken as true. Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 476 N.E.2d 1259.

Here, Personal Care’s motion for summary judgment was supported by verified affidavits. The affidavit of Ronald H. Bearing, medical director of Christie Clinic Association, explained Christie’s contract with Personal Care and with Dr. Olaf. On June 5, 1987, and August 13, 1987, Bearing mailed a letter to Dr. Olaf stating Dr. Olaf had violated the exclusive-service term of his contract with Christie. Bearing notified Dr. Olaf Christie would be terminating their agreement with him in 90 days unless he complied with the exclusive-service term. According to Bearing, Dr. Olaf never notified Christie he would comply.

The affidavit of Larry Good, development director of Personal Care HMO, explained the relationship of Personal Care with Christie and Dr. Olaf. On August 10, 1987, Good spoke with Dr. Olaf regarding Deering’s letter of June 5, 1987. Dr. Olaf told Good he did not intend to comply with the exclusive-service provision of the Christie contract. Good told Dr. Olaf Personal Care would have to notify its members who were patients of Dr. Olaf that Dr. Olaf would no longer be a participating physician and advise them to select another primary-care physician. Dr. Olaf’s only reply was that Personal Care should be sure not to tell his patients he had terminated the agreement. On August 12, 1987, Personal Care sent letters to its members who had listed Dr. Olaf as their primary-care physician informing them Dr. Olaf would no longer be a participating physician with Personal Care and advising them to select a new primary-care physician.

Last, the affidavit of Alan L. Mytty, president of Personal Care HMO, also explained Personal Care’s relationship with Christie and Dr. Olaf. Mytty stressed the sole basis under which Dr. Olaf provided services to members of Personal Care was through his contract with Christie. By notifying its members Dr. Olaf would no longer be a participating physician, Personal Care was not attempting to compete with Dr. Olaf, but was instead attempting to comply with its service certificate and the requirement of Illinois law that there must be a written contract for a physician to serve as a participating provider to an HMO.

Dr. Olaf failed to file a counteraffidavit. Dr. Olaf s response to the motions for summary judgment stated there were issues of material fact to be resolved, without specifying what these facts were. The attachments to Dr. Olaf’s response were unverified and failed to qualify as counteraffidavits pursuant to Supreme Court Rule 191(a). (107 Ill. 2d R. 191(a).) Absent contradiction, the trial court properly admitted the statements in Personal Care’s affidavits and found no genuine issue of material fact.

The trial court correctly found Christie and Personal Care were entitled to judgment as a matter of law. The elements of the tort of interference with contractual relations include (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of a contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 545 N.E.2d 672.

An enforceable contract did not exist between Dr. Olaf and his patients. Unlike the right to receive benefits of a contract, the right to engage in a physician-patient relationship is not absolute but is instead terminable at will. (Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 480 N.E.2d 1176.) A contrary holding would restrain normal competition in the marketplace and, in this instance, incorrectly define the physician-patient relationship. Perhaps Dr. Olaf could have pleaded tortious interference with his prospective economic advantage. Such a pleading would not have required proof of an enforceable contract between Dr. Olaf and his patients, but only a reasonable expectancy of a future economic advantage from the relationship. (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 306 N.E.2d 549.) However, the success of such an action would be questionable as the present facts show Dr. Olaf’s relationship with Personal Care members is contingent upon his contract with Christie, which can be terminated without cause.

Personal Care was also justified in notifying the affected patients of Dr. Olaf s termination as a primary-care physician. Personal Care had an obligation to notify its members Dr. Olaf was no longer a participating physician. If Personal Care had not informed its members of Dr. Olaf s termination, the members would have continued to expect Personal Care to provide coverage for his services. Clearly, Personal Care was privileged in making such notification, and Dr. Olaf has not set forth any factual allegations from which it can be inferred Personal Care’s conduct exceeded this privilege. See HPI Health Care, 131 Ill. 2d at 158, 545 N.E.2d at 678.

The court need not address Dr. Olaf’s allegations regarding restraint of trade and restricted competition. Pursuant to defendants’ motion to strike, counsel for Dr. Olaf informed the court the only action he was pursuing was that of tortious interference with a contractual relationship between Dr. Olaf and his patients. The trial court amended the complaint accordingly. Plaintiff’s failure to raise these issues at the trial court level or to properly plead them waives them for purposes of review.

Affirmed.

LUND and McCULLOUGH, JJ., concur.


text:
    WILLIAM R. JOHNSON et al., Plaintiffs-Appellants, v. DANVILLE CASH AND CARRY LUMBER COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—89—0963
    Opinion filed July 26, 1990.

      Edward H. Rawles, of Reno, O’Byrne & Kepley, EC., of Champaign, for appellants.
    Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

This is a personal injury action with verdict and judgment for defendant. We affirm.

Plaintiff William R. Johnson was injured when a bundle of shingles fell off a motorized “hiker” ladder at a construction site on April 6, 1987. He was struck in the back of the head and knocked off the lower roof level of the site onto the ground. Plaintiff sustained permanent neurological damage to his spinal cord rendering him a quadriplegic.

Plaintiff obtained the motorized ladder from his construction material supplier, defendant Danville Cash & Carry Lumber Company. Defendant occasionally allowed select customers to use the ladder for private purposes. For the most part, however, defendant restricted the use of the motorized ladder to its employees for the delivery of construction materials.

Plaintiff and his spouse filed their amended four-count complaint against defendant in the Vermilion County circuit court on August 31, 1988. They sought monetary damages for their respective personal injuries and consortium losses under both negligence and strict liability theories of recovery. On November 9, 1988, in its answer to the amended complaint, defendant raised the statute of repose as an affirmative defense to the action. (Ill. Rev. Stat. 1987, ch. 110, par. 13—213.) Defendant and plaintiffs next filed successive motions for summary judgment in the action. The circuit court denied both motions.

The action proceeded to trial by jury on August 22, 1989. Defendant moved for a mistrial at the close of the case presentation by plaintiffs. Plaintiffs opposed the motion. Defendant argued the jury had obviously ignored judicial admonishment to refrain from interim discussion of the action based on a written inquiry from an individual juror as to whether plaintiffs carried health insurance. The circuit court directed voir dire of that juror over the objection of plaintiffs. Upon examination, the juror testified she had taken the initiative to submit the inquiry to the court independent of discussion or concerted action with other panel members. The circuit court ultimately denied the mistrial motion, and the trial continued to its conclusion.

The jury concluded its deliberations on September 1, 1989. The jury returned verdicts in favor of defendant on all four counts. Plaintiffs responded with a post-trial motion for either a judgment notwithstanding the verdict or a new trial on September 29, 1989. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1202.) In support of their motion, plaintiffs alleged an unidentified woman with “A-Z Company” had called their residence to conduct a survey on employment insurance benefits. The call came shortly after the court had released the jury from deliberations for an evening recess on August 31, 1989. Comparing the fortuitous timing of the survey call with the prompt conclusion of jury deliberations on the next day, plaintiffs later reasoned a juror must have pursued a surreptitious investigation into their insurance coverage status. Plaintiffs argued such improper juror conduct entitled them to a new trial in the action. The circuit court denied the post-trial motion on November 17,1989. This appeal followed.

Plaintiffs initially contend the circuit court erred in denying their post-trial motion for a new trial based on juror misconduct. We disagree.

A jury should only consider the facts introduced into evidence at trial in rendering a verdict. (Heaver v. Ward (1979), 68 Ill. App. 3d 236, 239, 386 N.E.2d 134, 137.) Such a limitation is necessary to protect the due process rights of litigants. (See People v. Rivers (1951), 410 Ill. 410, 102 N.E.2d 303.) Any independent investigation into an action by the jury may constitute error so prejudicial as to require reversal. People v. Holmes (1978), 69 Ill. 2d 507, 519, 372 N.E.2d 656, 661.

Plaintiffs had to show competent and credible evidence of an improper external influence on the jury to set aside the verdict. (Fed. R. Evid. 606(b); see also Miller v. Scandrett (1945), 326 Ill. App. 631, 638, 63 N.E.2d 252, 255.) In this action, however, plaintiffs merely submitted a personal affidavit which alleged in a conclusory manner a juror must have pursued a surreptitious investigation into their insurance coverage status because her prior public inquiry had not been answered by the court. This unsubstantiated allegation is too speculative to prove any misconduct on the part of that juror. “Verdicts should not be set aside on mere suspicion that a juror has acted improperly.” (Miller, 326 Ill. App. at 638, 63 N.E.2d at 255.) Plaintiffs did not acquire statements from any juror. Plaintiffs did not acquire statements from anyone who contended to have discussed the case with a juror. Plaintiffs presented no independent evidence of juror misconduct. On this record, the circuit court did not err in denying the post-trial motion for a new trial.

Plaintiffs next contend the circuit court erred in refusing to order post-trial voir dire of the jury in the action. We again disagree.

There was no error in the refusal of the circuit court to order the requested post-trial relief. Plaintiffs were accorded a meaningful hearing on their post-trial motion. Plaintiffs failed to take advantage of that opportunity to substantiate their allegation of juror misconduct. Such a failing precludes any further judicial consideration. (See Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 410, 487 N.E.2d 798, 807.) Moreover, there is a question of the diligence with which plaintiffs acted in bringing their allegation to the attention of the circuit court. (See Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 821, 521 N.E.2d 1282, 1286.) Plaintiffs suspected a juror had improperly pursued an independent investigation into their insurance coverage status during the deliberation stage of the trial. A month then elapsed before their suspicion was brought to the court’s attention. Such a serious allegation of wrongful conduct by a juror should have been made in a more seasonable manner to best serve the interest of justice. Considine v. Hill (1959), 22 Ill. App. 2d 83, 86, 159 N.E.2d 15, 17.

Plaintiffs last contend the jury verdict on the strict liability count was against the manifest weight of the evidence. We disagree.

The general rule of strict tort liability is stated in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182. Liability in tort may be extended to one engaged in commerce who supplies another with a defective product which causes injury. (Suvada, 32 Ill. 2d at 617, 210 N.E.2d at 185; see also Restatement (Second) of Torts §402A (1965).) As such, the rule of strict liability encompasses the commerce chain in its entirety, including manufacturers, distributors, retailers, and lessors. See Gilliland v. Rothermel (1980), 83 Ill. App. 3d 116, 118, 403 N.E.2d 759, 761.

Plaintiff was injured while using an allegedly defective motorized “hiker” ladder provided by defendant in this action. A dispute exists as to the nature of the underlying commercial transaction. Plaintiff characterizes his arrangement with defendant as a rental agreement; defendant contrastingly characterizes the same arrangement as a gratuitous loan. Our examination of the commercial transaction indicates defendant provided plaintiff with the ladder as an incident to a sale of construction materials. In effect, defendant allowed private use of the motorized ladder as a benefit to select customers in its integral business operations. Under these circumstances, we conclude the commerce chain nexus is sufficient to support the extension of the strict tort liability rule to this action. See Restatement (Second) of Torts §402A comment f, at 350-51 (1965); see also Bainter v. Lamoine LP Gas Co. (1974), 24 Ill. App. 3d 913, 321 N.E.2d 744.

Strict liability does not mean absolute liability. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111, 454 N.E.2d 197, 200.) The plaintiff must prove three separate elements to prevail in a strict liability tort action: (1) the injury or damage suffered resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time the product left the control of the manufacturer. (Surada, 32 Ill. 2d at 623, 210 N.E.2d at 188.) Such proof generally rests on circumstantial evidence that the product failed to perform in the expected manner absent abnormal use or reasonable secondary causes. St. Paul Fire & Marine Insurance Co. r. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 177, 298 N.E.2d 289, 297; Tweedy r. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 574, 357 N.E.2d 449, 451.

The reviewing court is not free to substitute its judgment for that of the jury when presented with a challenge to the propriety of a verdict. Instead, the reviewing court must “consider the evidence in the light most favorable to the pitigant] in whose favor the jury returned the verdict.” Elliott v. Sears, Roebuck & Co. (1988), 173 Ill. App. 3d 383, 391, 527 N.E.2d 574, 579.

Our review of the record convinces us there was ample evidence to support the strict liability verdict favoring defendant at trial. First, the employees of defendant performed maintenance to correct minor wear and tear defects in both the drive chain and the frame of the motorized ladder on an as-needed basis. They did not notice any defects at the time the ladder was turned over to plaintiff. Second, the co-workers of plaintiff noticed nothing out of the ordinary when they set up the motorized ladder at the construction site. More important, they did not actually observe any operating part on the ladder give way at the time of the accident. Third, the employees of defendant did not find any mechanical problems to correct in their routine inspection upon the return of the motorized ladder.

There is nothing in the evidence to show any condition of the product caused the injury to plaintiff. Plaintiff basically contends the tragic event itself coupled with circumstantial evidence proves their case. Yet, the jury could have properly concluded the plaintiffs failed to prove the hiker was defective in one or more of the three ways they claimed and on which the jury was instructed. There was no direct evidence the ladder was bent or collapsed inward at the upper left portion near the top left rail. There was no direct evidence the paddles or lifting platforms and their support straps were bent, deformed or misshaped. There was no direct evidence the drive chains were not properly tensioned or adjusted. The jury verdict on strict tort liability is not against the manifest weight of the evidence.

In light of our disposition of this action, we need not address the remaining contentions raised by the litigants.

The judgment of the Vermilion County circuit court is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    MELVIN THOMAS, Plaintiff-Appellee, v. JIM GREER, Warden, Defendant-Appellant.
    Third District
    No. 3—88—0360
    Opinion filed August 17, 1989.
    Rehearing allowed January 22, 1990.
    Modified opinion filed March 30, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, of Chicago, Douglas K. Smith, Assistant Attorney General, of Springfield, and Terence M. Madsen, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellee.

       This opinion was initially published in the Illinois Appellate Advance Sheets on October 18, 1989, prior to modification upon rehearing filed March 30, 1990 (187 Ill. App. 3d 119, 553 N.E.2d 768).

   JUSTICE BARRY

delivered the opinion of the court:

Warden Jim Greer of Menard Correctional Center appeals from an order of the circuit court of Peoria County granting a petition by Melvin Thomas for habeas corpus relief and ordering that Thomas be released from custody.

Thomas was originally sentenced to a term of two to six years in the Illinois Department of Corrections in 1977 by the circuit court of Knox County following his conviction for burglary and theft. In 1978, while incarcerated in the Peoria Correctional Center (Center) under the Knox County sentence, Thomas and another inmate, Roderick Choisser, kidnapped a female employee at the Center, took her car, and drove with her to Fulton County, where the two men raped her in a motel. They then drove with her to Tennessee, where she managed to get away from them.

The two men were subsequently arrested and charged with offenses in three separate jurisdictions. It is the disposition of those several charges that gives rise to the current dispute. Those cases were disposed of as follows:

(1) Following guilty pleas, the United States District Court sentenced Thomas to 15 years’ imprisonment for kidnapping and five years for transportation of a stolen vehicle. Those two sentences were to be served concurrently in Federal prison.
(2) Defendant entered a guilty plea to a charge of rape in Fulton County circuit court and was sentenced to 10 years to be served in Federal prison concurrent to previous State and Federal sentences.
(3) Defendant pleaded guilty to aggravated kidnapping and escape in the circuit court of Peoria County, and he was sentenced to prison terms of 10 years and 6 years, respectively, to be served in Federal prison. The court provided that the kidnapping sentence was to run concurrently to all previous State and Federal sentences and that the escape sentence was to run consecutively to the Knox County sentences for burglary and theft.

In January of 1987 Thomas was released from Federal prison and returned to Menard, where the Department of Corrections determined that his Fulton County sentence for rape and his Peoria County sentence for aggravated kidnapping had been completed in Federal prison, but that he still had time to serve on the original Knox County sentence being served at the time of the escape and on the Peoria County sentence for escape. The Department of Corrections computed his earliest release date as January 25, 1990, and the latest at January 25, 1992.

Thomas then filed a petition for habeas corpus in Peoria County which was granted, and this appeal followed.

Two provisions in section 5—8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4) applicable here are:

“(a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another state, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. When a term of imprisonment is imposed on a defendant by an Illinois circuit court and the defendant is subsequently sentenced to a term of imprisonment by another state or by a district court of the United States, the Illinois circuit court which imposed the sentence may order that the Illinois sentence be made concurrent with the sentence imposed by the other state or district court of the United States. The defendant must apply to the circuit court within 30 days after the defendant’s sentence imposed by the other state or district of the United States is finalized. ***
* * *
(g) A sentence *** for escape *** shall be served consecutive to the terms under which the offender is held by the Department of Corrections.”

Another relevant provision of the Unified Code of Corrections is in section 5—8—1 (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1):

“(f) A defendant who has a previous and unexpired sentence of imprisonment imposed by an Illinois circuit court for a crime in this State and who is subsequently sentenced to a term of imprisonment by another state or by any district court of the United States and who has served a term of imprisonment imposed by the other state or district court of the United States, and must return to serve the unexpired prior sentence imposed by the Illinois Circuit Court may apply to the court which imposed sentence to have his sentence reduced.
The circuit court may order that any time served on the sentence imposed by the other state or district court of the United States be credited on his Illinois sentence. Such application for reduction of a sentence under this subsection (f) shall be made within 30 days after the defendant has completed the sentence imposed by the other state or district court of the United States.”

The circuit court of Peoria County found that the two- to six-year sentence imposed by the Knox County court, which Thomas was serving at the time of his escape, was completed in Federal prison and that the six-year sentence for escape was also served in Federal prison after the completion of the Knox County sentence. Defendant Jim Greer contends on appeal that those findings were erroneous as a matter of law, and we agree.

There is no dispute that both the Fulton County sentence for rape and the Peoria County sentence for aggravated kidnapping were served in Federal prison concurrently with Thomas’ Federal sentence for kidnapping. The sentencing courts expressly provided for such sentences to be served in Federal prison, and the courts had authority to make such orders under section 5 — 8—4(a) of the Unified Code of Corrections quoted above.

However, it is plain that the Illinois statutes provide that, where a subsequent sentence is imposed for escape, only the original sentencing court (here, Knox County) has the authority to modify its sentence on the underlying charge so that it could be served in Federal prison. The offender has two 30-day periods within which he can seek to have the court where he was originally sentenced order a modification of that sentence and thereby reduce his total time in prison.

First, under section 5 — 8—4(a) of the Unified Code of Corrections, the offender can make such application within 30 days after the United States District Court sentence is finalized. Nothing in the record on appeal indicates that Thomas applied in 1978 to Knox County circuit court to have the remainder of his interrupted burglary and theft sentences ordered to be concurrent to the Federal sentence as the statute permits.

Second, under section 5 — 8—1(f) the offender can apply to the court which imposed the original sentence to have the sentence reduced within 30 days after completing the sentence imposed by the district court of the United States. Although nothing in the record before this court indicates that Thomas made such application to Knox County circuit court, we nevertheless take judicial notice of a decision of the Illinois Supreme Court filed on January 18, 1989, indicating that in fact such application was made by Thomas after he was released from Federal prison. The Knox County court denied the motion for modification of sentence on the ground that the statute was unconstitutional. Upon direct appeal, the supreme court held that the statute was constitutional and remanded the cause to Knox County for a consideration of the merits of the motion. (People v. Bainter (1989), 126 Ill. 2d 292.) No issue concerning the Knox County proceeding is presented by this appeal.

We conclude that the order of the Peoria County court purporting to modify the Knox County sentence was void as a matter of law. The statute mandates that the escape sentence must be consecutive to the sentence being served at the time of the escape. As this court has previously said: “The legislature apparently wanted to insure that inmates, by receiving consecutive sentences for offenses committed while in prison, could not, in effect, go unpunished for them.” (People v. Murphy (1986), 147 Ill. App. 3d 122, 126, 494 N.E.2d 871.) Both the remainder of the Knox County sentence and the escape sentence are yet to be served.

The dissenting opinion asserts that the statutory provisions requiring defendant to apply to the original sentencing court for sentencing credit within two 30-day periods do not control here, where the subsequent sentence in question was imposed by an Illinois court, not another State or Federal court. This rationale is erroneous.

The question on appeal is whether the Knox County sentence could be served concurrently with the Federal sentence by order of the Peoria County circuit court. As between the Federal district court and the Knox County circuit court, the Federal court could have ordered its sentence to be served concurrent to the Knox County sentence under section 5—8—4(a) or the Knox County court could have ordered credit against its sentence for time served on the Federal sentence under either section 5—8—4(a) or section 5—8—1(f). Neither of these courts entered such an order.

The Peoria County circuit court had authority to order the sentences for crimes within its jurisdiction to be served concurrently with the Federal and State sentences with one exception: the Peoria court was required by statute to order the escape sentence to be served consecutively to the Knox County sentence. This statutory limitation on the discretion of the sentencing court cannot be ignored.

Contrary to the dissenting position, we do not believe the imposition of a sentence for escape had the effect of merging the Knox County sentence into the subsequent Peoria County escape sentence for the purpose of modifying, and in effect nullifying, the Knox County sentence.

Thomas asserts as an alternative ground for upholding the ruling of the Peoria County court that he has completed all his sentences. He claims that he is entitled to a day-for-day “good time” credit for the years served in Federal prison, thereby fulfilling his six-year escape sentence. The statute authorizing “good time” credit (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b)) provides that the offender shall be given credit on the sentence for the time spent in custody as a result of the offense for which the sentence was imposed. This provision has been interpreted by this court to mean that the offender is not entitled to statutory credit for time served under an unrelated conviction. (People v. Vilt (1985), 139 Ill. App. 3d 868, 488 N.E.2d 580, cert. denied (1986), 479 U.S. 864, 93 L. Ed. 2d 148, 107 S. Ct. 219.) We hold that Thomas is not entitled to statutory credit against his remaining Knox County sentences and his escape sentence for the time served in Federal prison under convictions for unrelated crimes.

Finally, Thomas asks that he be allowed to withdraw his 1978 guilty plea entered in the Peoria County circuit court since he entered that plea pursuant to an agreement by which he understood that he would serve the remainder of his Knox County sentence and the escape sentence in Federal prison concurrently with the Federal sentence. Thomas included this request for post-conviction relief as a part of his petition for habeas corpus relief, but so far as we can determine, this issue was not argued or decided in the circuit court.

Upon a petition for rehearing filed in this court, Thomas seeks a remand of this cause to the trial court for a hearing upon his request for post-conviction relief. After being given an opportunity to respond to the petition for rehearing, defendant Greer has offered no argument or citation of authority in opposition to a post-conviction hearing. Thomas relies upon People v. Matthews (1975), 60 Ill. 2d 123, 324 N.E.2d 396, where, upon appeal from denial of post-conviction relief, the court stated that a plea of guilty made in reliance on a promise that the sentence imposed would be concurrent with a previous sentence in another State would not be voluntary and should be set aside if the sentence was later ruled to be consecutive rather than concurrent. Here, we conclude that the determination as to whether Thomas’ guilty plea was voluntary should be made following a hearing in the circuit court.

For the reasons set forth, we reverse the order of the circuit court of Peoria County releasing Melvin Thomas, and we remand with directions that Thomas be ordered to return to the Illinois Department of Corrections to complete his sentences in conformity with this opinion. We further direct that the trial court consider the request for post-conviction relief as indicated.

Reversed and remanded with directions.

WOMBACHER, P.J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully dissent from the decision reached by the majority in this case. The majority’s misunderstanding of the application to this case of sections 5—8—1(f) and 5—8—4(a) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1001—1—1 et seq.) has led to its erroneous conclusion that habeas corpus relief was improperly granted to the plaintiff.

There is no dispute in this case that the escape sentence was mandatorily consecutive to the original Knox County sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(g).) Nor is there any dispute that the aggregation rule applies to the consecutive escape and original Knox County sentences to make a single sentence of 8 to 12 years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(e).) There is, however, a question as to whether the court which rendered the escape sentence, the circuit court of Peoria County, has the authority to decide whether the aggregated sentence will be served concurrently or consecutively to the Federal sentence. The majority concludes that only the original sentencing court (the circuit court of Knox County) has authority to make such a decision. The legislature, however, has concluded otherwise. See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a).

The Code provides that “when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another State, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a).) Thus, because the circuit court of Peoria County imposed a sentence on Thomas, who was subject to other Illinois and Federal sentences, it, and not the original sentencing court, was authorized to determine whether the aggregated sentence would run concurrently or consecutively with the Federal sentence.

As the majority notes, there is a requirement in sections 5—8—1(f) and 5—8—4(a) of the Code that a defendant apply within two different 30-day periods to the original sentencing court for sentencing credit. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—1(f), 1005—8—4(a).) However, that requirement applies only where the subsequent sentence is imposed on a defendant by a court of another State or a Federal district court. Here, the subsequent sentence at issue was imposed by an Illinois court. Thus, the 30-day rule does not apply.

Therefore, because the circuit court of Peoria County had the authority to and did determine that the aggregated sentence would run concurrently with the Federal sentence, and because the aggregated sentence expired during Thomas’ sentence of imprisonment in Federal court, the circuit court was correct in granting Thomas habeas corpus relief. Accordingly, its judgment should be affirmed.