text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSENDO A. CABALLERO, Defendant-Appellant.
    Third District
    No. 3—90—0468
    Opinion filed November 24, 1992.

      Edward J. Kuleck, Jr., of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Rosendo Caballero was indicted on charges of controlled substance trafficking (Ill. Rev. Stat. 1989, ch. 56½, par. 1401.1), calculated criminal drug conspiracy (Ill. Rev. Stat. 1989, ch. 56½, par. 1405), conspiracy (Ill. Rev. Stat. 1989, ch. 38, par. 8—2) and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)). Following a bench trial, the defendant was found guilty of each of the charged offenses. The defendant received concurrent sentences of 36 years’ imprisonment for trafficking, 30 years’ imprisonment for calculated criminal drug conspiracy and 25 years’ imprisonment for possession with intent to deliver, in addition to a street value fine of $36,600. No sentence was entered on the simple conspiracy conviction. Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt of controlled substance trafficking; (2) whether defendant’s conviction for calculated criminal drug conspiracy was improper where one of the alleged conspirators was an agent of the State; (3) whether the defendant’s conviction for conspiracy was barred by Wharton’s Rule or preempted by the calculated criminal drug conspiracy statute; and (4) whether the defendant’s sentence was excessive. For the reasons stated below, we affirm in part, reverse in part and remand.

The State’s first witness, Charlene Bennett, testified that in mid-September of 1989, she was arrested after police raided her home and found 21 grams of cocaine in her possession. Bennett subsequently agreed to help the police obtain cocaine from the defendant, whom she had been purchasing cocaine from for at least two years. According to Bennett, she could not count the number of times she had gone to the airport in Chicago to get cocaine from the defendant. Defendant told her that his source of drugs was his family.

In the spring of 1989, the defendant resided in Bloomington, Illinois, with his wife, his daughter Elizabeth Valera and a son for approximately one month. It was at this time that Bennett was introduced to Valera by the defendant. Bennett again met Elizabeth Valera in the spring of 1989 at Midway airport when Valera brought Bennett cocaine. Bennett received three phone calls from Valera sometime after the Midway airport meeting concerning payment for the drugs. Bennett had no subsequent contact with Valera.

On September 7, 1989, Bennett picked up the defendant from Midway airport and took him to a motel in Ottawa, Illinois, where defendant gave her an ounce of cocaine. Bennett continued to get cocaine from the defendant between September 7 and September 15, 1989, by personal meetings with the defendant and through Federal Express. The return address on at least one of the Federal Express packages was Texas. In addition, Bennett stated that she would on occasion mail money to the defendant in New York or Texas.

On September 16, 1989, after she was arrested, Bennett went to the Streator police department, where she was outfitted with a recording device and given $1,000 so she could set up a controlled buy. Bennett and her boyfriend, William James, went to Ottawa and met with the defendant at a motel to arrange the transaction. Bennett gave the defendant $1,000 for cocaine she had purchased on September 15, 1989, and she asked him when he was going to get more cocaine. The defendant told Bennett that his wife was going to bring him three ounces that evening and that he would contact Bennett when it arrived. Defendant also told Bennett that he needed a ride to the airport, and James agreed to take him.

On cross-examination, Bennett testified that it was possible that her memory was diminished regarding the events that occurred between her and the defendant due to her cocaine addiction. She stated that she and James were using approximately three-quarters of an ounce of cocaine per day. Bennett also testified that during her dealings with the defendant, the defendant always sent money to his family for their support, and on September 16, 1989, he was unsuccessful in his attempt to send $1,000 to his family.

William James testified that he had lived with Bennett for the past four years in Streator, Illinois, and that he had known her for the past 16 years. On September 15, 1989, James went with Bennett to a motel in Ottawa where Bennett purchased three-quarters of an ounce of cocaine from the defendant. On September 16, 1989, James again went with Bennett to the motel after she was outfitted with a recording device and given $1,000 to set up a controlled buy. The defendant told them that his wife was coming with three ounces of cocaine at 7 p.m. that evening. The next morning the defendant called James and asked for a ride to Midway airport because his daughter was arriving on a flight. James picked up the defendant, who was carrying a manila envelope. James stopped at a gas station where defendant made a phone call and they then drove to Midway airport in Chicago. When they arrived, the defendant went into the airport and came out sometime thereafter with his daughter, Elizabeth Valera. The defendant had a leather jacket which he placed in the vehicle and he told James the cocaine was in the jacket. The defendant had not worn a jacket to the airport. The defendant and his daughter then returned to the terminal. James looked inside the jacket and saw what appeared to be a bag of cocaine. The defendant later returned to the car and he and James drove back to Ottawa.

James further testified that he and Bennett had been purchasing cocaine from the defendant for two years prior to September 15, 1989. James picked up the defendant a number of times during those two years from an airport in Chicago. James and Bennett received at least one Federal Express package from Houston containing cocaine sent in the defendant’s name during the first two weeks of September 1989.

On cross-examination, James stated that he did not know where the defendant got the jacket containing the cocaine, nor did he know to whom it belonged. James could not remember whether the defendant told him that the cocaine was in the jacket.

Dennis Trunkenbrod, a police officer assigned to the drug task force, was assigned to conduct a surveillance on the defendant and James on September 17, 1989. Trunkenbrod followed the James vehicle from Ottawa to Midway airport, where they arrived at approximately 12:30 p.m. At 2:30 p.m., Trunkenbrod saw the defendant and Elizabeth Valera walking in the airport parking lot, at which time Valera had a leather or vinyl jacket draped over her arm. The defendant and Valera left the parking lot two or three minutes after going over to the James vehicle. Valera no longer had the jacket and she was carrying a yellow manila envelope. Trunkenbrod then followed the defendant and Valera into the airport, where he observed the defendant make a phone call. Valera and the defendant then went into a restaurant in the terminal and then to a gift shop where the defendant left Valera. Trunkenbrod followed the defendant back to the James vehicle and he followed the James vehicle back to Ottawa.

On cross-examination, Trunkenbrod testified that although he followed the defendant and James from Ottawa to Midway airport, he did not know whether or not the defendant had a brown leather jacket with him. Trunkenbrod did not put in his report that he saw Valera carrying a brown jacket, although he knew that cocaine had been found in a jacket at the time he wrote the report.

Kenneth Hanford was also a member of the drug task force. On September 17, 1989, he was assigned to conduct surveillance on the James vehicle, which he followed from Ottawa to the Midway airport parking lot. Thereafter, he lost sight of the defendant and did not see him again until 20 minutes later in the airport terminal. During that 20-minute period, no one on the investigative team knew the defendant’s whereabouts. Hanford later left the terminal and proceeded to take up surveillance of the James vehicle. The next thing he recalls happening is the James vehicle leaving the parking lot and going back to Ottawa, where he participated in the arrest of the defendant.

James Girton, another member of the drug task force, testified that he was part of the surveillance team and he arrived at Midway airport at 3 p.m. When Girton arrived he went to the James vehicle, where James showed him the cocaine in the coat. He then entered the airport and observed the defendant and Valera at a restaurant and later at a gift shop. The defendant left the airport and Girton went to gate 7A of Southwest Airlines, where Valera was standing in a check-in line, at which time he confronted Valera along with Officers Strack and Johnson. Girton then left the airport and returned to Ottawa. He participated in the arrest of the defendant and searched the coat the defendant was carrying after leaving James’ vehicle. Girton found a plastic bag containing cocaine in a pocket of the coat.

Greg Johnson, another member of the drug task force, also followed the James vehicle to Midway airport. Johnson entered the airport terminal and saw the defendant 15 or 20 minutes later talking on the phone. Johnson later observed the defendant and Valera at a restaurant and a gift shop. Johnson left the area to answer a page, and the next time he saw Valera, she was standing in line at gate A-7 of Southwest Airlines. He then approached Valera and took her to a security office where she produced an airline ticket. Johnson searched Valera’s purse and found a yellow Hallmark bag which contained money.

On cross-examination, Johnson testified that he lost sight of the defendant when he left the lobby area and had no idea where the defendant was for 25 minutes. The next time he saw the defendant was when defendant was with Valera in the terminal at the restaurant and gift shop. At no time did he see Valera hand anything to the defendant. Johnson never saw Valera get off an airplane and he had no idea how she got to the airport. Although Johnson found what appeared to be a Southwest Airlines ticket, he did nothing to verify that the ticket had actually been issued by the airline.

Rodney Strack, yet another member of the drug task force, was the final witness to testify. Strack approached Valera as she stood in a departure line at Southwest Airlines and escorted her to a security office where Valera consented to a search of her purse and jacket. Valera produced an airline ticket issued in her name indicating passage on a flight from Houston to Midway and a return flight to Houston that same day. Inside Valera’s purse was a yellow Hallmark bag containing $3,270 in currency. One thousand dollars was identified as the same money given to Charlene Bennett by the police which she subsequently gave to the defendant on September 16,1989.

On cross-examination, Strack testified that when he searched Valera’s purse he did not find any type of boarding pass and Strack did not know if the ticket Valera had was valid. Strack had no knowledge of how Valera arrived at the airport that day nor did he ever see Valera hand anything to the defendant.

In addition to the testimony presented above, the parties stipulated that the bag found in the jacket pocket contained 122 grams of 94% pure cocaine. After defendant’s motion for a directed verdict was denied, the defense rested without presenting any evidence. The trial court found the defendant guilty on each count of the indictment.

The defendant first contends that he was not proved guilty beyond a reasonable doubt of controlled substance trafficking. Defendant argues that there was insufficient evidence to show that the cocaine came from outside the State, that the trial court improperly relied upon the unauthenticated airline ticket held by Valera, and that the State failed to prove that the offense was committed in La Salle County. We find that the State failed to prove that the offense of controlled substance trafficking was committed in La Salle County and we reverse on that ground.

“In Illinois, venue is a material allegation which must be proved beyond a reasonable doubt along with the other elements of an offense.” (People v. Hagan (1991), 145 Ill. 2d 287, 300, 583 N.E.2d 494, 500.) Venue may be proved by either direct or circumstantial evidence. (People v. Nash (1991), 221 Ill. App. 3d 544, 582 N.E.2d 308.) To determine where an offense was committed for purposes of venue, a court must determine where the acts which constitute the offense occurred. (Hagan, 145 Ill. 2d 287, 583 N.E.2d 494.) The elements of controlled substance trafficking, as charged in the indictment, are: (1) knowingly causing to be brought into this State; (2) with the intent to deliver; (3) a controlled substance. Ill. Rev. Stat. 1989, ch. 56½, par. 1401.1(a); see People v. Frieberg (1992), 147 Ill. 2d 326, 589 N.E.2d 508.

The State argues that the offense was committed in La Salle County because the evidence shows that Ottawa was the defendant’s “base of operations” and that he intended to deliver the cocaine to Bennett and James in Ottawa. We note, however, that delivery is not an element of the offense and “intent to deliver” simply describes the mental state which must be proved to sustain a conviction. We believe that the critical element for venue purposes in a prosecution for controlled substance trafficking is where the defendant committed the act of causing the drugs to be brought into the State. While the circumstances of defendant’s meeting with Valera at Midway could give rise to a reasonable inference that defendant arranged to have Valera deliver the cocaine, there is no indication of how, when or where such an arrangement was made. In short, the State failed to present any evidence that the defendant was in La Salle County when he contacted his source of cocaine and arranged to have Valera bring the drugs into Midway airport. Under these circumstances we find that the State failed to prove that the offense was committed in La Salle County, and we reverse defendant’s conviction for controlled substance trafficking and vacate his sentence for that offense. We note parenthetically that the venue provision of the Criminal Code has been amended to permit a person charged with controlled substance trafficking to be tried in any county. (Ill. Rev. Stat. 1991, ch. 38, par. 1—6(r).) The amendment is not applicable to this defendant, however, since it did not take effect until January 1,1992.

The defendant also contends that he was improperly convicted of calculated criminal drug conspiracy because one of the alleged conspirators was an agent of the State. A person commits the offense of calculated criminal drug conspiracy when: (1) he violates any of the provisions of subsection a or b of section 401 (manufacture or delivery, or possession with intent to manufacture or deliver certain controlled substances, including cocaine) or subsection a of section 402 (possession of controlled substances); (2) the violation is part of a conspiracy undertaken or carried on with two or more other persons; and (3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy. (Ill. Rev. Stat. 1989, ch. 56½, par. 1405(b).) The indictment charged that on or about September 17, 1989, the defendant conspired with Elizabeth Valera and Charlene Bennett to possess cocaine with the intent to deliver and he received more than $500 from the conspiracy. Defendant argues that the evidence clearly shows that Charlene Bennett was acting as an agent of the State prior to September 17 and therefore she could not have been the third conspirator necessary to prove a calculated criminal drug conspiracy. We agree.

A principal distinguishing feature of a calculated criminal drug conspiracy is that it requires a minimum of three conspirators while a simple conspiracy requires only two. (People v. Harmison (1984), 124 Ill. App. 3d 236, 463 N.E.2d 1373, affd (1985), 108 Ill. 2d 197, 483 N.E,2d 508.) To prove a calculated criminal drug conspiracy, the State múst establish that all three conspirators agreed together to the commission of the same offense. (People v. Melgoza (1992), 231 Ill. App. 3d 510, 595 N.E.2d 1261.) In People v. Foster (1983), 99 Ill. 2d 48, 457 N.E.2d 405, our supreme court affirmed the reversal of a defendant’s conviction for simple conspiracy where the other party to the alleged conspiracy only feigned agreement and informed the police of the defendant’s plan to commit robbery. The court held that the conspiracy statute encompassed a bilateral theory which required the agreement of at least two persons to support a conviction. The bilateral theory also applies to the calculated criminal drug conspiracy statute and requires that the defendant agree with two or more other persons. People v. Harmison (1985), 108 Ill. 2d 197, 483 N.E.2d 508.

It is clear that Bennett did not agree with the defendant or Valera to commit an offense on September 17, 1989. Bennett was arrested on September 15 and attempted to set up a controlled buy while wearing a recording device on September 16. It is evident that any “agreement” between the defendant and Bennett regarding the September 17 delivery was merely a ruse by Bennett. The State maintains, however, that the defendant was involved in a continuing conspiracy with Bennett and Valera to sell cocaine. While that may be true, the basis of the calculated criminal drug conspiracy indictment was the defendant’s possession of the cocaine delivered on September 17, not some other uncharged and unspecified offense. “To sustain a conviction for conspiracy, the object of the conspiracy has to be proved as laid out in the indictment.” (People v. McChristian (1974), 18 Ill. App. 3d 87, 90, 309 N.E.2d 388, 391, affd sub nom. People v. Bailey (1975), 60 Ill. 2d 37, 322 N.E.2d 804.) “It is not sufficient to sustain a conviction on a particular charge to prove that the defendant is guilty of some other charge or of generally bad and criminal conduct, but the proof must establish his guilt of a particular charge in the indictment.” (People v. Mader (1924), 313 Ill. 277, 285, 145 N.E. 137, 140.) We find that there was insufficient proof of a genuine agreement between the defendant, Bennett and Valera as charged in the indictment. The defendant’s conviction for calculated criminal drug conspiracy is reversed and his sentence for that offense is vacated.

The defendant next maintains that his conviction for simple conspiracy was barred by Wharton’s Rule or was preempted by the calculated criminal drug conspiracy statute. Defendant was charged with conspiracy by agreeing with Elizabeth Valera to deliver a controlled substance. The indictment alleged that as an act in furtherance of their agreement defendant gave Valera $3,270 in exchange for 120 grams of cocaine. Although defendant was found guilty of this offense, no judgment or sentence was entered because the trial court found that the conspiracy charge merged into the conviction for calculated criminal drug conspiracy.

The State, citing People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223, argues that the defendant may not appeal his conspiracy conviction because the final judgment in a criminal case is the sentence, and absent the imposition of a sentence, no appeal can be heard. We find, however, that the situation in this case is similar to that presented in People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540. In Scott the defendant was found guilty of two counts of armed robbery and one count each of rape, aggravated battery and aggravated kidnapping. The trial court found that the aggravated kidnapping conviction merged into the rape conviction and imposed no sentence on the kidnapping charge. The appellate court affirmed the defendant’s convictions but remanded the cause to the circuit court for entry of a sentence on the aggravated kidnapping conviction. Before the supreme court, the defendant contended that the appellate court exceeded its powers in remanding the case for imposition of a sentence on the aggravated kidnapping charge. The court stated:

“[T]he question presented is whether, having before it the defendant’s appeal seeking reversal of the conviction for aggravated kidnapping, the appellate court was empowered to remand the cause for imposition of sentence. *** [W]e hold that in remanding the cause to the circuit court for entry of a sentence on the aggravated kidnapping conviction the appellate court acted with the scope of its powers.” (Scott, 69 Ill. 2d at 87-88, 370 N.E.2d at 542.)

(See also People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) Based on Scott and Dixon we find that the issue of defendant’s conspiracy conviction is properly before this court.

Defendant first contends that his conspiracy conviction was barred by Wharton’s Rule. Wharton’s Rule provides that an agreement by two people to commit a crime cannot be prosecuted as a conspiracy when the crime necessarily requires the participation of two people for its commission. (Iannelli v. United States (1975), 420 U.S. 770, 43 L. Ed. 2d 616, 95 S. Ct. 1284.) The rule currently has vitality only as a judicial presumption to be applied in the absence of legislative intent to the contrary. (Iannelli, 420 U.S. at 782, 43 L. Ed. 2d at 625, 95 S. Ct. at 1292; People v. Melgoza (1992), 231 Ill. App. 3d 510, 595 N.E.2d 1261; People v. Laws (1991), 224 Ill. App. 3d 167, 586 N.E.2d 453, appeal allowed (1992), 145 Ill. 2d 640, 596 N.E.2d 634.) The committee comments to the conspiracy statute demonstrate that the statute was intended to eliminate Wharton’s Rule:

“Since, under 8—2(a), conspiracy is committed when (with the required intent) there is an agreement to commit any offense, this eliminates in Illinois the application of the so-called ‘Wharton Rule’ in conspiracy, which says that if the object of the agreement is a crime which (by its very nature) requires two or more persons to commit it, then the agreement does not amount to conspiracy because no greater danger is presented by the plurality of actors in the conspiracy than would be presented to the community in the commission of the principal offense. (E.g., gambling at cards, dueling, bigamy, etc.) (See People v. Purcell, 304 Ill. App. 215, 26 N.E.2d 153 (1940).) The Committee felt that the Wharton Rule fails to take into account the preventive aspect of prosecuting conspiracies, that is, to discourage the more dangerous criminal activity of several persons by punishing the preliminary agreement to engage in such activity. That the criminal activity is of such nature as to inevitably require more than one person in its accomplishment seems the more reason to punish the preliminary agreement to undertake it. Section 8—2 is intended to abrogate the Wharton Rule in Illinois, and the holding in People v. Purcell, supra.” (Emphasis added.) Ill. Ann. Stat., ch. 38, par. 8—2, Committee Comments, at 474 (Smith-Hurd 1989).

Despite this manifestation of legislative intent, this court affirmed the dismissal of an indictment for conspiracy to deliver cannabis on the basis of Wharton’s Rule in People v. Urban (1990), 196 Ill. App. 3d 310, 553 N.E.2d 740. Urban did not note the nature of the rule as a judicial presumption, nor did it refer to the committee comments set out above. Under the circumstances, we believe that Urban should be limited to its facts, and we hold that defendant’s conspiracy conviction in this case was not barred by Wharton’s Rule. See Melgoza, 231 Ill. App. 3d 510, 595 N.E.2d 1261 (finding that the legislative intent expressed in the conspiracy statute defeated the presumption of Wharton’s Rule); Laws, 224 Ill. App. 3d 167, 586 N.E.2d 453 (declining to follow Urban).

The defendant also contends that the calculated criminal drug conspiracy statute preempts the general conspiracy statute, again relying on Urban, as well as People v. Caryl (1977), 54 Ill. App. 3d 537, 369 N.E.2d 926, and People v. Taylor (1974), 18 Ill. App. 3d 480, 309 N.E.2d 595. In Taylor, the court held that section 9 of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56½, par. 709) preempted the general conspiracy provision of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 8—2). Section 9 defines the offense of calculated criminal cannabis conspiracy, which consists of substantially the same elements comprising the offense of calculated criminal drug conspiracy. The Taylor court held that the Cannabis Control Act preempted any conspiracy charge involving cannabis even though section 9 did not apply to a conspiracy involving less than 30 grams or more than 500 grams of cannabis.

In Caryl, the defendants were indicted under the general conspiracy statute for conspiracy to deliver more than 10 grams but not more than 30 grams of cannabis. In reversing the dismissal of the indictment, the Caryl court expressed its disagreement with Taylor and stated:

“The cannabis conspiracy statute is specific as to the quantities it speaks to, and it excludes other conspiracy prosecution within those quantities; however, it is our opinion that it was not the legislature’s intention to exclude the quantities in question from conspiracy prosecution. Absent section 9 of the Act, the general criminal conspiracy statute would apply to all cannabis conspiracies. With section 9, the general criminal conspiracy statute cannot apply where the specific statute speaks, but we hold that it still applies where the specific statute is silent.” Caryl, 54 Ill. App. 3d at 539, 369 N.E.2d at 927.

We agree with the reasoning of the Caryl court that a specific statute, such as the calculated criminal drug conspiracy statute at issue here, preempts a prosecution under the general conspiracy statute only to the extent the specific statute is applicable. In this case, while the amount of cocaine falls within the ambit of the calculated criminal drug conspiracy statute, that statute is nevertheless inapplicable because this conspiracy involved only two people. As we indicated earlier, a conviction under the calculated criminal drug conspiracy statute requires a minimum of three conspirators. Since the specific statute is silent with regard to a conspiracy involving only two persons, we hold that such a conspiracy may be prosecuted under the general conspiracy statute. (See Melgoza, 231 Ill. App. 3d 510, 595 N.E.2d 1261 (Cannabis Control Act did not preempt general conspiracy statute where alleged conspiracy involved only two people).) We note that this court’s decision in Urban, which found that the Cannabis Control Act preempted the general conspiracy statute, is consistent with our decision here, since the conspiracy charge in Urban involved three people. (Urban, 196 Ill. App. 3d 310, 553 N.E.2d 740.) The defendant’s conviction for conspiracy to deliver a controlled substance is affirmed and the cause is remanded to the circuit court for sentencing on that offense. (See Scott, 69 Ill. 2d 85, 370 N.E.2d 540.) In addition, since defendant has not challenged his conviction for possession of a controlled substance with intent to deliver, it is also affirmed.

Defendant next argues that the sentences imposed upon him are “disproportionately excessive.” Because we have vacated defendant’s sentences for controlled substance trafficking and calculated criminal drug conspiracy, we only consider defendant’s 25-year sentence of imprisonment for possession of a controlled substance with intent to deliver. While not entirely clear, the defendant does not appear to argue that the trial court abused its discretion in imposing a 25-year term. Rather, defendant apparently contends that the range of penalties established by the legislature for the instant offense is disproportionate in comparison to the potential penalties for such offenses as first degree murder, armed robbery and criminal sexual assault. According to defendant, these latter offenses “arguably *** constitute a greater threat to the public well being.”

The legislature has the constitutional power to define conduct constituting a crime and to specify the nature and extent of punishment for a particular offense. (People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) In exercising this power, however, the Illinois Constitution requires the legislature to consider the goals of restoring an offender to useful citizenship and of determining penalties in accordance with the seriousness of the offense. (Ill. Const. 1970, art. I, §11; People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.) Because the legislature is more capable than the courts of gauging the seriousness of various offenses (Steppan, 105 Ill. 2d 310, 473 N.E.2d 1300), its judgment with respect to criminal penalties will not be interfered with by the courts unless the punishment is cruel, degrading or so wholly disproportionate to the offense that it shocks the moral sense of the community (Steppan, 105 Ill. 2d 310, 473 N.E.2d 1300; People v. Castro (1987), 151 Ill. App. 3d 664, 503 N.E.2d 376).

The sentencing range for possession with intent to deliver more than 100 grams but less than 400 grams of cocaine is 9 to 40 years. (See Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(B).) We do not find that such a penalty is disproportionate to the seriousness of the offense. Possession, use and distribution of illegal drugs has been said to represent one of the greatest problems affecting the welfare of our society. (Harmelin v. Michigan (1991), 501 U.S. 957, 996, 115 L. Ed. 2d 836, 870, 111 S. Ct. 2680, 2705 (Kennedy, J., concurring in part, joined by O’Connor and Souter, JJ.).) Although the defendant perceives murder, armed robbery and sexual assault as more serious threats to the public, the legislature’s determination that certain drug offenses, present similar or greater dangers is reasonable in view of the “direct nexus between illegal drugs and crimes of violence” (Harmelin, 501 U.S. at 996, 115 L. Ed. 2d at 870, 111 S. Ct. at 2706).

Finally, in the event that we may have misperceived the defendant’s argument regarding his sentence, we consider whether the trial court abused its discretion. It is the trial court’s task to fashion a sentence which strikes the appropriate balance between protection of society and rehabilitation of the defendant (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541) and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). Our review of the record indicates that the court considered the presentence investigation report and the relevant statutory factors in aggravation and mitigation. In particular, the court noted the defendant’s prior drug-related conviction, the need to deter others, the character and attitude of the defendant and the hardship imposed upon defendant's family. We find no abuse of discretion, and we affirm the defendant’s sentence of 25 years’ imprisonment for possession of a controlled substance with intent to deliver. Cf. People v. Bradford (1989), 187 Ill. App. 3d 903, 543 N.E.2d 918.

For the reasons stated above, we affirm the defendant’s conviction and sentence for possession of a controlled substance with intent to deliver. We also affirm the defendant’s conviction for simple conspiracy and remand to the trial court for sentencing on that offense. The defendant’s convictions for controlled substance trafficking and calculated criminal drug conspiracy are reversed and his sentences for those offenses are vacated.

Affirmed in part; reversed in part and remanded.

McCUSKEY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBBIE BLOMMAERT, Defendant-Appellant.
    Third District
    No. 3-91-0967
    Opinion filed November 30, 1992.

      Frederick F. Cohn, of Chicago, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Debbie Blommaert was convicted of murdering her 10-month-old adopted infant. This court affirmed on direct appeal. (People v. Blommaert (1989), 184 Ill. App. 3d 1065, 541 N.E.2d 144.) She now appeals from the denial of her petition for post-conviction relief, which alleged ineffective assistance of counsel. We find that defendant was denied her constitutional right to effective assistance of counsel. Accordingly, we reverse her conviction and remand for a new trial.

The facts adduced at trial are fully laid out in this court’s prior opinion. In a nutshell, the evidence showed that the infant died from blunt trauma to the head. Defendant claimed that the injury occurred when the infant fell down and struck her head on the floor. There was conflicting expert medical testimony as to whether such a fall could have caused the injury. There was also evidence that the child had received bruises on prior occasions. A jury found defendant guilty of first-degree murder and she was sentenced to 20 years’ imprisonment.

Defendant then filed a post-conviction petition, alleging that she had been denied effective assistance of counsel. Blommaert’s first claim is that trial counsel was ineffective for failing to investigate evidence which might have raised a reasonable doubt as to her guilt. In particular, defendant argues that her attorney failed to investigate medical evidence which purports to show that the victim’s four-year-old sibling, Justin, could have been the one who caused the fatal injuries.

Defendant’s second assignment of error is that her attorney was incompetent for advising her to reject an offer to plead guilty to involuntary manslaughter. Blommaert contends that trial counsel grossly misinformed her as to the potential penalties she faced if convicted of murder and also wrongly advised her that she would permanently lose parental rights to the surviving child if she pled guilty.

The circuit court held a hearing on defendant’s petition. Much of the evidence presented there focused on defendant’s theory that Justin could have been responsible for the victim’s injuries.

Dr. John Kenney, a forensic odontologist, testified that he had examined the victim’s body at the request of the Cook County medical examiner’s office prior to trial. His review revealed several bite marks which were caused by Justin. Dr. Kenney authored a report to that effect. The report was available to defense counsel, but no one from the defense contacted Dr. Kenney.

At the post-conviction hearing, Dr. Kenney testified that such bites indicate that Justin bit the infant aggressively and violently. He further testified that there is medical evidence which shows that young siblings may cause the death of infants.

Dr. Mitra Kalelkar, the medical examiner who performed the autopsy, testified that she was aware of the studies regarding violence among siblings and did not dispute their accuracy. Dr. Kalelkar had testified at trial but had not been interviewed prior to the trial by defense counsel.

Defendant’s trial counsel, Joseph R. Mazzone, also testified at the hearing. He stated that his decision not to pursue any investigation into the possibility that Justin killed the infant was based upon his discussions with family members and his discussions with defendant’s medical expert witness.

The second basis which Blommaert asserted in support of her claim of ineffective assistance of counsel was that Mazzone had wrongly advised her to reject a plea offer and prevented her from making an informed decision on the offer because she was given incorrect information by her counsel. During the trial, the State offered defendant the opportunity to plead guilty to involuntary manslaughter. Blommaert contends that Mazzone informed her that if she were convicted of murder, she would probably only serve two to three years. Blommaert also alleges that Mazzone told her that she would permanently lose parental rights to Justin if she pled guilty.

In support of this contention, Blommaert introduced a phone conversation between her husband Ron and Mazzone, which Ron Blommaert had surreptitiously tape recorded. During that conversation, Mazzone did indicate that he thought defendant would be up for parole in one year and could be out in two to three years. This conversation took place after the conviction but before the hearing on the post-conviction petition.

After hearing all the evidence, the trial court denied defendant’s request for post-conviction relief. Defendant now appeals.

The first issue is whether attorney Mazzone rendered ineffective assistance by failing to investigate the possibility that Justin caused the death of the infant.

At a hearing under the Post-Conviction Act (Ill. Rev. Stat. 1991, ch. 38, par. 122—1 et seq.), the burden is on the defendant to establish a substantial deprivation of constitutional rights, and this court cannot reverse the denial of a petition for post-conviction relief unless it is manifestly erroneous. People v. Griffin (1985), 109 Ill. 2d 293, 487 N.E.2d 599.

The defendant must satisfy a two-prong test in order to establish ineffective assistance of counsel. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) First, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense, i.e., that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s ineffective representation. The defendant must overcome a strong presumption that counsel’s conduct fell within a wide range of acceptable behavior. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

Defendant contends that Mazzone’s failure to investigate the bite-mark evidence amounted to deficient representation. She argues that evidence that Justin could have killed the infant would have raised a reasonable doubt at trial as to her guilt.

The testimony presented at the post-conviction hearing reveals that Mazzone was aware of the bite-mark evidence. Mazzone stated that his decision not to pursue any further investigation into that matter was based on his discussion with defendant, her family and her friends.

A reviewing court must evaluate counsel’s performance from counsel’s perspective at the time. (People v. Wright (1992), 149 Ill. 2d 36, 594 N.E.2d 276.) In determining whether counsel conducted adequate pretrial investigation, the Supreme Court noted that

“strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Under this standard, trial counsel’s decisions were not unreasonable and did not prevent Blommaert from receiving a fair trial. Mazzone was able to present a zealous defense and was able to “make the adversarial process work in the particular case.” (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) Defendant has not met her burden of showing that counsel’s conduct was deficient and that she was prejudiced by that deficiency. The trial court’s ruling on this issue is not against the manifest weight of the evidence.

The second issue on appeal is whether defendant was denied effective assistance based on Mazzone’s advice to reject the plea bargain. Defendant was offered the opportunity to plead guilty to involuntary manslaughter but rejected it on advice of counsel. This offer came during the State’s case in chief just prior to Dr. Kalelkar’s testimony. Blommaert also argues that defense counsel should have tendered an involuntary manslaughter jury instruction at trial.

Initially, Blommaert alleges that Mazzone grossly misinformed her as to the potential penalty for a murder conviction. Blommaert, her husband, and her mother all testified that Mazzone told them that if defendant was convicted, she would be eligible for parole within one year and that she could be released in two to three years. Under applicable law, the minimum sentence was actually 20 years, with a possibility of release after 10 years of day-for-day credit for good behavior. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005—8—1(a)(1), 1003—6—3.) Blommaert also alleges that Mazzone wrongly informed her that she would be eligible for work-release programs while in prison. Under Department of Corrections policies, those programs are not available to persons convicted of first-degree murder. (See 20 Ill. Adm. Code §455.10 et seq. (1992).) Blommaert avers that, had she known the actual sentence for first-degree murder, she would have accepted the State’s offer to plead guilty to involuntary manslaughter, an offense which is probationable.

On a related note, defendant argues that Mazzone was ineffective for failing to tender an involuntary manslaughter instruction at trial. At the post-conviction hearing, Mazzone testified that it was defendant’s decision not to tender the lesser-offense instruction. He claims that she wanted to “roll-the-dice” for either acquittal or conviction, without the possibility of a compromise verdict.

Blommaert also alleges that Mazzone told her that if she pleaded guilty or if she was found guilty, she would automatically lose parental rights to Justin. In reality, there is no such automatic provision. Instead, that would involve a separate proceeding and separate proof and could in no way be characterized as automatic. Based on Mazzone’s advice, Blommaert alleges that she was faced with the prospect of losing her child even if she accepted the lesser offense. Under those circumstances, she elected to gamble on the complete acquittal.

The decision whether to enter a plea is ultimately the defendant’s. (2 W. LaFave & J. Israel, Criminal Procedure §11.6 (1984); I ABA Standards for Criminal Justice §4—5.2(a)(i) (2d ed. 1980).) A defendant always has the right to refuse to plead to a lesser offense in the hopes of a full acquittal at trial. However, such a decision must be knowingly made after being fully and fairly informed of the consequences of pleading.

The decision whether to pursue a lesser offense, like the decision to plead, can only be made by the defendant after full and fair disclosure as to the potential consequences. Here, Mazzone had told Blommaert that a conviction would only mean two to three years in prison. When faced with the alternatives of outright acquittal or a short prison term, it is understandable that defendant might want to gamble on the acquittal, instead of offering the jury a third choice.

This court recently faced a similar situation in another case involving ineffective assistance of counsel. (People v. Brocksmith (1992), 237 Ill. App. 3d 818.) There, defendant was charged with the felony offense of theft by deception, but was convicted of the misdemeanor offense of deceptive practices. The jury instruction on deceptive practices had been tendered by defense counsel, despite the fact that the statute of limitations had run on the misdemeanor offense. Counsel never informed defendant that the limitations period had expired. Defendant argued that counsel was ineffective for tendering an instruction on a lesser offense without consulting defendant. This court held that it was ineffective assistance for an attorney to unilaterally tender a lesser offense instruction for an offense for which the statute of limitations had expired without the informed consent of defendant.

The ABA Standards for Criminal Justice are instructive on this issue. While there is no bright-line test for determining ineffectiveness, the United States Supreme Court has recognized that the ABA Standards are helpful as guides in determining what is reasonable conduct. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308.

The ABA Standards provide, inter alia, that the decision what plea to enter is a decision which is to be made by the accused after full consultation with counsel. (I ABA Standards for Criminal Justice §4—5.2(a)(i) (2d ed. 1980).) The ABA Standards also state that a lawyer should fully inform himself on the facts and the law and then candidly advise the accused concerning all aspects of the case, including a candid estimate of the probable outcome. (I ABA Standards for Criminal Justice §4—5.1(a) (2d ed. 1980).) Specifically, the commentary to that section notes:

“The decision to plead guilty can be an intelligent one only if the defendant has been advised fully as to his or her rights and as to the probable outcomes of the alternative choices. ***
*** Counsel should inform the defendant of the maximum and minimum sentences that can be imposed, but counsel should also be aware of the actual sentencing practices of the court and advise the defendant, when that is possible, what sentence is likely.”

Similarly, the ABA Standards state that the decision as to whether to seek submission to the jury of a lesser included offense is one to be made by the defendant after full consultation with defense counsel. I ABA Standards for Criminal Justice §4—5.2, Commentary (2d ed. 1980).

The evidence presented at the post-conviction hearing shows that Mazzone was deficient in his knowledge of the possible sentences for the crimes. He admits telling his client that she would be up for parole in one year and possibly be out in two to three years. At the hearing, he attempted to characterize that as a personal opinion, not legal advice. He testified that if Blommaert had asked about potential sentences, he would have then looked up the appropriate statute sections. This evidence clearly reveals that Mazzone was deficient in his knowledge of the law.

This is not a case where counsel correctly informed defendant of the range of possible sentences, then merely incorrectly predicted that a certain sentence would be imposed. Instead, counsel failed to understand the possible sentences and thus wrongly informed defendant as to the possible range of sentences, telling her that she could be out of prison in a fraction of the actual minimum time. He told her that she might be eligible for work-release, when in fact such options are closed to a person convicted of first-degree murder. He misled her as to the possibility of her losing parental rights to her son.

Mazzone did not fulfill his obligation of fully informing Blommaert as to the ramifications of accepting or rejecting the plea agreement, thus causing her to reject the plea. Similarly, Blommaert’s ignorance of the law led her to not seek an involuntary manslaughter instruction at trial.

Neither of Blommaert’s decisions can be characterized as having been intelligently made after full consultation with counsel. We find that she has met her burden of showing (1) that counsel’s conduct fell beneath an objective standard of reasonableness, and (2) that she was prejudiced by counsel’s deficient performance. Accordingly, we hold that defendant was denied her constitutional right to effective assistance of counsel. We reverse her conviction and remand for a new trial.

Reversed and remanded.

McCUSKEY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACK BROCKSMITH, Defendant-Appellant.
    Third District
    Nos. 3—90—0530, 3—91—0780 cons.
    Opinion filed December 1, 1992.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael J. Herr, State’s Attorney, of Aledo (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant was charged by information with one count of the felony offense of theft by deception. He was convicted, however, of the misdemeanor offense of deceptive practices as a lesser included offense of theft by deception. On appeal, he argues that deceptive practices is not a lesser included offense of theft by deception. In the alternative, he argues that the statute of limitations had run on the offense of deceptive practices. His direct appeal has been consolidated with his appeal from the denial of his post-conviction petition.

Jack Brocksmith was an insurance broker who met Blanche Littrell in 1980. On April 4, 1985, Littrell gave Brocksmith a check in the amount of $10,000. According to Littrell, defendant said that there were insurance companies starting up an investment which would pay her 15% interest. As evidence of this, Brocksmith gave Littrell a certificate which was due on October 4, 1985, at which time Littrell could demand $10,000 plus 15% interest, or could demand just the interest, or could extend the tender for additional interest.

Littrell entered into similar transactions with defendant on April 25, 1985, May 18, 1985, September 12, 1985, October 22, 1985, and July 17, 1986. The total of all these investments was $75,000. Each transaction took place in Littrell’s home. Littrell renewed the investments, including the accrued interest, at various times.

On March 25, 1986, Littrell signed a document which acknowledged that she had tendered to defendant a total of $68,000 by that date. The document indicated that Littrell understood the nature and provisions of the financial arrangement between herself and defendant, that no third party was involved, and that the money was secured by assignment of defendant’s $50,000 life insurance policy, which named Littrell as beneficiary. At trial, Littrell was shown a copy of the assignment of life insurance, which she had signed on June 23, 1986. She did not recall signing the document and claimed that she was unaware of the existence of the insurance policy prior to trial.

In July 1988, Littrell wrote to defendant asking for $50,000, because she needed to make house repairs. Brocksmith, who then lived in Utah with his son and daughter, wrote her back, stating that since they were 1,000 miles apart, she should contact his attorney, Michael Metnick, in Springfield, whom defendant had hired to represent him in his business relationships. Littrell and Metnick exchanged letters, but no money was returned.

In May 1989, defendant contacted Littrell and urged her to work out a repayment schedule with Metnick. Letters were again exchanged, but defendant never got any of her money back. Nor did she ever hear from Brocksmith again.

Brocksmith testified that he ran an insurance agency which represented a variety of companies. Brocksmith stated that he had met Littrell when he had sold her parents some insurance policies and had become friends with her. He stated that she had given him the money as a personal loan for business purposes.

In 1984, he decided to expand his business and took several steps towards that goal, including renting a larger building and hiring additional staff.

At some point defendant was visiting with Littrell in her home and discussed the fact that his expansion was hampered by his inability to obtain a loan. According to Brocksmith, Littrell then offered to lend him the money, which he used for payroll and office bills.

In 1986, defendant suffered some setbacks which adversely affected his business. He testified that he had Littrell sign the document in March of 1986 to show that she understood the nature of their relationship, i.e., that he was the investment and that there was no third party involved.

The case was then submitted to the jury. At the request of defense counsel, the jury was instructed on the offense of deceptive practices, in addition to the charged offense of theft by deception. During deliberations, the jury asked the court to define “intent to defraud.” The court responded with the statutory definition. (Ill. Rev. Stat. 1991, ch. 38, par. 17—1(A) (iii).) The jury then found defendant not guilty of theft by deception but guilty of deceptive practices.

Defendant filed a post-trial motion alleging that deceptive practices is not a lesser included offense of theft in that theft does not contain as an element the intent to defraud. The court denied that motion.

At the sentencing hearing, it was shown that defendant currently had no assets and his house had been repossessed. The State commented that it would be fruitless to order restitution and made no request because of defendant’s inability to pay.

The trial court, however, included restitution in the sentence, ordering Brocksmith to pay 15% of his gross monthly income from every source commencing August 1, 1990. His obligation would terminate upon full repayment of the $75,000 or on July 25, 1995. The court also ordered defendant to reimburse the county for the services of the public defender. This requires defendant to pay 5% of his gross monthly income to the clerk until he had paid $3,115. The court found that defendant had no present ability to pay a fine so it did not impose one. Brocksmith was also sentenced to 364 days in jail, with credit for the 379 days he had already served.

Defendant filed a timely notice of appeal (No. 3—90—0530). On defendant’s motion, this court stayed the payment provisions of the order. Subsequently, this court held the direct appeal in abeyance pending the outcome of the post-conviction petition.

Defendant filed a pro se petition for post-conviction relief in January 1991. He alleged that the statute of limitations had expired on the offense of deceptive practices and that his attorney had failed to so inform him. He also stated that he did not authorize his attorney to tender the instruction on deceptive practices and, accordingly, he could not be deemed to have waived the limitations period.

Eventually, defendant obtained counsel and filed an amended petition. In it, he alleged that his constitutional rights to due process, to equal protection, to effective assistance of counsel, to understand the nature of the accusation, to present a defense, and to make decisions regarding lesser included offenses had been violated.

In support of this petition, defendant filed affidavits from himself and his trial counsel. Trial counsel indicated that he had not discussed the statute of limitations on the misdemeanor deceptive practices with defendant since the felony period for theft had not expired and he thought that the felony period controlled.

Defendant averred that he had briefly discussed the deceptive practice jury instruction with counsel, but was not advised that the statute of limitations period had run. He was not asked to make a decision on the submission of the instruction and would not have agreed to it had he been so asked.

The State conceded that the misdemeanor conviction would have been precluded by the statute of limitations and that defense counsel was deficient in his knowledge of the law concerning the statute of limitations. The State, however, argued that defendant could not show prejudice.

A hearing was held in July 1991 at which time defendant was not present. Defendant was then incarcerated in a Federal institution on other charges. The parties noted that there had been some difficulty in getting the Federal institution to honor the habeas corpus issued by the Illinois court. Consequently, the parties agreed to hear only matters of law. The trial court stated that it would hold an evidentiary hearing if it ruled against defendant. No hearing was held because the court accepted defendant’s allegations as true.

The trial court found that the statute of limitations had expired; that defense counsel had failed to discuss this matter with defendant; that defense counsel’s decision to tender the instruction was a trial tactic; and that defense counsel’s tendering of the instruction without first discussing it with defendant was not plain error.

Defendant appealed that order to this court (No. 3—91—0780). His two appeals were then consolidated.

The first issue on appeal is whether the conviction of deceptive practices was proper when the information only alleged theft by deception. The instruction on deceptive practices was given at the request of defense counsel.

A person commits theft by deception when he knowingly obtains by deception control over property of the owner, intending to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1991, ch. 38, par. 16—1(a)(2)(A).) A person commits deceptive practices when, with intent to defraud, he causes another, by deception or threat, to execute a document disposing of property or a document by which a pecuniary obligation is incurred. (Ill. Rev. Stat. 1991, ch. 38, par. 17—1(B)(a).) “Deception,” as it is used in both sections, is defined at section 15—4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 15—4).

Initially, the State asserts that defendant cannot attack the conviction when it was his attorney that submitted the instruction. There are cases which say that the defendant may not “contend that lesser offenses for which he has tendered instructions and verdict forms were not lesser-included offenses of that charged.” See, e.g., People v. Rachel (1984), 123 Ill. App. 3d 600, 606, 462 N.E.2d 959, 964.

However, in People v. Schmidt (1989), 126 Ill. 2d 179, 533 N.E.2d 898, the supreme court vacated a theft conviction where defendant had been indicted on burglary and defendant had requested the theft instruction. The fact that it was the defendant who requested the instruction is not clear from the supreme court’s opinion, but is evident in the appellate court’s opinion. (People v. Schmidt (1987), 161 Ill. App. 3d 278, 279, 514 N.E.2d 494, 495.) Even the Rachel court did say that a defendant could challenge instructions when it goes to competency of counsel. (Rachel, 123 Ill. App. 3d at 606, 462 N.E.2d at 964.) Defendant did include that argument in his post-conviction petition. Therefore, defendant can still attack the conviction. Given the procedural posture of this case, we will first address the question of whether deceptive practices is a lesser included offense of theft by deception, following which we will address the ineffective assistance of counsel claim.

No person may be convicted of an offense that he has not been charged with committing. (People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319.) However, an accused may be convicted of an offense not expressly included in the charging instrument if that offense is a “lesser included offense” of the offense expressly charged. (Schmidt, 126 Ill. 2d at 183, 533 N.E.2d at 900.) No Illinois court has addressed the issue of whether deceptive practices is a lesser included offense of theft by deception.

An included offense is defined by the Criminal Code as an offense which “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1991, ch. 38, par. 2—9(a).) In other words, a lesser included offense is “one composed of some, but not all, of the elements of the greater offense, and which does not have any element not included in the greater offense.” People v. Jones (1992), 149 Ill. 2d 288, 293, 595 N.E.2d 1071, 1073.

In Jones, the defendant was expressly charged with armed robbery, but was convicted of theft. The supreme court upheld that conviction. In reaching that decision, the supreme court looked to its prior opinion in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, for guidance. In Bryant, the defendant had been expressly charged with attempted burglary. The trial court had refused the defendant’s requested instruction on criminal damage to property. The supreme court reversed, finding that in that particular case, criminal damage to property was a lesser included offense of attempted burglary.

In both of those cases, the supreme court observed that the proper examination is not limited to a comparison of the statutory elements of the particular crimes but includes a consideration of the language of the charging instruments and the evidence presented at trial. (Jones, 149 Ill. 2d at 294, 595 N.E.2d at 1074; Bryant, 113 Ill. 2d at 503-04, 499 N.E.2d at 416; People v. Ross (1992), 226 Ill. App. 3d 392, 589 N.E.2d 854.) The court reasoned that it was not necessary that the indictment expressly allege all the elements of the lesser offense; instead, the indictment must set out the main outline of the lesser offense. (Jones, 149 Ill. 2d at 294, 595 N.E.2d at 404.) Additionally, the court looked to see if the evidence adduced at trial was sufficient to support a conviction on the lesser offense. Jones, 149 Ill. 2d at 295, 595 N.E.2d at 404.

Here, Brocksmith was charged by information, which alleged that he “committed the offense of theft in that the said defendant knowingly obtained, by deception, control over property of Blanche Littrell *** intending to deprive the owner permanently of the use and benefit of the property.” Defendant’s main contention is that deceptive practices requires proof of an intent to defraud and that no such element is necessary in theft.

While it is true that the statute does not list intent to defraud as an element of theft, the courts have assumed it to be there. In People v. Lighthall (1988), 175 Ill. App. 3d 700, 706, 530 N.E.2d 81, 84, the court, in affirming defendant’s conviction of theft by deception, stated:

“[T]he State must prove that the defendant acted with the specific intent to defraud the victim. [Citation.] Whether the specific intent to defraud exists is a question of fact and does not have to be proved by direct evidence. [Citations.] Since direct evidence of specific intent to defraud is so rarely available, circumstantial evidence may be sufficient to sustain a conviction. [Citation.] Thus, intent to defraud may be inferred from the facts and circumstances surrounding the transaction. [Citation.]”

That court relied on this court’s opinion in People v. Rolston (1983), 113 Ill. App. 3d 727, 731, 448 N.E.2d 965. There, this court discussed the fact that intent to defraud is a jury question and neither party disputed that it was an element.

The committee comments to both section 16 and section 17 of the Criminal Code are instructive on the issue. (Ill. Ann. Stat., ch. 38, arts. 16, 17, Committee Comments—1961, at 18, 232 (Smith-Hurd 1977).) The committee states that the two sections complement each other and that section 17 is intended to cover those lesser offenses not covered by section 16. Moreover, the statutory definition of “intent to defraud” includes “the specific intent to deceive or cheat.” Ill. Rev. Stat. 1991, ch. 38, par. 17—1(A) (iii).

Thus, even though the information here does not allege “intent to defraud,” that fact is not fatal to a conviction on deceptive practices. The charging instrument set out the main outline of the offense of deceptive practices. It sufficiently alleged the proscribed conduct, as well as implicitly alleging the required mental state. Additionally, Brocksmith’s conviction was sufficiently supported by the evidence introduced at trial. We therefore find that defendant’s conviction for deceptive practices was proper, despite the fact that he was only expressly charged with theft by deception.

Brocksmith next contends that the conviction should be reversed because the State failed to allege and prove an extension to or waiver of the misdemeanor statute of limitations.

Brocksmith was charged with theft by deception, which is governed by a three-year statute of limitations. (Ill. Rev. Stat. 1991, ch. 38, par. 3—5(b).) He was convicted of deceptive practice, which is governed by the 18-month period applicable to misdemeanors. Ill. Rev. Stat. 1991, ch. 38, par. 3—5(b).

The information was filed on June 28, 1989. It alleged that Brock-smith had illegally obtained the checks from Littrell between April 4, 1985, and July 17, 1986. Defendant contends, and the State concedes, that the statute of limitations on the deceptive practices charge had expired prior to the filing of the information.

The State argues that defendant waived the limitations period by tendering the instruction and by not objecting pre-trial. The trial court apparently agreed because it found that the limitations period had expired, but the court did not dismiss.

Defendant argues that he has a right to seek an instruction on an offense without waiving the limitations period. He contends that he has a right to have the jury consider his “theory of the case” even though no judgment could ultimately be entered on that charge.

We hold, however, that by submitting an instruction on the lesser offense, defendant waived the statute of limitations, subject to an ineffective assistance of counsel claim as discussed below. If a defendant wishes to seek a lesser offense and try for the possible compromise verdict, he must be willing to accept the consequences of that decision, even if it means conviction of a crime for which the statute of limitations has expired.

Therefore, on direct appeal, we affirm the defendant’s conviction for deceptive practices (No. 3—90—0530).

Turning now to defendant’s appeal from the denial of his post-conviction petition, we must address the issue of whether defendant was denied his constitutional right to effective assistance of counsel.

In his petition, Brocksmith contended that the statute of limitations for the misdemeanor had expired by the time the information was filed; that his attorney had submitted the instruction on the issue without defendant’s informed consent; and that trial counsel believed that the statutory period for the felony controlled.

The trial court found that defense counsel had not discussed the statute of limitations with Brocksmith. The court further found that that period had expired. The court then ruled that submission of the instruction was a trial tactic and that there was no ineffective assistance.

To establish ineffective assistance of counsel, defendant must satisfy a two-prong test. First, he must show that counsel’s representation fell below an objective standard of reasonableness. Second, he must show that the defense was prejudiced by the deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

In People v. Staton (1987), 154 Ill. App. 3d 230, 507 N.E.2d 62, the court found that trial counsel had rendered ineffective assistance. There, defendant was indicted on murder, armed robbery and home invasion. The statute of limitations had run on the latter two. The State argued that the period had not run because the two charges arose out of the underlying murder offense, which was not subject to a prosecutorial limitation period. The court rejected that argument and held that defense counsel was ineffective for failing to move to dismiss the two lesser charges. Part of its reasoning was that the failure to so move did not seem to be based upon a cohesive trial strategy.

In People v. Rachel (1984), 123 Ill. App. 3d 600, the defendant argued that he had been denied effective assistance when his attorney tendered a lesser offense instruction. The court rejected that claim, finding that it was a deliberate trial tactic to cause a compromise verdict and avoid the felony conviction. A similar result was reached in People v. Higgins (1992), 233 Ill. App. 3d 295, 598 N.E.2d 1346, where the court held that defense attorney’s decision not to pursue a lesser included offense was part of a cohesive trial strategy and did not constitute ineffective assistance.

Recently, this court had occasion to address a similar issue in People v. Blommaert (1992), 237 Ill. App. 3d 811. There, defendant was convicted of first degree murder. On advise of counsel, she had rejected an offer to plead guilty to involuntary manslaughter. She also chose not to seek a jury instruction on involuntary manslaughter, again relying on advise of counsel. In her post-conviction petition, she contended that she had been denied effective assistance of counsel because her attorney had grossly misinformed her as to the possible penalties for the offense. Further, she argued that trial counsel was deficient for not seeking an instruction on involuntary manslaughter, and thus attempting to get a compromise verdict. This court found that Blommaert had proven ineffective assistance, based on the fact that she had been unable to make an informed decision due to counsel’s inaccurate advise.

The similarity between Blommaert and the instant case lies in the attorney’s failure to adequately present facts to the defendant to allow defendant to make an informed decision. Because of trial counsel’s admitted ignorance of the limitations period, Brocksmith did not have all the necessary facts with which to make an informed decision whether to pursue instructions to the jury on the lesser included offense of deceptive practices.

As we noted in Blommaert, the ABA Standards for Criminal Justice provide some guidance on the issue. The ABA Standards state that the decision as to whether to seek submission to the jury of a lesser included offense is one to be made by the defendant after full consultation with defense counsel. (I ABA Standards for Criminal Justice, §4—5.2, Commentary (2d ed. 1980).) Brocksmith was denied that full consultation. Therefore, the decision to submit the lesser offense instruction and thus to waive the statute of limitations was not the product of informed consent.

While the proffering of jury instructions might generally be considered a trial tactic, when that decision includes a decision whether to waive a statute of limitations, the defendant must be consulted. The right to waive the statute belongs to the defendant and should not be assumed from the action of counsel in this situation.

Moreover, this cannot be considered a sound trial tactic when defense counsel admittedly did not know that the period had expired. He cannot make a reasoned decision without knowing the facts. Nor can the defendant be deemed to have made a knowing waiver of the period. In a normal situation, the tendering of an instruction in an attempt for a compromise verdict might be sound strategy, as noted in Rachel (123 Ill. App. 3d at 607, 462 N.E.2d at 965). But here we have an attorney who admittedly did not know the consequences of his action.

The two-prong Strickland test has been met. Defendant has shown deficient counsel and prejudice. Under these facts, defendant was denied his constitutional right to effective assistance of counsel. Accordingly, we reverse the denial of his post-conviction petition (No. 3-91-0780).

Defendant was acquitted on theft and cannot be retried on that count without giving rise to double jeopardy. Additionally, it would be futile to remand for a new trial on the lesser included offense of deceptive practices, a charge barred by the statute of limitations. We therefore dismiss the action.

No. 3 — 90—0530, Affirmed.

No. 3 — 91—0780, Reversed.

BARRY, RJ., and STOUDER, J., concur.


author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE PATRICK KELLEY, Defendant-Appellant.
    Third District
    No. 3—91—0882
    Opinion filed November 30, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Dwayne Patrick Kelley, appeals the denial of his motion to withdraw his guilty plea. We affirm.

The record shows that the defendant agreed to plead guilty to two counts of burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19—1). At the guilty plea hearing, the judge began admonishing the defendant of his rights. The defendant indicated that he did not understand one of the judge’s questions, so he was allowed to approach the bench. Soon thereafter, in response to the judge’s questions, the defendant stated his age, his education level, and his physical condition. The defendant also admitted that he was hard of hearing. He gave appropriate responses to the judge’s other questions. Later in the hearing, the judge asked the defendant’s attorney to repeat several questions to him, and the attorney did so. The defendant stated that he understood everything the judge had said. Thereafter, the court accepted the defendant’s plea.

Following a sentencing hearing, the defendant was sentenced to three years’ imprisonment. On appeal, we remanded the cause so that the defendant could be admonished of his appellate rights. People v. Kelly (3d Dist. 1991), No. 3—90—0524 (unpublished order under Supreme Court Rule 23).

Upon remand, the defendant was advised of his rights. He subsequently filed a motion to withdraw his plea. He alleged that he did not knowingly, intelligently, or voluntarily waive his rights when he pled guilty because of his severe loss of hearing. He also alleged that his sentence was excessive in light of the relevant sentencing factors, and that other alternatives were available which would further his rehabilitation. Consequently, he asked that his sentence be modified if he was not allowed to withdraw his plea.

On October 16, 1991, a hearing was held on the defendant’s motion before the same trial, judge who had accepted the guilty plea. The parties stipulated that the defendant’s hearing loss had progressed from a mild level in 1979 to a severe level in 1988.

The defendant testified with the assistance of a sign language interpreter. According to the defendant, he had not understood the questions he had been asked at the time of his plea. He noted that his attorney had repeated the judge’s questions when the defendant looked at him. The defendant admitted that when his attorney spoke to him, he understood what the judge had asked. The defendant also acknowledged that he read lips.

The defendant further stated that his attorney had explained what he was “getting into” by pleading guilty, but the defendant had not understood what he was doing. He wanted to have a trial because he was not able to hear at his plea. He also said that he was confused about his right to a trial by either a jury or a judge.

The trial judge indicated that at the time of the defendant’s plea, he had been aware of the defendant’s hearing problem. In order to compensate for that, the court had directed the defendant’s attorney to repeat the questions to the defendant. After a few questions, the judge was satisfied that the defendant understood what the judge had told him. The judge found that the defendant had completely understood the proceedings. Accordingly, he denied the motion to withdraw the plea.

On appeal, the defendant first argues that he should be allowed to withdraw his plea because it was not knowingly and voluntarily made. He contends that his loss of hearing rendered him incapable of understanding the proceedings.

We begin by noting that it is within the trial judge’s discretion to determine what reasonable measures are necessary to aid a hearing-impaired defendant. (People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 263 N.E.2d 109.) The exact manner chosen depends on the circumstances of each case. People v. Tyrrel (1989), 185 Ill. App. 3d 57, 540 N.E.2d 828.

Here, the defendant gave varied and appropriate responses to the questions posed by the trial judge at the plea hearing. He specifically stated that he understood the proceedings. At the hearing on the motion to withdraw the plea, he admitted that he understood the judge’s questions after his lawyer had repeated them. The trial judge, who was in a better position to determine whether the defendant had understood the proceedings, found that the defendant had completely understood them. Based on these facts, we find that the trial judge properly denied the defendant’s motion to withdraw his plea.

The defendant next argues that this court should remand the cause for consideration of the defendant’s request that his sentence be modified because the trial court did not rule on it. The State argues that the defendant waived this issue by failing to bring the request to the court’s attention at the hearing.

A party filing a motion has the responsibility to bring it to the trial court’s attention. (Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 532 N.E.2d 855.) Unless a motion is brought to the attention of the trial judge and the judge is requested to rule on it, the motion is not effectively made. (People v. Gambill (1980), 91 Ill. App. 3d 302, 414 N.E.2d 859.) When no ruling has been made on a motion, it is presumed to have been abandoned unless the circumstances indicate otherwise. City National Bank v. Langley (1987), 161 Ill. App. 3d 266, 514 N.E.2d 508.

In his motion, the defendant made a bare assertion that his sentence was not in keeping with the relevant sentencing factors and that it did not promote his rehabilitation. He presented no evidence supporting his allegation at the hearing, even though he was given the opportunity to present further evidence following his testimony. After the trial judge made his decision, the defendant made no attempt to obtain a ruling on the sentencing question. There is also no indication in the record that the defendant’s minimum prison sentence was an abuse of discretion. Under these circumstances and based on the foregoing case law, we find that the defendant waived his sentencing issue by failing to bring it to the court’s attention. Accordingly, we affirm the judgment of the circuit court of Will County.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE SLATER

text:
    JOHN SIEGMANN, a Minor, by his Father and Next Friend, Alan Siegmann, Plaintiff-Appellant, v. NATHAN BUFFINGTON et al., Defendants-Appellees.
    Third District
    No. 3—92—0206
    Opinion filed November 24, 1992.

      Aplington, Kaufman, McClintock, Steele & Barry, Ltd., of La Salle (Raymond R. Nolasco, of counsel), for appellant.
    Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, of counsel), Brian P. Thielen, of Hinshaw, Culbertson, Moelmann, Hob an & Fuller, of Bloomington, Boyle, Goldsmith, Shore & Bolin, of Hennepin, and Helmig & Helmig, of Granville, for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff John Siegmann, by his father and next friend, Alan Siegmann, filed this personal injury action seeking damages for injuries he sustained during an altercation at Putnam County high school. The trial court granted summary judgment in favor of defendants Joe Massino and Putnam County Community School District No. 535. Plaintiff appeals, and we affirm.

In December of 1989, plaintiff was a student at Putnam County high school. On December 4, 1989, plaintiff was assaulted by Nathan Buffington in the high school parking lot. On December 5, plaintiff was informed by two of Buffington’s friends that Buffington wanted to fight again that afternoon. Plaintiff went to defendant Joe Massino, the high school principal, and informed him that Buffington wanted to fight and that he (plaintiff) had no desire to fight Buffington. Massino told plaintiff that he would meet with Buffington and instruct him to leave plaintiff alone.

Later that day, Massino met with Buffington and informed him that he was aware of the altercation that had taken place the day before. Massino instructed Buffington not to bother plaintiff or have anyone else bother him. Buffington told Massino that he had resolved his problems with plaintiff and that he would not bother him anymore.

After school on December 5, Buffington again assaulted plaintiff in the parking lot. Plaintiff was injured during the fight. Plaintiff filed this personal injury suit against Buffington, Buffington’s parents, Massino and the school district. On appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of Massino and the school district.

It is well settled that in order to impose liability against educators, a plaintiff must prove willful and wanton misconduct. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705; Weiss v. Collinsville Community Unit School District No. 10 (1983), 119 Ill. App. 3d 68, 456 N.E.2d 614.) Willful and wanton conduct has been defined as follows:

“[Cjonduct which is either intentional or committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent the injury or a failure to discover the danger through recklessness or carelessness when it could have been discovered by ordinary care.” Templar v. Decatur Public School District No. 61 (1989), 182 Ill. App. 3d 507, 511, 538 N.E.2d 195.

Thus, “[t]o impose liability on educators, a plaintiff must allege and establish that when the educators acted, or failed to act, it was with knowledge that such conduct posed a high probability of serious physical harm to others.” (Toller v. Plainfield School District 202 (1991), 221 Ill. App. 3d 554, 557, 582 N.E.2d 237, 239.) Whether a defendant’s conduct is willful and wanton may be a question of law. Toller, 221 Ill. App. 3d at 558, 582 N.E.2d at 239; Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447.

We find that Massino’s actions in this case did not amount to willful and wanton misconduct. When plaintiff informed Massino of the problem, Massino took reasonable steps to remedy the situation. He met with Buffington to discuss the problem and instructed Buffington not to bother plaintiff. Most importantly, Buffington assured Massino that his problem with plaintiff was resolved and that he would not bother plaintiff anymore. Believing Buffington and failing to take further action may have been somewhat careless, but it does not evidence a reckless disregard for the safety of the plaintiff.

Plaintiff argues that Massino should have stationed a monitor in the parking lot after school as a precautionary measure. While it appears in hindsight that this may have been a more prudent course of action, Massino’s failure to do so does not indicate an “utter and conscious disregard” for the safety of the plaintiff. Lynch, 82 Ill. 2d at 430, 412 N.E.2d at 457.

Plaintiff relies on Gammon v. Edwardsville Community Unit School District No. 7 (1980), 82 Ill. App. 3d 586, 403 N.E.2d 43, where the court held that a school counselor had failed to take adequate steps to prevent an altercation between two students. Gammon is distinguishable from the case at bar. When the counselor met with the offending student in Gammon, the student did not assure the counselor that the problem was over and that she would leave the plaintiff alone. On the contrary, the offending student remained quite angry when she left the counselor’s office. The counselor did nothing further, and the plaintiff was subsequently attacked by the offending student. The court held that the counselor had simply placed the plaintiff back in the position she had been in prior to going to the counselor for help. That was clearly not the case here.

For the reasons stated above, the order of the circuit court of Putnam County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


text:
      In re BOARD OF LIBRARY TRUSTEES OF THE MILAN-BLACKHAWK AREA PUBLIC LIBRARY DISTRICT ANNEXATION (Milan-Blackhawk Area Public Library District, Petitioner-Appellee, v. Mercer Carnegie Public Library District, Objector-Appellant).
    Third District
    No. 3—92—0106
    Opinion filed November 24, 1992.

      Mark A. Appleton and Gregory J. McHugh, both of Appleton & McHugh, of Aledo, for appellant.
    Robert P. Swanson and H. Karl Huntoon, both of Blackwood, Nowinski, Huntoon & Swanson, P.C., of Moline, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The petitioner, Milan-Blackhawk Area Public Library District (Blackhawk), filed a petition seeking to annex certain portions of Mercer County into its library district. The objector, Mercer Carnegie .Public Library District (Mercer), filed an objection as to Perryton Township. It contended that the issue could not be voted on because the township had rejected annexation as a library district less than 12 months earlier and because Blackhawk did not give the required notice. The trial court rejected both of Mercer’s arguments. Mercer appeals.

The record shows that Mercer had previously submitted an annexation proposal to the voters of Perryton Township. On November 5, 1991, the voters rejected that proposal. Thereafter, Blackhawk filed a petition seeking to annex part of the same area for its library district. Blackhawk gave notice of its action by publication 16 days prior to the hearing for certifying the annexation question. The annexation question was put on the ballot, and on March 17, 1992, a general election was held. The proposal passed.

Mercer then filed an appeal, claiming the trial court erred because: (1) there was improper publication notice in that publication occurred 16 days prior to the hearing, contrary to statutory requirements; and (2) such petition sought an illegal second election within one year for the same territory. We agree with Mercer’s first argument and disagree with its second.

Blackhawk argues that the trial court was correct on the notice issue. It contends that general election law controls, and such law requires only a five-day notice before a hearing. (Ill. Rev. Stat. 1991, ch. 46, par. 28—4.) It bases its argument on the first paragraph of the notice requirement for a library referendum, which states “[njotice of elections and referenda shall be given in the manner provided by the general election law.” (Ill. Rev. Stat. 1991, ch. 81, par. 1007—1.) This argument is misplaced.

The notice in question is not for an election or referendum, but for a hearing which will certify the election question. The notice required for such a hearing is outlined in section 7—1 of the Illinois Public Library District Act (Ill. Rev. Stat. 1991, ch. 81, par. 1001—1 et seq.). This section provides, “All notices shall be made at least 20 days but not more than 30 days before the hearing or other matter being publicized by such notice unless otherwise provided in this Act.” (Ill. Rev. Stat. 1991, ch. 81, par. 1007—1.) The notice for hearing on the certification of the election question is not otherwise provided for in the Act. Thus, according to the Act, the proper notice is at least 20 days prior to the hearing. (See Solomon v. North Shore Sanitary District (1971), 48 Ill. 2d 309, 269 N.E.2d 457.) We therefore find that Blackhawk failed to strictly comply with the notice provision.

We further note that notice given for a hearing to certify the question on an election ballot can be either mandatory or directory in its application. If the notice is directory, the election result will stand even if proper notice was not given. If the notice is mandatory, the election would be void. (See Solomon v. North Shore Sanitary District (1971), 48 Ill. 2d 309, 269 N.E.2d 457.) There is no universal formula for distinguishing between mandatory and directory provisions. Rather, the issue depends upon the intent of the legislature, which is ascertained by examining the nature and object of the statute and the consequences which would result from any given construction. (Pullen v. Mulligan (1990), 138 Ill. 2d 21, 561 N.E.2d 585.) The language of the statute is often the most reliable evidence of the legislative intent. Therefore, when interpreting a statute, courts must give the language of a statute its plain and ordinary meaning. Gasick v. Dunlap Public Library District (1987), 164 Ill. App. 3d 232, 517 N.E.2d 1175.

Section 7—1 states in part, “All notices shall be made ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 81, par. 1007—1.) “Shall” generally indicates a mandatory obligation, especially when it refers to a right or benefit that depends upon a mandatory meaning. A statute is merely directory only if no advantage is lost, no right is destroyed, and no public or individual benefit is sacrificed. Board of Library Trustees of the Frankfort Public Library District v. Board of Library Trustees of the Mokena Public Library District (1987), 158 Ill. App. 3d 830, 511 N.E.2d 997.

In the instant case, the notice for the hearing is mandatory. The individuals affected by the proposed library district have a right to be heard regarding the proposed territory that will be presented on the ballot for possible annexation. As a result, the election is void for failure to provide adequate notice for the certification hearing.

Mercer’s next argument on appeal is that Blackhawk, as a competing district, could not attempt to annex a portion of the territory which Mercer had sought to annex less than one year before. Mercer bases this argument on section 2—9(4)(e) (Ill. Rev. Stat. 1991, ch. 81, par. 1002—9(4)(e)), which states, “Such proposition for annexing territory to a district shall not be submitted to the voters more often than once a year.”

We disagree with Mercer’s argument. Under Mercer’s interpretation, one district could annually conduct its own referendum and thereby perennially ban other districts from offering annexation opportunities to the affected territory. The statute is clearly meant to prohibit such a result. We do not interpret the statute as barring a competing district from attempting to annex territory less than a year after an election in another district.

Based on the foregoing reasons, we affirm the portion of the trial court’s judgment finding that the Blackhawk election could be held within one year of the Mercer election. We reverse the portion of the judgment finding that Blackhawk had complied with the notice provision. We also remand the cause for further proceedings consistent with our opinion.

Affirmed in part; reversed in part and remanded.

BARRY, P.J., and STOUDER, J., concur.