source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GORDON, Defendant-Appellant.
    Second District
    No. 2—91—0591
    Opinion filed July 22, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan, and John M. Carey, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

After a bench trial, defendant, Robert Gordon, was convicted of aggravated battery to a senior citizen (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(10) (now, as amended, 720 ILCS 5/12—4(b)(10) (West 1992))) and robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—1 (now 720 ILCS 5/ 18—1 (West 1992))). He was sentenced to concurrent three-year prison terms. On appeal, defendant argues that (1) he was not proved guilty beyond a reasonable doubt of either offense; and (2) he did not receive the effective assistance of counsel. We affirm defendant’s conviction of aggravated battery to a senior citizen. We reduce defendant’s conviction of robbery to attempted robbery.

On the afternoon of October 14, 1990, several young men riding bicycles attacked Aileen Prasti, an 82-year-old woman, as she was walking east on Dugdale Avenue in Waukegan. Defendant and his brother, Conan Gordon, were each charged with two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12—4(a) (now 720 ILCS 5/12—4(a) (West 1992))) and one count of aggravated battery to a senior citizen. Defendant was also indicted for robbery. Initially, Conan Gordon was indicted for robbery, but later he pleaded guilty to an amended charge of attempted robbery (Ill. Rev. Stat. 1991, ch. 38, pars. 8—4(a), 18—1(a) (now 720 ILCS 5/8—4(a), 18—1(a) (West 1992))).

On November 8, 1990, the trial court received a pretrial bond report on defendant. The report stated that defendant, who was 18 years old at the time, appeared to be developmentally disabled. Defendant could not read and was taking special education classes. He had difficulty understanding spoken communications or “comprehending time spans,” and he appeared to have “no comprehension of the judicial system.” No pending charges against him had been discovered.

Noting this information, the trial court ordered that defendant be evaluated for his fitness to stand trial. On December 19, 1990, the court received a report from Dr. Alfred Marx, who concluded that, despite defendant’s limited intellectual capacity, defendant was fit to stand trial. Although defendant was slow to understand questions, he could do so if the questioner used simple language and sufficient repetition. Defendant understood the charges against him, and he had a general understanding of “what a plea is,” the court process, and the possible consequences of being convicted of the charges against him. Defendant was able to read the various police reports that the State had disclosed, although he did so slowly and haltingly. He summarized the various accounts of the incident and gave his own exculpatory version. Dr. Marx opined that defendant would be able to communicate with counsel and could assist counsel in his defense.

On February 11, 1991, defendant’s counsel filed an answer to a State discovery motion. The answer listed defendant’s mother and sister, with whom he resided at 801 Cummings in Waukegan, as possible witnesses. The answer stated that defendant might assert the affirmative defense of alibi, i.e., that he was at home at the time of the incident. Also listed as a possible witness was Ingrid Smith, defendant’s special education teacher at Waukegan High School.

On March 22, 1991, defendant filed a motion to suppress any statements defendant made at the time of his arrest. The motion argued that statements that he sought suppressed were involuntary because they resulted from psychological coercion. Specifically, the motion stated that, directly after defendant was arrested on October 21, 1990, he was interrogated by Sergeant Hendley, who showed defendant a prepared statement and told defendant that if the latter did not sign the statement Hendley would throw him “against the wall.”

At a hearing on March 27, 1991, defendant’s attorney stated that Ingrid Smith would testify from her experience about defendant’s inability to read or comprehend the Miranda forms or the written statement he allegedly signed. The trial judge noted that the written motion to suppress argued only that the statement was the result of coercion and not that the statement should be barred because defendant did not knowingly and intelligently waive his Miranda rights. The judge allowed defense counsel to amend the motion orally to include this ground for suppressing the statement. The court decided that the trial and the hearing on the motion to suppress would proceed together.

The State’s first witness at trial was Virginia Correa, who testified that, at about 2:30 p.m. on October 14, 1990, she was riding to work with her father. It was raining and her father was driving slowly. As they approached the Waukegan Developmental Center, where she worked, she noticed that Prasti (whose photograph she identified in court) was walking east on Dugdale. Three young black males were behind Prasti, riding their bicycles very slowly. As Correa looked at them, two of the young men looked back at Correa. Each of these two was wearing a red and black checked flannel shirt. The third man, who did not look at Correa, was wearing a dark blue jacket and a blue baseball cap. Two of the young men, including the one in the blue jacket, grabbed Prasti and lifted her up. The one in the blue jacket attempted to grab her purse. The two men dropped Prasti to the ground. The third kicked her.

As she watched, Correa told her father of the incident. Both of them got out of the car to help the victim. The three young men rapidly left the scene. Correa’s father pursued them by car but could not catch up with them. He went to the fire station to find somebody to help the victim.

At trial, Correa unequivocally identified defendant as the young man who had been wearing the blue jacket. She related that although defendant did not look directly at her during the incident, she had come to within 10 to 15 feet of him and saw the front and side of his face for about 30 to 45 seconds. Although the weather was drizzly, it was not overcast.

Correa never picked the defendant out of a lineup, and she did not see defendant in the six months between the incident and the trial. She recognized him in court because she remembered his face. She had never seen any of the young attackers before the incident. On the day of the incident, Correa described the men to the police. She described defendant as about 5 feet, 6 inches, 135 pounds, and 17 or 18 years old. Correa looked at photographs, but she did not identify the other two attackers. She told police that one of the people photographed looked like defendant; however, she did not identify this person as defendant because she did not believe that he was defendant. She learned later that this person was not defendant.

Sergeant Paul Hendley of the Waukegan police department testified next. After identifying defendant in court, he stated that he spoke to defendant at the police station at about 5:15 p.m. on October 21, 1990. Defendant was at the station because he had been arrested for possessing a stolen bicycle. Defendant had been brought to the station before Hendley came to work at 3:45 p.m. To Hendley’s knowledge, none of the officers had by then questioned defendant about the attack on Prasti.

Hendley and defendant were alone for most of the interview. Before asking defendant about the attack on Prasti, Hendley read defendant Miranda warnings from a standard form (admitted at trial as People’s exhibit No. 4). Hendley explained the form to defendant and told him to say whether he understood each of his rights as Hendley read them from the form. Defendant consistently answered “yes” when Hendley asked him if he understood, and he signed the form in Hendley’s presence. Defendant never indicated that he did not understand his rights. Hendley never asked defendant to read the form. Defendant appeared to read the form silently as Hendley read it aloud. Hendley was not aware at the time that defendant was a special education student, and Hendley had no information about defendant’s reading ability.

Hendley denied having used any coercion in getting defendant to make the statement or sign any of the documents. He did not tell defendant that the latter had to sign the statement or Hendley would “throw his skinny ass against the wall.” Hendley never told defendant that defendant could go home only after signing the statement. This would not have made sense, because defendant was already under arrest for bicycle theft. Defendant never told Hendley that his account was a mere retelling of what Conan Gordon had told defendant about the incident.

After speaking with defendant about the stolen bicycle, Hendley asked defendant if the latter had been on Dugdale Avenue on October 14, 1990. Defendant replied that he and two other individuals had been on Dugdale that day. He gave Hendley a detailed description of what happened. Hendley recorded defendant’s description and reduced it to a three-page typed statement that he read to defendant. Defendant approved the contents of the statement as written. He signed the statement in the presence of Hendley and Detective Michael Donnenwirth.

Defendant’s statement, admitted into evidence as People’s exhibit No. 5, gives the following account of the attack on Prasti. On October 14, 1990, defendant, his brother Conan, and Todd Jenkins rode their bicycles to the Belvidere Mall. They left after going to Walgreens. On the way back, they saw “the older white lady.” Jenkins rode up to defendant and said to defendant that he needed money and that they would get money from the woman. Defendant and Conan Gordon rode up beside the woman; they grabbed her arms and she fell to the ground. As the two brothers held the woman, Jenkins approached and hit her a few times. She refused to give up her purse, so Jenkins went through her pockets. Jenkins said that he got some money, but neither Conan Gordon nor defendant ever saw any money. Defendant heard a man driving out of the driveway shouting “What are you guys doing?” The three youths escaped on their bicycles. Defendant had not seen Jenkins since the incident.

After making his statement, defendant helped Hendley to fill in a rough map of the crime scene. Defendant told Hendley where to place numbers representing the various participants, including the driver of the car. Defendant and Hendley signed the map, which was admitted as People’s exhibit No. 6.

Detective Donnenwirth testified that he was “in and out” of the interview room while Hendley interviewed defendant. At this time, Donnenwirth did not know whether anyone had identified defendant as being involved in the attack on Prasti. Defendant told the two officers that three people participated in the attack: defendant, Conan Gordon, and a friend named Todd. Defendant never mentioned Terry Brown or Prentice Black.

Donnenwirth accompanied Hendley to the interview room when Hendley returned with the typewritten statement for defendant to sign. Donnenwirth signed People’s exhibit No. 5 as a witness after Hendley read the statement to defendant and defendant told Hendley the statement was correct. Donnenwirth testified that the written statement matched what he heard Hendley read to defendant. Donnenwirth never heard Hendley try to coerce defendant into signing the statement. Donnenwirth was present when defendant helped Hendley fill in People’s exhibit No. 6. At the time of the interview, Donnenwirth did not know whether defendant was enrolled in any special education classes. He did not ask defendant if defendant could read. To his knowledge, Hendley did not ask defendant this question either.

Defendant testified for the limited purpose of the motion to suppress. He stated that he was 18 years old and currently attending Waukegan West High School. From grammar school on, he had been enrolled in special education classes.

Defendant recalled his arrest and his interview with Sergeant Hendley. As he recalled, it was about 2:30 p.m. when he first spoke with Hendley. He conceded that he was not aware Sergeant Hendley’s shift did not start until about 4 p.m.

Defendant recognized People’s exhibit No. 4, but he testified he did not read it on the day of his arrest because he could hardly read it then. Defendant read parts of the form at trial. He stated he did not understand all of what he read. He signed People’s exhibit No. 5, but he did not read it first.

Defendant related that he signed both forms after Hendley “forced” him to do so. According to defendant, Hendley pounded the table and said, “Damn it. Sign these statements.” Hendley threatened to throw defendant’s “black ass through the wall” or throw defendant’s “skinny black self through the wall” unless defendant signed the statements. Hendley also said defendant could not go home until he signed the statements.

Defendant testified that he signed People’s exhibit No. 6 at about 3 a.m. after Hendley told him that he could go home if he signed it. Although defendant told Hendley where to put the numerous markings on the sketch, defendant “just made up anything. I ain’t really know nothing about this.” Defendant related that Detective Donnenwirth did not enter the interview room until after defendant signed the paper.

After defendant testified, the State rested. Defendant’s counsel stated that he had decided to call Ingrid Smith, defendant’s special education teacher. The court granted a continuance so Smith could appear and defense counsel could subpoena the relevant school documents.

Defendant’s first witness for the trial was Prentice Black, who was 16 years old at the time of trial and 15 when he participated in the attack on Prasti. He, Terry Brown, and Conan Gordon were riding their bicycles on Dugdale back from Lakehurst Mall. Black’s coat and jacket were both red and black. Conan Gordon wore a red and black flannel shirt. Brown wore a gray coat with a maroon stripe. At no time did Black see defendant.

As Black, Brown, and Conan Gordon rode up behind the victim, Black snatched her purse out of her left hand. The purse strap became caught on his bike’s handlebar, causing Black to stop and Prasti to fall. A car approached from down the street; the youths left. Later, Black was arrested. He pleaded guilty to attempted armed robbery. At the time of defendant’s trial, Black was serving time in the Department of Corrections.

Terry Brown testified that he was 16 years old at the time of defendant’s trial and 15 when he participated in the attack on Prasti on October 14, 1990. That day, Brown, Black, and Conan Gordon rode their bicycles to Lakehurst Mall and back. Defendant, whom Brown knew, was not with them. Brown’s description of the attack was fairly consistent with Black’s. Brown testified that at the time of the attack he was wearing gray pants, a light gray jacket with a blue inside pattern and blue stripes on the sleeves, a black shirt, and a cap. Eventually, Brown pleaded guilty to “attempted robbery or something.”

On cross-examination, Brown admitted that on October 22, 1990, he spoke to Waukegan police detectives Jackson and Pratt and signed a statement afterward. Brown testified that he never told the detectives that defendant was with the other three young men on the date of the attack on Prasti, as defendant had not in fact been with them. Brown acknowledged that he erred in telling the detectives that the group had gone to the Belvidere Mall; he now remembered that he and his friends had been at the Lakehurst Mall. Brown denied having told the officers that defendant accompanied Black and Conan into a store at the mall. Brown admitted that he told the police that he kicked Prasti after she fell and that he demonstrated this maneuver to the officers. However, he testified that he lied to the detectives because one was yelling at him; in fact, he never kicked Prasti.

After Brown’s testimony, defendant’s attorney told the court that he had decided not to call Ingrid Smith as a witness at the hearing on the motion to suppress. Subsequently, the trial court ruled against defendant on the motion to suppress. The judge held that defendant had not shown that he lacked an understanding of his rights. Also, the judge found Hendley and Donnenwirth credible and disbelieved defendant’s account of their conduct at the interview. Thus, the judge concluded that the defendant’s statements were voluntary and would be admitted.

Defendant called Conan Gordon, who acknowledged that he had pleaded guilty to attempted armed robbery and had been sentenced to the Department of Corrections. Conan Gordon testified that he was home with his family early on the morning of October 14, 1990, when Prentice Black came by to visit. Terry Brown later came along. At about 11:30 a.m., the three youths rode their bicycles to Lakehurst Mall. Defendant remained at home, and Conan Gordon next saw his brother when Conan returned home after the attack on Prasti. Todd Jenkins, a friend of defendant’s, did not accompany Conan, Black, or Brown that day.

At about 2 p.m., the three youths headed home along Dugdale. Black rode ahead of Conan; Brown rode behind. Black rode up to Prasti and grabbed her purse. She held onto the purse and fell. As Conan rode up, Black and Brown were trying to get the purse. A car approached from the opposite direction and stopped nearby. Conan, Brown and Black left the scene.

Conan Gordon could not recall for sure what he wore on October 14, 1990. He did not remember what defendant wore that day. Black wore a red and black coat with dark jeans. Brown wore a dark gray jacket, jeans, and a cap.

Conan Gordon admitted that he talked to Detective Michael Taylor of the Waukegan police department, that he signed a statement that Taylor witnessed, and that the statement contradicted much of his testimony. According to the statement, defendant accompanied the other three youths to and from the mall. On the way back, defendant rode ahead of Conan. After the attack on Prasti, the driver of the brown car yelled at Conan Gordon,

In rebuttal, the State called Waukegan police officer Michael Jackson, who stated that, on October 22, 1990, he talked to Terry Brown at the station and typed up a statement that Brown read and signed. Jackson and Detective Pratt also signed the statement. Brown’s statement said that he was with defendant on October 14, 1990, including when Brown was at Walgreens.

Defendant testified that he recalled October 14, 1990. He spent the day at home and did not see Prentice Black, Terry Brown, or Todd Jenkins the whole day. Defendant was not on Dugdale Avenue that day. His brother Conan returned home that afternoon and told defendant all about the incident on Dugdale, including who else was there at the time. Until he heard this account, defendant knew nothing about the attack on Prasti.

On cross-examination, defendant conceded that, after he was arrested on October 22, 1990, he told Sergeant Hendley that he, Conan Gordon, and Todd Jenkins had taken part in the events of October 14. Defendant told the officers that the three youths rode their bikes to the Belvidere Mall and were returning along Dugdale when they saw Prasti. Jenkins told defendant to stop, as they could get money from Prasti. They rode up alongside her. Defendant grabbed Prasti’s arms. She fell to the ground. While Conan and defendant held Prasti down, Jenkins hit her several times and tried to get Prasti’s purse; she would not let him have it. Defendant may have heard a man in a car shouting at the group. The youths got on their bikes and rode home.

Defendant testified that he lied when he told Hendley that he had grabbed Prasti. Also, defendant stated on redirect examination that he had lied in implicating Todd Jenkins, who was not involved in the attack; defendant had wanted to “pay back” Jenkins for his interest in defendant’s 10-year-old sister. On redirect examination, defendant stated that he made up everything he told Hendley and that in reality he did not attack Prasti.

On re-cross-examination, the prosecutor asked without objection if defendant spoke to Detective Howard Pratt about the events of October 14, 1990. Defendant admitted he had done so. He did not remember telling Pratt that, on October 14, 1990, defendant, Conan Gordon, Brown, and Black were out together riding their bicycles. He admitted that he told Pratt he went to Walgreens to buy hair dye; however, he testified that he and the other three young men made this trip on October 12 or 13,1990.

Defendant also conceded that he gave Pratt the following account of the attack on Prasti. When defendant, Conan Gordon, Black, and Brown rode past “the place where they keep the crazy people,” they saw an elderly white woman walking toward Jackson Street. Defendant spoke to the lady; she replied “hi.” Defendant stopped and saw Conan Gordon, Black, and Brown beating the woman as she held onto her purse. At trial, defendant stated that he made up this story, including the names. He also made up the account of the car’s driver yelling at the youths. Nobody told him about this incident; defendant made it up “just poof.”

In rebuttal, the State called Waukegan police detective Michael Taylor. Taylor recollected that, on October 22, 1990, he spoke with Conan Gordon about the incident. Conan told Taylor that on October 14, 1990, Conan, defendant, Brown, and Black rode their bicycles together to Walgreens. Defendant was present during the attack on Prasti, including when a car going west on Dugdale went in and out of a parking lot and the driver shouted at the youths. Taylor read from Conan Gordon’s statement, which mentioned that defendant accompanied Conan, Black, and Brown to Walgreens and returned with them, riding ahead of the others.

The trial judge found defendant guilty of aggravated battery and robbery. The judge placed much weight on defendant’s statement, explaining that its accuracy and detail negated any inference that defendant had made it up or that defendant merely had repeated what his brother told him. Also, the judge said that he did not believe defendant had testified truthfully; that defendant’s statement to Detective Pratt was further evidence of defendant’s guilt; and that the eyewitness identification, despite its limitations, also supported the convictions.

Defendant filed a post-trial motion, which the court denied. Although the trial judge equivocated about whether the identification alone established defendant’s guilt beyond a reasonable doubt, he stated that the totality of the evidence amply supported defendant’s convictions.

Defendant’s presentence investigation report noted that he had no prior convictions or juvenile delinquency adjudications. He had been in foster care for a short time in 1983. At the time of the offense, defendant lived at home with his mother, his uncle, two brothers, and two sisters.

The report stated that, before his arrest, defendant was enrolled as an educably mentally handicapped student in a special education program. Defendant had “multiple disabilities,” and a 1988 psychological test placed defendant in the lowest .1 percentile of the population. Another test rated defendant’s functional skills at an “extreme deficit.”

Ingrid Smith, defendant’s special education teacher for over two years, also spoke with the probation officer who prepared the presentence investigation report. Smith stated that defendant was functioning at the second-grade level academically. His test scores and grades were poor and had declined since he entered high school. However, Smith also described defendant as “street-smart and very manipulative.” According to Smith, defendant often tried “to con his peers.” He was “easily victimized and tend[ed] to seek out victims of his own.”

The court sentenced defendant to concurrent three-year prison terms for aggravated battery of a senior citizen and robbery. Defendant timely appealed.

We turn first to defendant’s challenge to the sufficiency of the evidence supporting both of his convictions. We hold that there was ample evidence to convict defendant of aggravated battery to a senior citizen. However, we agree with defendant that there was no credible evidence that anything was taken from the victim. Therefore, we hold that his conviction of robbery must be modified to one of attempted robbery.

In considering whether there is sufficient evidence to support a conviction, we must ask whether all the evidence, when viewed in the light most favorable to the State, is sufficient to convince any rational trier of fact that the State has proven the elements of the offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) In reviewing the sufficiency of the evidence, we may consider evidence that allegedly was improperly admitted. (People v. Furby (1990) , 138 Ill. 2d 434, 453-54.) We do not retry the defendant, and determinations of the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibilities of the fact finder. People v. Steidl (1991) , 142 Ill. 2d 204, 226; People v. Brisbon (1985), 106 Ill. 2d 342, 360.

We determine that there was ample evidence to place defendant at the scene of the attack as a coparticipant in the attack on Prasti. An eyewitness identified defendant as one of the attackers, and defendant’s confession, which the trial judge found was detailed and more plausible than defendant’s testimony, also established that defendant was one of Prasti’s assailants. The confession was corroborated by ample independent evidence of the corpus delicti, i.e., by proof that an aggravated battery to a senior citizen and an attempted robbery did occur. A confession that is corroborated by sufficient independent evidence of the corpus delicti satisfies the requirement of proof beyond a reasonable doubt. People v. Dalton (1982), 91 Ill. 2d 22, 29; People v. Willingham (1982), 89 Ill. 2d 352, 359.

We do agree with defendant that his conviction of robbery must be reduced to one of attempted robbery. To obtain a conviction of robbery, the State had to prove that property actually was taken from the victim’s person or presence. (See Ill. Rev. Stat. 1989, ch. 38, par. 18—1(a) (now 720 ILCS 5/18 — 1(a) (West 1992)).) Essentially, there was no evidence that anybody actually took anything from Prasti. All the evidence suggests that Prasti’s assailants went home after an onlooker noticed their bungled attempt to seize Prasti’s purse. Defendant’s confession stated that Todd Jenkins said that Jenkins had taken money from Prasti, but that nobody else saw any money. The evidence was very strong that Jenkins was not part of the attack; even taken at face value, Jenkins’ alleged statement hardly proves that anything was taken. Moreover, nothing outside defendant’s confession establishes the corpus delicti of a completed robbery as opposed to merely an attempted robbery.

Although we reduce defendant’s conviction of robbery to one of attempted robbery, his three-year sentence may stand. As the victim in this case was over 60 years old, robbery would have been a Class 1 felony. (See Ill. Rev. Stat. 1989, ch. 38, par. 18—1(b) (now 720 ILCS 5/ 18 — 1(b) (West 1992)).) Thus, attempted robbery is a Class 2 felony. (See Ill. Rev. Stat. 1989, ch. 38, par. 8—4(c)(3) (now 720 ILCS 8—4(c)(3) (West 1992)).) The minimum sentence for a Class 2 felony is three years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(5) (now 730 ILCS 5/5—8—1(a)(5) (West 1992)).) As the trial court imposed the minimum sentence for attempted robbery of a person over 60 years old, there is no reason to remand the cause for resentencing.

We turn now to defendant’s assertion that he received the ineffective assistance of counsel. Defendant raises four instances of what he claims was ineffective assistance. One of them, that his counsel erred in not arguing that the evidence was sufficient only to convict defendant of attempted robbery rather than armed robbery, is obviously now moot. We turn to the other alleged instances of trial counsel’s ineffectiveness. These include (1) counsel’s failure to pursue the affirmative defense of alibi after stating in discovery that he would do so; (2) counsel’s failure, after the motion to suppress was amended to include an allegation that defendant did not intelligently and knowingly waive his rights, to present easily obtainable evidence that defendant lacked the intellectual capacity for a knowing and intelligent waiver; and (3) counsel’s failure to object during the re-cross-examination of defendant, resulting in the allowance of damaging testimony about defendant’s admissions to Detective Pratt. We conclude that, whatever the wisdom of defense counsel's decisions, his overall performance did not deprive defendant of the effective assistance of counsel.

To prevail on a claim that his counsel was ineffective, defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) as a result of counsel’s errors, defendant was deprived of a fair, reliable trial. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Steidl (1991), 142 Ill. 2d 204, 239.) There is a strong presumption that trial counsel’s actions were the result of trial strategy and not of incompetence; thus, a court of review will not second-guess matters which involve counsel’s discretion or strategy. (People v. Lopez (1993), 242 Ill. App. 3d 160, 171; People v. McCaster (1993), 239 Ill. App. 3d 753, 757.) Counsel’s performance must be evaluated from the perspective of counsel at the time of his actions, not from hindsight. (People v. Whitamore (1993), 241 Ill. App. 3d 519, 526.) To establish prejudice, a defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. People v. Barfield (1989), 187 Ill. App. 3d 190, 197-98.

Defendant’s allegation that counsel was ineffective in not pursuing the alibi defense is wholly speculative and without merit. Defendant does not even try to show that any alibi witnesses would have testified favorably or credibly. Counsel may well have decided that such witnesses had no plausible exculpatory testimony to offer and that their testimony, if disbelieved, might even undermine defendant’s argument that he was not present at the scene of the crime. A defendant who provides no reason for this court to believe that potential witnesses would have helped his case may not prevail on a claim that counsel was ineffective for not calling these witnesses. People v. Greer (1980), 79 Ill. 2d 103, 123.

There is more substance to defendant’s second allegation of ineffectiveness on the part of his trial counsel. As the presentence investigation report demonstrates, counsel had access to potentially strong evidence that defendant was not capable of a knowing and intelligent waiver of his rights. We are at a loss to understand why counsel failed to produce the evidence of defendant’s extremely low intelligence, as reflected by the results of standardized intelligence tests.

However, we conclude for a variety of reasons that counsel’s performance on this score must be presumed to have been a matter of trial strategy. Counsel had reason to believe that the introduction of evidence relating to defendant’s mental abilities would have been (1) minimally helpful on the issue of whether defendant knowingly and intelligently waived his rights; and (2) actually detrimental to defendant’s argument that he was coerced into signing the statement — an argument relying on whatever credibility defendant had.

Although the presentence investigation report notes defendant’s low intelligence and low level of academic functioning, it does not present a one-sided impression of defendant. Ingrid Smith, who knew defendant well and could not be presumed to be an unfriendly witness, stated that, despite his learning disabilities, defendant was “street smart” and accustomed to “conning” and manipulating others. A defendant whose intelligence quotient is far below normal may very well be found capable of properly waiving his rights. (See, e.g., People v. Phillips (1992), 226 Ill. App. 3d 878, 886.) The trial court here had the opportunity to observe defendant as he testified and a pretrial report from a clinical psychologist that defendant’s mental limitations did not prevent him from understanding the essential elements of the court process.

Also, Smith’s characterization of defendant as manipulative, street smart and eager to look for victims to “con” would likely have detracted from the defendant’s credibility in the hearing on the motion to suppress his statements. In hindsight, we may question counsel’s handling of this issue, but we cannot say that defendant has overcome the presumption that counsel acted within the broad realm of trial strategy.

We turn to defendant’s final example of trial counsel’s alleged ineffectiveness. Defendant argues that counsel unreasonably failed to object to the State’s re-cross-examination of defendant, in which for the first time the court was informed of defendant’s interview with Detective Pratt. Defendant observes that the trial judge considered this evidence damaging to defendant, especially as it undermined defendant’s argument that he admitted to involvement in the attack only because Sergeant Hendley threatened him. However, we must note that defendant is incorrect in asserting that the re-cross-examination was a discovery violation; Detective Pratt was timely disclosed as a possible State witness. Also, defendant is incorrect in stating that Detective Pratt was not mentioned in the questioning of any witness until the re-cross-examination to which defendant now refers. Both Terry Brown and Officer Jackson testified that Detective Pratt questioned Brown about the incident.

The admission of evidence is within the trial court’s wide discretion, and a reviewing court will intervene only if there has been a clear abuse of discretion leading to manifest prejudice to the defendant. (People v. Enis (1990), 139 Ill. 2d 264, 281.) Here, the interview with Detective Pratt was relevant in that it made defendant’s explanation of his confession less plausible. Nonetheless, defendant argues that evidence of the interview was inadmissible because it went to matters beyond the scope of the direct examination; the interview itself was not raised during the direct or redirect examination of defendant.

We conclude that trial counsel’s failure to object to this line of questioning will not support a claim of ineffectiveness based on the theory that the questioning exceeded the scope of defendant’s testimony on direct examination. This limitation “is *** construed liberally to allow inquiry into whatever tends to explain, qualify, modify; discredit, or destroy the testimony on direct.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.11, at 418 (5th ed. 1990), citing People v. Gacho (1988), 122 Ill. 2d 221, 247.) As we have noted, the evidence of the interview with Detective Pratt fits this characterization. Moreover, although the trial judge noted that this evidence was damaging to defendant, it appears from the judge’s explanation of his decision that defendant’s detailed and corroborated confession persuaded the court to reject the defense theory that defendant was not at the scene of the incident. Thus, defendant has not made the requisite showing of prejudice.

We affirm defendant’s conviction of aggravated battery to a senior citizen. Pursuant to Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), we reduce the defendant’s conviction of robbery to a conviction of attempted robbery.

The judgment of the circuit court of Lake County is affirmed as modified.

Affirmed as modified.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RUSSELL, Defendant-Appellant.
    Second District
    No. 2—92—0113
    Opinion filed July 29, 1993.
    Theodore Gottfried and Charles M. Schiedel, both of State Appellate Defender’s Office, of Springfield, and Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Robert Russell, was found guilty by a jury of two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A—2) and two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12—4(b)(1)). The circuit court of Lake County sentenced defendant to two consecutive 30-year terms of imprisonment. Defendant appealed to this court in People v. Russell (1986), 143 Ill. App. 3d 296, and his sentence and conviction were affirmed.

This appeal arises out of defendant’s post-conviction petition which defendant filed pro se following his direct appeal. (Ill. Rev. Stat. 1983, ch. 38, par. 122—1 et seq.) The issue presented in the post-conviction petition asked whether defendant had been denied the effective assistance of counsel where trial counsel failed to advise defendant of the possibility of consecutive prison terms during the plea bargaining which took place before the trial. The circuit court of Lake County dismissed the post-conviction petition as frivolous. We affirm.

Defendant’s pro se petition alleged, in relevant part, that his trial counsel failed to inform him of the true maximum sentence he was facing and, as a result, he rejected the plea bargain offered by the State. Defendant’s petition asserted that, as a result, his case was prejudiced requiring a new trial or a sentence reduction. The trial court ruled that the allegations in defendant’s petition for post-conviction relief failed to allege facts that would constitute a substantial denial of petitioner’s rights under the constitutions of the State of Illinois or the United States. The trial court thereby dismissed defendant’s petition as frivolous and without merit.

On appeal, defendant argues that it was a due process violation to dismiss the petition without first appointing counsel to assist in improving the petition. Defendant explains that had counsel been properly appointed, defendant would not have failed to supply affidavits and other evidence to support the post-conviction petition. Defendant also asserts that, since he is representing himself pro se, he need only make a simple statement as to (1) how he had been denied the effective assistance of counsel and (2) how the summary dismissal of his pro se petition denied him any meaningful chance to demonstrate a sixth amendment violation.

We affirm the holding of the trial court below because, regardless of the presence or absence of supporting affidavits, defendant has failed to state a claim which illustrates a substantial deprivation of his constitutional rights.

The purpose of a post-conviction petition is to resolve allegations that constitutional violations occurred at trial which were not, or could not have been, adjudicated previously. (People v. Silagy (1987), 116 Ill. 2d 357, 365; People v. Green (1991), 218 Ill. App. 3d 71, 75.) An evidentiary hearing should be conducted when the petitioner makes a substantial showing of a violation of constitutional rights which is supported by the record in the case or by accompanying affidavits; however, a post-conviction petitioner is not necessarily entitled to an evidentiary hearing as a matter of right. (Silagy, 116 Ill. 2d at 365.) Defendant bears the burden of establishing a substantial deprivation of constitutional rights, and determinations by the trial court will not be disturbed unless manifestly erroneous. (Silagy, 116 Ill. 2d at 365.) If a petitioner fails to set forth facts which make the required showing as to the claimed constitutional deprivation, the trial court is authorized to summarily dismiss the petition. Green, 218 Ill. App. 3d at 75.

In the present case, the trial court properly dismissed the petition because, even if defendant’s allegations are true, they do not support a claim that defendant’s constitutional rights have been violated. In People v. Jackson (1991), 213 Ill. App. 3d 806, 811, we noted our inability to find any Illinois cases which hold that the failure to inform a defendant of his eligibility for an extended-term sentence during plea negotiations constitutes ineffective assistance of counsel. Likewise, in the present case, defendant cites no authority for the proposition that he has a constitutional right to be fully informed before rejecting a plea bargain offer.

According to People v. Navarroli (1988), 121 Ill. 2d 516, a plea bargain, standing alone, does not give rise to a constitutionally protected interest; rather, it is the ensuing guilty plea that implicates the constitution. Therefore, defendant’s inability to reap the benefits of the plea agreement did not deprive defendant of liberty or any other constitutionally protected interest because defendant did not plead guilty in reliance on the agreement. People v. Boyt (1985), 109 Ill. 2d 403; see also People v. Luna (1991), 211 Ill. App. 3d 390.

We also note that defendant’s assertions do not support an ineffective assistance of counsel claim because defendant cannot show (1) that the results of the trial would have been different absent trial counsel’s errors or (2) that trial counsel’s conduct so undermined the proper function of the adversarial process the trial could not be relied upon as having produced a just result. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Chandler (1989), 129 Ill. 2d 233.) Since defendant does not have a constitutional right to be fully informed of his options before rejecting a plea bargain, defense counsel’s actions cannot be said to have undermined the adversarial process, nor can they be said to have affected the trial such that it could not produce a just result. Importantly, defendant was not induced to plead guilty, and he received a fair trial, resulting in a conviction which we affirmed on direct appeal.

Defendant asks to be excused of the requirement that he support his petition with affidavits or other evidence because he represented himself pro se. While we agree that the first stage of a post-conviction proceeding filed pro se will withstand dismissal if it contains a simple statement which presents the gist of a claim for relief, that statement must also be meritorious when considered “in view of the record of the trial court proceedings.” (People v. Dredge (1986), 148 Ill. App. 3d 911, 913.) Since we find nothing on the record which would support defendant’s petition, the trial court correctly dismissed it as frivolous.

In addition, defendant fails to recognize the provision of the Post-Conviction Hearing Act which allows the trial court to dismiss a petition as frivolous or lacking merit before an order is made appointing counsel. Specifically, the statute provides that “[i]f appointment of counsel is so requested, and the petition is not dismissed [as frivolous] pursuant to Section 122 — 2.1, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 122—4.

Therefore, in the absence of affidavits supporting the meritless allegation that defendant’s constitutional rights were violated, the trial court properly dismissed defendant’s petition as frivolous.

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

Affirmed.

BOWMAN and DOYLE, JJ., concur.


text:
    CHONG U. KIM et al., Plaintiffs-Appellees, v. MUN BOO KIM, Defendant-Appellant.
    Second District
    No. 2—92—1206
    Opinion filed August 5, 1993.

      Bruce J. Van Heukelem and Earl A. Talbot, both of Hoogendoorn, Talbot, Davids, Godfrey & Milligan, of Chicago, for appellant.
    Midong Brown Choi and Jackson Williams, both of Choi & Schugg, of Chicago, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

The plaintiffs, Chong U. Kim and Song Ja Kim, obtained a judgment by confession in the amount of $60,645.50 on a promissory note signed by the defendant, Mun Boo Kim. The defendant appeals from the trial court’s order denying his motion to open the judgment by confession. We reverse and remand.

The relevant facts of this case are as follows. On March 17, 1992, the defendant signed a contract for the purchase of a dry-cleaning business, Cardel Cleaners, owned by the plaintiffs. The purchase price was $90,000, of which $60,000 was to be in the form of an installment note payable to the plaintiffs. The contract was contingent upon the defendant’s securing a lease for the business premises “for a period of not less than five years at a rental of $1430 per month on or before March 26, 1992.” The closing of the sale was scheduled for April 1, 1992.

On March 31, 1992, Affiliated Realty, as agent for the landlord of Cardel Cleaners, prepared documents pertaining to an assignment of the existing lease from the plaintiffs to the defendant. The landlord required that the lease be assigned to both the defendant and his wife. However, the defendant told the plaintiffs and their counsel that his wife was not a party to the transaction and would not execute any document in connection therewith.

On April 1, 1992, the parties agreed to close the sale in escrow. The plaintiffs’ attorney, Midong Choi, prepared an escrow agreement pursuant to which he would act as escrowee. The defendant deposited into escrow $30,000, the $60,000 note, a security agreement, a collateral assignment of lease and a Uniform Commercial Code financing statement. The escrow agreement signed by all parties and dated April 1,1992, further provided:

“I, MIDONG CHOI, as escrowee shall hold the above deposits until Buyer secures an assignment of present lease at Cardel Cleaners. Except for pay out to Affilliated [sic]. Buyer shall obtain possession of the above business as of April 2, 1992, 12:01 am.
In the event the Buyer do [sic] not obtain said assignment of present lease within 2 days, escrowee shall return all respective parties’ deposit [sic] to respective parties and Seller agrees to return above amount received to Buyer. Buyer agrees to return possession of the business to Seller, champion [sic] Realty and other broker involved agree to return all commission [sic] received to Seller.
In the event that the Buyer does obtain said assignment, escrowee shall tender to Seller all the Buyer’s deposit and tender to Buyer all Seller’s deposit.”

The defendant subsequently notified the escrowee of his failure to secure an assignment of the lease, and he demanded the return of the escrow deposits. On May 20, 1992, the plaintiffs sued the defendant for a confession judgment based on the $60,000 note the defendant had deposited into escrow. On June 4, 1992, the trial court entered an order of judgment by confession in favor of the plaintiffs for $60,645.50.

On June 30, 1992, the defendant filed a motion to open the judgment by confession. The defendant alleged that he had a good and meritorious defense to the plaintiffs’ claim, in that the contract and promissory note were contingent upon his securing a lease of the business premises. The defendant filed an affidavit in support of his motion in which he stated that he had attempted to secure a new lease or an assignment of the present lease but had been unable to do so. The defendant later filed the supplemental affidavit of his attorney, Choi M. Yang. Yang stated that the plaintiffs knew that the defendant did not want his wife to be a party to the transaction, but that Affiliated Realty would not consent to an assignment of the lease in the defendant’s name only.

The plaintiffs filed counteraffidavits of Mariann Eder, an employee of Affiliated Realty, and Midong Choi. Eder stated that on March 31, 1992, Affiliated agreed to consent to the assignment of the Cardel Cleaners lease to the defendant and his wife. However, Eder further stated that she did not hear from the defendant concerning execution of the assignment, and calls to his attorney were not returned. Choi stated that he was not notified about the defendant’s wish to cancel the purchase until two weeks after the closing.

The trial court denied the defendant’s motion, ruling:

“[t]hat the procuring of a new lease was a contingency that was dealt with by the parties at the time the agreement was signed and in a subsequent document and was waived by the defendant’s failure to declare said failure within the time provided;
That the affidavits and documents on file demonstrate that the defendant did not make a good faith effort to obtain a new lease and the same did not come to pass for his failure to sign the new lease.”

The procedure for opening a judgment by confession is set forth in Supreme Court Rule 276 (134 Ill. 2d R. 276). That rule provides in part:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 191 for summary judgments, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s claim, the court shall set the motion for hearing. The plaintiff may file counteraffidavits. If, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff’s claim and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted.” 134 Ill. 2d R. 276.

Thus, on a motion to open judgment by confession, the trial court is only to determine whether the defendant’s motion and affidavits disclose a prima facie defense. (First National Bank v. Achilli (1973), 14 Ill. App. 3d 1, 4.) No inquiry into the controverted facts of the case are to be conducted; rather, the court must accept as true the facts asserted by the defendant in his affidavits. (Achilli, 14 Ill. App. 3d at 4.) The trial court may not try the merits of the case on the affidavits or counteraffidavits because such a procedure would encroach upon the right to trial by jury. (Kuh v. Williams (1973), 13 Ill. App. 3d 588, 593.) The motion is addressed to the sound legal discretion of the court and will not be disturbed on review absent an abuse of that discretion. (Schultz v. Gignac (1981), 94 Ill. App. 3d 399, 401.) However, when a prima facie defense is raised, the trial court has no discretionary authority but must open the judgment and proceed to trial. Gromer, Wittenstrom & Meyer, P.C. v. Strom (1986), 140 Ill. App. 3d 349, 352.

In this case, the defendant’s motion alleges that the promissory note was contingent upon the assignment of an existing lease or a new lease. The defendant filed affidavits complying with Supreme Court Rule 191 (134 Ill. 2d R. 191) which alleged that he was unable to secure a satisfactory assignment. Thus, the defendant's motion and supporting affidavits raise the defense of failure of consideration, which is a valid statutory defense to an action upon a note. (815 ILCS 105/9 (West 1992).) Once the defendant raised the meritorious defense of failure of consideration, the trial court had no discretionary authority, but was required to allow the motion to open judgment and proceed to trial.

The trial court erred in ruling that the defendant had waived his defense and had not made a good-faith effort to secure a lease. The court did not accept as true the facts asserted by the defendant in his affidavit that he had unsuccessfully attempted to secure a lease and had so notified the plaintiffs. Further, the court improperly weighed the statements in the counteraffidavits that the defendant did not contact Affiliated Realty about the execution of an assignment of the lease and did not promptly notify the plaintiffs about his wish to cancel the purchase. The court therefore abused its discretion in denying the defendant’s motion to open the judgment by confession.

The judgment of the trial court is reversed, and the cause is remanded with directions to open the judgment and proceed to trial.

Reversed and remanded with directions.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE GREEN

text:
    TONY L. MARKERT, Plaintiff-Appellee, v. GEORGE H. RYAN, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—92—0981
    Opinion filed August 12, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Charles S. Watson, of Feldman & Wasser, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 10, 1992, the Secretary of State (Secretary) denied the application of plaintiff Tony L. Markert for reinstatement of his full driving privileges or, in the alternative, for a restricted driving permit (RDP). On October 13, 1992, plaintiff filed a complaint in the circuit court of Sangamon County for administrative review of the Secretary’s decision. In addition, plaintiff filed a motion to stay the Secretary’s order denying reinstatement of his full driving privileges or an RDP. On November 2, 1992, the circuit court entered an order granting plaintiff’s motion to stay the Secretary’s order and extending defendant’s previously issued RDPs until final decision was made on review. The Secretary filed the instant interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). On appeal, the Secretary claims that the court erred in staying his decision to deny plaintiff driving relief and extending plaintiff’s previously issued RDPs pending final decision on administrative review because (1) the circuit court had no authority to issue the order, and (2) in any event, the court abused its authority because the stay did not merely sustain the status quo. We disagree and affirm.

The record indicates the Secretary revoked plaintiff’s driver’s license on June 25, 1986, pursuant to section 6—205(a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1985, ch. 951/2, par. 6—205(a)(2)), following plaintiff’s conviction for driving under the influence of alcohol (DUI). Subsequently, on March 18, 1992, the Secretary issued plaintiff two RDPs pursuant to section 6 — 205(c) of the Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 6—205(c)), granting plaintiff driving privileges in conjunction with his employment as a farmer and to attend Alcoholics Anonymous (AA) meetings. The RDPs were to expire October 29, 1992. On August 25, 1992, plaintiff petitioned the Secretary for reinstatement of his full driving privileges or, in the alternative, issuance of an RDP. A hearing was held and the hearing officer subsequently issued her written findings recommending that the Secretary deny plaintiff’s application for reinstatement of his full driving privileges or an RDP. The Secretary issued a final decision fully adopting the hearing officer’s findings of fact and conclusions of law and denied plaintiff both full reinstatement and an RDP.

Plaintiff filed a complaint for administrative review of the Secretary’s decision pursuant to the Administrative Review Law (Review Law) (Ill. Rev. Stat. 1991, ch. 110, par. 3—101 et seq.), together with a motion to stay (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 111(a)(1)), requesting the court to renew his previously issued RDPs. Plaintiff’s motion to stay asserted that (1) his previously issued RDPs would expire prior to the administrative review of the Secretary’s decision; (2) he was a self-employed farmer and he needed to drive in order to operate his farm; (3) he had not been ticketed or otherwise been in violation of the requirements set forth in his RDPs; (4) he presented no danger to the motoring public and the expiration of his RDPs would result in irreparable harm; and (5) the issuance of a stay would preserve the status quo and would have the effect of continuing the already issued RDPs.

Attached to the motion to stay was plaintiff’s affidavit essentially asserting (1) he had been sober since July 1989; (2) he had not been convicted of DUI since 1985; (3) he had not been convicted of any moving violation since 1985; (4) he had not violated the terms of his RDPs; (5) if he was unable to drive a motor vehicle he would not be able to sell his crops which would ultimately lead to bankruptcy; (6) he could not afford to pay anyone to haul his crops; and (7) if he could not operate his farm he would not be able to pay tuition for his two children currently enrolled in college.

On October 29, 1992, the Secretary filed a special and limited appearance alleging the circuit court lacked jurisdiction to hear plaintiff’s complaint because he had not received a properly issued summons. Consequently, plaintiff obtained an alias summons which was served on the Secretary, and a hearing on the motion to stay was held November 2, 1992. The hearing and subsequent order allowing plaintiff’s motion to stay and extending his RDPs was entered after the expiration of the RDPs on October 29,1992.

Section 3 — 111(a)(1) of the Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—111(a)(1)) provides that the circuit court may order a stay of an administrative decision upon a showing of good cause pending the final disposition on administrative review. Good cause is not determined by traditional equitable requirements, but rather “requires a showing that an immediate stay is required in order to preserve the status quo and that the plaintiff has raised at least a fair question as to the likelihood of success on the merits.” (Emphasis in original.) Moore v. Markowitz (1984), 127 Ill. App. 3d 1050, 1055, 469 N.E.2d 1133, 1137.

The Secretary’s contention that the circuit court lacked the power to grant plaintiff a privilege to drive under restricted conditions pending appeal is based upon People v. Sales (1990), 195 Ill. App. 3d 160, 551 N.E.2d 1359. There a defendant had pleaded guilty to two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12—16(b)). Section 6-205(b)(2) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—205(b)(2)) required the Secretary to revoke the driver’s license of a person convicted of such an offense, but section 6—205(c) of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6—205(c)) provided that upon such a conviction, the court might “ ‘recommend’ ” issuing an RDP and the Secretary might “ ‘in his discretion, without regard to whether such recommendation is made by the court’ ” (emphasis in original), issue an RDP to such a defendant. (Sales, 195 Ill. App. 3d at 162, 551 N.E.2d at 1360, quoting Ill. Rev. Stat. 1987, ch. 951/2, par. 6—205(c).) There the circuit court, without recommending issuance of such a permit, ordered the Secretary to do so.

On appeal by the Secretary to the Second District Appellate Court in Sales, that court vacated the order for issuance of the RDP as void. The appellate court reasoned that the order violated the separation of powers doctrine. The Sales court explained that the legislature had given to the executive branch, the Secretary, the power to exercise discretion in regard to the granting of the RDP. That court concluded that the legislature gave the court merely the power to recommend and, after the exercise of the discretion by the Secretary, to pass upon whether that exercise of discretion had been abused.

There, the grant of the restricted driving privileges assumed by the circuit court was not part of the legislatively granted power to issue a stay upon administrative review. Here, the circuit court granted the restricted driving privileges pending appeal pursuant to its power to stay orders of administrative decisions pending judicial review of that decision as set forth in section 3 — 111(a)(1) of the Review Law. A circuit court is faced with a serious decision in determining whether to grant a stay requiring issuance of an RDP pendente lite in a case of this nature because of the danger a person likely to drive while intoxicated imposes upon the public. However, here, the court was acting within its legislatively granted power and did not infringe on the executive power of the Secretary.

The question of whether the circuit court abused its discretion by ordering that plaintiff be given restricted driving privileges pending the judicial review of the Secretary’s denial of his request for an RDP is more complex. The status quo has been defined as “ ‘the last actual, peaceful, non-contested status which preceded the pending controversy.’ ” (American Telephone & Telegraph Co. v. Village of Arlington Heights (1988), 174 Ill. App. 3d 381, 387, 528 N.E.2d 1000, 1004, quoting In re Marriage of Sherwin (1984), 123 Ill. App. 3d 748, 753, 463 N.E.2d 755, 758; Deisenroth v. Dodge (1953), 350 Ill. App. 20, 23, 111 N.E.2d 575, 576.) The Secretary contends that the time for determining the situation to maintain was that which occurred on November 2, 1992, when the circuit court ruled upon plaintiff’s request for a stay. This was after the RDPs had expired on October 29, 1992. If that was the situation to be preserved by a stay, plaintiff would not have been entitled to any restricted driving privileges pending judicial review of the administrative denial of an RDP renewal.

If the status quo is that which exists at the time the request for a stay is made, stay orders would have little effect. Here, the Secretary entered the administrative order denying a new RDP on November 2, 1993. At that time the RDPs were in effect. The major thrust of the Secretary’s position is that although the RDPs were then in effect, the status quo was that they would expire shortly. The Secretary also contends that the RDPs were the result of another proceeding and are too remote to the question of issuance of a new RDP to be considered in determining the status quo.

Both parties cite the case of People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 170 N.E.2d 159. There, a defendant had sought review of the Secretary’s decision to revoke his license to sell automobiles. The circuit court entered an order staying the Secretary’s order of revocation. While pending review in the appellate court, the defendant reapplied for a dealership license, which the Secretary denied based on the same grounds as the original revocation. While that administrative decision was pending review in the appellate court, the defendant again applied for a dealership license, which the Secretary again denied. The Secretary then brought an action in the circuit court seeking to enjoin the defendant from engaging in business without a license. At issue was the effect of the stay order on the defendant’s subsequent applications for a license. The defendant argued that the stay order entered by the circuit court pending review of the Secretary’s decision to revoke his license gave his license “continuing validity.” (Goers, 20 Ill. 2d at 278, 170 N.E.2d at 162.) On appeal, the supreme court rejected defendant’s position, stating it was inconsistent with the statutory scheme providing for licenses that expire at the end of each calendar year. Goers, 20 Ill. 2d at 278, 170 N.E.2d at 162.

The Goers court did recognize that even though dealership licenses expire in one year, each licensing period was not completely unrelated to each other. It reasoned that because the grounds upon which the license was revoked could be used as a basis for a denial of a subsequent application, the revocation of a license had a continuing effect. Accordingly, the court stated that the stay of a revocation order means that while administrative review is pending the administrative agency cannot deny a subsequent license application on the same grounds used as a basis for the revocation order pending review.

Citing Goers, the Secretary maintains that the effect of the stay imposed by the circuit court here was to give “continuing validity” improperly to the expired RDPs. Citing Goers, plaintiff asserts that here, as in Goers, consideration can be given to action in regard to the defendant’s permission to operate. There the action was the stay of the license revocation. Here, it was the issuance of the RDPs. We recognize that the stay here did give temporarily continuing validity to the RDPs, but those RDPs were sufficiently related to the request for a new RDP to be considered in connection with determining the nature of a stay pending review of the denial of a new RDP.

No case has been called to our attention which involves the temporary grant of some sort of a license pending the determination of whether a new license shall be granted. The closest cases, such as Go ers, focus upon stays of orders revoking a license. Plaintiff draws analogy to Cahokia Sportservice, Inc. v. Illinois Liquor Control Comm’n (1975), 32 Ill. App. 3d 801, 336 N.E.2d 276, where the appellate court affirmed a stay order continuing a liquor license in effect pending judicial review of the Illinois Liquor Control Commission’s revocation of the license. That court described the circuit court’s power to stay administrative orders as including the “traditional powers of a court of chancery to implement the stay until final disposition of the case, by issuance of an injunction” (Cahokia Sportservice, 32 Ill. App. 3d at 805, 336 N.E.2d at 280) and described the effect of the stay as being “to prevent the licensing commission from denying the party [whose license was revoked] the benefits of a license” until final decision (Cahokia Sportservice, 32 Ill. App. 3d at 806, 336 N.E.2d at 280).

The Secretary does not dispute that the record here was such that the circuit court could find that plaintiff would suffer a hardship if restricted driving privileges were not granted pending review and that a fair question existed as to whether plaintiff will ultimately be found to be entitled to a new RDP. If the office of a stay is to give an injunctive type of temporary relief, that relief can include that of a mandatory nature, as ordered here, as well as that of a prohibitory nature as provided for in Goers and Cahokia Sportservice. We conclude that to prohibit the circuit court from granting a stay of the type ordered here (1) because the existing RDPs were insufficiently connected to the request for a new RDP, or (2) because they would expire soon after the administrative action and had expired at the time of the entry of the stay, would be too technical to be fair.

Accordingly, we affirm the order for a stay.

Affirmed.

COOK and LUND, JJ., concur.