author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY NEWMAN, Defendant-Appellant.
    Fourth District
    No. 4—90—0312
    Opinion filed March 21, 1991.
    Rehearing denied May 9, 1991.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a December 6, 1989, bench trial, defendant Terry Newman was convicted of unlawful possession with intent to deliver 15 grams or more but less than 100 grams of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) and sentenced to eight years’ imprisonment. Defendant was acquitted on a separate charge of armed violence. (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2.) Codefendants, Gregory Davis and Marvin Spencer, were also charged with unlawful possession with intent to deliver a controUed substance. On defendant’s motion, defendant’s case was severed from theirs.

On appeal, defendant contends his conviction must be reversed because (1) the State failed to prove beyond a reasonable doubt defendant possessed a controlled substance with the intent to deliver; (2) the State intentionally withheld from discovery the fact a preraid surveillance had been conducted by the police; and (3) the trial court failed to consider defendant’s motions alleging ineffective assistance of counsel. Defendant also contends the trial court erred in sentencing. We affirm but remand for a correction in his sentence as to credit for time served.

The testimony at trial showed at approximately 11 a.m. on August 2, 1989, a confidential source, who remained unidentified throughout the trial, went to 3221/a North 13th Place, located in the John Hay Homes project, and purchased a small quantity of cocaine from Marvin Spencer. The confidential source observed Spencer with a black semi-automatic pistol. Based on this information, Detective Ron Vose obtained a search warrant for 322Va North 13th Place, which was the residence of Spencer’s girlfriend, Michelle Thomas. The search warrant provided for the seizure of all firearms and of any controlled substances and related paraphernalia or records.

At approximately 5 p.m., the officers who were to execute the search warrant attended a briefing session where officers were assigned individual tasks. During this time, Vose and Agent Benny O’Neil conducted a surveillance of the apartment and surrounding area.

At approximately 5:50 p.m., the officers arrived at the apartment to conduct the raid. The second-floor apartment had only one entrance, which was located on the south side of the building. Sergeant Steve Fermon arrived first and went to the west side of the building to insure no one fled from the windows located on that side. It was from there Fermon saw a window screen fall from a second-story window and observed defendant trying to exit the apartment from the same window. Fermon thought the window screen might have been kicked out. At this time, Fermon saw nothing in defendant’s hands. Fermon identified himself as a police officer and ordered defendant to the floor inside the apartment. Defendant complied. A few seconds later, Sergeant Dan McCarty came around to the southwest side of the building and shouted “He’s got a shotgun.” McCarty testified he observed a black male standing at the second-floor window with a long-barreled weapon in his hand.

Meanwhile, Sergeant Terry Wubker, who was located on the southeast side of the building, saw someone momentarily stick his head out of an open window when other officers announced the presence of police. Wubker then heard what he thought was the top coming off a toilet and the sound of a toilet flushing. Around the same time, Wubker heard someone yelling from the other side of the building that a weapon had been seen. Wubker testified a lot of activity could be heard from both inside and outside the apartment.

At the same time Wubker testified to hearing the toilet flush, other officers were attempting to open a dead-bolt door on the south side of the apartment. Using a battering ram, it took the officers about one minute to enter the apartment. The officers then had to climb a flight of stairs to reach the apartment. The first officers to enter observed Gregory Davis in the living room of the apartment. These officers ordered Davis to the floor.

The next officers into the apartment proceeded to the rnly bedroom, which was located directly north of the living room. There they found defendant lying on the floor under the window through which he had attempted to exit. Marvin Spencer was also lying on the bedroom floor near the south wall of the bedroom.

The officers who checked the bathroom, which was located east of the bedroom, noticed the toilet appeared to have been recently flushed and was in the process of refilling.

Davis, Spencer, and defendant were handcuffed and arrested. A search of Davis produced a clear plastic bag containing .8 grams of cocaine and $273. Three tablets, a key, a bullet, a Maryland driver’s license, a room key, and $2,000.96 were found on Spencer’s person, while defendant had $22 in his left shoe.

After the three men had been arrested, officers conducted a search of the apartment. On the floor near the south wall of the bedroom, officers found a clear plastic bag which held five smaller bags. The contents of two of these bags were analyzed, and each was found to contain cocaine. The gross weight of the larger bag containing the five smaller bags was 5.9 grams. A second clear plastic bag containing eight smaller plastic bags was found under the bed near the west wall. The contents of three of these bags were analyzed, and each was found to contain cocaine. The gross weight of this package was 11.3 grams. Between the bed springs and mattress, officers found a plastic bag containing 25 packets of a prewrapped substance. Five of these packets were analyzed and found to contain cocaine. The gross weight of the packets was 36.1 grams.

Located in a closet between the bedroom and bathroom, officers found a large plastic bag filled with a powdery substance and a 50-gram scale. The plastic bag was found to be filled with 232.7 grams of lidocaine, which is not a controlled substance.

In the kitchen, which was located at the east end of the living room, police officers discovered a .45 caliber pistol and a rifle located in the closet. Both weapons were loaded and the rifle was half cocked. Both the rifle and the pistol were checked for fingerprints. Only one fingerprint taken was suitable for comparison, and it did not match those of any of the defendants.

A search of the kitchen also produced various amounts of cocaine and drug paraphernalia. Sitting on the kitchen table was a plastic bag containing a powdery substance. The substance weighed 26 grams and was 27.6% cocaine. Residue powder on the kitchen table and from underneath it was also tested as containing cocaine. Officers seized a mirror, razor blade, spoons, baggies, rolling paper, and three strainers. Large quantities of the cutting agent inositol were found on top of the table and underneath it. Residue from the mirror found on the table and from the top of the refrigerator contained cocaine.

An operating police scanner was found in the living room of the apartment. A complete search of the apartment revealed there were no dishes, food, or household supplies in the kitchen. Furthermore, there was no television in the apartment, no sheets on the bed, and no clothes in the closet.

Defendant’s pretrial motion to disclose the confidential source resulted in a stipulation the confidential source had never seen defendant at the apartment in the past.

The defendant did not testify and called only one witness, codefendant Gregory Davis. As soon as defense counsel began questioning Davis as to his whereabouts on August 2, 1989, Davis invoked his fifth amendment right to remain silent.

Defendant contends he was not proved guilty beyond a reasonable doubt of the offense of possession of a controlled substance with intent to deliver. In support of his contention, defendant cites he had no cocaine and only $22 on his person at the time of the raid. Defendant contrasts this with the fact Spencer had previously been seen in the apartment dealing drugs and had over $2,000 on his person; Davis had cocaine on him at the time of the raid; and the apartment was rented to Spencer’s girlfriend. Defendant contends his conviction was based upon his mere presence in the apartment and, in support, cites the emphasized portion of the trial court’s statement below.

In rendering its judgment, the trial court stated the following:

“This is a case of constructive possession charging the defendant with possession of controlled substance and of armed violence.
The evidence that this court heard is that in this apartment the defendant Newman is found in a bedroom lying on the floor where he was told to lay by the police officer, and right next to the bed and there also under the mattress of the bed was found cocaine packaged up in separate containers.
I believe there are cases saying that being close to the product is some evidence of possession.
The court also finds that from the appearance of this place that it wasn’t — it doesn’t necessarily have to be a place to sell cocaine, that it could be a place where they were making it, packaging it to be distributed and that could account for the fact that there wasn’t any further money found.” (Emphasis added.)

To support a conviction of unlawful possession of a controlled substance with intent to deliver, the State must establish the defendant had knowledge of the presence of the controlled substance, the controlled substance was in the immediate control or possession of the defendant, and the defendant intended to deliver the controlled substance. People v. Pintos (1988), 172 Ill. App. 3d 1096, 527 N.E.2d 312.

Regarding the first of these elements, we note knowledge is hardly ever susceptible of direct proof. Instead, knowledge may be proved by the defendant’s acts, declarations, or conduct from which an inference may be fairly drawn he knew of the existence of the controlled substance at the place where found. People v. Embry (1960), 20 Ill. 2d 331, 169 N.E.2d 767.

Defendant has raised no argument on appeal alleging he lacked knowledge of the presence of the controlled substance. Such an argument would be futile based upon the record in this case. Numerous police officers testified to seeing vast quantities of cocaine in the apartment within their plain view. The kitchen area of the apartment was clearly set up to process and package cocaine. The residue removed from the kitchen table top and floor constituted 2.8 grams. Bags of cocaine were found in the room in which defendant was found. One of these bags was found lying out in the open on the floor. The contents of the entire apartment were almost solely drugs or drug related. Moreover, defendant’s attempted escape from a second-story window lends further support to the contention he had knowledge of the presence of the cocaine.

©3 Concerning the second element of possession, it is well established actual physical possession of the controlled substance is not required. Possession may be constructive as well as actual. The evidence establishing constructive possession is often wholly circumstantial. A trial court must weigh those facts which tend to support a defendant’s necessary control over the substance against those facts which demonstrate lack of dominion and control. (Pintos, 172 Ill. App. 3d at 1103, 527 N.E.2d at 316.) Furthermore, the fact other persons are present with the defendant will not negate a finding of constructive possession, since possession may be joint. Embry, 20 Ill. 2d at 335, 169 N.E.2d at 769.

The State’s proof defendant was in possession of the cocaine is based on circumstantial evidence. The apartment which defendant was found occupying was filled with drugs and drug-related paraphernalia. Defendant was found in a back room of the apartment which contained over 53.3 grams of cocaine. The testimony at trial was that a normal cocaine buy takes only minutes. Defendant was in the apartment for at least an hour. Defendant attempted to escape from a second-story window when the raid began. Numerous police officers testified to hearing a lot of activity going on inside the apartment during the time it took them to gain entry. Police officers testified, and later observed, a toilet had been flushed during this time. The officers testified this is a common way of destroying evidence. This evidence is sufficient to establish defendant’s possession and control.

Regarding the last element, intent to deliver, it is a reasonable inference possession of a controlled substance in excess of any amount normally intended for personal use is possession with intent to deliver. (People v. Perine (1980), 82 Ill. App. 3d 610, 402 N.E.2d 847.) Such an inference is clearly permissible here as the apartment contained vast quantities of cocaine and was clearly set up as a processing place.

Defendant next contends the State intentionally failed to comply with discovery by not disclosing Detective Ron Vose would testify concerning pretrial surveillance. Defendant contends the State’s failure to comply with discovery was intentional and points to Vose’s testimony as proof.

Pursuant to Supreme Court Rule 412 (134 Ill. 2d R. 412) defendant filed a motion for discovery. The State responded by providing defendant with a list of witnesses to be called and extensive police and lab reports. However, none of the reports, including Vose’s own report, made any mention of the preraid surveillance. Defendant contends this failure by the State is not harmless error as the trial court, in rejecting defendant’s post-trial motion for acquittal, cited Vose’s testimony defendant had been in the apartment for at least an hour prior to the raid.

On direct examination, Vose testified to having conducted a preraid surveillance of the apartment. He testified this was a normal procedure used to determine if any of the occupants were at home, if there is any unusual activity in and out of the location, if any civilians are in the area, and to insure that the roadways surrounding the location are clear. In response to the question “Were you alone?” Vose replied “Yes.”

Vose testified he began the preraid surveillance at approximately 4:45 p.m. He was stationed so that he could see the front, and only, entrance to the apartment. During the course of the surveillance, Vose saw one individual enter the apartment and stay for approximately five minutes. The man walked up to the apartment and knocked on the front door. An individual from inside the apartment answered.

On cross-examination, Vose testified he made no particular report of the preraid surveillance. In response to the question of why no report was made, Vose answered his job was just simply to let the raid team be aware of the situation before its arrival. Later, Vose did testify it was important to record the times when things occurred during a preraid surveillance. Vose stated the only thing which occurred during this surveillance was that one person entered and exited the apartment. Vose testified he knew this person personally and knew the person was not a resident of the apartment. Vose testified it was possible he did take his eyes off the doorway area and someone could have come in during that time. In response to the question “You were there by yourself doing surveillance?” Vose replied “Yes.”

At the conclusion of Vose’s testimony, defense counsel made a motion to exclude Vose’s testimony concerning the preraid surveillance because it was not mentioned in discovery materials. The trial court denied defendant’s motion.

After all the evidence had been heard in this case, the trial court recessed for lunch. Upon reconvening, the State made the following remarks regarding Vose’s testimony:

“I’ve already spoke with Mr. Lewis on this issue, and Mr. Vose — Agent Vose was the last witness that I called as a witness prior to the lunch break.
During that questioning there was some questioning as to whether or not other people could verify the surveillance conducted by Agent Vose prior to the execution of the search warrant, and Agent Vose indicated that there was not.
During the lunch break Agent Vose and I discovered that Agent Vose had misunderstood — basically had read too much into the question, and the result was that Agent Vose was not by himself. He was the only witness that could testify as to the surveillance, because Benny O’Neil, who was with him, and had been with him throughout these proceedings and could not be called as a witness to testify.
So when Mr. Lewis asked whether or not someone could verify the surveillance Agent. Vose indicated no, because he knew that Agent O’Neil had been in the courtroom and could not testify.
It was simply a misunderstanding. Agent Vose brought it to my attention as soon as he realized there was a misunderstanding.
I in turn brought it to Mr. Lewis’ attention, and in bringing it to the court’s attention immediately so that there could be no doubt that we’re not trying to conceal anything or no impropriety occurred.
It was just simply a misunderstanding, and we wanted to clear it up with the court.”

In response to this statement, the court replied the State previously had an opportunity for redirect examination of Vose and any misunderstanding could have been corrected at that time. The court stated it was not going to give the State leave to reopen its case. Defense counsel made no objection to the State’s post-trial disclosure nor made any requests to reopen the case or ask for a continuance.

This case is factually similar to a previous case decided by this court. In People v. Abbott (1977), 55 Ill. App. 3d 21, 370 N.E.2d 286, the defendant was convicted of burglary of a furniture store and appealed, contending the State had violated Supreme Court Rule 412 in failing to disclose the substance of an officer’s testimony. Officer Sestina had been assigned to surveillance of the store and had watched defendant enter and remove numerous items. Officer Sestina called two other officers who arrived and arrested the defendant. The record indicated the State had listed Sestina as a trial witness, though the defense had not made any effort to interview him prior to trial. No memorandum existed concerning the surveillance activity. This court denied the defendant’s claims he had not been given a fair trial and cited that the rules of discovery do not require the State reduce all of a witness’ pretrial statements to written memoranda. This court further found the State’s failure to disclose the occurrence of a surveillance had not been an intentional act to preclude disclosure. Abbott, 55 Ill. App. 3d at 24, 370 N.E.2d at 289.

Here, the State’s failure to disclose the preraid surveillance was not intentional nor does it constitute reversible error. As in Abbott, Vose’s name was listed by the State as a witness to be called at trial. From the documents which were disclosed, Vose appeared to have played one of the most active roles in both planning and carrying out the raid. It was Vose who originally procured the search warrant in this matter. Though not questioned by defendant on appeal, any inconsistencies in Vose’s testimony could have been considered by the trier of fact in determining his credibility and the weight to be given to his testimony.

We disagree with defendant’s argument he was totally unaware of the surveillance until Vose testified at the close of the State’s case. In opening argument, the State explained while other officers were holding a meeting regarding the execution of the search warrant, Agent Vose and Agent Benny O’Neil were at the area of 3221/2 North 13th Place setting up surveillance. The first witness called by the State, Sergeant Steven Fermon, stated on direct examination that Agents Vose and O’Neil did not attend the group meeting as they had been sent to the vicinity of the apartment to conduct surveillance.

Last, we find this case to be factually different than People v. Szabo (1983), 94 Ill. 2d 327, 447 N.E.2d 193, which defendant has relied upon. There, an assistant State’s Attorney made rough notes of the approximately 20 interviews she conducted with an alleged accomplice. The assistant State’s Attorney later summarized the interviews into an eight-page outline of the accomplice’s expected trial testimony and destroyed the rough notes. When defense counsel moved for disclosure of the rough notes, the State refused, claiming they were non-discoverable work product. The State did offer to produce the eight-page outline if the court so ordered. The supreme court ruled the defendant was entitled to have the notes reconstructed and produced for an in camera inspection to determine whether they were work product or discoverable. In making its ruling, the Illinois Supreme Court again reiterated the discovery rules do not require the State reduce all its witnesses’ statements to writing; however, when the failure to preserve a statement in written form amounts to an intentional tactic to prevent disclosure of relevant materials to a defendant, such action will not be condoned. (Szabo, 94 Ill. 2d at 344-47, 447 N.E.2d at 201-02.) Nothing here suggests an intentional tactic on the State’s part to prevent disclosure.

Defendant also contends the trial court erred in failing to consider his pro se motions alleging ineffective assistance of counsel and such failure requires reversal or remandment for a hearing on these motions. The State contends defendant waived the issue of ineffective assistance of counsel by failing to bring it to the court’s attention and the errors cited by defendant in his motions were tactical decisions which would be excluded from such claims. We agree with the State on waiver.

On March 6, 1990, defendant filed two pro se motions. In the first motion, entitled motion for retrial- based on ineffective counsel, defendant contended he had wanted to introduce a pretrial statement which he made to Sergeant Fermon. Defendant’s motion stated his attorney had told him introduction of the statement would hurt him and the statement was not introduced at trial. Defendant also contended he had wanted a jury trial and had wanted to testify. Again, defendant’s motion stated his attorney had disagreed, stating defendant’s background would hurt him. Last, defendant cited his attorney had not argued it was a codefendant who was the actual target of the raid. In his second motion, entitled motion for retrial based on withholding information, defendant again reiterated his desire to have his pretrial statement to Sergeant Fermon introduced at trial. At the conclusion of both of these motions, defendant stated “I would like to present oral arguments.”

Counsel for defendant filed a motion for new trial or, alternatively, for an acquittal on March 21, 1990. In this motion, defense counsel reargued the facts of the case, stressing the evidence was insufficient to establish guilt beyond a reasonable doubt, the chemical testing performed in this case had been insufficient, and the testimony of Agent Vose regarding preraid surveillance should be stricken as it affected both defendant’s right to cross-examination and defense counsel’s preparation of the case.

Although no notice of these motions appears in the record, defense counsel’s motion for a new trial or alternatively for acquittal was argued prior to the sentencing hearing held on April 27, 1990. Defendant was present at this hearing and testified immediately after at the sentencing hearing. At no time did defendant make mention of his own pending motion.

Unless a motion is brought to the attention of the court and the court is requested to rule on it, the motion is not effectively made. A motion is an application to the court which must be brought to the court’s attention. Merely filing the motion with the clerk of the court does not constitute a sufficient application. (People v. Hornaday (1948), 400 Ill. 361, 81 N.E.2d 168.) This rule is no different if the motion is filed pro se. (See People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731.) Defendant’s additional request for oral argument at the conclusion of each motion does not constitute the required notice. Accordingly, neither reversal nor remandment for a hearing on defendant’s motions is required.

Last, defendant contends the sentencing order must be amended to reflect 269 days’ credit toward his sentence of imprisonment. With this contention, the State agrees.

The record shows defendant was arrested for this offense on August 2, 1989, and remained incarcerated in the Sangamon County jail until August 18, 1989. At this time, he was transferred to Graham Correctional Center for an alleged parole violation and, on December 20, 1989, defendant’s mandatory supervised release was revoked. It was not until January 18, 1990, that defendant was released from the Hillsboro Correctional Center and transported back to the Sangamon County jail. Defendant remained in the county jail until April 27, 1990, when he was sentenced to the Department of Corrections. At no time did defendant post bond for the offenses with which he was charged.

At the sentencing hearing, the trial court relied upon the presentence investigation report, which stated defendant was entitled to 198 days’ credit toward a term of imprisonment. This number only reflected days defendant spent in the Sangamon County jail. It did not credit defendant for days spent incarcerated due to his parole violation. At sentencing, defendant stated he thought he was entitled to more than 198 days, and the trial court responded that if it was more, it could be changed later. The record is clear the trial court did not order incarceration for this offense to be served consecutively to time defendant spent incarcerated for parole revocation.

Under these circumstances, defendant is entitled to credit for the entire time he spent in jail between the day of his arrest and the day of his sentencing, notwithstanding that during this time he served approximately one month in the Department of Corrections for a parole violation. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180; People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) Accordingly, we agree defendant is entitled to 269 days’ credit toward his sentence of imprisonment and direct the sentencing order be changed accordingly.

Affirmed in part; reversed in part and remanded with directions.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    GUST E. GEORGANTAS et al., Plaintiffs-Appellants and Appellees v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee (Lee W. Peters, Defendant-Appellant).
    Third District
    Nos. 3—90—0409, 3—90—0422 cons.
    Opinion filed April 2, 1991.
    Rehearing denied April 25, 1991.

      Tira & Tira, of Coal City (John M. Tira, of counsel), for Gust E. Georgantas and Mary Georgantas.
    Broderick & Chaviano, of Chicago (Thomas H. Dunn, of counsel), for Lee W. Peters.
    Dinah Lennon Archambeault, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellee Country Mutual Insurance Company.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Gust Georgantas, appeals the trial court’s order denying his motion for summary judgment and granting summary judgment in favor of defendant Country Mutual Insurance Company. The defendant Lee Peters cross-appeals the trial court’s order denying his motion for summary judgment and staying arbitration of plaintiff’s underinsured claim.

The plaintiffs Gust and Mary Georgantas filed a three-count complaint against defendants Country Mutual Insurance Company and Lee Peters. Count I was a declaratory action against Country Mutual Insurance Company to determine the available limits of underinsurance coverage available to Gust Georgantas; count II was a negligence action against Lee Peters, plaintiff’s insurance agent, for failing to properly advise and to provide sufficient underinsurance coverage to plaintiff in his family policy; and count III was derivative of count II wherein Mary Georgantas sought damages for loss of consortium based on her husband’s injuries.

Gust Georgantas owned and operated a floral business as a sole proprietorship. He purchased a business policy and a family auto policy through defendant. He insured his personal auto on the family policy. The business policy covered business or scheduled vehicles and provided for up to $250,000 in underinsurance coverage. The family policy provided for up to $100,000 in coverage; however, it contained an “antistacking” clause limiting the available underinsurance coverage to the highest policy limits of any of plaintiff’s policies.

Gust Georgantas was injured when an underinsured motorist struck his personal vehicle that he was driving on company business. Country Mutual Insurance Company extended $250,000 of underinsurance coverage to the plaintiff, which was the highest limit of the plaintiff’s available policies. The plaintiff was not satisfied with that amount and filed suit for a declaration that both policies could be stacked in order for the plaintiff to be eligible for $350,000 of underinsurance coverage.

The trial court ruled as follows: that Gust Georgantas was the same insured in both policies; that the antistacking clause within plaintiff’s family policy was not ambiguous; and that the underinsurance limit available to the plaintiff was $250,000.

The plaintiff raises two issues on appeal: (1) whether the trial court erred in ruling that the antistacking clause is not ambiguous and that underinsurance coverage was limited to $250,000; and (2) whether the trial court incorrectly ruled that Gust Georgantas was the same insured in both policies.

We believe the trial court was correct in holding the antistacking clause applicable and enforcing the same.

When interpreting an insurance policy, the words employed within the policy should be given their plain and ordinary meaning and courts should not insert ambiguities where none exist. (Northbrook National Insurance Co. v. Nehoc Advertising Service, Inc. (1989), 196 Ill. App. 3d 448, 554 N.E.2d 251.) Insurance companies may insert antistacking clauses into policies (Ill. Rev. Stat. 1989, ch. 73, par. 755a—2(6)), and the same have been upheld in Illinois. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.

The trial judge found the language of the policy was not ambiguous. The particular clause within the business policy read as follows:

“With respect to any occurrence, accident, health, or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limits of the Company’s liability under all such policies shall not exceed the highest amount under any one such policy.”

The particular clause within the family policy provided:

“Other insurance. If there is other applicable underinsured motorists insurance to cover a loss, WE will pay OUR proportionate share of the loss. OUR share is the proportion OUR limits of liability bear to the total of all applicable limits. However, in the case of MOTOR VEHICLES YOU do not own, this policy will be excess and will apply only in the amount OUR limit of liability exceeds the sum of the applicable limits of liability of all other applicable insurance.”

There does not appear to be any ambiguity with respect to the particular language of the policy. An insurance policy is considered ambiguous if it is subject to more than one interpretation. (Schweighart v. Country Mutual Insurance Co. (1984), 122 Ill. App. 3d 40, 460 N.E.2d 89.) Clearly, the above-stated language is understandable and capable of a reasonable interpretation. Factors to be considered in determining whether an ambiguity exists include the subject matter of the contract, facts surrounding its execution, the parties’ situation, and the indemnification of the insured. (Schweighart v. Country Mutual Insurance Co., 122 Ill. App. 3d at 42, 460 N.E.2d at 90.) Furthermore, the trial judge’s decision should not be disturbed unless his decision was against the manifest weight of the evidence.

The plaintiff argues that public policy favors stacking the insurance policies and increasing coverages in this situation. However, according to Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, it is not against public policy to limit or prohibit stacking insurance policies in situations where multiple claims are made, even where separate premiums are paid. Furthermore, by prohibiting stacking, the insurer is not given a windfall. Rather, the insured is provided the coverage for which he agreed to purchase.

Plaintiff next argues that Gust Georgantas and Gust Georgantas, d/b/a Crest Hill Florists, are different insureds. We disagree. The trial court was correct in ruling that Gust was same insured under both policies, especially since the floral business is a sole proprietorship. The universal rule is that the sole proprietor is personally responsible for the activities of the business. (Cincinnati Insurance Co. v. Miller (1989), 190 Ill. App. 3d 240, 546 N.E.2d 700.) Regardless of the named insured and the different risks for which the insurance was purchased, the same insured purchased the policies from the same company. We find the antistacking clause is applicable and enforceable.

Lee Peters argues that summary judgment should have issued in his favor since there was not an issue of material fact as to whether there was underinsurance coverage. The trial court correctly ruled there was $250,000 of underinsurance coverage available to the plaintiff. The trial court’s finding rendered counts II and III moot. (Fuous v. Auto Owners (Mutual) Insurance Company (1987), 118 Ill. 2d 430, 516 N.E.2d 268.) Peters obviously procured sufficient underinsurance coverage for Gust Georgantas based upon the amount of insurance requested and the purpose for which Gust purchased it. The trial court erred by not granting summary judgment.

Since Mary Georgantas’ claim was derivative to count II, summary judgment should have issued accordingly for count III as well. Cross v. Country Cos. (1989), 188 Ill. App. 3d 847, 544 N.E.2d 1246.

Finally, Peters claims the trial court erred in staying arbitration of the underinsurance claim. We agree. The language of the valid insurance contract pertaining to arbitration provided as follows:

“Arbitration. If WE and the INSURED disagree over whether the INSURED is legally entitled to recover damages from the owner or operator of an UNDERINSURED MOTOR VEHICLE or if agreement cannot be reached on the amount of damages, either party may make a written demand for arbitration ***.”

Once the trial court determined that there was $250,000 of under-insured motorist coverage available, the action should have been arbitrated pursuant to the insurance policy. The trial court should have followed the policy provisions to order arbitration of the underinsured motorist claim. Therefore, we find the trial court erred on this issue and arbitration is ordered.

For the reasons heretofore indicated, the circuit court of Will County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. DONALD LEGO, Defendant-Appellee (The Department of Corrections, Intervenor-Appellant).
    Third District
    No. 3—90—0551
    Opinion filed March 12, 1991.
    Rehearing denied April 26, 1991.

      Charles Hoffman, of State Appellate Defender’s Office, of Chicago, and Charles M. Schiedel, of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The Illinois Department of Corrections (hereinafter IDOC) appeals the decision of the circuit court of Will County ordering the IDOC to transfer Donald Lego to another facility pursuant to his post-conviction petition.

Following Lego’s conviction for murder, the circuit court of Will County sentenced him to death and remanded him to the IDOC, which assigned him to the condemned unit of Menard Correctional Center (hereinafter Menard). Lego then petitioned for post-conviction relief and alleged among other things that, at the time of trial, he was suffering from an impaired mental condition which rendered him unfit to stand trial and incapable of making certain important decisions. He requested a psychiatric expert be appointed and that he be temporarily transferred from Menard to Stateville or Joliet penitentiary, both of which were located within Will County, so that his location would be more convenient to his attorney, psychiatrist, and investigator.

The circuit court of Will County granted his request and ordered the IDOC to transfer him to either Stateville or Joliet penitentiary. No representative of the IDOC was present at the hearing; however, upon being so notified, the IDOC intervened and objected.

The IDOC requested the circuit court reconsider its decision for the following reasons. Lego was permanently housed within the condemned unit of Menard, because Statevüle and Joliet penitentiaries did not have such secure facilities. In order for IDOC to transfer Lego, his safety, as well as that of others, would be jeopardized. Further, there would be considerable expense in transferring Lego, such as additional manpower and vehicles. IDOC countered that it would be more convenient and less burdensome if Lego’s attorney, psychiatrist, and investigator visit him at Menard. IDOC guaranteed them normal access to Lego at Menard. The circuit court denied the IDOC’s motion to reconsider and stay the transfer. We reverse and remand.

The issue presented on appeal is one of first impression within the State of Illinois: Did the circuit court exceed its authority in ordering the transfer of an IDOC inmate for purposes of giving him closer access to his attorney, psychiatrist, and investigator? We believe the circuit court exceeded its authority for the reasons stated below.

It is universally understood that IDOC has the sole discretion with respect to placing, handling, and transferring inmates within its control. Furthermore, the convenience afforded an inmate’s experts, e.g., attorney, psychiatrist, and investigator, is far outweighed in this case by the additional expenses, procedures, and risks associated with transferring an inmate for purposes of meeting with his experts. It should be noted that Lego has been convicted of a capital offense, sentenced to death, and is currently within a condemned unit of an IDOC facility.

The Illinois Department of Corrections is charged with the responsibility to maintain programs of control, rehabilitation, and employment of prisoners. (Ill. Rev. Stat. 1989, ch. 38, par. 1003—2—2.) The IDOC has the ability and power to assign prisoners to any of its facilities. (Ill. Rev. Stat. 1989, ch. 38, par. 1003—2—2(b).) Courts are not to intervene in matters within the discretion of the IDOC, including the location where inmates are assigned and housed. People v. Fowler (1958), 14 Ill. 2d 252, 151 N.E.2d 324.

Courts have been reluctant to interfere in the administration of prisons and the administration of the departments operating and managing the prisons, e.g., Illinois Department of Corrections, Federal Bureau of Prisons, etc. (Procunier v. Martinez (1974), 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800.) It is not a proper or valid ground to file a petition for writ of habeas corpus to direct prison officials with regard to the care and handling of an inmate. United States ex rel. Knight v. Ragen (7th Cir. 1964), 337 F.2d 425, cert. denied (1965), 380 U.S. 985, 14 L. Ed. 2d 277, 85 S. Ct. 1355.

There is a clearly distinguishable situation in which a court can order the transfer of an inmate within the control of the IDOC, i.e., when an inmate is scheduled to testify or otherwise has a right to be present for hearing. The circuit court has the authority to order an inmate brought before the court for hearing. (Ill. Rev. Stat. 1989, ch. 38, par. 122—6.) This is accomplished by the issuance of a writ of habeas corpus ad testificandum. (Ill. Rev. Stat. 1989, ch. 110, par. 10—135.) In the instant case, the circuit court exceeded its authority by ordering Lego’s transfer, not for a hearing or mandatory court appearance, but only for the convenience of his attorney, psychiatrist,' and investigator.

In addition to the reasons above set forth, there are policy reasons the circuit courts are without authority to order the transfer of an inmate for reasons other than a court appearance: costs, safety, and authority. These factors are not limited to these three categories, but the policy reasons are sufficiently persuasive to limit a circuit court’s authority over inmates within the IDOC. The financial expenses and security risks in transferring inmates are obvious. In addition, there would be a likely increase in the number of inmates petitioning the courts for transfer from one IDOC facility to another if this procedure were approved.

To transfer a condemned inmate such as Lego, the IDOC would have to engage several IDOC employees and vehicles to transport him to another facility. Escape is always a possibility, and that possibility could be exacerbated if outside assistance was provided or prearranged. The facilities within close proximity to Will County do not have sufficient facilities to house death row inmates. The entire situation would burden IDOC with additional special precautions while the inmate was located at the transfer site.

For the reasons herein set forth, the circuit court of Will County is reversed and this matter is remanded to the circuit court for further action consistent with this decision.

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN JOHNSON, Defendant-Appellee.
    Third District
    No. 3—90—0470
    Opinion filed March 8, 1991.
    Rehearing denied April 26, 1991.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Judith Z. Kelly, of ■ State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Edward M. Loughran, of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, John Johnson, was charged with aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(a)(5)). He filed a motion to suppress his confession, which the trial court granted. The State appeals from the suppression order. We affirm.

The record shows that in May of 1990, the defendant filed a motion to suppress statements he had made to the police on June 1, 1987, alleging that he did not knowingly and voluntarily waive his rights. At the suppression hearing, police officer Robert Brenczewski testified that he interviewed the defendant on June 1, 1987, at the Joliet police station. He began interviewing the defendant at 9 p.m. and at that time informed him of his Miranda rights. The defendant stated that he understood his rights and agreed to talk to him. During an hour-and-a-half interrogation, defendant admitted his involvement in the offense. Brenczewski further testified that he was not informed' that there was an attorney at the station waiting to see the defendant.

Attorney Paul Boetto testified that the defendant’s uncle called and told him to come to the station to talk to the defendant. He arrived at the station at 8:15 p.m. and proceeded to inform a uniformed police officer that he was there to see the defendant and that he wanted to talk to the defendant prior to any questioning. However, he had to wait for over two hours before he was allowed to see the defendant. The interrogation of the defendant began 45 minutes after Attorney Boetto arrived at the police station.

Evidence indicated the defendant was mildly mentally retarded with an IQ between 59 and 75. Defendant was not aware prior to his interrogation that an attorney had been called on his behalf and was already present at the station. Expert testimony was given by a licensed psychologist that the defendant did not appear to understand the charge he was charged with and was not capable of exercising judgment with regard to his own welfare.

Following arguments, the trial court found that the defendant’s knowing and voluntary waiver of his rights was inextricably tied to the issue of whether he was denied his right to counsel. The court held that since a lawyer was present at the station seeking access to the defendant to advise him, the defendant did not make a knowing and intelligent waiver of his rights. We agree.

On appeal, the State argues that the trial court erred in holding that the defendant’s waiver was invalid. In support of its position, the State argues that this case is controlled by Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, and People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270. The defendant counters that this case is controlled by People v. Smith (1982), 93 Ill. 2d 179, 442 N.E.2d 1325.

A review of these cases shows that in Smith the defendant met with an attorney and personally retained him as counsel. Further, a partner of the retained counsel went to the jail where the defendant was being held and asked to meet with him. She was denied access to the defendant, and he was never informed that his attorney was available to confer with him. He subsequently waived his rights and gave a statement to the police.

In suppressing the statement, the court held that when police, prior to or during custodial interrogation, refuse a retained attorney access to the defendant, there can be no knowing waiver of the right to counsel if the defendant has not been informed that the attorney is present and seeking to consult with him.

In Burbine, the defendant confessed after receiving and waiving his Miranda rights. He did so without knowing that his sister had retained an attorney to represent him and that an associate had been in telephone contact with the police. Counsel had informed the police that she would act as the defendant’s counsel in the event they planned to question him. Though she was told that the defendant would not be questioned until the next day, he was questioned later the same day.

In affirming the trial court’s denial of the defendant’s motion to suppress, the court stated, “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. *** Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Moran v. Burbine (1986), 475 U.S. 412, 422-23, 89 L. Ed. 2d 410, 421-22, 106 S. Ct. 1135, 1141.

In Holland, the defendant was arrested and shortly thereafter telephoned his wife, asking her to obtain an attorney for him. An attorney was retained on the defendant’s behalf, and the attorney apparently made telephone contact with the police, telling them that he wished to confer with the defendant prior to any questioning. However, during this same time, the defendant was given his Miranda warnings, waived them, and gave inculpatory statements. On appeal, the defendant cited Smith and argued that the court erred in not suppressing his statements.

In affirming the trial court, the court found that Smith was distinguishable and that Burbine was on point. “Here, as in Burbine, a relative secured counsel for the suspect; the suspect was unaware that counsel had been retained; [and] all communication between the police or prosecutors and the attorney was by telephone.” (People v. Holland (1987), 121 Ill. 2d 136, 153, 520 N.E.2d 270, 277.) In distinguishing Smith, the court went to great lengths to emphasize that, in Smith, the defendant’s attorney did not limit her contact with the authorities to mere telephone calls. She was personally present at the police station and specifically asked to meet with the defendant.

In the instant case, our review of the relevant case law shows that the question to be asked in this case is what type of contact the attorney made with the authorities. If the attorney’s contact was merely by telephone, then Holland would apply. However, if the attorney’s contact was that he personally went to the police station and requested to see the defendant, then Smith would apply.

Here, we find that Smith is controlling. The defendant’s attorney was present at the police station prior to the questioning. In addition, he specifically requested that he be allowed to meet with the defendant prior to any questioning. He was nonetheless denied access to the defendant.

The trial judge in the instant case ruled that this mentally retarded defendant with no prior police contact, for whom a lawyer was present at the station and seeking access to defendant to advise him, did not make a knowing and intelligent waiver of his rights.

We find that the defendant’s waiver of his right to counsel was not knowingly or intelligently made since the defendant’s attorney was denied access to him and the defendant was not informed that his attorney was present.

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

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE GORMAN

text:
    WILLIE RAY HARRIS, Petitioner-Appellant, v. THE STATE OF ILLINOIS et al., Respondents-Appellees.
    Third District
    No. 3—90—0595
    Opinion filed March 27, 1991.

      Willie Ray Harris, of Joliet, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

The petitioner, Willie Ray Harris, appeals the denial of his petition for a writ of mandamus.

The record shows that the petitioner was convicted of the 1979 murder of William Snow. His conviction was affirmed on direct appeal. (People v. Harris (1st Dist. 1983), No. 1—81—2085 (unpublished order under Supreme Court Rule 23).) On February 6, 1990, the petitioner filed a mandamus petition against the State of Illinois and various other respondents. In the petition, he alleged that a codefendant, Hurley Mallette, had been acquitted of the same offense. For the purpose of collateral review of his conviction, he asked the court to order the respondents to provide him free of charge a copy of the transcripts of both the pretrial and trial proceedings against Mallette. The trial court denied the motion.

On appeal, the petitioner contends that the court erred in denying the motion. Initially, we note that under the doctrine of sovereign immunity, the State of Illinois could not be a respondent in this case. (Ill. Rev. Stat. 1989, ch. 127, par. 801.) The State is therefore not a proper party to this appeal. We shall, however, consider the appeal as it applies to the other respondents.

The petitioner argues that he is entitled to a copy of the transcripts under the following provisions or doctrines: the due process clause of the fourteenth amendment (U.S. Const., amend. XIV); Supreme Court Rules 412, 415, 607, and 608 (134 Ill. 2d Rules 412, 415, 607, 608); and the “common right of access to public records” (see People ex rel. Gibson v. Peller (1962), 34 Ill. App. 2d 372, 181 N.E.2d 376).

A writ of mandamus shall lie to compel a public officer to perform a specific duty to which the petitioner is entitled as a matter of right. (Rexroat v. Abatte (1987), 163 Ill. App. 3d 796, 516 N.E.2d 1050.) We have examined the rules and cases cited by the petitioner and find that none of them establishes a right to a free copy of Mallette’s transcripts. It is true that where an indigent defendant takes an appeal, under the due process clause he has the right to receive a free copy of his own trial transcripts. (Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585.) That right is distinguishable, however, from the right of a defendant pursuing a post-conviction petition to obtain a free copy of his codefendant’s transcripts. See United States v. MacCollom (1976), 426 U.S. 317, 48 L. Ed. 2d 666, 96 S. Ct. 2086.

Additionally, the supreme court rules cited by the petitioner do not address the instant issue. Rules 412 and 415 deal with discovery, while Rules 607 and 608 address appellate procedure. 134 Ill. 2d Rules 412, 415, 607, 608.

Lastly, the cases establishing a common right of access to public records deal with the right to review and reproduce a public record, not the right to receive a free transcript of a codefendant’s trial. (See Gibson, 34 Ill. App. 2d at 374-75, 181 N.E.2d at 378.) Based on the foregoing, we hold that the trial court properly denied the mandamus petition.

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

Affirmed.

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


text:
    SPICER, INC., et al., Plaintiffs, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF LA SALLE COUNTY, Defendant (Marseilles Community Unit School District No. 155, Plaintiff-Appellee; Seneca Community Consolidated School District No. 170 et al., Defendants-Appellants).
    Third District
    Nos. 3—90—0010, 3—90—0030 cons.
    Opinion filed March 26, 1991.

      Hoffman, Mueller, Creedon & Twohey, of Ottawa (George Mueller and Gerard E. Dempsey, of counsel), for appellant Seneca Community Consolidated School District No. 170.
    Gerard E. Dempsey, of Klein, Thorpe & Jenkins, of Chicago, for appellant Seneca Township High School District No. 160.
    Heidi A. Katz and Everett E. Nicholas, Jr., both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendants appeal the trial court’s order reversing a decision of the Regional Board of School Trustees of La Salle County (hereinafter Board). The Board denied plaintiffs’ petition for detachment-annexation of certain territory. The trial court reversed that decision as being against the manifest weight of the evidence. Defendants also appeal an issue on the pleadings concerning plaintiffs’ failure to properly invoke the jurisdiction of the circuit court.

The plaintiffs filed a petition seeking to have certain territory detached from the Seneca school districts and annexed to Marseilles School District 155. On February 19, 1988, the Board issued an order setting the annexation/detachment matter for a hearing. Marseilles District 155, Seneca District 160 and Seneca District 170 appeared at the hearing as parties of record and participated through their attorneys. On May 24,1988, the Board denied the petition.

. On June 30, 1988, plaintiff filed a complaint for administrative review, naming only the Board as defendant. On July 19, 1988, the Board filed a motion to strike and dismiss the complaint for failure to join all parties of record pursuant to section 3 — 107 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3—107). On July 28, 1988, the trial court granted the Board’s motion to dismiss and gave the plaintiffs 21 days to file an amended complaint.

On September 15, 1988, 49 days after the original complaint had been dismissed, plaintiffs filed an amended complaint for administrative review naming the following as defendants: Marseilles Community Unit School District No. 155, Seneca Community Consolidated School District No. 170, and Seneca Township High School District No. 160. Both Seneca school districts filed a special and limited appearance and a motion to dismiss for lack of subject matter jurisdiction. After a hearing, the trial court, on December 19, 1988, denied both motions to dismiss.

On August 23, 1989, the trial court reversed the Board’s original decision to deny the petition for detachment/annexation.

Seneca District No. 170 and Seneca District No. 160 filed their respective notices of appeal on January 4 and January 12, 1990. Each notice requested review of two orders: (1) the trial court’s August 23,

1989, order reversing the Board’s denial of the annexation petition; and (2) the trial court’s December 15, 1989, denial of defendants’ motion to reconsider. The notices of appeal did not mention the trial court’s order of December 19, 1988, denying defendants’ motion to dismiss.

This case involves the following issues: (1) whether the Seneca school districts were necessary parties in this action for administrative review; (2) and, if so, whether the failure to name them as defendants, file the complaint and issue summons within the 35-day period mandated by statute deprived the circuit court of jurisdiction to adjudicate the case; and (3) whether the defendants’ failure to include the lower court’s December 19, 1988, order denying defendants’ motion to dismiss deprives the appellate court of jurisdiction to hear this appeal.

First, we consider whether the Seneca school districts were necessary parties to the action for administrative review before the trial court. The Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.) governs the procedural requirements for judicial review of an administrative decision. The act requires that an action for administrative review “shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—103.) Moreover, the summons must be issued on the administrative agency and on all defendants. (Ill. Rev. Stat. 1989, ch. 110, par. 3—105.) Section 3—107 requires that “all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency *** be made defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—107.) Section 3 — 102 states that “[u]nless review is sought *** within the time and in the manner herein provided,” a party is barred from bringing an action for administrative review. (Ill. Rev. Stat. 1989, ch. 110, par. 3—102.) The Administrative Review Law is statutory and not based upon the common law. As a consequence, the procedures mandated by the act must be strictly adhered to in order to justify its application. Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 95 N.E.2d 864.

The clear and unequivocal language set forth in section 3— 107 of the act prescribes that all persons (other than the plaintiffs) who were parties of record to the proceedings before the Board “shall be made defendants.” This requirement is mandatory, specific, and admits no modification. (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864.) For this reason, the plaintiffs were required to designate the Seneca school districts as defendants to their action for judicial review.

Defendants argue that no subject matter jurisdiction was conferred on the circuit court because: (1) plaintiffs failed to timely name as defendants all parties to the administrative proceeding, i.e., Seneca school districts; and (2) plaintiffs did not issue summons or file the complaint within 35 days from the date that a copy of the administrative decision was served upon the party seeking review. We agree.

The case of Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, is dispositive of the foregoing jurisdictional issue. In Lockett, the Illinois Supreme Court held that all parties to an administrative proceeding must be made defendants within 35 days from the date that a copy of the administrative decision is served upon the party seeking review. The Lockett court stated that the requirement that a complaint be filed within 35 days was jurisdictional. Thus, if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. Lockett v. Chicago Police Board, 133 Ill. 2d at 355, 549 N.E.2d at 1268, citing Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893. See also Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368.

The 35-day period for the issuance of summons, however, is mandatory, not jurisdictional, and the failure to comply with that requirement will not deprive the court of jurisdiction. City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 454 N.E.2d 652; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842.

It is also significant that the Lockett court found that a failure to name and issue summons against necessary parties within the 35-day time limit could not be cured by subsequent amendment. Lockett v. Chicago Police Board, 133 Ill. 2d 349, 549 N.E.2d 1266.

The purpose of the mandatory 35-day period is to “hasten the procedure” of administrative review and avoid undue delay. (Lockett v. Chicago Police Board, 133 Ill. 2d at 355, 549 N.E.2d at 1268.) An exception to the 35-day requirement does exist where, due to circumstances beyond the litigant’s control, the summons and/or complaint were not filed within the 35-day period. (See City National Bank & Trust Co. v. Property Tax Appeal Board, 97 Ill. 2d at 382.) In cases where the 35-day requirement has been relaxed, the party must show a good-faith effort to file the complaint and secure issuance of the summons within the prescribed period of time in order to avoid dismissal. City National Bank and Trust Co. v. Property Tax Appeal Board, 97 Ill. 2d at 382; Cox v. Board of Fire & Police Commissioners, 96 Ill. 2d at 404.

In the present appeal, there is no dispute that the Seneca school districts were not named as defendants, that the summons were not issued "within the 35-day period, and that the complaint was not filed within the 35-day period. Furthermore, plaintiffs have not offered, and our review of the record fails to disclose, any evidence of a good-faith effort to comply with the requirements of the act. Accordingly, we find that the trial court erred by not dismissing plaintiffs’ complaint for administrative review since the trial court lacked jurisdiction to hear the case.

Lastly, we consider plaintiffs’ argument that this court lacks jurisdiction to entertain defendants’ appeal because defendants’ notices of appeal refer only to those orders dated August 23, 1989, and December 15, 19.89. The order denying defendants’ motion to dismiss the administrative review action was entered on December 19, 1988. Supreme Court Rule 303(c)(2) requires that the notice of appeal “shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (134 Ill. 2d R. 303 (c)(2).) Generally, when an appeal is taken from a specified judgment only, a reviewing court does not acquire jurisdiction to review other judgments which have not been specified in the notice of appeal. Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 495 N.E.2d 1304; E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181.

However, an appeal from a final judgment draws into issue all prior, nonfinal orders which produced the final judgment. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380; First National Bank v. St. Charles National Bank (1987), 152 Ill. App. 3d 923, 504 N.E.2d 1257, appeal denied (1987), 116 Ill. 2d 553.

The purpose of the notice is to inform the successful party that his or her opponent seeks review by a higher court. (Burtell v. First Charter Service Corp., 76 Ill. 2d at 433; Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 442 N.E.2d 311.) In explaining that notices of appeal are to be liberally construed, the supreme court of Illinois in the case of Burtell v. First Charter Service Corp. (76 Ill. 2d at 433-34), stated:

“Although the cases often speak in terms of jurisdiction, it is generally accepted that a notice of appeal is to be liberaUy construed. *** Briefs, and not the notice of appeal itself, specify the precise points to be relied upon for reversal. Courts in this State and the Federal courts have repeatedly held that a notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. (Sanabria v. United States (1978), 437 U.S. 54, 67 n.21, 57 L. Ed. 2d 43, 56 n.21, 98 S. Ct. 2170, 2180 n.21 (interpreting comparable Federal rules); People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 380; City of Rockford v. Robert Hallen, Inc. (1977), 51 Ill. App. 3d 22; Department of Transportation v. Galley (1973), 12 Ill. App. 3d 1072.) Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the form of the notice is one of form only, and not of substance, the appellate court is not deprived of jurisdiction. Echols v. Olsen (1976), 63 Ill. 2d 270; National Bank of the Republic v. Kaspar American State Bank (1938), 369 Ill. 34.” 76 Ill. 2d at 433-34.

In sum, where a deficiency in the notice is one of form rather than of substance, it does not deprive the appellate court of jurisdiction to review an unspecified order which was “a ‘step in the procedural progression leading’ to the judgment specified in the notice of appeal.” Burtell v. First Charter Service Corp., 76 Ill. 2d at 435, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254.

Thus, in keeping with the general position that a notice of appeal should be liberally construed, we hold that defendants’ notices of appeal in the instant case were sufficient to confer jurisdiction on the appellate court to review the court’s decree of December 19, 1988. It is apparent in the present case that the trial court’s order of December 19, 1988, was a “step in the procedural progression” leading to the judgments specified in the notice of appeal.

Assuming arguendo defendants waived the jurisdiction issue by failing to put the necessary order in their notice of appeal, subject matter jurisdiction may be challenged at any time, even on appeal. Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 539 N.E.2d 1243; Board of Education v. Box (1989), 191 Ill. App. 3d 31, 547 N.E.2d 627.

For the foregoing reasons, the judgment of the trial court is reversed.

Reversed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE BARRY

text:
      In re J.H. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Jack Ray Hall, Jr., Respondent-Appellant).
    Third District
    No. 3—90—0236
    Opinion filed March 27, 1991.

      Richard H. Gambrell, of Macomb, for appellant.
    William Poncin, State’s Attorney, of Macomb (Judith Z. Kelly, of State’s Attorney’s Appellate Prosecutor’s Office, of counsel), for the People.
    John A. Carter, Assistant Public Defender, of Macomb, guardian ad litem.

   JUSTICE BARRY

delivered the opinion of the court:

J.H. and M.H. are the minor children of Diane Hall and respondent Jack Ray Hall, Jr. Diane Hall died sometime prior to 1988, and respondent was sentenced to prison in Iowa for arson on October 3, 1988. In December of 1988, Diane Wilson, the children’s aunt with whom they had been living since August or September of 1988, requested that J.H. and M.H. be placed in foster care. A petition for adjudication of wardship was filed on May 30, 1989, seeking to have the children declared dependent pursuant to section 2 — 4 of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802—4(a)). The petition alleged that the children’s mother was deceased and their father was incarcerated and that the minors were without a parent, guardian, or legal custodian able to provide necessary care.

An adjudicatory hearing was held on October 10, 1989. The children were represented by a guardian ad litem, and respondent was represented by attorney Joseph O’Donnell, who had been appointed at respondent’s request. O’Donnell’s earlier motion to transport respondent from prison for the hearing had been denied by the State of Iowa. At the hearing, the parties stipulated to the allegations in the petition, the children were adjudicated dependent, and the Department of Children and Family Services (DCFS) was ordered to prepare a social investigation report.

The report indicated that DCFS had investigated three reports of sexual abuse of M.H. and that “credible evidence” was found to support the reports. The report named the respondent as the focus of one of the investigations and stated that he “rubbed [M.H.’s] genitals several times when [M.H.] was living with him. They slept together.” The report also stated that respondent admitted that sleeping with M.H. was a “habit” and he could give her physical comfort by touching her to soothe and reassure her, but respondent denied that any of the touches were inappropriate. The report noted that respondent was extremely agitated and was visibly shaking during the investigative interview. Attached to the social investigation report was a progress report which stated that during a counseling session with M.H., she alleged that respondent had touched her in an inappropriate manner, although she provided no details. According to the report, M.H. said that she did not want to get her father into trouble and she did not want to discuss the issue. In addition, the report related that the respondent is an alcoholic, has an extensive criminal history which includes being arrested for public intoxication, and he had successfully participated in a four-month drug and alcohol treatment program while in custody of the Iowa Department of Corrections. The report recommended that guardianship and custody of J.H. and M.H. be given to DCFS and that respondent should participate in sexual abuse counseling and maintain sobriety through outpatient treatment.

O’Donnell filed a motion to strike the report for purposes of the dispositional hearing, arguing that the issue of sexual abuse did not have a reasonable relationship to the basis of the dependency adjudication. O’Donnell also moved to withdraw the stipulation previously entered into by the parties because respondent had not been informed that the issue of sexual abuse would be raised. The latter motion was granted and a second adjudicatory hearing was held on January 3, 1990.

At this hearing Ann Higgins of DCFS testified that she met with the children and their aunt, Diane Wilson, in December of 1988, and Wilson expressed concern that M.H. had been exhibiting some sexual behavior and might have been molested. Higgins arranged for counseling for the children and spoke with respondent by telephone. Respondent denied any sexual abuse of M.H. and refused to get sexual abuse counseling in prison.

Diane Wilson, the children’s aunt, testified that one of the children’s uncles told Wilson’s sister that the children’s grandmother had told him that M.H. was sexually abused by two men, but that M.H. could not remember their names. Subsequent medical tests conducted on M.H. were inconclusive. Wilson testified that she called the DCFS hotline because M.H. was acting out sexually, but Wilson had not personally witnessed such behavior, although she had seen M.H. “sit around on strange guys’ laps.”

The court found that the minors were dependent pursuant to section 2 — 4(a) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802—4(a)) and a date was set for a dispositional hearing. No findings were made with regard to the alleged sexual abuse of M.H.

Prior to the dispositional hearing, a hearing was held on the motion to strike the social investigation report. Attorney O’Donnell contended that the report should have some reasonable relationship to the basis for adjudication. O’Donnell maintained that since the petition for adjudication was based on dependency, and not on abuse or neglect, the references in the report to sexual abuse and alcohol abuse were irrelevant. O’Donnell argued that the report was a “back door” method for DCFS to raise allegations of abuse against the respondent without having to prove them in an adjudicatory hearing. The motion to strike was denied.

At the dispositional hearing on January 25, 1990, the assistant State’s Attorney asked the court to admit the social investigation report and requested that the court order respondent to comply with the report’s recommendations regarding sexual abuse and alcohol counseling. Attorney O’Donnell objected to admission of the report and to the recommendations. The report was admitted over objection. The court granted custody and guardianship to DCFS and ordered that respondent “successfully participate in sexual abuse counseling and maintain sobriety through alcohol outpatient treatment.”

O’Donnell filed a motion to reconsider and modify the dispositional order, arguing that the petition for adjudication was based on dependency, not abuse or neglect, that the evidence regarding sexual abuse was uncorroborated hearsay, and that there was no finding that respondent had sexually abused his daughter. The motion requested the court to strike the requirements that respondent participate in sexual abuse counseling and alcohol treatment. The motion was denied and this appeal followed.

The respondent first contends that the trial court erred in admitting into evidence those portions of the social investigation report relating to sexual abuse and alcoholism. Respondent maintains that only evidence which is relevant to the issues before the court at the dispositional hearing is admissible. We agree. Respondent further asserts that the only issues before the court at the dispositional hearing were whether the minors should be made wards of the court, and if so, where they should be placed. We do not agree.

Respondent’s position ignores one of the fundamental purposes of the Juvenile Court Act, which is to provide “such care and guidance, preferably in his or her own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community [and] to preserve and strengthen the minor’s family ties whenever possible” (emphasis added) (Ill. Rev. Stat. 1989, ch. 37, par. 801—2; In re Polovchak (1983), 97 Ill. 2d 212, 223, 454 N.E.2d 258). While there is no question that placing the minors in respondent’s care was not an option available to the court, the information concerning respondent’s alleged sexual and alcohol abuse was relevant to the issue of possible reunification of the children with their father after his release from prison. Such information was also necessary for the court in deciding whether to issue an order of protection (Ill. Rev. Stat. 1989, ch. 37, par. 802—25) or protective supervision (Ill. Rev. Stat. 1989, ch. 37, par. 802—24). The record indicates that respondent’s release date from prison was unknown and he may have been in a work release program. There was also some evidence that respondent came to Illinois, apparently without authorization, and was later arrested and returned to Iowa. Given the uncertainty of respondent’s ability to contact the children, evidence that respondent may have sexually abused M.H. would be of great significance in deciding whether to order the respondent not to visit the children.

In addition to the above, section 2 — 21(2) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802—21(2)) provides that after a finding by the court that a minor is abused, neglected, or dependent, to assist the court at the dispositional hearing “the court may order that an investigation be conducted and a dispositional report be prepared concerning the minor’s physical and mental' history and condition, family situation and background, *** and any other information that may be helpful to the court.” Furthermore, section 2—22 (Ill. Rev. Stat. 1989, ch. 37, par. 802—22) states:

“At the dispositional hearing, the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court, and, if he. is to be made a ward of the court, the court shall determine the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining these questions, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing.” (Emphasis added.)

These sections clearly contemplate admission of the type of report at issue here. (See In re L.M. (1989), 189 Ill. App. 3d 392, 545 N.E.2d 319; In re Calkins (1981), 96 Ill. App. 3d 74, 420 N.E.2d 861.) Moreover, that fact that the report addressed issues not raised by the petition for adjudication of wardship is immaterial. Sections 2 — 21 and 2— 22 evidence the legislature’s intent to give the trial court wide latitude in considering evidence that is relevant and helpful to the court’s determination of a proper disposition and allow the court to go beyond the evidence adduced at the adjudicatory hearing. (In re Perez (1988), 173 Ill. App. 3d 922, 933, 528 N.E.2d 238, 245.) We find that the trial court did not err in admitting the social investigation report into evidence at the dispositional hearing.

The respondent next contends that the trial court abused its discretion in ordering him to undergo sexual abuse counseling and alcohol treatment where there was no finding of sexual abuse or excessive alcohol use. In In re Perez (1988), 173 Ill. App. 3d 922, 528 N.E.2d 238, the minor children were adjudicated neglected based on their mother’s inability to care for them due to physical illness. The dispositional order required the mother to enroll in and complete a child development course and receive mental health counseling. When the State later sought to terminate the mother’s parental rights for failure to make reasonable progress towards the return of her children, she argued that the State failed to show that the conditions contained in the dispositional order were reasonably related to the basis for the initial neglect adjudication and, therefore, her failure to meet the conditions was not a proper ground for a finding of parental unfitness. The court held that the Juvenile Court Act does not require that the conditions imposed at the dispositional hearing must be related to the jurisdictional facts which led to the adjudication of wardship. (Perez, 173 Ill. App. 3d at 933, 528 N.E.2d at 245.) Accordingly, the fact that sexual abuse and alcoholism were not the bases for the adjudication of dependency in this case does not foreclose the court from addressing those issues in its dispositional order, assuming sufficient competent evidence of those conditions. Respondent maintains, however, that there was insufficient evidence to support the court’s order requiring him to undergo sexual abuse counseling and alcohol abuse treatment. We agree.

The standard of proof in abuse, neglect, and dependency proceedings is proof by a preponderance of the evidence. (Ill. Rev. Stat. 1989, ch. 37, par. 802—18.) The only evidence presented at the dispositional hearing was the social investigation report. It appears that the allegations in the report of sexual abuse by the respondent are based solely on statements by M.H. that her father touched or rubbed her genitals. The report also states that respondent denied ever touching M.H. inappropriately. Section 2 — 18 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802—18(4)(c)) provides:

“Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.”

Moreover, the fact that two or more witnesses testify to what the minor said is not sufficient corroboration (In re Custody of Brunken (1985), 139 Ill. App. 3d 232, 487 N.E.2d 397), nor may evidence which is itself hearsay provide the corroboration required by the statute (In re Alba (1989), 185 Ill. App. 3d 286, 540 N.E.2d 1116). It seems fairly clear then that if the petition for adjudication of wardship had sought to have the children declared neglected or abused on the basis of sexual abuse, the evidence would not have been sufficient. (See Alba, 185 Ill. App. 3d 286, 540 N.E.2d 1116; In re D.P. (1988), 176 Ill. App. 3d 456, 531 N.E.2d 162; Brunken, 139 Ill. App. 3d 232, 487 N.E.2d 397.) In this case, of course, the children were declared dependent, not neglected or abused, and no finding of sexual abuse was entered. Nevertheless, we believe that it would be incongruous to hold that evidence which is insufficient to find sexual abuse at an adjudicatory hearing is sufficient to support a de facto finding of abuse at a dispositional hearing. This is particularly so where, as here, the result of such a finding is an order which requires affirmative action of a nature not ordinarily expected of a parent (see In re Rider (1983), 113 Ill. App. 3d 1000, 447 N.E.2d 1384).

While there was some additional evidence presented at the adjudicatory hearing in the form of testimony by Ann Higgins of DCFS and by the children’s aunt, and while this evidence could have been considered by the court at the dispositional hearing (Ill. Rev. Stat. 1989, ch. 37, par. 801—10 (evidence presented in prior proceedings is admissible in subsequent proceedings concerning the same minor)), the testimony provided little or no corroboration of the allegations of sexual abuse by respondent. Furthermore, it is clear that this testimony was not considered at the dispositional hearing, since different judges presided at the adjudicatory and dispositional hearings.

We understand the trial judge’s concern over the allegations of sexual abuse and we applaud his attempt to further the goal of eventual reunification of the minors and their father. We also recognize the importance of resolving the issue of purported sexual abuse before any meaningful attempt at reunification can occur. Nevertheless, given the paucity of the evidence presented, and the considerable stigma and possible collateral consequences attached to a finding of sexual abuse, the order requiring sexual abuse counseling must be reversed. We hold, therefore, that the trial court abused its discretion in ordering respondent to participate in sexual abuse counseling solely on the basis of the allegations and recommendations of the social investigation report. Cf. In re Rider (1983), 113 Ill. App. 3d 1000, 447 N.E.2d 1384.

We must also reverse the portion of the dispositional order requiring the respondent to receive alcohol outpatient treatment. The social investigation report stated that respondent is an alcoholic, but no basis was given for that assessment. Also, according to the report, respondent has been arrested for public intoxication and successfully participated in a drug and alcohol treatment program while in prison. Again, while we recognize the salutary effect such treatment may have, absent evidence of the need for further treatment, it was improper for the court to order treatment solely on the basis of the social investigation report. See Rider, 133 Ill. App. 3d 1000, 447 N.E.2d 1384.

In view of the above findings, we need not consider respondent’s additional arguments. We note, however, that respondent’s arguments are confined to the correctness of ordering him to participate in sexual abuse counseling and alcohol outpatient treatment. We therefore affirm the remainder of the dispositional order. Finally, we observe that our decision here does not preclude the entry of an order requiring sexual abuse counseling or alcohol abuse treatment in some future proceedings under the Act should the evidence so warrant. See Ill. Rev. Stat. 1989, ch. 37, par. 802—13(5)(supplemental petition); Ill. Rev. Stat. 1989, ch. 37, par. 802—23(3)(modification of dispositional order); Ill. Rev. Stat. 1989, ch. 37, par. 802—25(5)(order of protection); Ill. Rev. Stat. 1989, ch. 37, par. 802—28 (periodic court review).

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

McCUSKEY and SLATER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN L. RUTLEDGE, Defendant-Appellant.
    Third District
    No. 3—89—0733
    Opinion filed March 21, 1991.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Poncin, State’s Attorney, of Macomb (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Steven L. Rutledge, was convicted of first degree murder and sentenced to a 70-year term of imprisonment. The defendant appeals his conviction. We affirm.

The defendant was charged with first degree murder and felony murder. The State alleged he intentionally strangled Margaret Ellis to death without lawful justification while committing a robbery. It was believed the defendant could be eligible for the death penalty if convicted of felony murder.

The defendant entered a partially negotiated plea to first degree murder in exchange for the State’s dismissal of the felony murder charge. This prevented the State from seeking the death penalty against the defendant. The plea remained open with respect to sentencing, but the State indicated it would seek a natural life term of imprisonment.

At the plea hearing, the trial judge advised the defendant of his rights, the nature of the charge, the sentencing range, and the terms of the plea agreement were stated in open court. The defendant acknowledged that he was not coerced into pleading guilty and understood the terms of the agreement as well as the possibilities with respect to sentencing. The factual basis was then presented by the State, and defendant’s plea of guilty to first degree murder was accepted by the court. The conviction was then entered of record. Thereafter, the court sentenced the defendant to a 70-year term of imprisonment.

The defendant filed a timely motion to withdraw his plea of guilty. Defendant alleged his plea was involuntary because it was coerced by the threat of the imposition of the death sentence. Defendant claimed he was led by his attorney to believe that he was eligible for such a sentence. In other words, the guilty plea was premised upon a mistaken belief that defendant was death-penalty eligible. The trial court denied defendant’s motion, and this appeal followed.

The defendant raises a single issue on appeal: was his guilty plea involuntary based upon ineffective assistance of counsel and the misapprehension of law and fact that he was eligible for the death penalty? We believe his plea was made voluntarily, intelligently, and knowingly. It was not based upon mistake of law or fact. The trial judge was correct in denying defendant’s motion to withdraw his guilty plea.

A decision to permit withdrawal of a guilty plea rests within the sound discretion of the trial court. The defendant does not have an absolute right to withdraw a guilty plea. (People v. Smithey (1983), 120 Ill. App. 3d 26, 458 N.E.2d 87.) It should be granted to correct a manifest injustice or where substantial prejudice occurs. (People v. Bachman (1984), 127 Ill. App. 3d 179, 468 N.E.2d 817.) The defendant always bears the burden of proof in presenting such motion. (People v. Nichols (1981), 96 Ill. App. 3d 354, 420 N.E.2d 1166.) A withdrawal of a guilty plea should only be allowed in circumstances where the plea resulted from a misapprehension of law or fact as a result of a misrepresentation of counsel, the prosecutor, or the court. (People v. Kokoraleis (1990), 193 Ill. App. 3d 684, 549 N.E.2d 1354.) The misapprehension of law or fact goes to the question of whether the plea was voluntarily and intelligently made. People v. Kraus (1984), 122 Ill. App. 3d 882, 461 N.E.2d 1036.

The facts of this case are undisputed. A review of the defendant’s testimony during the hearing to withdraw his guilty plea indicates that he pled guilty based on the representation of his attorney that he could be sentenced to death on the felony murder charge. The defendant’s plea was pursuant to an agreement with the prosecution that if he pled guilty to first degree murder, the State would voluntarily dismiss the felony murder charge and thereby not seek the death penalty. By dismissing the felony murder charge, the State was automatically dropping the potential death-penalty sentence. The issue of the defendant’s death-penalty eligibility was never reached by the State or the trial court since the charge under which the death penalty could be sought was voluntarily dismissed prior to any consideration thereof.

The defendant acknowledged he was pleading guilty to first degree murder and was aware that in exchange thereto, the State would dismiss the felony murder charge. The parties were aware that under the applicable statute, the death penalty could not be sought for first degree murder, only felony murder. Moreover, the partial plea agreement remained open with respect to sentencing, and if the State could have sought the death penalty for first degree murder, it would likely have sought same.

The defendant contends that he was not guilty of felony murder and the State could not have proven him guilty of such beyond a reasonable doubt. Therefore, he would have been ineligible for the death penalty. This argument is irrelevant and without merit. Neither this court nor the trial court is, or was, in a position to assess the State’s evidence on this issue and hypothetically decide the defendant’s guilt to a charge that was dismissed. The trial court was only presented a factual basis for a plea of guilty to first degree murder. It would be speculation to guess or assume what evidence could or would have been presented to the court if the charge had been .felony murder.

Finally, we affirm the trial court’s finding that ineffective assistance of counsel did not occur. The record does not reflect any misapprehension of law or fact as to the defendant’s death-penalty eligibility. Defendant’s counsel provided competent and capable advice to the defendant. In order to prevail on an ineffective assistance of counsel argument, a defendant must establish his trial counsel’s advice was not competent as required of attorneys in criminal cases and that there is a reasonable probability that but for counsel’s incompetence, the defendant would not have pled guilty. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

The record reflects that defendant told the trial judge he had a chance to thoroughly discuss his guilty plea with his attorneys. Defendant told the court he was satisfied with their advice and representation. Further, the record shows defendant tendered a lengthy written plea of guilty in open court. Defendant was represented by three attorneys who indicated to the trial judge they spent approximately 1,500 to 2,000 hours on the case doing analysis, research, and trial preparation before advising the defendant concerning his guilty plea. Clearly, there is nothing in the record to support the defendant’s allegation regarding ineffective assistance of counsel.

For the reasons stated, the circuit court of McDonough County is affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE SLATER

text:
    RICHARD L. BECKER, Plaintiff-Appellant, v. UNIMIN CORPORATION, Defendant-Appellee.
    Third District
    No. 3—90—0388
    Opinion filed March 28, 1991.

      Anthony C. Raccuglia & Associates, of Peru (Cynthia Raccuglia, of counsel), for appellant.
    William J. Wylie & Associates, of Wheaton (Stephen A. Rehfeldt, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Richard Becker filed a two-count complaint against defendant Unimin Corporation alleging violation of the Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) and negligence. The circuit court granted defendant’s motion for judgment on the pleadings (Ill. Rev. Stat. 1989, ch. 110, par. 2—615(e)) as to the Structural Work Act count finding, as a matter of law, that the activity in question was not covered by the Act. The issue before us is whether the act of filling a fuel storage tank with fuel oil is an activity protected by the Structural Work Act.

Plaintiff, an employee of Gramann Service Company, alleged that he was injured while delivering a load of fuel oil to Unimin Corporation at Utica, Illinois. In order for the plaintiff to transfer the fuel oil from his transport truck to a large fuel storage tank which was located on the defendant’s premises, it was necessary for him to climb and stand upon a ladder which was provided by the defendant.

He alleged that the ladder which defendant provided was not constructed in a safe, suitable and proper manner, that it had no safety railing, no place for a secure hand hold, and that it was of an inadequate height and width for safe standing against the fuel storage tank. Defendant is further alleged to have failed to provide a safe, suitable, steady and proper scaffold to the plaintiff. While plaintiff was utilizing the ladder to connect a hose between the truck and the tank, the ladder moved, collapsed or gave way. Plaintiff fell from the ladder and thereby suffered injuries. He alleges his activity was “work constructing and erecting, repairing or otherwise altering and/ or maintaining the *** structure” and that he should be afforded protection of the Structural Work Act.

Section 1 of the Structural Work Act in part states:

“All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed *** for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give *** adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 60.)

The Structural Work Act protects activities of a particularly hazardous nature and is designed to lessen the extent of the danger. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64.) In Halberstadt the Illinois Supreme Court adopted a construction of the Act to bring the occupation of commercial window washer within its protection. The court recognized that the function of washing windows on a commercial building in a large city was as much a part of the maintenance of those buildings as repairing or painting the structure and that the window washing activity was of a hazardous nature. Plaintiff herein argues that his activity in filling the tank was hazardous, that he had to climb the ladder to accomplish his task and that his act of filling the tank was maintenance of a structure: Because recent judicial opinions have extended coverage to certain types of maintenance activities, he urges that the Act protects his activity.

Plaintiff argues and the trial court properly found that the case of Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946, supports the proposition that the fuel tank in this case was a “structure” within the meaning of the Structural Work Act. We agree. In Simmons the plaintiff was afforded protection of the Act when he slipped and fell as he descended on a permanently affixed ladder into an ash pit which housed the sump pump he had been instructed to repair. The ash pit was determined to be a “structure” and the ladder a “scaffold.” Repair of the sump pump was equivalent to repair of the pit itself and the Act properly afforded protection. The large fuel storage tank herein similarly is a structure and the ladder is a scaffold.

In like fashion a grain bin has been held to be a “structure” within the meaning of the Act. (Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54; Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 507 N.E.2d 930.) The plaintiff in Duffin was required to work on one of defendant’s grain bins by spraying corn weevil insecticide on the inside of the bin from a position atop the structure. Such fumigation of the bins was done on an annual basis. The plaintiff slipped while on the roof and fell to the ground below. The appellate court concluded

“[t]hat the circuit court did not err in holding that Duffin’s spraying of insecticide into Seibring’s grain bin was an activity within the scope of the Structural Work Act. Like the washing of windows or the repair of a sump pump in order to remove water from a power plant ash pit, the spraying of insecticide into a grain bin does not affect the structural integrity of thé bin. It does, however, maintain the bin’s usefulness for its intended purpose, for absent the spraying of insecticide to control corn weevils, a grain bin would be utterly useless for the purpose of storing grain.” (Duffin, 154 Ill. App. 3d at 828, 507 N.E.2d at 934.)

It is argued that the facts in this case are analogous to Duffin and that the plaintiff’s activity herein involved “maintenance” of the fuel storage tank. We do not agree. In Duffin the plaintiff was preparing the structure for its intended use of grain storage by spraying insecticide. The plaintiff in Duffin was not filling the bin with grain. The plaintiff in the case before us was filing the storage tank with fuel oil. He was not engaged- in any act of preparing the storage tank but was in fact using the tank for its intended purpose. He was not erecting the structure. He was not repairing or altering the structure. He was not removing or painting the structure.

He urges, however, that the activity he was engaged in should be construed as “maintenance” or other activity covered by the Act. Fuel storage tanks are designed to store fuel. Their intended and actual use is to serve as repositories for large quantities of fuel. The act of filling such a tank is usage of the tank for its intended purpose. Filling the tank does nothing to enhance the tank’s usefulness or to preserve its usefulness.

We find that plaintiff’s activity herein was not “maintenance” within the meaning of the above cases but was usage of the structure for its intended purpose. The act of filling a fuel storage tank with fuel is not an activity of a hazardous nature protected under the Structural Work Act.

The decision of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.