text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY NEVITT, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—1993
    Opinion filed May 6, 1992.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Kenneth T. McCurry, Anthony J. Carballo, and Catharine M. Forest, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Tommy Nevitt, was convicted for the aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)) of three-year-old J.B. and sentenced to 18 years’ imprisonment.

The sole issue now pending is the propriety of the sentence. For the reasons which follow, we affirm the 18-year sentence imposed by the trial court.

This cause now comes before us on remand from the supreme court (People v. Nevitt (1990), 135 Ill. 2d 423, 553 N.E.2d 368) to consider whether or not defendant’s 18-year sentence is excessive because this court did not reach the sentencing issue in our previous decision on this matter (People v. Nevitt (1988), 174 Ill. App. 3d 326, 528 N.E.2d 307).

A full reiteration of the facts is not necessary since they are thoroughly detailed in both the decision of the supreme court (Nevitt, 135 Ill. 2d 423, 553 N.E.2d 368) and the prior opinion of this court (Nevitt, 174 Ill. App. 3d 326, 528 N.E.2d 307). In brief, defendant confessed that on August 27, 1984, at a child day-care facility, he “took [J.B.] to the washroom and pulled out [J.B.’s] penis and began to suck it.” The three-year-old victim told his mother, Pamela, about the incident after arriving home later that same day.

Following a trial, the jury convicted defendant of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(b)(1).) After a sentencing hearing, the trial judge imposed a sentence of 18 years’ imprisonment.

On appeal, this court found that several trial errors alleged by defendant constituted reversible error. Accordingly, we reversed defendant’s conviction and remanded the cause for a new trial. Nevitt, 174 Ill. App. 3d 326, 528 N.E.2d 307.

The Illinois Supreme Court reversed and held that the trial errors, alone or in combination, did not result in manifest prejudice to defendant. Thus, the supreme court affirmed the judgment of the trial court and then remanded this cause for our consideration of the sentencing issue which was raised but not reached in defendant’s appeal to this court. Nevitt, 135 Ill. 2d 423, 553 N.E.2d 368.

At the time of the assault, defendant was 23 years old and was working as a pre-school teacher at the Accounters Community Center (Center), the child day-care and educational facility where the incident took place. The three-year-old victim had been attending the Center for seven to eight months. Defendant had graduated from high school and completed 11/2 years of college. Defendant had no prior criminal convictions.

Defendant asserts that an 18-year sentence is excessive in light of his young age, education, lack of a criminal record, and potential for rehabilitation. To support a reduction in his sentence, defendant primarily relies on People v. Green (1988), 177 Ill. App. 3d 492, 532 N.E.2d 442.

We find Green factually distinguishable. In Green, the defendant was convicted of rape, deviate sexual assault, indecent liberties with a child, and aggravated incest. The victim was the defendant’s 13-year-old daughter. Following a bench trial, a 40-year extended-term sentence was imposed by the trial court. The Green court found that the imposition of an extended-term sentence was improper because it did not rise to the level of brutal or heinous behavior under the relevant legal precepts. Moreover, the Green court also considered the defendant’s history of mental illness. The defendant in Green had originally been found unfit to stand trial and was committed to a mental health center for treatment. In contrast, the present case does not involve an extended-term sentence or a defendant with a history of mental illness.

Absent an abuse of discretion, the sentence imposed by the trial court will not be disturbed on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The abuse of discretion standard is appropriate in considering the propriety of a sentence because “the trial judge [is] in the best position to observe and evaluate the myriad factors which comprise the sentencing determination.” (Perruquet, 68 Ill. 2d at 156.) The supreme court has consistently held that it is not the function of a reviewing court to serve as a sentencing court. Cox, 82 Ill. 2d at 280.

Reviewing courts are reluctant to reduce sentences which are within the statutory limitations and are not clearly at variance with the purpose and spirit of the law. (People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641.) The law’s purpose and spirit are upheld when the sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. People v. Wyatt (1989), 186 Ill. App. 3d 772, 542 N.E.2d 872.

Aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(c)), which mandates a sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(3)). Thus, defendant received the exact mid-range sentence in the statutory scheme.

The sentence must be based on the particular facts of each case and is dependent on many factors. (Wyatt, 186 Ill. App. 3d 772, 542 N.E.2d 872.) The extreme youth of a victim of a sexual crime has been found to be a proper consideration even where the age of the victim was inherent in the crime. (Wyatt, 186 Ill. App. 3d 772, 542 N.E.2d 872.) In Wyatt, the defendant pleaded guilty to aggravated criminal sexual abuse upon a victim under 13 years of age. This court held that it was not improper for the trial court to consider the age of the victim, who was six years old, in the sentencing of the defendant in Wyatt. Similarly, the extreme youth of the victim was considered when sentencing a defendant for indecent liberties with a child. (People v. Brewer (1984), 127 Ill. App. 3d 306, 468 N.E.2d 1242.) Thus, the young age of the present victim could also be a factor in determining an appropriate sentence.

An aggravating factor which may warrant a severe sentence includes whether or not “the defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5— 3.2(a)(1).) The psychological harm inflicted on a young victim of a sexual crime has been held to be a proper consideration. (People v. Ulmer (1987), 158 Ill. App. 3d 148, 510 N.E.2d 1296 (the psychological harm to the 10-year-old victim was a proper aggravating factor for indecent liberties with a child); People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233 (same finding as to a 14-year-old male victim); People v. Burton (1981), 102 Ill. App. 3d 148, 429 N.E.2d 543 (a sentencing court may infer that the eight-year-old and nine-year-old victims of aggravated incest sustained psychological damage).) In the present case, the victim’s mother testified that the three-year-old victim wakes up from a sound sleep, crying hysterically. In addition, the victim is less receptive or responsive to the males in his life, including his uncle.

A more severe sentence may also be imposed where “the defendant utilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(a)(6)) and where “the sentence is necessary to deter others from committing the same crime” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5— 3.2(a)(7)). In the present case, defendant’s position as a pre-school teacher clearly gave him access to the day-care center and its attendees, including the victim.

In light of the facts of the present case and the imposition of a sentence within the statutory guidelines, we find that the trial court did not abuse its discretion in sentencing defendant to 18 years’ imprisonment.

Judgment affirmed.

RIZZI and TULLY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. AUBREY McCAULEY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—0218
    Opinion filed May 6, 1992.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.

      Alan D. Blumenthal, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Aubrey McCauley was indicted for first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). After a pretrial suppression hearing, the trial court suppressed a lineup identification and any statements defendant made to the police after his attorney was denied access to him while he was in police custody. The State has appealed. We affirm and remand.

Attorney William Walters, Chicago police sergeant Fred Bonke, and Detectives Robert Kocan and Thomas Byron testified at the suppression hearing. Their composite testimony is sufficient to establish the facts as follows. At about 5:30 p.m. on November 20, 1988, two police officers brought the defendant into the Chicago police department Area 3 station. Defendant was brought to the station in connection with a shooting death that occurred the previous day. Detectives Kocan and Byron spoke to defendant in an interview room on the third floor of the station and advised him of his Miranda rights. Defendant denied any involvement in the crime and gave the detectives an alibi statement which included the names of people that would corroborate his alibi.

Sergeant Bonke’s office was adjacent to the office occupied by Kocan and Byron, and he was their supervisor. Between 6 p.m. and 6:30 p.m., Kocan and Byron told Bonke that they were leaving the station to check out the people that defendant gave as alibi witnesses. Kocan and Byron then left the station, but defendant remained in custody in the interview room.

At about 7 p.m., someone from the defendant’s family hired Walters to represent defendant in connection with the matter for which he had been arrested. After agreeing to represent defendant, Walters telephoned a police station at 63rd and Racine Streets to determine if defendant was there. The answering police officer told Walters that defendant was not there. Walters then telephoned the Area 3 station located at 39th and California Streets and told the answering police officer that he was defendant’s attorney, and that he wanted to know if the defendant was there and what was the charge against him. Although defendant was in custody at the station, the answering police officer told Walters that defendant was not at the station and that the police were looking for him.

Walters then went to the police station at 63rd and Racine Streets in an effort to find out where the police were holding defendant. At the 63rd and Racine station, Walters was told that defendant was not there but he should tiy the Area 3 station. Walters telephoned the Area 3 station again, and the answering police officer again told him that defendant was not there. Nevertheless, Walters went to the Area 3 station.

Walters arrived at the Area 3 station about 7:40 p.m. He identified himself as defendant’s attorney and asked if he could speak to the defendant. The desk sergeant made a telephone call and then told Walters that a police officer would be down to see him. Sergeant Bonke then came down and spoke to Walters at about 7:50 p.m.

Walters showed Bonke his lawyer identification card and identified himself as defendant’s attorney and asked to speak to defendant. Bonke acknowledged that the defendant was being held in custody but he refused to let Walters see or speak to defendant and refused Walters’ request to let defendant know that he was there and that he wanted to speak to him. Walters told Bonke that defendant’s constitutional rights were being violated but Bonke persisted in refusing to let Walters see or speak to defendant. Walters then left the station.

At about 8:15 p.m., Kocan and Byron returned to the station and told defendant that his alibi witnesses could not be found, and that he was going to be placed in a lineup. At 10 p.m., defendant was placed in a lineup where he was identified by a witness to the crime. At about 2:30 a.m. on the next day, November 21, 1988, defendant was charged with the crime.

Later, defendant filed a pretrial motion to suppress. After a hearing, the trial court suppressed the lineup identification and any statements defendant made to the police after Walters was denied access to him. The State has appealed the suppression order. See 134 Ill. 2d R. 604(a)(1).

The State first contends that the lineup identification should not be suppressed because defendant’s sixth amendment protection for assistance of counsel was not violated. (U.S. Const., amend. VI.) The State argues that the sixth amendment protection for assistance of counsel had not yet attached because the lineup identification occurred before the defendant was formally charged. We agree that the sixth amendment protection for assistance of counsel initially attaches “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.) We, therefore, also agree that defendant’s sixth amendment protection had not yet attached at the time of the lineup. Whether the sixth amendment is apposite, however, does not control our decision.

Our decision is controlled by deciding whether denying an attorney access to his client while he is in police custody violates the self-incrimination protection of the Illinois Constitution. (Ill. Const. 1970, art. I, §10.) On this issue, the State argues that “even if the trial court correctly determined that Walters was denied access to defendant, the trial court’s ruling is still manifestly erroneous.” We disagree.

The State relies upon Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135. Moran, however, is distinguishable from the present case. In Moran, the police were holding a suspect in custody at a police station. Unknown to the suspect, while he was in custody the suspect’s family hired an attorney to represent him. (Moran, 475 U.S. at 415, 89 L. Ed. 2d at 417, 106 S. Ct. at 1138.) The U.S. Supreme Court held that the suspect’s fifth amendment rights were not violated merely because the police unintentionally or intentionally misinformed the attorney about their plans concerning the suspect (Moran, 475 U.S. at 421-24, 89 L. Ed. 2d at 420-22, 106 S. Ct. at 1140-42) or because they failed to inform the suspect of the attorney’s efforts to reach him (Moran, 475 U.S. at 424-28, 89 L. Ed. 2d at 422-25, 106 S. Ct. at 1142-44). Moran is based upon the U.S. Supreme Court’s interpretation of the protection afforded by the fifth amendment of the United States Constitution. Whatever the U.S. Supreme Court believes the law is with respect to the degree of protection afforded citizens by the Federal Constitution, in Illinois, if a suspect’s family hires an attorney to represent him while he is in police custody and the police deny the attorney access to him and later obtain a lineup identification or statements from him, it violates the suspect’s self-incrimination protection afforded our citizens by the constitution of Illinois. Ill. Const. 1970, art. I, §10.

Our decision is initially premised on the fact that a State constitution may be interpreted to give its citizens greater degrees of constitutional protection than the Federal Constitution. (People v. Garcia (1982), 109 Ill. App. 3d 142, 149, 440 N.E.2d 269, 275; see People v. Cook (1978), 22 Cal. 3d 67, 89, 583 P.2d 130, 142, 148 Cal. Rptr. 605, 617.) The lockstep doctrine for interpreting Hlinois constitutional provisions that have parallels in the U.S. Constitution reduces the Hlinois Constitution of 1970 to a supernumerary document lacking any real constitutional dimension. Moreover, if cases like Moran are used as a controlling comparison, it is plain that the lockstep doctrine exacts too heavy a toll on the protections embodied in the Hlinois Constitution of 1970. We therefore reject the lockstep doctrine.

At the time our Illinois Constitution was adopted in convention in Springfield on September 3, 1970, and ratified by the people on December 15, 1970, the practice of incommunicado interrogation by the police was a hete noire in our society. Cases like Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were of recent vintage. These cases and their progeny, up to 1970 at the very least, evince that incommunicado interrogation by the police would violate constitutional principles relating to the prohibition against self-incrimination.

It follows that when the Illinois Constitution was adopted and then ratified by the people in 1970, it was believed by all those who participated in its ratification and adoption that the prohibition against self-incrimination protection of article I, section 10, would protect citizens from incommunicado interrogation by the police in Hlinois. Indeed, article I, section 10, is the avatar of that belief. The fact that incommunicado interrogation by the police is prohibited in Hlinois is therefore ingrained in the fiber of our constitution. Since it is plain that the Illinois Constitution gives its citizens a greater degree of protection than the Federal Constitution as interpreted by the U.S. Supreme Court in Moran, the Illinois Constitution controls this case.

Moran is also distinguishable from the present case on a factual basis, although we do not base our decision on the factual distinction. In Moran, the court found it significant that the attorney telephoned and was not present at the police station when she advised the police officer that she represented the suspect who was being held in custody. In the present case, however, the attorney was actually at the police station. Thus, the present case is more similar to People v. Smith (1982), 93 Ill. 2d 179, 442 N.E.2d 1325, than Moran. In Smith, unlike what occurred in Moran, the attorney was present at the police station when he requested access to his client. In Smith, the court held that “when police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him.” Smith, 93 Ill. 2d at 189, 442 N.E.2d at 1329.

Parenthetically, we do not believe that it should be necessary to distinguish between situations (1) where the attorney is present at the police station and reasonably informs the police that he represents the suspect and (2) where the attorney reasonably informs the police telephonically that he represents the suspect. The key factor should be whether the attorney has reasonably informed the police that he represents the suspect and not the methodology by which the police are informed.

The State also relies upon People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270. The Holland case, however, is also distinguishable from the present case. In Holland, it is plain that “defendant’s attorney did not in fact request access to his client.” (Holland, 121 Ill. 2d at 164, 520 N.E.2d at 282 (Clark, C.J., specially concurring).) Here, it is plain that defendant’s attorney did in fact request access to his client. Moreover, in Holland the supreme court declined to accept the defendant’s invitation to decide the case on the basis of the Illinois Constitution rather than the Federal Constitution. We, however, are deciding the case on the basis of the Illinois Constitution.

The State also argues that Walters was hired by defendant’s family to represent him and that defendant did not know that his family had hired him. In our view, the State’s argument is unavailing. If there is to be any meaning whatsoever to Illinois constitutional protections for a suspect while in police custody, it must be resolved without equivocation that for a suspect’s constitutional protection purposes members of a suspect’s family may hire a lawyer with authority to act on the suspect’s behalf while the suspect is in police custody. Once the lawyer reasonably presents to the police that he is a lawyer in good standing and that he represents the suspect in custody, the police must treat the lawyer as representing the suspect unless the suspect himself states that the lawyer does not represent him and that he does not want the lawyer to represent him. It must be made plain that there is no room within the conscience of the Illinois Constitution for approving, condoning or pretending not to see incommunicado police interrogation when it exists. If we approve or tolerate incommunicado police interrogation in any way, it makes the protection against self-incrimination in our Illinois Constitution ring hollow.

Moreover, when an attorney reasonably identifies himself and reasonably informs the police that he represents a suspect in custody, the police have no entitlement to make their own on-the-spot determination that the attorney does not lawfully represent the suspect. The purview for making that determination is plainly outside the bounds of the police. To hold otherwise would allow the police to determine the extent and existence of an attomey/client relationship. (People v. Smith (1991), 220 Ill. App. 3d 678, 685, 581 N.E.2d 80, 85.) In addition, it would allow the police to make the determination on an ad hoc basis in an atmosphere that on its face is unseemly.

Here, Walters reasonably identified himself and reasonably informed the police that he represented the defendant. Unless and until the defendant himself denied that Walters represented him and that he did not want Walters to represent him, Bonke was obligated to treat Walters as his attorney for Illinois constitutional protection purposes. Bonke was therefore bound by the Illinois Constitution to honor Walters’ request to see and speak to the defendant.

It follows that the action of the police violated the defendant’s self-incrimination protection of the Illinois Constitution. (Ill. Const. 1970, art. I, §10.) Accordingly, the order suppressing the lineup identification and any statements defendant made to the police after Walters was denied access to the defendant is affirmed. The case is remanded for further proceedings in the trial court.

Affirmed and remanded.

GREIMAN, P.J., and TULLY, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL CARPENTER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—3120
    Opinion filed May 6, 1992.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Matthew L. Moodhe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Daniel Carpenter, was convicted of reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3), driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501), and driving on a suspended driver’s license (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 303). Defendant was sentenced to five years’ imprisonment on the reckless homicide and driving under the influence of alcohol. No sentence was entered on the driving on a suspended license conviction.

On appeal, defendant asserts that (1) the laboratory report of his ’ first blood test was inadmissible because section 11 — 501.4 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.4) unconstitutionally conflicts with Supreme Court Rule 236 (134 Ill. 2d R. 236); (2) testimony regarding his second blood test was improper because the chain of custody had been broken; and (3) his blood tests were improperly admitted as expert opinion. We affirm.

The main issue is whether blood test reports are admissible in evidence under section 11 — 501.4 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501.4) in a trial for reckless homicide and driving under the influence.

On May 27, 1989, an automobile accident occurred on the Stevenson Expressway at Central Avenue in Chicago, Illinois. As a result, Alexander Forsner, 31/2 months old, was killed, Brian Forsner was injured, and Sheila Forsner was injured. Defendant was indicted for reckless homicide, driving under the influence of alcohol, and driving on a suspended license.

Edward Forsner testified that he was driving a rented car on the Stevenson Expressway about 6:20 p.m. on May 27, 1989. Also in the car were his wife, Sheila, their son, Brian, 16 years old, and their son, Alexander, 31/2 months old. As Forsner approached Central Avenue, he noticed a car resembling his own car, which had been stolen a week earlier. He drove onto the left shoulder, walked across the median, and looked at the car. After he determined that the car was not his, he returned to his rented car.

Just as Forsner was putting his seat belt on, defendant’s car hit his car from behind. Forsner did not hear brakes screeching before the collision. Immediately after being hit, Forsner’s car flipped over twice and landed upright. Once the car stopped flipping, Forsner saw his wife draped forward leaning over the floor and Brian pinned between the rear and front seats with his face contorted against the window, but he did not see Alexander. Forsner got out of the car and tried to open the other doors, but could not.

Eventually, emergency equipment arrived at the scene. Sheila was pulled from the car and treated by passers-by and paramedics. Hydraulic equipment pried Brian from the car. Two helicopters transported Sheila and Brian to Loyola University Medical Center. Sheila was in a coma for five months and is a quadriplegic. Brian was in a coma for four or five days and remained in the hospital another four days. Forsner was not physically injured. Alexander, who had been sitting in a car seat in the back seat, was pronounced dead at the scene. Linda Kieta, who was a passenger in defendant’s car, suffered bruises on her head and legs.

Maria Jiminez testified that she was driving 65 miles per hour on the Stevenson Expressway at 6:20 p.m. with her three children and two nephews. A gold car, identified as defendant’s, was traveling about 75 miles per hour when it passed her on the right, nearly hitting her car. Jiminez turned around to quiet the children. When she looked forward again, she saw defendant’s car, which had crossed into the far left lane, drive onto the left shoulder. She heard a “bang” and saw Forsner’s car fly into the air after being hit by defendant’s car. Jiminez stated that she did not see brake lights or hear brakes screeching prior to the impact. She said that there were no cars between her car and defendant’s car when the accident occurred; defendant’s car had not been cut off by another vehicle; and there was no obstruction in the road causing defendant’s car to move onto the shoulder.

Illinois State Trooper Dennis Wegener testified that he arrived at the accident scene, saw both cars, and began attending to the injured. He did not see any skid marks. After about 15 minutes, Wegener approached defendant, who identified himself as the driver of the car that struck Forsner’s car. Wegener observed that defendant’s face was flushed, he smelled moderately of alcohol, he stuttered, he spoke with a thick tongue, and his eyes were red, glassy, and bloodshot. Wegener indicated in his police report that defendant was cooperative, but crying, at the scene. Although defendant told Wegener that he forgot his driver’s license at home, a later check revealed that defendant’s driver’s license had been suspended. Wegener also stated that he found a clean, cold, wet, empty beer bottle near the scene.

Defendant was taken to Loyola University Medical Center, where he was later placed under arrest for driving under the influence of alcohol. Wegener testified that defendant was laughing and carefree at the hospital. Defendant told Wegener that he had drunk three to six bottles of beer earlier that afternoon. Around 10:40 p.m., Wegener asked a nurse to get urine and blood samples from defendant. Wegener watched the nurse draw two vials of defendant’s blood and place the labelled vials in a styrofoam DUI kit. The nurse gave Wegener the DUI kit, which he put in his car before driving defendant to the police station. While at the police station, Wegener left the container in his car. When he arrived at home that night, Wegener put the container in his refrigerator. The next morning, Wegener checked the evidence seal on the package and shipped it to the Illinois State Police Crime Lab.

Alex Qualizza, an emergency medical technician, testified that he treated Linda Kieta at the scene. Defendant accompanied Kieta to the hospital. In the ambulance, defendant told Qualizza that he had drunk four to six beers and had smoked marijuana before the collision.

Dr. John Furiasse, the emergency room physician, treated defendant at 8:45 p.m. Dr. Furiasse testified that defendant was talking loudly, would not sit still, and smelled of alcohol. Blood and urine samples were taken at 8:50 p.m. at Dr. Furiasse’s direction. The laboratory report showed that defendant’s blood-alcohol content was .093, slightly below the legal limit. Defendant’s urine tested positive for the presence of marijuana. On cross-examination, Dr. Furiasse testified that marijuana can stay in a person’s system for up to 30 days.

Emergency room nurse Renata Sobey testified that she obtained defendant’s blood and urine samples at 8:50 p.m. Another urine sample was ordered after the laboratory informed her that the first specimen was actually tap water. Defendant gave another urine sample under supervision at 10:25 p.m. Nurse Sobey took a second blood sample at 10:40 p.m., labeled the vials, and gave the DUI kit to Trooper Wegener.

Assistant State’s Attorney Donald Havis testified that he interviewed defendant at the Bedford Park police station at 1:45 a.m. on May 28, 1989. Defendant told Havis that he had been at a Round Lake park and had consumed three to six beers between 1 p.m. and 5 p.m. on May 27,1989.

Dr. Jeffrey Benson, an Illinois State Police Crime Lab forensic scientist, testified as an expert witness. He received defendant’s second blood sample on June 1, 1989, at which time he placed his initials and the date on the vials. Two days later, Dr. Benson analyzed the sample and determined that its alcohol content was .043, less than half the legal limit.

Using back extrapolation calculations, Dr. Benson estimated defendant’s blood-alcohol content at 6:30 p.m., immediately after the collision, at .126, which is above the legal limit. Dr. Benson noted that defendant’s blood-alcohol content had dropped from .093 at 8:50 p.m. to .043 at 10:40 p.m. Based on those figures, Dr. Benson determined that defendant’s body was metabolizing the alcohol and his blood-alcohol level was descending in the hours after the accident. Dr. Benson concluded that defendant was under the influence of alcohol at the time of the accident.

After deliberations, the jury convicted defendant of reckless homicide, driving under the influence of alcohol, and driving with a suspended license. The trial court then sentenced him to five years’ imprisonment and ordered him to pay $3,600 restitution.

On appeal, defendant asserts that his first blood test was not admissible under section 11 — 501.4 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.4) because that statute unconstitutionally conflicts with Supreme Court Rule 236, which prohibits the admission of medical records under the business records exception to the hearsay rule. Even if a hearsay laboratory report of a blood test is reliable for medical purposes, defendant contends, it is unreliable in a criminal trial. There is no merit to defendant’s argument.

The Illinois Appellate Court has recently held that section 11— 501.4 does not conflict with Supreme Court Rule 236. In People v. Solis (1991), 221 Ill. App. 3d 750, 752, 583 N.E.2d 26, the first district ruled that section 11 — 501.4 is constitutionally valid because it permits the admission of blood-alcohol test results only under very limited circumstances, which are designed to insure that the written test results are trustworthy and reliable. Furthermore, the court noted, the admissibility allowed in section 11 — 501.4 is limited to prosecutions for reckless homicide and driving under the influence. Solis, 221 Ill. App. 3d at 752.

The fourth district in People v. Hoke (1991), 213 Ill. App. 3d 263, 270, 571 N.E.2d 1143, ruled that section 11 — 501.4 does not conflict with Supreme Court Rule 236 because section 11 — 501.4 imposes requirements for admissibility unrelated to a document’s admissibility under the business record exception to the hearsay rule, which is all that Supreme Court Rule 236 addresses. Furthermore, the court stated that section 11 — 501.4 provides that written results of blood-alcohol tests conducted on persons receiving medical treatment in hospital emergency rooms are admissible as a business record exception, but only under very limited circumstances, which are enumerated in the statute. Hoke, 213 Ill. App. 3d at 269.

The second district held in People v. Lendabarker (1991), 215 Ill. App. 3d 540, 560, 575 N.E.2d 568, that there is no conflict because the admissibility allowed in section 11 — 501.4 applies only to criminal proceedings and Supreme Court Rule 236 is applicable only to civil proceedings.

Next, defendant asserts that the chain of custody of his second blood sample was deficient, making the sample inadmissible. Defendant argues that there was no testimony concerning the evidence seal that Trooper Wegener had placed over the DUI kit, including no evidence that the seal was intact when received by Dr. Benson. Defendant states that the blood-test results are inadmissible because there was no evidence that the sample had not been changed in any important respect in all reasonable probability.

Defendant waived this issue because he did not object at trial to the sufficiency of the blood sample’s chain of custody. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) If he had objected, the trial court could have remedied any alleged deficiency by instructing the State to clarify the chain of custody.

Defendant asserts that Dr. Benson’s expert testimony regarding back extrapolation calculation to estimate defendant’s blood-alcohol level at the time of the collision was inadmissible because that method is not commonly accepted by the scientific community. He does not offer any further argument, other than conclusory statements in support of his contention, nor does he cite any authority for that contention. Defendant waived his argument. A point raised but not argued or supported by citation to relevant authority is waived because it fails to satisfy Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). (People v. Felella (1989), 131 Ill. 2d 525, 540, 546 N.E.2d 492.) Even if it had not been waived, the argument has no merit. See Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 797, 572 N.E.2d 439; Cuellar v. Hout (1988), 168 Ill. App. 3d 416, 419, 522 N.E.2d 322; People v. Johnigk (1982), 111 Ill. App. 3d 941, 944, 444 N.E.2d 739.

Finally, defendant asserts that Dr. Benson’s opinion, that defendant was under the influence of alcohol at the time of the collision, was inadmissible because it could not aid the trier of fact. Defendant’s argument is waived since he did not object at trial. Enoch, 122 Ill. 2d at 186.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE GORDON

text:
    JANICE PICARDI, Plaintiff-Appellee, v. FLOYD EDWARDS et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—90—0517
    Opinion filed May 8, 1992.

      Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Diane I. Jennings, and Douglas W. Lohmar, Jr., of counsel), for appellants.
    Nisen & Elliott, of Chicago (John K. Kneafsey, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Defendants Floyd Edwards and Patricia Gray appeal from a trial court order denying their section 2 — 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401) for want of jurisdiction.

On October 9, 1985, plaintiff Janice Picardi filed this suit against defendants, alleging breach of contract to purchase a condominium unit in Palatine, Illinois. On July 9, 1986, the suit was dismissed for want of prosecution. On October 10, 1986, the suit was reinstated. On March 18, 1988, the suit was dismissed for want of prosecution for the second time. On April 21, 1988, plaintiff filed a petition to vacate the dismissal of the complaint on the ground that she had not received notice of the trial call. On June 22, 1988, the trial court granted plaintiff’s petition and reinstated the action.

Subsequently, the cause appeared on the trial call on February 9, 1989. Defendants did not appear and were held to be in default. On April 5, 1989, plaintiff presented an ex parte prove up to a jury, which awarded damages of $32,000. The court entered judgment on the verdict.

On April 27, 1989, defendants were served with plaintiff’s motion to dismiss defendants’ counterclaim. On May 4, 1989, defendants moved to vacate the February 9, 1989, default judgment against them, on the ground that they did not receive notice of plaintiff’s April 21, 1988, petition to vacate and did not know the complaint had ever been reinstated on June 22, 1988.

On September 18, 1989, plaintiff responded to defendants’ section 2 — 1401 petition, arguing that improper notice of defendants’ section 2 — 1401 petition was given, and that the petition was improperly verified and thus was not in compliance with section 2 — 1401. On September 27, 1989, a hearing was held, where the court suggested that defendants refile the petition.

“THE COURT: It doesn’t qualify as a 2 — 1401. It isn’t sworn to.
DEFENSE COUNSEL: If that is what is necessary, I will
get it sworn. Your Honor, I simply want to transfer it.
* * *
THE COURT: This is not a 2 — 1401 petition.
DEFENSE COUNSEL: That is fine, your Honor. I will refile it.
THE COURT: I suggest you continue the matter, refile the petition.
PLAINTIFF’S COUNSEL: Wait, I think the order should deny it.
THE COURT: This motion will be denied. It is not an appropriate motion under 2 — 1401.
DEFENSE COUNSEL: That is fine.
THE COURT: File it some other time.
DEFENSE COUNSEL: Denied without prejudice. Thank you, your Honor.
PLAINTIFF’S COUNSEL: Wait a second.
THE COURT: Wait a while. We just did that. It is denied.

DEFENSE COUNSEL: All right.”

The court entered an order stating that “the motion is hereby denied for failure to abide by Rule 1401.”

On October 27, 1989, defendants refiled the section 2 — 1401 petition with the requisite verification. Plaintiff moved to dismiss the second 2 — 1401 petition on the ground that the September 27, 1989, order was final and appealable and the trial court no longer had jurisdiction to hear defendants’ “second petition.” Initially, on December 18, 1989, the court denied plaintiff’s motion to dismiss the section 2 — 1401 petition. At the hearing, plaintiff argued that the trial court had no jurisdiction because the court had dismissed the section 2— 1401 motion on September 21, 1989, and under Rule 304(b)(3) (134 Ill. 2d R. 304(b)(3)), it was a final and appealable order.

“THE COURT: Did I dismiss their motion to [sic] strike it?
DEFENSE COUNSEL: You denied it.
THE COURT: It was not verified?
DEFENSE COUNSEL: No.
PLAINTIFF’S COUNSEL: That was the grounds — well, wait a second. The motion is here for failure to abide by rule 1401. Now, we raise quite a few areas where we said they were defective. We said it didn’t allege a meritorious defense. It didn’t do, we allege—
THE COURT: I am sure the reason I struck it is because on its face it didn’t comply with the statute, because it wasn’t a verified petition.
PLAINTIFF’S COUNSEL: You denied it.
THE COURT: I really didn’t deny it on merits. I denied it because we didn’t agree on the form.
PLAINTIFF’S COUNSEL: If that’s true, then they should have come in within 30 days and asked to modify the order or do something, but under 304(3)(b) [sic], if you read the supreme court rule, it says sets forth. ***
* * *
*** It specifically states that a judgment order granting or denying any of the relief prayed under section 2 — 1401 of the code is a final and appealable order.
* * *
The order that you entered basically denied their motion. It didn’t strike it. It didn’t give them leave to add an affidavit. It denied it.
* * *
THE COURT: Counsel, wouldn’t it be much more economic [sic] and much more direct and more within the keeping of the decisions in this area for this matter to be disposed of on the merits unless you can show me your prejudice by the virtue of the fact — your witness’ testimony is gone stale, this whole matter—
* * *
Why don’t you let this matter proceed on its merits.” filed within 30 days of a previous 2 — 1401 petition that was denied *** ff

The court then entered an order denying plaintiff’s motion to dismiss defendants’ second section 2 — 1401 petition for lack of jurisdiction and giving plaintiff leave to answer the petition on its merits.

However, on January 16, 1990, the court reconsidered and denied defendants’ section 2 — 1401 petition. The court entered an order stating: “The 1401 petition is denied on reconsideration of plaintiff’s motion to dismiss initially denied on December 18, 1989, the court holding that it does not have jurisdiction to consider a 2 — 1401 petition

On February 15,1990, defendants filed this appeal.

Opinion

Defendants contend that the September 27, 1989, denial of their first section 2 — 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1401) to vacate was not a final and appealable order under Illinois Supreme Court Rule 304(b)(3) (134 Ill. 2d R. 304(b)(3)).

Plaintiff maintains that the trial court properly dismissed the second 2 — 1401 petition for lack of jurisdiction, and that this court similarly has no jurisdiction to consider the appeal from the denial of the second section 2 — 1401 petition.

Generally, it is true that the filing of a second section 2 — 1401 petition does not toll the 30 days provided for filing an appeal from the first section 2 — 1401 petition. See Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; In re Marriage of Ohlson (1984), 126 Ill. App. 3d 374, 466 N.E.2d 1280.

Our recent decision in Romo v. Allin Express Service, Inc. (1991), 219 Ill. App. 3d 418, 579 N.E.2d 924, which was decided after briefs were filed in this case, is fully dispositive of this appeal. In Romo, this division held that the trial court’s dismissal of plaintiff's first section 2 — 1401 motion without prejudice “invited a refiling, and thus [the trial court] retained jurisdiction over the [second] petition filed 22 days later.” (Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419.) The trial judge in Romo stated:

“Now, there is no question that your petition does not set forth specific factual allegations of your having a meritorious claim. *** At this point my order is, your petition is denied without prejudice.” (Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419.)

We held that this language “makes this judgment substantially similar to an order granting leave to amend.” Romo v. Allin Express Service, Inc., 219 Ill. App. 3d at 419, citing Elliott Construction Corp. v. Zahn (1968), 99 Ill. App. 2d 112, 241 N.E.2d 129 (trial court has authority to grant leave to amend a section 2 — 1401 petition; time for filing notice of appeal is tolled until the amended petition is filed); Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645 (same).

Here, the facts are even stronger. The trial court expressly invited defendants to refile the section 2 — 1401 petition when it stated at the September 27, 1989, hearing, “I suggest you continue the matter, refile the petition”; and “File it some other time.” At the Decernber 18, 1989, hearing, the court recalled that it intended to give defendants the opportunity to refile the petition, when it stated:

“THE COURT: I am sure the reason I struck it is because on its face it didn’t comply with the statute, because it wasn’t a verified petition.
* * *
I really didn’t deny it on merits. I denied it because we didn’t agree on the form.”

We conclude, as we did in Romo, that the trial court erred in finding it had no jurisdiction to entertain the second section 2 — 1401 petition. We decline to address the merits of the section 2 — 1401 petition until the trial court has had the opportunity to do so.

Finally, we find no merit in plaintiff’s argument that defendants and their attorneys should be sanctioned because, as plaintiff argues, they “have refused to justify under the law how they were entitled to file a second 2 — 1401 petition.” Both the facts in this record and the law cited herein clearly support defendants’ right to file a second section 2 — 1401 petition.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a hearing on the merits of the final section 2 — 1401 petition.

Judgment reversed and remanded with directions.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE LORENZ

text:
    DERBY MEADOWS UTILITY COMPANY, Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Appellees.
    First District (5th Division)
    No. 1—89—2944
    Opinion filed May 8, 1992.

      Petition for review of order of Illinois Commerce Commission.
    Duane A. Feuer and P. Matthew Glavin, both of Ross & Hardies, of Chicago, for appellant.Chicago, for appellant.
    Roland W. Burris, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Paul E. Freehling and Catherine P. Wassberg, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellee Village of Orland Park.
    DeFrees & Fiske, of Chicago, for appellee Orchard Hill Building Company.
   JUSTICE LORENZ

delivered the opinion of the court:

Appellant, Derby Meadows Utility Company (Derby), appeals from a final order of the Illinois Commerce Commission (Commission) denying it permanent certification to provide water and sewer services to an undeveloped subdivision located in unincorporated Cook County. The Commission based its denial of the certification, in part, on the disposition of two ancillary lawsuits which were litigated by various parties in the circuit court of Cook County. Derby filed this appeal pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335). We consider whether the Commission’s final order was clearly arbitrary, unsupported by substantial evidence in the record, or contrary to an established rule of law.

We remand.

Relevant to our disposition are the following facts as disclosed by the record. Derby was and continues to be an Illinois corporation engaged in the business of owning, operating and maintaining a public water supply system and public sewage disposal system; Derby is a public utility as defined in the Illinois Public Utilities Act (the Act) (Ill. Rev. Stat. 1987, ch. 1112/3, par. 1 — 101 et seq.). In order to conduct business in the State, Derby is required to obtain a certificate of public convenience and necessity from the Illinois Commerce Commission.

The subject matter of these proceedings concerns Creekside, an undeveloped subdivision located in unincorporated Cook County. In 1979 Derby entered into a contract with the Tope Corporation, which at that time was the developer of Creekside. Derby and the Tope Corporation were owned by the same individual. The contract provided Derby with the right to provide water and sewer services to Creekside.

Derby petitioned the Commission for the required certificate. However, while the petition was pending, the Tope Corporation conveyed its rights as developer to the Inter-Continental Real Estate & Development Corporation (Inter-Continental). In turn, Derby entered into a contract with Inter-Continental on October 30, 1980 (1980 contract). This contract also provided Derby with the right to provide Creekside with water and sewer services. Specifically, the contract required Derby to construct water and sewer lines for service to the development, and it required Inter-Continental to pay a tap-in charge for connection to Derby’s utility system either when Inter-Continental completed the on-site improvements or when Derby completed its trunk line, whichever occurred first.

In 1981 the Commission ruled on Derby’s petition and granted a permanent certificate. (There was some confusion whether the Commission granted the petition based on Derby’s contract with the Tope Corporation or with Inter-Continental.) The permanent certificate required that Derby complete, among other things, the construction of a third water well. Derby completed the required construction projects. However, Inter-Continental did not develop Creekside and Derby’s permanent certificate expired after two years by operation of section 8 — 406(f) of the Act (Ill. Rev. Stat. 1987, ch. 1112/3, par. 8 — 406(f)).

In 1987 Inter-Continental conveyed its rights to develop Creekside to a third developer, the Orchard Hill Building Company (Orchard Hill). Derby provided Orchard Hill with a copy of its 1980 contract with Inter-Continental. A rider to the real estate contract between Inter-Continental and Orchard Hill was executed which provided that Orchard Hill rather than Inter-Continental would be obligated to pay for the connection fees and services of Derby.

However, Orchard Hill entered into an agreement with the Village of Orland Park (Village) pursuant to which the Creekside property was to be annexed to the Village; the Village would then provide the water and sewer services to Creekside. The Village, as a municipality, was not required to obtain a certificate from the Commission in order to provide services for Creekside.

To protect against losing its right to provide services for Creekside, Derby then filed two lawsuits in the circuit court of Cook County. The first suit (No. 87 — CH—9418) named the Village as defendant and alleged tortious interference with Derby’s 1980 contract with Inter-Continental. Derby sought an order enjoining the Village from interfering with Derby’s rights to provide the water and sewer services for Creekside. The second suit (No. 88 — CH—1460) named Inter-Continental and Orchard Hill as defendants and included three counts. Counts I and II alleged that Inter-Continental was liable to Derby on theories of breach of contract and promissory estoppel, respectively. Count III alleged that Orchard Hill breached the 1980 contract on a theory that the contract ran with the land.

In May 1988 the suit against the Village (No. 87 — CH—9418) went to trial. The trial court, however, considered the parties’ arguments without evidence or knowledge that Inter-Continental had previously conveyed its rights to Orchard Hill. Instead, Derby produced the 1980 contract with Inter-Continental. The trial court (Judge Kiley) issued findings of fact and conclusions of law and orally ruled that the 1980 contract was enforceable; that the Village tortiously interfered with the 1980 contract; and that the Village thereby caused Inter-Continental to breach. The court then enjoined the Village from further interfering with Derby’s rights under the 1980 contract. The trial court would later rule, however, that these rulings were not final.

In light of the above, Derby filed another petition (the subject of this appeal) with the Commission on July 25, 1988, requesting another permanent certificate. Derby relied on Judge Kiley’s conclusion that the 1980 contract was enforceable. The Village filed an appearance and moved to intervene in the Commission’s proceedings. Hearings were scheduled to commence in August and September.

Meanwhile, Orchard Hill filed a motion to intervene in the lawsuit (No. 87 — CH—9418) against the Village. The motion informed Judge Kiley that in 1987 it purchased the lots in Creekside and that its rights would be affected by the court’s enjoining the Village from providing the water and sewer services. Judge Kiley granted the motion to intervene. Judge Kiley also stated that the court would not enter a final judgment concerning the Village’s interference with the 1980 contract until the separate lawsuit against Inter-Continental was decided.

Orchard Hill then promptly filed a motion requesting that Judge Kiley allow the Village to provide the water and sewer services to Creekside during the pendency of the suit against Inter-Continental. Judge Kiley denied this motion. Instead, pursuant to Judge Kiley’s recommendation, Orchard Hill entered into a temporary service agreement with Derby allowing Derby the rights to provide the then-existing six model homes with services. The temporary service agreement stated, in part, that Derby agreed to provide water and sewer services to Creekside during the pendency and until the final resolution of the lawsuit against the Village.

In light of the temporary service agreement, Derby amended its petition already filed with the Commission and requested the issuance of a temporary certificate. The Commission convened for the scheduled August and September hearings to discuss Derby’s pending petition for both the permanent and temporary certificates, the status of the circuit court lawsuits, and to discuss the immediate need for services to Creekside. Orchard Hill supported Derby’s request for a temporary certificate. The Village opposed the issuance of either a temporary or permanent certificate.

The Commission issued an interim order granting Derby’s request for the temporary certificate which by law would expire one year after its issuance. The interim order stated in part:

“Developer will retain title to all facilities it constructs pending the final resolution of the issues in case No. 87 CH 9418, whereupon it will transfer title to the facilities to the utility ultimately determined to be the permanent supplier of water and sewer services to the subdivision.”

The interim order recognized that either Derby or the Village could become the permanent supplier.

The Village moved the Commission to reconsider the interim order, and the proceedings were continued for that purpose. The hearings on the issue of the permanent certificate were also continued.

On January 28, 1989, the Commission ruled that the interim order granting Derby the temporary certificate would remain in full force and effect. The Village filed a notice of appeal (No. 1 — 89—0924) urging this court to reverse the Commission’s issuance of the temporary certificate. The Commission filed motions to dismiss the appeal for lack of jurisdiction and for mootness. By the time the appellate court ruled one year later, the temporary certificate had expired by operation of law. The appeal was dismissed on grounds of mootness.

In March 1989 Orchard Hill moved the Commission to deny Derby’s petition for the permanent certificate or for any extension of the temporary certificate. The president of Orchard Hill, Robert Gallagher, testified that as soon as the temporary service agreement with Derby expired, Orchard Hill intended to have the Village, not Derby, provide Creekside with water and sewer services. Orchard Hill did not want, need, nor would it accept permanent services from Derby. He testified that Orchard Hill preferred permanent services from the Village because the Village provided Lake Michigan water whereas Derby provided lesser quality well water. Moreover, he expected that Creekside would be annexed by the Village. The Commission continued the case to consider the testimony.

Meanwhile, the lawsuit against Inter-Continental was consolidated with the suit against the Village. However, Inter-Continental moved for a change of venue pursuant to which the case was reassigned to Judge Green. Inter-Continental and Orchard Hill filed motions to dismiss counts I, II and III. On June 13, 1989, Judge Green ruled that the 1980 contract between Derby and Inter-Continental was not enforceable and dismissed Inter-Continental as to both counts I and II. Judge Green further ruled that the 1980 contract did not run with the land and therefore dismissed Orchard Hill as to count III. Derby filed an appeal (No. 1 — 89—1612) to this court.

In view of Judge Green’s rulings, the Village then moved for summary judgment in its case (which had been reassigned from Judge Riley to Judge Reynolds), arguing that the Village could not properly be liable for tortious interference with the 1980 contract because it was unenforceable. Judge Reynolds agreed. Therefore, despite Judge Riley’s original findings of fact and conclusions of law in favor of Derby, Judge Reynolds granted summary judgment in favor of the Village. Derby filed an appeal (No. 1 — 89—2064) which was consolidated with No. 1-89-1612.

On August 23, 1989, the Commission entered a seven-page final order denying Derby’s petition for a permanent certificate or for the extension of the temporary certificate. The order proposed that “the only remaining question is which utility should provide the service.” The order then stated that “in view of the earlier holding in Derby’s separate suit against Inter-Continental that the contract with InterContinental is unenforceable, Derby’s argument that an injunction may be entered to enforce the contract was clearly frivolous.” The order also stated:

“(5) two separate circuit court judges have ruled that the contract relied upon by Derby with the developer is unenforceable;
(6) the Village of Orland Park is ready, willing and able to service Creekside with water and sewer service;
(7) Derby has failed to show that there is a need or demand for its provision of water and sewer service to Creekside; Derby has not met the requirement of section 8 — 406(a) of the Act;
(8) there has been no evidence showing that a permanent certificate is necessary or convenient for the public interest;
(9) the temporary certificate issued to Derby will become null and void by operation of law on September 28, 1989;
(10) the petition filed by Derby is properly denied in its entirety.”

Derby’s petition for rehearing was denied, and Derby filed this appeal (No. 1-89-2944).

Subsequently, on August 17, 1990, the appellate court issued an opinion (202 Ill. App. 3d 345) concerning Derby’s appeals from the two circuit court rulings. As to No. 88 — CH—1460, the appellate court reversed the trial court’s dismissal of Inter-Continental under counts I and II; the court affirmed the trial court’s dismissal of Orchard Hill under count III. As to No. 87 — CH—9418, the appellate court reversed the trial court’s summary judgment in favor of the Village on the issue of the tortious interference with Derby’s 1980 contract with Inter-Continental.

We are now asked to address Derby’s appeal from the Commission’s final order.

Opinion

A ruling of the Commission is entitled to great deference on judicial review and can be set aside only when it is clearly arbitrary, unsupported by substantial evidence in the record, or contrary to an established rule of law. Ill. Rev. Stat. 1987, ch. 1112/3, par. 10— 201(e)(iv); Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 529 N.E.2d 671.

In this case, we agree with the Commission that “the only remaining question is which utility should provide the service.” In its final order, however, the Commission found that Derby’s argument that the Village may be enjoined from providing the utility services was frivolous because the 1980 contract was found to be unenforceable. The Commission based its findings on the decisions in the two separate circuit court cases. We note that the appellate court subsequently reversed and remanded the circuit court decisions. We have been informed by the parties that these cases remain pending before the circuit court. Therefore, Derby’s argument that the Village may be enjoined from providing the utility services to Creekside remains viable. In the event that the Village is in fact enjoined, it may be necessary that the Commission grant Derby its petition for a permanent certificate.

Therefore, we hold that the Commission’s final order is unsupported by the still pending circuit court cases. We remand this case to the Commission for further findings in view of the final resolution of the two circuit court cases.

Remanded.

McNULTY, P.J., and MURRAY, J., concur.