author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WILLIAM DAY, Defendant-Appellant.
    Fourth District
    No. 4—90—0033
    Opinion filed September 6, 1990.

      McLean Arnold, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant David William Day from his conviction of the possession of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)) following a bench trial in the circuit court of McLean County. Defendant was sentenced to 30 months’ probation as a first offender (Ill. Rev. Stat. 1987, ch. 56½, par. 1410), subject to defendant serving 30 days’ periodie imprisonment on weekends, with credit for two days served, completing 500 hours of community service, and paying a $500 fine, a $20 Crime Victims Compensation Act (Ill. Rev. Stat. 1987, ch. 70, pars. 71 through 90) fine, court costs and a $50 statutory surcharge. He was also ordered to pay $10 per month while on probation for a probation service fee.

On appeal, the defendant raises three issues, i.e., whether the trial court erred by denying (1) defendant’s motion to examine evidence, (2) defendant’s motion for a deposition, and (3) the motion to suppress evidence.

On June 19, 1989, defendant filed a motion to suppress evidence. Prior to that, on June 5, 1989, defendant filed a motion to examine a piece of evidence described as a “fold envelope.” At the hearing on the motion, the State objected on the ground that such an inspection would cause a problem in the proof of chain of custody. Defendant’s counsel suggested counsel go to the evidence lockup to examine the alleged container of cocaine. The trial court denied the motion after suggesting defendant’s counsel might communicate to the State’s Attorney a week or so ahead of the hearing the desire to examine the evidence at the hearing on the motion for suppression of evidence, which counsel indicated he intended to file. Defense counsel indicated he would file a subpoena duces tecum, for the production of the item after the court stated a discussion with the police officer might satisfy defendant’s counsel.

On June 22, 1989, defendant filed a motion for a deposition after the officer failed to respond to defense counsel’s letter requesting a meeting to discuss the matter. On September 6, 1989, the motion for deposition was denied.

Defendant objects to the denial of his request to view the physical evidence in the State’s control. People v. Flowers (1972), 51 Ill. 2d 25, 281 N.E.2d 299, upon which defendant relies, requires the State to disclose to defense counsel all relevant, nonprivileged, pretrial reports or statements of prosecution witnesses. Flowers does not suggest defendant’s counsel may examine the physical evidence outside of court, nor does it hold the witnesses are subject to being deposed by defense counsel.

The State also recognizes the defendant has a right to have tests conducted. (Miller v. Pate (1967), 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785.) However, the State also has an interest in preserving the evidence and insuring its admissibility. People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328.

Here defendant did not request the item be submitted to an expert for testing. And since defendant’s counsel merely wanted to observe the envelope to ascertain whether to file a motion to suppress, defendant has failed to convince this court that the purpose of defendant’s request was not achieved when the item was introduced as evidence at the hearing on the motion to suppress. Therefore, defendant could not have been denied a fair trial by reason of the denial of the earlier motion. Further, defendant does not contend the rules of discovery in criminal cases have in any way been violated by the State. (107 Ill. 2d Rules 411 through 415.) Nor has defendant cited any authority which would authorize the taking of discovery depositions in criminal cases.

Of course, the more significant question is whether the evidence should have been suppressed. Before reviewing all the circumstances presented to the trial court in order to determine the propriety of the court’s ruling, we note that a court of review will not disturb the trial court’s finding on a motion to suppress unless the finding of the trial court is shown to be manifestly erroneous. People v. Waddell (1989), 190 Ill. App. 3d 914, 546 N.E.2d 1068.

At the hearing on the motion to suppress, Illinois State Trooper Benny R. Percy was the sole witness. Percy testified that on April 18, 1989, he stopped defendant’s automobile for speeding. The time was 7:17 p.m., with the traffic stop being made along 1-55, just north of the 1-74 westbound exit to Peoria. There were four occupants in defendant’s vehicle. Percy was armed at the time.

Prior to exiting his police vehicle, Percy radioed to check on the license plates and was advised the vehicle was not reported stolen. Nor was there anything improper about the license plates.

The officer noticed the defendant exit his vehicle. Even though the officer’s car had a public-address system in it, he did not use it. Instead, Percy exited his automobile to confront the defendant. When Percy was at about the front left quarter panel of his squad car, he observed the passengers of defendant’s vehicle “jumping around,” and the front right-seat passenger move forward and lean forward from his normal sitting position. Defendant was outside his automobile at that time at about the left rear bumper area of his car, walking toward Percy’s squad car.

At that point, prior to anything being said by defendant, the officer had defendant place his hands on the rear of his automobile and conducted a frisk for weapons. After the frisk began, Percy asked defendant if he had any identification. During the frisk, Percy noticed a small rectangular object in the defendant’s right front pants pocket. When he felt the object in defendant’s pocket, he was not sure what it was. The object was about IV2 inches in length and about a quarter-inch in thickness. Percy believed the object could have been a razor blade wrapped up in something. He testified that until he opened it, he felt the package could have contained a razor blade. Before removing the package from defendant’s pocket, Percy asked defendant what was in his pocket and defendant gave no response. What he observed, after taking the object from defendant’s pocket, was a small, white envelope, which he described as a “druggist fold.” Percy testified that through training he was familiar with such a conveyance being utilized to hold loose drugs. He had also observed similar folded paper on traffic stops in which he had seized illegal drugs. After he recognized the druggist fold, he opened the package.

In Waddell, this court stated:

“Even though a police officer does not possess probable cause to make an arrest, a police officer may approach persons to investigate possible criminal activity and to frisk the individuals to ascertain the presence of weapons in order to protect the police officer and prospective victims of violence. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In Illinois, these rules have been embodied in the Code. Section 107—14 provides:
‘A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.’ (Ill. Rev. Stat. 1987, ch. 38, par. 107— 14.)
Section 108 — 1.01 provides:
‘When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.’ (Ill. Rev. Stat. 1987, ch. 38, par. 108—1.01.)” (Waddell, 190 Ill. App. 3d at 924-25, 546 N.E.2d at 1074.)

Certainly, the moving traffic violation justified the stop in this case. (See People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448.) Defendant does not challenge that fact.

The mere fact that defendant was stopped for a traffic offense does not necessarily afford a reasonable basis for believing defendant was armed and dangerous. (Compare People v. Palmer (1976), 62 Ill. 2d 261, 342 N.E.2d 353; People v. Thomas (1964), 31 Ill. 2d 212, 201 N.E.2d 413.) As was stated in People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837, although the officer is not required to ask questions before frisking a person the officer legitimately stopped, the right to frisk does not automatically follow the right to stop. The test for determining the validity of the frisk is an objective one, but even though the police officer’s subjective feelings do not establish the validity of the frisk, testimony of the officer’s feelings is a factor to consider within the totality of circumstances known to the officer at the time. (Galvin, 127 Ill. 2d 153, 535 N.E.2d 837.) “In determining the reasonableness of the officers’ conduct, the facts must be considered not from the perspective of analytical hindsight, but rather as they would have been viewed by a reasonable officer confronting them in the performance of his duties.” (People v. Smithers (1980), 83 Ill. 2d 430, 439, 415 N.E.2d 327, 332.) Considering the time of day the defendant’s car was stopped, the location of the stop, defendant exited his vehicle without being told to do so and approached the squad car, Percy was alone, there were three other occupants in defendant’s vehicle, and one of those occupants made a movement inside the car which might be interpreted as reaching for a weapon under the seat or on the floor of the car, the officer was justified in taking charge of the situation for his own protection and frisking the defendant to ensure he (the officer) was not in danger. The officer testified he felt his safety might be in jeopardy if he did not take charge of the situation.

The defendant attempted to persuade this court that the failure of Percy to testify he believed defendant was going to attack him means the frisk was not justified. In support of this proposition, defendant cites People v. Dotson (1976), 37 Ill. App. 3d 176, 345 N.E.2d 721, and People v. McClanahan (1989), 191 Ill. App. 3d 276, 547 N.E.2d 681. These cases are factually distinguishable. In Dotson an order suppressing evidence was affirmed, not because of the officer’s stated belief, but because the only articulable fact supporting the belief was the fact that the defendant, a traffic offender, shifted his weight after placing his hand in his pocket on a winter day. The court concluded the behavior merely suggested the individual was trying to keep warm. McClanahan involved the search of an automobile, not the stop and frisk of the individual driving the vehicle. The search of defendant occurred only after a gun was found in the car following an unauthorized and improper search of the car. This court affirmed the suppression of evidence in McClanahan.

In this case, not only was the officer’s search proper, but it was also confined to an intrusion reasonably designed to discover objects capable of use as a weapon. This issue is discussed at length by Professor LaFave, in his treatise on the fourth amendment:

“As one commentator has aptly noted, it ‘will be a rare case in which, in the process of a pat-down, an officer will not come upon some object or objects secreted in the apparel of the suspect.’ Thus, another important question which must be resolved in order to assess the conduct of a police officer who has performed a frisk is that of what tactile sensations produced by the pat-down will justify a further intrusion into the clothing of the suspect.
At the outset, it must be asked what the legal test is at this point. In Terry, the Court stressed that after patting down the suspects Officer McFadden ‘did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons.’ But surely this does not mean that the policeman must know beyond any doubt that what he has felt is a weapon; the officer ‘need not be absolutely certain that the individual is armed.’ Sometimes it is said that he must feel ‘an object which he reasonably believes to be a dangerous weapon,’ which may be an appropriate test if this reasonable belief does not require that it be possible to determine that it is more probable than not that the object is a weapon. As some courts put it, it must be asked whether the object ‘feels like a weapon,’ whether there was anything in the officer’s ‘perception to indicate it was not a weapon either because of size or density.’
In making a judgment on this point in a particular case, it may be critical to determine what properly may be deemed a potential weapon in this context. Some courts ‘condone fanciful speculation’ on this point. Illustrative are cases holding that an object thought to be a cigarette lighter may be searched for because ‘it could be used in a doubled up fist as a punch or thrown at the officer or used to burn the officer or the police unit,’ that a soft object may be searched for because it might be ‘a rubber water pistol loaded with carbolic acid or some other liquid, which if used by a suspect could permanently blind an officer,’ and that an object thought to be a shotgun shell could be searched for because it could be detonated by a sharp object and the suspect ‘might want to explode the shell even in a way which might entail considerable personal risk to himself.’ Decisions of the type just described are unsound. As noted in People v. Collins [(1970), 1 Cal. 3d 658, 463 P.2d 403, 83 Cal. Rptr. 179]:
To permit officers to exceed the scope of a lawful pat-down whenever they feel a soft object by relying upon mere speculation that the object might be a razor blade concealed in a handkerchief, a ‘sap,’ or any other atypical weapon would be to hold that possession of any object, including a wallet, invites a plenary search of an individual’s person.
Collins represents the correct view, which is also followed by other courts. It reflects two very sensible considerations: (1) To allow a search for anything which could under some circumstances be employed as a weapon would be to permit a search just as intrusive as that which can be made incident to a custodial arrest, except in the rare case in which the suspect’s pockets are entirely empty. For example, ‘something of the size and flexibility of a razor blade could be concealed virtually anywhere, and accordingly provide the pretext for any search, however thorough.’ (2) In determining what objects might be a weapon, consideration must be given to what types of objects could be so employed in the setting of the particular case. Generally speaking, it may be said that certain items which might be employed as weapons in a surprise attack from the rear would not be effective during the face-to-face encounter of a field interrogation. And in a particular situation, it may be apparent that a particular type of weapon would be of no use because of the superior police presence. Illustrative is United States v. Reid [(E.D.N.Y. 1972) 351 F. Supp. 714], holding unlawful a search for an item which might have been a slap jack in the pocket of the companion of another person who had just been arrested by several agents with drawn revolvers and shotguns. ‘With the weaponry in the hands of the agents trained on the suspects, a slap jack could hardly have been a threat to the arresting agents.’ This is not to say, however, that it is necessary the officer suspect the object is a firearm.
Under the better view, then, a search is not permissible when the object felt is soft in nature. If the object felt is hard, then the question is whether its ‘size or density’ is such that it might be a weapon. But because ‘weapons are not always of an easily discernible shape,’ it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon ‘the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing,’ which is most likely to occur when the suspect is wearing heavy clothing. Under this approach, courts have upheld as proper searches which turned up certain objects other than guns, such as a pocket tape recorder, a pipe, a pair of pliers, cigarette lighter, several keys taped together, or a prescription bottle. In making a judgment on this issue, some courts take into account other evidence bearing upon whether it appears the officer was acting in good faith, such as whether the object felt more like an item of evidence the officer apparently suspected the person might have on him than a weapon.
Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the object is contraband or some other item subject to seizure, in which case there may be a further search based upon that probable cause.” 3 W. LaFave, Search and Seizure §9.4(c), at 521-24 (2d ed. 1987).

While this court respects the opinions of Professor LaFave and the justices cited in the Collins case, we simply do not agree that police officers should be subjected to the danger of injury of any kind merely because some judges and commentators may lack the imagination of criminals.

The courts of Illinois have frequently noted that objects which are not per se deadly weapons may be used in such a manner as to become deadly weapons. (People v. Carter (1951), 410 Ill. 462, 102 N.E.2d 312; People v. Van (1985), 136 Ill. App. 3d 382, 483 N.E.2d 666.) The need to stop and frisk is a practical decision, and courts should not place so onerous a test on the sufficiency of the officer’s suspicions that the defendant is presently armed and dangerous when the protection of the investigating officer is at stake. The officer need only demonstrate a substantial possibility defendant possessed an instrumentality which could be utilized to commit bodily harm. People v. Kantmoski (1983), 98 Ill. 2d 75, 455 N.E.2d 1379.

In People v. Morgan (1985), 138 Ill. App. 3d 99, 484 N.E.2d 1292, this court concluded that a bag of cannabis in the defendant’s coat was not likely to produce a bulge resembling a weapon. However, in the case at bar, the object was believed by the officer to be a razor blade. It is reasonable for the trial court to find that a piece of paper can be folded in such a manner as to produce a tactile sensation similar to that of a razor blade. Furthermore, with three other people in defendant’s car and the officer being alone, it is conceivable the officer might have been distracted, giving the defendant the opportunity to attack the officer with the razor blade.

LaFave recognizes there is a need to protect officers who make arrests in traffic stop situations from unnecessary risks. (2 W. La-Fave, Search and Seizure §5.2(e), at 457 (2d ed. 1987).) While pointing out the balance which must be maintained between the need to protect the officer and the need to protect citizens from some officers who might use a traffic stop as a pretext for a search, LaFave states:

“Given the prospect that application to traffic arrests of the ‘general authority’ to search will result in instances of undiscoverable subterfuge, one is tempted to say that a different search rule is needed in traffic cases, ‘one less likely to conceal a search forbidden by the Fourth Amendment.’ But this is not easily done. As concluded earlier, a Terry-type frisk does not afford the arresting officer sufficient protection against an arrestee, considering their prolonged proximity. Once something beyond the frisk is permitted, it does not seem feasible to describe in meaningful terms a degree of intrusiveness which can reasonably be expected to turn up ‘any small hidden weapon which might go undetected in a weapons frisk’ but not an item of contraband. And while statistically there may be a lesser likelihood that a traffic violator is armed, it by no means follows that there is any rational basis upon which to determine which traffic violators are armed, or upon which to conclude that a search of some lesser intrusiveness will suffice to discover weapons in such cases. It is troublesome, to say the least, to contemplate affording Officer A something less than the protection he needs in making arrests because Officer B might abuse the power.” (2 W. LaFave, Search and Seizure §5.2(e), at 461 (2d ed. 1987).)

In this case, the issue of whether the traffic stop was a pretext to conduct the search of defendant is not present. Nor is this court attempting to create a new category of permissible searches and, thereby, further complicate the body of case law interpreting the fourth amendment.

Defendant next argues that having removed the article from defendant’s pocket, Trooper Percy improperly proceeded, without a warrant, to open the package and view the contents. Defendant asks this court to follow the decision in People v. Pritchett (1979), 75 Ill. App. 3d 127, 393 N.E.2d 1157. However, having already decided Percy had the authority to remove the object from defendant’s pocket, it is clear Pritchett is distinguishable. In a stop-and-frisk situation following a traffic stop, the officer in Pritchett located a bulge consisting of no more than a “tobacco like substance.” The officer “did not feel as if it contained a metal object or weapon.” (Pritchett, 75 Ill. App. 3d at 130, 393 N.E.2d at 1160.) The officer’s testimony showed he had reason to open the envelope to ascertain whether it contained a razor blade; further, on recognizing it as a druggist fold, he had probable cause to determine whether the contents were contraband.

In New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, the Supreme Court upheld the search of the pocket of a jacket found in a car which had minutes before been occupied by four arrestees. The theory relied on in Belton was that the search was incident to the arrest. While criticizing Belton’s broad search authority as being of doubtful necessity or desirability, LaFave has this to say about Belton:

“Belton does not purport to be a wholesale revision of the Chimel rule. Rather, as the Court put it, ‘our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context.’ [Referring to Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (which authorized the search of the defendant and areas immediately accessible to the defendant following the arrest).] This does not mean, however, that Belton has adopted a search-incident-arrest [sic] rule for containers in vehicles which is not applicable with equal force to containers not in vehicles but possessed by an arrestee. Such a distinction would be inconsistent with the Court’s earlier declaration that the Fourth Amendment protection of a container is the same whether it is within or without a vehicle. And it would ignore the fact that the problem giving rise to Belton, the asserted need for a ‘bright line’ on what constitutes ‘immediate control’ under Chimel, is essentially the same as to containers in cars and other containers.” 2 W. LaFave, Search and Seizure §5.5(a), at 534-35 (2d ed. 1987).

In the case at bar, the search of the package removed from defendant’s pocket was a search incident to an arrest. (See Pritchett, 75 Ill. App. 3d 127, 393 N.E.2d 1157.) Unlike Pritchett, however, the arrest here was valid. A peace officer may arrest a person when the officer has reasonable grounds to believe the person has committed or is committing an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 107—2(1)(c).) Once the officer observed the “druggist fold” which he recognized as a method of conveying illegal drugs, the officer had probable cause to arrest defendant. Defendant was already under the officer’s control for the purpose of the frisk and no additional action on the part of the officer need be taken to invoke the search-incident-to-arrest rationale.

Under the circumstances of this case, the refusal of the trial court to suppress the evidence was not manifestly erroneous. Accordingly, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    DAVID H. HATFILL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Baldwin Associates, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—89—0994WC
    Opinion filed August 29, 1990.
    Rehearing denied October 3, 1990.

      Michael K. Brandow, of Smith, Waters, Kuehn & Hughes, Ltd., of Peoria, for appellant.
    Dennis S. O’Brien, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, David H. Hatfill, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for an injury which occurred when he jumped over an accumulation of water at the base of an incline on his way to his car in the respondent’s, Baldwin Associates’, parking lot as he was leaving work for the day. The arbitrator found that the claimant failed to prove that his injuries arose out of and in the course of his employment and denied the claimant benefits. On review, the arbitrator’s decision was affirmed by the Industrial Commission (Commission), and the Commission’s decision was confirmed by the circuit court. The claimant appeals. The sole issue before this court is whether the Industrial Commission’s determination that the claimant’s injuries did not arise out of and in the course of his employment was against the manifest weight of the evidence.

At the hearing before the arbitrator, the claimant testified that he was working as an auditor for the respondent on Saturday, November 3, 1984. On that date, he had worked overtime, and at the end of his work day, he left the office, accompanied by Anita Brady, the woman with whom he car-pooled. The claimant and Brady left the office and proceeded straight across the respondent’s parking lot to Brady’s car, which was parked in the upper level of the parking lot. To get to the car, the claimant jumped across some water which had accumulated at the base of the five-foot incline going to the upper level parking area, and upon landing, he injured his right leg and lower back. After the claimant jumped, Brady also jumped across the water with the help of the claimant, and they proceeded to Brady’s car. When the claimant attempted to put his right leg in the car, it would not come up all the way, and he had to lift his leg into the car. The claimant stated that he had jumped the ditch in the parking lot in the past, just as others had done.

The claimant went home, and on Monday, when he returned to work, he went to the respondent’s first-aid station as his back hurt. He reported to the respondent that he had jumped the ditch when he left work on Saturday, and when he did so, he twisted his leg or back when he landed, immediately causing him pain in his groin area.

The claimant testified that he had never received any workers’ compensation benefits from the respondent for his injuries and that he had received a letter from the respondent’s insurance carrier in which it was stated that his claim was refused because his actions had been a safety violation. According to the claimant, he had not been told by the respondent before this incident that jumping the ditch was a safety violation. Likewise, the claimant was unaware of anything in the employee’s handbook which stated that jumping the ditch was a safety violation. To the claimant’s knowledge, he had never been formally written up for a safety violation for jumping the ditch, and he had not been told that this practice was not allowed. Since the claimant’s accident, he has observed 10 to 15 persons a day jumping the ditch.

On cross-examination, the claimant admitted that when he started work with the respondent in 1981, he had had an orientation meeting and was given a “blue book” by the respondent. Additionally, the respondent held a safety program every six months. The claimant recalled that the respondent had a rule which prohibited running on the work site; however, the claimant denied that he had run before he jumped the ditch.

The claimant acknowledged that there was a walkway to the upper level parking lot approximately 50 feet north of where he jumped the ditch. Likewise, a roadway approximately 50 feet south of the accident site ran around the parking lot and provided another walkway to this parking area.

When asked about his activities following his accident, the claimant initially responded that he had lain around that Saturday night and then went to bed. He stated on Sunday that he did not do much, but his leg and back did not bother him. Subsequently, the claimant admitted that he went to a party on Saturday night, and when he came out of the party, two of his tires had been slashed and he had had to change them, which he did with the help of another person. The claimant also admitted that he had hung six storm windows on Sunday.

The claimant went to work on Monday morning, and after the morning, his leg and back started to hurt, and he had difficulty walking. Therefore, he went to the respondent’s first-aid station and reported it. There, he told Helen Polley that his back was hurting. The claimant testified that he had forgotten that he had hurt himself at work on that Saturday, and he did not remember telling Helen that he had not hurt his back at work. The claimant admitted that he subsequently talked to Brady about hurting himself, and they determined that he must have been injured when he jumped over the ditch. The claimant also testified to the medical treatment he had received for his leg and back and to the extent of his injuries. However, since there is no issue concerning this evidence, that testimony need not be reiterated here.

Anita Brady testified that she drove the claimant to work on November 3, 1984, and that she had parked on the upper level of the respondent’s parking lot. Because she and the claimant worked together, they left the office at the same time. On the day of the claimant’s accident, Brady and the claimant came out to the parking lot, and they proceeded directly across the lot to her car, since she was parked straight out from the guard shack. When they got to the ditch, the claimant jumped over. Upon landing, the claimant held the inside of his leg and said that he had hurt something. Brady jumped over the ditch, and the claimant held her hand to help her across. Brady noted that the claimant limped as he walked to her car. On the ride home, the claimant complained of pain in his groin area, down his leg, and through his back.

Brady also testified that she discussed the claimant’s injury with him on Monday. She also talked to the safety officer about the accident. Brady accompanied the safety officer to the place where the accident occurred, and the safety officer took photographs of the area.

Helen Polley, the secretary in the respondent’s first-aid office, testified that the claimant came into the office on Monday and reported that his back hurt. Polley asked the claimant how he had hurt his back, and the claimant stated that he did not know, but that he did not hurt it at work. Polley told the claimant that they would complete a report, since it was customary to do so. Polley asked the claimant what he had done on the weekend, and the claimant responded that he had been to a party and had had his tires slashed, which he changed. The claimant told her that on Sunday he had washed windows.

On Tuesday, Polley talked to the claimant on the telephone. The claimant told her that he had been to the doctor and that the doctor had taken him off work. At this time, the claimant told her that he had discussed his injury with his friends and that they had decided he had hurt his back on Saturday as he was leaving work. The claimant told her that he had run and stepped over the ditch and hurt his back. On cross-examination, Polley did not recall the claimant stating that his activities of the weekend caused him pain.

Stephanie Hoffman, the respondent’s registered nurse, testified that she talked to the claimant on the telephone on November 6, 1984, when he called in to make an accident report on his back. The claimant explained to her that he had walked to the car, jumped a ditch full of water, and hurt his back. The claimant told her he had seen a doctor that day and that the doctor had taken him off work. She too testified that the claimant stated he had talked to friends about what he might have done at work to hurt his back, and he remembered he had jumped the ditch as he was leaving work on Saturday.

Harry Berner testified that he was a safety engineer for the respondent and that he had investigated the claimant’s accident. Berner talked to Brady about the accident and took photographs of the area where the incident occurred. Berner stated he had walked off the distance from the area where the claimant had jumped the ditch to the walkway to the north and to the roadway to the south of the accident site. He determined that the walkway to the north of the accident site was approximately 50 feet away and that the roadway was likewise approximately 50 feet to the south of the site. Berner explained that he was aware of the respondent’s safety regulations and that all new employees attended a safety indoctrination. Additionally, he stated that the employees had been advised in weekly safety newsletters not to run on the project site. The safety newsletters had also discussed the prohibition against taking shortcuts on numerous occasions.

According to Berner, when an employee has broken the safety rules regarding running or taking shortcuts, that employee is issued a safety violation. The safety violation is issued to the employee through his supervisor, the employee signs the safety violation, and then the safety violation is returned to the safety department for filing. Berner stated that the claimant was cited for a safety violation as a result of the claimant’s accident of November 3, 1984. Berner testified that approximately 10 to 15 people have been issued safety violations for jumping the ditch as the claimant had done; however, Berner did not know whether these persons had been cited before or after the claimant’s accident. Berner admitted he had no knowledge as to whether the employees continued to jump over the ditch. Berner believed that the claimant had stated in his accident report that he had been running before he jumped the ditch.

The claimant was recalled and he conceded it was possible that he had told Helen Polley that he had no recollection of hurting himself on the job. He further admitted that he had told Brady he could not recall when he was hurt as he was not bothered on Saturday or Sunday with pain. The claimant said that it was Brady who suggested that he had hurt himself when he jumped the ditch and that it was subsequent to their discussion that he called the respondent’s first-aid office to report his injury.

At the conclusion of the hearing, the arbitrator stated that the safety rule violated by the claimant was not written anywhere and that she was unable to make a finding that the claimant was running. The arbitrator concluded that the claimant had only hopped over the ditch. The arbitrator stated in her written decision that the claimant’s injuries occurred while walking from the plant site across the respondent’s parking lot to the higher level parking area. The arbitrator found that there were two walkways which the claimant could have used to get to his car within 50 feet of either direction from where he had jumped the water onto the incline. She determined that the claimant had no reason to jump over the ditch, and that while other employees traversed the same incline as the claimant did, safety violations had been issued for this practice; however, she determined that it was unclear from the evidence whether the citations for safety violations were issued before or after the claimant’s accident. Lastly, the arbitrator stated in her decision as follows:

“Based upon the preceding facts and prior Decisions of the Industrial Commission on Review the Arbitrator finds that there was no reason for Petitioner to jump over the accumulated water onto the incline. The fact that Petitioner testified that other employees did at times traverse this same inclined area does not mean that the practice was required by the job or a reasonable expectation of the job. The fact that some people may choose to leave the work place in an unsafe manner does not make such voluntary acts compensable, nor is Respondent required to police the exit routes to prevent all unsafe voluntary acts.”

The arbitrator concluded from her findings that the claimant’s injuries did not arise out of or in the course of his employment. The Commission, without hearing any additional evidence, adopted the findings of the arbitrator and affirmed her decision.

On appeal, the claimant contends that the Commission’s decision that the claimant’s injuries did not arise out of or in the course of his employment was against the manifest weight of the evidence. His arguments on this issue are twofold. The claimant’s first argument is that the knowing violation of a safety rule does not defeat a claim for workers’ compensation benefits. Secondly, the claimant argues that the arbitrator’s decision was based upon the claimant’s negligence, which should not be an issue in a workers’ compensation action.

For an employee’s injuries to be compensable under the Act, the injuries must arise out of and in the course of his or her employment, and both elements must be present at the time of the accident to justify compensation. (Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.) It has been held that injuries which occur on an employer’s premises within a reasonable time before ánd after work arise “in the course of” employment. (Archer Daniels Midland Co. v. Industrial Comm’n (1982), 91 Ill. 2d 210, 437 N.E.2d 609.) However, not all injuries which occur on an employer’s parking lot “arise out of” employment. (Archer Daniels Midland Co., 91 Ill. 2d 210, 437 N.E.2d 609.) To be compensable, the injury must have resulted from some risk of the employment and must be incidental to the anticipated normal use of the parking lot. (Archer Daniels Midland Co., 91 Ill. 2d 210, 437 N.E.2d 609; Aaron v. Industrial Comm’n (1974), 59 Ill. 2d 267, 319 N.E.2d 820.) Where the injury has resulted from a personal deviation by an employee (Aaron, 59 Ill. 2d 267, 319 N.E.2d 820 (employee spent to 2 hours at a tavern after work before returning to the parking lot)), or where the injury resulted from a risk personal to the employee and not incidental to the employment (Fisher Body Division, General Motors Corp. v. Industrial Comm’n (1968), 40 Ill. 2d 514, 240 N.E.2d 694 (employee injured when the battery of his car exploded in his face while trying to start his car at the end of his work day in employer’s parking lot)), the injury is not compensable. The Commission’s finding of whether an employee’s injuries arose out of and in the course of employment is a question of fact, and the Commission’s determination will not be overturned on review unless its decision is against the manifest weight of the evidence. Archer Daniels Midland Co., 91 Ill. 2d 210, 437 N.E.2d 609.

In the instant case, the Commission could have inferred that the claimant’s injuries resulted from a personal risk assumed by the claimant. While the claimant’s injuries were incurred upon the employer’s premises and were incurred within a reasonable time after leaving his work duties, nevertheless, it is apparent that the claimant’s injuries occurred while he was engaged in an activity which only benefitted himself and not his employer. Therefore, we find that the Commission’s determination that the claimant’s injuries did not arise out of and in the course of his employment was not against the manifest weight of the evidence.

Lastly, we consider the claimant’s arguments that a knowing violation of a safety rule does not destroy the compensability of an employee’s injuries and that the Commission erroneously denied the claimant benefits because of his negligence in leaving the work place. We find these arguments to be without merit. The Commission did not base its determination on either of these criteria but found that the claimant’s injuries were not a result of fulfilling any duties required of his employment.

For the foregoing reasons, the judgment of the circuit court of De Witt County confirming the Industrial Commission’s decision is affirmed.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS LEONARD, Defendant-Appellant.
    Fourth District
    No. 4—89—0921
    Opinion filed September 6, 1990.
    Rehearing denied October 15, 1990.
    Richard D. Frazier and Michael B. Metnick, both of Metnick & Barewin, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Thomas J. Leonard pleaded guilty to theft over $300 and was sentenced to 7 days in jail and 24 months’ probation. Defendant’s motion to withdraw his guilty plea was denied. On appeal, defendant argues he was denied effective assistance of counsel because his trial counsel failed to inform defendant that if the value of the stolen property, four used auto tires with rims, was less than $300, the theft offense would have been a misdemeanor, not a felony. Thus, defendant argues the trial court abused its discretion in denying defendant’s Rule 604(d) motion. (107 Ill. 2d R. 604(d).) We affirm.

On April 4, 1989, defendant, age 18, was charged by information with theft of the tires and tire rims belonging to Kenneth Koebrich. The information was nol-prossed by an indictment filed on April 11, 1989. The theft occurred on April 4, 1989, when defendant and his companion were discovered in the possession of four auto tires on the rims, two hub spinners, and 18 chrome lug nuts, which had been removed from Koebrich’s car in the parking lot of the Illinois State University (ISU) campus.

During the grand jury proceedings conducted on April 11, 1989, Tommy R. Kiper, the ISU police officer who discovered the theft, testified from his experience that the rally rims and chrome lug nuts were quite expensive. Kiper testified the rims, hub spinners, and lug nuts were worth over $300, not including the tires. Koebrich testified before the grand jury that the rims stolen were the more expensive type and he assumed the value of each tire with rim, hub spinner, and lug nuts was $100 to $150.

On June 26, 1989, defendant entered into a plea agreement whereby he would plead guilty to theft over $300 and receive a maximum sentence of 7 days in jail, 30 months’ probation, and a fine of $300. After defendant was admonished in open court pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402), defendant’s plea was accepted.

On October 10, 1989, defendant filed a motion to withdraw his guilty plea. Defendant alleged that his trial attorney, public defender Steve Yoder, did not investigate the value of the items stolen but relied exclusively on the grand jury testimony. Defendant alleged that since an independent investigator had evaluated stolen property at less than $300, defendant (1) did not receive effective assistance of counsel, and (2) pleaded guilty based on mistaken facts and representations. In an affidavit attached to the motion, defendant asserted his trial counsel (1) never told him that if the value of the property was less than $300 the offense would be a misdemeanor, not a felony; and (2) never explained the adverse consequences of a felony conviction on his goal to obtain a teacher’s certificate. Defendant further stated he would not have pleaded guilty to the charged offense if he had known there was no independent investigation and if he had known of the consequences of a felony conviction. In an affidavit, the investigator, a paralegal employed by defendant’s counsel’s law firm, stated that based on his conversations with a few tire dealers, the tires stolen had a value of less than $300.

At a hearing on October 31, 1989, the court received two additional affidavits: one from the first owner of Koebrich’s car, and another from an owner of a used auto parts business. The used auto parts owner stated all four tires and rims were worth less than $300. The previous owner of the car stated he bought the car in 1978 and the tires stolen by the defendant were the original tires on the car.

After considering the transcripts from the guilty plea hearing, the trial judge concluded defendant did not misapprehend anything when entering his plea and, therefore, there was no basis for allowing the withdrawal of the guilty plea. The trial judge stated the following with regard to the dispute over the value of the stolen property:

“Now we have affidavits from a number of people who suggest they may have an opinion here that this property or this type of property would have a value of something less than $300. Whether or not there [sic] would be accepted by any trier of fact those opinions should they be presented to them as opposed to the owner’s opinion is certainly not anything that can be concluded at this point.”

Whether to permit a plea of guilty to be withdrawn is within the sound discretion of the trial court. (People v. Bachman (1984), 127 Ill. App. 3d 179, 182, 468 N.E.2d 817, 820.) The exercise of such discretion will not be disturbed unless it appears (1) the guilty plea was entered based on a misapprehension of fact or law; (2) defendant has a defense worthy of consideration; or (3) there is doubt as to the guilt of the defendant and the ends of justice would best be served by submitting the case to a trial. (People v. Spicer (1970), 47 Ill. 2d 114, 264 N.E.2d 181.) A defendant bears the burden of proving he entered the plea under a misapprehension of fact or law by showing “ ‘the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.’ ” People v. Hale (1980), 82 Ill. 2d 172, 176, 411 N.E.2d 867, 868, quoting United States ex rel. Curtis v. Zelker (2d Cir. 1972), 466 F.2d 1092,1098.

The record establishes defendant was fully admonished as to the nature of the charges and did not misapprehend the facts at the time of entering the plea agreement. After a factual basis for the plea was given, a discussion of the value of the property was had and the State represented that Koebrich had valued the property at more than $300. Defendant agreed the State’s representations were accurate.

We do not find defendant’s argument that his trial counsel was ineffective persuasive. The value of the property taken is an element of felony theft which must be proved by the State beyond a reasonable doubt. (People v. Dell (1972), 52 Ill. 2d 393, 288 N.E.2d 459.) The determination of the value of stolen property is for the trier of fact, who assesses the weight to be given to the conflicting evidence of value. (People v. Newton (1969), 117 Ill. App. 2d 232, 254 N.E.2d 165.) As the trial judge noted, defendant’s affidavits establish only that the value of the property is disputed but they did not conclusively establish the value was less than $300. Applying the test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, we find defendant suffered no prejudice as a result of his trial counsel’s representation.

For the foregoing reasons, defendant’s conviction and sentence for felony theft are affirmed.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE STEIGMANN

text:
    BOARD OF REGENTS OF REGENCY UNIVERSITIES, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.—BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.—BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY AT CARBONDALE AND EDWARDSVILLE, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    Nos. 4—89—0187, 4—89—0188, 4—89—0202 cons.
    Opinion filed April 5, 1990.

      Richard J. Coffee II, of Sangamon State University, of Springfield, for petitioner Board of Regents of Regency Universities.
    Edward B. Miller and James A. Spizzo, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for other petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gilbert A. Cornfield and Gale E. Mrozowski, both of Cornfield & Feldman, of Chicago (Jacqueline A. Kinnaman, of American Federation of State, County and Municipal Employees, of counsel), for respondent American Federation of State, County and Municipal Employees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This case comes to us on petition for administrative review of a decision of the Illinois Educational Labor Relations Board (IELRB). (University of Illinois Board of Trustees, 5 Pub. Employee Rep. (Ill.) par. 1035, No. 86—CA—0087—C (Illinois Educational Relations Board, Feb. 2, 1989).) The IELRB held the rescission of a seniority rule by the University Civil Service System Merit Board (Merit Board) was the subject of mandatory bargaining by the petitioners, universities subject to the University Civil Service System. We find the rescission of the rule was not subject to the mandatory bargaining provisions of the Illinois Educational Labor Relations Act (Act) and reverse the decision of the IELRB. Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.

On September 16, 1986, the Merit Board proposed the deletion of section 250.50(b)(8) of its rules relating to service bonus points (80 Ill. Adm. Code §250.50(b)(8) (1985)). Service bonus points were awarded to university employees on the basis of seniority when they sought employment within the university in a different job classification than the one in which they were currently employed. Employees in this situation were required to compete with other prospective employees in a competitive examination and selection process. However, employees with seniority were awarded one additional point on their examination scores for each year of employment by the university, up to a maximum of 10 points. These points provided a substantial advantage to current employees when seeking to change their career track within the university where they were employed.

The American Federation of State, County, and Municipal Employees (AFSCME) sent the petitioners letters demanding the universities and the Merit Board bargain over the proposed rule change. All of the petitioners and the Merit Board refused to bargain over the proposed rule change. The Merit Board contended it was an independent third party and was not an employer for the purposes of the Act. It argues it had no duty to bargain over its proposed rule change. Each of the universities individually responded with a number of contentions as to why they were not required to bargain based on their individual circumstances.

On October 20, 1986, AFSCME filed an unfair labor practice charge against the Merit Board and the University of Illinois as joint employers. On November 12, 1986, AFSCME amended its unfair labor practice charge to add the petitioners to the Merit Board and the University of Illinois. A public hearing on the proposed rule change was held by the Merit Board on November 18, 1986. On April 6, 1987, the Merit Board approved the rescission of the seniority bonus points rule.

The IELRB investigated the charge filed by AFSCME and issued a complaint for hearing. The parties stipulated to the facts and exhibits. This matter was presented directly to the IELRB. The IELRB issued its order on February 2, 1989. (University of Illinois Board of Trustees, 5 Pub. Employee Rep. (Ill.) par. 1035, No. 86 —CA—0087—C (Illinois Educational Labor Relations Board, Feb. 2, 1989).) The IELRB rejected the assertion that the Merit Board and the petitioners were joint employers of the employees in question and dismissed the complaint as to the Merit Board. It found all the universities but the University of Illinois had refused to bargain over the rule change and that this constituted a violation of the Act on the part of those universities. The IELRB found the petitioners had a duty to bargain with regard to the proposed change in the Merit Board rule, but that any provisions negotiated were subject to approval or rejection by the Merit Board. AFSCME appealed the IELRB’s ruling that the Merit Board was not a joint employer, which ruling this court has affirmed this date. (American Federation of State, County & Municipal Employees v. Illinois Educational Labor Relations Board (1990), 197 Ill. App. 3d 521.) Petitioners brought this appeal, challenging those portions of the IELRB determination which were adverse to them.

We begin our analysis with an examination of the statutory framework which structures educational labor relations in this State. Essential to our inquiry are sections 10(a) and 4 of the Act, which set out those areas subject to mandatory bargaining. (Ill. Rev. Stat. 1985, ch. 48, pars. 1710(a), 1704.) Section 10(a) provides the mandatory topics of collective bargaining are wages, hours, and other terms and conditions of employment. Section 4 provides in relevant part:

“Employer rights. Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.” Ill. Rev. Stat. 1985, ch. 48, par. 1704.

The respondents have also drawn our attention to section 36d of “An Act to create the State Universities Civil Service System” (Civil Service Act) (Ill. Rev. Stat. 1985, ch. 24½, par. 38b3). This section provides in part:

“Each employer covered by the University System shall be authorized to negotiate with representatives of employees to determine appropriate ranges or rates of compensation or other conditions of employment and may recommend to the Merit Board for establishment the rates or ranges or other conditions of employment which the employer and employee representatives have agreed upon as fair and equitable.” Ill. Rev. Stat. 1985, ch. 24½, par. 38b3(3).

The respondents read these sections in conjunction to require that an employer be compelled to make a given recommendation reached as a result of mandatory bargaining. To the extent that the IELRB’s order mandates a recommendation to the Merit Board, we find this to be contrary to the language of section 36d of the Civil Service Act. Statutory sections concerning the same subject matter should be construed and considered with reference to each other so that all sections may be given a harmonious effect. (Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370.) If two statutes can be reconciled so that both can be given effect, the courts must so construe them. Rosehill Cemetery Co. v. Lueder (1950), 406 Ill. 458, 94 N.E.2d 342.

Section 36d of the Civil Service Act is primarily an enabling clause authorizing the Merit Board to carry out a number of assigned tasks. Inter alia, it authorizes employers to negotiate with employee representatives concerning compensation and other conditions of employment. It also provides the employer “may recommend” compensation or other conditions of employment to the Merit Board. First, we note this section authorizes the recommendation only of mutually agreed terms and conditions of employment. Such mutual agreement is achieved by negotiations carried out with reference to the Civil Service Act, which we discuss in greater detail below. Second, we find the use of the expression “may recommend” makes clear the legislative intent that an employer make recommendations to the Merit Board as an exercise of its discretion. To suggest, as the IELRB did and as the respondents continue to urge us to do, that the petitioners are compelled to recommend to the Merit Board whatever results from negotiations over even mandatory subjects of bargaining is to render the discretionary language of section 36d of the Civil Service Act void. By imposing a duty where the legislature has only authorized the exercise of discretion, we would violate the clearly expressed intent of the legislature.

We find it more in keeping with the statutory scheme to hold that no recommendation from an employer to the Merit Board can be mandated. Bargaining, which may be mandated, and the recommendations, which may not, are two separate matters. We recognize that as a practical matter employers will often make recommendations to the Merit Board which are the direct result of their negotiations with the employee representatives. This fact, however, does not alter the legislative grant of discretion to the employer. The IELRB overstepped its statutory authority to the extent that its order requires a mandated recommendation.

Reaching this conclusion does not, however, dispose of the case before us. The IELRB order found the rule change here was the subject of mandatory bargaining. The IELRB has the authority to determine and compel mandatory bargaining under the Act. The IELRB found the service bonus points rule was essentially connected to promotion and, as such, was a condition of employment. For this reason, the IELRB determined mandatory bargaining was required.

Our review of the record indicates the finding of the IELRB in regard to this issue was contrary to the manifest weight of the evidence. Nothing in the record suggests the bonus points were used in any manner when employees were selected for promotion, and counsel for AFSCME conceded this at oral argument. The testimony presented before the Merit Board indicated the bonus points were helpful to employees who wished to move from one job classification to another in order to seek higher wages or enhanced employment opportunities. There was no evidence that these lateral moves could be characterized as promotion or that bonus points affected promotions within the job classifications in any way. Courts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is contrary to the manifest weight of the evidence. (Hardin County Education Association, IEA-NEA v. Il linois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418.

In reaching its decision, the IELRB employed a balancing test. This test was recently upheld in Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 536 N.E.2d 743. This court in that case recognized the Act creates a broad “gray area.” While some issues are clearly subject to mandatory bargaining, the status of others is less clear. If a given issue is not clearly a matter of mandatory bargaining, the IELRB then determines whether the issue has a direct effect on the terms and conditions of employment. When there is such an effect, the interests of the employees are weighed against the employer’s interest in maintaining managerial control in that area.

Here, the IELRB found the rescission of the rule did affect the terms and conditions of employment. It then applied the balancing test and found the employees’ interest outweighed the management’s interest in maintaining managerial discretion over promotion. We believe that but for this mistaken finding of fact, the IELRB would not have reached the balancing test and would not have found the rescission was a subject for mandatory bargaining.

We reach this conclusion after a careful consideration of the Act’s purpose and language. As this court noted in Decatur Board of Education, District No. 61, the Act creates a gray area where the IELRB may properly exercise its discretion to determine whether a given issue is the subject of mandatory bargaining. Section 4 of the Act also reserves certain areas which are the exclusive domain of the em: ployer. Though the Act does not attempt to provide an exhaustive list of all of the areas, several are enumerated as examples of areas where inherent managerial policy will preclude mandatory bargaining. These include the functions of the employer, standards of services, overall budget, the organizational structure, and the selection of new employees.

Here, the IELRB’S mistaken finding of fact caused it to overlook one of the categories specifically reserved as concerning inherent managerial policy, the selection of new employees. The evidence showed the bonus points had an impact upon the selection and hiring of employees for open positions in the university system. The primary purpose in the rule rescission, as indicated by the Merit Board, was to increase the flexibility which the universities had in selecting new employees. The existing rule had the effect of eliminating outside hiring in certain job classifications. We find the evidence indicated the bonus points rule was primarily related to the selection of new employees. Under section 4 of the Act, this is clearly a matter of inherent management policy exempt from mandatory bargaining requirements. The IELRB’s misapprehension of the evidence here led it to conclude, incorrectly, that the issue was promotion. If correct, the IELRB would have properly found an impact on the terms and conditions of employment. It could then have proceeded to employ the balancing test, which it did here.

The evidence showed the bonus points rule related most closely to the selection of employees by the universities. While we would normally accord great deference to the factual findings of a State agency, when those findings are clearly erroneous and the agency’s ultimate conclusions of law are premised on these mistaken findings, we cannot permit them to stand. Here the evidence showed that employees with seniority did not have a right to a position in another job classification, they were merely given an advantage in competing with members of the general public for open positions. The selection of new employees is one of the areas the legislature specifically reserved as an inherent management function. This selection cannot be made the subject of mandatory bargaining. The impact of the bonus points rule on the terms and conditions of employment was marginal at best. It did not affect wages, benefits, or promotions. It did have a major impact on the ability of the employers to select employees. This is a matter over which the legislature has clearly given the employer great discretion. The IELRB completely overlooked this mandate when it made its decision and for this reason we must reverse.

The decision of the IELRB is reversed.

Reversed.

KNECHT, P. J., and McCULLOUGH, J., concur.


text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellee, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellants.
    Fourth District
    No. 4—89—0982
    Opinion filed July 19, 1990.
    Modified on denial of rehearing October 15,1990.

      Knuppel, Grosboll, Becker & Tice, of Petersburg, and Douglas Marti, of Greenville (Jerry Tice, of counsel), for appellant Southwestern Electric Cooperative, Inc.
    Neil F. Hartigan, Attorney General, of Springfield (Clyde Kurlander and Edward P. O’Brien, Special Assistant Attorneys General, of Chicago, of counsel), for appellant Illinois Commerce Commission.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield (William S. Hanley, Stephen R. Kaufmann, and Alan R. Post, of counsel), for appellee.
    Randall Rings, of Association of Illinois Electric Cooperatives, of Springfield, for amicus curiae.

   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendants, the Illinois Commerce Commission (Commission) and Southwestern Electric Cooperative, Inc. (Southwestern), appeal the circuit court’s reversal of a finding by the Commission that it had authority to resolve an action filed by Southwestern, alleging a violation of the Electric Supplier Act (Act) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 401 et seq.) by Central Illinois Public Service Company (CIPS).

We reverse the circuit court and affirm and reinstate the Commission’s order.

On February 6, 1968, Southwestern and CIPS entered into a service-area agreement which delineated the areas each electrical supplier was entitled to serve. Two oil leaseholds, T.C. Clow (Clow) and Buzzard Brothers (Buzzard), were located in the Louden oil field and within Southwestern’s designated territory. On May 9, 1986, these leaseholds were assigned to the Exxon Corporation (Exxon).

On February 26, 1987, Exxon disconnected the electrical tie lines leading from the Clow and Buzzard leaseholds. These tie lines had been connected to Southwestern’s distribution system. Exxon then connected tie lines from the Clow and Buzzard leases to its privately owned distribution system, which it was using to distribute electricity to various oil wells in the Loudon oil field. After that, Exxon “wheeled” electricity from a CIPS meter located within CIPS territory through Exxon’s distribution system and, ultimately, to the Clow and Buzzard leases.

On February 13, 1987, Southwestern filed a complaint against CIPS and Exxon before the Commission alleging violations of the Act. Exxon was dismissed from the action after the Commission determined that it was not an “electric supplier” within the meaning of the Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 403.5) and, thus, not subject to the authority of the Commission. The Commission found in favor of Southwestern and determined that CIPS violated the service-area agreement by selling electricity to Exxon at a CIPS metering point, which was then transported by Exxon to locations within Southwestern’s territory. As a result, the Commission ordered CIPS to discontinue furnishing electrical service to Exxon for its use at the Clow and Buzzard leases. Southwestern Electric Coop., Inc. v. Central Illinois Public Service Co. (June 1, 1989), _ Ill. Commerce Comm’n Rep--(ICC No. ESA 243).

After being denied a rehearing by the Commission, CIPS filed for administrative review of the Commission’s decision in the circuit court of Sangamon County. On November 20, Í989, the circuit court reversed the Commission’s decision, based on its conclusion that the dispute in question was not within the authority conferred on the Commission by the Act.

Specifically, the circuit court found that the Act does not permit the Commission to regulate a customer’s use of electricity. The circuit court held that the Act regulates electric suppliers only and that Exxon is a customer, not an electric supplier. The circuit court further determined that Southwestern was not entitled to serve the Clow and Buzzard leaseholds and that CIPS was lawfully providing electricity to these points from its metering point within CIPS territory. According to the circuit court, Exxon may deliver “its own electricity” wheeled from CIPS territory through Exxon’s distribution system to the leases. In addition, the circuit court held that the Commission’s order was unenforceable as it required Exxon, a non-supplier of electricity, to either disconnect its tie lines to CIPS, or to permit Southwestern to trespass on its property in order to disconnect the lines.

Whether the Commission has the authority to resolve controversies between electric suppliers regarding a customer has not been resolved by the Illinois courts. The Commission determined that both CIPS and Southwestern were electric suppliers and that it had the authority to resolve their dispute. The scope of an agency’s authority is a question of law, not of fact; the determination of the scope of an agency’s power and authority is a judicial function, not one to be finally determined by the administrative agency. (Ted Sharpenter, Inc. v. Illinois Liquor Control Comm’n (1986), 148 Ill. App. 3d 936, 941, 499 N.E.2d 669, 673.) We review the Commission’s decision pursuant to section 12 of the Act (Ill. Rev. Stat. 1989, ch. par. 412), and section 3—112 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3-112).

The legislative declaration of the Act, section 2 thereof, states as follows:

“The General Assembly declares it to be in the public interest that, in order to avoid duplication of facilities and to minimize disputes between electric suppliers which may result in inconvenience and diminished efficiency in electric service to the public, any 2 or more electric suppliers may contract, subject to the approval of the Illinois Commerce Commission, as to the respective areas in which each supplier is to provide service.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 402.)

This court has held that one of the purposes of the Act was “to put to rest the contest between competing utilities as to which would supply what to whom and when.” (Western Illinois Electrical Coop, v. Illinois Commerce Comm’n (1979), 67 Ill. App. 3d 603, 605, 385 N.E.2d 149, 151.) This court has also held that the Commission has the authority to determine the validity and to define the extent of service-area agreements between electric suppliers and to resolve a customer’s request to be served by another electricity provider. (Kruger v. Menard Electric Cooperative (1988), 169 Ill. App. 3d 861, 864, 523 N.E.2d 708, 710.) The Kruger court stated the following in support of its holding:

“The rationale behind giving primary jurisdiction to an administrative agency can be seen where that agency has been granted authority by the legislature over areas requiring the development of expertise and specialized knowledge. Having the agency with the technical expertise first review disputes rather than the courts promotes uniformity of decisions. [Citation.] Review is provided under the Act (Ill. Rev. Stat. 1987, ch. 1112/3, par. 412) through the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, pars. 3 — 101 through 3 — 112). The Commission’s expert and specialized knowledge in the area of electric supplier service-area agreements in contrast to the lack of such knowledge in the conventional experience of most circuit judges points out the correctness of the circuit judge’s decision here. Plaintiff must first bring his claim to the Illinois Commerce Commission and not the circuit court.” Kruger, 169 Ill. App. 3d at 864, 523 N.E.2d at 710.

Based on the foregoing, we hold that the Commission’s authority includes the resolution of disputes between electric suppliers arising from service-area agreements and regarding service to customers. In Kruger, this court held that the Commission has the authority to define the extent of a service-area agreement as to a customer. (Kruger, 169 Ill. App. 3d at 864, 523 N.E.2d at 710.) The Commission’s specialized knowledge concerning electric supplier service-area agreements renders it the appropriate tribunal to decide the controversy presented in this case.

Even though we have now held that the Commission has the authority to resolve disputes between electric suppliers, we still must determine whether the controversy is in fact between electric suppliers. On the one hand, this appears to be a case between an electric supplier, Southwestern, and its former customer, Exxon, as CIPS claims. Exxon, not CIPS, unilaterally constructed tie lines from its distribution system to CIPS territory and disconnected Southwestern’s tie lines in the process. On the other hand, CIPS is providing electrical service to the two oil leases with knowledge that they are located within Southwestern’s territory. The 1968 service-area agreement refers to the service of consumers within the designated territories, and CIPS is now serving two consumers, the Clow and Buzzard oil wells, who are within Southwestern’s territory — “customers” within the meaning of the Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 403.3). We hold that this dispute is properly characterized as one between electric suppliers and that the Commission had the authority under the Act to resolve it. (Ill. Rev. Stat. 1987, ch. 111⅔, par. 411.) We reverse the circuit court’s order finding to the contrary.

Next at issue is whether the Commission correctly interpreted the service-area agreement. The Commission first determined that the service-area agreement controlled the outcome of this controversy. Then, the Commission found that the Louden oil field, as well as the Clow and Buzzard leases, lies entirely within the exclusive service territory granted to Southwestern. In so finding, the Commission also considered the fact that Southwestern constructed Wright’s Corner substation to serve the Louden oil field. This construction cost approximately $650,000. The Clow and Buzzard leases used about one-third of the substation’s capacity prior to Exxon’s termination of service. As a result of Exxon’s rerouting, there is now a 50% excess capacity at Wright’s Corner. After determining that CIPS’s electric service to the oil leases was duplicative and inefficient, the Commission found that Southwestern was entitled to service the Clow and Buzzard leases.

The 1968 service-area agreement provides that Southwestern is to supply electrical service to consumers located within its designated territory. Because the Clow and Buzzard leases are located within Southwestern’s territory, the Commission was correct in determining that only Southwestern should be permitted to service them. Except under very special circumstances (see Coles-Moultrie Electric Cooperative v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 946, 476 N.E.2d 1303), the statutes do not provide that a customer has a right to elect the electric supplier of the customer’s choice. Granting a customer that right would be inconsistent with the policy declarations of section 2 of the Act. Ill. Rev. Stat. 1987, ch. 111⅔, par. 402.

There are strong policy reasons favoring such a rule:

“ ‘[A]n individual has no organic, economic or political right to service by a particular utility merely because he deems it advantageous to himself.’ Larger policies are at stake than one customer’s self-interest, and those policies must be enforced and safeguarded by the PSC [Public Service Commission].” (Lee County Electric Cooperative v. Marks (Fla. 1987), 501 So. 2d 585, 587, quoting Storey v. Mayo (Fla. 1968), 217 So. 2d 304, 307-08.)
“[T]he policy behind the doctrine of regulated monopoly does not permit a customer to pick and choose between utilities. The doctrine of regulated monopoly is designed to protect the interests of the public as a whole, by preventing competition and inefficient duplication of services.” (Public Service Co. v. Public Utilities Comm’n (Colo. 1988), 765 P.2d 1015, 1024.)

In a decision construing the Act, the court in Fuchs v. Rural Electric Convenience Cooperative, Inc. (C.D. Ill. 1987), 672 F. Supp. 1111, 1113, held as follows:

“One can hardly envision a statutory scheme which more clearly articulates and affirmatively expresses a state policy to displace competition. Electric utilities are generally acknowledged as a natural monopoly. [Citation.] What the Illinois legislature did in the Electric Supplier Act was to codify this notion.”

We find that the Commission correctly focused on the place that the electricity was being used and not the place where the wires were connected when interpreting the service-area agreement. “[0]ther jurisdictions have recognized that the place and purpose of the use of electric energy is controlling, rather than the place of connection.” (Southwestern Electric Power Co. v. Carroll Electric Cooperative Corp. (Ark. 1977), 554 S.W.2d 308, 310.) That decision further stated the following:

“[T]he sound reasoning that the place of delivery of the electric current is not controlling, but rather the place and the purpose of its use must be the controlling factor is without question.” (Southwestern Electric Power, 554 S.W.2d at 310.)

In a similar case, the Supreme Court of Colorado wrote the following:

“[T]o focus on the point at which electricity is delivered would invite inefficiency, subterfuge, and manipulation of the service area scheme in a manner injurious to the public good.” Public Service Co., 765 P.2d at 1020.

The decision by the Commission was in accordance with the public policy of Illinois as expressed by the Illinois General Assembly. The circuit ..court’s decision was contrary to that policy. The effect of the circuit court’s decision would be to allow well-financed consumers to construct their own electrical-distribution systems and to alter their sources of service based on competitive bids. Those who would not be able to engage in such practices would ultimately be at the mercy of those who were able to do so. In addition, duplicate facilities, idle capacity, wasted economic resources, and higher electric rates would prevail, especially in rural areas.

CIPS argues that it is in the public interest to allow an electricity consumer to elect to be served by an electric supplier located beyond his service territory. Whatever merit there may be to this argument, we are the wrong forum to which it should be addressed. To the extent possible, the legislature, not the judiciary, should be deciding questions of public policy. We hold that the public policy behind the Act, its legislative declaration, and the cases interpreting it are clearly contrary to the argument of CIPS.

We note that Commissioner Manshio filed an opinion dissenting from the action taken by the Commission in this case. In that five-page dissenting opinion, Commissioner Manshio wrote the following:

“The majority reliance on the agreement would be correct if this were a geographic dispute. It is not. The issue is not location, but. a customer’s ability to choose his electric supplier. * * *
* * *
*** If a consumer decides for whatever reason that he wants the services of someone beyond his service territory and is willing to pay to connect to that service, is it in the public interest to deny him the ability to do so? A majority of this Commission appears to believe so.” Southwestern Electric Coop., Inc. v. Central Illinois Public Service Co. (June 1, 1989),__Ill. Commerce Comm’n Rep._(ICC No. ESA 243, slip op. at 8, 9-11 (Commissioner Manshio, dissenting)).

We quote from this dissent because we strongly disagree with it. Consistent with the legislative declaration set forth in section 2 of the Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 402), we hold that consumers have been legislatively foreclosed from seeking electrical service from a supplier beyond their service territory. If this policy is to be reexamined, that reexamination will have to be undertaken by the General Assembly, not by this court, the circuit court, or the Commission.

CIPS further contends that the Commission was without authority to order Exxon, a nonsupplier of electricity and nonparty to the administrative proceeding, to act. The relevant portion of the Commission’s order is as follows:

“IT IS FURTHER ORDERED that CIPS and Southwestern cooperate in providing and/or removing facilities which currently allow Exxon to use GIPS furnished electricity upon the T.C. Clow and Buzzard Brothers leased premises, consistent with this Order and in a manner which will reasonably enable Exxon to have a continuity of service from the appropriate electric supplier designated under this Order.” Southwestern Electric Coop., Inc. v. Central Illinois Public Service 'Co. (June 1, 1989),_Ill. Commerce Comm’n Rep._,_(ICC No. ESA 243, slip op. at 6).

The Commission has the power not only to approve service-area agreements, but to enforce such agreements if a dispute arises. Section 11 of the Act provides for this authority as follows:

“The Commission shall have the power and jurisdiction to, and shall, enforce compliance with this Act on complaint made by the electric supplier or customer or prospective customer aggrieved by any non-compliance with this Act and shall make such orders and take such action by appropriate court proceedings or otherwise which will secure compliance with this Act.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 411.

Every decision by the Commission interpreting a service-area agreement necessarily affects customers of electricity. To withhold from the Commission the power to order a customer to merely permit a utility to enter upon the customer’s property for the limited purpose of disconnecting tie lines would seriously undermine the Commission’s authority. The Commission’s order does not require Exxon either to act or to refrain from acting; instead, it merely requires Exxon to allow the utilities to connect their tie lines in accordance with the Commission’s directives. The Commission must have this limited authority in order to “secure compliance” with its orders. Ill. Rev. Stat. 1987, ch. 111⅔, par. 411.

Reversed; Commission’s order affirmed and reinstated.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICIA BEECH, Defendant-Appellant.
    Fourth District
    No. 4—89—0895
    Opinion filed September 6, 1990.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and Jeremiah W. Lynch, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant was convicted after a bench trial of two charges of unlawful delivery of a controlled substance in violation of sections 401(a)(2) and (b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(2), (b)(2)). Defendant delivered 6.3 grams of cocaine to a police informant on April 20, 1989 (case No. 89—CF—111), and 27.2 grams of cocaine to a police informant on May 11, 1989 (case No. 89—CF—92). Both transactions took place in Charleston, Illinois. The trial court sentenced defendant to four years’ imprisonment in case No. 89—CF—111 and imposed a fíne of $630. The court also sentenced defendant to six years’ imprisonment with credit for two days served in case No. 89—CF—92 and imposed a fine of $2,720. The two sentences were to run concurrently. Defendant does not appeal her conviction, but instead challenges the fine imposed in case No. 89—CF—92, and argues that she is entitled to an additional day’s credit on her jail term.

Because defendant does not appeal her conviction, we limit the facts to those pertinent to the issues on appeal. At defendant’s trial, forensic scientist Michael Cravens testified that the white powder obtained in the May 11 transaction contained 27.2 grams of a substance containing cocaine. The 27.2 grams was 22.6% pure cocaine. The bag involved in the April 20 transaction contained 6.3 grams of a substance containing cocaine and was 77.9% pure cocaine. Cravens further testified that while the purity of cocaine varies from time to time, during 1989, the average purity of cocaine he analyzed was between 65% and 75%.

Frank Lester, the police informant, also testified. Lester stated that 25% cocaine was not “good” cocaine.

At the sentencing hearing, Officer Joseph VanGundy testified as an expert witness concerning the “street value” of the cocaine seized. It was VanGundy’s expert opinion that the street value of cocaine in Charleston at the time of defendant’s arrest was around $100 a gram.

Defendant first contends that the trial court erred in fining her $2,720 in case No. 89 — CF—92. We initially note that defendant has waived this issue for review. To preserve an issue for review, a defendant must include the issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Defendant failed to include this issue in a post-trial motion and has thus waived the issue for review. Furthermore, the trial court was correct in fining defendant $2,720.

Section 5 — 9—1.1 of the Unified Code of Corrections (Code) provides:

“When a person has been adjudged guilty of a drug related offense involving possession or delivery *** of a controlled substance as defined in *** the Illinois Controlled Substances Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the *** controlled substances seized.
‘Street value’ shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as- may be required by the court as to the current street value of the *** controlled substance seized.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—9— 1.1.

Defendant relies on a first district case and argues that street value must be determined based upon the actual substance seized, and not on a hypothetical substance involved in the typical cocaine sale. (People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 522 N.E.2d 139.) In Carrasquilla, a police officer testified that the usual and customary cost for the purchase of a gram of cocaine was $100. The officer based his calculations on cocaine having a minimum purity level of 25%. However, the officer admitted that he had no knowledge of the purity level of the drug seized in the instant case and that the laboratory report failed to indicate a percentage of purity.

The Carrasquilla court noted that section 5—9—1.1 indicates that the testimony as to street value must relate to the actual substance seized. Thus, the officer’s testimony, standing alone with no report as to the purity of the cocaine seized, was insufficient to establish the street value of the drug. The court further noted that in other cases where officers’ testimony was accepted as the street value of a drug, the testimony was relevant because it was offered in conjunction with evidence of the purity of the particular contraband in issue. See, e.g., People v. Pilcher (1986), 147 Ill. App. 3d 193, 194-96, 497 N.E.2d 1360, 1361-62; People v. Roundtree (1985), 135 Ill. App. 3d 1075, 1082, 482 N.E.2d 693, 699, appeal dismissed (1987), 115 Ill. 2d 324, 503 N.E.2d 773.

Even though Officer VanGundy’s testimony concerning street value of the drug was offered after evidence of the contraband’s purity was given, defendant argues that the 27.2 grams of cocaine seized on May 11 was only 22.6% pure, far below that typically involved in the drug trade. Thus, defendant argues that the court erred applying the $100-a-gram estimate to cocaine of such a low purity. Defendant relies on Cravens’ statement that during 1989, most cocaine he tested was on the average 65% to 75% pure. We note, however, that Cravens did not testify that the 65% to 75% purity figure was of cocaine sold only at the street level. Craven’s figure undoubtedly includes cocaine seized at the wholesale level before it had been cut. Furthermore, defendant offered no evidence concerning the average purity of cocaine at the street level during the time of her arrest, and never argued that cocaine with a purity of 22.6% could not be bought and sold on the street for $100 a gram. Thus, it was not unreasonable for the trial court to rely on Officer VanGundy’s testimony concerning the street value of cocaine.

We find further support for our decision in the recent Illinois Supreme Court case People v. Lusietto (1989), 131 Ill. 2d 51, 544 N.E.2d 785. In Lusietto, defendant was fined $8,290 pursuant to section 5— 9 — 1.1 of the Code, based upon defendant delivering 82.9 grams of cocaine and an officer’s testimony that the street value of cocaine at the time of the sale was $100 a gram. On appeal, defendant argued that the best evidence of the street value of the drugs was the actual price he was to pay his supplier for the drugs. Defendant further argued that the officer’s testimony only established an average value for cocaine and was not sufficient to establish the value of the drugs in question, in the absence of evidence of the purity level of the drug or the price agreed upon by the defendant and informant.

In affirming the fine, the supreme court stated:

“[Considering that the obvious purpose of *** section 5 — 9— 1.1 is to discourage and impede the illegal buying, selling and using of drugs, it is clear that the proper standard of valuation is that which would approximate the profit that a defendant would realize from the sale of the drug at its full street value. *** The legislature intended that the valuation of the drug would be based on the full amount that an offender could realize for the drug on the street.” Lusietto, 131 Ill. 2d at 55-56, 544 N.E.2d at 787.

The court further noted that under section 5—9—1.1, a defendant may introduce evidence as to the street value of the drugs. Here, as in Lusietto, defendant failed to introduce evidence concerning the street value of the drugs. If a defendant fails to introduce evidence of the street value of the drugs, it is reasonable for a trial court to accept the expert testimony of a narcotics officer as to the street value of the drugs seized. (Lusietto, 131 Ill. 2d at 56-57, 544 N.E.2d at 787, citing People v. Wiley (1988), 174 Ill. App. 3d 444, 453, 528 N.E.2d 26, 32-33; Roundtree, 135 Ill. App. 3d at 1082, 482 N.E.2d at 699; but see Carrasquilla, 167 Ill. App. 3d 1069, 522 N.E.2d 139.) As we noted earlier, Carrasquilla was concerned with introducing testimony as to the purity of the drug before an officer’s expert opinion would be accepted by the trial court as the street value of the drug. The purity of the cocaine in the instant case was introduced.

Defendant’s second contention on appeal is that she is entitled to an additional day’s credit for time spent in jail prior to trial. The State argues that defendant has waived this issue for appeal as she did not raise the issue during the circuit court proceedings. The State relies on People v. Bates (1989), 179 Ill. App. 3d 705, 534 N.E.2d 1019. Bates, however, stated that the issue of an additional day’s credit for time spent in jail is subject to waiver where it could have been raised in the trial court, or on direct appeal, but was not. (Bates, 179 Ill. App. 3d at 709, 534 N.E.2d at 1021.) Defendant raises the issue on direct appeal and has thus not waived the issue.'

Defendant was arrested May 11, 1989, in case No. 89 — CF—92, and posted bond May 12, 1989. In case No. 89 — CF—111, defendant was arrested June 22, 1989, and posted bond the same day. Thus, defendant spent two days in custody in case No. 89 — CF—92, and one day in custody in case No. 89 — CF—111. Defendant argues that she is entitled to “three days’ credit” for time already served.

Section 5 — 8—7(b) of the Code provides:

“The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b).

See also Moore v. Strayhorn (1986), 114 Ill. 2d 538, 502 N.E.2d 727.

The trial court ordered two days’ credit for time previously served awaiting trial in case No. 89 — CF—92, but failed to credit defendant the day spent in jail awaiting trial in case No. 89—CF—111. It is therefore ordered that one day’s credit be applied toward defendant’s sentence in case No. 89—CF—111. In doing so, we note that this one day’s credit is not to be applied to case No. 89—CF—92 so as to reflect a “three days’ credit” for time previously served, as defendant asks. See People v. Cooper (1986), 146 Ill. App. 3d 596, 497 N.E.2d 157.

Accordingly, the judgment is affirmed in part, reversed in part, and remanded with directions.

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

KNECHT, P.J., and McCULLOUGH, J., concur.