author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD D. PRICE, JR., Defendant-Appellant.
    Third District
    Nos. 3—89—0341 through 3—89—0344 cons.
    Opinion filed March 30, 1990.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James Majors, of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People.
   JUSTICE LUND

delivered the opinion of the court:

On February 24, 1989, the circuit court of Peoria County, following the earlier pleas of guilty but mentally ill to four distinct offenses of forgery (Ill. Rev. Stat. 1987, ch. 38, par. 17—3) by defendant Richard Price, Jr., sentenced defendant to two concurrent three-year prison terms, to be followed by two more concurrent three-year prison terms. Defendant now appeals, alleging: (1) his convictions should be reversed-due to an attorney conflict of interest; (2) he was improperly admonished prior to his guilty plea; and (3) he was improperly sentenced to consecutive sentences.

Defendant was an attorney at the time the criminal offenses took place, and all the offenses involved abuse of his professional capacity. He was originally charged in four separate criminal cases. Pursuant to negotiations, on January 3, 1989, defendant pleaded guilty but mentally ill (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(c)) to one forgery count in each case, and all other charges were dismissed.

The factual basis presented for the pleas established that, in each case, defendant represented the victims in either personal injury or worker’s compensation cases. In each case, defendant settled the claims, forged the victims’ signatures to release forms and settlement checks, and kept the money. Three offenses took place in the spring and summer of 1987, and one offense took place in 1985. The amounts involved were $25,000, $12,000, $2,500, and $21,311.50. Also, the psychiatric evidence showed that several experts diagnosed defendant as suffering from a major affective disorder, bipolar type, also known as manic depression, and a narcissistic personality disorder.

A sentencing hearing was conducted on February 24, 1989. After hearing the State’s and defendant’s evidence and reviewing copious medical reports, the court found that consecutive sentences were necessary to protect the public from further criminal conduct by defendant. Accordingly, the court sentenced defendant to two concurrent three-year prison terms, to be followed by two more concurrent three-year prison terms. Defendant filed a motion to withdraw his guilty plea which, following a hearing, was denied. This appeal followed.

Defendant first asserts that his guilty pleas should be vacated, due to an attorney conflict of interest. At all times, defendant was represented by Peoria County public defender Thomas Penn. However, on November 12, 1987, due to Penn’s unavailability, assistant public defender Kenneth Lyons appeared. At that time, only two cases had been filed. The hearing involved a motion for handwriting exemplars, to which defendant did not object, and an arraignment on a new misdemeanor charge. This was Lyons’ only contact with the case. He was, subsequently, elected Peoria County State’s Attorney, and took office in December 1988. Defendant maintains the fact that Lyons earlier represented him, and then was State’s Attorney at the time he pleaded guilty, is a conflict of interest.

At the hearing to withdraw his guilty plea, defendant testified he spoke with Lyons in detail about his cases and possible pending cases. However, later, he stated he spoke with Lyons 10 minutes before the hearing and about one minute after. He also stated he believed Lyons would not take office until January 20, 1989, when the President was inaugurated.

Lyons testified he had a number of other cases during the court call in question. He did not talk to defendant earlier because defendant had arrived late. Lyons said they never discussed any of the case. He explained he was only covering for Penn and was told everything had been agreed to. He also never talked about the merits of the case with Penn. Once he became State’s Attorney, he had no involvement with the case, relying on the assistants who had prosecuted the case throughout.

Penn testified Lyons was called to cover for him because he was out of town, and the hearing involved an unobjected-to motion for written exemplars. He never spoke to Lyons about any of the particulars of the case. He never spoke with Lyons about the case after the election. He remembered defendant mentioning the election to him and asking if he thought Lyons’ election would be helpful, since Lyon had been Penn’s assistant.

The evidence also showed the Peoria County public defender’s office is a decentralized office. The assistants are all involved in their own private practices and only get cases as they are assigned to them. While they will sometimes cover routine court hearings for each other, they almost never work together on cases or share information about them.

Defendant, in making his argument, relies on People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165, and People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669. He notes these cases hold that once a defendant has been represented by counsel, counsel cannot later prosecute the defendant on these same acts. However, these cases are distinguishable from the present one by their facts.

In Gerold, the prosecuting attorney had represented the defendant for several years prior to the indictment and had discussed the various items which eventually became part of the criminal charge. In Curry, the prosecuting attorney seeking to revoke defendant’s probation had been defense counsel when defendant was placed on probation.

The underpinning of these holdings is counsel’s ethical obligation and professional responsibility to guard the confidences and secrets of his client. (Gerold, 265 Ill. at 478, 107 N.E. at 177; Curry, 1 Ill. App. 3d at 90, 272 N.E.2d at 672.) Thus, it is the possible divulgence or use of information given counsel in confidence that is the evil to be guarded against. As the Gerold court stated:

“An attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith.” (Emphasis added.) Gerold, 265 Ill. at 478, 107 N.E. at 177.

As can be readily seen, the present case is markedly different, factually. Lyons only appeared at one routine hearing, when an unobjected-to order was entered and defendant was arraigned on a new charge. Lyons and Penn never discussed any of the details of the case. While defendant testified he did discuss the details of the case with Lyons, we observe that Lyons denied this and, according to defendant, this conversation lasted, at most, 10 minutes prior to court. Thus, defendant’s assertion is questionable. Once Lyons became State’s Attorney, he was not involved in the case and, in fact, testified he knew little about the particulars. The plea was consummated within 30 days of Lyons being placed in office and was handled by the same prosecutors throughout. We do not believe, due to these differences, that Gerold and Curry are applicable and, therefore, conclude that no conflict of interest exists.

Further, we observe the record establishes defendant knew of Lyons’ assuming the State’s Attorney’s position and that defendant was hopeful this would be beneficial to him. We do not believe a defendant, cognizant of a possible conflict, should be allowed to await the outcome of a proceeding to determine, in his own mind, if the conflict was helpful and, then, if displeased, be allowed to overturn the proceedings based on this conflict. Accordingly, if a conflict had existed, which we have determined did not, then defendant by this conduct would have waived any assertion of error due to it.

Defendant next insists he was improperly admonished at the January 3 guilty plea hearing. The exchange questioned involved a warning of the possible penalties. The court stated:

“If you plead guilty and I accept your plea, I will then sentence you. Each offense to which you’re charged is a Class 3 felony, and let me go over what’s available for Class 3, and then we’ll talk about guilty but mentally ill in a minute.
For a Class 3 felony, probation not more than 30 months, conditional discharge not more than 30 months, restitution or a fine of $10,000 or less, periodic imprisonment less than 18 months, imprisonment not less than three years nor more than five, followed by mandatory supervised release of one.” (Emphasis added.)

Defendant notes the proper prison range for a Class 3 felony is two to five years. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(6).) He maintains this error requires reversal. We disagree.

When a defendant pleads guilty, he is to be admonished pursuant to Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)). These admonitions must be given to the defendant, to ensure his guilty plea is intelligently and understandingly made, as required by Boykin v. Alabama (1969), 395 U.S. 238, 242-44, 23 L. Ed. 2d 274, 279-80, 89 S. Ct. 1709, 1711-12. (People v. O’Toole (1988), 174 Ill. App. 3d 800, 803, 529 N.E.2d 54, 56.) One of the requirements is that the defendant be advised of the possible minimum and maximum sentence, and the failure to properly do so is reversible error. See People v. Kidd (1989), 129 Ill. 2d 432, 544 N.E.2d 704.

However, the customary fact situation is where the court either fails to state the possible minimum or recites a possible minimum lower than that authorized. In the present case, the court stated a minimum higher than that authorized. The purpose of the admonitions is to make sure a defendant makes a voluntary and intelligent decision by understanding all the possible consequences of that decision. (People v. Ballheimer (1967), 37 Ill. 2d 24, 26, 224 N.E.2d 811, 812.) Thus, when a defendant has been advised the minimum sentence is less than it actually is, he cannot be deemed to have made an intelligent decision because the range of possible penalty is greater than he believed. However, the same problem does not exist when a defendant is advised the minimum sentence is actually greater than it is. Rather than be prejudiced, the defendant in such a case would be pleasantly surprised to find the sentence is less than he believed when he pleaded guilty. While we can envision a defendant stating he would not have pleaded guilty if he had known the possible sentence was greater than he was advised, we have difficulty picturing a defendant making a similar assertion where the penalty is less serious than he was advised. Accordingly, we hold that an admonition by the court, which includes a minimum sentence greater than it actually is, does not per se invalidate an otherwise valid guilty plea.

We have addressed this issue without any reliance on defendant’s professional experience. However, we would be remiss if we did not observe that defendant was, by all accounts, an intelligent and successful attorney for a number of years prior to these difficulties. While his primary focus was civil law, he did represent criminal defendants. At the hearing on his motion to withdraw his plea, he testified that while he was hoping for probation, he was aware that a prison sentence was possible. However, he believed that two years was the most he would receive. Thus, apart from the earlier discussion, it is evident defendant was aware of the correct possible minimum.

Defendant’s final assertion is that he was improperly sentenced to consecutive sentences. At the sentencing hearing, the State sought two consecutive five-year prison sentences, and the defendant argued for probation. The court, finding it is necessary to protect the public from further criminal conduct by defendant, imposed consecutive three-year sentences. Defendant asserts this finding by the court is erroneous and that the court failed to properly weigh several mitigating factors.

At the sentencing hearing, the State presented testimony of various victims, including one who was a named victim in one information and stated he had never received any of the $21,000 settlement. The other victims were not involved in the charged offenses. One stated he received his settlement check, but the settlement check included a deduction of $2,000 for medical fees, which defendant was to pay and never did. Another was a mother with a young daughter involved in an automobile accident. Defendant settled this case for $5,000 and, forging all the signatures involved, kept the money. The last witness was an estate representative, who testified estate funds of $37,000 were found to have been placed in defendant’s account. Eventually, due to the representative’s persistence, he paid it back over a period of time. The evidence also showed defendant had a serious financial shortfall, just prior to this money being deposited to his account. Finally, a tape recording of a court-ordered electronic surveillance of a conversation between a victim and defendant was played. In the tape, defendant admitted he had cashed the check, promised to pay it back, and attempted to dissuade the victim from testifying against him.

Defendant presented the testimony of family members and two experts, a clinical neuropsychologist, and a neurologist. The experts agreed with the diagnosis of defendant’s mental illness. They also believe that he is suffering from a permanent frontal lobe injury, due to the cumulative effect of several blows to the head. They explained that people with frontal lobe injuries frequently show bad judgment and are capable of committing a variety of foolish and impulsive acts, without looking to the long-range consequences, much as a young child would. Thus, one with this injury who found himself in a difficult situation would do whatever is necessary to extricate himself immediately from that situation, without any regard to the consequences. Mixing this difficulty with defendant’s bipolar disorder is likely to create a very difficult situation. They observed that defendant has been declared totally disabled by the Social Security Administration due to these difficulties.

The court also had the opportunity to review the presentence report, which showed no prior criminal activities by defendant. The report also contained voluminous medical and psychological reports prepared by various professionals. The court found various factors of mitigation and aggravation and then, making the questioned finding, imposed the sentence.

Section 5—8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(b)) provides that a consecutive sentence may be imposed where the court finds, considering the nature and circumstances of the offense and the character of the defendant, that consecutive sentences are necessary to protect the public from further criminal conduct of the defendant.

The imposition of a sentence is uniquely within the province of the trial court, since it has a much better opportunity to view and evaluate the appropriate factors. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Accordingly, the imposed sentence will not be disturbed, absent an abuse of discretion of the trial court. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) This standard applies equally to the imposition of consecutive sentences. See People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307.

Defendant maintains the court failed to give proper regard to the nature and circumstances of the offenses. He believes the court failed to also give proper weight to several mitigating factors. He observes, for example, that he had no criminal record and much of the conduct was due to his frontal lobe injury. He further notes that all the offenses occurred through the use of his law license, which he no longer has. He insists that, without it, he is not likely to commit further offenses. This may be true.

However, the record also establishes the defendant is a very bright and articulate man. One report indicated that, when in the manic phase, defendant can be charming, persuasive, and deceptive. This, coupled with the frontal lobe injury, which results in defendant acting impulsively to satisfy his immediate need, paints a picture of future deceptive actions and possible criminal conduct waiting to occur. Possibly the surrender of the law license would avoid this and, then again, possibly not. While we may have weighed the factors differently, that is not the operative question. It is well settled that a reviewing court will not substitute its judgment for the sentencing court, simply because it would have balanced the appropriate factors differently if the sentencing function had been that of the reviewing court. (Perruquet, 68 Ill. 2d at 156, 368 N.E.2d at 885; People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836, 840; Steppan, 105 Ill. 2d at 323, 473 N.E.2d at 1307.) Here, the court considered and balanced the appropriate factors and came to a reasoned judgment. Accordingly, we find no abuse of discretion.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD LUCAS, Defendant-Appellant.
    Third District
    No. 3—88—0804
    Opinion filed March 27, 1990.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury convicted the defendant, Edward Lucas, of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2)). The trial court subsequently sentenced him to a term of 30 years’ imprisonment. He appeals. We affirm.

The record reveals that prior to the commencement' of the trial, but after the jury was selected and sworn in, defense counsel asked the court to note that of the 30 prospective jurors questioned, two were black, and of those two, one was excused by the State and the other was chosen as an alternate. The court made note of this and asked the State to explain why it had excluded the black venire member. The prosecutor stated that he had done so because the venire member had indicated during voir dire that she was living alone with her young daughter. He explained that she was living in an area that might be affiliated with either one of the two gangs involved in the case, and therefore, she might be subject to harassment. The trial court accepted the prosecutor’s explanation, and the case proceeded to trial.

The State presented the testimony of Stacey Pruitt, who testified that on the afternoon of May 24, 1988, he was in front of his house washing his car when the victim, Reynard Jones, and two other friends stopped by. A few minutes later, a car pulled up and one of his friends yelled, “He [sic] got a gun.” Pruitt stated that he then saw the driver of the car, whom he recognized as Michael Rogers, fire a shot. He was, however, unable to identify the two passengers in the car. After the car drove away, he found the victim lying on the ground. Pruitt further testified that he was a member of the Stone Gang, which was affiliated with the Vice Lords.

Joliet police officer David Starcevich testified that upon arriving at the scene, he obtained a description of the fleeing car and an address of a place where the assailant might have obtained the weapon. When he went to that address, he did not find the car or its passengers. Starcevich testified that while he was driving in the area, however, he did see a car matching the description of the car involved in the shooting and subsequently stopped the car. Michael Rogers was driving it; Toby Jones was in the front passenger seat; and the defendant was in the left rear passenger seat.

The State also presented the testimony of witnesses who stated that they saw the defendant fire the shot from the back seat of the car. Those witnesses, who were members of the Vice Lords, testified that the victim was also a member of that gang and that the defendant and Rogers were members of the Black Gangsters, a rival gang. One of the witnesses stated that shortly before the shooting, there had been a confrontation between the two gangs.

The defendant testified that a confrontation had occurred earlier in the day when one of the Vice Lords hit Rogers’ car with a brick. He stated that when they drove by Pruitt’s house, members of the two gangs exchanged disparaging remarks about each other’s gangs. He denied, however, having a gun in the car. The defendant testified that when the Vice Lords started coming towards Rogers’ car, they drove away. Further, he stated that he did not know the victim and had not shot him. The jury subsequently found the defendant guilty of first degree murder.

The presentence investigative report stated that the 18-year-old defendant had no prior convictions or adjudications of delinquency. Though he had been placed on juvenile supervision in 1987, he had successfully completed the supervision period. The report further indicated that the defendant was the father of a two-year-old girl and that he planned to marry her mother in February of 1989. Prior to his arrest, the defendant had been employed for nine months at a flower-packing company. The report stated that the defendant intended to get his G.E.D. and eventually become a truck driver. The trial court subsequently sentenced him to a term of 30 years’ imprisonment.

On appeal, the defendant argues that he was denied a fair trial by a jury of his peers, since the State excluded the only black from the jury through its use of a peremptory challenge. He further contends that the State’s reason for excluding her was not racially neutral.

It is well settled that the equal protection clause forbids a prosecutor from peremptorily challenging potential jurors solely on account of race or on the assumption that black jurors as a group will be unable to impartially consider the prosecutor’s case against a black defendant. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) A defendant contending that the prosecution’s exercise of a peremptory challenge was racially motivated has the burden of showing purposeful discrimination. Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

In establishing a prima facie case of purposeful discrimination, (1) the defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race; (2) he may rely upon the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to do so; and (3) he “must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.) Regarding the third element, there must be some evidence showing that the exclusion was based on the prosecutor’s improper, racially related motivations. That evidence may take numerous forms. (See People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360.) Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

In the instant case, the defendant met the first element of a prima facie case in that he is black and the prosecutor exercised a peremptory challenge to remove a black venire member. The second element is, of course, actually a presumption and need not be proved. The defendant failed, however, to prove the third element by showing that the exclusion was based on the prosecutor’s improper, racially related motives. In fact, the only evidence of the prosecutor’s motives showed that he was simply trying to avoid having a jury member who could be easily intimidated by the defendant’s gang or the victim’s gang. Contrary to the defendant’s assertion, we find that the prosecutor’s motive was racially neutral. See People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

Though the trial court did ask the prosecutor to explain his reason for excluding the juror, we find unpersuasive the defendant’s contention that that indicated that the court found that he had established a prima facie case. Rather, it appears from the record that the court made the request only as a precautionary measure. Accordingly, we conclude that no error occurred as a result of the State’s use of its peremptory challenge.

The defendant also argues that the trial court abused its discretion in sentencing him to 30 years in prison.

Initially, we note that the sentence imposed upon a defendant will not be overturned on appeal absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The trial judge is generally in a better position than a court of review to consider the defendant’s credibility, demeanor, and general moral character. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In the instant case, the defendant shot and killed a rival gang member who was merely talking with friends at the time. As noted by the trial court, this senseless act was committed simply to avenge a disparaging remark made about the defendant’s gang. The trial court was in a superior position to determine the defendant’s attitude and potential for rehabilitation, as well as the need to deter others from committing similar acts. We therefore conclude that the trial court did not abuse its discretion in sentencing the defendant to 30 years in prison.

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

Affirmed.

WOMBACHER and SCOTT, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    MARTIN P. TIPPIN, Plaintiff-Appellee, v. ROCKDALE SASH AND TRIM COMPANY, INC., Defendant-Appellant.
    Third District
    No. 3—89—0207
    Opinion filed March 7, 1990.

      John L. Parker & Associates, Ltd., of Chicago (John L. Parker, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Renee Cipriano, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Rockdale Sash & Trim Company (hereinafter Rockdale), contests the Illinois Environmental Protection Agency’s (hereinafter Agency’s) authority to obtain an administrative inspection warrant pursuant to section 4(d) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1004(d)). More specifically, Rockdale appeals the following: (1) the issuance of an administrative inspection warrant by Circuit Judge Robert R. Buchar on March 28, 1989; (2) paragraphs 2 and 4 of the March 29, 1989, order entered by Circuit Judge William R. Penn which denied Rockdale’s motion to quash the warrant; and (3) an order by Circuit Judge Penn on March 31, 1989, denying both a motion for injunction and a motion for stay filed by Rockdale. Since the administrative inspection warrant was executed and returned by the Agency on March 31, 1989, this court finds that the issues raised by this appeal are moot. Accordingly, we affirm the trial court.

Rockdale manufactures and coats wooden frames and sliding glass door frames for residential buildings. Since 1975, Rockdale has operated its facility in Rockdale, Illinois, pursuant to Illinois Environmental Protection Agency operating permit No. 75100033. On March 16, 1988, Martin P. Tippin, an engineer for the Agency, conducted an inspection of the Rockdale facility. The inspection of the facility revealed the presence of a flow coater, which coats wood with an anti-decay substance, two spray booths, and a flat line coater, which applies a primer. Section 9(b) of the Illinois Environmental Protection Act requires that this equipment meet Agency regulations and that the Agency must issue a permit for such equipment. (Ill. Rev. Stat. 1987, ch. lll1/2, par. 1009(b).) During the March 16, 1988, inspection, Mr. Tippin requested information as to the quantity and composition of coating materials being utilized by Rockdale to determine whether Rockdale’s chemical emissions are in compliance with section 215.204(1) of the Pollution Control Board Emission Limitations for Manufacturing Plants (35 Ill. Adm. Code §215.204(1) (1986 Supp.)). Rockdale refused to give Tippin this information. The Agency then attempted to obtain this information by sending correspondence to Rockdale’s attorney. The Rockdale facility continued to deny the Agency any data regarding its surface coating materials.

On March 28, 1989, the Illinois Attorney General’s office, on behalf of the Agency, appeared before Circuit Judge Robert R. Buchar to obtain an administrative inspection warrant. The Agency presented a complaint for administrative inspection warrant and a supporting affidavit of Agency engineer Martin Tippin. Thereafter, Judge Buchar signed the warrant. The warrant issued was limited to the inspection of corporate records relating to Rockdale’ s 'surface coating operations, purchases and usages of coating materials, and the composition and quantity of the coating materials utilized at the facility.

On March 28, 1989, Mr. Tippin appeared at the Rockdale facility with the issued warrant, but was refused access to the facility. Mr. Tippin, at the direction of the Agency, then returned to the Rockdale facility that same day at approximately 5 p.m. with police protection. After Mr. Tippin was again refused access to the facility, the Rockdale plant manager was arrested. Mr. Tippin then spent one hour reviewing Rockdale’s files before leaving for the evening. Nothing was seized pursuant to this partial search.

On the morning of March 29, 1989, Rockdale presented an emergency motion to quash the warrant to Circuit Judge William R. Penn. After hearing arguments from counsel, Judge Penn affirmed the validity of the warrant, quashing only that portion which allowed the Agency to “take” any and all documents or records which related to the coating materials used by Rockdale at the facility. Subsequent to the hearing and pursuant to the warrant, Agency inspectors then arrived at the Rockdale facility on March 29, 1989, only to find empty file jackets in those file cabinets that they were allowed to inspect.

On March 31, 1989, Rockdale presented two motions to the circuit court in an attempt to enjoin and/or stay the Agency’s ability to act pursuant to the warrant. The Agency then informed the court that its inspectors found only empty file jackets at the facility and that no records had been found which pertained to the warrant. The Agency then completed the return of the warrant to court stating that “nothing was seized due to the denial of access.” After accepting the return of the warrant into the record, and after hearing arguments on the defendant’s motions for injunction and stay, Judge Penn denied both motions. Judge Penn found that since the warrant was returned executed, “the warrants over” and “there is nothing to enjoin.”

We agree with Judge Penn’s findings. The warrant which Rockdale seeks to reverse, quash, enjoin and/or stay on appeal has been executed and returned to the circuit court, with none of the sought-after information having been discovered. There is nothing that this court can do to provide Rockdale with any of the relief it seeks. Reversing the trial court will not empower the trial court to quash or enjoin a warrant that is no longer enforceable and has been completely executed. It is well settled that an appellate court will not render an opinion on a moot question or an abstract proposition which will not affect the rights of the parties before it. (McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89.) Therefore, this court dismisses Rockdale’s appeal as moot.

Rockdale argues, however, that this case presents a question of substantial public interest, which is an exception to the mootness doctrine. (People v. Labrenz (1952), 411 Ill. 618.) That question being whether section 4(d) of the Illinois Environmental Protection Act authorizes the issuance and execution of an administrative inspection warrant. Section 4(d) provides in pertinent part:

“(d) In accordance with constitutional limitations, the Agency shall have authority to enter at all reasonable times upon any private or public property for the purpose of:
(1) Inspecting and investigating to ascertain possible violations of the Act *** or of permits or terms or conditions thereof ***.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 1004(d)(1).

We do not find that the facts of this case warrant applying the public interest exception to the mootness doctrine. Nevertheless, we recognize that under a commonsense reading of section 4(d), the Agency is implicitly authorized to go before a court and request an administrative inspection warrant in order to carry out its duties under the Illinois Environmental Protection Act. Moreover, we note that the warrant issued in this case seems reasonable given its limited scope and the Agency’s repeated attempts to acquire the needed information directly from Rockdale before approaching the circuit court for an administrative inspection warrant.

For all of the foregoing reasons, we affirm the decision below.

Affirmed.

SCOTT and WOMBACHER, JJ., concur.


author: JUSTICE SCOTT

text:
    ANTHONY KELLY et al., Plaintiffs-Appellants, v. ECONOMY FIRE AND CASUALTY COMPANY, Defendant-Appellee.
    Third District
    No. 3—89—0219
    Opinion filed March 8, 1990.

      Peter Denger, of Rock Island, for appellants.
    Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., of Rock Island (Linda E. Frischmeyer, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiffs appeal from an order of the trial court dated March 9, 1989, denying plaintiffs’ motion for reconsideration on the summary judgment granted defendant. Both parties acknowledge there are no material issues of fact and the question to be resolved is one at law.

Plaintiffs were mortgagees under a policy of fire insurance issued by defendant, effective October 1, 1984, covering property located in Rock Island, Illinois. On July 29, 1986, a notice of expiration was sent to both the insureds and the plaintiffs as mortgagees which, in part, stated:

“We would like to continue your insurance coverage. However, unless premium is received by the company by 08/13/86, your policy will terminate on the inception date of 07/25/86 in accordance with the policy provisions for non-payment.
If premium is received by the company after 08/13/86, your policy may be reinstated, at the option of the company, as of the date your payment is received.
Attention mortgagee and/or lienholder: your interest as lien-holder will terminate on 08/13/86 in accordance with the policy provisions.”

On August 9, 1986, one of the primary insureds, Elizabeth Moore, sent a check in the correct amount for the July 25, 1986, quarterly premium to Lohman Brothers Agency (Lohman), the agency which originally wrote the policy. This check was received by Lohman on August 14, 1986, and then forwarded to defendant, who received it on August 18, 1986. On August 23, 1986, a fire occurred causing extensive damage to plaintiffs’ property, and notice of the loss was reported to defendant on August 26, 1986. On August 27, 1986, defendant returned the insured’s check to Lohman with the following letter:

“We are returning the insured’s check as it has been received too late to apply. The premium on this policy was due July 25, 1986.
We did send a late notice extending this due date to August 13, 1986. However, as you can see the insured’s check was received August 18, 1986. Since it was too late to apply we will be unable to accept this and the policy will lapse effective July 25, 1986 [in] accordance with our previous notice.”

After the case was filed herein, discovery depositions revealed that late premium payments on this policy had been made in the past and accepted by defendant. In at least one instance defendant lapsed the policy but later reinstated on the date the late payment was received. Glenda Yeager, defendant’s employee, stated the reason why the policy was reinstated previously is that on the first two instances the customer bill department had authority to automatically reinstate the policy. When a third lapse situation occurred, however, the policy was required to be sent to the underwriting department for a determination of whether the policy should be reinstated. This “in-house” policy of defendant was unknown to plaintiffs but was generally referred to within the insurance policy.

The parties agree there are no material questions of fact and that the matters to be decided are at law. Summary judgment “shall be rendered without delay if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).

Plaintiffs propose three theories why coverage should exist. First, plaintiffs believe defendant has waived any right to rely on the notice provision for terminating the policy because it had reinstated the policy in the past after the policy had lapsed. Moreover, since plaintiffs were not privy to defendant’s “in-house” rules, they should not be binding on plaintiffs. As authority on this issue, plaintiffs cite Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 254 N.E. 2d 457, and Tesk v. Sagerstrom (1942), 317 Ill. App. 231. In Van Hulle and Tesk, the respective courts each concluded that the insurance company or labor union involved, by its conduct, had waived its right to rely on policy provisions regarding termination of insurance coverage or union death benefits. In Van Hulle, the court basically relied on the insurance provider’s intervening notice of loss and subsequent acceptance of a tendered premium payment in holding that the insureds were entitled to retroactive coverage. In Tesk, the court determined that defendant labor union’s prior course of dealing in frequently accepting union dues from decedent on an irregular basis constituted waiver of the labor union’s right to rely on the union contract regarding union dues when it was “payday” time for the union. We do not disagree with the decisions of the respective courts in Van Hulle or Tesk, but do not consider those cases controlling.

Waiver is the voluntary, intentional relinquishment of a known right. Although waiver may be implied, it requires that an intention to waive be clearly inferred from the circumstances (Tibbs v. Great Central Insurance Co. (1978), 57 Ill. App. 3d 866, 373 N.E. 2d 492.) Obviously, whether waiver exists must be based on the particular circumstances of each case. We do not, however, believe waiver exists in this case.

Plaintiffs received notice that the policy would lapse for nonpayment effective August 13, 1986, unless payment was received by that date. Any premium payment received after August 13, 1986, would, at the company’s discretion, cause the policy to be reinstated as of the date the payment was received. The earliest date plaintiffs could argue as the receipt date of the premium payment was August 14, 1986, the date it was received by Lohman. It was not received by defendant as required by the notice, however, until August 18, 1986. Thus, using either date, the payment was made after the policy had lapsed for nonpayment, and it was within defendant’s discretion whether to reinstate the policy. Defendant does not dispute that it had accepted late premium payments in the past and reinstated the policy, but asserts that such actions were pursuant to valid in-house procedures that were generally referred to in the insurance policy and do not constitute waiver. We agree. Undisputed deposition testimony of defendant’s employees related that pursuant to company procedure, on the third lapse the policy was sent to underwriting for a determination of whether to continue coverage. We do not believe defendant’s in-house policy created a waiver of defendant’s right to not reinstate the policy but, in fact, benefited plaintiffs by providing no less than two automatic reinstatements after lapses for nonpayment of premium.

We also consider the length of time defendant took to advise that the policy would not be reinstated was a reasonable length of time, and therefore, no acceptance of the tendered check occurred. Defendant maintains that it held the premium check for nine days before returning it to Lohman. If the date of receipt of the check is to be when Lohman received the check, then it was held for a total of 13 dáys. In McKinney v. Country Mutual Insurance Co. (1987), 154 Ill. App. 3d 854, 507 N.E. 2d 940, the court determined that a premium payment made after the termination dated constituted an offer to purchase insurance and “an insurance company should be allowed a reasonable amount of time under these circumstances to decide whether or not to accept or approve a late premium payment.” (McKinney, 154 Ill. App. 3d at 858.) The court thus determined that nine days were not an unreasonable length of time for the insurance company to hold a late premium payment before rejecting same. McKinney, 154 Ill. App. 3d 859, 507 N.E. 2d 940.

This situation is also not analogous to VanHulle, wherein the insurance company cashed a check approximately one month after receiving notice that an accident had occurred and some two months after the policy had lapsed for nonpayment. Under those circumstances, the court found that somewhere in the process the insurance company had accepted the check and waived its right to terminate the policy. Van Hulle, 44 Ill. 2d 227, 254 N.E. 2d 457.

The most difficult aspect of this waiver issue is plaintiffs’ claim that defendant denied coverage solely on the basis that it had knowledge of an intervening loss. “To imply the waiver of lapse the insurer must have knowledge of the intervening loss.” (Van Hulle, 44 Ill. 2d at 231.) In this case, notice of the loss was given defendant on August 26, 1986, and the letter rejecting the late premium payment was sent August 27, 1986. In Van Hulle, the insurer accepted the late payment 22 days after receiving notice of the loss. In this case, defendant refused to accept the tendered payment one day after receiving notice of the loss. Had defendant accepted the premium payment in this cause, then waiver may be imputed under Van Hulle, but since no acceptance occurred, we do not believe the mere fact defendant had in its possession a tendered premium payment at the time it received knowledge of a loss was sufficient to automatically cause defendant to waive its right to refuse reinstating the policy. To so hold would encourage fraud upon insurance companies, although we see no evidence of fraud in this case.

We also find no relief for plaintiffs under the theory of estoppel. No facts indicate plaintiffs relied upon any action of defendant causing plaintiffs to believe the premium payment need not be received by the company prior to August 13, 1986, to avoid a lapse or that the policy would be reinstated upon the tender of a late payment. Likewise, we do not consider the language of defendant’s notice to be conciliatory in nature. The notice explicitly stated that coverage would be reinstated from the date payment was received at the sole discretion of defendant. We do not consider this language an invitation to make a premium payment, but a warning of the possible consequences if a payment was received after August 13, 1986.

For all the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

HEIPLE, P.J., and WOMBACHER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE DUNCAN, Defendant-Appellant.
    Third District
    No. 3—88—0769
    Opinion filed April 4, 1990.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

In May 1980, the defendant, George Duncan, was convicted of murder and that conviction was affirmed on appeal. (People v. Duncan (1981), 97 Ill. App. 3d 896, 424 N.E.2d 67.) He was subsequently granted a new trial after petitioning for habeas corpus relief. Following his retrial, the court again convicted him of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1) and sentenced him to 36 years in prison. The defendant appeals the length of his sentence. We affirm.

At trial, it was undisputed that the defendant killed his live-in girlfriend, Yvette Searle. The defendant testified that when Yvette told him she was a prostitute, he began hitting her. He could not recall how many times he hit her, but noted that after he was done he laid her on a bed and shortly thereafter told her to get up. She did not move, so he heated a knife and put it on her arm to see if she was really unconscious. He stated that her arm moved and he therefore assumed she was still alive. He then left the apartment and went drinking with his brother.

Dr. Phillip Immesoete testified that the cause of Yvette’s death was a ruptured liver and that she would have lived for about one hour after her liver ruptured. He also stated that a ruptured liver is extremely painful and would have caused Yvette to double over in pain. Furthermore, he testified that Yvette’s face, head, and arms were badly bruised, and she had contusions all over her body, along with broken ribs and badly bruised lungs and bowels. Further medical testimony revealed that the defendant had bitten Yvette’s arm twice.

The trial court rejected the defendant’s argument that he was acting under a sudden and intense passion and found him guilty of murder.

The defendant’s presentence report showed that at the time of his sentence he was 43 years old and had never been married, though he was the father of four children. The report also showed that the defendant had served in the army and been given an honorable discharge. He had one prior misdemeanor conviction for theft in 1969. Further evidence showed that, since his incarceration in 1980 for the instant offense, the defendant had been assigned to the “honor dorm” and had attended adult education classes. The report noted that in 1988 he had received a disciplinary ticket while in the Peoria county jail. He was disciplined for disrespect to an officer and for failing to wear his identification wristband.

At the sentencing hearing, the defendant’s brother, minister Chris Duncan, testified on behalf of the defendant. He stated that, during the defendant’s eight years of incarceration, he had turned 180 degrees for the better. He further stated that the defendant had strong family support and that he knew of several businessmen who would hire the defendant. He believed that the defendant’s spiritual change was real and that the religious community he was involved with would accept him.

In sentencing the defendant, the trial court expressly noted that it was considering the information in the presentence report, the evidence presented in mitigation and aggravation, and the statements made by the defendant on his own behalf. In addition, the court noted that the defendant’s conduct was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty.

On appeal, the defendant first argues that the trial court failed to give proper consideration to certain mitigating factors. Specifically, he contends that the court failed to consider that he was acting under a sudden and intense passion caused by Yvette’s telling him she was a prostitute.

Sentencing is a matter of judicial discretion and, absent an abuse of that discretion, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The statutory requirement that the trial judge set forth on the record his reasons for a particular sentence does not obligate the judge to recite each factor and set a value on it. (People v. Taylor (1987), 164 Ill. App. 3d 938, 518 N.E.2d 409.) Where mitigating evidence is before the court, it is presumed that the judge considered the evidence, absent some indication other than the sentence itself to the contrary. People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.

In the instant case, the trial court specifically noted that it was considering the evidence presented at trial, the presentence report, the testimony of Chris Duncan, and the defendant’s comments regarding the murder. We note that during trial the court was presented with the defendant’s claim of provocation. We therefore find nothing in the record indicating that the court failed to consider any proper mitigating factors.

The defendant next argues that the trial court erred in finding that his conduct was accompanied by brutal and heinous behavior indicative of wanton cruelty. Specifically, he argues that Yvette’s actions provoked him to such intense passion that he lacked the mental state necessary for his actions to constitute wanton cruelty.

The medical testimony in this case showed that the defendant bit and stabbed Yvette. In addition, it showed that Yvette died from a ruptured liver and that she was beaten so severely that she had bruises over her entire body. Furthermore, she suffered additional internal injuries in that she had broken ribs and bruised lungs and bowels. The testimony also established that Yvette suffered severe pain before her death.

Based upon the foregoing evidence, we find that the trial court did not abuse its discretion in holding that Yvette’s mere words were not sufficient to provoke the defendant to a level of passion that would justify his actions. Accordingly, we hold that the court did not abuse its discretion in finding that the defendant’s actions were indicative of wanton cruelty.

The defendant’s final argument is that the trial court erred in considering in aggravation that his conduct was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Citing the fourth district case of People v. Killen (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789, the defendant argues that this factor can only be considered when imposing an extended-term sentence.

We decline to follow Killen and instead follow the weight of authority, which allows consideration of the brutality or heinousness of the defendant’s acts even when an extended term is not being imposed. (See People v. Butts (1985), 135 Ill. App. 3d 132, 481 N.E.2d 987; People v. Williams (1987), 159 Ill. App. 3d 527, 512 N.E.2d 35; People v. Jorgensen (1989), 182 Ill. App. 3d 335, 538 N.E.2d 758.) We agree with these appellate courts that nothing in the sentencing guidelines prohibits trial courts from considering the brutal character of the defendant’s conduct when evaluating a nonextended term.

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

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE WOODWARD

text:
    EARL HOPKINS, JR., Appellee, v. THE INDUSTRIAL COMMISSION et al. (The City of Peoria, Appellant).
    Third District (Industrial Commission Division)
    No. 3—89—0240WC
    Opinion filed March 8, 1990.
    Brian P. Mack and Robert H. Jennetten, both of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellant.
    Lindsay W. Wright, of Strodel, Kingery & Durree, Associated, of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, City of Peoria (Peoria), appeals the judgment of the circuit court of Peoria County which set aside the Industrial Commission’s (Commission’s) decision to deny compensation to claimant, Earl Hopkins, Jr.

The matter was heard by an arbitrator on July 16 and August 5, 1986. The arbitrator found that claimant’s injury arose out of and in the course of his employment and also determined that claimant’s condition of ill-being was causally related to his injury. The arbitrator held that claimant was temporarily totally disabled for a period of 593/7 weeks. Further, the arbitrator found that claimant’s condition had not reached permanency.

On December 1, 1986, the Commission, without hearing additional evidence, reversed the arbitrator’s decision, finding that claimant failed to prove that on February 29, 1984, he sustained injuries arising out of and in the course of his employment.

On judicial review, the circuit court of Peoria County held that the Commission’s decision to deny recovery by the claimant was contrary to the manifest weight of the evidence. Respondent thereupon filed a motion in the circuit court to reconsider its ruling or for a finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). This motion was denied, and the case was remanded to the Commission for a determination of the extent of claimant’s temporary total disability. On remand, the Commission found that claimant was entitled to 593/? weeks of temporary total disability. The circuit court confirmed the Commission’s decision, and this appeal followed.

Respondent raises two issues, namely, claimant failed to prove that his injury arose out of and in the course of his employment and that claimant’s condition of ill-being is not causally related to his February 29,1984, accident.

First, respondent argues that claimant’s injury did not arise out of his employment. Regarding this issue, the following undisputed evidence was adduced at arbitration. Claimant was employed by Peoria as the court sergeant at the Peoria County courthouse. On February 29, 1984, claimant was training another police officer, Donald Swank, to take his place as court sergeant; claimant and Officer Swank were seated in the office provided for the court sergeant in the Peoria County courthouse. Officer Swank was seated in a swivel-style chair that claimant normally used. Claimant was seated in a nonswivel-type straight-back chair provided by his employer. Officer Swank asked claimant a question, and claimant turned in his chair to answer. As he turned, he felt a pop in his back. He complained of feeling a “popping” in his back. Following the “popping,” claimant experienced pain radiating down his right leg.

Shortly after the onset of back and leg pain, Officer Swank offered to perform a “chiropractic manipulation” on claimant’s back. Said manipulation consisted of Officer Swank’s squeezing and lifting claimant in the stairwell of the courthouse. Upon receiving this manipulation, claimant felt muscle spasms in his upper back; after the accident, claimant sought medical treatment from Dr. Paul Najers, who diagnosed lumbar-sacral strain, affecting claimant’s back and right leg. Dr. Najers prescribed muscle relaxants and pain medication.

Claimant also testified that he was wearing a gun and holster at the time of the incident but he did not recall if his gun caught on the arm of the chair in which he was seated. He was unsure whether this had occurred at the time of this incident. Claimant was accustomed to sitting in the swivel-type chair; the straight-back chair did not “give” or turn as he had expected it to do.

Dr. Martin and Dr. White, the only medical witnesses, stated that the injury suffered by the claimant on the date in question could have occurred with any simple and normal activity. Claimant also had previous low back problems, beginning in 1966 with an auto accident and other work-related incidents.

Dr. White, the respondent’s physician, who examined and treated claimant before and after the February 29, 1984, incident, testified as follows relative to the connection between claimant’s injury and his employment.

“Q. With reference to degenerative disc disease, Dr., you did mention based on his prior history of back injuries that he is predisposed or would be predisposed to the sort of thing that happened to him on February 29,1984. Is that right?
A. That’s correct.
Q. And as you understand it, that was simply turning in his chair which based on your experience can happen to people that have this kind of degenerative disc problem?
A. That’s correct.
Q. And that sort of thing could have happened to him if he were sitting in his living room and turned to reach for the ‘T.V. Guide’?
A. Could have happened anywhere at all.
Q. Under any circumstances?
A. That’s correct.
Q. OK. It just so happened that it happened while he was at his desk at the police station. It that correct?
A. That’s correct.”

The issue on this appeal is whether the decision of the Industrial Commission, December 1, 1986, denying the claimant compensation is against the manifest weight of the evidence. In Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, our supreme court explicated the law regarding whether the injury arose out of the employment as follows:

“For an injury to ‘arise out of’ the employment its origin must be in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury. [Citations.] Typically, an injury arises out of one’s employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. [Citation.] A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties. [Citations.]
If an employee is exposed to a risk common to the general public to a greater degree than other persons, the accidental injury is also said to arise out of his employment. [Citations.] However, if the injury results from a hazard to which the employee would have been equally exposed apart from the employment, or a risk personal to the employee, it is not compensable. [Citations.]” Caterpillar, 129 Ill. 2d at 58-59.

In Board of Trustees v. Industrial Comm’n (1969), 44 Ill. 2d 207, the claimant, who was a teaching assistant, was preparing materials for class as required by his job, turned in his chair upon hearing a noise, and he then heard his back “pop,” and thereafter, his problem was diagnosed as a ruptured disc. The Industrial Commission made an award which the circuit court set aside, and then the supreme court affirmed the denial of the award to the claimant. The court stated as follows:

“[TJhere must be a showing that an injury, to be considered compensable, was due to a cause connected with the employment or incidental to it. There is no evidence here of a causal connection between the appellant’s employment and the injury. The appellant simply turned in his chair and suffered the injury. There was no suggestion that the chair was defective or unusual in any way. The medical evidence was that because of its degenerated condition any simple and normal activity would have caused the appellant’s disc to rupture. The injury was not caused by a risk incidental to the employment.” (Emphasis added.) (Board of Trustees, 44 Ill. 2d at 214-15.)

In Board of Trustees v. Industrial Comm’n, the Industrial Commission’s finding was set aside for the reason that the finding in claimant’s favor was against the manifest weight of the evidence.

Interlake, Inc. v. Industrial Comm’n (1987), 161 Ill. App. 3d 704, is cited to support claimant’s position in this case; however, there the medical evidence clearly related to claimant’s back difficulties due to prior work-incurred injuries. Here, the Industrial Commission made no such finding, and based on Dr. White’s testimony as set forth above, the decision of the Industrial Commission has ample evidentiary support.

Claimant here seeks to distinguish Board of Trustees on the basis of certain facts that cast doubt on the credibility of the claimant in that case as the basis of the supreme court decision. On the other hand, as previously noted, there is evidentiary support for the Industrial Commission’s decision in this case; therefore, it is not for this court to pass on the credibility of the witnesses.

In Greater Peoria Mass Transit District v. Industrial Comm’n (1980), 81 Ill. 2d 38, the claimant leaned over to pick up a document from the floor and lost her balance and, in falling, struck her shoulder, which was dislocated. The medical evidence showed that she had an existing shoulder problem before the occurrence in question. The supreme court denied recovery of compensation, holding that her injury was a result of a normal activity and not a risk incidental to her employment.

In Branch v. Industrial Comm’n (1983), 95 Ill. 2d 268, the claimant told his doctor that while he was taking his coat off after arriving at work, he suddenly felt a hot poker in his back. The Industrial Commission found that the claimant had not proved a compensable injury arising out of and in the course of his employment, and the decision of the Industrial Commission was affirmed by the circuit court and the supreme court. The supreme court held that in order for there to be a compensable injury, there must be a showing that the injury is connected to the employment and that more is required than the fact that the incident occurred at the employee’s workplace.

This case is very similar to Board of Trustees v. Industrial Comm’n (1969), 44 Ill. 2d 207. Here, claimant “simply turned in his chair and suffered injury. There was no suggestion that the chair was defective or unusual in any way.” There is no definite proof that claimant’s gun and holster caught on the chair as he turned. More is required than the fact that an accident occurred at claimant’s workplace. Here, the injury resulted from a hazard personal to the claimant and, therefore, did not arise out of claimant’s employment. There is sufficient evidence to support the decision of the Industrial Commission denying the claim.

It is unnecessary for us to consider the issue of causal connection in view of our holding that the injury did not arise out of claimant’s employment. Accordingly, we hold that the decision of the Industrial Commission, December 1, 1986, is not against the manifest weight of the evidence, and the judgment of the circuit court is reversed.

Reversed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE WOMBACHER

text:
      In re JAMES GUTHRIE, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. James Guthrie, Respondent-Appellant).
    Third District
    No. 3—89—0182
    Opinion filed March 8, 1990.

      Jeff M. Plesko, of Guardianship & Advocacy Commission, of Carbon-dale, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court found that the respondent, James Guthrie, was a person subject to involuntary admission and ordered him hospitalized in the Department of Mental Health and Developmental Disabilities (Ill. Rev. Stat. 1987, ch. 911/2, par. 1—119(2)). The respondent appeals, arguing among other things that the petition to involuntarily commit him was not timely filed.

The record shows that on January 18, 1989, the respondent was admitted to Zeller Mental Health Center, apparently as a voluntary patient. On February 14, 1989, the State filed a petition, with the required certificates, for the involuntary admission of the respondent. Dr. Sudesh Suri, who executed one of the State’s accompanying certificates, specifically indicated in his certificate signed on February 9, 1989, that the respondent had signed a written five-day notice of his request for discharge, which had expired on February 9. Dr. Suri further indicated in his petition that the respondent had refused to rescind his request.

Section 3 — 403 of the Mental Health and Developmental Disabilities Code (the Code) (Ill. Rev. Stat. 1987, ch. 911/2, par. 3—403) provides that where a petition and accompanying certificates are not filed within five business days of a voluntary patient’s request for discharge, the patient shall be discharged from the facility at the earliest appropriate time.

On appeal, the respondent initially argues that the trial court’s judgment should be reversed because the State failed to attach to its petition a copy of the respondent’s written request for discharge. The respondent also argues that the State’s petition was not timely filed.

The State, on the other hand, initially contends that the respondent has waived any argument regarding his written request for discharge and the timeliness of the petition, by failing to raise the issues in the trial court. Because this involuntary commitment case involves alleged procedural errors, we elect to consider the issues involved. In re Riviere (1989), 183 Ill. App. 3d 456, 539 N.E.2d 451.

An analogous situation was presented in In re Macedo (1986), 150 Ill. App. 3d 673, 502 N.E.2d 72. The Macedo court reversed the trial court’s decision to involuntarily commit the respondent, because the record failed to show whether the respondent had filed a written request for discharge. We note that we are uncomfortable with the reasoning set forth in Macedo, because it is contrary to the general rule that in the absence of a complete record, it will be presumed that the trial court acted correctly. However, in the instant case, one of the State’s own required certificates showed that the respondent had signed a written request and that it had expired on February 9. The State’s petition was not filed until February 14, which was five days beyond the deadline for its filing. Furthermore, the record indicates that the respondent was not released. Therefore, unlike Macedo, the record in the instant case affirmatively shows the State’s failure to comply with the five-day requirement of section 3 — 403 of the Code.

The State nevertheless argues that the respondent was properly involuntarily committed pursuant to section 3 — 701 of the Code (Ill. Rev. Stat. 1987, ch. 911/2, par. 3—701), since the petition filed on February 14 was ostensibly brought pursuant to that section and it satisfied all the requirements of a section 3 — 701(a) initial commitment petition. The State cites In re Shaw (1987), 153 Ill. App. 3d 939, 506 N.E.2d 456, in support of its proposition.

We find that the State’s reliance on Shaw is misplaced. Shaw is distinguishable in that it involved the propriety of a second involuntary petition, whereas in the instant case the State’s single petition was brought as a direct result of the respondent’s initial discharge request. Moreover, we decline to follow the reasoning of Shaw to' the extent that it is inconsistent with the principle that a mandatory requirement of discharge under the Code cannot be circumvented by utilizing other sections of the Code. See In re Vancil (1989), 183 Ill. App. 3d 204, 538 N.E.2d 1372 (unambiguous statutory involuntary commitment procedures affecting liberty interests will be strictly enforced).

The procedure provided in section 3 — 403 was not followed in this case. We therefore reverse the trial court’s involuntary commitment of the respondent. Our decision renders moot the remaining issues raised by the respondent.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE BARRY JUSTICE STOUDER,

text:
    RODERICK L. CHOISSER II, Plaintiff-Appellee, v. MICHAEL P. LANE, as Director of the Department of Corrections, Defendant-Appellant.
    Third District
    No. 3—88—0798
    Opinion filed March 30, 1990.

      STOUDER, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Karen Michels Caille and Kimary Lee, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Michael P. Lane, Director of the Department of Corrections for the State of Illinois, appeals from an order of the circuit court of Peoria County granting plaintiff Roderick L. Choisser II certain mandamus relief and ordering his release from custody of the Department of Corrections.

In 1976 Choisser pled guilty to charges of aggravated battery and unlawful use of weapons in the circuit court of Saline County. He was sentenced to concurrent sentences of one to three years and three to nine years, to be served in the Department of Corrections. On March 26, 1978, while on work release from the Department of Corrections in Peoria, Choisser escaped along with a fellow prisoner, Melvin Thomas.

The two men kidnapped a woman employee, took her car to Fulton County, where they raped her, and then drove with her to Tennessee, where they were finally arrested. Numerous charges were filed in several jurisdictions, and the two defendants entered guilty pleas and received the same sentences in every case.

In the United States District Court, Choisser and Thomas were each sentenced to 15 years in Federal prison for kidnapping and five years for transportation of a stolen vehicle. The two sentences were to be served concurrently.

In the circuit court of Fulton County, both were given a 10-year sentence for rape, with the sentences to be served in Federal prison concurrently with their Federal sentences and concurrently with any existing State court sentence in effect. In the circuit court of Peoria County, defendants were each sentenced to 10 years for aggravated kidnapping and six years for escape, both sentences to be served in Federal prison. The kidnapping sentences were to run concurrently to all previous State and Federal sentences, and the escape sentence was to run consecutively to the Saline County sentences Choisser was serving at the time of his escape and the Knox County sentences Thomas was serving when he escaped.

When defendants had completed their sentences in Federal prison, the Department of Corrections sought to have them returned to an Illinois prison to complete their original sentences and the escape sentences which followed. In both cases, the circuit court of Peoria County ruled that those sentences were served in Federal prison, and in both cases the Department of Corrections appealed.

On appeal in Thomas v. Greer (1989), 187 Ill. App. 3d 119, 543 N.E.2d 339, we held that the circuit court of Peoria County lacked authority to modify the original Knox County sentence and that the escape sentence was required to be served consecutive to the original sentence. Hence, Thomas could not and did not serve those sentences in Federal prison.

Choisser admits that he is raising the same issues of law as were presented in the case of Thomas v. Greer. Plainly, our prior decision is controlling" in the case at bar. The order of the circuit court of Peoria County granting Choisser’s mandamus petition is reversed.

In a petition for rehearing filed in this court, Choisser requested that this cause be remanded to the trial court for consideration of his request for post-conviction relief. Choisser argues that his guilty plea to the escape charge was based upon misrepresentations by trial defense counsel, the prosecutor and the Peoria trial judge that the sentence for escape would be concurrent to others, not consecutive. Consequently, he argues, his plea was not voluntary and may be withdrawn. (See People v. Matthews (1975), 60 Ill. 2d 123, 324 N.E.2d 396; People v. Walston (1967), 38 Ill. 2d 39, 230 N.E.2d 233.) Director Lane insists that Choisser waived this issue by not raising it on appeal until his petition for rehearing. The doctrine of waiver contained in Supreme Court Rules 341(e)(7) and (f) (113 Ill. 2d R. 341) has been held not to deprive a reviewing court of jurisdiction. (People v. Montgomery (1974), 18 Ill. App. 3d 828, 310 N.E.2d 760.) In our discretion, we choose to remand this cause to the circuit court of Peoria County, consistent with Thomas v. Greer, for consideration of Choisser’s request for post-conviction relief.

Reversed and remanded.

WOMBACHER, J., concurs.

JUSTICE STOUDER,

dissenting:

I agree the facts are indistinguishable from those of Thomas v. Greer (1989), 187 Ill. App. 3d 119. Since I did not agree with the reasoning or result in the Thomas case, I dissent in this case for the same reasons set forth in my dissent in the Thomas case.

        Thomas v. Greer was erroneously published in the Illinois Appellate Advance Sheets on October 18, 1989, prior to modification upon rehearing filed March 30, 1990.


text:
    JESSE OWENS, Petitioner-Appellant, v. MICHAEL P. LANE, Director of the Illinois Department of Corrections, et al., Respondents-Appellees.
    Third District
    No. 3—89—0406
    Opinion filed April 5, 1990.

      Sharon G. Kramer and Julius Lucius Echeles, both of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen, Assistant Attorney General, of Chicago, and Douglas K. Smith, Assistant Attorney General, of Springfield, of counsel), for appellees.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Petitioner sought, via habeas corpus, a judicial order to require the Illinois Department of Corrections (IDOC) to recalculate his proposed release date. The trial court dismissed the petition and denied the petitioner’s motion for reconsideration. The petitioner appeals.

The facts are not in dispute. On June 25, 1966, the petitioner was convicted in Cook County of aggravated kidnapping and armed robbery. The petitioner was sentenced to concurrent terms of 30- to 40-year terms of imprisonment. On April 24, 1975, the petitioner escaped from Stateville Correctional Facility. On May 1, 1975, the petitioner was captured and later sentenced to a consecutive term of one to two years’ imprisonment, to be served after expiration of the petitioner’s original sentence. On November 23, 1979, the petitioner was granted a two-year prerelease parole. On May 23, 1980, the petitioner’s parole officer caused a warrant to be issued for petitioner’s arrest, charging that he had absconded from his parole.

During the spring of 1981 the petitioner was charged by the Joliet police department with murder. On February 5, 1984, the petitioner was apprehended. He was tried on August 2, 1984, and acquitted of the murder charge. On September 22, 1984, the petitioner was again released on parole.

On July 9, 1985, the petitioner was arrested and charged with aggravated battery and knowing possession of a stolen motor vehicle. On December 16, 1985, the Illinois Prisoner Review Board revoked the petitioner’s parole, making it retroactive to July 9, 1985. In October 1986, the petitioner was found guilty of aggravated battery and sentenced to four years in prison. The petitioner later pled guilty to knowing possession of a stolen motor vehicle and was sentenced to another four-year term to run concurrently with the four-year term for aggravated battery. From April 3, 1987, to the present the petitioner has been incarcerated with the IDOC.

One issue is raised on appeal. The petitioner alleges that the circuit court erred in denying the petition because he adequately demonstrated that the respondents incorrectly calculated his projected release date by refusing to credit him with time successfully spent on parole.

We note at the outset that the petitioner does not claim that he is entitled to immediate release from custody, but rather that the respondent has miscalculated his release date. The petitioner seeks to employ habeas corpus as a vehicle to have this court review the actions of the respondent.

We are of the opinion that habeas corpus is not the proper remedy in this case. In 1987 this court stated, “[wjhere the original judgment of conviction was not void, the petitioner’s maximum prison term had not expired, and nothing had occurred to warrant the petitioner’s immediate discharge, the trial court is without jurisdiction to grant habeas corpus relief.” (People ex rel. Stringer v. Prisoner Review Board (1987), 163 Ill. App. 3d 1100, 1102, 517 N.E.2d 283.) In the instant case, the petitioner has failed to establish any of the three factors necessary for habeas corpus relief.

Although the petitioner cites People ex rel. Yoder v. Hardy (1983), 116 Ill. App. 3d 489, 451 N.E.2d 965, as authority for the proposition that habeas corpus is the proper remedy where the relief would entitle the petitioner to earlier, though not immediate, discharge, we find fault with the Yoder decision. The court in Yoder seems to have assumed that habeas corpus was the proper remedy, citing Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 413 N.E.2d 523.

A careful reading of Taylor, however, reveals that the petitioner in that case argued the propriety of granting relief either by means of habeas corpus or mandamus. The court in Taylor used mandamus as a remedy to compel prison officials to follow their internal rules. Therefore, Taylor does not stand for the proposition that habeas corpus may be used solely to reduce a sentence where immediate release is not possible and Yoder, then, is not persuasive or authoritative.

In the instant case, the petitioner requested only habeas corpus relief. He did not raise his request for relief in terms of either habeas corpus or mandamus relief. It is apparent after a reading of Stringer and Taylor that the relief sought by the petitioner cannot be granted through habeas corpus. If any relief is to be afforded, i.e., if this court were to find that the respondents were not following statutory law or administrative regulations, the proper remedy would be one of mandamus.

Section 10—121 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 10—121) provides:

“§10 — 121. Seeking wrong remedy not fatal. Where relief is sought under Article X of this Act and the court determines, on motion directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle the plaintiff to relief but that the plaintiff has sought the wrong remedy, the court shall permit the pleadings to be amended, on just and reasonable terms, and the court shall grant the relief to which the plaintiff is entitled on the amended pleadings or upon the evidence.”

This type of case is not uncommon. We elect, in this case, to review the evidence and consider the arguments of the parties in an effort to clarify the calculation method utilized by the IDOC.

The IDOC calculates sentences by projecting a maximum out date and performing operations on that out date. Each day a prisoner serves in actual custody or lawfully on parole places him one day closer to the maximum out date.

When a prisoner is recommitted to prison after an unsuccessful attempt at parole, section 3 — 3—9(a)(3)(i)(A) of the Uniform Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—9(a)(3)(i)(A)) provides, in pertinent part:

“[t]he recommitment shall be for any portion of the imposed maximum term of imprisonment or confinement which had not been served at the time of parole and the parole term, less the time elapsed between the parole of the person and the commission of the violation for which parole was revoked.”

Pursuant to this statute, instructions for calculating the sentence of a recommitted parole violator are set out in IDOC Administrative Directive 01.07.446. This directive includes a calculation worksheet (see appendix A) on which a sentence is calculated by filling in the appropriate dates and adding or subtracting as directed.

In step 1(A), the amount of time the petitioner lost as a parole violator is calculated by subtracting the date the parole violation warrant was issued (May 23, 1980) from the date the petitioner was back in custody in the Will County jail (February 5, 1984). The petitioner, therefore, spent 3 years 8 months and 12 days as a parole violator.

In steps 1(B) and (C) additional parole violations may be calculated. In the instant case, the petitioner lost no time as a result of his second parole violation because he was placed in custody the day the violation occurred (July 9, 1985). Step 2, then, totals steps 1(A), (B) and (C). In the instant case, since step 1(B) was 0, the petitioner’s total time lost as a parole violator was a total of 3 years 8 months and 12 days.

In step 3, line 1, the original custody date is recorded. In the instant case this date is June 25, 1966, the date petitioner began serving his original sentences. Next, the maximum sentence less statutory good time (SGT) is recorded. The petitioner’s aggregate maximum sentence is 42 years — 40 years for armed robbery and aggravated kidnaping in 1966 and 2 years consecutive for escape in 1975. SGT reduces this sentence to 22 years 3 months. (See 20 Ill. Adm. Code §107.120 (1985) (appendix B).) Adding 22 years 3 months to June 25, 1966, places the projected maximum out date at September 25, 1988. This date would be recorded at line 3 of step 3 of the worksheet.

Next, previous time lost is added to the maximum out date. In 1975 the petitioner escaped from prison for seven days. These seven days were not served and cannot count toward completion of the sentence. Therefore, seven days are added to the maximum out date. Thus, October 2, 1988, would be recorded at line 5 of step 3.

Next, because the petitioner violated parole and was reincarcerated after his second parole violation, his statutory parole term is added to the maximum period of confinement. The petitioner’s statutory parole term is two years. Two years added to October 2, 1988, is October 2, 1990. This would be recorded at line 7 of step 3.

Lastly, the time petitioner lost as a parole violator (3 years 8 months and 12 days) must be added to the maximum out date. This time was not lawfully “served” on parole and cannot be credited toward completion of the sentence. The time is added to the maximum out date so that the petitioner is no closer to discharge when he is recaptured than when he absconded. Adding this time to the previous maximum places the new maximum out date at June 14, 1994. This date would be recorded at line 9 of step 3.

From this date, June 14, 1994, further calculations for meritorious good time and compensatory good time are performed on a monthly basis. These calculations are done every month on a separate sheet. As these subtractions are made from the maximum out date, they are also made from the new parole date, the new parole date being six months before the maximum out date. Ill. Rev. Stat. 1987, ch. 38, par. 1003-3-10(b)(l).

The petitioner points to the language of section 3—3—9(a)(3)(i)(A) (Ill. Rev. Stat. 1987, ch. 38, par. 1003-3-9(a)(3)(i)(A)) and argues that the time he spent lawfully on parole from November 23, 1979, through May 23, 1980, and September 22, 1984, through July 9, 1985, was never subtracted from his maximum out date. As a result, the petitioner claims that he is being denied approximately 15 months 17 days off his maximum out date.

While it is true that under the IDOC’s method of calculating a prisoner’s discharge date, time successfully spent on parole is not subtracted from the discharge date, it is nonetheless accounted for because it is counted toward the discharge date. Every day that a prisoner is successfully on parole counts toward his eventual discharge from custody. Only when a prisoner absconds from parole or escapes from imprisonment is time added to the out date. The calculation employed by the IDOC, then, is just, fair, reasonable, and conforms with the requirements of the statute. Accordingly, we are of the opinion that the petitioner’s claim is without merit, and we affirm the trial court’s dismissal of his petition.

The decision of the circuit court of Knox County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    WILLIAM DWIGHT HART, d/b/a Double HH Farms, Plaintiff-Appellee, v. STEVEN MEREDITH, Defendant-Appellant.
    Third District
    No. 3—89—0323
    Opinion filed April 4, 1990.
    Flack, Kwacala, Murphy & Ashenhurst, of Macomb (A. Anthony Ashenhurst, of counsel), for appellant.
    March, McMillan & Stone, P.C., of Macomb (John D. McMillan, of counsel), for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

This action was brought to recover damages occasioned by the defendant’s bull jumping a division fence. Summary judgment was granted in favor of the plaintiff on the issue of liability. The defendant appeals. We affirm.

The defendant and the plaintiff are occupiers of adjoining farm properties which are used by each party for pasture grazing cattle. In September or October, 1986, the defendant constructed a division line fence between the two properties. The plaintiff was responsible for maintaining the west half of the fence, while the defendant was responsible for maintaining the east half of the fence.

On or about June 20, 1987, a bull owned by the defendant jumped over the east part of the division line fence. The bull “mashed” down part of the fence as it jumped over the fence. The bull then bred two of the plaintiffs purebred Angus cows, causing the plaintiff to lose the services of the cows in the plaintiff’s embryo transplant breeding operation.

The plaintiff brought suit against the defendant, alleging that section 20 of “An Act to revise the law in relation to fences” (the Illinois Fence Law) (Ill. Rev. Stat. 1987, ch. 54, par. 1 et seq.) imposes strict liability upon a landowner when his animal jumps his portion of a lawful division fence and causes damage to the animals of an adjoining landowner. The defendant countered that the Illinois Fence Law and the Illinois Domestic Animals Running at Large Act (Animal Act) (Ill. Rev. Stat. 1987, ch. 8, par. 1 et seq.) should be construed in pari materia so as to hold the animal owner liable only if his portion of the division fence was not good or sufficient, or, in other words, was not a reasonable restraint.

The trial court granted summary judgment in favor of the plaintiff on the issue of liability. The court found that the Animal Act does not require the plaintiff to show negligence on the part of the defendant under section 20 of the Fence Law and does not relieve the defendant of the statutory liability imposed by section 20 of the Fence Law. The trial court made a finding pursuant to Illinois Supreme Court Rule 308 (107 Ill. 2d R. 308), and the defendant appeals.

The sole issue on appeal is whether the Illinois Fence Law imposes strict liability upon a landowner when his animal jumps his portion of a lawful division fence, causing damage to the animals of the adjoining landowner.

The Illinois Fence Law, section 20 (Ill. Rev. Stat. 1987, ch. 54, par. 20) states:

“If any *** neat cattle *** or other domestic animals, shall break into any person’s inclosure, the fence being good and sufficient, the owner of such animal *** shall be liable, in a civil action, to make good all damages to the owner *** of the inclosure.”

In the instant case, it is undisputed that the fence was “good and sufficient.” The defendant, however, seeks to avoid the result mandated by the Illinois Fence Law. The defendant first contends that the bull did not “break” into the enclosure, and, therefore, on its face, the Fence Law does not apply to the instant case. The defendant apparently believes that for an animal to break into an enclosure, the animal must go through, rather than over, a fence. Because the bull didn’t go through the enclosure, the defendant argues the Fence Law doesn’t apply to this situation. Instead, the Illinois Animal Act applies. This act imposes a negligence standard, as differentiated from the Fence Law’s absolute liability language.

The defendant, however, overlooks the fact that the word “break” has many definitions. Webster’s Third International Dictionary 271 (1976), defines “break” as “to force entry into” and “enter by force or violence.” Clearly the bull forced its entry into the plaintiff’s property. This is demonstrated by the fact that the bull “mashed” down part of the fence as it entered the plaintiff’s pasture. We are of the opinion that the bull did break into the enclosure.

Second, the defendant argues that even if the bull’s action could be construed as a breaking, reliance on McKee v. Trisler (1924), 311 Ill. 536, 143 N.E. 69, is misplaced due to changes in both the Fence Law and the Animal Act. The defendant maintains that McKee was decided when strict liability was the common law. Since then, the Animal Act was amended and now imposes a negligence standard for holding owners of animals liable when their animals run at large.

The defendant is correct that there has been a change in the law. The adoption of section 1 of the Animal Act does signify a change from the law as it existed at the time of McKee. The defendant fails to note the additional sentence added to the Fence Law subsequent to the McKee decision. That sentence provides:

“This Section shall not be construed to require such fence, in order to maintain an action for injuries done by animals running at large contrary to law.” (Ill. Rev. Stat. 1987, ch. 54, par. 20.)

We believe this sentence was added to confirm that a landowner could hold a livestock owner liable under section 1 of the Animal Act for damages caused by animals running at large, even if he chose to leave his property unfenced.

We are of the opinion that there can only be one conclusion when the two statutes are read in pari materia. That is, that a livestock owner is liable under the Animal Act if he negligently allows his livestock to run at large, regardless of the existence of any fence around the property of the damaged party and that a livestock owner is strictly liable under the Fence Law if his livestock enters a landowner’s property enclosed with a good and sufficient fence.

For the reasons listed above, the decision of the circuit court of McDonough County is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY W. FREEMAN, Defendant-Appellant.
    Third District
    No. 3—88—0482
    Opinion filed April 4, 1990.
    Rehearing denied May 10, 1990.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.

      John A. Barra, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Terry Freeman, was convicted of unlawful use of a weapon for knowingly carrying a handgun in a motor vehicle when he was not on his own land, his abode, or his fixed place of business. (Ill. Rev. Stat. 1987, ch. 38, par. 24—1(a)(4).) The trial court sentenced the defendant to one day in the county jail and ordered the defendant to pay costs of $78. The defendant appeals.

The record reveals that in the early morning hours of April 13, 1988, City of Peoria police officer Jeffrey Kice (Kice) stopped the defendant’s car for failing to have a functioning license plate light. Approaching the defendant’s car, Kice noticed the defendant making certain movements which led him to believe that the defendant was placing something in his pants pocket. Upon learning the defendant had no driver’s license, Kice arrested and searched the defendant. A pistol cylinder was found in the defendant’s left pants pocket. The defendant informed Kice that the remainder of the pistol was in the car. Kice then searched the car and located the pistol under a cardboard box on the front seat. At trial, Kice assembled the two parts of the pistol in two to six seconds.

The defendant testified that it was impossible to assemble the two parts within a few seconds and that the pistol, without its cylinder, could not be fired. The defendant stated that he separated the pistol from the cylinder in order to make the pistol inaccessible and that he transports the pistol out of fear of it being stolen.

The trial court found the defendant guilty. The court explained that it didn’t believe Kice’s testimony that the defendant disassembled the two parts upon Kice’s approach. The court determined, however, that the defendant violated the unlawful-use-of-weapons statute because the pistol was in the defendant’s immediate control.

The threshold question for this court is whether the cylinderless pistol, located under a cardboard box on the car’s front seat, was “broken down in a nonfunctioning state or not immediately accessible” to the defendant within the meaning of the statutory exemption to the crime of unlawful use of weapons. (Ill. Rev. Stat. 1987, ch. 38, par. 24—2(b)(4).) We conclude the circumstances presented here fall within this exemption.

Section 24—1(a)(4) of the Criminal Code of 1961 does not apply to transportation of weapons broken down in a nonfunctioning state or not immediately accessible. (Ill. Rev. Stat. 1987, ch. 38, par. 24—2(b)(4).) According to the statute, it is the defendant’s burden to prove by a preponderance of the evidence that he is entitled to the exemption. Ill. Rev. Stat. 1987, ch. 38, par. 24—2(h).

The defendant claims that because he removed the pistol’s cylinder prior to transporting it, he met his burden to prove, by a preponderance of the evidence, that he is entitled to the exemption. In People v. Worlds (1980), 80 Ill. App. 3d 628, 400 N.E.2d 85, the court determined that a gun was broken down in a nonfunctioning state where the weapon was rusted and missing a handle. Similarly, in the instant case, the pistol was also missing an essential part: the cylinder.

Furthermore, we find the analysis of the aforementioned exemption in People v. Strompolis (1971), 2 Ill. App. 3d 289, 276 N.E.2d 464, instructive. There, although the defendant was found guilty of unlawful use of weapons, the court acknowledged that removal of a part from a gun, making the gun nonfunctioning, exempts one from conviction under the unlawful-use-of-weapons statute. The court noted the defendant testified that a bolt was removed from the gun thereby making the gun inoperable. If the defendant’s testimony was believed by the trier of fact, the court emphasized, he would not have been convicted of unlawful use of weapons because the gun would have been broken down in a nonfunctioning state.

Here, in contrast to Strompolis, there is no dispute that the pistol, when found, could not be fired. Kice testified that, in his opinion, the defendant disassembled the pistol upon his approach. The trial court didn’t believe Kice’s testimony that the defendant had disassembled the pistol upon Kice’s approach. The trial court, however, found the defendant guilty due to the court’s belief that the pistol was within the defendant’s immediate control.

In our view, the pistol in the instant case was broken down, was not in immediate operating condition, and was not immediately accessible to the defendant. The broken down, cylinderless pistol could not be used as a functioning weapon at the time of the defendant’s arrest. The words “broken down” refer to a disassembled weapon. (People v. Worlds (1980), 80 Ill. App. 3d 628, 400 N.E.2d 85, citing People v. Strompolis (1971), 2 Ill. App. 3d 289, 276 N.E.2d 464.) Therefore, if a weapon is broken down and hence nonfunctioning, it is by its very nature not immediately accessible. In order for this pistol to be immediately accessible, it must have been immediately capable of being fired. It was not. The fact that the pistol could be functional when the two parts were placed together is not dispositive.

The aforementioned exemption to the unlawful-use-of-weapons statute is clear. If a person is transporting a weapon which is broken down and nonfunctioning or not immediately accessible, like the pistol in the instant case, such persons are not violating the statute. We conclude the defendant met his burden of proving by a preponderance of the evidence that this exemption applies in the instant case. A broken down, cylinderless pistol, incapable of being fired, not in immediate operating condition, and not immediately accessible to the defendant, is not a deadly weapon within the purview of the unlawful-use-of-weapons statute.

For these reasons we conclude the defendant’s conviction for unlawful use of weapons must be reversed.

Judgment reversed.

HEIPLE, P.J., and SCOTT, J., concur.