source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    PASCHEN CONTRACTORS, INC., et al., Plaintiffs-Appellees, v. ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Defendant-Appellant.
    Second District
    No. 2 — 91—0619
    Opinion filed April 9, 1992.

      Michael J. Hayes, Patrick S. Coffey, and Timothy G. McDermott, all of Gardner, Carton & Douglas, of Chicago, for appellant.

      James R. Schirott and Phillip A. Luetkehans, both of Schirott & Associates, P.C., of Itasca, and John C. O’Rourke and Michael A. Gilman, both of O’Brien, O’Rourke, Hogan & McNulty, of Chicago, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Paschen Contractors, Inc., and American Environmental Construction Company, filed suit against the defendant, Illinois State Toll Highway Authority (ISTHA), to recover damages allegedly incurred by them during the construction of certain segments of the North-South Tollway. The defendant appeals from the trial court’s denial of its petition for change of venue as untimely. On appeal, ISTHA argues it was entitled to a change of venue as a matter of right based on the prejudice of the trial judge. We affirm.

This case presents a unique set of facts. The plaintiffs filed this action against ISTHA on December 6, 1989. Because the construction of the tollway was still ongoing, the parties entered into an extended period of settlement negotiations. On January 4, 1990, the parties entered into a written agreement providing that ISTHA would not be required to file an appearance or responsive pleading to the action pending an attempted resolution of the claims. The agreement also provided that ISTHA would not be prejudiced in any manner in failing to file an appearance or responsive pleading.

Pursuant to the agreement, the plaintiffs resumed construction on the tollway. The parties engaged in settlement negotiations over the next several months, resulting in the settlement of certain of the plaintiffs’ claims on June 18, 1990. During the settlement negotiations, the trial court held a number of status hearings and pretrial conferences to keep abreast of the status of the negotiations. Between April 1990 and February 1991 the trial court held some 15 status hearings and pretrial conferences. ISTHA claims its attorney attended two of these hearings/conferences and then only as an observer. On these two occasions, after observing the status hearing held in open court, ISTHA’s attorney agreed to attend off-the-record conferences in the trial judge’s chambers. However, there is no transcript of what occurred at these proceedings.

By February 1991, the parties were unable to resolve any of the remaining claims against ISTHA. On February 11, 1991, counsel for ISTHA filed their written appearances. On February 26, 1991, ISTHA filed a petition for change of venue pursuant to section 2— 1001(a)(2)) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2)) based on the alleged prejudice of the trial judge and filed sworn affidavits to that effect. In response, the plaintiffs filed affidavits in opposition to the petition which stated in part:

“Following the filing of [this] case, there have been in excess of 15 status hearings, some which took the form of pretrial conferences. These status/pretrial hearings were held in this court’s chambers and were attended on many occasions by attorneys for the Illinois State Toll Highway Authority. The discussions with your honor included matters pertaining to the substance of plaintiff’s complaint, including the ISTHA’s right to assess liquidated damages, substantial completion, delay damages caused to Paschen/ American arising from ISTHA’s failure to acquire in a timely fashion the rights of way for the prosecution of the contract work, subcontractor liens, addition of subcontractors to the case, discovery depositions and possible methods of shortening the case. Statements and comments made at these hearings disclosed this court’s attitude on the matters raised.”

ISTHA responded with another affidavit claiming the matters discussed at the two nonrecord status/pretrial conferences involved general discussions and that the court did not know the facts or merits of the case. ISTHA also claimed that the trial court never ruled on any substantive matters or made any statement as to any probable ruling or resolution of any substantive matter.

On March 22, 1991, at the initial hearing on the petition, the trial court took issue with ISTHA’s affidavit. The affiant, attorney Malcolm Erickson, was not present in court. The trial judge stated that the affidavit contained statements that were incorrect. The judge stated that he had been informed of the agreement between the parties that ISTHA would not be prejudiced during the time during which negotiations were being conducted by not having timely filed an appearance and that, if the negotiations fell through, ISTHA would be able to file an appearance and an answer without being found in default. Further, the judge stated that ISTHA’s representative was present at some of the conferences where the law regarding the issues was discussed and that he had given opinions and conclusions as to what he thought the appropriate law was.

ISTHA argued that it was not a party to the case during the hearings/conferences and, therefore, it could not have filed for a change of venue any earlier than it did. The court responded that ISTHA’s attorney had participated in the conferences in order to effectuate a settlement between the parties. He was representing his client despite never having filed an appearance, and he would not be permitted to “have it both ways” by now asserting his absolute right to a change of venue because ISTHA was technically not a party to the case. He found the discussions at the conferences resulted in substantial rulings on his part and denied the petition for change of venue. The matter was certified for interlocutory review on May 21, 1991, pursuant to Supreme Court Rule 308(a). 134 Ill. 2d R. 308(a).

The issue in this case is whether the trial judge erred in denying ISTHA’s petition for a change of venue as untimely where it participated in pretrial conferences without filing an appearance in the case. On appeal, ISTHA argues it had an absolute right to petition for a change of venue and the trial judge erred in denying this right because: (1) the trial judge had not made a ruling on a substantial matter so as to preclude a change of venue; (2) the trial court was not permitted to rely on his recollections of off-the-record conferences to deny ISTHA’s petition; and (3) the plaintiffs’ counteraffidavits were improper and did not preclude a change of venue. We disagree.

The question before us is whether there has been a ruling on a substantial matter which would preclude ISTHA’s petition for a change of venue. This case poses a unique set of facts in that ISTHA had not yet filed its appearance before the court although it had participated in pretrial hearings. This unique situation is aggravated by the fact that the pretrial conferences were not recorded. ISTHA argues the trial judge is prohibited from relying on his recollections in determining whether he had made “substantial rulings.” We disagree.

ISTHA bases its argument on Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425. Before Hartgraves, Supreme Court Rule 329 was generally interpreted to mean that an amendment to the record could not be based upon witness memory, the recollection of a judge, or supporting affidavits without the production of some note or document contained in the record or minutes of the judge. (Ill. Ann. Stat., ch. 110A, par. 329, Historical & Practice Notes (Smith-Hurd 1985).) Our supreme court’s decision in Hartgraves limited this restriction to situations where the amendments contradict or impeach the clear contents of the record. (People v. Whitehead (1980), 87 Ill. App. 3d 885, 889.) In Hartgraves, the court concluded that any corrections or additions to the record which contradict the clear and unambiguous contents of the record must be supported by something other than the “clear memory” of the trial judge. (Hartgraves, 63 Ill. 2d at 432.) However, Hartgraves left open the question of whether an amendment or addition to the record could be based on “clear memory,” when that clear memory did not contradict or impeach the clear contents of the record. People v. Brownstein (1982), 105 Ill. App. 3d 459, 462.

The amendment of the record without some documentation is permissible where that amendment supplies an omission in the record and does not impeach or contradict its contents. See People v. Chitwood (1977), 67 Ill. 2d 443 (where record failed to reflect defendant’s waiver of a jury trial and the State was permitted to file an affidavit to correct this omission in the record); People v. Whitehead, 87 Ill. App. 3d 885 (where the assistant State’s Attorney and the trial judge recalled the defendant’s waiver of his right to a jury trial in open court and the defendant disputed the waiver, the trial judge correctly permitted the State to file an affidavit as to its recollection since it supplied an omission in the record and did not impeach or contradict it); People v. Brownstein, 105 Ill. App. 3d 459 (where the report of proceedings was silent as to defendant’s waiver of his right to a jury trial, but the trial judge stated that he had a personal recollection of the defendant’s waiver, the trial judge was permitted to rely on his recollection because his comments did not contradict the record, but in fact supported the docket entry regarding the defendant’s waiver); Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554 (where the trial judge properly denied the plaintiff’s motion for a change of venue based on his recollection of a June 2, 1983, hearing in which he made a substantial ruling or made statements on his position on the merits of the case where his recollection was contained in a memorandum dated June 30, 1983, and no transcript of the June 2 hearing was submitted as part of the record and no contradiction of the court’s recollection appeared in the record).

In the present case, no transcript of the pretrial conferences is available. The record is devoid of any information concerning the substance of the conferences attended by ISTHA’s representative. The trial judge recalls stating his opinions on points of law, and the plaintiff’s affidavits support this recollection. The trial judge’s recollection does not contradict or impeach the record, but rather supplies an omission to its contents. Therefore, it was permissible for the trial judge to rely on his own recollections regarding the substance of the pretrial conferences. While ISTHA’s trial counsel filed affidavits asserting otherwise, the resolution of any conflicts in the evidence is the responsibility of the trier of fact, and we will not substitute our judgment for that of the trial court. (People v. Brownstein, 105 Ill. App. 3d at 463; People v. Villalobos (1979), 78 Ill. App. 3d 6, 11-12.) As a practical matter, such supplementation aids this court in the complete consideration of the merits of this case on appeal. People v. Miller (1989), 190 Ill. App. 3d 981, 989.

The right to a change of venue is absolute where a motion alleging the prejudice of the judge is filed before trial or hearing or before the judge presiding in the case has made any substantial ruling. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1001(a)(2); In re Dominique F. (1991), 145 Ill. 2d 311.) The reasoning behind this principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion. The corollary to this principle, however, is that a petition for a change of venue must be brought at the earliest practical moment in order to prohibit a litigant from seeking a change of venue only after he has formed an opinion that the judge may be unfavorably disposed toward his or her cause. (In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530-31; Hader v. St. Louis Southwestern Ry. Co. (1991), 207 Ill. App. 3d 1001, 1007; Becker v. R.E. Cooper Corp. (1990), 193 Ill. App. 3d 459, 462.) The law is clear that a party should not be free to “judge shop” until he or she finds a jurist who is favorably disposed to his or her cause of action. Hader, 207 Ill. App. 3d at 1007; see also Becker, 193 Ill. App. 3d at 462; In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 367; In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 637.

ISTHA argues that because it did not file its appearance in the action until February 11, 1991, it filed its February 26, 1991, petition for a change of venue at the earliest practical moment. However, it is well settled that any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction over his or her person. (Mauro v. Peterson (1984), 122 Ill. App. 3d 466, 468.) ISTHA’s representative voluntarily attended pretrial conferences at which the issues were discussed, and the trial judge gave opinions and conclusions as to the law regarding those issues. This action recognized the case was in court and amounts to a general appearance on the part of ISTHA.

ISTHA argues no substantial ruling was made by the trial judge before it filed its petition for a change of venue. It cites Fennema v. Joyce (1972), 6 Ill. App. 3d 108, and Becker v. R.E. Cooper Corp. (193 Ill. App. 3d 459) for the proposition that a petition for a change of venue filed immediately subsequent to a pretrial conference is not untimely. However, both of those courts noted the potential for abuse in a rule which would allow litigants to test the disposition of a trial judge during pretrial while retaining an absolute right to a change of venue (Fennema, 6 Ill. App. 3d at 111; Becker, 193 Ill. App. 3d at 464) and expressly stated they were not prepared to hold that a pretrial conference could never render a motion for a change of venue untimely. In both cases, the courts found that the parties petitioning for the change of venue were not able to glean the attitude of the trial judge at the pretrial conferences, and, thus, their motions for a change of venue were not untimely.

Accordingly, the issue before this court is whether the trial judge in this case made a substantial ruling before ISTHA filed its petition. Illinois courts have found petitions for change of venue untimely when filed after the petitioning party’s participation in discussions concerning the matters at issue during which the judge indicates his position on at least one of the issues. (See In re Custody of Peterson (1984), 129 Ill. App. 3d 887 (where grandparents seeking custody of their granddaughter were properly denied a change of venue after they were able to determine the attitude of the trial judge after he indicated that he believed the law favored the natural father over the grandparents); In re Estate of Roselli (1979), 70 Ill. App. 3d 116 (where the trial judge properly denied plaintiff’s petition for change of venue as untimely after the plaintiff was able to discern the judge’s attitude concerning certain issues during a pretrial conference); Joseph v. Joseph (1973), 15 Ill. App. 3d 714 (where plaintiff’s petition for change of venue was properly deemed untimely because it was filed after the plaintiff had engaged in lengthy discussions on the issues with the judge at which time the judge’s position on the issues became apparent).) We find the facts of these cases similar to the facts in the present case.

In the case at bar, ISTHA voluntarily participated in discussions regarding the issues of the case with the trial judge. During these pretrial conferences, the trial judge stated his position regarding the law as applied to certain matters at issue in the case. Because ISTHA had such a unique opportunity to determine the thinking of the trial judge, we find, under these facts, the subsequent request for a change of venue was untimely and amounts to an attempt by IS-THA to “judge shop.”

We do not find it necessary to address ISTHA’s argument that the plaintiffs’ counteraffidavits were improper because ISTHA did not sufficiently object to the filing of these affidavits in the trial court. ISTHA merely suggested the affidavits were of questionable value under the circumstances. An objection to evidence must be timely made and must specify the reasons therefor. (Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 472.) However, were we to consider this argument, we would conclude the affidavits were permissible.

ISTHA argues that the affidavits filed by the plaintiffs were impermissible based on Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100. That case provides, “[w]here a change of venue is sought on grounds of local prejudice or the undue influence of the adverse party, the adverse party may controvert the petition by counter-affidavits [sic] but where a change of venue is sought on grounds of prejudice of the judge counter-affidavits [sic] are not permissible.” (Emphasis in original.) Anderson, 25 Ill. App. 3d at 102 n.1.

The affidavits filed by the plaintiffs in this case did not controvert the defendant’s petition for change of venue. Rather, the counteraffidavits concerned what transpired during the pretrial conferences. These affidavits were only necessary because of the unique circumstances presented by this case because there was no report of proceedings from which to determine whether a substantial ruling had been made. Under these circumstances, the affidavits were permissible.

We affirm the order of the circuit court of Du Page County denying ISTHA’s petition for a change of venue.

Affirmed.

INGLIS, P.J., and NICKELS, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE SCOTT, Defendant-Appellant.
    Third District
    No. 3 — 90—0826
    Opinion filed February 13, 1992.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, George Scott, appeals his concurrent eight-year sentences for two counts of reckless homicide (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3). We affirm.

The record shows Scott was charged with two counts of reckless homicide and one count of driving under the influence of alcohol (DUI). He entered blind pleas of guilty to the charges. At the guilty plea hearing, the prosecutor presented the factual basis for the pleas. He stated the evidence would show that on November 20, 1989, Scott was seen driving erratically in the New Lenox area. At one point, Scott nearly caused an accident, and at an intersection he spun his tires. Around 3:27 p.m., Scott was seen on Cedar Road, where construction work was being done at the intersection of that road and Hlinois Highway. When Scott came to the intersection, he drove through the barricades. His car struck three men before coming to a stop about 200 feet past the intersection. The car’s brake lights never came on during the accident.

Officer Klier would testify that while he was at the scene of the accident, he noted Scott had slurred speech, bloodshot eyes, and the odor of alcohol on his breath. The assistant coroner would testify that two victims were pronounced dead at the scene. Another victim, Howard Hamilton, was hospitalized for SVa weeks and was still confined to a wheelchair at the time of the sentencing hearing.

According to the factual basis, after Scott was taken to the hospital, he was then given a blood test. The result showed the alcohol content of his blood was .197. This result is nearly twice the legal blood-alcohol content. A coroner’s physician would testify Scott was under the influence of alcohol at the time of the accident. In the physician’s opinion, the alcohol content of Scott’s blood would have caused a delay in his reaction time. The witness would also state the two victims died of head injuries stemming from blunt trauma.

The trial court accepted the guilty pleas and entered convictions on all three counts. The cause then proceeded to sentencing. According to the presentence report, the 33-year-old defendant had been previously convicted of five traffic offenses and one count of disorderly conduct. He had received court supervision for each offense. Additionally, over the past 15 years Scott had worked as a plumber, printer, shipping clerk, and food service worker. He had not worked in 1989. He also told a counselor he had not worked from May of 1989 to May of 1990.

The report further indicated Scott had a history of alcohol and drug abuse. He eventually sought treatment for his problems. However, on November 6, 1989, he was expelled from a chemical dependency program for using cocaine while out on a therapeutic pass. He entered another program, but soon left against medical advice and resumed using alcohol. On May 24, 1990, he showed up for an appointment at an alcoholism counseling center after he had been drinking. When he was confronted by the staff, he left the facility. He later successfully completed 77 days in a treatment program. Scott’s counselor said Scott needed long-term treatment in a structured environment in order to remain sober.

At the sentencing hearing, three relatives of the deceased victims expressed their grief over the incident. Howard Hamilton testified his injuries from the accident included broken legs, a collapsed lung, a broken shoulder blade, and a head injury that required surgery in order to monitor the pressure on his brain.

Officer Dennis Klier testified he interviewed a number of occurrence witnesses at the scene. He was told Scott’s car accelerated during the accident. When Officer Klier tried to speak to Scott at the scene, Scott screamed and used obscenities. Scott also kicked, swung his arms, and threatened to beat up Officer Klier. After Scott was taken to the hospital, he used profanity and made an obscene gesture at Klier. Eventually, Scott calmed down and cooperated with Klier.

During closing arguments, the prosecutor noted Scott was eligible for an extended term because more than one person had died in the incident (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(b)(3), 1005— 8 — 2(a)(5)). Following arguments, Scott expressed his remorse for what had happened.

The trial court found the following mitigating factors to be present: Scott’s previous criminal and driving record was essentially unblemished, Scott pled guilty and was remorseful about the incident, and Scott had completed 77 days of alcohol treatment.

The court found the following aggravating factors to be present: Scott had a long history of alcohol and drug abuse, and the sentence was necessary to deter others from committing the same crime.

Thereafter, the court sentenced Scott to concurrent extended terms of eight years for each reckless homicide count and a concurrent term of three years for the DUI count.

Scott later filed a motion to reconsider sentence. At the hearing on the motion, the court noted one of the reasons it imposed the eight-year sentences was even though Scott had a long history of alcohol and drug abuse, he still chose to drive on the day of the accident. Thereafter, the court denied the motion to reconsider.

On appeal, Scott contends the court erred in sentencing him to extended eight-year terms on the reckless homicide counts. He argues the court should not have considered as an aggravating factor his history of alcohol and drug abuse.

Neither alcohol nor drug abuse is listed in the Unified Code of Corrections as a mitigating or aggravating factor. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.1, 1005—5—3.2.) However, a sentencing court may base its sentence on factors other than those listed in the Code so long as they are consistent with the Code. (People v. Allen (1983), 119 Ill. App. 3d 845, 457 N.E.2d 77.) Accordingly, prior drug use may be considered an aggravating factor since it is evidence of prior criminal activity. (People v. Whealon (1989), 185 Ill. App. 3d 570, 541 N.E.2d 865.) A defendant’s history of alcoholism may also be considered as evidence that his conduct is likely to recur. People v. Clune (1980), 82 Ill. App. 3d 545, 402 N.E.2d 928.

Here, Scott’s long-term alcohol problem was linked to the instant offenses. His counselor stated that if Scott did not stay in a structured environment, he was likely to continue abusing alcohol. The presentence report, however, shows Scott has had limited success in counseling. Scott’s drinking problem is therefore evidence his conduct might recur.

Additionally, at the hearing on the motion to reconsider sentence, the trial judge shed further light on his analysis of the aggravating and mitigating factors. He stated his concern was with Scott’s decision to drive on the day of the accident despite Scott’s knowledge he had a history of substance abuse. We find this to be a proper consideration. Accordingly, we find no error with the trial court’s comments concerning Scott’s alcoholism. Additionally, we find the court could consider Scott’s drug abuse problem to be an aggravating factor because it was evidence of prior criminal activity. Consequently, no error occurred.

Scott further argues the court erred in sentencing him because it failed to give sufficient weight to the mitigating evidence. In addressing this issue, we note we cannot substitute our judgment for that of the sentencing court simply because we might have balanced the factors differently. (People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.) Instead, we can only reverse a sentence if it was an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) An abuse of discretion is defined as a sentence that is manifestly unjust or palpably wrong. People v. Anderson (1986), 112 Ill. 2d 39, 490 N.E.2d 1263.

In imposing sentence, the court may consider the manner in which the crime occurred. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Here, the factual basis showed that while Scott was highly intoxicated, he crashed through construction barricades, killed two people, and seriously injured another. There was evidence that in the course of the accident, his brake lights did not come on and he even accelerated. After the accident occurred, his conduct toward the investigating officer was abusive and belligerent. Furthermore, his previous history of substance abuse may be considered in aggravation. Clearly, Scott’s conduct strongly needs to be deterred and punished. We find there was ample evidence supporting the sentence.

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

Affirmed.

SLATER and GORMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN BOLAR, Defendant-Appellant.
    Third District
    No. 3 — 90—0868
    Opinion filed February 18, 1992.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee, and Howard Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

A jury convicted the defendant, Juan Bolar, of unlawful delivery of a controlled substance and unlawful delivery of a controlled substance without a tax stamp (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401; ch. 120, par. 2155). The trial court sentenced him to seven years in prison. Bolar appeals. We affirm in part and vacate in part.

The record shows that State witness Tyrone Harrell worked as a paid informant for police officer John Gerard. Harrell testified that he called Bolar and told him he wanted to purchase an “eight” of cocaine. They arranged to meet at Pioneer Park later the same day. Before the meeting Harrell met with Lt. Gerard, who searched Harrell and “wired” him with a transmitter. Harrell testified he then went to Pioneer Park, where he met Bolar, and they both decided to move to Hobby Heights Park. When the two met there, Harrell gave Bolar $200 in exchange for two “sixteenth” bags of a white substance. Harrell next met with Lt. Gerard and gave him the substance he had purchased. Harrell testified he was a drug dealer. Also, Harrell admitted that he had made a deal with the State for reduced charges on pending criminal matters.

Lt. Gerard testified he searched and “wired” Harrell before his meeting with Bolar. He then followed Harrell to Pioneer Park, where he witnessed some type of transaction between Bolar and Tyrone Hill. The record shows the defendant objected to this remark. The trial court sustained the objection and instructed the jury to disregard the remark.

Lt. Gerard testified he followed Harrell and Bolar to Hobby Heights Park. Once there, he observed Harrell with Bolar and saw both of them engage in some type of hand movement. Shortly thereafter, he met with Harrell, who gave him two bags, neither of which bore a tax stamp. At trial it was stipulated the bags contained cocaine.

Darryl Williams testified on Bolar’s behalf. He stated he was with Harrell on the day in question and never saw him engage in any transaction with Bolar. Finally, the record reflects that during its closing argument the State repeatedly called Bolar a “drug dealer.” Bolar objected to the comments; however, his objections were overruled by the trial court.

Bolar first argues on appeal that he was denied a fair trial because the State, in closing argument, repeatedly called him a “drug dealer.” Additionally, the State elicited testimony regarding a transaction between Bolar and Tyrone Hill. Bolar contends all of these statements constituted inadmissible evidence of other crimes.

It is well established that a prosecutor has great latitude in making closing arguments, and absent a clear abuse of discretion, the trial court’s determination as to the propriety of the comments will not be disturbed. (People v. Barkauskas (1986), 147 Ill. App. 3d 360, 497 N.E.2d 1183.) Arguments based on facts or reasonable inferences therefrom are within the scope of proper argument even if they reflect unfavorably on the accused. As such, it is not improper for the prosecutor to reflect unfavorably on the defendant if such comments are based on competent and pertinent evidence. (People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399.) A dealer is one who purchases goods for resale to a final customer. Black’s Law Dictionary 399 (6th ed. 1990).

Here, we do not find the trial court abused its discretion in allowing the State to call Bolar a drug dealer. Initially, we note the State’s comments were proper since they were based on competent and pertinent evidence. In addition, the comments did not constitute inadmissible evidence of other crimes since an individual who sells drugs is a drug dealer even if he has sold drugs on only one occasion. Based on the facts of this case, we find the trial court did not abuse its discretion when it allowed the State to classify Bolar as a drug dealer.

Bolar next contends that his conviction for unlawful delivery of a controlled substance should be vacated because he was prejudiced by the testimony of Lt. Gerard, who suggested that Bolar had engaged in other drug deals. Any prejudice in the introduction of testimony regarding evidence of other crimes committed by a defendant is generally cured by sustaining an objection and instructing the jury to disregard the statement. (People v. Sledge (1989), 183 Ill. App. 3d 1035, 539 N.E.2d 1312.) The record clearly reflects that Bolar immediately objected to Lt. Gerard’s comment about a “transaction” between Bolar and Tyrone Hill. The trial court sustained the objection and instructed the jury to disregard the statement. Accordingly, we find the error was cured.

Additionally, even assuming the complained-of remarks were improper, we would find them harmless since the evidence overwhelmingly supported the jury’s finding of guilt. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) Tyrone Harrell testified that Bolar sold him drugs. Also, Lt. Gerard testified he searched Harrell for drugs prior to Harrell’s meeting with Bolar. Lt. Gerard further testified that he observed Harrell and Bolar engage in some sort of exchange, and shortly thereafter Harrell delivered to him the drugs Bolar had sold him. Under these circumstances, we do not believe the prosecutor’s remarks made any difference in the outcome of the case. Therefore, we affirm Bolar’s conviction for unlawful delivery of a controlled substance.

Bolar argues that this court should vacate his conviction for unlawful delivery of a controlled substance without a tax stamp. Specifically, he contends the conviction is barred by the principle of “one act, one crime.” In other words, Bolar claims that both of his convictions were based on his single act of delivering drugs.

It is well-settled law that multiple convictions based upon the same physical act or acts cannot stand. (People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739.) The record shows that count I of the indictment alleged that Bolar had unlawfully delivered cocaine to an informant. Count II alleged that he had made that delivery without the requisite tax stamp in violation of the Cannabis and Controlled Substances Tax Act (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 2151 et seq.).

We acknowledge that at first glance the charging instruments appear to be based on Bolar’s single act of delivering a drug. However, we find this appeal actually involves the violation of two separate and distinct statutes through two separate and distinct acts. An individual is guilty of unlawful delivery when he delivers, or intends to deliver, a controlled substance to another person. (Ill. Rev. Stat. 1989, ch. par. 1401.) However, a dealer is guilty of failing to obtain a tax stamp when he merely possesses any controlled substance upon which a tax is imposed and he has not paid the tax and has not affixed the necessary tax stamp. Ill. Rev. Stat. 1989, ch. 120, par. 2155.

As such, Bolar was guilty of unlawful delivery when he delivered the cocaine to Harrell. Also, he was guilty of violating the Act when he merely possessed the cocaine without obtaining the necessary tax stamp. Therefore, since Bolar’s convictions were based on separate acts we do not find that his convictions violate the principle of “one act, one crime.”

We further find that Bolar was not prejudiced by the use of the word “delivered” in the tax stamp charge. While a person can possess something without delivering it, he cannot deliver it without possessing it. Therefore, when the jury found Bolar “delivered” the cocaine, it also necessarily found that he possessed it. We note in this regard that despite the wording of the charge, it is clear from the record that Bolar understood the nature of the offense charged and prepared his defense accordingly. See People v. Doherty (1986), 139 Ill. App. 3d 1028, 487 N.E.2d 1227.

Bolar’s final argument on appeal is that his $240 “street value” fine should be eliminated. Specifically, he contends that he is entitled to a $5-a-day credit for each day of his pretrial incarceration. (See Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14.) The State concedes, and we agree, that Bolar’s fine should be eliminated since the record clearly indicates he was in custody for 60 days prior to his trial and sentencing.

The judgment of the circuit court of Kankakee County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE A. FRANKLIN, Defendant-Appellant.
    Third District
    No. 3-91-0178
    Opinion filed February 21, 1992.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry VanDerSnick, State’s Attorney, of Cambridge, and Kathleen M. Vaught, of Naperville (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

A jury found the defendant, Tyrone A. Franklin, guilty of attempted murder, armed violence, and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4, 9—1, 33A— , 12—4). The trial court sentenced him to a 16-year term of imprisonment for the attempted murder conviction and a concurrent four-year term for the armed violence conviction. The court dismissed the aggravated battery conviction as a lesser included offense of the armed robbery conviction. The defendant appeals. We affirm in part and vacate in part.

On appeal, the defendant first argues that his conviction for attempted murder should be reversed. Specifically, he contends that his conviction might be based on an offense he was not charged with committing.

The record shows that the defendant was charged with attempted murder in that “with the intent to commit the offense of First Degree Murder, in violation of the Illinois Revised Statutes, Chapter 38, Section 9— l(a)(l), [he] performed a substantial step toward the commission of that offense, in that he, without lawful justification and with the intent to kill Christine L. Washburn, struck Christine L. Washburn with a bumper jack on or about the head area and/or while operating an automobile struck the body of Christine L. Washburn with said automobile.” The record also shows that the jury was given the following jury instruction. “A person commits the offense of first degree murder when he kills an individual if, in performing the acts which cause the death, he intends to kill that individual or another.” See Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. Supp. 1989).

The defendant argues that the inclusion of the words “or another” was reversible error, because the jury may therefore have convicted him under a transferred intent theory which was not charged in the complaint. In this regard, he notes that some of the evidence at trial showed that he may have tried to kill another individual besides Washburn. Given the proximity of the acts, the jury may have concluded that he intended to kill the other individual when he struck Washburn. Thus, his intent to kill the other individual would be transferred to Washburn. While the defendant acknowledges that a person may be properly convicted under a transferred intent theory, he contends that the State must first specifically allege this theory in the charging instrument.

The defendant recognizes that People v. Forrest (1971), 133 Ill. App. 2d 70, 272 N.E.2d 813, stands for the proposition that the concept of transferred intent need not be alleged in the charging instrument. However, he asks this court to overlook that decision since the Illinois Supreme Court may overrule Forrest in People v. Griggs, No. 69790 (argued March 21,1991).

Griggs is a case presently before the supreme court in which the court is apparently considering the same question presented in the case at hand. We decline to speculate about what our supreme court will do in Griggs. Therefore, since the concept of transferred intent may properly be presented to the jury without alleging it in the charging instrument, we find that the trial court did not err in giving the complained-of jury instruction. Accordingly, we affirm the defendant’s conviction for attempted murder.

The defendant’s next argument is that his conviction for armed violence should be vacated since it violates “one-act-one-crime” principles. Specifically, he notes that his armed violence conviction is based on the same act as his conviction for attempted murder.

It is well-settled law that multiple convictions based upon the same physical act or acts cannot stand. People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739.

The record shows that the attempted murder charge alleged that the defendant struck Washburn with a bumper jack and a car. The aggravated battery charge, which the armed violence charge was based upon, also alleged that the defendant struck Washburn with a bumper jack and a car.

We agree with the defendant that the same acts, hitting the victim with a car and a bumper jack, formed the basis for both convictions. As such, we find that the defendant’s conviction for armed violence cannot stand since that conviction and the attempted murder conviction resulted from the same physical acts.

Accordingly, the judgment of the circuit court of Henry County is affirmed as to the defendant’s conviction for attempted murder. The defendant’s conviction for armed violence is vacated.

Affirmed in part and vacated in part.

HAASE and McCUSKEY, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ZUBIK, Defendant-Appellant.
    Third District
    No. 3 — 90—0658
    Opinion filed February 26, 1992.

      Gary R. Peterson, of State Appellate Defender’s Office, of Springfield, for appellant.
    William Herzog, State’s Attorney, of Kankakee, and John Thomas Moran, Jr., of Chicago (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

A jury acquitted the defendant, Robert Zubik, of conspiracy to commit armed robbery, but found him guilty of armed robbery and home invasion based on an accountability theory (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 2, 18 — 2, 12 — 11). He was thereafter sentenced to eight years of imprisonment. He appeals, and we affirm.

On appeal, the defendant argues that the jury’s verdicts were legally and logically inconsistent. Specifically, he contends that since the jury acquitted him of conspiracy to commit armed robbery, it could not have found him guilty of armed robbery and home invasion.

Citing Sealfon v. United States (1948), 332 U.S. 575, 92 L. Ed. 180, 68 S. Ct. 237, the defendant argues that since the facts supporting the charges were essentially the same, the jury’s acquittal on the conspiracy charge was a determination favorable to him of facts essential to his conviction of the substantive offenses. As such, he contends that his convictions should be reversed.

In Sealfon, the defendant was charged with conspiracy to defraud the United States. Following an acquittal, he was charged with committing the substantive offense by aiding and abetting an accomplice. The defendant was convicted of the charge and appealed the decision. The issue before the Supreme Court was whether the jury’s not guilty verdict in the conspiracy trial precluded convicting the defendant of the substantive offense based on the same facts.

The Court specifically noted that this was a factual question that depended on the evidence presented at the trial and the instructions under which the jury arrived at its verdicts. In reversing the defendant’s conviction, the Court found that under the facts introduced, the defendant could only have aided and abetted the accomplice by conspiring with him to commit the crime.

In the case at hand, we initially note that conspiracy and the substantive offense are separate and distinct crimes. (See Sealfon v. United States (1948), 332 U.S. 575, 92 L. Ed. 180, 68 S. Ct. 237.) In addition, we note that in the instance of an acquittal on one count of an indictment, the verdict does not operate to set aside the conviction on another count if different offenses were charged. People v. Krazik (1947), 397 Ill. 202, 73 N.E.2d 297.

As to whether the evidence supporting those distinct crimes differed in this case, the record shows that Joseph Ohlrich, Christopher Burris, Scott Lawrence, and Andrew Barthel forced their way into the residence of Mickey Hensel and stole a number of exotic birds. Although the defendant was aware of the plan to steal the birds, he did not participate in the actual commission of the crime. He did, however, purchase the birds from Ohlrich knowing they were stolen.

The evidence concerning the defendant’s participation in the planning of the robbery was conflicting. In a statement to the police following his arrest, the defendant acknowledged that he had been aware of the plan to rob the Hensel residence. However, he further stated that when Ohlrich urged him to participate in the crime, he responded by saying that he “did not want anything to do with it.”

On the other hand, evidence was introduced showing that prior to the robbery, the defendant gave Ohlrich two checks. In addition, he supplied him with chicken wire and advised him on how to carry the birds.

Other evidence showed that codefendant Lawrence testified that Ohlrich concocted the plan and was the “main mover” behind the crimes. Codefendant Burris testified that the defendant supplied them with chicken wire. Burris also stated that the defendant never entered into an agreement with the others to commit the robbery. Finally, during closing argument, defense counsel pointed out to the jury that no one testified that they had an “agreement” with the defendant.

The jury was given the following instructions: (1) a person commits the offense of conspiracy when he, with intent that the offense of armed robbery be committed, agrees with others to the commission of the offense of armed robbery, and an act in furtherance of the agreement is performed by any party to the agreement; (2) a person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.

In the case at hand, we note that while an agreement to commit an offense is one way to aid another, it is not the only basis on which one can be held accountable for the actions of others. As such, based on the evidence, we find that the jury could have concluded that the parties did not enter into an agreement, since testimony was presented showing that the defendant never agreed with the others to commit the crime. However, it could also have logically concluded that he was guilty of the substantive offenses under an accountability theory, since evidence was presented showing that he aided the others by advancing money, by agreeing to buy the birds, and by providing the group with chicken wire and advising them on how to carry the birds.

Therefore, we find that even though the jury acquitted the defendant on the conspiracy charge, it did not also have to acquit him on the substantive charges. The facts supporting the accountability theory were distinct from those involved in the conspiracy question. Accordingly, we do not find the jury’s verdicts legally or logically inconsistent.

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

Affirmed.

STOUDER and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
    BOBBY JOE CRIDER et al., Plaintiffs-Appellants, v. WILLIAM CRIDER, Defendant-Appellee.
    Third District
    No. 3 — 91—0538
    Opinion filed February 26, 1992.
    Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee (Christopher W. Bohlen, of counsel), for appellants.
    Jay H. Tressler, of Tressler, Soderstrom, Maloney & Priess, of Chicago (Edmund J. Siegert, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

In this negligence action, the trial court granted defendant’s motion for summary judgment, finding that plaintiffs had failed to establish the existence of a duty. We affirm.

Defendant William Crider asked his son, plaintiff Bobby Joe Crider (Bobby Joe), to help trim a tree located on defendant’s property. Defendant had considerable experience in trimming trees, but Bobby Joe had none. Defendant testified at his deposition that he pointed out which branches to cut and “tried to show him the best I could how to niche [sic] it and to cut the thing.” Defendant also testified that he told Bobby Joe to notch the tree to a depth of two or three inches, but Bobby Joe cut too deeply into the tree.

Bobby Joe climbed up the tree and tied a rope around the trunk. The other end of the rope was tied to the bumper of defendant’s vehicle. After trimming away some branches with a chain saw, Bobby Joe made two or three cuts into the main trunk of the tree. Bobby Joe testified that although he and his father may have discussed trimming the tree, defendant did not “give [him] specific directions on how to make the cuts.” Shortly after cutting into the main trunk of the tree, the top of the tree fell and knocked Bobby Joe to the ground, causing injuries.

Plaintiffs’ complaint alleged that defendant had a duty to protect Bobby Joe “from dangers about which he had knowledge or which pursuant to reasonable care he should have had knowledge.” Plaintiffs also claimed that defendant had a duty to inspect his premises for possible dangers and to protect Bobby Joe from reasonably foreseeable dangers. Plaintiffs further alleged that the defendant was negligent in that:

“a. The Defendant knew or should have known that the tree was in an unsafe and dangerous condition and failed to warn the Plaintiff of the unsafe and dangerous condition.
b. The Defendant knew or should have known that there was insufficient tension on a rope which he had used for the purposes of securing said tree.
c. The Defendant provided instruction and direction to the Plaintiff without having sufficient knowledge or basis to provide said instruction and direction.
d. The Defendant had failed to have the tree, which was being cut, inspected to determine the condition of said tree and whether said tree could reasonably be cut in the manner and form prescribed by the Defendant herein.”

Defendant’s motion for summary judgment was initially denied by the trial court. Upon motion for reconsideration, however, the trial court granted defendant’s motion, finding that plaintiffs had failed to establish the existence of a duty.

Summary judgment should be granted where the pleadings, depositions and affidavits reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 583 N.E.2d 538; Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c).) In a negligence action, the plaintiffs must set out sufficient facts to establish the existence of a duty, a breach of that duty and an injury proximately caused by that breach. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365.) Whether a duty exists is a question of law and depends upon whether there is a relationship between the parties which the law recognizes as imposing an obligation on the defendant to act reasonably for the protection of the plaintiff. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Ziemba, 142 Ill. 2d 42, 566 N.E.2d 1365.) Relevant factors in determining the existence of a duty include the foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against the injury, the consequences of placing that burden on the defendant and the possible seriousness of the injury. (Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 566 N.E.2d 239.) Absent a showing from which the court can infer the existence of a duty, summary judgment in favor of the defendant is proper. Vesey, 145 Ill. 2d 404, 583 N.E.2d 538.

• 1 Plaintiffs contend that the defendant had a duty as a possessor of land to maintain his premises in a reasonably safe condition. (Deibert, 141 Ill. 2d 430, 566 N.E.2d 239; Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223; Restatement (Second) of Torts §343, at 215-16 (1965).) While plaintiffs acknowledge that a landowner is generally not liable for injuries resulting from conditions on the land where the dangers are known or obvious (Deibert, 141 Ill. 2d 430, 566 N.E.2d 239; Restatement (Second) of Torts §343A(1), at 218 (1965)), plaintiffs seek to invoke the exception to this rule as explained in Deibert and Ward. In those cases our supreme court held that a defendant may be liable for conditions whose dangers are known or obvious if the defendant should anticipate the harm despite such knowledge or obviousness. “[Defendant can be expected under certain circumstances to anticipate that [plaintiffs] even in the general exercise of reasonable care will be distracted or momentarily forgetful.” (Ward, 136 Ill. 2d at 155, 554 N.E.2d at 234.) In Ward the plaintiff was distracted by a large item he had purchased at the store. In Deibert the plaintiff was distracted by the possibility of falling debris at a construction site.

Unlike Deibert and Ward, in this case there are neither allegations nor evidence that Bobby Joe was distracted or that he momentarily forgot the danger involved. In his deposition testimony, Bobby Joe acknowledged that he had seen trees being trimmed and that he understood that trimming a tree was a dangerous activity. He stated: “I got up in the tree and I made some cuts and the damn thing fell on me.” We believe that the facts of this case are more akin to those in Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 564 N.E.2d 778, and Coates v. W.W. Babcock Co. (1990), 203 Ill. App. 3d 165, 560 N.E.2d 1099, than to Deibert or Ward.

In Logan, the 15-year-old plaintiff climbed a tree to loosen a rope swing from a branch in which it had become entangled. As plaintiff began to climb back down the tree, he fell and severe injuries resulted. Plaintiff alleged in his complaint that the landowner failed to maintain its premises in a safe condition and failed to warn plaintiff of the dangerous conditions existing on the premises. Plaintiff contended that the combination of the tree, the rope swing and a nearby ladder interacted to create a dangerous condition. The trial court granted the landowner’s motion for summary judgment, finding no legal duty upon which liability could be based. In affirming the trial court, the supreme court noted that the plaintiff presented no evidence to create an issue as to the safety of the tree, the rope swing or a combination of the items. The court concluded that “the risk of falling out of the tree was an obvious danger which plaintiff was reasonably expected to understand and appreciate.” Logan, 139 Ill. 2d at 241, 564 N.E.2d at 784.

In Coates, Alonzo Coates volunteered to install ceiling fans in a church. Coates fell from a ladder while installing the fans, suffering serious injury. Plaintiff (Coates’ wife) alleged, in count III of her complaint, that defendants owed Coates a duty of reasonable care for his safety pursuant to the Premises Liability Act (Ill. Rev. Stat. 1989, ch. 80, par. 301 et seq.). Plaintiff maintained that defendants breached this duty in failing to oversee the work and in failing to provide adequate equipment. In affirming the trial court’s dismissal of count III, the court stated that it was well established that a landowner is not liable for injuries resulting from open and obvious dangers, including the open and obvious danger of falling from high places. In addition, the court rejected plaintiff’s argument that the landowner should have known that Coates would be distracted and momentarily forget the danger, noting that there was nothing in the complaint “to indicate that defendants should have realized that Coates would be distracted and, forgetting the height from which he was working, act in such a manner that he would inadvertently fall from the ladder.” Coates, 203 Ill. App. 3d at 168-69, 560 N.E.2d at 1102.

Similarly, in this case, there is nothing in the record to indicate that Bobby Joe was distracted or momentarily forgetful of his precarious position. The danger of falling from the tree was known and obvious. Since the risk was obvious, the tree was not unreasonably dangerous. (See Ward, 136 Ill. 2d at 151-52, 554 N.E.2d at 232 (“The proper question *** is not whether the post was inherently dangerous, but whether, under the facts of this case, it was unreasonably dangerous”).) Defendant, therefore, had no duty to warn Bobby Joe about risks which were known to him. (Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 501 N.E.2d 821.) In addition, defendant had no duty to have the tree inspected absent an allegation or evidence that some latent defect existed which rendered the tree unreasonably dangerous. The record is devoid of evidence of such a defect. Indeed, plaintiffs admit in their brief that “there is no argument that there"is a latent dangerous condition.”

Plaintiffs maintain, however, that defendant owed Bobby Joe a duty of reasonable care apart from any duty which might arise under a theory of premises liability. Specifically, plaintiffs contend that defendant owed Bobby Joe a duty to maintain tension on the rope which was attached to the tree and the defendant’s vehicle on the ground below. Although not articulated by plaintiffs, it appears that this argument is premised on a theory that defendant voluntarily assumed a duty to protect Bobby Joe by keeping the rope taut. (See Vesey, 145 Ill. 2d 404, 583 N.E.2d 538 (One gratuitously rendering services to another is subject to liability for harm caused by the failure to exercise due care).) We find nothing in the record, however, to support the imposition of such a duty on defendant. Plaintiffs attempt to rely on the following exchange between plaintiffs’ counsel and defendant which occurred during the taking of defendant’s deposition:

“Q. [Plaintiffs’ counsel:] Was there any tension on the rope at the time that it was tied?
A. [Defendant:] No, the rope was slack.
Q. Okay. Was there any thought of using some tension on the rope or, [sic] in order to control the direction that the limb would fall?
A. Well, better — did.”

While it could be argued that the foregoing testimony, standing alone and viewed liberally in favor of the plaintiffs (see Logan, 139 Ill. 2d 229, 564 N.E.2d 778 (in ruling on a motion for summary judgment, the court must construe the evidence strictly against the moving party and liberally in favor of the opponent)), supports an inference that defendant intended to keep the rope taut, the remainder of the deposition testimony of both Bobby Joe and defendant clearly indicates otherwise.

“Q. [Plaintiffs’ counsel:] And then, that rope was tied to the Blazer?
A. [Defendant:] To the trailer hitch on the Blazer, yeah.
* * *
Q. Okay. What was the purpose of doing that?
A. Well, he was supposed to cut in just so far. And I, he would get down and I’d pull it over. * * *
Q. How far did you tell, was that how far you told him to go in, was six, seven or eight inches?
A. Well, I told him to stop about two or three inches where he had notched it, and I’d try to pull it over.”

Bobby Joe testified in his deposition as follows:

“Q. [Defense counsel:] What was the purpose of tying the rope to the top of the tree?
A. [Bobby Joe:] That was to pull it, pull it down to get a cut started and have it fall down, fall away from where I was at, fall away from the lines, fall away from the house. * * *
Q. Okay and the plan was then to cut at the trunk and then have the truck pull the trunk away and all the branches with it?
A. Right.
* * *
Q. You turned the chain saw off, you are still sitting on your branch, you got the three cuts in the tree?
A. Right.
Q. Obviously the intention here was to have him drive the truck east and pull—
A. Yes, sir.
Q. —pull the top of the tree east?
A. Exactly right.”

We believe that the testimony related above clearly demonstrates that the rope was intended to be used to pull the top of the tree away from the house after it had been notched. We find that the single question by plaintiffs’ counsel concerning whether any thought had been given to applying tension to the rope and defendant’s equivocal response to that question do not create a genuine issue of material fact. Defendant did not assume a duty to keep the rope taut.

Plaintiffs also rely on the allegations contained in subparagraph (c) of their complaint to establish the existence of a duty. Plaintiffs contend that defendant instructed and directed Bobby Joe “without having sufficient knowledge or basis to provide said instruction and direction.” Plaintiffs again appear to be arguing that defendant voluntarily assumed a duty — the duty to instruct Bobby Joe in trimming the tree. Although Bobby Joe testified in his deposition that defendant did not give him specific directions on how to cut the tree, defendant stated that he tried to show Bobby Joe “the best [he] could” how to trim the tree.

While liability can arise from the negligent performance of a voluntary undertaking, the scope of the duty is limited by the extent of the undertaking. (Goebig v. City of Chicago (1989), 188 Ill. App. 3d 614, 544 N.E.2d 1114.) One voluntarily assuming a duty must perform it with due care or with such competence and skill as one possesses. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472.) After examining the pleadings and depositions contained in the record, we do not believe that a genuine issue of material fact exists as to whether the defendant negligently performed a voluntary undertaking. Any duty of instruction assumed by defendant was confined to instructing Bobby Joe within the limits of defendant’s competence and skill, which he testified he did. There is no evidence to the contrary, nor is there any indication that defendant gave improper or faulty instructions which increased Bobby Joe’s risk of harm. Moreover, Bobby Joe’s deposition testimony does not indicate that he relied on any instructions given by defendant in trimming the tree. We find that the trial court properly granted summary judgment in favor of the defendant.

For the above stated reasons, we affirm the judgment of the circuit court.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE GORMAN

text:
    DAVID GOINS et al., Petitioners-Appellants, v. PAUL KLINCAR, Chairman, Illinois Prisoner Review Board, et al., Respondents-Appellees.
    Third District
    Nos. 3-91-0269, 3-91-0271, 3-91-0272 cons.
    Opinion filed February 25, 1992.

      David P. Goins, of Joliet, appellant pro se.

    Ralph Bellamy, of Joliet, appellant pro se.

    George Horton, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Jan E. Hughes, Susan Frederick Rhodes, and Claudia Sainsot, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

The three petitioners in this case, George Horton, David Goins, and Ralph Bellamy, individually filed actions in mandamus, alleging that the Illinois Prisoner Review Board (Board) had violated their due process rights by arbitrarily denying them parole. Bellamy additionally alleged that a recent amendment to section 3 — 3—5(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3— 5(f)), which allowed the Board to set parole hearings more than one year apart, is an ex post facto law as applied to him. The circuit court dismissed their complaints. The petitioners appeal. This court, on its own motion, ordered the consolidation of these appeals because they raised the common claim that the Board arbitrarily denied parole.

In 1971, George Horton was convicted of murder and sentenced to 100 to 150 years’ imprisonment. He appeared before the Board every year from 1980 through 1990, and was denied parole each time.

In 1978, David Goins was convicted of murder and sentenced to 25 to 50 years’ imprisonment. He appeared before the Board every year from 1986 through 1991. He too was denied parole each time.

In 1970, Ralph Bellamy was convicted of murder and sentenced to a term of 100 to 199 years’ imprisonment. He appeared before the parole board in 1979, 1980, 1982, 1983, 1984, 1985, 1986, 1987, 1988, and 1991. He was likewise denied parole each time.

On appeal, the petitioners all contend that they were denied due process because the reasons the Board gave for denying parole were inadequate. In support of that contention they note that in each of their cases, the Board indicated that parole was denied because “parole at this time would deprecate the serious nature of the offense and promote disrespect for the law.” The petitioners suggest that this language is mere “boiler plate” and not an adequate reason. In support of their contention, they argue that because other inmates convicted of murder have been paroled, the nature of the crime is not an adequate reason for denying parole. See United States ex rel. Scott v. Illinois Parole & Pardon Board (7th Cir. 1982), 669 F.2d 1185.

The due process clauses of the Federal and State Constitutions protect against deprivation of liberty or property without due process of law. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Consequently, procedural due process protections are triggered only when a constitutionally protected liberty or property interest is at stake. Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Wilson v. Bishop (1980), 82 Ill. 2d 364, 412 N.E.2d 522.

We find, however, that we need not determine here whether the Illinois parole release statute (Ill. Rev. Stat. 1989, ch. 38, par. 1003— 3 — 5(c)) creates a constitutionally protected liberty interest. Even if such a liberty interest arises, the reasons the Board gave the petitioners for the denial of their parole applications satisfied due process requirements. See Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.

The test to determine whether reasons for denying parole are constitutionally sufficient is whether the reasons are adequate to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Further, detailed findings of fact are not required if the Board considered all the relevant factors and furnished the inmate with both the grounds for its decision and the facts upon which inferences were drawn. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Where the Board denies parole on the ground that release would deprecate the seriousness of the offense and promote disrespect for the law, due process standards are met if the Board lists the offense of which the inmate was convicted and indicates the extreme length of the sentence imposed. Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.

In the instant cases, we find that the Board adequately set forth reasons for denying parole. In denying parole for Horton, the Board stated:

“The Board has reviewed material in your file including but not limited to the Statement of Facts, institutional adjustment, release plans and your personal appearance.
The file reflects that you were convicted of murder and sentenced to 100-150 years. (1971 indictment).
In addition, you were sentenced to 3 years consecutively for an escape from Stateville Prison which occurred in 1982. Codefendants were also given sentences for their involvement in your murder conviction.
Your prior history includes 1-3 years for armed robbery, and 1-1-1 day for burglary. Your current adjustment appears good, and the Board notes you have received no major disciplinary reports since 1984.
Release plans were reviewed and discussed with you.
Parole, however, is denied at this time because of the brutal nature of the offense and your conviction for escaping. In addition the Board is of the opinion that parole, at this time, would deprecate the seriousness of your offense and promote disrespect for the law.
Parole denied.”

In determining that Goins should not be granted parole, the Board concluded:

“Members of the Prisoner Review Board in making a decision to grant or deny parole have reviewed the following not to the exception of other materials: statement of facts of crime and sentence imposed, prior criminal record, institutional adjustment, parole plans and the interview with the inmate and his visitors. Letters on behalf and protests including the State’s Attorney of Cook County is noted.
Presently Mr. Goins is serving 25-50 years for murder. The instant crime occurred when the resident and codefendants killed the proprietor of a food store and robbed the patrons in the course of an armed robbery.
This is a first adult incarceration. Institutional adjustment is much improved and academic goals are to be commended. Parole plans to live and work in Chicago were weighed in the decision.
After deliberation of the above the Board denies parole due to the brutal and senseless nature of the offense. To grant parole at this time would deprecate the seriousness of the crime and promote a disrespect for the law.”

After considering Bellamy’s application for parole, the Board stated:

“Resident Bellamy was personally interviewed at the State-ville Correctional Center where he is serving sentences of 100-199 years for the offense of the murder of a police officer during the performance of his duties, 15-20 years for the offense of attempt murder and 25-50 years for 2 counts of armed robbery, the latter sentence to be served consecutively to the proceeding [sic] sentences. The State’s Attorney of Cook Comity continues to object to the granting of parole at this time, as well as other members of the free community.
From a reading of the file it is apparent that Inmate Bellamy’s institutional adjustment is improving, as he is now in “A” Grade, medium security. Parole plans were noted and discussed.
The Board concludes, given the gravity of the instant offense, which was committed only six months after the expiration of a sentence of 3-10 years for previous offenses of armed robbery, that there still exists a risk of further nonconforming behavior, if released. It is concluded, in En Banc session, that parole at this time would, in fact, deprecate the serious nature of the offense and promote disrespect for law and order.
Parole is, therefore, denied.”

These statements do not indicate that parole was denied merely because the petitioners were convicted of murder. Rather, the Board adequately set forth reasons explaining why parole was being denied. The Board indicated that among the factors it considered in denying parole were the nature of the offenses, the length of the sentences imposed, escape convictions, previous criminal conduct, the objections of the State’s Attorney, and the objections of other members of the free community. Even assuming that a protectable liberty interest arose by operation of the Illinois parole release statute, the Board’s explanations for its decisions denying parole satisfied the requirements of due process. (See Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Accordingly, we find that the circuit court properly dismissed the petitioners’ due process complaints.

We now turn our attention to Bellamy’s contention that the current version of section 3—3—5(f) of the Unified Code of Corrections is an ex post facto law as applied to him. Bellamy’s contention is founded on the fact that subsequent to his conviction, section 3—3— 5(f) was amended to provide for hearings every three years rather than annually. Ill. Rev. Stat. 1989, ch. 38, par. 1003—3—5(f).

The Illinois Supreme Court has made it clear that section 3— 3—5(f) is an ex post facto law when its amended version is applied to prisoners who were convicted prior to the amendment. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) However, since the release of the Illinois Supreme Court’s decision in Tiller, Bellamy has been scheduled for parole hearings on an annual basis. Because the amended version of section 3—3—5(f) is no longer being applied to Bellamy, the issue is moot. Accordingly, we find that the circuit court properly dismissed Bellamy’s complaint.

The judgments of the circuit court of Will County are affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
      In re MARRIAGE OF JUANITA C. McCOY, Petitioner-Appellant, and ROBERT A. McCOY, Respondent-Appellee.
    Third District
    No. 3-91-0478
    Opinion filed March 4, 1992.

      C. Stephan Marsh, of Ruud, Scovil, Neppl & Marsh, of Rock Island (James L. Neppl, of counsel), for appellant.
    Van Hooreweghe, Fackel & Thuline, of Moline (Francis Van Hooreweghe, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Petitioner, Juanita C. McCoy, appeals portions of the judgment dissolving her marriage to respondent, Robert A. McCoy.

Juanita raises two issues on appeal: (1) whether the trial court abused its discretion in classifying and dividing the marital property; and (2) whether the trial court’s order of joint custody was against the manifest weight of the evidence. For reasons which follow, we reverse and remand.

Juanita contends the trial court failed to reimburse the marital estate for marital funds contributed to Robert’s nonmarital residence. We agree. The parties agreed that $15,942.95 was expended from marital funds to make improvements to the residence and $6,213.44 was paid to reduce Robert’s mortgage indebtedness. Robert was awarded the residence as his nonmarital property under the court’s division of property, which included the value of the improvements made during the marriage. No provision was made by the trial court to reimburse the marital estate either for the reduction of the mortgage or for the value of the improvements.

Section 503(c)(2) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides a right to reimbursement for contributions made by one estate which have enhanced the value of an item of property classified as belonging to another estate. (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2).) The reimbursement is made to the contributing estate, not to the contributing spouse. (In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 855, 493 N.E.2d 1088, 1092.) Reimbursement requires that a contribution be traceable by clear and convincing evidence. In re Marriage of Guntren (1986), 141 Ill. App. 3d 1, 6, 489 N.E.2d 1120, 1123.

The trial court erred when it failed to reimburse the marital estate for the contributions made from the marital estate to Robert’s nonmarital residence. The trial court was presented with clear and convincing evidence concerning the extent of the contributions. The $22,156.39 contributed from marital funds for improvements to the residence and for increased equity in the nonmarital home should have been credited to the marital estate and divided according to the provisions of section 503 of the Act. 111. Rev. Stat. 1989, ch. 40, par. 503.

Juanita also contends the trial court erred when it classified and divided a portion of the parties’ Merrill Lynch account. We agree. The parties maintained a joint tenancy account with Merrill Lynch which was opened during the marriage. The proceeds of this account came from the sale of stock which Robert acquired both before and during the marriage. Robert stated that he understood the ramifications of establishing a joint tenancy account. He testified that it was his intention that upon his death the account would pass to Juanita. During the marriage, Robert deposited a $10,000 legacy into the account. At the time of trial, the Merrill Lynch account balance was $34,386.05. The trial court awarded $10,000 of the account to Robert as his non-marital legacy. The remaining balance was divided equally between the parties.

Section 503 of the Act requires the trial court, in a dissolution proceeding, to classify property as either marital or nonmarital in order to assign or divide the parties’ property. (Ill. Rev. Stat. 1989, ch. 40, par. 503.) Subsection (a)(1) of section 503 provides that all property acquired by gift or inheritance during the marriage shall be non-marital properly. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(1).) Claims asserted under this subsection are subject to the general presumption in section 503(b) that all property acquired by either spouse during the marriage shall be marital property, including property transferred into some form of co-ownership between the spouses. Ill. Rev. Stat. 1989, ch. 40, par. 503(b).

Property designated as nonmarital pursuant to the exceptions of section 503(a) may, however, be presumptively transmuted into marital property by an affirmative act of the contributing spouse. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 279, 518 N.E.2d 1316, 1319.) Placing nonmarital property in joint tenancy with a spouse creates a presumption that a gift has been made to the marital estate. The “donor” spouse may rebut the presumption of gift only by clear, convincing, and unmistakable evidence. In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 257, 483 N.E.2d 316, 320.

Robert’s $10,000 legacy initially fell under the exception for nonmarital property through section 503(a)(1) (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(1)). However, immediately upon his transfer of the legacy into the joint tenancy account, a presumption of gift arose and a transmutation occurred converting the nonmarital property into marital property. Robert had the burden at trial to present evidence sufficient to rebut this presumption. Robert offered no evidence to overcome the presumption or to suggest the deposit of the legacy into the parties’ joint account was anything other than a gift to the marital estate. Accordingly, the trial court erred in finding the $10,000 to be Robert’s nonmarital property.

Juanita’s next issue on appeal concerns the trial court’s award of joint custody of the parties’ only child, Daniel, who was bom July 26, 1987. The judgment, which ordered joint custody, said in pertinent part “[t]hat the parties have executed a Joint Parenting Agreement” and “[a] copy of said Agreement is attached hereto and made a part hereof.” However, no such agreement is part of the judgment or included in the record. At oral argument, counsel for both parties agreed that no joint parenting agreement had ever been fully executed by the parties.

Section 602.1 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602.1) grants authority to the trial court to order joint custody and to enter a joint parenting order if the parties fail to produce a joint parenting agreement. The trial court should have prepared and executed a joint parenting order since the parties were unable to produce a joint parenting agreement. Since the trial court has not entered a joint parenting order, we remand this issue to the trial court for further proceedings.

Also, given the representation of both parties at oral argument that Daniel has now entered school, we direct that the trial court hold new evidentiary hearings to determine if the proper statutory factors exist to support the order of joint custody. (Ill. Rev. Stat. 1989, ch. 40, pars. 602, 602.1(c).) Our concern is that Daniel’s best interests be determined based on existing circumstances. Therefore, the trial court must hear evidence concerning now-existing circumstances in order to make that determination.

If an award of joint custody is appropriate and the parties are unable to agree on a joint parenting agreement, the trial court shall enter a joint parenting order in accordance with section 602.1(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602.1(b)). We decline, at this point, to further address Juanita’s argument that the trial court improperly ordered joint custody.

In summary, we reverse that portion of the judgment which categorized, divided, and awarded the parties’ property. We also reverse the trial court’s award of joint custody for lack of a joint parenting agreement or joint parenting order. This cause is remanded to the circuit court of Rock Island County for further proceedings according to the findings expressed in this opinion.

Reversed and remanded.

SLATER and HAASE, JJ., concur.