author: Mr. JUSTICE SIMKINS Mr. JUSTICE CRAVEN

text:
    David W. Glover, Plaintiff-Appellee, v. Board of Education of Macon Community Unit District No. 5, Defendant-Appellant.
    (No. 12423;
    Fourth District
    September 5, 1974.

      CRAVEN, J., dissenting.
    Glen A. Featherstun, of Armstrong, Winters, Prince, Tenney & Featherstun, of Decatur, for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant Board of Education appeals from the judgment of the circuit court of Macon county reinstating plaintiff as a teacher in the Macon Community Unit School District No. 5.

In the fall of 1969 plaintiff commenced his employment as a school teacher for the defendant school district. At a board meeting on February 15, 1971, plaintiff’s probationary period was unanimously extended for a third year. On March 29, 1972, the board voted to terminate plaintiff’s employment. It was contended that plaintiff had, in general, failed to maintain proper discipline in his classes, that plaintiff did not conduct his class in a manner conducive to learning and that defendant used an arbitrary grading system. On April 4, 1972, a bill of particulars was given, at plaintiff’s request, to these general charges. A hearing was held before the board on May 2, 4, 9, 10, 11 and 15, 1972.

At the hearing ten of plaintiff’s former students testified that in plaintiff’s classes, loud noise and disorder generally prevailed. Several students testified that vulgar and profane language was used in plaintiff’s classroom which plaintiff did not seriously attempt to prevent. Several students testified to physical contact made by plaintiff with various students. Several students testified that plaintiff never specified his grading schedule. The superintendent of the school district testified that he often passed plaintiff’s classroom and observed noise and disorder, that he once observed plaintiff and a student engaged in an especially heated exchange, and that in his opinion plaintiff was incompetent and his problems were not correctable. He further testified that no notice was sent to plaintiff by certified mail of the extention of his probationary period in February of 1971, but he stated that plaintiff received actual notice because copies of that meeting were furnished to all teachers, and in April of 1971 plaintiff asked him why his probation had been extended at which point he related to plaintiff the various problems of discipline, lack of a proper learning atmosphere and lack of rapport with students. The principal of the high school testified that students in plaintiff’s classes assumed control whenever they desired, that he frequently observed noise and turmoil in plaintiff’s classes, that he had once observed plaintiff holding a student against the wall by his shirt collar, that he had once observed plaintiff and a student shouting at one another with plaintiff having lost control of his emotions, and that he had privately admonished plaintiff that the only proper physical punishment was paddling in the principal’s office. He also testified at length concerning other observations and instances concerning plaintiff’s disciplinary problem. He further stated that numerous students complained to him about plaintiff’s arbitrary grading system, and that plaintiff at a meeting to discuss the problem was never able to satisfactorily explain the grade differentials. He also stated that in September of 1971 he approached plaintiff about his disciplinary problems and his lack of rapport with students and offered suggestions to help resolve them. He further stated that in November of 1971 he warned plaintiff that his problems were continuing, and that if there was not some improvement, he would recommend that plaintiff not be re-employed. It was further stated that on January 25, 1972, the superintendent and principal talked with plaintiff, told him they would recommend he not be re-employed for the following year, and asked him to resign. At this meeting plaintiff’s problems concerning discipline, class atmosphere, and student communication were again discussed. Plaintiff did not testify at the hearing, but he did call six teachers who testified that grading standards are subjective and flexible, and two students who testified that vulgar language was used elsewhere in the school and that other teachers also physically abused students.

After the hearing the board affirmed its decision to terminate the plaintiff, specifically finding that the probationary period of the plaintiff was extended for an additional school term in February of 1971, that plaintiff had received actual notice thereof at least 60 days before the end of the school year, that plaintiff had not acquired tenure, that even if plaintiff had acquired tenure, all applicable statutory provisions concerning the dismissal of a tenured teacher were complied with, that the evidence established plaintiffs lack of discipline or control and his unexplained grading system, and that plaintiff’s deficiencies were irremedial.

On June 23, 1972, plaintiff filed a complaint in the circuit court of Macon county for administrative review. On February 1, 1973, the court reversed the school board’s decision and reinstated plaintiff finding that plaintiff was tenured, that the charges against plaintiff were remedial, and that notice of those charges was required but not given.

We agree with the trial court that plaintiff was tenured. Section 24 — 11 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 11) states “Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service [tenure] * * *. If, however, a teacher has not had one school term of full-time teaching experience before the beginning of such probationary period, the employing board may at its option extend such probationary period for one additional school term by giving the teacher written notice by registered mail at least 60 days before the end of the second school term of the period of 2 consecutive school terms referred to above. Such notice must state the reasons for the one year extension and must outline the corrective actions which the teacher should take to saaisfactorily complete probation.” In the instant case the school board on February 15, 1971, of plaintiff’s second consecutive school year, extended plaintiff’s probationary period for a third year. The school board concedes that it did not notify plaintiff of the extension by registered mail as required by statute. However, it is also conceded that plaintiff acquired actual notice of the school board’s actions by reading the school board minutes supplied all the teachers. Hence, the school board contends that the statutory requirement of formal notice is satisfied when actual notice is established and cites Reynolds v. City of Tuscola, 48 Ill.2d 339, 270 N.E.2d 415, in support thereof. In Reynolds the plaintiff served notice on the defendant city by registered mail with return receipt requested when the Local Government Tort Immunity Act required personal service. The supreme court found that the notice there was proper because a more restrictive interpretation of the statute could lead to absurd and unjust consequences. In that case plaintiff made a good-faith attempt to convey notice in a manner which was as good as, if not better than, the statutorily required method, and actual notice was, in fact, received. In the instant case, however, the defendant school board made absolutely no attempt to convey notice to plaintiff by any means whatsoever. The mere fact that plaintiff received actual notice by fortuitously reading the minutes of the board meeting sent to all teachers is not by any stretch of the imagination a method of conveying notice which is equivalent to that required by statute within the purview of Reynolds, and such a blatant disregard of the statute is not to be condoned. Therefore, by serving two consecutive school terms without receiving the statutorily required notice of an extension of his probation, plaintiff became tenured at the beginning of his third school year.

If the charges are remedial, a tenured teacher may only be dismissed when written notice of the specific charges are served on the teacher 60 days before the end of the school year. (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12.) In the instant case the trial court reversed the finding of the school board and found that the charges against plaintiff were remedial and required written notice. We disagree. A cause is irremedial when irreparable damage has already been done and cannot be remedied. (Jepsen v. Board of Education, 19 Ill.App.2d 204,153 N.E.2d 417.) The charges here are essentially of a remedial nature, if considered alone and to the exclusion of other pertinent facts, especially those relating to the maintainance of discipline and order. (Smith v. Board of Education, 19 Ill.App.2d 224, 153 N.E.2d 377.) Nevertheless, it has been stated that where defects which are remedial in nature continue for a long enough period of time and where the teacher refuses or fails to remedy them, they may be considered to be irremedial. (McLain v. Board of Education, 36 Ill.App.2d 143, 183 N.E.2d 7; Robinson v. Community Unit School District No. 7, 35 Ill.App.2d 325, 182 N.E.2d 770.) Such is the case here. More than one year before dismissal in February of 1971, plaintiff’s probationary period was extended because of an awareness of plaintiff’s difficulties and shortly thereafter in April of 1971, plaintiff, upon request, was informed by the superintendent of the school district that the school was concerned about plaintiff’s discipline problems, his failure to maintain a proper learning atmosphere and his lack of rapport with students. In September of 1971 the principal approached plaintiff about his disciplinary problems and his lack of rapport with his students and offered suggestions to help resolve them. In November of 1971 the principal warned plaintiff that his problems were continuing and that if there was not some improvement, he would recommend that plaintiff not be re-employed. On January 25, 1972, the superintendent and the principal talked with plaintiff, discussed his problems regarding discipline, class atmosphere and student communication, and told him they would recommend he not be re-employed the following year. Other instances of reprimands and encounters throughout tire winter of 1971 anti the early part of 1972 concerning arbitrary grading and physical abuse indicates that both plaintiff and the school administrators were clearly aware, for a lengthy period of time before final action was taken, of plaintiff’s deficiencies and that he might not be re-employed. Whether or not causes for dismissal of a teacher are irremedial is a question of fact whose initial determination lies within the discretion of the school board. (Wells v. Board of Education, 85 Ill.App.2d 312, 230 N.E.2d 6.) Therefore, on the basis of the record before us, the school board’s finding that plaintiff’s deficiencies were irremedial was clearly not against the manifest weight of the evidence, and written notice of such defects was not required before action could be initiated to dismiss plaintiff.

A school board may dismiss a tenured teacher for # * incompetency, cruelty, negligence, immorality or other sufficient cause and * * * whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it * * (Ill. Rev. Stat. 1973, ch. 122, sec. 10 — 22.4.) A court of review will not interfere with the school board’s decision regarding dismissal unless the board acts in an arbitrary or capricious manner or the reasons formulated for such a dismissal are against the manifest weight of the evidence. (Lombardo v. Board of Education, 100 Ill.App.2d 108, 241 N.E.2d 495.) In the instant case ten of plaintiff’s former students testified to the constant loud noise and general disorder in plaintiff’s classrooms, to physical abuse by the plaintiff of various students, and to arbitrary grading policies. In addition, the principal and superintendent testified to hearing and observing disorder and loud noises in plaintiff’s classroom over a long period of time. Furthermore, the principal testified to specific instances of the use by plaintiff of physical force to subdue students and to the failure of plaintiff to satisfactorily explain his grading policies. Plaintiff, however, failed to introduce any evidence controverting the disorder and lack of discipline in his classroom or his own excessive use of force but merely called various teachers who testified that grading standards are subjective and flexible, and various students who stated that other teachers physically abuse students and that vulgar language is used elsewhere in the school. The school board’s dismissal of plaintiff is then clearly not against the manifest weight of the evidence.

Accordingly, for the reasons given above, the judgment of the circuit court of Macon County reinstating plaintiff as a teacher in defendant school district is hereby reversed.

Judgment reversed.

TRAPP, P. J., concurs.

Mr. JUSTICE CRAVEN

dissenting:

The majority opinion of their holding reverses the circuit court of Macon County and affirms the action of the Board of Education. In so doing, the majority necessarily approves of a procedure that is devoid of even rudimentary due process.

In this case, a teacher was fired from his position by the school board. The teacher sought and obtained administrative review and the trial court held that there had not been adequate notice; that the teacher had acquired tenure status; and that the charges against the teacher were remedial and that the school board’s finding that the deficiencies were irremedial were against the manifest weight of the evidence. The trial court not only reinstated the teacher but he ordered costs and attorney fees. The majority of this court disagrees and reverses based upon a record that was produced by a hearing and based upon a procedure that in my opinion is devoid of the required due process procedure.

It is fundamental that a teacher, tenured or untenured, cannot be discharged without a predischarge hearing that complies with due process. (See Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701; Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694.) A hearing required under Roth or Sindermann must of course be a fair hearing “and, of course an impartial decision maker is essential.” Goldberg v. Kelly, 397 U.S. 254, 271, 25 L.E.2d 287, 301, 90 S.Ct. 1011.

In this case, the Board of Education extended the plaintiff”s probationary period for certain reasons, ultimately determined to fire him, he learned of the charges through the principal, subsequently received a bHl of particulars, and then a hearing was conducted before the Board of Education sitting in judgment upon its own charges. This procedure, outlined by statute, compels the teacher to submit his controversy to a tribunal of which his antagonists are members and the antagonists pass ultimate judgment upon his conduct. Such does not afford due process of law nor any semblance of due process. In Eidenmiller v. Board of Education, 28 Ill.App.2d 90, 170 N.E.2d 792, an abstract opinion, Mr. Justice Smith, in a concurring opinion stated:

“The Teacher Tenure Law was designed to cure then existing evils in our school system by providing a speedy, simple procedure for the dismissal of teachers based on charges, notice, a fair hearing and a speedy judicial review under the provisions of the Administrative Review Act. These benign pmposes become obscure in this record. In Lusk v. Community Consolidated School District, 20 Ill.App.2d 252, we had occasion to say that a teacher is not entitled to a hearing, she is entitled to a fair hearing, that administrative agency does not represent one party against the other, I Illinois Law and Practice, page 461, and our study of the record raises a grave doubt that the hearing afforded in this case was the type of hearing which the legislature had in mind when it enacted the Teacher Tenure Law’. What we then said of that record we now say of this. # * Other States have been confronted with the unique problem here confronting us. ‘The anomaly in procedure which permits the board of education to serve in the triple capacity of complainant, prosecutor and judge makes it vitally necessary that in reviewing administrative decisions courts zealously examine the record with a view to protecting the fundamental rights of the parties.’ State ex rel. Steele v. Board of Education, 252 Ala. 254. In discussing dual functions similar to those here, Judge William J. Brennen, Jr. (now Justice of the United States Supreme Court) had this to say: ‘The substantiality of evidence must take into consideration whatever in the record fairly detracts from its weight’, In re Larsen, 17 N.J. Super. 564, and held that the implications arising from the merger of functions could be so considered. In the case before us now, we deal not with a dual role, not with a triple role, but with the quadruple roles of complainant, prosecutor, judge and witness in a single tribunal. Our Supreme Court once said of a similar statute that, ‘a statute which compels a (sic) litigant to submit his controversy to a tribunal of which his antagonist (sic) is a member makes his antagonist his judge and does not afford due process of law’. Commissioners of Drainage Dist. No. 1 v. Smith, [233] Ill. 417.”

In Miller v. Board of Education, 51 Ill.App.2d 20, 41-42, 200 N.E.2d 838, the court specifically noted the concurring opinion in Eidenmiller and stated:

‘We are in accord with what is said in that opinion and conclude that the plaintiff in the instant case was prevented from having a fair trial by the multiple capacities in which the School Board and its attorney were functioning. We also conclude that the charges which were proved against the plaintiff were remediable and would therefore have required a warning notice. The judgment of the Circuit Court is affirmed.”

In Pickering v. Board of Education, 36 Ill.2d 568, 225 N.E.2d 1, Mr. Justice Schaefer in a dissenting opinion, concurred in by the then Chief Justice, criticized the fact that charges were formulated by the very members of the Board who then would determine the validity of the charges. In his dissent, Justice Schaefer said: “The unseemliness, if not the unconstitutionality, of this procedure reinforces my doubt that the General Assembly intended that it should apply to the exercise of first-amendment rights.” (36 Ill.2d at 580.) The Illinois Supreme Court affirmed the dismissal of the plaintiff in Pickering; the United States Supreme Court reversed that discharge upon first-amendment grounds and did not comment upon the due process issue. (See Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731.) In 2 Davis, Administrative Law Treatise, at 182 (1958 ed.), there is some some discussion as to the necessary flexibility of due process requirements in the light of what is referred to as a rule of necessity. The so-called rule of necessity cannot be used to effect a total denial of due process rights. Indeed, in his dissenting opinion in Pickering, Justice Schaefer negated the existence of a rule of necessity in our statutory scheme, saying:

“A legislative system which, as in this case, casts them in the role of aggrieved victims who formulate, prosecute and punish charges based on their grievances is not, in my opinion, compatible with' present standards of due process. Nor is such a procedure necessary, for charges of this sort could readily be heard and determined by the County Board of School Trustees, the County Superintendent of Schools, or the Superintendent of Public Instruction. The problem is particularly acute when the sanction of discharge is involved, for then the board must determine whether the condition that gives rise to the discharge is remediable. In a discharge case the board has already determined that the condition cannot be remedied, and it is hard to see how members of the board can be expected to review that determination impartially when the conduct upon which the discharge is based involved their personal grievances.” (36 Ill.2d at 585.)

Present standards of due process prohibit the combination of functions found in this record. Upon judicial review limited by statute to that record, without a de novo proceeding, this court reverses the trial court, finds a valid basis for discharge and that the grievances against the teacher were not remedial. In so doing, they stamp the statutory procedure as judicially approved. I would stamp it as offensive to due process.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN

license: Public Domain

text:
    Margie King, Plaintiff-Appellant, v. William Louis King, Defendant-Appellee.
    (No. 12590;
    Fourth District
    September 5, 1974.
    Eugene M. Thirolf, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for appellant.
    No appearance for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Plaintiff filed a complaint to obtain a divorce. A motion to proceed as a poor person was filed in which she stated that she was unable to pay filing fees or other costs relating to her action, including the cost of serving her husband, a non-resident, by publication. The trial court entered an order that the county of Champaign be made a party defendant and entered an order allowing the requested waiver of fees and costs except for the costs of publication. The plaintiff attempted an appeal of that order. The county, by a general appearance, sought to be dismissed as a party defendant in this court.

We remanded this case to the circuit court to consider certifying a question of law in accordance with the provisions of Supreme Court Rule 308 (Ill. Rev. Stat. 1971, ch. 110A, f 308). The court did so and certified to us the following question:

“Is the Plaintiff, who is a poor person within the meaning of Ill. Rev. Stat. Ch. 33 § 5 (1971), entitled to a waiver of the cost of service by publication against the Defendant by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 1 § 2 of the 1970 Constitution of Illinois in that Plaintiff is being denied redress in the courts because she is poor?”

Thereafter, this court granted leave to appeal.

The certified question is answered in the affirmative.

In Boddie v. Connecticut, 401 U.S. 371, 28 L.Ed.2d 113, 91 S.Ct. 780, the United States Supreme Court held that denial of access of the courts by the requirement of court fees and service of process fees for indigent divorced plaintiffs violated the fourteenth amendment to due process rights of such plaintiffs. The court stated:

“Our conclusion is that, given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” (401 U.S. at 374, 28 L.Ed.2d at 116-117.)

Further, with reference to service by publication, the court said:

“In the same vein we think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant’s attention the pendency of judicial proceedings. See Mullane v. Central Hanover Tr. Co., supra. [339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652.] We think in this case service at defendant’s last known address by mail and posted notice is equally effective as publication in a newspaper.” (401 U.S. at 382, 28 L.Ed.2d, at 121.)

In this case, the trial court observed that the plaintiff cannot obtain a divorce from the defendant unless and until the plaintiff served the defendant pursuant to the requirements of section 14 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, ][ 14). Plaintiff is thus effectively barred from a judicial remedy relative to a fundamental human relationship in the face of state monopolization of the means of dissolving that relationship. In our view this is expressly within the proscription of Boddie. In Monroe v. Monroe (Ct. C.P.), 33 Ohio Misc. 223, 294 N.E.2d 250, 252, 62 Ohio Op.2d 370, 371, the court stated:

“Where, as here, the plaintiff is a recipient of public assistance and cannot pay the cost of service by publication without depriving his or her family of the necessities of life, it is the opinion of this court that the decision in the Boddie case requires the county to pay for the cost of service by publication. To hold otherwise would place this Court in direct conflict with the Supreme Court’s holding in Boddie; #

See also Deason v. Deason, 32 N.Y.2d 93, 343 N.Y.S.2d 321, 296 N.E.2d 229; 8 Harv. Civ. Rights — Civ. Lib. L. Rev. 571, et seq. (1973).

The State of Florida has reached the same conclusion with reference to publication costs as a condition precedent to court access in an adoption case. Grissom v. Dade County (Fla.), 293 So.2d 59.

Although the plaintiff relies upon the provisions of sections 5 and 6 of the statute on costs (Ill. Rev. Stat. 1973, ch. 33, jfj[5, 6), we need not engage in consideration or discussion of these sections since in our view regardless of the construction, the issue presented by the certified question is determined by constitutional mandate without reference to the statute on costs. Accordingly, the motion to dismiss this appeal is denied; the certified question is answered in the affirmative; and this cause is remanded to the circuit court of Champaign County for further proceedings consistent with the views set forth in this opinion.

Remanded with directions.

SMITH, P. J., and SIMKINS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester Paul Gooding, Defendant-Appellant.
    (No. 12361;
    Fourth District
    September 5, 1974.

      John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edwin R. Parkinson, State’s Attorney, of Jacksonville, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted for and in a jury trial convicted of rape. Judgment was entered on the verdict and defendant was sentenced to an indeterminate term of 6 to 20 years. Defendant appeals.

Defendant urges six issues for review. One of these issues is disposi-tive and therefore we will not address the remaining issues. Defendant submits that he was entitled to be discharged for he was not tried within 120 days from the date he was incarcerated on the charge of rape. We agree.

On September 27, 1972, a warrant was issued for defendant’s arrest charging him with the rape of Elaine Young, which occurred on September 21, 1972. The next day defendant was apprehended and brought before the Honorable Gordon D. Seator. At that time he was admonished of his rights and counsel was appointed to represent him. Defendant’s preliminary hearing was set for October 18, 1972. This hearing was continued by agreement of counsel until October 25, 1972. On the date the healing was set defendant requested that the preliminary hearing be postponed until November 3, 1972. The hearing was held on November

3. At the hearing probable cause was established and defendant was bound over to the grand jury. Defendant was in custody during this time with bond set in the amount of $10,000.

Defendant filed an oral motion for reduction of bond on November 21, 1972. This motion was denied and defendant remained in the custody of the sheriff until January 22, 1973. At that time the sheriff released the defendant from the county jail without defendant posting the required bond. He had been incarcerated for 118 days.

An indictment was returned on February 13, 1973, charging the defendant with the offense of rape. Defendant was arraigned on the indictment on February 20, 1973. At the arraignment defendant entered a plea of not guilty and demanded a jury trial. Defendant subsequently filed a written motion to dismiss for want of a speedy trial. The motion reiterated the above-mentioned facts. It also specifically alleged that the defendant was released from custody by the sheriff of Morgan County without authority and without defendant posting the required bond; and that the release was solely calculated to prevent defendant’s discharge due to the failure of the people to try him within 120 days from his initial incarceration as mandated by section 103 — 5 of the Criminal Code of Procedure (Ill. Rev. Stat. 1971, ch. 38, jf 103 — 5). The trial court denied defendant’s motion after a hearing thereon. Defendant’s trial began on April 24,1973.

Section 103 — 5 states:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within- 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.”

The section states further that:

“(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.”

It is axiomatic that the 120-day rule enunciated in section 103 — 5 is a means of securing the defendant’s individual civil liberties and results in compelling the State to expeditiously dispose of criminal litigation. The supreme corut has held time and again that technical evasions of this rule by the State will not be tolerated. (People v. Spicuzza, 57 Ill. 2d 152, 311 N.E.2d 112.) This section clearly places the burden on the prosecutor to seek a speedy disposition of all charges pending against defendant who is in custody. When a defendant requests or agrees to a continuance which causes or contributes to a delay in bringing defendant to trial, he, and not the prosecutor, is held accountable for this delay. People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129.

The State submits that defendant is not entitled to be discharged under the 120-day rule since he was not in custody for 120 days without being tried. The State points out that defendant was released 118 days from his initial incarceration by the sheriff of Morgan County; thus, defendant cannot invoke the sanctions of the 120-day rule. The State claims that the purpose of the 120-day rule is to protect defendants against a situation wherein they could be kept in jail indefinitely without an adjudication of guilt or innocence.

The release of defendant by the sheriff on the 118th day was unauthorized by the court. It is clear that this release was an effort by the authorities to circumvent the prophylactic effect of the 120-day rule. This attempt to evade the technical effects of the rule cannot be countenanced.

The release of any defendant must be accomplished in an orderly and legitimate manner. It is an absurd argument that a defendant can be incarcerated for a period of time only to be released upon the caprice of the sheriff or the States attorney in order to avoid the 120-day rule. To sanction such conduct would amount in rendering section 103 — 5 meaningless.

The record reveals that from the date of defendant’s incarceration until the date of his trial, there were three continuances made by the respective parties: On October 18, 1972, by agreement of counsel, the preliminary hearing was continued; on October 25, 1972, an oral motion by defendant for continuance of the preliminary hearing was again made; on February 16, 1973, defendant filed a motion for continuance of the arraignment on the indictment, which had been handed down on February 13, 1973. Defendant argues that since the October 18 and 25 continuances occurred before he was indicted, they do not qualify as delays attributable to him which would result in the 120-day period beginning anew. He urges that he cannot be charged with a delay of his trial when the State had not taken the initial step in the prosecution process, i.e., an indictment. This argument implies that a defendant cannot be charged with any delay prior to indictment. We can only accept a portion of defendant’s contentions.

We agree with defendant that the two continuances filed in October 1972 do not amount to a delay attributable to him, because postponing the preliminary hearing did not hinder nor delay the eventual trial of defendant.

In People v. Hendrix, 54 Ill.2d 165, 295 N.E.2d 724, the court found that, notwithstanding the fact that a preliminary hearing has a constitutional character (Ill. Const. (1970), art. I, §7), it is not an absolute prerequisite to criminal prosecution. An indictment is. In that case the court held when a defendant is properly indicted the necessity for a prehminary hearing to establish probable cause is vitiated. The court cited section 111 — 2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, j[ 111 — 2), which provides that all prosecutions of felonies shall be by indictment. It found that without an indictment a defendant could not be brought to trial on a criminal charge; and that it is not necessary for an indictment to be preceded by a preliminary hearing in all cases. As a general proposition, findings at the preliminary hearing are not binding on the prosecutor. Even if probable cause is not established at the hearing, the prosecutor can still seek an indictment against a defendant.

In this case as in Hendrix, the defendant could not be brought to trial without first being indicted on the charge. Therefore, his request for a continuance of his preliminary hearing did not delay the prosecutor in bringing him to trial. Of course, any delay which is attributable to defendant that affects the ability of the prosecutor to bring defendant to trial will toll the statute. This is true even if defendant had not yet been indicted. For the purpose of the 120-day rule the critical date is when defendant is incarcerated, on the charges, not the date of indictment.

Defendant was incarcerated on September 28, 1972. He was effectively in continuous custody, uninterrupted by delay attributable to him, until February 16, 1973, notwithstanding the fact that he had been released by the sheriff on January 22, 1973. Such release could not alter his then status. On February 16 defendant sought and obtained a continuance in the arraignment on the indictment. This continuance was a delay attributable to defendant. However, well over 120 days had elapsed since his initial incarceration and he should have been discharged pursuant to his motion.

In Baker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182, the United States Supreme Court held that a claim a defendant has been denied his right to a speedy trial is subject to a balancing test in which both the conduct of tire prosecutor and the defendant are weighed. The court made that statement in conjunction with the fact that the defendant has no duty to bring himself to trial for the State has that duty as well as the duty of insuring that a trial is consistent with due process. It is clear from the aforementioned facts that defendant was denied a speedy-trial under both the Illinois statute and the United States Constitution. The judgment of the circuit court is therefore reversed.

Judgment reversed. Defendant discharged.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jessie Ellis Fox, Defendant-Appellant.
    (No. 12048;
    Fourth District
    September 5, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville, for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction of burglary entered upon a jury verdict. A sentence of 5 to 15 years was imposed.

Defendant’s only contention is that the sentence is excessive. The evidence in aggravation and mitigation shows that defendant had two prior burglary convictions. Sixteen months prior to the instant offense, defendant had been released on parole after serving 2Vz years on a 3- to 8-year sentence imposed for his second burglary conviction. Sentencing is a matter of judicial discretion and the sentence imposed by the trial court should not be altered unless it is apparent that the judge abused his discretion. (People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527.) We cannot say that the sentence imposed was excessive.

At the time defendant was sentenced, burglary was punishable by imprisonment in the penitentiary for a minimum term of 1 year- with no maximum term. (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1(b).) Burglary is now a Class 2 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 19 — 1(b)) with a maximum sentence of 20 years. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1(b)(3).) Where, as here, a defendant was sentenced prior to the effective date of the Unified Code of Corrections but his case is pending on direct appeal, the case has not reached a “final adjudication” within the meaning of section 8 — 2 — 4 of the Code, and he is entitled to be resentenced under the provisions of the new Code if the penalty is less than under the prior law. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2 — 4; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Defendant therefore is entitled to resentencing under the Unified Code of Corrections.

The judgment of conviction is affirmed. The sentence is vacated, and the cause remanded to the circuit court of Vermilion County for resen-tencing under the Unified Code of Corrections.

Judgment affirmed, sentence vacated, remanded with directions.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People ex rel. Jack Brady, Petitioner-Appellant, v. Hugh Campbell, Sheriff of Sangamon County, Respondent-Appellee.
    (No. 12628;
    Fourth District
    September 5, 1974.
    John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Petitioner appeals from the order denying a writ of habeas corpus (Ill. Rev. Stat. 1973, ch. 65, par. 1 et seq.).

Petitioner was incarcerated in the Sangamon County Jail on July 5, 1973, on a 1-year sentence for a conviction entered pursuant to a negotiated plea of guilty to aggravated battery. On April 22, 1974, he was released from custody by the Sangamon County sheriff who had allowed credit for “good time” at the merit good behavior allowance rate pursuant to the Misdemeanant Good Behavior Allowance Act (Ill. Rev. Stat. 1973, ch. 75, pars. 30 — 34). On April 23, 1974, a bench warrant was issued for petitioner’s arrest pursuant to motion of the State’s Attorney alleging that the terms of petitioner’s plea agreement required petitioner to actually serve 1 full year on the sentence and that he not be released prior to July 4, 1974. At the hearing on the petition for habeas corpus, the trial court determined that under the terms of petitioner’s plea agreement, he had waived, and was not entitled to any credit for “good time” against his 1-year sentence.

The State has failed to file a brief in this court and has made no request for extension of time for filing briefs. The State has taken no other action to support the order of the trial court. We have examined the record and have concluded that pro forma reversal would not result in substantial injustice, and accordingly, the order of the trial court denying the petition for habeas corpus is reversed. People v. French, 9 Ill. App.3d 797, 293 N.E.2d 136.

Reversed.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE KUNCE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Green, Defendant-Appellant.
    (No. 12155;
    Fourth District
    September 5, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanlas, State’s Attorney, of Decatur (Patrick M. Walsh, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE KUNCE

delivered the opinion of the court:

The defendant was sentenced to an indeterminate term of 14 to 18 years on a negotiated plea of guilty to one count of a two-count indictment charging murder of Velma Daley by striking her during the course of a robbery on April 28, 1972. The record reflects that the plea was a part of defendant’s plea negotiations on two different robbery charges allegedly committed on July 17, 1972, wherein one charge was to be dismissed, together with the second count of murder; and the defendant would also plead guilty to the other robbery charge with a 2- to 7-year term to run concurrently with the murder term. The defendant confessed all the crimes while in custody on July 19, 1972. His motions to suppress various evidence including the murder confession were heard and denied by the trial court.

This is an appeal of the murder conviction and the only question raised is whether defendant’s plea of guilty to the murder charge was made knowingly and voluntarily by reason of the fact that the defense counsel indicated at the time the plea was taken that the plea was not intended to waive the defendant’s nonexistent right to appeal the court's ruling on the motions to suppress confessions.

The defense has not raised the issue of incompetence of counsel nor contended that the defendant was tricked or misled into pleading guilty nor has the voluntariness of the plea or the adequacy of the trial court’s admonition been attacked on any basis other than that dealing with waiver of the right to appeal the ruling on the motion to suppress.

The trial court found that the plea was voluntarily and knowingly entered and fixed sentence of 14 to 18 years in accordance with the plea negotations. After the factual basis for the plea was introduced into the record, the following discourse ensued:

“THE COURT: Mr. Johnson, anything to add to the factual representation?
MR. JOHNSON: Yes, Your Honor. I would like it to be made clear in the record as far as in this cause, Mr. Green has made a confession which this Court has found to be valid and since our motion to suppress that confession was denied, the likelihood of conviction at this level is very strong, and our plea is based on that likelihood with the inclusion of this confession. Without that finding, there probably would not have been a plea of guilty and we don’t intend in this plea to constitute any waiver of his right to appeal concerning the validity of any confession he may have made in this case.
As far as the factual representations concerning the cause of death, I have interviewed Doctor Crisastomo concerning pathology and cause of death and I am in agreement with the statement made by the State’s Attorney on this matter.
THE COURT: Mr. Green. I asked before and I ask again, do you understand the deal that is being presented to the court?
DEFENDANT: Yes.”

It is clear that defense counsel could not reserve the right to appeal the denial of the motion to suppress since a voluntary guilty plea waives all non-jurisdictional errors in defendant’s conviction. Tollett v. Henderson, 411 U.S. 258, 36 L.Ed.2d 235, 93 S.Ct. 1602; People v. Dunn, 52 Ill. 2d 400, 288 N.E.2d 463.

Whether or not defense counsel was aware of this fundamental proposition of law does not determine his incompetency nor indicate that defendant was misled by him even if these issues had been raised. In Henderson, the Supreme Court held that when a defendant pleads guilty on advice of counsel, to sustain a contention of incompetence of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. The decision of McMann v. Richardson, 397 U.S. 759, 25 L.Ed.2d 763, 90 S.Ct. 1441, makes it clear that the question of being misled by counsel goes to the issue of effective assistance of counsel rather than directly to the issue of voluntariness of the guilty plea. Here the court stated:

“Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, * * * on whether that advice was within the range of competence demanded of attorneys in criminal cases.” (397 U.S. at 770, 771.)

When we examine this record before us on the matter of the advice of counsel to plead guilty as distinguished from any misrepresentations concerning the right to appeal, it would be quite difficult indeed to find that the advice was beyond the range of competence demanded of attorneys in criminal cases. The advice to plead guilty resulted from a negotiation whereby a 14- to 18-year sentence would be imposed for murder, concurrently with another sentence on a totally separate robbery conviction, and other charges would be dropped. In addition, defendant had made several confessions which had withstood counsel’s motion to suppress, and it was conceded that defendant would probably be convicted on the basis of these confessions and other corroborative evidence.

Although we do not pass upon the correctness of the trial court’s ruling on the motion to suppress, as that question is not before us, there is no contention, appearance or indication either from the motion, the evidence introduced on it or the court’s ruling thereon, of gross obvious error; absent which, the advice to plead guilty rather than risk the ruling on the motion at the appeHate level, and the sure loss of the concurrent sentence for the armed robbery and the minimal sentence given on a brutal attack and murder, hardly appears to be incompetent.

The defendant’s contention is that the trial court should have admonished him that his guilty plea waived his right to appeal the issue of the court’s ruling on the motion to suppress, otherwise his plea was qualified and not knowingly made. To support this contention, the defense cites two Fifth District appeHate decisions, People v. Sims, 133 Ill.App.2d 878, 272 N.E.2d 443, and People v. Spurlock, 19 Ill.App.3d 474, 311 N.E.2d 739. The trial court in Sims did admonish the defendant that by pleading guilty he waived any error in the court’s denial of his motion for discharge under the 120-day rule; however, the language of the court approving the trial court’s admonition in that case cannot be interpreted as necessary for the court’s decision nor as a mandate requiring such admonition by trial courts in all cases under the same or similar circumstances. In Spurlock, the State’s attorney joined with defense counsel’s misrepresentations of nonwaiver of errors on appeal of the court’s ruling on non-jurisdictional motions by erroneously agreeing and expressly stating when the plea was accepted that the errors in such rulings would be preserved for purposes of appeal. There the misrepresentations of the State in addition to that of defense counsel, without admonishment by the court, would bring the plea of guüty within tire fine of cases holding that where a defendant has been misled by the court or the prosecutor, not defense counsel, as to a matter of fact or law, his guilty plea cannot stand. Spurlock did not deal with misrepresentations caused by defense counsel only. Such is not true in the case before us, nor does the defense raise any issue of defendant’s being misled or tricked into pleading guilty.

The fact that the defendant did not correeÜy assess every relevant factor entering into his decision to plead guilty does not render his plea invalid. (Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463.) This includes the situation where at the time of the plea the defendant may have had a possible claim to suppress evidence, which in itself does not render a plea of guilty involuntary where the defendant is represented by counsel and his plea is fuHy explained. People v. Covington, 45 Ill.2d 105, 257 N.E.2d 106.

With respect to the admonition itself, it is clear that Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, ft 402) was substantially complied with, as were the requirements of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. Boykin requires that because a guilty plea is itself a conviction which necessarily involves the waiver of three important constitutional rights, that waiver must be knowing and understanding. Boykin however deals only with the constitutional rights of freedom from self-incrimination, jury trial, and confrontation of accusers. The admonishment here clearly indicates that those rights were knowingly and voluntarily waived.

Supreme Court Rule 402, if complied with, satisfies the Boykin requirements. Rule 402 goes even further than Boykin in its requirements for admonitions prior to the acceptance of guilty pleas, but neither Boykin nor Rule 402 requires that the defendant be admonished that his guilty plea waives error in a prior ruling on a motion to suppress; and we do not believe that it should be so broadened absent decision or amendment of the Rule by the supreme court. This court in People v. Prater, 12 Ill.App.3d 452, 299 N.E.2d 26, has held that where a defendant urged that his plea was invalid because the trial judge failed to admonish him that by pleading guilty he was waiving any defense involving search and seizure of certain evidence, did not require such an expansion of Rule 402 which is specific in its requirements. This case does not differ in substance from Prater, by reason of the fact that the record here indicates that counsel claimed he did not waive defenses pertaining to the motion to suppress a confession.

The advice of counsel to plead guilty was competent, Supreme Court Rule 402 was complied with and we find that the defendant’s plea was knowingly and intelligently entered; and for the reasons stated. in this opinion, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy L. Washington, Defendant-Appellant.
    (No. 12620;
    Fourth District
    September 5, 1974.
    John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Kai A. Wallis, of Circuit Attorney Project, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the cotut:

As a result of a traffic accident, the defendant was charged with (1) driving under the influence of intoxicating liquor, (2) leaving the scene of an accident, (3) reckless driving, (4) failure to yield to a pedestrian at a crosswalk, (5) improper use of registration, and (6) failure to secure new registration. The defendant pleaded guilty to Counts I and IV above recited, and the remaining counts were dismissed.

In informing the defendant of the nature of the charges, the court specified that he was charged with driving while under the influence of intoxicating liquor on the 5th day of December, 1972, at approximately 5:20 P.M. at the general location of Main Street and Dry Grove in Normal, Illinois, and that the charge of failure to yield to a pedestrian at a crosswalk appeared from the complaint to have occurred at the same location, time, and date, and inquired of the defendant whether he understood both of the charges. The defendant replied, “Yes, Sir.” In reply to whether or not he understood what it is you’re charged with, the defendant replied, “Yes, Sir.” The court: “Do you have any questions, etc.?” Defendant: “No, Sir.” The comt: “Do you have any questions about either of the two charges?” Defendant: “No, Sir.” The trial court next proceeded to give him a thorough interrogation of his various rights and explained the penalty provisions for the offenses in question. Since the offenses occurred in 1972, and heard in 1973, defendant was informed of the possible sentences both before and after the new Code and gave him his choice. The State’s attorney provided an extensive factual basis for the plea and inquired of the defendant whether he had any questions at all about anything at this point. The defendant responded in the negative. The factual statement likewise indicated that the defendant had struck a pedestrian in a crosswalk while that pedestrian was crossing the street with the walk sign.

In People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533, it was stated that the crux of the requirement of Supreme Court Rule 402(a)(1) is understanding. In the case at bar, the only failure of the trial court was to specifically mention the section of the Code that proscribes the defendant’s conduct. We have a defendant who was a college graduate, who had received a prior driving while intoxicated conviction, who had received copies of the complaint, who was represented by privately retained counsel, and who had been informed of the day, time, and place of what he actually did. Under these circumstances, it seems to us pure sophistry to say that this defendant did not understand the nature of the charges or the consequences of his plea in either Count I or IV. Supreme Court Rule 402 requires only a substantial compliance with the Rule and a requirement that the defendant understand with what he is being charged. Under this record, the suggestion that the defendant did not understand the nature of the charges defies common sense and reality.

Secondly, the defendant states that the conviction for failure to yield to a pedestrian at a crosswalk should be reversed for the reason that both convictions arose out of the same transaction and were not independently motivated. The trial court did find the defendant guilty, but imposed no sentence on the second charge. While the fact that a single sentence was imposed is not controlling (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1), except where a single act of the defendant constituted both crimes, we do not believe that it can be said that the crime of driving while intoxicated and the failure to yield to a pedestrian in a crosswalk constitute a single act of the defendant for the simple reason that the drunken driving was of necessity a continuing violation, while failing to yield the right of way is limited to a precise point of time. It thus cannot be said that the one act constituted both offenses or that they were not separately motivated. In People v. Harvey, 5 Ill.App.3d 499, 295 N.E.2d the court held that the single common factor among the charges of driving while license revoked, leaving the scene of an accident, and failure to report an accident within 48 hours was that they just all related to the defendant’s having operated a motor vehicle. This decision was cited with approval by this court in People v. Gee, 18 Ill. App.3d 1058, 310 N.E.2d 662, and a similar result was obtained by this court in People v. Burch, 19 Ill.App.3d 360, 311 N.E.2d 410, where we held that speeding and reckless driving were two separate and distinct offenses. We adhere to these views here.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond Hainline, Defendant-Appellant.
    (No. 12297;
    Fourth District
    September 5, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The single issue in this case is whether or not the circuit court of Adams County abused its discretion in revoking defendant’s sentence to periodic imprisonment and in sentencing the defendant to the penitentiary for a period of 2 to 8 years. The periodic imprisonment sentence was imposed on a charge of burglary and was an agreed sentence. Involved in the burglary was the theft of a television set. Under the terms of the periodic sentence, the defendant was released from 10 o’clock to noon and from 1:30 to 3:30 P.M. to seek employment with the provision that when he found employment a modified order would be entered to facilitate his employment and as a further condition of the periodic imprisonment the defendant was not to consume any alcoholic beverages or enter any place where alcoholic beverages were sold for any reason whatsoever.

A week later a petition to revoke the sentence to periodic imprisonment was filed alleging that the defendant had entered the Katty Komer Tavern and consumed alcoholic beverages. His violation of the terms of his periodic imprisonment is undisputed. The sentencing hearing on revocation was continued from time to time because the defendant was in Jacksonville State Mental Hospital under a civil commitment. At the time o£ the original offense, the defendant was apparently intoxicated. His parents were alcoholics and did not supervise him in his early home life. In the supplemental presentence report, a doctor from Jacksonville State Hospital diagnosed the defendant as an anti-social personality with alcoholic addiction. The defendant testified that after he obtained his job at a nursing home he did on the following day start to work, met some friends and entered the tavern where he was arrested and brought back to the county jail. The trial judge questioned him and he was not too sure of some of the details of his initial testimony. He was a trusty in the county jail, did various odd jobs for the jail authorities and assisted the sheriff’s office. He had likewise been cooperative in the jail in assisting the authorities with circumstances where there was danger to other inmates or to law enforcing authorities. The defendant said that he would like to go to some school to take up drafting, to start life all over again because he had been going to church, etc., and wanted to straighten out his life. This same testimony was given by him when the court was considering periodic imprisonment.

The presentence report indicates the defendant was declared a juvenile delinquent at age 15 and sent to the Illinois Youth Commission from which he was paroled and returned three times. His prior criminal record consists of a 1963 conviction for theft for which he served 20 days in the county jail because he couldn’t pay the fine; a 1963 conviction for driving without a license for which the defendant served 10 days in jail; a 1963 conviction for theft and possession of stolen property for which he was sentenced to 3 years’ probation and 45 days in the county jail; a 1963 revocation of his probation and a sentence of 9 months at the Illinois State Farm; a 1963 conviction for escape from the Illinois State Farm and a sentence of 1 to 10 years; three parole violations from this sentence until he was discharged on September 8, 1971; a 1971 conviction for driving without a license for which he served 3 days in jail; a 1971 conviction for theft, criminal trespass to a motor vehicle and driving without a license for which he was sentenced to 57 days in the county jail. After the hearing and before imposing sentence, the court stated that it had considered the various sentencing alternatives available and had decided to impose a sentence to the penitentiary of 2 to 8 years.

The defendant contends in this court that revoking his sentence to periodic imprisonment within a few days after it was invoked did not give that remedy an opportunity to work and did not provide for treatment of the defendant’s drinking problem. The defendant cites People v. Robinson, 12 Ill.App.3d 291, 297 N.E.2d 621, as authority for the proposition that the trial court should have provided treatment for his drinking problem. The difference between Robinson and the circumstances confronting us is that in Robinson the court was dealing with a narcotic addict and not one with drinking problems. The defendant was 31 years of age. The record recited above indicates that society has tried over a period of many years to give him an opportunity to rehabilitate without success. The trial judge was a member of the advisory committee on supervision in the community for the drafters of our new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1 — 1 et seq), and was acquainted with the defendant’s family while sitting as a family court judge. Under such circumstances, we would reiterate the views stated in People v. Sephus, 109 Ill.App.2d 240, 248 N.E.2d 293, that the trial judge was in a superior position to view the witnesses and observe the defendant. He considered all of the alternatives open to him, and stated that it was his hope that the Department of Corrections might at some time prior to the expiration of the defendant’s sentence make available supervision in a half-way house. It is apparent from this record that this defendant either can’t or won’t conform to accepted rules of conduct or comply with parole rules or accept reasonable supervision. Under the circumstances shown in this record, this court would be hard pressed to find an abuse of discretion on the part of the trial court.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Miller, Defendant-Appellant.
    (No. 73-124;
    Second District
    September 3, 1974.
    Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Karl J. Krueger, Defendant-Appellant.
    (No. 73-121;
    Second District
    September 3, 1974.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant, charged with armed robbery and conspiracy to commit armed robbery, pled guilty to the lesser included offense of robbery and was sentenced to 3 to 9 years in the Illinois State Penitentiary.

The sole basis for this appeal is that this defendant received a greater sentence than his codefendants.

The defendant, one Kathy Weeks Eorin and Michael Eorin, her husband, drove their car to about a block from a Union 76 gas station in Lake County. They had discussed the robbing of this gas station, and at this point Mr. Eorin tried to dissuade his wife from doing so. Mrs. Borin and the defendant, each armed with a pistol, and with silk stockings over their heads, went to the gas station and held up the attendant. Mrs. Borin did not remove the pistol from her pocket. The attendant was taken to the women’s wash room and, as the defendant was taking the money out of the cash register, the owner of the station arrived, scuffled with the defendant, took the defendant’s gun away from him, and the gun was discharged in the process. The owner, in subduing the defendant, hit him over the head with the gun. In the meantime Kathy Borin had fled from the gas station and was apprehended the next day. Mrs. Borin was sentenced to the State Reformatory for Women for 1% to 4 years. Mr. Borin, who had at first apparently been in on the plan to rob the station and then had tried to dissuade the others from doing so, was given 3 years’ probation with the first year to be served in the work-release program in the Lake County jail.

Defendant contends that the disparate sentence imposed on Mrs. Borin in contrast to the sentence imposed upon him warrants a reduction in his sentence to that imposed upon his codefendant.

At first blush it would appear that the culpability of Mrs. Borin was in fact equal to that of the defendant. The only difference in the degree of culpability being that Mrs. Borin did not remove her pistol from her pocket during the hold-up. Neither defendant nor Mrs. Borin has any prior record. The defendant at the time of the robbery was almost 19 years of age, and Mrs. Borin was about the same age.

Disparity of sentences does not of itself warrant reduction of the greater sentence imposed upon a codefendant. (People v. Thompson (1967), 36 Ill.2d 478, 482, 224 N.E.2d 264.) Similarly, the reduction of sentences by this court pursuant to Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(4)) should be exercised with caution as the trial judge ordinarily has a better opportunity during the course of the trial and in the hearing in aggravation and mitigation to make a sound determination of the sentence that should be imposed. People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673.

Despite the above, we believe that the sentence of the defendant should be reduced in view of the facts of this case. First, the accountability of the defendant was commensurate with that of his codefendant, Mrs. Borin, notwithstanding the fact that she did not in fact use the weapon with which she was armed in the robbery. Second, defendant was of approximately the same age as Mrs. Borin and, like Mrs. Borin, had no prior criminal record. Third, not only was the defendant remorseful for the act committed, the probation officer did not oppose probation; and for what it is worth, the defendant is a product of a broken home. It would appear fmrther that under proper guidance there is the potential for rehabilitation of the defendant.

Accordingly, the sentence of the defendant is reduced to that imposed upon his codefendant to a minimum of 1% years and a maximum of 4 years. As so modified, the judgment is affirmed.

Judgment of conviction affirmed; sentence modified.

T. MORAN, P. J., and SEIDENFELD, J„ concur.


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles L. Schultz, Defendant-Appellant.
    (No. 73-147;
    Second District
    August 1, 1974.

      Rehearing denied September 27, 1974.

    William L. Ralsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Thomas F. Sullivan, Jr., both of Model District State’s Attorneys Office, and Robert R. McWilliams, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Defendant appeals his conviction of petty theft on a plea of guilty and his sentence of 1 year to the Illinois Department of Corrections. He contends that (1) the record fails to show that his guilty plea was made voluntarily, (2) he was deprived of a fair sentencing hearing and (3) his sentence was excessive.

Defendant was stopped at the door of an Oseo Drug Store in Rockford after he was seen picking up a wrench and a set of wrenches (total value $7.48), hiding them on his person and attempting to leave the store without paying. The police were called and defendant was arrested.

At his arraignment defendant appeared without counsel and tendered a plea of guilty. The State’s Attorney had no police report available and the matter was continued by the court “for purposes of determining whether or not the plea of guilty will be accepted and for sentencing if the plea is accepted.”

At the continued hearing 4 days later the State’s Attorney summarized the police report. When the defendant stated he did not disagree with anything in the report and that he pleaded guilty, the trial court accepted the guilty plea by announcing that it would enter a judgment of conviction.

Defendant was then engaged by the State’s Attorney in a discussion of his prior record and acknowledged that he was on parole for car theft and had served 15 years in prison “for various things.” The following colloquy then occurred:

“The Court: I want to see his entire record before I sentence him.
Mr. Koski: [Prosecutor] Do you want to go back?
The Defendant: Well, I want to get my fine or whatever — to do six months or a year.
Mr. Koski: Do you want to go back is that what you are telling the Court?
The Defendant: No, I don’t want to go back. If it amounts to that why I want an attorney.
The Court: Do you want an attorney on the sentencing hearing?
The Defendant: But I don’t feel it’s necessary for a Petty Theft.
The Court: I will have you brought down at 1:30. I want tp see what your further report is.”

At the sentencing hearing the same afternoon the defendant stated to the court: “I expressed before I don’t believe it was theft because I didn’t get outside the building.” Before the State’s first witness, a correctional counselor employed by the Department of Corrections began his testimony, the trial court stated to the defendant: “Before we proceed I would like to know was your plea a voluntary one * * The defendant answered, “Yes.”

After the examination was concluded the defendant had no questions to direct to the witness. Upon the recommendation of the State’s Attorney the trial court then imposed the sentence of 1 year to the Department of Corrections. The defendant’s comment was, “That is a heck of a deal for six dollars [sic].”

We hold from the record here that the defendant did not make a knowing and intelligent waiver of counsel. He had stated firmly at the sentencing hearing that he did not “want to go back” to prison, stating: “If it amounts to that why I want an attorney.” He added his “feeling” that counsel was not necessary “for a petty theft.” In People v. Pruitt (1971), 2 Ill.App.3d 434, 436, we pointed out that in considering the words and conduct of the defendant we must indulge in every reasonable presumption against waiver of his constitutional right to counsel. In the case at bar there was no effective waiver of defendant’s right to counsel.

In Argersinger v. Hamlin (1972), 407 U.S. 25, 37, 32 L.Ed.2d 530, 538, 92 S.Ct. 2006, the United States Supreme Court held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

In view of our holding on this point we need not consider other contentions raised by the defendant.

The judgment of the Circuit Court of Winnebago County is therefore reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: PRESIDING JUSTICE G. MORAN.

text:
      In re Petition for the Annexation of Contiguous Territory to the City of Belleville.
    (No. 74-16;
    Fifth District
    August 2, 1974.
    Jones, Ottesen & Fleming, of Belleville (Patrick J. Fleming, of counsel), for appellants.
    John R. Sprague, Sr., of Belleville, for appellees.
   Opinion by Mr.

PRESIDING JUSTICE G. MORAN.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Margie Marks, Plaintiff-Appellant, v. The City of Johnston City, Defendant-Appellee.
    (No. 74-1;
    Fifth District
    August 5, 1974.

      Mitchell and Armstrong, Ltd., of Marion, for appellant.
    James B. Bleyer, of Marion, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff appeals from an order .granting defendant’s motion to dismiss her complaint for personal injuries.

On October 2, 1967, through her then attorney, plaintiff filed a notice with the cleric of the City of Johnston City pursuant to section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102). On March 26, 1969, she filed a complaint seeking damages for injuries she had incurred on April 4, 1967, because of slipping on a defective entranceway to the city clerk’s office. Thus her complaint was filed almost 2 years after her claimed injury. The Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat., ch. 85, par. 8 — 101) at the time provided that “no civil action can be commenced in any court against a local entity for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” The appellee filed a motion asking that the suit be dismissed for failure to file within the time specified by law. Appellant responded to this motion by asserting that the appellee was estopped or had waived the 1-year statutory limitation by the payment of certain medical bills, the result of which was to induce the appellant to forgo compliance with the limitation statute. The trial court granted the appellee’s motion and dismissed the complaint.

Plaintiff urges that the trial court was in error in dismissing the suit on the pleadings because the claimed conduct of the defendant estopped it from asserting the statute of limitations as a defense to her cause of action.

The conduct of a party against whom a waiver of the statute of limitations is claimed must be such as to cause him to change his position by lulling him into a false sense of security thereby causing him to delay or waive his rights. (Dickirson v. Pacific Mutual Life Insurance Co., 319 Ill. 311; Kinsey v. Thompson, 44 Ill.App.2d 304; Flagler v. Wessman, 130 Ill.App.2d 491, 263 N.E.2d 630.) Here it is apparent that the plaintiff was represented by counsel at all stages of the proceedings. There is no aHegation that plaintiff was lulled into a false feeling that her case would be settled regardless of the period of limitation.

For the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and CREES, JJ., concur.


text:
    Donald Hutchings, Plaintiff-Appellee, v. Columbia Gymnastic Association, d/b/a Turner Hall, Defendant-Appellant.
    (No. 73-183;
    Fifth District
    August 7, 1974.
    Goldenhersh and Goldenhersh, of Belleville (Michael J. Katz, of counsel), for appeffant.
    Crowder & Adams, Ltd., of Columbia, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This suit was brought under the Illinois Dram Shop Act (Ill. Rev. Stat. 1969, ch. 43, par. 135) which at the time of the occurrence in question read:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication, in whole or in part, of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who have leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors. * * *” (Ill. Rev. Stat. 1969, ch. 43, par. 135.)

The statute was amended in 1971 by deletion of the words “in whole or in part.”

Appellant’s sole contention is that the trial court erred in giving an instruction based on the 1969 statute which was in effect at the time of the occurrence, rather than the 1971 statute which was in effect at the time the case was tried. Appellant argues that the trial court erred in failing to give retroactive application to the 1971 amendment.

This same contention was made and decided adversely to the appellants in Edenburn v. Riggins, 13 Ill.App.3d 830, 301 N.E.2d 132, which we adopt as our rationale in this case.

. We find no error of law appears, that an opinion in this case would have no precedential value, and that the judgment is not against the manifest weight of the evidence.

We therefore affirm in accordance with Supreme Court Rule 23 (Ill. Rev. Stat., ch. 110A, par. 23).

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON BIER, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0421
    Opinion filed February 28, 1991.

      Randell S. Morgan, of Kinate & Morgan, of Fairbury, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Robert W. Mueller, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Aaron E. Bier, was convicted by a jury of reckless homicide (111. Rev. Stat. 1989, ch. 38, par. 9 — 3) and sentenced to five years in the Department of Corrections. Defendant was also ordered to pay restitution of $64,775.82 by July 1, 1998. On appeal, defendant argues the trial court (1) erred by entering a restitution order requiring defendant to reimburse his own insurance company for payments to the victims, and (2) abused its discretion by sentencing defendant to the maximum term permitted upon a conviction of reckless homicide.

We affirm.

I. Facts

On June 18, 1989, defendant, who was then 21 years old, was driving a pickup truck on a blacktop road in McLean County. Two of defendant’s friends were passengers. While proceeding north, defendant’s truck reached the intersection of the blacktop road and Illinois Route 9. At that intersection, Route 9 was a through highway while the blacktop had stop signs for traffic in both directions. Without stopping, defendant’s truck went through the stop sign which controlled his lane of traffic and collided with a vehicle which was stopped on the blacktop on the other side of the intersection. Just before the collision, defendant was driving 60 miles per hour. As a result of the collision, defendant’s vehicle sustained major damage. Also, one of defendant’s passengers suffered a fractured rib and various cuts and abrasions. Defendant suffered a separated shoulder.

Defendant struck a vehicle driven by Connie Duncan. Also in that vehicle were Kenneth James Duncan, her husband, and Michael and Julie Duncan, their children, who were 9 and 11 years old, respectively, at the time of the accident. Mrs. Duncan was killed. Kenneth Duncan’s skull was fractured, several of his lower teeth were knocked out, six of his ribs were broken, his left arm was broken, the cornea of his left eye was lacerated, his left leg had multiple fractures, and his hip bone was fractured. He was hospitalized in intensive care for nearly two weeks and incurred $46,537.90 in medical bills. At some point in the future, Mr. Duncan will have to undergo surgery to remove a pin in his hip bone, a long plate and nails in his leg bone, and a pin inside his arm.

Michael Duncan suffered four fractures of the skull around the orbit of his left eye, a concussion, and some lacerations about his face and chest. He was hospitalized for several days. Because of the possibility that the bones around Michael’s eyes were damaged in a growth area, it is possible that as Michael grows, the rest of his face will grow except for an area around his eyes, necessitating periodic plastic surgery.

Julie Duncan received lacerations to her face, chest, arms, and wrists.

For several months the surviving Duncans underwent counseling to help them deal with the loss of Mrs. Duncan.

On the afternoon prior to the accident, defendant had spent the day with several of his friends on the beach at Clinton Lake. Defendant was drinking beer that he had purchased earlier and brought to the beach in a cooler. Defendant’s blood-alcohol content was 0.20 at the time of the accident.

II. The Order Op Restitution

As previously noted, defendant was ordered to pay restitution of $64,775.82 by July 1, 1998. This figure was taken from the presentence report and reflects the following payments by insurance companies for medical and funeral expenses: $16,011.70 paid by Pekin Insurance, and $48,764.12 paid by Country Companies. On appeal, defendant does not challenge the order of restitution regarding Pekin Insurance because that company was the Duncans’ insurance company, the victims in this case. Instead, defendant challenges the restitution ordered to Country Companies because that company was defendant’s insurer and, defendant claims, is not entitled to any restitution. Defendant asserts that the trial court was without authority to direct him to pay his own insurance company for amounts paid to the victims, arguing that a defendant who has taken the responsibility to make premium payments in order to have insurance should receive the benefits of his contract with his insurance company for payment to any victims. Defendant points out that while in most situations a victim’s insurance company would be able to proceed by subrogation against a defendant for reimbursement of any payments the company made to their policyholder (the victim) as a result of the tortious or wrongful conduct of the defendant, the defendant’s insurance company would have no such right. Instead, that company is merely paying out under the contract which a defendant had purchased.

Whatever merit these arguments may have as a matter of . policy, they fail because of the plain language of the statutory provision which governs restitution, namely, section 5 — 5—6 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—

6). That section, in pertinent part, reads as follows:

“(b) In fixing the amount of restitution to be paid in cash *** the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for such out-of-pocket expenses, losses, damages, or injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(b).)

We need not engage in discussions of policy when, as here, the language of the statute is clear on its face. That language provides that the trial court may order the defendant to pay restitution to “insurance carriers who have indemnified the named victim.” The Country Companies is an insurance carrier who has indemnified the named victims in this case, the Duncans, for their out-of-pocket expenses, losses, damages, and injuries. Accordingly, the trial court acted within its discretionary authority by ordering restitution to be paid to Country Companies even though that company was defendant’s insurer, not the victims’ insurer.

In reaching this conclusion, we note that extensive revisions were made to section 5 — 5—6 of the Code by Public Act 83 — 1061. (Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226).) The purpose of these revisions, in part, was to broaden the scope of those persons or corporations to whom restitution could be ordered paid. In amending section 5 — 5—6 of the Code, the legislature chose to use the term “insurance carriers,” not “the victim’s insurance carrier.” A glance at the hundreds of sections which comprised the Illinois Insurance Code in 1983 (Ill. Rev. Stat. 1983, ch. 73, par. 613 et seq.) refutes any suggestion that the legislature, at the time of the enactment of Public Act 83 — 1061, was unable to distinguish among the various kinds of business relationships with insurance companies and used the broad term — “insurance carriers” — by mistake when it really meant to use a more limited term.

III. Defendant’s Five-Year Prison Sentence

Defendant’s last argument is that the trial court abused its discretion by imposing a sentence of five years in the Department of Corrections, the maximum available for the defendant’s conviction of the Class 3 felony of reckless homicide. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(6).) In making this argument, defendant points out that prior to his conviction in this case, he had no felony convictions and his misdemeanor convictions were for relatively minor offenses. Defendant is a high school graduate, had attended the University of Illinois for one year, and had worked since 1988 as a mechanic. His employer stated that defendant’s job performance was good. Defendant had a good relationship with his parents, with whom he lived at the time of sentencing, and he claimed remorse for the injuries he caused to the victims. Defendant also claimed to have ceased drinking and to be attending counseling sessions. Last, he maintained that he had never even tried illegal drugs.

At the sentencing hearing, the record also revealed the following. From 1984 until May 1989, defendant was convicted of speeding on five separate occasions. On two of those occasions, when his speeding was not excessive, he was placed on court supervision. With regard to the three other speeding convictions, formal judgments were entered. In August 1985, defendant was fined $250 and $96 in court costs upon his speeding conviction. In February 1989, defendant was placed on conditional discharge for one year, fined $150, and ordered to pay $65 in court costs for driving 101 miles per hour in a 55-mile-per-hour zone. In June 1989, a month before the accident in the present case, defendant was fined and ordered to pay court costs for driving 82 miles per hour in a 55-mile-per-hour zone.

In December 1984, defendant was convicted of illegal transportation of alcohol; in December 1987, defendant was convicted of unlawful consumption of alcohol by a minor; and in February 1989, defendant was convicted of unlawful possession of alcohol by a minor. Furthermore, on the morning prior to the sentencing hearing in the present case, defendant had been convicted of the Class 4 felony obstructing justice (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 4). Defendant committed that offense after the accident in the present case when he, while driving an automobile, was stopped by a police officer and gave the officer a false name.

After reviewing the record, we find that the trial court carefully considered the evidence presented at trial and at the sentencing hearing. The court also considered the statutory factors in mitigation and aggravation (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). In doing so, the court properly noted the terrible injuries suffered by the Duncan family as a result of defendant’s drunken driving.

In People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the supreme court had before it a case in which the defendant also was convicted of reckless homicide, sentenced to the penitentiary, and argued on appeal that the trial court abused its discretion by imposing a penitentiary sentence. The supreme court affirmed the imposition of the penitentiary sentence (and in the process reversed an earlier decision of this court which had accepted the defendant’s argument (see People v. Cox (1979), 77 Ill. App. 3d 59, 396 N.E.2d 59)) and wrote the following:

“We have consistently held that it is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the task of sentencing had been ours. (People v. Perruquet (1977), 68 Ill. 2d 149, 156[, 368 N.E.2d 882, 885].) We cannot say that the trial judge abused his discretion in the present case.” Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

We find the above analysis to be applicable here. As in Cox, we cannot say that the trial judge in the present case abused his discretion when he imposed the maximum sentence of five years.

In support of his argument that defendant’s sentence is excessive, defendant cites People v. Brogan (1979), 76 Ill. App. 3d 957, 395 N.E.2d 408, a decision of this court in which a defendant was sentenced to five years in prison after the revocation of his burglary probation. (Brogan, 76 Ill. App. 3d at 959, 395 N.E.2d at 409.) This court reduced the defendant’s sentence to two years’ imprisonment and wrote the following:

“Defendant concedes that his failure to successfully complete any probationary period may be reason to find that some imprisonment was warranted; however, defendant contends that sentences of imprisonment beyond the minimum must be justified by some other factor in the record and that the record is devoid of any grounds for imposition of a term beyond the minimum. We agree.” Brogan, 76 Ill. App. 3d at 959, 395 N.E.2d at 409-10.

We note that the decision of this court in Brogan preceded the decision of the supreme court in Cox. Accordingly, we hold that to the extent Brogan stands for the proposition that sentences in excess of the minimum provided by law must somehow “be justified,” that decision is contrary to the law of this State as enunciated by our supreme court regarding the standard of review of sentences to be employed by the appellate court. To the extent that Brogan supports such an argument, it is overruled.

For the reasons stated, the sentences imposed upon the defendant are affirmed.

Affirmed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT D. EWALD, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0432
    Opinion filed February 28, 1991.

      Daniel D. Yuhas and Jon McPhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Amy K. Schmidt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 26, 1990, the circuit court of Macon County entered judgment on jury verdicts finding defendant Robert D. Ewald guilty of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14), and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16). On June 1, 1990, defendant was sentenced to terms of 25 years of imprisonment for each count of aggravated criminal sexual assault to run consecutively, and a concurrent term of. seven years’ imprisonment for the aggravated criminal sexual abuse conviction. Defendant appeals, contending the trial court erroneously believed that consecutive terms of imprisonment were mandatory under the circumstances. We affirm.

The sole issue on appeal is whether section 5 — 8—4(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) mandates a consecutive sentence in the case of multiple convictions on a multicount indictment when one of the offenses is criminal sexual assault or aggravated criminal sexual assault. In the instant case, defendant was charged with and convicted of two counts of aggravated criminal sexual assault. The victims were sisters, ages 8 and 12. The acts occurred on separate occasions and were against each victim individually.

The pertinent language of section 5 — 8—4(a) of the Code provides:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — IS or 12 — 1U of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — -8—4(a).)

The defendant argues the emphasized language cannot be read to require consecutive sentences when defendant was convicted of violations of section 12 — 14 of the Code, and the offenses were separate and distinct. He contends this language makes a violation of either section 12 — 13 or section 12 — 14 only an exception to the rule against imposing consecutive sentences for offenses committed as part of a single course of conduct and, therefore, since his convictions did not arise from a single course of conduct, he does not fall within the scope of this section.

Based solely on the language of section 5 — 8—4(a) of the Code, it is arguably unclear what the legislature intended, and, apparently, no Illinois court of review has interpreted this section with respect to this issue. However, the comments made at the pertinent legislative debates indicate that the legislature intended this language to require consecutive sentences in the case of multiple felony convictions when one of the offenses is criminal sexual assault or aggravated criminal sexual assault.

Section 5 — 8—4(a) of the Code was originally amended by Public Act 85-1003 (Pub. Act 85-1003, §2, eff. July 1, 1988 (1987 Ill. Laws 4710, 4712)), which added the language requiring mandatory consecutive sentences if one of the offenses is in violation of sections 12 — 13 or 12 — 14 of the Code. Public Act 85 — 1003 also changed the prior permissive language, “the court may enter” (see Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a)), to the mandatory language “the court shall enter” (Pub. Act 85-1003, §2, eff. July 1, 1988 (1987 Ill. Laws 4710, 4715)) sentences to run consecutively. Subsequently, Public Act 85 — 1003 was recodified in Public Act 85 — 1030 (Pub. Act 85 — 1030, §3, eff. July 1, 1988 (1988 Ill. Laws 200, 203) (amending Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a))) due to incorrectly numbered sections of the Code; apparently, however, there was no change in the substantive language of the Public Act 85 — 1003.

The legislative debates on Public Act 85 — 1030 contain no comments in regard to the amendatory language requiring a consecutive sentence in cases of a violation of sections 12 — 13 or 12 — 14; however, the debates on Public Act 85 — 1003 do contain some helpful comments. In the House debates, Representative Brunsvold stated the bill (Senate Bill 1376) required consecutive sentences “where a defendant is convicted of multiple felony offenses” (85th Ill. Gen. Assem., House Proceedings, June 30, 1987, at 241 (statements of Representative Brunsvold)). At the Senate debates, the sponsor of the bill, Senator Degnan, stated the bill incorporated a prior Senate bill which “requires the court to impose consecutive sentences where a defendant is convicted to multiple felony offenses and one of those offenses is a criminal sexual assault or aggravated . . . criminal sexual assault” (85th Ill. Gen. Assem., Senate Proceedings, Nov. 6, 1987, at 50 (statements of Senator Degnan)).

The language of section 5 — 8—4(a) could arguably be interpreted as authorizing a mandatory consecutive sentence in cases only where a -violation of sections 12 — 13 or 12 — 14 arises from a single course of conduct; however, the comments made at the legislative debates do not support such a narrow interpretation. If the legislature intended to limit the scope of section 5 — 8—4(a), the comments would have reflected such an intent. Furthermore, any other interpretation would be difficult to reconcile since it is unlikely the legislature intended to authorize a mandatory consecutive sentence in cases where a section 12 — 13 or section 12 — 14 violation stems from a single course of conduct, and not, as in the instant case, when a defendant sexually assaults two young girls on separate occasions.

Accordingly, the trial court interpreted the legislation correctly. We affirm.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.