author: PRESIDING JUSTICE REINHARD JUSTICE NICKELS,

text:
    EVANGELICAL HOSPITALS CORPORATION, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    Second District
    No. 2 — 90—1436
    Opinion filed December 30, 1991.
    Rehearing denied February 3, 1992.

      NICKELS, J., concurring in part and dissenting in part.
    Robert Handley, of Moroni & Handley, of Carol Stream, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Revenue.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner and Robert G. Rybica, Assistant State’s Attorneys, of counsel), for appellee Du Page County Board of Review.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Evangelical Hospitals Corporation (EHC), a not-for-profit corporation, appeals from the judgment of the circuit court of Du Page County upholding a ruling of the Department of Revenue (Department) which denied exemption of real estate property tax on approximately 18,000 square feet of office space for the 1988 tax year.

The sole issue on appeal is whether the Department erred in finding that the approximately 18,000 square feet was not exempt from real estate taxes for tax year 1988 pursuant to section 19.7 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 500.7).

The Evangelical corporate structure is the following. The Evangelical Health Systems (EHS) is a not-for-profit corporation. It is the holding company for and maintains full control over both EHC and Evangelical Services Corporation (ESC). EHC is also a not-for-profit corporation which owns and operates health care facilities, including five hospitals. EHC’s 104,800-square-foot, central office building is located at 2025 Windsor Drive in Oak Brook, Illinois. On January 1, 1988, EHC “licensed” approximately 18,000 square feet of its central office building to ESC. EHC has not made nor intended to make a profit from this licensing agreement. ESC is a for-profit corporation and does not qualify for tax-exempt status under section 501(c)(3) of the Internal Revenue Code (26 U.S.C.A. §501(c)(3) (West 1988)).

ESC had four basic functions according to Joseph Toomey, an executive vice-president of EHS and vice-president of EHC, the only witness to testify at the administrative hearing. One function was to provide management services for four of EHC’s five hospitals. These services were used solely by EHC and were allotted 13,555 square feet of the approximately 18,000 square feet at issue.

A second function was to operate a pharmacy. The pharmacy sold “high tech” pharmaceutical services to both home and residential health care facilities within the Evangelical corporate system from which it made no net income and to an independent firm which served home health care companies. This firm was not connected to the Evangelical corporate system in any way and serviced its own home health care clients. In 1988, the firm purchased approximately $175,000 to $200,000 of pharmaceutical services from the pharmacy at a markup which constituted 15% to 20% of the pharmacy operating costs. Although there was no designation of space in the pharmacy for the services to the firm and to EHC, the total area allocated for the pharmacy was 2,951 square feet.

The third function of ESC was to maintain properties of the Evangelical corporate system other than the five hospitals. The properties were managed for a fee and included EHS’s physician office building, “high tech” medical centers, immediate care centers and houses for elderly services. Although there was no testimony as to which, if any, of these properties were operated for charitable purposes, there was evidence that most of the properties were exempt from real estate taxation but some were assessed for value. The fee charged for the real estate management only covered the costs of providing the service, and ESC did not make a profit from this service. Seven hundred and twenty square feet was allocated for this real estate management function.

Finally, ESC functioned as a holding company for one or two joint ventures between itself and physicians. The nature of these joint ventures was not described, nor was there an allocation of space used to provide for this function. No profit had come from these joint ventures.

The remaining 1,260 square feet was used as ESC corporate staff offices. There was no testimony as to the use of these offices. According to Toomey, ESC was organized to help EHS administer its charitable undertakings more efficiently. Although ESC was never intended to make profits, as a for-profit corporation, ESC could avoid some administrative requirements and lease equipment at a lower rate.

In early 1989, EEC applied to the Du Page County Board of Review (Board) seeking exemption for real estate taxes for 1988 on the entire office building. The Board approved EEC’s request for exemption for the entire premises. On April 30, 1990, however, the Department adopted the administrative law judge’s recommended disposition which denied exemption for the approximately 18,000 square feet used by ESC. On November 27, 1990, the circuit court affirmed the Department’s decision.

EEC advances several contentions in its appeal. EEC maintains that the trial court erred by reading the statutory language from the perspective of ESC. EEC also contends that the trial court erred because ESC’s use of the 18,000 square feet furthered the purpose of EEC. Further, EEC contends that the trial court erred because the corporate structure was designed to increase efficiency, and therefore, the trial court penalized EEC for being efficient. Finally, EEC contends that the Department’s and the circuit court’s reliance on Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, was misplaced.

Both the Department and Board contend that the 18,000 square feet was not exempt because ESC, as a lessee, was not a charitable organization pursuant to Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537. The Department also contends that, although ESC may further EEC’s charitable purposes, the property is not exempt even if ESC’s profits are used to support charitable purposes.

Initially, we must address the standard of review to be applied. The Board contends that like other administrative decisions, we should not disturb the finding unless it is against the manifest weight of the evidence. (See, e.g., Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 872, 506 N.E.2d 390.) However, when the facts are not in dispute as to whether property is exempt from taxes pursuant to section 19.7, as is the case here, the question is one of law. Girl Scouts of DuPage County Council, Inc. v. Department of Revenue (1989), 189 Ill. App. 3d 858, 861, 545 N.E.2d 784; Weslin Properties, Inc. v. Department of Revenue (1987), 157 Ill. App. 3d 580, 583, 510 N.E.2d 564.

The main contention in this case involves the nature of ESC, a for-profit corporation, which has a “license agreement” for the 18,000 square feet in question with EHC, a not-for-profit corporation. The Department and Board argue that the property is not exempt from real estate taxes because ESC, as a lessee, is not a charitable organization. The Department and Board assert that ESC does not meet the criteria of a charitable organization, as defined in Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537. ESC contends that its status as a charitable organization is immaterial.

Section 19 of the Act (Ill. Rev. Stat. 1987, ch. 120, par. 500) provides that “[a]ll property described in Sections 19.1 through 19.23 — 1, to the extent therein limited, is exempt from taxation.” Section 19.7 exempts “[a]ll property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States *** when such property is actually and exclusively used for such charitable and beneficent purposes, and not leased or otherwise used with a view to profit.” Ill. Rev. Stat. 1987, ch. 120, par. 500.7.

To qualify for property tax exemption under section 19.7, the property must be owned by a charitable organization and used exclusively for charitable purposes. (Milward v. Paschen (1959), 16 Ill. 2d 302, 310-11, 157 N.E.2d 1; Weslin, 157 Ill. App. 3d at 584, 510 N.E.2d at 567.) Thus, the test is two-pronged: (1) ownership and (2) use. (Weslin, 157 Ill. App. 3d at 584, 510 N.E.2d at 567.) Our supreme court has said distinctive attributes of a charitable organization are that (1) the organization’s benefits which in some way reduce the burdens of government are for an indefinite number of persons; (2) the organization has no capital, capital stock or shareholders and does not earn profits or dividends; (3) the organization derives its funds primarily from private and public charity and the funds are held for the objection and purposes expressed in its charter; (4) charity is dispensed to all who need and apply for it; (5) no obstacles seem to be placed in the way of those seeking benefits; and (6) the primary use of its property is for charitable purposes. (Korzen, 39 Ill. 2d at 157, 233 N.E.2d at 541-42.) The phrase “used exclusively for charitable purposes” means the primary purpose for which the property is used. Korzen, 39 Ill. 2d at 157, 233 N.E.2d at 541-42.

In this case, the Department and Board do not argue that EHC leased the property to ESC with a view of profit. (Cf. People ex rel. Hesterman v. North Central College (1929), 336 Ill. 263, 266, 168 N.E. 269 (merely leasing does not destroy exemption; rather, property must be leased with a view to profit).) Further, the parties do not dispute that the owner of the property, EHC, is a charitable organization, and therefore, the first prong of the test is met.

However, the Department and Board contend that ESC, as lessee, must also be a charitable organization. The Department and Board argue that to be exempt under section 19.7 the property must be both owned and used by a charity. The Department’s and Board’s understanding of section 19.7 would essentially engraft another requirement to the test, namely that the property must be used by a charitable organization. We do not believe that section 19.7 requires that the property must be used by a charitable organization.

In construing a statute, a court’s task is to ascertain and effectuate the intent of the legislature and that inquiry begins with the language of the statute. (Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 7, 521 N.E.2d 913.) If the language is clear, the court must give it effect without looking to extrinsic aids for construction. Weingart, 122 Ill. 2d at 7, 521 N.E.2d at 916.

Section 19.7 exempts “[a]ll property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States *** when such property is actually and exclusively used for such charitable or beneficent purposes.” (Ill. Rev. Stat. 1987, ch. 120, par. 500.7.) The clear language of the statute only requires ownership of the property by a charitable organization and use of the property for charitable purposes. It does not require that the property be used by a charitable organization.

We must now decide whether the approximately 18,000 square feet was primarily used for charitable purposes. This determination depends on the four uses conducted on the property.

A party claiming an exemption has the burden of proving by clear and convincing evidence that the property in question falls within the terms of the exemption statute. (Girl Scouts, 189 Ill. App. 3d at 861, 545 N.E.2d at 786-87; see also People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 462, 264 N.E.2d 4.) In determining whether property is included within the scope of an exemption, all facts are to be construed and all debatable questions resolved in favor of taxation. (Korzen, 39 Ill. 2d at 155, 233 N.E.2d at 540-41.) When the property as a whole, or in unidentifiable portions, is used both for an exempt purpose and a nonexempt purpose, the property will be wholly exempt only if the exempt use is primary and the nonexempt use is incidental. Illinois Institute of Technology v. Skinner (1971), 49 Ill. 2d 59, 66, 273 N.E.2d 371.

In this case, the property is used in the four ways noted previously. The majority of the property, 13,555 square feet, is used to provide management and administrative services for EEC. In Evangelical Hospital Association v. Novak (1984), 125 Ill. App. 3d 439, 443, 465 N.E.2d 986, this court held that administrative offices used to support charitable or beneficent purposes may be exempt from real property taxes, pursuant to section 19.7. The 13,555 square feet is used for administrative services to support the charitable hospitals of EEC and as such is exempt from property taxation.

The Department contends, however, that this case is analogous to Salvation Army v. Department of Revenue (1988), 170 Ill. App. 3d 336, 524 N.E.2d 628, in which we held that a thrift shop operated in a separate building which made profits that were subsequently used to fund charitable activities at other locations was not exempt from property taxation under section 19.7. (170 Ill. App. 3d at 344-45, 524 N.E.2d at 634.) Salvation Army is distinguishable because in that case the thrift shop was operating solely as a store to make profits which in turn were used to reduce the costs of a charitable organization. In short, the property was used as a store. Eere, the 13,555 square feet was being used only as administrative services to operate a charitable organization.

Thus, the 13,555 square feet was exempt from property taxation. Eowever, the remainder of the property at issue which includes the pharmacy, the ESC corporate staff office, and the real estate management offices was not exempt from taxation.

As to the 2,951 square feet used for the pharmacy, there was no evidence establishing what portion was used for sales to third parties at a markup and what portion was used to sell to its own health care facilities. Arguably the function of ESC to sell pharmaceuticals to its own health care facilities supports charitable purposes. However, when ESC sold pharmaceuticals to an independent firm at a markup it was clearly not supporting charitable purposes. The 2,951 square feet used for pharmacy operations will only be exempt if the primary use is exempt and the nonexempt use is incidental. The testimony does not clearly and convincingly prove that the pharmaceutical sales to its own health care providers were the primary use of the pharmacy space and the sales of pharmaceuticals to an outside firm at a markup were incidental. The sales to the outside firm which constituted 15% to 20% of the pharmacy’s operating costs cannot be classified as incidental. Because EHC has not shown that the nonexempt portion of the pharmacy is incidental to its exempt purpose and has failed to allocate space to these separate purposes, the entire 2,951 square feet is nonexempt. Cf. Illinois Institute of Technology, 49 Ill. 2d at 66, 273 N.E.2d at 375.

The remaining space of 1,260 square feet designated as ESC corporate staff offices and 720 square feet designated as ESC real estate management offices was also not exempt because there was no testimony that the functions involved were for the charitable activities of EHC.

In conclusion, the 13,555 square feet used for administrative services to support the charitable purposes of EHC was exempt from property taxation pursuant to section 19.7. However, the 4,931 square feet used for the pharmacy, ESC corporate staff offices and real estate management offices was not exempt.

The judgment of the circuit court of Du Page County is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

BOWMAN, J., concurs.

JUSTICE NICKELS,

concurring in part and dissenting in part:

I concur in the majority’s finding that the space leased to ESC and used by ESC to provide management and administrative services for EHC’s hospitals was used primarily and, therefore, “exclusively for charitable purposes.” (Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 157.) However, I am unable to accept the analysis of the majority, which dissects each of ESC’s incremental uses of space totalling less than 5% of EHC’s total facility, and further disagree with its conclusion that certain portions of that limited space were used by ESC for noncharitable functions. I would reverse completely the decision of the Department of Revenue and the circuit court of Du Page County and, therefore, respectfully dissent from the portion of the majority opinion that holds that 4,931 square feet of EHC’s 104,800 square-foot office facility is not exempt from real property taxes.

The majority found that there was no evidence that space used by two of ESC’s four functions, its corporate staff offices and its real estate management offices, was related to EHC’s charitable purpose. However, administrative offices used to support charitable or beneficent purposes may be exempt from real property taxes. (Evangelical Hospital Association v. Novak (1984), 125 Ill. App. 3d 439, 443.) Common sense would dictate that such administrative services cannot be provided without staff, and such staff requires office space. Therefore, I would hold that the 1,260 square feet designated as ESC corporate staff offices was exempt. So, too, the ESC’s management of properties, the majority of which were themselves tax exempt and which belonged to its and EHC’s not-for-profit parent corporation, was in the nature of a necessary administrative service, and I would hold that the 720 square feet of space occupied by such property management offices was exempt.

The third function of ESC that the majority found to be for a nonexempt purpose was the operation of its pharmacy, which occupied 2,951 square feet. If a property is used primarily for an exempted purpose, an incidental or secondary use for another purpose will not destroy the exemption. (Korzen, 39 Ill. 2d at 157; People ex rel. Baldwin v. Jessamine Withers Home (1924), 312 Ill. 136, 139; Highland Park Women’s Club v. Department of Revenue (1990), 206 Ill. App. 3d 447, 464-65.) However, if an unidentifiable portion of the property is used for nonexempt purposes that are not incidental or secondary, the property will not be held exempt. Illinois Institute of Technology v. Skinner (1971), 49 Ill. 2d 59, 66.

The majority acknowledges that evidence was presented that only 15% to 20% of ESC’s pharmacy sales were for profit and that the remaining sales were for a charitable purpose. Thus, I would find both that the space occupied by the nonexempt portion of ESC’s pharmacy sales was identifiable as at most 590 square feet of space and that such use relative to either ESC’s 18,000 square feet of space or, more accurately, EHC’s 104,800 square feet of space, was both secondary and incidental.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    TERRY EKL et al., Plaintiffs-Appellees and Cross-Appellants, v. JAMES M. KNECHT, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 91—0073
    Opinion filed December 30, 1991.

      Richard K. Wray, of Keck, Mahin & Cate, of Chicago (Shari L. Friedman, of counsel), for appellant.
    Connolly, Ekl & Williams, P.C., of Clarendon Hills (Michael S. Cetina, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Terry and Carrie Ekl, filed a complaint alleging that defendant, James Knecht, violated the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121/2, par. 261 et seq.). Following a bench trial, the circuit court of Du Page County awarded plaintiffs $307 in compensatory damages and $4,700 in punitive damages. Defendant appeals and contends as follows: (1) that the trial court erred by ruling that a combination of defendant’s high prices and his failure to disclose those prices prior to performing the requested plumbing services violated the Act; (2) that the punitive damage award was excessive; and (3) that, in awarding punitive damages, the circuit court improperly considered certain testimony that had been stricken. Plaintiffs cross-appeal and argue that the court abused its discretion by denying their request for attorney fees pursuant to the Act. We affirm.

The following facts were brought out at trial. Knecht was the president, majority shareholder, and sole full-time employee of Knecht Services, Inc., which did business under the assumed name of AAA Knecht. The company, which operated out of Knecht’s home in Clarendon Hills, was engaged in the business of repairing plumbing fixtures and heating, ventilation, and air conditioning systems. Defendant was a licensed apprentice plumber.

The Ekls lived in a six-bedroom home in Clarendon Hills along with their three children. On the morning of December 10, 1988, a Saturday, Carrie Ekl called AAA Knecht because one of the three bathtubs in her home was draining slowly. Knecht’s wife, Elizabeth, took the call and stated that someone could probably be sent to the Ekl home that afternoon. Elizabeth Knecht then called defendant, who was working at a home in Darien, along with his helper, Reginald Wagner.

Defendant called Carrie Ekl to confirm that she wanted the work done. After completing the job in Darien, defendant and Wagner went to the Ekl residence. Defendant’s right leg was in a cast at the time and he was using crutches because of an injury to his achilles tendon. Sometime after their arrival, Carrie told them about the problem and also mentioned that her husband had left town to go skiing.

The drainage problem resulted from an obstruction in a section of pipe in the Ekl basement. Defendant and Wagner found the obstruction by cutting the pipe open with a hacksaw. They found and removed a small piece of plastic that apparently came from a toy belonging to one of the Ekl children. They then replaced the pipe that had been sawed off and installed a device called a PVC trap and tail assembly which could be easily removed and put back in if there was any future blockage.

After completing the repair, defendant prepared the invoice and presented it to Carrie Ekl. The total charge was $480. Carrie testified that she told defendant that the bill was ridiculous and the amount of money defendant was charging was outrageous. Defendant told her that she was to pay that amount.

Carrie further testified as follows. She asked Knecht if she could send a check on Monday after her husband had a chance to review the bill. Defendant stated that if Carrie did not pay him, he would undo the work and turn off the water in the Ekl home. Carrie then found her checkbook and wrote out a check to defendant in the amount of $480. She did this because she was afraid of him. According to Carrie, defendant and Wagner were in her home for 60 to 90 minutes.

When defendant testified, he denied ever threatening Carrie Ekl or any other customer. He also stated that she had not objected to the amount of the bill. Reginald Wagner corroborated defendant’s testimony in this respect. According to defendant, he and Wagner were at the Ekl home for two hours.

Terry Ekl returned home on Sunday, December 11. The next day he sent a letter to Knecht in which he requested a breakdown of his charges. There was no such breakdown on the invoice. The Ekls never received a response to the letter. The Ekls attempted to stop payment on the check Carrie had given defendant but Elizabeth Knecht had cashed the check on December 10.

Defendant testified that as of the time of the Ekl job, his minimal hourly rate was $59. Same-day service on Monday through Friday was billed at time and a half. Defendant charged double for same-day service on the weekends. Additionally, he billed a minimum of one hour of travel time for each job regardless of where the customer lived. Defendant’s two primary competitors were Econotemp, Inc., and Dunrite Plumbing. According to defendant’s testimony the rate he charged the Ekls was about SVz times the rate charged by Dunrite, which only bills straight time. Defendant also testified that Econotemp generally charges $40 per hour.

For the Ekl job, defendant charged $118 per hour for his services and $30 per hour for Wagner’s. He charged the Ekls for three hours of time, two hours at the Ekl residence and one hour of travel time. He added on a charge of $36 for the materials used to replace the pipe that was sawed off. Terry Ekl testified that he bought the same materials at a hardware store for $3.94. Defendant did not give Carrie Ekl an estimate or quote her his hourly rates before completing the work, nor did she inquire about those rates.

Two witnesses called by plaintiffs testified that defendant has a poor reputation for truth and veracity in Clarendon Hills. A minister called by defendant testified to the contrary. Susan Lindquist testified that defendant went to her home in Westmont and repaired her furnace on March 1, 1987. Lindquist asked why the invoice was so high. She then asked if defendant could bill her because she lacked sufficient funds to pay the invoice. Lindquist used a credit card to pay because defendant told her that if she did not pay immediately, he would remove the copper coil he had placed in the furnace.

Lindquist had previously testified against defendant at the trial of an action brought against defendant and Knecht Services, Inc., by the Illinois Attorney General in 1987 alleging numerous violations of the Act. After a lengthy bench trial in 1989, the circuit court of Du Page County ruled in defendants’ favor on several counts in the Attorney General’s suit. The court found in plaintiff’s favor on one count, ruling that defendants had violated the Act by charging rates much higher than competitors’ rates and failing to advise some customers of those rates prior to performing the requested services. The circuit court imposed a civil fine of $10,000 against defendants and entered a mandatory injunction requiring defendants, among other things, to disclose their rates to customers prior to doing any work. This court recently affirmed the circuit court’s judgment order in the Attorney General’s action although our reasoning differed from that employed by the circuit court. See People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843.

While testifying as an adverse witness in the present case, defendant testified that he raised his minimum hourly charge to $69 in 1989 because of the expenses resulting from the Attorney General’s action. After defendant finished testifying as an adverse witness, the trial court struck the above testimony on the basis that it was irrelevant. While announcing the judgment, the trial judge stated that he had reconsidered and reversed his prior ruling striking the above testimony.

The trial judge ruled that defendant had violated the Act by charging excessive rates and failing to advise Carrie Ekl of those rates prior to commencing work. The judge found that defendant had threatened Mrs. Ekl and based the punitive damage award upon the threat and defendant’s testimony that he increased his rates in 1989 because of expenses resulting from the lawsuit brought by the Attorney General. The court denied plaintiffs’ request for attorney fees under section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121%, par. 270a(c)). Defendant now appeals, and plaintiffs cross-appeal.

Defendant first challenges the trial court’s determination that he violated section 2 of the Act (111. Rev. Stat. 1989, ch. 121%, par. 262). That provision states as follows:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” Ill. Rev. Stat. 1989, ch. 121%, par. 262.

A violation of section 2 of the Act is established if the plaintiffs show that defendant is engaged in a trade or commerce and has committed acts or engaged in practices which are either unfair or deceptive. (People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 853.) It is undisputed that defendant is engaged in a trade and in commerce. Defendant contends, however, that the trial court erred by concluding that he violated the Act by committing deceptive acts.

According to defendant, a tradesperson’s failure to disclose his or her rates prior to performing services does not violate the Act absent a special relationship between the parties which is not present here. Defendant also asserts that a tradesperson’s high prices do not violate the Act unless the services performed have little or no value. Under defendant’s analysis, the parties entered into an implied-in-fact contract pursuant to which defendant agreed to perform the requested plumbing services and Carrie Ekl agreed to pay his regular charges. Defendant argues that, in the absence of a finding that his prices were unconscionable, the trial court’s action constitutes an unwarranted interference with the parties’ contract, as the Act was not intended to protect consumers from their own carelessness in negotiating contracts.

Implied-in-fact contracts arise from promissory expressions which may be inferred from facts and circumstances that show an intent to be bound. (Century 21 Castles By King, Ltd. v. First National Bank (1988), 170 Ill. App. 3d 544, 548.) An implied-in-fact contract to pay for services is established if the party seeking payment shows that the services were carried out under circumstances which would give the recipient reasons to understand that they had not been performed gratuitously or for some other person. (Knecht Services, Inc., 216 Ill. App. 3d at 851.) In Knecht Services, Inc. we concluded that implied-in-fact contracts existed when the consumers contacted defendants to request their services and it was clear from the evidence that the consumers intended to pay for those services. (216 Ill. App. 3d at 851.) Because the same is true in this case, we conclude there was an implied-in-fact contract between Carrie Ekl and defendant.

We do not agree, however, with defendant’s contention that payment of his regular charges was a term of that contract even though Carrie Ekl testified that she anticipated paying defendant’s regular charges. If there is an express or implied contract pursuant to which one party agrees to provide services to another and there is no provision setting forth the amount that is to be paid, the law implies an agreement to pay a reasonable price for the services. (Victory Memorial Hospital v. Rice (1986), 143 Ill. App. 3d 621, 623; Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 1031.) Regardless of what Carrie Ekl anticipated paying, there is no evidence of an express or implied promise to pay defendant’s regular charges at the time the contract was formed.

Even if Carrie had expressly agreed to pay defendant’s regular charges the result would not be different. In Victory Memorial Hospital, the defendant expressly agreed to pay the plaintiff’s regular charges, and in Protestant Hospital the defendant expressly agreed to pay the price designated by plaintiff. (Victory Memorial Hospital, 143 Ill. App. 3d at 624; Protestant Hospital, 98 Ill. App. 3d at 1031.) The courts in both cases determined that these contractual terms were too indefinite to enforce and held that the implied-in-fact contracts obliged plaintiffs to pay a reasonable price for the services rendered. (Victory Memorial Hospital, 143 Ill. App. 3d at 623-24; Protestant Hospital, 98 Ill. App. 3d at 1031.) We therefore conclude that the implied-in-fact contract between Carrie Ekl and defendant only obligated the Ekls to pay a reasonable price for defendant’s services.

The court in Protestant Hospital also noted that if a party acquiesces to a statement of account rendered by another that party will be liable for the billed amount under the theory of an account stated. (Protestant Hospital, 98 Ill. App. 3d at 1032.) Defendant contends that Carrie assented to the terms of invoice by signing it and paying defendant the requested amount. The trial court, however, found Carrie’s testimony that defendant threatened to undo the work and turn off the water if she did not pay immediately to be credible. An agreement will be voided if it results from duress. (First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 793.) Duress exists if a party is induced by the wrongful act of another to make a contract under circumstances which deprive the party of the exercise of her free will. (Bawoll, 120 Ill. App. 3d at 793.) This includes acts or threats which are wrongful in a moral sense. (Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 186.) Any wrongful threat which actually places the victim in such fear as to cause her to enter into an agreement against her will constitutes duress. Kaplan, 25 Ill. 2d at 186.

There is no question that the threats defendant was found to have made were wrongful. Our prior analysis shows that at the time the threats were made the amount due defendant remained open to negotiation between the parties. Therefore defendant was not entitled to undo the work merely because Carrie Ekl refused to pay rates far in excess of what the trial court determined to be reasonable. By defendant’s own admission, the rate at which he billed the Ekls was about 31/2 times the rate generally charged by his main competitors. It is also obvious that defendant had no right to turn off the Ekls’ water. The threatened actions if carried out would have constituted the offense of criminal damage to property (111. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)). These threats were wrongful in both a legal and a moral sense.

According to Carrie Ekl’s testimony, which the trial court determined to have been credible with regard to the alleged threats, she initially expressed outrage at the amount of the bill and stated that she wished to have her husband review it before paying. Defendant then made the aforementioned threats and Carrie paid the bill because she was afraid of him and wanted him out of the house. This testimony shows that Carrie agreed to pay the bill against her will and only because of a fear that defendant and his helper would carry out the threats. Therefore any agreement by Carrie to pay the amount billed by defendant was void because it was the product of duress. There was no valid agreement between the parties that the Ekls would pay $480 for defendant’s services; they were only obligated to pay a reasonable amount.

In determining whether a practice is unfair under the Act, courts are guided by the following factors: (1) whether the practice even if not unlawful offends public policy as established by statutes, the common law or otherwise, or, in other words, whether it is at least within the penumbra of some established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it results in substantial injury to consumers. (Knecht Services, Inc., 216 Ill. App. 3d at 854; People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 484.) Utilizing these standards, we find that defendant’s practice of employing wrongful threats to collect his fees violated the Act.

Applying the first of these criteria, it is apparent that defendant’s conduct is offensive to public policy. As we have seen, defendant threatened to commit the offense of criminal damage to property if Carrie did not pay the billed amount immediately. The common-law doctrine that contracts which are the product of duress will be voided is indicative of an established public policy against the use of threats to force others to enter into agreements. The threats that defendant was found to have made violated this established public policy.

The employment of such strong-arm tactics against a consumer who was acting within her rights when she questioned defendant’s substantial charges is immoral, unethical, oppressive, and unscrupulous. (See Knecht Services, Inc., 216 Ill. App. 3d at 856.) Finally, these actions caused substantial injury to the Ekls because Carrie was deprived of her bargaining power and forced to pay an unreasonable amount in excess of what she would have voluntarily paid. We therefore agree with the trial court’s conclusion that defendant violated the Act. Although defendant disparages the trial court’s alleged interference with the contractual process, it is the coercive conduct defendant was found to have engaged in which hampered that process. While, as defendant points out, the Act may not have been intended to protect consumers from the consequences of bad bargaining, we believe it was intended to protect consumers from unscrupulous merchants and tradespeople who deprive them of the ability to bargain through threats and coercion.

The circuit court did not rely upon defendant’s threats to Carrie Ekl in its determination that defendant violated the Act. A reviewing court may, however, sustain the circuit court’s decision on the basis of any grounds which are apparent from the record. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148.) On the basis of the trial court’s factual findings, we therefore conclude that defendant violated the Act.

Defendant also contends that the $4,700 punitive damage award was excessive and that the trial court in making the award erroneously considered certain testimony that had been stricken. The purposes of punitive damages are to punish the wrongdoer and to deter that party and others from committing similar wrongful acts. (Deal v. Byford (1989), 127 Ill. 2d 192, 204.) Relevant circumstances in reviewing a punitive damage award include, but are not limited to, the nature and magnitude of the wrong, defendant’s financial status, and defendant’s potential liability. (Deal, 127 Ill. 2d at 204.) Although courts should be cautious in awarding punitive damages due to their penal nature, an award of punitive damages will not be disturbed upon review on the basis that it is excessive unless it appears that the award resulted from passion, partiality, or corruption. 127 Ill. 2d at 203-04.

Defendant initially asserts that the nature of his wrongful actions is not such as to justify any award of punitive damages. Punitive damages may only be awarded for conduct that is outrageous either because the acts are done with an evil motive or because they are performed with a reckless indifference toward the rights of others. (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 415-16.) Here, according to the findings of the trial court, defendant extorted money from Carrie Ekl by threatening to turn off the water in the Ekl home and rip out the sections of pipe he had replaced. Defendant’s motive of collecting an unreasonable fee by threatening to damage the Ekl home was evil and reprehensible. An award of punitive damages was proper in this case.

According to defendant, the punitive damage award was excessive because his wrongful acts were not of a sufficient magnitude to justify such a substantial award and because plaintiffs failed to present evidence of defendant’s financial status. Although the ratio between the punitive and compensatory damage awards was greater than 15 to 1, there is no requirement that a punitive damage award bear any particular proportion to the size of the compensatory damage award. (Deal v. Byford (1989), 127 Ill. 2d 192, 204 (punitive damage award affirmed despite 19 to 1 ratio).) While defendant argues that charging high fees and failing to disclose those fees up front is not so outrageous as to justify a $4,700 punitive damage award, he ignores the reprehensible nature of the strong-arm tactics he was found to have engaged in. As we have seen, defendant was only entitled pursuant to his implied-in-fact contract with Carrie Ekl to receive a reasonable sum for his services. By threatening to damage the Ekl home, he extorted a sum from her that was several times in excess of what his competitors charged. This type of conduct fully justifies the punitive damage award of $4,700.

The fact that no evidence was presented concerning defendant’s financial circumstances does not change our view. In Deal, no evidence concerning the defendants’ financial status was introduced and the court held that plaintiff was not required to present such evidence. (127 Ill. 2d at 203-04.) The court further stated that defendants could not complain of the absence of such evidence when they had made no attempt to present any. 127 Ill. 2d at 205.

Defendant contends that the rule recently set forth in Black v. Iovino (1991), 219 Ill. App. 3d 378, 395, that a plaintiff’s failure to introduce evidence of a defendant’s financial status limits recovery of punitive damages to an amount sufficient to punish or deter an individual without pecuniary resources should be applied -here. We are uncertain of the validity of the rule when our supreme court, which affirmed a $25,000 punitive damage award in Deal, mentioned no such rule and stated that defendants could not complain of the absence of evidence of their financial status when they had presented none. Even if we apply the rule, however, the award was not excessive. A substantial punitive damage award was necessary to deter defendant from engaging in improper practices which were so lucrative and enabled him to collect $148 per hour. The punitive damage award was not excessive.

Defendant also argues that it was error for the trial court to consider in awarding punitive damages his own testimony that a 1989 price increase resulted largely from expenses relating to the lawsuit filed by the Attorney General. Defendant first contends that the testimony was irrelevant because the increase occurred a year after he worked on the Ekl job. We disagree. The testimony indicates that expenses from the present suit, including a punitive damage award, could also be passed on to consumers, a relevant factor in determining an amount sufficient to deter similar future conduct.

The above testimony was presented while defendant was testifying as an adverse witness in plaintiffs’ case. Defendant also testified that his 1988 prices were higher than those of his competitors and this resulted from attorney fees and other expenses relating to the Attorney General’s lawsuit. When plaintiffs’ attorney completed his questioning, defendant’s attorney questioned him. After this took place, the trial court struck the testimony relating to the 1989 increase. When the trial judge announced the damage award, he stated that he had reconsidered this ruling and considered the previously stricken testimony in awarding punitive damages.

Defendant complains that the trial court’s consideration of this testimony was an unfair surprise which denied him the chance to rebut the testimony. We disagree for several reasons. First of all, the testimony defendant feels he should have been able to refute was his own testimony. Secondly, defendant’s attorney had an opportunity to rehabilitate defendant during the examination that occurred prior to the time the testimony was stricken. Defendant’s attorney did, in fact, ask several questions at this time about the Attorney General’s lawsuit and its effect upon defendant’s business. Finally, defendant’s testimony relating to his 1988 prices was never stricken. Defendant therefore still had the incentive to present evidence refuting his testimony concerning the effect of the Attorney General’s lawsuit upon his prices had he been able to do so. Therefore defendant was not prejudiced by the trial court’s action.

Plaintiffs cross-appeal and contend that the trial court abused its discretion by denying their request for attorney fees pursuant to section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c)). Section 10a(c) provides that in an action brought pursuant to the Act, the trial court may award attorney fees to the prevailing party. (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c).) When the word “may” is used in a statute it generally implies permissive or discretionary rather than mandatory action. (Tague v. Molitor Motor Co. (1985), 139 Ill. App. 3d 313, 318.) Thus, the decision as to whether attorney fees should be awarded to the prevailing party in an action under the Act rests within the sound discretion of the trial court. Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 123.

In Tague, a substantial award of punitive damages was imposed by the jury and affirmed on appeal. The court also affirmed the trial court’s denial of fees under the Act, ruling that the denial of fees was not an abuse of discretion. (Tague, 139 Ill. App. 3d 313.) Likewise, there was a substantial punitive damage award in the case at bar. It would appear that the purposes of allowing attorney fee awards under the Act are to punish and deter violators of the Act and potential violators and to encourage consumers to bring lawsuits to vindicate their rights especially when small sums of money are involved. The trial judge could have reasonably concluded that the large punitive damage award was sufficient to serve the above purposes. The denial of attorney fees to plaintiffs was not an abuse of discretion.

Plaintiffs further contend, however, that they were at least entitled to a hearing on their fee request. As plaintiffs point out, in Beno v. McNew (1989), 186 Ill. App. 3d 359, 366, this court held that the trial court erred by summarily disposing of defendant’s motion for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611), without a hearing. The motion had been filed after the plaintiff voluntarily dismissed his complaint. This court acknowledged in Beno that no hearing is required in cases where the existence of grounds for section 2 — 611 relief can be established without one. (Beno, 186 Ill. App. 3d at 366.) One such case was Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 22-23, in which the trial court was able to determine whether section 2 — 611 relief was appropriate from the evidence produced at trial.

In the case at bar, like Dayan and unlike Beno, a trial was held. Because section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c)) provides the trial court with discretionary authority to award attorney fees to the prevailing party, no hearing was necessary for the trial court to determine whether grounds for a fee award existed. Beno is therefore distinguishable and is not controlling in this case. The trial judge was aware that a statutory ground for an award of attorney fees existed, but he properly exercised his statutory discretion in denying such an award. No hearing was required under the circumstances of this case.

Finally, two motions have been filed which we have ordered taken with the case. Defendant has moved to strike those portions of plaintiffs’ reply brief dealing with matters other than the issue raised in the cross-appeal. We grant this motion because a cross-appellant must confine his or her reply brief to issues raised in the cross-appeal (134 Ill. 2d R. 343(b)(i)). Plaintiffs have moved to strike any reference in defendant’s briefs to the case of Black v. Iovino because the Appellate Court for the First District temporarily withdrew the opinion from publication. As this opinion has now been released for publication, plaintiffs’ motion is denied.

For the above reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NICKELS and GEIGER, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK J. BOLE, JR., Defendant-Appellant.
    Second District
    No. 2 — 89—1218
    Opinion filed December 30, 1991.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Frederick Bole, Jr., was indicted in the circuit court of McHenry County on seven counts of criminal sexual assault against his stepdaughter. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3).) He subsequently entered a guilty plea to counts I, III, and VI, and the State nol-prossed the other four counts. After a sentencing hearing, defendant was sentenced to 8 years’ imprisonment on count VI, 10 years’ imprisonment on count I, and 10 years’ imprisonment on count III, all terms to run consecutively. Defendant’s motion to withdraw his guilty plea or to reduce sentence was denied. On appeal defendant contends that section 5 — 8—4(a) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) is unconstitutional; that his guilty plea was not knowingly and voluntarily made; that he received ineffective assistance of counsel; that he did not commit the offenses in a single course of conduct; and that the sentences are excessive.

At the preliminary hearing, defendant was advised by the trial court that he was indicted for seven separate Class 1 felonies. The court explained that a Class 1 felony was punishable by a sentence of not less than 4 years nor more than 15 years’ imprisonment. Defendant was told he could receive consecutive terms of imprisonment. Defendant pleaded not guilty.

Defendant later withdrew his not guilty plea on counts I, III, and VI and entered a plea of guilty to those counts. The State nol-prossed the remaining counts. The State advised the court that it was not asking that the second and third offenses be treated as Class X offenses. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b).) The court then admonished defendant pursuant to Supreme Court Rule 402. (134 Ill. 2d R. 402.) The court explained the sentencing range for each Class 1 felony count and fines and informed defendant of mandatory supervised release. Defendant was also told that these were separate offenses and that consecutive terms of imprisonment could be imposed. He was advised that the sentences could be concurrent.

Defendant indicated that he understood these admonishments and that he was voluntarily entering a guilty plea to the three counts. The State presented the factual basis for the charges. If the matter went to trial, evidence and testimony would have been introduced to show that on March 1, 1989, February 27, 1989, and February 22, 1989, defendant knowingly committed an act of sexual penetration by placing his penis into the vagina of his stepdaughter. The victim was under the age of 18 years at the time. The court entered judgment against defendant on each of the three counts.

When the matter came up for sentencing hearing on October 13, 1989, the State informed the defense attorney for the first time that it was seeking three consecutive prison terms under section 5 — 8— 4(a). (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).) Under this section consecutive prison terms were mandatory. The trial court and the defense attorney never previously advised defendant that if prison terms were imposed, they had to be consecutive. Defendant was eligible for probation under the family-member exception found in section 5 — 5—3(e) of the Corrections Code as well. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(e).) The defense attorney informed defendant prior to the sentencing hearing commencing that the State was seeking consecutive prison terms.

The State called Reverend Blake Higginbotham, defendant’s wife Michelle Bole, defendant’s ex-wife Susan Bole, defendant’s daughter from a previous marriage, and the victim, defendant’s stepdaughter. The victim testified that defendant started having intercourse with her when she was 11 years old. She was 15 years old at the sentencing hearing. She stated that defendant had sex with her over 100 times. The victim said that defendant fondled her and also had her perform certain sexual acts on defendant whenever the victim’s mother left the house and that these incidents occurred several times a week. The victim had attempted suicide mainly by clawing at herself.

Defendant presented the testimony of a psychologist, Dr. Gerald Girdaukas, regarding defendant’s prospects for rehabilitation through counseling. Three men from defendant’s church, who were co-owners of Cornerstone Waste Systems, testified for defendant. They would provide defendant with a job and a place to live if he received probation. Norbert Selking, a member of the Community Upholding Persons, testified that defendant regularly attended meetings and had been a good influence on other prisoners. Defendant also testified on his own behalf.

The State asked for consecutive, 10-year terms of imprisonment for each conviction. The State pointed out that consecutive terms were mandatory under section 5 — 8—4(a). It asked the court to consider the psychological harm to the victim and that defendant had abused the victim over 100 times. Defense counsel stressed factors in mitigation and asked for probation. The court then sentenced defendant to consecutive terms of 8, 10 and 10 years’ imprisonment pursuant to section 5 — 8—4(a). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 4(a).

At the hearing on defendant’s motion to withdraw his guilty plea, defendant claimed that the trial court failed to advise defendant that if prison terms were imposed such terms were mandatorily consecutive. He claimed his plea was not knowingly and voluntarily made as a result. The trial court denied defendant’s motion finding that it had advised defendant of the possibility of consecutive sentences.

While defendant raises several issues, we find that a determination of his fourth issue is dispositive of most of the other matters raised on appeal. Defendant contends that he was improperly sentenced to mandatory consecutive sentences under section 5 — 8—4(a) of the Corrections Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)), when the offenses for which he was sentenced were not committed in a “single course of conduct” as required under section 5 — 8—4(a). Defendant was sentenced to consecutive terms on counts I, III, and VI. Count I charged defendant with a violation of section 12 — 13(a)(3) of the Criminal Code of 1961 (Criminal Code) when defendant knowingly committed an act of sexual penetration against his stepdaughter on or about March 1, 1989. Count III charged the same offense except as occurring on or about February 27, 1989. Count VI charged the same offense as counts I and III except as occurring on or about February 22, 1989.

The relevant portion of section 5 — 8—4(a) provides as follows:

“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— Ilf of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).

Defendant argues that the three incidents occurred several days apart, separated by intervening circumstances, and can be said to be independently motivated. He claims the offenses are not part of a single course of conduct, and therefore the mandatory consecutive sentence provision of section 5 — 8—4(a) was not applicable. He asks that his sentence be vacated and the matter remanded for resentencing. In his reply brief defendant acknowledges a recent decision from the Appellate Court, Fourth District, People v. Ewald (1991), 210 Ill. App. 3d 7, which would defeat defendant’s argument on a different basis. He posits that the construction of the statute applied in Ewald is incorrect.

The State does not rely on People v. Ewald (1991), 210 Ill. App. 3d 7, in its brief which implicitly contradicts the State’s position taken therein. However, the State does rely on People v. Hough (1991), 221 Ill. App. 3d 447, which adopted the reasoning in People v. Ewald (1991), 210 Ill. App. 3d 7, concerning section 5 — 8—4(a). The State argues that “course of conduct” implies a range of activity and is not limited to a single incident. It claims that defendant has engaged in a pattern of sexual penetration with his stepdaughter with the same intent each time: gratification of sexual desires. Therefore, defendant engaged in a “single course of conduct” with no substantial change in his criminal objective, and consecutive sentences were mandatorily required.

This issue requires an initial determination of whether the mandatory consecutive sentence portion of section 5 — 8—4(a) (People v. Lafferty (1990), 207 Ill. App. 3d 136) only applies in cases where a conviction for either section 12 — 13 or 12 — 14 of the Criminal Code arises from a “single course of conduct” in which a defendant was convicted of more than one offense. If it is found that this exception only applies where the section 12 — 13 or 12 — 14 offense was committed as part of a single course of conduct, the next question is whether the instant defendant’s offenses were committed as part of a single course of conduct.

In People v. Ewald (1991), 210 Ill. App. 3d 7, the defendant was charged with and convicted of two counts of aggravated criminal sexual assault. One count was committed against one victim individually on one occasion and the other count was committed against another victim on another date. The victims were sisters. The defendant received consecutive sentences for these convictions under section 5— 8 — 4(a) of the Corrections Code. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).) The defendant argued that the language in the statute could not be read to require consecutive sentences where the defendant was convicted of violations of section 12 — 14 and the offenses were separate and distinct. He posited that a violation of section 12— 13 or 12 — 14 was only an exception to the rule against imposing consecutive sentences for offenses committed as part of a single course of conduct.

The Appellate Court, Fourth District, found that it was arguably unclear what the legislature intended based solely on the language of section 5 — 8—4(a). (Ewald, 210 Ill. App. 3d at 9. But cf. Lafferty, 207 Ill. App. 3d at 138 (wherein the Appellate Court, Fourth District, noted the “plain language of section 5 — 8—4(a)”); People v. Willis (1990), 204 Ill. App. 3d 590, 595 (wherein the same court referred to the “plain language of section 5 — 8—4”).) The Ewald court then examined the legislative debates on Public Act 85 — 1003 which substantively amended section 5 — 8—4(a) to include violations of section 12— 13 or 12 — 14 and changed the language from “the court may enter” to “the court shall enter” sentences to run consecutively. (Pub. Act 85-1003, §2, eff. July 1, 1988 (1987 Ill. Laws 4710, 4712, 4715).) 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)), due to incorrectly numbered sections, but with no change in the substantive language of Public Act 85 — 1003. (Ewald, 210 Ill. App. 3d at 9.) Those debates showed one House representative stating that consecutive sentences were required “ ‘where a defendant is convicted to multiple felony offenses.’ ” (Ewald, 210 Ill. App. 3d at 10, quoting 85th Ill. Gen. Assem., Senate Proceedings, Nov. 6, 1987, at 50 (statements of Senator Degnan).) A State senator, the sponsor of the bill, indicated that the bill “ ‘requires the court to impose consecutive sentences where a defendant is convicted to [sic] multiple felony offenses and one of those offenses is a criminal sexual assault or aggravated ... criminal sexual assault.’ ” Ewald, 210 Ill. App. 3d at 10, quoting 85th Ill. Gen. Assem., Senate Proceedings, Nov. 6, 1987, at 50 (statements of Senator Degnan).

The Ewald court noted that section 5 — 8—4(a) could arguably be interpreted as authorizing a mandatory consecutive sentence in cases only where a violation of section 12 — 13 or 12 — 14 arises from a single course of conduct. However, the Ewald court found that the legislative debates did not support such a narrow interpretation. Any other interpretation would be difficult to reconcile according to the Appellate Court, Fourth District, since it was unlikely the legislature intended mandatory consecutive sentences to apply only where a section 12 — 13 or 12 — 14 violation stemmed from a single course of conduct and not to a situation where a defendant sexually assaulted two young girls on separate occasions. Ewald, 210 Ill. App. 3d at 10.

The Appellate Court, Fifth District, recently followed People v. Ewald (1991), 210 Ill. App. 3d 7, in People v. Haun (1991), 221 Ill. App. 3d 164. Applying Ewald, the Haun court upheld consecutive terms of imprisonment where defendant was convicted of one count of aggravated criminal sexual assault which occurred in 1985 and one count of aggravated criminal sexual assault which occurred in 1986. The offenses were against the same victim.

The Appellate Court, Fifth District, again followed Ewald in People v. Hough (1991), 221 Ill. App. 3d 447. The defendant was convicted of one count of aggravated criminal sexual assault occurring on November 10, 1988. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14.) He was convicted of two counts of aggravated criminal sexual assault, both counts against the same victim, occurring on January 29, 1989. It was the same victim from the November 10, 1988, incident as well. The sentence imposed for the November offense was ordered to be served consecutively to the sentences imposed for the January offense under section 5 — 8—4(a). The defendant argued on appeal that section 5 — 8— 4(a) applied only when a section 12 — 13 or 12 — 14 offense occurred as part of a single course of conduct. Defendant posited that the November offense was not part of the same course of conduct.

The Appellate Court, Fifth District, found that the resolution of the same issue in People v. Ewald (1991), 210 Ill. App. 3d 7, was correct. The court noted the general rule that where a statute is ambiguous, as section 5 — 8—4(a) was, a reviewing court should select the construction which leads to a logical result and reject those leading to an absurdity. (Hough, 221 Ill. App. 3d at 454-55, citing People v. Jones (1985), 134 Ill. App. 3d 1048.) The Hough court found that it was neither reasonable nor logical that the legislature intended to mandate consecutive sentences for violations of section 12 — 13 or 12 — 14 only where such violations are part of a single course of conduct. (Hough, 221 Ill. App. 3d at 455.) Therefore, the Hough court determined that consecutive sentences were mandatory under section 5 — 8—4(a) regardless of whether the section 12 — 13 or 12 — 14 offenses arose from a single course of conduct.

After carefully reviewing the language of section 5 — 8—4(a), we respectfully disagree with the conclusions of the Appellate Court, Fourth District, in People v. Ewald (1991), 210 Ill. App. 3d 7, and the Appellate Court, Fifth District, in People v. Hough (1991), 221 Ill. App. 3d 447, and People v. Haun (1991), 221 Ill. App. 3d 164. According to the rules of statutory construction “ ‘[wjhere the statutory language is clear and unambiguous, a court must enforce the law as enacted without considering other aids of construction.’ ” (People v. Drakeford (1990), 139 Ill. 2d 206, 214, quoting People v. Ferguson (1989), 132 Ill. 2d 86, 97.) The intent of the legislature can best be determined by the plain and ordinary meaning of the statutory language. (People v. Pettit (1984), 101 Ill. 2d 309, 313.) A statute which is unambiguously worded must be enforced according to the plain meaning of its language. (Willis, 204 Ill. App. 3d at 595.) The plain language of section 5 — 8—4(a) (see Lafferty, 207 Ill. App. 3d at 138; Willis, 204 Ill. App. 3d at 595) only authorizes mandatory consecutive sentences for offenses in cases where a defendant was convicted of a violation of section 12 — 13 or 12 — 14 of the Criminal Code, and such violation was part of a single course of conduct. While the language is unambiguous, our examination of the history of section 5 — 8—4(a) supports our conclusion as well.

The portion of section 5 — 8—4(a) at issue herein has been amended several times over the years. In 1973, it merely provided that consecutive sentences could not be imposed 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.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a); People v. King (1977), 66 Ill. 2d 551.) Under this provision the courts considered and evaluated the totality of the facts and circumstances to ascertain whether the defendant’s actions resulting in two or more offenses were part of a single course of conduct without any change in the criminal purpose or objective or new elements of proof required. (People v. Lowther (1980), 85 Ill. App. 3d 735; People v. Ingram (1980), 84 Ill. App. 3d 495.) Consecutive sentences under section 5 — 8—4(a) depended upon both the existence of separate and distinct acts and separate motivation behind those acts. (People v. Perruquet (1983), 118 Ill. App. 3d 293.) If the trial court found that the offenses were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, the trial court then had to exercise its discretion and determine whether a consecutive sentence was required as provided in section 5 — 8—4(b) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(b)). (See People v. Tigner (1990), 194 Ill. App. 3d 600; People v. Russell (1986), 143 Ill. App. 3d 296; People v. Lindsay (1978), 67 Ill. App. 3d 638.) The reviewing courts examined the criminal objective or motivation behind a defendant’s separate acts to determine whether consecutive sentences could be imposed under section 5 — 8—4(a). E.g., People v. Davis (1986), 151 Ill. App. 3d 435; People v. Parker (1986), 141 Ill. App. 3d 643; People v. Paino (1985), 137 Ill. App. 3d 645; People v. Baker (1985), 133 Ill. App. 3d 620; Perruquet, 118 Ill. App. 3d 293; People v. Fieberg (1982), 108 Ill. App. 3d 665; People v. Rose (1979), 75 Ill. App. 3d 45; People v. Brown (1975), 31 Ill. App. 3d 547.

Section 5 — 8—4(a) was later amended to provide that consecutive sentences could not be imposed for offenses 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, in which event the court may enter sentences to run consecutively.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a); People v. Townes (1981), 94 Ill. App. 3d 850, aff’d (1982), 91 Ill. 2d 32.) The defendant’s consecutive sentences for rape and deviate sexual assault committed against the victim during the offense of home invasion were upheld in Townes due to the severe bodily injury to the victim in the course of the Class X felonies. (See People v. Knight (1985), 139 Ill. App. 3d 188.) This court found in People v. Russell (1986), 143 Ill. App. 3d 296, that in order for a defendant to fall within the purview of the consecutive sentence provision regarding a Class X or Class 1 felony, it was necessary that he be convicted of multiple offenses. Then, there must have been either a substantial change in the nature of his criminal objective in committing the multiple offenses or his convictions must be a Class X or Class 1 felony in which he inflicted severe bodily injury. If either condition existed, the court may impose consecutive sentences if the requirements of section 5 — 8—4(b) were met. (Russell, 143 Ill. App. 3d at 302.) This court viewed the Class X/Class 1 felony with severe bodily injuries part of section 5 — 8—4(a) as an exception to the rule against the imposition of consecutive sentences for offenses which were committed as part of a single course of conduct.

The Appellate Court, First District, also found that consecutive sentencing was proper under section 5 — 8—4(a) if the defendant was convicted of a Class X felony and if he had inflicted severe bodily injury during commission of the felony. (People v. Buford (1988), 178 Ill. App. 3d 329.) The court reasoned that consecutive sentences were proper under such circumstances regardless of whether defendant’s criminal objective remained unchanged throughout the incident. (Buford, 178 Ill. App. 3d at 338.) Defendant’s criminal objective remaining unchanged throughout the incident was irrelevant to the propriety of consecutive sentences because his conviction and conduct (Class X felony with severe bodily injury) satisfied the statutory exception to the “substantial change” requirement of section 5 — 8—4(a). (Buford, 178 Ill. App. 3d at 338.) The Buford court relied upon People v. Russell (1986), 143 Ill. App. 3d 296.

In People v. Willis (1990), 204 Ill. App. 3d 590, the Appellate Court, Fourth District, examined section 5 — 8—4(a) before the most recent substantive change effective July 1, 1988, at issue herein. The court noted that the “plain language” of section 5 — 8—4 authorized the imposition of a consecutive sentence in cases not involving Class X or Class 1 felonies and not involving severe bodily injury if there was a substantial change in the nature of the criminal objective (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a)), and the court found a consecutive sentence was necessary to protect the public from further criminal activity by defendant (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8 — 4(b)). The Willis court concluded that the defendant’s acts of aggravated battery against the police officers and his attempted escape from jail were not separate acts accompanied by separate motivations. Thus, they were part of a single course of conduct. The consecutive sentence for attempted escape was vacated and ordered to be served concurrently with the aggravated battery sentences. Since the defendant’s offenses in Willis were not Class X or Class 1 felonies, implicit in the court’s decision is the fact the exception for consecutive sentences for Class X/Class 1 felonies committed in a single course of conduct did not apply.

In People v. Lafferty (1990), 207 Ill. App. 3d 136, 138, the Appellate Court, Fourth District, adopted the reasoning of People v. Buford (1988), 178 Ill. App. 3d 329, in examining the “plain language of section 5 — 8—4(a),” which created an exception to the general ban against consecutive sentences for violations of section 12 — 14 of the Criminal Code. We note that the general ban against consecutive sentences was that they could not be imposed where they were part of a single course of conduct where no substantial change in the nature of the criminal objective occurred. The Buford decision, as discussed previously, found that a defendant’s unchanged criminal objective was irrelevant where one of the offenses committed was a Class X or Class 1 felony and severe bodily injury was inflicted. The Lafferty court found Buford applied although Lafferty involved a section 12 — 14 offense. The defendant in Lafferty had been convicted of two counts of aggravated criminal sexual assault, both offenses arising out of “one episode.” (Lafferty, 207 Ill. App. 3d at 137.) He argued that consecutive terms of imprisonment were not required under section 5 — 8— 4(a), but the Appellate Court, Fourth District, found that consecutive terms were mandatory.

Prior interpretations of section 5 — 8—4(a) indicate that a defendant could receive a consecutive sentence for a Class X or Class 1 felony committed as part of a single course of conduct where the defendant inflicted severe bodily injury regardless of whether the defendant’s criminal objective substantially changed during the single course of conduct. (Buford, 178 Ill. App. 3d 329; Russell, 143 Ill. App. 3d 296; see Willis, 204 Ill. App. 3d 590.) Thus, the Class X/Class 1 felony provision was an exception to the requirement that the defendant’s criminal objective had to change substantially during the single course of conduct in order to impose consecutive sentences. (Buford, 178 Ill. App. 3d 329; Russell, 143 Ill. App. 3d 296.) Under the recent amendment consecutive sentences have been made mandatory. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a); People v. McDade (1991), 219 Ill. App. 3d 317; People v. Lipscomb (1991), 215 Ill. App. 3d 413; Lafferty, 207 Ill. App. 3d at 137-38; see Haun, 221 Ill. App. 3d 164.

Furthermore, the recent amendment merely inserted another exception to the general ban against consecutive sentences for offenses committed as part of a single course of conduct, i.e., “where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 4(a).) The State posits that a situation such as that found in People v. Perruquet (1983), 118 Ill. App. 3d 293, is the kind of situation the amendment is meant to address. It claims that under the amendment a court would not be strained to find a change in a defendant’s criminal objective in order to impose consecutive sentences. While we agree that the amendment is an exception to the “substantial change” requirement of section 5 — 8—4(a) (see Buford, 178 Ill. App. 3d at 338; Russell, 143 Ill. App. 3d at 302), the section 12 — 13 or 12 — 14 violation still must occur as part of a single course of conduct. Although the court found no single course of conduct in Perruquet, we question whether such a finding may not be different today since a consecutive sentence is now permitted, in fact mandatory, for a section 12 — 13 or 12 — 14 offense committed in a single course of conduct. The “strain” noted by the State to achieve the result in Perruquet would not be needed. In view of the reasoning applied to the Class X/Class 1 felony provision of section 5 — 8—4(a) in these earlier cases, and some other factors cited below, we determine that a conviction for criminal sexual assault must be part of a single course of conduct in order for a mandatory consecutive sentence to arise. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).

We are not persuaded by the comments of the legislators as cited by the Ewald court as indicating a contrary intent. (Ewald, 210 Ill. App. 3d at 10.) These remarks only show that consecutive sentences are required when a defendant is convicted of multiple felony convictions. The statements do not demonstrate under what circumstances these multiple convictions must occur. In addition, the legislative intent can best be determined by the plain and ordinary meaning of the statutory language. (Pettit, 101 Ill. 2d at 313.) The legislature placed the provision regarding section 12 — 13 or 12 — 14 offenses with the already existing exception to the single course of conduct ban against consecutive sentences, i.e., Class X/Class 1 felony exception. If it intended consecutive sentences to apply to sections 12 — 13 and 12 — 14 offenses irrespective of a single course of conduct, the legislature could have set the provision out separately. We do not find such an interpretation difficult to reconcile (Ewald, 210 Ill. App. 3d at 10), nor unreasonable or illogical (Hough, 221 Ill. App. 3d at 455), since the deterrent purpose of multiple sentencing is to discourage the commission of further offenses once an initial offense has been completed. (Paino, 137 Ill. App. 3d at 654; Perruquet, 118 Ill. App. 3d at 297.) This purpose is met where a defendant may commit a section 12 — 13 or 12 — 14 violation as part of a single course of conduct in which other offenses have been committed, including those situations where a defendant commits repeated section 12 — 13 or 12 — 14 violations against a victim during a single course of conduct. See People v. Segara (1988), 126 Ill. 2d 70.

We turn now to a determination of whether defendant’s offenses were committed as part of a single course of conduct. Defendant committed the same statutory offense against the same victim at three different and distinct points in time. Several days elapsed between the offenses. We note that implicit in the appellate courts’ reasoning in People v. Ewald (1991), 210 Ill. App. 3d 7, People v. Haun (1991), 221 Ill. App. 3d 164, and People v. Hough (1991), 221 Ill. App. 3d 447, is the fact that defendant’s convictions herein would not be said to arise from a single course of conduct. The State argues in its brief that defendant did engage in a single course of conduct with no substantial change in the nature of his criminal objective. The State has cited Hough as additional authority on a different perspective of the issue. However, Hough is contrary to the State’s position regarding whether the offenses herein were committed as part of a single course of conduct.

Conduct as defined in section 2 — 4 of the Criminal Code refers to an act or series of acts and the accompanying mental state. (Ill. Rev. , Stat. 1989, ch. 38, par. 2 — 4; People v. Leger (1991), 208 Ill. App. 3d 333.) Prior case law under prior statutes found that “conduct” was used in the sense of “the same transaction.” (People v. Schlenger (1958), 13 Ill. 2d 63; People v. Weaver (1968), 93 Ill. App. 2d 311.) The supreme court recently referred to acts committed during a single transaction in discussing section 5 — 8—4(a) in People v. Segara (1988), 126 Ill. 2d 70. In order to impose consecutive sentencing for such offenses under the old statute, there must have been both the existence of separate and distinct acts and separate motivation behind those acts (Perruquet, 118 Ill. App. 3d at 295), otherwise they were part of a single course of conduct.

Under prior provisions of section 5 — 8—4(a), a defendant would argue that his actions or offenses were part of a single course of conduct in order to avoid consecutive sentencing on the offenses. {E.g., Perruquet, 118 Ill. App. 3d 293.) However, when separate victims were harmed by distinct acts directed at the victims separately, section 5 — 8—4(a) did not prohibit the imposition of consecutive sentences. (People v. McManus (1990), 197 Ill. App. 3d 1085.) In Mc-Manus the fact that the nine separate and distinct offenses were part of a larger scheme of financial fraud did not mean the nine incidents constituted a single course of conduct. Consecutive sentences could be imposed for the commission of repeated offenses of the same type on the same victim when the evidence showed the existence of separate acts and a change in the accompanying mental state (Perruquet, 118 Ill. App. 3d at 296), i.e., if the acts were not part of a single course of conduct. See generally People v. Spires (1989), 182 Ill. App. 3d 176 (wherein four rapes against four different people at four different and distinct points in time did not arise from the same course of conduct).

The State puts forth a definition for the word “course” as found in the dictionary and argues that a course of conduct does not refer to a single act or incident. It points out that the phrase “same conduct” or “same transaction” as found in People v. King (1977), 66 Ill. 2d 551, is not used. While “course” may mean an “accustomed procedure or normal action b: a chosen manner of conducting oneself; BEHAVIOR c: progression through a series of acts or events or a development or period” (Webster’s Seventh New Collegiate Dictionary 191 (1971)), the statute refers to a single course of conduct. The State reads the phrase “single course of conduct” too broadly, and its position is contrary to previous case law concerning what constitutes a “single course of conduct.” The State acknowledged during oral argument that this “course of conduct” would not apply to a defendant who committed, for example, one robbery against one victim one day and another victim on another day. The State opined on oral argument that section 5 — 8—4(a) is illogical to some extent regardless of the interpretation.

Based on the numerous opinions on section 5 — 8—4(a) prior to the amendment, only some of which have been specifically cited in this opinion, defendant’s separate offenses against the same victim occurring at separate and distinct points of time, and separated by several days, did not constitute a single course of conduct. (See generally Mc-Manus, 197 Ill. App. 3d 1085.) Although defendant’s second and third violations of section 12 — 13 may have involved a renewed criminal objective of sexual assault, the second and third offenses were not part of the first offense. (See Perruquet, 118 Ill. App. 3d at 297.) We have already found that a conviction for a section 12 — 13 or 12 — 14 offense committed as part of a single course of conduct mandates a consecutive sentence regardless of defendant’s unchanged criminal objective.

Based on the foregoing, defendant was not subject to the mandatory consecutive sentence provision of section 5 — 8—4(a) because his section 12 — 13 offenses were not part of a “single course of conduct.” Since the trial court incorrectly found that defendant qualified for mandatory consecutive terms and then imposed them, the sentences must be vacated and the cause remanded for resentencing. We note that while defendant was not eligible for mandatory consecutive terms under section 5 — 8—4(a), he is still eligible for consecutive terms under the exercise of the trial court’s discretion under section 5 — 8—4(b). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).

Returning to the other issues raised by defendant, in the first issue he challenges the constitutionality of section 5 — 8—4(a). (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).) He contends the provision regarding section 12 — 13 or 12 — 14 violates due process and equal protection. Defendant lacks standing to challenge the statute on the grounds asserted. A party may not challenge a statute’s constitutional validity unless that party has sustained or is in immediate danger of sustaining a direct injury as a result of the statute’s enforcement. (People v. Ziltz (1983), 98 Ill. 2d 38; People v. Hood (1990), 203 Ill. App. 3d 289.) Since defendant is not subject to the mandatory consecutive sentence provision of section 5 — 8—4(a) as determined, he has no standing to constitutionally challenge the provision. Defendant conceded this point on oral argument.

Next, defendant contends that his guilty plea to the three counts was not entered knowingly and voluntarily, and, therefore, the convictions must be vacated and his plea withdrawn. Defendant bases this issue on the trial court’s failure to inform defendant that any sentences imposed were to be mandatory consecutive sentences under section 5 — 8—4(a). The trial court did apprise defendant that he could be sentenced to consecutive terms, concurrent terms, or probation. Defendant argues that the trial court’s noncompliance with Supreme Court Rule 402(a)(2) by failing to advise defendant of the mandatory nature of consecutive prison terms renders his plea involuntary. He claims that if he would have been so advised, he would not have pleaded guilty. People v. Davis (1991), 144 Ill. 2d 349; People v. Brown (1991), 217 Ill. App. 3d 66.

This issue need not be addressed since it is defendant’s sole contention that the admonishment was insufficient because he was not advised that he was eligible to receive a mandatory consecutive sentence. Defendant was not eligible for mandatory consecutive sentences. He was advised of the possibility of consecutive terms. The admonishment was thus substantially sufficient. No other issue is raised with the propriety of the admonishments. Defendant also conceded this point during oral argument.

In the third issue defendant contends he received ineffective assistance of counsel because he was not told by his attorney prior to entering his guilty plea that he could receive mandatory consecutive sentences under section 5 — 8—4(a). However, this issue again relies on the fact that defendant was eligible to receive mandatory consecutive sentences, and he was not. This issue need not be addressed.

Defendant claims ineffective assistance of counsel because his attorney failed to object to the testimony of Reverend Blake Higginbotham at the sentencing hearing. Higginbotham was called by the State and said that defendant had contacted him by telephone three times. Defendant had asked for counsel and advice. Higginbotham had told defendant during the second conversation that he would not be defendant’s counselor. The minister explained on cross-examination that defendant was disqualified from counsel because he previously lied to Higginbotham. Under Higginbotham’s teachings and studies, these lies precluded counsel. Defendant testified at the sentencing hearing that he confessed his sins to Higginbotham and wanted spiritual help.

Higginbotham testified that during the third conversation with defendant, he asked defendant about the frequency of the sexual incidents with the victim. He asked this question to ascertain the truth for the sake of defendant’s wife and the victim. Defendant told the minister that he had sexual intercourse with the victim over 25 times, but his response gravitated toward 50 times. Defendant did not recall discussing the number of incidents with Higginbotham.

On appeal defendant contends there should have been an objection raised to Higginbotham’s testimony under the minister-penitent privilege. (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 803.) He claims the privilege applied because defendant contacted Higginbotham to confess and for spiritual guidance, and the conversation was in confidence as no third party was present. Defendant contends he was severely prejudiced by this testimony because it bolstered the victim’s testimony regarding the frequency of the incidents.

In order to establish ineffective assistance of counsel, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the outcome would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504.) A court of review may advance directly to the second part of the Strickland test, and if it finds that the defendant was not prejudiced by the allegedly incompetent conduct of his attorney, the court may rule on the claim without first finding the attorney’s conduct constituted less than reasonably effective assistance. People v. Cooper (1989), 132 Ill. 2d 347.

Illinois authorities defining the scope of the minister-penitent privilege are limited. (Snyder v. Poplett (1981), 98 Ill. App. 3d 359.) Section 8 — 803 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 803) allows the privilege to be raised when disclosure by the minister is “enjoined by the rules or practices of such religious body or of the religion which he or she professes.” (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 803; People v. Diercks (1980), 88 Ill. App. 3d 1073.) The clergyman cannot be “compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.” (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 803; People v. Pecora (1969), 107 Ill. App. 2d 283.) While the failure to raise the privilege by either the minister or defendant results in a waiver of the privilege (People v. Byers (1973), 11 Ill. App. 3d 277), it is for this reason that defendant claims he was denied effective assistance of counsel.

It is clear from the record that the privilege did not apply under the statute. Higginbotham testified that defendant was disqualified from Higginbotham’s counsel. He told defendant prior to the conversation regarding the number of incidents that he would not be defendant’s counselor. Thus defendant’s statements to Higginbotham were not obtained by the minister in his professional character or as a spiritual advisor.

Defendant contends in his reply brief that the fact Higginbotham did not consider himself the spiritual advisor of defendant did not preclude confessions to him as a clergyman. He claims it is the “perception” of the penitent which is determinative of whether the privilege applies. Although the statute is designed to protect those communications between clergymen and laymen that originate in a confidence that they will not be disclosed (Snyder, 98 Ill. App. 3d at 362), the statute does not provide that it is the penitent’s “perception” which determines when this confidence arises. If this were the case, there would be no reason to limit the privilege to those situations where a confession or admission is enjoined from disclosure by the rules or practices of the religious body or religion. Regardless of the existence of such rules or practices, a defendant could merely assert that he believed the statements were communicated in confidence and therefore the privilege applied. Defendant’s position is not supported by the language of the statute.

Furthermore, defendant’s “perception” of the privilege existing is not supported by the record. Higginbotham told defendant he would not act as his counselor in the second conversation. The fact Higginbotham accepted defendant’s third phone call and agreed to talk to defendant fails to establish defendant’s claim that an “illusion of being [defendant’s] counsellor” was created in view of Higginbotham’s admonishment to defendant. Defendant asserts that he approached Higginbotham only in his capacity as a minister; however, this point does not create the privilege where defendant was told by Higginbotham that Higginbotham was not defendant’s counsel.

Since the minister-penitent privilege did not exist, there was no actual prejudice caused defendant by his attorney’s failure to raise the privilege. Defendant has failed to establish ineffective assistance of counsel on this basis. Cooper, 132 Ill. 2d at 359-60.

Lastly, defendant claims that the terms of imprisonment were excessive. In view of the fact that the sentences have been vacated and the cause remanded for resentencing, we do not address this issue.

Based on the foregoing, the judgment of the circuit court with respect to defendant’s convictions is affirmed. The sentences, however, are vacated, and the cause is remanded for resentencing.

Affirmed in part; vacated in part and remanded.

McLAREN and DUNN, JJ., concur.