text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY RAY STRONG, Defendant-Appellant.
    Fourth District
    Nos. 4—90—0784, 4—90—0785 cons.
    Opinion filed June 26, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

This is an appeal from convictions in two separate criminal trials in the circuit court of Vermilion County where Bobby Ray Strong was defendant. The cases, Vermilion County Nos. 89 — CF—253 (our No. 4 — 90—0785) and 90 — CF—102 (our No. 4 — 90—0784), are consolidated on appeal because of a joint sentencing hearing.

In case No. 89 — CF—253, the defendant was charged with committing, on August 14, 1989, the offenses of possession with intent to deliver a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401), possession of a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b)), armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2), and unlawful possession of weapons by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1). The last-named charge was predicated upon a prior conviction of mob action (Ill. Rev. Stat. 1989, ch. 38, par. 25 — 1). The jury returned verdicts of guilty to each of the four charges.

On May 11, 1990, in Vermilion County case No. 90 — CF—102, the defendant was charged with unlawful use of a firearm by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)) and unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56V2, par. 704(a)). After a stipulated bench trial, defendant was found guilty of both charges.

Prior to trial in case No. 89 — CF—253, defendant filed a motion for severance. During argument on the motion, defense counsel, as part of his argument, contended the introduction of the prior conviction to prove up the necessary element of unlawful possession of weapons by a felon would unduly prejudice defendant as to the remaining charges. While we fail to find reference to People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, or People v. Bond (1989), 178 Ill. App. 3d 1020, 1023, 534 N.E.2d 156, 159, in the transcript of the hearing on the motion to sever, the State, on appeal, now confesses error and agrees the convictions in case No. 89 — CF—253 must be reversed and remanded for separate retrials.

In Edwards, the supreme court acknowledged that the State must allege and prove a prior conviction in a charge for unlawful possession of weapons by a felon, and it held that a motion for severance from an armed robbery charge should have been granted. The reason for the holding was the prejudice to the defendant by having the prior conviction proved up when it was not relevant to the armed-robbery charge. (See Edwards, 63 Ill. 2d at 140, 345 N.E.2d at 499.) Our court in Bond, after saying the defendant must file a motion to sever or waive the issue, stated, “[H]ad defendant requested a severance, the court would have been required to grant his request.” (Bond, 178 Ill. App. 3d at 1023, 534 N.E.2d at 159.) Thus, we are required to reverse and remand all the convictions under case No. 89 — CF—253 for new trials. Because there will most likely be retrials in case No. 89— CF — 253, it is appropriate to consider other errors defendant has alleged on appeal.

Facts

A condensed statement of facts is necessary to understand the proceedings. In case No. 89 — CF—253, defendant was walking toward an automobile occupied by another person who was sitting in the front passenger seat. An officer observing the scene caused a license check to be made and found the license plate was issued to a different automobile. By then defendant had started to drive the vehicle, and he was pulled over by the observing officer. The passenger walked away from the scene. Defendant indicated he had recently purchased the vehicle and had applied for title and license. When told that the vehicle would have to be towed, he asked the officer to wait a minute and walked to the passenger side, started to enter the vehicle, and opened the glove box. The officer saw a gun in the glove box, and he pushed defendant to the seat and an arrest was made. The officer’s exact testimony was:

“I asked Mr. Strong for the registration, he told me he didn’t have it. I told him I was going to have to tow it, and he said go ahead and tow it. So I was preparing to call for a wrecker, and then he stopped me and says, ‘Wait a minute, wait a minute.’ And then he started to walk around to the passenger side of the Blazer, and I walked with him. He unlocked the driver’s door — or I’m sorry, the passenger door, opened it, opened the glove box, and was reaching into it. When I saw him reaching into the glove box I saw a gun, and I pushed him from the rear through onto the passenger side, so that it was taking his hands (indicating) away from the gun. Rather than trying and struggling with it I pushed him through, and then I started handcuffing him, controlling him.”

A plastic bag was found on the defendant which contained nine small packets, eách of which contained cocaine. The possession of the gun charge was based upon the quoted testimony. Defendant testified at trial that the glove box was not open and that he had never seen the gun.

STATE’S USE OF POST-ARREST SILENCE

During the State’s case in chief, the arresting officer was asked if defendant made any statements immediately after the glove box incident indicating he had no knowledge of the gun. During cross-examination of the defendant he was asked if, after he was arrested, he ever told the police officer who had been sitting in the passenger seat. Defendant’s silence, thus failure to explain the gun’s presence at the time of arrest, was again mentioned in the State’s closing argument. Defendant contends these uses of his silence are improper.

Generally, prosecutorial questions and remarks concerning a defendant’s post-arrest silence are improper, with certain exceptions being made such as for impeaching the defendant’s testimony with a prior inconsistent statement. (People v. Pegram (1988), 124 Ill. 2d 166, 176, 529 N.E.2d 506, 510.) While the decision in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, which held that the State cannot impeach a defendant by his post-arrest silence, involved silence after a Miranda warning, our courts have consistently applied the ruling to post-arrest silence without reference to the Miranda warning. (See Pegram, 124 Ill. 2d at 175-76, 529 N.E.2d at 510; People v. Turner (1989), 128 Ill. 2d 540, 563-64, 539 N.E.2d 1196, 1206; People v. Johnson (1988), 170 Ill. App. 3d 828, 834, 525 N.E.2d 546, 551; People v. Nolan (1987), 152 Ill. App. 3d 260, 267-68, 504 N.E.2d 205, 210-11; People v. McMullin (1985) 138 Ill. App. 3d 872, 876-77, 486 N.E.2d 412, 415.) In Fletcher v. Weir (1982), 455 U.S. 603, 605-07, 71 L. Ed. 2d 490, 493-94, 102 S. Ct. 1309, 1311-12, the United States Supreme Court held that Doyle did not automatically bar the use of post-arrest, pre-Miranda warning silence in cross-examination of a defendant, leaving the issue to the State courts. However, the decision in McMullin specifically states the protection from time of arrest, in contrast to the time from the Miranda warning, is “rooted in Illinois evidentiary law.” (McMullin, 138 Ill. App. 3d at 876, 486 N.E.2d at 415.) Because we cannot foretell how the testimony will play out on retrial, it is impossible for us to make the ultimate conclusion at this time as to the propriety of the use of this silence for impeachment purposes, since there are certain exceptions to the general rule. (See Johnson, 170 Ill. App. 3d at 834, 525 N.E.2d at 551; McMullin, 138 Ill. App. 3d at 877, 486 N.E.2d at 416.) However, this should be sufficient notice that this is an area in which the court must tread very gingerly. What we can say conclusively is that this silence is not admissible for any purpose in the State’s case in chief and it should not be so used in the future.

SUFFICIENCY OF PROOF THAT DEFENDANT WAS ARMED WITH DANGEROUS WEAPON

While the defendant denied knowledge of the gun being in the glove box, the arresting officer testified to defendant’s opening the glove box, reaching into it, and the officer seeing the gun. A fact finder could well conclude that if the officer could see the gun, the defendant could also. Reaching into the compartment containing the gun is evidence, although circumstantial, of defendant’s knowledge of the gun’s presence. This fact situation is different from that in People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, and more in line with the fact situation in Bond. On review, when considering the sufficiency of the evidence to support a conviction, “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Here, the evidence, viewed in a light most favorable to the prosecution, shows that all elements of the crime were proved beyond a reasonable doubt.

WAS IT ERROR TO OMIT THE ELEMENT OF KNOWLEDGE WHEN INSTRUCTING AS TO THE ELEMENTS OF ARMED VIOLENCE?

The defendant objected to the State’s instruction as to the elements of armed violence because it did not include “knowledge.” (See Illinois Pattern Jury Instructions, Criminal, No. 11.20 (2d ed. 1981).) Knowledge of the presence of the gun in the glove box was central to the defense. The jury was well aware that the defense was based upon a theory that defendant could not have had possession of the gun because he did not know of its presence. Our court, in People v. Burton (1990), 201 Ill. App. 3d 116, 123, 558 N.E.2d 1369, 1375 (Steigmann, J., concurring in part and dissenting in part), with one judge dissenting in part, held that the element of knowledge, when implied based upon the provisions of sections 4 — 3 and 4 — 5 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3, 4 — 5), need not necessarily be included in the instruction. We see no reason to hold contrary to the majority opinion in Burton. However, nothing prevents the trial court, on retrial, from instructing as to this element if defendant objects to the pattern issues instruction and tenders an appropriate modified instruction.

IN REFERENCE TO CASE NO. 90-CF-102, DID THE SMELL OF BURNING CANNABIS PROVIDE PROBABLE CAUSE TO SEARCH THE DEFENDANT AND HIS AUTOMOBILE FOLLOWING A TRAFFIC STOP?

We note that the case No. 90 — CF—102 conviction is only consolidated in this appeal because there was a combined sentencing hearing. The same defendant was stopped at a different time while driving a motor vehicle for a traffic violation relating to his rolling through a stop sign. The officer making the stop, when approaching the defendant, detected what he believed to be the smell of burning cannabis. Defendant moved to suppress, alleging the police officer lacked probable cause to search defendant’s person and automobile following a traffic stop. A police officer’s detection of controlled substances by smell is a permissible method of establishing probable cause for a search. People v. Stout (1985), 106 Ill. 2d 77, 87, 477 N.E.2d 498, 502.

The conviction in case No. 89 — CF—253 (our No. 4 — 90—0785) is reversed and remanded, with directions.

The conviction in case No. 90 — CF—102 (our No. 4 — 90—0784) is affirmed.

No. 4 — 90—0784, Affirmed.

No. 4 — 90—0785, Reversed and remanded with directions.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

license: Public Domain

text:
    JOHN W. WIXON, Plaintiff-Appellant, v. JIM EDGAR, Secretary of State, Defendant-Appellee.
    Fourth District
    No. 4—90—0634
    Opinion filed June 26, 1991.
    Rehearing denied August 1, 1991.

      STEIGMANN, J., dissenting.
    Ronald E. Boyer, of Boyer & Thompson, Ltd., of Watseka, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff John W. Wixon petitioned the Secretary of State (Secretary) seeking full reinstatement of his driving privileges, or in the alternative, a restricted driving permit (RDP). On April 23, 1990, the Secretary, upon the recommendation of the hearing officer, denied plaintiff both full reinstatement of his driving privileges and the RDP. Plaintiff sought administrative review of this decision in the circuit court of Sangamon County, which affirmed the Secretary’s decision on August 8, 1990. Plaintiff appeals that order, contending the Secretary’s decision was against the manifest weight of the evidence and the Secretary erred in giving “no weight” to an alcohol evaluation submitted by plaintiff at the hearing. We reverse.

For reasons hereinafter stated, it is unnecessary to address the denial of the RDP.

At the time of the hearing, plaintiff was 32 years old and lived in Cissna Park, Illinois. He was married with two stepchildren and his wife was expecting a child in April 1990.

Plaintiff worked for 5V2 years at Stockland Nitrogen Service, a business which sells fertilizers, chemicals, and seeds to farmers, as well as provides various repair and spraying services. Plaintiff’s place of employment is located in Stockland, Illinois, which is approximately 20 miles from plaintiff’s residence. Co-workers alternate in providing plaintiff transportation to and from work. While at work, when called upon to travel to various farmsteads to provide supplies or services, plaintiff is driven by another worker. Plaintiff has not possessed a driver’s license during the course of his employment at Stockland Nitrogen Service. In the spring and fall, plaintiff worked seven days a week from 4 a.m. to 9 or 10 p.m. During the summer and winter months, plaintiff’s day lasts from 7 a.m. to 5 p.m.

Plaintiff’s wife does not drink alcohol; and plaintiff has been abstinent since February 1988, except he admitted to his wife and his alcohol counselor that he consumed one can of beer on December 24, 1989.

Plaintiff’s driving record revealed several arrests beginning in 1976. Plaintiff has four speeding convictions, one reckless driving conviction, and one conviction for disregarding an official traffic-control device. Plaintiff’s license was suspended on October 1, 1976, for having three moving violations in a 12-month period of time. Plaintiff had his license suspended on May 30, 1978, pursuant to a conviction for fleeing or attempting to elude a police officer. In 1978, plaintiff was convicted for not yielding the right-of-way at an intersection and illegal transportation of alcohol. The driving record shows defendant has two arrests for driving while under the influence (DUI), which occurred on October 13, 1979, and October 5, 1985. Plaintiff’s license was revoked on July 22, 1986, pursuant to his DUI conviction for the October 5, 1985, incident. Plaintiff had two formal hearings in 1988 and 1989 seeking reinstatement of his license, both of which were denied. The driving record shows no traffic violations since October 5, 1985.

At the hearing, the Secretary submitted plaintiff’s driving record, plaintiff’s request for a hearing, and plaintiff’s notice of hearing into evidence. The Secretary also asked the hearing officer to take judicial notice of plaintiff’s files of his two prior hearings, to which the hearing officer acquiesced. The Secretary presented the original alcohol evaluation and two updates, a remedial-education verification, and a character letter from plaintiff’s employer, as well as letters from various acquaintances of plaintiff.

Plaintiff testified at the hearing he had been abstinent from alcohol since February 1988, with the exception of one beer on December 24, 1989. Plaintiff stated he immediately told his wife and also told his alcohol counselor. Plaintiff testified he began counseling for his alcohol problem in February 1988. Plaintiff attended individual sessions with his counselor weekly, which lasted approximately lVz hours each. Plaintiff attended these sessions for two months, but stopped attending after his counselor informed him he no longer needed to attend. Plaintiff stated he has no future intention of using alcohol because of his desire to eliminate the problem alcohol created for him and also because of a need to support his family. Plaintiff stated he wished to keep his job and obtain a driver’s license.

Plaintiff underwent an alcohol evaluation on April 21, 1987. The evaluator wrote: “Client reports two DUI arrests, one illegal transportation arrest, and one reckless driving arrest.” The evaluation stated plaintiff spent 30 days in jail in connection with his latest DUI arrest. The evaluator classified plaintiff at Level II — problematic use. 92 Ill. Adm. Code §1001.410 (Supp. 1988).

Two subsequent updates of this evaluation were conducted to be used at plaintiff’s hearing. Both of these updated evaluations placed plaintiff at Level I — nonproblematic use. (92 Ill. Adm. Code §1001.410 (Supp. 1988).) The latest update, dated February 13, 1990, was done for the current hearing. At the hearing, plaintiff further testified he provided his evaluator with the prior decisions of the Secretary with respect to his previous two applications for reinstatement of driving privileges. Finally, plaintiff testified his evaluator had a copy of his driving record when she conducted the evaluations.

Plaintiff’s wife also testified at the hearing. She stated she was aware of her husband’s prior problems with substance abuse, but that he quit drinking just before they were married in June 1988. She testified she had not seen her husband drink alcohol since February 1988 and she herself does not drink alcohol. Plaintiff’s wife testified she was unable to transport her husband to and from work because she also worked and she did not wish to leave their children home alone in order to drive plaintiff to his place of employment. Finally, she stated plaintiff plays with his children in his spare time and is in the process of remodeling their home.

The hearing officer took official notice of the files from plaintiff’s previous hearings and particularly noted the alcohol evaluations submitted at those hearings. The hearing officer found plaintiff successfully completed an alcohol-drug remedial-education course and plaintiff submitted an updated alcohol evaluation performed by a licensed agency.

However, the hearing officer afforded “no weight” to this evaluation. Specifically, the hearing officer found plaintiff had been arrested four times for DUI, but found the first evaluation only addressed two such arrests. This “major discrepancy” caused plaintiff’s two previous applications for driving relief to be denied. The hearing officer concluded since there was no indication in the evidence that the evaluator was aware of four DUI arrests, no weight was to be afforded to the evaluation. Therefore, the hearing officer found the evidence at the hearing did not support the level of classification contained in the evaluation.

The hearing officer further found plaintiff had completed all the treatment recommended by the evaluator, but since the recommendation was based on erroneous information, the hearing officer questioned the appropriateness of the treatment recommendation. Because of these discrepancies in the evidence, the hearing officer found plaintiff could not be considered for relief and doubted plaintiff’s credibility.

Based on these findings, the hearing officer concluded plaintiff failed to prove he would be a safe and responsible driver and that he would not endanger the public safety and welfare. Thus, the hearing officer recommended plaintiff’s petition for full reinstatement of driving privileges or RDP be denied.

The Secretary adopted these findings, conclusions and recommendations on April 23, 1990. Plaintiff filed a complaint seeking administrative review of this decision on April 30, 1990. On August 8, 1990, the circuit court of Sangamon County held the Secretary’s decision was not contrary to the manifest weight of the evidence and affirmed the Secretary’s denial of plaintiff’s petition. Plaintiff subsequently filed this appeal on September 6,1990.

Findings and conclusions of an administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) A court may not overturn the decision of an administrative body unless the authority of the administrative body was exercised in an arbitrary or capricious manner or the decision was against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) A reviewing court may not reweigh the evidence or make factual findings, and an agency’s decision is not contrary to the manifest weight of the evidence merely because the court would have decided the case differently. Kennedy v. Edgar (1990), 199 Ill. App. 3d 138, 556 N.E.2d 830.

Plaintiff contends the Secretary’s decision was against the manifest weight of the evidence. Specifically, plaintiff argues the Secretary presented no evidence other than his driving record prior to 1985 to establish that plaintiff would not be a safe and responsible driver and would not endanger the public safety and welfare. The Secretary responds the decision was proper because the hearing officer correctly questioned the validity of the alcohol evaluation submitted by plaintiff. The Secretary asserts since the evaluator did not possess full knowledge of plaintiff’s driving record, the classification of plaintiff at Level II and then a subsequent reclassification of plaintiff at Level I was questionable. Thus, plaintiff failed to prove he would not endanger the public safety and welfare.

We have searched the record, specifically the driving record provided by the Secretary of State. The record shows only two DUI arrests, October 13, 1979, and October 5, 1985. Contrary to the hearing officer’s findings, the plaintiff was completely open and honest in informing the evaluator of his alcohol and drug abuse background. At the first evaluation, dated April 21, 1987, plaintiff acknowledged he first tasted alcohol at the age of 14, a first episode of intoxication at age 16 and was a problematic heavy drinker from 1980 to 1982. He painted a very poor picture of himself during this time. It is readily apparent the evaluator was keenly aware of plaintiff’s prior abuse of alcohol and drugs.

Section 1001.440(bX2) of the Illinois Administrative Code (92 Ill. Adm. Code §1001.440(bX2) (Supp. 1988)) lists the necessary requirements for an applicant classified at Level II seeking any driving relief. Such applicant must document successful completion of an alcohol-drug remedial-education course and the treatment recommended by the evaluator. Clearly plaintiff has met both of these requirements. Plaintiff attended the remedial-education program from March 23, 1987, through April 21, 1987. Plaintiff’s counselor verified completion of this treatment on April 21, 1987. Further, the evaluator recommended plaintiff attend outpatient alcohol treatment, which he did from February 1, 1988, through May 9, 1988. The evaluator indicated this successful completion in her May 16, 1988, update of the original evaluation.

An applicant seeking any driving relief must also prove he does not have a current problem with alcohol, that he is a low or minimal risk to repeat past abusive behaviors and the operation of a motor vehicle while under the influence of alcohol, and comply with all other regulations. (92 Ill. Adm. Code §1001.440(b) (Supp. 1988).) Plaintiff has remained abstinent (with one minor deviation) since early 1988 and has had no traffic violations since October 1985. Between the time of his first report and the current hearing, plaintiff had dramatically altered his life-style. He married, now has three dependents, is gainfully employed and has a better outlook on life. Thus, plaintiff has done everything required of him to regain his driving privileges.

Section 1001.410 of the Illinois Administrative Code (92 Ill. Adm. Code §1001.410 (Supp. 1988)) provides the definitions of the terms used throughout the regulations. Level II — problematic use indicators include impairment in one or more significant life areas, a blood-alcohol concentration at the time of the most recent DUI arrest of 0.15 or greater, the ability to stop or control the use of alcohol, and the absence of withdrawal symptoms. (See also 77 Ill. Adm. Code §2056.310(cX2) (Supp. 1987).) Clearly, an applicant’s driving record alone does not constitute the entire basis for classification.

The evidence supports the original classification of plaintiff at Level II. The evaluator found impairment in three significant life areas, family, legal, and marital. The evaluator thoroughly noted plaintiff’s history of alcohol abuse as well as illicit drug abuse. Plaintiff had the ability to control his alcohol abuse as shown by his decrease in consumption between 1980 and 1982 as well as his nearly complete withdrawal from alcohol use after February 1988. Plaintiff experienced no withdrawal symptoms when he chose to quit consuming alcohol. Plaintiff’s test scores support a Level II classification. These factors indicate problematic use (Level II), but not alcohol dependency.

Additionally, the updated evaluations classified plaintiff a Level I (nonproblematic use). Level I, as defined by the Illinois Administrative Code “means no impairment in family, social, emotional, vocational, physical or behavioral functioning as a consequence of alcohol or other drug use. There is also an ability to stop or control use and an absence of serious withdrawal symptoms after stopping or reducing use. This pattern must be consistent over the past twelve months for an individual classified at this Level.” 92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).

The Secretary suggests the present case is similar to Cusack v. Edgar (1985), 137 Ill. App. 3d 505, 484 N.E.2d 1145. Cusack is distinguishable. First, the evaluation in the present case cannot be characterized as incomplete. It contains plaintiff’s complete history of alcohol abuse as well as objective test scores. Next, in Cusack, the court stated there was no evidence to suggest the alcohol counselor was aware of the full extent of plaintiff’s driving history. In contrast, plaintiff here testified he told his evaluator about his DUI arrests and provided her with copies of the orders from his two previous hearings which both indicate his total driving record. Plaintiff also testified his evaluator had a copy of his driving record. The plaintiff in Cusack had not taken any steps toward resolving his alcohol problem. The Cusack court stated:

“We feel that the issuance to plaintiff of such permit a little more than [a] year after his last drunken driving conviction would deprecate the seriousness of plaintiff’s poor driving record and would impose a significant risk to the public.” (Cusack, 137 Ill. App. 3d at 511, 484 N.E.2d at 1149.)

Here, at the time of the administrative hearing, April 23, 1990, it had been over 4^2 years since plaintiff’s last driving violation. The legislature has mandated a one-year revocation of driving privileges. Plaintiff had completed all the treatment recommended by his evaluator. For those reasons, we are not persuaded by the court’s reasoning in Cusack in application to the facts of this case.

Although in Murdy the Secretary made a determination that the petitioner there was a chronic alcoholic, we adopt the following statement of the supreme court:

“We conclude that the Secretary’s determination that plaintiff is a chronic alcoholic is not supported by the evidence. To the contrary, the evidence showed that he recognized the drinking problem and has controlled it.” Murdy, 103 Ill. 2d at 394, 469 N.E.2d at 1090.

After thoroughly examining the original evaluation along with the two updates, we conclude the classification of plaintiff at Level I was proper. Plaintiff was, by all indications on this record, very candid with the evaluator as to his past abuse of alcohol and illicit drugs. Plaintiff testified he informed the evaluator about his complete driving history. Nothing in these evaluations suggests plaintiff attempted to conceal any negative information about himself. When a plaintiff has done everything necessary to regain his driving privileges, he should not be penalized for the inadequate reporting methods of his alcohol evaluator. Inasmuch as the Secretary’s decision adopting the hearing officer’s recommendations and conclusions was against the manifest weight of the evidence, it must be reversed. The Secretary is ordered to reinstate plaintiff’s full driving privileges.

Reversed.

SPITZ, J., concurs.

JUSTICE STEIGMANN,

dissenting:

Plaintiff argues on appeal that the Secretary’s decision was against the manifest weight of the evidence. The basis of this argument is that the Secretary presented no evidence other than plaintiff’s driving record (prior to 1985) to establish that plaintiff (1) would not be a safe and responsible driver, and (2) would endanger the public safety and welfare. In my judgment, nothing beyond that driving record is required to establish these two propositions. Given how bad plaintiff’s driving record is, I am unwilling to find the Secretary’s conclusion (that plaintiff’s driving privileges should not be restored) to be contrary to the manifest weight of the evidence, particularly regarding the issue of whether plaintiff would endanger the public safety and welfare.

In my judgment, this is not even a case of undue hardship; instead, it is a case of serious inconvenience. The record shows that plaintiff is getting to work and that his employer is making accommodations due to plaintiff's having no driving privileges. Undue hardship ought to mean that plaintiff is going to lose his job if he does not get his driving privileges restored, not merely that his circumstances will be difficult, seriously inconvenient, or expensive. Plaintiff is not even entitled to a RDP, let alone restoration of full driving privileges.

The majority opinion twice makes reference to defendant’s having no driving violations since October 1985, suggesting thereby that this should have been a significant factor in April 1990, when the Secretary was deciding whether plaintiff’s driving privileges should be restored. I disagree. Because defendant had no driver’s license from October 1985 to April 1990, the absence of any traffic violations during this period shows only that plaintiff had not violated (or had not been caught violating) the prohibition against his driving a motor vehicle. It seems strange to me that an individual’s forbearance from committing a Class A misdemeanor (driving while license revoked, in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 303)) should earn him the approbation of the Secretary or this court.

I confess I have no sympathy for the plight of this plaintiff or other convicted drunk drivers who whine to the courts about the Secretary’s reluctance to restore their driving privileges. The costs and inconveniences associated with the loss of their driving privileges are the product of their dangerous criminal behavior. Too many drunk drivers, like this plaintiff, “get religion” too late; they are stuck with the consequences of their driving records, and they have earned society’s skepticism regarding whether and when they may safely be returned to the highways.

In the present case, given plaintiff’s miserable traffic record, I would require many years of both total abstinence and a demonstrable lack of criminality before I would feel comfortable seeing him back on the highways. Reversing the Secretary and restoring plaintiff’s driving privileges, as the majority has done, suggest that this society is not yet serious about addressing the havoc on our highways created by drunk drivers.

I respectfully dissent.


author: JUSTICE McCULLOUGH

text:
    BERNARD JACOBS et al., Plaintiffs-Appellees, v. J. ROBERT JAMES, Defendant (Elmo Meiners, Defendant-Appellant).
    Fourth District
    No. 4—90—0774
    Opinion filed June 27, 1991.

      Don C. Hammer, of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellant.
    John R. Luedtke, of Luedtke, Hartweg & Turner, of Bloomington, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs brought this action against defendants J. Robert James (James) and Elmo Meiners (Meiners) to recover damages from the sale of unregistered securities in violation of section 13 of the Illinois Securities Law of 1953 (Securities Law) (Ill. Rev. Stat. 1983, ch. 1211/2, par. 137.13). After a bench trial, the court entered judgment in favor of plaintiffs, and defendant Meiners appeals. Meiners challenges both his liability under the Securities Law and the award of attorney fees in the amount of one-third of plaintiffs’ recovery. We hold the trial court correctly found Meiners liable under the Securities Law, and was permitted to consider the plaintiffs’ contingent-fee agreement with their attorney when determining a reasonable award of attorney fees. We affirm.

Gibson Bancshares Corporation (Bancshares) is a bank holding company. At the time of the transactions at issue, Meiners was chairman of the board and a director of Bancshares, and James was Bancshares’ president, and also a director. Plaintiffs Bernard Jacobs, Noleen Jacobs, and Maxine Mars purchased three subordinated debenture notes of Bancshares in 1984. The notes had a total face value of $29,500 and earned 141/2% interest, payable semiannually, and the notes had a three-year term of maturity. Plaintiffs purchased the debenture notes from James, whom the Jacobs knew socially and also as the president of the First National Bank and Trust of Gibson City. Plaintiffs did not deal with or know defendant Meiners. When Bancshares failed to make its interest payment and repay the principal on the notes, plaintiffs filed a notice of rescission pursuant to sections 13(A) and (B) of the Securities Law (Ill. Rev. Stat. 1983, ch. 121V2, pars. 137.13(A),(B)). Bancshares did not rescind the sales made to plaintiffs, pay the interest due, or refund plaintiffs’ investment.

Bancshares had a history of financial difficulty and, at one time, the Federal Reserve directed it to infuse more capital. In 1978, Bancshares had borrowed $1.2 million, and 10 years later only $75,000 of the principal had been repaid. Defendants Meiners and James were personally liable in the amount of $500,000 on this loan. Bancshares was lacking capital in 1984, and it had borrowed money from Meiners. When Bancshares needed money to pay interest on the $1.2 million loan, Meiners loaned money to the corporation and the corporation issued him debentures in return.

In November 1982, James was approached by Bancshares’ officials and accountants, including Meiners, to put together $1 million of capital for Bancshares: $500,000 was to be raised by James, and $500,000 was to be furnished by Meiners. As part of this deal, James was to become the chief executive officer of Bancshares. At the annual shareholder meeting of Bancshares on February 21, 1984, James was elected president, Meiners was reelected chairman of the board, and both were elected as directors. As of February 21, 1984, James owned 365,564 shares of Bancshares, and Meiners owned 633,054, out of the total 1,277,480 outstanding shares.

On June 24, 1984, at a special meeting of the directors, the board voted to issue an additional $100,000 in debentures. Both James and Meiners voted in favor of issuing these debentures. The minutes of this meeting stated that James was directed to sell the debentures only to shareholders and their family members. James testified, however, that he was told he could sell debentures to anyone, and was unaware of this restriction until he read the stipulation of the minutes of the meeting, and that the debentures were not discussed by the directors in terms of the debenture sales being restricted. There were no such restrictions printed on the debentures themselves.

James testified that Meiners had a running knowledge of debenture sales because every Bancshares’ officer received a quarterly report stating the dollar amount of the debentures sold. Meiners testified the report did not reveal the identity of the buyers. James testified he discussed with Meiners the sale of debentures to plaintiffs after the sale. James also testified he spoke with Meiners every two weeks about Bancshares’ financial affairs, including the sale of debentures. He testified that he told Meiners of the sale of debentures to the Jacobs after the sale. A list was maintained of all debenture notes sold after June 20, 1984, which included the dates of purchase, names and addresses of the purchaser, and the dollar amount of the debentures sold. James testified this list was distributed to Meiners. James also stated that he was never criticized by Meiners for the sale of any debentures after he became president. James testified that everything he did in the sale of debentures was fully disclosed, and he never made any effort to keep information from Meiners.

Meiners’ testimony regarding the sale of debentures conflicted with James’ testimony. Meiners testified he had no knowledge of the sale of debenture notes to plaintiffs until almost three years after they had been sold, when he discovered in a meeting in 1987 that Bancshares did not have the funds to pay the debentures. Meiners was asked whether he talked with his son Ron, who was the secretary of Bancshares and who signed the debentures. Meiners stated that he could not answer that question because “my memory don’t serve me that good.”

The trial court found defendants James and Meiners jointly liable for plaintiffs’ principal and interest. The court also awarded plaintiffs their attorney fees pursuant to the Securities Law. Plaintiffs had entered into a one-third contingent-fee agreement with their attorney, which would result in a $12,171.91 fee on the approximately $36,000 recovery won at trial. A hearing was held on the matter of attorney fees. Plaintiffs’ attorney presented evidence of the hours he spent on plaintiffs’ case, which would have resulted in a $9,562 fee based on $100 per hour for attorney time, and $40 per hour for a paralegal’s work. At this hearing, two attorneys called as expert witnesses testified that they examined the files of the case, and they found the one-third contingent fee to be a fair and reasonable fee, based on the amount of time plaintiffs’ attorney spent, the amount of the recovery, and the experience and expertise of plaintiffs’ attorney. Both attorneys also testified that the fee based on the hourly rate would also be fair and reasonable. The court found plaintiffs entitled to recover from defendants “an additional amount equal to one-third of their recovery from Defendants for the return of their investment.”

The sale of the debentures clearly violated the Securities Law. The securities were unregistered, were sold to plaintiffs without providing a prospectus, and plaintiffs were not partners, executive officers, or directors of Bancshares. (Ill. Rev. Stat. 1983, ch. 121V2, par. 137.4(S).) The liability of James is clear and he is not a party to this appeal. Meiners, however, contends that he is not liable because he did not induce the plaintiffs’ purchase of the debentures and was not involved in the sale of the debentures prior to the consummation of the sale.

The Securities Law imposes liability on those involved in selling securities in violation of the Securities Law. The Securities Law provides:

“[Ujpon tender to the seller or into court of the securities sold *** the issuer, controlling person, underwriter, dealer or other person by or on behalf of whom said sale was made, and each underwriter, dealer or salesperson who shall have participated or aided in any way in making such sale, and in case such issuer, controlling person, underwriter or dealer is a corporation or unincorporated association or organization, each of its officers and directors *** who shall have participated or aided in making such sale, shall be jointly and severally liable to such purchaser for (1) the full amount paid, together with interest from the date of payment for the securities sold at the rate of the interest *** in the securities sold *** and (2) the reasonable fees of such purchaser’s attorney incurred in any action brought for recovery of the amounts recoverable hereunder.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 121V2, par. 137.13(A).

The trial court found Meiners liable as (1) a controlling person or member of a controlling group, (2) a director of Bancshares, and (3) a person on whose behalf the sale was made. Any single one of these grounds is sufficient to impose liability under the Securities Law. (Ill. Rev. Stat. 1983, ch. 121V2, par. 137.13; Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 525-26, 314 N.E.2d 549, 558.) We find Meiners liable under the Securities Law as a controlling person, and thus need not consider his liability as a director or person on whose behalf the sale was made.

A “controlling person” is defined as “any person selling a security, or group of persons acting in concert in the sale of a security, owning beneficially *** either (i) 25% or more of the outstanding voting securities of the issuer of such security where no other person owns or controls a greater percentage of such securities.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 121½, par. 137.2 — 4.

Meiners is liable as a controlling person in that he was part of a group of persons acting in concert in the illegal sale of the debentures. Both James and Meiners voted in favor of the motion to issue debentures, and they discussed the sale of debentures. The court found Meiners was aware of James selling the debenture notes to outsiders, and knew or should have known they were sold in violation of the Securities Law.

In Froehlich v. Matz (1981), 93 Ill. App. 3d 398, 417 N.E.2d 183, Froehlich, a shareholder, was liable as a controlling person because he participated in the decision to sell securities. Securities had been sold to Froehlich in violation of the Securities Law and, to recoup his investment, he in turn sold the securities to others in violation of the Securities Law. The court imposed liability on Froehlich because he participated and concurred with the decision to sell the securities. While Froehlich had no specific knowledge of who was solicited to buy stock, and did not personally solicit them, he was liable “because of his action in concert with the other early investors in the decision to actively seek new investors.” Froehlich, 93 Ill. App. 3d at 411, 417 N.E.2d at 193.

In Froehlich, Dr. Matz was held not liable under the Securities Law, because the court found he was not a member of the controlling group that sold securities illegally to Froehlich in the first place. The court distinguished the findings of no liability with regard to Dr. Matz because there was no showing Dr. Matz acted in concert with the others in the sale of securities, i.e., he took no part in the decision to sell securities, nor in the sales themselves. Froehlich, 93 Ill. App. 3d at 406, 417 N.E.2d at 190.

Thus, the court correctly found Meiners liable as a “controlling person” because he acted in concert with James to sell securities while owning in excess of 25% of the outstanding shares of Bancshares. Meiners voted with James to issue and sell the debentures. For Meiners to be liable as a controlling person, it is not necessary that he personally solicit plaintiffs to buy the debentures. He approved the sale, and acted in concert with James, who did personally solicit the sales, thus making him part of the controlling group under the Securities Law.

Meiners also challenges the award of attorney fees against him in the amount of one-third of plaintiffs’ recovery. Section 13(A) of the Securities Law provides that a purchaser of illegal securities may recover “reasonable fees *** incurred in any action brought for recovery of the amounts recoverable [under the Securities Law].” (Ill. Rev. Stat. 1983, eh. 1211/2, par. 137.13(A).) The goals of the fee-shifting provision of the Securities Law are to (1) penalize defendants for illegal acts, and (2) remove the expense of legal representation as an obstacle to plaintiffs bringing suit. (Julian v. Bacon, Whipple (N.D. Ill. 1989), 713 F. Supp. 260.) The court heard testimony of two expert witnesses, stating that an award based on an hourly rate and the contingent-fee award were both reasonable. In awarding the contingent fee to plaintiffs, the court relied on the expert witness testimony that the contingent fee was reasonable and also on the amount of time plaintiffs’ attorneys spent on the case.

The factors a court should consider when determining the reasonable value of legal services are (1) the skill and standing of the attorney employed; (2) the nature of the cause and the novelty and difficulty of the questions at issue; (3) the amount and importance of the subject matter; (4) the degree of responsibility involved in management of the cause; (5) the time and labor required; (6) the usual customary charges in the community; and (7) the benefits resulting to the client. (Simon v. Auler (1987), 155 Ill. App. 3d 1000, 1004, 508 N.E.2d 1102, 1104.) A court’s award of attorney fees should not be disturbed on appeal absent an abuse of discretion. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 411, 484 N.E.2d 890, 894.) Plaintiffs’ attorney presented evidence to support his fee award based on these factors, including his testimony on the amount of hours he spent on the case, as well as expert testimony on the difficulty or novelty of the case, taking into account plaintiffs’ attorney’s expertise, and the usual or customary fee in the community on a case with the recovery that was won here. The trial court also considered as a factor in determining a reasonable fee that plaintiffs had entered into a one-third contingent-fee agreement with their attorney.

We find consideration of the parties’ fee agreement entirely proper when determining reasonable attorney fees. We strongly emphasize that a party’s fee agreement is simply one factor the court may consider, and clearly is not binding on the court, even though it is binding on the party. In the instant case, the court properly considered plaintiffs’ fee agreement with their attorney, in addition to the other factors described above. The touchstone in an award of attorney fees is reasonableness, and in this case, the court found a fee in the amount of one-third of plaintiffs’ recovery to be reasonable, based on consideration of many factors, including plaintiffs’ contingent-fee agreement. Thus, we do not find the award of attorney fees in this case to be an abuse of discretion.

The judgment and award of the circuit court of McLean County is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE SPITZ PRESIDING JUSTICE LUND,

text:
    MARVIN BUCKELLEW, Plaintiff-Appellant, v. BOARD OF EDUCATION OF GEORGETOWN-RIDGE FARM COMMUNITY UNIT SCHOOL DISTRICT No. 4, Defendant-Appellee.
    Fourth District
    No. 4—90—0649
    Opinion filed June 18, 1991.
    Rehearing denied August 7, 1991.

      LUND, P.J., specially concurring.
    Ralph H. Loewenstein, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellant.
    Wendell W. Wright, of Wright Law Offices, of Danville, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Marvin Buckellew brought this action for a writ of mandamus and for declaratory judgment, contending he was protected as an educational support personnel employee under section 10 — 23.5 of the School Code (Code) (Ill. Rev. Stat. 1989, ch. 122, par. 10 — 23.5) from the reduction in hours effected by defendant school district. The circuit court of Vermilion County granted defendant school district’s motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005), and plaintiff appeals.

Plaintiff was employed as a custodian by defendant Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (District). Plaintiff began working for the District in 1984, as part of an Illinois Department of Public Aid work-experience program in which the District participated. By 1987, plaintiff was no longer part of this public aid program, but worked directly for the District. During this time, plaintiff worked the following hours: 1985 — 133 hours; 1986 — 1,465 regular hours and 34 overtime hours; 1987 — 2,033 regular hours and 68 overtime hours; 1988— 2,097 regular hours and 38 overtime hours; and 1989 — 1,928 regular hours and 84 overtime hours.

Testimony by the school superintendent and maintenance supervisor indicated plaintiff was not salaried, under express contractual relationship with the District, or subject to a collective-bargaining agreement, but was paid by the hour on a “day-to-day” and “as needed” basis. Although plaintiff consistently worked eight-hour days during 1987, 1988, and up to October 1989, he was still considered by the District to be a substitute or part-time employee. In minutes of school board meetings, plaintiff was never listed as a contractual or full-time employee, but appeared only on the non-certified substitute employee lists. While so employed, plaintiff was eligible for no employee benefits other than workers’ compensation. In an undated letter plaintiff wrote to the District’s superintendent, he apparently acknowledged he was not a full-time employee, stating: “I would like to have a full-time job.”

On October 5, 1989, plaintiff was given a hand-delivered notice that beginning October 10, his regular working hours would run from 11 a.m. to 3 p.m. Plaintiff also received notice on March 12, 1990, that he would be honorably dismissed from employment with the District the following school year.

On February 2, 1990, plaintiff filed a petition for writ of mandamus and complaint for declaratory judgment, asking that he be reinstated to a “full-time” position and awarded damages equal to the difference between what he had been paid for working reduced hours since October 10, 1989, and what he would have been paid as a full-time employee. The circuit court granted summary judgment for the District, finding section 10 — 23.5 of the Code did not apply to plaintiff, due to his status as a nonpermanent employee, and therefore, the plaintiff was not entitled to the notice set forth in the statute.

Section 10 — 23.5 of the Code provides in pertinent part:

“Educational support personnel employees. *** If an educational support personnel employee is removed or dismissed as a result of a decision of the school board to decrease the number of educational support personnel employees employed by the board or to discontinue some particular type of educational support service, written notice shall be given the employee by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor.” Ill. Rev. Stat. 1987, ch. 122, par. 10 — 23.5.

On appeal, plaintiff contests only his reduction in hours effective from October 1989 through the end of the 1989-90 school year, which he claims was made in violation of the 60-day notice requirement; he does not challenge the propriety of the honorable dismissal which followed. Plaintiff contends that since he worked eight-hour days for at least two years prior to the reduction notice, he was a full-time educational support personnel employee (despite the classification given to him by the school board) and, thus, statutory notice applied to him. Defendant argues this statutory notice does not apply to plaintiff since (1) he was neither removed nor dismissed on October 10, 1989, and (2) plaintiff was a part-time, substitute, and temporary employee.

“The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent in drafting that statute.” (International Bureau of Fraud Control, Ltd. v. Clayton (1989), 188 Ill. App. 3d 703, 710, 544 N.E.2d 416, 421.) The term “educational support personnel” is not defined in the Code, but during debates concerning the amendment which added this language, i.e., the 60-day notice provision (Pub. Act 85 — 647, eff. Sept. 20, 1987 (1987 Ill. Laws 2748)), the sponsor stated that “[ejducational service personnel are the more than fifty thousand public school employees who serve in the capacity of secretaries, custodians, teacher aides, librarians and others.” (85th Ill. Gen. Assem., Senate Proceedings, May 22, 1987, at 259 (statements of Senator Jacobs).) It thus appears that a custodian may fall within the designation of educational support personnel employee for purposes of the Code.

The record nevertheless shows that, despite his having worked an eight-hour day for several years, plaintiff received no employment-related benefits, was under no contract, was paid on a different cycle than contract personnel, and appeared on the District’s list of substitute custodians. The relationship that existed between the plaintiff and the District was, at best, an implied contract at will, wherein plaintiff served on an “as needed” basis, and could stop working for the District at any time; the terms of this employment could likewise be modified at will. (Ohlemeier v. Community Consolidated School District No. 90 (1987), 151 Ill. App. 3d 710, 716, 502 N.E.2d 1312, 1317.) Plaintiff remained a temporary and substitute employee irrespective of the number of hours he worked.

The sole issue before us is whether hours of part-time, substitute, or temporary educational support personnel employees may be reduced without the statutory notice described in section 10 — 23.5 of the Code. First of all, since this is a question of law and no genuine issue of material fact exists, this is an appropriate case for the issuance of a summary judgment. (Johnson v. American Family Mutual Insurance Co. (1990), 193 Ill. App. 3d 794, 550 N.E.2d 668.) Second, even though plaintiff asks this court to apply a rule of statutory construction to interpret the statute in question, judicial construction of a statute is necessary only when the statute is unclear or ambiguous. (Bergeson v. Mullinix (1948), 399 Ill. 470, 78 N.E.2d 297; 34 Ill. L. & Prac. Statutes §101 (1958).) This rule is applied even though the language may be considered unwise or to cause a serious impairment to the statute as a whole. (In re Jankowski (1976), 38 Ill. App. 3d 95, 347 N.E.2d 474; 34 Ill. L. & Prac. Statutes §101 (1958).) Construction and interpretation of a statute is a question of law for the court, and regardless of the court’s opinion regarding the desirability of the results surrounding the operation of the statute, the court must construe the statute as it is and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute. (Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; People v. McCoy (1975), 29 Ill. App. 3d 601, 332 N.E.2d 690, aff'd (1976), 63 Ill. 2d 40, 344 N.E.2d 436; 34 Ill. L. & Prac. Statutes §102 (1958).) In ascertaining the meaning of a disputed statute, the threshold task of the court is to examine the terms of the statute. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Section 10 — 235 of the Code is clearly not ambiguous and applies only to the removal or dismissal of such educational support personnel employees as plaintiff and does not apply to the reduction of their hours. Nevertheless, we will consider plaintiff’s contention as well.

“[W]hen legislative intent is not clear it is proper to compare the statute in question with statutes concerning related subjects even though they are not strictly in pari materia [citation].” (Biggiam v. Board of Trustees of Community College District No. 516 (1987), 154 Ill. App. 3d 627, 642, 506 N.E.2d 1011, 1021; see People v. Badoud (1988), 122 Ill. 2d 50, 55, 521 N.E.2d 884, 887.) Plaintiff argues since there is no Illinois case law interpreting section 10 — 23.5, this court should look to the terms of section 24 — 12 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12) and the cases interpreting it. Section 24 — 12 of the Code reads in pertinent part:

“Removal or dismissal of teachers in contractual continued service. If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by certified mail return receipt requested at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor ***.” Ill. Rev. Stat. 1987, ch. 122, par. 24-12.

“Any reduction in the extent of a teacher’s employment falls within the meaning of ‘removed or dismissed’ ***.” (Catron v. Board of Education of Kansas Community Unit School District No. 3 (1984), 126 Ill. App. 3d 693, 696, 467 N.E.2d 621, 623.) Plaintiff contends the 60-day notice requirement of section 10 — 23.5 should likewise apply to reduction of hours as well as dismissal or removal.

However, section 24 — 12 governs the procedures for removal of teachers who are “in contractual continued service,” in other words, tenured teachers. (Neal v. Board of Education School District No. 189 (1977), 56 Ill. App. 3d 10, 12, 371 N.E.2d 869, 871.) The purpose of tenure is not only to afford stability of instruction for students, but also to afford job security for persons on such service status. Arduini v. Board of Education of Pontiac Township High School, District 90 (1982), 92 Ill. 2d 197, 201-02, 441 N.E.2d 73, 76.

When interpreting a statute to determine intent, one must look first at the language of the statute itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371, 432 N.E.2d 855, 858.) If, as plaintiff argues, these two sections were to be construed together regarding language concerning removal, dismissal, and reduction in time, it logically follows that each statute must likewise be applied strictly to only those employees expressly included within its terms. The term “contractual continued service” applies only to employees covered by section 24 — 12, and not to those covered by section 10 — 23.5. It is uncontested that plaintiff did not stand in such relationship with the District. Hence, plaintiff’s argument regarding the application of section 24 — 12 to section 10 — 23.5 ultimately defeats his cause of action.

Further, were we to apply this statute to temporary or substitute educational support personnel employees, a district which increased such an employee’s hours, or hired him for even one day, would be required to give this employee a 60-day notice prior to the end of that school term in order to make any reduction in the employee’s hours, which change could not take place before the beginning of the next school year. Such a possibility would circumvent the flexibility school districts have in this regard, constitute an unreasonable condition on already strained school finances, and limit a district’s ability or motivation to hire temporary employees for the many seasonal and limited tasks common to a normal academic year. Therefore, public policy also militates against application of this statutory notice to temporary or substitute educational support personnel employees.

Accordingly, in view of the record before us and the substantive law on point, we hold that section 10 — 23.5 does not apply to an individual designated by the school board as temporary or substitute educational support personnel, irrespective of how many hours such an employee actually works.

For the foregoing reasons, the judgment of the Vermilion County circuit court is affirmed.

Affirmed.

McCullough, j., concurs.

PRESIDING JUSTICE LUND,

specially concurring:

I agree that section 10 — 23.5 of the Code applies to custodian full-time employees. I believe the section could be made worthless if a reduction in hours could be used to circumvent its provisions. The section cannot be read as to apply to part-time employees.

It bothers me that employees who work 40 hours per week plus some overtime for over 2xk calendar years can be considered part time. However, the facts in this case, with plaintiff’s acknowledgement of his status, taken with the extra work of consolidating two schools, adequately sustain the trial court’s finding of temporary employment. Without the special facts present, I would be hard put to sustain a school district’s avoidance of the section by using the term temporary employment.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL W. THOMPSON, Defendant-Appellant.
    Fourth District
    No. 4—90—0835
    Opinion filed June 26, 1991.
    Rehearing denied August 8, 1991.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On August 31, 1990, defendant Nathaniel Thompson was found guilty by a jury sitting in the circuit court of Woodford County of committing the offenses of possession of a controlled substance with intent to deliver and possession of a controlled substance. (Ill. Rev. Stat. 1989, ch. 56x/2, pars. 1401(aX2), 1402(aX2).) Defendant was subsequently sentenced to six years’ imprisonment on the delivery offense. He now appeals, alleging the trial court erred in denying his motion to suppress evidence and he was not proved guilty beyond a reasonable doubt. We affirm.

On April 23, 1990, defendant was charged with the instant offenses involving more than 15 but less than 100 grams of a substance containing cocaine. Defendant filed a motion seeking to quash his arrest and suppress the evidence seized. The motion alleged that defendant was improperly arrested in that he was arrested simply because of his presence with other persons who were arrested. Accordingly, he sought to suppress the substance seized subsequent to the arrest. The court denied the motion in a pretrial hearing and again when defendant renewed it during trial.

The evidence establishes that on April 22, 1990, at approximately 4:30 a.m., Metamora police officers Jeff Wernsman and Allen Smallwood were on duty in separate patrol cars. Auxiliary police officer Herbert Raaf was riding with Wernsman. At that time, Wernsman had stopped a vehicle for a defective taillight. Smallwood responded to the scene. The car was driven by a black female. After a warning, they let the car proceed. At that point, they received a report over the radio — in response to a request for a vehicle check by Wernsman— that, if a black female was driving the car, her driver’s license was suspended. The officers then proceeded to follow and stop the car to investigate this possibility. This stop occurred approximately four miles outside the Metamora city limits.

Wernsman then spoke with the driver, Yvonne Pollard, and discovered she had a suspended license. At the time of the stop, there were four people in the car. The driver was Pollard. Sharon Slaughter was in the front passenger seat. Antonio Pullman and defendant were in the rear seat. Smallwood believed Pullman was on the passenger side and defendant was on the driver’s side. It was later discovered that the car belonged to Slaughter’s mother. Once Pollard was placed under arrest, Smallwood asked the others for identification or a driver’s license. He explained he was attempting to ascertain if someone would be able to drive the car. Slaughter said she had a ticket and the men gave no response. He then asked all of them to exit the car. He did so because he was having trouble hearing what the men in the backseat were saying.

After they exited the car, Wemsman observed the barrel of a handgun sticking out from under the passenger seat. He took the gun from the car and unloaded it. In response to Smallwood’s question, Pullman stated the gun belonged to him. At this point, all the subjects were placed in the police cars to be taken to the station. At the motion to suppress, Smallwood stated this was done for the officers’ protection. However, at trial, he explained that all were placed under arrest for an unlawful-use-of-weapons charge (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(4)), based on the handgun.

Once they arrived at the station, Smallwood began typing reports in one room. In that room with him were defendant and Pollard. They sat in chairs behind Smallwood, next to a cabinet upon which sat a small file box used to keep bicycle safety stickers. While Smallwood worked on the reports, Raaf waited in the hallway and watched the subjects. Raaf was able to watch through the door and see defendant and Pollard in a large mirror. After about 10 minutes, he saw defendant place a bag in the bicycle safety box and close the box.

Raaf then entered, picked the box up, and placed it on a desk in the sergeant’s office. Slaughter was seated in the office at the time. He then went to get Officer Wemsman, which took less than one minute. The box was taken to Chief Michael Walters’ office, where it was opened. Inside the box was what looked like a freezer zip-lock-type bag, cut in half. Inside this bag were three smaller bags. Each one of these bags contained smaller one-inch by one-inch packets containing a white, powdery substance. Two bags contained 25 such packets each, and one bag contained 50 packets. The packets of 50 were found to contain cocaine and weighed 14.7 grams. The 25-packet groups each weighed over 10 grams. One group was found to contain cocaine. The other was not tested.

On April 22, 1990, Peoria Detective Kenneth Boddie came to interview defendant in the presence of Smallwood. His main purpose was to check on the gun which was stolen. After acknowledging his Miranda rights and waiving them, defendant stated he had no knowledge of the gun. Boddie then asked about the drags. Defendant explained that while he and the others were in Chicago he received a duffel bag from a friend of his. Defendant took it and placed it in the car. After the car was stopped in Metamora, defendant went to get a coat from the duffel bag. When he did so, he found the drugs. Defendant decided to hide the drugs, and he placed them in the front of his pants. Defendant stated the drags were not seen by the police until they were found in the box. He never admitted placing them there. Smallwood confirmed this conversation took place.

Defendant testified that they were proceeding from Chicago to Peoria when they were stopped. At the time, he was seated in the back on the passenger side. Slaughter was the driver when they were first stopped. After they were let go, Slaughter and Pollard switched places. They were then stopped again within six or seven blocks. After the police determined Pollard had no license, they asked all the occupants to exit the car and began looking around. The officers looked through the entire car, including under the hood and fenders. When they found the gun, Pullman said it was his. They then arrested all of them. At the scene, defendant was patted down twice.

The defendant, Pullman, and Pollard were placed in a room. No one else was present. Defendant never placed anything in the box in the cabinet. Later, Boddie came to talk with him. Boddie asked where the drugs came from. He then advised defendant he had been told that Raaf took the defendant to the rest room and, when defendant undid his pants, the drugs fell out. When defendant denied this, Bod-die then changed his question and stated that when defendant came back from the bathroom he took the drugs out of his pants and put them in the file cabinet. Defendant told Boddie he did no such thing. Defendant admitted telling Boddie he got into the duffel bag for a coat.

Defendant was found guilty. He was sentenced to the mandatory minimum, six years’ imprisonment. This appeal followed.

Defendant first alleges his motion to quash his arrest and suppress the evidence should have been granted. He believes the officers lacked probable cause to arrest him for the unlawful-use-of-weapons offense since Pullman admitted the gun was his. He also argues that the Metamora police had no authority to make the second stop of the car because it was outside the city limits and, therefore, their jurisdiction.

Initially it should be noted that defendant acknowledges, assuming arguendo that the police were in their lawful jurisdiction, that the police had legitimate grounds to make the second stop to investigate the driving status of the driver. (See People v. Barnes (1987), 152 Ill. App. 3d 1004, 505 N.E.2d 427.) Defendant also concedes that the officers directing the occupants to exit the car did not transform the stop into an arrest. Defendant’s allegation is that the police did not have probable cause to arrest him for the weapon since Pullman admitted the gun belonged to him.

A police officer may arrest a person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 2(c); People v. Davis (1981), 98 Ill. App. 3d 461, 464, 424 N.E.2d 630, 634.) Reasonable, of course, depends upon the surrounding circumstances of each individual case. (People v. Peak (1963), 29 Ill. 2d 343, 347, 194 N.E.2d 322, 325.) Reasonable grounds and probable cause are synonymous for purposes of arrest. (People v. Wright (1974), 56 Ill. 2d 523, 528, 309 N.E.2d 537, 540.) Probable cause exists when facts and circumstances within the arresting officer’s knowledge are sufficient to justify a man of reasonable caution to believe the defendant committed the offense. (People v. Tisler (1984), 103 Ill. 2d 226, 237, 469 N.E.2d 147, 153.) The probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause exists. (Tisler, 103 Ill. 2d at 236, 469 N.E.2d at 152.) However, there must be something more than a mere hunch or suspicion. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694, 402 N.E.2d 915, 920.) In answering this question, courts are not disposed to be unduly technical, and the determination is to be based on the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1002, 418 N.E.2d 112, 118.) A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous. People v. Waddell (1989), 190 Ill. App. 3d 914, 923, 546 N.E.2d 1068, 1073.

We have no such difficulty with the present case. It is uncontroverted that a loaded .38 caliber automatic handgun was found lying under the passenger seat in the car. This is clearly a violation of the unlawful-use-of-weapons provisions. (See Ill. Rev. Stat. 1989, ch. 38, par. 24 — l(aX4).) Thus, the sole question is who could be charged for this violation. As long as the weapon is in such proximity to the accused as to lie within easy reach so that the weapon is readily available for use, it is immediately accessible and will sustain a conviction. (See People v. Smith (1978), 71 Ill. 2d 95, 101-02, 374 N.E.2d 472, 474.) Here, the evidence establishes that defendant was in the backseat and the gun was found under the front passenger seat. The testimony was contradictory as to where defendant was sitting, but we note defendant maintained he sat directly behind this seat. Regardless of defendant’s location, we believe that his ready access to the weapon is clear and his arrest, then, was appropriate.

Defendant maintains since Pullman admitted ownership it does not matter how accessible the gun is to him and Pullman is the only one who should be charged. However, as the trial court observed, the officers are not required to accept Pullman’s admission of ownership. We can envision a myriad of situations in which one party will acknowledge culpability to spare the real guilty party. Law officers should not be precluded by such a statement from proceeding as they think best. Admittedly, if the case went to trial with Pullman admitting ownership and being found to be sitting behind the seat, the State may have difficulty convicting defendant. However, that is not the relevant test. All that is needed is a probability of criminal activity based on the practical considerations of everyday life upon which reasonable men act. Here, this was met.

Defendant next contends the arrest was improper because the officers were outside their jurisdiction at the time of the arrest.

Under the common law, peace officers generally lacked the authority to make warrantless arrests outside the territorial limits of the political entity by which they were employed, unless they were in hot pursuit of a suspected felon fleeing from their own territory. (People v. Bains (1987), 152 Ill. App. 3d 951, 953, 505 N.E.2d 13, 15.) However, the common-law rule has been modified by section 107 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 5(c)), which provides an arrest may be made anywhere within the jurisdiction of this State. In construing this provision, one court stated:

“While there is no case law interpreting the scope of this provision, we believe it lays to rest the notion that a police officer is limited by the concept of territorial boundaries or jurisdiction when making an arrest. Therefore, it is proper for a police officer to make a warrantless arrest in an adjoining county when he has probable cause to believe that the accused committed an offense in the county in which the officer holds office. This is true even though the officer had merely entered the adjoining county because of some suspicious activity and was not then in fresh pursuit of the offender” (Emphasis added.) (People v. Durham (1979), 71 Ill. App. 3d 725, 727, 390 N.E.2d 517, 518.)

(See also People v. Aldridge (1981), 101 Ill. App. 3d 181, 186, 427 N.E.2d 1001, 1005; People v. O’Connor (1988), 167 Ill. App. 3d 42, 45, 520 N.E.2d 1081, 1083; People v. Carraher (1990), 199 Ill. App. 3d 965, 969-70, 557 N.E.2d 975, 978-79.) Defendant acknowledges that, based upon the radio dispatch, the officers had justification for stopping the car to investigate if the driver’s license was in fact suspended. Since this information gives the officers a reasonable basis for stopping a car to determine if an offense occurred in Metamora it is apparent, pursuant to these authorities, that the stop and ultimate arrest outside the city limits were appropriate.

Defendant next contends he was not proved guilty beyond a reasonable doubt. He first observes the evidence establishes he was subject to pat downs at the scene of the arrest. He believes it defies credibility that he would have 100 packets of cocaine stuck in his pants and the police would not find it. He also maintains the evidence shows that Raaf could not identify what defendant put in the box, and Raaf then left the box in the room with Slaughter. He believes it is possible that she could have put the bags in the box when she was alone. At least it is conceivable, he states, that defendant may have only put in the packets which were not tested and Slaughter put in the bags which ultimately were tested. He believes these points raise a reasonable doubt and his conviction should be reversed.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, 676.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, if after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

Defendant has raised valid points which counsel effectively made to the jury. The jury, in its fact-weighing process, did not find these factors persuasive and concluded that defendant did commit the offense. It is not for us to retry defendant. There is evidence which shows defendant was wearing multiple layers of clothing, that only one pat down was performed, and that it was done in a very cursory fashion. Further, while the pat down involved the legs, arms, and torso, it appears, and is reasonable, that the officer did not pat down defendant’s crotch area where the drugs were kept. As to the box, it is a possibility that Slaughter put items in the box. However, the box was there less than a minute, and the smaller bags were inside the bigger bag. Thus, it would have been necessary for Slaughter to not only place her drugs in the box, but also in the bag which Raaf saw defendant put there. This is not very likely, and its possibility could reasonably be ignored. Additionally, the jury could have accepted Bod-die’s testimony as to defendant’s statement acknowledging that he possessed the drugs which were found in the box. Considering the evidence pursuant to Jackson, we find it sufficient.

Affirmed.

GREEN and KNECHT, JJ., concur.