author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD VELASCO, Defendant-Appellant.
    Second District
    No. 2—88—0767
    Opinion filed May 8, 1990.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, Richard Velasco, appeals from the trial court’s summary denial of his pro se motion to withdraw his guilty plea. The only issue on appeal is whether we must remand this cause to the trial court for further proceedings under Rule 604(d) (107 Ill. 2d R. 604(d)). For the reasons set forth below, we reverse and remand.

The defendant was charged with two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2)) and one count of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(a)) stemming from a February 3, 1988, attack of a woman in Lake County. Pursuant to a negotiated plea agreement, the defendant pleaded guilty to all three counts lodged against him. In return for the guilty plea, the State agreed not to seek an extended sentence for the defendant. The trial court accepted the plea agreement on May 11, 1988. At a sentencing hearing held on June 15, 1988, the trial court imposed concurrent sentences of 30 years’ imprisonment for each count of aggravated sexual assault and five years’ imprisonment for aggravated battery.

In a handwritten letter dated July 13, 1988, the defendant informed the trial court that he “would like to withdraw [his] guilty plea and appeal” because the sentence imposed on him was “to [sic] excessive for a first time offender.” The letter concluded by requesting of the trial court that “upon arrival of this letter you will put in motion my withdraw [sic] plea of guilty and of my sentence.”

On August 3, 1988, the trial court judge stated for the record that he had received the defendant’s letter. The court stated that because the defendant’s request was “based on a plea” and because “the only thing that he’s alleging is [that the sentence is] excessive,” it would summarily deny the defendant’s motion because the sentence imposed was not excessive. An assistant public defender, representing the defendant, was present in the courtroom, but made no motion or comment regarding defendant’s letter.

The defendant now appeals from the trial court’s summary denial of his pro se motion to withdraw his plea. The defendant argues that the trial court erred by denying him the opportunity to consult with counsel to present adequately a motion to withdraw his guilty plea as required by Rule 604(d). Accordingly, the defendant asks us to remand the cause for further proceedings consistent with Rule 604(d). The State, on the other hand, argues that remand is unnecessary because in actuality the defendant wishes only to appeal the severity of his sentence and not to withdraw his guilty plea. The State contends that the defendant is allowed to appeal this issue directly without further proceedings in the trial court.

Supreme Court Rule 604(d) applies to appeals by a criminal defendant from a judgment entered on a plea of guilty. The rule requires that, before appealing from such a judgment, a defendant must first file a timely motion “to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).) The rule sets out certain procedures to be followed upon the receipt of such a motion:

“The trial court shall then determine whether the defendant is represented by counsel and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (107 Ill. 2d R. 604(d).)

The defendant argues that, because he was denied the opportunity to consult with counsel regarding his motion, we should remand this cause so that the dictates of Rule 604(d) might be met.

We agree with the defendant that, because his motion, albeit in ambiguous terms, requested that he be allowed to withdraw his guilty plea, Rule 604(d) applies in this instance. Rule 604(d) gives a defendant who wishes to withdraw his guilty plea the right to consult with an attorney in the presentment of the motion to the trial court. Although an assistant public defender was present at the brief hearing, the attorney did not consult with defendant as required by Rule 604(d). Because the trial court denied the defendant this opportunity, this cause must be remanded to the trial court for further proceedings in conformity with Rule 604(d).

We cannot accept the State’s contention that the defendant’s motion should be treated, not as a motion to withdraw his plea, but as a motion to reconsider the severity of his sentence. The State contends that the legal theory spelled out in the pro se motion clearly indicates that the defendant actually asked the trial court for reconsideration of his sentence, and not for the opportunity to withdraw his plea. We reject this interpretation of the defendant’s motion for two reasons. First, the motion twice asked the court, in no uncertain terms, to allow withdrawal of the defendant’s guilty plea. Second, the State’s willingness to evaluate the legal basis of the defendant’s pro se motion misses the point of Rule 604(d)’s requirement. It would be contrary to the purpose of the rule to draw a conclusion about the legal basis of the defendant’s motion before he has had an opportunity to consult with an attorney to insure that there is legally “adequate presentation of any defects” (107 Ill. 2d R. 604(d)) in his guilty plea proceedings. Because of the “strict waiver requirements of Rule 604(d), fundamental fairness requires that a defendant be afforded a full opportunity to explain his allegations and that he have assistance of counsel in preparing the motion.” People v. Ledbetter (1988), 174 Ill. App. 3d 234, 237-38, 528 N.E.2d 375, 377.

The order of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PAUL SWANSON, Plaintiff-Appellant, v. THE BOARD OF POLICE COMMISSIONERS OF THE VILLAGE OF LAKE IN THE HILLS et al., Defendants-Appellees.
    Second District
    No. 2—89—0654
    Opinion filed May 9, 1990.

      Madsen, Baudin, Stolfi & Sugden, of Crystal Lake (W. Randal Baudin, of counsel), for appellant.
    Zukowski, Rogers, Flood & McArdle, of Crystal Lake (David W. McArdle, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Paul Swanson, appeals from a decision of the circuit court affirming the decision of the board of police commissioners (Board) of the Village of Lake in the Hills (Village) to terminate his employment as a sergeant of the Village’s police force.

On appeal, Swanson raises the following issues: (1) whether the decision of the Board is void because a member of the Board had not been properly appointed; (2) whether the proceedings before the Board were unfair because the legal counsel to the Board was from the same firm as an attorney who took part in an interview of Swanson on a charge later brought to the Board; (3) whether the decision of the Board was supported by the manifest weight of the evidence and whether there was sufficient cause to warrant termination of employment; (4) whether Swanson’s right to due process was violated when the commission failed to allow him to present evidence in mitigation; and (5) whether the trial court erred in dismissing count II of Swanson’s complaint alleging a violation of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.). For the reasons stated below, we affirm.

Swanson was discharged from his employment as a sergeant with the Village police department after the Board unanimously found him guilty of the three charges brought against him by Police Chief James Wales. In count I Swanson was charged with incompetency for his handling of a shooting incident. In count II he was charged with conduct unbecoming an officer and setting a poor example of loyalty, discipline, morale, and esprit de corps, as demonstrated by numerous incidents with other officers. In count III he was charged with incompetency based on a clinical psychologist’s evaluation that concluded Swanson should not be placed in a situation where he could cause harm to himself or others.

We will discuss the remaining relevant facts to this case within the discussion of each issue.

Initially, we address the Board’s motion to strike Swanson’s brief and dismiss the appeal. The Board first argues plaintiffs brief should be stricken because he violated Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) by failing to cite to the record for factual allegations made in his brief on pages 17, 35, 36, 38, 40, 41, 42, 44, 52, 59, and 60. While counsel does cite to the record in many instances, 8 of the 11 pages cited by the Board fail to properly cite to the record. The Board also argues that counsel violated Supreme Court Rule 342 (107 Ill. 2d R. 342) by attaching as an appendix to his brief an abstract of evidence from the case. Supreme Court Rule 342(b) clearly provides that an abstract of the record shall not be filed unless it is ordered by the court. Since this court did not order an abstract, this attachment is improper and, therefore, is stricken. Consequently, we need not address the Board’s argument that Swanson, by attaching an abstract, has exceeded the 75-page limit for a brief. Finally, the Board argues Swanson violated Rule 341(e)(1) (113 Ill. 2d R. 341(e)(1)) by not listing headings of subpoints raised in his brief and by failing to cite the pages of the brief for each heading.

The Board’s objections to Swanson’s brief are proper. Counsel’s failure to abide by the rules certainly is not condoned; however, the rules are not a limitation upon the jurisdiction of a court of review. They are only an admonishment to the parties. (Brown v. Brown (1978), 62 Ill. App. 3d 328.) In the interest of justice, we will consider all the arguments raised by Swanson. We trust we will not see such failures from counsel in the future.

Swanson first argues the Board’s decision is null and void because one of the commissioners, Douglas Noyes, had not been properly appointed to the commission. Swanson contends Noyes was not a legal commissioner because of the following: (1) the Village did not approve his appointment until January 8, 1987, though Noyes had sat on the Board in regard to Swanson before this time; (2) the Village clerk was not authorized to administer an oath to Noyes; (3) Noyes’ oath came before he was approved by the Village; and (4) there was no evidence to prove Noyes had posted a fidelity bond.

It is not necessary to consider Swanson’s contentions because Noyes’ actions were at least valid as a de facto officer. “A person actually performing the duties of an office under color of title is an officer de facto, and his acts as such officer are valid so far as the public or third parties who have an interest in them are concerned.” (People ex rel. Chillicothe Township v. Board of Review (1960), 19 Ill. 2d 424, 426.) The evidence shows Noyes was appointed to the Board by the Village president on December 13, 1986. He was sworn in by the Village clerk on December 20, 1986, and Noyes stated the Village posted a bond for him. On December 20, 1986, he sat on the Board to decide whether Swanson should be temporarily suspended pending his hearing. Thus, at this time, Noyes was performing the duties of office under color of title. Moreover, on January 8, 1987, Noyes was approved by the Village. The Board did not hear any evidence against Swanson until January 15, 1987. Thus, we find Noyes’ votes valid against Swanson.

We also reject Swanson’s contentions in regard to Noyes for a second reason which was offered by the trial court. The trial court ruled that, regardless of Swanson’s contentions, the Board was comprised of two other legal commissioners, and under the rules and regulations of the board of police commissioners of the Village of Lake in the Hills, State of Illinois, section 5, Quorum, effective November 22, 1985, the other two commissioners made up a quorum. Thus, since they voted against Swanson on all counts, Swanson would have lost even without Noyes’ votes. Swanson, citing Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 485, argues that Noyes’ participation on the committee is enough to contaminate the process. Mank, however, is distinguished. In Mank, the court was concerned with the appearance of bias or prejudice where the commissioner was the father of the police chief; the court held that his participation affected the whole board. (Mank, 7 Ill. App. 3d at 485.) There is no similar concern in this case. Swanson does not argue that Noyes was biased against him in any way; nor does he argue that the outcome might have been different had Noyes not participated.

Swanson next contends that he did not receive a fair hearing because the attorney who represented the Board was associated in the same law firm with an attorney who participated in an informal inquiry of Swanson prior to the hearing. The evidence shows David McArdle represented the Board at the hearing, and Thomas McGuire, who is not associated with McArdle, was hired by the Village to represent Chief Wales and prosecute Swanson. Prior to the hearing, Swanson was questioned at an informal inquiry by Chief Wales and Richard Flood, who Swanson contends is a member of the same law firm as McArdle. The inquiry related to the shooting incident which was the subject of count I against Swanson. Swanson argues that Flood was representing Chief Wales and acting in a prosecutorial role against him. The Board contends that there is no evidence in the record to establish that Flood represented Chief Wales at this proceeding. We disagree. A tape recording of the informal inquiry establishes that Flood was present at the inquiry and asked several questions. Also, the prosecutor at the official hearing, Thomas McGuire, in response to Swanson’s motion on this issue, stated that a member of the law firm employing McArdle did represent the chief at the informal inquiry.

Swanson does not cite to any case law in support of his contention that Flood’s and McArdle’s participation violated his right to due process. We are not aware of any case with similar facts, though we do find a line of cases addressing unfair hearings helpful to a review of this issue. It has been held that where the advisor to the Board also acts as the prosecutor, the hearing is not fair and impartial. (Gigger v. Board of Fire & Police Commissioners (1960), 23 Ill. App. 2d 433, 439.) In Gigger, the same attorney prosecuted the case and ruled on questions of law and evidence. Not one ruling was made by the Board, and members of the Board asked only one question. (Gigger, 23 Ill. App. 2d at 437.) The court stated:

“When an attorney representing an administrative agency appears at a hearing conducted by the agency, his acts and conduct are those of the agency. It is not his responsibility to prove guilt, but his task is to assist the agency in arriving at the facts, whether they prove the charges or not. He must display the same respect for fairness as *** the agency.” Giqqer, 23 Ill. App. 2d at 439.

Courts have distinguished Gigger and found no denial of due process in cases where the attorney for the Board and the prosecutor were different people acting in separate roles. (Rizzo v. Board of Fire & Police Commissioners (1970), 131 Ill. App. 2d 229, 236-37; Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 883; Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 402.) In Rizzo, the Board was represented by its own independent attorney, and the complainant was represented by his own choice of attorney, who prosecuted the case. The court found that, where the attorney for the Board merely advised the chairman as to the law, the chairman ruled on all questions of law and evidence, and the Board fully participated in the questioning, the process was fair and impartial. Rizzo, 131 Ill. App. 2d at 237.

In the instant case, the prosecutor and the advisor to the Board at the hearing were different people acting in separate roles, and they were not associated. Thus, this case is not like Gigger. Here, we have an association between the advisor to the Board and an attorney who took part in an informal inquiry prior to the hearing. We find on the facts of this case that Flood’s participation prior to the hearing did not create an unfair hearing for Swanson. We do not condone a practice where law firm associates act in dual roles at any stage of an administrative proceeding; however, as we will elaborate below, we are satisfied from a review of the hearing that Swanson did receive a fair and impartial hearing.

In Gigger the court stated the fundamental concepts of a fair hearing are the opportunity to be heard, the right to cross-examine adverse witnesses, and the right to impartiality in rulings upon the evidence. (Gigger, 23 Ill. App. 2d at 439.) We are convinced the hearing provided these rights to Swanson. McArdle’s role was limited to advising the Board on procedure and evidentiary questions. He rarely made decisions for the Board; normally, he advised the Board, and the Board made its own decision after considering his advice. Contrary to Swanson’s assertions, the record demonstrates McArdle was fair and impartial; both parties were favored and disfavored by his recommendations. Finally, the lengthy record reveals that Swanson was given wide latitude in cross-examination and the presentation of his case. The record clearly establishes that the process was fair and impartial.

Swanson also argues that McArdle’s law firm acted as the municipal attorneys and prosecuting attorneys for the Village; therefore, under the Illinois Municipal Code, McArdle should not have been allowed to represent the Board. Section 10 — 2.1—25 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—25) provides:

“The municipal attorney, in the event there is a separate attorney designated as a prosecutor for such municipality, shall represent the Board unless the Board is authorized by the municipality to employ its own attorney, and such attorney shall handle prosecutions before the Board, but in the event that the municipal attorney shall both represent the municipality and be prosecutor in such municipality, then and in such event the governing body is hereby authorized to employ an attorney of its own choosing to represent said Board.”

Swanson contends this statute requires McArdle and his firm to prosecute in administrative hearings, and, therefore, the Board should have hired its own attorney in this case. The Board argues there is no evidence in the record to show exactly what McArdle’s or his firm’s standing relationship was with the Village. We agree. Since there was no competent evidence on this point, we find the record fails to establish the exact relationship between the Village and McArdle’s firm.

Assuming arguendo that McArdle’s law firm did in fact function as the Village attorney and as a prosecutor in the early stages of the investigation, the statute indicates that McArdle’s law firm should have prosecuted at the hearing, and the Village should have hired another attorney for the Board. This would have been the preferred practice. Nonetheless, we do not believe a failure to follow this statute to the letter in this case requires reversal. The true concern in this case is whether Swanson received a fair hearing. As stated in O’Malley v. Board of Fire & Police Commissioners (1989), 182 Ill. App. 3d 1019, 1022-23, “[t]he statute seeks to avoid real or apparent conflicts of interest, where the attorney who represents the interests of the Board, and advises the Board on the law, is the same person who presents the case against the respondent; the statute seeks to prevent having the judge be the prosecutor.” Here, the same person did not act as prosecutor and judge at the hearing. Since the same person or persons associated in the same law firm did not act as the advisor to the Board and the prosecutor at the hearing, we find that any failure to follow the letter of the statute did not prejudice Swanson.

Finally, on this issue, we find no merit to Swanson’s contention that under Rule 5 — 105 of the Code of Professional Responsibility (107 Ill. 2d R. 5 — 105), McArdle and Flood could not participate in the proceedings against him. Section 5 — 105 requires an attorney to refuse to represent a client where that representation will present a conflict of interest with another client. (107 Ill. 2d R. 5 — 105(a).) We find that since Swanson was not a client of either Flood or McArdle, he has no standing to assert a violation of Rule 5 — 105.

Swanson next contends the findings against him were trivial and insufficient to terminate his employment. The review of an administrative agency’s decision regarding discharge is a two-step process. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105.) The court must first determine whether the agency’s finding of guilt is contrary to the manifest weight of the evidence. Second, it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that there is cause for discharge. (Walsh, 96 Ill. 2d at 105.) The record demonstrates that the findings of the court were not against the manifest weight of the evidence.

The first charge against Swanson involved his failure to properly handle a shooting incident. Swanson responded to a report of a shooting at approximately 2 a.m. He met with the complainant, Raymond Kemp, who told him his wife had gone to James Kessel’s house, and he attempted to enter Kessel’s house through the window when Kessel shot at him six times with a .44 magnum, trying to kill him. Swanson went to the house to talk with Kessel. Kessel admitted he fired a gun, but he stated he fired it only one time as a warning shot, pointing the gun up in the air out the window. He also stated the gun was a nine millimeter pistol. A sheriff deputy from McHenry County found a nine millimeter casing outside the window. Swanson told Kessel he was under arrest and brought him to the police station. Kemp’s wife was brought to the station in another car, and Mr. Kemp drove to the station in his own car. Kemp’s six-year-old daughter accompanied him.

Driving to the station, Swanson learned from Kessel that Kemp was driving on a suspended license. After corroborating this information, Swanson charged Kemp with driving with a suspended license. He issued Kessel a ticket for discharging a firearm within the Village.

Swanson had been told by Chief Wales to contact him if anything unusual happened while he was on duty; Swanson did not call him after this incident. He also did not call the State’s Attorney’s office. Swanson testified he believed the incident was merely a domestic situation. He did not believe Kessel tried to kill Kemp with several shots as Kemp stated; he believed Kessel fired one shot as a warning. Therefore, he saw no need to call the chief or the State’s Attorney’s office in the middle of the night.

The Board found Swanson failed to notify the chief as instructed, failed to contact a representative of the State’s Attorney, failed to conduct an appropriate crime scene search, failed to seek or obtain the gun used in the shooting, failed to interview a six-year-old witness, failed to obtain a written statement, and failed to make an arrest for attempted murder, aggravated assault or reckless conduct. Swanson does not contest these findings. He stated during a preliminary investigation in regard to his handling of the incident that he “blew it.”

On appeal, however, he argues that his handling of the incident was reasonable. Swanson argues that it was reasonable to determine that this was merely a domestic disturbance that did not require further action. Chief Wales, and even Swanson himself, however, testified that a shooting in a domestic situation was an unusual incident. Thus, the evidence was sufficient for the Board to conclude that Swanson’s inaction demonstrated incompetency and a failure to report or take appropriate action as defined in the Village’s rules and regulations.

Under count II, the Board found Swanson guilty of several incidents involving comments and actions toward his fellow officers that violated the Village’s rules and regulations pertaining to loyalty, esprit de corps, discipline, morale, and conduct unbecoming an officer.

These violations were based on the following incidents: (1) after another officer told Swanson he was upsetting residents with the 10-day notices he was serving, Swanson replied that it was Chief Wales’ problem; (2) Swanson told a tow truck operator he would pay a tow truck bill from his own pocket in order to keep a patrol officer from any possible reprimand for getting the car stuck; (3) Swanson told Officer Howell to investigate an incident so it would not have to be handled by Officer Bokowski; (4) Swanson, after telling Officer Bokowski he would return some street signs, told another officer to leave the signs alone and stated he knew nothing about them; (5) while on active street duty for six days, Swanson was taking Centrax, a prescribed tranquilizer, without informing Chief Wales; and (6) after arriving at a scene where Officer Hówell and a new officer had their car stuck, Swanson commented to Howell that he was training the new officer the same way Howell drives and asked Howell how many days off he thought he would get for the incident; he then falsely stated to Howell that Officer Bokowski was thrown off a task force.

Swanson argues that many of these matters are trivial, and as far as the street sign incident and his taking medication, he committed no wrongdoing. The Board responds that the incidents, taken in accumulation, demonstrate that Swanson was trying to disrupt the police department. As we will explain below, we find the evidence supports the findings of the Board.

Concerning the first incident, a patrol officer testified he stated to Swanson that the residents were going to be angry about the 10-day notice tickets he had written. Swanson responded, “Yeah, but I will show Wales.” The officer took this comment as a display of the problems between Swanson and Wales. Another officer testified that Swanson said, “That is Wales’ problem.” This officer reported the comment to Chief Wales because he felt Swanson was writing the tickets in an effort to irritate the residents and place Chief Wales in a “trick bag.” Swanson did not recall the incident. We find the officers’ testimony provides a sufficient basis for the Board to conclude that this was not just a trivial matter, but proof that Swanson was causing disruption.

Testimony of the second incident showed that a new patrol officer on probationary status had his car stuck when Swanson arrived at the scene. The officer stated to Swanson he was concerned that, if the tow bill was too high, he would lose his job. Swanson responded that, before he would let that happen, he would pay the bill himself. A tow truck operator testified Swanson told him he would pay the bill to keep the patrol officer from being reprimanded. Swanson testified he never offered to pay the bill and merely made a statement to show his support to the officer. We find the Board was in the best position to judge these conflicting facts. The tow truck operator’s testimony provides a sufficient basis for the Board to conclude that Swanson’s conduct was disloyal to the department and set a poor example to a fellow officer.

The third incident concerns a request made by Swanson to Officer Howell to investigate a blow gun dart incident. Howell testified Swanson asked him to investigate the incident instead of turning it over to Sergeant Bokowski. Howell stated he was surprised by this request because he was not an investigator but Bokowski was. Swanson testified he was merely apprising a fellow officer of a possibly dangerous situation. Again, we find the Board was in the best position to decide whether Swanson acted improperly.

The fourth incident involves a dispute between Sergeant Bokowski and Swanson. Bokowski testified he asked Swanson to return some signs that had been turned into the station, and Swanson agreed to do so. Later, Bokowski learned the signs were not being returned. When he inquired why, he was told by another officer that Swanson told that officer not to touch the signs because a property report had not been filed. Swanson testified that a report had to be filed for all property coming into the station. Swanson’s argument that this incident does not involve wrongful conduct is well taken. There is little evidence that this incident was anything more than a misunderstanding over proper procedure, and it appears Swanson was the one who followed proper procedure.

The fifth incident charges Swanson took a tranquilizer while on duty for approximately one week. Chief Wales testified normal procedure dictated that an officer should not be working under the influence of a tranquilizer. He stated Swanson should have told him he was taking the drug, though there was no specific written policy requiring this. Swanson stated he took the tranquilizer after working hours only; he was not under the influence of the drug during duty. He took the drug for headaches, which he stated resulted from the job stress he felt due to harassment from Chief Wales. He did not tell Chief Wales about the drug because he did not want him to know his mind games were working.

The Board found this act violated the rule proscribing conduct unbecoming an officer, which included any act or conduct not specifically mentioned that brought the department or individual disrepute. There existed no stated policy or rule in the department pertaining to an officer taking prescribed medication. Moreover, there is no evidence that the prescribed medication taken by Swanson did or could adversely affect him in the performance of his duties. In the absence of such policy or rule to guide an officer in this regard, we find it was against the manifest weight of the evidence for the Board, in this instance, to find that Swanson’s taking tranquilizers without the knowledge of the police department brought him disrepute.

The final incident concerns a conversation between Swanson and Officer Howell. After finding Howell and a new officer with their car stuck, Swanson told Howell he was teaching the new officer to drive the way Howell drove. Howell took the comment as offensive; Swanson stated he was kidding. Swanson also asked Howell how many days off he thought he would get for the incident. Howell was offended by the comment. He said it made no sense because no one was suspended for getting a car stuck. Swanson said he was joking; he and the other officers often joked this way. Finally, Howell said Swanson asked why no one from the department had been assigned to a regional task force and then falsely stated that Sergeant Bokowski had been thrown off the task force. Swanson said he was joking, and Howell was also joking about Bokowski, stating, “Well, we sent Bokowski down there.” Howell interpreted Swanson’s comments in front of a new officer as an attempt at dissension.

This is another example where the Board was in the best position to decide whom and what to believe from the conflicting evidence. Though we find some merit to Swanson’s argument that this incident is trivial, we do not discount it completely since it shows another example of a fellow officer who believed Swanson was causing dissension among the force.

We conclude that the Board’s decision on count II was not against the manifest weight of the evidence. Though discounting the Board’s finding that Swanson’s taking tranquilizers brought him disrepute, we find the evidence, taken in its entirety, is, nevertheless, sufficient to find that Swanson’s conduct was perceived as disruptive and divisive by his fellow officers and thus violated the rules and regulations of the Village.

Swanson also challenges the findings of count III, which reflected the findings of a clinical psychologist. The Board concluded from these findings that Swanson was incompetent to be a police officer.

Dr. David Simmons, a clinical psychologist specializing in people with emotional problems, met with Swanson for approximately Wk hours. For approximately two hours, Swanson took tests designed to evaluate intelligence and personality. During the clinical interview, Swanson told Dr. Simmons he had been on disability for three months due to a neck problem and headaches. He felt Chief Wales was against him, and he lost sleep worrying about his job. As a result of the clinical interview and Swanson’s tests, the psychologist found the following: (1) Swanson was overly aggressive with problems with impulse control and episodic acting out; (2) he has a low tolerance for frustration, and he may become irritable or angry; (3) he has little patience and tends not to accept responsibility for his difficulties, preferring instead to blame others; (4) he is likely to manipulate others to his own ends; (5) he attempts to control other people through intimidation; (6) he has a very high level of stress and is not coping well with stress at the present time. The psychologist concluded that Swanson should not be placed in a situation where he could cause harm to himself or others.

Swanson attacks the findings of the expert by attempting to show the tests were not sound and the psychologist’s conclusions unwarranted. Swanson did not, however, put on his own expert to rebut the Village’s expert. The reliability of the psychologist’s evaluation presents a question of fact for the Board. We find the evidence sufficient to support the Board’s findings.

Having determined that the evidence was sufficient to support the Board’s findings in all three counts, the next question is whether the findings provide sufficient cause for the Board’s decision to terminate Swanson’s employment. “Cause” is defined as some substantial shortcoming, recognized by law and sound public opinion as a good cause for termination, which renders the employee’s continued employment in some way detrimental to the discipline and efficiency of the service. (Walsh, 96 Ill. 2d at 105; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360.) An administrative review’s determination of cause demands the respect of the court and is only to be overturned if it is arbitrary and unreasonable or unrelated to the requirements of service. (Walsh, 96 Ill. 2d at 105.) The question is not whether the court would decide upon a more lenient sanction than discharge were it to make the initial determination. The question is whether the Board acted arbitrarily or unreasonably. Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411.

Though Swanson attacks each count as insufficient to terminate his employment, we find it unnecessary to determine whether one count alone would have been sufficient since all counts have been proved by the evidence. We find the Board’s decision to terminate Swanson’s employment is not arbitrary or unreasonable. A summary of the findings against Swanson shows an officer who acted below professional standards in handling a shooting incident, who was disruptive and caused dissension among fellow officers, who was admittedly under a great deal of stress over his relationship with his commanding officer, so much so that he suffered debilitating headaches and took tranquilizers, and who, according to a psychologist, should not be placed in a position where he might endanger his own life or someone else’s life. Taken as a whole, these findings provide a sufficient basis to terminate Swanson’s employment.

Swanson argues that his psychological evaluation should not be a basis for dismissal. He contends Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, supports this position. In Walsh, a police officer, while on disability leave for psychological problems, committed the acts which resulted in his discharge. (96 Ill. 2d at 107.) The appellate court reversed the order of discharge, stating that the misconduct was a manifestation of the conduct for which he was placed on disability. (96 Ill. 2d at 107.) The supreme court held that because the evidence pertaining to the officer’s psychological problems was so vague and because the Board’s decision to dismiss for cause may jeopardize the officer’s pension, the cause would be remanded for a more thorough examination of the officer’s psychological problems. (96 Ill. 2d at 108.) Furthermore, the court held if it was determined the officer’s misconduct was related to his psychological problems, the sanction against him should be other than discharge for cause. 96 Ill. 2d at 108.

Swanson contends Walsh stands for the proposition that an officer cannot be discharged for cause based on a psychological disability. This is not what Walsh held. Walsh held that where an officer’s misconduct, which formed the basis for discharge for cause, is a manifestation of the psychological problems for which he had been placed on a medical disability leave, then that officer should not be discharged for cause. Here, Swanson was not placed on disability for psychological problems, and he does not allege on appeal that the other misconduct charges were a manifestation of his psychological problems. Walsh does not address the different question in this case, whether a psychological disability in and of itself may be considered as a basis for discharge.

In Simpson v. Illinois Civil Service Comm’n (1980), 86 Ill. App. 3d 733, 736, the court held that a physical disability that was not the fault of the employee could provide a legitimate basis for termination. Noting that no Illinois court had addressed the issue, Simpson quoted a Vermont case which held:

“The more precise question, therefore, is whether ‘cause’ may be interpreted to include physical disability. We do not hesitate to answer this question in the affirmative. The discharge of public employees physically or mentally unable to perform the duties of their offices has been upheld in numerous decisions.” (Gadue v. Village of Essex Junction (1975), 133 Vt. 282, 283, 336 A.2d 182, 183.)

In Simpson, the court held that a woman who had an admitted inability to return to work for an indefinite period of time constituted a sufficient basis for termination. (Simpson, 86 Ill. App. 3d at 736.) We find, under Simpson, the Board properly considered Swanson’s psychological problems. Swanson admitted he had filed for disability pension, and he did not know when he would be able to return to work. Swanson argues that it would not be fair to allow termination on this basis because this resulted in the termination of his pension. Swanson did not raise below an issue in regard to his pension, and there is no basis in the record to determine whether Swanson lost his pension. Thus, we do not address Swanson’s objection in this appeal.

Next, Swanson argues the Board violated his rights by not allowing him to present evidence in mitigation. Swanson has failed to cite any authority in support of this contention. Thus, it is waived. In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 688-89.

Moreover, there is no merit to the contention. The Board did not prevent Swanson from presenting mitigating evidence; rather, it denied Swanson’s motion for a continuance. The record shows that when the Board stated that it would consider matters of mitigation and aggravation, Swanson did not object. Shortly thereafter, when it came time for his evidence, however, Swanson asked for a continuance, stating the proceedings had been going for 12 hours, and he and his client were exhausted. The Village objected and stated it had informed Swanson they would be proceeding on mitigation and aggravation. Administrative agencies are vested with broad discretion to grant or deny continuances. (Lindeen v. Illinois State Police Merit Board (1962), 25 Ill. 2d 349, 351.) Swanson was informed to be ready to present evidence in mitigation, and the record does not reflect that there would have been undue hardship in requiring Swanson to proceed. Thus, there was no abuse of discretion.

Swanson’s final contention alleges the trial court erred in dismissing with prejudice count II of his complaint alleging a violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.). Swanson asked the court to declare the Board’s acts null and void as a result of a violation of the Act. We find the trial court correctly ruled count II failed to allege a cause of action. Swanson contends the Board violated the Act because it made various disclosures to the public concerning information made in closed session. Swanson fails to include one specific example of such a disclosure in his complaint. At any rate, there is no provision in the Open Meetings Act that applies to the action about which Swanson complains. The Open Meetings Act is aimed at guaranteeing public access to meetings of governmental bodies. (Ill. Rev. Stat. 1987, ch. 102, par. 41.) It also allows governmental bodies to meet in closed session in certain situations. (Ill. Rev. Stat. 1987, ch. 102, par. 42a.) There is nothing in the Act that provides a cause of action against a public body for disclosing information from a closed meeting.

The court did not err in dismissing this count with prejudice. A trial court has discretion to allow the amendment of pleadings or to terminate the litigation. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(d).) The trial court’s decision will not be reversed absent an abuse of discretion. (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749.) A complaint is properly dismissed with prejudice only where the plaintiff is entitled to no relief on the facts alleged. (Westgate Terrace Community Associates, Inc. v. Burger King Corp. (1978), 66 Ill. App. 3d 721, 729.) Since Swanson clearly has no cause of action under the Open Meetings Act, the trial court properly dismissed this count with prejudice. We also note that Swanson did not contest the judge’s order or move to file an amended pleading; nor is there any record that Swanson responded to the Board’s motion to dismiss. Thus, Swanson made no effort to attempt to plead a proper cause of action.

For the foregoing reasons, the decision of the circuit court is affirmed.

Affirmed.

REINHARB and INGLIS, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES REED, Defendant-Appellant.
    Second District
    No. 2—88—0933
    Opinion filed May 11, 1990.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant, James Reed, was found guilty of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) and sentenced to an eight-year term of imprisonment.

The only issue raised on appeal is whether defendant properly presented a claim of ineffective assistance of trial counsel following denial of his post-trial motion.

The relevant facts, briefly stated, are as follows. The victim, Rene Sturgeon, identified defendant, from a photo array and a lineup, as well as at trial, as the man who robbed him at about 7:45 p.m. on November 6, 1987. According to Sturgeon, the lighting conditions at the time of the armed robbery were excellent, and he had no difficulty observing defendant’s face.

Defendant’s former girlfriend, Diane Avram, testified that she customarily met defendant between 7 and 7:30 p.m. in Chicago on Fridays although she could not specifically recall meeting defendant on the day of the crime, Friday, November 6, 1987.

Defendant’s mother also testified for defendant. She stated that on the day of the offense she had spent the day with defendant helping him find a job. While she testified on direct examination that she dropped off defendant at a train station in Palatine at 6:28 p.m., she admitted on cross-examination that she did not actually see defendant get on the train.

On August 15, 1988, the trial court found defendant guilty of armed robbery. At a hearing on September 19, 1988, defendant’s counsel presented a written post-trial motion, arguing that defendant was not proved guilty beyond a reasonable doubt and that certain errors were made by the court during trial. The trial court denied this motion, stressing the credibility of the victim and his positive identification of defendant.

During the sentencing hearing, which followed immediately after the hearing on defendant’s post-trial motion, the following occurred:

“THE COURT: Okay.
Mr. Reed did you want to the make a statement to the Court before the Court imposes sentence? You have a right to if you so desire. You don’t have to if you do not want to make a statement.
DEFENDANT REED: Is there a way I can talk to you alone?
THE COURT: No, anything you have to say to me hst [sic] to be said in open court.
DEFENDANT REED: Obviously the Court finds me guilty of this, I believe that this guy got stuck up, most of the stuff in my case here I’m not sure you are aware of it, but it wasn’t brought up. You know, there is a few people that don’t even know me that can verify that I was Cook County at the time. And this is my life here and regardless of what I am going to accept it both ways, because I am going to better myself regardless of what happens.
THE COURT: Okay, anything else you wanted to tell the Court, Mr. Reed?
DEFENDANT REED: No.”

The trial court also considered defendant’s presentence investigation report which indicates in the “summary and impressions” section that defendant “expressed his opinion that he was poorly represented at his trial and said he plans to file an Appeal.” Defendant made no express motion to the trial court, written or oral, claiming ineffective assistance of counsel or requesting substitute counsel.

A pro se motion for a new trial alleging ineffective assistance of counsel does not per se require appointment of new counsel to assist in the motion irrespective of the basis of the motion and in the absence of a request for new counsel. (People v. Washington (1989), 184 Ill. App. 3d 703, 711, 540 N.E.2d 1014.) Rather, the trial court should examine the factual matters underlying the defendant’s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. (Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.) Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court should new counsel be appointed. Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.

Here, defendant essentially argues on appeal, relying on People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, and People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, that the trial court erred in failing to examine the facts underlying his claim of ineffective assistance of counsel and in failing to make the initial determination as to whether the claim is meritorious thereby warranting appointment of counsel to assist him with a motion for a new trial. Defendant’s argument assumes that allegations of ineffective assistance of counsel were properly presented to the trial court. Such is not the case, however, as defendant never referred to his trial counsel in his oral comments at his sentencing hearing and only vaguely commented on some possible alibi witnesses. Although there is a mention in his presentence report that he felt he was “poorly represented,” there are no allegations supporting that opinion or supporting an ineffective assistance of counsel claim. Nor did defendant in any manner request counsel to assist him with a claim of ineffective counsel. Thus, the authority relied on by defendant is inapposite. While we do not suggest that a pro se claim of ineffective trial counsel need take a specific form, we cannot expect the trial court to divine such a claim where it is not even arguably raised. (See People v. Lewis (1988), 165 Ill. App. 3d 97, 109, 518 N.E.2d 741; see also People v. Sperow (1988), 170 Ill. App. 3d 800, 812-13, 525 N.E.2d 223.) Accordingly, remandment for a hearing on defendant’s claim with new counsel is not warranted under these circumstances.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY L. BELL, Defendant-Appellant.
    Second District
    No. 2—88—1263
    Opinion filed May 11, 1990.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William J. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jerry L. Bell, was charged by complaint in the circuit court of Kane County with the offenses of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 5(a)) and attempting to flee and elude a peace officer (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 204). Following a jury trial, defendant was found guilty of reckless conduct, acquitted of attempting to flee and elude, and was sentenced to 90 days in the Kane County jail.

The sole issue raised on appeal is whether the trial court erred in refusing to consider defendant’s ineffective assistance of counsel claim, which was raised after the trial court had denied defense counsel’s written post-trial motion for a new trial which contained no allegation of ineffective assistance of counsel.

The following facts are relevant to our disposition of the issue raised on appeal. Defendant was arrested and charged with reckless conduct and attempting to flee and elude a police officer stemming from an incident in which he allegedly attempted to strike Officer John Demmin of the Elgin police department with an automobile during a traffic stop.

Following defendant’s trial, defendant’s counsel filed a written post-trial motion seeking a new trial. This motion claimed that defendant was not proved guilty beyond a reasonable doubt because the arresting officer created the situation which led to defendant’s arrest and that a comment by the prosecutor during closing argument was misleading and inflammatory. This motion contained no claim of ineffective assistance of trial counsel.

On November 16, 1989, the trial court held a hearing on defendant’s written, post-trial motion. Following his counsel’s argument on his post-trial motion, the trial court denied the motion. Defendant’s attorney, the assistant State’s Attorney, defendant, and the trial judge then engaged in a lengthy discussion as to the appropriate sentence in this case.

During the discussion as to the sentence, defendant told the trial court that the motion filed by his counsel was not the motion he intended to file and that he had asked his counsel to file a motion to withdraw. Defendant’s counsel then interjected as follows:

“Your Honor, if I may just interrupt for a — Mr. Bell for a moment here on this point.
I filed a post-trial motion as part of my duty as Mr. Bell’s counsel, and I raised the points that I thought needed to be raised.
Mr. Bell did inform me after the trial that he intended to file his own motions raising the points he felt needed to be raised, one of which might have included an allegation that my representation was ineffective in some respects. I told Mr. Bell that if that was his intention, and if such a motion was filed, that I would have to withdraw from representing him any further in this case.
I also informed him that it could pose a conflict in another pending case, which is 88 CM 3221, which was set for trial and is — the trial date for that was set for November 28th.”

To this, defendant responded:

“I would add also that — I believe counsel would agree with me that we had an agreement that he was to file this motion— his motion to withdraw in the case due — due to the fact that I was going to raise the issue in my motion for new trial of ineffective assistance of counsel. And therefore, he felt that it would be necessary for him to withdraw if I was to raise that issue.
The motion that he presented before you is something that he done [sic] I presume out of some — some compulsion, some feeling of obligation to file the motion, just any kind of motion, but it’s not the motion that I — I myself had elected to present to this Court. The basis which I have been arguing before Your Honor and which His Honor already ruled on, that’s not my motion, that’s not my contention.”

Defendant’s counsel replied that he had no objection to defendant filing a pro se post-trial motion and that he believed that until such motion was filed it would have been premature for him to withdraw. Defendant further elaborated:

“The motion tendered before you was not my motion. As I stated, I feel that the assistance that was tendered during the trial court proceedings was ineffective, and there are many reasons to — to—that I could cite to you, His Honor, which I think would establish the fact that, in fact, there was an ineffective assistance of counsel, and due to that reason I am entitled to either a new trial or directed verdict of acquittal or — or whatever relief the Court deems appropriate, or it is certainly a matter that should be adjudicated rather than it just being passed over because the State want[s] to get me into prison here.”

The trial court, in denying defendant’s written, post-trial motion, stated in pertinent part:

“So I am going to — despite the fact that you want to have your own document filed, you are represented by counsel, he filed a post-trial motion, I have heard that post-trial motion, I have denied it. All that remains now is to be sentenced.”

Defendant’s counsel then stated:

“Your Honor, there is just one other matter I want to put on the record.
By filing the post-trial motion that I did, I by no reason intended to deprive Mr. Bell of his opportunity to — and it’s my belief that it’s his right to — his right to file a pro se motion.
It’s an alleged matter that he — he feels needs to be alleged, particularly if he feels — if he is — if he feels that my representation in the trial was ineffective.
My — my point simply is that he thinks that once he does that, I would be in a position of having to move to withdraw.
I believe he has a motion that he does want to file. I felt that it was — until he did so, I had an obligation to preserve whatever errors I thought exists, that’s why I filed the motion that I did.”

Finally, the trial court commented:

“He didn’t file — we had the hearing, he asked to make a statement, I listened to his statement but that in no way gives him — him a right to put aside what was done.
I heard the post-trial motion, it was denied. You only get one shot at that.”

On appeal, defendant essentially raises two arguments. First, he maintains that he was improperly denied the opportunity to present a pro se motion for a new trial based on a claim of ineffective assistance of counsel. Second, he contends that it was error for the trial court not to have made a preliminary inquiry into his allegation of ineffective assistance of counsel and not to have ruled on his pro se motion. We believe defendant’s first point is dispositive of this appeal.

Under the appropriate circumstances, a pro se motion for a new trial based on allegations of ineffective assistance of trial counsel will mandate appointment of new counsel to assist in the motion. (People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045; People v. Washington (1989), 184 Ill. App. 3d 703, 711, 540 N.E.2d 1014.) If a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel, the trial court should examine the factual matters underlying the claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. (Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019; People v. Jackson (1985), 131 Ill. App. 3d 128, 139, 474 N.E.2d 466.) Only if the allegations show possible neglect of the case, for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court, should new counsel be appointed. Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.

This case presents a unique circumstance in the context of a pro se post-trial claim of ineffective assistance of trial counsel. The trial court here precluded defendant from ever presenting a motion for new trial based on ineffective assistance of counsel because his trial counsel presented a written post-trial motion which contained no such claim and which had already been denied. We believe under the peculiar circumstances present here it was error for the trial court not to allow defendant to present his pro se motion or to consider such motion.

Defendant’s counsel stated that he and defendant had discussed the ineffective assistance of counsel claim and that he told defendant he would have to withdraw from the case if defendant raised the ineffective assistance claim. Defendant added that he and his counsel had agreed that counsel would file a motion to withdraw due to defendant’s intention to file a motion for a new trial based on ineffective assistance of counsel. Defendant further emphasized that the post-trial motion presented by his counsel was not the motion that he intended to file and that the bases for a new trial relied on therein were not his contentions for a new trial.

Defendant’s counsel commented that he had no objection to defendant filing a pro se post-trial motion, but that it was his belief that until the motion was filed it would have been premature for him to withdraw. Defendant’s counsel further elaborated that by his filing the post-trial motion he did not intend to deprive defendant of his right to file a pro se motion alleging ineffective assistance of counsel. Counsel believed that defendant had a motion he wanted to file and that until defendant filed it he had an obligation to file the written post-trial motion.

We believe that these circumstances present a classic “Catch-22” situation. Defendant thought he could not file his pro se motion until his counsel moved to withdraw, which he believed counsel intended to do. Defendant’s counsel, on the other hand, thought that he could not move to withdraw until defendant filed his pro se motion and also thought he was obliged to file a written post-trial motion so long as he remained counsel of record. The trial court complicated matters by-denying defendant’s counsel’s post-trial motion and then ruling that once the motion was denied defendant could not file nor could it consider another post-trial motion.

It is clear, under these circumstances, that defendant was improperly denied an opportunity to present his pro se motion in the first instance. Because defendant was prohibited from even presenting a motion, he was denied an opportunity to raise specific allegations of ineffective assistance of counsel and to seek substitute counsel to assist him with the motion. Neither the trial court, nor this court, can give proper consideration to defendant’s claim absent the opportunity for defendant fully to present his claim.

While we are cognizant of one appellate decision that suggests that a pro se motion claiming ineffective assistance of counsel presented after a ruling on a post-trial motion made by defense counsel may be untimely (People v. Brandon (1987), 157 Ill. App. 3d 835, 510 N.E.2d 1005), we find the facts of this case uniquely distinguishable from that case. As such, that case is not controlling here. Although the timeliness of a pro se motion may be relevant under some circumstances, it is not so where, as here, the record clearly shows the timeliness was affected by a misunderstanding between defendant and his counsel.

For the foregoing reasons, we remand this cause for the limited purpose of allowing defendant to file a post-trial motion alleging the ineffective assistance of counsel and for a hearing on the motion, with appointed counsel other than his originally appointed counsel if the allegations of incompetence are such to require counsel. If, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant’s conviction and sentence. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel. See People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045.

Remanded with directions.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE McLAREN

text:
    HEINZ BORUSCHEWITZ et al., Plaintiffs-Appellants, v. THOMAS E. KIRTS et al., Defendants-Appellees.
    Second District
    No. 2—89—0728
    Opinion filed May 11, 1990.

      Lewis W. Terlizzi, of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir, Johnson & David, P.C., of Elgin (Daniel E. Compton, of counsel), for appellants.
    D. Kendall Griffith and Nancy G. Lischer, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and John A. Sandberg, of Thomas & Hinshaw, Culbertson, of Rockford (Bruce L. Carmen, of counsel), for appellee Thomas E. Kirts.
    Kenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, RC., of Rockford (Charles P. Kostantacos, of counsel), for appellee Ben Gordon Community Mental Health Center.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs-appellants, Heinz and LuWanda Boruschewitz (Boruschewitzes), appeal from the trial court’s dismissal of their amended complaint. The Boruschewitzes, along with Rockford Mutual Insurance Company, filed a 10-count amended complaint naming as defendants Dr. Thomas Kirts (Kirts) and Ben Gordon Community Mental Health Center (The Center). Counts I, III, V, VII and IX were directed at Kirts, and counts II, IV, VI, VIII and X were directed at The Center. The court dismissed the amended complaint in its entirety. The Boruschewitzes are only appealing from the dismissal of counts V through X.

LuWanda Boruschewitz was a patient of Kirts and The Center. While an outpatient, LuWanda shot and killed two people. LuWanda was charged with murder, and she entered a plea of guilty but mentally ill. The court entered a finding of guilty but mentally ill based upon the plea and sentenced LuWanda to incarceration. The Boruschewitzes subsequently brought the instant suit against Kirts and The Center to recover damages.

The Boruschewitzes allege that Kirts’ and The Center’s negligence caused LuWanda’s mental condition to deteriorate until she ultimately became insane and could not conform her conduct to the requirements of the law. This negligence allegedly caused a variety of damages. Counts V and VI of the amended complaint seek damages from Kirts and The Center respectively for Heinz’s loss of consortium. Counts VII and VIII seek recovery of $20,000 expended by Heinz for attorney fees in defending the criminal action against Lu-Wanda. Counts IX and X seek damages for LuWanda’s “Loss of Freedom.”

Both defendants filed motions pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The court granted the motions and dismissed the amended complaint with prejudice. The Boruschewitzes appeal from the dismissal of counts V through X of the amended complaint. While the court was not specific in its reasoning for dismissing counts V through X, by reviewing the pleadings and arguments presented to the trial court we accept the parties’ conclusion that the court found the complaint to be against the public policy of the State of Illinois.

The issue in this case as stated by the parties is whether the court erred in finding that the claims of Heinz and LuWanda Boruschewitz are barred by Illinois public policy.

When reviewing the dismissal of a complaint, all facts properly pleaded in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187; Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 838.) “[A] cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiffs to recover.” Fitzgerald, 72 Ill. 2d at 187.

Defendants set forth in their motion, and again in their brief to this court, two general policy principles that they claim require this court to affirm the dismissal of the amended complaint:

(1) A person should not be allowed to maintain an action if, in order to establish his cause of action, he must rely on his own violation of the criminal or penal laws or on his own immoral acts; and
(2) A person should not profit from his illegal act.

Defendants claim that both of these principles would be contravened by allowing the instant cause of action. We find that neither of these principles applies to the case at bar.

The parties have presented several cases from other jurisdictions that discuss the principle that a party, cannot base a cause of action on his violation of a criminal provision. They assert that these cases are applicable to the instant case.

In Cole v. Taylor (Iowa 1981), 301 N.W.2d 766, the plaintiff sued her psychiatrist, claiming that he negligently failed to prevent her from committing murder. The psychiatrist moved to dismiss the complaint on public policy grounds. The supreme court of Iowa stated the general rule:

“[T]hat a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or to maintain a claim for damages based on his own wrong or caused by his own neglect, *** or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws.” (Cole, 301 N.W.2d at 768, citing 1 C.J.S. Actions §13, at 996-97.)

The court granted the defendant’s motion to dismiss because, as alleged in.her complaint, the criminal act of murder was the basis of her damages. Cole, 301 N.W.2d at 768.

The Iowa court’s decision in Cole has been cited by the Court of Appeals of Michigan in Glazier v. Lee (1988), 171 Mich. App. 216, 429 N.W.2d 857 (plaintiff’s case against psychologist for damages resulting from conviction of voluntary manslaughter dismissed), and by the Court of Appeals of Tennessee in Moss v. Mid-South Hospital (Tenn. App. Nov. 7, 1989), No. 46, 1989 WL 134666 (plaintiff’s case against mental health care providers for damages resulting from conviction of murder and auto theft dismissed). Defendants claim that the rationale of these decisions should be applied to the instant case to affirm the dismissal of the plaintiff’s complaint.

We find the above cases distinguishable in one important respect. In each of the above cases, the plaintiff alleged in his or her complaint that he or she committed a criminal act (murder, voluntary manslaughter, and murder and auto theft respectively). However, in the case at bar, plaintiff has alleged that she was insane at the time she committed the killings. She has not based her claim against Kirts and The Center on her own violation of the Criminal Code as the plaintiffs in the above-cited cases did. While her conviction upon her plea of guilty may be admitted in this case, it only establishes a prima facie case that the underlying acts took place. (See Rockford Mutual Insurance Co. v. Shattuck (1989), 188 Ill. App. 3d 787, 790.) It does not conclusively establish that an illegal or immoral act was committed. Plaintiff has alleged in her complaint that she was insane, and we must accept this allegation as true. An insane person is not held to be responsible for his acts. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(a); People v. Clark (1981), 102 Ill. App. 3d 414, 417.) Plaintiff is allowed an opportunity to rebut the prima facie case and prove that she was criminally insane. In other words, she should be allowed to demonstrate that she did not commit an intentional act and thus was not guilty of a crime. This is a question of fact. Whether she can maintain her burden of proof on the issue is not our concern at this juncture.

Defendants claim that even if LuWanda is not criminally responsible for her actions, she still has committed an immoral or wrongful act. We reject this argument. Society cannot hold people who are insane to the same moral standards as people who are sane. Additionally, the term “wrongful” must also take on a different meaning in the context of an allegation, of insanity. We find that the defendant’s first policy contention is inapplicable.to the case at bar.

Turning to the second policy contention, Kirts sets forth two statutory provisions that evince the public policy that a person should not profit from his illegal act. One such provision is section 2 — 6 of the Probate Act of 1975 that precludes a person from receiving property from the deceased if he intentionally and unjustifiably causes the death. (Ill. Rev. Stat. 1987, ch. 11072, par. 2 — 6.) Another such provision is found in section 3 of the Criminal Victims’ Escrow Account Act (Ill. Rev. Stat. 1987, ch. 70, par. 403). This provision precludes a person “who has been charged with or convicted of a crime in this State or who has been found not guilty by reason of insanity or guilty but mentally ill of a crime” from receiving payment for the sale of the right to depict the story in a book, movie, magazine, et cetera. (See Ill. Rev. Stat. 1987, ch. 70, par. 403.) Additionally, Kirts cites to several cases that hold a person cannot receive the benefits of a life insurance policy if he intentionally kills the insured. Supreme Lodge Knights & Ladies of Honor v. Menkhausen (1904), 209 Ill. 277; Illinois Bankers Life Association v. Collins (1930), 341 Ill. 548; see also Bailey v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1977), 51 Ill. App. 3d 433.

While the statutes and cases cited to this court are premised upon the principle that a person should not benefit from his illegal act, we find this principle to be inapplicable in the case at bar. The plaintiffs in this case are not attempting to profit from an illegal act. Plaintiffs are seeking compensation for damages they allegedly suffered; they are not attempting to profit. If plaintiffs can prove the allegations set forth in their amended complaint, they will be made whole again; they will not receive “profit.”

In a factually distinguishable case, this court affirmed a decision allowing a person who killed his parents to receive the benefits of their estate after he was found to be unfit to stand trial for their murders. (Button v. Elmhurst National Bank (1988), 169 Ill. App. 3d 28.) While Button was decided by referring to the express language of a statute, it reveals that a person’s mental state is an important factor when applying policy considerations. The cause of action as specifically alleged in the complaint does not violate the public policy of this State as argued by defendants. We have not been requested to address any other issues, and we will not undertake that burden sua sponte.

The judgment of the circuit court of De Kalb County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


text:
    THOMAS PREMO, Indiv. and as Adm’r of the Estate of Sarah Jean Premo, Deceased, et al., Plaintiffs-Appellants, v. JAMES C. FALCONE et al., Defendants-Appellees.
    Second District
    No. 2—89—0497
    Opinion filed April 26, 1990.
    Rehearing denied June 13, 1990.

      Debra A. Armstrong, of Jeffrey M. Goldberg & Associates, Ltd., of Chicago (Jeffrey M. Goldberg, of counsel), for appellants.
    O’Reilly, Cunningham, Norton & Mancini, of Wheaton (William F. Cunningham, of counsel), for appellees James C. Falcone and Darien Gynecology & Obstetrics, Ltd.
    David P. Meyer, Nancy G. Lischer, and Kathryn A. Spalding, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appellee Hinsdale Hospital.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Jamie Lynn Premo and Thomas Premo, appeal from the dismissal with prejudice of their medical malpractice complaint against defendants, James Falcone, Darien Gynecology & Obstetrics, Ltd., and Hinsdale Hospital, for failure to comply with the documentation requirements of section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622). Plaintiffs raise the following contentions on appeal: (1) that the trial court abused its-discretion by dismissing their complaint with prejudice; (2) that defendants waived any failure on plaintiffs’ part to comply with the terms of section 2 — 622; and (3) that section 2 — 622 is unconstitutional. We affirm.

Our supreme court provided a good summary of the relevant requirements of section 2 — 622 in McCastle v. Sheinkop (1987), 121 Ill. 2d 188, in which the court stated as follows:

“Section 2 — 622(a)(1) (Ill. Rev. Stat. 1985, ch. 110, par. 2— 622(a)(1)) provides that in any action for medical malpractice the plaintiff must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a ‘reasonable and meritorious cause’ for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2 — 622(a)(2) allows for a 90-day extension for the filing of the affidavits if the statute of limitations is near expiration.” McCastle, 121 Ill. 2d at 190.

Plaintiffs filed their medical malpractice complaint against defendants in the circuit court of Cook County on August 11, 1988. The complaint alleged that Jamie Lynn Premo entered Hinsdale Hospital on August 12, 1986, under the care of Dr. Falcone, who at all relevant times was acting as an agent of Darien Gynecology. She gave birth to Sarah Jean Premo later that day. Sarah Jean was subsequently transferred to another hospital where she died on August 16, 1986. The complaint alleged certain negligent acts on the part of Dr. Falcone and agents of Hinsdale Hospital. Attached to the complaint was the affidavit of Jeffrey Goldberg, one of plaintiffs’ attorneys. The affidavit stated that Goldberg had been unable to consult with a health professional and an arguable statute of limitations existed on August 12, 1988.

On September 19, 1988, Hinsdale Hospital filed a motion to transfer venue to Du Page County because all defendants resided or were located in Du Page County. This motion was granted on October 21. The statutory extension which plaintiffs had received to file the consultation affidavit and health care professional written report was due to expire on November 10, 1988. On November 9, plaintiffs filed a motion in the circuit court of Cook County to extend this period a further 60 days. This motion was apparently filed in Cook County because the case file had not yet been transferred.

For the same reason, plaintiffs filed the health care professional report itself with the circuit court of Cook County on November 30, 1988. They did so without leave of court, because they had not set their November 9 motion for a hearing. Plaintiffs did not file the required consultation affidavit with the report. On February 16, 1989, defendants Falcone and Darien Gynecology filed their answer to the complaint, mistakenly doing so in the circuit court of Cook County, although the case had been transferred to Du Page County.

Defendant Hinsdale Hospital filed a motion to dismiss on February 27, 1989, alleging plaintiffs had failed to comply with the requirements of section 2 — 622. The motion states the written health professional’s report was filed 20 days late without a showing of good cause for the delay, separate reports were not filed as to each defendant, the profession of the reviewing health professional was not identified, and the report did not indicate how defendants deviated from accepted practices.

The trial court held a hearing on the motion to dismiss on March 3, 1989. Falcone and Darien Gynecology requested and received leave of court to withdraw their answers and join in the motion. Plaintiffs requested that the court grant their motion for a 60-day extension of time in which to file the health professional’s report, since that motion had never been ruled upon, and that the court rule the report was timely filed.

The trial court granted the motion to dismiss and dismissed the case with prejudice in an order dated March 7, 1989. In its letter of opinion concerning the motion, the court stated plaintiffs had failed to show good cause for their late filing of the written report and denied their motion for an extension of time in which to file the report. The court also stated that the written report was inadequate because it did not set forth the author’s qualifications, it did not state how the defendants were negligent and did not deal with each defendant separately.

On April 5, 1989, plaintiffs filed a motion for reconsideration of the dismissal order and a supporting memorandum. Plaintiffs argued for the first time that Falcone and Darien Gynecology waived any objection to plaintiffs’ alleged failure to comply with section 2 — 622 by filing an answer to the complaint, and that Hinsdale Hospital waived any similar objection by waiting three months to file its motion to dismiss. Plaintiffs also attached a proposed amended complaint with a revised health professional’s report and a consultation affidavit signed by one of plaintiffs’ attorneys.

The trial court denied plaintiffs’ motion for reconsideration. Plaintiffs filed a timely notice of appeal in which they stated they were seeking reversal of the aforementioned order and the March 7, 1989, order dismissing their complaint with prejudice.

We will first consider plaintiffs’ contention that defendants waived any objection to plaintiffs’ alleged failure to comply with section 2 — 622. Falcone and Darien Gynecology argue that this issue was not properly preserved for appeal since plaintiffs’ notice of appeal makes no mention of the order granting them leave to withdraw their answer. A notice of appeal only confers jurisdiction upon a reviewing court to consider the judgments or portions of those judgments specified in the notice of appeal. (Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 279.) Here, the notice of appeal states that plaintiffs seek reversal of the order denying their motion to reconsider. Plaintiffs raised the waiver issue in the motion, and the trial court considered it in denying the motion. We shall therefore consider plaintiffs’ waiver argument on appeal.

Plaintiffs cite Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, and Swift & Co. v. Dollahan (1954), 2 Ill. App. 2d 574, in support of their contention that Falcone and Darien Gynecology waived any objection to the complaint by filing an answer. In Pieszchalski, however, the court specifically noted that defendants had not sought leave to withdraw their answer. (Pieszchalski, 128 Ill. App. 3d at 444.) The trial court has discretion to permit a defendant to withdraw an answer and file a motion to dismiss as long as there will be no prejudice to plaintiff. (Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 971; Wheeler v. Caterpillar Tractor Co. (1984), 123 Ill. App. 3d 539, 542, rev’d on other grounds (1985), 108 Ill. 2d 502.) Falcone and Darien Gynecology sought and received leave of court to withdraw their answer and join in Hinsdale Hospital’s motion. Since plaintiffs did not suffer any prejudice by the withdrawal of an answer that had been filed only two weeks earlier, the trial court did not abuse its discretion by allowing the withdrawal and permitting these defendants to join in Hinsdale Hospital’s motion to dismiss.

Plaintiffs also argue that the trial court should not have permitted Hinsdale Hospital to proceed with a motion to dismiss filed approximately three months after they filed their health professional’s written report. If, as in the instant case, plaintiffs receive a 90-day extension of time to satisfy the documentation requirements of section 2 — 622 because they were unable to obtain the required consultation prior to the expiration of the statute of limitations, “defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(a)(2).) Although the term “certificate” is not defined in section 2 — 622, the clear language of the provision indicates that the certificate is the consultation affidavit required by section 2 — 622(a)(1) which must be prepared by plaintiff or plaintiff’s attorney. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 948.) Our review of the record reveals that plaintiffs did not file the required consultation affidavit when they filed their original health professional’s written report on November 30, 1988. Plaintiffs failed to file any consultation affidavit until they filed their motion for reconsideration on April 5, 1989. Hinsdale Hospital’s motion to dismiss was therefore timely and was properly considered by the trial court.

Plaintiffs next contend that the dismissal of their complaint with prejudice was an abuse of discretion. The failure of a plaintiff to comply with section 2 — 622 of the Code does not require the trial judge to dismiss the complaint with prejudice. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93.) In McCastle, our supreme court stated that when the legislature enacted section 2 — 622, it intended to permit trial courts to allow leave to file an amended complaint with new affidavits if plaintiff altered his or her theory of liability and that it therefore also most likely intended to allow the trial court to have the discretion to permit plaintiff to amend the complaint to add an affidavit which was inadvertently omitted. (McCastle, 121 Ill. 2d at 192-93.) The court then went on to state that while the decision whether plaintiff should be allowed to file an amended complaint is committed to the sound discretion of the trial judge, the matter should be remanded because the trial court was unaware of its discretion and believed dismissal with prejudice was mandatory. 121 Ill. 2d at 194.

In two cases since McCastle, in which the trial court believed dismissal with prejudice was required for noncompliance with section 2 — 622, the reviewing courts have reversed dismissals and remanded the causes for reconsideration of the motions to dismiss by the trial court. (See Alford v. Phipps (1988), 169 Ill. App. 3d 845, 861; Bassett v. Wang (1988), 169 Ill. App. 3d 663, 669.) Dismissals with prejudice for failure to comply with section 2 — 622 have been upheld, however, in three cases in which trial courts were aware of their discretion. See Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 952; Batten v. Retz (1989), 182 Ill. App. 3d 425, 430; Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 639.

In Batten, plaintiff filed the required documents two days late, after receiving the 90-day statutory extension provided by section 2— 622(a)(2) of the Code. The circuit court dismissed the complaint largely because plaintiff failed to present evidence of good cause for the late filing. In affirming the dismissal, the reviewing court stated that “the circuit court acted within its discretion in considering the lack of any showing of good cause for the late filing of written reports and certificates or affidavits.” Batten, 182 Ill. App. 3d at 430.

We agree with the conclusion of the court in Batten that trial courts may, in deciding whether to dismiss a complaint with prejudice for failure to comply with section 2 — 622, consider whether there was a showing of good cause for a late filing of the required documents. Supreme Court Rule 183 (107 Ill. 2d R. 183) states as follows:

“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” (Emphasis added.) (107 Ill. 2d R. 183.)

Section 2 — 1007 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1007) contains similar language. These provisions support the conclusion of the court in Batten.

Furthermore, the general rule under section 2 — 622 is that the required consultation with a health professional must occur before the complaint is filed and the required documents certifying the meritoriousness of the action must be filed with the complaint. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(a)(1).) This serves to promote the statutory purpose of deterring frivolous medical malpractice actions (Wasielewski, 189 Ill. App. ,3d at 949) and preventing situations in which health care professionals must defend against such actions. If plaintiff is unable to obtain the required consultation before the statute of limitations expires, he or she will be able to file the required documents within 90 days of filing the complaint under section 2 — 622(a)(2) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2— 622(a)(2)). The 90-day time limit expresses the legislative intent that the required consultation and filing of the necessary documents be achieved expeditiously, even if this exception to the general rule is applicable. Allowing trial courts to consider whether good cause exists for noncompliance with the deadlines for filing the required documentation in section 2 — 622 is consistent with the objectives of that statute because it encourages compliance with the deadlines set forth therein and encourages filing the required documentation as expeditiously as possible in the event compliance is not possible.

Here, as in Batten, plaintiffs failed to present any evidence of good cause for the untimely filing. Plaintiffs argue that one of their attorneys went on maternity leave November 11, 1988, and that this factor, combined with the circumstances surrounding the transfer of venue to Du Page County, explains their inadvertent failure to set their motion to extend time for filing the written report and consultation affidavit for a hearing. Even if this is true, these factors do not explain why plaintiffs failed to meet the November 10, 1988, deadline for filing these documents. The trial court correctly determined that plaintiffs failed to show good cause for the late filing.

Furthermore, as in Batten, the written report by the reviewing health professional was deficient. Said report must clearly identify the reasons for the health professional’s determination that there is a reasonable and meritorious cause for the filing of the action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(a)(1); Batten, 182 Ill. App. 3d at 429.) The initial report, filed on November 30, 1988, states that based upon the health professional’s review of records relating to the birth of Sarah Premo, a reasonable and meritorious cause exists for the filing of an action. The report then states, “This is based on the inappropriate interpretation of clinical evidence of fetal stress and distress during labor. Inappropriate actions were taken to intervene and to provide appropriate medical care and treatment.” The report never discusses what those actions were and therefore fails to adequately state the basis for the health professional’s determination that there was a reasonable and meritorious cause to file an action against defendants.

The amended report presented with plaintiffs’ motion for reconsideration is somewhat of an improvement, since it states that the inappropriate actions included failure to perform a caesarean section and prescription of medications in excess of those required. Section 2 — 622(b) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(b)) states, however, as follows:

“Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(b).)

Plaintiffs failed to file separate written reports as to each named defendant on November 30, 1988, and they also failed to do so on April 5,1989.

If a single medical report in a medical malpractice case against multiple defendants is sufficiently broad to cover each defendant, adequately discusses deficiencies in the medical care given by defendants, and establishes that a reasonable and meritorious cause exists for filing the action, the report can be considered sufficient to comply with section 2 — 622. (See Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1040; Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 374.) We believe the purpose of section 2 — 622(b) is to ensure that, in cases involving multiple defendants, plaintiff certifies that there is a reasonable and meritorious cause for filing the action against each defendant. Thus, in cases where this purpose is achieved by a single written report, the report should be held to be sufficient.

In the case at bar, neither the November 30 nor the April 5 report accomplishes the above objective. As we have seen, the earlier report does not specify any inappropriate action by any defendant. The later report mentions failure to perform a caesarean section and prescription of medications in excess of those required. In light of the allegations of the complaint, the failure to perform a caesarean is most likely attributable to Dr. Falcone and thereby to his alleged employer, Darien Gynecology, as well. There is no way to determine, however, which defendants are responsible for prescribing medications in excess of those required. The April 5 report therefore clearly fails to certify the existence of a meritorious cause of action against Hinsdale Hospital. Considering the aforementioned deficiencies in the written reports together with plaintiffs’ failure to establish good cause for the late filings, the trial court’s order dismissing the complaint with prejudice and its refusal to reconsider that order were well within the court’s discretion.

Finally, plaintiffs contend that section 2 — 622 of the Code is unconstitutional. Plaintiffs failed to present this contention to the trial court. Questions not raised in the trial court, including constitutional issues, are waived and may not be raised for the first time on appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568; Brown v. Mason (1985), 132 Ill. App. 3d 439, 442.) Plaintiffs have therefore waived any challenge to the constitutionality of section 2 — 622.

Even if we were to reach the merits of this argument, plaintiffs would not prevail. This court has already determined that section 2— 622 is constitutional (Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79), and we see no reason to depart from that holding. While the Appellate Court for the First District held to the contrary in DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 810, appeal allowed (1989), 127 Ill. 2d 614, we are not persuaded by the reasoning of the court in DeLuna.

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

Affirmed.

WOODWARD and GEIGER, JJ., concur.