author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH FRANZEN, Defendant-Appellant.
    Second District
    No. 2—92—0251
    Opinion filed October 28, 1993.

      M. Jacqueline Walther, of Kielian & Walther, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Joseph Franzen, appeals from an order of the circuit court of Du Page County denying his petition for post-conviction relief. Defendant was convicted by a jury of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(aX2) (now codified, as amended, at 720 ILCS 5/12 — 14(aX2) (West 1992))), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2(aX3) (now codified, as amended, at 720 ILCS 5/10 — 2(aX3) (West 1992))), and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a) (now codified, as amended, at 720 ILCS 5/12 — 4(a) (West 1992))). Defendant was sentenced, as an habitual criminal offender, to natural-life imprisonment without parole on the aggravated criminal sexual assault charges. He was also sentenced to concurrent extended terms of 30 years and 10 years for the offenses of aggravated kidnapping and aggravated battery, respectively.

Defendant’s convictions and sentences were affirmed by this court on direct appeal in a published opinion, People v. Franzen (1989), 183 Ill. App. 3d 1051, with the exception that defendant’s sentence for aggravated battery was modified to a five-year concurrent term. Defendant’s subsequent motion to the supreme court for leave to file a late petition for leave to appeal was not allowed.

Defendant filed a petition for post-conviction relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq. (now codified, as amended, at 725 ILCS 5/122 — 1 et seq. (West 1992))), alleging numerous violations of his constitutional rights. The petition was supported by affidavits and exhibits. The trial court in a lengthy written order setting forth specific factual findings and legal conclusions dismissed defendant’s petition, without an evidentiary hearing, as being patently without merit. This appeal ensued.

On appeal, defendant contends that the trial court erred in dismissing his post-conviction petition without an evidentiary hearing. Defendant maintains that the constitutional violations alleged in the petition were sufficient to entitle him to a hearing. Those alleged violations were: (1) that defendant was denied his right to counsel at trial and to present a defense; (2) that defendant was deprived of the effective assistance of appellate counsel; (3) that defendant was deprived of due process by the State’s failure to present sufficient evidence to sustain defendant’s convictions of aggravated criminal sexual assault and aggravated kidnapping; (4) that defendant was denied due process by his conviction of multiple offenses based upon the same aggravating factor; (5) that defendant was deprived of his rights to due process and a fair trial when the State withheld evidence from the defense prior to trial; (6) that defendant’s fourth amendment rights and right to due process were violated as a result of improper police procedures; (7) that defendant was deprived of his rights to due process and trial by jury because the jury was not properly instructed on the offense of aggravated criminal sexual assault; and (8) that defendant was denied his rights to due process and a fair trial by the State’s concealment, prior to trial, of the whereabouts of defendant’s wife.

The facts adduced at trial are summarized below.

At about 8:30 p.m. on September 17, 1986, Esther Lockwood arrived at the Rustic Lounge in West Chicago, where she had made plans to meet some friends. Because she did not see a parking place or her friends, Lockwood double-parked her car near the front door of the lounge and waited in the car. A few minutes later, a man approached the driver’s side of her car. He was wearing a Rustic Lounge T-shirt and identified himself as the bouncer. The man told Lockwood that she could not park where she was and that he would show her where to park. He asked Lockwood to follow him, whereupon he led her to a parking place in the rear of the lot. The man walked in front of the car at times turning around to face Lockwood as he motioned her to follow him.

After Lockwood parked and got out of her car, the man told Lockwood that he would take her to the side door, as it was too crowded inside the lounge to enter through the front door. Lockwood followed him but hesitated when the man began walking away from the lounge. The man assured Lockwood that he was taking her around to the side door. Lockwood began following him again until he headed towards an area behind the Rustic Lounge and off the parking lot at which point she stopped. The man turned, hit Lockwood in the face, and then choked her. Lockwood lost consciousness.

The Rustic Lounge had a policy of locking its door once the bar got to capacity and of not allowing anyone to leave and reenter without permission. Michael West, a bouncer at the Rustic Lounge, was instructed by his boss to allow defendant to leave the bar to make a phone call at about 8:15 p.m. At approximately 9 p.m. he let defendant back in the bar. At the time, West noticed that the front of defendant, especially his shirt, was covered with mud and blood. West observed no bruises, scrapes, or cuts on defendant. Defendant hurried into the bar, got his friends, and left immediately.

West went outside to look around the parking lot; he did not see anybody or anything unusual. About 15 or 20 minutes later he saw Lockwood walking very weakly toward the door of the lounge. She was naked from the waist down, her shirt was ripped open, and she had mud and blood covering her. In West’s opinion, her face was completely mutilated. Lockwood’s shoes, buttons from her blouse, keys, bra, pantyhose, and purse were found in a wet, matted-down area 30 feet into a sorghum field behind the Rustic Lounge. A matted-down area resembling a path went deeper into the field and led to Lockwood’s jeans which were discovered about 160 feet from the sidewalk area of the parking lot.

When Lockwood awoke in the hospital the next day, she was in great pain. She had been badly beaten and had severe injuries. A segment of plant stalk had been inserted into her rectum. Lockwood’s vaginal area was bruised and, according to the treating physician at the hospital where she was taken, contained plant-type material and mud.

Defendant testified that he drove to the Rustic Lounge after work on September 17 with his employer, Russell Shimp, and a co-worker, Michael DeBrun, in Shimp’s van, arriving at the bar about 3:30 p.m. The three men drank into the evening, each consuming a pitcher of beer and at least one mixed drink. During the evening, defendant purchased Rustic Lounge shirts for Shimp and himself. Both of them put on the shirts. Two bouncers, as well as several other patrons, were wearing similar shirts.

After 7 p.m. defendant, Shimp, and DeBrun each left the bar, separately, to make telephone calls from a mobile telephone in Shimp’s van. About 8:15 p.m., defendant again left the bar. According to defendant, he wanted to go home, but Shimp was not ready to leave. Defendant had the keys to Shimp’s van so he entered the van and lay down. Defendant said that he was tired and a little intoxicated.

Defendant stated that he needed to urinate so he tried to get back into the Rustic Lounge. He was unable to do so, as the doors were locked, and no one was at the door. Due to the capacity crowd that evening, the lounge’s doors were locked from before 8 p.m. until past 9 p.m. According to defendant, he went near some bushes off the parking lot to urinate because he could not get back inside the bar. Defendant said that, while he was urinating, he was jumped from behind and knocked to the ground. He and his assailant wrestled, and defendant hit and kicked the man. Defendant returned to the bar and beat on the door until the bouncer, West, admitted him. Defendant went over to his companions and told them what had happened to him. The three men then left in Shimp’s van.

Both Shimp and DeBrun testified that during the ride back to Shimp’s home defendant told them that he had talked to a blonde lady in the parking lot. He also told them that he had been jumped by two guys and a woman. Neither Shimp nor DeBrun noticed any injuries on defendant’s face or body. Shimp and DeBrun dropped defendant off at Shimp’s house and then returned to the bar.

The next morning defendant was stopped by the Joliet police on his way to work; he was arrested, photographed, and released. When defendant arrived at his jobsite, both Shimp and DeBrun told defendant that the police were looking for him in connection with an assault on a woman. Shimp told defendant that he did not want him around anymore and that the only way he would allow defendant to continue to work for him was for defendant to bring Shimp the shirt defendant had been wearing on the previous night to prove that he did not assault the woman. Defendant told Shimp that he had thrown out the shirt somewhere in Joliet.

Defendant then went home and with the help of his wife and mother altered the shirt. Defendant’s wife testified that defendant’s mother laundered the shirt. Next, the wife took a razor blade, cut her leg, took blood from her leg, and smeared it on the clean shirt in the same places where blood had been before the shirt was washed. Then, defendant put on the shirt and rolled around in the dirt. The three went inside where they poured beer on the shirt and blew cigarette smoke on it so it would smell like it had been in a bar.

The next day, defendant took the shirt to Shimp. Shimp tore the shirt in half and gave it to police, one half at a time, on two separate days. Shimp also gave police defendant’s work boots which were full of mud.

On that same day, September 19, the police went to the hospital and showed Lockwood a photo spread consisting of six photographs. Lockwood picked defendant’s photograph as that of the person who had attacked her. Lockwood acknowledged that she had given police a physical description of her assailant, but she believed that this had occurred after being shown the photo spread. The detective who showed her the photographs stated that she had given the description prior to being shown the photo spread.

Defendant was convicted of aggravated criminal sexual assault based on anal penetration, aggravated criminal sexual assault based on vaginal penetration, aggravated kidnapping and aggravated battery. Based on defendant’s prior criminal record, the trial court sentenced defendant, as an habitual criminal, to concurrent sentences of natural-life imprisonment on the aggravated criminal sexual assault charges. The court also sentenced defendant to extended terms of 30 years’ imprisonment for aggravated kidnapping and 10 years’ imprisonment for aggravated battery.

On direct appeal, defendant was represented by the appellate defender. This court affirmed defendant’s convictions and sentences but reduced the extended-term sentence on the aggravated battery conviction to five years. (People v. Franzen (1989), 183 Ill. App. 3d 1051.) The appellate defender did not file a petition for leave to appeal.

Defendant’s parents retained private counsel after the time to file a petition for leave to appeal expired. The supreme court initially granted defendant leave to file a late petition but, then, upon motion by the State for reconsideration, reversed its order allowing the late filing.

Defendant, subsequently, filed a petition for post-conviction relief which was summarily dismissed by the trial court. This appeal ensued.

Defendant maintains that the trial court erred in summarily dismissing his petition for post-conviction relief because the constitutional violations set forth in his petition merited an evidentiary hearing. The purpose of a post-conviction petition is to resolve allegations that constitutional violations occurred at trial which were not, or could not have been, adjudicated previously. (People v. Green (1991), 218 Ill. App. 3d 71, 75.) An evidentiary hearing should be conducted when the petitioner makes a substantial showing of a violation of constitutional rights which is supported by the record in the case or by accompanying affidavits; however, a petitioner is not entitled to an evidentiary hearing as a matter of right. People v. Silagy (1987), 116 Ill. 2d 357, 365.

Defendant bears the burden of establishing a substantial deprivation of constitutional rights, and the trial court is authorized to dismiss summarily a petition for post-conviction relief if defendant fails to set forth the facts which make the required showing as to the claimed constitutional deprivation. (Green, 218 Ill. App. 3d at 75.) Determinations by the trial court will not be disturbed absent manifest error. (People v. Sanders (1991), 209 Ill. App. 3d 366, 373.) To be “manifest,” error must be clearly evident, clear, plain, and indisputable. (209 Ill. App. 3d at 373.) The judgment of the reviewing court on a previous appeal is res judicata as to all issues actually decided, and any claim that could have been presented to the reviewing court in the direct appeal is, if not presented, deemed waived. Silagy, 116 Ill. 2d at 365.

Defendant’s first alleged constitutional violation is that he was denied his right to counsel and to present a defense when the trial court refused to allow his newly retained counsel a continuance to prepare for trial. That counsel appeared on the date set for trial and requested a continuance, indicating that he had just been retained the weekend before trial. Defendant asserts that the court’s denial forced retained counsel to trial without an opportunity to investigate the case, to review all court documents, discovery materials, and pretrial statements made by prosecution witnesses, and to meet with defendant on more than one occasion.

Defendant acknowledges that the issue as to a violation of his right to counsel was raised on direct appeal but asserts that it was framed in terms of a denial of his sixth and fourteenth amendment rights and not in terms of a denial of the right to prepare and present a defense as set forth in his post-conviction petition. Defendant appears to ignore that the constitutional right to counsel incorporates the right to adequately prepare and present a defense. (People v. Trolia (1982), 107 Ill. App. 3d 487, 498.) Since we determined on direct appeal that defendant was not denied his constitutionally guaranteed right to counsel, we consider the issue of an adequate defense was also decided at that time. Based on our prior determination, the issue is, therefore, res judicata.

Defendant contends, however, that the facts presented in his post-conviction petition and supporting affidavits, which were not before this court on direct appeal, were sufficient to overcome res judicata principles. Defendant maintains that these facts make a substantial showing that the presentation of defendant’s defense and his right to counsel were prejudiced by the trial court’s refusal to allow retained counsel a continuance in order to prepare. These facts indicate what retained counsel could have or would have done had he been granted the continuance.

Defendant’s petition and affidavits, however, overlook the fact, as revealed by the record, that in denying retained counsel’s motion for a continuance the court informed counsel that he could renew that motion after reviewing discovery matters as long as it was made before the trial commenced. The record also reveals that counsel on the day of the original motion to continue met later with the public defender to discuss the case and to obtain copies of the public defender’s reports and abstracts. Additionally, at that time he was introduced to the public defender’s investigator and told that the investigator was available for his use. When trial commenced on the next day for jury selection, retained counsel did not renew his motion for a continuance. By failing to take advantage of the court’s offer to renew his motion to continue, retained counsel waived any objection to the court’s denial of his motion. We note, from the record, that despite the court’s denial of the motion to continue defendant’s retained counsel adequately prepared defendant’s defense and performed competently throughout the trial. We also note that the evidence of defendant’s guilt was overwhelming.

Accordingly, we conclude that defendant’s first alleged constitutional violation is barred by principles of res judicata and that defendant cannot overcome these principles with factual statements of what he would have done if granted a continuance since defendant proceeded to trial without further objection.

As his second constitutional violation, defendant alleges that he was denied the effective assistance of appellate counsel because his appointed appellate counsel failed to raise on direct appeal the issues raised in defendant’s post-conviction petition and also failed to file a petition for leave to appeal on his behalf. To establish the ineffective assistance of appellate counsel, defendant must show that his counsel’s failure to raise an issue was objectively unreasonable and that, but for this failure, there was a reasonable probability that his conviction would have been reversed. (People v. Stewart (1990), 141 Ill. 2d 107, 119.) Appellate counsel is not obliged to brief every conceivable issue on appeal (People v. Sanders (1991), 209 Ill. App. 3d 366, 377), and it is not incompetence for counsel to refrain from raising those issues which counsel believes are without merit, unless counsel’s appraisal of the merits is patently erroneous (People v. Lostutter (1992), 227 Ill. App. 3d 1052, 1054). To support a claim of incompetency of appellate counsel in a post-conviction proceeding, defendant must establish substantial prejudice to him which likely affected the outcome of his case. People v. Adams (1987), 164 Ill. App. 3d 742, 747.

In his post-conviction petition defendant sets forth six issues which he contends should have been raised on direct appeal. These issues would not normally be cognizable in their own right in a post-conviction proceeding because they were not raised in the direct appeal. Nevertheless, we review them here for the purpose of determining whether the issues were so patently meritorious that the failure of appellate counsel to raise them on direct appeal constituted incompetence of appellate counsel. As shown below, we have determined that these issues lack merit and that, therefore, defendant did not suffer any prejudice from appellate counsel’s failure to raise them in the direct appeal.

Defendant also claims that appellate counsel was ineffective in failing to initiate a petition for leave to appeal on his behalf. The failure to file an appeal can constitute ineffective representation (People v. Fernandez (1991), 222 Ill. App. 3d 80, 83), whether it be an appeal to the appellate court or the supreme court. The defendant, however, must present adequate proof that he communicated such wishes to his counsel in the form of affidavits, records, or other evidence containing specific facts. (222 Ill. App. 3d at 83.) Such proof is not present in the record before us.

Defendant’s affidavit in support of his post-conviction petition makes no reference to an appeal to the supreme court. Moreover, the affidavit attached to his motion for leave to file a late petition for leave to appeal, which was submitted by retained counsel a month and a half after the time for filing such a petition had expired, shows only that defendant’s appointed appellate counsel advised him by letter that she would not file a petition. Such reference does not establish that defendant communicated to his appellate counsel a desire to appeal this court’s prior decision. Absent some proof that defendant requested counsel to file a petition for leave to appeal, we cannot say that counsel’s failure to file such a petition constituted ineffective assistance of appellate counsel.

We conclude that defendant has failed to meet his burden of proving he was denied adequate representation on direct appeal. The following review of those issues defendant claims appellate counsel should have raised supports this conclusion. Before addressing those issues, however, we feel compelled to note that in deciding the next six issues we have found the State’s brief to be less than helpful. The State has cited little, if any, authority for its positions and has based those positions in large part on conclusional statements unsupported either by citation to the record or to authorities.

Defendant contends that appellate counsel was incompetent in failing to argue on appeal that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault based on vaginal penetration and of aggravated kidnapping. Although issues regarding the sufficiency of the evidence are not proper in post-conviction proceedings, such evidentiary issues are cognizable for the limited purpose of determining whether appellate counsel’s failure to raise the sufficiency of the evidence on direct appeal constituted ineffective assistance. People v. Jackson (1987), 161 Ill. App. 3d 573, 583.

When considering a challenge to the sufficiency of the evidence, a court of review must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Denny (1991), 221 Ill. App. 3d 298, 301.) Therefore, we will not substitute our judgment for that of the trier of fact on questions involving the sufficiency of the evidence and will not reverse a criminal conviction unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of guilt. People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Sehr (1986), 150 Ill. App. 3d 118, 122.

Defendant first maintains that he should not have been found guilty of aggravated criminal sexual assault based on vaginal penetration because insufficient evidence existed to demonstrate beyond a reasonable doubt that a vaginal penetration occurred. To prove vaginal penetration had occurred in this case the State had to show that an object had entered the victim’s vagina. Any intrusion, however slight, would constitute vaginal penetration. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f) (now 720 ILCS 5/12-12(f) (West 1992)).) Moreover, evidence of the admission of semen was not required to prove sexual penetration of the vagina. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f) (now 720 ILCS 5/12 — 12(f) (West 1992)).

Here, evidence of penetration of Lockwood’s vaginal area was presented by the physician who examined her at the hospital shortly after the attack. In conducting his examination the doctor stated that he observed bruises and plant-type material and mud in the vaginal area. A photograph depicting these observations was identified by the doctor and entered into evidence. Lockwood’s family physician, who examined her the following morning, stated that he thought there was some old blood present in the vaginal orifice. Based on this evidence, it was possible for the jury to infer that some plant-type material was used to penetrate the victim’s vagina, even if only slightly.

The issue of whether vaginal penetration occurred was a question of fact for the jury to determine. (People v. Harris (1989), 187 Ill. App. 3d 832, 838.) Given the evidence presented and viewing it in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of aggravated criminal sexual assault based upon vaginal penetration.

Defendant also maintains that the evidence was insufficient to find him guilty beyond a reasonable doubt of aggravated kidnapping. In particular, defendant argues that “secret confinement” is the “gist” of kidnapping and that no secret confinement was shown in the instant case. We do not agree.

The “secret confinement” element contemplated by the aggravated kidnapping statute (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 2 (now codified, as amended, at 720 ILCS 5/10 — 2 (West 1992))) may be shown by proof of the secrecy of confinement or the place of confinement. (People v. Mulcahey (1978), 72 Ill. 2d 282, 285; People v. Riley (1991), 219 Ill. App. 3d 482, 487.) “Secret” has been variously defined as “[cloncealed; hidden; not made public; *** kept from the knowledge or notice of persons liable to be affected by the act.” Mulcahey, 72 Ill. 2d at 285.

Defendant relies on People v. Sykes (1987), 161 Ill. App. 3d 623, to argue that the dragging of the victim, Lockwood, from one outdoor location to another does not establish secret confinement. Sykes, however, is clearly distinguishable from the case at bar. In Sykes, defendant grabbed the 10-year-old victim as she was walking near a playground and pulled her into an alley. The two proceeded through two or three alleys and down a street until they reached a partially vacant building. After the manager of the building denied defendant entry into the building, defendant pulled the victim back down the street. Upon seeing a man across the street, the victim yelled for help, and defendant ran off. The court in Sykes concluded that the foregoing did not establish “confinement” as envisioned by the Illinois courts nor did it comport with the “secret” component of the statute, as the victim was not concealed, hidden, or not made public.

In the instant case defendant choked Lockwood rendering her unconscious and then dragged her 160 feet behind a fence into a sorghum field where the sorghum plants were of a height to conceal the defendant and Lockwood from anyone who might have wandered out into the parking lot. That Lockwood was concealed in that particular location was shown through the testimony of the officers investigating the crime and the photographs of the place, both of which indicated that the soil had been disturbed and the plant material matted down at that location. Also, Lockwood’s jeans were found in this spot. Although confinement most commonly denotes the enclosure or confinement within something such as a house or car (Riley, 219 Ill. App. 3d at 487), we do not believe it is strictly limited to those types of places. Here, where the victim was dragged against her will from a well-lit parking lot to a place in a dark field where she was concealed from public view and not free to leave, we find secret confinement was proven. Under the factual circumstances of this case, sufficient evidence was presented to sustain defendant’s conviction of aggravated kidnapping.

We conclude that it was not incompetent of appellate counsel to fail to raise in the direct appeal the instant issue pertaining to the sufficiency of the evidence. Nor was it improper for the trial judge to find that such issue did not warrant post-conviction relief.

Defendant next contends that it was incompetent for appellate counsel not to have raised on direct appeal that defendant was denied due process where he was convicted of multiple offenses based upon the same aggravating factor. Defendant maintains that the aggravating factor alleged as to both the aggravated kidnapping and the aggravated battery was the infliction of great bodily harm and that this harm was the beating and choking of Lockwood. The record belies defendant’s contention.

The indictments, jury instructions, and arguments at the hearing on defendant’s motion for a new trial as well as the evidence presented at trial establish that the aggravated battery and the aggravated kidnapping were based on different aggravating factors. The basis for the aggravated battery was clearly the initial beating and choking of Lockwood in the parking lot. The separate conduct which gave rise to the aggravated kidnapping was the sexual assault and harm which occurred after Lockwood was dragged unconscious across the parking lot and 160 feet into a sorghum field. Consequently, the jury was justified in finding defendant guilty of both the offense of aggravated battery and the offense of aggravated kidnapping.

We find that the trial court did not err in denying defendant post-conviction relief on the alleged constitutional violation raised in the instant issue and that appellate counsel, likewise, was not incompetent for failing to raise the issue in the direct appeal.

In his next contention, defendant argues that he received inadequate representation on appeal when appellate counsel failed to raise the issue of the State’s act of withholding evidence from the defense. Defendant maintains that the State’s conduct constituted a deprivation of his constitutional rights to due process and a fair trial.

The prosecution has a duty to disclose exculpatory material to the defense, and conduct by the prosecution in withholding such evidence from the defense suggests error of a constitutional magnitude. (See generally United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392; Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) Undisclosed evidence will be considered material only if its “suppression undermines confidence in the outcome of the trial” (United States v. Bagley (1985), 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491, 105 S. Ct. 3375, 3381) and if there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” (473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3384). It is apparent from the record that such is not the situation here.

The withheld evidence to which defendant refers was the description of her assailant that Lockwood had given police. The fact that this description had been given to the police was revealed during the cross-examinations of Lockwood and the detective supervising the investigation. Although the State should have known of this evidence and put it into discovery, it is clear from the record that the prosecution was unaware of the description until this testimony. Moreover, the withheld evidence was anything but exculpatory. Lockwood’s description of her assailant was consistent with the description of the defendant. Consequently, the disclosure of the description would not have created a reasonable probability of a different outcome in the trial. Rather, it would have merely substantiated that Lockwood got a good look at her assailant and that that assailant was defendant.

Whether an actual violation of constitutional rights occurs depends upon factors which include the character of the evidence withheld and the prosecution’s knowledge of the existence of the evidence. (Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392; People v. Harris (1989), 129 Ill. 2d 123.) Given the character of the withheld evidence here and the prosecutor’s belief that all discovery in the State’s possession had been tendered to the defense, we cannot say that the State’s suppression of the evidence constituted constitutional error. We conclude, therefore, that appellate counsel’s failure to raise the instant issue did not amount to incompetence and that the trial court’s denial of an evidentiary hearing on this basis did not amount to error.

Defendant also asserts that appellate counsel was incompetent because counsel failed to raise the issue that defendant’s fourth amendment rights and right to due process were violated as a result of police procedures. In particular, defendant maintains that his arrest without probable cause, the obtaining of evidence, i.e., his photograph, as a result of that arrest, and the utilization of that photograph in a photographic lineup shown to the victim were improper.

On a petition for post-conviction relief, the scope of review is limited to constitutional issues which have not been, and could not have been, previously adjudicated. (People v. Seidler (1990), 203 Ill. App. 3d 666, 668.) In the instant case, the issue regarding whether defendant’s fourth amendment rights were violated when he was arrested by the Joliet police on the morning following the attack on Lockwood was previously adjudicated at a hearing on defendant’s motion to suppress the photograph taken of defendant at the police station. At that hearing the trial court determined that probable cause existed for defendant’s arrest and that, as a result, the police had the right to take defendant’s photograph as part of the arrest procedure. Having been previously adjudicated at the trial level and not subsequently raised on direct appeal, the constitutional deprivations defendant raises in the instant issue would generally be waived. Seidler, 203 Ill. App. 3d at 668.

However, a post-conviction claim that could have been presented to a reviewing court on direct appeal and was not may be raised thereafter as part of a claim that defendant received ineffective assistance of appellate counsel on direct appeal. (People v. Winsett (1992), 153 Ill. 2d 335, 346.) The alleged incompetence of appellate counsel forms the basis of the issue in question, but our review of the record convinces us that appellate counsel did not act incompetently in failing to raise an issue based on improper police procedures.

Probable cause for an arrest exists when facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested had committed the offense. (People v. Sauer (1988), 177 Ill. App. 3d 870, 879.) Where officers are working together in investigating a crime, the knowledge of each constitutes the knowledge of all, and probable cause can be established from all the information collectively received by the officers even if not known to the arresting officer. (People v. Fox (1987), 155 Ill. App. 3d 256, 263-64.) With respect to a motion to suppress evidence based on lack of probable cause to arrest, the burden of proof is on defendant. (Sauer, 177 Ill. App. 3d at 879.) A court’s finding of probable cause, or lack thereof, will not be disturbed on appeal unless it is manifestly erroneous. People v. Earley (1991), 212 Ill. App. 3d 457, 465.

The testimony at the hearing on defendant’s motion to suppress established that Detective Thomas Vosburgh of the Du Page County sheriff’s office arrived at the Rustic Lounge at about 10:10 p.m. on September 17, the evening of the attack. While at the bar, Vosburgh spoke to Rusty Shimp and Michael DeBrun, defendant’s companions. Shimp told the detective that defendant had left the bar about 8 p.m. and was gone approximately 45 minutes. When defendant returned, he was covered with mud and had blood on his shirt. Defendant had told Shimp that he had gotten into an argument outside with two individuals, that a blonde woman had jumped on him, and that he had had to punch her. Defendant had told Shimp that he had to leave immediately. Vosburgh related that Shimp gave him a description of the defendant and of defendant’s vehicle.

Vosburgh also testified as to a conversation he had with Charles Rogers, the owner of the Rustic Lounge, who told Vosburgh that he observed defendant leave the bar covered with mud and blood. According to Rogers, he heard defendant say that he had been in a fight with two individuals in the parking lot. Rogers told Vosburgh that he had then checked the lot but saw no signs of a struggle. Fifteen to twenty minutes after defendant left the victim appeared at the door of the lounge.

Vosburgh also talked to James Hammond, a patron at the bar that evening. Hammond related that he saw defendant come into the bar covered with mud and blood. When Hammond asked defendant what had happened to him, defendant said he was jumped by two individuals.

Vosburgh stated that he returned to the sheriff’s office at about 12:30 a.m. on September 18 and ran a background check on defendant which revealed an extensive criminal history, including two sexual offenses. Vosburgh’s investigation turned up two addresses for defendant, one of which was in Joliet.

Detective Michael Prunty of the Du Page County sheriff’s office testified at the suppression hearing that he located defendant’s vehicle at the Joliet address. Prunty then contacted the watch commander of the Joliet police department and asked that he place defendant’s vehicle under surveillance.

Officer Paul Albright of the Joliet police department testified that at about 3 a.m. on September 18 he was instructed by his watch commander to place defendant’s vehicle under surveillance. Albright was provided with a description of defendant and was told that probable cause existed to arrest him for aggravated criminal sexual assault. At approximately 6:19 a.m. the officer observed defendant leave in his vehicle. At about 6:25 a.m. Albright stopped defendant and placed him under arrest for aggravated criminal sexual assault. Albright recalled that defendant was then transported to the police station where he went through the normal booking procedures, including being fingerprinted and photographed.

Apparently unbeknownst to Albright, Detective Prunty had contacted the Joliet police department about 5:30 a.m. on September 18 after Prunty and Vosburgh learned that Lockwood would be in no condition to view a photographic lineup for several days. Prunty asked the department to cease its surveillance of defendant. When Prunty was subsequently informed that the department had arrested defendant, he phoned the department, telling them to release defendant. Prunty also went to Joliet to pick up the photographs and fingerprints taken of defendant.

From the testimony at the suppression hearing the trial court concluded that the collective knowledge and information of all the officers involved was sufficient to establish that probable cause existed to arrest defendant at the time he was apprehended by Officer Al-bright. Collectively, the officers knew that defendant had been observed by several individuals with mud and blood on him shortly before the battered victim had appeared at the door of the bar; that defendant had told his companions, Shimp and DeBrun, that he had to leave immediately; that defendant had told variations of his alleged altercation in the parking lot, including one version that he had been jumped by a blonde woman; and that defendant had had a prior record of sex offenses. This information was sufficient to lead a reasonable man to believe that an offense had been committed and that defendant had committed it. We conclude that the trial court did not err in finding that probable cause existed for defendant’s arrest.

As defendant’s motion to suppress his photograph was based on the lack of probable cause to arrest and as defendant did not meet his burden of proving the lack thereof, there was nothing improper in the obtaining of the photograph as part of the arrest procedures and in subsequently using that photograph in a photographic lineup. The photograph and the resulting identification did not constitute “fruits” of an unconstitutional arrest as defendant claims. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.

Defendant maintains that showing the photograph to Lockwood before she gave police a description of her assailant was improperly suggestive. We note that during trial it was brought out by Detective Vosburgh that Lockwood did provide a description to police prior to viewing the photographic lineup prepared by the police and that that description was consistent with a description of defendant.

The photographic lineup consisted of six black and white photographs of identical size. Lockwood testified that she immediately spotted the individual who had attacked her but, nevertheless, forced herself to look at the other photographs to be sure. During her account of the events leading up to the attack by defendant, it was very apparent that Lockwood had gotten a very good look at defendant’s face. When he first told her that she could not park in front of the door to the lounge, defendant stooped down by the driver’s door of her car and spoke to her through her car window. He was no farther than a foot away from her. As he led her to the back of the bar to a parking place, Lockwood remembered that defendant turned around several times, facing her, as he motioned her to follow him. After Lockwood parked, defendant again stooped down by her car window and spoke with her. On each occasion the lighting was good. When defendant subsequently hit Lockwood in the face and then choked her, it is apparent from her testimony that he was standing in front of her. In light of all these circumstances, it cannot be said that the use of defendant’s photograph in a photographic lineup was improperly suggestive. Lockwood did not need any assistance in identifying defendant as her attacker.

In light of the above, we find defendant has failed to show that improper police procedures resulted in a denial of his fourth amendment rights and right to due process. The trial court, therefore, did not err in dismissing this constitutional claim, and appellate counsel was not incompetent for failing to raise the claim.

Defendant next argues that appellate counsel was incompetent for failing to argue that defendant was deprived of his rights to due process and trial by jury when the jury was not properly instructed on the offense of aggravated criminal sexual assault. Specifically, defendant maintains that the jury instructions omitted an essential element of the crime, i.e., the mental state required for the offense and, in particular, for the crime of vaginal penetration.

Initially, we are in agreement with the trial court which, in denying defendant’s post-conviction petition, found that defendant’s failure to object at trial to the instructions pertaining to aggravated criminal sexual assault tendered by the State, to offer an alternative instruction, or to raise the issue of improper instructions in his post-trial motion constituted a waiver of the issue. (People v. Leonard (1988), 171 Ill. App. 3d 380, 383.) While we recognize that substantial defects in jury instructions in criminal cases may be considered even though the defendant has failed to make timely objections, this exception will be invoked only to correct grave errors or to correct errors in cases so closely balanced that fundamental fairness requires that the jury be properly instructed. (People v. Reddick (1988), 123 Ill. 2d 184, 198.) Neither situation exists here. The instant case was not closely balanced, nor did the trial court’s failure to instruct the jury sua sponte on a mental state amount to grave error or a denial of fundamental fairness. Nevertheless, we briefly address defendant’s issue.

Various districts of the appellate court of this State have overwhelmingly held that the jury instructions for aggravated criminal sexual assault, a general intent crime, need not set forth a specific mental state. (See, e.g., People v. Smith (1991), 209 Ill. App. 3d 1043; People v. Burton (1990), 201 Ill. App. 3d 116; People v. Sommerville (1990), 193 Ill. App. 3d 161; People v. Avila (1989), 180 Ill. App. 3d 345; People v. Leonard (1988), 171 Ill. App. 3d 380; People v. Ortiz (1987), 155 Ill. App. 3d 786.) Moreover, none of these districts has determined that a different result is warranted following the supreme court’s decision in People v. Terrell (1989), 132 Ill. 2d 178, relied on by defendant, to imply a mental state of intent or knowledge for the crime of aggravated criminal sexual assault (132 Ill. 2d at 209). In fact, of those districts which have specifically addressed the effect of Terrell on their prior holding or were decided after Terrell, none has departed from its decision that it is not error to omit the implied mental state from the jury instructions for aggravated criminal sexual assault. That is because the Terrell opinion makes it clear that the mental state required for aggravated criminal sexual assault, an offense based on an act of sexual penetration by the use of force or threat of force (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(2) (now codified, as amended, at 720 ILCS 5/12-14(a)(2) (West 1992))), naturally flows from the commission of the prohibited act (Burton, 201 Ill. App. 3d at 122) and, therefore, is implied by the act itself. Terrell does not require that the jury be instructed on the mental state implied to be an element of the offense of aggravated criminal sexual assault. Based on Terrell, and the precedent set by the various districts of the appellate court, we conclude that the jury instructions at issue here were proper. Accordingly, the instant issue was properly dismissed without an evidentiary hearing and properly disregarded by appellate counsel on direct appeal.

Last, we consider whether it was incompetent for appellate counsel not to have raised the issue that defendant was denied his constitutional rights to due process and a fair trial by the State’s concealment, prior to trial, of the whereabouts of a State witness thereby precluding defense counsel from investigating the substance of her testimony and learning of areas of possible impeachment. We note first, as the court pointed out, that in alleging this particular constitutional violation defendant failed to support the allegation with affidavits or other evidence as required by the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-2 (now 725 ILCS 5/122-2 (West 1992))). Moreover, the record reveals that defendant’s allegation was insufficient to require a hearing on his post-conviction petition on this basis.

The “concealed” witness to which defendant refers was his estranged wife. The record reveals that prior to trial the State offered to put defense counsel in telephone contact with defendant’s wife. The record also shows that defendant telephoned his wife prior to trial and that, therefore, counsel had access to her telephone number through defendant. Further, counsel admitted on the day before trial commenced that he had been provided with Mrs. Franzen’s address and phone number during the previous week. Also, prior to trial, the State tendered a written offer of proof as to the testimony Mrs. Fran-zen would give. Based on the contents of that offer, defense counsel indicated to the court that he had no problem with Mrs. Franzen’s testimony and withdrew his motion in limine to prohibit Mrs. Fran-zen from testifying. Under all these circumstances, we cannot say that the State’s delay in disclosing the whereabouts of Mrs. Franzen prevented defense counsel from properly preparing for her testimony or from learning of potential areas of cross-examination.

Defendant also alleges that the State’s concealment prevented defense counsel from discovering whether inducements in the form of threats of criminal prosecution or promises of protection from defendant influenced Mrs. Franzen’s testimony. However, at a hearing prior to trial the prosecutor informed defense counsel that the State had not granted Mrs. Franzen immunity but had no intention of prosecuting Mrs. Franzen for her involvement. Thus, defense counsel had knowledge of a potential basis for impeachment of Mrs. Franzen prior to the beginning of trial.

We conclude that the State’s delay in disclosing Mrs. Fran-zen’s whereabouts did not constitute a denial of defendant’s right to due process where, as here, the information defense counsel requested was provided prior to trial. We, therefore, find that appellate counsel’s failure to raise this particular issue on appeal did not amount to incompetence, as the issue was without merit. (People v. Lostutter (1992), 227 Ill. App. 3d 1052, 1054.) Also, the trial court’s denial of an evidentiary hearing on this issue was proper.

Under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq. (now 725 ILCS 5/122 — 1 et seq. (West 1992))), a defendant is only entitled to an evidentiary hearing if the allegations of his petition, together with the record of his trial and supporting affidavits, make a substantial showing of a violation of his constitutional rights. (People v. Gacy (1988), 125 Ill. 2d 117, 124.) For the reasons stated above, we find that defendant’s petition for post-conviction relief presented no substantial showing of any violation of his constitutional rights. Consequently, the trial court’s decision to dismiss defendant’s petition without an evidentiary hearing was not manifest error.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and WOODWARD, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    CARMEN CRUZ, Plaintiff and Counterdefendant-Appellee, v. EDWARD STAPLETON III, Indiv. and d/b/a Sedaer Buyer’s Broker, Defendant and Counterplaintiff-Appellant.
    Second District
    No. 2—92—1160
    Opinion filed November 2, 1993.

      Edward Stapleton III, of Chicago Heights, appellant pro se.

    Donald Henderson, Jr., of Northern Illinois University, of De Kalb, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Carmen Cruz, sought to purchase a home in the De Kalb area. She and defendant, Edward Stapleton, entered into an oral agreement under which defendant would act as a “buyer’s broker” to help her find a suitable property. Plaintiff was unable to close on a purchase within the time she desired, and she terminated the agreement with defendant.

In a small claims suit, plaintiff sued defendant for the return of an “escrow account” of $500 that she paid defendant to facilitate bids on properties that plaintiff might wish to purchase. Defendant denied liability and filed a counterclaim for $1,263.50, which he alleged was the net amount plaintiff owed him for the 35 hours of service he performed under the parties’ oral contract. The trial court awarded plaintiff $500 plus costs and attorney fees and denied the counterclaim. Defendant timely appealed.

Defendant’s pro se appellate brief contains numerous contentions, but in essence he argues that the trial court erred in denying him recovery for the reasonable value of his services under a theory of quantum meruit. We disagree and affirm.

Plaintiff’s complaint alleged the following facts. In December 1991, the parties agreed orally that defendant would act as plaintiff’s “buyer’s broker” to help her find a private residence to purchase. Under the agreement, defendant’s sole remuneration would be a commission or “contingent fee” that defendant would receive if and when plaintiff purchased a home that defendant helped her to procure. The agreement specified no time limit. At some point in their discussions, defendant told plaintiff that her opportunity to bid on a home would improve if he had $500 at his immediate disposal to use as earnest money. On December 28, 1991, plaintiff tendered defendant a check for $500. She made the check out to “Sedaer Escrow Account” and paid defendant in reliance on his statements that the money would be used to support her bid on a house.

Despite both parties’ best efforts, plaintiff was unable to find suitable housing, and she did not purchase or agree to purchase any property that defendant found for her. Plaintiff sought to terminate the oral contract and asked defendant to return the $500. Defendant refused to do so and demanded an additional $795 in payment for his services.

Plaintiff alleged that defendant owed her $500 and that he procured this money by fraud. Plaintiff sought the return of the $500, punitive damages, costs, and attorney fees.

Defendant filed a counterclaim alleging that plaintiff owed him $763.50, the balance of $1,263.50 for services at his normal rate of $35 per hour minus a credit for the $500 payment.

The parties agree that the following evidence was adduced at trial. Plaintiff testified that late in 1991 she was a graduate student and an instructor at Northern Illinois University in De Kalb. Although she was living in Chicago at the time, she decided to find housing in the De Kalb area in time for the start of the spring semester in January 1992.

Plaintiff first met defendant in December 1991, after he answered her call about a possible apartment vacancy. Defendant showed plaintiff several apartments, but she told him she was interested in buying a residence. Defendant offered to assist her in finding a residence in the De Kalb area. Plaintiff expressed interest in this proposal, and the parties met on December 18, 1991. During this meeting, defendant suggested that plaintiff give him $500 to use as an escrow account that defendant would have at his disposal to facilitate bids on a house plaintiff might want to buy. Plaintiff decided that this was reasonable, and she made out a check for $500. Plaintiff wanted to speed the process along if possible because her bank was in Chicago and she wanted to find housing soon.

Plaintiff testified that defendant never stated or implied to her that the $500 might be used as payment for services rendered. According to plaintiff’s testimony, defendant agreed that he would receive a commission only at the time that plaintiff closed on the purchase of a house that defendant helped her to find. Defendant never told plaintiff that he wished to be paid by the hour regardless of whether plaintiff found a house. Plaintiff would not have entered into the agreement had she believed that she would be liable for hourly charges regardless of whether defendant helped her to buy a house. Also, the parties never discussed the duration of the contract. Plaintiff believed that she could terminate the contract at any time.

Plaintiff made bids on two houses that defendant helped her to locate. The bids were not accepted as they were too low. After the second bid expired, on or about January 13, 1992, plaintiff told defendant she no longer wanted defendant’s services, primarily because the semester was about to begin. Plaintiff demanded her $500 back, but defendant refused to pay.

The court admitted into evidence two of plaintiff’s offers to purchase real estate. Each proposed contract contains several contingencies, including the specification that the buyer would pay the buyer’s broker’s fee “at first closing.” One of these offers stated that the fee for the buyer’s broker was $2,000; the other offer did not specify the amount of the fee. Plaintiff testified that defendant prepared both of these offers.

Defendant testified that, on December 18, 1991, he and plaintiff met. At this meeting, defendant told plaintiff that he would be willing to help her find housing in the De Kalb area. He told plaintiff that his fee would be $2,000, payable at the closing. The parties did not discuss what amount would be due if plaintiff did not buy a house. The parties did not discuss the duration of the agreement, but defendant understood that he would have a reasonable time in which to find a house for plaintiff. Defendant testified that, from his familiarity with trade custom, a reasonable time meant six months. Defendant also testified that he understood that the fee was “non-contingent” but that it would be deferred until the time plaintiff closed on a purchase.

After the agreement, defendant accepted the $500 check as an escrow account that would help to facilitate his negotiations on plaintiff’s behalf.

The trial court found no fraud by defendant, but it awarded plaintiff $500 plus attorney fees and costs. The court held that defendant had not proved his counterclaim.

The court made the following factual findings. The $500 plaintiff paid defendant was intended for use toward a possible purchase and not as payment for services rendered. The parties agreed that defendant would be paid not by the hour, but out of money available when plaintiff closed on a purchase of a house. The parties never agreed that defendant would receive $35 per hour whether or not he succeeded in finding a house for plaintiff. Plaintiff would not have agreed orally to such an arrangement, as it could have cost her greatly even if defendant’s efforts were in vain. There was no meeting of the minds on how defendant would be compensated (if at all) for work that did not result in a purchase. As real estate brokers customarily work on commission, and nothing here suggested the parties agreed to deviate from this custom, defendant was entitled only to a commission at the time of a closing.

On appeal, defendant argues that the trial court’s decision is contrary to case law under which a broker may be compensated in quantum meruit for services he rendered before his client unilaterally terminated the client-broker relationship.

Plaintiff maintains that defendant has waived this argument by failing to raise it at trial. We do agree with plaintiff that an unsuccessful party may not raise a new theory of recovery on appeal. (Malatesta v. Leichter (1989), 186 Ill. App. 3d 602, 614.) However, given the informality of the trial proceedings and the limited record, we cannot say that defendant has waived the argument he now advances.

The small claims counterclaim alleged that plaintiff owed defendant for “services rendered under oral contract or reliance upon [plaintiff’s] statements.” Defendant argued that he was entitled to compensation for the time that he actually worked for plaintiff. He introduced evidence that he worked a specific number of hours. It appears that, in the relatively informal setting of the small claims proceeding, defendant argued alternatively that plaintiff had breached her contract or that defendant was entitled to recovery under a contract implied in law even if there was no contract in fact. Under these circumstances, we choose to reach the merits of defendant’s argument.

Defendant does not directly challenge the trial court’s finding that, under his oral contract with plaintiff, he was to be compensated by a commission at the time of a closing rather than by an hourly fee that was not contingent upon the plaintiff’s success in finding a house with his aid. Rather, he argues that, even where a broker’s payment is contingent upon a condition that goes unfulfilled, quantum meruit allows recovery when the client unilaterally terminates the contract and thus prevents the contingency from occurring. We disagree with defendant’s interpretation of the case law of quantum meruit.

Recovery in quantum meruit, or quasi-contract, is a substitute for recovery on an express contract. (Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1032.) Where there is no contract in fact upon which liability may rest, a party may recover in quantum meruit where the other party has received a benefit for which justice requires payment. (Paradise v. Augustana Hospital & Health Care Center (1991), 222 Ill. App. 3d 672, 677; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 626.) Recovery in quasi-contract requires a reasonable expectation that the other party would pay for the services rendered. (Paradise, 222 Ill. App. 3d at 677; Prodromos, 202 Ill. App. 3d at 1032.) Thus, quantum meruit is not a vehicle by which a party who has made a bad agreement may ask a court to change the terms of the contract to fulfill that party’s subjective expectations. Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 360.

We conclude that quantum meruit has no application to this case. Here the parties agreed that defendant would be compensated by commission upon a sale of which he was the procuring cause. There was no reason for either party to expect that defendant would be compensated for time he expended in preliminary investigation or negotiations. Defendant gives us no reason to upset the trial court’s finding that defendant, a licensed professional who drew up the offers to purchase, assumed the risk that he would not be compensated if the parties’ honest efforts failed to produce the benefit that plaintiff sought.

Directly on point is Van C. Argiris & Co. v. F M C Corp. (1986), 144 Ill. App. 3d 750, a case that neither party has cited. In Argiris, the plaintiff real estate broker sought to recover for the value of preliminary services it rendered to defendant, a seller that later selected another broker as its exclusive agent. Although the defendant eventually sold the property, the evidence showed that the second broker, not the plaintiff, procured the sale. The plaintiff made some efforts on the defendant’s behalf, but these efforts did not lead to finding the defendant a ready, willing, and able buyer.

In holding that the plaintiff could not recover in quantum meruit for its services, the appellate court noted that, customarily, brokers are compensated only when they present ready, willing, and able buyers; preliminary activities such as showing properties and making telephone calls are not a separate benefit for which clients are liable even if the broker never procures a buyer. (Argiris, 144 Ill. App. 3d at 753-55.) The court explained that, although these preliminary services might have some value to the client, they were of no benefit in a legal sense to the client. (Argiris, 144 Ill. App. 3d at 754-55.) The court concluded, in reasoning equally applicable to the relationship between the buyer and the buyer’s broker here, that “[wjhere *** preliminary services are rendered to gain a business advantage with the expectation of obtaining a hoped-for contract, without any reasonable anticipation on the part of either the plaintiff or the defendant that reimbursement will directly result, quasi-contractual relief is unwarranted.” Argiris, 144 Ill. App. 3d at 755.

As we find no error in the trial court’s factual findings or conclusions of law, the judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

GEIGER and COLWELL, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERN ALAN SMITH, Defendant-Appellant.
    Second District
    No. 2—91—0063
    Opinion filed November 9, 1993.
    G. Joseph Weller, Paul Rogers, and Ingrid L. Moller, all of State Appellate Defender’s Office, of Elgin, for appellant.

      Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A jury in the circuit court of Ogle County found defendant, Vern Alan Smith, guilty of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12-16(d) (now 720 ILCS 5/12-16(d) (West 1992))). Defendant appeals, contending that the court erred in denying his motion for discharge for failure to receive a speedy trial (Ill. Rev. Stat. 1991, ch. 38, par. 103-5 (now 725 ILCS 5/103-5 (West 1992))) and that the court erred by ordering defendant to pay restitution to the victim’s mother and her mother’s business partner.

Defendant was arrested on April 4, 1990. On April 5, defendant filed a speedy trial demand. The State filed a motion for blood, hair, and saliva specimens and set it for hearing on May 14, 1990. On May 11, defendant filed a response to the motion, asserting that the State needed to allege more specific facts to establish the reasonableness of the motion. On May 30, the court denied the motion but allowed the State to file another. The court and the attorneys then discussed setting a trial date. The following colloquy occurred:

“MR. FISCHER [defense counsel]: Your Honor, I mean we’re prepared to set the matter for trial in August on the August jury call.
MRS. MINNIS [prosecutor]: Well, we’ll be asking for a motion hearing date to be in the next week or two and if Mr. Fischer is going to be gone in two weeks—
MR. FISCHER: The week of June 11 is the week I’m gone. I’m willing to participate anytime before then.
* * *
THE COURT: Well, if it’s on the Defendant’s motion, you haven’t got any problem.
MR. FISCHER: On Defendant’s motion.
THE COURT: To set it in August.
* * *
THE COURT: I can set it on the July jury call.
MR. FISCHER: I don’t think we’ll be ready, but I have no, [sic] we can be ready by August.
THE COURT: Are you going to make a motion.
MR. FISCHER: I’ll make that motion.
THE COURT: Okay.
MR. FISCHER: To set it on the August jury call.
THE COURT: Okay. Defendant’s motion to continue until August 6.”

On June 8, a different judge granted the State’s second motion for blood, hair and saliva samples.

The State then filed two motions for continuances because it could not get the necessary testing of the samples completed. On September 28, 1990, the court heard the State’s third motion for a continuance. Defendant objected due to the State’s failure to have the DNA testing completed. The court continued the cause to November 5 and granted the State leave to file a motion to extend the speedy trial time pursuant to section 103 — 5(c) (Ill. Rev. Stat. 1991, ch. 38, par. 103-5(c) (now 725 ILCS 5/103-5(c) (West 1992))).

On October 9, the court heard the State’s motion for extension of the speedy trial time in order to complete the DNA testing. The State argued that the motion was not strictly necessary at that time, since the 160-day period provided in the statute had not yet expired. Defendant argued, however, that the time had already expired and that the State should not be allowed to file an application for extension at that time. Defendant further contested the State’s diligence in obtaining the DNA evidence. Defendant moved for discharge pursuant to the speedy trial statute.

The court determined that the 160 days had not expired. It therefore declined to entertain the State’s motion for extension and denied defendant’s motion for discharge.

On October 26, relying on section 103 — 5(c), the State requested a further continuance because its expert witness was going to be out of town on vacation. On November 2, the court granted the State’s motion for an extension of the speedy trial period. Defendant renewed his motion for discharge, asserting that 167 days had passed. The court instructed defendant to file a written motion.

On December 4, the cause was called for trial before Judge Lenz. Prior to jury selection, defendant again renewed his motion for discharge. Judge Lenz denied the motion, stating that it would be inappropriate for the court to rule on a motion which had already been ruled on by another judge, apparently referring to the denial of defendant’s original motion on October 9.

The cause proceeded to trial beginning on December 5. The jury found defendant guilty. The court sentenced him to five years’ imprisonment and ordered him to pay restitution to the “victim named in the charge and to such other victims who suffered out-of-pocket expenses and loss proximately caused by [defendant’s] criminal conduct.” The court also denied defendant’s post-trial motion in which he raised the speedy trial claim. Defendant then perfected this appeal.

Defendant contends on appeal that the trial court violated his right to a speedy trial and erred by ordering restitution to the victim’s mother. Regarding his speedy trial claim, defendant notes that 211 days passed between the filing of his speedy trial demand and the granting of the State’s motion for an extension on November 2. He contends that since only 35 days of the delay were attributable to him, he was entitled to be discharged. The State responds that a total of 84 days were chargeable to defendant and, therefore, the time had not expired when the court granted its motion for extension.

Section 103 — 5 provides that a defendant who is free on bond must be brought to trial within 160 days unless the delay is occasioned by the defendant. (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5(b) (now 725 ILCS 5/103 — 5(b) (West 1992)).) This provision implements the right to a speedy trial guaranteed by the United States and Illinois Constitutions (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8) although the statutory and constitutional protections are not necessarily coextensive. (People v. Bowman (1990), 138 Ill. 2d 131, 136; People v. Lendabarker (1991), 215 Ill. App. 3d 540, 552.) On a motion to dismiss for violation of the statutory right to a speedy trial, defendant bears the burden of establishing a speedy-trial violation. The trial court’s ruling on a motion to dismiss is entitled to much deference and will be sustained absent a clear showing that the court abused its discretion. Bowman, 138 Ill. 2d at 137; Lendabarker, 215 Ill. App. 3d at 552.

The issue here is how much of the pretrial delay was attributable to defendant. A delay is attributable to defendant where his act in fact causes or contributes to the delay. (Bowman, 138 Ill. 2d at 140; Lendabarker, 215 Ill. App. 3d at 553.) An express agreement on the record to a continuance is an affirmative act attributable to the defendant. People v. Turner (1989), 128 Ill. 2d 540, 553; People v. Reimolds (1982), 92 Ill. 2d 101, 106.

In the present case, defendant and the State dispute two distinct periods: the 16-day delay from May 14 to May 30 occasioned by defendant’s objection to the State’s motion for blood, hair, and saliva samples and the 68-day delay between May 30 and the first scheduled trial date of August 6. We first discuss the 68-day delay because, if this delay is attributable to defendant he was tried within 160 days, even if the disputed 16-day period is charged to the State.

The 68-day delay involves the time between May 30, when the court denied the State’s first motion for blood, hair, and saliva samples, and the first trial date, which was set for August 6. The court set the August 6 date at the conclusion of the May 30 hearing. An examination of the portions of the transcript shown above clearly reveals that defendant not only agreed, but affirmatively requested, that the trial date be set in August. During the colloquy between the attorneys and the court, defense counsel explicitly moved that the trial date be set on the August trial call. The court offered to set the case on the July call, but defense counsel replied that he could not be ready for trial by July. Thus defendant requested the continuance of the cause until August.

Defendant now contends, however, that only the 35 days between the July 2 jury call and the August 6 jury call should be chargeable to him. He argues that on May 30 the State demonstrated its intention to file another motion for the samples. According to defendant, the timing of this motion made it clear that the State would not have been ready to try the case until at least July, anyway.

Defendant’s argument ignores the established rule that even express consent to or acquiescence in a continuance constitutes delay attributable to defendant. (Turner, 128 Ill. 2d at 553.) If there are two reasons for a delay, one attributable to the State and one to defendant, the fact that the delay was partially attributable to defendant will be sufficient to toll the statutory term. People v. Oakley (1982), 109 Ill. App. 3d 165, 169.

People v. Turner (128 Ill. 2d 540) presents a fact pattern similar to that of this case. In Turner, the parties attended a hearing on April 8. At that time, defendant and his attorney consented to a June 2 trial date. On May 29, however, defendant filed a motion for discharge under the Speedy Trial Act (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5). The court conceded that it would have been unable to hear the case earlier, but found that defendant agreed to the June 2 setting. The supreme court affirmed the trial court’s ruling that defendant contributed to the delay. Turner, 128 Ill. 2d at 553.

In the instant case, defendant clearly consented to the August 6 trial setting. Although it may be true that the case could not have been tried between May 30 and July 2, defendant’s agreement to the date was a concurrent cause of the delay and was properly charged to defendant for purposes of computing the speedy trial term. Subtracting those 68 days from the 211 elapsed days between April 5 and November 2 means that defendant was brought to trial in 143 days, within the statutory period. Therefore, we need not consider the State’s argument concerning the additional 16-day period. Defendant does not raise any issue concerning the granting of the State’s motion for an extension of time on November 2. Thus, the court did not err in denying defendant’s motion for discharge on the basis of the speedy trial statute.

Defendant next contends that because the victim’s mother and her business partner do not fit the definition of “victim” for purposes of restitution, the trial court erred by ordering him to pay restitution to them. The State has confessed error as to this point. Although an agreement of the parties does not control the judicial function of this court (Chapman v. Salvador (1966), 71 Ill. App. 2d 345, 346), we agree with the parties and therefore vacate the relevant portion of the trial court’s order.

Although any concerned parent is victimized when his or her child is victimized (nowhere more so than in a case of sexual abuse), the relevant statutory definitions of “victim” presently do not embrace injured parents. Article 12 of the Illinois Criminal Code defines “victim” as “a person alleging to have been subjected to an offense prohibited by [code sections addressing sexual abuse and sexual assault].” (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(g) (now 720 ILCS 5/12 — 12(g) (West 1993)).) While the innocent parent of a sexually abused child may be said to have been subjected to the effects of the crime, to include the parent in this definition of victim would misprize the suffering which the child has survived.

For the foregoing reasons, the order of the circuit court is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

DOYLE and COLWELL, JJ., concur.


author: JUSTICE LYTTON

text:
    CLIFFORD R. FISHER, Plaintiff-Appellant, v. STATE BANK OF ANNAWAN, Defendant-Appellee.
    Third District
    No. 3—92—0846
    Opinion filed August 24, 1993.
    — Modified on denial of rehearing October 22, 1993.

      Barash, Stoerzbach & Henson, of Galesburg (John W. Robertson, of counsel), for appellant.
    William E. Stewart, of Kewanee, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Plaintiff Clifford R. Fisher (Fisher) held certificates of deposit (CDs) in joint tenancy with his sons, Robert and Harold, at the defendant State Bank of Annawan (Bank). Robert was personally indebted to the Bank. When he filed bankruptcy, the bank set off Robert’s personal indebtedness against the CDs. Fisher filed this action alleging conversion of funds and seeking reformation of the CDs and the Bank’s signature card. Following a bench trial, judgment was entered in favor of the Bank. We reverse and remand this cause for the calculation of damages.

Fisher is a retired farmer who has done business with the State Bank of Annawan since 1932. For many years, he owned CDs which, upon maturity, he would renew. In 1979, Fisher added his sons’ names to the CDs, as joint tenants. In 1990, Fisher owned five CDs at the Bank, in joint tenancy with his sons, Robert and Harold. Robert was indebted to the Bank personally for a number of farm loans. He filed bankruptcy on August 28, 1990. The Bank then set off $61,845.97 of Robert Fisher’s personal indebtedness against the five joint CDs. All of the CDs were issued pursuant to a Bank signature card. The CDs contained no reference to any right of setoff, and the signature card contained no such reference. Neither Robert nor Clifford Fisher ever pledged any of the CDs to the Bank as security for Robert’s debt.

The only mention of setoff was on the loan documents signed by Robert. From 1986 through 1989, he signed 18 notes that included a setoff clause, which provided, in pertinent part, that the Bank could:

“before or after Default exercise its right to set-off all or any portion of the indebtedness evidenced hereby against any liability or indebtedness of the Lender to the Borrower (whether owned by the Borrower alone or in conjunction with any other person or entity, provided that it’s Borrower has a beneficial interest therein) without prior notice to the Borrower. This right applied to and includes but is not limited to any funds on deposit with the Lender, provisionally, in escrow (subject to the terms of any special agreement therefore) for collection, or in any time or open accounts ***.”

On September 21, 1990, Fisher filed this suit alleging conversion of the funds and, in the alternative, reformation of the CDs and the signature card. After hearing the evidence and the arguments of counsel, the trial judge entered judgment in favor of the Bank.

On appeal, Fisher first argues that the doctrine of “mutuality” should be extended to joint accounts, and that the Bank’s setoff against the CDs was wrongful because there was no mutuality between the CDs and Robert’s individual indebtedness. He asserts that the Bank’s right to set off is not absolute. We agree.

The general rule in Illinois is that a bank may set off a depositor’s account for a debt. However, “The application of the deposit, which is called a setoff, is only proper when the debts are mutual between the parties.” (First National Bank v. Lewis (1989), 186 Ill. App. 3d 16, 19, 542 N.E.2d 124.) Our supreme court has long held the partnership accounts cannot be set off against the debt of one partner on the basis of mutuality.

“[A] bank has a right of set-off, as against a deposit, only when the individual who is both depositor and debtor, stands, in both these characters alike, in precisely the same relation, and on precisely the same footing, towards the bank, and hence an individual deposit can not be set-off against a partnership debt.” International Bank v. Jones (1887), 119 Ill. 407, 410, 9 N.E.2d 885.

The right of setoff is not without limit. “[W]hen a bank has either actual or constructive notice that a beneficial ownership of an account lies outside the legal title, the bank may not deal with the account’s contractual owner to the detriment of the equitable owner.” (In re Estate of Muhammad (1984), 123 Ill. App. 3d 756, 759, 463 N.E.2d 732.) Furthermore, knowledge that a depositor’s business customarily requires the handling of funds in which others have an interest, together with cognizance of circumstances which tend to individualize a deposit or line of deposits, may constitute notice of facts sufficient to put the bank upon inquiry as to the true nature of the deposit. Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, 23, 518 N.E.2d 1345.

A bank’s right of setoff is not coextensive with its right to recover. (Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 208, 246 N.E.2d 96.) For example, “a bank is not entitled to exercise its right of setoff against an individual partner’s deposit for a partnership debt.” First National Bank, 186 Ill. App. 3d at 21.

Applying the foregoing authority to this case, we conclude that the Bank’s setoff was improper since there was no mutuality between the parties. In his capacity as depositor and debtor, Robert did not stand in precisely the same relation and on precisely the same footing towards the Bank. Robert signed his notes in an individual capacity, while he held the CDs jointly with his father and brother. Similarly, while Clifford Fisher stood as a joint depositor on the five CDs, he was not a debtor toward the Bank, much less a debtor “in precisely the same relation, and on precisely the same footing.” International Bank, 119 Ill. at 410.

Notwithstanding the foregoing authority, the Bank relies on Pescetto v. Colonial Trust & Savings Bank (1986), 111 Ill. 2d 314, 489 N.E.2d 1365, Selby v. DuQuoin State Bank (1991), 223 Ill. App. 3d 104, 584 N.E.2d 1055, and Pacenta v. American Savings Bank (1990), 195 Ill. App. 3d 808, 552 N.E.2d 1276. We find both these cases to be distinguishable and inapplicable to this case. In Pescetto, the individual borrower explicitly pledged a joint savings account as collateral for a loan, which the bank properly claimed as security after default. (Pescetto, 111 Ill. 2d at 315-16.) In the instant case, Robert gave the Bank no security interest in the CDs. In fact, the Bank’s vice-president testified that the decisions the Bank made in terms of loaning money to Robert were not in any way affected by the CDs. Thus, unlike Pescetto, this case does not involve the pledging of collateral.

Next, the Bank asserts that Selby v. DuQuoin State Bank indicates that the fifth district has a different view of mutuality than we do. On the contrary, we believe the analysis in Selby is absolutely correct based on the facts in that case. The common law right of set-off may be applied when there are mutual demands and debts between the parties. (See Selby, 223 Ill. App. 3d at 107.) In Selby, both depositors to the joint account signed a signature card which contained a setoff provision. (Selby, 223 Ill. App. 3d at 106, 109.) In this case, no such contractual relationship existed; neither the CDs nor the signature card contained any reference to the right of setoff.

Also, as noted above, the rights of the parties may be affected if the Bank has notice of equitable ownership of the funds or the existence of circumstances which tend to individualize a deposit or line of deposits. In Selby, both holders of the account made deposits and withdrawals. (Selby, 223 Ill. App. 3d at 106.) In this case, however, it was beyond dispute that the money in the CDs belonged to, and was under the exclusive control of, Clifford Fisher.

The Bank’s reliance upon Pacenta v. American Savings Bank is also misplaced. First, Pacenta is factually distinguishable. Indeed, the situation is the opposite of that presented here. Plaintiff and her husband held a joint checking account at the bank, which became overdrawn by $3,436.65. The bank then cashed in Pacenta’s personal certificate of deposit, set off $3,436.25 against the debt, and sent a check for the balance to plaintiff. Thus, in Pacenta, individual assets were applied to joint tenancy debt. There was no danger of the misapplication of a nondebtor’s assets to another party’s debt. Second, Pacenta was decided under the Uniform Commercial Code, which was not argued or litigated here and does not apply to these facts. Mutuality was not an issue in Pacenta.

We hold that the doctrine of mutuality applies to joint accounts in the same manner as it applies to partnership accounts. The Bank’s set-off of the joint CDs was improper because of a lack of mutuality. Other States have agreed that the principle of mutuality applies to joint accounts. (See Greenwood v. Bank of Illmo (Mo. App. 1989), 782 S.W.2d 783 (setoff provision applies only to parties who signed provision); City National Bank v. American Surety Co. (Tex. App. 1932), 52 S.W.2d 259 (setoff denied due to no mutuality with joint account); Atkinson v. Federal Deposit Insurance Corp. (5th Cir. 1981), 642 F.2d 145 (interpreting Alabama law).) In light of our holding that mutuality applies in this case, we need not reach the issues raised by appellant concerning reformation of the documents.

Next, we address Fisher’s argument that he is entitled to prejudgment interest and attorney fees. Wrongful appropriation by a bank of a customer’s funds makes the bank liable for prejudgment interest on those funds. (See Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588.) In this case, the plaintiff has suggested three methods for calculating the amount of interest due after the maturity date on the CDs. The first method would simply extend the interest rate established by the then existing CDs beyond their expiration dates. The second method would calculate prejudgment interest on the basis of the prevailing rate at the time that each certificate reached maturity and, presumably, would have been renewed. The final method proposed by the parties would calculate interest based upon section 2 of the Interest Act (815ILCS 205/2 (West 1992)).

In its brief, the defendant Bank asserts that if interest is awarded to Fisher, it should be calculated according to the schedule of interest rates on CDs which would have been paid in the event of renewal. Under the factual circumstances presented in this case, we agree. Fisher has a 20-year history of renewing his CDs. Both parties agree it is very likely he would have renewed them if the Bank had not acted. Fisher testified that the renewal of his CDs was “automatic.” Upon remand, the circuit court should calculate the prejudgment interest according to the prevailing renewal rates.

Finally, Fisher asserts that he is entitled to attorney fees as part of punitive damages for conversion. “A trial court may properly consider as one element of punitive damages the amount of plaintiff’s attorney fees. [Citation.] Attorney’s fees cannot be awarded as a separate entity distinct from punitive damages.” (Glass v. Burkett (1978), 64 Ill. App. 3d 676, 683, 381 N.E.2d 821.) In conversion cases, the awarding of punitive damages is dependent upon a showing of express malice or an actual intent to injure the plaintiff or others. (See Rauwolf v. Travelers Indemnity Co. (1974), 20 Ill. App. 3d 226, 228-29, 313 N.E.2d 504.) After reviewing the record in this case, we conclude that Fisher has not made a sufficient showing to merit the awarding of attorney fees.

For the foregoing reasons, the decision of the circuit court of Henry County is reversed, and this cause is remanded for the calculation of damages in the manner prescribed in this opinion.

Affirmed in part; reversed in part and remanded.

BRESLIN and STOUDER, JJ., concur.