text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN MYERS, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1531
    Opinion filed December 31, 1991.

      Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Maria Kuriakos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Steven Myers, was found guilty of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1), aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2), Defendant was sentenced to concurrent terms of 13 years for attempted murder, 13 years for armed robbery, and 7 years for burglary.

On appeal, defendant contends that (1) he was denied a fair trial where the prosecutor made improper statements in attempting to question the credibility of his testimony; and (2) the trial court erred by allowing the prosecutor to question him about a form he had completed for unemployment compensation; moreover, the prosecutor committed an error in conduct by going beyond the limitation imposed by the trial judge in questioning concerning the information on the unemployment form.

We affirm.

Complainant, John Ziemann, testified that he went to the Tasa Lounge, located on the north side of Chicago, on the evening of April 19, 1987, Easter Sunday. Defendant was tending the bar that evening. Complainant conversed with defendant and two female bartenders who were not working that evening. Complainant had brought between $50 and $60 to the bar that evening; he had $45 with him by the end of the evening. Complainant and defendant stayed until the bar closed, and they both left at the same time. Complainant was driving a red Volkswagen with a license plate that read “ALPENA.”

Complainant testified that defendant entered his car by the passenger side and forced him to drive at knife point. He further stated that he gave defendant $45, his wallet, and his house keys. After driving around, they turned into an alley. Both men left, the car and shortly thereafter defendant stabbed complainant in the right side of the neck. Complainant attempted to flee down the alley, shouting for help, but fell to the ground. Defendant then stood over him and lunged toward his eye with the knife. He was able to prevent the knife from going into his eye, but defendant stabbed him just below the right eye. Complainant was able to again free himself and began running toward the Jewel parking lot where he collapsed after seeing defendant enter his car. Defendant then attempted to run over complainant with complainant’s car. Finally, complainant testified that defendant exited the car, walked over to him, picked him up from the ground by the collar, and stabbed him a second time in the neck. Defendant left the scene, driving complainant’s car.

Juan and Maria Roman testified that they were awakened by screams for help. The witnesses stated that they saw a man get out of a car, lift a second man up by his shirt, and put him back on the ground. They also testified that while Juan Roman called the police, Maria Roman wrote down the car’s license plate, “ALPENA.” The Romans were able to see these events from their third-floor apartment window that overlooked the alley by Jewel food store.

Leonard Green, a paramedic, testified that as he followed a police car into a parking lot, where he attempted to aid complainant, he saw the red Volkswagen being driven away from the area. Complainant was taken to the hospital where he underwent surgery to repair the damage to his neck and under his right eye, and a broken collarbone.

Complainant was able to identify defendant from a police photograph. Defendant was then arrested and brought to Chicago from West Virginia. Thereafter, complainant identified defendant in a lineup.

Defendant testified in his own behalf. He stated that he was a part-time bartender at the Tasa Lounge; that the owner checked the amount of money coming into the bar; and that he had access to a loaded gun.

Defendant further testified that as he began to walk to his apartment, on the evening in question, complainant drove alongside him and offered him a ride. While in the car, complainant told him that he was a “nice-looking” man and that he had been watching him for several weeks. Complainant denied defendant’s request to be let out of the car and, according to defendant, he then reached over and grabbed defendant in the groin area. Defendant testified that he responded by hitting complainant near his right eye.

Defendant stated that he was finally able to get complainant to stop the car in an alley by pretending to have to “use the rest room.” Defendant got out of the car. Then complainant came up behind him and offered him money if he would “be with him.” Defendant refused the offer and would not return to the car. At that point, complainant became enraged, pulled out a pocket knife, and a struggle ensued. The witness stated that he was able to grab the knife when it fell to the ground. He further stated that when complainant came at him, he feared for his life; therefore, he swung the knife at complainant in self-defense. Complainant then fell to the ground, screaming for help. Defendant decided to use complainant’s car to leave the scene. Before leaving, he got out of the car, lifted complainant to see if he was still alive, and then put him down again before driving away.

Defendant also testified that when he arrived at his apartment he awakened his roommate, Howard Walls, and told him about the fight and about complainant’s attempt to fondle him. They talked in detail the next day, and Walls convinced defendant to leave the State without contacting the police. Defendant testified that he was too frightened to call the police and that he stayed with Walls’ ex-wife for a week. Walls gave his ex-wife some money to give to defendant, and defendant used the money to buy a bus ticket to West Virginia, where his mother resides.

The jury found defendant guilty of attempted murder, armed robbery, burglary, aggravated battery, and armed violence. This appeal followed.

The standard to determine the sufficiency of the evidence in criminal cases is proof of guilt beyond a reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) The reviewing court must determine “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. Wilson (1991), 143 Ill. 2d 236, 246, citing Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) Applying this standard, we find that the evidence presented in the case at bar was sufficient to support defendant’s convictions.

Defendant contends that the prosecutor’s “tailoring” argument constituted plain error, thus depriving him of a fair and impartial trial. The plain error exception to the waiver rule is as follows:

“ ‘The purpose of the plain-error doctrine is to correct serious errors which may have denied the accused a fair trial. [Citation.] The doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial.’ ” People v. Judge (1991), 221 Ill. App. 3d 753, 759, quoting People v. Priola (1990), 203 Ill. App. 3d 401, 417.

See also 134 Ill. 2d R. 615(a).

The State’s response is that assuming, arguendo, the statements were improper, the plain error rule still does not apply because the evidence was not closely balanced. The trial court found that the evidence was overwhelmingly in favor of complainant. We agree.

When the police arrived on the scene, complainant had fainted and did not regain consciousness until later in the hospital. Dr. Ritterberry, the emergency room physician, testified as to complainant’s condition when he arrived at the hospital. Paramedic Leonard Green arrived at about the same time as the police and testified as to complainant’s condition at the scene of the crime. At the police station, complainant identified defendant in a photo mug book and again in a five-person lineup.

Mr. and Mrs. Juan Roman were able to see some of what took place from their third-floor apartment window, which faced the Jewel food store’s parking lot. They saw a man lying on the ground. Then they saw the second man get out of a car with the license plate “ALPENA.” He walked over to the man on the ground, picked him up by his shirt, and put him back down. Then this same man returned to the car and drove away.

There were two witnesses testifying for defendant. One witness was the owner of the Tasa Lounge. He testified that defendant had never stolen from him or attacked a customer. The other witness for the defense was a barmaid who had stayed at the bar to visit with a friend after defendant relieved her at the end of her shift. The barmaid testified as to her impressions of complainant as he sat at the bar that evening. She thought that he “didn’t sound right” and that “he talked more like a woman.” Defendant testified in his own behalf; yet, no one was able to corroborate his testimony. He claimed that he was propositioned by complainant and that he injured complainant only as a result of trying to defend himself.

Defendant also testified that he told his roommate, Howard Walls, that he was in a fight with a man who had tried to fondle him and that he had cut the man. However, his roommate testified for the State, and his testimony was that defendant told him he tried to “roll” a man with a lot of money who was at the bar, and that he left him for dead in an alley behind Jewel food store.

Defendant contends that the prosecutor’s statements comparing defendant’s testimony to that of the State’s witnesses resulted in a violation of defendant’s sixth amendment right to be present at trial. Defendant argues that these errors have a cumulative effect that should result in reversible error. “[T]rial errors may have a cumulative effect when considered together.” (People v. Albanese (1984), 102 Ill. 2d 54, 83.) However, defendant has not shown this effect in the case at bar.

Defendant maintains that the prosecutorial comments were such that they encouraged the jury to become advocates of the victim and, thus, distracted the jury from weighing proper factors. Broad discretion is given to a prosecutor with respect to the discussion of witnesses and their credibility. “A prosecutor may express opinions and may even use invective to express those opinions. [Citation.] He may not, however, express an opinion which is not based upon the evidence.” People v. Whitaker (1980), 87 Ill. App. 3d 563, 568.

The trial court found that the prosecutor’s opinions were based on the evidence. Defendant’s decision to testify in his own behalf allowed for him to be judged as to the credibility of his statement, as is the custom with other witnesses. (People v. Malmenato (1958), 14 Ill. 2d 52, 59.) We find that the trial court did not abuse its discretion in this regard.

Defendant specifically alleges that the comments made by the prosecutor during closing argument were improper. Some of the statements at issue are as follows:

“Now, he [defense lawyer] has thrown a lot of mud on the wall against Mr. Ziemann. Portraying Mr. Ziemann as some kind of homosexual molester who happened to use force on this 24 year old ex-Marine.
Mr. Ziemann was victimized on the street when he was knifed and robbed. And he was victimized in this courtroom by this defendant. Right here. Myers.
He knows and knew what was coming up in this courtroom so he has got to do something. Let’s portray the man whos [sic\ 55 years old, single, victimized on the street, victimized in here.
That’s why it is frustrating to be a victim ladies and gentlemen. If your [sic] a rape victim, well, then your [sic] abducted off the street and raped. Well, then you must be a prostitute. Your [sic] 55 years old, you get robbed on the street, well, your [sic] a homosexual.”

The trial court found that the evidence presented was overwhelmingly in favor of complainant and that the prosecutor’s closing argument was permissible. This finding is supported in People v. Hine (1980), 88 Ill. App. 3d 671, where the court stated that “a prosecutor is permitted great latitude in his closing argument [citation], and the trial court’s determination of the propriety of the closing argument will generally be followed absent a clear abuse of discretion.” (Hine, 88 Ill. App. 3d at 679.) Further, in the case at bar, the trial judge cured any prejudice to defendant with his jury instructions concerning opening statements and closing arguments. They are as follows:

“Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the evidence and to reasonable inferences to be drawn from the evidence. Neither opening statements nor closing arguments are evidence and any statement or argument which is not based on the evidence should be disregarded.”

A similar argument was presented in People v. Faysom (1985), 131 Ill. App. 3d 517, where the defendant argued that the trial court errors prejudiced his right to a fair trial. In that case, a jury found the defendant guilty of murder, armed violence, unlawful restraint and pandering. The defendant cited various incidents of prosecutorial misconduct. Among other contentions, the defendant claimed that the prosecutor made references to the victim’s family, improperly related facts not in evidence, and expressed his personal opinion regarding the defendant’s guilt and regarding the credibility of a witness. The court responded as follows:

“Certain remarks made here were improper; however, on balance, defendant was not thereby deprived of a fair trial. In view of the compelling evidence of defendant’s guilt, the remarks could not have been a material factor in his conviction nor would the verdict have been different in their absence.” (Faysom, 131 Ill. App. 3d at 525.)

Given the compelling nature of defendant’s guilt in the case at bar, any constitutional errors would have to be deemed harmless. People v. Arman (1989), 131 Ill. 2d 115, 127, citing United States v. Hasting (1983), 461 U.S. 499, 510-11, 76 L. Ed. 2d 96, 107, 103 S. Ct. 1974, 1981.

Defendant contends that even though defense counsel did not object at trial, this court should recognize the prosecutorial misconduct as plain error since the evidence was not overwhelming. As we have stated, the trial court held to the contrary and we do not consider its finding an abuse of discretion. The law concerning issues on appeal is clear: “[T]he presence of both a trial objection and a written post-trial motion raising the issue are necessary to preserve an issue for review.” (People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Thomas (1991), 215 Ill. App. 3d 751.) Further, the written motion for a new trial should specifically state the grounds therefor. (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1.) Defendant raised no objections to the comments at trial nor did he raise the issue in his motion for a new trial.

Given the evidence presented at trial, we find that the plain error exception to the waiver rule is not applicable to the case at bar. Further, we hold that the trial court did not abuse its discretion in finding that the evidence presented was overwhelmingly in favor of complainant.

Defendant’s second argument on appeal is that the trial court erred in allowing the prosecutor to question him about an unemployment application that he had completed and that the prosecutor committed an error in conduct by ignoring the trial judge’s warning not to elicit testimony that implied defendant had lied on the application. Defendant contends that the prosecutor’s questioning concerning the form was more prejudicial than probative. As with the first issue, defendant had the opportunity to object at trial and to specifically preserve the issue with a written motion for a new trial. However, defendant chose neither of these options; therefore, the issue is waived on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Thomas (1991), 215 Ill. App. 3d 751.

Defendant contends that the information elicited by the prosecutor with respect to the unemployment compensation form was irrelevant and an improper attempt to impeach defendant’s testimony that he was afraid to contact anyone after the incident. The scope of cross-examination is quite broad. “[W]here a witness’ credibility is a crucial issue, the trial court should permit the parties wide latitude in impeaching and rehabilitating the witness’ credibility so that the jury can gain access to all the necessary information and impressions in order to accurately evaluate credibility of the witness.” People v. Fairbanks (1986), 141 Ill. App. 3d 909, 915.

A side-bar was called in response to the prosecutor’s questioning concerning the unemployment compensation form that defendant had completed 10 days after the attack. During the side-bar, the judge decided to allow the prosecutor to question defendant about the form in a limited fashion. Questioning as to defendant’s alleged crime of lying on the unemployment compensation form was forbidden. The prosecutor’s questioning was in support of the State’s argument that defendant lied about being too frightened to call the police after he attacked defendant. The State wanted to support its theory by showing that defendant was not too afraid to look for work. The trial court found that the prosecutor’s questions were within the scope of relevant cross-examination. The trial court did not abuse its discretion in finding that the conduct of the prosecutor was proper with respect to questioning and closing argument.

For the foregoing reasons, we affirm the ruling of the trial court.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    LORRAINE D. MENEWEATHER, Plaintiff-Appellant, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—3632
    Opinion filed July 17, 1992.

      Karyn Glass and Joan Matlack, both of Legal Assistance Foundation of Chicago, of Chicago, for appellant.
    Iris E. Sholder and Percival Harmon, both of Chicago, for appellees.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Lorraine Meneweather appeals from the decision of the circuit court which affirmed the Board of Review’s (the Board’s) determination that she was not entitled to unemployment compensation benefits due to her discharge for misconduct in connection with her employment as a probationary lunchroom attendant for the Chicago Public Schools (CPS). Meneweather contends that her alcoholism prevented her from acting “deliberately and wilfully” so as to have committed misconduct as defined by the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)) or, alternatively, that she was denied a full and fair administrative hearing as the hearing referee neglected to request evidence and document the record as to her alcoholic condition. For the reasons stated below, we reverse the decision of the circuit court.

Following are the pertinent facts. Meneweather worked as a lunchroom attendant for the CPS from October 24, 1984, until October 7, 1988, when she was fired for excessive tardiness and absenteeism. Meneweather was first put on notice that her job was in jeopardy in June 1988. The record contains no documentation of complaints regarding her attendance prior to this time. In June 1988, a disciplinary conference was held at which Meneweather disclosed her drinking problem. A three-day suspension ensued. Additionally, Meneweather was advised that Jerry Hodges, the drug counselor for the Board of Education, would be contacting her regarding her alcohol problem. This meeting did not occur until September. At that time Hodges did not advise Meneweather of the Board of Education’s substance abuse program (the EAP program), but merely advised her to see her own doctor. The testimony adduced by the hearing officer indicated that Hodges would have referred Meneweather to the EAP program if she had initiated such a request. Meneweather testified that she did not know about the treatment program, and so did not ask Hodges about it. Thereafter, Meneweather set up an appointment with her own physician for October 6, 1988, at which time she was referred to an AA program which she completed at her own expense. On October 7, 1988, CPS decided to fire Menewather because of her excessive absenteeism and tardiness, although the CPS representative at the administrative hearing admitted that if Meneweather had entered an alcohol treatment program prior to her discharge, something could have been done to help her keep her job.

Soon after being fired, Meneweather applied for unemployment benefits. The claims adjudicator denied her claim after finding that Meneweather’s discharge was for misconduct which was within her control. Meneweather appealed that decision and appeared at the referee’s hearing pro se. During that hearing she testified that she had completed an alcohol treatment program at her own expense, and further alleged that her alcohol problem had caused her to be late for work, at least on October 6, 1988. The referee made no findings regarding Meneweather’s alleged alcoholism or whether her illness caused her tardiness. He nonetheless affirmed the denial of benefits, holding that Meneweather’s tardiness of October 6, 1988, “was a deliberate violation of employer rules *** [and that] it was the claimant’s responsibility to resolve any personal problems.”

With the assistance of counsel, Meneweather appealed from the referee’s decision to the Board, contending that her alcoholism was a disease which in effect rendered her tardiness beyond her control and therefore negated the required “wilfullness” on claimant’s part to establish misconduct. In affirming the referee’s decision, the Board found that claimant had not established her alcoholic condition by competent medical evidence as required by Illinois law. In conclusion it cited a previous Board of Review decision (October 2, 1985), docket No. ABR — 85—131—FE, in which it held that “when competent medical evidence establishes that an individual suffers from a disease, an individual’s discharge, as a result of the effects of that disease, will not constitute a discharge for misconduct. The Unemployment Insurance Act does recognize alcoholism to be a disease.”

The circuit court affirmed the decision of the Board as not contrary to law or to the manifest weight of the evidence.

On appeal, Meneweather argues as she did to the Board and the circuit court, that the decision to deny her unemployment compensation benefits was in error and should be reversed as she did not commit misconduct since her tardies and absences were due to alcoholism and were therefore beyond her control. Alternatively, Meneweather contends, as she did before the Board and the circuit court, that she was denied a full and fair evidentiary hearing by the referee at the administrative hearing. In this regard she requests a remand so that she may submit the additional required evidence.

On administrative review, we must determine whether the agency’s decision is against the manifest weight of the evidence or contrary to law. (Barron v. Ward (1987), 165 Ill. App. 3d 653, 517 N.E.2d 591.) Although case law supports claimant’s argument that the Unemployment Insurance Act (Ill. Rev. Stat. 1983, ch. 48, par. 300) is to be liberally construed in order to provide benefits to individuals to alleviate their economic distress that was caused by involuntary unemployment (Popoff v. Department of Labor (1986), 144 Ill. App. 3d 575, 494 N.E.2d 1266), and although claimant does submit case law both from Illinois and other jurisdictions indicating that alcoholism is a medically recognized disease, and that a person suffering from this disease may not have control of his own free will in order to deliberately commit the degree of misconduct which would serve to deprive him of unemployment compensation benefits, this does not alter the fact that the record before this court contains no medical evidence of claimant’s alcoholism. Nor does it contain evidence linking claimant’s absences and tardies to her alcoholic condition. Nor does it contain evidence indicating whether claimant was voluntarily able to control the behavior which led to her dismissal from employment. Because the record before us is so woefully lacking in pertinent information, we are unable to evaluate claimant’s argument that she did not commit misconduct because the absences and tardies were due to alcoholism and were therefore beyond her control. A reversal on these grounds would therefore be inappropriate.

Meneweather’s second argument, that she was denied a full and fair evidentiary hearing because the hearing referee failed to adequately develop the record, has more merit. The Illinois Unemployment Act requires that upon appeal of a determination of ineligibility, a “Referee *** shall afford the parties reasonable opportunity for a fair hearing.” (Ill. Rev. Stat. 1989, ch. 48, par. 471.) A “fair hearing” entitles the claimant to a full and impartial hearing, and the conduct of the hearing must be in accordance with the fundamental rights of due process. (See Flores v. Board of Review (1979), 74 Ill. App. 3d 667, 393 N.E.2d 638.) As part of the referee’s duty to afford a fair hearing, he must assure that the record in cases involving pro se parties is fully developed. The Illinois Department of Employment Security’s (IDES’s) own regulation mandates that a referee shall take an active role in developing the record to protect the claimant’s right to a full and fair hearing:

“Following the testimony of each witness, the witness may be *** questioned by the Referee, if necessary, to ensure clarity and completeness of the record. The Referee shall ensure that the parties have full opportunity to present all evidence and testimony to the factual and/or legal issues on appeal.” (56 Ill. Adm. Code §2720.245(c)(1985).)

Although no Illinois case explicitly analyzes the extent of the referee’s duty to solicit material evidence, Illinois courts have recognized that such a duty exists. In Flores, the court held that the referee had failed to develop a full record when he failed to ask a pro se claimant more than a few questions about his work search, and remanded the case finding that the referee had breached the duty to afford plaintiff an adequate opportunity to present evidence in support of her claim. The Board itself has held that the referee must investigate the relevant facts and develop the record. In one decision, the Department of Employment Security’s Board of Review (July 16, 1985), docket No. 85 — 13RD—05334, held that the referee had failed to provide a full and fair hearing to a pro se claimant when he failed to contact a relevant witness; in another Board of Review decision (September 30, 1985), docket No. ABR — 85—3858, it was found that the referee had failed to ask relevant questions regarding the employee’s claims of retaliatory discharge, thus rendering the record inadequate. These cases indicate that the referee has an affirmative duty to ensure that a complete record is made.

In the case at bar, Meneweather had been discharged for absenteeism and tardiness. The record contained testimony regarding her drinking problem and the unsuccessful efforts of the Board of Education to provide her with counseling assistance. There was also Meneweather’s own testimony regarding treatment by a private physician and the AA program. The combination of this evidence was, in our opinion, sufficient to trigger the referee’s duty to participate in additional questioning and taking of evidence regarding the claimant’s alleged alcoholic condition and her volitional capacity to commit the misconduct which resulted in the denial of unemployment compensation benefits.

For the aforementioned reasons, we reverse and remand to the circuit court with instructions to order the Board of Review to institute further proceedings consistent with the views expressed herein.

Reversed and remanded.

LORENZ and MURRAY, JJ., concur.

      The applicable statutory authority provides as follows: “An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work ***. *** For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work ***.” Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

      The referee did not fully develop whether drinking problems had accounted for all of Meneweather’s tardies. The record, as documented, contains references to only five such instances, although the referee notes that there were occurrences before May 1988. The violations noted in the file are as follows:
      “September 12,1988: called in absent (cramps)
      September 15,1988: ten minutes late
      September 19,1988: fifteen minutes late
      September 20, 1988: her mother and daughter waited for her to get off her job and she was going to leave her job with dirty dishes in the sink.
      October 6: late arrived at 9:04 and starting time was 8:30.”


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT BROWN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—2214
    Opinion filed January 20, 1993.
    Rehearing denied September 7, 1993.

      Michael J. Pelletier and Elizabeth E. Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Miles J. Keleher, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and sentenced to 30 years' imprisonment.

On appeal, defendant raises three issues: (1) the trial court’s refusal to allow defendant to present evidence of his exculpatory first oral statement after a State witness testified to his incriminating second oral statement; (2) the sufficiency of the evidence to prove defendant guilty beyond a reasonable doubt; and (3) the propriety of his 30-year sentence.

For the reasons which follow, we affirm defendant’s conviction and sentence.

Initially we note that this case comes to us after a second trial. Defendant’s conviction following his first trial was reversed by the appellate court in People v. Brown (1988), 171 Ill. App. 3d 993, 525 N.E.2d 1119.

Defendant did not testify at trial or present any witnesses. By stipulation, the State introduced the testimony of Eddy Santana, who stated that he and Reynaldo Reyes, the victim, went to the gas station about 7:30 p.m. to put air in Santana’s flat bicycle tire. After using the air hose, Santana heard an explosion as the victim attended to an air pump. The victim then walked a few steps and fell.

Three occurrence witnesses (Victor Perea, Nina Colon, and Andy Vasquez) testified on behalf of the State. Their testimony essentially revealed the same sequence of events which resulted in the fatal shooting of the victim, Reynaldo Reyes, about 7:30 p.m. on June 30, 1983, at a gas station located on Western Avenue.

Victor Perea testified that he was playing cards with his sister, Nina Colon, on the third floor of a building overlooking Western Avenue. Looking out the window, Perea could see defendant and his companion, Jose Berrios, walking down the street “constantly looking around like they were casing the area.” Perea observed that it was “strange they were walking down Western” because it is the borderline of two rival gangs, the Latin Kings and the Latin Disciples, and “usually nobody walks down the street unless you are going to get hurt.” Perea observed that defendant, whom he knew as a member of the Latin Kings, was walking on the side of the street that was the “turf” of the Latin Kings. Perea did not see a weapon in defendant’s possession.

Nina Colon corroborated her brother’s testimony and added that she saw defendant and Berrios “looking into the gas station” at two individuals who were by the air pumps. Colon saw defendant, whom she had known for four years, and Berrios talking and walking side by side around the gas station. A few minutes later, Colon saw defendant and Berrios kneeling behind a billboard at a railing still peering into the gas station. From her vantage point, Colon next saw one of the individuals at the air pump stumble and fall to the ground.

Andy Vasquez testified that at the time of the shooting he was sitting on the back porch of his second-floor apartment, which is next to the gas station with only a gangway between his apartment and the gas station. A link fence with broken slats surrounded part of the gas station. A guardrail and a billboard ran at an angle across the gas station.

Vasquez focused his attention on two people, later identified as defendant and Berrios, who were walking through the gangway into the alley. Vasquez also saw the two young men, i.e., Santana and the victim, in the gas station fixing a bike wheel. Vasquez watched as defendant and Berrios proceeded to walk around the vicinity of the gas station until they reached a guardrail. Defendant jumped over the guardrail, looked in the direction of Santana and the victim, jumped back over the guardrail, talked to Berrios, and headed to the billboard. While Berrios crawled underneath the billboard and peeked in the direction of the air pump, defendant looked through the broken fence until Berrios joined him. Vasquez then heard an explosion, saw defendant and Berrios run, and saw the victim tumble and fall. Vasquez did not see a gun.

Assistant State’s Attorney Ferdinand Minelli testified that he interviewed defendant at the police station on July 14, 1983, while investigating the victim’s death. At this time, defendant recounted the events of the day of the shooting.

About 1 p.m. Berrios picked up defendant at his house and they went to a swimming pool. Defendant knew that Berrios had a loaded handgun and had seen Berrios place the gun in his waistband. After spending about two hours at the swimming pool, defendant and Berrios were returning home when they encountered two individuals, who made a sign which represented the Latin Disciples gang. In response, defendant and Berrios represented the sign for the Latin Kings gang. While holding his hand to his waistband where the gun was, Berrios stepped toward the two individuals, who then ran away. Defendant and Berrios also began to run home until they saw two other individuals, later identified as Santana and the victim, whom they knew to be Latin Disciples.

Defendant and Berrios ran in the direction of the gas station and Berrios called out “Come on. Let’s go. Let’s go.” Defendant stated that he knew from Berrios’ exclamations that Berrios was going to shoot the individuals at the gas station. Eventually, defendant and Berrios hid behind a fence looking into the gas station at the two individuals at the air pump. Defendant stated that Berrios then fired the gun and they ran away.

At the close of the State’s case, defendant made a motion for a directed verdict. Following the denial of this motion, the defense rested without introducing any evidence.

On appeal, defendant first asserts that the trial court erred when it refused to allow Assistant State’s Attorney Minelli to be cross-examined regarding defendant’s first oral statement, which was allegedly exculpatory and given to Sergeant Healy and Detective Ciangi at the police station. Defendant maintains that such evidence was admissible under the completeness doctrine as part of a continuing statement, parts of which were introduced. We disagree.

The record reveals that defendant made two oral statements at the police station. The first statement was given to Sergeant Healy and Detective Ciangi. Approximately V-k hours later, defendant made a second oral statement to Assistant State’s Attorney Minelli and Detective Ciangi.

A statement made by an accused in custody after his arrest that is offered in his favor is not an admission but rather is hearsay and, as such, a party is excluded from proving his own out-of-court statements. People v. Young (1990), 206 Ill. App. 3d 789, 811, 564 N.E.2d 1254; People v. Dunum (1989), 182 Ill. App. 3d 92, 99, 537 N.E.2d 898; People v. Westefer (1988), 169 Ill. App. 3d 59, 63, 522 N.E.2d 1381.

The completeness doctrine is an exception to the hearsay rule and provides that a party may introduce the balance of a writing or an oral statement which has been introduced by an opponent for the purpose of explaining, qualifying or otherwise shedding light on the statement. (People v. Allen (1992), 228 Ill. App. 3d 149, 154, 592 N.E.2d 447.) However, the completeness doctrine restricts the admissibility of the balance of a statement already introduced “ ‘to what was said on the same subject at the same time.’ ” (People v. Hudson (1990), 198 Ill. App. 3d 915, 924-25, 556 N.E.2d 640, quoting People v. Hosty (1986), 146 Ill. App. 3d 876, 884, 497 N.E.2d 334.) Moreover, the completeness doctrine does not apply if the testimony to which reference was made was not a part of the conversation the opposing party is attempting to introduce on cross-examination. People v. Harman (1984), 125 Ill. App. 3d 338, 342, 465 N.E.2d 1009.

The parameters of the completeness doctrine do not stretch as far as urged by defendant in the present case. The first oral statement was neither made at the same time as the second statement nor was it a part of the same conversation with the same people. (People v. Nicholls (1992), 236 Ill. App. 3d 725 (the doctrine of completeness was not applicable where the two statements at issue could not be considered contemporaneous since there was.about a two-hour time difference between them).) In re W.D. (1990), 194 Ill. App. 3d 686, 551 N.E.2d 357, the case relied on by defendant, is easily distinguished from the case at bar. There the questions posed during cross-examination related to the same conversation between the same people as disclosed during direct examination. Since no such unity of time and participants is shown here, the trial court did not err in excluding evidence regarding defendant’s first oral statement.

Defendant next asserts that the proof was only circumstantial and that the testimony of the three eyewitnesses merely placed him near the scene of the murder and thus the evidence was insufficient to prove him accountable for murder.

The State contends that it proved defendant’s accountability by establishing that he had the specific intent to promote or facilitate the commission of the offense and that he knowingly aided Berrios in the planning and commission of the offense. We agree.

A reviewing court confronted with a challenge to the sufficiency of evidence does not determine whether it finds guilt beyond a reasonable doubt, but rather considers 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 offense beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461.) The jury evaluates the inferences to be drawn from the evidence, assesses the credibility of the witnesses, determines the weight to be given their testimony, and resolves any evidentiary conflicts. Young, 128 Ill. 2d at 51.

A defendant is accountable for the conduct of another if “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1983, ch. 38, par. 5—2(c); People v. Reid (1990), 136 Ill. 2d 27, 60, 554 N.E.2d 174.

Mere presence at the crime scene does not render a person accountable for the crime. (People v. Johnson (1991), 220 Ill. App. 3d 550, 554, 581 N.E.2d 118.) However, under the accountability theory, the State is not required to prove that the defendant actively participated in the overt acts which constituted the offense. People v. Bell (1991), 209 Ill. App. 3d 438, 445, 568 N.E.2d 238; People v. Acklin (1990), 208 Ill. App. 3d 616, 622-23, 567 N.E.2d 525.

We find that the evidence does more than merely place defendant at the scene at the time of the murder. The testimony of the eyewitnesses recounted the events directly leading to and immediately following the firing of the fatal shot. Their uncontroverted testimony placed defendant in consort with Jose Berrios throughout the incident. Moreover, defendant, in his own statement, admitted that he knew Berrios was carrying a loaded gun but accompanied him anyway. Defendant remained in the company of Berrios when they first confronted two members of a rival gang and caused them to run when Berrios reached for the gun in his waistband. Defendant, knowing that the two individuals at the gas station’s air pump were also members of a rival gang, tracked their movement while lurking around the gas station with Berrios. Defendant admitted that he knew Berrios planned to shoot the boys in the gas station but remained. After the shooting, defendant and Berrios fled. In light of these facts presented to the jury, a rational trier of fact could have easily concluded that defendant was legally accountable for murder beyond a reasonable doubt.

Finally, defendant contends that his 30-year sentence is an abuse of the trial court’s discretion and is impermissibly disparate with the 20-year term later imposed on Berrios.

The procedural history of the cases involving defendant and Berrios are particularly significant in addressing the sentencing issue raised by defendant.

Following his first jury trial, defendant was convicted of murder for the shooting death of Reyes and received a 30-year sentence. The appellate court subsequently reversed defendant’s conviction. (Brown, 171 Ill. App. 3d 993, 525 N.E.2d 1119.) Following a second jury trial, which is the matter before this court now, defendant was again convicted of murder and received a 30-year sentence on July 18,1989.

Berrios was apparently tried as a codefendant with defendant for the murder of Reyes. Following this first trial, Berrios was also convicted of murder but received a 25-year sentence. In a separate appeal, Berrios’ conviction was reversed and remanded for a new trial. (People v. Berrios (1988), 178 Ill. App. 3d 241, 533 N.E.2d 64.) Instead of proceeding to a second trial, Berrios, at a hearing held on March 30, 1990, withdrew his previously entered plea of not guilty and entered a plea of guilty to the charge of murder pursuant to a plea agreement. The sentencing judge accepted Berrios’ guilty plea and the plea agreement, which provided that Berrios would receive a 20-year sentence.

The same judge presided over all of the above proceedings, i.e., the first jury trial of defendant and Berrios, the second jury trial of defendant, and the hearing on Berrios’ guilty plea.

Absent an abuse of discretion, a reviewing court will not disturb a sentence which falls within the statutory limits. People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641; People v. Abernathy (1989), 189 Ill. App. 3d 292, 315, 545 N.E.2d 201.

In 1983, the statutorily mandated term for murder ranged from 20 to 40 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(1)(a).) Accordingly, a 30-year term of imprisonment falls within the parameters dictated by statute.

A sentencing judge is afforded broad discretionary power to consider various sources and types of information so that a sentencing determination can be made within the parameters established by the legislature. People v. Williams (1992), 149 Ill. 2d 467, 490, 599 N.E.2d 913.

In the present case, the sentencing judge’s involvement in the matters concerning the murder of Reyes was extensive. The record reveals that he considered all the appropriate factors at the sentencing hearing following defendant’s second trial, and we have no reason to find an abuse of discretion.

Finally, defendant asserts that the 10-year disparity between his sentence and Berrios’ sentence is impermissible.

Defendant correctly submits that “fundamental fairness and respect for the law require that defendants similarly situated should not receive grossly disparate sentences.” (People v. Milton (1989), 182 Ill. App. 3d 1082, 1093, 538 N.E.2d 1227 (a 22-year disparity is too great).) However, disparate sentences are not per se improper and will not be disturbed where they are justified by differences in the nature and extent of a defendant’s participation in the offense, by differences in the criminal records of the participants, by a defendant’s greater relative maturity, or by a defendant’s greater rehabilitative potential. People v. Centanni (1987), 164 Ill. App. 3d 480, 493, 517 N.E.2d 1207; People v. Bergman (1984), 121 Ill. App. 3d 100, 105, 458 N.E.2d 1370.

Moreover, although an accused cannot be penalized for exercising his right of trial, a sentencing court can grant dispositional concessions to a defendant, such as Berrios, who pleads guilty. People v. Sivels (1975), 60 Ill. 2d 102, 324 N.E.2d 422; People v. Sanchez (1987), 163 Ill. App. 3d 186, 191, 516 N.E.2d 556; Bergman, 121 Ill. App. 3d at 107-08 (a 19-year disparity in sentences was permissible where the codefendant who received the lesser sentence negotiated a plea of guilty which included his willingness to cooperate with authorities and to testify against the defendant).

Notably, Berrios entered into a plea agreement after defendant was convicted in his second trial and after defendant was sentenced to 30 years’ imprisonment. Plea bargaining plays an important role in our criminal justice system and is to be encouraged since, among other things, it leads to prompt disposition of cases, preserves finite judicial and financial resources, and permits the State to focus its prosecutorial efforts where they are most needed. People v. Boyt (1985), 109 Ill. 2d 403, 416, 488 N.E.2d 264.

For us to consider reducing a sentence because it was substantially disparate with a codefendant’s sentence, a defendant must produce records of the codefendant’s sentencing circumstances upon which a rational comparison of the sentences imposed can be made by the reviewing court. (People v. Kline (1982), 92 Ill. 2d 490, 509, 442 N.E.2d 154; People v. Ralon (1991), 211 Ill. App. 3d 927, 957, 570 N.E.2d 742; People v. Wooton (1990), 198 Ill. App. 3d 591, 596-97, 555 N.E.2d 1214; Milton, 182 Ill. App. 3d at 1094; People v. Goble (1984), 125 Ill. App. 3d 289, 291, 465 N.E.2d 1371.) When a defendant fails to produce sufficient records, the court cannot determine whether the trial court abused its discretion in imposing the sentence. Milton, 182 Ill. App. 3d at 1094.

The sole document provided to this court regarding the sentencing of Berrios is the transcript of his guilty plea hearing at which time the parties waived an updated presentence investigation and any arguments in aggravation or mitigation. Furthermore, Berrios declined the judge’s invitation to say anything before sentence would be imposed. “Where a codefendant’s sentence is attributable to his having agreed to enter a plea of guilty, such a sentence does not provide a valid basis of comparison.” Centanni, 164 Ill. App. 3d at 494.

In addition, we note that during oral argument, defense counsel advanced numerous arguments based on alleged statements made by the trial court at the first sentencing hearing which is not included in the record now on appeal. It is an elementary principle that an appellate court cannot consider matters outside the record. E.g., People v. Gholston (1984), 124 Ill. App. 3d 873, 897, 464 N.E.2d 1179.

In People v. Blake (1985), 130 Ill. App. 3d 948, 957, 474 N.E.2d 892, the defendant was not entitled to relief where the defendant challenged the sentence imposed but failed to provide a report of proceedings of the sentencing hearing.

Where the defendant fails to provide the appellate court with any records relative to the codefendants or the report of sentencing proceedings or presentencing report or full transcript, there is nothing in the record that would empower a reviewing court to act. (See Kline, 92 Ill. 2d at 508-09; Centanni, 164 Ill. App. 3d at 493-94; Sanchez, 163 Ill. App. 3d at 191; People v. Jaffe (1978), 64 Ill. App. 3d 831, 837, 381 N.E.2d 1018; People v. Holman (1976), 43 Ill. App. 3d 56, 61, 356 N.E.2d 1115.) In light of the insufficient record, we find no basis to disturb defendant’s sentence.

For all the foregoing reasons, we affirm the conviction and sentence.

Judgment affirmed.

TULLY, P.J., and CERDA, J., concur.


author: JUSTICE HOFFMAN

text:
    PAUL T. PAGANO, Plaintiff-Appellant, v. RAND MATERIALS HANDLING EQUIPMENT COMPANY, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—92—1803
    Opinion filed March 31, 1993.

      Susan E. Loggans, of Chicago, for appellant.
    Bullaro, Carton & Stone, of Chicago (John J. Bullaro, Jr., and Robert P. Vogt, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Plaintiff, Paul T. Pagano, appeals from two orders which were subsequently made appealable under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The first order, entered June 22, 1990, imposed sanctions against plaintiff’s attorney pursuant to section 2— 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The second order, entered July 19, 1991, amended the previous one nunc pro tunc and identified plaintiff’s attorney by the firm’s name. Plaintiff raises three arguments on appeal: (1) the trial court improperly amended its June 22, 1990, order nunc pro tunc; (2) the July 19, 1991, order is void on its face because it named the law firm representing plaintiff as the party sanctioned in the June 22, 1990, order; and (3) the court abused its discretion in imposing sanctions in the first instance. For the following reasons, we dismiss the appeal for lack of jurisdiction.

On December 23, 1987, plaintiff filed suit to recover damages for personal injuries he suffered while using a barrel drum truck, which is also referred to as a dollie or a barrel lift truck. Plaintiff amended his complaint to name Rand Materials Handling Equipment Company, Inc. (Rand), as an additional defendant alleging that Rand “designed, manufactured and sold” the barrel drum truck. Subsequently, the plaintiff filed a second-amended complaint alleging that Rand manufactured dollies for public use. In his third-amended complaint, plaintiff alleged that Rand “was in the business of designing or selling dollies.”

On May 16, 1989, plaintiff voluntarily dismissed Rand as a defendant, and within 30 days, Rand filed a motion for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) On October 24, 1989, the trial court granted Rand’s section 2 — 611 motion and entered an order finding that “there was never a scrap of proof that the barrel lift truck actually came from Rand.” The matter was continued for an evidentiary hearing to determine the amount of reasonable attorney fees and costs incurred by Rand. An evidentiary hearing was held on June 22, 1990. The trial court entered an order denying plaintiff’s motion to reconsider the order of October 24, 1989, and assessed a monetary sanction in favor of Rand against the “attorneys for plaintiff.” On October 10, 1990, the court entered an order under Rule 304(a) expressly finding that there was no just reason to delay enforcement or appeal of the October 24, 1989, and June 22, 1990, orders. Plaintiff did not appeal within 30 days of the October 10,1990, order.

When the sanction was not paid, Rand sought to enforce the orders of the trial court. On July 19, 1991, pursuant to Rand’s motion, the court entered an order amending its June 22, 1990, order nunc pro tunc by identifying “Susan E. Loggans & Associates” as the attorneys for plaintiff. The order also required that the sanction be paid within 15 days and continued Rand’s motion for a rule to show cause and for additional fees. Plaintiff’s motion to vacate the July 19, 1991, order was denied on July 31, 1991.

On April 30, 1992, the trial court entered an order making its orders of July 19, 1991, and July 31, 1991, final and appealable under Rule 304(a). This appeal followed.

Opinion

The first issue before this court is whether the trial court exceeded its authority to issue nunc pro tunc orders when it amended the June 22, 1990, order to identify Susan E. Loggans & Associates as the attorneys for plaintiff.

Nunc pro tunc orders retroactively amend orders previously entered by the court. As the Illinois Supreme Court stated in Beck v. Stepp (1991), 144 Ill. 2d 232, 238, 579 N.E.2d 824, 827:

“The purpose of a nunc pro tunc order is to correct the record of judgment, not to alter the actual judgment of the court. A nunc pro tunc order may not be used to supply omitted judicial action, to correct judicial errors under the pretense of correcting clerical errors, or to cure a jurisdictional defect. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1056.) Judgments may be modified nunc pro tunc only when the correcting order is based upon evidence such as a ‘note, memorandum or memorial paper remaining in the files or upon the records of the court.’ (Fox, 34 Ill. 2d at 360.) The evidence supporting a nunc pro tunc modification must clearly demonstrate that the order being modified fails to conform to the decree actually rendered by the court. Young, 414 Ill. at 534.”

An examination of the trial court’s order of July 19, 1991, reveals that, by its very terms, it serves three separate and distinct purposes. First, it amends the June 22, 1990, order nunc pro tunc to substitute the phrase “that attorneys for plaintiff, Susan E. Loggans & "Associates, shall pay to the defendant” for the phrase “that attorneys for plaintiff shall pay to the defendant.” All other portions of the June 22, 1990, order are restated exactly. Second, it orders the payment of the sanction within 15 days. And third, it continues Rand’s pending motion for a rule to show cause and for additional fees generally. The only portion of the July 19, 1991, order that was entered nunc pro tunc was that portion which included the name of Susan E. Loggans & Associates in the June 22, 1990, order as the party who was required to pay the sanction. The remaining relief granted in the order of July 19, 1991, was in the nature of an order enforcing the court’s previous orders and continuing pending motions, which did not alter or attempt to alter the June 22, 1990, order.

A nunc pro tunc amendment to an order may only incorporate that which was actually done by the court, but which was omitted due to a clerical error. (Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E.2d 1182.) Additionally, the amendment must be based upon some note, memorandum, or memorial remaining in the files or records of the court. Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271.

In this case, the June 22, 1990, order directed the “attorneys for plaintiff” to pay the sanction. Up to that point in time, every complaint filed on plaintiff’s behalf began with an introductory paragraph which provided in part: “¡pjlaintiff, Paul T. Pagano, by his attorneys, Susan E. Loggans & Associates.” The supplemental brief opposing Rand’s motion for fees, which resulted in the sanction order of June 22, 1990, began with the introductory phrase: “Now comes the plaintiff, Paul T. Pagano, by and through his attorneys, Susan E. Loggans & Associates.” From an examination of the pleadings filed in this case prior to the June 22, 1990, order, it is apparent that the only person or entity that was ever named as “attorneys for plaintiff” was Susan E. Loggans & Associates. There is no doubt from the record that when the trial court entered the June 22, 1990, order, requiring the “attorneys for plaintiff” to pay a money sanction, it was, in fact, entering the order against Susan E. Loggans & Associates. This conclusion is not only supported by reference to the pleadings in this case but also by the fact that no person or entity other than Susan E. Loggans & Associates ever appeared in this case as plaintiff’s attorneys.

The amendatory portion of the order of July 19, 1991, did not alter the order of June 22, 1990, and it did not supply any omitted judicial action; it merely substituted a specific phrase for a descriptive phrase with exactly the same meaning. As a result, we find that the nunc pro tunc portion of the July 19, 1991, order was the proper subject of a nunc pro tunc amendment and, as such, related back to the June 22,1990, order.

Next, plaintiff argues that because section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) only authorizes sanctions on the attorney who actually signed the offensive pleading and not against the law firm on whose behalf it was signed (Monco v. Janus (1991), 222 Ill. App. 3d 280, 583 N.E.2d 575), the July 19, 1991, order, naming Susan E. Loggans & Associates as the sanctioned party, is void on its face.

Where a court has jurisdiction over the parties and the subject matter of a cause, its orders, although erroneous, cannot be attacked collaterally but can only be set aside by a direct attack brought for that purpose. (Oakman v. Small (1918), 282 Ill. 360, 118 N.E. 775.) If, however, a court acts when it lacks jurisdiction, its orders are utterly void and without any effect and may be attacked either directly or collaterally, by any means, in any forum, even for the first time on appeal. Kenney v. Greer (1851), 13 Ill. 432.

The issue thus becomes whether the trial court had jurisdiction over Susan E. Loggans & Associates when it entered its June 22, 1990, order. If the answer is in the negative, then the June 22, 1990, order, as amended by the July 19, 1991, order, would be void and subject to collateral attack. If, on the other hand, the answer is in the affirmative, then the issue of the propriety of the June 22, 1990, order, as amended nunc pro tune by the July 19, 1991, order, is not properly before this court because no appeal was taken from the June 22, 1990, order within the 30-day period after that order was made final and appealable by the order of October 10,1990.

To be sure, compelling authority exists to suggest that sanctions under section 2 — 611 may be levied only against an attorney who signed an offending pleading and not against the law firm on whose behalf the pleading was signed. (See Monco v. Janus, 222 Ill. App. 3d 280, citing with authority Pavelic & LeFlore v. Marvel Entertainment Group (1989), 493 U.S. 120, 107 L. Ed. 2d 438, 110 S. Ct. 456.) That' begs the question, however, as to whether the entry of the sanction pursuant to section 2 — 611 as against a law firm is a void order or merely an erroneous one.

There is no question that a trial court has subject matter jurisdiction over a proceeding under section 2 — 611; the question here is whether the court had jurisdiction over the sanctioned party. As was stated in Roadway Express, Inc. v. Piper (1980), 447 U.S. 752, 766, 65 L. Ed. 2d 488, 501, 100 S. Ct. 2455, 2464, “[t]he power of a court over members of its bar is at least as great as its authority over litigants.”

In this case, Ms. Loggans, doing business as a sole proprietor under the name of Susan E. Loggans & Associates, appeared on plaintiff’s behalf, filed pleadings, and undertook to represent plaintiff in all respects. The trial court had no less jurisdiction over her than it had over the litigants themselves. This jurisdiction is derived from the inherent power of a court over all those who appear before it. That being the case, it follows that the trial court’s order entered June 22, 1990, as amended nunc pro tunc by its order of July 19, 1991, is not void as plaintiff argues.

Plaintiff’s arguments as to the sanctioning of a law firm under section 2 — 611, and the exercise of the trial court’s discretion in entering a sanction in the first instance, address the propriety of the trial court’s actions but not the court’s power, from a jurisdictional standpoint, to enter its orders.

The time for plaintiff to have challenged the propriety of the October 24, 1989, and June 22, 1990, orders was within 30 days of October 10, 1990, when both orders were made appealable under Rule 304(a). Having failed to file a timely appeal, plaintiff cannot now raise those issues under the guise of a challenge to the nunc pro tunc amendment to the June 22,1990, order.

The fact that the trial court entered a subsequent Rule 304(a) finding on April 30, 1992, making its orders of July 19, 1991, and July 31, 1991, final and appealable is of no moment. Rule 304(a) applies only to final judgments or orders. Neither the July 19, 1991, order, amending nunc pro tunc the June 22, 1990, order, nor the July 31, 1991, order, which denied plaintiff’s motion to reconsider the July 19, 1991, order, was a final order within the meaning of Rule 304(a). While findings under Rule 304(a) will make a final order appealable, they have no effect on an order that is not final. Kellerman v. Crowe (1987), 119 Ill. 2d 111, 518 N.E.2d 116.

For these reasons, plaintiff’s appeal is dismissed.

Appeal dismissed.

JIGANTI, P.J., and JOHNSON, J., concur.