author: JUSTICE WHITE

text:
    NASSAU TERRACE CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. S. SAUL SILVERSTEIN et al., d/b/a Commercial Coin Laundry Systems, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0533
    Opinion filed April 12, 1989.

      William A. Torok, of Chicago, for appellant.
    Russel G. Winick, of Schultz & Winick, of Chicago, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Nassau Terrace Condominium Association, Incorporated, filed an action in two counts, seeking a declaration that two leases it has with defendant Commercial Coin Laundry Systems (hereinafter Commercial), a partnership, are null and void and that it is entitled to possession of the demised premises. In count I of the complaint, plaintiff alleged that the leases were never assigned from the original lessor, Gregory Preña, to succeeding owners of the property or to plaintiff and, consequently, plaintiff is not bound by the terms of the leases. In count II of the complaint, plaintiff alleged that the leases were executed by Larry Taiman as agent of defendant Commercial. Plaintiff further alleged that defendants S. Saul Silverstein, Enoch Silverstein and Commercial have “not supported agent’s authority to enter into such two leases in writing,” and the leases are null and void under the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, pars. 1, 2).

The evidence adduced at trial follows.

On November 10, 1975, Gregory Preña, as lessor, and defendants, as lessees, entered into two leases. Under the terms of the leases, Mr. Preña leased to the defendants the laundry rooms or laundry areas in the buildings commonly known as 12542-48 and 12550-58 Fairview Avenue, Blue Island, Illinois (hereinafter the Premises). Defendant agreed to equip the Premises with washing and drying equipment and to operate the equipment for use of the tenants in the buildings. Defendants also agreed to pay $4,000 to Mr. Preña to reimburse him for improvements made to the Premises and to pay 15% of the receipts from the washing and drying equipment as rent for the Premises. Mr. Preña warranted in the leases that he was the owner of the buildings and that the leases would be binding upon all future owners of the buildings, and upon his heirs, executors, and assigns. Thus, the leases provide that “[i]t is the intention of the parties hereto that this Lease run with the land and buildings hereinabove described.”

Larry Taiman, a salesman for Commercial, and Ernest Zurkowski, a former sales manager for Commercial, signed the leases on behalf of Commercial. Defendant S. Saul Silverstein, one of the two partners operating Commercial, testified that Mr. Taiman and Mr. Zurkowski were authorized to enter into leases on behalf of Commercial. However, on cross-examination, Mr. Silverstein testified that he did not have anything in writing to show the authority of Mr. Taiman and Mr. Zurkowski to execute the leases.

Mr. Silverstein testified that Commercial paid $4,000 to Mr. Preña in 1975, as required by the leases. Up to the date of trial, Commercial has tendered rentals to plaintiff which have been accepted. Mr. Silver-stein also testified that the parties to the leases intended that the covenants in the leases run with the land and bind future owners of the property.

On August 20, 1979, Gregory Preña sold the property to the Exchange National Bank as trustee under trust No. 35651 (hereinafter the Exchange National Bank). The Exchange National Bank then converted the property to condominiums and, on March 25, 1980, registered a declaration of condominium ownership. Also on March 25, 1980, the Heritage County Bank and Trust Company (hereinafter the Heritage Bank) registered a mortgage on 18 of the condominium units. That mortgage was foreclosed by the Heritage Bank, and on May 17, 1983, the Heritage Bank purchased the units at a sale held by the sheriff of Cook County.

At the conclusion of the trial, the court entered judgment in favor of defendants and against plaintiff on both counts of the complaint. The court determined that the covenants in the leases run with the land and are binding upon plaintiff. The court also determined that, to the extent plaintiff had any right to terminate the leases, plaintiff waived its right when it accepted rentals from defendants. Consequently, the court found that defendants are entitled to possession of the demised premises. The court also found that plaintiff failed to offer any evidence to support count II of the complaint. We will consider the court’s holding on each count in turn.

In order for a covenant to run with the land, three criteria must be met: (1) the covenantor and the covenantee must have intended the covenant to run with the land; (2) the covenant must touch and concern the land; and (3) there must be privity of estate between the party claiming the benefit of the covenant and the party resting under the burden of the covenant. Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 188, 457 N.E.2d 1226; St. Paul Federal Bank for Savings v. Wesby (1986), 149 Ill. App. 3d 1059, 1063, 501 N.E.2d 707.

In Streams Sports Club, the Illinois Supreme Court observed that covenants should be interpreted to give effect to the actual intent of the parties at the time the covenant was made. (Streams Sports Club, 99 Ill. 2d at 188.) The intent of the parties can best be determined by express contractual provisions. (Streams Sports Club, 99 Ill. 2d at 188.) In the present case, it is clear that Commercial and Mr. Preña, the parties to the leases, intended that the covenants run with the land. Each lease provides that “[it] will be binding upon all future owners, and the heirs, executors, and assigns of the Lessor.” Each lease also provides that “[i]t is the intention of the parties hereto that this Lease run with the land and buildings herein-above described.” In addition, defendant S. Saul Silverstein testified that the parties to the leases intended that the covenants run with the land and bind future owners of the property. We therefore conclude that the parties intended that the covenants in the leases run with the land.

The second requirement for a covenant running with the land is also met because the covenant touches and concerns the land. Plaintiff instituted this action to regain possession of the Premises. Thus, the covenant at issue is that Commercial have possession of the Premises to operate washers and dryers for use of the individual condominium owners. Possession of the Premises is obviously necessary for enjoyment of the leasehold estate conveyed to Commercial. Also, the operation of the washers and dryers benefits the condominium owners and increases the value of the property. We conclude that possession of the Premises by Commercial and operation thereon of laundry facilities affects the use, value and enjoyment of the leasehold estate and of the property, and the covenant touches and concerns the land.

The covenant also meets the third requirement for a covenant running with the land — that is, there is a chain of privity between Commercial, the covenantee, and the condominium owners, the parties to be bound by the covenant. A lease creates a privity of contract and a privity of estate between the lessor and the lessee. (24 Ill. L. & Prac. Landlord & Tenant §21 (1980); 49 Am. Jur. 2d Landlord & Tenant §1 (1970).) Thus, a privity of estate existed between Commercial and Mr. Preña, the original lessor and covenantor. A privity of estate also exists between the grantor and the grantee of property (Creighton v. Elgin (1946), 395 Ill. 87, 101, 69 N.E.2d 501 (grantee is in privity with grantor); Ely v. Brown (1899), 183 Ill. 575, 597, 56 N.E. 181 (privity of estate exists between vendor and vendee); McAnelly v. Graves (1984), 126 Ill. App. 3d 528, 535-36, 467 N.E.2d 377), and between the mortgagor and the mortgagee of property. (St. Paul Federal Bank, 149 Ill. App. 3d at 1064; see also Springer v. Darlington (1904), 207 Ill. 238, 69 N.E. 946.) The Exchange National Bank obtained the property from the original lessor and covenantor. The owners of the condominium units, including the Heritage Bank, obtained their interests in the property from the Exchange National Bank. All of these parties are in privity of estate with Commercial because they took their interests from the original lessor and covenantor or from his successor, the Exchange National Bank.

We also note that plaintiff has accepted rentals from defendants for the use of the Premises. Plaintiff has thus received the benefit of the covenant to pay rent. Having accepted this benefit, plaintiff should allow Commercial to enjoy possession of the premises. See Purvis v. Shuman (1916), 273 Ill. 286, 298, 112 N.E. 679.

We conclude that the covenant at issue runs with the land and that Commercial is entitled to possession of the premises. (See Louisville & Nashville R.R. Co. v. Illinois Central R.R. Co. (1898), 174 Ill. 448, 453, 51 N.E. 824 (covenants of an agreement which invested the St. Louis and Southeastern Railway Company with an estate for years across the right of way of the appellee railroad company, and under which that railroad company was entitled to hold possession and covenanted to pay rent in consideration of such fact, are covenants that run with the land); see also Dana Point Condominium Association, Inc. v. Keystone Service Co. (1986), 141 Ill. App. 3d 916, 491 N.E.2d 63 (in an action filed by a condominium association, this court held that the terms of the lease between former owner of property and Keystone Service Co., for the rental of the laundry room, were not unconscionable and Keystone Service Co. was entitled to possession of the laundry room); Bellows v. Ziv (1962), 38 Ill. App. 2d 342, 187 N.E .2d 265 (this court observed that if the conveyance of the real estate was made either to the beneficiaries or to the American National Bank and Trust Company of Chicago, as trustee, by a third party owning the property, who had made a lease to the hotel, that lease would follow the fee simple conveyance).) We therefore affirm the entry of judgment in favor of defendants on count I of plaintiff’s complaint.

We next consider the judgment entered in favor of defendants on count II of the complaint. Count II of the complaint is based upon the Statute of Frauds. In count II, plaintiff alleged that the leases were executed by agents of defendants who were not authorized in writing to do so and the leases are within the Statute of Frauds. At trial, plaintiff elicited testimony from defendant S. Saul Silverstein that he did not have anything in writing authorizing the agents to enter into the leases on behalf of Commercial. However, it is established law that only the party being charged with a contract, lease or other obligation is entitled to invoke the Statute of Frauds. (See Ill. Rev. Stat. 1987, ch. 59, pars. 1, 2; Pasquay v. Pasquay (1908), 235 Ill. 48, 85 N.E. 316; Hallberg v. Brosseau (1896), 64 Ill. App. 520, 522 (in rejecting appellee’s argument that lease was not signed by appellant or by an agent authorized in writing, court observed that the Statute of Frauds “is the personal privilege of the appellant only”); Welsh v. Estate of Welsh (1921), 148 Minn. 235, 181 N.W. 356 (the plaintiff could not invoke the Statute of Frauds for the defendant); Peaslee Gaulbert Paint & Varnish Co. v. Lumpkin (1960), 238 Miss. 637, 119 So.2d 772 (the Statute of Frauds is a right available to the party to an oral contract against whom enforcement is sought by the other party); 20 Ill. L. & Prac. Statute of Frauds §4 (1956); 73 Am. Jur. 2d Statute of Frauds §578 (1974).) It is for the party who is being charged to decide whether he or she will avail himself or herself of the defense of the Statute of Frauds of whether he or she will perform the oral contract, lease or other obligation. In the present case, plaintiff may not take advantage of the Statute of Frauds since it is not the party “charged” with the leases. We therefore conclude that the leases are enforceable and that the trial court properly entered judgment in favor of the defendants on count II of the complaint.

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

      The record indicates that the beneficiaries of the trust are Frank Adams and Condo Conversion Corporation. In this opinion, we will treat the trustee and beneficiaries as one, and all references will be to the Exchange National Bank.

      We do not know whether plaintiff claims an interest in the property or whether plaintiff is acting solely as the representative of the condominium owners. If plaintiff does have an interest in the property, plaintiff should be bound by the covenant because plaintiff would have taken its interest from the Exchange National Bank, a successor to the original covenantor. If plaintiff is acting in a representative capacity, plaintiff should comply with the covenant because the condominium owners are bound by the covenant.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    EDWARD PETER GANNON et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—2854
    Opinion filed April 12, 1989.

      Laird M. Ozmon, Ltd., of Joliet (Laird M. Ozmon and James P. Stevenson, of counsel), for appellants. •
    Hoffman, Burke & Bozick, of Chicago (Gary W. Bozick and David W. Moore, of counsel), for appellee Commonwealth Edison Company.
    O’Connor & Schiff, of Chicago (Neil D. O’Connor, William C. Brittan and Loretta M. Griffin, of counsel), for appellee Westinghouse Electric Corporation.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Edward Gannon and Judith Gannon, brought this action against defendants, Westinghouse Electric Company and Commonwealth Edison Company, seeking recovery for injuries suffered when Edward slipped while working at a construction site. Only one count of their complaint is involved in this appeal. In that count, plaintiffs alleged that defendants violated the Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). The trial court granted defendants’ motion for summary judgment as to that count. Plaintiffs appeal, urging that Edward’s injuries occurred while performing an activity within the scope of the Structural Work Act.

Edward was employed by Phillips Getschow Co. as a pipefitter. On September 3, 1981, he was working at Commonwealth’s Braid-wood Power Station in Braidwood, Illinois. At that time, construction of the power station was under the control and supervision of several companies, including Westinghouse. Edward and his partner were working in the turbine building. They were transferring channel beams from one area to another area for stockpiling. The channel beams, seven to eight feet in length, are transferred from a “tub” by an overhead crane. The beams are brought up to the working platform, elevation 451 (a permanent floor), and are loaded into a cart. Workers then manually unload the beams from the cart. As Edward and his partner were picking up one of the beams from the cart, Edward’s right foot skidded. He immediately felt pain across his back and down to his feet. Edward noticed oil, grease or water on the floor where he slipped.

Plaintiffs brought a three-count action against defendants. Count I of the complaint alleged a violation of the Structural Work Act. Westinghouse, joined by Commonwealth, filed a motion for summary judgment as to this count. This appeal arises from the order granting defendants’ motion. (The remaining counts of the complaint, based on negligence and loss of consortium, presently are pending in the trial court.)

We initially consider plaintiffs’ contention that there is a triable issue of fact regarding whether defendants’ failure to provide a crane or hoist for the unloading of the channel beams from the cart was a violation of the Structural Work Act. Defendants counter that plaintiffs’ failure to make such a charge in the complaint precludes this court from considering the issue.

The complaint alleged that Edward suffered injuries on a “temporary support, which was improperly placed, constructed and/or operated and otherwise unsafe and which caused plaintiff to fall.” The complaint makes no mention of the “failure to provide” theory. Moreover, plaintiffs never properly presented a motion to amend the complaint to include this theory to the trial court. Nonetheless, plaintiffs did seek leave to amend the complaint to include this issue in their response to defendants’ motion for summary judgment. The trial court did not rule on plaintiffs’ request, but instead ruled on defendants’ motion for summary judgment as if the allegations had been included in the complaint. Thus, the trial court considered the failure to provide theory. Consequently, we will review plaintiffs’ contention that defendants’ failure to provide a safe, suitable and proper hoist was a violation of the Act. Our review, however, is limited to those arguments presented in the trial court. Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663.

The Structural Work Act provides in relevant part:

“That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.)

Thus, the Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their jobs. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.) Furthermore, our courts have recognized that the Act is intended to cover support devices used in a construction site, and, necessarily, the failure to supply the same. (Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 526 N.E.2d 384; Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740, 523 N.E.2d 1056.) Accordingly, the failure to provide a crane in conjunction with certain construction activities may be a violation of the Act. See, e.g., McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573.

Plaintiffs cite McNellis in support of their position that defendants’ failure to provide a crane was a violation of the Act. In McNellis, plaintiff was fatally injured when a piece of equipment weighing 20,000 pounds fell on him as he was unloading it from a railroad car. The court found that the failure to use a crane was a violation of the Act. The court noted that the activity in question was an integral part of the entire operation of the construction and that there was sufficient testimony that a crane should have been used. McNellis v. Combustion Engineering, Inc., 58 Ill. 2d 146, 317 N.E.2d 573.

Here, however, the record reflects that there was no real issue as to the need for a crane. Although Edward stated that he had asked for a hoist because of the congestion in the work area, he also stated that he and his partner were capable of lifting the beams, and, in fact, had done so on numerous occasions. Moreover, Edward stated that there was nothing about the beams which would have led him to believe that he and his partner needed assistance in moving them. Thus, the situation is not like that in McNellis, where there was specific testimony that a crane should have been used. Rather, the situation is comparable to that in Kittleson v. United Parcel Service, Inc. (1987), 162 Ill. App. 3d 966, 516 N.E.2d 350. In Kittleson, plaintiff was injured when he tripped over some debris while manually moving equipment from a storage area to a forklift truck. Plaintiff contended that a triable issue of fact existed as to whether the failure to use a crane or hoist to move the equipment into place was a violation of the Structural Work Act. The court found that there was no such issue because plaintiff had failed to demonstrate that there was any need for a crane. To the contrary, plaintiff had demonstrated that he and his partner were capable of lifting the equipment and had done so on at least one occasion. The court concluded that no violation of the Act had occurred. Kittleson v. United Parcel Service, Inc., 162 Ill. App. 3d 966, 516 N.E.2d 350.

We similarly conclude that defendants’ failure to provide a crane here did not violate the Act. Edward failed to demonstrate that there was a need for a crane to support the beam or that the absence of a crane was in any way related to his injury. It was not the absence of a device to support the beam which caused Edward’s injury, but the fact that he slipped in a slick on the concrete floor.

Plaintiffs next contend that there is an issue of fact as to whether the surface where the injury occurred was a platform or support within the meaning of the Act. Plaintiffs maintain that because the work platform provided access to the turbine and surrounding systems, it was an integral part of the construction and, therefore, qualifies as a support under the Act.

Whether a device constitutes a support under the Act is a matter of statutory construction and, therefore, is a question of law to be determined by the court. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223.) Our courts utilize a three-pronged analysis to determine whether a device qualifies as a support within the meaning of the Act. First, the court must determine what the intended use of the device in question was at the time of the injury. Second, the court must determine whether the injury has some connection with the hazardous nature of the device in question. Third, the court must determine what was the element of danger involved in the use of the support and whether this was the danger which the legislature was attempting to alleviate in enacting the statute. Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 448 N.E.2d 1011.

A permanent part of the structure, such as a roof, can be used temporarily as a support. (Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) However, a completed, permanent floor of a building under construction, as here, generally is not considered a support within the meaning of that term under the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607; Choi v. Commonwealth Edison Co. (1984), 129 Ill. App. 3d 878, 473 N.E.2d 385; Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.) In determining whether a particular surface is a support, our inquiry is directed to the intended use of the device in question at the time of the injury, not to the nature of the work being performed. Vuletich v. United States Steel Corp., 117 Ill. 2d 417, 512 N.E.2d 1223.

Edward maintains that he was handling heavy construction materials on a platform as an essential step involved in the construction or maintenance of a structure. Thus, he concludes that he was using the floor as a support and not merely as a floor.

We considered a similar situation in Choi v. Commonwealth Edison Co. There, plaintiff slipped on a concrete floor while transporting equipment. We held that "the floor upon which plaintiff was walking was not a support within the scope of the Act. Choi v. Commonwealth Edison Co., 129 Ill. App. 3d 878, 473 N.E.2d 385. Accord Carnevale v. Inland Ryerson Building Systems, 169 Ill. App. 3d 740, 523 N.E.2d 1056; Harper v. Schal Associates, Inc. (1987), 159 Ill. App. 3d 542, 510 N.E.2d 1061.

The situation here is indistinguishable from that in Choi, and accordingly, that decision controls our resolution of this appeal. In each case, plaintiff was transporting materials in connection with construction work; in each case, plaintiff skidded on a permanent floor; and in each case, plaintiff was merely using the surface as a pathway. Thus, in each case, the surface simply was being used as a floor and not as a support. The fact that Edward was transporting the beam to a work area does not alter the fact that at the time he slipped, he was using the floor as a pathway and not as a construction work support.

It is true that the Structural Work Act is to be given a liberal construction to effectuate its purpose of protecting construction workers. (Vuletich v. United States Steel Corp., 117 Ill. 2d 417, 512 N.E.2d 1223.) Nevertheless, the Act should not be interpreted to compel coverage of every construction work injury. (Harper & Schal Associates, Inc., 159 Ill. App. 3d 542, 510 N.E.2d 1061.) Moreover, the scope of the Act should not be broadened by unnatural interpretations, particularly where existing workers’ compensation and tort remedies are available to afford relief to injured workers. (Choi v. Commonwealth Edison Co., 129 Ill. App. 3d 878, 473 N.E.2d 385; Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193.) In our view, the interpretation which plaintiffs suggest would improperly broaden the scope of the Act. At the time of Edward’s injury, the floor simply was being used as a floor.

Because we have determined that defendants’ failure to provide a crane is not a violation of the Act and that the surface upon which Edward slipped is not a support within the meaning of the Act, we need not consider the second and third inquiries under the Ashley test. Accordingly, we find that the trial court properly granted defendants’ motion for summary judgment as to count I of the complaint.

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

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

       Justice McNamara participated in this opinion prior to his transfer to the sixth division.


author: JUSTICE JOHNSON

text:
      In re J.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.G., a Minor, Respondent-Appellant).
    First District (4th Division)
    No. 1—86—3204
    Opinion filed April 13, 1989.

      Paul P. Biebel, Jr., of Public Defender, of Chicago (Nancy Pipman and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Andrea K. Muchin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

The minor-respondent, J.G., entered an admission to attempted burglary. Following a hearing he was found delinquent and committed to the Department of Corrections for one to two years. On appeal, he contends that his due process rights were violated because his admission was neither voluntary nor intelligent and lacked a factual basis.

We reverse and remand.

The incident in question occurred July 30, 1986, in Oak Park. Responding to a call from Monica Meter that a residential burglary was in progress, the Oak Park police arrived and found respondent crouched behind a table on Meter’s back porch. The police took respondent into custody charging him with residential burglary and possession of burglary tools.

Following a hearing, a finding of probable cause was made. On the trial date, respondent entered an admission to attempted burglary. Before accepting the admission, the court asked respondent if he was being forced to make this admission and he repliéd “No.” At that point, counsel for respondent informed the court that he had given both trial rights and dispositional alternatives to his client. The court accepted respondent’s admission on attempted burglary and found him delinquent. Following a dispositional hearing, respondent was committed to the Department of Corrections for one to two years.

Before addressing the issues which respondent raises on appeal, we must first determine whether or not respondent waived his rights on appeal by failing to file a motion to withdraw his admission as required by Illinois Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Our supreme court has stated that the requirements of Rule 604(d) must be compiled with before taking an appeal. People v. Wilk (1988), 124 Ill. 2d 93.

The record shows that respondent did not, within 30 days of the entry of judgment, file a motion to vacate his admission. However, if respondent, who filed a proper notice of appeal, was not informed of this requirement by the trial court as required by Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)), the appeal will not be dismissed. (People v. Theobald (1976), 43 Ill. App. 3d 897, 356 N.E.2d 1258.) In this case, the trial court failed to advise respondent under Rule 605(b); therefore, we will not dismiss respondent’s appeal.

Respondent argues, on appeal, that he did not make an admission that was voluntary and intelligent due to the trial court’s failure to fully admonish him of his constitutional rights. In the case of In re Haggins (1977), 67 Ill. 2d 102, 364 N.E.2d 54, the supreme court stated that due process requires that a juvenile admission be intelligently and voluntarily made. It is sufficient to satisfy due process requirements where it is apparent from the record that respondent was aware of the consequences of his admission. In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024.

The issue here arises from the admission proceedings where respondent and his attorney engaged in the following discussions:

“MR. POLANCE [Respondent’s Counsel]: I would be asking the court to accept an admission to the charge of burglary.
Joseph, is anyone forcing you to plead guilty to this charge?
MINOR RESPONDENT: No.
MR. POLANCE: Your Honor, previously I have given both trial rights and dispositional alternatives to the minor respondent; however, the court may want to inquire based on the background.
THE COURT: All right Joseph, is anybody forcing you to plead guilty to this charge of residential burglary — both counts, Mr. Polance?
MR. POLANCE: The burglary.
THE COURT: On or about July 30, 1986, did you commit the offense of residential burglary, in that you entered the apartment of a Maria Meter at 209 North Humphrey in Oak Park?
MINOR RESPONDENT: No, sir. Not into the house. I was by the window. I did not enter the house.
MR. POLANCE: He was on the what, second floor?
MINOR RESPONDENT: I was on the second floor by the window.
MR. POLANCE: Yes.
THE COURT: Did you force the window open?
MINOR RESPONDENT: No. It was already open.
MR. POLANCE: I believe he was about to enter, but somebody arrived on the scene before he could make complete entrance.
THE COURT: Is that what happened?
MINOR RESPONDENT: Yes.
THE COURT: All right. Based on his admission, I will find him delinquent as to the lesser included offense of attempt burglary.
* * *
THE COURT: I will accept his admission to the attempt.
MR. POLANCE: Yes, your Honor.
THE COURT: There will be a finding of delinquency.”

In Beasley, the supreme court specifically stated that it was not necessary that a respondent be told by the trial court that his admission waived his rights against self-incrimination and the right to confront his accusers. (In re Beasley, 66 Ill. 2d 385, 362 N.E.2d 1024; see also In re B.R. (1987), 164 Ill. App. 3d 784, 518 N.E.2d 301.) It is only necessary that it be apparent from the record that respondent was aware of his rights. (In re Beasley, 66 Ill. 2d 385, 362 N.E.2d 1024.) When reviewing the record, a court can rely to a degree on the representation of counsel in ensuring that the admission was voluntary and intelligent. (In re Beasley, 66 Ill. 2d 385, 362 N.E.2d 1024.) However, the representation of counsel alone will not permit a presumption of the requisite knowledge. In re S.K. (1985), 137 Ill. App. 3d 1065, 485 N.E.2d 578; see also In re D.S. (1984), 122 Ill. App. 3d 326, 461 N.E.2d 527.

It is apparent from the record that respondent’s admission was voluntary. However, it is not apparent from the record that the admission was intelligently made. There is nothing in the record that indicates that respondent understood the consequences of his admission. There is the representation by respondent’s counsel that he informed respondent of his trial rights and dispositional alternatives. However, this alone does not create a presumption that the respondent had the requisite knowledge. (In re D.S. (1984), 122 Ill. App. 3d 326, 461 N.E.2d 527.) For this reason, we find no evidence in the record that satisfies this due process requirement.

Respondent also maintains that his admission did not receive the proper due process protections because the record failed to show any factual basis for the admission. While we have already determined that the admission did not meet due process requirements because it was not intelligently made and it would be unnecessary to decide the factual basis issue, we judge from the record that the trial court made adequate inquiry into the circumstances surrounding the offense.

For the reasons stated above, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

LINN and McMORROW, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    STEVEN HEIL, Plaintiff-Appellant, v. THE SUPERIOR OIL COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—3044
    Opinion filed April 14, 1989.

      Thomas D. Fazioli, of Paul B. Episcope, Ltd., of Chicago, for appellant.
    Barry M. Lewis, of Henry B. Gurion & Associates, of Chicago, for appellee Superior Oil Company.
    Haskell & Perrin, of Chicago (Stephen O. Sonderby, of counsel), for appellee O.H. & F., Inc.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Steven Heil appeals, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), from entry of summary judgment for defendants, Superior Oil Company (Superior) and O.H. & F., Inc., and from an order denying him leave to amend his complaint. These orders concern several counts of plaintiff’s complaint charging violations of the Illinois Structural Work Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) by defendants. Other counts based on negligence are still pending in the trial court and are not a part of this appeal.

Plaintiff was employed by Garden Drilling Company (Garden) as a worker to construct a permanent oil well system which was to be used for the exploration and production of oil. Garden, a subcontractor, contracted with Superior, who was the general contractor, to construct the permanent oil well system. Superior was required to supply certain materials, including the casing known as “surface pipes.” Superior also made a contract with subcontractor O.H. & F. which, among other things, required O.H. & F. to deliver materials to the jobsite.

On July 1, 1981, plaintiff was a derrick hand on a Garden drill rig crew and was injured while helping to unload surface pipes from an O.H. & F. flatbed trailer at the site. The pipes, each weighing approximately 1,600 pounds, were rolled off the truck by means of boards from the construction site being placed up from the ground to the bed of the truck. One of the boards broke causing a pipe to fall, thus injuring plaintiff.

In April 1983, plaintiff filed his complaint, two counts of which alleged violations of the Structural Work Act by both defendants. Defendants filed motions for summary judgment. The trial court granted the motions on the grounds that the structures involved were not structures within the meaning of the Act, that O.H. & F. did not have charge of the relevant activity, and that plaintiff was not engaged in a structural activity at the time of his injury. Plaintiff then moved for leave to file an amended complaint, which motion was denied by the court. Plaintiff filed this interlocutory appeal from both orders.

On appeal, plaintiff contends that the surface pipes were part of an “other structure” within the meaning of the Structural Work Act, the unloading of the pipes was an extrahazardous activity integral to the erection operation of the structure, there is a question of fact as to whether O.H. & F. was required to furnish unloading equipment absent a request by Superior, and it was error to deny him leave to amend his complaint. We affirm the trial court for the following reasons.

Summary judgment is appropriate in Structural Work Act cases where the facts are not disputed and the court determines that the statute is inapplicable as a matter of law to those facts. (Wellston v. Levy Organization, Inc. (1988), 175 Ill. App. 3d 301.) In the present case, the propriety of summary judgment depends on the critical issue of whether an oil well is a structure within the meaning of the Act. Section 1 of the Act provides in pertinent part:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 48, par. 60.

Although the Act’s provisions are to be liberally construed, it was not intended to cover any and all construction activities. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417.) Whether an object falls within the ambit of the Act is a troublesome question for our courts, as evidenced by the varying and sometimes inconsistent conclusions reached by them. Plaintiff claims that since the subsurface pipes were to be permanently installed as part of a permanent oil well, the oil well system should be included within the statutory term “other structures.” It is undisputed that the only permanent part of an oil well is the surface pipe. In this case, the surface pipes were 40-foot lengths of metal pipes that were 95/s inches in diameter. The pipes were to be pushed vertically into the upper portion of the exploratory hole and then cemented in place. In other words, surface pipe is a lining for the upper portion of mineral wells which is statutorily required to prevent, among other things, contamination of the surface soil and/ or water supplies. See Ill. Rev. Stat. 1987, ch. 96½, par. 5409.

The elements of a cause of action under section 1 of the Structural Work Act are (1) the device involved must be one listed in the Act, e.g., scaffold, support; (2) it must be used to complete the building or other structure within the Act; (3) it must be unsafe, or not safely placed or operated (or there must be a failure to provide such a device); (4) those in charge of the work must have wilfully violated the Act; and (5) plaintiff’s injury must have been proximately caused by the violation. (Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293.) Plaintiff was engaged in the task of unloading pipes to be installed as part of the oil well when he was injured. It has been held that failure to provide proper support for the unloading of heavy equipment to be installed as part of a structure could, under certain circumstances, be a protected activity under the Act. (See McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146; Ashley, 114 Ill. App. 3d 293; but cf. Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740 (no cause of action for failure to provide ramp over steel bar joists upon which plaintiff fell while carrying pipes to his work site).) However, the support, or lack thereof, must occur in connection with work on a building, etc. or other structure as specified by section 1 of the Act. In other words, the unloading must be an integral part of the entire operation of erecting, repairing, etc. the structure. (McNellis, 58 Ill. 2d at 151.) Therefore, it is necessary to determine whether the oil well is a structure within the meaning of the Act.

This question was recently addressed by the fifth district in Bishop v. The Mitchell Group, Inc. (1987), 163 Ill. App. 3d 275, wherein a derrick hand fell off a drilling rig. The sole issue on appeal was whether a drilling rig or an oil well is a structure within the Act. The court concluded that neither was such a structure. The Bishop court distinguished many of the same cases relied on by plaintiff in the present case. We will not set forth all the cases here, but will mention only several of those applicable to the present situation.

In essence, the Bishop court found that an oil well is not a structure because it is a single hole in the ground and is not an interconnected system of pipes. (Bishop, 163 Ill. App. 3d at 279.) Plaintiff contends that the dissenting opinion in Bishop is correct when it cites Navlyt v. Kalinich (1972), 53 Ill. 2d 137, and Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, for the proposition that an oil well is a system of pipes and that the pipes are vertical, rather than horizontal, should not affect its classification as a structure. Bishop, 163 Ill. App. 3d at 281.

We agree with the Bishop majority. In Navlyt, a worker was buried when a 10-foot sewer trench collapsed as he was installing sewer tiles. The court held that the sewer system was an “other structure.” (Navlyt, 53 Ill. 2d 137.) In the Burke case, an extensive pipeline temporarily installed to carry sludge from a factory to a reclamation site was considered similar enough to the sewer system in Navlyt so as to be a structure. (Burke, 57 Ill. App. 3d 498.) In our case, we’re discussing a very small (95/s inches diameter) pipe pushed into a hole so that the pipe merely acts as a liner for the top portion of the hole. The lined hole does not support anything nor is it connected to anything except, perhaps tangentially, to the drilling apparatus. It is not an enclosure that one could enter into or egress from. We do not believe that this simple system consisting of a small hole lined with pipe is analogous to the more extensive and elaborate systems involved in the other cases cited by plaintiff. Since the oil well was not a structure within the meaning of the Act, the task of unloading materials for the well was not a protected activity under the Act.

Accordingly, the granting of summary judgment on the Structural Work Act counts was appropriate, and it is thus unnecessary to determine which defendant was in charge of the work. In addition, since plaintiff, as a matter of law, has no cause of action under the Act, the trial court’s refusal to permit him to amend his complaint was well within its discretion.

For the foregoing, we affirm the trial court.

Affirmed.

LORENZ and PINCHAM, JJ., concur.


author: PRESIDING JUSTICE MURRAY JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPHINE COOPER, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2352
    Opinion filed April 14, 1989.
    Rehearing denied May 10, 1989.

      PINCHAM, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Linda S. Halperin, Assistant State’s Attorneys, and Marie Quinlivan Czech, Special Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

' Defendant, Josephine Cooper (Cooper), appeals from two orders of the trial court involving her plea of guilty to the charge of obstruction of justice for which she was sentenced to one year’s probation. The basis of the charge was Cooper’s concealment in a safety deposit box of a weapon used in the homicide of Rodney Williams, her father. Cooper’s son was arrested and charged in connection with the shooting. On February 2, 1987, Cooper, while being represented by a public defender, pleaded guilty to the charge after court proceedings conducted by the trial judge pursuant to Rule 402 of the rules of the supreme court. (107 Ill. 2d R. 402.) She was sentenced to probation by the trial judge.

On February 10, 1987, Cooper filed a motion to withdraw her plea. Represented by a second public defender, her motion to withdraw was heard on July 7, 1987. After hearing evidence, the trial court denied the motion to withdraw. On July 22, 1987, Cooper, through the second public defender, filed her notice of appeal.

On October 6, 1988, a third public defender filed a brief charging that the trial court committed reversible error by denying her motion to vacate on the grounds that Cooper was sick at the hearing on the date she withdrew her plea, that there was an insufficient factual basis for the plea, that Cooper did not understand the nature of the proceeding at which she withdrew her plea, and that she was not properly advised by her trial counsel.

In the brief, the third public defender pleads that Cooper’s plea be vacated and her case remanded for trial.

Granting the relief requested in the appeal may be an act of judicial futility since Cooper’s probation period appears to have long since passed. It might even be eventually harmful to Cooper if reversed and remanded for a new trial. The possibility of an increased punishment may exist. (People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886.) If affirmed, her claims of lack of adequate representation by trial counsel may be res judicata in any subsequent proceeding to set aside her felony conviction, based on her guilty plea. Confident that the able public defender now representing Cooper has adequately advised her of the result of her request in this case that her guilty plea be vacated and her case remanded for trial, the majority of this court addresses the points raised on appeal and feels it must affirm the trial court’s action in accepting Cooper’s plea and denying her motion to withdraw her plea.

After the Rule 402 proceeding (107 Ill. 2d R. 402) pursuant to which Cooper withdrew her plea of not guilty and entered a guilty plea, the trial judge then informed defendant of the nature of the charge to which she was pleading guilty and the sentencing provisions. After reading the charge to defendant, the judge asked her if that was the offense to which she was pleading and she responded, “Yes.” Next, he discussed the rights she was waiving by pleading guilty, including the right to a jury trial, the right to confront witnesses against her and the right to a presentence investigation in the event that she was tried and convicted. Defendant indicated to the court that she understood and was waiving each of these rights. The judge then questioned her concerning the voluntary nature of her plea. She indicated that no one forced her to plead guilty, that she was doing so of her own free will and that no one had promised her anything in exchange for her plea other than the agreed-upon sentence of one year’s probation. The judge then asked for a statement of facts. The assistant State’s Attorney indicated that the parties would stipulate that if called to testify, Detective Robert Dwyer would state that during the evening of October 13, 1986, Rodney Williams was killed by a shotgun wound to the head. Pursuant to his investigation of this incident, Dwyer arrested defendant’s son, Eugene Cooper, and also had several conversations with defendant. He would further testify that his investigation disclosed that the weapon used in the shooting was given to defendant on or about October 14, 1986, and that she then placed it in a safety deposit box over which she had control. On that same day he obtained a search warrant for the safety deposit box, from which he recovered the gun. An examination of the gun revealed that it was used to kill Rodney Williams. It was also stipulated that defendant failed to cooperate with the police in recovering the weapon.

Following the stipulation, the trial court entered its finding that defendant understood the nature of the charge against her and the possible penalties under law. It further found that defendant understood and knowingly waived her rights and that there was a sufficient factual basis to support defendant’s guilty plea. The court then entered a final judgment on the guilty plea. After the parties indicated that there was nothing in aggravation or mitigation, the trial court sentenced defendant to one year’s probation. The defendant at the time was represented by a public defender.

On July 7, 1989, a hearing was held on defendant’s motion to withdraw her guilty plea. Defendant was represented by a second public defender at this hearing. Defendant testified that prior to the date on which she pleaded guilty she made two attempts to see the assistant public defender who was representing her in order to discuss her case. However, in each instance he told her that he could not talk to her until her court date. She stated that the first time that she talked to him about her case was outside of the courtroom on the date of her scheduled court appearance. She indicated that prior to her pleading guilty, her attorney never explained the charges against her and never discussed any evidence that the State intended to use. She also testified that on the date she pleaded guilty she was ill, suffering from high blood pressure and diabetes, and that she felt light-headed. On cross-examination, defendant denied meeting with her probation officer after pleading guilty and telling her that she wanted to withdraw her guilty plea because she was concerned that it would harm her son’s pending defense against the murder charge. However, she did acknowledge that she had a conversation with her attorney about her case prior to pleading guilty, that the judge informed her of the pretrial conference, and that after the conference she pleaded guilty. She also testified that after pleading guilty, the judge explained the charges against her, the type of sentence that she could be given, and the rights that she was waiving by pleading guilty.

Jayne Mulcrone testified that she was defendant’s probation officer. She stated that on March 9, 1987, she met with defendant and that defendant told her that she wanted to withdraw her guilty plea because she thought that it would be detrimental to her son’s pending case.

In denying defendant’s motion the court noted the following: (1) that the court personally recalled accepting defendant’s guilty plea; (2) that the charges against defendant had been read to her and the possible penalties explained; (3) that she indicated to the court that she understood the charges and the penalties; (4) that she had been advised of the evidence the State would introduce if her case proceeded to trial; and (5) that she waived her right to a trial. After making these findings, the court concluded that defendant’s plea was made knowingly and voluntarily.

We first consider defendant’s claim that the stipulated facts do not provide a factual basis sufficient to support her guilty plea. She contends that because the stipulated facts failed to establish that she knew of the shooting or of the charges against her son at the time the gun was placed in the safety deposit box, the facts failed to offer proof of the requisite intent necessary to sustain the charge of obstructing justice. Defendant asserts that the facts were also insufficient because they failed to establish that defendant actually placed the gun in the safety deposit box or that she had sole control over the box. Defendant’s arguments are unpersuasive. The state of mind or intent need not be proven by direct evidence, but can be inferred from the proof of surrounding circumstances. (People v. Gray (1986), 146 Ill. App. 3d 714, 717, 496 N.E.2d 1269; People v. Shaw (1978), 63 Ill. App. 3d 227, 379 N.E.2d 949.) In the instant case, the requisite intent can be inferred from three specific facts that were stipulated to by the parties; (1) Detective Dwyer had several conversations with defendant pursuant to his investigation of the shooting; (2) defendant was the mother of the suspect arrested by Detective Dwyer; and (3) just one day after the incident, the gun used in the shooting was found in a safety deposit box controlled by defendant. Furthermore, contrary to defendant’s claim, the stipulated facts included a statement that the safety deposit box was under defendant’s control. While the word “sole” was not used to characterize that control, we do not find that to be a sufficient basis to support defendant’s claim when considered in the context of the other evidence stipulated to by the parties. Therefore, it is reasonable to infer from the proof of surrounding circumstances that defendant placed the gun in the safety deposit box with the intent of obstructing the prosecution of her son. Moreover, in accepting a guilty plea the court’s duty is only to assure itself that a factual basis for the plea exists, not to determine whether the defendant was proved guilty beyond a reasonable doubt. (People v. Carter (1988), 165 Ill. App. 3d 169, 172, 518 N.E.2d 1068.) Accordingly, we find that the stipulated facts provided a factual basis sufficient to support defendant’s plea of guilty to the charge of obstructing justice.

Next, defendant claims that the trial court committed reversible error by denying her motion to withdraw her guilty plea because at the time she entered her plea she was ill, she did not understand the nature of the proceedings or the admonishment of the trial court, and she had not been properly advised by her attorney. To support this argument defendant refers to her testimony at the hearing on the motion to withdraw her plea, during which she stated that she did not understand what the judge was saying to her because she was frightened and ill from high blood pressure and diabetes. Moreover, prior to trial, defendant attempted to visit defense counsel on two occasions, but on each occasion she was told that he could not meet with her until the day of trial. On that day, defense counsel met with defendant for a few minutes before going into court, during which time he never discussed the evidence or the facts of the case with defendant. Therefore, defendant argues that her decision to plead guilty was not an intelligent decision.

The law provides that for a guilty plea to be constitutionally valid, the record must affirmatively show that the plea was intelligent and voluntary. (People v. Turner (1983), 111 Ill. App. 3d 358, 443 N.E.2d 1167.) This requirement is satisfied when the trial court substantially complies with Supreme Court Rule 402. (People v. Turner, 111 Ill. App. 3d 358, 443 N.E.2d 1167.) This rule provides that the trial court shall not accept a plea of guilty without first informing defendant of and determining that he understands the nature of the charge, the minimum and maximum sentence prescribed by law, that he had the right not to plead guilty, and that he is relinquishing certain rights by pleading guilty. (107 Ill. 2d R. 402(a).) The court must also determine that the plea is voluntary and that there is a factual basis for the plea. (107 Ill. 2d R. 402.) Generally, substantial compliance with Supreme Court Rule 402 indicates that the plea was intelligent and voluntary. People v. Turner, 111 Ill. App. 3d 358, 443 N.E.2d 1167.

A review of the record in the instant case indicates that the trial court substantially complied with Supreme Court Rule 402. Before accepting defendant’s guilty plea, the trial court read the charges against defendant after which she responded that that was the charge to which she was pleading guilty. The court then explained sentencing and the legal rights that defendant was waiving by pleading guilty. Defendant responded that she understood. Upon further inquiry by the court, she also indicated that she was so pleading of her own free will, under no coercion or threat. The court then read the stipulation of facts, with no objection by defendant. After finding that defendant understood the nature of the charges against her and possible penalties, that she understood and waived her legal rights and that there was a sufficient factual basis to support the guilty plea, the court entered a final judgment on the plea. The record does not support defendant’s claim that her plea was not made intelligently and voluntarily. The fact that she may have been frightened at the time she pleaded guilty has no bearing on the matter. It is perfectly clear from the record that before the court accepted her plea she was properly admonished and that she freely and voluntarily pleaded guilty with a full understanding of her rights and the consequences of her waiver thereof. Moreover, a review of the record does not indicate that defendant’s ability to freely and voluntarily plead guilty was in any way affected by her alleged medical condition.

We also reject defendant’s claim that the trial court’s acceptance of the plea was improper because she was denied effective assistance of counsel prior to pleading guilty. Essentially, defendant argues that because defense counsel only met with her for a few minutes just prior to the court proceedings and that during this meeting defense counsel did not discuss with her the State’s evidence or the facts of the case, she was uninformed and therefore unable to render an intelligent guilty plea. We disagree. The fact that defense counsel first met with defendant just prior to the court proceedings does not necessarily mean that she was uninformed at the time she pleaded guilty. Moreover, the record discloses that immediately after the pretrial conference, defense counsel again met with defendant to discuss the results of the conference. The record also discloses that the trial court thoroughly admonished defendant, and she clearly and unequivocally communicated to the court that she understood the proceedings and the ramifications of her guilty plea.

Finally, in considering defendant’s claim we are guided by the general rule that the decision of whether to allow a defendant to withdraw a guilty plea is within the sound discretion of the trial court, and its decision will not be disturbed unless it appears that the plea was entered through a misapprehension of the facts or the law, that defendant has a defense worthy of consideration, or that there is doubt of the guilt of the accused and the ends of justice would be better served by submitting the case to a trial. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 521 N.E.2d 900; People v. Pirt (1987), 164 Ill. App. 3d 379, 517 N.E.2d 1172.) In the instant case, defendant does not allege and the record does not in any way suggest that any of those circumstances existed to warrant reversing the trial court’s denial of defendant’s motion to withdraw.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

LORENZ, J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. “In Winship [In re Winship (1969), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072], the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,’ ” and, “[Wjinship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt'of the existence of every element of the offense.” (Emphasis added.) (Jackson v. Virginia (1979), 443 U.S. 307, 315-16, 61 L. Ed. 2d 560, 571, 99 S. Ct. 2781, 2787.) The defendant in the case at bar has been denied constitutional due process because she stands convicted of an offense of which every fact necessary to constitute the crime with which she was charged was not established. The defendant in the case at bar has been denied constitutional due process because she has been made to suffer the onus of a criminal conviction when there was no proof of the existence of every element of the offense. The Supreme Court further stated in Jackson v. Virginia, “We held in the Thompson [v. Louisville (1960), 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624] case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm.” (Emphasis added.) (443 U.S. at 314, 61 L. Ed. 2d at 571, 99 S. Ct. at 2786.) This defendant’s conviction is based upon a record wholly devoid of the facts of crucial elements of the offense charged, and her conviction is therefore likewise constitutionally infirm. Accordingly reversal of her conviction is demanded.

The statute that the defendant was alleged to have violated, section 31 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 31 — 4(a)), provides as follows:

“A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence ***.” (Emphasis added.)

The essential ingredients of obstructing justice under this statute, relevant to the case at bar, are (1) an offense has been committed, (2) of which the obstruction of justice perpetrator has knowledge, (3) intends to obstruct the prosecution of the offender by and (4) knowingly concealing physical evidence used by the offender in the commission of the offense. Under the statute, an obstructionist must have knowledge that the item he conceals is physical evidence that has been used in the commission of an offense and the obstructionist conceals it with the intent to obstruct the prosecution of the person who committed the offense. In the context of the instant case, the item would have to have been used in the commission of the offense in order for the item to be evidence, and the obstructionist must have had knowledge that the item is evidence in order for him to have the requisite intent in concealing it to obstruct the prosecution of the person who committed the offense.

The indictment in the case at bar did not allege that the defendant knowingly concealed the weapon used in the homicide of the deceased, Rodney Williams, and thus, the indictment fatally failed to allege an essential ingredient of the obstruction of justice offense. The indictment is therefore void.

The one-count indictment in the instant cause alleged “that on or about October 4, 1986 at and within the County of Cook Josephine Cooper committed the offense of obstructing justice in that she, with intent to obstruct the prosecution of one Eugene Cooper for the alleged shooting and killing of one Rodney Williams, did conceal physical evidence, to wit: after the killing she did conceal the weapon used in the shooting and killing, in violation of Chapter 38, Section 31— 4(a) of the Illinois Revised Statutes 1985.” (Emphasis added.)

The indictment failed to allege the commission of an obstruction of justice offense under the statute. As previously stated, the statute provides that “a person obstructs justice when *** he knowingly *** conceals *** physical evidence(Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 31 — 4(a).) The indictment in the case at bar fatally failed to allege that the defendant knowingly concealed the weapon (physical evidence) used in the shooting. The indictment simply alleged that she “did conceal physical evidence, to wit: after the killing she did conceal the weapon used in the shooting and killing.” (Emphasis added.) If the defendant concealed the weapon without knowledge that it had been used in the homicide, she would not have committed an obstructing of justice offense. A fortiori, where the indictment failed to allege that the defendant concealed the weapon knowing that it had been used in the homicide, the indictment failed to allege the commission of an offense under the obstruction of justice statute. It is additionally noteworthy, on which I hereinafter further comment, that the indictment did not otherwise identify or specify “the weapon used in the shooting.”

The Supreme Court of the United States held in Jackson v. Virginia that “[i]t is axiomatic that a conviction upon a charge not made *** constitutes a denial of due process.” (Jackson, 443 U.S. at 314, 61 L. Ed. 2d at 570, 99 S. Ct. at 2786.) Our supreme court held in People v. Wallace (1974), 57 Ill. 2d 285, 288:

“It is well settled that an indictment which fails to charge a criminal offense is void. [Citation.] As such, it does not confer jurisdiction upon a court [citation], and a conviction resulting therefrom may not be sustained [citations]. A convicted defendant may challenge the validity of an indictment for failure to allege a criminal violation either by direct review or in collateral proceedings.”

In People v. Lutz (1978), 73 Ill. 2d 204, count I of the indictment alleged that the defendant committed aggravated battery with a deadly weapon, but because the indictment did not allege that the defendant caused bodily harm or made an insulting or provocative physical contact upon the victim, the supreme court held that the count was fatally defective for failure to allege an essential ingredient of an aggravated battery offense. Count II of the indictment in Lutz also alleged an aggravated battery knowing the victim was a peace officer, but again, because the indictment failed to allege bodily harm to the victim, the supreme court held that count II likewise did not allege an aggravated battery offense. The court concluded in Lutz:

“ ‘It is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every paragraph, sentence, phrase and word. [Citation.] A statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous. ***’ [Citation.] ‘In construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary.’ [Citation.] ‘By well settled principles of law, a criminal or penal statute is to be strictly construed in favor of an accused, and nothing is to be taken by intendment or implication against him beyond the obvious or literal meaning of such statutes. ***’ ” 73 Ill. 2d at 212-13.

Because the indictment in the instant case did not allege that the defendant knowingly concealed the weapon used in the homicide, the indictment failed to allege an essential ingredient of the offense of obstructing justice and reversal is therefore required.

Likewise, and for that reason just as fatal, no facts were presented to the trial court on the guilty plea proceedings that the defendant knowingly concealed the weapon that had been used in the homicide. Moreover, as hereinafter pointed out, there were other essential factual elements of the obstruction of justice offense which were not factually established or presented at the guilty plea proceedings. Accordingly, the guilty plea and judgment thereon cannot validly stand.

When the cause came on before the trial court on February 2, 1987, the defendant’s attorney stated to the trial court that “Josephine Cooper wishes to withdraw her previously entered plea of not guilty and enter a plea of guilty to the charge of obstructing justice.” Thereupon, the trial court read to the defendant the fatally defective obstruction of justice allegations of the indictment, as previously set forth herein. The trial judge did not advise the defendant that she was charged with knowingly concealing the weapon used in the shooting. The indictment did not so allege. She was merely informed that she was charged with concealing the weapon that had been used in the shooting, which she could have done, and very well may have done, without knowledge that it had been used in the shooting and to which she was pleading guilty. But in that event, she would not have committed an offense under the obstructing of justice statute. As read to her by the trial court, the defendant stated that she understood the charge against her and wished to plead guilty thereto. But a legal prerequisite to the trial court’s acceptance of a plea of guilty is a presentment to the trial court a factual basis for every essential ingredient of the offense.

Supreme Court Rule 402(c) (107 Ill. 2d R. 402(c)) provides:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
* * *
The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” (Emphasis added.)

Pursuant to the mandate of Supreme Court Rule 402(c) and the aforestated constitutional due process mandates of Winship, Jackson v. Virginia, etc., the trial court directed and the prosecutor stated the factual basis for the plea as follows, which I set forth verbatim, rather than in summary form, for completeness and accuracy:

“THE COURT: Statement of facts.
MR. REILLY [assistant State’s Attorney]: The parties would be proceeding by way of stipulation through the State’s Attorney, by Assistant State’s Attorney James Reilly, and the Defendant, Ms. Josephine Cooper, through her attorney, Mr. Ron Grenda.
The parties would so stipulate that if called to testify, Detective Robert Dwyer, from the Chicago Police Department Area 2 Violent Crimes, were called to testify, he would testify that on October 13th of 1986, shortly before midnight, Mr. Rodney Williams was murdered at an apartment on 1376 West 79th Street. He would testify that he was killed by a shotgun wound to the cranium
He would further testify that during the course of his investigation, he had an opportunity to arrest one Eugene Cooper, the son of Mrs. Josephine Cooper. He would further testify that he had numerous conversations with Mrs. Josephine Cooper, whom he would identify here in open court, along with one Aaron Cooper, another son of the Defendant in this case.
He would testify his conversation disclosed that the weapon used in the homicide of Mr. Rodney Williams was given to Mrs. Josephine Cooper, on or about the 14th of October, placed in a safety deposit box that Mrs. Josephine Cooper had control over. He would testify that he subsequently obtained a search warrant for the search of that safety deposit box on the 14th of October, 1986.
He would further testify that he went to the safety deposit box, controlled by Mrs. Josephine Cooper, on October 14th of 1986, and went to that bank located at 200 East Randolph in Chicago, Cook County, Illinois. He would further testify that he subsequently recovered the handgun from the safety deposit box, along with several other handguns.
It would be stipulated that one of the handguns recovered from the safety deposit box was, in fact, the weapon used in the homicide of Mr. Rodney Williams.
After that weapon was submitted to the Chicago Police Department Firearms, where it was examined by Fire Examiner Donald Smith and was found to be the same weapon that was used to kill Rodney Williams, on or about the 13th of October, 1986.
It would be stipulated that the Defendant failed to cooperate with the police in recovering that weapon and was recovered after the police department obtained a search warrant for the recovery of that weapon at the Bank of Commerce.” (Emphasis added.)

Thereupon, the trial court stated that it “finds that there is a sufficient factual basis to the plea of guilty, and accordingly, on the charge of obstructing justice, plea of guilty, jury waived, finding of guilty, judgment entered on the finding.” (Emphasis added.) The trial court imposed a sentence of one year’s felony probation.

The defendant rightly contends before this court that there was no sufficient factual basis presented to the trial court for the plea of guilty to the offense of obstructing justice and that the trial court erred in entering judgment and sentence on the plea and in denying her motion to withdraw or vacate the guilty plea. The facts presented on the stipulation demands agreement with the defendant’s contentions.

The stipulated facts were that Rodney Williams, the deceased, “was killed by a shotgun wound to the cranium.” (Emphasis added.) It was additionally stipulated that during his investigation, Detective Robert Dwyer arrested “Eugene Cooper, the son of Mrs. Josephine Cooper.” The stipulated facts do not disclose for what reason Dwyer arrested Eugene Cooper. The stipulated facts do not reveal that Eugene Cooper was arrested for or charged with the murder of Rodney Williams, or with obstructing justice for his concealment of the murder weapon. There is not a single fact in the stipulation that Eugene Cooper was in any way involved in the Rodney Williams homicide, or that Eugene Cooper even had any knowledge of the facts of the Rodney Williams killing, or that Eugene Cooper even knew that Rodney Williams had been killed.

The initial stipulated facts were that Rodney Williams was killed by “a shotgun wound” to his head. (Emphasis added.) Subsequent stipulated facts were that Detective Dwyer’s “investigation disclosed that the weapon in the homicide of Mr. Rodney Williams was given to Mrs. Josephine Cooper on or about the 14th of October, placed .in a safety deposit box that Mrs. Josephine Cooper had control over.” (Emphasis added.) One would reasonably assume that the WEAPON referred to, used in the Rodney Williams killing and given to Mrs. Josephine Cooper, was the previously referred to SHOTGUN, which inflicted the FATAL wound to the victim’s cranium, which, it was stipulated, killed Rodney Williams.

There is no fact in the stipulation that Mrs. Cooper knew that the WEAPON given to her had been used in the homicide of Rodney Williams, the deceased. There is no fact in the stipulation that Mrs. Cooper even knew that the deceased had been killed. There is no fact in the stipulation that Mrs. Cooper had any knowledge that her son, Eugene Cooper, was in any way involved in the Rodney Williams homicide, if indeed he was involved. Moreover, there isn’t any fact in the stipulation that Mrs. Cooper even knew that her son had been arrested, and thus, for what reason he had been arrested. Furthermore, there is no fact in the stipulation identifying the person who gave “the WEAPON used in the homicide” to Mrs. Cooper, or any fact or circumstance surrounding her receiving it, or that the person who gave Mrs. Cooper the WEAPON was involved in or had any knowledge of the Williams shooting.

The stipulated facts do not state that Mrs. Cooper placed the weapon in the safety deposit box, or who placed the weapon in the safety deposit box. Nor do the stipulated facts state that Mrs. Cooper had exclusive control over the safety deposit box or that no one else had access to the safety deposit box but Mrs. Cooper. There are no facts in the stipulated facts from which any of the before mentioned absent facts may be rationally inferred.

The facts were further stipulated that in execution of a search warrant Detective Dwyer “recovered, the handgun from the safety deposit box, along with several other handguns,” and “that one of the handguns recovered from the safety deposit box was, in fact, the weapon used in the homicide of Mr. Rodney Williams,” and “that weapon was submitted to the Chicago Police Department Firearms, where it was examined by Fire Examiner Donald Smith and was found to be the same weapon that was used to kill Rodney Williams ***.” (Emphasis added.)

As previously noted, the stipulation initially stated that the deceased “was killed by a shotgun blast to the cranium” (emphasis added), and immediately thereafter, it was stipulated, the WEAPON used in the killing was given to Mrs. Cooper and was placed in a safety deposit box. But the stipulation of facts subsequently and conversely stated, however, that HANDGUNS were recovered from the safety deposit box and that one of the HANDGUNS recovered from the safety deposit box was the weapon used in the homicide of the deceased. A handgun and a shotgun are not the same.

The stipulated fact that the deceased “was killed by a shotgun blast to the cranium” cannot be reconciled with the subsequent stipulated fact that “one of the handguns recovered from the safety deposit box was in fact the weapon used in the homicide of Mr. Rodney Williams.” (Emphasis added.)

From the stipulated facts it cannot be discerned whether Mrs. Cooper was given a SHOTGUN or a HANDGUN. From the stipulated facts it cannot be discerned whether a shotgun or a handgun was the fatal weapon. The stipulated facts do not reveal that a shotgun was discovered in or retrieved from the safety deposit box. Moreover and again, no fact was presented that Mrs. Cooper knew that either a shotgun or a handgun had been used to kill the deceased, or that the deceased had even been killed. Likewise, and again, no fact was presented that Mrs. Cooper placed either the shotgun or the handgun in the safety deposit box. The defendant convincingly argues it is these foregoing glaring contradictions in the stipulated facts, that a SHOTGUN, a HANDGUN and the WEAPON were used in the killing, that made it impossible for the indictment to properly allege the identity and specificity of the weapon that the defendant allegedly concealed.

The stipulated facts failed to establish a factual basis for the guilty plea. The stipulated facts do not establish a violation of the obstruction of justice statute that the defendant was alleged to have violated.

Just as the indictment in the instant case is fatally defective because it failed to allege a requisite factual ingredient of the offense, i.e., that the defendant knowingly concealed the homicide weapon, the stipulated facts are likewise fatally inadequate because there is no fact establishing that the defendant knowingly concealed the homicide weapon, or, for that matter, that she even concealed the homicide weapon, knowingly or unknowingly. The stipulated facts are grossly incomplete and do not establish the offense charged. There was no factual basis for the plea, as required by Supreme Court Rule 402(c) and Winship and Jackson v. Virginia, et al.

The mandate of Rule 402(c) that there be a factual basis for the plea is not a mere cursory or perfunctory requirement. The rule demands more than a trial court merely rubber stamp a prosecutor’s ad-vocations and deficiencies. The Rule 402(c) mandate is one of serious and solemn magnitude. It is a command of constitutional due process dimensions.

In In re Winship (1970), 397 U.S. 358, 359, 25 L. Ed. 2d 368, 372, 90 S. Ct. 1068, 1070, the issue presented was “whether proof beyond a reasonable doubt is among the ‘essentials of due process and fair treatment’ required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.” In Winship, the juvenile was adjudged a delinquent based upon a preponderance of the evidence of his commission of a theft, which “if done by an adult, would constitute the crime of larceny” and would require proof beyond a reasonable doubt as a prerequisite for a finding of guilty The Supreme Court reversed, in language so magnanimous, I hereafter extensively quote:

“The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of All essential elements of guilt.’ ***
Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. [Citations.] *** ‘It is the duty of the Government to establish *** guilt beyond a reasonable doubt. This notion — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of “due process.” ’ [Citations.] *** ‘Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property ***.’ ‘[H]e *** is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime. *** No man should be deprived of life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them *** is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.’ [Citation.]
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ***
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good names and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. *** ‘Due process commands that no man shall lose his liberty unless the Government has borne the burden of *** convincing the fact-finder of is guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ [Citation.]
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is. also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Emphasis added.) 397 U.S. at 361, 362-64, 25 L. Ed. 2d at 373-74, 374-75, 90 S. Ct. at 1071,1071-73.

The foregoing language of Winship is intrinsically applicable to the case at bar. The “all essential elements” and “every fact necessary to constitute the crime with which [she\ is charged” were not established. (Emphasis added.) Reversal is commanded.

Jackson v. Virginia (1979), 443 U.S. 308, 61 L. Ed. 2d 560, 99 S. Ct. 2781, was a Federal habeas corpus proceeding in which the defendant challenged the sufficiency of the evidence to establish premeditation in his State court conviction for murder. The Supreme Court stated that “[t]he constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt [In re Winship, 397 U.S 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068].” And, that “the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt.” (Emphasis added.) (Jackson, 443 U.S. at 309, 313-14, 61 L. Ed. 2d at 566, 570, 99 S. Ct. at 2783, 2786.) The Supreme Court concluded in Jackson v. Virginia:

“In Winship, the Court held or the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” (Emphasis added.) 443 U.S. at 315, 61 L. Ed. 2d at 571, 99 S. Ct. at 2787.

The majority in the case at bar adroitly circumvents the absence of a factual basis for the guilty plea by erroneously embellishing the lack of a factual basis into the lucid arena of the defendant’s intent, and then mistakenly infers intent for fact. The inadequate stipulated facts do not present the issue of the defendant’s intent. Rather, the insufficient stipulated facts fail to establish not only intent, but also that the crime of obstructing justice was ever committed. There was no factual basis for the plea and thus there was no proof of the commission of the offense charged.

People v. Carter (1988), 165 Ill. App. 3d 169, 518 N.E.2d 1068, in which the sentence was reversed and upon which the majority mistakenly relies is not in point. Carter involved a revocation of probation hearing based upon a probation revocation petition which erroneously alleged that the defendant violated his probation by the commission of a theft on June 3, when the theft, the commission of which was undisputed, was actually committed on June 23. The Carter court noted that the defendant admitted the allegations of the revocation petition and stated that “[t]he relevant issues are whether the crime charged has been committed and whether defendant committed it.” (Emphasis added.) (165 Ill. App. 3d at 173.) Likewise, in the instant case, the relevant issue is that the stipulated facts do not establish that an offense of obstructing justice was committed. Moreover, as stated, an offense of obstructing justice was not alleged. This being so, it naturally follows that the factual stipulation to the facts alleged in the indictment could not establish that the defendant committed a crime, and the factual stipulation did not establish that a crime was committed.

In People v. Petrovich (1979), 77 Ill. App. 3d 737, 396 N.E.2d 629, the defendant pled guilty to aggravated kidnapping of a minor and was sentenced to eight years’ imprisonment. On his appeal he prayed that his guilty plea, conviction and sentence be vacated and the cause remanded with directions to allow him to plead anew. He contended that although his statements during his guilty plea proceedings established his commission of the offense, his statements likewise showed that he was forced, out of fear, to participate in the offense by the codefendant. The Petrovich court agreed, granted the defendant’s motion to withdraw his guilty plea, reversed the defendant’s conviction and remanded the cause for trial, stating: “The defendant’s primary contention on the merits is that his statement of facts concerning the instant offense at the time he pled guilty not only established the elements of the offense but also established his valid and substantial defenses of compulsion and necessity and, therefore, his plea should not have been accepted, but he should have been tried so that the question of fact raised by his statement could have been resolved.

We take note of the fact that since we are also considering the merits of a motion to withdraw a guilty plea, we are also held to the standards of discretion which would apply to a trial court. [Citation.] In applying those factors, we are of the opinion that the defendant here has shown in his statement at the guilty plea proceeding that he has, at the very least, a defense worthy of consideration by a finder of fact and, furthermore, that the ends of justice would be better served by a trial on the merits in this case.” (Emphasis added.) 77 Ill. App. 3d at 739.

In the case at bar, the ends of justice would also be better served by a trial on the merits, for no better reason than to determine whether the crime of obstructing justice was in fact committed. After all, according to the stipulated facts before us, the defendant herein, Mrs. Josephine Cooper, is the mother of Eugene Cooper. According to the allegations of the indictment, but which are not facts of guilt, Mrs. Cooper intended “to obstruct the prosecution of [her son] Eugene Cooper for the alleged shooting and killing of one Rodney Williams.”

In People v. Kifer (1979), 75 Ill. App. 3d 202, 393 N.E.2d 1080, the defendant was sentenced to six months’ imprisonment on his guilty plea to a battery upon his sister. In reversing the defendant’s conviction, the court stated that “the defendant admitted striking his sister, but denied striking her in the manner charged in the information. In addition, he stated that he hit his sister after intense provocation. If his statement is true, we find it hard to perceive how any jury or court sitting without a jury would find the defendant guilty.” (75 Ill. App. 3d at 207.) In the case at bar it is impossible to perceive that a jury or any court sitting without a jury could find the defendant guilty on the stipulated facts, even if the stipulated facts were proven beyond a reasonable doubt. It would be legally impermissible for a judge or jury to find a defendant guilty on the facts as stipulated. The essential elements of the crime were not established.

Finally, in People v. Edmonds (1973), 15 Ill. App. 3d 1073, 305 N.E.2d 346, the defendant pled guilty to voluntary manslaughter and was sentenced to an indeterminate imprisonment sentence of 1 to 10 years. On appeal she contended that there was no factual basis for the guilty plea. The evidence heard by the trial court was that the defendant shot and killed the deceased, who was beating her. In remanding the case “to the trial court *** with directions to permit the defendant to plead anew,” the court held that Rule 402(c) mandates that “the judge should determine prior to entering final judgment that the conduct of the defendant is sufficient to sustain the charge to which the defendant pleads guilty.” (15 Ill. App. 3d at 1079.) In the instant cause, the conduct of the defendant set forth in the stipulated facts does not sustain the charge and establish every essential ingredient of obstructing justice, to which the defendant pled guilty.

Although facts may not be required to be proven beyond a reasonable doubt in a guilty plea proceeding (People v. Carter (1988), 165 Ill. App. 3d 169, 172, 518 N.E.2d 1068), nevertheless, constitutional due process requires that adequate facts, a factual basis, be presented which establish that an offense was committed and every essential ingredient of the commission of that offense.

For the foregoing reasons, the defendant’s conviction should be reversed. Accordingly, I dissent.