author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Wills, Defendant-Appellant.
    (Nos. 12355-7 cons.;
    Fourth District
    September 19, 1974.

      John F. McNichols and Thomas Nelson, both of State Appellate Defenders Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, John Wills, appeals from judgments entered pursuant to guilty pleas for the offenses of burglary, escape and armed robbery and from concurrent sentences imposed of 3 to 9 years on the burglary, 3 years and 4 months to 10 years for the escape, and 5 to 30 years for the armed robbery. These three appeals have been consolidated for purposes of opinion.

Defendant raises the following issues for resolution by this court:

(1) Whether defendant’s guilty pleas to escape and armed robbery were voluntarily entered.

(2) Whether the trial court erred in not informing defendant of the possibility of probation, conditional discharge, and periodic imprisonment before accepting his guilty pleas to escape and armed robbery.

(3) Whether the trial court erred in not informing defendant of of the possibility of consecutive sentences before accepting his guilty pleas to escape and armed robbery.

(4) Whether the trial court erred in not informing defendant of the existence of a mandatory parole term before accepting his guilty pleas to burglary and escape.

On March 13, 1973, defendant’s counsel indicated that defendant wished to plead guilty to burglary. The court admonished defendant in regard to sentencing as follows:

“The Court: All right, sir. State statute in this case provides that a person who is convicted of the offense of burglary may be imprisoned in the penitentiary for not less than one nor more tiran 20 years. Now, this is what is known as an indeterminate sentence, one year being the minimum that the court can set and 20 years being the maximum that the court can set. In the event you should be. imprisoned — Now, let me explain that at a sentencing hearing the Court would consider other matters. They would consider probation: You’d have a right to, provide for probation. They could consider the possibility of conditional discharge which is a form of probation. The Court would have the sentencing alternative of periodic imprisonment which is a work release type program. But in the event the Court did not select these sentencing alternatives and chose to imprison you feeling that this was. the appropriate sentence, you could be sentence [sic] within that range. Now, the fuE sentence of the Court would be somewhere within that range. Let me give you an example. The Court could set a higher minimum and the Court could set a lower maximum if it saw fit to do so. So by way of example, under the statutory authority, the Court could sentence you to not less than five nor more than 15 years in which case you’d stay at least five years in the penitentiary and could stay up to 15. The Court could sentence you to not less than six years and four months nor more than 20 years. The Court could sentence you to not less than one nor more than three years. The Court will select the minimum and the maximum term within the range that the statute specifies. Do you understand what I mean by an indeterminate sentence and what your exposure would be? Defendant Wills: Yes, sir. # » #
The Court: Do you understand what the penalty can be for this —up to 20 years in jail?
Defendant Wills: Yes, sir.”

It was then pointed out to the court that this plea was not being taken pursuant to any type of plea agreement. The. court then entered judgment on the plea.

On May 14, 1973, defendant appeared before the court for a sentencing hearing on the burglary judgment. During the hearing and before imposition of the sentence the court was informed that defendant wished also to plead guilty to the offenses of escape and armed robbery. Tie court then continued the sentencing hearing in order to take pleas to these charges. The court admonished defendant in regard to sentencing as follows:

“The Court: The statute in this state provides as follows:
A person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony. Statute further provides by way of a penalty that a person who commits a Class 2 felony, in this case an escape, while charged with a felony, may be imprisoned in a penal institution for not less than one nor more than 20' years, and in addition thereto fined up to $10,000. Do you have any questions- regarding the statutory definition of escape or the possible penalty that could be imposed?
Defendant Wills: No, sir.
The Court: Now, when the statute refers to imprisoned for not less than one nor more than 20 years, this places limitations upon the Court, and in the event imprisonment were selected, you’d have to be sentenced to at least one year and the Court could not sentence you to more than 20 years. However within this range the Court could select a different sentence with a higher minimum or a lower maximum. Let me give you some examples. By way of example the Court could sentence you to not less than one nor more than three years in which case one year would be the minimum, three would be the maximum. Or the Court could sentence you to not less than three years nor more than nine years in which case three years would be the minimum or the shortest amount of time that you would be entitled to be released and the nine years - would be the longest period of time that you could be held. Again by way of example, the Court could sentence you to not less than six years and four months to more than 20 years. Do you understand this?
Defendant Wills: Yes, sir.
The Court: Have any questions' about the range of possible imprisonment terms that the Court could select on this charge?
Defendant Wills: No, sir.”

It was then stated to the court that there were no plea-bargaining agreements in existence as to either charge. The court then admonished defendant in regard to sentencing as follows:

“The Court: * * * Aimed robbery is a Class 1 Felony. Statute provides by way of penalty that armed robbery is a Class 1 penalty for which an offender must — may not be sentenced to death. The laws of this state provide by way of penalty that a person convicted of a Class 1 felony shall be imprisoned for four to any number of years plus five years parole. In addition thereto he may be fined up to $10,000. In defining the sentence in armed robbery I would explain to you that you are not eligible for parole upon a plea, finding or conviction of armed robbery.
Mr. Litak: I believe the Court said parole and meant to say probation.
The Court: Thank you for correcting me. I mean probation. You are not eligible for probation. As a matter of fact the parole provision is mandatory. You would serve five years parole time after serving your prison term under any circumstances. The limitations placed upon the Court are simply that tire Court must sentence you to at least four years. The upper limit is left entirely within the discretion of the Court. The Court could, in an appropriate case, increase the minimum time. You could be sentenced by way of example to not less than four nor more than 12 years. You could be sentenced to a higher minimum of not less than 10 nor more than 30 years. You could be sentenced to a term of years where the maximum was greater and the minimum remained at four so that you could conceivably be sentenced to not less than four years nor more than 60 years, any range that the Court might select. Do you understand the possibility of sentence penalty, imprisonment penalty under the aimed robbery charge?
Defendant Wills: Yes, sir.
The Court: Do you have any questions about it?
Defendant Wills: No, sir.”

The court then later stated to the defendant:

“The Court: Now, let me take a moment to explain the peculiar circumstances we find ourselves in today. You stand before the Court initially for sentencing on a burglary. Burglary carries a sentence of one to 20 years of imprisonment as selected, although you would be eligible to apply for probation, periodic imprisonment, conditional discharge in the burglary. You are now asking the Court to allow you to plead guilty to armed robbery which is nonprobational and escape which carries a possible penitentiary sentence of one to 10 years. I want to be very clear about one thing. If you do not plead guilty today on the armed robbery, you will be sentenced today only for the burglary. I want to make absolutely certain that you understand that I will not take into account the fact that you are charged with an armed robbery or charged with an escape or that you might have escaped or that you’ve even told me in the plea up to this point that you wish to plead guilty to the escape and the armed robbery. These matters will not be taken into account on a sentence for burglary. I don’t want you to plead guilty because you feel, well, this Judge knows about an armed robbery and an escape and he’s going to jolt me on the burglary anyway and he’s going to take these things into account on the burglary and therefore I might as well plead guilty to all of them. If you are sentenced on your burglary plea, you will be sentenced only on your record as it existed at the time you plead guilty unless additional information is brought to the Court’s .attention in a proper "manner, and no information has been brought to the Court’s attention. So in this case if I-were to sentence you on the burglary count ybu would be sentenced only upon the information available to me at the time you plead guilty plus the information that’s included-in the presentence report. The State then would have a right to bring you back if they wanted to and try you on the armed robbery or they could bring you back and try you on the escape, but you understand that if we sentence you only on the burglary, this would be the only matter that would be considered by you, and you’re not pleading guilty because you feel it’s necessary because the Court might take these matters into account in sentencing on the burglary, are you? I’ve been a little confusing in my remarks. They’ve rambled on.
Defendant Wills: Yes, sir.
The Court: Understanding this, you wish to plead guilty at this time to the indictment charging you with armed robbery and to the information charging you with escape, is that correct?
Defendant Wills: Yes, sir.”

The court then entered judgments on the guilty pleas to escape and armed robbery, conducted a sentencing hearing on all three charges, and sentenced defendant to the concurrent terms stated above. On May 21, 1973, defendant filed his notice of appeal.

It is first contended that defendant was confused about the possibility of receiving an enhanced sentence on the burglary plea were he to plead not guilty to the escape and armed robbery charges. Therefore, the pleas to armed robbery and escape were not voluntarily entered as required by Supreme Court Rule 402(b). It clearly appears from an examination of the record that the trial judge carefully explored this problem with defendant and explained it to him in plain, concise language. Furthermore, the trial judge clearly stated that if defendant pled not guilty to the escape and armed-robbery charges, such a plea would not be considered in sentencing on the burglary charge. Defendant then stated that, understanding this, he still wished to persist in his guilty pleas to escape and armed robbery. We find no merit in this contention.

Defendant next contends that the trial court did not substantially comply with Supreme Court Rule 402(a)(2) in not informing defendant of the minimum sentence prescribed by law before accepting defendant’s guilty pleas to armed robbery and escape. Therefore, these pleas should be vacated, and defendant should be permitted to plead anew. We deem this argument to be without merit and controlled by this court’s decision in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148. We note that in the present case defendant was informed by the trial court prior to accepting his guilty plea to armed robbery that such an offense was a Class 1 felony carrying an indeterminate term of 4 to any number of years. Defendant was not informed, however, of the possibility of periodic imprisonment under section 5 — 7—1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 7— 1). As this court stated in Butchek defendant need not be informed of periodic imprisonment and Supreme Court Rule 402(a)(2) was fully complied with in regard to the armed-robbery charge. We note that defendant was informed by the trial court prior to accepting his guilty plea to escape that such an offense is a Class 2 felony carrying an indeterminate term of from 1 to 20 years. Defendant was not informed, however, of the possibility of probation, conditional discharge and periodic imprisonment. Since whether a defendant need be informed of probation and conditional discharge before accepting a guilty plea in order to comply with Rule 402(a)(2) was not at issue in Butchek. in that the armed-robbery charge there precluded such sentencing alternatives, we find the rationale of Butchek to be equally appl'cable where such alternatives are available. Therefore, defendant need not be informed of the possibility of probation, conditional discharge and periodic imprisonment and Rule 402(a)(2) was also fully complied with in regard to the escape charge.

The trial judge did not admonish defendant as to the possibility of consecutive sentences, nor did he impose a consecutive sentence. This circumstance has been previously considered on several occasions. In People v. Flannigan, 131 Ill.App.2d 1059, 267 N.E.2d 739, the trial judge had failed to admonish as to the possibility of consecutive sentences, and he imposed a consecutive sentence. The appellate court reversed. In People v. Dixon, 20 Ill.App.3d 65, 314 N.E.2d 697, the trial judge did not admonish as to the possibility of consecutive sentences, but did not impose a consecutive sentence. The appellate court affirmed, finding no resulting prejudice. Other cases have held that where the trial judge understates the possible maximum penalty, but sentences within the limits stated no prejudice results to the defendant. (People v. Hrebenar, 131 Ill.App.2d 877, 266 N.E.2d 733; People v. Drisdel, 17 Ill.App.3d 848, 308 N.E.2d 843; People v. Reynolds, 19 Ill.App.3d 641, 312 N.E.2d 293.) We agree that no prejudice results when a defendant has been admonished as to the maximum risk to which he exposes himself in entering a plea of guilty, though that risk is understated by the trial judge, provided he is sentenced within the limits stated to him. Such a rule is fundamentally fair both to the defendant and to the People. The attendant safeguard lies in the requirement that the plea must be vacated in the event that the defendant is sentenced to a term in excess of the maximum stated to him by the trial judge. We therefore overrule our decision in People v. Zatz, 13 Ill.App.3d 322, 300 N.E.2d 16, and find no error in the failure of the trial judge to admonish defendant as to the possibility of consecutive sentences where a consecutive sentence was not imposed.

Defendant next ruges that his pleas to the offenses of burglary and escape should be vacated because of the failure of the trial judge to admonish as to the mandatory parole term imposed under the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.), hereinafter referred to as “the Code.” This contention requires analysis of the pertinent provisions.

Burglary and escape (in the instant case) are Class 2 felonies. (Ill. Rev. Stat. 1973, ch. 38, pars. 19 — 1(b) and 31 — 6(a).) Sections 5 — 8—1 (a) and (e)(2) of the Code provide that:

“(a) A sentence of imprisonment for a felony shall be an indeterminate sentence set by the court under this Section.
# # #
(e) Every indeterminate sentence shall include as though written therein a parole term in addition to the term of imprisonment. Subject to earlier termination under Section 3 — 3—8, the parole term shall be as follows:
(2) for a Class 2 felony * # * 3 years.

The council commentary to that section states:

“Subparagraph (e) establishes parole terms according to classes of felonies which are an integral part of the sentence of imprisonment. Every indeterminate sentence includes a parole term as though written into the sentence. Thus, although the judge will ordinarily state the appropriate parole term in passing sentence, his failure to do so will not affect the automatic inclusion of the parole term in the felony sentence of imprisonment under this section.”

The mandatory parole term is clearly a part of every sentence imposed on a felony conviction since section 5 — 8—1(e) of the Code provides that every indeterminate sentence shall include a parole term “* * * in addition to the term of imprisonment.” (Emphasis added.)

The Code further provides, in section 3^3 — 5(e) that:

“A person who has served the maximum term of imprisonment imposed at the time of sentencing less time credit for good behavior shall be released on parole to serve a period of parole under Section 5 — 8—1 [the mandatory parole period for all indeterminate sentences]” (Emphasis added.)

Section 3 — 3—9(a) provides:

“(a) If prior to expiration or termination of the term of parole, the parolee violates a condition of- parole, the Parole and Pardon Board may:
(1) continue the existing parole, with or without modifying or enlarging the conditions; or
(2) parole the person to a half-way house; or
(3) revoke the parole and reconfine the person for a term computed in the follouAng manner: [emphasis added]
(i) the recommitment shall be for that portion of the imposed maximum term of imprisonment or confinement which had not been served at the time of parole, less the time elapsed between the parole of the person and the commission of the violation for which parole was revoked, and, in addition, if the person was sentenced on or after the effective date of this act the parole term; and
(ii) the person shall be given credit against the term of reim-prisonment or reconfinement for time spent in custody since he was paroled which has not been credited against another sentence or period of confinement.
# # #
(e) A hearing on revocation shall be conducted before at least one member of the Parole and Pardon Board. * * * A record of the hearing shall be made. At the hearing the parolee shall be permitted to:
(1) appear and answer the charge of parole violation; and
(2) bring witnesses in his own behalf.
(f) The Board shall either revoke parole or order the person continued on parole, with or without modification or enlargement of the parole conditions.”

The council commentary appended to this section of the statute recites that “This section increases the potential length of incarceration for persons sentenced on err after January 1, 1973, by making the violator subject to confinement for the remainder of his term of imprisonment and his parole term * * (Emphasis added.)

The traditional concept of parole has entailed the notion of discretionary release and supervision prior to serving of the maximum sentence imposed by the trial judge, with provision for serving no greater term than the maximum sentence upon revocation of parole. Under the foregoing provisions of the Code, however, an entirely different proposition emerges, and it is one which is of significant impact upon the defendant.

The conditions of parole are left, to a substantial degree, to the discretion of the Parole and Pardon Board. The most significant condition imposed by the Code being the prohibition against commission of another offense. See section 3 — 3—7(a), which provides:

“(a) The conditions of parole shall be such as the Parole and Pardon Board deems necessary to assist the parolee in leading a law-abiding life. A condition of every parole is that the parolee
:will not commit another offense or act of delinquency during the parole term.”

Subparagraph (b) of section 3 — 3—7 provides that in addition to the mandatory conditions of parole set forth about the Parole and Pardon Board may require that the parolee:

“(1) work or pursue a course of study or vocational training;
(2) undergo medical or psychiatric treatment, or treatment for drug addiction or alcoholism;
(3) attend or reside in a facility established for the instruction or residence of persons on probation or parole;
(4) support his dependents;
(5) refrain from possessing a firearm or other dangerous weapon;
(6) report to a parole agent;
(7) permit the parole agent to visit him at his home or elsewhere;
(8) and, in addition, if a minor:
(i) reside with his parents or in a foster home;
(ii) attend school;
(iii) attend a non-residential program for youth;
(iv) contribute to his own support at home or in a foster home.”

Under section 3 — 3—9(a)(1) the Parole and Pardon Board may enlarge or modify the conditions of parole, and under the provisions of this section of the Code parole may be revoked. It is clear that upon revocation a defendant may be incarcerated for a term in excess of the maximum term of the indeterminate sentence imposed by the trial judge. We arrive at this conclusion by reason of the plain language of section 3 — 3—9 (a)(3) (i) of the Code which provides that upon revocation the Parole and Pardon Board may, in its discretion, reconfine the defendant for that portion of the maximum term which had not been served at the time of parole “* * * and in addition # * * the parole term * * *” less the time spent on parole to the date of the commission of the violation giving rise to revocation. The council commentary to this section recites that “This section increases the potential length of incarceration for persons sentenced on or after January 1, 1973, by making the violator subject to confinement for the remainder of his term of imprisonment and his parole term.” (Emphasis added.) To exemplify: A defendant is sentenced by a trial judge to an indeterminate term of 1 to 3 years for burglary, a Class 2 felony which carries a mandatory parole term of 3 years. The defendant is paroled at the end of the first year. After 1 year, parole is revoked, and the Parole and Pardon Board may, under the above-quoted provisions of the Code, order the defendant reincarcerated for the remaining 2 years of the 3-year maximum term imposed by the trial judge and for the 3-year mandatory parole term less the 1 year spent on parole. This yields a 5-year period of incarceration on a 3-year maximum sentence. The facts of the example can be altered to yield even harsher consequences to a defendant.

We have found no other jurisdiction in which similar parole provisions exist at the present time, with the exception of the special parole term which is provided for in 21 U.S.C. § 841(c). This section provides for a special parole term which is mandatory in connection with certain narcotics violations. Violation of the conditions of the special parole term can result in a defendant being imprisoned for an additional term of years. In taking a plea in a case in which the defendant is subject to a special parole term, the district judge is required under the provisions of Federal Rule 11 to advise the defendant as to “the consequences of the plea,” which must include an admonishment concerning the special parole term. In United States v. Richardson (8th Cir. 1973), 483 F.2d 516, in so holding, the court stated that the special parole term possesses ramifications that are different from the traditional concept of parole, and “Further, a violation of the conditions of the terms of the special parole can result in an enhanced sentence for the length of the special parole term, which in effect constitutes a second sentence.” See also Roberts v. United States (3rd Cir. 1974), 491 F.2d 1236.

In view of the consequences which may flow from a violation of parole conditions, resulting in revocation of parole and possible reincarceration for a term in excess of the maximum term imposed by the trial judge, it follows that imposition of the mandatory parole term entails a direct consequence of the plea concerning which the defendant must be admonished. We would so hold despite the number of pleas taken since January 1, 1973 (the effective date of the Unified Code of Corrections), which would be required to be vacated either on direct appeal or in a post-conviction proceeding, were it not for what we perceive to be basic constitutional infirmities in the statute, which we note as plain error.

In our view these infirmities consist of the denial of procedural due process at the point where the Parole and Pardon Board determines whether or not to revoke parole and impose the sanctions contained in section 3 — 3—9 of the Code. It is clear that these sanctions entail an enhanced penalty, incarceration in many instances for a term in excess of the maximum term imposed by the trial judge. It is equally plain that in order to invoke the “second sentence” the defendant must commit an act which violates the parole conditions, the Parole and Pardon Board must determine that he has done so, and the enhanced penalty is imposed, not for commission of the original offense, but rather as a penalty for- the subsequent parole violation.

, The-only procedural requirements embodied in the Code relating to revocation of parole are contained in section 3 — 3—9(d) and (e), which provides for written notice of alleged violations, and a revocation hearing conducted before “* * * at least one member of the Parole and Pardon Board,” and which requires a record of the hearing. Also it is provided that at the hearing the defendant may appear to answer the charges and may present witnesses in his behalf.

These statutory procedural requirements are supplemented by the rules and regulations of the Parole and Pardon Board which are contained in the publication “Rules Governing Parole, State of Illinois, Department of Corrections, Parole and Pardon Board,” only to the extent of providing, at page 14 of the regulations, that a parolee charged with violating a condition of parole shall have a preliminary hearing before a hearing officer designated by the Board to determine if there is cause to hold the parolee for a revocation hearing.

The regulations (p. 39), in addition to following the statutory requirement that the revocation hearing be conducted before * * at least one member of the panel * # *” provide that “The member will interview the parolee, any witnesses, and any persons who appear in support of the charge of violation,” and that “The member will also consider all reports and written affidavits * * * in support of the charge against him,” and that “The member shall not be bound by strict rules of evidence in conducting the hearing.” The regulations further provide (p. 38) that having received written notice setting forth the alleged violation the defendant “* * shall be entitled to disclosure of evidence against him, opportunity to be heard in person and to present witnesses and documentary evidence and shall have the right to confront and cross-examine adverse witnesses (unless the panel member specifically finds good cause for not allowing confrontation).” Neither the statute nor the regulations bestow the right to counsel, nor the right to appointed counsel in the case of indigency. The only reference to counsel is contained in the foreword to the rules, which recites that “As a courtesy, the Board will hear retained counsel when requested and by appointment only.” This statement, taken in context, seems to relate to release on parole, not revocation.

The hearing on parole revocation is the critical stage at which the fact of parole violation is established, followed by possible determination to impose the second sentence or enhanced penalty. It is apparent that many of the basic constitutional guarantees afforded to those accused of committing an act which may result in incarceration are not provided for. There is, as we have noted, no provision for counsel, either retained or appointed. Evidence may be received in the form of affidavits or “records,” and the member hearing the case may “for good cause” deny the right of cross-examination. There is no statutory requirement, nor is there any provision in the rules and regulations, setting forth any burden of proof required to establish a violation of the conditions of parole. There is also no provision for trial by jury. The foreword to the rules and regulations (p. 2) recites that “Board [panel] decisions are final and not appealable. Reconsideration can be accomplished only through a successful application for a rehearing * ” The Code likewise contains no provision for appeal. The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, dealt with the procedural problems involved in revocation of parole as the term has been traditionally used. In Morrissey the revocation would result in the defendant’s reincarceration for a term not to exceed the maximum term imposed by the district judge. The court stated, “We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. [Citation] Parole arises after the end of tire criminal prosecution, including imposition of sentence * * (408 U.S. at 480.) The court continued, “Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ [Citations.] The question is not merely the weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. [Citation.] Once it is determined that due process applies, the question remains what process is due.” (408 U.S. at 481.) The court then prescribed certain minimal procedural requirements applicable to traditional parole revocation, many of which are provided by the Code and the rules and regulations of the Parole and Pardon Board. Nevertheless, we are not here concerned with parole in its traditional concept. Here the parole revocation hearing bears all of the indicia and consequences of a criminal proceeding. Its function is to provide a determination as to whether or not the parolee has been guilty of violating one or more of the terms of his parole, and a finding that he has in fact done so triggers the authority of the Board to impose the enhanced penalty, i.e., further incarceration under the mandatory parole term. That the nature of the interest involved here is within the “liberty * * .* language of the Fourteenth Amendment” and within the due process guarantees of article I, section 2 of the 1970 Illinois Constitution does not seem debatable.

In City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146, the supreme court determined that the authority given to the Board to impose monetary penalties under the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111%, pars. 1033(b), 1042) did not constitute a delegation of judicial power in violation of the separation-of-power provision of the Constitution of Illinois or in violation of the Constitution of the United States. The court, in arriving at this conclusion, stated: “It is not disputed that there is before us only the question of the imposition of civil penalties. There is no contention that the penalties concerned here were designed to be or are considered criminal sanctions. [Citation.]” (Emphasis added.) (57 Ill.2d at 172-173.) The court then discussed and reviewed those oases which had upheld grants of authority to administrative agencies to impose monetary penalties. It then noted that “[opportunity for judicial review certainly has been influential in the decisions of this court when claims have been made that'delegations to administrative agencies have violated the separation of powers.” (57 Ill.2d at 181.) The court stated that, inter alia, the Act separated the investigative and prosecuting body from the adjudicative body, that it provided for representation by counsel, that the standard of admissibility for evidence is the standard under the law of rules of evidence in civil actions and that the actions of the Board were reviewable by the appellate court under the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 111%, par. 1041; ch. 110, par. 275 et seq.).

The importance attached to these safeguards attendant upon the imposition of the civil monetary penalties imposed by an administrative agency and sanctioned by the court in City .of Waukegan become even more compelling when, as here, criminal sanctions are involved. Furthermore, the authority to impose sentence to a penal institution is purely a judicial function and that authority may not be delegated. In People v. Montana, 380 Ill. 596, 44 N.E.2d 569, the supreme court held unconstitutional certain 1941 amendments to the Sentence and Parole Act as an invalid delegation of judicial powers to the Division of Correction, the administrative agency. These amendments provided that the court should make only an advisory recommendation as to the minimum and maximum duration of imprisonment. It was further provided that the Division of Correction could increase or diminish the recommendation of the court by the concurrence of four of its five members (and the approval in writing of the Director of the Department of Public Safety) provided that the minimum term is not less than and the maximum term is not greater than that prescribed by law for the offense. In the process of invalidating those provisions the court used- language particularly pertinent to our present discussion:

“* * * The power to impose sentence as a punishment for crime is purely judicial. The sentence must be definite and certain. As such it is final, subject only to review by higher courts. As this court said in People ex rel. Martin v. Mallary, 195 Ill. 582:. In the administration of the criminal laws of the State there is no power outside of the courts to authorize the punishment of persons for crime by confinement in the penitentiary, and the constitution expressly inhibits any person or collection of persons of • one department of government from exercising any power properly belonging to either of the others.’ * * * it is seen that a change of the recommendation increasing the maximum is in effect an increase of the sentence by an administrative body. * * * it requires no citation of authority to demonstrate that under our form of government an administrative board has no power to change a judicial judgment. (Emphasis added.) 380 Ill. at 608, 609.

The statutory scheme then, as supplemented by the rules and regulations of the Pardon and Parole Board, establishes, in our view, a mechanism by means of which an administrative agency, appointed by the executive branch of the government, may, without attendant procedural safeguards, and without provision for judicial review, incarcerate an individual for a term of years in excess of the maximum term which the sentencing judge saw fit to impose. This involves a criminal sanction, the imposition of which is a judicial function that cannot be delegated by statute or rule.

We therefore hold that section 5 — 8—1(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(e)) and that portion of section 3 — 3—9(a) (3) (i) giving the Parole and Pardon Board the authority to recommit beyond the maximum term of imprisonment imposed by the trial court are unconstitutional and void in that they offend the due process clauses of the fourteenth amendment to the United States Constitution and article 1, section 2, of the 1970 Illinois Constitution and the separation-of-powers provision of article 2, section 1, of the 1970 Illinois Constitution. We conclude then that lack of admonishment as to the mandatory parole term was not error.

Judgment affirmed.

In view of the nmnber of cases pending in the appellate court involving the application of Rule 402 since the effective date of the Code of Corrections, we have this day, on our own motion granted a certificate of importance and directed the same to issue.

SMITH, P. J., and TRAPP, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lavon Logan, Defendant-Appellant.
    (No. 12285;
    Fourth District
    October 17, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender s Office, of Springfield, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a judgment of the circuit court of Adams County imposed on a jury verdict finding him guilty of violation of his bail bond while on bail for a misdemeanor and a 1-year sentence imposed on the jury’s verdict. The sentence was to be served consecutive to any other sentence the defendant was then serving. The defendant contends that the sentence is excessive and should be reduced to run concurrently with the other sentences the defendant is serving.

This sentence was imposed after the Unified Code of Corrections became effective January 1, 1973. (Ill. Rev. Stat. 1973, ch. 38, par, 1001— 1— 1 et seq.) Accordingly, the issue here must be decided in accordance with its terms. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.

At the time this sentence was imposed, the defendant had appealed a 2- to 4-year sentence on a jury verdict finding him guilty of the crime of intimidation. (People v. Logan, 17 Ill.App.3d 1025, 309 N.E.2d 251.) The conviction was reversed by this court following the sentence imposed in tire instant case. Likewise the defendant had been convicted of armed robbery and sentenced to the penitentiary for a period of 5 to 20 years and that conviction was considered in this court and the judgment was reversed and remanded to the trial court for further proceedings (People v. Logan, 16 Ill.App.3d 870, 307 N.E.2d 200.) The defendant had been sentenced to serve 15 to 30 years in the penitentiary for armed robbery and that conviction and sentence is still pending in this court.

In requesting the court to impose a consecutive sentence, the State’s attorney stated that it should be made consecutive to have any meaning whatsoever even though the sentence was to the State Farm at Vandalia for a period of 1 year. The defendant contends that the defendant’s sentence should not be consecutive because he was already serving this 15- to 30-year sentence and a consecutive sentence of 1 year at the State Farm would be a “very discouraging factor” with respect to the defendant’s rehabilitation, and that a consecutive sentence is not required “to protect the public from further criminal conduct by the defendant.” While it is true that violation of the bail bond is not an offense that would per se subject the public to any serious danger to the property or persons of the body politic, it is nevertheless made a criminal act under our laws.

Nevertheless the sentence here imposed was to be served consecutively to any other sentence the defendant was then serving. Such a sentence is too broad and too indefinite and should identify in the judgment order the sentence to which it is consecutive. In People v. Walton, 118 Ill.App.2d 324, 254 N.E.2d 190, this court held that a sentence to commence in the future must be so certain that the termination of the first term and the commencement of the second must be ascertainable from the record without the necessity of construing or supplementing that record. (See also People v. Toomer, 14 Ill.2d 385, 152 N.E.2d 845.) ■ Where, as here, the order fails to clearly define the limits of the sentence intended to run consecutively, the cause must be remanded for proper sentence. Accordingly, the judgment of conviction is affirmed, the sentence is vacated and the cause is remanded with directions to enter an appropriate sentence in accordance with the views herein expressed.

Affirmed in part; reversed in part, and remanded with directions,

TRAPP and GRAVEN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph L. Wright, Defendant-Appellant.
    (No. 11867;
    Fourth District
    October 17, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.

      C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Edward N. Morris, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of Sangamon County entered on jury verdicts finding him guilty of a four-count indictment charging the offenses of resisting a peace officer, driving without a valid driver’s license, fleeing from a peace officer, and violation of the driver’s license compact. A 60-day sentence was imposed for resisting a peace officer and 10 days for fleeing a peace officer. No sentences or fines were imposed on the driver’s license charge.

The State confesses error in the convictions as to the defendant’s driver’s license for the reason that the defendant’s driver’s license had been improperly suspended without a hearing, and that such action by the State constituted a violation of procedural due process. (Bell v. Burson, 402 U.S. 535 (1971); Pollion v. Lewis, 320 F.Supp. 1343 (N.D. Ill. 1970).) Pollion directed the Illinois Secretary of State to reinstate the driver’s license that had been unconstitutionally suspended and that a reasonable opportunity be given to the license holder to renew them.

The convictions relating to the licenses are accordingly reversed. Objection is also made to the assistant State’s Attorney who prosecuted the case. It was called to the attention of the court and the State’s Attorney that the assistant had previously represented this defendant in a criminal matter and that there might be a conflict of interest. A written motion to disqualify the assistant prosecutor was filed and denied. Cited in support of this motion is our case of People v. Curry, 1 Ill.App.3d 87, 272 N.E.2d 669. That case has no discernible relevance to the case at bar. It involved a situation where an attorney had defended a client on the charge for which he was granted probation. Subsequently this same attorney became a State’s Attorney and represented the People at the probation revocation hearing in the same case. In People v. Krause, 7 Ill.App.3d 701, 288 N.E.2d 530, the attorney felt that there was a conflict of interest for the very cogent reason that he represented the party posting the bond money for the defendant. The facts here stated are wholly different from those stated in People v. Richardson, 7 Ill.App.3d 367, 287 N.E.2d 517; People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441, and People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81. In each of these cases, there was a direct conflict of interest involved, either presently or in the past. In the case at bar, the assistant State’s Attorney had some 2 or 3 years before represented this defendant when serving as a public defender. No connection whatsoever is shown between such service and: this case nor is any information suggested indicating that the assistant prosecutor acquired any information usable in the case at bar. There is nothing in this charge, therefore, that suggests any impropriety or even an inference of impropriety. In fact, here the special prosecutor when asked by the members of the grand jury about the defendant said that while he knew him he could not and must not answer any questions. We do not regard the cases cited by the defendant as apropos in this case nor do we intend to here water down the obligation of an attorney to carefully avoid the appearance of impropriety or of a conflict. It seems to us that there is clearly neither appearance of nor actual conflict of interest nor impropriety in the instant case.

Lastly the defendant contends that it was error for the trial court to deny a challenge to the arrays of both the grand and petit juries. The 26th amendment to the United States Constitution was declared ratified on July 5, 1971, authorizing 18-year-old men and women to vote. The indictment in this case was in January 1972 and the conviction in March, 1972. At the time of the occurrences here, section 2 of “An Act concerning jurors * # *” (Ill. Rev. Stat. 1971, ch. 78, par. 2), placed the age limit at 21 years. This age limit was subsequently reduced to 18 years by an amendment effective October 1, 1973. Section 9 of the same act provides that grand jurors must meet the same qualifications section 2 imposes for petit jurors. Section 9 (Ill. Rev. Stat. 1971, ch. 78, par. 9) likewise requires that grand jurors, like petit jurors must be ‘legal voters.” It is the position of the defendant in this case that there was sufficient time between July 1, 1971, and the indictment in January and the trial in March of 1972 to have included 18-to 21-year-olds on the jmy list. The defendant relies on an attorney general’s opinion which properly reached the conclusion that 18-year-olds may properly serve as jurors and should therefore be on the registration list and jury list. That opinion in this case, however, does not per se make the grand jury which indicted this defendant or the petit jury which tried him illegally constituted. It appears that it was possible to have included registered voters in the jury , list upon request of the Jury Commission. Defendant urges then that there was no attempt to comply with the law and assumes that the adoption of the constitutional amendment authorizing 18-year-olds to vote mandated that they be included in the juror’s list forthwith. This is not so. It is to be noted that the Illinois statute was not changed by the legislature to include 18-year-olds in this jury list, effective as of October 1, 1973. That they could have been included before is clear, but not mandated.

The issue here presented has been decided contrary to the position of the defendant. In United States v. Duncan, 456 F.2d 1401 (9th Cir. 1972), a witness was held in contempt of court for refusing to answer questions' before a grand jury. She argued that the Federal Jury Selection Act requiring jurors to be 21 years of age was unconstitutional in the light of the 26th amendment granting franchise to those 18 years of age or older. The Federal statute, like the Illinois statute, tied in the jury selection procedures with voter registration lists. Thus the witness argued that the 21-year-old-minimum proviso was either of no effect or unconstitutional as a denial of equal protection of the law and since this was so, she could not be held in contempt of court for refusal to answer questions before an illegally constituted body. The circuit court of appeals rejected this argument and held that Congress could establish a minimum age above the 18-year limit because “Congress can validly consider a fully-educated citizenry more important than jury service by those still in the educational process.” This same view has been held in other cases. State v. Silva, 259 So.2d 153 (Fla. 1972); Shelby v. State, 479 S.W.2d 31 (Tex. Cr.App. 1972).

We might likewise observe that section 2 of “An Act in relation to jury commissioners ” * *” (Ill. Rev. Stat. 1971, ch. 78, par. 25) provides that the jury list must be prepared by the Jury Commission every 4 years although the list may be revised and amended annually within the discretion of the Commissioners. A witness testified that the Jury Commission had last requested a jury list from the Election Commission in the latter part of 1970, and it was that list which was being used for jury selection in Sangamon County at the time of the defendant’s trial. To fully comply with the defendant’s request in this case would have necessitated the Jury Commission on its own to have tossed out the complete list of jurors even though it had not been exhausted and there was otherwise no occasion for it to be abated.

Perhaps more cogent than what has just been said is that the failure to comply with the statute specifically will not be grounds for reversal unless a defendant can demonstrate that he was prejudiced. (Poole v. Lansden, 183 Ill.App. 609; People v. Coffman, 338 Ill. 367, 170 N.E. 227.) In People v. Powell, 53 Ill.2d 465, 292 N.E.2d 409, there is a clear indication that “neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group” and “it is incumbent upon defendant to establish a prima facie case of purposeful exclusion.” There is nothing in this record to demonstrate that there was any purposeful avoidance of the statute and in addition, the age limit in Illinois was not reduced by legislative action until an effective date of October 1, 1973. The fact that 18-year-olds became eligible to vote in July 1971 does not ipso facto entitle them to be included in the jury list until such time as the juror selection system of Illinois has a reasonable opportunity to function. The time utilized here was not unreasonable.

Accordingly, the judgment of the circuit court of Sangamon County is affirmed and the cause remanded to that court for the issuance of an amended mittimus in accordance with this opinion.

Affirmed in part; reversed in part and remanded with directions.

CRAVEN and TRAPP, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Katherine L. Schafer, Plaintiff-Appellant, v. Valley Forge Life Insurance Company, Defendant-Appellee.
    (No. 73-86;
    Second District
    October 4, 1974.

      Gordon F. DeHart, of Aurora, for appellant.
    Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora (Robert Peter Grometer, of counsel), for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The complaint herein seeks recovery of group insurance on the life of Peter F. Schafer. Appellant appeals from a summary judgment by tire Circuit Court of Kane County denying recovery on the ground of fraudulent representations made in the application therefor. As will appear, we have concluded that the judgment should be reversed for failure of defendant to establish its compliance with a contract provision for furnishing a copy of the application to the beneficiary or to the insured prior to the latter’s death.

Peter F. and Katherine Schafer obtained a real estate loan from First National Bank giving a mortgage as security. Schafer submitted a written application to defendant insurance company seeking insurance on his life under a group policy issued by defendant to First National Bank. In the application Schafer represented that he was in good health and that he had not consulted for or been treated for illness.

A certificate of insurance under the group policy was delivered to Schafer evidencing insurance on his life effective April 1, 1968, and naming the creditor bank as beneficiary. Premiums were paid as required. Schafer was killed in an accident on September 18, 1968, and application was made for the proceeds of the policy. Defendant insurance company denied liability on the ground that Schafer had made false statements as to his health on his application. This action to recover on the policy followed.

At the hearing on the motion for summary judgment the application was introduced as well as evidence that Schafer had recently been treated for a heart condition which was not shown on the application. As stated the court ruled that Schafer’s misrepresentations vitiated the insurance and denied recovery.

As ground for reversal appellant urged error by the court in admitting the application in evidence in that (1) it was not attached to, the policy as assertedly required by the Illinois Insurance Code, section 154 (Ill. Rev. Stat. 1967, ch. 73, par. 766), and (2) a copy was not furnished Schafer or his beneficiary prior to his death as required under the basic group policy.

The parties disagree as to whether section 154 which is found in article IX of the Insurance Code dealing with “Provisions Applicable to all Companies,” was intended to apply to group life insurance transactions. Group life insurance is dealt with in article XIV, section 230 et seq. (Ill. Rev. Stat. 1967, ch. 73, par. 842 et seq.)

It is not necessary to construe these statutes because contractual provisions of the policy itself are decisive of the issue without reading into the policy any statutory mandate.

The group life insurance policy between defendant and the bank provides:

“Entire Contract: This policy, and the forms attached at issuance listed on the first page of this Policy, and the Master Application-which is attached hereto and made a part of this policy, and the individual applications of the insured Mortgagors, if any, constitute the entire contract of insurance. All statements made by the Master Policyholder or any insured Mortgagor shall be deemed representations and not warranties, and no such statements shall be used in any contest unless a copy of the instrument containing the statement is, or, has been furnished to such person or to his beneficiary.” (Italics supplied.)

The defendant neither offered any evidence nor contended that a copy of Schafer’s application was furnished in any manner prior to Schafer’s death.

The purpose of such a provision is to provide an opportunity to review the application while the insured is still alive and to correct misstatements which may appear therein. The provision may not be complied with by furnishing a copy after insured’s death as it is then too late to serve this purpose. (Meyer, Life and Health Insurance Law § 6:8 (1972).) Coleman v. Aetna Life Insurance Co. (7th Cir. 1958), 261 F.2d 296, 299, 72 A.L.R.2d 688, is not persuasive to the contrary. The construction in favor of the insurer was made without discussion of the purpose of the provision for furnishing a copy, without citation of authority, ánd without discussion of the general rule of construction favoring insured.

The order for summary judgment is reversed and the cause remanded to the trial court with direction to vacate the summary judgment for defendant and to proceed with the cause.

Reversed and remanded.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Pamela Warzynski, Plaintiff-Appellee, v. The Village of Dolton, Defendant-Appellant—(The Village of Dolton, Third-Party Plaintiff-Appellee, v. Martin Novak, Third-Party Defendant-Appellant.)
    (No. 58930;
    First District (5th Division)
    July 12, 1974.

      Modified upon denial of rehearing and supplemental opinion filed September 27, 1974.

      Jacobs, Williams & Montgomery, LTD., of Chicago (Barry L. Kroll, of counsel), for third-party appellants.
    Lisco and Field, of Chicago (Sidney Z. Karasik and Gary Dienstag, of counsel), for appellee.
    John W. Purney, of Chicago (Neal K. Wishnick, of counsel), for appellant and third-party appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by the Village of Dolton (Village) from a judgment entered on a verdict of $20,000 in favor of plaintiff. Martin Novak (Novak), as third-party defendant, separately appeals from an indemnity judgment in favor of the Village against him.

On its appeal, the Village contends (1) plaintiff failed to prove it accepted and owned the street on which the occurrence took place; (2) it was error to give plaintiff’s instruction concerning defendant’s acceptance of the street; and (3) plaintiff failed to prove that the Village was negligent.

In his separate appeal from the third-party judgment, Novak also contends plaintiff failed to establish the Village’s acceptance of the street or its negligence. In addition, he asserts the Village is not entitled to indemnification from him because (a) the Village was actively negligent; and (b) there was no pre-tort relationship existing between the Village and him.

Plaintiff, a passenger in an automobile driven by Nóvak, was injured when the automobile came to a sudden stop on 155th Place in the Village of Dolton. The facts indicate that on March 24, 1968, Novak and plaintiff ■were traveling in a southerly direction on Dante Avenue, a paved'street within the corporate limits of the Village. Dante Avenue turns east into 155th Place at an L-shaped intersection. Novak turned on 155th Place, which was unpaved and gravel covered, and traveled a few feet before his automobile came to a sudden halt, causing injuries to plaintiff when her head struck the windshield.

Plaintiff thereafter filed the instant suit against both Novak and the Village, asserting in her amended complaint that the Village negligently maintained and controlled 155th Place, and was negligent in permitting a hole and water main to exist on 155th Place and, further, that Novak was negligent in the manner in which he operated his automobile. In its answer, the Village admitted it controlled and maintained a water main on 155th Place, at or near Dante Avenue, but denied the balance of plaintiff’s allegations. The Village then proceeded to file a third-party complaint against Novak, seeking indemnity on an active-passive negligence theory in the event a judgment would be entered for plaintiff against it.

The following testimony was adduced at trial: Maurice Albrecht, superintendent of public works for the Village, testified under section 60 that a plat of subdivision recorded in 1958 and offered into evidence by plaintiff, indicated that 155th Place was marked “hereby dedícáted” and that when the dedication was recorded, Dante Avenue was not laid out or paved; that 155th Place remained unpaved through the time of the occurrence here; that sewer and manhole covers had been on 155th Place for about 8 years, and curbs and sidewalks were on Dante Avenue, with curbs also being on 155th Place; that the curbs, sidewalks and manhole covers were installed by others under permits issued by the Village; that there were street signs on the comer of Dante Avenue and 155th Place, designating those to be the respective streets; that the signs conformed to the standards of the Village and were placed there by others under its authority; and, that the Village never put any barricades on 155th Place, because of its contention that it was private property. Albrecht also expressed his belief that when the plat of subdivision was recorded, 155th Place would ultimately become part of the Village.

Plaintiff testified that she and Novak were returning from Chicago at approximately 12 A.M. and were traveling south along Dante Avenue at 20 miles per hour. After turning on 155th Place, the car came to a sudden halt and she was propelled forward, causing her head to strike and break the windshield, cutting her face. On cross-examination, plaintiff asserted that she noticed no streetlights on 155th Place and thát the street was- lower in grade than Dante Avenue.

Novak’s testimony was substantially similar to that of plaintiff, but he also testified'that when the car came to'a stop he heard “a thudding sound, &■ hard, metal sound,” and that when he backed out he heard “a little grinding sound around the transmission.” Moreover, when he returned to the scene the following day, he saw a sewer protruding above ground level, that the soil was depressed around the sewer, and that there was broken glass within 4 feet of the sewer. He also observed that the underside crossframe of his auto had been damaged and that the transmission had moved.

During the trial, plaintiff dismissed her action against Novak and proceeded against the Village. A $20,000.00 verdict was returned in her favor, and, pursuant to the Village’s instructions incorporating the theory of active-passive negligence, a similar verdict for indemnity was returned in its favor as third-party plaintiff against Novak. Both the Village and Novak have appealed the judgments against them.

Opinion

Initially, both the Village and Novak, as third-party defendant, contend that the Village had no duty to plaintiff because of her failure to establish that 155th Place was dedicated and accepted. Implicit in any common-law dedication is not only the necessity of finding the intent to dedicate, but also the acceptance by the public. (McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789.) In this regard, we note that the question of the Village’s acceptance was submitted to the jury and, based upon the facts elicited at trial, the jury found the dedication of 155th Place had been accepted. We are now being asked to review the decision on this factual question and, in support of their contention, the Village and Novak assert that there was never any intention evidenced by the Village to accept 155th Place, and that it was its policy not to accept a street unless or until it conformed to standards established by it for approval. 155th Place had not met those requirements, and they argue that in the absence of any formal acceptance, there was no liability for an accident occurring on a street not owned by the Village.

We cannot subscribe to this argument. The requisites of a common-law dedication are (1) an intent on the part of the owner to donate the land to public use; (2) acceptance by the public; and (3) clear, satisfactory and unequivocal proof of those facts. (City of Greenville v. File, 130 Ill.App.2d 878, 265 N.E.2d 518.) There was not nor is there now any question raised as to the efficacy of the offer to dedicate by the sub-dividers of the property. Thus, the issue to be resolved is whether or not there are sufficient facts to indicate an implied acceptance by defendant. A litany of factors have been used to establish a municipality’s implied acceptance of an offered parcel of land. For our purposes, however, we will only discuss those which we deem sufficient to raise a factual question of whether an acceptance could be implied.

Illinois cases have repeatedly held that acceptance of an offer of dedication could be implied from the fact that the municipality had constructed or authorized the construction of sewers, water pipes or the like on the subject parcel. (Consumers Co. v. City of Chicago, 268 Ill. 113, 108 N.E. 1017; Trustees of Schools v. Dassow, 321 Ill. 346, 151 N.E. 896; 52 A.L.R.2d 263, 271.) As stated in McCue v. Berge, 385 Ill. 292, 301, 52 N.E.2d 789:

“Acceptance of streets by a city or village may be shown by the affirmative act of taking possession thereof for purposes of placing water mains or sewers therein or by the general user by the public for a considerable period of time.”

In the instant case, there is uncontradicted testimony that the Village maintained a water main on 155th Place to serve the residents of the Village.

In addition, an acceptance of a dedication may be implied from use by the public for the purpose for which the dedication was made. (Kemper v. Campbell, 27 Ill.2d 376, 189 N.E.2d 282.) Here, a resident of the Village testified that not only did he drive on 155th Place, but that he saw other automobiles use the street for a period of years prior to the occurrence. Moreover, street signs, conforming to the standards of the Village, clearly designated 155th Place as a street and could be construed as an invitation to the public to use it.

It is our opinion that cumulatively there was sufficient evidence presented so that a question of fact was raised as to whether there was an implied acceptance of the offer to dedicate (Campion v. City of Decatur, 151 Ill.App. 161) and, from our review of the record, we believe the jury’s finding on this issue is supported by the record.

The Village and Novak further assert that plaintiff failed to prove her case in that there was insufficient evidence presented to establish the negligence of the Village and, in any event, they argue that the condition of the road was not a proximate cause of the injury. Since we have heretofore determined that the jury’s finding of the acceptance by the Village of 155th Place was supported by the evidence, it follows that it had a duty to maintain that street in a reasonably safe condition. (Ill. Rev. Stat. 1971, ch. 85, par. 3 — 102; Cunis v. Brennan, 7 Ill.App.3d 204, 287 N.E.2d 207.) Moreover, the facts indicate that it had or should have had sufficient notice of the existing conditions on 155th Place. Constructive notice is present where a defective condition exists for such a length of time that public authorities, by the existence of reasonable care and diligence, might have known of the condition. (Palermo v. City of Chicago Heights, 2 Ill.App.3d 1004, 276 N.E.2d 470.) Here, testimony indicated that sewer covers and manhole covers were placed on 155th Place some 8 years before the occurrence, and that the street was in substantially the same condition for some years prior to the occurrence.

Based upon the findings of the acceptance by the Village and its resulting duty to maintain 155th Place in a reasonably safe condition, we believe there was sufficient evidence presented to create the following factual questions: (1) whether the Village breached its duty to maintain the site; and (2) whether this breach of duty was a proximate cause of plaintiffs injuries. (Stauf v. City of Rockford, 2 Ill.App.3d 489, 275 N.E.2d 459.) Testimony concerning the occurrence could reasonably lead to the belief that the accident occurred as the result of Novak’s car contacting the protruding sewer cover on 155th Place and, without the benefit of any alternative theories offered by the Village as to the cause of the occurrence, it was reasonable for the jury to adopt plaintiffs theory for the occurrence. As we stated in Lindroth v. Walgreen Co., 407 Ill. 121, 134, 94 N.E.2d 847:

“[Reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.

We do not believe the jury’s finding of a breach of duty which proximately caused plaintiff’s injuries was against the manifest weight of the evidence nor incorrect as a matter of law.

The Village also separately contends that the court erred in tendering plaintiffs instruction number 24 regarding the presumption of acceptance by a municipality where the principal streets in a subdivision have been accepted. (Kennedy v. Town of Normal, 359 Ill. 306, 194 N.E. 576.) We cannot find in our review of the record whether the complained of instruction was objected to at the conference on instructions, since the conference was neither included in the report of proceedings nor abstracted. Thus, in the absence of any basis substantiating the defendant’s claim of objection, we cannot consider the issue here. As stated in Caughron v. Welnicki, 95 Ill.App.2d 118, 120, 237 N.E.2d 829:

‘We have no way of knowing whether any specific objection was made to the instruction now complained of, or if made, the ruling of the court thereon. Nor do we have the benefit of reviewing the other instructions given to the jury. Plaintiffs have failed to abstract the conference on instructions. The alleged objection to the particular instruction in question and the claimed error of the trial court in giving the instruction is not presented to us for review.”

Novak maintains that because the jury rendered a verdict against him, it necessarily found him to be actively negligent. He argues that such active negligence was an intervening cause of the occurrence, which broke the causal connection between the condition created by the Village and the plaintiffs injuries and thus relieved the Village from any liability to plaintiff. In this event, he points out the Village would have no action against him. We believe that in this instance, the argument has no merit. As stated in Green v. Welts, 130 Ill.App.2d 600, 604, 265 N.E.2d 188:

“Not every intervening act sufficiently insulates the initial wrongdoer from liability. If a resulting injury is a natural and probable result of the original negligent act or omission, and is of such a character that an ordinarily prudent person ought to have foreseen as likely to occur as a result of the original negligent act, even though the precise or exact result need not have been foreseen, then the original negligent act is a proximate cause of the resulting injury.”

Once again, the factual question of whether Novak’s conduct was of the type that the Village should have reasonably foreseen was, in our opinion, properly submitted and resolved by the jury.

The appeal of third-party defendant Novak from the verdict and judgment against him for indemnity involves a consideration of the doctrine of active-passive negligence. Novak contends, notwithstanding the jury’s verdict to the contrary in the third-party action, that the conduct of the Village in negligently maintaining 155th Place was active negligence and should have precluded any right it might have had against him for indemnity. It is our opinion that the Village did not establish the measurable difference in the degree of fault necessary before indemnification will be permitted.

The basis for the allowance of indemnity is predicated upon a finding of a higher degree of culpability by one tort-feasor, so that placing the entire burden on him would be warranted. (Reynolds v. Illinois Bell Telephone Co., 51 Ill.App.2d 334, 201 N.E.2d 322.) Here, the verdict of the jury in favor of plaintiff against the Village necessarily found the condition of 155th Place to be a proximate cause of her injuries and that it reasonably should have foreseen that a motor vehicle might drive over the raised sewer cover on 155th Place, as Novak’s car apparently did here. With this in mind, we cannot justify the imposition of total liability on Novak on the basis of his conduct being the primary cause of the injury. We believe that the actions of the Village in proximately causing the injury to plaintiff were of such a nature that its conduct should be deemed active negligence. This would militate against any action for indemnity against Novak, regardless of whether his conduct might also be considered active negligence. '

Most recently, our supreme court, in Carver v. Grossman, 55 Ill.2d 507, 511-12, 305 N.E.2d 161, has noted:

“Consideration must also be given to section 25(2) of the Civil Practice Act concerning third-party proceedings which states: ‘Nothing herein * * * creates any substantive right to contribution among tortfeasors * * * which has not heretofore existed/ (Ill. Rev. Stat. 1969, ch. 110, par. 25(2).) In light of this statutory language and the general rule against contribution the facts of the case must clearly justify indemnification. If they do not, the net effect of the application of the implied indemnity theory wiU be not only to allow contribution but to permit the total shifting of responsibility to one negKgent party while permitting the other to totally escape the responsibility for his negKgent conduct.”

We cannot find the “clear justification” required by Carver in the facts of the instant case.

The ViUage also asserts “[Cjertainly the Village of Dolton can be considered nothing but passive in that they did nothing to join in the act of Martin Novak * # Passive negligence, however, in this context is not synonymous with inaction. In passing on that very point, this court, in Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 117, 307 N.E.2d 789, stated:

“Determination of this question is not a matter of proceeding according to the usual dictionary definitions of the words ‘active’ and passive’. These words are terms of art and they must be applied in accordance with concepts worked out by courts of review upon a case by case basis. Under appropriate circumstances, inaction or passivity in the ordinary sense may well constitute the primary cause of a mishap or active negligence [citation]. It has been appropriately stated that mere motion does not define the distinction between active and passive negfigence.’ ”

Furthermore, we note Novak’s contention that there was lacking between the Village and him a pre-tort relationship as required by Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790. There, after reviewing the fine of cases which have established the theory that one passively negKgent was entitled to indemnification from one actively negligent, our supreme court affirmed a trial court dismissal of a third-party complaint for indemnification because the complaint did not “disclose some relationship upon which a duty to indemnify may be predicated.” Here, there is lacking any pre-tort relationship between Novak and the Village and, under the authority of Muhlbauer, the verdict against Novak cannot stand.

For the foregoing reasons, we are of the opinion that defendant is precluded from indemnity against Novak (Carver v. Grossman, supra), and the judgment on the third-party action is reversed.

Judgment for plaintiff against the Village of Dolton is affirmed.

Judgment for the third-party plaintiff Village of Dolton against Martin Novak is reversed.

DRUCKER and LORENZ, JJ., concur.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE SULLIVAN dehvered the supplemental opinion of the court upon denial of the petition for rehearing:

In its petition for rehearing, the Village asks that we reconsider our opinion and reinstate its judgment against Novak. It contends that the questions concerning active-passive misconduct are matters of fact to be resolved by the jury. It argues that the facts here justify the jury’s finding that Novak was actively negfigent and that its conduct was merely passive.

WMIe it is generally true that questions of fact are to be resolved by the jury, we perceive a particular problem in the genre of cases involving the apphcation of the active-passive theory of implied indemnity because the Illinois Pattern Jury Instructions do not include definitions of the words “active” or “passive.” Furthermore, case law has given the words no definitive meaning and, as a consequence, there has been no agreement between the trial attorneys and the courts as to acceptable instructions. The result has been that juries are seldom informed as to the meaning of these words.

It may readily be seen that if the bench and bar are unable to agree upon their definitions, it would be unreasonable to expect jurors to do so in the absence of instructions. In this regard, it is generally believed that jurors relate “active” to some form of action or exertion, and “passive” to inaction or inoperation.

The case law, however, does not support such conclusions. In Moody v. Chicago Transit Authority, 17 Ill.App.3d 113, 307 N.E.2d 789, referred to in the original opinion, this court said the words are terms of art, to be appfied in accordance with concepts worked out by courts of review and not necessarily according to the usual dictionary definitions. In Moody, it was held that inaction under appropriate circumstances could constitute active negligence. So, too, in Trzos v. Berman Leasing Company, 86 Ill.App.2d 176, 183, 229 N.E.2d 787, it was stated that “mere motion does not define the distinction between active and passive neghgence.” In Topel v. Porter, 95 Ill.App.2d 315, 330, 237 N.E.2d 711, the court said:

“The distinction between active and passive negligence is a court made one and there is no single comprehensive definition thereof. To date the cases have been decided on the facts of each case.”

The Topel court also stated, “ # either a fault of omission or one of commission may constitute active negligence * *

It may be seen that the problem is one inherent in the term “active.” Trzos tells us that motion does not distinguish it from “passive,” and we sees that in Topel and Moody, inaction was held to be “active,” while in Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill.App. 330, and United States v. Chicago, Rock Island & Pacific Ry. Co. (10th Cir. 1948), 171 F.2d 377, action was held to be “passive.”

From our examination of the cases in Illinois and other jurisdictions, we are of the opinion that there are two critical prerequisites for the invocation of non-contractual implied indemnity; first, the damages which the third-party plaintiff seeks to shift are imposed upon him as a result of some legal obligation to the plaintiff in the principal action; and second, it must appear that the third-party plaintiff did not actively or affirmatively participate in the wrong.

As to the first of these prerequisites, we believe it must appear that the third-party plaintiff had an obligation to pay; i.e., where a judgment has been entered or in a situation where a settlement was made, that it was justified on some legal basis. (See Sleck v. Butler Bros., 53 Ill.App.2d 7, 202 N.E.2d 64.) As to the second prerequisite, it should be noted that although the term “actively” is commonly used in implied indemnity situations, we have added the word “affirmatively,” because it appears to us that the trend in the Illinois cases and in other jurisdictions now requires a showing that a third-party plaintiff did not breach an affirmative duty owed to the plaintiff in the principal case. Thus, in Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161, defendant turned the keys in the ignition of the car, and it lurched forward striking the plaintiff. Defendant filed a third-party complaint against plaintiff’s employer, who had left the car with the keys in the ignition and the transmission in gear. The court stated that although the condition was created by the employer, the situation required the active violation by defendant of the duty of reasonable care that he owed plaintiff in order to cause the injury. The Carver court reasoned that both the employer and the defendant were under the same duty to exercise care for the plaintiff and that both were actively negligent. See also Moody v. Chicago Transit Authority, supra.

By way of reference, courts in other jurisdictions having similar third-party remedies have found that a failure' to discover an open and obvious condition, if there was a duty to inspect, was Held to be active negligence (see Alabama Great Southern R.R. Co. v. Chicago & Northwestern Ry. Co. (8th Cir. 1974), 493 F.2d 979); and that an improper inspection which failed to discover an obviously dangerous condition was considered to be active negligence (Chicago, Rock Island & Pacific R.R. Co. v. Chicago & Northwestern Ry. Co. (8th Cir. 1960), 280 F.2d 110, cert. denied, 364 U.S. 931). There, it was held that a failure to properly inspect after a railroad car had come into the control of one railroad was negligence of a degree at least equal to another railroad’s negligence in breaching its duty to deliver its cars in a reasonably safe condition.

Furthermore, in those situations where the third-party plaintiff was under an affirmative duty as an original defendant to take some action regarding a peril known to him, or which in the exercise of due care should have been known to him, failure to so act may constitute an active or affirmative participation in the specific wrong. Thus, in Home Insurance Co. v. Atlas Tank Manufacturing Co. (Miss. 1970), 230 So.2d 549, a ravine was filled in, causing a 13,000-volt power line to be in a dangerously low position, a fact known to the utility. It was held that an affirmative duty devolved upon the utility to remedy the condition and the failure to perform that duty constituted an active or affirmative participation in the tortious activity.

In the instant case, although as we have stated above inaction may under certain circumstances be considered active negligence, the jury was not so instructed. In such situations, we believe this court is required to review the record to determine whether, under existing law, the evidence is sufficient to support the determination that the Village was only passively negligent.

In this regard, we note that in its third-party complaint, the Village alleges that Novak was actively negligent and that if it violated any duty, it was merely passive misconduct. In the issues instruction tendered by the Village on its third-party complaint, the jury was informed that the Village claimed Novak was actively negligent because he made a left turn onto an unpaved road at an excessive speed. However, the only testimony as to how the accident occurred was that Novak was traveling about 20 m.p.h. on a paved road at about 12 A.M. and slowed to 10-15 m.p.h. as he left-turned into the unpaved road, 155th Place, a gravel road identified as a street by a standard village sign. His car was brought to an abrupt stop by the raised sewer. This sewer had apparently been in substantially the same condition for the past 8 years. Given this factual picture, with no instruction as to the meaning of “active” or “passive,” we believe the jury had little alternative other than to consider that Novak was actively negligent because he was moving, and that the conduct of the Village was “passive” because the sewer cover was stationary. It is clear that the jury, by its verdict in favor of plaintiff, found the Village to have violated a duty to maintain 155th Place in a reasonably safe condition. We believe that the negligence of the Village in allowing the sewer on an unlighted street to be raised above the street level was at least equal to the negligence of Novak as he drove in darkness over the said sewer, and can only be viewed as an active or affirmative participation in the wrong.

In view of the foregoing, we reject the contention of the Village on rehearing that the jury verdict on the third-party complaint should be allowed to stand, and we retain our belief that there is no clear justification to permit the total shifting of responsibility from the Village to Novak. See Carver v. Grossman, supra.

Defendant also contends for the first time in its petition for rehearing that the pre-tort relationship required by Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790, exists here because:

“Novak had a license (not a right) to operate a motor vehicle on the streets of the Village. That license carried with it, obligation. The driver is tested in knowledge of safe driving practices and an ability to exercise ordinary and reasonable control in the operation of a motor vehicle (Chapter 95%, Section 6 — 019(b) Ill. Rev. Stat.) Every driver must comply with rules relating to the operation of vehicles upon highways. The drivers of vehicles involved in accidents have a duty to render aid, give information to the Village and a duty to report accidents to local police department. (Chapter 95%, Section 11 — 407(b), Ill. Rev. Statutes) These are all duties that were on Novak when using the Village’s streets. This was a pre-tort relationship. Novak had a duty not to drive recklessly (Chapter 95% Section 11 — 503). This was a pre-tort duty.”

We disagree, noting first that a license from the State of Illinois does not support a duty on the part of Novak to indemnify the Village. In Muhlbauer, the supreme court (referring to the appellate court opinion in Muhlbauer v. Kruzel, 78 Ill.App.2d 343, 348, 223 N.E.2d 227) stated:

“The appellate court affirmed, holding that ‘the acts of another do not impose liability on one unless some relationship between the parties or some circumstance imposes a nondelegable duty upon the passive party,’ and that ‘the amended third-party complaint demonstrates no relationship or circumstance which creates a nondelegable duty on Kruzel.’ ” 39 Ill.2d at 229.

It also appears that in Muhlbauer a statement of facts was made for the first time in the supreme court which indicated that the necessary pre-tort relationship existed. Concerning this statement, the court said:

“If those facts had been alleged by Kruzel it would be possible to discern potential relationships that would support a duty on the part of Wilson to indemnify Kruzel.
But no such facts were alleged, and, as the appellate court pointed out, the ‘amended third party complaint demonstrates no relationship or circumstance’ that would give rise to a duty to indemnify. (78 Ill.App.2d at 348.)” 39 Ill.2d at 232.

In the instant case, as we have heretofore stated, in its third party complaint the Village stated no facts suggesting this relationship, alleging only that Novak was actively negligent and its conduct was merely passive. Neither were any facts set forth in the issues instructions tendered by it which in any way indicated that a pre-tort relationship existed. Moreover, it is our belief that the record discloses no evidence of any such interrelationship.

In view thereof, we adhere to our original position that the pretort relationship required by Muhlbauer is not present here and that the judgment of indemnity in favor of the Village against Novak cannot stand. Accordingly, we deny the petition for rehearing.

The original opinion has been modified somewhat, without change in its effect.

Opinion modified.

Petition for rehearing denied.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mark E. Bole, Defendant-Appellant.
    (No. 73-336;
    Second District
    October 11, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock (Larry K. Johnson, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wendy K. Hiller, Defendant-Appellant.
    (No. 73-38;
    Second District
    October 16, 1974.
    Marco & Mannina, of Downers Grove, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Stopped by a radar patrol officer, defendant was arrested for driving at a speed of 74 m.p.h. in a 50-m.p.h zone. After a bench trial, she was found guilty of speeding and fined $10 plus costs. It is defendant’s position that when a person’s arrest for speeding is based upon a reading of a radar unit, that person, at the time of arrest, has a right to request and observe a test of the unit’s accuracy, that failure to comply with such request creates a presumption of the unit’s inaccuracy, and that where the presumption stands unrebutted, a person cannot be found guilty beyond a reasonable doubt.

The sole witness to testify was the arresting officer who stated that he had had 2 years of on-the-job training.with the radar unit and that he had read the manual provided by the manufacturer, that on the night in question, he had come on duty at 11 P.M. and that between that time and 12:50 A.M. (when he stopped the defendant) he had checked the radar unit for accuracy “once or twice”, and that he had conducted the tuning-fork test and checked the internal calibration, both in accordance with the manufacturer’s directions and on each test the unit registered “65,” indicating its accuracy. The officer stated that there was no other traffic in the area at the time defendant broke the radar beam and that the unit showed her speed to be 74 m.p.h., that defendant asserted she was driving at 55 m.p.h. and, after issuance of the citation, asked for a tuning-fork check of the unit’s accuracy, and that, without stating a reason, he had refused defendant’s request. Approximately 15 minutes after stopping the defendant, the officer again ran the two-fold test of the unit and the results again indicated its accuracy..

At the close of this testimony, defendant moved for a directed verdict claiming that while the burden of proof was on the State, the refusal to verify the accuracy of the unit in defendant’s presence denied her the means to refute the only evidence against her and placed the burden upon defendant to prove her innocence. The court denied the motion stating that the law imposed no requirement upon an officer to accede to a request for a test of the unit in the presence of the one stopped as a result of its operation.

Defendant is correct in the statement that where the accuracy of a radar device is unproven, the results are insufficient to convict. The cases cited for this proposition, however, all hold that the results of the tuning-fork test, conducted by a trained officer, under specific circumstances, is sufficient to prove the accuracy of the radar unit.

The officer here had adequate experience in the operation of the equipment; there was sufficient time for the “warm-up” of the unit; it had been tested just prior to defendant being stopped and was re-tested shortly afterward; the tests were conducted in a manner prescribed and with the fork provided by the manufacturer. In this case there is no unrebutted presumption to cast doubt upon the accuracy of the radar unit. There is only a conflict in assertions as to defendant’s speed at the time she was stopped.

We are cognizant of the weight which courts give to the results of a radar unit’s recording and of an accused’s virtual inability to refute those results. We therefor empathize with defendant’s underlying argument that, without seeing a test of the equipment, an individual is without means to challenge the accuracy of a radar reading. While fairness would seem to dictate that a defendant should have the right to request and witness a test of the unit at the time of arrest, such requirement cannot be imposed by judicial interpretation; it is a matter which calls for legislative enactment.

Presently, the law is clear that proof, as here given, of the accuracy of the unit is sufficient for the trier of fact to find defendant guilty of speeding. People v. Stankovich, 119 Ill.App.2d 187 (1970); People v. Barbic, 105 Ill.App.2d 360 (1969); People v. Abdallah, 82 Ill.App.2d 3-12 (1967).

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.