author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY FINLEY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2215
    Opinion filed November 26,1991.
    Rehearing denied January 7,1992.

      Michael J. Pelletier, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Joseph W. Colaianne, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Leroy Finley appeals from his conviction by a jury of the armed robbery of Kevin Anderson, claiming that he was denied a fair trial because of statements made by the prosecution and certain testimony that the State’s Attorney’s office had approved the case against him; that the State had engaged in racial discrimination in exercising its peremptory challenges during jury selection; and that the court improperly refused to appoint independent counsel to represent him in his post-trial motion, in which he charged his trial counsel with ineffective assistance. Finley seeks reversal of his conviction with a remand for a new trial, reversal with a remand for a hearing on his racial-discrimination claim or reversal with a remand for a hearing, while represented by independent counsel, on his claim of ineffective trial counsel.

During voir dire, the State exercised peremptory challenges to exclude veniremembers Kevin English, SanFeur Martin and Vincent Williams. Finley moved for a mistrial, “based upon the State using all their challenges against black people, systematically excluding every black. All of these people are employed, just like the other whites they did not exclude ***.” The court noted that after the State’s challenges, the jury consisted of “four black males, five white males, two white females, and one male of Indian descent, Middle East, I think.” Finley renewed his objection, citing the State’s use of all three of its challenges against black veniremembers.

The State responded by pointing out that it still had “four remaining challenges, and there are four blacks remaining on the jury.” The prosecutor then explained why he had excluded the three black veniremembers, after which the trial judge stated:

“I do not believe that the defendant has made a prima facie case. The state does have four remaining challenges. If there was systematic exclusion of black people, the State had four remaining challenges they could have challenged the other four remaining jurors, which constitute twenty-five percent of the jury, which fairly represents the community as a whole, the black population constituting twenty to twenty-five percent of the county’s population.
Lastly, even though unnecessary, the State has in fact set forth its reasoning for the * * * challenge to these jurors ***.”

The court then discussed the State’s proffered reasons for its exclusion of the three veniremembers, and finding that the reasons were sufficient to justify the challenges, denied Finley’s motion.

Anderson testified at trial that he was working at the Little Miss Muffet “all-girl review” or “strip joint” at about 2:20 p.m. on September 11, 1988, when Finley and another man entered the establishment. Finley asked about the cost of watching the strip show, and when Anderson responded, Finley “pulled out two guns and said ‘put your hands on the counter.’ ” He ordered Anderson not to move his hands, came around the counter behind which Anderson was standing and asked him “where the money was.” Anderson replied that the money was “underneath the counter *** on the shelf.” Finley took the money, approximately $120, and also took approximately $30 from Anderson’s wallet. During the episode, Finley’s companion also held a gun.

Finley proceeded to the back of the store, but Anderson could not determine what he did there; the other man continued to cover Anderson with his gun. When Finley returned about a minute later, his partner gave Finley some handcuffs and told him to cuff Anderson to a chair. Finley complied. He then “rousted” two customers from the back of the store. One man, who was “sort of crippled[,]” was “set *** down. They didn’t do anything at all to him. *** [T]he other guy they laid on the floor and took his money.” The two assailants then left.

The State and Finley later stipulated that during the preliminary hearing, Anderson testified that Finley “[cjame back out and rousted a couple of customers; emptied out the money from their pockets and then they left.”

When the police arrived on the scene, Anderson described his assailants:

“One was about 220 pounds, six-two, and he had baggie shorts on. The other one had a blue gangster hat and he was about 150,160 pounds, five-eleven.
* * *
*** The bigger one had a mustache and a grizzly beard.”

On September 21, 1988, Anderson identified Finley in a police lineup. He also testified that on September 25, 1988, he received a phone call at the Little Miss Muffet from one who identified himself as and who sounded like Finley. The caller offered Anderson “a thousand dollars not to go to court. He said he would have $500 there today and I told him I’d think about it.” Anderson then called Chicago police detective Steven Glynn and related the occurrence to him.

Robert J. Peterson, a patrol officer for the Chicago police department, testified that at about 2:30 p.m. on September 11, 1988, he was dispatched to the Little Miss Muffet to investigate a report of a robbery and of a victim being restrained by handcuffs. When he arrived at the scene, he saw that Anderson’s right hand was cuffed to a chair. Anderson gave a description of his two assailants similar to the one he gave at trial.

Arthur Buckley, Chicago police officer, also responded to the call at the Little Miss Muffet. While he was speaking with Anderson about the incident, he found a small folded piece of yellow paper on the floor, and, unfolding it, he saw that it was a traffic citation made out to Finley. Without showing the paper to Anderson, he asked Anderson to describe his assailants; Anderson replied with essentially the same description as that given to Peterson. The citation described Finley as 6 feet 3 inches tall and weighing 182 lbs.

Brian Regan, a Chicago police detective, testified that after searching for Finley at various locations on September 13, 1988, Finley phoned him and asked why Regan was looking for him. He told Regan that he would come to his office the next day, but failed to appear. Regan showed Anderson a group of photographs on September 14, 1988, from which Anderson identified a picture of Finley as that of one of his assailants; he repeated this identification the following day.

Herman Kluth, a fingerprint examiner for the Chicago police department, testified that the only fingerprint taken from the crime scene was lifted from the handcuffs, but that it was not suitable for identification.

Steven Glynn, a Chicago police officer, testified that on September 21, 1988, Anderson identified Finley in a police lineup. After the lineup, Glynn interrogated Finley, who maintained that he had never been to the Little Miss Muffet and that he did not commit the robbery. When asked “How his traffic ticket might have ended up there,” Finley replied “that he didn’t know *** how it got there.”

Glynn recalled that Anderson had called to inform him that a man sounding similar to and identifying himself as Finley had offered $1,000 to him for not coming into court. Glynn did not remember Anderson telling him that Finley had said he would have $500 for Anderson that day. The State and Finley later stipulated that pay phones were not accessible to prisoners at the Cook County jail, in which Finley was incarcerated, but that inmates may make third-party calls.

Finley testified that at the time of the incident he was married, was working for a messenger service and that he had been convicted in 1978 for unlawful use of a weapon, for robbery in 1981 and for theft in 1987. When asked on direct examination, “And directing your attention to September 11, 1988, around two o’clock in the afternoon, did you have the occasion to go anywhere?” he responded that he had gone to the Little Miss Muffet. Six questions later, however, in response to the question, “And about what time did you arrive at the Little Miss Muffet ***?” he replied, “About 12:40.”

Finley stated that he had gone to the establishment intending to hire a prostitute, which he had done there before. Upon his arrival, he told Anderson, who was standing behind a glass counter containing various items including handcuffs and other items, that he “wanted a girl.” He pulled out $45, which he gave to Anderson, but Anderson told him that the services of a prostitute would cost him $75.

Finley told Anderson that he “always pa[id] $45.” Anderson retorted, “[I]f you want a cheap *** whore, go on Madison and get one, stupid-ass nigger.” Finley then “called him a name and told him [that he would] beat his *** ass.” Anderson then said to Finley, “You better leave before I call the police.” Finley then left. He testified that he did not rob Anderson, did not possess a gun at the time he entered the Little Miss Muffet, and that he was not accompanied by any other person.

After learning from his mother, who had been visited by the police, that they were looking for him, Finley called Glynn and was told by him that “he wanted to discuss an incident, a battery.” Although Finley told Glynn that he would come in the next day, he failed to do so because, “I got to think that I don’t remember no batteries so I didn’t go in.” After his arrest, he told Glynn that he “had never been at Little Miss Muffet” because he “didn’t want [his] wife to find out about it.” On September 25, 1988, the date of the alleged phone call to Anderson, Finley was “in the segregation *** in Cook County Jail” and had no access to a pay phone; he denied making any phone calls on that day.

Finley was convicted of armed robbery and sentenced to 25 years in custody of the Illinois Department of Corrections.

Following his conviction, Finley wrote three letters to the trial judge in which he provided the names of persons who, he claimed, could testify that he was in Ford Heights at the time of the robbery (although he admitted being at the Little Miss Muffet earlier in the day), as well as the name of a medical doctor who had testified for him in a suit against the Department of Corrections, and who could testify again, that he could not use his right hand; accordingly, Finley asserted, he could not have held two guns, as Anderson had testified. Finley also charged that his public defender did not attempt to contact these potential witnesses and that she “did not represent me to the best of her ability.”

During the hearing on Finley’s post-trial motion, which had been filed by his trial counsel, the circuit court, treating Finley’s letters as “a motion for the appointment of other counsel,” denied his request, stating that “the allegations of the existence of all alibi witnesses made by the defendant in his letters is totally a contradiction to defendant’s sworn testimony at trial.” The judge noted further:

“With regard to the defendant’s further allegation of the testimony of a treating physician for an injury to his right hand that would prevent him from holding a gun in that hand. *** I find that is, this allegation is totally unsupported as the other allegation is. Totally unsupported by his own testimony and sworn testimony is totally without merit.”

Finley first claims that he was denied a fair trial by the prosecutor’s argument and use of testimony to show that the assistant State’s Attorney who approved his arrest warrant believed that he was guilty because of an investigation conducted by the felony review unit of the State’s Attorney’s office, and that he would not have approved the warrant otherwise; thus, the State is alleged to have improperly bolstered Anderson’s credibility. The State responds that the argument and testimony “merely described the requisite steps taken to procure the arrest warrant,” that “there was no testimony that the prosecutor had recommended charges against the defendant, rather, the prosecutor merely approved the charges, a requisite step towards procuring an arrest warrant” and that the State “did not *** bolster the credibility of the complainant.”

During opening argument, the prosecutor claimed that “Anderson identified the photograph of Leroy Finley. *** [The police then] contacted the State’s Attorneys [sic] Office of Felony Review.” An attorney from that office accompanied the police to an interview with Anderson, during which he again picked out Finley’s photograph. The police then “obtained a warrant for his arrest.”

At trial, Detective Regan testified that on September 15, 1988, after Anderson identified Finley’s photograph as that of one of his assailants, he “notified the Felony Review State’s Attorneys [sic] Office.” Felony review, he explained, “is a unit comprised of State’s Attorneys and they are there for the purpose of approving felony charges and warrants when they’re sought by the police department.” Over Finley's objection, Regan stated that before the felony review unit approves such charges or warrants, “[tjhey must review all the facts and interview all the parties that are available.” Regan stated that he accompanied an assistant State’s Attorney to “interview]] Mr. Anderson and Mr. Anderson also looked at the photographs again and picked out *** Finley’s photographs.” After that identification, the assistant State’s Attorney “approved *** an arrest warrant for *** Finley.”

During closing argument, the prosecutor stated:

“[T]hey decide it is time for an arrest warrant, that this man is not coming in. He has been positively identified and has not cooperated. He is not showing up. We will get a warrant, and then again Detective Regan explained to you what is necessary to get a warrant. They just can’t go out and get a warrant. They have to get approval from the State’s Attorney’s Office, and that State’s Attorney has to again go over the evidence and review the evidence, so that State’s Attorney goes and personally talks to Kevin again, and Kevin again—
MS. PANTLE [defense attorney]: Objection.
THE COURT: Overruled.
MS. RIVERA [assistant State’s Attorney]: Speaks to Kevin and Kevin tells him what happened. And that State’s Attorney says well, I want to see if he can really identify this person.
MS. PANTLE: Objection.
THE COURT: Overruled.
MS. RIVERA: So the photo array is shown to Kevin again for the second time, and again he identifies the defendant. So, now the warrant is approved. Now, there is a warrant for the arrest of the defendant.”

“A prosecutor’s testimony that he recommended that charges be placed against a defendant after discussing the facts of the case with the police” (People v. Turner (1984), 127 Ill. App. 3d 784, 792), or an assistant State’s Attorney’s testimony “that her function as a member of the Felony Review Unit *** was to ‘determine whether or not the individual should be charged, and if the felony should be charged [to] determine which felon [sic] we should charge’ ” (People v. Jones (1987), 155 Ill. App. 3d 641, 647) is error. It is permissible, however, for a police officer to testify that an assistant State’s Attorney “approved the charges” when the officer is “set[ting] forth the steps *** taken to procure arrest warrants” and such approval is “a requisite step to procuring arrest warrants.” People v. Brandon (1990), 197 Ill. App. 3d 866, 879-80.

Even when, as in the instant case, a prosecutor does not testify, argument “that the assistant State’s Attorney, who prepared the complaint against the defendant, would not have submitted it to the court if he did not believe there was culpability” is prohibited, as “[t]he defendant ha[s] the right to be judged by the evidence in court, not by what some prosecutor might have thought of his guilt.” (People v. Adkins (1973), 16 Ill. App. 3d 394, 396.) Further, it is error for the State to allude to a police officer’s testimony “as to the events that led to the arrest of an accused” “as substantive evidence indicating defendant’s guilt,” when the issue addressed by the argument is not an issue in the case. People v. Williams (1987), 159 Ill. App. 3d 612, 619-20.

We do not deem the disputed portion of the prosecutor’s opening argument to be violative of these rules; it merely stated what events occurred before an arrest warrant was procured; those parts of Regan’s testimony and of the closing argument which merely outlined what events led to the procurement of the warrant were similarly proper. (See Brandon, 197 Ill. App. 3d at 879-80.) Improper, however, was Regan’s testimony that the felony review unit “is *** comprised of State’s Attorneys *** for the purpose of approving felony charges and warrants when they’re sought by the police department” and that before the State’s Attorney’s office can approve arrest warrants, “[t]hey must review all the facts and interview all the parties that are available.” Also improper was the State’s closing argument that, “They just can’t go out and get a warrant. They have to get approval from the State’s Attorney’s Office, and that State’s Attorney has to again go over the evidence and review the evidence.” These statements did more than merely outline “the procedures required to obtain an arrest warrant” (People v. Curtis (1989), 190 Ill. App. 3d 207, 216).

In Williams, the arresting officer testified “that he arrested defendant [found guilty of cruelty to a child] on the basis of information provided by the [victim], his sister and the [arresting] officers and based on his own physical observations [of the victim].” (Williams, 159 Ill. App. 3d at 615.) During rebuttal argument, the State said to the jury, “[t]aking into account the picture [of the victim after the beating], taking into account the officer's testimony, take into account the — that when Defendant was finally arrested, by [the officer whose testimony is described above], that he relied on the information and the statements that were presented him by police and by the children.” (159 Ill. App. 3d at 619-20.) The court held:

“It was *** improper for [the officer] to testify that he arrested defendant based on the statements of the children. We recognize that a police officer may properly testify as to the events that led to the arrest of an accused under certain circumstances. [Citation.] However, [the officer’s] testimony went beyond what was necessary to describe the investigation and arrest. Probable cause to arrest was not an issue. Furthermore, the prosecutor in his closing rebuttal argument alluded to this testimony as substantive evidence indicating defendant’s guilt. Arguing the applicability of evidence beyond the limited purpose for which it is admissible is plain error.” 159 Ill. App. 3d at 620.

See also People v. Okundaye (1989), 189 Ill. App. 3d 601, 624 (Murray, P.J., and Coccia, J., specially concurring) (prosecutors may not take advantage of the admissibility of evidence of police investigatory techniques in order to infer guilt).

We note that, in the instant case, neither probable cause to arrest Finley, nor Anderson’s identification of Finley, was an issue at trial (see Williams, 159 Ill. App. 3d at 619-20). For that reason, that part of Regan’s testimony set forth above and the above-indicated portion of the State’s argument, insofar as they may have implied official approval of Finley’s guilt and thus bolstered the State’s evidence, were improper. Although we strongly condemn this type of bolstering by the State, we conclude that these errors were not material factors in Finley’s conviction and the verdict could not reasonably have been different had they not occurred.

Finley next alleges that the court erred in denying his motion for a mistrial, which was predicated on the State’s alleged discriminatory use of its peremptory challenges during voir dire. He argues: (1) that the trial judge improperly accepted the State’s explanations for its peremptory challenges in determining that Finley had failed to make a prima facie case of discrimination; (2) that the judge improperly considered, in finding that no prima facie case had been made, the extent to which the proportion of black people on the jury related to the proportion of black people in the community; (3) that even if the judge’s actions were not improper, his determination that no prima facie case had been made was erroneous; and (4) that because a prima facie case had been made, this cause should be remanded for a hearing to determine the adequacy of the State’s explanations for its challenges; but that if the record is complete enough for this court to determine the legal sufficiency of the State’s proffered explanations, those explanations should be held to be inadequate and Finley’s conviction should be reversed and his cause remanded for a new trial.

The State first responds that Finley neither objected to the trial judge’s allegedly improper consideration of the State’s explanations for its challenges in deciding that Finley had not made a prima facie case of discrimination, nor raised the issue in his post-trial motion; accordingly, he has waived review of the issue. We need not review this question, however, nor any others relating to the trial court’s finding that Finley had failed to make a prima facie case. The trial court, after finding that a prima facie case had not been made, went on to find that the prosecutor had articulated permissible reasons for exercising its peremptory challenges against the three veniremembers. We hold that when the court made this finding, the issue of whether it had properly determined that no prima facie case had been made was rendered moot.

Batson v. Kentucky (1986), 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719, held that “the Equal Protection Clause [(U.S. Const., amend. XIV, §1)] forbids the prosecutor to challenge potential jurors solely on account of their race,” and that if a prima facie case of purposeful discrimination is made, the prosecutor is required to articulate a race-neutral explanation for his peremptory challenge. (476 U.S. at 100, 90 L. Ed. 2d at 90, 106 S. Ct. at 1725.) In Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866, as in the instant case, “[t]he prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court.” Although Hernandez differed from the instant case in that “the trial court [in Hernandez] had no occasion to rule that [defendant] had or had not made a prima facie showing of intentional discrimination,” while in the instant case the trial court did so rule, its later finding that the State’s proffered reasons for its peremptory .challenges were proper, as in Hernandez, was a “rul[ing] on the ultimate [issue] of intentional discrimination, [which made] the preliminary issue of whether the defendant had made a prima facie showing *** moot.” (Emphasis added.) (Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.) Accordingly, there is no need for this court to review the issue. See also People v. Johnson (1991), 218 Ill. App. 3d 967, 979.

The State then argues that its explanations for its challenges were sufficient to rebut the charge of discrimination. With regard to Martin, the prosecutor stated:

“I would state for the record that I think the record has already indicated Your Honor could not hear any of the woman’s responses, nor could the court reporter. Even after Your Honor asked her to speak up, I could not hear anything that she said, Judge. I didn’t know her first name. I could not hear a word that the woman said.”

In discussing its challenge to Williams, the prosecutor noted:

“[H]is brother is a convicted felon, and it is my understanding he is still in the penitentiary for attempted murder. I think that he may show some possible sympathy for the defendant in this case, and I don’t think anybody else has anybody in the penitentiary, black or white.”

The trial judge stated that “with regards to Ms. Martin and Mr. Williams, I find these to be very objective challenges as to both of these people.”

Finley argues that the record does not support the State’s explanation for its challenge to Martin and that the alleged inaudibility was not reasonably related to her performance as an impartial juror, thus allowing the inference that the State manufactured the explanation and that she was actually excluded because of her race. With regard to the prosecutor’s challenge to Williams, Finley points out that Williams’ brother had been convicted of a crime eight years earlier, that Williams had stated that the event would not influence him as a juror and that two nonexcluded jurors had themselves been prosecuted for, and one convicted of, a criminal offense. More specifically, Ronald Monroe had five years before been accused of stealing a lottery ticket, but the charge had been dismissed; while Daniel Varanauski had six years earlier been charged with burglary, which was later reduced to a misdemeanor and for which he was placed on probation, a sentence he had completed by the time of Finley’s trial.

Finally, the prosecutor explained his peremptory challenge to English by arguing:

“I noticed right away that he did not stop staring at my partner. I don’t know if that is a compliment, or if he knows her, or doesn’t know where he knows her from, but we both noticed that. We both felt extremely uneasy with him sitting approximately ten feet from us, as he was less than ten feet during the jury selection ***.”

The trial court found that this was “a subjective difference, and they [the prosecutors] are entitled to make that determination under these circumstances.” Finley notes that the record fails to disclose any comment on English’s demeanor by any other party to the proceeding, that the prosecution did not comment thereon until its motives in challenging the venireman were questioned, and that it made no effort to discern why English was supposedly staring at one of the prosecutors; accordingly, the legitimacy of the State’s explanation is called into question.

The court in People v. Harris (1989), 129 Ill. 2d 123, 174-75, held that a trial court’s determination about whether the State has come forward with sufficient reasons to rebut the defendant’s prima facie case “will only be reversed if against the manifest weight of the evidence.” Such reasons are sufficient if they are “clear, reasonably specific, legitimate, and nonracial.” (People v. Hope (1990), 137 Ill. 2d 430, 467, vacated on other grounds (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, 111 S. Ct. 2792.) We hold that the trial court’s finding in the instant case does not warrant reversal.

As to veniremember Williams, the trial judge was clearly entitled to find that the reason given by the State for its challenge was “clear, reasonably specific *** and nonracial”; moreover, the factual basis is supported by the record. While it is true that the court in People v. Harris (1989), 129 Ill. 2d 123, 180, held that “although" it is not conclusive, evidence that a stricken minority venireperson possessed the same characteristics as a nonminority juror on whom the State chose not to exercise a peremptory challenge should certainly be given great weight by the trial court in evaluating the State’s explanations,” here, neither veniremembers Monroe nor Varanauski had served time in jail. Hence, the trial court was reasonably entitled to accept the State’s claim that it feared that Williams could “show some possible sympathy for the defendant in this case.”

Turning then to the State’s challenge to Martin and English, we are mindful that:

“[Ejxplanations which focus upon a venireperson’s body language or demeanor must be closely scrutinized because they are subjective and can be easily used by a prosecutor as a pretext for excluding persons on the basis of race.” (Harris, 129 Ill. 2d at 176.)

Except for the prosecutor’s statements, the record nowhere reflects either Martin’s inaudibility or English’s staring. The trial court, however, was in the best position to judge the credibility of the prosecutor’s statements about Martin’s and English’s demeanor. As noted in Hernandez:

“[T]he decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” (Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting Wainwright v. Witt (1985), 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854.)

Neither the court nor Finley indicated any quarrel with the facts upon which the State based its exclusion; we therefore find no reason to overturn the trial judge’s finding that the State’s reason was acceptable. “[T]he prosecutor’s explanation need not rise to the level of justifying exercise of a challenge for cause,” and there is no evidence that the challenges were based on “an assumption that the black members of the venire would be partial to the defendant because of their shared race.” (Emphasis in original.) People v. Talley (1987), 152 Ill. App. 3d 971, 987 (legitimate to exclude a juror when prosecutor “was not too happy with [the person’s] demeanor and how he answered the questions[ ]”).

Finley’s final claim of error is that his request for independent counsel to represent him on his post-trial motion was not without merit, and that, therefore, the trial court erred in denying that request. The State responds that the bases upon which Finley requested independent counsel were without potential merit, and that the circuit court’s determination to that effect was not manifestly erroneous.

The court in People v. Krankel (1984), 102 Ill. 2d 181, 187, held that where a defendant makes a pro se motion for a new trial on the ground of ineffective assistance of counsel, and where the trial court declines to appoint new counsel to represent the defendant at the post-trial hearing on his claim, the cause should be remanded for a hearing, at which the defendant is to be represented by newly appointed counsel.

Failure by trial counsel to contact witnesses who could possibly have had a serious impact on a case where, as here, the victim and the accused were the only eyewitnesses to the offense could conceivably support an ineffective assistance of counsel claim. (See People v. Jameson (1987), 155 Ill. App. 3d 650, 661-63.) Moreover, we disagree with the trial court’s finding that what the proffered witnesses could have testified to was inconsistent with Finley’s testimony at trial.

Finley does not dispute his presence at the Little Miss Muffet on the day in question; rather, he testified that while he was there, he did not commit the acts with which Anderson charged him. Although Finley’s affirmative response to the question, “And directing your attention to September 11, 1988 around two o’clock in the afternoon, did you have the occasion to go anywhere?” buttressed Anderson’s claim that the crime occurred at 2:20 p.m., his statement made only a few questions later, in response to a nonleading question, that he “arrivefd] at the Little Miss Muffet” at “[a]bout 12:40” is consistent with his claim that witnesses could testify that he was not in Chicago at the time of the incident. In addition, Finley’s allegation that testimony could establish his inability to hold a gun in both hands is “unsupported by his own testimony,” as the trial judge noted, because Finley was never asked about his medical condition. In his letters to the judge, Finley named all of the prospective witnesses and described what their testimony would be.

We do not decide whether Finley can successfully argue ineffective assistance of counsel in a post-trial proceeding; instead, we hold that the trial judge did not accord Finley’s claim proper consideration since it “ha[s] potential merit” (People v. Brandon (1987), 157 Ill. App. 3d 835, 847), and whether he is entitled to be represented by new counsel from other than the public defender’s office to argue his claim of incompetence of trial counsel should be determined on remand in light of the supreme court’s ruling on the issue in the case of People v. Banks (1987), 121 Ill. 2d 36.

Accordingly, we remand this cause for a proper post-trial hearing solely on Finley’s allegation of ineffective assistance of counsel, but we affirm the judgment in all other respects. “If, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel based upon counsel’s alleged failure to present a valid alibi defense, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant’s conviction and sentence ***. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel ***.” Krankel, 102 Ill. 2d at 189.

Affirmed in part; reversed in part and remanded.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
      In re PATRICIA S. et al., Minors, Appellants (The People of the State of Illinois, Petitioner-Appellee, v. Barbara L. et al., Respondents).
    First District (2nd Division)
    No. 1—90—2098
    Opinion filed November 26,1991.

      Patrick T. Murphy, Public Guardian, of Chicago (Michael G. Dsida and Kathleen G. Kennedy, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Susan S. Wigoda, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

The State’s Attorney, on behalf of the Illinois Department of Children and Family Services (DCFS), filed petitions for adjudication of wardship in the interest of the minors involved in this case on the basis of alleged neglect by their mother. Prior to ruling at two temporary custody proceedings, the circuit court declined to conduct a hearing to determine whether DCFS had made reasonable efforts to prevent or eliminate the need to remove the children from their home (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10(2)), stating its belief that such reasonable efforts findings need not be made before minors are taken from their parents’ custody. The court then entered orders granting DCFS custody of the children without any indication that DCFS had made reasonable efforts to prevent or eliminate the need to remove the minors from their home. The public guardian, who had been appointed attorney and guardian ad litem for the minors, agreed that it was in the best interest of the minors to remove them from their home but objected to the lack of a reasonable efforts hearing. At the disposition hearing after a finding of neglect, the court found that DCFS had made reasonable efforts to reunite the family. The minors do not dispute the disposition order. Instead, they challenge the circuit court’s refusal, at the temporary custody hearings, to determine whether DCFS had made reasonable efforts to keep the family intact. They assert that by not doing so, the court acted contrary to their best interests and violated State and Federal law. They ask that the temporary custody orders be reversed and that the matter be remanded so that the court may make the required determinations.

In January 1989, DCFS caused to be filed petitions for adjudication of wardship of Theresa and Harold Mitchell F. (then seven and six years old, respectively); Anthony E. (11 years old); and Patricia S. (10 years old). Each petition alleged parental neglect in not providing the care necessary for the minor’s well-being and in having an environment injurious to the minor’s welfare. At an ex parte hearing, the public guardian was appointed attorney and guardian ad litem for each child, and the court awarded DCFS temporary custody of each child. At a temporary custody hearing approximately five weeks later, the court vacated the earlier custody orders and entered an order of protection that provided for the mother’s cooperation with DCFS, including drug counselling. None of these orders is appealed here.

Five months later, in July 1989, DCFS caused to be filed petitions for supplementary relief. These petitions alleged that the mother continued to use illegal drugs, consorted with other drug users, and had left one of the children with someone who forced the child to inhale paint thinner fumes, for which the child had to be taken to the hospital. The State asked that the court vacate the order of protection and that DCFS again be granted temporary custody. In addition, DCFS had caused to be filed a petition for adjudication of wardship in the interest of the mother’s newborn child, Andrea L.

At the hearing on these petitions, the public guardian agreed to DCFS custody but stated that he could not stipulate that DCFS had made reasonable efforts to keep the family together. He then suggested that the matter be set down for separate hearing. The court, however, replied, “I don’t have to concern myself with reasonable efforts right now.” Prior to its order awarding custody to DCFS, the court painstakingly questioned the mother to ascertain if she understood that the children would be taken temporarily from her. It did not query her, or anyone else, about DCFS efforts to prevent removal of the children even though the DCFS investigator and follow-up worker were present. The court then stated “[b]y agreement, finding of probable cause [to believe that Andrea was neglected], urgent and immediate necessity [that a temporary custodian be appointed for Andrea’s protection]. Temporary custody without prejudice to [DCFS] with right to place.” The court added “as to the other minors, by agreement, vacate the [February] protective order. By agreement, finding of urgent and immediate necessity, temporary custody without prejudice to [DCFS] with right to place.” The written orders give no indication as to what efforts, if any, DCFS had made to prevent or eliminate the need to remove the minors from their home.

At the next temporary custody hearing approximately one month later, the mother and Anthony E.’s father agreed to let the temporary custody order stand with prejudice. The public guardian also agreed to let the earlier order stand, but he qualified his agreement by stating, “I will not be in agreement of reasonable efforts in this case,” a sentiment also voiced by the public defender, who represented the mother. When the court replied, “I don’t necessarily have to [make a reasonable efforts finding] until I have heard some evidence,” the State’s Attorney stated that the only required findings at that juncture were probable cause, urgent and immediate necessity, and services. The court then let stand with prejudice its July orders giving DCFS temporary custody of the children. The public guardian again voiced his objection to the court’s decision to order temporary custody with DCFS without a reasonable efforts determination.

At an adjudication hearing in February 1990, the court found the children to be neglected minors. At the disposition hearing the following June, three witnesses testified: a staff member from Harold and Theresa F.’s placement; a DCFS staff member; and the mother. At no time during examination or argument did counsel for either the mother or the minors challenge the adequacy of DCFS efforts to prevent or eliminate the need to separate the minors from their mother. In closing argument, the public guardian acknowledged that the children’s best interest would be served by making DCFS their guardian. The court then granted custody of each child to DCFS, expressly finding orally and in writing that “services [aimed at family preservation and family reunification were] incomplete” and “reasonable efforts were made to prevent or eliminate the need for removal [of the minors from the home].”

I

We first must address the State’s contention that the circuit court’s later disposition orders moot any appeal of the temporary custody orders and that the minors waived their right to appeal when they agreed that DCFS custody was in their best interest.

A. MOOTNESS

Even if we assume that the question raised here is moot, this court nevertheless may entertain this appeal because the mootness bar is not absolute. A court may consider moot issues if they concern “a question of great public interest” or if they are “capable of repetition, yet evading review.” (In re A Minor (1989), 127 Ill. 2d 247, 257-58, 537 N.E.2d 292, 296.) Both exceptions apply here.

When deciding if a matter falls within the public interest exception, courts consider “(1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur.” (A Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296.) Under the fourteenth amendment, parents have a “fundamental liberty interest *** in the care, custody, and management of their children,]” with which the government may not interfere unduly. (Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394-95.) The children have the concomitant right to remain with their parents. The issue this appeal presents is whether the circuit court, in declining to make the reasonable efforts determination before ordering removal of the children from their home, deprived the minors of their right to remain with their mother without complying with statutory due process safeguards. A matter of greater public concern is difficult to imagine. In re B.S. (1979), 73 Ill. App. 3d 507, 509, 392 N.E.2d 62, 63 (appellate court will consider moot issue from delinquency proceeding if it implicates due process issues but will dismiss for mere procedural error).

In addition, if the circuit court and the State’s Attorney are mistaken in their belief that a court may order removal of children from their homes without hearing evidence on and making detailed determinations as to DCFS efforts to keep the family together, this court’s ruling would help guide these public officials as to the prerequisites for a transfer of custody from a parent. Lastly, the question raised here likely will recur: it arose twice for these minors, and the circuit court continues to have jurisdiction over the minors, who can ask for modification of the disposition order. Thus, the question here falls squarely within the public interest exception to the mootness bar.

Events that are “capable of repetition yet evading review” also present justiciable questions despite mootness. To qualify under this exception, the minors must demonstrate that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” (A Minor, 127 Ill. 2d at 258, 537 N.E.2d at 296.) Here, just as in A Minor, the State’s assertion that the temporary custody orders are mooted by the neglect and disposition rulings “impliedly concedes” that the duration of the challenged orders precludes full litigation. (A Minor, 127 Ill. 2d at 258, 537 N.E.2d at 296.) Too, the trial court’s refusal, on two separate occasions, to make the determination with regard to these minors demonstrates actual repetition, not merely “a reasonable expectation” thereof.

We conclude that both criteria of the mootness exception are satisfied. Thus, this court may consider the merits of the appeal.

B. WAIVER

We must also determine whether the minors have waived the right to appeal the temporary custody orders by agreeing at each hearing that DCFS custody was in their best interest. Such agreement, if voluntary, warrants dismissal unless the error was fundamental and on the face of the record. 2 Ill. L. & Prac. Appeal & Error §76, at 176, §211 at 258-59 (1953).

We cannot view the public guardian’s agreement to DCFS custody as voluntary. The public guardian, like the court, is required above all to act in the children’s best interest. If, at the time of the hearings, that interest was served best by removing the children from their home, then the public guardian cannot be viewed as having voluntarily accepted the benefits of the custody and disposition orders. To ask the public guardian to contest the transfer of custody, which he believed to be in the minors’ best interest, and thereby permit the children to remain at risk is to place him between Scylla and Charybdis. We decline to require the public guardian to make that choice. Moreover, the error appears on the face of the record and is, as explained below, fundamental. Thus, even if the public guardian’s acceptance of the orders’ benefits were voluntary, dismissal is not warranted. (2 Ill. L. & Prac. Appeal & Error §211, at 258-59 (1953).) Accordingly, we find no waiver here. We note that, in any event, the State did not move for dismissal and, at oral argument, conceded that this court may reach the merits. 2 Ill. L. & Prac. Appeal & Error §589, at 532 (1953).

II

The minors contend that the circuit court’s refusal, at the temporary custody hearings, to require evidence of reasonable efforts to keep them with their mother was in dereliction of its obligation under section 2 — 10 of the Juvenile Court Act of 1987 (the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10(2)). They argue that the Act imposes an affirmative duty on the court to elicit this information and that the court was obliged to do so despite the minors’ agreement at each hearing that it was in their best interest to remove them from their mother’s custody. They maintain that the court’s abdication of its statutory duty flouts the expressed policy of the Act that removal should be ordered “only when [a child’s] welfare or safety or the protection of the public cannot be adequately safeguarded without removal.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(1).) Although there is no Illinois case law on this issue, the minors cite three out-of-State cases that construe similarly worded statutes along the lines they urge here: In re A.L.W. (Mo. Ct. App. 1989), 773 S.W.2d 129; In re M.H. (Iowa Ct. App. 1989), 444 N.W. 2d 110; and In re Burns (Del. 1986), 519 A. 2d 638.

The State responds that if omission of a reasonable efforts determination were error, it was harmless error because, in the State’s view, no one was prejudiced at the temporary custody hearings in light of the minors’ agreement to the orders, and the reasonable efforts finding at the disposition hearing corrected the error. The State distinguishes the three cases cited by the minors in that no reasonable efforts finding was made at any time in two of the cases and the third case concerned Federal law and its relation to termination of parental rights, not State law on temporary custody.

We find the State’s argument unpersuasive. The Act gives the court broad powers “fully to gather information bearing upon the current condition and future welfare of persons subject to th[e] Act.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(2).) For temporary custody hearings, section 2 — 10 of the Act describes with particularity the specific questions that must be asked, the order in which to ask them, and who is responsible for supplying the information:

“If the court finds that there is probable cause to believe that the minor is *** neglectedf, witnesses] shall be examined before the court. *** The Court shall require documentation by representatives of the [DCFS] as to the reasonable efforts that were made to prevent or eliminate the necessity of removal of the minor from his or her home, and shall consider the testimony of any person as to those reasonable efforts. If the court finds that it is a matter of immediate and urgent necessity [that the minor be removed] and further finds that reasonable efforts have been made or good cause has been shown why reasonable efforts cannot prevent or eliminate the necessity of removal of the minor from his or her home, the court may [order removal.] *** In making its [reasonable efforts determinations], the court shall state in writing its findings concerning the nature of the services that were offered or the efforts that were made to prevent removal of the child and the apparent reasons that such services or efforts could not prevent the need for removal.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 802-10(2).

The wording of this statute is unequivocal: in a temporary custody hearing, a court must make three determinations before ordering removal of a child from parental custody: (1) whether probable cause exists to believe that the minor is neglected; (2) if so, whether removal is a matter of immediate and urgent necessity for the child’s welfare; and (3) if so, whether DCFS has made reasonable efforts to prevent or eliminate removal of the child, or whether there is a good reason for not doing so. Under the statute, unlike its customary role in civil or criminal proceedings, the court cannot sit passively and await the parties’ presentation of evidence. Instead, the Act requires that it must act affirmatively, and perhaps at times aggressively, to ferret out information before it can decide that a child’s interest is better served by removal from the family.

Here, the trial court was correct in stating that it had to hear evidence prior to making a reasonable efforts determination and that this determination was necessary only if it first made probable cause and urgent-and-immediate-necessity findings. The court went astray, however, in believing that it could enter an order granting DCFS custody without first making a reasonable efforts determination. Having neglected to gather this information, the court erred under the plain language of the Act by abdicating its duty (1) to require that DCFS present evidence either of its efforts to keep the family intact or of good cause for the absence of such efforts, (2) to examine family members, DCFS staff, and others for other relevant testimony, and (3) to make detailed findings as to the existence and adequacy of DCFS efforts.

This error, moreover, was not harmless, contrary to the State’s assertions here. The State’s analysis ignores the fact that the error appears on the face of the record and constitutes a deprivation of the minors’ constitutional right to due process. The question before the circuit court at each temporary custody hearing is whether DCFS has made reasonable efforts to keep the family together as of the time of that hearing. The purpose of each determination is not merely to provide evidence of the need to transfer custody, but to determine if unification can be achieved with DCFS help in the form of additional or different services at the time of the hearing. Hence, the reasonable efforts determination at the disposition hearing cannot cure the effect of the absence of a determination at the earlier hearings for the simple reason that the disposition hearing resolves a different question.

The State’s claim that no prejudice resulted is similarly without foundation for, as the minors note, by not hearing evidence as to what efforts, if any, DCFS was making to keep the family together at the time of each hearing, the court could not ascertain whether an order to DCFS to alter, augment, or begin such efforts would obviate the need to separate the children from their mother, or, if removal was necessary, whether changes in DCFS services and strategy could result in a prompt reunion. For example, had the court ordered DCFS in July to provide help in finding better housing or different drug counselling services, the children might have been able to return to their mother. Hence, the court’s error prejudiced both the minors and the mother while simultaneously thwarting the intent of the Act to unify families. Such error cannot be deemed harmless.

We recognize that the juvenile court caseload is staggering. We also understand the circuit court’s conduct here in light of the parties’ consensus that the challenged orders were in the best interest of the children. Nevertheless, the size of the court’s docket and the agreement of the agencies cannot justify ignoring a clear statutory requirement.

Despite our conclusions, we do not remand because we agree with the State that a ruling now on whether, at the time of the temporary custody hearings, DCFS was making reasonable efforts to keep the minors with their mother would be pointless. No one here challenges the determination that was made at the disposition hearing or the disposition ruling itself. As noted above, reasonable efforts determinations are time specific: they address the adequacy of DCFS efforts only as of the time of the ruling. A finding now concerning reasonable efforts at the temporary custody stage would have no effect on the minors. Accordingly, having emphasized the necessity of the court making timely reasonable efforts findings in future cases, we affirm the judgment of the circuit court.

Judgment affirmed.

HARTMAN and McCORMICK, JJ., concur.

      The minors petitioned for leave to appeal the temporary custody orders, raising the issue addressed here, as allowed by Illinois Supreme Court Rule 306(a)(1)(v). This court denied the petition in an order dated January 30, 1990. (In re Patricia S. (1990), No. 1-89-2243.)


author: JUSTICE HARTMAN

text:
    THE PEOPLE ex rel. SALLY A. JACKSON, Director of the Department of Employment Security, Plaintiff-Appellee, v. DEGROOT MOTOR SERVICES, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—2192
    Opinion filed November 26,1991.

      Wessels & Pautsch, P.C., of St. Charles (Charles W. Pautsch, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, DeGroot Motor Services, Inc. (DeGroot), appeals from the circuit court’s entry of summary judgment against it in a collection action brought by plaintiff, the People of the State of Illinois for the use of the Director of the Department of Employment Security (Director), pursuant to the Illinois Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.). We are asked to decide whether the circuit court erred in determining that the collection action was not time-barred by statute; the doctrine of laches should be applied under the circumstances of this case; and DeGroot’s due process rights were violated by both the circuit court and the Director. For reasons set forth below, we affirm.

The 11-year history of this case began on April 29, 1980, when the Director of the Department of Labor (Director of Labor) issued a “determination and assessment” (d & a) against DeGroot for overdue unemployment insurance contributions, accrued interest, and penalties, in the sum of $19,194.73, due on earnings from the first quarter of 1976, 1977, 1978, and 1979. The notice informed DeGroot that if a written protest and petition for hearing was not filed by it within 20 days from the date of the notice, the d & a would “become final.” The notice was sent by registered mail and was received by DeGroot.

On April 10, 1984, another d & a was issued against DeGroot by the Director of Labor, for $60,750.78, including interest and penalties, covering the period from January 1980 to April 1983. The notice was sent by registered mail and again was received by DeGroot. A timely protest and petition for hearing on this d & a only was submitted by DeGroot in response.

In October 1988, the Director sent DeGroot notice of the protest hearing, scheduled for November 17, 1988. DeGroot later presented a written motion for a continuance, which was granted, and the hearing was reset for December 14, 1988. On December 13, 1988, DeGroot’s oral motion for another continuance was denied. DeGroot did not appear at the scheduled December 14 hearing. A report of the Director’s representative was filed on December 30, 1988, recommending that the Director’s d & a be affirmed. This report was sent to De-Groot by certified mail and was received by DeGroot. No timely protest was filed by DeGroot in response to the report, which subsequently became the Director’s final decision.

The Director then filed a complaint at law for the collection of De-Groot’s delinquent contributions on March 9, 1989. An amended complaint later was filed on May 24, 1989. DeGroot responded with a motion to strike and dismiss, alleging a violation of the statute of limitations and the defense of laches. The circuit court denied the motion on October 26, 1989, ruling specifically that laches did not attach to the action.

DeGroot thereafter filed an answer in which it admitted both its receipt of the 1980 and 1984 d & as and its failure to protest the 1980 d & a. DeGroot further admitted that it did not file objections with the Director concerning the report of the Director’s representative nor did it seek judicial review of the decision. In its affirmative defenses, DeGroot realleged its assertions of violation of the statute of limitations and its defense of laches.

The circuit court granted the Director’s subsequent motion for summary judgment on June 1, 1990. A judgment of $94,526.73 later was entered against DeGroot on June 26, 1990. By timely notice, De-Groot challenges the circuit court’s ruling.

I

DeGroot initially argues that the circuit court erred in determining that the collection action was not time barred under the Act.

The legislative scheme at issue in this appeal reveals that the Act was created to prevent the spread of unemployment and to “lighten its burden” upon the unemployed worker and his family. (Ill. Rev. Stat. 1985, ch. 48, par. 300.) The General Assembly, in order to lessen the menace “to the health, safety and morals of the people of Illinois, and to encourage stabilization of employment,” mandated unemployment insurance on a statewide scale, providing for the setting aside of “reserves during periods of employment to be used to pay benefits during periods of unemployment.” (Ill. Rev. Stat. 1987, ch. 48, par. 300.) Section 2200 of the Act provides that

“the Director may *** determine and assess the amount of such contributions or deficiency, as the case may be, together with interest and penalties due and unpaid, and immediately serve notice upon such employing unit or person of such determination and assessment and make a demand for payment of the assessed contribution together with interest and penalties thereon. *** Such determination and assessment by the Director shall be final at the expiration of 20 days from the date of the service of such written notice thereof and demand for payment, unless such employing unit or person shall have filed with the Director a written protest and a petition for a hearing, specifying its objections thereto. Upon the receipt of such petition within the 20 days allowed, the Director shall fix the time and place for a hearing and shall notify the petitioner thereof. *** At any hearing held as herein provided, the determination and assessment that has been made by the Director shall be prima facie correct and the burden shall be upon the protesting employing unit or person to prove that it is incorrect. Upon the conclusion of such hearing a decision shall be made by the Director either canceling, increasing, modifying or affirming such determination or assessment and notice thereof given to the petitioner.” (Ill. Rev. Stat. 1987, ch. 48, par. 680.)

Section 2203 sets forth the manner in which service of process is to be accomplished for hearings held in accordance with section 2200, where such hearings are to be heard, and by whom they are to be conducted. (Ill. Rev. Stat. 1987, ch. 48, par. 683.) The statute is silent as to when the hearing must be convened after a petitioner’s request for hearing is received. The Director’s decision upon conclusion of such a hearing is “final and conclusive” unless judicial review is sought. (Ill. Rev. Stat. 1987, ch. 48, par. 684.) The circuit court of the county in which the hearing was held is empowered to review the final administrative decision under the provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) and such review has precedence “over all other civil cases except cases arising under the Workers’ Compensation Act.” Ill. Rev. Stat, 1987, ch. 48, par. 685.

3 Section 2206 governs the collection of debts owed under the Act and states in pertinent part that

“[a]ny amount due may *** be collected by civil action against the employing unit or person brought in the name of the People of the State of Illinois, without regard as to whether or not the amount of such contributions has been assessed by the Director as provided in Section 2200.” (Ill. Rev. Stat. 1989, ch. 48, par. 686.)

It should be noted that section 2206 does not make a final d & a a prerequisite to the filing of a civil collection suit. Finally, section 2207 sets forth the time limitations which control the legislation:

“No determination and assessment of contributions, interest, or penalties shall be made, and no action for the collection of contributions, interest, or penalties which is not based upon a final determination and assessment shall be brought against any employing unit, more than four years after the last day of the month immediately following the calendar quarter in which the wages, upon which such contributions accrued, were paid.” Ill. Rev. Stat. 1987, ch. 48, par. 687.

DeGroot maintains that the instant action to collect delinquent contributions is time barred under section 2207’s four-year provision. The statutory language, however, merely bars the issuance of a d & a more than four years after the last day of the month immediately following the calendar quarter in which the wages upon which the contributions accrued were paid. Likewise, no action for collection “which is not based upon a final determination and assessment” (Ill. Rev. Stat. 1987, ch. 48, par. 687) can be brought after the above-quoted passage of time. No limitation period is prescribed for collection actions based upon final d & as. In the case at bar, the d & a became final when DeGroot failed to seek judicial review of the Director’s report of December 30, 1988. (See Ill. Rev. Stat. 1987, ch. 48, par. 684.) Since the collection action at issue here clearly was based upon a final d & a, the statutory time limit of four years does not apply-

DeGroot argues that such a construction creates a “loophole” for actions which are based upon a final d & a and suggests that the statutory language of section 2206 — that collection suits may be brought “without regard as to whether or not the amount of such contributions has been assessed by the Director as provided in Section 2200” (Ill. Rev. Stat. 1989, ch. 48, par. 686) — carries over to section 2207, thereby making all collection actions amenable to its four-year limitation period and resolving this apparent “ambiguity.”

DeGroot, however, seeks to create an ambiguity where none exists. Section 2207 simply does not refer to actions based upon a final d & a. Statutory construction requires prime consideration to be given to legislative intent. (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.) Statutes must be given their plain and ordinary meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102.) Where the statutory language is clear and unambiguous, the court will not read into the statute exceptions, limitations or conditions. (People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014; Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) Furthermore, DeGroot’s proffered interpretation would render the legislature’s distinction between the two types of collection suits meaningless and superfluous. See People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200.

DeGroot also argues that the notice and hearing set for its protest of the 1984 d & a was not made within the four-year period established in section 2207. Section 2207, however, does not provide a time limit in which notice must be received and a hearing date set. (See Ill. Rev. Stat. 1987, ch. 48, par. 687.) Section 2203, which governs the type of service mandated for the hearing and sets forth the procedures to be used for such hearings, is also silent as to when these hearings must be held. (See Ill. Rev. Stat. 1987, ch. 48, par. 683.) None of the Act’s provisions compel the imposition of a time limitation for a section 2203 hearing in the manner suggested by De-Groot.

Although the statute does not contain any time limitation, the Director’s four-year inaction in convening a hearing on DeGroot’s protest is troubling and necessitates comment. As noted above, DeGroot filed a timely protest and petition for hearing after receipt of the 1984 d & a; however, notice of the hearing was not sent until October 1988 with the hearing scheduled in November 1988. No reason for this delay is apparent from the record nor was any reason offered on appeal. The administrative process was developed “to bypass the insufferable delays and technicalities of the law.” (Gray v. Gray (1955), 6 Ill. App. 2d 571, 579, 128 N.E.2d 602.) The Director's delay here belies this intent and depreciates the stated purpose of the Act which she is expressly charged to administer, namely, ensuring that timely contributions to the unemployment insurance fund are made. The continued practice of inexplicable inaction, as here, serves only to diminish the opportunity for meaningful hearings on the issue of delinquency. Future dereliction in this regard may not be condoned.

II

DeGroot alternatively contends that even if this court were to hold that the four-year limitation is inapplicable to the instant collection suit, section 13 — 205, the Code of Civil Procedure’s “catch-all” five-year statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13— 205), should be applied to collection suits based upon a final d & a. The five-year limitation of section 13 — 205 applies to “all civil actions not otherwise provided for.” (Ill. Rev. Stat. 1987, ch. 110, par. 13— 205.) The Director responds that DeGroot has waived this contention by failing to argue it before the circuit court. Although arguments not made in the circuit court are waived on appeal (134 Ill. 2d R. 341(e)(7)), we shall address the merits of the claim nevertheless.

Whether a statute of limitation is applicable to the State requires consideration of the right which the governmental unit seeks to assert, namely, whether it is a right belonging to the general public or whether it belongs only to the government or some small, distinct subsection of the public at large. (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874 (Shelbyville); People ex rel. Department of Transportation v. Molter (1985), 133 Ill. App. 3d 164, 478 N.E.2d 1102.) Three factors must be considered: (1) the effect of the interest on the public; (2) the obligation of the governmental unit to act on behalf of the public; and (3) the extent to which the expenditure of public revenues is necessitated. Shelbyville, 96 Ill. 2d at 464-65.

Was the instant collection action brought to enforce a right belonging to the general public, or one belonging to the Director or to some small subsection of the public? As noted above, the General Assembly has determined that “unemployment has become a serious menace to the health, safety, morals and welfare of the people *** of Illinois.” (Ill. Rev. Stat. 1987, ch. 48, par. 300.) In order to alleviate this problem, the statute mandates employer contributions to a statewide unemployment insurance program. (See Ill. Rev. Stat. 1987, ch. 48, par. 300.) By statute, then, the Director represents the public in administering the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 610.) The instant collection action seeks to enforce the public’s claim to the maintenance of statewide unemployment insurance in order to lessen the harm created by unemployment among the statewide work force as a whole. Public revenues necessarily are expended if unemployment is uncurbed. The Director clearly was asserting a public right not subject to the statute of limitation as is contended by DeGroot. The circuit court did not err in rejecting DeGroot’s statute of limitations defense.

Ill

DeGroot next assigns as error the circuit court’s finding that laches did not attach to the action. DeGroot’s argument centers on the Director’s delay in bringing the collection suit and her delay of several years in convening the hearing on DeGroot’s written protest.

The Director responds that laches cannot apply to this case because it is not an equitable action. Although many cases hold that laches is a purely equitable defense which is not available as a bar to an action at law (e.g., Illinois Rockford Corp. v. Dickman (1988), 167 Ill. App. 3d 113, 520 N.E.2d 1184; People ex rel. Reeder v. Reeder (1985), 131 Ill. App. 3d 841, 476 N.E.2d 50; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393), there also is authority to the contrary. (See Bays v. Matthews (1982), 108 Ill. App. 3d 1112, 440 N.E.2d 142; People ex rel. Kennedy v. Hurley (1952), 348 Ill. App. 265, 108 N.E.2d 808.) Laches has been held to be a valid defense to actions of ejectment (see Miller v. Siwicki (1956), 8 Ill. 2d 362, 134 N.E.2d 321) and actions at law based upon section 255 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 736). (Bays v. Matthews, 108 Ill. App. 3d 1112, 440 N.E.2d 142.) In Bays, the appellate court concluded that since the purpose of section 255 was not the protection of the delinquent taxpayer, but merely the return of real estate to the stream of commerce, the application of the doctrine of laches would not affect adversely the statute’s purpose. (Bays v. Matthews, 108 Ill. App. 3d at 1116-17.) The same cannot be said of the Act at issue here, which provides for financial contributions to an unemployment fund from employers, creating a legal obligation for the employer and lessening the menace to the public at large caused by unemployment. The application of laches to the Act could affect adversely this statutory purpose.

DeGroot’s argument is farther weakened by the fact that principles of laches and estoppel do not apply to public bodies under usual circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447, 220 N.E.2d 415; Pavlakos v. Department of Labor (1984), 128 Ill. App. 3d 783, 793, 471 N.E.2d 547, aff'd (1985), 111 Ill. 2d 257, 489 N.E.2d 1325.) Although laches may be applied against the State in “compelling circumstances” (Hickey, 35 Ill. 2d at 448), mere nonaction of government officers does not give rise to the estoppel. (Hickey, 35 Ill. 2d at 448.) There must be some “positive acts” by the officials which may have induced the action of the adverse party, and the doctrine should be invoked only to prevent fraud and injustice. Hickey, 35 Ill. 2d at 448-49.

At bar, there were no “positive acts” taken by the Director which would have led DeGroot to believe that the delinquent contributions would not be collected. Timely d & as were filed, placing DeGroot on notice that the contributions, interest and penalties would have to be paid. The lapse of time between DeGroot’s protest and the scheduled hearing appears to be government nonaction. Although procrastination of the magnitude shown here is condemnable as noted above, based upon Hickey, inaction alone cannot effect an estoppel, particularly in light of the facts of this case, where DeGroot timely received the determinations and assessments, but failed to take any significant steps to avail itself of the statute’s review mechanisms, and where no claims of fraud have been advanced.

This conclusion is reinforced by our supreme court’s decision in Todd v. Annunzio (1951), 410 Ill. 343, 102 N.E.2d 297. There, the court rejected a contention that the Director was estopped from making a d & a against an employer by reason of a delay of almost five years in making the assessments and delays of up to 18 months in convening a hearing upon the employer’s protest against the assessment, the court holding that principles of estoppel are inapplicable to the State functioning in a governmental capacity. Todd v. Annunzio, 410 Ill. at 348.

The circuit court here correctly found that the doctrine of laches did not attach to the instant action.

IV

DeGroot’s final contention is that its due process rights were violated by both the Director and the circuit court, maintaining that the Director’s delay in setting the hearing on DeGroot’s protest constitutes a deprivation of due process of law.

The essence of due process is notice and the right to be heard. (Davis v. Lane (7th Cir. 1987), 814 F.2d 397.) As to notice, the record adequately reflects that the Director met the requirements for notice as set out in the Act. Further, DeGroot ignores the fact that the Director did not deprive it of its right to be heard because the only hearing sought was scheduled. After failing to secure a second continuance, DeGroot neglected to appear at the hearing. Moreover, DeGroot admits that it did not seek judicial review of the report and decision based upon the hearing, even though it had the opportunity to do so under the Act. (See Ill. Rev. Stat. 1987, ch. 48, par. 684.) Upon this record, DeGroot’s claim of a due process violation crumbles when it failed to avail itself of any of the hearing protections afforded by statute.

DeGroot also identifies a due process violation arising from the circuit court’s denial of its request for discovery.

In her amended complaint, the Director stated that the d & as were obtained in accordance with the provisions of the Act, and further alleged that DeGroot failed to seek judicial review of the decision as is allowed under the Act. In its answer, DeGroot admitted that it did not seek judicial review of the decision, but denied that the decision was final and conclusive. As noted above, the Act makes such a decision final and conclusive upon a party’s failure to seek judicial review. Apart from DeGroot’s reallegations of the statute of limitations violation and its assertion of the doctrine of laches, which previously had been rejected by the court, no issues of fact were created by DeGroot’s answer; therefore, its request for discovery was properly denied. See People ex rel. Cullerton v. Crawford (1967), 80 Ill. App. 2d 237, 242-43, 225 N.E.2d 80.

For the foregoing reasons, the judgment of the circuit court must be affirmed.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.

      The Act formerly was administered by the Director of the Department of Labor. (See Ill. Rev. Stat. 1979, ch. 48, pars. 311, 610.) In December 1984, the Department of Unemployment Security was created, and it currently administers the Act. See Ill. Rev. Stat. 1989, ch. 48, pars. 311, 610.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY HUBBARD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1601
    Opinion filed November 27,1991.

      Randolph N. Stone, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Daniel P. Nikolic, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

On January 14, 1988, a jury found Jerry Hubbard guilty of murder and armed robbery. Judge Robert Boharic, on February 18, 1988, sentenced Hubbard to concurrent terms of 50 years for murder and 30 years for armed robbery. Defendant appeals from both the jury verdict and the sentence of the court. Defendant argues that the State failed to prove him guilty beyond all reasonable doubt. Even if proven guilty, the defendant believes his sentence was excessive.

Hubbard argues that his confession was improperly admitted and was not corroborated by independent evidence. In addition, defendant feels his sentence to be excessive because of the theory of accountability that the court used.

This court holds that the confession of the defendant was overwhelmingly supported by independent evidence; the State proved him guilty beyond a reasonable doubt. In addition, the trial court did not abuse its discretion in imposing an extended sentence.

We affirm.

On January 10, 1987, the victim, Willie Michael Reed, 24, a mentally handicapped male, went to the Popcorn Deli for his mother with $20 to buy a fish dinner and corned beef sandwiches.

Shortly thereafter, around 10 p.m., Reed was seen at 7400 Liquors by Jad Abraham, an employee. Abraham testified that he saw defendant Hubbard standing across the street from the store with two or three people while Willie Reed was in the store. The next day he identified codefendants Benjamin Dowdell and Herbert Barnes as two of the three other people. Although Abraham had never seen the defendant before, he was familiar with Barnes and Dowdell. He also testified that Hubbard, Dowdell and Herbert Barnes had left the store around 9:30 p.m. prior to Willie Reed’s arrival.

The Popcorn Deli, located at 7340 South Racine, is less than a block from 7400 Liquors. Shortly after 10 p.m. on the evening of the crime, Leslie Brown, in his second-floor apartment over the deli, heard a car horn and looked out the window. Beneath the window he saw two young black males talking. One man was tall and the other short. He overheard the two men planning a robbery. The tall man told the short man they were going to “get him” because the person had some money. A third man stopped beneath the window, said something to the two men, then crossed over to the other side of Racine and motioned at the two men, pointing toward the deli. The other two men then walked north on Racine. Brown looked away from the window when he heard a bottle hit the street. When he looked out again, all three men were running. Brown positively identified the tall man and the man across the street in a police lineup the next day. He did not identify the short male.

Later that evening, Willie Reed arrived home and told his mother he had been beaten up for $10.09. Mrs. Reed testified that Willie’s nose appeared displaced and his face was bloody. Paramedics arrived at 10:40 p.m. Paramedic Thomas Krajecki testified that he noticed a large lump on the victim’s nose, bleeding from his nose and facial swelling. Once in the ambulance, the treating paramedic discovered a large stab wound in his back. Reed suffered a cardiac arrest en route to the hospital.

A post-mortem exam was performed by Dr. Yuksel Konacki, who observed a six-inch stab wound in the victim’s back, which punctured the right lung. Dr. Konacki concluded that too much blood had drained into the chest cavity, resulting in death.

Although Dr. Konacki did not mention the nose injury in his written medical report, he testified that he noticed specks of blood about the victim’s nose. He could not tell if the nose was swollen or just deformed. He did not internally examine the nose since post-mortem methods prevent disfigurement of the facial area.

Officer Thomas Ptak testified that on January 11, 1991, he arrested Udell Barnes and Herbert Barnes, brothers. He arrested Herbert Barnes at the apartment of his girl friend, Brenda Hines. After their arrest, Officers Anthony Downing and Homer Napier returned to the apartment of Brenda Hines in order to retrieve the jacket worn by Herbert Barnes the previous night. They asked Brenda Hines if she knew Hubbard. She said he was sitting on her couch and she pointed toward him. Hubbard stepped into the hallway and said he had been with Herbert Barnes and Dowdell the previous night. Hubbard was arrested and handcuffed in the hallway, then taken to the station.

Officer Ptak and Officer Terrence O’Connor conducted the investigation. On January 11 Herbert Barnes brought Officers Ptak and O’Connor to a vacant lot at 7336 South Racine to search for the murder weapon, but found nothing due to the snow. They returned to search the same lot on January 13 and found an eight-inch, white-handled butcher knife. There were reddish stains on the blade.

Officer Ptak and Officer Michael Duffin interviewed Hubbard at the station. Ptak testified that he read Hubbard his Miranda rights prior to questioning. He then told Hubbard that they were investigating a stabbing death in the area of 73rd and Racine. Hubbard said he knew nothing about it. After being told that Herbert Barnes and Dowdell were in custody, he said he was with Barnes and Dowdell the previous night and heard them planning to rob someone. When they finished talking, he and Barnes then began walking north on Racine, and Dowdell crossed the street. A man came out of the Popcorn Deli and Dowdell yelled “that’s him.” They followed the victim to the corner of 73rd Place and Racine, where Hubbard said he struck him in the face with a bottle. Herbert Barnes then stabbed him in the back, and Dowdell went through his pockets.

Assistant State’s Attorney Kevin Durkin arrived at the station and read Hubbard his Miranda rights and told him he was a lawyer for the State. Hubbard then said he was with Barnes and Dowdell the previous night and that he knew they were planning to rob someone. He hit a man in the face with a bottle, but he did not recall who stabbed the man. He refused to sign a written statement.

Brenda Hines testified that on the evening of January 10 the defendant, Herbert Barnes and Udell Barnes and Dowdell were at her apartment. About 8 p.m., they left to buy cigarettes and beer. About 10:45 p.m., Herbert Barnes, Dowdell and Jerry Hubbard returned with beer, corned beef sandwiches and fish.

At trial, defendant testified he went to the store with Herbert Barnes and Dowdell to buy cigarettes and beer. While defendant purchased the items, Barnes called his brother and then stepped outside with Dowdell. When defendant left the store, he saw several men a few buildings away, near the Popcorn Deli. They appeared to be arguing, and he recognized them as Herbert Barnes and Udell Barnes and Dowdell. There was also another man whom he could not recognize. He saw a man fall to the ground and Herbert’s hand went up and down, but he saw nothing in it. Herbert Barnes and the man were fighting. Defendant began to run when he saw Herbert Barnes running toward him.

He further testified that at the station he did not answer questions because he was unaware of what the officers were talking about. He was not read any Miranda warnings. Officer Duffin told him that if he would state he hit the victim with a bottle, he would ask the judge for a two-year sentence. He denied telling Assistant State’s Attorney Durkin about hitting a man in the face with a bottle. On cross-examination he could not recall if he had testified differently on previous occasions in court. It was stipulated during trial that on two prior occasions defendant testified to the events differently.

A jury found the defendant guilty of armed robbery and murder. Judge Boharic sentenced the defendant to 30- and 50-year concurrent terms for armed robbery and murder, respectively. In imposing an extended term for murder, the judge commented on the heinousness of the crime, the brutality of the defendant’s conduct and the need to deter others from committing the same type of premeditated crime.

The proper standard of review in examining whether a defendant has been convicted upon insufficient evidence is to determine whether the record evidence, considered in a light most favorable to the prosecution, could reasonably support a finding of guilt beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) A criminal conviction will not be set aside unless the evidence is so unreasonable, improbable or unsatisfactory that it justifies a reasonable doubt as to the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

At trial, the defendant’s testimony contradicted his previous confessions. He stated that these confessions were coerced by Officer Duffin, who promised him a two-year sentence if he would say he hit a man in the face with a bottle. Defendant contends that the State failed to prove him guilty beyond a reasonable doubt on either count because the confessions were unsupported by the evidence. In support thereof, the defendant indicates: (1) the medical examiner did not notice any injury to the victim’s nose; and (2) no one actually saw the defendant hit the victim in the nose with a bottle.

Where a defendant raises the issue, the State must prove by a preponderance of the evidence that a confession was voluntary. (People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123.) Whether a statement is voluntary depends upon the totality of the circumstances. The test is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time of the confession. (Clark, 114 Ill. 2d at 457.) The trial court’s finding that a confession was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601.) Both the trial testimony and the pretrial suppression hearing may be considered on appeal. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223.

At trial and during the pretrial suppression hearing, defendant testified that he was coerced by Officer Duffin, who allegedly promised him a two-year sentence in return for a statement about hitting a man in the face with a bottle. He did not make any other claims of physical or mental mistreatment or coercion. In addition, he did not claim that any of his other statements about the robbery and murder were coerced. Considering the totality of these things, we find that the trial court’s finding that the confessions were voluntary was supported by the evidence.

In order to sustain a conviction based upon a confession, the confession must be corroborated. (People v. Montes (1989), 192 Ill. App. 3d 874, 549 N.E.2d 700.) In this State, the corroboration requirement is satisfied by proof of the corpus delicti. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861; People v. White (1984), 129 Ill. App. 3d 308, 472 N.E.2d 553.) In order to establish the corpus delicti, there must be some evidence apart from the confession demonstrating that a crime occurred. (People v. Willingham (1982), 89 Ill. 2d at 360, 432 N.E.2d at 864.) If the independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession to establish the corpus delicti. (Willingham, 89 Ill. 2d at 361.) In such event, the independent evidence need not establish beyond a reasonable doubt that an offense did occur. Once there is corroborating proof that a crime did in fact occur, no further reason exists for ignoring a confession when considering whether the corpus delicti is established. People v. O’Neil (1960), 18 Ill. 2d 461, 464, 165 N.E.2d 319.

Both the defendant and the State cite Willingham in support of their position. The State argues that under Willingham a confession will be upheld if the independent evidence either: (1) shows the existence of a crime or (2) corroborates the circumstances in the confession. Although we agree with the application of Willingham to the case at bar, we disagree with the State’s interpretation of the Willingham decision. In order to satisfy the corroboration requirement, the independent evidence must meet both prongs.

The court in Willingham (quoting People v. Perfecto (1962), 26 Ill. 2d 228, 229,186 N.E.2d 258) stated:

“ ‘ “The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. [Citation.] The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. [Citation.]” [Citation.]’ ” (Emphasis in original.) Willingham, 89 Ill. 2d at 359-60.

Section 18 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) provides:

“A person commits armed robbery when he [takes property from the person or presence of another by the use of force or by threatening the imminent use of force while] armed with a dangerous weapon.”

The evidence presented tends to prove that an armed robbery did in fact occur. Brown testified that he saw and heard two black males outside his apartment window, planning a robbery in the vicinity of the store where the victim was seen. A third man talked with the other two, then crossed the street and pointed toward the Popcorn Deli. Brown then looked away from his window and heard a bottle break. When he looked out again all three men were running. Shortly thereafter, the victim returned home to his mother and said, “Mama, they beat me up for ten dollars and nine cents.” In addition, Brenda Hines stated that the defendant returned to her apartment shortly after the robbery with the codefendants, and they ate the fish and corned beef sandwiches which they brought home with them. The victim had been sent out to pick up fish and corned beef sandwiches. This evidence tends to prove the existence of a robbery as well as the use of force to effect the robbery.

When the victim arrived home, his mother as well as the paramedics noticed a large lump on the victim’s nose and bleeding from the nose. The paramedics were not aware of any other injury until they removed the victim’s shirt en route to the hospital. They then discovered a six-inch stab wound in his back. A post-mortem examination revealed that the stab wound had punctured the victim’s right lung, permitting too much blood to drain into the chest cavity and as a result death occurred.

This evidence also tends to prove the corpus delicti of a murder. In a murder case, the corpus delicti consists of the fact of death and that the death was caused by the criminal act of another. This need not include the identity of the person who committed the act. (People v. Pena (1988), 174 Ill. App. 3d 281, 528 N.E.2d 325.) The proof of the corpus delicti, along with the confession tending to show that the defendant committed the crime, is sufficient to justify conviction. 174 Ill. App. 3d at 286, 528 N.E.2d at 329.

The evidence presented clearly suggests that two crimes have occurred, namely, armed robbery and murder. Moreover, this same evidence corroborates the confessions of the defendant. The defendant confessed that he was with the two codefendants, Herbert Barnes and Dowdell, the evening before when they discussed robbing someone. He then began walking north on Racine toward the Popcorn Deli with Herbert Barnes when Dowdell crossed over the street. Defendant hit a man in the face with a bottle, Herbert Barnes stabbed him in the back and Dowdell went through his pockets.

Defendant says that this confession is unsupported by the evidence since the post-mortem report of Dr. Konacki did not mention any nose injury. This argument is meritless. Dr. Konacki testified that he recalls specks of blood beneath the victim’s nose. He could not internally examine the nose since post-mortem procedures prevent disfigurement of the facial area. He also stated that he was not certain if the victim’s nose was swollen or just deformed. Thus, the absence of a nose injury in the written medical report was not conclusive as to whether or not the nose was actually injured. Moreover, the victim’s mother as well as the treating paramedics testified that the victim’s nose was swollen and bleeding.

The independent evidence presented shows that both of the crimes occurred. This same evidence corroborated the confessions of the defendant. The corpus delicti was established and the confessions were properly admitted into evidence. We believe the State proved the defendant guilty beyond a reasonable doubt.

Defendant also contends that notwithstanding the verdict of the jury, the sentence imposed by the trial court was excessive and requests that the case be remanded for a new sentencing hearing. Because we find that the trial court properly considered the heinousness and brutal nature of this crime, we deny defendant’s request for a new hearing.

The standard of review in deciding whether a sentence is excessive is whether the trial court abused its discretion. (People v. Robinson (1980), 83 Ill. 2d 424, 415 N.E.2d 1045.) The Unified Code of Corrections grants a broad discretion in sentencing judges in order to get reasoned judgments as to the appropriate penalty for a particular case. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The trial court is normally the proper forum in which a suitable sentence is determined, and the trial court’s decisions in this regard are entitled to great deference and weight. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

The defendant was sentenced to concurrent terms of 30 and 50 years for armed robbery and murder, respectively. This sentence is identical to the one.received by codefendant Herbert Barnes, who stabbed the victim. Codefendant Dowdell, who went through the victim’s pockets, received 25 years. Defendant argues that since his guilt was premised on a theory of accountability, he should not have received the same sentence as the principal, codefendant Herbert Barnes.

Armed robbery is a Class X felony. (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(b).) The sentence for a Class X felony is not less than six years and not greater than 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) Thus, a sentence of 30 years for armed robbery was within the statutory limits.

The State incorrectly cites the sentencing provisions for murder as being between 20 and 60 years. This provision did not become effective until January 1, 1988. The crime occurred in January of 1987, at which time the sentence for murder was not less than 20 years and not more than 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(1).) Since the judge imposed a sentence of 50 years, this was an extended-term sentence, governed by the provisions of section 5 — 8—2. This section states that where aggravating factors set forth in paragraph (b) of section 5 — 5—3.2 are present, the trial judge may give a more severe sentence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2.) The “aggravating factors” include whether the crime is exceptionally brutal or heinous and whether the victim is physically handicapped. “Physically handicapped” includes persons with some physical characteristic which impairs their ability to avoid or prevent the commission of the crime. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b).

Willie Michael Reed was a mentally handicapped young man, viciously murdered by his neighbors for a meal and $10. When he returned home to his mother, he was not even aware that he had been stabbed in the back. The trial judge properly considered these factors in imposing an extended sentence for murder.

The armed robbery sentence imposed by the trial judge was properly within the statutory limits. In imposing an extended-term murder sentence, the trial judge considered the brutality and heinousness of the crime as well as the need to deter others from committing the same crime. Accordingly, we affirm the sentence of the trial court.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.