author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMOND JIMENEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—3471
    Opinion filed November 14, 1989.
    Rehearing denied December 12, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Cunningham, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant-appellant Edmond Jimenez was charged by indictment with attempted aggravated kidnapping in connection with the attempted abduction of nine-year-old N.R., and with two counts of aggravated kidnapping and 12 counts of aggravated criminal sexual assault in connection with the abduction and sexual assault of seven-year-old B.C. on the same date. Following a jury trial, he was found guilty of aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, and attempted aggravated kidnapping. He was sentenced to concurrent terms of 60 years’ imprisonment for aggravated criminal sexual assault, 15 years’ imprisonment for criminal sexual assault, 15 years’ imprisonment for aggravated kidnapping, and 7 years’ imprisonment for attempted aggravated kidnapping.

Defendant raises as issues on this appeal (1) whether hair and blood comparison evidence was improperly admitted at trial; (2) whether the trial court erred in refusing to allow him to recall one of the complaining witnesses for the purpose of laying a foundation for impeachment with a prior inconsistent statement; (3) whether reversal of his conviction is required because of the admission at trial of a police officer’s hearsay testimony; (4) whether the trial court erred in instructing the jury to return a general verdict on the counts of the indictment alleging aggravated criminal sexual assault; (5) whether the criminal sexual assault or aggravated criminal sexual assault statutes violate due process; (6) whether the trial court erred in not transferring and then denying his motion for a substitution of judges; (7) whether his exercise of his right to a jury trial, the ages of his victims, and improper convictions were erroneously considered by the trial court at sentencing; and (8) whether any of the foregoing issues which are deemed waived because of defense counsel’s failure to preserve them, must nevertheless be considered on their merits because trial counsel’s failure to preserve any issue that has merit constituted ineffective assistance of counsel.

N.R., 10 years old at the time of trial, testified that on January 14, 1986, she and her younger sister were walking to a grocery store when a red station wagon with a red steering wheel and “smoky windows” approached them on the corner of 61st Avenue and 15th Street in Cicero, Illinois. The man inside the car, whom N.R. later identified as defendant, leaned out of the window and, from a distance of two feet, said, “[Your] mother sent me to pick you up.” N.R. shook her head and the man said, “No, not her,” indicating N.R.’s sister. N.R. shook her head again and the man said, “Oh, okay, I’m sorry.” The man then drove away and turned into an alley. N.R. ran home and told her mother about the incident.

N.R.’s mother testified that N.R. left for the store at 3:15 p.m. and returned approximately 10 minutes later. N.R. was crying and told her mother that “some man tried to get her in the car.” N.R. told her mother that the man was 20 to 30 years old, with dark, neck-length hair and a mustache, and was driving a dirty red station wagon with old, dirty windows. N.R.’s mother called the police and gave them this information. N.R. gave the police the same description of the man later that evening, except that she stated he had the “start” of a mustache and was wearing a white shirt and a blue jacket.

B.C., eight years old at the time of trial, testified that on January 14, 1989, at about 3:30 p.m., a red station wagon with “dark windows” approached her as she and her sister were walking down Elm Street near 15th Street in Berwyn, Illinois. The man inside the car opened the door and, speaking to her sister, said, “Do you know this address?” B.C. walked to the edge of the car, at which point the man grabbed her and pulled her inside. The man ordered B.C. to lie under the dashboard on the passenger side; told her to cover her eyes; and said “[b]e quiet or I will *** poke your eyes out or smash your head in.” With B.C. under the dashboard, the man drove for 15 minutes before stopping. When he stopped the car he “helped” B.C. take off her boots; ordered her into the back seat of the car; and told her again to keep her eyes closed. The man exited the car and reentered through the back passenger side door. He then ordered B.C. to take off her pants and underwear.

B.C. testified that she heard the man “unsnapping” his pants before “something” was put into her vagina. She could not see what touched her, but “thought she knew what it was.” B.C. was then ordered to put her clothes back on and climb back underneath the dashboard in the front of the car. The man drove the car again, let B.C. out in an alley, and then drove off. B.C. left her underwear and boots in the car.

Eventually, B.C. approached Sandra Fernatt on the street and asked to use her phone. Fernatt testified that she saw B.C. at about 4:15 p.m. on the corner of 19th and Home Streets in Berwyn, took B.C. to her own house, and called the police. The police arrived at about 5 p.m. and took B.C. to the hospital.

The physician who examined B.C. at the hospital testified that he found abrasions on her neck; a bruising of her abdomen; and some superficial lacerations around the exterior of her vagina that were three to four inches long with visible amounts of blood.

Officer Kenneth Kravcik of the Berwyn police department testified that at 3:45 p.m. on January 14, 1989, he received a call of an attempted child abduction. The suspect was described as a white male with long, brown hair driving an older model red station wagon with tinted windows. One red station wagon was stopped by other Berwyn police officers, but the driver did not match the suspect’s description and was released. At about 4:10 p.m., Kravcik, who was in a marked squad car and in police uniform, stopped a red station wagon driven by defendant. Defendant was wearing a “bluish” jacket, a white shirt that was opened, and dark pants with an opened zipper. Kravcik ordered defendant to exit the car. Defendant asked “Why?” and Kravcik opened the car door and again ordered defendant out. Defendant then put his car in reverse and sped away. At 4:23 p.m., after a high-speed chase, defendant was finally apprehended.

Officer David Hartman of the Cicero police department testified that at about 3:50 p.m. on January 14, 1989, he also received a report of an attempted child abduction and a description of the suspect. Hartman received a second call from the Berwyn police directing him to a location where a red station wagon had been spotted. Upon arriving at the location, Hartman saw a red station wagon with untinted windows stopped by other squad cars. The man who exited that station wagon did not match the description of the suspect. Hartman was then ordered to report to N.R.’s house, where he spoke with N.R. and her mother.

At about 4:10 p.m., Hartman received a radio transmission from a Berwyn squad car involved in the chase with defendant. Hartman joined the chase and eventually saw defendant’s red station wagon pulled over to the side of the road and surrounded by police cars. Defendant was placed into custody and his car was towed to the police station. B.C.’s boots and underwear were not found inside defendant’s car.

Later that evening, N.R. was brought to the police station, where she identified defendant’s car as the red station wagon she had seen earlier. N.R. then viewed a lineup consisting of defendant and four other men. Defendant was in the number one position and was the only participant wearing a blue jacket. Each participant was required to say “Your mother sent me to pick you up.” Initially, N.R. was unable to make an identification. She thought the man in the number one position was the man she had seen, but did not pick him because “there [were] a whole bunch of bruises on his face” that she had not seen before. N.R. left the viewing room and told her mother that she thought the man she had seen was in the number one position. At her mother’s request, she was allowed to view the lineup a second time, and she then identified defendant.

At 9:30 p.m. that same evening, both B.C. and her sister identified defendant’s car. B.C. viewed a five-man lineup in which the participants were required to say “I’ll poke your eyes out and smash your head in.” Again, defendant was the only participant wearing a blue jacket. B.C. identified defendant as the man who abducted her. According to one Berwyn police officer, B.C. viewed the lineup three times before she identified defendant.

Arlene Hall, a forensic serologist with the Illinois State Police, gave expert testimony regarding the physical evidence recovered from defendant’s and B.C.’s clothing and from inside defendant’s car. Hall testified that a hair recovered from the rear floor of defendant’s car was consistent with B.C.’s head hair standard and not consistent with defendant’s head hair standard; a hair recovered from B.C.’s jacket and another hair recovered from her pants were each consistent with defendant’s head hair standard and not consistent with B.C.’s head hair standard; and a hair recovered from defendant’s jacket was consistent with B.C.’s head hair standard and not consistent with defendant’s head hair standard. Hall testified that with the “proper” hair standards, she could determine “a possible donor of that hair” and that if the hair did not come from a particular person, she could “exclude that individual as a possible source in the majority of cases.” Hall admitted that she could not say whether any hair found in defendant’s car was B.C.’s hair, only that it could have been B.C.’s.

Hall also testified that B.C. was type two/one in the esterase D blood grouping and type 0 in the ABO blood grouping. Defendant was type one in the esterase D blood grouping and type A in the ABO blood grouping. Twenty-one percent of the white population in the United States are type two/one in the esterase D blood grouping. Hall testified that a bloodstain found inside the lower right front portion of the shirt defendant was wearing at the time of his arrest was type two/one in the esterase D blood grouping, which meant that the blood was not defendant’s and was “consistent with the [B.C.’s] standard.” Hall testified that bloodstains found on B.C.’s pants were also consistent with B.C.’s blood type. During closing arguments, the prosecutor characterized the blood and hair sample evidence as “damning” evidence that was the “lynch-pin” in the State’s case.

After the jury returned verdicts of guilty, an “incident” occurred which prompted the trial judge to clear the court room and “order” the prosecutors to charge defendant with attempted murder. Defendant subsequently filed a motion in the trial court for substitution of judges, but that motion, heard by the same judge that presided over the trial, was denied. The trial court then heard arguments in aggravation and mitigation and sentenced defendant to concurrent terms of imprisonment for aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, and attempted aggravated kidnapping.

I

Defendant maintains first that the hair and blood comparison evidence was improperly admitted at trial and improperly characterized by the State during closing arguments. Defendant argues that the physical evidence merely put him and B.C. “in a large category of possible donors” of the hair and bloodstains found and, therefore, had no probative value as to the identification of the donors. Defendant cites several recent appellate court decisions calling into question the propriety of hair and blood comparison evidence where the prosecution overemphasizes the significance of that evidence.

Evidence is considered relevant where the circumstance or fact offered tends to prove or disprove a disputed fact or render the matter in issue more or less probable. (People v. Schulz (1987), 154 Ill. App. 3d 358, 366, 506 N.E.2d 1343.) Evidence of hair or blood found at a crime scene may be admitted, with appropriate foundation, even though its probative value standing alone is not considerable. (People v. Johnson (1976), 37 Ill. App. 3d 328, 332, 345 N.E.2d 531.) However, additional corroborating evidence or supporting information is generally required as a basis for admissibility. See People v. Schulz, 154 Ill. App. 3d at 364-65, 506 N.E.2d 1343; People v. Mann (1975), 30 Ill. App. 3d 508, 333 N.E.2d 467.

In this case, defendant has waived any issue regarding the admission of blood and hair comparison evidence by failing to object at trial. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record reflects that defendant objected only to the form of the questions asked regarding the evidence, not to the admission of the evidence. Given the overwhelming evidence of defendant’s guilt presented at trial, the issue need not be addressed under the plain error rule. 107 Ill. 2d R. 615(a).

Even if the issue had not been waived, defendant’s contention is without merit. The blood comparison evidence was properly admitted because it derived its relevance from the differences in the blood types of defendant and B.C. and the presence of B.C.’s blood type on defendant’s clothing. (See People v. Johnson, 37 Ill. App. 3d at 332, 345 N.E.2d 531.) Although the evidence merely placed B.C. in a category of possible donors, it also excluded defendant as the source of the bloodstain found on his shirt. Also, other evidence was presented at trial showing that B.C. was bleeding as a result of the assault; that B.C. identified defendant as her attacker; that B.C. identified defendant’s car; and that the location of the bloodstain is consistent with defendant having committed the assault. Under these circumstances, the blood comparison evidence was properly admitted.

The hair comparison evidence was also properly admitted because other factors were present that narrowed the categories of possible donors. Specifically, the category of possible donors for the hair found on B.C.’s clothing was narrowed considerably, not only by B.C.’s identification of defendant as her attacker, but also by her testimony that she was assaulted in defendant’s red station wagon. That same evidence narrowed the category of possible donors for the hairs found on defendant’s clothing and in defendant’s car.

Finally, the prosecutor did not improperly characterize the physical evidence during closing arguments. Prosecutors are generally permitted wide latitude in their closing arguments, although their comments must be based on the evidence or on reasonable inferences drawn therefrom. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Improper comments during closing argument do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived the defendant of a fair trial. People v. Cunningham (1984), 130 Ill. App. 3d 254, 266, 473 N.E.2d 506.

In this case, the prosecutor described the hair and blood comparison evidence as “damning” evidence that was the “lynch-pin” in the State’s case. Although this characterization is exaggerated, it was not seriously prejudicial. The prosecutor explained to the jury that because the hair standards were consistent, it was possible that the hair found on B.C.’s clothing was defendant’s hair. Regarding the blood comparison evidence, the prosecutor stated that “[t]he blood was comparable and consistent with that of the victim.” These remarks qualified the characterization of the evidence as “damning” and as the “lynch-pin” in the case. Moreover, the jury was instructed regarding the purpose of closing arguments. (See People v. Jones (1988), 123 Ill. 2d 387, 411-12, 528 N.E.2d 648.) Accordingly, the prosecutor’s argument as a whole was not so seriously prejudicial as to deprive defendant of a fair trial.

II

Defendant maintains that he was denied a fair trial because the trial court refused to allow him to recall B.C. for the purpose of laying a foundation for impeachment with a prior inconsistent statement. Defendant argues that, because B.C. testified at trial that she was lying on her stomach when she was assaulted, she would have been “severely” impeached by her prior statement to the police that she was turned over onto her back before she was assaulted. We disagree.

Before a witness may be impeached with a prior inconsistent statement, a proper foundation must be laid on cross-examination by directing the witness’ attention to the time, place, and other circumstances of the statement to prevent unfair surprise and to give the witness the opportunity to explain the statement. (People v. Henry (1970), 47 Ill. 2d 312, 321, 265 N.E.2d 876.) If a party fails to lay such a foundation on cross-examination, it is within the discretion of the trial court to permit the witness to be recalled for the purpose of perfecting the foundation. People v. Henry, 47 Ill. 2d at 322, 265 N.E.2d 876; People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.

In this case, after B.C. had testified, defense counsel sought to elicit testimony from a police officer on cross-examination that, as stated in his police report, B.C. had told another police officer that she was turned over on her back before she was assaulted. The State objected on the ground that no proper foundation had been laid. Defense counsel indicated that he did not confront B.C. with the statement because of her “tender years” and the possibility that his client would be adversely affected if B.C. were to become upset on the witness stand. The trial court stated that it did not believe defense counsel’s reasons were “legitimate,” and defense counsel then requested leave to recall B.C. for the purpose of laying the foundation. The request was denied, and the State’s objection to the cross-examination of the police officer was sustained.

Contrary to defendant’s assertion, we do not believe that B.C.’s prior statement that she was turned over on her back would have severely impeached her credibility as a witness, her identification of defendant’s car, or her lineup identification of defendant. Moreover, any evidence that B.C. was on her back would not have contradicted other evidence that she was sexually assaulted. Accordingly, we do not believe the trial court abused its discretion in refusing to recall B.C. for the purpose of allowing defense counsel to confront her with her prior statement.

III

Defendant maintains that his convictions must be reversed because a police officer testified that B.C.’s sister identified defendant’s car as the car driven by the man who abducted her sister. Defendant argues that the admission of this evidence violated his confrontation rights because B.C.’s sister did not testify and could not be cross-examined regarding her out-of-court statement.

We hold that any error in the admission of the police officer’s testimony was harmless. B.C. identified defendant as the man who assaulted her; blood and hair comparison evidence was consistent with defendant having committed the crime; and B.C. identified defendant’s car as the car in which she was assaulted. Moreover, the State did not exploit the hearsay testimony at issue during closing argument. (See People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862.) Under these circumstances, there is no reasonable probability that the jury would have acquitted defendant had the evidence been excluded.

IV

Defendant maintains that his due process rights were violated by the instruction to the jury to return a general verdict on the aggravated criminal sexual assault charges in the indictment. Defendant notes that as a general proposition, a general verdict must be set aside if the trier of fact could rely on two or more independent grounds to convict the defendant, and one of those grounds is insufficient as a matter of law or fact. Defendant then argues that because the indictment alleged three separate acts of penetration, namely insertion of defendant’s finger, contact with defendant’s penis, and insertion of an object, and the jury was instructed that it could rely on any one of these three theories of penetration, the verdict must be set aside because there was no evidence to support the theories of penetration by defendant’s finger or by an object.

However, defendant’s argument is flawed because none of the grounds alleged in the indictment were insufficient as a matter of law or fact. Plainly, all of the alleged acts fall within the definition of “sexual penetration” (see Ill. Rev. Stat. 1987, ch. 38, par. 12—12(f)), so that none of the charges were insufficient as a matter of law. Moreover, because the type of penetration need not be proved at trial, and, if alleged in the indictment, is mere surplusage (see People v. Tanner (1986), 142 Ill. App. 3d 165, 491 N.E.2d 776), the jury could not have based its verdict on a charge for which there was insufficient proof to sustain a conviction.

V

Defendant maintains that both the criminal sexual assault statute Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(1)), and the aggravated criminal sexual assault statute (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(b)(1)), are unconstitutionally overbroad because they punish innocent, as well as culpable, conduct. Defendant also claims that the aggravated criminal sexual assault statute violates due process, because aggravated criminal sexual assault is a Class X felony but the statute does not set forth a specific mental state for the offense, whereas aggravated criminal sexual abuse is a Class 2 felony which requires proof of an intentional or knowing touching for the purpose of sexual gratification or arousal. Although defendant’s argument is unclear, he seems to suggest that the lack of a specific mental state in the aggravated criminal sexual assault provision makes that offense less culpable than aggravated criminal sexual abuse, so that the punishments are not constitutionally proportionate. Finally, relying on People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470, defendant maintains that the aggravated criminal sexual assault statute violates due process because criminal sexual assault is not an underlying offense.

Criminal sexual assault is defined as “an act of sexual penetration by the use of force or threat of force. ” (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a).) Neither the statutory definitions of “sexual penetration” and “force or threat of force” (see Ill. Rev. Stat. 1987, ch. 38, pars. 12—12(d), (f)) nor any other provision of the aggravated criminal sexual assault statute contains a specific mental state. The aggravated criminal sexual abuse statute, by contrast, requires a showing that the conduct was committed for the purpose of sexual gratification or arousal of the victim or the accused. See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).

Nevertheless, neither the criminal sexual assault statute nor the aggravated criminal sexual assault statute is unconstitutional on the ground that it punishes innocent behavior because it does not define a mental state. The mental states of intent, knowledge, or recklessness are implied for those offenses involving “sexual penetration” for which no mental state is expressly set forth. (See People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490; People v. Bartay (1986), 150 Ill. App. 3d 130, 501 N.E.2d 364; People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212; Ill. Rev. Stat. 1987, ch. 38, par. 4—3(b).) Accordingly, the statutes require some degree of culpability and do not punish innocent behavior.

People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212, squarely rejected the same argument made by defendant here that the aggravated criminal sexual assault statute violates due process on the ground that it does not expressly set forth a mental state, yet punishes conduct more severely than the aggravated criminal sexual abuse statute, which does define a mental state. That case was correctly decided, because there is no anomaly, as defendant suggests, between the conduct encompassed by the two offenses and the respective punishments. Aggravated criminal sexual assault is plainly a more culpable offense than aggravated criminal sexual abuse, because “sexual penetration” is more heinous behavior than “sexual conduct” as defined in the statutes. (See People v. Bartay, 150 Ill. App. 3d at 132.) Moreover, defendant’s argument that aggravated criminal sexual assault is less culpable than aggravated criminal sexual abuse because the former offense does not require proof of a mental state fails because, as noted above, a mental state of intent, knowledge, or recklessness is implied in the aggravated criminal sexual assault statute.

Finally, defendant argues that section 12—14(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)) violates due process because it defines an aggravated criminal sexual assault offense but does not include criminal sexual assault as an underlying offense. A similar argument prevailed in People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470, where the supreme court struck down the aggravated arson statute (Ill. Rev. Stat. 1983, ch. 38, par. 20—1.1). Like the aggravated arson statute at issue in Johnson, “by its very name” section 12—14 “refers to *** an aggravated offense” (see People v. Johnson, 114 Ill. 2d at 72), but section 12—14(b)(1) fails to define an underlying offense. Specifically, the element of “force or threat of force” is lacking in section 12—14(b)(1), so that the underlying conduct aggravated by the ages of the victim and the accused is merely “sexual penetration.”

Johnson, however, is distinguishable on the ground thát the legislature did not intend for section 12—14(b)(1) to aggravate the offense of criminal sexual assault, but rather intended to create a separate offense based on the ages of the victim and the accused. The section is plainly aimed at criminalizing sexual offenses against young victims without requiring proof that force was used or threatened. Though we consider the statute valid, we need not address the issue of the constitutionality of section 12—14(b)(1) because, as discussed further below, the record reflects that all convictions for aggravated criminal sexual assault in this case were merged, defendant was sentenced only under section 12—14(a)(2), and he was properly sentenced to an extended term based on his prior convictions for rape and indecent liberties with a child.

VI

Defendant maintains that the trial judge erred in not transferring his motion for substitution of judges to a different judge for disposition and then erred in denying the motion. Defendant argues that he was entitled to have a different judge preside at sentencing because an “incident” occurred after the jury returned its verdict, causing the trial judge to clear the courtroom and “order” the prosecutors to file attempted murder charges against defendant. The trial judge’s remarks, defendant argues, demonstrated that he could not be impartial at sentencing.

A motion for substitution of judges must be heard as soon as possible after it is filed by a judge not named in the motion. (Ill. Rev. Stat. 1987, ch. 38, par. 114—5(d).) However, in this case, defendant did not object to the trial judge ruling on the motion. Accordingly, defendant has waived this issue on appeal. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

In any event, the motion was properly denied. A defendant moving for substitution of judges has the burden of proving prejudice on the part of the judge he seeks to disqualify. (People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319.) A trial judge will not be presumed impartial because of an attack or provocation by the defendant on court officials. See People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.

In this case, an “incident” occurred which caused the trial judge to clear the courtroom and “order” the prosecutors to charge defendant with attempted murder. Nothing in the record indicates what prompted the trial judge’s actions or remarks. In denying defendant’s motion for substitution of judges, the trial judge stated that he had considered defendant’s motion during the three weeks preceding the hearing on the motion and decided that “in [his] heart and in [his] mind” he “could give a fair sentencing hearing on aggravation and mitigation.” Given the necessity for us to speculate regarding what happened in the courtroom and the trial judge’s assurances that he was not affected by the incident, and considering the Illinois Supreme Court’s admonition that requiring a substitution of judges under circumstances provoked by the defendant “would invite misconduct” (see People v. Hall, 114 Ill. 2d at 407), we conclude that defendant’s motion was properly denied.

VII

Defendant maintains that he was advised by the court that a guilty plea would result in a 30-year prison term. He asserts that a 60-year sentence was imposed as punishment for rejecting that offer and exercising his right to a jury trial. Defendant also asserts that the 60-year extended-term sentence was a result of improper double enhancement, because the trial court commented on the ages of the victims in imposing an extended term, even though the ages of the victims were elements of the offenses for which defendant was convicted. Finally, defendant maintains that, with the exception of the offense against N.R., his convictions were all based on the single act of sexually assaulting B.C. Defendant argues that all but one of the aggravated criminal • sexual assault convictions must be vacated; the criminal sexual assault conviction and sentence must be vacated; and “one aggravated kidnapping conviction” must be vacated. Defendant argues that resentencing is then required, because the sentence imposed might have been influenced by the improper convictions. We agree only that the criminal sexual assault conviction and sentence must be vacated.

Nothing in the record suggests that defendant received a more severe sentence as punishment for going to trial. Because such evidence must be clearly reflected in the record (see People v. Perry (1971), 47 Ill. 2d 402, 408, 266 N.E.2d 330), defendant’s first contention is without merit.

Defendant’s double enhancement argument is likewise without merit. The record reflects that defendant was given an extended term because of the violent nature of the crime against B.C. and his convictions in 1981 for rape and indecent liberties with a child, not because of the ages of the victims. In any event, as noted above, the transcript of the sentencing hearing reflects that the trial court merged all aggravated criminal sexual assault counts and imposed a single extended term of 60 years’ imprisonment under section 12—14(a)(2), not section 12—14(b)(1). Defendant’s double-counting argument is not applicable to section 12—14(a)(2), because the age of the victim is not an element of offense defined in that section.

We agree that only one conviction for aggravated criminal sexual assault is proper in this case. However, we do not believe that improper multiple convictions for aggravated criminal sexual assault were considered at sentencing, because the trial court indicated that all such convictions were merged and imposed a single sentence under section 12—14(a)(2). Because the written sentencing order reflects a conviction and sentence on five counts of aggravated criminal sexual assault under section 12—14(a)(2), we direct the trial court on remand to correct that order to reflect a single conviction for aggravated criminal sexual assault under section 12—14(a)(2).

We also agree that defendant’s criminal sexual assault conviction should be vacated. Although defendant was charged and found guilty under sections 12—14(a)(2) through (a)(4) and section 12—14(b)(1), again the record reflects that all convictions for aggravated criminal sexual assault were merged into a single conviction under section 12—14(a)(2). Because criminal sexual assault is a lesser included offense of aggravated criminal sexual assault defined in section 12—14(a)(2) (see People v. Boyer (1985), 138 Ill. App. 3d 16, 485 N.E.2d 460), defendant’s conviction for criminal sexual assault must be vacated.

However, we do not believe resentencing is required on the ground that the trial court might have considered the criminal sexual assault conviction in imposing sentence for defendant’s other convictions. Nothing in the record suggests that defendant’s sentence for aggravated criminal sexual assault was influenced by the conviction for criminal sexual assault. As noted above, defendant received an extended term for aggravated criminal sexual assault because of the nature of the offense and because of his prior convictions for rape and indecent liberties with a child. There is likewise no indication in the record that defendant’s sentence for the kidnapping offenses was influenced by the criminal sexual assault conviction.

Finally, with respect to the kidnapping convictions, the record reflects that defendant was found guilty of aggravated kidnapping based on kidnapping during the course of the commission of a felony (see Ill. Rev. Stat. 1987, ch. 38, par. 10—2(a)(3), and also based on the victim’s age (see Ill. Rev. Stat. 1987, ch. 38, par. 10—2(a)(2)). It appears, however, that judgment was entered on only one count of aggravated kidnapping, and defendant received a single sentence of 15 years’ imprisonment for that offense. That conviction need not be vacated because the sexual offense for which defendant was sentenced was not enhanced by the kidnapping (see People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808), and the evidence adduced at trial supports a conviction for aggravated kidnapping as well as a conviction for aggravated criminal sexual assault (see People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362).

VIII

Defendant’s last contention is that any issue deemed waived must nevertheless be considered on its merits because defense counsel’s failure to preserve an issue that has merit constituted ineffective assistance of counsel. We consider this argument as a claim of ineffective assistance of counsel based on defense counsel’s failure to preserve certain issues for review.

The only issues on this appeal that defense counsel failed to preserve are the issues regarding the admission of blood and hair comparison evidence and the failure of the trial court to transfer the motion for substitution of judges. Applying the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and given that the hair and blood comparison evidence was properly admitted and the motion for substitution of judges was properly denied, it cannot be said that defense counsel’s failure to object in either instance was constitutionally deficient or, if the objections had been made, the outcome of the case would have been different.

For the foregoing reasons, we affirm the conviction and sentence for aggravated criminal sexual assault under section 12 — 14(a)(2), affirm the convictions and sentences for aggravated kidnapping and attempted kidnapping, and vacate the conviction for criminal sexual assault. We remand for the limited purpose of correcting the written sentencing order.

Affirmed in part; vacated in part, and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    BOARD OF EDUCATION OF THE CITY OF CHICAGO, Plaintiff-Appellee, v. WILLIE BOX et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—3377
    Opinion filed November 14, 1989.

      James B. Dykehouse, of Witwer, Burlage, Poltrock & Giampietro, of Chicago, for appellant.
    Patricia J. Whitten and Susan Einspar-Wayne, both of Board of Education of the City of Chicago, of Chicago, for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

In this appeal of the order of the circuit court pursuant to administrative review, defendant Willie Box challenges his dismissal as an elementary school teacher for the Board of Education of the City of Chicago (the Board). The Illinois State Board of Education and Peter R. Meyers, named as defendants in the circuit court proceeding, have not joined in this appeal. The issues raised are: (1) whether this court has subject matter jurisdiction; (2) whether the administrative hearing officer’s initial findings and decision were against the manifest weight of the evidence or contrary to law; and (3) whether defendant’s conduct was irremediable.

Defendant, a tenured teacher who had been employed by the Board for approximately 16 years, was assigned, since the 1981-82 school year, to the Yates Elementary School, where he taught fifth grade. On December 18, 1985, the principal of Yates, Burton Hirsch, informed defendant that several female students in defendant’s class had accused him of touching their chests, shoulders, legs, and buttocks during the fall semester of the 1985-86 school year. Hirsch conducted an investigation into the allegations on December 17-18, 1985, after which defendant was relieved of his classroom teaching duties and assigned to the district office.

On October 22, 1986, the Board brought charges and specifications against defendant and suspended him without pay pending a hearing conducted before an impartial hearing officer- under the auspices of the Illinois State Board of Education, in accordance with section 34—85 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34—85). In its request for dismissal, the Board charged defendant with irremediable conduct unbecoming a teacher and causing irreparable harm and damage to certain students. The specifications stated that defendant “had unprofessional physical contact with students, including but not limited to touching the. chest and legs” of students Evelyn R., Monique T., Latasha E, Leslie C., and Maria L., each of whom was 10 or 11 years of age at the time.

The hearing was held on March 31, April 1, 6, 10, 14, and 24, 1987. The Board presented 15 witnesses, including the five students named above, two parents of two of the children, two other students in the class, school personnel involved in the investigation, a clinical psychologist, and two additional school employees who rebutted testimony by defendant. Defendant and two other teachers testified as defense witnesses. On June 29, 1987, after both parties submitted post-hearing briefs, the hearing officer found that defendant had improperly touched the students. Despite this finding, he concluded that the Board’s failure to issue defendant any warning notice to remedy, prior to suspension, required defendant’s reinstatement. He determined that the Board did not prove its charge of “unprofessional physical contact” and, therefore, the conduct was not irremediable. Defendant’s suspension without pay was therefore reversed, and defendant was ordered reinstated with full back pay and all other benefits of employment to which he would have been entitled.

On July 27, 1987, the Board filed a complaint in the circuit court of Cook County for administrative review of the hearing officer’s decision. (See Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) On November 25, 1987, the circuit court issued an order which reversed the hearing officer’s decision because it was contrary to law and against the manifest weight of the evidence, and remanded the matter to the hearing officer for findings in accordance with its order. On December 28, 1987, defendant filed a notice of appeal from the circuit court’s decision. In response, on January 26, 1988, the Board filed a motion to dismiss the appeal, arguing it was interlocutory in nature. Defendant never responded to the motion, and this court dismissed his appeal.

On June 21, 1988, pursuant to the circuit court’s remand, the hearing officer held that the Board’s action in suspending defendant without pay and seeking his immediate termination was warranted by the evidence and that the behavior with which defendant was charged was irremediable. Defendant’s request for reinstatement was therefore denied.

On August 3, 1988, defendant filed a motion with the circuit court to make final that court’s order of November 25, 1987. The court denied the motion but, on October 2, 1988, held that it had retained jurisdiction of the matter and affirmed the hearing officer’s decision. Defendant appeals from this order.

I

The Board contends initially that this court lacks subject matter jurisdiction because the original circuit court order was final and defendant had abandoned his appeal, or, alternatively, that the remand was substantive and defendant failed to file a timely complaint for administrative review. In response, defendant argues that the Board, because it filed a motion to dismiss the original appeal on the grounds that it was interlocutory in nature, is judicially estopped from contending that this court does not have subject matter jurisdiction. Moreover, he maintains that he complied with the applicable provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.).

Defendant’s response that the Board is judicially estopped from arguing lack of subject matter jurisdiction is without merit. Though the doctrine of judicial estoppel prohibits a party from asserting a position contrary to a prior position which he asserted in the same matter (Finley v. Kesting (1982), 105 Ill. App. 3d 1, 433 N.E.2d 1112), subject matter jurisdiction cannot be conferred by any form of laches, consent, waiver, or estoppel. (Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 517 N.E.2d 1220; Paulik v. Village of Caseyville (1981), 100 Ill. App. 3d 573, 427 N.E.2d 213.) Moreover, subject matter jurisdiction may be challenged at any time. (Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 496, 539 N.E.2d 1243.) The Board may raise lack of subject matter jurisdiction at this stage (see Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 173, 425 N.E.2d 499; Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237), and this court has jurisdiction to consider the issue.

Generally, an order arising from administrative review which remands for further proceedings or evidentiary evaluation is interlocutory in nature and not appealable. (Rosecky v. Department of Public Aid (1987), 157 Ill. App. 3d 608, 511 N.E.2d 167; Downey v. Industrial Comm’n (1969), 44 Ill. 2d 28, 253 N.E.2d 371.) The Board now argues that the remand order of November 25, 1987, was final and appealable and, therefore, the court presently lacks subject matter jurisdiction of this appeal. Relying upon Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249, 449 N.E.2d 104, the Board asserts that because the order fully and finally disposed of rights of the parties to the cause so that no material controverted issue remained to be determined, the subsequent findings of the hearing officer were “incidental matters,” and the circuit court’s order was therefore final.

The record in this case, however, shows that the circuit court remanded the matter to the hearing officer to make findings which were not in conflict with each other and to decide the issues according to the law. The record further reflects that the parties, confused by the circuit court’s remand, questioned the court as to what it had ordered and that the circuit court refused to consider the first order final and repeated its order for a ruling in which the hearing officer would enter consistent findings. Additionally, as previously indicated, the record reflects that the circuit court, in affirming the hearing officer’s second decision, ruled that it had retained jurisdiction in the matter. Given the state of this record, we conclude that we do have subject mattér jurisdiction, and we will consider the other substantive issues presented.

II

Defendant maintains that the hearing officer’s initial decision was not against the manifest weight of the evidence or contrary to law. He argues that when the circuit court reversed and remanded the initial decision, it contravened the applicable standards for administrative review.

Under section 3 — 110 of the Administrative Review Law, the findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) Only if the findings are against the manifest weight of the evidence can they be set aside. (See, e.g., Board of Education of Tonica Community High School District No. 360 v. Sickley (1985), 133 Ill. App. 3d 921, 924, 479 N.E.2d 1142.) Here, the circuit court, after examining the entire record, determined that the hearing officer’s decision was against the manifest weight of the evidence. For the following reasons, we agree with that conclusion.

In tenured teacher dismissal proceedings, the school board must prove by a preponderance of the evidence that there is cause for dismissal. (Board of Education v. State Board of Elections (1986), 113 Ill. 2d 173, 497 N.E.2d 984.) Here, the hearing officer found:

“Based on all of the evidence and testimony in the record, this Hearing Officer is convinced that the Board met its burden of proving that respondent did, in fact, improperly touch his students.”

He then stated that, although the touchings were improper, the Board did not prove by a preponderance of the evidence that they were “unprofessional physical contact” because “the actions were [not] of a sexual nature or outside the scope of normal physical touching that occurs as part of the operation of the classroom.” Moreover, he characterized “unprofessional physical contact” as a “more serious charge” which was not supported by any evidence but the testimony of the girls, who were in a “clique.” He found that their credibility was undermined because they were all friends, had not had a classroom male teacher before, and were disciplined by defendant following a field trip.

The circuit court relied upon the holding of Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 950, 487 N.E.2d 24, in which the appellate court affirmed the circuit court’s reversal of a hearing officer’s decision. The court held, in that case, that it was against the manifest weight of the evidence for the hearing officer to find that the teacher improperly touched students but that, because there was no sexual intent, that conduct was not so unprofessional as to warrant discharge. In that case, the court reasoned that there were no circumstances under which pinching seven- and eight-year-old girls on the buttocks would be tolerated. In reliance upon Argo-Summit, the circuit court, in this case, held that because the hearing officer made the factual finding of improper touching, according to the law and the evidence, this constituted “unprofessional physical contact” regardless of a lack of sexual intent.

Relying upon Board of Education of Tonica Community High School District No. 360 v. Sickley (1985), 133 Ill. App. 3d 921, 924, 479 N.E.2d 1142, defendant argues that a finding of improper touching does not necessarily mean that “unprofessional physical contact” occurred, and therefore, the circuit court erred. That case is distinguishable from this one, however, because there numerous persons testified without contradiction to that defendant’s excellent life-long reputation for truthfulness, honesty, and integrity; and several witnesses testified, also without contradiction, that the complainant student was known to tell stories. (Board of Education of Tonica Community High School District No. 360 v. Sickley (1985), 133 Ill. App. 3d 921, 924, 479 N.E.2d 1142.) Moreover, in that case, the hearing officer did not make a finding of improper touching as the hearing officer had done in this case.

Here, four students testified that defendant had touched their buttocks and breasts, and one student testified that defendant looked inside her blouse. One eyewitness, a fellow student, testified that she observed defendant touch the five girls’ buttocks when they would ask questions and that he would keep his hand there until he completed his answers. The other eyewitness, a young boy who joined the class late in the semester, testified that he once observed defendant put his arm around Evelyn R.’s right shoulder for a few seconds and touch her chest near the nipple area.

The mother of Marie L. testified that, during November and December, Marie began having trouble sleeping and did not want to go to school. The mother of Monique T. testified that Monique told her that defendant had “caressed” her buttocks and placed his hands inside her blouse. She stated that Monique still had fears about male teachers and had recently refused to go on a CCD field trip with a male instructor.

The record also discloses that the girls had had male teachers before and that defendant’s disciplining of some of the girls for behavior during a field trip did not bear on their allegations because the trip occurred after the girls had reported the touchings to a security officer. Also, at the time they testified, the girls were no longer in the same school nor had most of them continued their friendship. Furthermore, defendant originally testified that he had never touched the girls but later admitted that he had done so on some occasions. Defendant’s testimony that his students were not very bright and were not achievers was impeached by testimony from the principal and another teacher, defendant’s own witness, that they were good students and belonged to the academically highest fifth-grade class.

The finding by the hearing officer of improper conduct was not against the manifest weight of the evidence. But his conclusion that defendant’s conduct did not constitute “unprofessional physical contact” was contrary to his own finding and to the manifest weight of the evidence and the law. (Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 950-51, 487 N.E.2d 24.) The circuit court’s determination was therefore correct.

Ill

Defendant contends that the circuit court misapplied the standard of remediability as set forth in Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 365 N.E.2d 322. The Board responds that the circuit court properly found defendant’s conduct was irremediable pursuant to the remediability standards established in Gilliland and Board of Education of Argo-Summit District No. 104 v. Hunt (138 Ill. App. 3d 947, 487 N.E.2d 24).

Section 34 — 85 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34 — 85), applicable to districts with more than 500,000 residents, provides that a tenured teacher shall not be removed except for (Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 746, 430 N.E.2d 310.) Written warnings must be given to a tenured teacher before dismissal if the causes assigned for dismissal are considered remediable; where no warning is given, the board’s evidence must prove that the teacher’s conduct is irremediable. (Board of Education v. Illinois State Board of Education (1987), 160 Ill. App. 3d 769, 773, 513 N.E.2d 845, 847.) Because compliance with the procedures set forth in section 34 — 85 is jurisdictional, if a warning is not given with respect to a remediable cause, the board lacks jurisdiction to dismiss the teacher. See Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 950, 487 N.E.2d 24.

Whether causes for dismissal are remediable is a question of fact, the initial determination of which rests with the school board. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1027, 506 N.E.2d 640, citing McBroom v. Board of Education (1986), 144 Ill. App. 3d 463, 473, 494 N.E.2d 1191.) The board’s decision will not be overturned unless the reasons given for dismissal are against the manifest weight of the evidence or the board has acted in an arbitrary or capricious manner. Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 411, 421 N.E.2d 387.

The remediability tests established in Gilliland and Argo-Summit are essentially the same. The two-prong test for remediability set forth in Gilliland, utilized in dismissal cases concerning deficient teaching or corporal punishment, is (1) whether damage has been done to the students, faculty, or school; and (2) whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned him. (Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322.) The Argo-Summit court, followed by Fadler, determined that because no physical evidence or scars would remain from improper touching, the first prong of the remediability test for such cases should include “whether the conduct has had or is likely to have a negative psychological effect on the students.” (Board of Education of Argo-Summit District No. 10U v. Hunt (1985), 138 Ill. App. 3d 947, 950-51, 487 N.E.2d 24; Fadler v. Illinois State Board of Education, 153 Ill. App. 3d 1024, 506 N.E.2d 640.) Thus, if psychological damage has been done to the students, Gilliland’s first test concerning remediability has been satisfied.

Here, damage to the students was shown through testimony by the students who were touched by defendant, by the mothers of two of those students, and by other students in the classroom who witnessed some of the touching. The hearing officer determined that defendant’s conduct caused the students who made the accusations to have nightmares, confusion, anxiety, and fear.

Dr. Ribordy stated that, as a result of defendant’s actions, the girls whom she interviewed suffered immediate adverse psychological impact, an assortment of fear and anxiety reactions, and increased dependency on safe adults, such as parents. She testified that each girl may suffer long-term psychological harm from the touching and recommended therapy especially for Monique T. Though defendant argues that the evidence of harm in this case was extremely speculative, the record contains sufficient evidence that defendant’s conduct had immediate adverse psychological effects on the children (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1028, 506 N.E.2d 640; Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 487 N.E.2d 24), and thus the first prong of the remediability test was met.

The Argo-Summit court suggested that in improper touching cases the second prong of the Gilliland remediability test should be altered to focus on whether the effects of the conduct itself could have been corrected. (Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 953, 487 N.E.2d 24.) In this case, a warning could not have corrected the psychological damage to the students or the damage to the reputation of the faculty and school district that was caused by defendant’s conduct. Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1029, 506 N.E.2d 640; Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 953, 487 N.E.2d 24.

Moreover, even if we applied an unaltered Gilliland test to the question of whether defendant’s conduct could have been corrected by a warning, our decision concerning irremediability would be the same. Defendant testified that he had been warned by his principal at the start of the year not to touch children. There was unrefuted expert testimony that the type of conduct engaged in by defendant has a high degree of recurrence. The possibility of the recurrence of such conduct should be avoided. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1029, 506 N.E.2d 640; Board of Education of Argo-Summit District No. 104 v. Hunt (1985), 138 Ill. App. 3d 947, 953, 487 N.E.2d 24.) The second prong of the remediability test was met in this case.

For all the foregoing reasons, we affirm the order of the circuit court of Cook County.

Affirmed.

BILANDIC, P.J., and SCARIANO, J., concur.


author: JUSTICE O’CONNOR

text:
    LA SALLE NATIONAL BANK, as Trustee, et al., Plaintiffs-Appellees, v. HADI A. KHAN et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—88—2246
    Opinion filed October 16, 1989.
    Rehearing denied December 18, 1989.

      Mathewson, Hamblet & Casey, of Chicago (Harry Goiter and Burton Sapoznick, of counsel), for appellants.
    Brodsky & Hoxha, of Chicago (Joel Brodsky and Bahtiar Hoxha, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from a judgment awarding possession to plaintiffs La Salle National Bank and Ahmo Hamzagic in an action brought for forcible entry and detainer.

Defendants, Hadi and Sartaj Khan, entered into a 15-year commercial lease, beginning May 1, 1987, for the property at 1313 Wilson Avenue in Chicago, for the purpose of operating a coin-operated laundry. The lease was signed by the Khans as tenants and La Salle National Bank as landlord, as trustee of a trust dated May 2, 1961. Pursuant to paragraph G of the trust agreement, the trust was to expire May 2, 1981. The lease provided that rent was due on the first day of each month and that rent was to be paid to the landlord at 135 South La Salle Street.

Plaintiff Ahmo Hamzagic was the beneficiary of the trust, and from May 1987 until January 1988 collected the rent for the property from the Khans. The Khans wrote their checks payable to Hamzagic and, despite the provisions of the lease, paid the rent after the first of the month, typically around the tenth of each month. Through January 1988, Hamzagic accepted the late payments. In addition to the rent, the Khans paid Hamzagic for a scavenger service for the property. The parties disagree as to whether payments for the scavenger service constituted partial payment of rent.

In February 1988, attorney Bahtiar Hoxha sent a letter to the Khans on behalf of Hamzagic. The letter stated:

“Please be advised that [Hoxha] represents Mr. Ahmo Hamzagic, the sole beneficiary of La Salle National Bank Trust No: 27819, Lessor.
My client advises me that you have been paying your rent on the tenth day of the month. However, the rent is due on the first of each and every month.
This letter will serve notice to you that as of March 1, 1988 my client will not accept rent payments from you that are not timely.
NOTE, any payment of rent made after the first day of the month in which it is due will be treated as a breach of the Store Lease.” (Emphasis in original.)

The rent for March 1988 was paid on March 1. The rent for April 1988 was not paid until April 6. On April 7, plaintiffs filed an action for forcible entry and detainer. On April 13, 1988, the rent check was returned to the Khans with a letter notifying the Khans that the lease had been breached. Checks for payment of the scavenger service for April and May of 1988 were not returned and were entered at trial as plaintiffs’ exhibits.

The trial court denied defendants’ motion for a directed verdict at the close of plaintiffs’ case. Defendants then sought to introduce a parol modification of the lease allowing rent payments later in the month. The trial court refused to admit the testimony as violative of the parol evidence rule and granted judgment for plaintiffs. Defendants now bring this appeal.

Defendants’ first contention on appeal is that there was no basis for maintaining an action for forcible entry and detainer as plaintiff Hamzagic had the rent check in his possession when he filed suit on April 7, which constituted acceptance of the rent and a waiver of his right to sue under the holdings of Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 388 N.E.2d 438, and Westerman v. Gilmore (1958), 17 Ill. App. 2d 455, 150 N.E. 2d 660. Plaintiff Hamzagic points out that after defendants were notified that any future late payment would be considered a breach of the lease, the rent payment for April 1987 was tendered six days late. Hamzagic further contends that as the lease contained a waiver of notice clause, he was not required to declare a forfeiture before bringing an action for possession.

Defendants correctly state that failure to enforce conditions of a lease, such as the covenant for prompt payment of rent, can give rise to a waiver of that condition. (See Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 992, 422 N.E.2d 221.) Moreover, a lessor’s acceptance of later accruing rent, where the lessor has knowledge of the lessee’s breach of the lease, constitutes a waiver of the forfeiture. (See, e.g., Weiss v. Johnson (1963), 28 Ill. 2d 259, 261, 190 N.E.2d 834.) Where the lessor waives lessee’s forfeiture by an act inconsistent with the declaration of a forfeiture, such as the acceptance of late rent payments, the lease continues in force. Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 992, 422 N.E.2d 221.

Defendants here, however, were notified in writing by plaintiff’s agent that future late payments would be considered a breach of the lease. In light of this notification and the existence of the waiver of notice provision in paragraph 13 of the lease, there is no merit to defendants’ argument that plaintiff was required to give additional notice that he intended to declare a forfeiture. Further, although plaintiff received the late payment one day before filing suit and the check was not returned to defendants until April 14, 1987, there is no basis for concluding that plaintiff “accepted” the check in that the check was not endorsed or deposited and the filing of the suit for forcible entry and detainer immediately after the late receipt of the check clearly manifested plaintiff’s intent to not accept the rent.

Westerman v. Gilmore (1958), 17 Ill. App. 2d 455, 150 N.E.2d 660, relied upon by defendants, is not to the contrary. The landlords in Westerman sought to terminate a lease based on defendants’ nonpayment of rent. The lease in question contained no forfeiture clause and no waiver of notice. Citing numerous cases in which retention of rent had been held to constitute a waiver of forfeiture, the court held that the plaintiffs had waived the default specified in their notice by accepting and retaining rent due up to a date which was beyond the date fixed for the termination of the lease. The distinction between Westerman and the instant case is that here, the lease contained a waiver of notice clause, and more important, plaintiff Hamzagic did not “accept” rent for a period “beyond the date of the attempted termination of the lease” (Westerman, 17 Ill. App. 2d at 459) and therefore did not waive the breach of the covenant to pay rent.

Defendants also argue that plaintiff had accepted partial payment of rent at the time of trial in that he had retained checks for scavenger services for the months of April and May 1988, which they assert constituted additional rent under paragraph 2 of the lease. Defendants rely on Bernstein v. Weinstein (1920), 220 Ill. App. 292, 296-97, in which the court stated that acceptance of any part of rent subsequent to a breach constitutes consent to the tenancy.

This argument does not accurately state the terms of the lease. Paragraph 2 of the lease provides that in addition to the specified rent, defendants were responsible for any costs incurred for water, gas, and electricity. Any of such sums paid by the lessor would be considered additional rent and would be payable by defendants with the next installment of rent. This paragraph makes no reference to scavenger service. The proviso that defendants were responsible for the costs of a scavenger service for the leased property was contained in paragraph R — 16 of the rider to the lease, which makes no reference to such costs being considered additional rent.

Defendants next contend that the certified letter they received from Hamzagic’s lawyer regarding the breach of the lease did not constitute proper notice of the intent to declare a forfeiture as La Salle National Bank, as trustee, was the only party with authority to do so. Defendants argue that the lease does not show Hamzagic as having an interest under the lease, and therefore, as there is no privity between Hamzagic and defendants, any person acting as Hamzagic’s attorney would have no basis for issuing a notice under the lease. Defendants rely on Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 424 N.E.2d 56, in which this court held that the lessee of property held in a land trust failed to properly exercise his option to renew the lease term where the lessee gave notice of an intent to exercise the option to the trust beneficiary instead of to the trustee, who had executed the lease as lessor.

This argument ignores the rider attached to the lease, dated May 22, 1987, and executed by La Salle National Bank as trustee, which states in part “that said Trustee has no control over, and under this Lease, assumes no responsibility for (1) the management or control of such property, (2) the upkeep, inspection, maintenance or repair of such property, [or] (3) the collection of rents or the rental of such property ***.” Paragraph G of the trust agreement also provides that the beneficiary of the trust has sole control over the management and renting of the property. Significantly, defendants do not dispute that Hamzagic is the sole beneficiary of the trust nor do they deny that all of their rent payments were paid to Hamzagic rather than to the bank. On these facts, there is no basis for finding that Hamzagic or his agent lacked authority to enforce the terms of the lease.

Defendants also maintain that the trial court improperly excluded certain parol evidence offered by them regarding modification of the lease terms as to payment of rent. Defendants point out that although the lease provided for rent to be paid to La Salle National Bank, it was actually paid to Hamzagic, either at defendants’ place of business or mailed to Hamzagic’s residence. Defendants also point to their consistent late payments of rent and the requirement that defendants cover the cost of scavenger services as indicating parol modification of the terms of the lease. As previously noted, the trustee’s rider provided that the trustee was not responsible for the collection of rents. This matter was addressed by the rider and does not constitute a parol modification. Similarly, paragraph R — 16. of the rider to the lease sets forth defendants’ responsibility to pay for scavenger services. Thus there is no basis for finding that that requirement constitutes a parol modification of the lease.

Plaintiff Hamzagic concedes that because for several months he accepted late payments of rent, there was an implied agreement to allow late payment of rent, but argues that any waiver of his right to timely rent payments was terminated by the notice of February 19, 1988, demanding timely payment of rent. This argument is not, contrary to defendants’ assertion, inconsistent with Donovan v. Murphy (1920), 217 Ill. App. 31, 35, which held that where a landlord had consistently accepted late rent contrary to the provisions of a lease, the landlord was required to notify the lessee in writing of its intention to insist on strict compliance with the lease prior to declaring a forfeiture.

Defendants’ final argument is that as the trust had expired by its own terms on May 1981, and under the express terms of the lease and the trust agreement, the trustee was the only person with the power to act as the landlord under the lease, there was no one who could act to forfeit the lease on behalf of the landlord. Defendants contend that there is no evidence that they had any knowledge of the trust agreement at the time the lease was executed nor that the trustee’s term had expired. Defendants maintain that consistent with Feinberg v. Great Atlantic & Pacific Tea Co. (1971), 131 Ill. App. 2d 1087, 266 N.E.2d 401, plaintiffs must bear the consequences of the deficiency in the trust arrangement.

The general rule is that a provision in a trust agreement specifically fixing the date of expiration will be given effect, provided it is not in violation of the rule against perpetuities. (La Salle National Bank v. MacDonald (1954), 2 Ill. 2d 581, 587, 119 N.E.2d 266.) Where the expiration date has been established, the courts will not extend the period of the trustee’s control absent the consent of the beneficiaries. (See, e.g., Morris v. The Broadview, Inc. (1946), 328 Ill. App. 267, 272, 65 N.E.2d 605; Friedberg v. Schultz (1941), 312 Ill. App. 171, 175-76, 38 N.E.2d 182.) The arrival of the time fixed in a trust agreement for expiration will not, however, automatically terminate the trust. (See Breen v. Breen (1952), 411 Ill. 206, 210, 103 N.E.2d 625; Smith v. Kelley (1944), 387 Ill. 213, 224, 56 N.E.2d 360.) As stated by the court in La Salle National Bank v. MacDonald (1954), 2 Ill. 2d 581, 119 N.E.2d 266:

“[A] trust will not terminate on the expiration of the period fixed, if at that time the purposes of the trust have not been accomplished and if the settlor indicated that the trust should continue until the accomplishment of its purposes. In such a case, the provision that the trust terminate on the expiration of the period is regarded as directory. [Citation.]” 2 Ill. 2d at 587.

In Morris v. The Broadview, Inc. (1946), 328 Ill. App. 267, 65 N.E.2d 605, the court similarly stated that while:

“[Cjourts of equity will not permit trustees to extend without authority the life of a trust. *** [Njeither reason nor authority has been advanced for denying the right of persons free to contract to grant to trustees the power to extend the trust in whatever manner and upon whatever conditions the creators of the trust may designate.” Morris, 328 Ill. App. at 272.

As plaintiff Hamzagic is the sole beneficiary of the trust, it is reasonable to assume that by granting the trustee bank the authority to enter into the instant lease, he intended to extend the life of the trust. We therefore conclude that the lease entered into between La Salle National Bank and the defendants was not invalid and that Hamzagic, as the beneficiary of the trust, had the authority to ratify the trust and, consequently, maintain an action for forcible entry and detainer.

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

Judgment affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    OLIVIA CHAMBERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Prudential Insurance Company of America, Appellee).
    First District (Industrial Commission Division)
    No. 1—88—1626WC
    Opinion filed June 23, 1989
    Rehearing denied December 18, 1989.

      Olivia Chambers, of Griffith, Indiana, appellant pro se.

    Bruce L. Jorgensen, of Chicago, for appellee Prudential Insurance Company of America.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The pro se petitioner, Olivia Chambers, filed a motion in the circuit court to remand this cause of action to the Industrial Commission. The circuit court denied her motion. She appeals.

This is the second time this cause has come before us. On April 11, 1981, the petitioner first filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). Her employer, respondent Prudential Insurance Company, challenged Illinois jurisdiction. The parties stipulated that only the jurisdiction issue would be addressed at the initial arbitration hearing. The arbitrator found that Illinois did not have jurisdiction over the claim. On review, the Industrial Commission affirmed the arbitrator, the circuit court confirmed the Commission, and this court affirmed the circuit court. Chambers v. Industrial Comm’n (1985), 139 Ill. App. 3d 550, 487 N.E.2d 1142.

On April 21, 1988, the petitioner, proceeding pro se, filed a document in the circuit court entitled “Motion to Remand Cause back to Industrial Commission of Illinois.” In her motion, she contended that the arbitrator was a convicted felon, that respondent’s exhibit No. 4 had been removed from the record while it was in the possession, of the arbitrator, and that the cause should be remanded to the Commission so that the exhibit could be admitted into evidence.

At the hearing on the motion, the respondent moved to dismiss the cause pursuant to section 2 — 619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). The petitioner then presented to the court a document entitled “Answer to Response to Motion to Remand.” In that document, she alleged that the circuit court had subject-matter jurisdiction over the cause under the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1 et seq.). The circuit court thereafter found that it lacked subject-matter jurisdiction and denied the motion to remand.

On appeal, the petitioner argues that she was defrauded when the arbitrator allegedly removed respondent’s exhibit No. 4 from the record, thereby preventing all of the evidence from being considered on review. She further contends that as a result of the alleged fraud she was deprived of her right to due process and equal protection of the law. She states that the circuit court had subject-matter jurisdiction pursuant to the Statute of Frauds and pursuant to section 13 — 206 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—206).

We shall first address the issue of whether the circuit court had subject-matter jurisdiction over the cause. Strict compliance with the Workers’ Compensation Act is required before the circuit court acquires subject-matter jurisdiction. (Board v. Industrial Comm’n (1984), 129 Ill. App. 3d 56, 472 N.E.2d 105.) Section 138.19(f) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)), which sets forth the procedure by which a circuit court obtains subject-matter jurisdiction, does not allow a circuit court to reacquire subject-matter jurisdiction upon the filing of a motion in that court after jurisdiction has been transferred to the appellate court. The circuit court could reacquire jurisdiction only in the event of a remand of the case to that court by the appellate court. Consequently, since the instant case was appealed to this court and decided with no remand to the circuit court before the petitioner filed her motion to remand, the circuit court no longer had jurisdiction to entertain her motion.

Further, the Statute of Frauds merely sets forth a writing requirement for certain classes of contracts. It cannot confer subject-matter jurisdiction. Moreover, section 13 — 206 of the Code did not confer jurisdiction, as that section only sets forth a 10-year limitation period for certain causes of action and has no relevance to the instant proceedings.

Accordingly, we find that the circuit court properly determined that it lacked subject-matter jurisdiction over the cause. We will therefore not address the other issues raised by the petitioner, as they were not properly before the circuit court. American Steel Foundries v. Industrial Comm’n (1983), 96 Ill. 2d 513, 451 N.E.2d 883.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    CHRISTOS KANDALEPAS et al., Plaintiffs-Appellees, v. SPYROS ECONOMOU et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—2700
    Opinion filed November 3, 1989.
    Rehearing denied December 8, 1989.

      Thomas G. Poulakidas, of Chicago, for appellants.
    Benjamin Daidone, of Daidone & Daidone, P.C., of Niles, for appellees.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendants, Spyros and wife Eleni Economou, appeal from the trial court’s order compelling them to sell their interest in real and personal property to plaintiffs, Christos and wife Georgia Kandalepas, and also from the order denying their petition to vacate the first order. Eleni Economou and Christos Kandalepas are sister and brother. Plaintiffs and defendants are 50% shareholders, respectively, in a corporation-partnership which owns property, including a restaurant, in Arlington Heights, Illinois. Plaintiffs Economou brought suit in 1982 to compel defendants’ cooperation in renewing a liquor license for the restaurant, later amending their complaint (five times) to seek a dissolution of the corporation-partnership.

In April 1987, Christos Kandalepas and Spyros Economou entered into an agreed order whereunder they would jointly exercise a right of direction and would lease the property to a third person for at least five years. In March 1988, plaintiffs filed a petition requesting vacatur of the agreed order because Spyros Economou allegedly did not comply with its terms. This petition was never ruled upon. Instead, after numerous settlement discussions, the parties and their attorneys appeared in court on June 25, 1988, and related that an agreement had been reached on all disputed matters except the issue as to which party would purchase the other party’s interest in the property. The record is unclear as to who agreed to what after this, but it is clear that the dispute was resolved by the court tossing a coin — with plaintiffs, the Kandalepases — being the “winners,” i.e., they would purchase the Economous’ 50% interest for $150,000. The court then entered an order to this effect. This appeal followed the trial court’s refusal to vacate that order.

On appeal, the Economous claim the trial court had no jurisdiction to award the property to the Kandalepases and that it was an abuse of discretion to resolve the dispute by the toss of a coin. For the following reasons, we dismiss this appeal.

The June 24 order was an agreed order. Although the transcript of the hearing does not identify the participants in the action preceding the coin toss, the trial court later expressly stated that the parties had agreed to settle the dispute in this manner. An agreed order is a recordation of an agreement between the parties and not a judicial determination of their rights. (Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19.) Generally, such a consent decree, absent fraud, is not appealable unless rights or interests of the public have been affected. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1.) Moreover, denial of a motion to vacate a prior order disposing of all issues in litigation is subject to judicial review. Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780.

First, we must reject defendants’ contention that the trial court lacked jurisdiction to fashion a remedy different from any of those requested by the parties; such a limitation would be contrary to the goals of equity. (See, e.g., Pope v. Speiser (1955), 7 Ill. 2d 231; see also Ill. Rev. Stat. 1987, ch. 110, par. 2—604.) However, even if all parties had agreed to settling their dispute by having the trial court flip a coin, and even if defendants had not objected to the procedure until 10 days later, as alleged by plaintiffs, we still could not approve this unusual method of settling the litigants’ differences.

It is true that Illinois law favors settlements. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518.) It is also well recognized that equity courts have greater flexibility in determining relief appropriate to the case before them. (Shatz v. Paul (1955), 7 Ill. App. 2d 223.) Although coin tossing has been used to settle disputes for several thousand years and, in fact, is still commonly practiced today, we cannot sanction its use as an “alternative dispute resolution” method in our courts of law (or equity). While we recognize that the coin toss in this case was not a form of gambling (see Ill. Rev. Stat. 1987, ch. 38, pars. 28—1, 28—2), it is indisputable that an act of chance determined which partner would be allowed to buy the other partner’s interest. We can hardly consider this to constitute a balancing of the equities of the case and, instead, feel that it violates public policy.

The only case law found that addresses use of a coin toss was issued by the Texas Court of Civil Appeals. In Crawford v. Consolidated Underwriters (1959 Tex. App.), 323 S.W.2d 657, the court held that a jury determination of the amount of a workers’ compensation award by the flip of a coin constituted flagrant misconduct, but was not prejudicial error since the plaintiff benefited as a result. In the present case, we have a party (the Economous) claiming to have been prejudiced by the coin toss. Perhaps if the parties had agreed to toss a coin outside of the court’s presence, we could tolerate the resultant court-approved settlement. However, we cannot sanction this method for resolving disputes by the court. Rather than tossing a coin, the court would have been on safer legal ground if it had ordered dissolution of the corporation (see Ill. Rev. Stat. 1987, ch. 32, par. 12.50(b)(1)) and a subsequent sale of the property.

A consent order is a contract of the parties (Prairie Material Sales, Inc. v. White Diamond, Inc. (1987), 157 Ill. App. 3d 779) and does not represent judgment of the court (In re Estate of Cohen (1983), 112 Ill. App. 3d 265). As a result, an agreed order is generally not subject to appellate review. (In re Haber (1981), 99 Ill. App. 3d 306.) Such an order can be set aside only by agreement of the parties or upon a showing that it resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the parties’ bargaining positions, or newly discovered evidence. (Bundy v. Church League of America (1984), 125 Ill. App. 3d 800.) None of these reasons appear in this case.

The order appealed from involved the trial court’s refusal to vacate an agreed order that was based upon an oral agreement (contract) between the parties, which agreement was reached in a manner offensive to public policy. When an agreement is held to be against public policy, it is considered illegal; the parties are in pari delicto, and the courts will leave them in the positions in which they have placed themselves. (Leoris v. Dicks (1986), 150 Ill. App. 3d 350.) The order will not be set aside nor will its terms be judicially enforced. Schnackenberg v. Towle (1954), 4 Ill. 2d 561.

In hopes that the parties can settle their differences by some legally recognized method not offensive to Illinois public policy, this appeal is dismissed.

Dismissed.

PINCHAM and COCCIA, JJ., concur.