author: MR. JUSTICE MORAN

text:
    (No. 49977.

      In re APPLICATION OF DAVID DICKEY, County Treasurer. — (Albert C. Michels, Appellant, v. Ruth T. Walsh, Appellee.)

      Opinion filed September 19, 1978.

      H. Carroll Bayler, of Louisville, for appellant.
    Thomas Franklin Walsh, of Lincoln, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

On January 19, 1967, petitioner, Albert C. Michels, and his mother, Esther M. Clem (since deceased), filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 72) to set aside a tax deed which had been issued to respondent, Ruth T. Walsh, on May 31, 1961. Following a hearing held on May 9, 1975, the trial court entered a judgment declaring the deed void upon a finding that the tax deed had been fraudulently procured by the respondent. A majority of the appellate court reversed. (51 Ill. App. 3d 697.) We granted petitioner leave to appeal. 58 Ill. 2d R. 315.

Involved in this appeal is an undivided .12500 fractional leasehold mineral interest owned by the petitioner under a lease identified as the “T.R. Michels ‘E’ Lease.” The lessee under the lease is the Union Oil Company of California, formerly Pure Oil Company.

On October 7, 1957, the county court of Wayne County declared delinquent the 1956 taxes assessed against the above-mentioned interest and ordered it sold in satisfaction thereof. On October 30, 1957, respondent purchased the petitioner’s leasehold mineral interest along with numerous other delinquent fractional leasehold mineral interests owned by various other individuals. On July 28, 1960, respondent extended the redemption period to October 29, 1960, and filed a verified petition for issuance of a tax deed.

Following several continuances, the respondent filed both her attorney’s affidavit concerning military service of natural defendants and her affidavit of giving notice prescribed by sections 263 and 266 of the Revenue Act of 1939, as amended (Revenue Act) (Ill. Rev. Stat. 1959, ch. 120, pars. 744, 747). At page 5 of the affidavit, the respondent stated that she had served Albert C. Michels with a printed copy of the notice of her petition for issuance of a tax deed. A copy of the notice was attached to the affidavit. Said notice was addressed to “Suspense Division Order, T.R. Michels ‘E’ Tract; Albert C. Michels; and The Pure Oil Company, a Corporation, tenant in possession ***,” and it indicated that the property was last assessed to an entity identified as “Suspense.”

The trial court, on May 31, 1961, entered an order which recited that the court had examined the records and heard testimony (it made express reference to respondent’s affidavit), that the court had jurisdiction of the parties and subject matters, that there had been strict compliance with all requirements of statute for issuance of a tax deed, and that the tax deed should issue.

On December 2, 1965, respondent filed suit in the circuit court of Clay County against the Union Oil Company to enforce payment of the oil royalties due and owing her under the purchased mineral leaseholds. (See Walsh v. Union Oil Co. (1970), 131 Ill. App. 2d 1015, aff’d in part and remanded (1972), 53 Ill. 2d 295.) Thereafter, on January 19, 1967, petitioner and his mother filed their original section 72 petition in the circuit court of Wayne County.

Petitioner’s twice-amended petition sought to have the tax deed set aside on grounds that (1) the respondent obtained the deed by fraud, and (2) the trial court lacked jurisdiction to order the tax deed to be issued. The petition cited various errors, omissions and discrepancies in the respondent’s pleadings and affidavit which petitioner claimed were fraudulent. He further asserted that he had never received notice of the tax-deed proceeding as required by statute, and alleged that the trial court lacked jurisdiction to issue the tax deed (1) because of the lack of notice to petitioner, (2) because the judgment order of sale for delinquent taxes was defective, and (3) because all taxes legally assessed and due on the property in 1956 had been paid.

At the hearing, the petitioner testified that, in 1956, he and his mother owned both the surface estate and the mineral estate of the land in question, subject to the outstanding oil-and-gas lease under which they received royalty payments. They continued to receive oil-royalty payments under the “T.R. Michels ‘E’ Lease” until 1965, at which time the Pure Oil Compnay withheld further payments. Petitioner stated that he had paid all tax bills issued to him between 1956 and 1965, that he received only one tax bill in 1956, and that, until 1961, he had never received a separate assessment against his mineral interests. (Petitioner’s own exhibits, however, indicate that some of his mineral interests were separately assessed and taxed in 1957.) Petitioner asserted that neither he nor his mother had ever received notice of the tax-deed proceedings.

Respondent, called by petitioner under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), testified that, before filing her petition for issuance of a tax deed, she had searched the public records for all interested parties. However, under direct examination during her defense, respondent stated that she had not personally conducted the search of the records, but that her husband, an attorney who was acting as such for her at the time, had conducted all searches and had supplied her with all the information which was contained in her petition and affidavit. Respondent indicated that she did not know who served notice on the petitioner but thought that the sheriff had. She further stated that she relied completely on the advice of her husband, who specialized in real estate tax matters and who had previously handled numerous tax-deed proceedings. Assertedly, according to respondent, the tax deed was recorded immediately after its issuance and both petitioner and Pure Oil Company were notified of the issuance and recordation.

Entries from the tax-warrant book for 1956 were identified and read into the record by the county clerk of Wayne County. On page 81 of the warrant book there appeared a leasehold mineral interest described as “.125 T.R. Michels ‘E’ Lease R.I.” The words “In Suspense” appeared in the column where the name and address of the assessee normally appeared. No explanation was given for the meaning of the words, “In Suspense.” The warrant book further disclosed that the taxes assessed against the above-described mineral interest had not been paid in 1956, and that the parcel had been sold in satisfaction thereof.

F oil owing the hearing, the trial court held that the tax deed had been fraudulently procured “by material misrepresentation of facts available to [respondent] or her agent ***,” and that respondent “or her agent in furtherance thereof did fraudulently conceal same.” The trial court did not, however, make a finding as to whether all taxes legally owed by petitioner in 1956 had been paid.

Petitioner contends that the appellate court, in its reversal, made findings which were erroneous and inconsistent with an earlier decision by the same court.

Initially, we note, as did the appellate court, that the petitioner’s section 72 petition was filed more than BVz years after the tax deed had been issued. Section 72(3) (Ill. Rev. Stat. 1965, ch. 110, par. 72(3)) provides that a petition for relief under section 72 must be filed within 2 years of entry of the judgment or order from which relief is sought, but that time during which the petitioner was under legal disability or duress or during which the grounds for relief were fraudulently concealed shall not be included in computing the 2-year period. Section 72(7) (Ill. Rev. Stat. 1965, ch. 110, par. 72(7)), however, provides that nothing contained in section 72 shall affect any right to relief from a void order. It makes clear that void orders, judgments or decrees can be attacked at any time, without regard to the 2-year limitation period in section 72(3). Cherin v. R. & C. Co. (1957), 11 Ill. 2d 447, 453.

Petitioner does not contend that he was under duress or legal disability. With respect to fraudulent concealment, the appellate court held that petitioner neither proved that the respondent knew the notice had not been served, nor that she had concealed the issuance of the tax deed. The court further found that petitioner had knowledge of facts which should have placed him on notice of the tax deed prior to the lapse of the 2-year limitation period. Consequently, the court held the petition to have been untimely filed. We agree with the appellate court in this regard.

Petitioner contends, however, that the result reached by the appellate court is inconsistent with that reached by the same court in Buschmann v. Walsh (1970), 120 Ill. App. 2d 242, wherein a section 72 proceeding, which also arose out of the instant tax-deed proceeding, was brought by a different party against the same respondent. The allegations raised there were very similar to those made in the instant petition. In Buschmann, however, the respondent elected to stand on her section 48 motion (Ill. Rev. Stat. 1965, ch. 110, par. 48), and a default judgment, which declared the tax deed void, was then entered against her. Here, respondent filed an answer, and a hearing was held on the merits. As noted above, the petitioner’s evidence of fraudulent concealment failed to sustain the factual allegations contained in the petition. The results reached here by the appellate court are not inconsistent with its earlier holding. Consequently, unless the order of the Wayne County court was void, petitioner is not entitled to the relief sought.

In this regard, petitioner asserts that his failure to receive the requisite statutory notice deprived the trial court of jurisdiction to order the issuance of the tax deed. This court, however, has repeatedly held that, in the absence of fraud, failure to receive notice as required by sections 263 and 266 of the Revenue Act (Ill. Rev. Stat. 1959, ch. 120, pars. 744, 747) does not deprive the trial court of jurisdiction to order a tax deed. (For a thorough discussion, see Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 35-37, and cases cited therein.) Petitioner’s contention is, therefore, without merit.

Petitioner next asserts that the order is void because the judgment and order of sale for delinquent taxes are defective in several respects. Petitioner, however, has not supplied this court with a copy of the judgment. Furthermore, attacks upon the judgment and order of sale after their entry are limited to those grounds set forth in section 270 of the Revenue Act (Ill. Rev. Stat. 1959, ch. 120, par. 751). None of these grounds are applicable to petitioner’s contention.

Finally, petitioner contends the order is void because he paid all taxes legally assessed, and no separate assessment against his leasehold mineral interest was permitted. Although this contention appears to have been raised in both tribunals, neither the trial nor the appellate court entered findings in this respect. Petitioner’s assertion rests on the premise that, under the case law of this State, the mineral or royalty interests reserved by an owner-lessor, under an oil or gas lease, are not subject to separate assessment and taxation.

Section 7 of “An Act to revise the law in relation to mines” (Ill. Rev. Stat. 1977, ch. 96½, par. 157, formerly Ill. Rev. Stat. 1975, ch. 94, par. 7) provides:

“When the owner of any land shall convey, by deed or lease, any mining right therein, such conveyance shall be considered as so separating such right from the land that the same shall be taxable separately ***.”

In People ex rel. Carrell v. Bell (1908), 237 Ill. 332, this court held that section 7 authorizes the separate assessment of the mining right owned by the lessee under an oil-and-gas lease. In People ex rel. Hargrave v. Phillips (1946), 394 Ill. 119, however, this court held that the unaccrued royalty interest reserved under an oil-and-gas lease by the owner of the surface estate is not a separate taxable mineral estate within the meaning of section 7. The unaccrued royalty interest is considered part of the land and is to be considered as such in determining the fair market value of the fee estate. People ex rel. Smith v. Coen (1953), 415 Ill. 73.

Section 270 of the Revenue Act provides that the entry of a judgment for the sale of real estate for delinquent taxes shall estop all parties from raising any objection thereto unless the tax had been paid or the real estate was exempt from general taxation under the Revenue Act. (Ill. Rev. Stat. 1959, ch. 120, par. 751.) If the petitioner’s leasehold mineral interest under the “T.R. Michels ‘E’ Lease” was exempt from separate assessment and taxation in 1956, the judgment and order for its sale were void and subject to collateral attack in these proceedings. The trial court failed to render a finding in this respect. Since the record before us is unclear as to whether the property interest assessed was that of petitioner’s leasehold mineral interest in unaccrued royalties, the case must be remanded to the trial court with directions to conduct a factual hearing solely on this issue.

For the reasons stated, the judgment of the appellate court is affirmed and the cause is remanded to the trial court with directions.

Affirmed and remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 50121.

      In re JOHN THOMAS SNEED, a Minor.-(The People of the State of Illinois, Appellant, v. John Thomas Sneed, a Minor, Appellee.)

      Opinion filed September 19, 1978.

      William J. Scott, Attorney General, of Springfield, and Beranrd Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Linda Ann Miller, and Gary W. Adair, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Dennis E. Urban and Francis Sowa, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The circuit court found that the minor, John Thomas Sneed, had violated his probation and committed him to the Department of Corrections. Sneed appealed the commitment and the appellate court reversed. (48 Ill. App. 3d 364.) We allowed the State’s petition for leave to appeal.

On April 2, 1974, a petition was filed charging the minor with aggravated battery, two counts of battery, and criminal damage to property. At a hearing on April 25, 1974, the minor was found to be a delinquent, and on June 20 he was placed on probation for 6 months in accordance with section 5 — 2(l)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705-2(l)(a)). On August 30, 1974, a petition for supplemental relief was filed alleging that the respondent had left his home on August 29 without his parents’ consent.

On November 11, 1974, another petition for supplemental relief was filed, this time charging the minor with assault by threatening to kill an individual. On November 26, 1974, the assault petition was dismissed on the State’s motion and the court extended probation to January 16, 1975. On December 20, the original 6-month probation term expired.

On January 16, 1975, the court reviewed the social report and recommendation which had been filed. After discussing the possibility of awarding guardianship to an officer of the Department of Children and Family Services, the court again extended the probation to May 15, 1975.

On April 19, 1975, however, a third petition for supplemental relief was filed by the State, alleging that the minor had committed attempted rape on April 18. A hearing was held the same day and the State reduced the charge of attempted rape to battery. The minor admitted the battery, and the court found that he had violated probation. The judge ordered a supplemental social investigation and scheduled a hearing for May 15. At the hearing on May 15, after reviewing the recommendations of the public defender, assistant State’s Attorney, and the probation officer, the court revoked the minor’s probation and ordered him committed to the Department of Corrections.

The appellate court, on review, held that the circuit court had acted without authority in extending probation on November 26 without holding a hearing and without a finding that Sneed had violated a condition of probation. It reasoned that since the circuit court had no authority to extend probation on November 26, the probation had terminated on December 20, 1974, and thus the court had no jurisdiction to thereafter further extend probation or to thereafter revoke probation. Since the respondent was no longer on probation on April 18, 1975, the appellate court concluded that the circuit court had acted erroneously in finding that the minor had violated probation as alleged in the petition for supplemental relief filed April 19, 1975, charging the minor with attempted rape on April 18, 1975.

On appeal to this court, the State contends that the extensions were valid even though the court did not find a violation of probation. It contends that once a minor has been adjudicated a ward of the court he remains a ward until final closing under section 5 — 11 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 705 — 11). Section 5 — 11 provides that wardship terminates when the minor reaches the age of 21 years or when the court specifically orders termination. Since neither occurred in the present case, and since the 6-month probation order did not expressly provide for automatic termination, the respondent would still be a ward of the court even after December 20, 1974. As such, the court, under section 5 — 2(3), would have the power to modify its disposition without a hearing or finding of violation. Section 5 — 2(3) provides:

“Unless the order of disposition expressly so provides, it does not operate to close proceedings on the pending petition, but is subject to modification until final closing and discharge of the proceedings under Section 5-11.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 705-2(3).)

The State’s argument is that the two extensions of probation, on November 26, 1974, and on January 16, 1975, were both proper modifications of disposition under section 5 — 2(3), and that since probation was validly extended to May 15, 1975, the court’s later finding that Sneed had violated probation in April was proper. The State emphasizes that once a minor has been found to be a ward of the court, all dispositions are indeterminate and subject to modification under section 5 — 2(3).

We do not agree with the State that section 5 — 2(3) of the Act (Ill. Rev. Stat. 1973, ch. 37, par. 705 — 2(3)) authorizes the extension of probation without a hearing and finding of probation violation. Section 5 — 2 is a comprehensive enumeration of all the possible dispositional orders under the Act. The specific dispositions for minors found to be delinquent include probation, conditional discharge, placement, drug-addiction treatment, commitment to the Department of Children and Family Services, and commitment to the Department of Corrections. Subsection 5 — 2(3) of the Act merely provides that dispositional orders may be modified until final closing by specific order of the court or until the minor reaches the age of 21 years. However, in our view, section 5 — 2(3) is merely a general statement allowing modification; it does not specify how or when dispositions may be modified. The State’s interpretation that this section authorizes modification of all dispositions on the court’s motion alone is inconsistent with other provisions of the Act.

Such a construction would effectually abrogate all other procedural safeguards of the Act. This is most clearly illustrated by section 5 — 3 of the Act, which sets out in detail the guidelines for imposing -probation and handling violations of its conditions. Subsections 3 through 8 dictate the specific procedures for determining probation violations and require that notice and hearing be afforded the probationer. The State has the burden of proving the violation by a preponderance of the evidence and the minor is guaranteed the right of confrontation, cross-examination, and representation by counsel. Section 5 — 3(6) specifies the authority of the court following the hearing:

“After a hearing, the court may modify or enlarge the conditions of probation or of conditional discharge. If the court finds that the minor has violated a condition at any time prior to the expiration or termination of the period of probation or conditional discharge, it may continue him on the existing disposition, with or without modifying or enlarging the conditions, or may revoke probation or conditional discharge and impose any other disposition that was available under Section 5 — 2 at the time of the initial disposition.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 705-3(6).)

As the minor notes, this is the only provision of the Act which authorizes extension of the probation term. Extension is only permitted if the court, following a hearing, finds that the minor has violated a condition of probation.

Following such a hearing and a finding that the minor has violated a condition of probation, the court is then vested with the authority to continue the minor on probation on the same conditions, or it may enlarge the conditions, or the court may revoke probation and impose any other disposition that was available under section 5 — 2 at the time of the initial disposition.

We note that conditions of probation may be modified without a finding of violation under section 5 — 3(7):

“The conditions of probation and of conditional discharge may be reduced or enlarged by the court on motion of the probation officer or on its own motion or at the request of the minor after notice and hearing under this Section.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 705-3(7).)

This authority under section 5 — 3(7) to modify the conditions of probation without a finding of a violation corresponds to the authority granted to the court to “modify or enlarge the conditions of probation” following a hearing on a petition charging violation without the necessity of finding that the minor did, in fact, violate a condition of the probation, granted in section 5 — 3(6), quoted above.

The conditions of probation which the court may impose are set out in section 5 — 3(2) of the Act (111. Rev. Stat. 1973, ch. 37, par. 705 — 3(2)). These conditions all relate to affirmative obligations which must be fulfilled, or prohibitions which must be adhered to during the term of probation. The length of the probation term itself is not listed as a condition of probation, nor can it accurately be characterized as such.

While conditions of probation may be reduced or enlarged as provided in section 5 — 3(7), that section of the Act grants no authority to a court to extend the period of probation.

In our opinion, allowing an extension of probation without a hearing and finding of a violation would directly contradict the mandate of section 5 — 3(6) and would render its protection meaningless. If the court were able to extend probation on its own motion or merely at the State’s request, the protections of notice and hearing under section 5 — 3(6) could be circumvented. Obviously, this construction was not intended by the legislature. Insofar as we believe section 5 — 3(6) was designed to protect against the loss of liberty without due process, we hold that probation may not be extended or revoked without notice and hearing and a finding that the minor has violated a condition of probation.

We also disagree with the State’s view of wardship insofar as probation is concerned. Although under section 5 — 11 the wardship of a minor continues until he is 21 or until terminated by an order of the court, this does not mean, as the State contends, that a disposition of probation automatically continues until terminated as provided in that section. The Act contemplates that the disposition of probation be for a specific period of time subject to an extension of the period following a finding of a violation of a condition as provided in section 5 — 3(6). The Act states:

“The period, of probation *** shall not exceed 5 years or until the minor has attained the age of 21 years, whichever is less.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 705-3(1).)

This language plainly contemplates that the minor be placed on probation for a definite period of time. It does not authorize or contemplate an indefinite or continuing probation for 5 years or until the minor attains the age of 21 years, whichever is less. It should be noted that that part of section 5 — 3(6) quoted earlier also refers to a “period of probation” and gives the court the authority to act if it finds the minor has violated a condition at any time “prior to the expiration or termination of the period of probation.”

We accordingly affirm the judgment of the appellate court.

Judgment affirmed.


text:
    (No. 49437.
    CHARLES LAWRIE, Appellee, v. THE DEPARTMENT OF PUBLIC AID, Appellant.

      Opinion filed September 19, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield (Robert G. Epsteen, Assistant Attorney General, of counsel), for appellant.

      Henry Lawrie, Jr., of Hopkins, Sutter, Mulroy, Davis & Cromartie, of Chicago, and William H. Hillier, of Lord, Bissell & Brook, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Charles Lawrie, is a mentally retarded adult who has resided at Beverly Farm Foundation, Inc., in Madison County, since 1959, when he was 11 years old. Beverly Farm, a not-for-profit corporation, operates a home for the mentally retarded and is licensed by the Department of Public Health.

In 1972, plaintiff applied for public assistance from the Department of Public Aid (Department) under the Department’s Aid to the Aged, Blind or Disabled program (AABD) (Ill. Rev. Stat. 1971, ch. 23, par. 3 — 1 et seq.). Aside from contributions from his parents, plaintiff has no means of support. Since 1969, parents of mentally retarded persons over the age of 21 are not legally responsible for such person’s support. Ill. Rev. Stat. 1969, ch. 23, par. 2 — 11.

Plaintiff’s application for aid was denied by the Madison County Department of Public Aid because Beverly Farm refused to enter into a provider agreement with the Department, pursuant to chapter 5550, topic 5556.3, of the Department’s Categorical Assistance Manual (now section 1105 of the Department’s AABD Manual). This regulation required, among other things, that Beverly accept the Department’s rate of payment as payment in full for the services rendered.

Plaintiff appealed the denial of his application by notice to the Department. At the time plaintiff filed his application, the monthly rate charged by Beverly Farm (exclusive of clothing and medical supplies) was approximately $258. At the hearing on plaintiff’s appeal, plaintiff’s mother testified that the rate had risen to approximately $300 per month and was expected to increase another $50 per month. The record indicates that if Beverly entered into an agreement with the Department, the level of assistance available to the plaintiff could range from $212 per month to $305 per month, depending on the nature of care required and the program and services provided. Plaintiff’s parents sought to supplement the Department’s level of assistance with an amount equal to the difference between Beverly’s monthly rate and the amount available from the Department.

At the conclusion of the hearing, the Department’s hearing officer found that, inasmuch as Beverly refused to accept the Department’s rate of payment as payment in full, the maximum assistance available to plaintiff was $100 per month, the Department’s basic rate for room and board in a nonapproved institution. The hearing officer further found that, pursuant to section 3 — 5 of the Illinois Public Aid Code (Code) (Ill. Rev. Stat. 1971, ch. 23, par. 3 — 5), any amount paid to Beverly Farm by plaintiff’s parents would correspondingly reduce the amount of aid available under the Code.

Plaintiff filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) challenging the Department’s regulation and policy prohibiting supplementation. The circuit court of Cook County reversed the decision of the Department, holding the Department’s “payment in full” regulation and the policy prohibiting supplementation void as not authorized by section 3 — 5 of the Code and violative of the equal protection clauses of the United States and Illinois constitutions. The Department appealed to the appellate court which, with one justice dissenting, affirmed the circuit court (46 Ill. App. 3d 23). We granted the Department leave to appeal.

The Department here contends that its policy and regulation are not only consistent with the provisions of the Code but are, in fact, mandated by statute. It also points to a certain Federal regulation which requires that, as a condition to the State’s continued receipt of Federal funds, all providers of medical services must accept the State’s payment as payment in full.

Plaintiff, on the other hand, asserts that both the Department’s regulation and its policy against supplementation are neither authorized by the Code nor required by Federal regulation.

Initially, we note that the parties disagree as to which public assistance program is here involved. The Department contends that the issues are controlled by those rules and regulations promulgated under the Federal Medical Assistance Program (Medicaid) (42 U.S.C.A. sec. 1396 et seq.). Plaintiff, on the other hand, contends that certain statutory provisions under the State’s AABD program are controlling (Ill. Rev. Stat. 1971, ch. 23, par. 3 — 1 et seq.). Confusion apparently exists because, according to plaintiff, no final determination has yet been made as to the nature or degree of care actually required by the plaintiff’s disability.

Review of the various applicable statutes and regulations indicates that assistance is available to individuals in need of institutional care either under the AABD program or the Medicaid program. (See Ill. Rev. Stat. 1971, ch. 23, pars. 3 — 2, 5 — 5; Department of Public Aid, Rules & Regulations, Rules 3.51, 4.01, 4.14, hereinafter cited as DPA Rules & Regs.) The assistance available thereunder is dependent upon the nature and degree of care required by the individual and by the individual’s available income and resources as set forth in the Department’s standards and regulations.

Under the State’s AABD program, private, licensed sheltered-care facilities (SCF) may provide basic maintenance services for which reimbursement is made according to a rate schedule promulgated by the Department. (DPA Rules & Regs., Rule 3.51, Attachments III and IV.) Qualified individuals, who, by Department regulations and standards, require a greater degree of care than that available in a licensed SCF are eligible for public assistance under the Medicaid program. (DPA Rules & Regs., Rule 4.14, Attachment I.) Only licensed skilled nursing facilities (SNF) and intermediate care facilities (IGF) may provide services for individuals under the Medicaid program. The Department employs different rate schedules for that program. (DPA Rules & Regs., Rule 4.14, Attachment II.) The record indicates that Beverly Farm is licensed both as ah IGF and an SCF. As will be discussed, we believe that, under either program, there is statutory authority for the Department’s “payment in full” policy and for its prohibition against supplementation.

Medicaid and AABD are State-administered Federal programs designed to alleviate hardships to individuals with specific needs and limited financial resources. Federal matching funds are available under either program to States which comply with certain minimum Federal requirements. Illinois, by statute, has elected to receive these matching funds. (Ill. Rev. Stat. 1971, ch. 23, par. 12 — 4.5.) Because of the finiteness of State resources, the State’s continued eligibility for Federal matching funds is of utmost importance.

Assuming, as argued by the Department, that it is the State’s Medicaid program which is here involved, we observe that Federal regulations require, as a condition to the State’s receipt of Federal matching funds, that “participation in the [Medicaid] program *** be limited to providers of service who accept, as payment in full, the amounts paid in accordance with the [State’s] fee structure.” (42 C.F.R. sec. 450.30(a)(8).) Section 1105.2(c) of the Department’s AABD Manual sets forth a similar requirement. Additionally, section 11 — 13 of the Illinois Public Aid Code (Ill. Rev. Stat. 1971, ch. 23, par. 11 — 13) provides:

“A vendor payment, as defined in Section 2 — 5 of Article II, shall constitute payment in full for the goods or services covered thereby. Acceptance of the payment by or in behalf of the vendor shall bar him from obtaining, or attempting to obtain, additional payment therefor from the recipient or any other person. ***”

Effective October 25, 1977, it is a Federal felony for any Medicaid vendor to charge a patient an amount in excess of the rates established by the State. 42 U.S.C.A. sec. 1396h(d)(Supp. 1978).

Section 12 — 4.5 of the Code specifically provides that the Department shall cooperate with the Federal Department of Health, Education and Welfare in any reasonable manner, not contrary to the Code, as may be necessary to qualify for Federal aid. Ill. Rev. Stat. 1971, ch. 23, par. 12-4.5.

To permit vendors or providers of service to receive amounts in excess of the Department’s determined rate of payment would not only jeopardize the State’s continued receipt of Federal funds under the Medicaid program, but would, in fact, permit institutions, such as Beverly Farm, to violate the Federal criminal law. That the Federal government could cut off funds to any State which does not comply is clearly indicated in Yanez v. Jones (D. Utah 1973), 361 F. Supp. 701. There, the State of Utah permitted physicians to charge Medicaid recipients for office visits at a rate in excess of Utah’s established .fee structure. The court held that the plaintiff’s class action, against certain State employees charged with administering the State’s Medicaid program, stated a cause of action upon which injunctive relief could be granted. In discussing the requirements of 42 C.F.R.-sec. 450.30(a)(8), formerly 45 C.F.R. sec. 250.30(a)(6), the court specifically noted that the Department of Health, Education and Welfare has the authority to cut off funds to States which do not comply. 361 F. Supp. 701, 705.

Accordingly, we find that the Department’s regulation, which requires acceptance of payment as payment in full and prohibits supplementation, is authorized by statute and required by Federal regulation.

Were we to assume, as plaintiff argues, that the above-cited statutes and regulations are inapplicable to aid furnished under the State’s AABD program, we would, nonetheless, reach the same conclusion.

As noted above, section 11 — 13 of the Code provides that all vendor payments shall constitute payment in full and shall bar all vendors from obtaining, or attempting to obtain, additional amounts. Plaintiff asserts, however, that a third sentence contained in that section, when read together with section 3 — 5 of the Code, specifically recognizes the permissibility of supplementation under the AABD program. That sentence provides:

“*** A vendor payment shall not, however, bar recovery of the value of goods and services the obligation for which, under the rules and regulations of the Illinois Department, is to be met from the income and resources available to the recipient, and in respect to which the vendor payment of the Illinois Department or the local governmental unit represents supplementation of such available income and resources.” (Ill. Rev. Stat. 1971, ch. 23, par. 11-13.)

Section 3 — 5 of the Code provides:

“*** The aid shall be sufficient, when added to all other income, money contributions and support, to provide the person with a livelihood compatible with health and well-being.” Ill. Rev. Stat. 1971, ch. 23, par. 3 — 5.

In order to understand the meaning and operation of section 11 — 13 and its interrelationship with section 3 — 5, it is necessary to analyze the scheme by which the Department, pursuant to statute, determines the level of assistance available to disabled individuals.

Under the AABD program, as under Medicaid, eligibility is, in part, dependent upon the amount of income and resources available to the individual compared to the individual’s maintenance needs. If available income and resources, added to contributions of money, substance or services from other sources, are insufficient to meet the person’s basic maintenance needs as defined, such individual is eligible for financial aid. Ill. Rev. Stat. 1971, ch. 23, par. 3-1.2. See also 45 C.F.R. sec. 233.20(a)(3)(ii).

Section 3 — 5 of the Code provides that, in determining the amount and nature of aid to be granted, “[d] ue regard shall be given to the requirements and the conditions existing in each case, and to the amount of property owned and the income, money contributions, and other support, and resources received or obtainable by the person, from whatever source.” (Ill. Rev. Stat. 1971, ch. 23, par. 3 — 5.) To be disregarded are occasional, nominal gifts from legally nonresponsible relatives if such gifts do not significantly assist in meeting an individual’s needs. Ill. Rev. Stat. 1971, ch. 23, par. 3 — 1.2.

The determination of the rate of payment which may be charged a recipient by an institution, and, correspondingly, the maximum amount of assistance available to the individual recipient, is dependent upon the Department’s analysis of the nature of care and services required in the particular case. The amount paid in behalf of the recipient by the Department is the dollar sum of that recipient’s needs as determined by the Department’s schedules minus the sum of the recipient’s nonexempt income and resources. (DPA Rules & Regs., Rule 3.41.) If, for example, the Department determines that, pursuant to its rate schedule, a particular individual requires $300 per month to maintain a livelihood compatible with his health and well-being, and such individual has available $100 per month of nonexempt income or assets as defined, the Department’s portion of the vendor’s payment for such individual’s care is $200 per month. Pursuant to the third sentence of section 11 — 13, the vendor or provider of service may collect the remaining $100 from the recipient.

Section 11 — 13, however, does not permit or authorize the vendor or provider of service to charge a rate in excess of that established by the Department’s rate schedule. Moreover, pursuant to section 3 — 5 of the Code, if a recipient’s parents supplement the Department’s payment, such supplementation would constitute income or resources available to the recipient, and, correspondingly, could reduce the amount of aid paid by the Department in behalf of the recipient. Thus, contrary to the plaintiff’s assertion, neither section 11 — 13 nor section 3 — 5 of the Code authorizes any additional supplementation of the Department’s payments which would result in payment to the vendor or the provider of services of an amount in excess of the approved rate.

Plaintiff contends, however, that the Department’s consideration of parental contributions is a denial of equal protection of law inasmuch as the Department allegedly allows supplementation from State agencies such as the Department of Mental Health and Developmental Disabilities (DMHDD).

The only statement contained in the record pertaining to the Department’s allowance of supplementation by various State agencies is plaintiff’s counsel’s statement before the Department’s hearing officer. There, plaintiff’s counsel stated that certain public and private institutions were receiving amounts from DMHDD in addition to that paid by the Department. Counsel further stated that the State of Illinois spends over $500 per month to maintain residents in DMHDD institutions such as that located in Dixon. The record does not indicate, however, whether any portion of the $500 so spent is paid through the Department. Neither does the record indicate the type of services provided individuals in these institutions. Moreover, pursuant to DMHDD’s executive order No. 75, issued August 23, 1976, any recipient receiving aid through DMHDD who subsequently qualifies for aid under the Department of Public Aid due to movement, redetermination of responsible relative liability, or attainment of age 21, is ineligible for aid from DMHDD. See Department of Mental Health and Developmental Disabilities, Rules and Regulations, Rule 6.09, as amended.

Accordingly, we find the plaintiff’s equal protection argument to be without merit.

Plaintiff asserts that the Department’s policy, which deters supplementation by parents, is inconsistent with the Code’s stated purpose of strengthening and maintaining the family unit (Ill. Rev. Stat. 1971, ch. 23, par. 1 — 1). While, in certain instances, there may be some validity to plaintiff’s argument, we find that the Department’s policy is, in fact, consistent with the Code’s more overriding purpose — the alleviation and prevention of poverty (Ill. Rev. Stat. 1971, ch. 23, par. 1 — 1). In order to achieve this result, the State must allocate its limited resources in a manner which will afford relief to the greatest number of individuals. Individuals, such as plaintiff, who receive parental support are less in need than those who do not. While we recognize that the State’s consideration of contributions by legally nonresponsible individuals will deter such individuals from making voluntary contributions, it is not the function of this court to “second guess” the wisdom of the legislature or the “state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” (Dandridge v. Williams (1970), 397 U.S. 471, 487, 25 L. Ed. 2d 491, 503, 90 S. Ct. 1153, 1162-63.) “ ‘*** [T]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. ***’ ” Sweet v. Department of Public Aid (1977), 66 Ill. 2d 195, 208.

Central to the plaintiff’s dispute in this case is his underlying contention that, even if his parents provided no support, the amount available under the Department’s rate schedule would be insufficient to meet his costs at Beverly Farm. The Department asserts that a number of private and public institutions are willing and able to provide plaintiff with the care required at costs equal to that provided under the Department’s rate schedule. While we empathize with the plaintiff’s parents’ reluctance to remove their son from an institution which has apparently provided satisfactory care for more than 18 years, this court is, of course, in no position to review the Department’s economic determinations which are reflected in its rate structure.

We do note, however, that, effective January 3, 1978, all SNFs and ICFs participating in the State’s Medicaid program must be reimbursed on a reasonable cost-related basis. (Ill. Rev. Stat., 1977 Supp., ch. 23, pars. 5 — 5.1 through 5 — 5.7.) In determining the standard of payment, the Department must consider the actual cost incurred by the facilities in providing the services for public aid recipients, the medical and psychosocial characteristics and needs of the patient, and the actual cost incurred by the facilities in meeting licensing and certification standards. (Ill. Rev. Stat., 1977 Supp., ch. 23, par. 5 — 5.4.) The Department is also charged with developing a prospective method for determining rates which will allow the facility an opportunity for profit. (Ill. Rev. Stat., 1977 Supp., ch. 23, par. 5 — 5.5(b)(2).) Presumably, under these new provisions, more facilities will be financially able to participate in the State’s Medicaid program.

For all the reasons stated above, we find the Department’s regulation and policy to be authorized by and consistent with the provisions of the Code.

Accordingly, the judgments of the circuit and appellate courts are reversed.

Judgments reversed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 49886.
    McLEAN TRUCKING COMPANY et al., Appellants, v. THE INDUSTRIAL COMMISSION et al.-(Mozelle French et al., Appellees.)

      Opinion filed September 19, 1978.

      Musschoot, Womack & Galich, of Chicago (Arthur R. Musschoot, James W. Womack and Andrew A. Galich, of counsel), for appellants.
    J. Michael Madda, of Chicago, for appellees.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

McLean Trucking Company (hereafter McLean) appealed directly to this court under Rule 302(a) (58 111. 2d R. 302(a)) from a judgment of the circuit court of Cook County confirming the Industrial Commission’s award of compensation to the claimant, Mozelle French, for her husband’s death while he was in McLean’s employ.

The decedent, Henry French, had been employed by McLean as an over-the-road trucker for approximately three years prior to his death. On September 23, 1974, he had breakfast at home before leaving for work and appeared, his wife testified, to be in good health. According to his log book, the decedent then drove a McLean’s semitrailer truck from Chicago to St. Paul, Minnesota. The truck was equipped with power brakes, but did not have power steering. He arrived in St. Paul after a 9-hour drive, and laid over for 21 hours. At 8 p.m. on September 24, the decedent began his return trip to Chicago. He drove through the night, stopping once in Milwaukee, where he stayed from 3 a.m. to 4 a.m. He arrived at McLean’s dispatch office in Chicago at approximately 6 a.m. There he talked with a supervisor for 15 to 20 minutes while having a cup of coffee. The supervisor testified that the decedent appeared to be in good spirits at that time.

The decedent drove his own car home, arriving at 7 a.m. He spoke briefly with his wife, who testified that he looked very drawn and tired. He went to an upstairs bathroom, but minutes later he came downstairs, exclaimed “Call the rescue squad,” and collapsed. He was at once taken to a hospital, and he died shortly thereafter. His son testified that he telephoned McLean and informed a supervisor that his father had passed away that morning at the hospital. No autopsy was performed.

Several issues are raised by the respondent. The first is whether McLean was given notice of the accident as required by section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)). McLean contends that the son’s phoning McLean and simply advising of his father’s death did not constitute notice, and that the holdings in Fenix-Scisson Construction Co. v. Industrial Com. (1963), 27 Ill. 2d 354, and Ristow v. Industrial Com. (1968), 39 Ill. 2d 410, support that conclusion. We do not agree. In Fenix-Scisson, the claimant’s wife telephoned his employer within the statutory time prescribed for notice, but told him only that her husband was in the hospital and that he had requested that the employer visit him so that they could discuss a business matter. The employer was not informed that the claimant had been injured by a falling board in the course of his employment, although of course the cause of his injury was known to the claimant and to his wife, it may be assumed. Ristow held in a factual setting quite different from the one here that the giving of notice within 45 days of the accident is jurisdictional, and that there is a conclusive presumption of prejudice when the employer has not been notified. The facts here are distinguishable from those in Fenix-Scisson, where the employer was not made aware of facts then known to the claimant, and from those in Ristow, where there was a failure to give notice of any kind whatsoever within the statutory period.

Section 6(c)(3) of the Act provides in part that “[n] o defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)(3).) The provision has been liberally construed, but of course only to an extent consistent with protecting the employer against unjust or fraudulent claims. (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 143; Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 466-67; United States Steel Corp. v. Industrial Com. (1964), 32 Ill. 2d 68, 75; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 41; Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 336; Raymond v. Industrial Com. (1933), 354 Ill. 586, 592.) While the employer here was not notified of the cause of death, which was then unknown, the decedent’s son phoned McLean and informed a supervisor of his father’s death within a few hours after the decedent had completed his tour of duty. Thus, McLean was given notice of all facts then known to the claimant. As was stated by this court in Raymond v. Industrial Com. (1933), 354 Ill. 586, 594: “All the facts were known equally by both parties, and it is difficult to perceive any just theory upon which the employee would be bound to draw the correct medical inferences from those facts and the employer be excused therefrom.” McLean was also aware of the nature of the decedent’s work and the type of stress involved, as well as the lengthy journey just completed by the decedent.

The notice given here was as specific as it could be under the circumstances. The notice requirement cannot be unreasonably construed so as to compel the impossible —to require a claimant to give notice of what he does not know. This court has consistently upheld the adequacy of incomplete notices where the defect consisted of a failure to inform the employer of facts unknown at the time to the claimant. (Andronaco v. Industrial Com. (1972), 50 Ill. 2d 251, 257; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 41; Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 337; Raymond v. Industrial Com. (1933), 354 Ill. 586, 593; Chicago Rawhide Manufacturing Co. v. Industrial Com. (1920), 291 Ill. 616, 621.) In any event, the employer has the burden of proving that he has been unduly prejudiced by a defective or inaccurate notice (Raymond v. Industrial Com. (1933), 354 Ill. 586, 592), and no factual prejudice here has been shown or even claimed. Considering the circumstances (1920), we hold that notice was given within the meaning of the Workmen’s Compensation Act.

We do not consider that the action of the arbitrator in admitting the death certificate of the decedent into evidence at the hearing constituted reversible error. Because the fact and date of the decedent’s death were stipulated, McLean contends that it was error to admit the certificate, relying on People v. Fiddler (1970), 45 Ill. 2d 181. The certificate indicated the cause of death to have been myocardial infarction. In Fiddler, a death certificate was admitted into evidence at a jury trial for murder, and it was the prosecution’s only direct evidence as to the cause of the victim’s death. But here the record shows clearly that the arbitrator said he was admitting the certificate only to establish the fact of death, and not as evidence of the cause of death. While its admission was unnecessary and well may have been erroneous, we cannot say under the circumstances that McLean sustained prejudice because of it.

The last question raised is whether the finding of the Industrial Commission that the decedent died as the result of an accident arising out of and in the course of his employment was contrary to the manifest weight of the evidence. A study of the record persuades us that it was not.

Responding to a hypothetical question, the claimant’s medical expert, Dr. Nathaniel Greenberg, gave his opinion that “the work activities resulting from the long round trip resulted in an acute myocardial infarction, which produced this man’s death.” He said on cross-examination that the concentration and maneuvering required in driving a heavy truck over a long period of time was “unequivocal evidence of physical and mental stress.” He stated that the degree of stress is markedly higher under those circumstances than under the circumstances involved in driving a small car for a short period of time. When asked to pinpoint the time when the infarction occurred, Dr. Greenberg testified that “[o] ne would be reasonably secure in stating that it occurred within a number of hours of the time of death.” He testified that in the vast majority of cases of nontraumatic sudden death, death is caused by acute myocardial infarction or heart attack, and that there may be no clinical signs whatsoever to signal its onset.

An internist for McLean, Dr. William Buckingham, testified before the arbitrator that in his opinion the decedent’s death was not related to his employment. At the hearing on review before the Commission, Dr. Harold Steinberg, an internist, testified for McLean that he assumed the decedent had probably sustained a myocardial infaction, but did not believe the death to have been work-related.

A claimant need not negate every other possible cause of death to establish death by heart attack as a legitimate inference from the evidence. (Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539; Field Enterprises v. Industrial Com. (1967), 37 Ill. 2d 335, 339.) Where there is conflicting medical testimony, it is axiomatic that it is for the Commission to decide which testimony is to be accepted. See County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 30; City of Chicago v. Industrial Com. (1970), 45 Ill. 2d 350, 353; Avis Hotel v. Industrial Com. (1968), 41 Ill. 2d 54, 58-59; Quaker Oats Co. v. Industrial Com. (1953), 414 Ill. 326, 335.

The claimant’s recovery here should not be defeated by the circumstances that the myocardial infarction manifested itself after the decedent had left the terminal. “If a strain occurs during employment hours which produces no symptoms, and claimant suffers a heart attack as a result some time after working hours, the injury is compensable.” (1 A. Larson, Workmen’s Compensation sec. 29.22 (1978).) In numerous instances awards have been upheld where the actual heart attacks occurred after the employees had left their places of work and gone home. See County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10; Sohio Pipe line Co. v. Industrial Com. (1976), 63 Ill. 2d 147; Andronaco v. Industrial Com. (1972), 50 Ill. 2d 251 ; Avis Hotel v. Industrial Com. (1968), 41 Ill. 2d 54; Gould National Batteries, Inc. v. Industrial Com. (1966), 34 Ill. 2d 151; Clifford-Jacobs Forging Co. v. Industrial Com. (1960), 19 Ill. 2d 236.

The evidence here was that the decedent just prior to his fatal attack had completed the final leg of a round trip between Chicago and St. Paul. The trip was made in a large tractor-trailer not equipped with power steering, and under nighttime driving conditions. The decedent stopped only once, for an hour, during the 10-hour trip. He appeared to his wife to be very drawn and tired when he arrived home. He collapsed and died almost at once.

It was for the Commission to draw reasonable inferences from the evidence, both direct and circumstantial, and a court will not disregard such inferences simply because others might also have been drawn. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19; Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539-40.) We cannot say that the finding of the Commission was contrary to the manifest weight of the evidence. For the reasons given, the judgment of the circuit court of Cook County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.


text:
    (No. 50032.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LAVON LOGAN, Appellant.

      Opinion filed September 19, 1978.

      Richard J. Wilson, Deputy Defender, and Richard E. Cunningham, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    William J. Scott, Attorney General, of Springfield, and Robert J. Bier, State’s Attorney, of Quincy (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael I. Santow, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This is an appeal from the judgment of the appellate court (49 Ill. App. 3d 787), affirming the trial court’s dismissal of a petition filed by defendant, Lavon Logan, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72).

In September of 1972, defendant was tried by a jury for the armed robbery of a theater in Quincy. In its case in chief, the prosecution presented three witnesses. The cashier on duty at the theater described the details of the robbery but could not identify defendant as the robber. Another witness, who had known the defendant for 14 years, observed him running out of an alley near the theater, carrying a gun. He observed defendant for about one minute, after which time defendant disappeared near an old church building on Seventh Street. The third witness, Ronald Holt, lived on Seventh Street directly north of the church building. He testified that defendant came to his house on the night in question, told him that he had just “hit a place,” and asked Holt if he could hide his gun in the apartment. Holt refused, at which time defendant and defendant’s brother, who had come into the apartment a few minutes after the defendant, left through a back door.

The jury found defendant guilty of armed robbery on September 12, 1972. Defendant filed a timely post-trial motion, alleging numerous errors, in which he requested that his conviction be set aside or in the alternative that he be granted a new trial. The motion was heard and denied on October 5, 1972.

On October 17, 1972, defendant filed a pro se motion to amend and supplement his previous post-trial motion on the basis of newly discovered evidence that Ronald Holt had perjured himself at defendant’s trial. The motion was filed beyond the 30-day limit prescribed by law (Ill. Rev. Stat. 1973, ch. 38, par. 116 — 1), but, because of the nature of the allegations in the petition, an evidentiary hearing was held on the matter. At the hearing, several witnesses testified that Holt had come to the jail and yelled to the jail window from his car. Logan testified that Holt, who was on probation at the time, said that he had been to Logan’s attorney’s office and that he would testify that he had been pressured into lying at his trial. Evidence adduced from several other witnesses seemed to support defendant’s allegations about Holt’s statement, although Logan’s attorney stated that Holt had been to his office to discuss his (Holt’s) probation, but he had no knowledge of any other attempts by Holt to contact his office. Holt did not testify at the hearing, apparently because he was in California at the time. The court found that perjury had not been proved, and denied defendant’s motion for post-trial relief.

The perjury issue was included in defendant’s appeal from his robbery conviction to the Fourth District Appellate Court. The court affirmed the conviction in its entirety. (People v. Logan (1974), 24 Ill. App. 3d 678.) Regarding the perjury issue, the court noted that the “so-called newly discovered evidence was not of such a conclusive character that it would probably change the result if a new trial was granted, nor does it appear that it was discovered after the trial, nor does it appear that it might not have been discovered if true before the trial, and lastly it goes only to the credibility of a witness rather than to the question of the innocence or guilt of this defendant.” 24 Ill. App. 3d 678 (abstract).

In August 1974 defendant filed a petition for a post-conviction hearing raising, inter alia, the issue of Holt’s perjury. The petition was amended in October 1974. The amended petition alleged that defendant’s counsel, John T. Inghram IV, had been in touch with Holt by phone, and that Holt had admitted that he had lied at defendant’s trial. An affidavit, sworn to by Inghram, was attached to the amended petition, in which Inghram alleged that Holt had told him that he could not remember if defendant had been to his apartment on the night in question and that defendant had not said he had “hit a place,” nor had he seen defendant with a gun. Defendant alleged that Holt was residing in Burbank, California, and included a request that the trial court issue a certificate to secure his attendance at a post-conviction hearing under the Uniform Act to secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (the Uniform Act). See Ill. Rev. Stat. 1973, ch. 38, par. 156-3.

A hearing on the State’s motion to dismiss the petition was held on November 1, 1974. The judge stated that the testimony of Holt was a significant part of the State’s case and, if proved, would necessitate the granting of a new trial. He ultimately decided, however, that the representations presented by defendant were not enough to prove the perjury and were not sufficient to compel the attendance of Holt under the Uniform Act, and he dismissed the petition without a hearing. In this connection, he gave the defendant 120 days to amend the petition by presenting more conclusive evidence of perjury, and indicated that an affidavit from Holt, or a phone conversation in which it could be clearly shown that Holt was the party talking, or anything else in the way of a direct communication to the court, would be acceptable. The judge also informed the defendant that, if necessary, he would grant extensions beyond the 120-day limit prescribed by his prospective order. It should be noted that section 122 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 122 — 5) authorizes the court, before the entry of judgment on the post-conviction petition, to grant leave to withdraw the petition.

Defendant did not amend the post-conviction petition, nor did he seek any extensions to the 120-day period. Also, he did not ask leave to withdraw the petition. The petition was dismissed and defendant appealed from the court’s dismissal of the post-conviction petition. In his appeal, he raised only the validity of his sentence, and failed to include any issue regarding Holt’s perjury. The appellate court affirmed the sentence, with one justice dissenting. People v. Logan (1976), 39 Ill. App. 3d 656.

On November 17, 1975, defendant wrote a letter to the trial judge. The letter, which reminded the judge that he had dismissed the post-conviction petition because no direct evidence was available regarding Holt’s perjury, was sent along with a letter from Holt. Holt’s letter was addressed to defendant’s recently appointed counsel, Richard Cunningham, and was dated July 30, 1975. Holt’s letter indicated that when he first talked to police investigators, a year after the robbery, he was under a great deal of emotional strain due to the fact that his sister was dying of cancer. He stated that at the time of his discussion with the police he had just had a car accident and had been taking drugs. He further stated that he had been drinking heavily “and the police knew it so they said if [he] didn’t tell them that they knew some things on [him].” The letter concluded, “So I said I seen a gun and he said I hit a place just to get out of there.”

Holt’s letter was originally sent to attorney Cunningham in response to a request from defendant’s former attorney, John Inghram IV, that Holt sign an affidavit stating that he had perjured himself at defendant’s trial. When Holt had discussed the matter with Inghram by phone in 1974, he had expressed concern over the possibility of having his probation revoked, as well as being subject to criminal charges for perjury in this State. Holt did not hear from Inghram after this, but he received the affidavit and request for his signature sometime in the spring of 1975. Upon receiving the affidavit, he wrote to defendant’s new counsel in order to find out what could be done to him if he signed it.

While his appeal from the dismissal of his amended post-conviction petition was pending, defendant filed pro se an action pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). The gist of the section 72 petition, filed on February 6, 1976, was that the letter from Holt constituted new evidence of perjury. The petition alleged that the perjured testimony was induced by threats on behalf of the prosecution and that the prosecution had knowingly and willfully used such testimony in contravention of defendant’s right to due process of law. The petition, which was supplemented by a copy of the aforementioned letter from Holt, included a request for an evidentiary hearing in order that the defendant would have an opportunity to prove the alleged perjury.

The trial court dismissed the section 72 petition without a hearing on the ground that it was not filed within 2 years of the judgment under attack as prescribed by the statute (Ill. Rev. Stat. 1975, ch. 110, par 72). The appellate court affirmed the trial court’s judgment. Shortly after the decision was filed, defendant received an affidavit signed by Holt in which Holt stated that his perjured testimony at the trial was knowingly and purposefully used by the State. Defendant included the affidavit in his petition for rehearing, which was denied. We granted defendant leave to appeal.

The appellate court declined to consider defendant’s petition as properly within the ambit of section 72 because it was filed outside the 2-year period prescribed by the statute (Ill. Rev. Stat. 1975, ch. 110, par. 72). Rather, the court construed the pro se petition as an amended petition for post-conviction relief, so as to enable defendant to present his issues to the court. (See People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479.) The appellate court held that defendant waived the issue of perjured testimony as a basis for post-conviction relief by failing to include it in his appeal from the trial court’s dismissal of his initial post-conviction petition. 49 Ill. App. 3d 787, 790-91.

The question, properly framed, is whether under the alleged unusual circumstances of this case, defendant should be afforded an opportunity to amend his petition for post-conviction relief at this stage of the proceedings. We think not. We agree with the appellate court that this issue had been litigated in the original post-conviction petition and had been denied. The failure to include this issue in the appeal taken from that denial did not preserve the issue so that it could be raised again in another post-conviction petition. If defendant thought that additional time was required to gather further evidence of the perjury, or to make the necessary showing to the court to obtain an order requiring Holt’s appearance under the Uniform Act, defendant could have obtained further continuances, which the court stated that it would make, or defendant could have withdrawn the petition under the statute and filed it again when the necessary proof was obtainable. This he did not do, but he permitted his petition to be dismissed, and the dismissal was affirmed on appeal.

Defendant’s petition for leave to appeal was granted because of the concern of this court that defendant may possibly have been convicted through the use of perjured testimony. Upon reviewing the entire record, however, it is quite apparent that defendant has been given every opportunity to present the question of perjury to the court, and this question has, in fact, been litigated twice — first in an evidentiary hearing on the amended post-trial motion, the denial of which, as noted earlier, was affirmed in the appellate court (24 Ill. App. 3d 678), and again in the post-conviction-hearing petition, the dismissal of which was appealed and affirmed (39 Ill. App. 3d 656).

Not only has defendant had these two opportunities to specifically litigate the perjury issue, but also he had several opportunities to raise it during the trial, but failed to do so. It is farcical to contend that defendant did not know that Holt committed perjury until Holt yelled from the parking lot to defendant in the county jail, following defendant’s conviction, that he had been pressured into lying at the trial. If defendant had not told Holt that he had “hit a place” and if defendant had not appeared at Holt’s apartment with a gun asking him to conceal it, defendant would have known of the perjury as soon as Holt made these statements in the courtroom. Yet, he never told his counsel of the perjury at any time during the trial. He never told his counsel of the perjury at any time after the trial. He permitted his counsel to file the post-trial motion without mentioning the perjury. Following the denial of counsel’s motion defendant, without communicating with his attorney concerning the perjury, prepared and filed a pro se amended post-trial motion in which, for the first time, Holt’s perjury was mentioned and in which, for the first time, he conveyed to his counsel information concerning the perjury.

This defendant is not a novice. The record reflects several previous convictions, including another conviction for armed robbery, for which defendant had not as yet been sentenced at the time of his trial in this case. He is quite knowledgeable in the area of criminal law and demonstrated this knowledge during his trial. Prior to trial he filed several pro se motions which the court considered before impaneling the jury. At the close of the People’s case, defendant made a pro se motion for a continuance in order to subpoena records concerning Holt and another witness, Bailey, to check for possible felony convictions of these witnesses. Defendant personally argued the motion. He told the court that Holt had stated that he did not want to testify, and he was under the impression that Holt was not going to testify. He told the court that Holt had told him that he had been pressured into signing a statement. When the court denied the motion for a continuance it asked defendant if there was anything else he wanted to say. Defendant did not, in response to that invitation, or at any time while addressing the court, as much as intimate that Holt had testified falsely. Although he had complained that Holt had said that he had been pressured into making a statement, defendant never suggested to the court that Holt had perjured himself on the stand.

Again, at the hearing on the original post-trial motion, defendant was given an opportunity to address the court. He complained only that the State had neglected to inform him or his counsel before trial that Holt had a criminal record. Again the court asked if there was anything further he would like to bring to the court’s attention, and he answered, “No.” Thus, he again failed to mention perjury, which he would have obviously been aware of if Holt had, in fact, lied. Following the denial of this motion, as previously noted, within a few days defendant filed his post-trial motion for the first time alleging perjury. Because of the nature of the allegations, the court strained the .procedural rules to accommodate defendant. Although this motion was filed more than 30 days following defendant’s conviction, and although the original post-trial motion had been considered by the court and denied, the court considered the pro se motion an amendment to the post-trial motion, conducted an evidentiary hearing, and denied the same, which was followed by the appeal, noted previously.

However, following the denial of the pro se motion when the matter again came on for hearing to consider reports filed in connection with the presentence hearing, the court noted that defendant had filed still another motion to vacate and set aside his conviction. The court had commented on the many pro se motions both before and during trial that had been filed by defendant. Upon noting this latest motion, the court was prompted to comment, “As far as this court is concerned there has to be an end to this mickey-mousing around and that end has arrived this morning.”

Defendant has likened his position to that which prompted Mr. Justice Rutledge, in Marino v. Ragen (1947), 332 U.S. 561, 570, 92 L. Ed. 170, 176, 68 S. Ct. 240, 245, when considering the opportunity to present constitutional issues to the court under then Illinois law, to comment: “This opportunity is not adequate so long as they are required to ride the Illinois merry-go-round of habeas corpus, coram nobis, and writ of error before getting a hearing ***.” We do not see the similarity. The procedure was available through which the perjury issue could have been, and in fact was, presented to the court. The court made every effort to accommodate the defendant both at the post-trial-motion stage and during the argument of the post-conviction-hearing petition. Defendant simply failed to take advantage of the means offered.

Obviously, the alleged perjury was not newly discovered evidence. If Holt had in fact lied, the defendant would have been aware of it at the time Holt testified. We are therefore only concerned with whether defendant has had the opportunity to present the issue to the court and whether he has thus been afforded due process of law. For some reason he has not followed through with the opportunities that were presented to him, and now seeks again to litigate the issue in a piecemeal manner.

Proceedings under the Post-Conviction Hearing Act are not intended to be a device by which issues that could have been raised and considered on the original appeal of a conviction can again be considered or by which issues that have in fact been considered on appeal from the original conviction can be relitigated. (People v. Ward (1971), 48 Ill. 2d 117, 121.) The issue of perjury was raised by defendant in his amended post-trial motion, a hearing was held and the relief prayed for denied, and this was affirmed in the appellate court. However, defendant was permitted to again raise the perjury issue in his post-conviction-hearing petition, which the court dismissed, and the dismissal was likewise affirmed. The fact that defendant did not raise the perjury issue on appeal from that dismissal does not preserve the issue to be raised again in still another post-conviction-hearing petition, or in an alleged amendment to the post-conviction petition. (People v. Le May (1969), 44 Ill. 2d 58, 60-61.) The Post-Conviction Hearing Act provides:

“Any claim *** not raised in the original or an amended petition is waived.” (Ill. Rev. Stat. 1975, ch. 38, par. 122-3.)

It was thus incumbent upon defendant to include in his original post-conviction petition all claims concerning his constitutional rights. The petition was dismissed, and on affirmance the judgment was final. Defendant cannot fragment the court’s order by appealing only certain issues and preserving the other issues to be raised again at a later time. That part of the court’s order not appealed became final. The court properly held that the next petition filed, allegedly under section 72 of the Civil Practice Act, was not timely; however, the appellate court, again attempting to accommodate defendant, considered it as a proposed amendment to the post-conviction petition and then properly denied it because the issue had been finally determined in the original post-conviction petition. This court noted in People v. Polansky (1968), 39 Ill. 2d 84, 86, that the granting to a defendant of one complete opportunity to show a substantial denial of his constitutional rights satisfies the fundamentals of due process.

We consider that in this case defendant has been fully accorded the fundamentals of due process of law, and we affirm the judgment of the appellate court.

Judgment affirmed.


text:
    (No. 50217.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES E. SECRET, Appellant.

      Opinion filed September 19, 1978.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Renee Goldfarb, and Richard Heytow, Assistant State’s Attorneys, of counsel), for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The defendant, Charles E. Secret, was indicted for aggravated kidnaping, rape, and deviate sexual assault, in violation of sections 10 — 2, 11 — 1, and 11 — 3, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 10 — 2, 11 — 1, 11 — 3). After a trial by jury, in which he was represented by retained counsel, the defendant was acquitted on the kidnaping charge, but was convicted on the charges of rape and deviate sexual assault. He was sentenced to concurrent terms of not less than 7 and not more than 21 years on each charge. The appellate court affirmed, with one judge dissenting (54 Ill. App. 3d 917), and we granted the defendant’s petition for leave to appeal.

It is not questioned that the defendant had sexual relations with the complainant at the time charged in the indictment. The sole defense is that the State failed to prove beyond a reasonable doubt that the acts charged were done against the will of the complainant.

The offenses were charged to have taken place in the early hours of January 9, 1975, in an apartment occupied by the defendant in a building located in Chicago. The complainant testified that about 9 p.m. on the preceding day she had gone to a bar, which was located just across the street from the apartment building where the defendant lived, and only a short distance from the complainant’s own residence. About an hour after her arrival she observed that the defendant was also in the bar.

The complainant had become acquainted with the defendant about a month and a half before, having met him at this same bar, which each of them frequented. On January 4, the complainant testified, as she was leaving the bar to return to her home, she met the defendant, who was just entering. He followed her outside and told her that he wished to talk to her, and she accompanied him to his apartment. Upon arrival at his apartment the defendant told her that he wished to have sexual intercourse with her, but upon learning that she was in her menstrual period he did not persist. The complainant’s testimony did not show that the defendant used force or the threat of force to induce her to accompany him to his apartment, and no charge is made that he committed any criminal offense on this occasion.

Because of this encounter with the defendant, the complainant testified, she became apprehensive upon seeing him in the bar after her arrival there on January 8. Although he did not molest her or even converse with her, she testified he made her uneasy by staring at her steadily. She first attempted, unsuccessfully, to reach her husband by telephone, and then called a friend named Irene Cady at a bar where the latter was employed. Ms. Cady, who was called as a witness by the State, testified that the complainant had called her between 10:30 and 11 p.m. that evening, and had told her a man was “bothering” her. Ms. Cady advised the complainant to take a cab over to her place of employment. When the complainant said that she had no money with her, Ms. Cady offered to pay the cab fare. The complainant did not go to the other tavern, however, and Ms. Cady did not hear from her again.

The complainant testified that after talking to Ms. Cady, she then called a cab. She did not take this cab, however, because when it arrived, the driver appeared to be drunk. She left the lounge to hail another cab on the street. It was then about 1:30 or 2 a.m. As a cab pulled up and the complainant was about to enter it, the defendant came out of the lounge behind her, grabbed the collar of her coat and told the cab driver to leave. The complainant managed to break loose, and began running down the street, screaming. The defendant, who was 6 feet 5 inches tall, and who weighed 270 pounds, caught up with her, grabbed her, and hit her in the jaw, knocking her to the pavement, she testified. He told her that if she didn’t shut up, he would throw her through the plate glass window of a store in front of which they were then standing. At that the complainant stopped screaming.

The defendant kept hold of the complainant, and pulled her along to the entrance to his apartment building. He dragged her up to his apartment, pushed her inside, and told her to undress. When she failed to do so, the defendant hit her in the head several more times, she said. He started to remove her clothes, tearing some of them in the process, and the complainant thereupon removed the rest of them herself. He compelled her to have intercourse with him, and, following that, to perform two sexually deviate acts. Some time later the complainant observed that the defendant had fallen asleep. She got dressed, left the apartment, and went directly to a police station located about one block away, where she reported the incident. The complainant was unable to specify how much time had elapsed between her arrival at the defendant’s apartment and her departure from it, but the policewoman to whom she talked at the police station testified that the complainant arrived there at 7 a.m.

The policewoman testified that the complainant seemed very nervous and upset, that there were buttons missing from her blouse, and that her slacks were dirty. These articles of clothing were introduced in evidence at the trial. The account of the evening before given to the police by the complainant was substantially the same as her trial testimony summarized above.

The complainant directed police officers to the defendant’s building, and remained outside while they went up to the defendant’s apartment. They told him he was under arrest for rape, and advised him of his Miranda rights. When he asked who the complainant was and was told, the defendant said, “I got a little rough with her last night and she might be mad.” He also stated that the complainant was his girl friend, that after leaving the lounge they had had an argument in the course of which he had hit her, but that she had subsequently come to his apartment and had willingly had intercourse with him. He stated further that she had had intercourse with him on about five previous occasions.

That sexual intercourse with the complainant had taken place was corroborated by stipulated evidence of a medical examination made of the complainant later in the day. No other medical evidence was introduced. The defendant did not testify, and his witnesses gave no testimony materially bearing on the events of the night in question.

In arguing for reversal, the defendant, relying on People v. Faulisi (1962), 25 Ill. 2d 457, 461, contends that in reviewing rape convictions, particularly those in which an act of intercourse is admitted but there is a question whether the complainant consented to it, the court must appraise the evidence with special care. The reason for such a rule, the defendant asserts, is the recognized difficulty in defending against a charge of rape. (See People v. Scott (1950), 407 Ill. 301, 304.) The defendant contends that the majority in the appellate court failed to observe this required standard of review.

To begin, we note that the defendant’s formulation of the standard for review in rape cases calls for some qualification, for this court has also stressed that it is primarily the function of the trier of fact to pass upon the credibility of witnesses and the weight of the evidence. (See People v. DeFrates (1946), 395 Ill. 439, 445; People v. Perez (1952), 412 Ill. 425, 428.) Nor do we agree with the contention impliedly made by the defendant that no conviction for rape can be sustained unless the complainant’s testimony is corroborated by other evidence. This court has held that where the complainant’s testimony is dear and convincing, corroboration is not required. People v. DeFrates (1946), 395 Ill. 439, 445; cf. People v. Szybeko (1962), 24 Ill. 2d 335, 339.

We need not determine, however, the extent to which the standard of review in convictions of rape may be different from that in convictions of other crimes, for we are satisfied that the complainant’s testimony was corroborated here. It was corroborated by the condition of her clothing and by the defendant’s admissions to the police. Her testimony was also corroborated, as that term is used in prosecutions for rape (see, e.g., People v. Damen (1963), 28 Ill. 2d 464, 470, 472-73; People v. DeFrates (1946), 395 Ill. 439, 444), by her reporting the incident to the police after leaving the defendant’s apartment. The two police officers to whom the complainant and the defendant spoke were also called as witnesses.

The defendant makes much of the fact that the complainant’s testimony was that she arrived at the defendant’s apartment about 2 a.m., and that according to the police, she did not arrive at the police station until 7 a.m. The defendant’s counsel suggested in oral argument that the complainant left the apartment much earlier, and thus would have had time enough to go to her own home and alter the condition of her clothes. The defendant thus maintains that the complaint does not qualify as a prompt one.

There is no definite limit of time within which a complaint must be made. (People v. Ristau (1936), 363 Ill. 583, 587.) Obviously no fixed time could be set, since whether an earlier complaint was possible necessarily depends upon the circumstances in which the complainant finds herself. In People v. Mason (1921), 301 Ill. 370, a judgment of conviction of assault with intent to commit rape was upheld although the complainant’s first statement about the assault was not made until two months after the date when it occurred. Until four days previously, however, the complainant had been residing in the home of the defendant and was under his physical control. The court held that under such circumstances the delay in making the complaint was not inconsistent with its truth. (See 301 Ill. 370, 378.) Here the complainant testified that following completion of the third sexual act the defendant remained in close physical contact with her, and that she did not dare attempt to leave until she became sure that he had fallen asleep. We believe that under the evidence the complaint here was made as soon as it was practicable.

In this connection it is important to note that the question here is not whether the complainant’s complaint would qualify as a spontaneous declaration, as to which some immediacy may be required, but whether it qualifies as a corroborative statement. The significance of the latter rests upon the assumption that the victim of a rape would naturally speak out concerning it, and the purpose of its admission into evidence is to negate the presumption that would otherwise arise that no rape had in fact occurred. See People v. Damen (1963), 28 Ill. 2d 464, 472.

The defendant calls attention to the fact that the complainant returned to the same bar only a few days after her earlier encounter with the defendant there. The defendant also suggests that there had been a prior relationship of personal intimacy between the complainant and him. The testimony as to this, however, was confined to a single occasion when the defendant and the complainant danced together a few times at a club dance, and to another occasion when the two were in a shop where the defendant bought the complainant a dress. We do not believe that the jury was required to disregard the complainant’s testimony on the ground that her return to the bar amounted to an invitation to the defendant from which her consent to sexual intercourse must be inferred.

For the reasons given the judgment of the appellate court is affirmed.

Judgment affirmed.