author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY E. WHITE, Defendant-Appellant.
    Second District
    No. 83—740
    Opinion filed December 10, 1984.

      G. Joseph Weller, Paul J. Glaser, and John R. Wimmer, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Tommy E. White, was charged with two counts of theft and one count of burglary in the circuit court of Kane County. All three charges were joined for trial. A jury convicted the defendant of burglary and theft of property under $300 and acquitted him of theft over $300. The trial court sentenced defendant to concurrent terms of probation, three years for burglary, and one year for theft under $300, both sentences of probation, including concurrent six-month jail sentences, to be served at the beginning of the probationary period.

Defendant appeals raising these three issues: (1) whether the charge of burglary was improperly joined for trial with the theft charges; (2) whether the trial court abused its discretion in denying the defendant’s motion in limine regarding evidence of his prior conviction for purposes of impeachment; (3) whether the jury was improperly instructed concerning evidence of statements of the defendant.

The defendant was charged by information with the January 19, 1982, theft of over $300 worth of shock absorbers from the Merlin Muffler Shop in Elgin (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)), with the August 26 or 27 burglary thereof (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1), and by complaint with the October 25 theft from the shop of one pair of shock absorbers valued at less than $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)).

Shortly before 10 p.m. on October 25, 1982, Elgin police officer Redden and his partner were in the area of the Merlin Muffler Shop when they noticed a man standing between two commercial buildings, and saw another man sitting behind the steering wheel of a green Dodge parked near the front door of the business. The two men were asked for identification; the defendant was the man in the car, the one who had been standing between the buildings was Lloyd Johnson, the defendant’s brother-in-law. Defendant explained Johnson had to urinate and that was why he was standing between the buildings. Both men were allowed to depart. Officer Redden later returned to the area where Johnson had been standing, and found on the ground a muffler box inside of which was a box of brand new shock absorbers.

The next morning Officer Redden contacted the defendant at the Merlin Muffler Shop where he worked and asked him to come to the police department to answer some questions. Officers Redden and Kline testified they interviewed the defendant after advising him of his rights, and that he stated he knew someone who was looking for a set of air shock absorbers and the reason he took the shocks from the store was because he needed money for “some food and stuff for his family.” The defendant said Johnson dropped the box the night before when he saw the officers. Officer Redden testified the defendant related, “Usually they insert *** a new air shock box *** inside an old used muffler box, bring it outside and put it in the dumpster during business hours. After the store closes they wait and come back, check, make sure nobody is around the building, take the muffler box with the shock absorber inside the box, bring it out and put it in his truck.”

Officer Kline testified that at the same interview the defendant also admitted his involvement in the felony theft of some shock absorbers from the Merlin Muffler Shop on January 19, 1982. According to Kline, the defendant stated he removed several sets of shock absorbers and put them into a garbage can at the rear of the shop. He later contacted Johnson, who drove to the shop in the defendant’s car and retrieved the shock absorbers. They were later sold and the money split. Kline testified the defendant denied any involvement in the August burglary of the premises at this initial interview, but did admit to such involvement at a later interview that same day. According to Kline’s testimony, the defendant stated that on August 26, 1982, he went to apartment 3-C at the Watch Court apartment complex and met with Archie, Willie, and Lloyd Johnson. The four men talked about ways to make money, and decided to go to the Merlin Muffler Shop and break into the business. They drove to the shop in the defendant’s car, where he broke out a window on the rear overhead door, opened the door and let in the others. This testimony of Officer Kline concerning the events of the August burglary was consistent with the officer’s prior testimony at the preliminary hearing, but differed from his suppression hearing testimony. There, he testified the defendant told him “they” had left a side door unlocked and that he had kicked out a window at the back of the business to make it appear that a burglary had occurred. Continuing with Kline’s trial testimony, he stated the defendant told him that once inside, the four men removed a quantity of shock absorbers, which they put into his car. He then shut the overhead door, and they drove to 513 Jefferson where they unloaded the shock absorbers. The next day the Johnsons retrieved the stolen items and sold them.

Elgin police officer Keeney testified that in the early morning hours of August 27, 1982, he was called to the Merlin Muffler Shop and observed that a window in an overhead garage door at the rear or west side of the building had been broken out. Keeney also observed that a “normal entrance door” for pedestrians on the south side of the building was standing slightly open.

Two other witnesses who testified for the State were Ron De-Rueda, the local district manager for Merlin Muffler, and Charles Davis Hamilton, the shop manager. Hamilton testified concerning his method of inventory control, which enabled him to determine that 15 pairs of air shock absorbers which retailed then at $99.95 each were missing from the shop on January 20, 1982. When he arrived at work on that date, he found a muffler box outside the shop which contained a pair of VT shocks, which are the heavy-duty shock absorbers made for vans or trucks. The deficiency was noted after comparison of actual inventory on hand and the control cards kept by Hamilton. Hamilton also testified that when he arrived at work on August 27 he found a rock lying in the middle of the floor. A window of the overhead door at the back of the building had been broken out, and it appeared that the rock had been thrown from the outside into the shop. Fifteen pairs of air shock absorbers were determined to have been taken from the shop on that occasion also. Hamilton testified that the defendant was employed at Merlin Muffler when both of these incidents occurred. Further, Hamilton testified that no one had been given permission to take the merchandise which was determined to be missing, and that in January and August there were two other employees besides himself and the defendant who worked at the shop.

Ron DeRueda testified Merlin Mufflers, Inc., is a corporation licensed to do business in Illinois and, on cross-examination, he admitted he verified the original information filed against the defendant for the theft of 24 pairs of shock absorbers rather than 15. The number “24” had been arrived at prior to the taking of an official physical inventory. He also admitted past quarterly physical inventories of the shop have at times revealed shortages.

Before the defendant testified, he renewed his pretrial motion in limine to preclude the State from cross-examining him as to the nature of his felony conviction in 1980. He planned to include in his own testimony that he pled guilty to a felony within the last 10 years, but argued that reference to the specific felony, involuntary manslaughter, during cross-examination would be more prejudicial than probative, and should be prohibited. The trial court denied the motion.

The defendant testified he was 30 years old and engaged to be married. During the last 10 years, he was charged with and had pleaded guilty to involuntary manslaughter. In January through October 1982, he was employed at Merlin Muffler Shop, and prior to that time he had worked there on and off for four years and was manager from September 1979 to September 1980. He worked elsewhere for a year and then returned to Merlin. He was assistant manager of the shop and an installer of auto parts prior to his dismissal on October 26, 1982, when he was caught trying to steal a pair of shock absorbers. Although he admitted he tried to steal the shock absorbers on that occasion in order “to feed [his] future family,” he denied he admitted to the police that he was involved in either the January felony theft or the August burglary.

He testified that in February 1982, he observed the shop’s semiweekly janitor, Jeff Manu (spelled phonetically in the record), preparing to leave work with a shopping cart. The manager, Hamilton, found two pairs of VT shock absorbers in the cart. Manu continued to work at the shop, however, and no charges were brought against him. The defendant stated he told the police concerning the January theft that there had been more than one incident of shock absorbers being removed from the shop, and that a lot of people used to hang around the shop. With regard to the August burglary, he testified he did not know who did it, but stated some of his tools had been taken at that time also. He further testified he told the police he would have no reason to burglarize the shop since he worked there every day.

As noted, the jury found him not guilty of the January felony theft, but guilty of the October misdemeanor theft and the August burglary.

Severance

The defendant contends the burglary offense was a separate and distinct offense from the two theft offenses, and that joinder of the charges for trial over his timely objection deprived him of a fair trial. He posits that because the jury called upon to decide his guilt or innocence of burglary was informed of evidence of the other, unrelated theft offenses, he urges his conviction for burglary should be reversed and the cause remanded for a new trial.

The State argues there were ample similarities between the offenses so as to render them one comprehensive transaction. Thus, it argues the offenses were properly joined for trial.

The joinder of related prosecutions is governed by section 114 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 7). It provides:

“The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge.”

Section 111 — 4(a) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. Ill— 4(a)) provides there may be joinder of offenses in a single charge in a separate count for each offense:

“if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.”

Conversely, section 114 — 8 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 8) provides:

“If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.” (Emphasis added.)

After the trial court granted the State’s request to proceed on all the offenses at one time, the defendant moved that the burglary and theft charges be severed for trial to avoid causing him prejudice. He argues his ability to testify or not as to the statements allegedly made by him in reference to each of the offenses would be prejudiced by a joint trial. Further, he argued the facts concerning the commission of the offenses do not amount to a “signature” from which the jury could reasonably infer perpetration of the offenses by him based on an identity of modus operandi.

The State argued that proof of the offenses would involve “much of the same witnesses and evidence”; the items stolen were taken from the same business and the unlawful entry was in the building owned by the same victim; and there was a common codefendant whom the State “may or may not want to call to testify.” The prosecutor argued:

“[Ejvidence of *** the Defendant making — or doing these transactions is part of a — certainly would indicate a common plan or a scheme to — to steal similar items from this particular business, because, apparently, it worked once, he had a chance to do it again, and this is exactly what happened.”

Although acknowledging the burglary occurred six or seven months after the felony theft, the prosecutor argued it nonetheless evidenced a continuing comprehensive transaction because it involved the same business, the same type of automotive item, and same motivation, and the modus operandi “was quite similar.” Defense counsel retorted that joinder of the charges for trial was not related to any similarity in modus operandi; rather, it was an attempt “to create the inference that in fact if [the defendant] is charged with three of these things from the same shop [where] he was the employee, then in fact he must be doing them.”

Based on our review of the record, we conclude the trial court did not abuse its discretion in denying severance of the theft and burglary charges for trial.

Illinois cases which preceded enactment of section 111 — 4 of the Code established the rule that a defendant cannot, over his properly made objection, be placed on trial under an indictment charging separate offenses when it affirmatively appears they are not part of one and the same transaction, but are separate and distinct both in law and fact (People v. Fleming (1970), 121 Ill. App. 2d 97, 102), nor may a defendant be forced to trial under indictments charging disassociated felonies. (People v. Benka (1983), 117 Ill. App. 3d 221, 223; People v. Woods (1961), 23 Ill. 2d 471.) Although it has been stated that joinder is not permitted when the charges are unrelated, where the crimes occur several days apart, or where there is no concerted plan of action or scheme that would link two felonious acts (People v. Daniels (1976), 35 Ill. App. 3d 791), the “better view” has been held to be that the time involved does not automatically eliminate the several acts from the category of a comprehensive transaction. People v. Kinion (1982), 105 Ill. App. 3d 1069, 1073, cert. denied (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256, citing with approval People v. Hyche (1978), 63 Ill. App. 3d 575, 578.

The consolidation of separately charged offenses for a single jury trial rests within the sound discretion of the trial court (People v. Higgins (1979), 71 Ill. App. 3d 912), as does the decision whether to sever charges for trial. (People v. Bradley (1979), 73 Ill. App. 3d 347, 351.) The discretion to be exercised is not arbitrary discretion (People v. Meisenhelter (1942), 381 Ill. 378, 384), but judicial discretion, exercised so as to prevent injustice. (People v. Patris (1935), 360 Ill. 596, 601.) No precise test has emerged for determining whether separate offenses are part of the same “comprehensive transaction,” and each case turns largely upon the facts presented. (People v. Sockwell (1977), 55 Ill. App. 3d 174, 175.) The trial court is clothed with substantial discretion in ruling on a motion to sever (People v. Peterson (1982), 108 Ill. App. 3d 856, 860), and absent an abuse of discretion, the trial court’s judgment whether to sever or not will not be reversed. People v. Reynolds (1983), 116 Ill. App. 3d 328, 335; People v. Mikel (1979), 73 Ill. App. 3d 21, 27.

The critical question is whether the defendant’s two or more acts were part of “the same comprehensive transaction” (People v. Bricker (1974), 23 Ill. App. 3d 394; People v. Petitjean (1972), 7 Ill. App. 3d 231); if they are not, the trial court abuses its discretion in not granting the motion for severance. (People v. Bricker (1974), 23 Ill. App. 3d 394, 396.) Important factors to be considered by the trial court in determining whether to sever charges for trial include the proximity of time and location of the various charges and the identity of evidence which would be presented to prove each charge. People v. Mikel (1979), 73 Ill. App. 3d 21, 27. Accord, People v. Freeland (1981), 103 Ill. App. 3d 94, 98.

The term “comprehensive” is defined variously as an adjective meaning “dealing with all or many of the relevant details; including much; inclusive” (Webster’s New World Dictionary 292 (2d ed. 1972)); or as meaning “of large scope; covering or involving much; inclusive” (Random House Dictionary of the English Language 302 (1967)). “Same,” of course, is commonly understood to mean “being one or identical though having different names, aspects, etc.; agreeing in kind, amount, etc., corresponding.” (The Random House Dictionary of the English Language 1264 (1967).) “Same in one sense implies that what is referred to is one thing and not two or more distinct things and, in another sense, implies reference to things that are really distinct, but without any significant difference in kind, appearance, amount, etc. Webster’s New World Dictionary 1258-59 (2d ed. 1972).

The defendant’s position here is that the burglary was remote in time from both the first and second theft offenses, seven and two months respectively. Further, he argues the State’s evidence showed the burglary had a completely different modus operandi from the theft offenses. They involved employee theft during business hours, whereas the burglary offense involved a forced entry into the premises at night.

The defendant necessarily acknowledges that the identity of the location of the offenses was the same and, as noted previously, the fact the offenses did not occur immediately one after the other does not automatically eliminate the several acts from the category of a comprehensive transaction, since the mere passage or nonpassage of time is not determinative of whether charges have been properly joined. People v. Hyche (1978), 63 Ill. App. 3d 575, 578.

The State argues there was an identity of witnesses which justified joinder here, but the defendant points out it is the identity of the evidence given by the witnesses which provides a link between the offenses and which is important in determining whether joinder was proper. In this regard, he asserts that the testimony given by Officer Kline concerning the defendant’s two separate interviews fails to give rise to an identity of evidence providing a link between the two offenses. The defendant states he can find no evidence of any discussion during the second interview concerning the thefts, and that the first interview which did concern the thefts contained only his denial of any knowledge or involvement in the burglary. In our opinion, the defendant’s view of the evidence overlooks the forest for the trees. It is indisputable that the State presented testimony which showed the unauthorized removal on three occasions of shock absorbers from the Merlin Muffler Shop by the defendant, acting in concert with one or more persons, and the conversion of the contraband on each occasion into cash proceeds. The record shows the defendant initially denied any involvement in the burglary but later admitted the details of the burglary when the police told him they already knew everything. Officer Kline testified at the suppression hearing that the defendant told him that “they” had left a side door unlocked, that “he” had gained entry through the unlocked door, and that “he” kicked out a window at the back of the business to make it appear that a burglary had occurred. Details of the defendant’s purported statement to the police were substantially corroborated by other testimony presented at trial. The shop manager, Hamilton, testified there was a window broken out of the overhead door at the back of the building, and that a rock, apparently thrown from outside, was lying in the middle of the floor. Officer Keeney testified a window in an overhead garage door at the rear of the west side of the building had been broken out, and that a “normal entrance door” for pedestrians on the south side of the building was standing slightly open. The defendant admitted at trial he was trying to steal the shock absorbers on October 25 when he and Johnson were interrupted by the presence of the police. He testified, however, that he told the police he did not break into the shop in August and that he would have no reason to do so since he worked there every day.

The evidence presented in this case in order to prove the three offenses was not so voluminous or potentially confusing to the jury as to militate against joinder. (Cf. People v. Kinion (1982), 105 Ill. App. 3d 1069, 1075, cert. denied (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256 (severance would have resulted in voluminous duplication of the evidence).) Additionally, the evidence strongly shows that in all three instances the defendant capitalized on his position of employment in order to facilitate removal of the property owned by his employer from the place of his employment, and that conversion of the contraband into ready cash was accomplished by someone other than himself.

Based on the record, it is not unreasonable or illogical to believe the change in the “usual” means of removing the shock absorbers from the packaging switch/dumpster/retrieval method to the burglary format was strictly an attempt to vary the modus operandi in order to draw police suspicion away from an employee theft theory. As such, the theft and burglary offenses were, in the large comprehensive view, part of the same general transaction or scheme. The offenses constituted concerted, systematic theft from the Merlin Muffler Shop over a period of time. Cf. People v. Hyche (1978), 63 Ill. App. 3d 575, 578 (where joinder was upheld in the case where both the narrow and larger view of the comprehensive transaction was that the offenses were criminal efforts to avoid apprehension); People v. Reynolds (1983), 116 Ill. App. 3d 328 (where denial of severance was upheld on record which showed second offense occurred as an outgrowth of the first in that the defendant was fleeing the scene of the first offense, was stopped for speeding by a police officer, whom defendant then robbed, and when, after the defendant drove away in the squad car, evidence discovered in the defendant’s own abandoned vehicle linked him with the first offense); People v. Kinion (1982), 105 Ill. App. 3d 1069, 1074, cert. denied, (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256 (where an indictment charging 63 counts of felony theft was upheld where the defendant systematically converted funds from the city over a period of years despite the use of different techniques in accomplishing the conversion).

We conclude the trial court did not abuse its discretion in denying severance in this case.

Evidence of prior conviction

The defendant asserts the court abused its discretion when it denied his motion in limine to preclude revelation of the exact nature of his prior conviction for involuntary manslaughter. Defendant argues the mere fact of his conviction for a felony, without specifying the exact nature of that felony, would have been adequate to apprise the jury of his “previous disrespect for societal order” insofar as it might be viewed as affecting his credibility as a witness. (People v. Wright (1977), 51 Ill. App. 3d 461, 466 (Reardon, J., specially concurring).) He contends that involuntary manslaughter has no greater relation to testimonial veracity than any other felony, yet its potential for prejudice in this case was very great since it informed the jury that he was a “killer.”

The State contends this issue has been waived because the defendant “only mentionfed] the error in admitting the offense at all, not in the name of the offense.”

We do not believe that the issue has been waived. The defendant’s post-trial motion charged it was error for the trial court to have denied his motion in limine, and the record clearly shows the basis of counsel’s argument immediately prior to placing the defendant on the stand was identical to the contention raised here.

Alternatively, the State argues there was little danger of unfair prejudice in naming the offense since it was dissimilar to the crimes for which the defendant was being tried. (Cf. People v. Ellison (1984), 123 Ill. App. 3d 615 (generally, the more similar the prior and present offenses are, the more danger of unfair prejudice).) Further, if the jury remained uninformed as to the nature of the prior felony conviction it would be unable to decide how directly that offense related to the defendant’s testimonial veracity.

We find no abuse of the trial court’s discretion in denying the motion in limine.

The record shows that the trial court heard arguments of counsel and considered the Montgomery balancing test before deciding the motion. (People v. Montgomery (1971), 47 Ill. 2d 510.) Justice Rear-don’s special concurrence in People v. Wright (1977), 51 Ill. App. 3d 461, 465-66, expressed the view that “any recent criminal conviction *** can and should be used to impeach a witness if its probative value outweighs its prejudicial effect.” Further, it was stated there “that the proper interpretation of the rule stated in Montgomery is that any offense, the punishment for which could result in a penitentiary sentence of one year or more or a sentence of death, is presumed to relate to honesty and veracity.” (51 Ill. App. 3d 461, 466.) Thus, even an offense not directly involving honesty nevertheless is probative for impeachment purposes. Accord, People v. Guthrie (1978), 60 Ill. App. 3d 293; see People v. Spates (1979), 77 Ill. 2d 193, 204 (conviction for a violent felony is presumed to relate to testimonial deceit).

As to revelation of the specific nature of the prior conviction, we agree with the State’s argument that the nature of the felony was virtually an indispensable tool in the jury’s task in assessing the defendant’s credibility. In our view, whatever untoward prejudice may have inured to the defendant by specifically naming the felony might as easily have been otherwise greatly exacerbated by withholding that information from the jury, which would then be free to imagine that the defendant had been convicted of an even more repugnant or more intentional crime. Whether the jury would perceive the defendant to be a “killer” is conjecture; the gist of involuntary manslaughter is recklessness (People v. Frank (1981), 98 Ill. App. 3d 388, cert. denied (1982), 456 U.S. 927, 72 L. Ed. 2d 442, 102 S. Ct. 1973), and the intent to kill or injure is not an element of that offense (People v. Platter (1980), 89 Ill. App. 3d 803, 821).

We perceive no error in the trial court’s refusal to preclude mention of the specific nature of the defendant’s prior conviction. We note the jury here was properly instructed that evidence of the defendant’s prior conviction was not to be regarded by it for any purpose other than as it related to his credibility.

Instructions

The defendant contends plain, reversible error occurred when the jury was improperly instructed concerning the statements made by him in that one of the bracketed, optional phrases of Illinois Pattern Jury Instructions (EPI), Criminal, Nos. 3.06-3.07 (2d ed. 1981) was omitted; that is, the jury was instructed that it was for it to determine what weight should be given to the defendant’s statements, but not that it was also for it to determine “whether the defendant made the statement[s].” (Emphasis added.) (IPI Criminal Nos. 3.06-3.07.) Although acknowledging that he failed to properly preserve the instructional error he seeks to raise here, the defendant urges this court to consider the issue as provided under Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)). That is, “substantial defects [in instructions] are not waived by failure to make timely objections thereto if the interests of justice require.” Defendant argues the lack of the proper instruction deprived the jury of its province to consider “the most important factual issue in the case” since “without the defendant’s confessions there would have been insufficient evidence to convict him.”

The State concedes that People v. Cook (1965), 33 Ill. 2d 363, cited by the defendant, holds that where a defendant denies making the statements attributed to him, he is entitled to an instruction directing the jury to determine not only the weight' to be given the statements, but also to determine whether the statements were, in fact, made at all.

The State argues that any error in this regard has been waived, however, due to the defendant’s failure either to object to, or point out the insufficiency of, the instruction, offer the correct instruction, or raise the issue in his post-trial motion. Further, it asserts the instructional error does not amount to a substantial defect warranting reversal. It points out there is strong evidence the jury knew it was free to accept or reject the evidence that the defendant had made the statements, since it acquitted him of one of the charges to which its evidence showed he confessed. Additionally,. defendant’s counsel’s closing argument focused on the defendant’s contention that he had only confessed to one of the three offenses, and denied confessing to the other two.

The defendant has waived this issue, and the record supports the conclusion that invocation of the plain error exception to the waiver rule created by Supreme Court Rule 451(c) is not warranted here. (87 Ill. 2d R. 451(c).) Our supreme court has repeatedly emphasized the limited nature of the plain error exceptions to Rule 451(c) waiver, restricting it

“to the correction of ‘grave errors’ (People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Jenkins (1977), 69 Ill. 2d 61, 66) or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Joyner (1972), 50 Ill. 2d 302, 307.” People v. Huckstead (1982), 91 Ill. 2d 536, 544.

As noted by the State, the fact defense counsel emphasized the defendant denied making statements admitting his complicity in two of the three offenses, combined with the fact the jury acquitted him of one of the offenses he denied confessing to, indicates the error was not “grave.” The jury apparently felt no restriction in totally rejecting the evidence of the defendant’s statement confessing his participation in the "January felony theft. Additionally, despite defendant’s conclusionary contention to the contrary, the evidence was not so closely balanced that “without the confessions” his convictions could not be sustained. Although defendant denied two of the statements, Officers Redden and Kline testified the defendant made the statements, and circumstantial evidence corroborative of the details of the defendant’s statements was presented at trial. It is axiomatic that in order for a conviction based on a confession to be sustained, the confession must be corroborated, and this requirement is satisfied by proof of the corpus delicti. (People v. Jordan (1983), 114 Ill. App. 3d 16.) In establishing the corpus delicti,

“ ‘there must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt of the defendant). Accord, McCormick, Evidence sec. 158, at 346-47 (2d ed. 1972).’ People v. Willingham (1982), 89 Ill. 2d 352, 359-60, 432 N.E.2d 861, 864-65.)” People v. Jordan (1983), 114 Ill. App. 3d 16, 23.

This issue was waived, and no plain error warranting reversal is evident.

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

Affirmed.

HOPE and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    ANNA TOSH, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee). SANDRA J. MALLDER, Adm’x of the Estate of Cynthia Jo Mallder, Deceased, Plaintiff-Appellant, v. SAMUEL D. SCOTT et al., Defendants (Martin J. Scott, Defendant-Appellee).
    Third District
    Nos. 3—84—0094, 3—84—0139 cons.
    Opinion filed December 14, 1984.
    Dennis R. Fox, of Califf, Harper, Fox, Dailey & Slover, of Moline, for appellant Anna Tosh.
    Raymond J. Conklin, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant Sandra J. Mallder.
    Samuel S. MeHard, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The captioned cases present a single issue and are consolidated for the purpose of determination. The issue presented for review is whether a cause of action exists for the negligent sale of an automobile. The trial court determined that no cause of action existed and granted in each case the defendant Martin J. Scott’s motion for a summary judgment.

These cases arose out of an automobile accident which involved an automobile driven by the plaintiff Anna Tosh in which plaintiff Mallder’s decedent, namely Cynthia Jo Mallder, was a passenger. The vehicle was involved in a collision with an automobile operated by Samuel D. Scott. As the result of the accident, plaintiff Tosh was injured and Cynthia Jo Mallder died of injuries sustained. Multicount complaints were filed, and certain counts were directed against the defendant Martin J. Scott.

The counts pertinent to this appeal allege that the defendant sold his automobile to his adult son, Samuel D. Scott, and that the father, Martin, was negligent in that at the time he effected the sale he knew or should have known that his son, the purchaser, did not have a valid license to operate the vehicle; that his son had a severe and extreme drinking problem; that his son had been convicted on at least three prior occasions of operating a vehicle while under the influence of intoxicating beverages, and that there was a reasonable likelihood that the son would operate the vehicle he purchased from his father while under the influence of intoxicating liquor. The alleged liability of Martin J. Scott was predicated on the negligent sale of the automobile to his son.

In confronting the issue presented in these appeals, it should be noted at the outset that there are no Illinois cases imposing liability for the negligent sale of an automobile. The plaintiffs attempt to equate the sale of a motor vehicle with negligent entrustment cases. Such theory cannot be supported, since an essential element of a negligent en-trustment cause of action is the defendant’s ownership or right to control the vehicle. This element in the instant cases is missing. In the instant cases, it is uncontested that the father’s sale to his son was a bona fide arms-length transaction which occurred three weeks before the accident. That it was a bona fide sale is attested to by a cancelled check and certificate of title. At the time of the sale, the defendant removed his license plates from the vehicle and his son attached to the vehicle an “Illinois License Applied For” and an Illinois temporary registration permit. It is further noted that the son also owned another vehicle, a van. The decision as to which vehicle he should drive on the date of the accident was entirely within the son’s discretion.

As a matter of public policy, liability should not be extended to a seller as the plaintiffs seek to do in the instant cases. In a similar case, the appeals court of the State of Tennessee made the following observation:

“If a father incurs liability by giving an automobile to his son, knowing him to be [a] drunken or incompetent driver, when would it end? Would it last for the life of the automobile? Would it apply to a new automobile in the event of a trade-in? Or would liability attach to a dealer who sold an automobile to a known incompetent or drunken driver? Or to a filling station operator who sold such person gas, knowing of his propensity?
*** The very paucity of authorities on this interesting question leads to the belief that such liability is not recognized in other jurisdictions.” Brown v. Harkleroad (1955), 39 Tenn. App. 657, 665, 287 S.W.2d 92, 96.

While, as heretofore stated, there is no Illinois case dealing precisely with the cause of action for a negligent sale of an automobile, an indication of our court’s views on such an issue can be found in the case of Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19. In that case it was held by the reviewing court that a passenger in another’s car cannot be liable when, knowing that the owner-driver is intoxicated, nevertheless asks the owner-driver to take him home, only to have the owner-driver run down a pedestrian.

The court in Fugate stated as follows:

“The Illinois rule is well settled, and is in accord with that of other jurisdictions. The liability for the damage caused by the negligent act of a driver does not attach against a person other than the driver, unless that person is the owner or has the right to control the vehicle. [Citations.]” 84 Ill. App. 3d 573, 575, 406 N.E.2d 19, 21.

The court in Fugate, in addressing the policy question, stated as follows:

“While creating a new duty would assist injured plaintiffs by spreading the loss among a new class of defendants, up to now society has been satisfied to rely upon the liability of the driver alone to adequately compensate injured plaintiffs. The fortuitous circumstance of one driver’s inability to pay for damages he has caused should not be a reason to open new arenas of liability in search of perfect compensation schemes. Finally, as discussed above, the driver in this case bore final responsibility for the consequences of his decision. The policy of requiring individuals to take responsibility for their own acts militates against the creation of a new duty.” 84 Ill. App. 3d 573, 577, 406 N.E.2d 19, 22.

For the reasons set forth, the action of the circuit court of Rock Island County in granting summary judgment to the defendant in the instant cases is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


text:
    JESSIE M. WILLIAMS, Plaintiff-Appellant, v. DANLEY LUMBER COMPANY, Defendant-Appellee.
    Second District
    No. 84—0009
    Opinion filed December 14, 1984.
    E. A. French, of Waukegan, for appellant.
    Bonita L. Stone, of Katten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Jessie M. Williams, plaintiff, appeals from a summary judgment in favor of Danley Lumber Company, defendant, in her “damage to credit” action in the circuit court of Lake County. In her brief on appeal, she states that there were several genuine issues of fact which should have precluded the entry of summary judgment. We affirm the trial court, however, on the basis that her brief fails to set out a cogent argument in support of her position that the judgment of the circuit court should be reversed.

A reviewing court is entitled to have the issues clearly defined, with pertinent authorities cited and a cohesive legal argument presented. (In re Marriage of Souleles (1982), 111 Ill. App. 3d 865, 869.) The appellate court is not simply a depository in which the appealing party may dump the burden of argument and research. (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26.) We may deem waived any issue which has not been sufficiently or properly presented to this court for review. 109 Ill. App. 3d 824, 826.

The argument section of the plaintiff’s brief here posits that several genuine issues of fact were presented and then proceeds to identify these issues. We note that she does not state that these questions of fact were material. First, she claims that defendant’s breach-of-contract action was prematurely filed. She does not explain how that contention has any bearing on her complaint, inasmuch as she never alleged that the suit was prematurely filed or that its premature filing caused damage to her credit. Next, she suggests that “poignant” questions of fact exist as to whose duty it was to file the stipulation to dismiss the action. She does not attempt to explain the materiality of this inquiry. Finally, she argues that questions of fact exist as to why defendant’s attorney failed to follow up on the motion to vacate the default judgment. In raising this question, she asserts that defendant’s attorney’s explanation in his affidavit is not dispositive since the attorney admitted his misunderstanding of the court’s procedures. However, the attorney stated that it was his understanding that the presence of an attorney was not necessary to have a hearing on the motion to vacate. Plaintiff never filed a counteraffidavit to contradict that statement describing the normal procedure in the circuit court of Cook County. Therefore, the affidavit establishes that defendant’s attorney did not act negligently or intentionally in not following up on the motion to vacate and that the failure of that motion to vacate the judgment lay elsewhere. Therefore, this argument is totally inadequate for this court to consider the merits of the plaintiff’s appeal.

Furthermore, plaintiff has failed to cite any case law establishing that the questions she raises on appeal are material. Although the “Points and Authorities” section lists several cases, those cases merely present general statements of the law regarding summary judgments and do not pertain to plaintiff’s cause of action. This failure is fatal, since it is unclear from plaintiff’s pleading and her brief what cause of action she is alleging — an intentional tort or negligence. Consequently, the materiality of the questions of fact which she raises as being disputed has not been established.

For the above reasons, we conclude that the judgment of the circuit court of Lake County must be affirmed.

Judgment affirmed.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    ALEXANDER GORR, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellants.
    Second District
    No. 84—467
    Opinion filed December 14, 1984.
    Stephen J. Culliton, of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellants.
    Wayne B. Giampietro and Gregory N. Freerksen, both of DeJong, Poltrock & Giampietro, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Alexander Gorr, the chief of police of the village of Addison, filed his complaint in the circuit court of Du Page County seeking review under the provisions of the Code of Civil Procedure, formerly known as the Administrative Review Act (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), of a final administrative decision of the board of fire and police commissioners of the village of Addison discharging him as a police officer of the village, and naming the board, its commissioners individually, and the village trustees individually, as defendants. A motion to stay the decision of the board was thereafter filed by plaintiff pursuant to section 3 — 111(a)(1) of the Code. Subsequently, the trial court, after considering transcripts of portions of the administrative hearings, issued an order staying the decision of the board and reinstating plaintiff to his position pending a full hearing on the complaint for review of the administrative decision.

Defendants have taken this interlocutory appeal from the stay order raising numerous issues relating to the denial of defendants’ motion to dismiss the motion for the stay order and to the merits of the trial court’s decision to issue a stay order.

Although not directly raised by the parties, we sua sponte have a duty to consider our jurisdiction to hear this appeal and to dismiss the appeal if jurisdiction is wanting. Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539; Village of Mundelein v. Aaron (1983), 112 Ill. App. 3d 134, 445 N.E.2d 57; Allabastro v. Wheaton National Bank (1980), 91 Ill. App. 3d 222, 414 N.E.2d 537.

The authority of the trial court to issue an order staying the decision of an administrative agency pending final disposition of the case, which was requested here, is provided by section 3 — 111(a)(1) of the Code as follows:

“Sec. 3 — 111. Powers of circuit court, (a) The Circuit Court has power:
(1) with or without requiring bond (except if otherwise provided in the particular statute under authority of which the administrative decision was entered), and before or after answer filed, upon notice to the agency and good cause shown, to stay the decision of the administrative agency in whole or in part pending the final disposition of the case ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 111(a)(1).)

The issuance of a stay order is clearly an interlocutory order and not a final judgment, as it does not determine the issues presented by the pleadings which would ascertain and fix absolutely and finally the rights of the parties in the lawsuit. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217.) Appeals from interlocutory orders are governed by Supreme Court Rules 306, 307, and 308. 87 Ill. 2d Rules 306, 307, and 308.

Appeal from the stay order entered here clearly is not provided for in Rule 306. Defendants did not bring this appeal pursuant to Rule 308 by requesting permission to appeal a question of law under the provisions set forth in this rule. It is apparent from the briefs that both parties assume the stay order has the effect of an injunction and is appealable as a matter of right under Rule 307(a)(1), which allows appeal from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” 87 Ill. 2d R. 307(a)(1).

While there are Illinois Appellate Court decisions which are apparent authority for the proposition that the standards applied in staying a decision of an administrative body are equivalent to those applied in granting injunctive relief and in which the appellate court applied those standards in reviewing a stay order (see, e.g., Coordinating Committee of Mechanical Specialty Contractors Association v. O’Connor (1980), 92 Ill. App. 3d 318, 320-21, 416 N.E.2d 42; Cahokia Sportservice, Inc. v. Illinois Liquor Control Com. (1975), 32 Ill. App. 3d 801, 805-06, 336 N.E.2d 276; but see Moore v. Mankowitz (1984), 127 Ill. App. 3d 1050, 469 N.E.2d 1133), it does not appear that the appealability question present under the particular facts here was considered. Also, in Cahokia Sportservice, upon which Coordinating Committee relies, injunctive relief was specially sought along with the stay order provided for under the former Administrative Review Act. We also recognize that in determining what constitutes an injunction order subject to interlocutory review, the courts look to the substance rather than to the form. See Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 180-81, 303 N.E.2d 1.

The stay order issued in this case is specifically provided for in section 3 — 111(a)(1) of the Code of Civil Procedure, and its issuance is limited to proceedings to review an administrative decision “upon notice to the agency and good cause shown” to stay the decision of the administrative agency pending the final disposition of the case by the trial court. The proceedings for plaintiff’s discharge were brought under section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—17), which itself makes no specific provision for a stay pending administrative review except as is provided in section 3 — 111(a)(1).

If an interlocutory stay order or a denial thereof under section 3 — 111(a)(1) were to be reviewable, our supreme court would have specifically provided for such an appeal as it has done for the interlocutory appeals enumerated in Rules 307(aXl) through (aXT). Under the statutory procedure utilized here for issuance of a stay order, we conclude the interlocutory order is not specifically reviewable under Rule 307, and we do not equate this issuance or denial of a stay order under section 3 — 111(a)(1) as establishing the equivalent of in-junctive relief for which Rule 307(a)(1) allows an interlocutory appeal.

We believe that the authority to issue a stay order as provided in section 3 — 111(a)(1) was intended to give the trial court broad judicial discretion to grant or deny a stay of the administrative decision, in whole or in part, pending judicial review, exclusive of any relief which might be obtainable under section 11 — 101 et seq. of the Code of Civil Procedure (formerly the Injunction Act) (Ill. Rev. Stat. 1983, ch. 110, par. 11 — 101 et seq.). Thus, where temporary relief is sought under section 3 — 111(a)(1), the court in its careful exercise of judicial discretion may grant a stay of the administrative decision upon “good cause shown” without applying the traditional standards applicable for issuance of an injunction. No interlocutory appeal is provided for in the supreme court rules for review of a stay order issued or denied pursuant to section 3 — 111(a)(1).

Nonetheless, a party seeking to preserve the status quo pending judicial review of an administrative agency’s decision may choose instead to seek injunctive relief under section 11 — 101 et seq. of the Code, which requires that party to meet its burden on the standard issues necessary for the granting of injunctive relief. An interlocutory order granting or denying injunctive relief is appealable under Rule 307(a)(1). As the stay order was specially sought here pursuant to section 3 — 111(a)(1), appeal from its issuance is not authorized.

For the foregoing reasons, the appeal is dismissed.

Dismissed.

NASH, P.J., and HOPF, J., concur.

      We note that at oral argument on November 20, 1984, the parties informed this court that the trial judge had not yet rendered a decision on the merits even though the cause was fully argued and submitted to him in July 1984. A prompt decision below may have obviated judicial review of the stay order and conserved judicial and litigant resources.

      The parties and the court in the proceedings below appear to have considered the principles applicable to injunctions. However, on appeal the parties do not agree that the requirements for injunctive relief are relevant, and plaintiff contends that he specifically sought relief under section 3 — 111(a)(1), which requires only a showing of good cause.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIE A. HOYT, Defendant-Appellant.
    Second District
    No. 84—0083
    Opinion filed December 10, 1984.

      Marie A. Hoyt, of Dwight, pro se, and G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorney Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

On March 17, 1983, defendant, Marie A. Hoyt, pleaded guilty to retail theft of property in excess of $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 3(a)) and theft of property under $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)), which was enhanced to a felony by reason of a prior theft conviction. Defendant was then sentenced to two consecutive two-year terms of probation on the offenses.

On November 30, 1983, the State filed a petition to revoke defendant’s probation on the ground that she violated an imposed condition when she was subsequently arrested and convicted of an unrelated felony retail theft in Du Page County court case No. 83— CF — 990. The record reveals she was found guilty and sentenced to a three-year term of imprisonment on that offense. Prior to admitting to the allegations contained in the State’s petition to revoke probation, defendant was admonished that she was entitled to a hearing at which the State would have the burden of proving its allegations by a preponderance of the evidence, to present witnesses, and to confront witnesses against her. Defendant was further informed by the court that her sentence of probation could be revoked and she could be resentenced to the same sentence that might originally have been imposed on the original offense. The court further stated that the maximum penalty she was still subject to was a term of two to five years of imprisonment on the original retail theft offense. After acknowledging the court’s warnings, defendant admitted that the allegations contained in the State’s petition to revoke probation were true. Based upon defendant’s admission, the lower court entered a finding that the allegations had been admitted and sentenced defendant to a three-year term of imprisonment on the original offense, which was to be served consecutive to the three-year sentence previously imposed on the unrelated Du Page County theft offense.

Defendant raises three issues on appeal arising from the revocation of her probation and imposition of a consecutive sentence: (1) whether the imposition of a consecutive sentence was based upon a finding that it was necessary to protect the public from further criminal activity; (2) whether the sentence was excessive; and (3) whether defendant’s admission to the allegations in State’s petition to revoke probation was made knowingly and voluntarily, since she was not admonished on the possibility of a consecutive sentence.

Defendant first contends that her two consecutive three-year terms of imprisonment should be modified to run concurrently because the lower court failed to determine that a consecutive term of imprisonment was necessary to protect the public from her further criminal conduct. Defendant additionally maintains that such a finding is unsupported by the record.

Section 5 — 8—4(b) of the Unified Code of Corrections provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(b).)

While it is the better practice for the trial court to employ the statutory language in rendering its decision and expressly note that a consecutive sentence is necessary for the protection of the public, failure to do so does not necessarily require reversal. (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473; People v. Pittman (1982), 93 Ill. 2d 169, 177-78, 442 N.E.2d 836.) “ ‘What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public’.” (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473; People v. Pittman (1982), 93 Ill. 2d 169, 177-78, 442 N.E.2d 836.) Furthermore, it is equally settled that a reviewing court should not substitute its judgment or preference for that of the sentencing court absent a clear abuse of discretion. People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473.

Defendant in the present case has a long history, beginning in 1974, of theft and drug-related convictions, including six prior theft convictions and four theft offenses for which she was given supervision. This criminal conduct is directly connected to defendant’s admitted heroin addiction, which she has unsuccessfully attempted to control. In evaluating its decision to impose a consecutive sentence, the trial court noted defendant’s particular dilemma and propensity toward criminal activity when it specifically stated that:

“[T]he court is aware of the history of Miss Hoyt, having been in this Court prior occasions, and the Court having had an opportunity to sentence her on a prior occasion to a form of probation. I think at the time I expressed to you, Miss Hoyt, that I considered that to be your last chance as far as rehabilitative efforts for drugs were concerned. Your failure on that occasion would result in some sort of sentence being imposed.
All I can say is that you have had your opportunity. You have demonstrated to me that you are not worthy of belief or consideration, or that apparently the drug habit is so deeply entrenched that even if you had good intentions, you are not able to follow them.”

While the sentencing judge did not specifically adhere to the preferred statutory language in support of his decision, it is apparent from his statements that the court was convinced that defendant presented a danger to the public by reason of her past criminal history (see People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836), her propensity toward criminal conduct, and her failure at rehabilitative efforts. Under these circumstances, we conclude that the record discloses that the trial court’s imposition of a consecutive sentence on the original theft offense is necessary for the protection of the public and the consecutive sentence did not amount to an abuse of discretion.

Defendant next contends that her consecutive sentence is excessive and should be reduced because it is disproportionate to the nonviolent nature of the theft offense and fails to provide for her rehabilitative potential. Specifically, she maintains that, her sentence violates article I, section 11, of the Illinois Constitution, which provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, sec. 11.

Initially we note that defendant has not cited, nor are we aware of, any authority which restricts the imposition of consecutive sentences solely to crimes of violence. Indeed, consecutive sentences have been properly imposed under circumstances similar to the present case where two theft offenses are involved. See e.g., People v. Peebles (1984), 125 Ill. App. 3d 213, 223, 465 N.E.2d 539; People v. Boone (1977), 55 Ill. App. 3d 83, 90-91, 370 N.E.2d 673.

Defendant is correct, however, that a sentencing judge must, in addition to the seriousness of the offense, give adequate consideration to defendant’s rehabilitative potential. (People v. Matthews (1984), 126 Ill. App. 3d 710, 716, 467 N.E.2d 996.) A trial court is faced with the difficult task of fashioning a sentence which would strike an appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) The trial judge is present during the course of the trial and sentencing hearing and is thus in a far superior position to evaluate the appropriate sentencing factors than is a court of review. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) As stated above, his decision is entitled to great deference and will not be disturbed on review absent an abuse of discretion. People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473.

In the case at bar, defendant originally pleaded guilty to the felony offense of retail theft, a Class 3 felony which carries a possible sentence of not less than two years’ and not more than five years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(6).) The record is clear that, before imposing a term of imprisonment, the sentencing judge evaluated the presentence reports, arguments of counsel, defendant’s propensity toward criminal conduct and her rehabilitative potential, including her employment history, educational background, family support, and planned marriage to a security officer. In reaching his decision to impose a consecutive term of three years’ imprisonment, the judge noted defendant’s lengthy history of criminal conduct, her drug dependency and her failure at every rehabilitative effort. Under these circumstances, we conclude that the sentence imposed by the court was well within the authorized range and did not constitute an abuse of discretion.

Defendant’s final contention is that her admission to the allegations in the State’s petition to revoke probation was not made knowingly and voluntarily because she was not admonished of the possibility of a consecutive sentence. Relying on our supreme court’s decision in People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289, defendant maintains that a probationer, in admitting a probation violation, should be accorded due process rights similar to those pertaining to guilty pleas as set forth in Supreme Court Rule 402 (87 Ill. 2d R. 402). Defendant specifically directs this court’s attention to the portion of Rule 402 which prescribes that prior to the acceptance of a guilty plea a defendant must be apprised, inter alia, of the minimum and maximum sentences that could be imposed, as well as whether he or she may be subject to consecutive terms of imprisonment. (87 Ill. 2d R. 402(a)(2); People v. Brownell (1980), 86 Ill. App. 3d 697, 700, 408 N.E.2d 304.) Our supreme court, however, has clearly held that the provisions of Supreme Court Rule 402 are not strictly applicable to probation revocation proceedings (People v. Beard (1974), 59 Ill. 2d 220, 226-27, 319 N.E.2d 745), noting that there is a qualitative difference between a criminal conviction and the revocation of probation. People v. Beard (1974), 59 Ill. 2d 220, 226, 319 N.E.2d 745; see also Gagnon v. Scarpelli (1973), 411 U.S. 778, 789, 36 L. Ed. 2d 656, 665-66, 93 S. Ct. 1756, 1763; see generally Cohen & Gobert, The Law of Probation and Parole sec. 9.41 (1983).

The basic due process rights accorded to a probationer in revocation of probation proceedings have been set forth by the United States Supreme Court in Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756. Under Gagnon, a probationer is afforded only the “minimum” requirements of due process, and is entitled:

“to written notice of the alleged violation, to disclosure of the evidence against him, to be heard in person and to present testimonial and documentary evidence, to confront and cross-examine adverse witnesses, to be judged by a neutral and detached hearing body, to receive a written statement by the fact finders stating the evidence relied on and the reason for revocation, and, in some instances, to receive assistance of counsel. (411 U.S. 778, 782, 786, 788, 36 L. Ed. 2d 656, 662, 664-65, 93 S. Ct. 1756, 1760-63.) Illinois statutes have similar guarantees. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4.)” People v. DeWitt (1979), 78 Ill. 2d 82, 85, 397 N.E.2d 1385.

A review of the record in the present case reveals that defendant was accorded all the minimum due process safeguards' to which she was entitled. Prior to accepting defendant’s admission to the allegations contained in the State’s petition to revoke probation, defendant was admonished that by admitting the petition she was effectively waiving her right to a hearing at which the State would have to prove its allegations by a preponderance of the evidence, and where she could present witnesses as well as confront witnesses appearing against her. The court further warned defendant that upon receiving her admission, it could revoke her probation and re-sentence her to serve “the same sentence that might originally have been imposed in this case.” The trial judge then informed defendant that the maximum penalty which could be imposed on her original retail theft offense was two to five years’ imprisonment.

We conclude on this record that defendant was afforded more than the “minimum” due process safeguards to which she was entitled, and further hold that an admonition on the possibility of the imposition of a consecutive sentence is not required by Illinois statute or the Supreme Court Rules to be given to a probationer prior to the receipt of an admission to allegations in a petition to revoke probation.

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

Affirmed.

NASH, P.J., and HOPF, J., concur.


author: JUSTICE HOPE

text:
    MICHAEL S. CUMMINGS et al., Plaintiffs-Appellees and Cross-Appellants, v. LIPH S. DUSENBURY et al., Defendants-Appellants and Cross-Appel-lees.
    Second District
    No. 83—1046
    Opinion filed December 11, 1984.

      Thomas J. DeMik and Howard H. Prestwich, both of Freeport, for appellants.
    John A. Leemon, of Mt. Carroll, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Defendants, Liph and Patricia Dusenbury, sold a house to Michael and Lori Cummings, plaintiffs. Soon after moving into the home, the Cummings sued for rescission of the contract for the sale. After a bench trial, the circuit court of Carroll County found that, because of a unilateral mistake, the Cummings were entitled to rescission of the real estate contract and damages, less an amount for rent for the period of time they occupied the premises.

On appeal, the Dusenburys contend that the trial court erred in finding that a unilateral mistake existed so as to allow rescission of the contract and a return to the status quo as existed before the contract was made. The Dusenburys argue that a unilateral mistake does not allow rescission. Rather, they urge, the mistake must be mutual. The mistake in the present case concerned whether the home purchased by the Cummings was suitable for year-round living. The trial court found that, by the standards in the industry, it was not, and it held that it would be unconscionable to enforce the contract for sale of the home. The Dusenburys also argue that the Cummings did not exercise reasonable care in determining whether or not the home was a “year-round home.” They further urge that they have not been placed in statu quo and that there was a variance between the pleadings and the proof, i.e., the complaint did not plead unilateral mistake.

The Cummings raise a number of issues by way of cross-appeal. They urge, inter alia, that the trial court erred in denying their request for punitive damages and in not determining whether an implied warranty of habitability had been breached.

The house in issue was built by the Dusenburys during the winter of 1973-74. It was a kit home, made of logs, and had a log interior. The Dusenburys lived in it on weekends for several years while selling lots and building other homes at Lake Carroll. In 1977 they lived in the subject house for a year. Some leakage occurred after this, so the windows were removed and set in foam rubber with adhesive. After this, the windows stopped leaking. The roof, Liph Dusenbury testified, only leaked when there was an extremely cold winter with quite a bit of snow. He had no condensation or leakages during the year he lived in the house. He then put the house on the market and leased it to a number of different people, none of whom complained about leaks.

The Cummings first looked at the house in July of 1982. After viewing the property with realtors, they made arrangements to have a realtor contact the sellers and ask specific questions about the home. Realtor Patricia Barrett testified that she called the Dusen-burys from her office on July 23, 1982. Barrett testified it was a Saturday, that the Cummings were present in her office and that she probably talked to Mrs. Dusenbury. She asked questions from a list that was introduced into evidence. Barrett asked the questions that had been given to her by the Cummings and wrote down some notes as given by Mrs. Dusenbury. The first question on the list concerned the heating costs and the notation indicated that the electric bill was $120 a month in 1980. Barrett testified that Mrs. Dusenbury said the windows were thermopane, they didn’t sweat, and that “it was a year round house.” She indicated that the Cummings were concerned about being able to remain warm in the house during the winter.

The Cummings moved into the house in mid-August 1982. Michael Cummings testified that soon after moving in they found that the roof leaked when it rained. They found that the windows leaked and they had a problem with flies coming into the house. He indicated the fly problem got worse in the winter, and in the wintertime the walls would drip from condensation and were wet to the touch. In the fall when it rained, the roof would leak in three or four places, but when winter started the roof leaked all over the place. Photographs of the leaks from the windows and roof were admitted into evidence. Cummings testified that his 19-month-old child was affected by the condensation on the walls because the furniture had to be moved away from the walls to keep it dry. He also stated that one of the realtors who showed him the house may have suggested that insulation and walls be added to the interior surface.

Duane Hanson testified as an expert for the plaintiffs. He had built many log homes in the area and had inspected the subject house. He saw stains on the wall and signs of moisture on the windowsills. He testified that the homes he built had no moisture problems and that the roof on the subject house needed repairs in the amount of $3,000 to $20,000, depending on how much was done. He noted that some of the sills may have had dry rot forming and that recaulking could eliminate the fly problem. Hanson testified that the minimum property standards for HUD or FHA, as they exist today, would not be met by the house in issue. Hanson testified that while the log home industry began upgrading the thickness of woods in the early 1970s, the subject house was still meant to be a second or vacation home and was not really classified as a year-round house, even at the time it was built.

Arnold Prowant, another building contractor, also testified for plaintiffs. He indicated the roof leaked because it expanded and contracted and recommended that a new roof be placed over the old roof. Because the walls of the house were only about 2Vz inches thick, he suggested studding the outside walls with 2 x 4s, putting on a layer of visqueen and fiberglass insulation, and then siding the outside.

Defendant Liph Dusenbury testified that he built the house in the winter of 1973 and spring of 1974. He indicated that the water marks on the interior walls got there during construction and that he replaced the single-pane windows with thermopane windows in 1974. He sold the house on contract to an individual who moved in it for a few months and then defaulted and disappeared. He denied having had a phone call with Pat Barrett on July 23,1982.

The trial court took judicial notice of the fact that July 23, 1982, was a Friday. The Cummings had testified that realtor Barrett had made the phone call to Mrs. Dusenbury on a Saturday. Liph Dusen-bury stated that he did not talk to realtor Barrett until the closing and he never indicated verbally or in writing that the house was a year-round home.

Patricia Dusenbury testified that during the winter of 1978, during a heavy snow period, she and Liph lived in the house and there had been no problems, although she did indicate there was a roof leak around the fireplace. Some of the defective thermopane windows were replaced. Mrs. Dusenbury also testified that to the best of her knowledge she never spoke with realtor Barrett on the telephone.

The first issue raised by the Dusenburys is the contention that the doctrine of unilateral mistake was improperly applied so as to allow rescission of the contract. They contend that only mutual mistake, not unilateral mistake, can justify rescission. They rely on the case of Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App. 3d 851, 350 N.E.2d 857. However, Diedrich included the following pertinent language: “If by reason of a mistake of fact by one of the parties to a contract not due to his negligence, the contract is different with respect to the subject matter or terms from what was intended, equity will rescind the contract where the parties can be placed in status quo. (Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 80 N.E. 564.)” (Emphasis added.) (Diedrich v. Northern Elinois Publishing Co. (1976), 39 Ill. App. 3d 851, 857, 350 N.E.2d 857.) In light of this language it is apparent that Diedrich does not require that a mistake be mutual.

The unilateral mistake principle was also set forth in the following manner:

“If there is apparently a valid contract in writing, but by reason of a mistake of fact by one of the parties, not due to his negligence, the contract is different with respect to the subject matter or terms from what was intended, equity will give to such party a remedy by cancellation where the parties can be placed in statu quo. The ground for relief is, that by reason of the mistake there was no mutual assent to the terms of the contract.” (Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 13, 80 N.E. 564, 565.)

Steinmeyer involved an erroneous calculation made on a bill for lumber. The court found that the contract should not be rescinded on account of this error, for if equity would grant relief on account of such a mistake, there would be no stability in contracts.

In a case that held to the contrary, Wil-Fred’s, Inc. v. Metropolitan Sanitary District (1978), 57 Ill. App. 3d 16, 372 N.E.2d 946, rescission was allowed where a mistake in bidding by a contractor was viewed as (1) a material feature of the contract; (2) so grave that the consequences would work a hardship and be unconscionable; (3) due care was exercised; and (4) the other party could be placed in statu quo. The court also noted that relief is generally refused for errors in judgment and allowed for errors which are clerical or mathematical. (Wil-Fred’s, Inc. v. Metropolitan Sanitary District (1978), 57 Ill. App. 3d 16, 24, 372 N.E.2d 946, 953, citing Annot., 59 A.L.R. 809, 827 (1929); Annot, 80 A.L.R. 586 (1932); Annot., 52 A.L.R.2d 792 (1957).) However, the court looked to the facts surrounding the error rather than the labels of “judgment” or “mathematical” in deciding that rescission of the contract should be allowed.

The doctrine of unilateral mistake was also applied in the case of National Super Markets, Inc. v. First National Bank (1979), 72 Ill. App. 3d 221, 390 N.E.2d 602, where a purchaser under a purchase option of a real estate contract sought specific performance. A misunderstanding arose concerning the vendors’ failure to strike a 30-day notice of termination provision. Because the purchaser had no reason to know of this misunderstanding, the court held that it should not “be made to suffer the burden of any unilateral mistake or misapprehension resulting from the Trustee’s failure to strike the notice language from the agreement.” (72 Ill. App. 3d 221, 225, 390 N.E.2d 602, 605.) Although this case is factually distinguishable from the case at bar, it does indicate that unilateral mistake principles have recently been applied to allow rescission of real estate contracts. See also Bucciero v. Drinkwater (1982), 13 Mass. App. 551, 434 N.E.2d 1315; Pearl v. Merchants-Warren National Bank (1980), 9 Mass. App. 853, 400 N.E.2d 1314.

Generally, the rule is that the unilateral mistake of one party to a contract may not be relied upon to relieve that party from its obligations under the contract where the party’s own negligence and lack of prudence resulted in the mistake. Harney-Morgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 606, 455 N.E.2d 130, 134.

John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 367 N.E.2d 695, involved a situation where a clerical error was made in a contract. The court set forth the requirements for showing a mistake much as set forth in the case of Wil-Fred’s, Inc. v. Metropolitan Sanitary District (1978), 57 Ill. App. 3d 16, 372 N.E.2d 946, quoted above. Although the clerical error was viewed as a “material feature” of the contract, the court determined that the plaintiff had failed to exercise reasonable care, and defendant could not be placed in statu quo. Thus, the Calnan court found that the evidence supporting rescission was against the manifest weight of the evidence.

In the case at bar, the Dusenburys argue that the mistake concerned the question of whether the home was a “year-round house.” They contend that this is a case of judgment or opinion as opposed to a factual representation. They equate “year-round house” with “good house,” “nice location” or “you’ll be happy with it.” Thus, the Dusen-burys equate the phrase with the “puffing” that occurs every day in the marketplace. We disagree. We believe the mistake was a material part of the contract.

In the instant case, the trial court found that the home purchased by the Cummings was not suitable for year-round living. It determined that the mistake made in this regard was material to the contract, such that if it were enforced it would be unconscionable. The court found that plaintiffs had made inquiry on July 23, 1982, in Barrett’s office, as to whether the home was a year-round home. Implicit in this finding is the fact that plaintiffs must have been told it was a “year-round” home by defendants.

In its memorandum opinion, the trial court discussed the warranty of habitability doctrine and quoted at length from Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324, although the court found that the subject house was not “new” and thus could not be covered by an implied warranty of habitability as set forth by Redarowicz. Despite this, it is apparent that the policy of Redarowicz was implicitly supportive of the trial court’s ruling that the unilateral mistake doctrine operated to allow the rescission here. In any event, we agree that no implied warranty existed in the present case.

Applying the principles of unilateral mistake to the case at bar, we believe the Cummings met the basic requirements of that doctrine. The requirements as set forth in John J. Calnan Co. v. Talsma Builders, Inc. (1977), 67 Ill. 2d 213, 367 N.E.2d 695, are, first, that the mistake relate to a material feature of the contract. Here, the house in issue is located in an area with severe winters and was purchased for year-round use. Although the question of what constitutes a “year-round” home is somewhat a question of personal taste, there was evidence in the record that this home was built as a vacation house, and was not suitable for winter use by a young family. Although one could argue that the Cummings could have determined for themselves that the house lacked the features necessary for being comfortable in the winter, this argument is somewhat negated by the fact that the record shows they made diligent inquiry into whether it was suitable for winter use. The trial court found that the defendants were aware of plaintiffs’ concern in this regard, and that although defendants indicated they had no problems when they inhabited the house, the fact remains that the house, as sold, was not what plaintiffs had bargained for when they purchased the home. When one buys a house as a primary residence, its suitability for year-round living is a material feature of the bargain.

We believe the plaintiffs exercised reasonable care in ascertaining the suitability of the home for winter living. Although plaintiffs could have called in independent parties for an analysis of the insulation, windows and heating system, the fact that they were advised by the sellers, who had lived in it, that it was suitable for year-round living may have prevented them from looking into the question any further. Although the sellers deny having spoken to the Cummings on July 23, 1982, the trial court specifically found that a call took place on that date. There was ample evidence to support the trial court’s determi- - nation that reasonable care was used.

The next question is whether the rescission could be made and still place the Dusenburys in statu quo. Some guidance on this issue was set forth when the equitable doctrine of rescission was described as follows:

“ ‘As in other cases of rescission, the vendee is ordinarily required to restore the status quo, insofar as he has received any benefit, as a condition of his right to rescind; but he is not required to put the other party in the same situation in which he was before the contract, where the latter has rendered it impossible by the nature of his fraud or other act, or where from the nature of the land and the purpose for which it was purchased, it is impossible to restore the status quo, as where the purchase was of timberland and the purchaser had cut timber thereon; in such a case all that the purchaser can be required to do is to reimburse the vendor for the value of the timber removed. ***’ ” Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177, 1181, quoting from 77 Am. Jur. 2d Vendor & Purchaser sec. 565 (1975).

The Dusenburys argue they cannot be put back in the same situation because they made certain changes in the thermostats; because a realtor’s/broker’s commission was paid; and because they lost possession rights for a year. However, under the terms of the judgment, the Dusenburys were paid $275 monthly rent for the time period they were out of possession. Because of this, and because they had rented the property out in the past, we believe they have been returned to their former position. With regard to the thermostats, there is no indication from the record that the value of the house was affected by that change.

Regarding the broker’s commission, we refer to the quote from Hakala, above. As that case indicates, one must be returned to status quo “insofar as [the other] received any benefit.” In the case at bar, it does not appear that the Cummings received any benefit from that provision of the contract, or from the fact that the Dusenburys paid their realtor’s commission. Thus, we believe that the parties’ positions were substantially returned to the status quo.

In sum, the facts and evidence adduced at trial support the trial court’s determination that the doctrine of unilateral mistake should allow rescission of the contract.

The Dusenburys’ final contention is that the Cummings’ complaint does not contain the allegations necessary to plead unilateral mistake. They argue that they were not advised that the Cummings would proceed on the unilateral mistake theory. The inference which is to be drawn from this contention is that the Dusenburys were somehow prejudiced by the Cummings’ failure to include this point in the pleadings. However, assuming the Dusenburys were prejudiced, they do not say how or in what manner this occured.

It is generally held that a variance between the allegations and the proof will not be deemed material unless it misleads the adverse party to his prejudice. (Stowell v. Satorius (1952), 413 Ill. 482, 491, 109 N.E.2d 734, 739.) Here the Dusenburys make no showing of prejudice, and none will be presumed to have occurred.

Moving on to the issues raised by the Cummings by way of cross-appeal, their first contention is that the trial court erred in not finding fraud on the part of defendants. They urge that the Dusenburys knew of the problems with the roof, windows and condensation, but never revealed existence of these problems to plaintiffs. If fraud had been found, then the Cummings would have been entitled to punitive or exemplary damages.

Generally, in Illinois fraud consists of a concealment of an existing fact accompanied by scienter, deception and injury. (Central States Joint Board v. Continental Assurance Co. (1983), 117 Ill. App. 3d 600, 453 N.E.2d 932; see cases collected at 117 Ill. App. 3d 600, 604, 453 N.E.2d 932, 935.) To establish fraud, the Central States court held, there must be concealment with an intention to deceive and under circumstances creating a duty to speak. Although there was some evidence that defendants told plaintiffs that the home was a year-round home, there was no clear showing that this was done intentionally. In fact, the trial court’s finding of mistake is blatantly inconsistent with a finding that the Dusenburys intended to deceive the Cummings. In any event we see no indication in the record of an intentional misrepresentation. Additionally, this issue was presented to the trier of fact and rejected. Because it is a factual question, it is best resolved by the trial court.

The Cummings also contend in their cross-appeal that the implied warranty of habitability should be applicable here. They urge that because they were the first purchasers of the home and because they purchased it from the builder, the doctrine of implied warranty of habitability, as set forth in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154, and its progeny, should be applicable. However, we believe this would be too great an expansion of that doctrine for, although it has been expanded to include a change in hands of ownership of a home, it is limited to latent defects which manifest themselves “within a reasonable time after the purchase of the house.” (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185, 441 N.E.2d 324.) In the instant case the house was built in 1973-74, and plaintiffs sought to rescind the contract in 1983. Thus, the house was at least nine years old. It also had had a number of tenants. Given this situation it would not be appropriate to find an implied warranty of habitability in this case. See Schoenrock v. Anden Corp. (1984), 125 Ill. App. 3d 118, 465 N.E.2d 146.

We recognize that countervailing policies such as caveat emptor and finality of contract are frequently employed in contract cases. However, in the case at bar evidence shows that the Cummings sought to purchase a year-round home, and the sellers knew of their intended use. The house would apparently need substantial work to the walls and roof in order to solve the problems it currently has. The record shows that the Cummings used reasonable care in inquiring about the suitability of the home. Additionally, the parties were returned to the status quo. Therefore, we believe the equitable relief rescission was properly allowed in the case at bar.

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

Affirmed.

NASH, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN R. SPEED, Defendant-Appellant.
    Second District
    No. 84—0566
    Opinion filed December 10, 1984.
    Robert T. Hanson, of Mt. Morris, and G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

This is the second time this case comes before us. Defendant Steven R. Speed was charged by information in Ogle County with indecent liberties and rape. (Ill. Rev. Stat. 1981, ch. 38, pars. 11— 4(a)(3), 11 — 1(a).) Following a bench trial, he was found guilty of rape and sentenced to a 12-year term of imprisonment in the Department of Corrections. In a Rule 23 order issued by this court upon defendant’s first appeal, defendant’s conviction for rape was affirmed, but his sentence was reversed and remanded due to the trial court’s improper consideration of a factor in aggravation; namely, that the victim suffered serious physical or mental harm as a result of the crime. (87 Ill. 2d R. 23.) Upon remand, defendant’s sentence was reduced to 11 years’ imprisonment. He appeals from this sentence, claiming that the trial court improperly imposed a more severe sentence solely because defendant continued to deny his guilt of rape following his conviction.

It is well established that a more severe sentence may not be imposed merely because a defendant claims he is innocent at the time of sentencing. (People v. Griffiths (1983), 112 Ill. App. 3d 322, 331, 445 N.E.2d 521; People v. Coleman (1980), 83 Ill. App. 3d 429, 434, 403 N.E.2d 1266.) This was designed to protect an individual’s right of appeal or prospects of post-conviction relief which might otherwise be jeopardized by the rewarding of a defendant’s admission of guilt following trial. (People v. Sherman (1977), 52 Ill. App. 3d 857, 859, 368 N.E.2d 205.) Thus, in Sherman, the defendant’s sentence following his conviction for burglary was reduced when the sentencing court expressly imposed a more severe sentence upon defendant than his codefendant solely because the latter admitted his guilt to the probation officer and defendant did not. However, it is also well established that the court may consider the lack of a penitent spirit in determining the appropriate sentence to be imposed upon a defendant, since this is a factor which may have a bearing on the defendant’s potential for rehabilitation. (People v. Mosley (1980), 87 Ill. App. 3d 903, 905-06, 409 N.E.2d 381; People v. Moffett (1977), 55 Ill. App. 3d 939, 942, 371 N.E.2d 364.) A sentencing judge may also consider a defendant’s lack of veracity on the witness stand since this, too, may have a bearing on defendant’s rehabilitative potential. (See People v. Wyatt (1980), 90 Ill. App. 3d 390, 393-94, 413 N.E.2d 82; People v. Genovese (1978), 65 Ill. App. 3d 819, 823, 382 N.E.2d 872.) Thus, numerous sentences have been affirmed on appeal despite a reference by the sentencing court to a defendant’s persistent claim of innocence. (See People v. Costello (1981), 95 Ill. App. 3d 680, 688-89, 420 N.E.2d 592; People v. Mosley (1980), 87 Ill. App. 3d 903, 905-06, 409 N.E.2d 381; People v. Porter (1980), 83 Ill. App. 3d 720, 721-22, 404 N.E.2d 337; People v. Coleman (1980), 83 Ill. App. 3d 429, 434, 403 N.E.2d 1266; People v. Moffett (1977), 55 Ill. App. 3d 939, 941, 371 N.E.2d 364.) In determining whether sentencing was improperly influenced by the defendant’s failure to admit his guilt following conviction, the courts have focused upon whether the sentencing court indicated, either expressly or impliedly, that there would be better treatment on sentencing if the defendant abandoned his claim of innocence. (See People v. Costello (1981), 95 Ill. App. 3d 680, 688, 420 N.E.2d 592; People v. Porter (1980), 83 Ill. App. 3d 720, 721, 404 N.E.2d 337; People v. Moffett (1977), 55 Ill. App. 3d 939, 941, 371 N.E.2d.364.) If there is such an indication, then the sentence likely was improperly influenced by the defendant’s persistence in his innocence. (See People v. Sherman (1977), 52 Ill. App. 3d 857, 859, 368 N.E.2d 205; Poteet v. Fauver (3d Cir. 1975), 517 F.2d 393.) If, however, “the record shows that the court did no more than address the factor of remorsefulness as it bore upon defendant’s rehabilitation,” then the court’s reference to a defendant’s persistent claim of innocence will not amount to reversible error. See People v. Costello (1981), 95 Ill. App. 3d 680, 688, 420 N.E.2d 592.

Upon remand in the instant case, defendant took the stand and informed the court that since his imprisonment he had completed 49 hours of college level courses, had held a full-time job entering data into a computer, and had participated in Bible study and Alcoholics Anonymous programs. Mr. Speed also expressed his remorse for what had happened, stating that he was “sorry for what I did.” On cross-examination, defendant again stated that he was sorry for the “pain and suffering” he had caused. However, he stated that while he was guilty of some crime, such as indecent liberties or attempted rape, he was “not guilty of the crime I was convicted.” Nevertheless, he agreed he should be punished for having committed a crime.

At the close of the resentencing hearing, the court commented that there were “factors that have been persistent throughout this case in the relation of the probation officer from its inception and the defense of the case during the trial and even today, the defendant asserts that he did not commit the crime of which he stands convicted.” After noting that both the trial and the appellate courts were convinced that defendant committed the crime beyond a reasonable doubt, the court stated that “Mr. Speed has not yet accepted that. *** Fact that he has not yet accepted that weighs heavily on the decision that we are about to make in these matters.” The court then discussed its prior skepticism of defendant’s testimony at the original sentencing hearing to the effect that defendant desired to rehabilitate himself and to avoid further criminal involvement. The court noted that such remarks “can be manipulative.” The court further stated that it “[did not] know whether Mr. Speed is manipulating me again today ***,” and concluded with the following remarks, which defendant has specifically challenged in this appeal:

“When I reread the record, when I reread the probation officer’s report and considered this matter and the Appellate Court mandate I thought the appropriate sentence was to re-sentence the defendant to twelve years. After a portion of the testimony I thought perhaps a ten year sentence might be appropriate. When Mr. Speed said he didn’t commit the crime which he stands charged and convicted again tilted the scale the other way.”

An 11-year term of imprisonment was subsequently imposed.

After reviewing the comments made by the court here, as well as the authorities cited above, we conclude that defendant’s sentence was improperly influenced by his persistent denial of guilt as to the crime of rape. We do not believe that the court was merely addressing the factors of remorsefulness or veracity as they bore upon defendant’s rehabilitation. (Cf. People v. Costello (1981), 95 Ill. App. 3d 680, 688, 420 N.E.2d 592; People v. Genovese (1978), 65 Ill. App. 3d 819, 823, 382 N.E.2d 872.) Rather, we consider the remarks to be a clear indication that the court was improperly increasing defendant’s term of imprisonment from 10 years to 11 years solely because defendant refused to acquiesce in the decisions of the circuit and appellate courts. We note that the lower court did not specifically find that defendant lacked veracity or remorse for his conduct. (Cf. People v. Mosley (1980), 87 Ill. App. 3d 903, 904-05, 409 N.E.2d 381; People v. Moffett (1977), 55 Ill. App. 3d 939, 942, 371 N.E.2d 364; People v. Genovese (1978), 65 Ill. App. 3d 819, 823, 382 N.E.2d 872.) Defendant’s testimony at the resentencing hearing in fact indicated that he was sorry for what he had done and that he felt that he should be punished for having committed a crime, albeit a different crime than rape. With respect to the factor of veracity, we note that the testimony of defendant at trial was consistent with that of the victim in all respects save one, i.e., penetration of the victim’s sex organ. Although we previously found the victim’s testimony in this regard to be clear and convincing (87 Ill. 2d R. 23), defendant could still reasonably believe that no penetration occurred, given the extent of his alcohol consumption prior to the offense in question. Finally, we think the court’s comments made it clear that it was defendant’s unwillingness to accept the findings of guilt which weighed heavily against him, rather than any particular lack of veracity on his part.

Under all of these circumstances, we exercise the authority vested in us pursuant to Supreme Court Rule 615(bX4) (87 Ill. 2d R. 615(b)(4)), and reduce defendant’s sentence to a 10-year term of imprisonment in the Department of Corrections. See People v. Sherman (1977), 52 Ill. App. 3d 857, 859, 368 N.E.2d 205.

Modified.

NASH, P.J., and SCHNAKE, J., concur.