author: JUSTICE HOPE

text:
    CHARLES E. JOHNSON, Plaintiff-Appellee and Cross-Appellant, v. FIG-GIE INTERNATIONAL, INC., RAWLINGS SPORTING GOODS DIVISION, Defendant-Appellant and Cross-Appellee
    Second District
    No. 84—0287
    Opinion filed April 26, 1985.
    James T. Ferrini, Thomas H. Ryerson, and Katherine S. Dedrick, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellant.

      Richard B. Kuseski, of Wasneski, Kuseski, Flanigan & Biondi, of Waukegan, and Warren W. Browning, of Browning & Browning, of Chicago, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

Plaintiff, Charles Johnson, filed a complaint for declaratory judgment, seeking relief in the form of deferred bonus payments owed him pursuant to an alleged contract between plaintiff and defendant, Figgie International, Inc., Rawlings Sporting Goods Division (hereinafter Rawlings). Subsequently, plaintiff moved for summary judgment. The trial court granted the motion, ruling that there was no question of material fact at issue. The court also granted a motion by the defendant to strike plaintiff’s prayer for attorney fees.

On appeal, defendant sets forth a number of contentions to show why the trial court erred in granting plaintiff’s motion for summary judgment. Among these contentions are: (1) that the defendant’s 1982 Salesman Compensation Plan did not constitute a contract but merely an outline of Rawlings’ compensation plan; (2) that if the plan was a contract, parol evidence should not have been excluded because the contract did not constitute an integrated agreement; and, (3) that even if the contract was an integrated agreement, parol evidence should have been allowed to resolve the ambiguity in the terms of the agreement. Additionally, defendant contends that the trial court erred in the amount of its damage award. Lastly, the defendant argues that if the lower court’s judgment is reversed, the court’s orders denying defendant’s discovery motions must also be reversed. Plaintiff cross-appeals, contending that his prayer for attorney fees should have been granted because, as an “employee,” he fell within the purview of “An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages” (Ill. Rev. Stat. 1983, ch. 13, par. 13).

Plaintiff, Charles Johnson, was hired as a salesman by defendant, Rawlings, in March 1980. During his employment for Rawlings he was paid a base salary, his necessary expenses, and bonuses and commissions based upon the sales he made of Rawlings’ products. At a sales meeting conducted by Rawlings in November 1981, a written document entitled “1982 Salesman Compensation Plan” was given to plaintiff and to each of the other salesmen present. Paragraph D of section II of this compensation plan stated:

“D. 75% Ceiling
A salesman [sic] total bonus paid in any one calendar year may not exceed 75% of his salary for that particular compensation year. However, the excess bonus will be deferred over the following two (2) years. This will help the salesman achieve a steady growth in income.”

Paragraph E stated:

“E. Matching Incentive
In addition each year 25% of the salesman’s bonus will be matched and then placed in a deferred program. This deferred compensation will be paid in three (3) subsequent equal installments. Should the salesman leave Rawlings he will forfeit any further payments on the deferred bonus program.”

Plaintiff worked for Rawlings during the entire 1982 sales year and at the end of the sales year was given an accounting, prepared by Rawlings, of his sales and earnings, including bonuses. The accounting showed that plaintiff had earned $40,183 in bonuses, $15,750 of which was paid out to him in 1982, pursuant to paragraph D of the 1982 Salesman Compensation Plan. The remainder of the money was deferred, according to the plan, to 1983 and 1984, with half of it, or $12,217, being due in each of these years.

When plaintiff resigned his employment with Rawlings on June 1, 1983, Rawlings refused to pay plaintiff the balance of his 1982 earned bonus which had been deferred to 1983 and 1984, apparently maintaining that the forfeiture provision stated in paragraph E of Rawlings’ compensation plan applied to all deferred bonuses and not just to the deferred matching incentive funds. As a result, plaintiff brought an action for declaratory judgment, asking the court to determine that Rawlings owed plaintiff the deferred bonuses and ordering the defendant to pay the sums on or before the dates due. Subsequently, plaintiff moved for summary judgment, contending that the compensation plan set forth the intention of the parties and that, therefore, no genuine issue as to any material fact existed. In opposition, defendant filed the affidavits of other Rawlings’ employees, claiming to have personal knowledge of the deferred bonus program, and plaintiff’s deposition transcript.

At a hearing conducted on the motion for summary judgment, plaintiff argued that the 1982 Salesman Compensation Plan was a written contract which contained no ambiguity and which had been performed by plaintiff. Defendant maintained that the plan did not constitute a written contract, but if it did, it was not the entire agreement and it was also ambiguous. Therefore, defendant contended, genuine issues of material fact existed and parol evidence should be allowed for a complete understanding of the compensation agreement.

The trial court held that the compensation plan was a written contract which clearly and unambiguously stated the basis for an employee’s compensation. The parol evidence rule applied, because the matters raised by defendant’s affidavits were irrelevant and would be inadmissible at trial. Since the terms and the conditions of the contract were unambiguous, the court found, as a matter of law, that the forfeiture provision of paragraph E (of section II) of the plan applied only to that paragraph and the matching incentive funds. All other funds were not subject to forfeiture. The court allowed plaintiff’s motion for summary judgment. The court also held that plaintiff was not entitled to attorney fees.

Summary judgment is a drastic remedy and is to be awarded with caution; only if the right of the movant is clear and free from doubt may it be granted. (A. S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 750, 450 N.E.2d 1356.) Thus, in determining whether summary judgment was the proper remedy, we must first consider if the court’s determination that defendant’s 1982 Salesman Compensation Plan constituted a written contract was correct.

Illinois cases, although not numerous, have held that written documents which have dealt with company plan and policy constitute contracts. In Anderson v. Equitable Life Assurance Society of the United States (1974), 17 Ill. App. 3d 489, 308 N.E.2d 387, a life insurance salesman brought an action against his former employer to recover “incentive compensation” allegedly earned during his employment. Plaintiff claimed he was entitled to additional compensation under an “Incentive Compensation Program” which had been put into effect by defendant and become part of plaintiff’s employment contract. Under this program a salesman was entitled to incentive compensation based on his individual performance during the calendar year, provided he did not leave defendant’s full-time employ before December 31. 17 Ill. App. 3d 489, 490, 308 N.E.2d 387.

The court held that plaintiff, who had left defendant’s employ on November 1, was barred from recovery since he had been given a copy of defendant’s Incentive Compensation Program while he was working for defendant and since he had knowledge of the clause in the program which excluded payment of incentive compensation if the employment did not continue to the end of the year. The court stated that “[t]he Incentive Compensation Program was a part of the contract with defendant which plaintiff had freely entered into.” 17 Ill. App. 3d 489, 493, 308 N.E.2d 387.

In Tidwell v. Toyota Auto Mart, Inc. (1978), 59 Ill. App. 3d 378, 375 N.E.2d 540, former employees of an automobile dealer brought action to recover bonus payments allegedly due to them pursuant to a written document, “Longevity Bonus Cards.” All three plaintiffs had been employed under oral contracts and had signed these cards after they had gone to work for Toyota. Under the terms of the cards, plaintiffs were only eligible for bonus payments if they were continuously employed throughout the year. (59 Ill. App. 3d 378, 379, 375 N.E.2d 540.) Defendant maintained that since plaintiffs’ employment was terminated 20 days before the end of the year, they were barred from receiving any bonus. However, the evidence showed that the plaintiffs were continuously employed until defendant chose to sell its assets 20 days prior to the end of the bonus year.

This appellate court found that the written cards required only continuous employment throughout the year, that the year ended when Toyota chose to end it 20 days early by selling its assets, and that, therefore, the employees were employed until the end of the year.

In Carter v. Kaskaskia Community Action Agency (1974), 24 Ill. App. 3d 1056, 322 N.E.2d 574, the fifth district held that a Personnel Policy Manual setting forth policies of the company was an enforceable agreement. In this case, the plaintiff-employee had no written employment agreement when she began working for the employer in 1967 in a terminable at-will employment relationship. In 1971 the employer compiled a policy manual which was reviewed and accepted by the employees. The court determined that the manual had been adopted by the employer and accepted by the employee after the employee had been hired, and, thus, the manual became a modification of an existing at-will employment contract. (24 Ill. App. 3d 1056, 1059, 322 N.E.2d 574.) Further, the employee’s continuing to work constituted not only assent but also consideration for the modification of an existing contract.

In Enis v. Continental Illinois National Bank & Trust Co. (N.D. Ill. 1984), 582 F. Supp. 876, the court pointed out that the general rule in Illinois is that an employee handbook is not a part of an employment contract but rather a “gratuity which merely serves as a code of conduct and to define general duties.” (582 F. Supp. 876, 878.) According to the Enis court, Illinois recognizes two exceptions to this general rule: (1) where a handbook is adopted as a modification of a pre-existing employment contract and sufficient consideration exists to create mutuality of obligation (as was the situation in Carter v. Kaskaskia Community Action Agency (1974), 24 Ill. App. 3d 1056, 322 N.E.2d 574); and, (2) where another document exists which can be construed as an express employment contract, and, thus, the policies of a company would be considered incorporated into the written contract. The Enis court concluded that the plaintiff in its case did not fall within either of these exceptions.

Recently, this appellate court held in Kaiser v. Dixon (1984), 127 Ill. App. 3d 251, 468 N.E.2d 822, that a staff policy manual which provided for mutuality of obligation by both employer and employee created obligations which were enforceable. In Kaiser, plaintiff maintained that she had been discharged from her position as a radio dispatcher for a police department in a manner contrary to a staff policy manual which had been adopted subsequent to plaintiff’s hiring and which plaintiff maintained had become part of her employment contract. Plaintiff contended, therefore, that defendant’s failure to follow the discharge procedures set out in the manual constituted a breach of contract.

This appellate court found that the detailed manual represented more than “a mere expression of employer policies and procedures as guidance or for informational purposes” for its employees but rather imposed obligations on both employer and employee which were enforceable. 127 Ill. App. 3d 251, 263, 468 N.E.2d 822.

As the preceding cases illustrate, in actions where plaintiffs have based their recovery on a claim that a company’s plans or policies constituted a contract, the plaintiffs have prevailed only if they have shown that the plans or policies were part of a pre-existing employment agreement. Thus, we conclude that the 1982 Salesman Compensation Plan, alone, did not constitute a written contract, and that it was either a part of, or a modification of, a pre-existing oral employment agreement. As a result, the plan itself could not represent an integrated agreement, i.e., one which is intended by the parties to be a final and complete expression of the entire agreement. Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63, 418 N.E.2d 431.

Because we conclude that the plan was not the complete expression of the employment agreement between plaintiff and defendant, we find that the trial court erred in applying the parol evidence rule to keep out matters raised by defendant’s affidavits. The parol evidence rule applies if the parties intend that a writing alone is to constitute the agreement between them, or if the instrument states that it alone is to constitute the agreement between them, or if the instrument is complete. (Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63, 418 N.E.2d 431; Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 842, 342 N.E.2d 290.) Such was not the case here.

Rawlings’ affidavits and plaintiff’s deposition testimony regarding whether the forfeiture provision of the compensation plan applied to the deferred bonus payments as well as the incentive funds should have been examined. An examination would have revealed that a genuine issue of dispute existed between the parties as to which deferred monies were forfeited at the time of plaintiff's resignation. If a court is presented with disputed facts or conflicting inferences, entry of summary judgment is inappropriate. (Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, 407, 461 N.E.2d 616.) We find, therefore, that an entry of summary judgment in favor of the plaintiff was inappropriate. Accordingly, we reverse the judgment of the trial court and remand the cause for trial.

On appeal defendant also contends that the trial court erred in the amount of its damage award. Because of the foregoing determination, however, we need not reach this issue.

Additionally, defendant seeks reversal of the trial court’s denial of defendant’s discovery motions. Although the record indicates that a hearing was held on both defendant’s original discovery motion to compel production of documents and its motion for rehearing, defendant has failed to produce transcripts of these hearings. Without a transcript of the hearings, we have no basis for determining that the trial court abused its discretion in denying the motion. (Libco Corp. v. Roland (1981), 99 Ill. App. 3d 1140, 1147-48, 426 N.E.2d 309.) Because the reviewing court must presume the circuit court acted properly in the absence of a contrary indication in the record, affirmance is dictated if the record omits crucial facts. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042, 389 N.E.2d 182.) Thus, we affirm the trial court’s denial of defendant’s discovery motions.

Finally, we deem it unnecessary to consider plaintiff’s cross-appeal praying for attorney fees under “An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages,” which provides for attorney fees “[wjhenever a mechanic, artisan, miner, laborer, servant or employee brings suit for wages” (Ill. Rev. Stat. 1983, ch. 13, par. 13). To be eligible to collect attorney fees under this statutory provision, an individual must prevail in his suit. Since we reverse the summary judgment, the case now stands on the pleadings, and the denial of attorney fees becomes moot as of this time.

For the foregoing reasons, the judgment of the circuit court of Lake County is reversed in part, affirmed in part, and remanded to the trial court for further proceedings.

Reversed in part, affirmed in part, and remanded.

SCHNAKE andREINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI WHITE, P.J., JUSTICE McNAMARA,

license: Public Domain

text:
    FAMILY LIFE LEAGUE et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82—651
    Opinion filed April 10, 1985.
    Rehearing denied June 4,1985.
    McNAMARA, J., dissenting.
    Winston & Strawn, of Chicago (Clavin Sawyier, James Fletcher, and Andrew Tecson, of counsel), for appellant Illinois State Medical Society.
    William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for other appellants.
    Neil F. Hartigan, Attorney General, of Springfield (James C. O’Connell and Barbara Yong, Special Assistant Attorneys General, of Chicago, of counsel), for appellees.

      Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Alan Gilbert, Penny Parker, Jeffrey Hornstein, and Lois Lipton, of counsel), for amicus curiae Roger Baldwin Foundation of ACLU, Inc.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs Family Life League, a not-for-profit corporation, its president, John Kelly, its executive director, Joan Solms, and Family Life League Educational Association, a not-for-profit corporation, brought this action for mandamus against defendants Illinois Department of Public Aid and its director, Jeffrey Miller. Plaintiffs sought an order that defendants make available to them defendants’ records relating to the use of public funds paid to doctors and medical providers for welfare abortions and abortion-related services. Plaintiffs claimed entitlement to this information under the State Records Act (Ill. Rev. Stat. 1979, ch. 116, par. 43.4 et seq.). In their answer, defendants denied that they were required to disclose the information. On appeal, defendants contend that disclosure would impermissibly intrude upon the expected privacy rights of welfare recipients having abortions and the rights of doctors and providers of welfare abortions, and that it would compel defendants to create a new record not required by law.

Defendants are responsible for the disbursal of funds under the State’s medical assistance programs. Payments are made to individuals and entities that provide medical services for recipients, people who lack sufficient income and resources to pay for the medical services and who otherwise meet the prerequisites for receiving these services. Under restricted circumstances, defendants pay doctors and providers for performing abortions and abortion-related services.

Defendants make and keep records regarding their payments. Included in these records are the identities of health care providers and doctors, and the amount of public funds paid to them for their services. Relying on the State Records Act, plaintiffs, opponents of abortion, requested defendants on various occasions to provide them with access to defendants’ records relating to abortions. In particular, plaintiffs sought to learn the identities of the doctors and providers of abortions, the number of claims made by each doctor and provider for abortions, and the amount of funds used to pay each doctor and provider for these services. Defendants denied plaintiffs access to this information, but offered to provide records that show (1) the number of welfare abortions for which defendants paid during a calendar or fiscal year, (2) the total monies defendants paid for welfare abortion services and (3) the names of all providers participating in defendants’ general medical programs and total amounts paid them during each year without distinguishing doctors, providers or monies related to welfare abortions.

Plaintiffs moved for judgment on the pleadings. The trial court granted the motion in part and denied it in part. The court ordered defendants to provide plaintiffs with the names and addresses of the doctors and providers of welfare abortions, but further ordered that defendants were not required to provide records as to the number of welfare abortions performed by each doctor or provider or the amount of payments made to them for performing the welfare abortions. Plaintiffs appeal, and defendants cross-appeal those portions of the judgment adverse to their respective positions. The Illinois State Medical Society was permitted to intervene as a cross-appellant. Also, the Roger Baldwin Foundation of the ACLU, Inc., was allowed to file an amicus curiae brief. We reverse and remand.

The decision in this case requires a delicate balance between two competing rights: (1) the statutory right of the people to full and complete disclosure regarding the affairs of their government and (2) the constitutionally protected right of individuals to privacy in regard to their personal affairs which is inherent in the Bill of Rights and which is expressly provided for in our Illinois Constitution. Plainly, neither right can be subjugated to the other right without doing violence to the precepts vital to a free society.

In Roe v. Wade, the Supreme Court held that there is a constitutional right of privacy which encompasses a woman’s decision whether to have an abortion. (Roe v. Wade (1973), 410 U.S. 113, 153, 35 L. Ed. 2d 147, 177, 93 S. Ct. 705, 727.) Plainly, this right of privacy includes the ability to give effect to that right, and the right extends to all women, including those on welfare. Thus, the privacy issue that is involved in this case centers on the effect that disclosure of the information sought by plaintiffs would have on the right of welfare recipients to make and effectuate their abortion decisions.

Plaintiffs argue that the welfare recipients’ right of privacy is not involved because they do not seek the names of the recipients. We believe that plaintiffs’ perspective of the issue is unrealistic and far too constricted. Privacy rights involve different kinds of interests. Obviously, one interest concerns avoiding the disclosure of personal matters. However, another interest involves a woman’s freedom to make a decision to have an abortion and to be able to effectuate that decision. (See Whalen v. Roe (1977), 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 73, 97 S. Ct. 869, 876.) This interest includes not only the private relationship between a woman and her physician (Roe v. Wade (1973), 410 U.S. 113, 153, 35 L. Ed. 2d 147, 177, 93 S. Ct. 705, 727), but also the need of the physician to freely practice medicine and perform legal abortions without arbitrary outside restraints (see Nyberg v. City of Virginia (8th Cir. 1974), 495 E2d 1342, 1344). This is true because the abortion decisions of women and the ability of women to effectuate their decisions are necessarily dependent upon and intertwined with the responsibilities and decisions of their physicians. See City of Akron v. Akron Center for Reproductive Health, Inc. (1983), 462 U.S. 416, 430-31, 76 L. Ed. 2d 687, 703, 103 S. Ct. 2481, 2493; Planned Parenthood of Central Missouri v. Danforth (1976), 428 U.S. 52, 61, 49 L. Ed. 2d 788, 800, 96 S. Ct. 2831, 2837; Roe v. Wade (1973), 410 U.S. 113,153, 35 L. Ed. 2d 147, 177, 93 S. Ct. 705, 727.

Accordingly, if physicians are unable or unwilling to perform legal abortions for welfare recipients because of arbitrary outside restraints, welfare recipients would not be able to give effect to their constitutional right of privacy to obtain an abortion within the ambit of Roe v. Wade. Recognition of this reality is a significant consideration here. In our present social climate of dangerous emotional highs on both sides of the abortion issue, it can hardly be denied that the insidious threat of harassment and harm to physicians performing legal abortions and the terrorism of abortion clinics by antiabortion vigilante groups are very real.. Given these circumstances, it is reasonable to conclude that physicians would simply be unwilling to be a part of the abortion decisions of women on welfare if there is compelled disclosure of the information sought by plaintiffs. Thus, we belleve that compelling disclosure of the information sought by plaintiffs would severely impact the ability of welfare recipients to effectuate their abortion decisions, which in turn would violate the women’s constitutional right of privacy as stated in Roe v. Wade.

We therefore conclude that although plaintiffs do not seek the names of the welfare recipients receiving abortions, compelling disclosure of the physicians and providers that perform abortion services for welfare recipients would invade the welfare recipients’ constitutional right of privacy to make and effectuate their abortion decisions. Thus, while we are dealing with a praiseworthy statute requiring complete disclosure regarding the affairs of government, in this rare instance the disclosure provisions of the statute must yield to the constitutionally protected privacy right of women on welfare to make and effectuate their abortion decisions.

We next address defendants’ argument that they need not disclose the information sought by plaintiffs because the statute does not require defendants to create a new record, which defendants claim they would be required to do in order to accede to plaintiffs’ request. In their answer, defendants state that they have “kept records for each medical service for the years 1978 through 1980 in electronic form and for 1976 and 1977 on microfilm or microfiche, but that upon such records abortion services are not listed separately from other medical services, and that to separate the abortion services would require that special computer programs be written and/or separate records produced.” Defendants admit that they regularly produce a list which shows the names of recipients of abortions, the names of providers and the amounts paid. Finally, at oral argument, defendants candidly admitted that they have the ability to create records that contain only the information sought by plaintiffs.

Under the circumstances, we reject defendants’ contention that because they maintain no records which contain only the information sought by plaintiffs, plaintiffs’ request must be denied on that basis. Acceptance of defendants’ contention would effectively gut the State Records Act and the Freedom of Information Act. Plainly, these acts imply that the agency has a duty to delete confidential and nondisclosable information from that which may be disclosed in order to carry out the Acts’ purpose of making available for public inspection all disclosable parts of the public record. Otherwise, any record which an agency is required by law to keep could be rendered inaccessible to public scrutiny by the inclusion of confidential material. Thus, we conclude that the disclosure of information sought, either by deleting confidential information from the existing record or by extracting the requested information therefrom, does not require the “creation” of a new public record. See State ex rel. Stephan v. Harder (1982), 230 Kan. 573, 583, 641 P.2d 366, 374.

Defendants raise other issues which we address summarily because we believe they are plainly without merit. Defendants contend that they have a defense to plaintiffs’ action because the possibility of inadvertent disclosure of recipients’ names could have a chilling effect on a woman’s decision to seek an abortion. Also, defendants contend that they have a defense to plaintiffs’ action because disclosure of the amount of monies doctors and providers receive for performing abortions would interfere with the doctors’ and providers’ right to privacy because they have a right not to have their professional and business dealings made public. Defendants contend that doctors are not elected officials and are not in the public domain, but rather, they merely provide a service. We believe that all of these contentions and arguments are simply untenable.

Accordingly, we conclude that defendants’ pleadings raise a legally sufficient defense which prevents the issuance of a writ of mandamus and the entry of judgment on the pleadings in favor of plaintiffs. The judgment entered in the trial court is therefore reversed, and the case is remanded for further proceedings consistent with what is stated in this opinion. In reaching our conclusion, we specifically point out that it is solely the unique circumstances that are involved here which require the conclusion we have reached, and we do not intend our conclusion to be interpreted in any way to serve as precedent to otherwise diminish or restrict the State Records Act or the Freedom of Information Act.

Reversed and remanded.

WHITE, P.J.,

concurs.

Appendix

See Gratteau & Sarrio, Abortion clinics tighten security. Chance of violence increases as protesters become bolder, Chicago Tribune, Jan. 20, 1985, Chicagoland, at 1; Three charged in bombings at abortion clinics, Chicago Sun-Times, Jan. 20, 1985, at 26; Maclean, Bishops hit attacks on abortion clinics, Chicago Tribune, Jan. 17, 1985, sec. 1, at 2 (“Joseph Cardinal Bernardin of Chicago, speaking on behalf of the nation’s Roman Catholic bishops, Wednesday condemned the recent wave of abortion-clinic bombings and called them ‘dangerous, ill-considered and deplorable.’ ”); Reagan assails abortion-clinic attacks, Chicago Tribune, Jan. 4, 1985, sec. 1, at 3; Blast rips abortion clinic, Chicago Sun-Times, Jan. 2, 1985, at 16; News report, Chicago Tribune, Jan. 1, 1985, sec. 1, at 5 (“Federal agents said Monday that a construction worker *** admitted bombing four abortion clinics and hinted that a ‘secret’ organization was committing terrorist acts.”); Three more abortion facilities bombed, Chicago Tribune, Dec. 26, 1984, sec. 1, at 14 (“The Ladies Center was the first hit, and the second explosion caused a fire that gutted the office of [one of the doctors] which had been picketed during the summer by abortion opponents. The final blast hit [another doctor’s] office.”); Goodman, Terrorism is no solution to the abortion issue, Chicago Tribune, Nov. 30, 1984, sec. 5, at 1; Barron, Campaign against abortion adopts more violence, Chicago Tribune, Nov. 9, 1984, Tempo, at 1; Van, Birth clinic violence condemned, Chicago Tribune, Oct. 18, 1984, sec. 1, at 6; Editorial, A dire warning, Chicago Sun-Times, Jan. 12, 1985, at 13 (“[T]he outbreak of attacks on abortion clinics is being considered ever more seriously by federal law enforcement agencies, one of which has issued a warning frightening in its implications. *** One could certainly contend that the like-minded objectives of those who are perpetrating the crimes amount to a de facto conspiracy. And certainly what is occurring can be called no less than terrorism. Terrorism does not require a political motivation. There is no discernible difference between the activities of the professional terrorists who serve ideology and the amateur terrorist who defies the law for personal belief. The attacks must be stopped.”); Editorial, Damaging their causes, Chicago Sun-Times, Nov. 20, 1984, at 31 (“Of greater seriousness, however, is the dangerous zealotry of individuals in the United States who profess a reverence for life, yet seek to defend that belief with firebombs. As we have noted, it is tragically incongruous for anti-abortionists to threaten the lives of others. *** The Sun-Times condemns abortion, but it must also condemn those who commit criminal and life-threatening acts under the delusion they are promoting the antiabortion cause.”); Editorial, To abortion opponents, Chicago Sun-Times, Oct. 19, 1984, at 43 (“The Sun-Times has minced no words on the question of abortion. We abhor the practice, and we condemn the attitude that it is a private matter of ‘personal choice’ only, devoid of any moral or ethical considerations. It is with great regret, therefore, that we must take note of — and strongly condemn — the violent actions of some zealots who are on our side in this great debate. We do not know whether the firebombing of abortion clinics in many parts of the country has resulted from a centrally directed conspiracy; but we do know that the incidents occurred. *** Opposition to abortion seeks to derive its inherent strength from a cherished belief in the sanctity of life. So it is tragically incongruous for some anti-abortionists to threaten somebody’s life, either directly *** or indirectly, as in the case of setting fires to abortion clinics.”); Time, Explosions over Abortion, Jan. 14, 1985, at 16; Newsweek, Special Report, America’s Abortion Dilemma. Twelve years after a landmark court decision, the agonizing moral issue still divides the nation and defies compromise. Now the debate has turned violent, Jan. 14, 1985, at 20; Time, New Heat over An Old Issue, Feb. 14, 1985, at 17; Newsweek, An Abortion Anniversary, Feb. 4, 1985, at 22.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent. I do not believe that the disclosure of the names of abortion providers and the amount of public funds they receive infringes on welfare recipients’ freedom to make a decision to have an abortion.

The majority concludes that the welfare recipients’ privacy rights are affected after a series of premises, the most important of which is based on assumption and speculation. The majority begins with the accepted premises that a woman’s decision to abort her pregnancy involves her fundamental right to privacy (Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705), that she must be able to effectuate her decision and consult with her doctor without interference (Whalen v. Roe (1977), 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869), and that her doctor must be freely able to practice medicine in order to advise her about the abortion decision. The majority then infers a fourth premise that disclosing to the public the names of doctors who provide welfare abortions will result in harassment of these doctors. Consequently, they cannot advise their patients and the patients’ rights are infringed. In support of this fourth premise, the majority appends a series of media reports about the recent violent attacks on abortion clinics. Although I agree that “the terrorism of abortion clinics by anti-abortion vigilante groups [is] very real,” I cannot assume, without support in the record, that plaintiffs are such a group or that by releasing public expenditure information to plaintiffs such “terrorist acts” will result or that plaintiffs would “arbitrarily restrain” the practices of doctors performing the welfare recipients’ abortions.

The State Records Act provides that records of the use of public funds are public records available for inspection. The Act does not require that persons requesting information must provide their reasons for doing so. Certainly, by providing such access, the legislature intended that persons would act upon the information. Plaintiffs have not indicated, nor must they indicate, what purpose they have in seeking the names of abortion providers. It seems more probable that, rather than arbitrarily restraining the doctors’ practices, the court could as easily surmise that plaintiffs intend to exercise their fundamental rights to speak out freely against abortion.

In support of the department’s and the medical society’s positions, the Roger Baldwin Foundation of the ACLU asserts the position that access to public expenditure records should be restricted. In addition to the argument accepted by the majority, the ACLU maintains that by providing plaintiffs with the information they requested, the State would be assisting in the invasion of welfare recipients’ rights of privacy in violation of the Records Act. The ACLU brief also takes the illogical leap that an informed public will commit unlawful acts to hinder a woman’s personal choice regarding an abortion.

The Supreme Courts of Minnesota and Kansas were both presented with the identical argument that disclosure of doctors’ names would interfere with their patients’ decision to seek an abortion. (Minnesota Medical Association v. State (Minn. 1978), 274 N.W.2d 84; State ex rel. Stephan v. Harder (1982), 230 Kan. 573, 641 P.2d 366.) Both courts rejected such speculation. The Minnesota court stated:

“The disclosure sought to be prevented in this case would not constitute such an ‘otherwise unconstitutional restriction.’ Disclosure places no burden on the doctor, does not destroy the confidentiality of his relationship with patients, and does not restrict his freedom to exercise his medical judgment.” (274 N.W.2d 84, 92.)

The courts also noted that disclosure might in fact aid women who were seeking doctors willing to perform an abortion.

Furthermore, a woman’s right to privacy to decide whether to have an abortion without interference is not absolute. The United States Supreme Court has upheld the States’ rights to refuse to provide Medicaid funds for nontherapeutic abortions. (Maher v. Roe (1977), 432 U.S. 464, 53 L. Ed. 2d 484, 97 S. Ct. 2376; Beal v. Doe (1977), 432 U.S. 438, 53 L. Ed. 2d 464, 97 S. Ct. 2366.) Although welfare recipients may freely decide whether to have an abortion, the Illinois Department of Public Aid only pays for abortions “necessary for the preservation of the life of the woman seeking such treatment.” (Ill. Rev. Stat. 1983, ch. 23, par. 5 — 5.) Obviously the refusal to pay seriously interferes with a poor woman’s decision to abort, but such interference is valid. Assuming that there is any interference with the personal decision of a woman because the State has released the names of doctors who provide abortions, I would find that the countervailing rights of the parties seeking such information should prevail. Despite the majority’s attempt to qualify its holding, I believe that it sets a dangerous precedent to shroud information about public expenditures in a cloak of secrecy or to require that persons requesting such information provide an acceptable reason for their request.

Since I agree with that portion of the majority opinion which finds defendants’ remaining arguments to be without merit, and because I believe disclosure of the information requested by plaintiffs does not interfere with welfare recipients’ fundamental rights, I would remand the cause to the trial court with instructions to issue the mandamus.

       In Illinois, defendants will authorize payment for abortions only if “in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment ***.” Ill. Ann. Stat., ch. 23, par. 5 — 5(17) (SmithHurd 1984-85 Supp.).

       The State Records Act provides that “[rjeports and records of the obligation, receipt and use of public funds of the State are public records available for inspection by the public.” (Ill. Rev. Stat. 1979, ch. 116, par. 43.6.) However, the same section of the statute also provides that “[n]othing in this Section shall require the State to invade or assist in the invasion of any person’s right to privacy.”

       Specific guarantees in the Bill of Rights have penumbras, one of which is the right of privacy. Griswold v. Connecticut (1965), 381 U.S. 479, 484, 14 L. Ed. 2d 510, 514-15, 85 S. Ct. 1678, 1681; see Roe v. Wade (1973), 410 U.S. 113, 152, 35 L. Ed. 2d 147,176, 93 S. Ct. 705, 726.

       The Illinois Constitution provides: “The people shall have the right to be secure *** against *** invasions of privacy.” Ill. Const. 1970, art. 1, sec. 6.

       See Appendix.

       Beginning July 1, 1984, the provisions of sections 3 and 4 of the State Records Act which relate to the inspection and copying of records apply only as to records and reports prepared or received prior to that date. Records and reports prepared and received on or after July 1, 1984, are covered under the provisions of the Freedom of Information Act. Ill. Ann. Stat., ch. 116, par. 43.29 (Smith-Hurd 1984-85 Supp.).
      Section 1 of the Freedom of Information Act states: “Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.
      This Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.” Ill. Ann. Stat., ch. 116, par. 201 (Smith-Hurd 1984-85 Supp., eff. July 1,1984).


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. FLOWERS, Defendant-Appellant
    First District (1st Division)
    No. 84—0287
    Opinion filed April 29, 1985.

      James J. Doherty, Public Defender, of Chicago (Jeffrey M. Howard, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Mary Ellen Dienes, and Frank S. Gildea, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Robert Flowers, was charged by indictment with two counts of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2.) The indictment alleged that at approximately 10:45 p.m. on September 18, 1982, defendant robbed two women at knifepoint on the 1400 block of North Astor Street in Chicago. Defendant is a black man and both victims were white.

Defendant’s trial took place in the courthouse for the second district of the circuit court of Cook County, located in Skokie. Prior to jury selection, defense counsel made an oral motion to dismiss the venire based on an allegedly improper system of selecting venires which lead to an underrepresentation of blacks on venires in the second district. No offer of proof was made, and the trial judge denied the motion. Attorneys for both sides then excused the court reporter soon after the jury selection began. During the trial, defense counsel repeatedly commented that only white persons had been chosen to serve on defendant’s jury; however, the jury cards were not preserved. After hearing the evidence, the jury found defendant guilty on both counts of armed robbery. Following a sentence hearing, defendant was sentenced to 10 years in the Illinois Department of Corrections on each count, with the terms to run concurrently.

Defendant contends on appeal that the system of selecting a venire for second district cases violated his constitutional right to a jury drawn from a fair cross-section of the community. He alleges that potential jurors are given a choice of serving their terms of jury duty at the second district courthouse in Skokie. This so-called “personal choice” system, in defendant’s opinion, results in an underrepresentation of blacks on the venires because few blacks live in the “nearly all white northern portions of Cook County which make up the second district” and other blacks summoned for jury duty would prefer not to travel the “long distances” from their homes to the second district. As a result of this system, defendant claims that he was confronted with a venire selected in a racially discriminatory manner.

Defendant does not attack the statutory method of jury selection, which under Illinois law must be accomplished by chance. (Ill. Rev. Stat. 1981, ch. 78, pars. 8, 20 and 32.1.) Hence, his reliance on Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, and Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, is misplaced, since both involved challenges to statutes. Here, defense counsel alleged that some unknown person in the Cook County jury commissioner’s office informed him that it was the practice of the Cook County jury commission to assign people summoned for jury duty to the second district based upon where the juror lived. However, he neither made an offer of proof nor presented any evidence to substantiate his claim that the jury commissioner improperly injected geographical considerations into the system of assigning potential jurors. Absent any evidence to the contrary, we must presume that the Cook County jury commission properly performed its duties. See, People v. Beacham (1980), 87 Ill. App. 3d 457, 467-68, 410 N.E.2d 87, appeal denied (1980), 81 Ill. 2d 594.

In support of his contention, defendant now asks us to take judicial notice of 1980 Federal census statistics showing the proportionate presence of blacks in the total population of Cook County and in the municipalities comprising the second district. This data was not offered into evidence at trial and defendant’s motion to supplement the record on appeal with this information was denied. The State’s motion, which was taken with the case, to strike defendant’s brief because of its reliance on the Federal census statistics is now denied.

While the failure to offer these statistics into evidence at trial does not preclude our taking judicial notice (Island Lake Water Co. v. Illinois Commerce Com. (1978), 65 Ill. App. 3d 853, 857, 382 N.E.2d 835; People v. Walker (1978), 59 Ill. App. 3d 192, 205, 375 N.E.2d 843, appeal denied (1978), 71 Ill. 2d 613), they do not aid defendant’s cause. It is well established that, in the absence of evidence as the method by which the venire was selected, statistics relating to the percentage of blacks in the county are insufficient to make out a prime facie case of systematic and deliberate exclusion of blacks. (People v. Cross (1968), 40 Ill. 2d 85, 87-88, 237 N.E.2d 437, appeal dismissed (1968), 393 U.S. 221, 21 L. Ed. 2d 393, 89 S. Ct. 468; People v. Davenport (1969), 111 Ill. App. 2d 197, 200-01, 249 N.E.2d 328.) Here, other than defense counsel’s unsupported allegations, defendant failed to introduce any evidence as to how venires were selected in Cook County. Consequently, he failed to make out a prima facie case of systematic exclusion of blacks from the venires in the second district.

In addition, defendant failed to preserve properly this issue for appeal. A challenge to a particular jury array must be in the form of a written motion supported by affidavits containing facts which show that the jury panel was improperly selected. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 3; see also People v. Rosa (1982), 111 Ill. App. 3d 384, 444 N.E.2d 233; People v. Perry (1980), 81 Ill. App. 3d 422, 401 N.E.2d 1263, appeal denied (1980), 81 Ill. 2d 597, cert, denied (1981), 451 U.S. 983, 68 L. Ed. 2d 839, 101 S. Ct. 2313.) Moreover, the statutory provision dealing "with challenges to a venire provides:

“No objection, exception or challenge to any petit or grand jury or to any panel of petit or grand jurors shall be allowed at any time because of any failure to comply with the provisions of this act or of the said rules, unless the party urging the same shall show to the court that actual and substantial injustice has resulted or will result to him because of the error or defect charged.” Ill. Rev. Stat. 1981, ch. 78, par. 35.

In the instant case, there can be no dispute but that defendant’s oral motion did not comply with the statutory requirements for challenging the manner in which the venire was selected. Moreover, defendant has failed to show that “actual and substantial injustice has resulted” in the instant case. (See People v. Beacham (1980), 87 Ill. App. 3d 457, 410 N.E.2d 87.) By allowing the court reporter to be excused during the jury selection process and failing to preserve the jury cards, defendant precluded any showing that the particular venire and jury which he faced was racially imbalanced or improperly selected.

Given the evidentiary vacuum in this case and defendant's failure to properly preserve this issue for appeal, we have no choice but to affirm the trial court’s denial of defendant’s motion to dismiss the venire. Accordingly, we also affirm his conviction and sentence.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    SAMUEL BENJAMIN, M.D., Plaintiff-Appellant, v. CABLEVISION PROGRAMMING INVESTMENTS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—2561
    Opinion filed April 17, 1985.
    Harvey J. Barnett & Associates, Ltd., of Chicago (Harvey J. Barnett and Michael S. Blazer, of counsel), for appellant.

      Friedman & Koven, of Chicago (Michael D. Sher and Rowe W. Snider, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Plaintiff Samuel Benjamin, M.D., filed a complaint in the circuit court of Cook County seeking to rescind the purchase of one limited partnership interest in Cablevision Programming Investments (Cablevision), an Illinois limited partnership. Defendants are Cablevision and its general partners: Communications Management Corporation, Cable Equity, Inc., and Charles E Dolan. The action was brought under the Illinois Securities Law of 1953, as amended (the Illinois Act) (Ill. Rev. Stat. 1979, ch. 12D/2, par. 137.1 et seq.). The complaint alleged in count I that defendants had failed to comply with the registration requirements of section 5 of the Illinois Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.5). In count II, plaintiff alleged that defendants had failed to comply with the reporting requirements of section 4(G) of the Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.4(G)). On September 29, 1983, the court granted defendants’ motion to dismiss the complaint for failure to state a cause of action. Plaintiff appeals.

This is a case of statutory interpretation. At issue is whether the specific language of the section 5 registration requirements or the section 4(G) reporting requirements applies to this sale of a security to a California resident. There are no allegations of fraud or misrepresentation in the complaint.

In August 1980, plaintiff, a resident of California, purchased one limited partnership unit in Cablevision for $200,000. It is undisputed that plaintiff was never in Illinois in connection with this sale. Plaintiff was solicited for purchase in California. He was sent a subscription agreement which he executed, giving his address in Torrance, California. The subscription agreement was returned to defendants and accepted in Illinois. Notification of acceptance was sent to the plaintiff in California.

In December 1982, plaintiff sent the defendants a notice of election to void the sale of the limited partnership unit. The notice stated that plaintiff’s right to void the sale was premised on defendants’ failure to register the security pursuant to section 5 of the Illinois Act and their failure to qualify for any exemption therefrom, particularly an exemption under section 4(G). Plaintiff tendered his interest in Cablevision and demanded rescission. The defendants notified plaintiff that they would not void the sale, and this action followed.

Defendants’ motion to dismiss asserted that neither count of plaintiff’s complaint contained the requisite allegations of fact establishing that the sale of a limited partnership unit to the plaintiff was either a “sale in Illinois” (count I) or one made to “a person in this state” (count II). The trial court agreed and granted the motion to dismiss for failure to state a cause of action. On appeal, plaintiff contends that (1) the complaint sufficiently alleges that the sale of the limited partnership unit occurred in Illinois and (2) the section 4(G) exemption is not limited to purchasers who are Illinois residents or those physically present in Illinois.

The registration requirements of section 5 of the Illinois Act mandate registration “prior to a sale in this State ***.” (Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.5.) To support a cause of action for rescission, plaintiff must allege ultimate facts showing that the complained-of sale occurred in Illinois. (McBreen v. Iceco, Inc. (1956), 12 Ill. App. 2d 372, 139 N.E.2d 845; accord, Gottlieb v. Vaicek (N. D. Ill. 1975), 69 F.R.D. 672, affd without opinion (7th Cir. 1976), 544 F.2d 523.) Plaintiff argues that because the complaint alleges that the solicitation emanated from Illinois, that the documents were returned to Illinois, and that the offer was accepted in Illinois, it contains allegations sufficient to show that the sale to plaintiff was a sale in Illinois. Defendants argue that the exhibits to plaintiff’s complaint contradict plaintiff’s allegations because they indicate that plaintiff was a California resident, that plaintiff was solicited in California, that plaintiff executed the purchase agreement in California and that plaintiff received confirmation of the sale in California.

This is a case of first impression in Illinois. A few cases have examined the scope of a sale under the Illinois Act to determine when a sale has occurred (see, e.g., Silverman v. Chicago Ramada Inn, Inc. (1965), 63 Ill. App. 2d 96, 211 N.E.2d 596), but no court has ruled on the “sale in this state” requirement of section 5.

The leading case regarding a sale under the Illinois Act is Green v. Weis, Voisin, Cannon, Inc. (7th Cir. 1973), 479 F.2d 462, and both parties rely on it to support their positions. In Green, the plaintiffs were Illinois residents and were solicited for purchase in Illinois, except one plaintiff, also a permanent resident of Illinois, was solicited in Florida. Plaintiffs accepted defendants’ offer in Illinois and sent their purchase money to defendants’ Chicago office. The defendants in Green contended that because the checks were forwarded to their New York office and deposited in a New York bank account, the sale was a New York sale. The district court separated the transaction into its common law components and concluded that the transaction was a sale in New York because that was the site of the final acceptance. The seventh circuit reversed, noting that the statutory definition of “sale” under section 2.5 of the Illinois Act controlled and made the common law concepts irrelevant. The court found that the sales to the Green plaintiffs were sales in Illinois.

The seventh circuit determined that Illinois residents would be best protected if issuers were subject to the Illinois Act from the moment they solicited an offer in Illinois. To hold otherwise would allow the seller to solicit offers in Illinois yet escape responsibility under the Illinois Act by performing some activity entirely within his control at or from another location. The court concluded that such an interpretation would subvert the paternalistic purposes of the Act. Green v. Weis, Voisin, Cannon, Inc. (7th Cir. 1973), 479 F.2d 462, 465.

Similarly, in the instant case, the trial court analyzed the positions of the purchaser and seller relative to the purposes of the Illinois Act. The court rejected the idea of tracking all of the transactional steps to determine where the sale occurred and instead urged adherence to the principle that the purchaser’s location control the place of sale. The trial court noted that a purchaser is presumed to be familiar with the laws of his own State. He is, therefore, best protected when he can choose the site to consummate the important elements of the transaction and thus the law by which the transaction will be governed. This accords with the seventh circuit’s refusal to let the effectiveness of a law designed to protect purchasers be subject to the seller’s control. The trial court also stressed that construing the statute such that the purchaser’s location controls the place of sale would afford stability and certainty to cases brought pursuant to the Act. We agree that this construction is preferable to the artificial method of counting transactional steps in an effort to determine which State has more “contacts” with the transaction. This construction is also consistent with the seventh circuit’s finding that the location of transactional steps is irrelevant where the statutory definition of “sale” controls. Plaintiff failed to sufficiently allege a sale in Illinois, and count I of the complaint was properly dismissed.

Plaintiff also appeals the dismissal of count II of his complaint. He argues that the private offering exemption contained in section 4(G) of the Act is not limited to purchasers who were either physically present in or residents of Illinois when the transaction at issue otherwise involves a sale in Illinois. The language at issue is found in section 4(G) of the Act:

“The sale or sales of securities *** to not more than 35 persons in this state ***.” (Ill. Rev. Stat. 1979, ch. 1211/2, par. 137.4(G).)

Plaintiff contends that the phrase “in this state” modifies “sales,” which is governed by the broad statutory definition of the term in section 2.5. (Ill. Rev. Stat. 1979, ch. 121V2, par. 137.2 — 5.) He suggests that this construction furthers the legislative purpose of regulating and protecting sales that emanate from Illinois.

It is, however, clearly established in Illinois that in construing a statute, the language must be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 494; Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.) Courts are to enforce the law as enacted, to interpret the language used where it requires interpretation and not to read into it exceptions, limitations or conditions which depart from its plain meaning. (Chicago-Midwest Mead Association v. City of Evanston (1981), 96 Ill. App. 3d 966, 422 N.E.2d 205.) Further, the construction of a statute variant from its strict and literal meaning is justified only upon the ground that it effectuates the intent of the legislature manifestly disclosed by a consideration of the whole context. Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177.

The trial court in the instant case correctly noted that section 4(G) governs security offerings and not merely single transactions: a security offering is exempt from registration if the offers and sales to persons in this State are below the statutory number and if the sales to persons in this State are reported to the Secretary of State. The purpose of section 4(G) was to make more feasible small financing transactions in order to help small businesses raise capital. The 4(G) limitations were designed to strike a balance between protection of the public and freedom of action for the sellers of securities broad enough to effectuate the purpose of the private offering exemption and narrow enough to limit abuses. (Ill. Ann. Stat., ch. I2IV2, Appendix, Interpretive Comments and Notes on Securities Laws of 1953 as Amended, at 598 (Smith-Hurd I960).) The trial court examined the language of section 4(G) and concluded that the plain meaning of the words “in this state” barred the cause of action alleged in count II of plaintiff’s complaint. The trial court found further support for its construction in the doctrine of last antecedent, which provides that modifying words or phrases are construed to modify the words of phrases immediately preceding them and not preceding words and phrases that are more remote! People v. Thomas (1970), 45 Ill. 2d 68, 256 N.E.2d 794.

We agree. When considered in the context of section 4(G), plaintiff’s strained interpretation of the statutory language is unwarranted. The sale to this plaintiff is not covered by the statutory language “sale to a person in this state,” and therefore there was no duty to file a 4(G) report with the Secretary of State as to him. Count II was also properly dismissed.

Both parties have provided the court with cases from foreign jurisdictions, but an examination thereof is inconclusive since the underlying statutes differ from the Illinois Act. Defendants also provided the court with professional literature from the securities bar which seemed to indicate that the phrase “persons in this state” has historically been understood to mean “residents.” We agree, however, with the trial court that an analysis of this phrase is unnecessary in light of the plain meaning of the words as they relate to the facts in this case.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       The Illinois Act was amended in 1983 and section 4(G) was entirely rewritten.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE D. PECINA, Defendant-Appellant.
    Third District
    No. 3—83—0461
    Opinion filed April 26, 1985.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Steve Pecina and his brother, codefendant Florencio Pecina, were charged with the murder and robbery of Arthur Zielinski, tried jointly by a jury, found guilty of all charges, but convicted of felony-murder only, and sentenced to terms of imprisonment of natural life and 60 years, respectively, by the circuit court of Will County.

The issues raised in this appeal are: (1) whether the defendant was deprived of a fair trial when the trial court denied defense challenges for cause and a request for additional peremptory challenges during jury selection; (2) whether the trial court erred in refusing a defense-tendered jury instruction on voluntary manslaughter; (3) whether the prosecutor’s closing argument deprived the defendant of a fair trial; (4) whether the trial court erred or abused its discretion in sentencing the defendant to natural life imprisonment; and (5) whether the State failed to prove defendant guilty of robbery beyond a reasonable doubt.

At trial, the defendants’ pretrial statements were introduced by the prosecution, and each defendant testified on his own behalf concerning the events culminating in the victim’s death on the night of November 3, 1982.

The defendants’ statements and testimony, although not entirely consistent, tended to establish that Steve and a person identified only as “Jose” approached Florencio and asked him to drive them to a restaurant in Romeoville where Steve had been employed as a dishwasher. (Apparently, Steve had quit his job the previous weekend, had been in some minor trouble, and had just been released from police custody at the time of the events of November 3, 1982.) The restaurant owner purportedly owed Steve about $120 in wages, and Steve wanted to see about getting his job back.

Florencio agreed to provide the transportation and the three men proceeded in Florencio’s car to the restaurant. Prior to the drive, Steve had been drinking beer; and he may have been sniffing paint in the car with Jose. At the restaurant, Steve received a partial payment of his wages — $20—and was told by the owner that Arthur Zielinski, Steve’s former landlord, was looking for him because Steve owed Zielinski rent money. Steve denied that he owed Zielinski anything but said he would go to see him.

The men next drove to Zielinski’s home at 405 Montrose in Romeoville. Florencio had never been introduced to Zielinski previously, but all three men were invited inside, where they drank beer and whiskey, conversed, and played. a drinking game. The can of spray paint and the plastic bag used for sniffing it were brought from the car into the house, but the host, Zielinski, instructed the men not to sniff paint in his home. Eventually the men finished off the beer in the house, and Zielinski gave Steve money to buy more. Florencio drove Steve to a nearby Oseo Drug store, where Steve purchased a case of Old Style beer. They returned to Zielinski’s house, put the beer in the freezer and continued drinking. Testimony concerning Jose’s whereabouts at this point was conflicting — Florencio and Steve indicating Jose stayed at Zielinski’s house, and the assistant manager at the drug store indicating there were three Mexican gentlemen who purchased Old Style, one of whom was Steve.

Zielinski showed the men some wine decanters he was collecting and took Florencio to the garage to look at Zielinski’s black 1976 Lincoln Continental. According to Florencio, while there, Zielinski offered him money, clothes and the use of the Lincoln Continental if Florencio would sleep with Zielinski. The proposition angered Florencio. He threw a beer can into the car, told Zielinski to “get fucked” and went back inside the house. Steve asked what was wrong, and Florencio said Zielinski had made a pass. Zielinski retreated to his bedroom, and Steve pursued. An argument developed between Steve and Zielinski, and then Florencio joined them. A pushing/shoving match ensued and blows were exchanged, but no serious injuries resulted during this encounter. Both Pecina brothers and Zielinski returned to the living room area to continue drinking. Zielinski persisted in trying to talk with Florencio, but Florencio ignored him. Finally, Zielinski got mad and went back to his bedroom.

Steve pursued Zielinski again to the bedroom, and another fight broke out. Florencio’s testimony was that he heard a loud crack and went back to see what was going on. Steve was wielding a broken wine decanter. There was blood all over the bedroom, and Zielinski was not moving. Florencio tried to pull Steve off Zielinski’s body, but Steve turned on Florencio with a wild look. Florencio grabbed a knife, but then let it drop. He then retrieved the can of spray paint and attempted to cover up places throughout the house that he had touched. He also printed “L/K” on Zielinski’s body and on the walls of the house in an attempt to mislead the police into believing that the murder had been the work of the “Latin Kings” gang. Florencio fled from the scene alone in his car. The testimony was unclear as to when or how Jose left the house. He was not implicated in the killing.

Steve, a chronic alcoholic with memory lapses, awoke the next day in an alley. He recalled biting Zielinski’s ear and slicing it off with glass from the broken decanter. After slitting Zielinski’s throat, Steve recalled his brother coming into the room and trying to pull Steve off the victim. According to Steve’s testimony, his violence was sparked by Zielinski’s sexual advances toward Florencio and then fueled by Zielinski’s threat to harm Steve after Steve hit Zielinski on the head with the wine decanter.

According to the defendants, Zielinski was clad only in his underwear and a T-shirt during the entire evening. Corroborating testimony of Ronald Joseph Ortiz, who had also rented a room in Zielinski’s house, tended to establish that the scant apparel was the victim’s customary garb around the house. Zielinski had house rules that his renters not invite women into the house and that they not have wild parties on the premises. Steve stated that he knew Zielinski to be homosexual, Zielinski having previously admitted his preference to Steve.

The next day, November 4, 1982, Zielinski’s body was discovered by Virginia Hoefke, the victim’s ex-wife. Hoefke testified at trial that she had talked with her ex-husband briefly by telephone around 9 o’clock and again around 10 o’clock the evening of November 3, 1982. Although he customarily telephoned her at 6 a.m. to awaken her for work, she did not receive a call on November 4, and became concerned. Mrs. Hoefke drove over to the house, where she discovered initially that the garage door was open and that the black Lincoln Continental was not inside. She proceeded into the residence and through the rooms calling her ex-husband’s name until finally she came upon the grisly scene in the master bedroom. Mrs. Hoefke immediately ran for help and called the police. The police arrived, sealed off the crime scene and took photographs, several of which were introduced into evidence at the defendants’ trial. A wallet, identified as the victim’s, was found in the toilet. It was devoid of money. Glasses, identified as belonging to the victim, were found lying on the victim’s bedroom dresser. According to Hoefke, Zielinski’s eyesight was bad. He never did anything without wearing his glasses, removing them only to go to bed. The victim’s black Lincoln Continental was located on November 5, 1982, about six blocks from the Pecina residence in Joliet. Blood and urine samples extracted during an autopsy of Zielinski’s body and tested on November 8, 1982, revealed an alcohol concentration between .095 and .121 percent.

Lastly, investigating officers testified that they had recovered $3.09 in change found lying on a bedside table in a guest bedroom in the house, and neither of the Pecina brothers confessed to any knowledge about how Zielinski’s wallet came to rest in the toilet. Steve Pecina assumed that he had driven away from the murder scene in Zielinski’s black Lincoln Continental. He testified that Zielinski kept the car keys on his bedroom dresser near the telephone. Romeoville police officer Larry Vinson testified that he had observed a vehicle matching the description of Zielinski’s Lincoln Continental driving without its headlights illuminated in the vicinity of Zielinski’s house around 11 p.m. on November 3. It appeared to the officer that the headlamps were turned on after the Lincoln passed the officer’s marked squad car, but Vinson was not certain on that point.

Steve Pecina was charged with murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (3)); robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18— 1) based on the taking of a wallet; and robbery based on the taking of an automobile.

For reasons that will become clear, we choose to consider initially defendant Steve’s issues relating to whether he received a fair trial. Defendant’s first argument asserts that the defense should have been granted additional peremptory challenges upon denial of challenges for cause with respect to two jurors.

The jury voir dire included inquiries into the panel members’ attitudes towards insanity and intoxication defenses. All potential jurors with the exception of two men — Reginald Rych and Wayne Atwater — unhesitatingly agreed that they could keep an open mind with respect to the defenses. Both Rych and Atwater expressed initial reservations. Based on their equivocal responses, the defense attempted to challenge them for cause. The court then halted proceedings, called in a court reporter, and made a record of its admonitions that the jurors had to follow the law as instructed, keeping an open mind and setting aside personal beliefs. These two potential jurors responded to the court’s specific inquiries with the result that both men assured the court that they would be able to follow the law. The court ultimately denied the challenges for cause. Since defense counsel had exhausted all of their peremptory challenges by the time eight jurors had been selected, the defense team requested additional peremptory challenges. This request was denied as well. Atwater was ultimately selected as the jury foreman. Defendants argue in this appeal that they were forced to accept the two jurors and were, because of their possible biases, denied the fundamental right to an impartial jury. We cannot agree.

The responses of jurors Atwater and Rych, while somewhat equivocal upon the court’s initial general inquiry, were not such that it could be determined that the men could not be impartial. The trial court properly probed into the potential jurors’ possible biases against the proposed defenses of insanity and intoxication by asking them whether they would be able to keep their minds open and follow the law to give the defendants a fair trial or whether their personal views were so strong that they would influence their decisions regardless of the evidence. The trial court was in a position to evaluate the jurors’ responses and fairly decide their candor. Both men assured the court that they would determine the defendants’ guilt or innocence based on the facts admitted at trial and the law as instructed, rather than on their preconceived notions.

The trial court’s determination of whether prospective jurors can give the accused a fair trial should not be set aside unless that determination was contrary to the manifest weight of the evidence. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The decision to grant challenges for cause or a request for additional peremptory challenges rests within the sound discretion of the trial court. Bias is not to be presumed in the situation at hand, and clearly was not finally demonstrated. Having reviewed the record thoroughly, we conclude that the trial court’s denial of defendants’ challenges for cause and their request for additional challenges based on the voir dire of Atwater and Rych was not improper.

The next issue we must address is whether the trial court improperly refused the defense-tendered jury instruction on voluntary manslaughter. In criminal law, the rule is well engrained that a defendant is entitled to instruction on any defense shown by the evidence. The court may not weigh the evidence to determine whether such instruction may be given. The defense in this case vigorously argued both at trial and on appeal that some evidence had been adduced at trial which could support a verdict finding the defendants guilty of voluntary manslaughter,. rather than murder. While there was evidence tending to support the defenses of insanity and voluntary intoxication, we fail to find any evidence that would support the defendants’ theory that Zielinski was killed as a consequence of Steve Pecina’s sudden and intense passion resulting from serious provocation by the deceased. We hold that the trial court committed no error in refusing to instruct the jury on voluntary manslaughter.

Defendant next suggests that the prosecutor’s closing argument contained prejudicial remarks impugning defense counsel, defendants’ expert witness and the theories of defense presented at trial. Having reviewed the remarks complained of within the context of the closing arguments, we are satisfied that they did not operate to deny the defendants a fair trial. The trial court properly denied defendants’ motions for a new trial on the basis of claimed prosecutorial misconduct.

The defendant also takes issue with imposition of a sentence of natural life. The trial court found that defendant’s conduct was indicative of wanton cruelty, and the evidence supports that finding. Further, we cannot state that the trial court abused its discretion in imposing the very harsh sentence of natural life. However, because our resolution of the reasonable-doubt issue warrants a new sentencing hearing, we need comment no further on the severity of the defendant's sentence as originally imposed.

Defendant contends that his conviction of felony murder cannot be sustained because he was not proved guilty of the predicate offense — robbery—beyond a reasonable doubt. On this point, we agree with the defendant.

At trial, the State’s theory of the commission of robbery and felony murder was that Zielinski had retired for the night before one or both of the Pecina brothers went into the bedroom to take their host’s money and automobile keys. Zielinski resisted and was murdered as a consequence. To sustain the felony murder conviction, it is fundamental that each element of the predicate offense — in this case, robbery— be proved beyond a reasonable doubt. The felonious-mental-state element of felony murder in this case is merely the general intent element inherent in the statutory offense of robbery. (See People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244.) The State was also required to prove, however, the gist of robbery — a taking by force or the threat of force. People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244.

Defense counsel for both defendants have strenuously objected throughout the trial and on appeal, contending that the State failed to prove that force or threat of force had been used against Zielinski for the purpose of making him relinquish his wallet and car. As was recently observed by our supreme court, an essential element of robbery is “that the robber use violence or fear of violence as the means to take property in the control of the victim.” (Emphasis added.) (People v. Tiller (1982), 94 Ill. 2d 303, 316, 447 N.E.2d 174, 181.) Although the Tiller decision had not been presented to the trial court when it ruled in this case, we now have the benefit of our supreme court’s reasoning in a factually analogous situation which merits our careful consideration.

In Tiller, evidence introduced at the trial indicated that Tiller, a companion, Andre Jones, and a cousin, Laurie Elem, set out on a walk one morning and decided to rob a man they observed at a brickyard along the way. The man was loading some bricks. The man, Mr. Staltz, was fatally wounded by a shot in the eye and relieved of his watch and keys. The trio continued their walk and decided to rob a dry cleaners. They entered and took clothing, curtains, a television set and money from the establishment, and inflicted upon the proprietor two fatal gunshot wounds to the skull. It appears that a mail truck, operated by postal employee Debra Brown, arrived on the scene during the course of the cleaners’ robbery. Brown died from two gunshot wounds — one in the chest and the other in the mouth. The exact sequence of events culminating in Brown’s death is unclear, since Elem, who gave the only eyewitness testimony for the State concerning the events immediately preceding the cleaners robbery, had gone home before her companions decided to rob the cleaners.

Tiller testified at trial on his own behalf. He stated that, in addition to drinking beer and a wine-like beverage during the morning stroll, he had ingested five pink pills of unknown composition and suffered some memory loss concerning the day’s activities. He denied having direct responsibility for any of the three deaths and testified that he had instructed Jones not to hurt the “mail lady.” Later, however, the defendant used the mail truck to facilitate removal of the television set from the cleaners to Elem’s apartment. The defendant checked through the undelivered mail, located income tax refund checks, and presented a couple of them to his friend, Annette Simpson. According to Simpson, the defendant admitted to her that he had killed the “mail lady,” but Simpson did not believe it. Later, the defendant abandoned the mail truck.

On defendant’s motion, prosecution of the offenses against the brick loader was severed from the trial for offenses at the scene of the dry cleaners. A jury instructed, inter alia, on accountability and felony-murder found Tiller guilty of the murders, armed robberies and armed violence of Brown and the dry-cleaners proprietor, as charged. On appeal, the defendant contended that the State’s evidence was insufficient to prove the armed robbery of Debra Brown. After setting forth the principles of law pertinent to the issue, the court stated:

“It is not clear from the record what transpired in the cleaners, but there is no evidence to show that the force exerted against Miss Brown was for the purpose of depriving her of the mail truck or the mail in it. We conclude that the conviction for the armed robbery of Miss Brown must be reversed.” (People v. Tiller (1982), 94 Ill. 2d 303, 316, 447 N.E.2d 174,181.)

The court went on to reverse the defendant’s conviction for the armed violence of Debra Brown on the grounds that reversal of the underlying felony — armed robbery — required such result. 94 Ill. 2d 303, 323, 447 N.E.2d 174, 184.

Subsequent to Tiller, our supreme court considered yet another armed robbery/murder case which the defendant has asked us to consider. People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705.

In Taylor, one occurrence witness, Ronald Howell, testified at trial that on March 7, 1979, he heard two shots while riding the elevator of an apartment complex. Upon arriving at the lobby, he found the victim, Freddie Lampton, lying near the stairs. Two acquaintances were standing in the lobby. Howell advised one bystander, Steve Davis, to telephone the police and the other, Cynthia Cobb, who was hysterical, to leave the scene. Then Howell saw the defendant, Robert Taylor, emerge from “somewhere” and bend over Hampton’s body. Howell testified that he thought he saw the defendant remove the victim’s watch and take something from his pocket, but Howell was not sure. Taylor then pointed a big silver gun at Howell and told him not to move. Nonetheless, Howell made his escape and reported the incident to the police the next day.

Cobb’s version of the events differed slightly. Cobb said she was in the complex lobby when she heard two men arguing and two gunshots. She ran from the building, but returned in a few minutes and observed an unidentified man with hands in his pockets walking quickly out of the building. Upon re-entering the lobby, Cobb saw Hampton’s body lying near the stairs and Davis and Howell standing in the lobby.

Other testimony established that the victim was intoxicated at the time of his death and had no personal belongings on him when the police arrived other than one piece of paper. The victim’s widow testified that Hampton had had a wallet and watch when she last saw him on March 6, 1979. Hampton had been paid wages of $286.88 on March 7, and had endorsed his paycheck the same date. Taylor and another man were apprehended by the police in the vicinity and shortly after the shooting was reported. The arresting officer seized $158 from the defendant. A gun also found in Taylor’s possession was determined to be the murder weapon.

Based on the foregoing evidence, defendant argued that the evidence was insufficient to establish either that the victim had any personal property in his possession immediately prior to the shooting or that a forcible taking of property had taken place. Our supreme court, citing to Tiller, agreed with both contentions, with the consequence that both the defendant’s armed robbery conviction and his death penalty were vacated.

We have also read Woods v. Linahan (5th Cir. 1981), 648 F.2d 973, and People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4, cited in Tiller, and find certain factual similarities which also tend to support defendant’s position here. In Pack, the attempted murder victim was defendant’s former part-time employer who owed him money for recent work. The defendant went to her house. Through the window he saw the woman asleep. He entered the house, choked her until he thought she was dead, took money from her purse and fled. The defendant pleaded guilty and was convicted of robbery and attempt (murder). On appeal, the court reversed the robbery conviction, finding “no factual basis *** to support the robbery charge. Force was used against the victim with the intent to kill, not to steal. The subsequent taking of property, apparently an afterthought, established only theft, which is not a lesser included offense of robbery.” 34 Ill. App. 3d 894, 899-900, 341 N.E.2d 4, 8.

In Woods, the defendant and a codefendant were hitchhiking when the victim picked them up. The defendant subsequently struggled with the driver and killed him. She then removed $120 from the victim’s wallet because she needed money to return to Atlanta. Evidence further established that, prior to the shooting, defendant and the codefendant only had $20 between them. On these facts, defendant was convicted of voluntary manslaughter and armed robbery. On appeal, the armed robbery conviction was reversed since the evidence failed to prove that defendant shot the victim in order to rob him.

In the instant case, as in Tiller, Taylor, Pack and Woods, we find no direct evidence that the violence used on the victim, Arthur Zielinski, was applied as a means to force him to part with any property, as theorized by the State. The fact that Steve Pecina had earlier in the evening set out to get some money owed him by his former employer suggests the possibility that he may have found the $20 given to him by the restauranteur insufficient and that he wanted or needed more, but a conviction cannot be sustained where an essential element of the offense rests on mere innuendo or suggestion. Indeed, the defendant’s testimony, indicating that his violence towards the victim was the product of rage incited by Zielinski’s purported homosexual advances towards his brother, Florencio Pecina, could be an equally possible theory. It is unclear why, when or how Zielinski’s glasses came to rest on his bedroom dresser. The State theorizes that Zielinski must have placed them there before he retired and that he was, accordingly, in his bed when the Pecina brothers entered the room to rob him. At trial, however, when asked on cross-examination where the victim was when he was attacked, Steve said that Zielinski was standing by the dresser. If so, then it is possible that, as recited in the Pecina brothers’ pretrial statements and in their testimony, the victim was pursued by Steve in the heat of his anger over the purportedly insulting homosexual remarks by Zielinski, and was attacked near the dresser upon entering the bedroom and before Zielinski prepared himself for bed.

Although we find that the facts in the present case present a very close question on this issue, in the interest of justice we are inclined to resolve it in the defendant’s favor. In our opinion, the inferences that would have to be drawn from the circumstantial facts presented by the prosecution in support of a robbery motive for the killing in this case are simply too tenuous to support the conclusion that the violence heaped upon Arthur Zielinski by his former tenant on the night of November 3, 1982, was for the purpose of robbing him. Consequently, the defendant’s felony murder conviction predicated upon robbery must be reversed.

The defendant suggests that resolution of this issue in his favor would result in his discharge, since no other convictions were entered by the trial court. The State disagrees and suggests instead that, in the event the felony murder conviction must fall, we “reinstate” a conviction of murder.

We are aware of no cases in which the precise procedural issue presented in this matter has been addressed. In the usual situation, when multiple-jury verdicts of guilty are returned, the trial court enters judgment on the verdicts, sentences the defendant on one or more counts, and an appeal is taken from the convictions for which he was sentenced. (See, e.g., Pack, Tiller, People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1). The process in this case, however, was short-circuited at the request of the prosecution.

We should emphasize that the defendant was charged with murder under both sections 9 — 1(a)(1) and 9 — 1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), 9 — l(aX3)). The theories of defense presented on behalf of Steve as to the intentional murder charge included insanity and voluntary intoxication. At the close of all evidence, the jury was appropriately instructed on each charge as well as on these defenses. The jury’s verdicts of guilty on all charges demonstrate that they rejected the defenses and found that the defendant had killed Zielinski with the intent to do great bodily harm to him. However, on April 1, 1983, when the verdicts were received and before judgment could be entered on them, the prosecutor requested a continuance for the purpose of deciding whether or not the State would seek the death penalty. In response, the trial court stated:

“Since there is a number of judgments — there are a number of verdicts, we couldn’t enter judgment on all of these. I will just withhold the entry of judgment until that date, and we can.”

On July 7, 1983, the date set for the defendants’ sentencing hearing, motions for new trial were presented on behalf of each defendant and denied by the trial court. Then, before proceeding to the hearing, the court solicited the prosecutor’s suggestions as to the verdicts upon which judgment should be entered. The prosecutor responded as follows, “[A]s being sentenced to murder, the State *** would be asking that the judgments at this time be entered upon the felony murder as to both Steven and Florencio Pecina, as well as the robberies.” The court accepted the State’s recommendation and proceeded as follows:

“The Court then would enter judgment in this case as follows, and I will take these one at a time starting with these counts.
With regard to Count 1, the Court would vacate the judgment of — would vacate the verdict and not enter judgment of conviction as to Count 1 as to Steven and Florencio Pecina on the offense of murder.
With regard to Count 2, which charges an accountability charge as to Florencio Pecina only, the Court would also vacate that count.
As to Count 3, which charged felony murder or by definition, the murder committed while committing the forcible felony of robbery, the Court would enter a judgment of conviction on that count as to both Steven and Florencio Pecina.
* * *
The Court would in Count 5 enter a judgment of conviction as to Steven and Florencio Pecina as to the count of robbery, a Class 2 felony.
Does the State have any — so then, it is clear then as to which counts we have judgments of conviction on, the sentencing is proceeding as to Count 3, felony murder, Counts 4 and 5, robbery.”

A week later, after sentencing the defendants to natural life and 60 years on the felony murder convictions, as aforesaid, and concurrent terms of 14 years each for the robbery convictions, the court sua sponte vacated the robbery convictions and sentences pursuant to People v. Abrams (1982), 109 Ill. App. 3d 901, 441 N.E.2d 352, People v. Jordan (1983), 116 Ill. App. 3d 269, 452 N.E.2d 93, and People v. Wampler (1983), 116 Ill. App. 3d 1177 (Rule 23 order).

From our review of these proceedings, it is clear that the sole basis for vacating the jury verdicts on murder under count I was to avoid erroneously entered judgments of conviction on multiple counts of murder. We have concluded that felony murder cannot stand. To permit the defendants to be discharged at this point and enjoy an unjustified windfall simply because judgments were never entered on the intentional murder verdicts would make no sense at all, either at law or on the facts before us. We hold that the “vacated” jury verdicts of guilty on charges of intentional murder may be reinstated on appeal. Accordingly, we have exhaustively reviewed the record on appeal so as to afford these defendants their right to due process. In addition to those issues raised by appellate defense counsel, we have painstakingly reviewed the defendants’ motions for a new trial to determine whether there is any reason not to remand these cases for entry of judgment on the verdicts of intentional murder. While we have found no error, we would not deny these defendants yet another opportunity to appeal their murder convictions to this court if, after resentencing, they elect to advance arguments attacking them on new grounds.

For the foregoing reasons, we remand this cause to the circuit court of Will County with directions to enter judgment on the jury’s intentional murder verdict and to conduct a new sentencing hearing.

Reversed and remanded with directions.

SCOTT and STOUDER, JJ.; concur.

       See People v. Woods (1978), 61 Ill. App. 3d 676, 683, 378 N.E.2d 598, 603. Defendant was found guilty of attempt (armed robbery) and attempt (murder). The trial court entered judgment on the jury verdicts but did not impose a sentence for the former offense. On appeal, the court, citing People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540, and People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, held that appellate jurisdiction was sufficiently broad to permit a remand for the purpose of imposing sentence on the attempt (armed robbery) verdict despite defendant’s “careful avoidance of any issue as to the incomplete conviction.” (See also People v. Surges (1981), 101 Ill. App. 3d 962, 428 N.E.2d 1012.) The defendant was found guilty of armed robbery, burglary and unlawful restraint. The trial court entered judgment of conviction on the burglary and armed robbery verdicts but not on unlawful restraint. The burglary verdict was subsequently vacated and the court sentenced the defendant on armed robbery and unlawful restraint. On appeal, the court held that the imposition of sentence itself constituted the final judgment on unlawful restraint and no reason existed for vacating that sentence on the basis of an “incomplete judgment.” And see 24 C.J.S. Criminal Law sec. 1599 (1961), wherein it is stated generally that Illinois follows the rule that entry of judgment on a jury verdict finding the defendant guilty may be inferred.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLORENCIO PECINA, Defendant-Appellant.
    Third District
    No. 3-83-0460
    Opinion filed April 26, 1985.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant stands convicted of felony murder for the killing of Arthur Zielinski on November 3, 1982. The facts of this case are adequately stated for the purposes of this appeal in the companion case entitled People v. Pecina (1985), 132 Ill. App. 3d 948, decided this date, and need not be repeated here. In People v. Pecina, we concluded that the State’s evidence failed to establish that a robbery of the victim, the predicate offense for the charge of felony-murder, had taken place on the night in question. See People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.d 705; People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174; and Woods v. Linahan (5th Cir. 1981), 648 E2d 973.

For the reasons stated in the companion case, this defendant’s conviction must be reversed. The remaining issues raised by this defendant on appeal are: (1) whether the trial court deprived defendant of his right to an impartial jury by denying the defense challenge for cause and a defense request for additional peremptory challenges; (2) whether the trial court erred in refusing to instruct the jury on voluntary manslaughter; (3) whether defendant was denied the constitutional right to a fair trial because of prejudicial conduct by the prosecutor during closing argument; (4) whether this cause should be remanded for resentencing because the trial court erroneously believed that defendant could be sentenced to death; (5) whether the trial court erred in sentencing defendant to an extended term of imprisonment; and (6) whether defendant’s extended-term sentence of 60 years’ imprisonment is clearly excessive.

As in the case of Steve Pecina, we have carefully reviewed the arguments and the record on appeal to determine whether any issues that might have affected a conviction for murder under section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)) would preclude a remandment for the purpose of entering judgment on the jury’s verdict of guilty on the intentional murder charge. As in the case of Steve Pecina, we have found no reversible error, but we remand for resentencing on the alternate murder conviction, and we will not deny the defendant another opportunity to raise before this court issues respecting his murder conviction on grounds not previously considered.

The conviction for felony murder is reversed, the sentence is vacated, and the cause is remanded "with directions to enter judgment of conviction for murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — l(aXl)) and to conduct a new sentencing hearing.

Reversed and remanded with directions.

SCOTT and STOUDER, JJ., concur.