author: JUSTICE HEIPLE PRESIDING JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCIS M. ECKLES, Defendant-Appellant.
    Third District
    No. 3—83—0660
    Opinion filed October 29, 1984.
    ALLOY, P.J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Francis Eckles, appeals from his conviction for the offense of residential burglary. He was sentenced to a term of five years’ imprisonment.

The issue on appeal is whether the defendant’s confession was involuntary, and whether the court erred in finding it voluntary and admitting it into evidence. The defendant argues that the confession was rendered involuntary as a result of a promise of leniency given the defendant prior to his admissions.

Two witnesses testified at the suppression hearing. The defendant testified that the evening prior to his interrogation he was picked up by police while standing with a friend on the street. He was asked to get in the back seat of the squad car and did so. As the officer drove toward the police station he received a radio message indicating that the defendant was to come to the police station the next day to answer questions about a residential burglary. The defendant was released from the car.

The following day the defendant went to the police station. Officer Michael Lage asked the defendant whether he was involved in a burglary and said that the police had a witness who had implicated the defendant. The defendant denied any involvement.

Lage testified that when the defendant continued to deny any involvement, he told him that an investigation would be made of the burglary and that the defendant should tell if he was involved in the burglary and not wait. Lage told the defendant that it would be in his (defendant’s) best interests to get the truth out as fast as possible. Officer Lage also told the defendant that if he told the truth and cooperated, Lage would inform the State’s Attorney and testify in court as to the defendant’s cooperation. Shortly after, the defendant admitted his participation in the burglary. He was then advised of his rights, waived them, and made a tape-recorded statement admitting to the burglary.

The trial court is in the best position to determine the voluntariness of a confession, and its determination will not be reversed unless contrary to the manifest weight of the evidence. Relying on People v. Heide (1922), 302 Ill. 624, and People v. Ruegger (1975), 32 Ill. App. 3d 765, the defendant argues that his confession was compelled by a promise of leniency.

Officer Lage first told the defendant that it would be in his best interest to get the truth out as quickly as possible. Based on Heide, the defendant characterizes this exhortation as an implied promise of leniency. At first glance, Heide appears to hold that use of the words “you had better” or “you would be better off” carries the implication that the accused would be treated better if he made a statement. However, later cases have rejected this interpretation.

In People v. Klyczek (1923), 307 Ill. 150, the supreme court held that:

“It is not reasonable to suppose that advice to one accused of crime that it is better for him to tell the truth would of itself be an inducement to him to tell an untruth or would alone be a sufficient inducement to make a statement falsely confessing crime. Mere exhortation to tell the truth will not make a confession afterward made inadmissible, but the statement that it is better to tell the truth may be made under such circumstances as to make a confession afterwards made incompetent. If there is coupled with the advice a suggestion of a benefit in the particular case, a confession by reason of such advice and suggestion is incompetent.” 307 Ill. 150, 154.

Standing alone, Officer Lage’s advice to the defendant is insignificant. In order to constitute a promise of leniency, his statements must be coupled with a suggestion of a specific benefit which would follow if the defendant confessed. People v. Ardelean (1938), 368 Ill. 274; People v. Joe (1964), 31 Ill. 2d 220.

It is true that Officer Lage also told the defendant that he would inform the State’s Attorney and the court of the defendant’s cooperation. However, in People v. Hubbard (1973), 55 Ill. 2d 142, the supreme court rejected the argument that this type of statement was a promise of leniency. The import of Hubbard is that such an offer does not imply that the State’s Attorney will be lenient simply because he is made aware of the defendant’s cooperation..

People v. Ruegger (1975), 32 Ill. App. 3d 765, also cited by the defendant, is in no way similar to this case. In Ruegger the police advised the defendant to tell the truth and offered to “go to bat for him” on such matters as a recognizance bond and probation if he confessed. This was a specific promise of special treatment as contemplated by the cases interpreting Heide. A promise to assist a defendant in obtaining bond and a sentence of probation is vastly different from an offer to simply inform the prosecutor and the court of a defendant’s cooperation. The latter offer is open-ended, with no promise of a specific result.

The ultimate question to be answered here is whether, considering the totality of attendant circumstances, the defendant’s will was overcome at the time he confessed. (People v. Noe (1980), 86 Ill. App. 3d 762, 765.) Case law clearly indicates that Officer Lage’s statements cannot be reasonably construed as improper inducements. The remaining factors such as the defendant’s age, intelligence, experience and the intensity of his interrogation do not show that the defendant’s will was overcome at the time he confessed.

The defendant was questioned for approximately 25 to 35 minutes, which can hardly be described as an intense interrogation. Although the defendant was only 19 years old, with a ninth-grade education, there is no evidence that he possessed a subnormal I.Q. Standing alone, these factors do not render the defendant’s confession involuntary.

Based on the foregoing, we find that the defendant made a voluntary confession and that the trial court did not err in admitting the statement. The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE ALLOY,

dissenting:

I respectfully dissent.

In the instant case, the trial judge noted that the question of voluntariness was a close one. Pertinent facts were produced at a pretrial suppression hearing on the question of the confession’s voluntariness. Two witnesses testified at the hearing: Michael Lage, a Rock Island police investigator, and the defendant, Francis Eckles. The defendant testified that the evening prior to his interrogation he was picked up by police while standing with a friend on the street. He was asked to get in the back seat of the squad car and did so. As the officer drove toward the police station he received a radio message indicating that the defendant was to come to the police station the next day to answer questions about a residential burglary. The defendant was released from the car. The defendant testified that he felt the police would issue a warrant for his arrest if he did not go to the station the next day.

He arrived at the station in the afternoon of the following day, where Detective Lage met him and took him to a small room. Lage did not advise him that he was under arrest.

Both Lage and defendant Eckles testified that Lage asked Eckles whether he was involved in the burglary and further informed Eckles that they had a witness who said he was involved. Eckles denied any involvement in the burglary at least three times. Lage testified that when the defendant continued to deny any involvement, he told the defendant that an investigation would be made of the burglary. He informed Eckles that he should tell if he was involved in the burglary and not wait. He told Eckles that it would in his (defendant’s) best interests to get the truth out as fast as possible. Lage and the defendant both testified about a promise made by Lage to defendant. Detective Lage told Eckles that if he (Eckles) told the truth and cooperated, Lage would inform the State’s Attorney and testify in court as to his cooperation. Shortly after, the defendant admitted his participation in the burglary. He was then advised of his rights, waived them, and made a tape-recorded statement admitting to the burglary.

The defendant’s testimony was that he stopped denying involvement in the burglary and made his admissions because of the promise by Lage to go to court and testify about his cooperation. The defendant, at the time, was 19 years old, with a ninth-grade education. His testimony was that he felt Lage’s help might make things go easier for him. It was disputed as to whether Lage also said that they would be lenient with Eckles if he confessed. Lage denied making that statement.

The court took the suppression motion under advisement, noting it was “an extremely close case.” The motion was later denied, the court determining the confession was voluntary.

The issue is the voluntariness of the confession. While we are generally reluctant to overturn the decision of the trial court on matters of this nature, because of the superior position that court is in to determine credibility and weight, in the instant case the record is clear and largely undisputed. Both Lage and defendant Eckles indicated that Eckles initially denied any involvement, but changed his mind and confessed after Lage had exhorted him that it would be in his best interests to tell the truth and promised him that he would inform the State’s Attorney of his cooperation and testify for him in court. Regardless of whether Lage expressly mentioned that leniency would result from the defendant’s cooperation, the clear import of his promises was that lenient treatment would likely follow if he gave a statement. Furthermore, the record indicates that the defendant’s decision to confess was in large part in response to the encouragement from Detective Lage. In People v. Heide (1922), 302 Ill. 624, 628-29, 135 N.E.2d 77, the Illinois Supreme Court detailed the effects of such promises:

“The natural effect on the minds of the plaintiffs in error of such statements [to tell the truth and State’s Attorney might show leniency] by the officers would be to cause them to feel that they were being advised to speak, and that if they told the truth they would be taken to the State’s Attorney’s office and allowed to make a statement, and then whatever he did for them would be better for them on account of their telling the truth.”

In People v. Ruegger (1975), 32 Ill. App. 3d 765, 336 N.E.2d 50, the court relied upon the rule enunciated in Heide in affirming the trial court’s conclusion that a confession to police, after statements from them that they would “go to bat” for the defendant, was involuntary. (32 Ill. App. 3d 765, 771.) We are mindful that voluntariness must be determined from the totality of the circumstances, and that other factors, including age, intelligence, experience, length of time and intensity of interrogation, as well as prior refusals to answer questions, are to be considered. Yet, in the instant case, consideration of those factors indicates the involuntariness of the statements made by defendant. He had previously refused to answer questions about any involvement. Only after the inducement by Detective Lage, holding forth the promise of lenient treatment and his own willingness to testify for him at court, did the defendant confess. Further, this defendant was 19 at the time, with only a ninth-grade education. Given these factors, and the lack of others indicating voluntariness, I would find that the trial court was in error in concluding that the confession was voluntarily made by Eckles.

The conclusion that People v. Hubbard (1973), 55 Ill. 2d 142, 302 N.E.2d 609, controls the instant case must be rejected. The issue in Hubbard received a two-sentence treatment. (55 Ill. 2d 142, 152.) Moreover, in Hubbard, the facts indicated that the defendant’s initial statements came before any promises or suggestions of leniency and the defendant, in his statement, stated that no promises had been made of any kind. (55 Ill. 2d 142, 149-50.) As to other cases cited by the State, it is sufficient to point out that this case involves more than the mere exhortation to tell the truth and more than unsubstantiated hope by the defendant that his cooperation will be reciprocated by lenient treatment. As detailed previously, the officer here promised to speak to the State’s Attorney on the defendant’s behalf, and to testify in court. Accordingly, I would find the court erred in its conclusion that the defendant’s statement was voluntarily given, and I would reverse the conviction.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY DAVIDSON, Defendant-Appellant.
    Second District
    No. 2—83—1114
    Opinion filed October 26, 1984.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Larry Davidson, appeals his six-year extended sentence imposed by the circuit court of Lake County for the offense of unlawful use of weapons. Defendant contends the trial court abused its discretion in imposing an extended-term sentence and in ordering that it be served consecutively with the sentence imposed upon revocation of his mandatory supervised release (MSR). Defendant also asserts that imposition of the extended-term sentence and the consecutive sentence constitutes an impermissible double enhancement. Since we conclude that the trial court did not abuse its discretion and that defendant’s sentence does not constitute an impermissible double enhancement, we affirm.

Defendant was charged in three counts on November 3, 1983, with aggravated battery, battery and the unlawful use of weapons, and the battery counts were severed. Specifically, defendant was charged with commission of the offense of unlawful use of weapons by knowingly possessing a shotgun having a barrel less than 18 inches in length in violation of section 24 — 1(a)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(7)). The record discloses that defendant tendered an oral statement later reduced to writing that he possessed on October 2, 1983, a shotgun identified at trial as People’s Exhibit No. 1 which was established to be a 12-gauge, single-action shotgun with an lU/a-inch-long barrel. At trial, however, defendant denied possessing a shotgun that evening and stated that he confessed because the transcribing officer promised in return to release him from jail that day.

After a jury trial, defendant was found guilty of unlawful use of weapons. In a presentence probation department report expressly considered by the court at the sentencing hearing, defendant was described as a 19-year-old with a 10th-grade education, living with his family and unemployed for more than seven months prior to the incident. He had worked prior to that period of unemployment at two fast-food restaurants, but quit both jobs. The report continued that defendant had used alcohol and numerous drugs, including marijuana, cocaine and codeine since the age of 14 and attributed in part his criminal activity to his drug use.

The report listed no juvenile record, but did state that defendant pleaded guilty in January 1982 to voluntary manslaughter and was sentenced to a three-year term in the Department of Corrections. Defendant was released on June 11, 1982, and his MSR term was scheduled to terminate on June 11, 1984. While on MSR, defendant was arrested and fined for disorderly conduct and misdemeanor theft. Defendant also had pending four misdemeanor charges, but the trial court stated it was not considering them in sentencing defendant.

The State requested at the hearing a minimum eight-year extended term because of his prior felony convictions, the character of the weapon involved, and defendant’s lack of remorse. Defendant argued against imposition of an extended term, citing his mere possession and not use of the gun, his drug problems, his supportive family, and the probation officer’s conclusion that defendant was a marginal candidate for probation. However, as the State highlights, the officer also reported that due to the nature of the crime and defendant’s prior record, defendant might pose a threat to the community and characterized defendant’s past manslaughter conviction and the instant weapons conviction as aggressive and violent.

Upon considering this evidence, the trial court on December 15, 1983, sentenced defendant to a six-year extended term to be served consecutively with defendant’s term for revocation of his MSR in case number CF1712. According to Department of Corrections’ records, eight months and nine days remain to be served on the MSR portion of defendant’s'Sentence for the voluntary manslaughter conviction.

Defendant first contends the trial court erred in sentencing him to an extended term of imprisonment because the sentence is disproportionate to the nature and circumstances of the subject offense and is counterproductive to the objective of rehabilitation. Defendant does not contend that the trial court exceeded its statutory authority in imposing his sentence. As defendant concedes, the trial court was authorized on the basis of sections 5 — 5—3.2(b)(1) and 5 — 8—2(b)(5) to impose a minimum sentence of five years and a maximum sentence of 10 years for the instant Class 3 felony conviction. Ill. Rev. Stat. 1981, ch. 38, pars. 1005-5-3.2(b)(l) and 1005-8-2(b)(5).

Scope of review of sentence is limited (People v. Smith (1982), 110 Ill. App. 3d 286, 288, 442 N.E.2d 294, 296), and where, as here, the sentence is authorized by statute, the reviewing court will not reverse the sentencing decision unless the trial court has abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Shumate (1981), 94 Ill. App. 3d 478, 484, 419 N.E.2d 36, 42.) To be upheld, however, the sentence must measure the possibility of rehabilitation and be in proportion to the nature of the offense. (People v. Smith (1982), 110 Ill. App. 3d 286, 288, 442 N.E.2d 294, 296; People v. Shu mate (1981), 94 Ill. App. 3d 478, 484-85, 419 N.E.2d 36, 42.) Only if the sentence is greatly disproportionate to the nature of the crime will an abuse of discretion be found to exist. People v. Smith (1980), 81 Ill. App. 3d 764, 774, 401 N.E.2d 1017, 1024.

In support of this contention that his sentence is excessive, defendant argues that his chances for rehabilitation are good. However, defendant fails to cite any substantive evidence establishing his rehabilitative potential. Rather, defendant refers to his youth and states that his teenage values are not incapable of being improved. For the most part, defendant attempts to establish his rehabilitative potential by construing his prior misdemeanor and felony convictions in a positive light. While defendant downplays his two previous disorderly conduct convictions and his theft conviction as not indicative of a “hardened attitude of contempt for the law,” these convictions do indicate his unwillingness to live within the requirements of the law. Also, as the State notes, the trial judge specifically stated that defendant did not display any remorse and the record demonstrates that defendant was contemptuous of the law enforcement officers upon his arrest. Defendant’s commission of the instant crime while on MSR is further evidence that he will not be easily rehabilitated.

We also find unpersuasive defendant’s contention that his convictions for voluntary manslaughter and unlawful use of weapons do not indicate to some extent defendant’s propensity for violence. While the record is devoid of the facts resulting in the voluntary manslaughter conviction, inherent in the crime itself is some element of violence. Even if defendant’s “bluffing” explanation is taken as true concerning the unlawful weapons charge, use of a potentially dangerous weapon in an offensive way to dissuade another from taking violent action in itself demonstrates violent conduct. Furthermore, the very nature of the weapon used — the sawed-off shotgun — makes unlikely any nonviolent use. We therefore agree with the State’s contention that defendant’s conviction involved a serious offense suggesting his predisposition toward violence.

The cases relied upon by defendant in which the reviewing court reduced the sentencing decision of the trial court are distinguishable. In People v. Gokey (1974), 57 Ill. 2d 433, the defendant was convicted of an unlawful use of weapons and received a one-year sentence. The supreme court reduced the sentence to three months for two reasons: (1) because the defendant testified that he was carrying $7,200 and therefore possessed the gun for protection and (2) because the term was greater than those commonly imposed even under more aggravated circumstances. (57 Ill. 2d 433, 439.) In contrast, defendant has not cited evidence to this court that his term is excessive in relation to sentences imposed in other cases for the same offense. Also, as the State notes, the Gokey court did not refer to any prior criminal history of the defendant; here, the court specifically referred to defendant’s voluntary manslaughter conviction and his violation of his MSR as aggravating factors.

In People v. Odom (1980), 82 Ill. App. 3d 853, 403 N.E.2d 297, also cited by defendant, the offender was convicted of criminal damage to property and was sentenced to a prison term of 364 days. His previous criminal record included four misdemeanor battery convictions, one conviction for aggravated assault, three misdemeanor convictions for disorderly conduct and several traffic offenses. In vacating the sentence as excessive, the appellate court concluded the trial court did not fairly consider probation. Here, in contrast, the court specifically rejected probation as a sentencing option open to defendant based upon the record adduced at the sentencing hearing. Also, the natures of the crimes in both cases are different. The painting of a neighbor’s fence which occurred in Odom is nonviolent. As the court in Odom stated, “it is difficult to imagine how probation would minimize the seriousness of defendant’s offense.” (82 Ill. App. 3d 853, 855, 403 N.E.2d 297, 298.) On the other hand, probation could very likely minimize the seriousness of the violent offense of unlawful use of weapons. Finally, the Odom court found that the 364-day sentence bore no relation to the offense; the sentence imposed in the instant case in contrast is well within the five- to 10-year extended term authorized by statute. The prior offenses occurring within 10 years of the instant offense supports the imposition of the extended term. See People v. Woods (1984), 122 Ill. App. 3d 176, 182, 460 N.E.2d 880, 885.

The decision in People v. Mick (1980), 86 Ill. App. 3d 1022, 408 N.E.2d 1079, is likewise distinguishable. There, the appellate court reduced from five to three years the defendant’s sentence for automobile theft, citing the defendant’s youth, steady employment prior to the offense and his single nonviolent prior offense as factors suggestive of his rehabilitative potential. In contrast, defendant here was unemployed for seven months prior to the commission of the offense, and his previous record included a conviction for voluntary manslaughter. We therefore conclude the trial court properly sentenced defendant to a prison term of six years for the unlawful use of a weapon.

Defendant next contends that the trial court erred in ordering that he serve the six-year sentence consecutive to the sentence imposed when his MSR was revoked. Specifically, defendant contends the trial court failed to show that the consecutive terms were necessary to protect the public from further criminal activity by defendant. The statute provides that “[t]he court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(b).) Defendant principally relies upon one case to support his contention. In People v. Griffin (1982), 113 Ill. App. 3d 184, 446 N.E.2d 1175, the appellate court reversed the trial court’s order sentencing defendant to four consecutive terms of five years for separate but related acts of theft. In reducing the sentence, the Griffin court examined both the nature and circumstances of the offenses and the history and character of the defendant. Specifically, the Griffin court noted that the crime was nonviolent and did not involve a weapon. Here, defendant’s crime, while not resulting in injury, can hardly be characterized as nonviolent and did involve a weapon. The Griffin court also emphasized the thefts were consensual transactions (the defendant used stolen credit cards to purchase goods from the retail establishments); here, no consensual relationship existed between defendant and the complaining witness. In addition, unlike the defendant in Griffin who had completed a large number of college credit hours and was employed prior to the offense, defendant here had not completed high school and was unemployed at the time of the arrest. Finally, while in both cases the offenders were either on parole or probation at the time of the offenses, the initial offense in Griffin was submission of false information on an application for a firearm permit. This offense is far less serious than the voluntary manslaughter conviction involved in the instant case.

Absent an abuse of discretion by the trial court, a sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Based upon the distinctions enumerated above, Griffin does not require the conclusion that the trial court abused its discretion in sentencing defendant to consecutive terms. Furthermore, our review of the record indicates a consecutive sentence is necessary to protect the public. (See People v. Pittman (1982), 93 Ill. 2d 169.) In addition to the voluntary manslaughter and unlawful weapons conviction, further evidence of defendant’s danger to society is shown by the two nol-prossed counts of battery and aggravated battery in which defendant was alleged to have struck the complaining witness with a baseball bat. These facts support affirmance of the trial court’s order imposing a consecutive sentence.

A final argument raised by defendant is that the trial court erroneously doubly enhanced the duration of his imprisonment based upon a single prior felony. The essence of defendant’s argument is that he received an extended term and a consecutive sentence because of his single prior conviction for manslaughter. Defendant relies upon People v. Hobbs (1981), 86 Ill. 2d 242, and People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654, as authority for his position. In Hobbs, the trial court allowed a prior felony theft conviction to serve both as a basis for enhancing a misdemeanor theft to a felony and for imposing an extended term. In reversing the sentence, the supreme court emphasized that absent the prior offense, the subject theft could not have constituted a felony; a prerequisite to the imposition of an extended term.

“An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony. But it did not, and its taking became a felony under section 16 — 1(e) solely by reason of the 1978 felony conviction.” People v. Hobbs (1981), 86 Ill. 2d 242, 245-46.

In People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654, the defendant’s prior robbery conviction was used first to elevate the unlawful use of weapons offense from a Class A misdemeanor to a felony and then again to impose an extended-term sentence. Based upon the double enhancement, the reviewing court vacated the defendant’s extended sentence.

Two factors distinguish Hobbs and Gresham from the case at bar. First, the trial court here necessarily considered more than simply the prior voluntary manslaughter conviction in imposing the consecutive sentence. The statute directs the court to consider the nature and circumstances of the offense and the history and character of the defendant. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b).) Thus, the voluntary manslaughter conviction is only one of many factors which the trial court evaluated in determining that a consecutive sentence was “required to protect the public from further criminal conduct by the defendant.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b).) More importantly, unlike the circumstances in Hobbs and Gresham, here the consecutive sentence and extended term were imposed independent of each other. The extended term was imposed because of the prior felony, and the consecutive sentence was imposed to protect the public. In contrast, the extended sentences in Hobbs and Gresham could not have been imposed without the prior felony first being used to enhance the initial misdemeanor to a felony. This is so because the extended term provision is triggered only if the instant offense is a felony. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) Here, the unlawful use of weapons was already a felony, and therefore, no enhancement of the instant offense was necessary to warrant imposition of an extended term.

While we conclude that imposition of the extended term and consecutive sentence sentence did not amount to double enhancement, a recent case arguably supports defendant’s position. In People v. Gray (1984), 121 Ill. App. 3d 867, 460 N.E.2d 354, the defendant received an extended term for the felony offense of concealment of a homicidal death to run consecutively with his sentence for involuntary manslaughter and obstructing justice. The trial court imposed the extended term on the basis of section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)), which authorized the extended sentence if the offense was accompanied by exceptionally brutal or heinous behavior. The appellate court agreed that the trial court’s sentence involved double enhancement:

“In our opinion, this type of sentence constitutes an improper augmentation of the sentence. Concealment of a homicidal death is a Class 3 felony. The penalty for this offense is imprisonment with a minimum of two years and a maximum of five years. However, this sentence is doubly augmented by the extended term and also by being made consecutive to the other sentences. This result is completely unfair and excessive. In effect, it is closely analogous to double augmentation of a charge of battery by use of a weapon to result in aggravated battery and then by addition of the charge of armed violence.” (121 Ill. App. 3d 867, 871, 460 N.E.2d 354, 356.)

The court also found that the trial court’s sentence of 14 years violated the statutory proscription concerning maximum consecutive sentences. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(c)(2).) The court then proceeded to analyze separately whether the extended term and consecutive sentence were properly imposed. Concluding that they were not, the court vacated the extended term because the conduct was not especially brutal and heinous and vacated the consecutive sentence as not necessary to protect the public.

Gray is distinguishable from the instant case in that there, the consecutive, extended term was longer than the maximum allowed by statute. Here, the almost seven-year term is well within the five- to 10-year sentencing range allowed by statute. Also, the Gray court’s conclusion that the consecutive and extended terms constituted double enhancement is actually dictum. The court there concluded that neither the consecutive sentence nor the extended term was imposed properly; therefore, the Gray court was not required to conclude that the two terms constituted double enhancement. Even if its discussion was not dictum, however, the Gray court’s failure to recognize that its facts, like those present here, are distinguishable from those in Hobbs and Gresham convinces us that defendant’s sentence here was not impermissibly doubly enhanced. Therefore, we do not find Gray persuasive authority for defendant’s position.

Accordingly, we affirm the order of the circuit court of Lake County which sentenced defendant to a six-year term for his unlawful use of a weapon to be served consecutively with his sentence imposed upon revocation of his mandatory supervised release.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE WEBBER JUSTICE BARRY,

text:
    MARY HOFFMAN, Appellee, v. THE INDUSTRIAL COMMISSION et al. (The Regional Office of Education, Winnebago-Boone County, Appellant).
    Second District (Industrial Commission Division)
    No. 2—84—0123WC
    Opinion filed September 28, 1984.
    Rehearing denied November 28, 1984.

      BARRY, J., dissenting.
    Richard A. Berman, of Williams & McCarthy, of Rockford, for appellant.
    Charles E. Anesi and Richard A. Kimnach, both of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The claimant, Mary Hoffman, filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for an injury to her right leg which allegedly arose out of and in the course of her employment with the respondent, the Régional Office of Education, Winnebago-Boone County. The arbitrator’s award of benefits was reversed on appeal by the Industrial Commission, which found that the claimant failed to prove that she sustained accidental injuries arising out of and in the course of her employment. The circuit court of Winnebago County reversed the decision of the Commission and reinstated the award of the arbitrator. The court determined that the claimant was a traveling employee and that the Industrial Commission’s decision was contrary to law. The respondent appeals.

The claimant is a registered nurse and was employed as director of health services for the respondent for approximately eight months prior to her injury. She supervised and coordinated health services at the elementary and high schools in Boone and Winnebago counties, excluding the schools within Rockford. The claimant worked from 8 a.m. to 4 p.m. On Monday and Friday she worked in the office of the Regional Superintendent in downtown Rockford. On Tuesday, Wednesday, and Thursday she serviced the schools in Boone and Winnebago counties. She was required to supply a car for the job.

The claimant testified that on May 15, 1978, she had a conversation with her supervisor, Frank Parrino, and suggested to him that a staff meeting be held at her home. She stated that she planned to have a meal and show health films and that she might need some extra seating space. Mr. Parrino testified that he authorized her to proceed with the meeting. The claimant testified that she had not set a definite date for the staff meeting, although she had discussed it with numerous health clerks.

On May 17, 1978, the date of the injury, the claimant visited the schools west and north of Rockford. After her last stop in Rockton the claimant drove to Rockford and stopped at her home. She arrived home at around 3 p.m. and collected forms mailed to her by health aides in regard to their absences. She was at home for approximately 10 minutes and then drove to the Goldblatt’s department store. The store was located approximately five minutes by car from her home in the direction of the regional office. The claimant was planning to finish the day at the office after stopping at Goldblatt’s.

The claimant testified that she went to Goldblatt’s to buy some red soft-tipped felt pens and a picnic table and benches. The pens were not available, but she did buy the picnic table and benches. As she was walking to the loading dock where the picnic table was located she tripped over a piece of cord and fell, striking her knee on the sidewalk. The claimant was taken to a hospital, where a cast was applied, and she was discharged -with crutches. She missed one day of work.

The claimant testified that her purpose for going to Goldblatt’s was to buy soft-tipped red felt pens to chart the absences of the health clerks. She stated that the respondent supplied red hard-tipped pens, but that she wanted soft-tipped Flairs. She stated that she had bought these pens before and had not sought reimbursement. June Halvorsen, the administrative assistant to Mr. Parrino, testified that red soft-tipped pens had been available in the office for over four years. However, Mrs. Halvorsen admitted that she did not specifically know whether there were any soft-tipped pens in the office on the day of the claimant’s injury. The claimant testified that the picnic table and benches she bought were to be used at the staff meeting for seating. She stated that she was planning on keeping the table and benches for her own use and did not seek reimbursement from the county.

The question on appeal is whether the claimant’s injury arose out of and in the course of her employment.

The respondent contends that the claimant was not a “traveling employee” as that term is used because she traveled to the same schools three days every week and not to “distant places and unknown areas.” The respondent points out that, in any event, the claimant injured herself after returning to the city of Rockford. The respondent also contends that the claimant’s visit to Goldblatt’s was purely personal, and that therefore her injury did not arise out of her employment.

The claimant contends that she was a traveling employee and that her status does not change, whether her job takes her across town or around the world. She maintains that since Mr. Parrino authorized a staff meeting at her house, her trip to Goldblatt’s was not purely personal and it was foreseeable that she would attempt to obtain additional seating and would purchase pens as necessary. The claimant further maintains that even if her trip to Goldblatt’s was purely personal the sidetrip was insubstantial and she is still entitled to compensation.

Courts generally regard employees whose work requires them to travel away from their employer’s office differently from other employees when determining whether an injury arose out of and in the course of employment. (Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 510, 288 N.E.2d 420, 421-22.) It is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area in order to be considered a “traveling employee.” (See Wright v. Industrial Com. (1975), 62 Ill. 2d 65, 338 N.E.2d 379.) In the present case, the claimant was a registered nurse and her duties required that she travel to schools outside of Rockford three days per week. We find that she was a traveling employee. The critical inquiry is whether her injury arose out of and in the course of her employment.

The supreme court has stated that not all accidental injuries are compensable. It has delineated three types of such injuries: (1) those arising out of acts which the employee is instructed to perform by his employer; (2) those arising out of acts which the employee has a statutory or common law duty to perform while performing duties for his employer; and (3) those arising out of acts which the employee might be reasonably expected to perform incident to his assigned duties. (Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill. 2d 386, 205 N.E.2d 453.) It is apparent from the facts that we are dealing with the third type in the instant case. The court in Ace Pest Control, in holding that the injuries there were of the third type, stated that in order to be compensable they must be “such as might have been reasonably expected or foreseen by [the] employer.” 32 Ill. 2d 386, 389, 205 N.E.2d 453.

Thus reasonableness and foreseeability are the touchstones of recovery. While the proposition is easy to state, its application in the reported cases has been rather uneven.

In Ace Pest Control compensation was awarded by the Commission and affirmed by the supreme court. The employee had stopped to render assistance to a stranded motorist and was killed in the process. There was no company policy on the matter, but it was left to the judgment of the individual employee.

In Wexler the Commission awarded compensation and was affirmed by the supreme court. The employee was killed in an auto accident while on a selling trip for his company. Golf clubs and fishing gear were found in the wreck; it was Memorial Day. The court held that even if the employee had been fishing or golfing, it would not be unreasonable under the circumstances.

On the other hand, in United States Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 240 N.E.2d 637, the Commission made an award and the supreme court reversed. There, the employee, while traveling, took a midnight pleasure drive over unfamiliar, mountainous terrain and suffered injuries. The court held that such conduct was unreasonable and unforeseeable.

The cases in which the Commission has denied an award have shown no real pattern. In Wright the arbitrator made an award and was reversed by the Commission, which was affirmed by the circuit court. The supreme court then reversed with directions to enter an award. In that case the employee was away from home installing machinery. This duty required that he travel out of State and remain for five- to six-month periods. He was killed in an unexplained head-on car collision. The evidence was cloudy as to whether the employee was on a mission for the employer at the time of the accident, but the court held that it was not unreasonable or unforeseeable that an employee away from home would seek some recreational activity.

In a recent decision, Robinson v. Industrial Com. (1983), 96 Ill. 2d 87, 449 N.E.2d 106, the Commission denied an award and was reversed by the supreme court with directions to make an award. The employee left his principal office and was on the way to a subdivision where he was to perform some work for his employer. He deviated from the route to the subdivision in order to pick up his son and take the son Christmas shopping. While on this deviation, he was involved in a fatal automobile accident. The court held that the deviation from the route was a reasonable and foreseeable act.

The lesson to be distilled from these authorities appears to be that when a doctrine of reasonableness and foreseeability is invoked, each case must stand or fall on its own, not only before the Commission but also before the reviewing courts.

In the instant case we do not believe that the acts of the claimant were reasonable or foreseeable by the respondent. There was evidence that soft-tipped pens had been available in respondent’s office. There was no showing that there was any urgent and immediate necessity to obtain them on the day of the injury if none were available at the office. As to the picnic table and benches, the only evidence in the record is that claimant stated to respondent that she might need some extra seating for a meeting whose date had not yet been set. There was apparently no discussion whether such seating would be purchased, and if so, by whom, or rented, or borrowed from a neighbor.

We hold that the circuit court’s finding that the claimant was a traveling employee was proper. We further hold that the Industrial Commission’s finding that the injury did not arise out of and in the course of employment was not against the manifest weight of the evidence and the circuit court’s reversal of that finding was erroneous.

Therefore, the decision of the circuit court of Winnebago County is reversed and the order of the Industrial Commission is confirmed.

Circuit court reversed; Industrial Commission confirmed.

SEIDENFELD, P.J., and McNAMARA and KASSERMAN, JJ., concur.

JUSTICE BARRY,

dissenting:

I disagree with the majority’s conclusion that the activities of the claimant, a traveling employee, were not reasonable and foreseeable and therefore did not arise out of and in the course of her employment. Based on Robinson v. Industrial Com. (1983), 96 Ill. 2d 87, 449 N.E.2d 106, the most recent Illinois Supreme Court decision regarding traveling employees, I would hold that the activities of the claimant were both reasonable and foreseeable.

In Robinson, the marketing director for a development company was required to travel between his employer’s office and sites where the employer was developing new homes. He had been given no instructions regarding routes he was to follow. At approximately 5 p.m. on the day in question he left the sales office to go to a new subdivision. He had planned to stop at home to pick up his son, whom he was going to take Christmas shopping after stopping at the subdivision. However, after leaving work he was killed in a one-car accident approximately two blocks from his home. It was undisputed that the route taken when the accident occurred was not the most direct route from the office to the subdivision.

The arbitrator concluded that the decedent was on a personal mission when the accident occurred and denied compensation. The Industrial Commission affirmed, and on certiorari the circuit court confirmed. On review, the supreme court reversed. It stated that the accident would have been compensable had it happened while the decedent was traveling directly from the office to the subdivision and so recovery should not be denied simply “because he performed the reasonable act of stopping on the way to pick up his son.”

If picking up a family member to go Christmas shopping is reasonable and foreseeable conduct, then I would find that going to the store to buy pens and a picnic table and benches is also reasonable and foreseeable conduct.

The majority states that it was neither reasonable nor foreseeable that the claimant would stop at a store to buy pens. The sole basis the majority provides for this conclusion is that there was no “urgent and immediate” need for the claimant to obtain the pens on the day of her injury, even if none were available at the office. That is irrelevant. The claimant testified that while the respondent supplied red hard-tipped pens, she wanted a soft-tipped Flair. Mrs. Halverson admitted she did not know whether there were any soft-tipped pens in the office on the day of the claimant’s injury. Since the pens were not available and the claimant needed them for a chart, it was reasonable and foreseeable that she would stop to purchase them either on her way to the schools, or on her drive back to the office, as here after stopping by her home to pick up business mail. Her attempt to purchase the pens should not be rendered unreasonable and unforeseeable simply because the majority assumes there was no urgent and immediate need to buy them.

The majority also states that it was not reasonable and foreseeable that the claimant would attempt to obtain additional seating. It reaches this conclusion because the claimant told her supervisor that she “might” need some extra seating, but did not discuss whether it would be bought, rented, or borrowed, and if so, by whom. That is also irrelevant. The claimant knew that the staff meeting, which was to be attended by the 14 health aides that she supervised, might require some extra seating and she told her supervisor so. It can hardly be said it was unreasonable and unforeseeable for the claimant to then go out and obtain additional seating. In addition, while a specific date had not been set for the meeting, it was to be held, and the claimant discussed it with numerous health aides prior to the day she was injured.

Even assuming, and I do not, that the claimant’s trip to Goldblatt’s had no business-related purpose whatsoever, the result should not change. The test is whether the claimant’s conduct was reasonable and whether it might normally be anticipated or foreseen by the respondent. A business-related purpose is not included as part of the test and was not required by the supreme court in Robinson, in which there was no apparent business purpose associated with the decedent’s conduct.

The majority states that each case must stand or fall on its own. Here, due to the nature of her job, the claimant was necessarily given a certain degree of discretion as she traveled to and from the Rockford office. For example, since she was required to supply a car for the job, it would be reasonable and foreseeable that she would stop at a service station for gas on the way to the schools or on her drive back to the office. There are undoubtedly instances in which all would agree that a traveling employee’s conduct was not reasonable or foreseeable. This simply is not one of them. I suggest that the conduct of the claimant in the case at bar was at least as reasonable as that of the decedent in Robinson, if not more so.

In my view, the majority has improperly substituted its opinion for that of the arbitrator and the circuit court. I would hold, as does the majority, that the circuit court properly found as a matter of law that the claimant was a traveling employee. I would further hold that the Industrial Commission’s finding that the claimant’s injury did not arise out of and in the course of her employment was against the manifest weight of the evidence.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREG A. MORGAN, Defendant-Appellant.
    Fourth District
    No. 4—84—0131
    Opinion filed October 16, 1984.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield, and Edmond H. Rees, State’s Attorney, of Carlinville, for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant was charged by information in the circuit court of Macoupin County with three counts of theft, three counts of burglary, and two counts of residential burglary in violation of sections 16 — 1, 19 — 1, and 19 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 16 — 1, 19 — 1, and 19 — 3). He pleaded guilty to one count of residential burglary and one count of burglary. Pursuant to a plea agreement, defendant was sentenced to two concurrent seven-year prison terms, and all of the other charges were dismissed. While incarcerated, defendant learned that a period of mandatory supervised release would also attach to his sentence. He now claims that the mandatory supervised release period was not included in the plea agreement that he negotiated with the State’s Attorney. He asks this court to grant specific performance of his alleged plea agreement and thereby to vacate the term of mandatory supervised release.

Since defendant does not contest his convictions, a detailed recitation of the facts is unnecessary here. Defendant originally pleaded not guilty to all of the charged offenses. On July 7, 1983, he was brought before the circuit court of Macoupin County for the purpose of presenting a negotiated plea. The State’s Attorney stated that the defendant would plead guilty to one count of burglary and one count of residential burglary, and the other six charges would be dismissed. The State’s Attorney further stated that defendant would be sentenced to two concurrent seven-year prison terms, that he would provide information to the Macoupin County sheriff concerning other occurrences, and that he would attempt to make restitution to the victims of his crimes. Defendant agreed that this was an accurate statement of the plea agreement.

The court then admonished the defendant pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402). Before it outlined the penalties for burglary, the circuit court advised the defendant to pay close attention. The court stated the penalties for burglary as:

“Not less than three nor more than seven years in the penitentiary. If sent to the penitentiary upon your release from the penitentiary you would be under mandatory supervised release for a period of two years. And, mandatory supervised release is what we used to call parole. You’re out of the penitentiary but you’re living under certain restrictions.” (Emphasis added.)

The court also stated that probation and periodic imprisonment were sentencing alternatives. The court then asked if the defendant understood “the possible penalties under the law for pleading guilty or being found guilty” of burglary, and the defendant responded affirmatively. Defendant was given a similar admonishment in regard to the crime of residential burglary. The court went on to admonish him of his right to a jury trial and the fact that a guilty plea served to waive that right. The court found a factual basis for the plea and that it had been entered into voluntarily. When asked if he understood the effect of his plea, defendant answered that he would receive two concurrent seven-year terms in the penitentiary as a result. The court then accepted defendant’s guilty plea and sentenced him “pursuant to the negotiated plea.”

Defendant filed a pro se motion to withdraw his guilty plea on August 3, 1983. A hearing on the motion was held on December 29, 1983, at which defendant asked the court not to vacate his guilty plea, but instead to merely vacate the term of mandatory supervised release, since he had not agreed to that term. Defendant admitted that he was admonished of the fact that he would be subject to mandatory supervised release upon his completion of a prison term. However, he did not believe this admonition applied to his negotiated sentence. After allowing both counsel to submit authorities, the court denied defendant’s motion on February 6, 1984.

On appeal, defendant does not seek to withdraw his guilty plea. Instead, he requests this court to grant specific performance of his plea agreement which, he alleges, did not include a term of mandatory supervised release upon his release from prison.

The defendant’s contention must fail. Section 5 — 8—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(d)) states that, except where a term of natural life is imposed, “every sentence shall include” a term of mandatory supervised release in addition to the term of imprisonment, “as though written therein.” The courts of this State have interpreted this section to mean that the term of mandatory supervised release is indeed mandatory and its imposition cannot be affected by the defendant, the State, or the courts. (People v. Reese (1978), 66 Ill. App. 3d 199, 383 N.E.2d 759; People v. Miller (1976), 36 Ill. App. 3d 943, 344 N.E.2d 760.) “It attaches by operation of law to sentences imposed upon a trial verdict as well as upon a guilty plea.” (66 Ill. App. 3d 199, 203, 383 N.E.2d 759, 762.) The term of mandatory supervised release is not a matter for negotiation during plea bargaining. People v. Miller (1976), 36 Ill. App. 3d 943, 344 N.E.2d 760.

For purposes of clarity we have divided defendant’s contentions into two parts. He first maintains that the term of mandatory supervised release was not part of his bargain with the State’s Attorney. As has already been stated, this is not a matter affected by negotiations. Even assuming arguendo that the State’s Attorney had for some unfathomable reason stated that he would waive mandatory supervised release, this would not bind the trial judge, whose role is paramount in the area of pleas of guilty. Under Supreme Court Rule 402(d)(3) (87 Ill. 2d R. 402(d)(3)), if the trial judge has not indicated his concurrence in the plea, he will so inform the defendant and, if the defendant persists in his plea, the disposition may be different. To put the matter another way, the trial judge has the last and only significant vote in matters of pleas of guilty.

Defendant’s second contention is that although he was admonished at the time of the plea concerning mandatory supervised release, that admonition did not apply to the sentence. We have difficulty in comprehending the argument. The record discloses that the presentation of the negotiated plea and the imposition of sentence were all one proceeding. No hiatus occurred for the purpose of preparing an investigatory report. The record also discloses that in addition to the recital set forth above, on three more occasions the trial court admonished the defendant concerning mandatory supervised release. It was an integral part of the whole proceeding. While it is true that the trial court did not specifically set forth the number of years of imprisonment and the number of years of supervised release in pronouncing sentence, his statement that the defendant was sentenced “pursuant to the negotiated plea” (emphasis added) was an incorporation by reference of all that had preceded, including the four statements regarding supervised release. Once again we emphasize that it is the statements and colloquy of the trial judge which constitute a negotiated plea. Defendant’s arguments border on legal hairsplitting and are without merit.

Defendant also relies on a series of Federal cases which have dealt with this subject. Initially, we note that these decisions are not binding upon us. (People v. Cosey (1978), 66 Ill. App. 3d 670, 384 N.E.2d 95; People v. Reese (1978), 66 Ill. App. 3d 199, 383 N.E.2d 759.) In any event, they are readily distinguishable in that in none of them was the defendant admonished by anyone concerning mandatory supervised release.

In United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180, the court granted a writ of habeas corpus to the incarcerated defendant, saying:

“Neither the judge, the prosecutor, nor Baker’s attorney told Baker during the hearing that a two year parole term following his prison term was statutorily required to be part of the sentence.” 551 F.2d 180,182.

Similarly in United States ex rel. Ferris v. Finkbeiner (7th Cir. 1977), 551 F.2d 185, the court, relying on Baker, stated:

“Appellant, being from California and unfamiliar with Illinois law and procedures, requested advice from the court immediately before entering his plea, concerning a mandatory parole term. In response to appellant’s inquiry as to whether he would still be required to ‘do five years on parole’ if he served most of his sentence, the court replied, ‘I suppose if you serve your ten years, I suppose that’s it.’ After some discussion of consecutive and concurrent sentences, the court concluded, ‘I am sure if you serve the full ten years that would be the end of it, it would seem to me.’ Appellant then pled guilty.” 551 F.2d 185, 186.

In United States ex rel. Johnson v. DeRobertis (7th Cir. 1983), 718 F.2d 209, the court cited Baker, but set aside a summary judgment and remanded for determination of the factual question as to whether any plea agreement had been reached.

The difference between these Federal cases and the case at bar is so obvious as to require no further comment.

The trial court’s admonitions were succinct and complete, including the matter of mandatory supervised release. There is no basis for our interference. The judgment and sentence of the circuit court of Macoupin County are therefore affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


text:
    ROCKFORD LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.-THE PEOPLE ex rel. DOUGLAS R. AURAND, Treasurer and Ex-Officio County Collector of Winnebago County, Plaintiff-Appellee, v. ROCKFORD LIFE INSURANCE COMPANY, Defendant-Appellant.
    Second District
    Nos. 83—626, 83—627 cons.
    Opinion filed October 26, 1984.

      Russell D. Anderson and John C. McCarthy, both of Williams & McCarthy, of Rockford, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Frederic D. Tannenbaum, and Georgene M. Wilson, Assistant Attorneys General, of counsel), for appellees Department of Revenue and James B. Zagel.
    Daniel D. Doyle, State’s Attorney, of Rockford (James J. Reese, Assistant State’s Attorney, of counsel), for other appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff Rockford Life Insurance Company (Rockford) appeals from an order of the circuit court of Winnebago County affirming the 1978 assessment of its capital stock by defendant-appellee, Department of Revenue (Department). Rockford also appeals from the order in the case consolidated with the instant appeal entering judgment against Rockford in the amount of $723,053.70 and costs. Rockford argues that certain of its securities (mortgage-backed securities of the Government National Mortgage Association (GNMA), and obligations issued pursuant to the New Communities Act (NCA), the New Community Development Act (NCDA), and the Merchant Marine Act (MMA)) improperly were included in the capital stock assessment because they are direct obligations of the United States immune from State taxation. Because we conclude the obligations at issue are not direct obligations issued by the Federal government, we affirm.

On December 21, 1978, the Illinois Department of Local Government Affairs assessed the capital stock of Rockford for the year 1978 at a value of $6,937,000. Review of the assessment was requested by Rockford, and on May 2, 1979, the Illinois Department of Local Government Affairs, by letter, confirmed the assessment. Rockford thereupon filed a complaint in the circuit court of Winnebago County, Illinois, pursuant to the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). Following hearings on motions, the court ordered that the case be remanded to the Department of Local Government Affairs with instructions to formally notify Rockford of its decision in accordance with its rules. On October 29, 1979, the Department of Local Government Affairs served notice of its decision confirming the assessment. Pursuant to Rockford’s request, the Department of Revenue (as successor to the Department of Local Government Affairs) held a hearing on December 21, 1979. Following the hearing, the Director of the Department affirmed the assessment.

The company thereafter filed its complaint seeking judicial review of the decision of the Department affirming the 1978 assessment, and the Department filed the administrative record as its answer to the complaint. In the trial court, Rockford argued that: (1) since the three types of securities were exempt as U.S. obligations under the Constitution and statutes of the United States, their value could not be included in computing the capital stock assessment; and (2) the Department was estopped because of its exclusion of the securities in 1974 through 1978 from including these securities in the 1978 capital stock assessment. In a memorandum decision, the trial court affirmed the Department’s ruling and entered the following findings: (1) the securities in question were not “obligations of the United States” under 31 U.S.C. sec. 742 (1976) and therefore were not constitutionally immune from State taxation; (2) the Department’s erroneous inclusion of nonexempt property as exempt property in its property tax manual did not preclude subsequent correction of the error and taxation of the property; and (3) the necessary fraud or injustice required for the application of the doctrine of estoppel was not demonstrated by the erroneous ruling of the Department or its failure to assess taxable property in prior years. Rockford filed a timely appeal from the trial court order entered on June 10, 1983, affirming the Department assessment. This appeal solely concerns the capital stock assessment against Rockford for 1978 because the capital stock tax was abolished on January 1, 1979, by article IX, section 5, of the Constitution of Illinois of 1970 (Ill. Const. 1970, art. IX, sec. 5).

Rockford asserts that the Department is estopped from assessing the securities in question because of its previous administrative determinations that the securities were exempt from state taxation. The doctrine of equitable estoppel is “the effect of the voluntary conduct of a party whereby he is precluded from asserting rights which might otherwise have existed as against another party who has relied in good faith upon such conduct and has been led thereby to change his position for the worse.” (Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 930, 453 N.E.2d 1344, 1355; Kyker v. Kyker (1983), 117 Ill. App. 3d 547, 453 N.E.2d 108.) The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts. Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957.

The doctrine of estoppel can be applied against the State when acting in a governmental capacity only in the most compelling circumstances. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 453 N.E.2d 1344; see generally Annot., 21 A.L.R. 4th 573 (1983).) “[W]here public revenues are involved, public policy ordinarily forbids the application of estoppel to the State” and “ ‘[t]he government is not estopped by previous acts or conduct of its agents with reference to the determination of tax liabilities or by failure to collect the tax, nor will the mistakes or misinformation of its officers estop it from collecting the tax.’ ” Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 4-5.

While acknowledging the principle that a State will generally not be estopped from collecting a tax, Rockford argues this case presents extraordinary circumstances justifying application of the estoppel doctrine and relies upon Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957, for support. In Hickey, a railroad maintained and improved large amounts of lakefront property for over 50 years. Refusing to recognize “a right in the State officially disclaimed [by the State] for half a century” (35 Ill. 2d 427, 449), the supreme court held the State should be estopped from now asserting its interest in the subject property. The court in Hickey emphasized the railroad’s reliance on the State’s position:

“Meanwhile, numerous other lake shore boundary line agreements have been consummated and confirmed, conveyances made, leases executed and options granted; proposals for lake shore development were agreed upon and accepted whereby substantial construction obligations were apportioned as between the city, Park Commissioners and the railroad in reliance upon the assumption that the railroad was the fee owner of the lands it occupied ***.” (35 Ill. 2d 427, 450.)

Therefore, while the Hickey court reiterated that qualified immunity from the estoppel doctrine was enjoyed by the State, it held that under these “extraordinary circumstances,” the State was estopped from asserting its latent title claim.

Rockford argues the circumstances here similarly are “extraordinary.” In the case at bar, Rockford reported NCA obligations on its 1974 tax return which were initially assessed but were later ruled exempt by the Director. In 1975, Rockford reported NCA and GNMA obligations which were initially assessed, but were later deducted from its capital stock assessment. Rockford in its 1976 return reported MMA obligations in addition to the GNMA obligations which the Director initially assessed, but upon reconsideration exempted from the capital stock tax computation. In its 1977 return, Rockford reported additional GNMA and MMA obligations as deductions which the Department allowed. In 1978, the Department reversed its prior position and decided that the GNMA, MMA, NCA and NCDA obligations were subject to the capital stock tax.

Rockford argues that these circumstances constitute appropriate grounds for estoppel and contends all of the elements of the doctrine are satisfied: (1) positive acts by the Department; (2) justifiable reliance by Rockford upon these acts; (3) amounting to fraud and injustice. Rockford cites the regulations contained in the Department’s manual and the approval of the exemption in the years 1974-77 as positive acts by the State. The Department counters that its exemptions of these securities at issue are less affirmative than were the actions of the State in Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, where the Department accepted payment from the taxpayer of his assessment and then attempted to reopen the investigation concerning the period covered by the assessment. The Department also quotes supreme court language that “State inspectors perform[ing] the ministerial acts of computing the tax due under one particular formula does not estop the State from repudiating that formula.” (People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 220.) Nevertheless, we conclude the approval of the exemption constitutes a positive act of the State.

Rockford also asserts it relied upon the exemption, planning its investment strategy on the assumption that the obligations would continue to be excluded from calculation of the capital stock tax. Rockford’s additional purchases of the subject obligations in the years 1974 through 1977 arguably provide some evidence of reliance by Rockford on the acts of the Department. However, Rockford’s reliance was not reasonable. The taxable nature of these securities was unclear during at least three of the four subject years. No court decision or legislative pronouncement had resolved the issue, and therefore, Rockford’s reliance on the inconsistent Department rulings was unjustified. This is especially true because, unlike the 50-year time period in Hickey, here the Department had only exempted the obligations for four years prior to its decision to include them in the tax calculation. The Department also raises a persuasive public policy argument, stating that were this court to apply the estoppel doctrine on the basis of four years of inconsistent Department actions, an administrative agency considering a novel issue would be bound by its initial ruling and would be precluded from adopting a new policy or from correcting an erroneous construction of the applicable law.

While the absence of reasonable reliance is alone fatal to Rockford’s estoppel claim, Rockford has also failed to establish fraud. Rockford’s allegations of fraud are unpersuasive. Rockford cites the fact that the Department’s policy change resulted in almost a $500,000 tax liability, but the magnitude of the tax does not establish the existence or absence of fraud. Additionally, Rockford states that the Department’s delay in assessing the tax until the last year of the capital stock tax “raises the inference of a calculated plan to catch this taxpayer offguard.” This allegation, however, is unsupported. Any allegation that the Department was negligent also does not amount to fraud.

“More importantly, perhaps, is the possibility that application of laches or estoppel doctrines may impair the functioning of the State in the discharge of its government functions, and that valuable public interests may be jeopardized or lost by the negligence, mistakes or inattention of public officials.” (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447-48, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957.)

In the absence of any proof that the Department’s action constituted a fraud resulting in an injustice done to Rockford, the State should not be estopped from including the subject obligations in Rockford’s capital stock tax calculation for 1978.

Rockford next contends that the debt obligations here were improperly included in the capital assessment because they constitute property of the United States immune from State taxation.

A. GNMA OBLIGATIONS

GNMA is a government-sponsored private corporation which was created in 1968 out of and partitioned from the Federal National Mortgage Association (FNMA). Both FNMA and GNMA are authorized to “purchase, service, sell, or otherwise deal in any mortgages which are insured or guaranteed under [a variety of Federal statutes].” (12 U.S.C. sec. 1717(b)(1) (1976).) GNMA’s role is to implement the mortgage-backed securities program. GNMA enters into “Guaranty Agreements” with private investors who assemble pools of mortgages and issue them for public offering. The issuer retains title to the pool, but assigns its rights in the underlying mortgages to GNMA. New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 409, 411 n. 2.

The assignment remains unrecorded “unless the issuer defaults on payments to security holders and GNMA exercises its option to assume issuer responsibilities.” (New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 422, 428.) GNMA’s guarantee of the issuer’s mortgage pools, however, “will not bring about an increase in the government’s total contingent liability *** GNMA is authorized to collect a fee for its guarantee, and it is intended that this program will be fully self-supporting and will operate at no cost to the Government.” 114 Cong. Rec. 15, 236 (1968) (remarks of Sen. Bennett).

The full faith and credit of the United States is pledged to the payment of all amounts which may be required to be paid under the guarantee. (12 U.S.C. sec. 1721(g) (1976).) The purpose of FNMA and GNMA is “to provide supplementary assistance to the secondary market for home mortgages by providing a degree of liquidity for mortgage investments, thereby improving the distribution of investment capital available for home mortgage financing ***.” 12 U.S.C. sec. 1716(a) (1976).

B. NCA AND NCDA OBLIGATIONS

The New Communities Act of 1968 (42 U.S.C. sec. 3901 et seq. (1976)) and the Urban Growth and New Community Development Act of 1970 (42 U.S.C. sec. 4501 et seq. (1976)) attempt to ‘ ‘facilitate] the enlistment of private capital in new community development” (42 U.S.C. sec. 3901 (1976)), and to provide for the development of a national urban growth policy and to encourage the “rational, orderly, efficient, and economic growth, development, and redevelopment of our States, metropolitan areas, cities, counties, towns, and communities ***.” (42 U.S.C. sec. 4501 (1976).) These Acts authorize the Secretary of Housing and Urban Development (HUD), in the case of the former Act, and the Secretary acting through the community development corporation, in the case of the latter enactment, to guarantee bonds, debentures, notes or other obligations of eligible new community developers' as the means of carrying out their governmental purposes. (See 42 U.S.C. sec. 3902 (1976) and 42 U.S.C. sec. 4514 (1976).) The full faith and credit of the United States is pledged to the guarantee of the payment of such obligations. (42 U.S.C. sec. 3906(b) (1976) and 42 U.S.C. sec. 4514(b) (1976).) In return for the guarantee, the issuer pays to the Secretary a fee. 42 U.S.C. sec. 3905 (1976).

C. MMA OBLIGATIONS

The Merchant Marine Act of 1936 establishes a Federal Ship Financing Fund “to foster the development and encourage the maintenance of such a merchant marine.” (46 U.S.C. sec. 1101 (1976).) To that purpose, the Secretary of Commerce may authorize guarantees of principal and interest on bonds issued by private obligors. (46 U.S.C. sec. 1273(a) (1976).) The Secretary receives from the obligor a security interest, perfected only upon default. (46 U.S.C. sec. 1273(b) (1976).) The program, furthermore, is self-supporting. The obligor pays a fee to the Secretary. (46 U.S.C. sec. 1274(e) (1976).) The full faith and credit of the United States is pledged to the payment of these guarantees under 46 U.S.C. sec. 1273(d) (1976).

These debt securities all have certain characteristics in common: they are issued by private parties, guaranteed by the full faith and credit of the United States government, and the United States government receives the fee for the guarantees. Since of these securities GNMA obligations have the most indicia of tax-exempt status and since the parties almost exclusively discuss GNMA obligations, the following analysis will refer solely to GNMA obligations even though the conclusions reached are equally applicable to MMA, NCA and NCDA obligations.

In support of its contention that the obligations here are tax exempt, Rockford advances constitutional and statutory arguments. The constitutional argument is based upon the doctrine of implied powers recognized in M’Culloch v. State of Maryland (1819), 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579. Under the rule first announced in M’Culloch, all properties, functions and instrumentalities of the Federal government are immune from State and local taxation. (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 411 N.E.2d 973, citing Smith v. Davis (1944), 323 U.S. 111, 113, 89 L. Ed. 107, 110, 65 S. Ct. 157, 158-59.) In M’Culloch, the Supreme Court struck down on the authority of the supremacy clause a State tax on the national bank which the government had established.

“The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.” (17 U.S. (4 Wheat.) 316, 436, 4 L. Ed. 579, 609.)

The M’Culloch court, however, restricted the breadth of its holding:

“This opinion does not deprive the states of any resource which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state.” 17 U.S. (4 Wheat.) 316, 436, 4 L. Ed. 579, 609.

Congress had codified this constitutional immunity by exempting from State and local taxation certain written obligations. (See 31 U.S.C. sec. 742 (1976), now codified as 31 U.S.C.A. sec. 3124(a) (West Supp. 1983); see Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 411 N.E.2d 973.) That section provided:

“Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority. This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax, except nondiscriminatory franchise or other nonproperty taxes in lieu thereof imposed on corporations and except estate taxes or inheritance taxes.” (31 U.S.C. sec. 742 (1976).)

The Supreme Court recently stated that its previous decisions have treated section 742 principally as a restatement of the constitutional rule regarding the immunity of Federal government property including bonds and other securities from taxation by the States. (Memphis Bank & Trust Co. v. Garner (1983), 459 U.S. 392, 397, 74 L. Ed. 2d 562, 567, 103 S. Ct. 692, 696.) The basis of the statutory exemption is “the fact that a tax upon the obligations of the United States is virtually a tax upon the credit of the government, and upon its power to raise money for the purpose of carrying on its civil and military operations.” (Hibernia Savings & Loan Society v. San Francisco (1906), 200 U.S. 310, 313, 50 L. Ed. 495, 496, 26 S. Ct. 265, 266.) Since the question whether the subject obligations are constitutionally immune from taxation or are exempted by 31 U.S.C. sec. 742 (1976) is answered by examining the nature of the government’s undertaking in the certificates themselves (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 297, 411 N.E.2d 973, 977; see also Farmers & Traders State Bank v. Johnson (1984), 121 Ill. App. 3d 43, 45, 458 N.E.2d 1365, 1367), and since section 742 is primarily a restatement of the constitutional rule, both the constitutional and statutory inquiries will be considered together.

The question thus presented, Rockford asserts, is whether the four debt obligations at issue here are constitutionally immune from the Illinois Capital Stock Tax or are “other obligations of the United States” exempt from State taxation under 31 U.S.C. sec. 742 (1976). The Supreme Court in Smith v. Davis (1944), 323 U.S. 111, 114-15, 89 L. Ed. 107, 110-11, 65 S. Ct. 157, 159, enumerated certain attributes of exempt obligations:

“(1) written documents, (2) the bearing of interest, (3) a binding promise by the United States to pay specified sums at specified dates and (4) specific Congressional authorization, which also pledged the faith and credit of the United States in support of the promise to pay.”

The court in Montgomery Ward applied the Smith criteria to GNMA obligations and determined that GNMA certificates “satisfy all of the above requirements except for ‘a binding promise by the United States to pay specified sums at specified dates.’ ” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 297, 411 N.E.2d 973, 976.) While recognizing that the certificates represent some sort of obligation of the United States, the Montgomery Ward court employed the ejusdem generis rule (rule of construction whereby general terms will be construed to include only things of same general class as those enumerated, Black’s Law Dictionary 464 (5th ed. 1979)), and concluded that the term “other obligations” in section 742 did not include GNMA obligations in part because they are privately issued.

Rockford challenges the Montgomery Ward court’s statement that “Ginnie Maes are issued by a private issuer and not the government ***.” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 298, 411 N.E.2d 973, 977.) Review of the GNMA mortgage-backed securities program described by the court in New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 409, 411, however, makes clear that the issuer is a private entity.

“A financial institution or mortgage servicing company wishing to participate must assemble or acquire a pool of government insured or guaranteed mortgages. GNMA then enters into a standard form ‘Guaranty Agreement’ with the issuer (this Guaranty Agreement is set forth at Appendix 19 to the GNMA Mortgage Backed Securities Guide, GNMA 5500.1 Rev. 4 (hereafter referred to as ‘GNMA Guide’)), under which, inter alia, GNMA agrees to guarantee timely payments of principal and interest as required by the terms of the securities (Guaranty Agreement sec. 6.01), and the issuer agrees to remit in a timely manner all payments required by the terms of the securities. Guaranty Agreement sec. 4.01. Should the issuer fail to make timely payments as required, the security holder’s sole recourse is against GNMA (Id. sec. 7.01). However, GNMA may treat the issuer’s failure to make required payments as an event of default under the Guaranty Agreement (sec. 8.01), and this provides GNMA with the option of extinguishing the issuer’s interest in the pooled mortgages and becoming owner of those mortgages ‘subject only to the unsatisfied rights of the holders of the securities....’ 12 U.S.C. sec. 1721(g) (1976); Guaranty Agreement sec. 8.05.”

Additionally, the issuer is named specifically on the GNMA certificate contained in the trial record as the issuer of the security. We therefore are unpersuaded by Rockford’s contention that the Montgomery Ward court erred in concluding that GNMA certificates are issued by a private issuer.

Rockford also contests the Montgomery Ward court’s statement that the “private issuer is primarily liable to make the monthly interest payment and ultimately repay the principal.” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 298, 411 N.E.2d 973, 977.) Noting that the payments do not become an obligation of GNMA unless and until the issuer defaults, the Montgomery Ward court characterized that eventuality as “contingent and wholly speculative.” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 298, 411 N.E.2d 973.) Rockford responds that in reality, the government and not the private issuer is primarily responsible because each certificate is signed only by GNMA and because both the GNMA guide and security certificate say GNMA and not the issuer is liable for the guarantee. This statement concerning the guide and certificate is accurate because GNMA and not the issuer guarantees the obligation. This fact, however, does not make GNMA primarily liable, as argued by Rockford. Rather, the issuer assumes primary responsibility for payments to the security holders. Also, as the Department points out, New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 409, 411, cited by Rockford, recognized that the assignment to GNMA of the issuer’s rights and liabilities only occurs upon the issuer’s default.

Rockford’s depiction of the issuer as simply an agent of GNMA responsible merely for collecting and distributing funds is belied by the Cleland court’s description of the issuer’s duties concerning section 1721(g) modified pass-through mortgages, which are the subject of this action.

“Federal regulations establish two types of mortgage backed securities: ‘straight pass-through’ securities, which provide for the payment by the issuer to the security holders of ‘principal and interest [generated by the underlying pool of mortgages] as collected’ and ‘modified pass-through’ securities, which ‘provide for such payment, whether or not collected, of both specified principal installments and a fixed rate of interest on the unpaid principal balance, with all prepayments being passed through to the holder.’ 24 CFR sec. 390.5 (1978) (emphasis added).” (New York Guardian Mortgagee Corp. v. Cleland (S.D.N.Y. 1979), 473 F. Supp. 409, 411.)

Because the certificates here are modified pass-through securities, the issuer was responsible to make principal and interest payments to Rockford even if it had not yet received payments from the mortgagors. The existence of this obligation supports the Montgomery Ward court’s conclusion that the issuer and not GNMA is primarily liable for the principal and interest due on the certificates.

Rockford also challenges a finding of the Montgomery Ward court that the GNMA obligations “were not issued by a government agency to borrow money on the credit of the United States to finance an essential government function.” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 297, 411 N.E.2d 973, 977.) Rockford maintains on the authority of two Supreme Court decisions that the Montgomery Ward court erred in distinguishing GNMA obligations on this basis. In People ex rel. Bank of New York National Banking Association v. Hoffman (1869), 74 U.S. (7 Wall.) 16, 19 L. Ed. 57, the court concluded that certificates of indebtedness issued by the Federal government to creditors in exchange for supplies were exempt from State taxation. The Hoffman court stated:

“But we fail to perceive *** that such certificates [certificates of indebtedness issued by the Federal government in exchange for goods or services], issued as a means of executing constitutional powers of the government other than of borrowing money, are not as much beyond control and limitation by the States through taxation, as bonds or other obligations issued for loans of money.” (Emphasis added.) (74 U.S. (7 Wall.) 16, 24, 19 L. Ed. 57, 60.)

Rockford emphasizes the language that the certificates were issued as a means of executing constitutional powers other than of borrowing money in an effort to discredit the Montgomery Ward court’s finding that GNMA obligations were not issued by the government to borrow money. However, as the Treasurer points out, the court in Hoffman was discussing two types of debt instruments issued directly by the Federal government. The GNMA obligations here were not issued by the Federal government, but rather by private entities.

In the second case cited by Rockford, Hibernia Savings & Loan Society v. San Francisco (1906), 200 U.S. 310, 50 L. Ed. 495, 26 S. Ct. 265, the Supreme Court rejected the claim that checks issued in payment of interest accrued upon registered bonds of the United States were entitled to exemption from State taxation. Rockford relies upon Hibernia because that court stated that the test for determining exemptions was whether the tax hindered the effective exercise of the government agent’s function. The Department counters that the test articulated in Hibernia only applies to cases where the United States’ obligations are at issue; otherwise, tax exemption would apply to any area in which the Federal government in some manner had acted. We are persuaded by the Department’s argument that the scope of the Hibernia language is too broad to be useful as a test in the case at bar. Furthermore, even if the test was applicable, the effect of the capital stock tax does not “deprive *** [the private corporations] of power to serve the government as they were intended to serve it ***” (Hibernia Savings & Loan Society v. San Francisco (1906), 200 U.S. 310, 315, 50 L. Ed. 495, 497, 26 S. Ct. 265, 267), for Rockford has cited no evidence in the record that issuers have been unable to market these certificates because they are taxable by the States. Therefore, the government function test does not aid Rockford.

The next argument raised by Rockford is that the Montgomery Ward court erred in limiting the exempt status to direct obligations issued by the United States in which it alone makes a binding promise to pay. Instead, Rockford contends that section 742 should be construed broadly, and relies upon Smith v. Davis (1944), 323 U.S. 111, 89 L. Ed. 107, 65 S. Ct. 157, for support. In Smith, the court held that the debt owed by the United States could be taxed by State officials because the debt did not constitute a credit instrumentality within the meaning of the constitutional immunity from State taxation. Rockford recognizes the four incidents of credit instrumentalities previously discussed, but then cites the following language of the Smith court as the appropriate rule to apply to the instant facts:

“All of these related statutes are a clear indication of an intent to immunize from state taxation only the interest-bearing obligations of the United States which are needed to secure credit to carry on the necessary functions of government.” (Smith v. Davis (1944), 323 U.S. 111, 119, 89 L. Ed. 107, 113, 65 S. Ct. 157, 161.)

Rockford argues that GNMA obligations serve the necessary government function of insuring adequate funding for home mortgages and that the tax exempt nature of the mortgage-backed securities is necessary to attract adequate capital. Rockford does not explain, however, why this test should be employed to the exclusion of the four criteria also enunciated by the Smith court. Furthermore, the above language requires that the certificate be an obligation of the United States. In contrast to the position advanced by Rockford, we conclude, as did the court in Montgomery Ward, that the obligations involved here are not direct obligations of the United States.

In further challenging the Montgomery Ward court’s limitations of State tax exemption to direct and exclusive obligations of the Federal government, Rockford argues that to fall within the constitutional exemption, the obligation need not be directly issued by the United States government as long as the obligation is issued by an instrumentality of the government to carry out its governmental function or is guaranteed by the full faith and credit of the United States. Rockford places great emphasis on the Supreme Court’s recent decision in Memphis Bank & Trust Co. v. Garner (1983), 459 U.S. 392, 74 L. Ed. 2d 562, 103 S. Ct. 692. There, a Tennessee statute authorized a tax on a bank’s net earnings income from Federal obligations and defined net earnings to include interest earned from obligations of the United States and its instrumentalities, but excluded interest on similar obligations of Tennessee and its political subdivisions. The Supreme Court held that the State bank tax violated the immunity enjoyed by United States obligations from state and local taxation. The Memphis Bank court noted that the disputed tax was based upon interest earned “on various federal obligations, primarily notes and bills of the U.S. Treasury and obligations of Federal Credit Banks” (459 U.S. 392, 394-95, 74 L. Ed. 2d 562, 566, 103 S. Ct. 692, 695), and also noted in a footnote that FNMA obligations were held by the bank. (459 U.S. 392, 395 n. 4, 74 L. Ed. 2d 562, 566 n. 4, 103 S. Ct. 692, 695 n.4.) This reference to FNMA obligations is the only one contained in the entire opinion. Therefore, we are more hesitant than is Rockford to interpret the Memphis Bank decision as holding that FNMA certificates are Federal obligations exempt from State taxation under section 742.

Even if Memphis Bank holds that FNMA obligations are exempt, however, that decision did not involve GNMA certificates. As the Montgomery Ward court recognized, GNMA certificates issued pursuant to section 1721(g) are significantly different than are FNMA certificates.

“In this regard the Ginnie Maes issued in the instant case under 12 U.S.C. sec. 1721(g)(1976) differ from Mortgage Participation Certificates issued under 12 U.S.C. sec. 1717(c)(1976) and the Fannie Maes issued under 12 U.S.C. sec. 1719(d)(1976). Under the latter two sections FNMA and GNMA issue the certificates and are directly liable for payment. By contrast, the instant guarantee of payment is truly an indirect and contingent obligation of the United States and does not exempt the Ginnie Maes from State taxation.” (Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 299, 411 N.E.2d 973, 978.)

The presence of both a private issuer and the indirect liability of GNMA distinguishes GNMA section 1721(g) certificates from those issued directly by FNMA and thus, Memphis Bank is not determinative of the case at bar. Montgomery Ward therefore is the only case directly on point, and we find its reasoning persuasive.

Rockford also argues that the GNMA obligations are exempt from State taxation because GNMA is a Federal instrumentality and cites Rust v. Johnson (9th Cir. 1979), 597 F.2d 174, cert. denied (1979), 444 U.S. 964, 62 L. Ed. 2d 376, 100 S. Ct. 450, which held that a city’s foreclosure on property without providing for FNMA’s interest in the property was an unconstitutional exercise of State power over property of the Federal government in violation of the supremacy clause. Despite the private ownership of FNMA, the Rust court held that FNMA was a Federal instrumentality and its interest in the property was “property of the United States.” Rust, however, does not require the conclusion that GNMA securities are United States property. Unlike FNMA securities, GNMA securities are issued and serviced by private issuers. Therefore, even if GNMA is considered a Federal instrumentality, the burden of the capital stock tax did not fall directly upon the instrumentality, but rather upon those who purchased the GNMA securities. This indirect burden on GNMA is insufficient to warrant State tax exemption.

“A state tax is not within the inhibition of state taxation of federal instrumentalities unless it is in fact a tax directly upon the government instrumentality, or its effect is so direct as to constitute it a substantial, as distinguished from an indirect and remote, interference with the exercise of-the governmental functions delegated to the federal instrumentalities.” (71 Am. Jur. 2d State & Local Taxation sec. 224 (1973).)

As the tax does not fall directly upon any Federal instrumentality, and as Rockford has not demonstrated how inclusion of the privately issued GNMA certificates in the capital stock tax calculation constitutes a substantial interference with the exercise of GNMA governmental functions, the certificates are not constitutionally or statutorily immune from State taxation.

Accordingly, we affirm the order of the circuit court of Winnebago County

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.