text:
    UNITED TECHNICAL CORPORATION, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (2nd Division)
    No. 81-739
    Opinion filed June 29, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellant.
    McDermott, Will & Emery (Hamilton Smith and Stewart W. Karge, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The Illinois Department of Revenue (Department) appeals from an adverse decision on administrative review in an action by which it sought to collect the Retailers’ Occupation Tax (Ill. Rev. Stat. 1977, ch. 120, par. 440 et seq.) (ROT) and Municipal Retailers’ Occupation Tax (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 11—1) (MROT) allegedly due from United Technical Corporation (United). The sole issue raised on appeal is whether partial prepayment of the purchase price of tangible personal property is taxable at the time of receipt thereof by the seller.

United is a holding company whose subsidiary Marshall & Huschert is a machine tool distributor of a complete line of tools used in the metalworking industry.

United issued a series of invoices seeking prepayments of part of the purchase price of various pieces of equipment for which it received said payments, but which were not included in its ROT returns. There were seven such transactions in which certain companies ordered machinery to be manufactured. Prepayments were made by these companies to United from the time the orders were acknowledged until the machines were shipped. That time period spanned between eight and 14 months after the original purchase orders, except in one case in which the machine had not yet been shipped at the time of hearing.

On June 14, 1979, the Department issued and sent to United a notice of tax liability for the period July 1, 1976, through September 30, 1978. United filed a notice of protest of the tax assessment and requested a hearing, which was granted. During the hearing, evidence was adduced by the Department predicating the alleged deficiency upon the prepayment receipts not included in United’s ROT returns. Witnesses for United testified that in accordance with industry practice, equipment was shipped free on board, with title passing when the machines were placed on trucks to be delivered to the customers, except for imports, wherein title would pass at the port of entry. Further, the purpose of requiring customers to make prepayments against the purchase price was to finance the manufacturer’s engineering, labor and material costs incurred in connection with the manufacturing process. When purchase orders were received by United, such orders would be subject to cancellation; equipment could be retained or shipped over a period of time; and a machine might never be shipped if it could not perform to the satisfaction of the customer, in which case the purchase price would be cancelled. Finally, industry practice required payment of one-third of the purchase price after the order was acknowledged, one-third when the machinery was successfully “run off,” and the balance 30 days after shipment. The hearing referee determined that the tax was payable upon receipt by the seller of prepayment and rendered a final tax assessment of $145,303.87.

The trial court reversed the assessment of the referee on the grounds that: section 2 of the ROT imposes a tax on gross receipts from sales at retail (Ill. Rev. Stat. 1977, ch. 120, par. 441); a sale at retail is defined as any transfer of ownership of or title to tangible personal property to a purchaser for use and consumption (Ill. Rev. Stat. 1977, ch. 120, par. 440); and, because United’s customers did not acquire ownership of the machine tools when prepayment was made, such payments did not constitute gross receipts from a sale at retail and, therefore, were not taxable. From this order, the Department appeals.

The ROT is not a privilege tax on the consumer, nor a property tax on the goods, nor a sales tax on the transaction; rather, it is an occupation tax on entities engaged in the business of making “sales at retail,” i.e., selling tangible personal property at retail. (Central Television Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 426-27, 189 N.E.2d 333; H. Kohnstamm & Co. v. Department of Revenue (1956), 9 Ill. 2d 182, 183-84, 137 N.E.2d 354; Ahern v. Nudelman (1940), 374 Ill. 237, 239, 29 N.E.2d 268.) The initial consideration must be whether, under the facts of each case, the putative taxpayer is engaged in a taxable occupation; if so, all of that entity’s gross receipts from sales, whenever received, are taxable. (Automatic Voting Machine Corp. v. Daley (1951), 409 Ill. 438, 100 N.E.2d 591.) United does not challenge the propriety of its amenability to the tax, a point which it concedes. The issue which it postulates, and in which the Department in essence concurs, is “[t]he question [of] 0 4 0 when [prepayments] are subject to tax.” (Emphasis added.)

United argues that gross receipts referred to in the ROT cannot be taxed until there has been a transfer of ownership of or title to tangible personal property from the seller to the buyer. Conceding that prepayments by purchasers to United are indeed gross receipts, it insists nevertheless that because no transfer of ownership or title to the machinery has as yet taken place no tax may yet be imposed. A litany of factors are set forth by United in support of this theory, which include:

(a) the subject goods were not plainly identified to the contract at the time prepayments were received;
(b) the subject goods were not even in existence at the time prepayments were received;
(c) no delivery of the goods had been made at the time prepayments were received;
(d) title to the goods had not passed at the time prepayments had been received.

From the foregoing, United concludes that the statutory definition of “sale at retail” limits the inclusion of “gross receipts” which are subject to the tax.

The Department counterposes that the statutory definition of a “sale at retail” is not meant to apply as a limitation on the Department’s ability to tax particular receipts; rather, the definition applies to determine whether the taxpayer is engaged in an occupation which is subject to taxation under the ROT, i.e., “the business of selling tangible personal property at retail.”

Neither party has cited, nor have we found, a case directly in point within or without the jurisdiction involving similar statutory provisions.

Notwithstanding the Department’s argument, analysis of the transaction itself is proper in determining whether it qualifies as a sale under the Act. (See Metnick v. Department of Revenue (1963), 28 Ill. 2d 180, 190 N.E.2d 750; Collinson Stone Co. v. Department of Revenue (1971), 48 Ill. 2d 468, 273 N.E.2d 1; Western Illinois Stone Co. v. Department of Revenue (1966), 35 Ill. 2d 275, 220 N.E.2d 207; Department of Revenue v. Jennison-Wright Corp. (1946), 393 Ill. 401, 66 N.E.2d 395; Standard Oil Co. v. Department of Finance (1943), 383 Ill. 136,48 N.E.2d 514.) In some situations, title to goods may pass upon the execution of a contract. (See Butler Manufacturing Co. v. Department of Finance (1943), 383 Ill. 220, 49 N.E.2d 31.) There may be circumstances under which ownership may pass to the buyer even where title remains in the seller. (See Miller Brewing Co. v. Korshak (1966), 35 Ill. 2d 86, 90, 219 N.E.2d 494.) Unlike the circumstances in Miller, however, the start up costs of manufacturing the machinery are generated by activities relating to products not yet in existence. (Cf. Collinson Stone Co. v. Department of Revenue; Western Illinois Stone Co. v. Department of Revenue.) Under the evidence, even where “run-off,” the machinery may be rejected and the sale never consumated. In Miller, the point-of-sale advertising was already manufactured, found acceptable, and was simply awaiting drop-shipment directions. The Department has shown no reason why title or ownership must be considered to have passed to the purchasers in the case at bar.

In Crown Iron Works Co. v. Commissioner of Taxation (1974), 298 Minn. 213, 214 N.W.2d 462, a contract for the sale of goods to be manufactured in the future was executed before the effective date of a sales tax statute, but the goods were not delivered until after the effective date. The sales tax was held to have been properly imposed since the taxable event occurred upon delivery of goods rather than execution of the contract. The court relied upon the Uniform Commercial Code in its analysis, which provides that identification to the contract, a necessary prerequisite to the passing of title, occurs in the case of future goods when goods are shipped, marked, or otherwise set aside, and that unless otherwise explicitly agreed upon, title passes at the time and place at which the seller completes his performance with respect to delivery of the goods. (298 Minn. 213, 217, 219 N.W.2d 462, 464-65.) The taxpayer took no positive action to identify goods to the contract prior to the shipping date of the goods; therefore, title to the goods passed when shipped, which occurred after the effective date of the statute. The Illinois Supreme Court has also applied the title-passing tests of the Uniform Commercial Code to determine whether a sale has occurred for taxation purposes. See O’Brien v. Isaacs (1965), 32 Ill. 2d 105, 203 N.E.2d 890.

In the instant case, there is no evidence of record that goods were identified to the contracts prior to their shipping dates. The contracts do not expressly state as to when title passes to the buyer. Under section 2 — 401(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 401(1)), title to goods cannot pass under a contract for sale prior to their identification to the contract. Section 2 — 401(2) provides that title passes to the buyer at the time and place at which the seller completes his performance, unless otherwise explicitly agreed. (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 401(2).) Therefore, it must be held here also that title passes at the time and place of United’s completed performance.

The Department urges that Crown Iron Works is inapplicable at bar because the tax statute considered therein predicated a sale on the transfer of title or possession, whereas the ROT predicates a sale on the transfer of title or ownership. Therefore, the Crown Iron Works court did not specifically address the concept of passage of ownership as distinct from that of passage of title. While this is true, the Department has cited no cases for the principle, a necessary corollary of its argument, that ownership to goods yet to be manufactured should pass to a purchaser in advance of title.

The Department asserts that to the extent that the statutory definition of “sale at retail” is relevant to a determination of the taxability of the prepayments made, the transactions in the case at bar constitute sales at retail under the Act and are thus taxable, citing Butler Manufacturing Co. v. Department of Finance for the principle that the execution of a contract of sale is sufficient to pass title to the purchaser under the ROT. In Butler, however, the meal grain storage bins which were the subject matter of the contract were already in existence. Further, the precise issue raised in the instant case was not considered in Butler. The Department also relies upon State ex rel. Thompson-Stearns-Roger v. Schaffner (Mo. 1973), 489 S.W.2d 207. There the contractors entered into agreements pursuant to which they were to build certain facilities for the United States government. In so doing, they purchased property the cost for which was to be passed on to the United States. The contracts between them and the United States provided that title to the property would vest in the government upon delivery of such property to the government by the vendor. The court held there that the contractors possessed an ownership interest in the goods, subjecting them to taxation, although title passed to the government upon delivery to the job site and acceptance there. As with Butler, no issue was either raised or decided with respect to ownership of goods to be manufactured in the future or the taxability of prepayments received for said goods. The Department cites Reif v. Barrett (1933), 355 Ill. 104, 188 N.E. 899, overruled on other grounds in Thorpe v. Mahin (1969), 43 Ill. 2d 36, 45, in which the court acknowledged that where tangible personal property is transferred under a conditional sales contract, a tax is levied on the basis of actual receipts rather than upon the selling price. Similarly, on a credit sale the taxpayer is excused from paying tax until the account is paid. The Department argues that, just as receipts are taxed in the case of conditional or credit sales when they are received, so here, prepayments should be subject to taxation when they are received. Overlooked in this argument, however, is that in credit and conditional sales transactions, the purchaser usually is given possession and use of a finished product and lacks only legal title to the object, a situation not contemplated under the instant facts.

Finally, the Department urges that taxation of the prepayments is authorized by article 3(4) (d) of the Department Rules and Regulations,' which provides, in part, that “[t]he giving of a binding purchase order by the purchaser and the making of a payment on the price are sufficient to establish that a sale is intended for the purpose of determining that the seller has received taxable ‘gross receipts.’ ” Department Rules and Regulations may be considered as persuasive authority; however, they can neither limit nor extend the scope of the Act. (Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153.) In light of the foregoing considerations, we are compelled to find that article 3(4) (d) extends the tax liability for payments under these circumstances beyond the parameters of the Act.

The order of the circuit court is accordingly affirmed.

Affirmed.

STAMOS, P. J., and DOWNING, J., concur.

       The MROT incorporates by reference sections of the ROT relevant’ to this appeal; therefore, reference to both will be made collectively as “ROT” or as “the Act” hereinafter in this opinion.

       Caterpillar Tractor Co., Ideal Tool Co., Danly Machine Corp. and Gardner-Denver Corp.


source: Caselaw Access Project

author: PRESIDING JUSTICE JOHNSON

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. DUANE V. BARCENA, Defendant-Appellant.
    First District (4th Division)
    No. 81-1409
    Opinion filed July 1, 1982.
    Duane V. Barcena, of Mundelein, for appellant, pro se.

    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Following a bench trial, defendant Duane Barcena was convicted of having violated chapter 28, section 3 of the Municipal Code of Chicago. This ordinance proscribes interurban operation of a taxicab which is not licensed in Chicago. The issues raised on appeal are (1) whether the trial court erred in assessing a $25 fee for the right to a jury trial and then denying defendant a trial by jury when he declined to pay the fee; (2) whether the trial court erred in denying defendant’s request for a continuance on the day the trial was to begin; and (3) whether defendant was proved guilty by a preponderance of the evidence.

On February 27, 1981, defendant appeared for trial and made a jury demand. The trial judge inquired whether defendant had paid the jury fee. Defendant responded that he had not done so and moved that the fee be waived. This motion was denied. The trial court then indicated that defendant’s motion for a jury trial would be granted upon payment by defendant of a $25 jury fee. Defendant represented to the court that he was without funds to pay the fee. Thereupon, the trial court denied defendant’s motion for a jury trial and a bench trial commenced over defendant’s objection.

Defendant argues that he had a right to a jury trial, that he did not waive that right, and that the trial court should have waived the fee. The City counters in its brief that defendant waived his right to a jury trial by failing to make a timely jury demand (Ill. Rev. Stat. 1979, ch. 110, par. 64) or, in the alternative, by failing to pay the $25 fee assessed.

We need not consider whether defendant made a timely jury demand by requesting a jury the first time he appeared in court. The trial court demonstrated its propensity to grant defendant’s motion for leave to file a late jury demand. (Ill. Rev. Stat. 1979, ch. 110, par. 59; see Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 300, 356 N.E.2d 42.) Therefore, the residual issue is whether the trial court erred by proceeding with a bench trial when defendant declined to pay the jury fee.

The parties have not cited any authority for the imposition of a jury fee in the prosecution for a violation of a municipal ordinance. Such a case is treated as “quasi-criminal” in character but civil in form, and, in general, it is subject to the provisions of the Civil Practice Act. (See City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 292 N.E.2d 382.) However, quasi-criminal proceedings are explicitly omitted from the statutory provision for jury fees (Ill. Rev. Stat. 1979, ch. 25, par. 27.2(14) (b)) which states:

“The Clerk of the Circuit Court shall be entitled to receive, in addition to other fees allowed by law, the sum of $50 as a fee for the services of a jury in every civil action not quasi-criminal in its nature * e (Emphasis added.)

The schedule of fees promulgated by the circuit court of Cook County establishes jury fees for civil claims and for small claims actions. However, there is no mention of a jury demand fee under the portion of the fee schedule for the circuit court of Cook County entitled “Criminal and Quasi-Criminal Costs.”

The City argues in its brief that the fee schedule applicable to small claims actions should control a jury demand in quasi-criminal matters such as the instant case because the offense carries a maximum penalty of $200. The City relies on Supreme Court Rule 285 (73 Ill. 2d R. 285) and section 64(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 64(2)). Contrary to the City’s contention, Supreme Court Rule 285 is inapplicable to a quasi-criminal matter because, by definition, a small claim is “a civil action based on either tort or contract for money not in excess of $1,000 * * * or for the collection of taxes not in excess of that amount.” 73 Ill. 2d R. 281.

Because we can find no authority for the assessment of a jury fee in a prosecution for a violation of a municipal ordinance, we conclude that the trial court erred by imposing a jury fee and by denying defendant a jury trial due to his failure to pay the fee assessed. In light of our finding, it is unnecessary for us to address the additional issues raised by defendant.

For the foregoing reasons, the judgment of the circuit court is reversed and the case is remanded for further proceedings.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    OAK PARK TRUST AND SAVINGS BANK, Trustee, et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (2nd Division)
    No. 81-1135
    Opinion filed July 13, 1982.
    Reharing denied August 10, 1982.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke, Philip L. Bronstein, and Myron N. Schreiber, Assistant Corporation Counsel, of counsel), for appellant.
    Daley and George, of Chicago (John J. George and Timothy J. Joyce, of counsel), for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff sought approval of a zoning change from the City of Chicago for property on the northwest corner of West Diversey Parkway and North Orchard Street. The City of Chicago denied plaintiff’s request. Plaintiff then filed a complaint for declaratory judgment challenging the constitutionality of the Chicago Zoning Ordinance as applied to his property. The trial court held that the ordinance, as applied to plaintiff’s property, was arbitrary and unreasonable and bore no substantial relationship to the public health, safety, comfort or general welfare, and was therefore unconstitutional. The City of Chicago appeals. The issue before this court on appeal is whether the judgment of the trial court was against the manifest weight of the evidence.

Oak Park Trust and Savings Bank, as trustee, holds title to a parcel of real estate located at 704-708 West Diversey Parkway in Chicago. The beneficial owner of the land trust is Thomas D. Flanagan, who purchased the property in 1975. The parcel contains a frontage of about 93 feet on Diversey and about 250 feet on Orchard. Approximately 85% of the property is zoned B3 — 3 (general retail district) with the remaining 15% zoned R5 (general residential district). When Flanagan purchased the property it was improved with two multi-unit residential buildings. Plaintiff had these buildings razed when he was unable to bring them into compliance with the city building code. The property is presently unimproved.

In 1979, plaintiff met with community groups to discuss a proposed residential building containing 120 units to be built on his property. Subsequent to these meetings the proposed number of units was decreased to 96. Of the 96 units in the proposed 13-story building, 84 would be two-bedroom units and 12 would be one-bedroom. The proposed structure would contain 96 parking spaces and two driveways. The first floor would be a lobby. There would be no commercial use in the building. Under the B3 — 3 and R5 zoning classification, a maximum of 70 or 71 dwelling units could be constructed on the property. Under the B3 — 4 zoning classification sought by plaintiff, a maximum of 144 units could be constructed.

The property directly east of the subject property, on the northeast corner of Diversey and Orchard, is zoned B3 — 4 and has a restaurant on the lower level and apartments above. The property on the southeast corner of Diversey and Orchard is zoned B5 — 4, a classification permitting higher density than B3 — 4, and is currently being used as a parking lot. Directly south of the subject property, on the southwest corner of Diversey and Orchard, the property is zoned R4 and is occupied by multiple family residences. Immediately to the west of the subject property is a seven-story building called the Diversey Parkway Hotel. That property is zoned B3 — 3. The property north of the subject property on the west side of Orchard is zoned R5. North of the subject site, on the east side of Orchard is a seven-story parking garage which services the Century Mall Shopping Center. All the property in the vicinity of the subject property is developed in compliance with their respective zoning classifications.

Real estate appraiser William McCann testified for plaintiff. He had attended the community meetings which resulted in lessening the number of units in the proposed development from 120 to 96. He testified that he inspected the subject property for the purpose of forming an opinion as to its highest and best use. After describing the properties and zoning in the vicinity of the subject property, he stated that in his opinion the highest and best use of the property would be a 96-unit condominium building. McCann testified that he based his opinion on the zoning change sought by plaintiff, the need and demand for the proposed use, its compatibility with the surrounding properties, trends of development in the area and neighborhood influences such as schools, shopping and transportation. In his opinion, the proposed use would not have a depreciatory effect on the surrounding properties but instead would tend to stabilize the immediate vicinity and encourage additional long term investment in permanent tenancy in the area. He testified that the property would be worth $1 million if rezoned for plaintiff’s proposed use. If the property was not rezoned it would be worth between $700,000 and $750,000.

McCann believed that because of the seven-story garage which services the Century Mall, he would not recommend building new multifamily structures on the portion of the subject property zoned R5 (the north 15% of the lot). He also did not believe that the subject property could be feasibly developed for business use due to the substantial amount of commercial property available in the area. McCann also testified that under the existing B3 — 3 and R5 zoning, a building as tall or taller than the proposed use could be built on the subject property.

Rolf Campbell, a city planner and zoning consultant, also testified for plaintiff. He testified that a 13-story building could be built under either a B3 — 3 or R5 zoning classification, as well as under the B3 — 4 classification sought by plaintiff. There is also no difference between B3 — 3 and B3 — 4 classifications with regard to off-street parking, off-street loading, or side, front or rear yard set backs. The B3 — 4 classification, however, allows approximately twice the density permitted under B3 — 3 or R5. He testified that the purpose of the requested zoning change is to permit construction of family type units. He also stated that the requested change represents a logical extension of existing zoning classifications in the vicinity of the subject property. Campbell testified that in his opinion the highest and best use of the subject property would be for a residential structure allowing for family units and that the structure should not contain both residential and commercial uses. He also believed that the proposed 96-unit condominium structure would be beneficial to the surrounding area.

A1 Swanson, a traffic engineer, testified for plaintiff that he was familiar with the area in question and had conducted a number of traffic counts on Diversey near the subject property. In his opinion the proposed development would not have an adverse impact on traffic in the area. Further, the two driveways in the proposed building were acceptable from a traffic engineer’s standpoint.

Patrick Arnold, a city planner employed by the City of Chicago, testified for the City that he was familiar with the subject property. It was his opinion that the property’s existing B3 — 3 and R5 zoning classification were proper and that any increase in the density would have a deleterious effect on the surrounding area. He based his opinion on the low density, residential nature of the buildings north of Diversey on the east sides of Orchard and Burling, the street one block west of Orchard. According to Arnold, the proposed development would have an adverse effect on the properties north of Diversey which are zoned and developed in conformance with the R5 zoning classification. He believed that Orchard was a reasonable boundary line between zoning classifications.

On cross-examination, Arnold acknowledged that a 13-story building could be constructed under the existing classification. He agreed that two-bedroom units would be more desirable for attracting families. He believed, however, that any project which would increase density by 40% to 50% over the existing zoning classification would have a deleterious effect on the area, which was already congested.

Real estate broker and appraiser John McNamara testified for the City that the highest and best use of the subject property was under the existing zoning. He also believed that the property could be feasibly and economically developed under the existing classification. McNamara testified that the value of the property as presently zoned was approximately $710,000.

The City then called three residents of the area. They objected to the proposed development because it would increase traffic and parking congestion in the area. One witness feared that the increase would pose a threat to neighborhood children and believed the development would diminish the value of his single family residence. Another witness agreed with the belief that his property would decrease in value because of the proposed structure and testified that he purchased his home in reliance on the R5 zoning of the subject property, which abuts his property to the east. Two of these three witnesses believed that construction of the proposed building would invite others to build high rises in the area.

Plaintiff then called two residents of the area as rebuttal witnesses. One, who owns property adjoining and across the street from the subject property and lives on Orchard one-half block north of Diversey, believed that the proposed development would be an asset to his property and the community as a whole. In his opinion, a commercial development on the subject property would be a detriment to his properties. The other rebuttal witness, who resides to the east of the subject property, thought the building would be an asset to the area.

The trial court ruled for plaintiff and entered a declaratory judgment giving plaintiff the right to construct a 13-story, 96-unit residential building on the property in issue. The court believed that the restrictions imposed on plaintiff’s property by the City of Chicago were unreasonable since they did not benefit the surrounding community, and that the proposed development was reasonable because it did not have a negative impact on the public.

The City’s contention on appeal is that the trial court erred in declaring the City’s zoning ordinance invalid as applied to plaintiff’s property on West Diversey Parkway. In essence, the City claims that.the B3 — 3 and R5 zoning classifications, rather than the B3 — 4 classification, were proper.

The standard of review in zoning cases is that the findings of the trial court will not be disturbed unless they are against the manifest weight of the evidence. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17, 377 N.E.2d 21.) However, a zoning ordinance is presumptively valid and one who attacks it has the burden of overcoming the presumption with clear and convincing evidence. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) The issue before this court is therefore whether the trial court’s decision — that plaintiff overcame the presumption with clear and convincing evidence — was against the manifest weight of the evidence.

The criteria used in determining the validity of a zoning ordinance were set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65:

“Even though the validity of each zoning ordinance must be determined on its own facts and circumstances [citations] 909 among the facts which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property, [citations], (2) the extent to which property values are diminished by the particular zoning restrictions, [citations] (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public, [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, [citation], (5) the suitability of the subject property for the zoned purposes 9 9 9 [citations], and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citations].”

In its oral order, the trial court cited La Salle National Bank of Chicago v. County of Cook and specifically noted the six factors listed above. In regard to the existing uses and zoning of nearby property, the court acknowledged that the property on the northeast corner of Diversey and Orchard is zoned B3 — 4 and the property on the southeast corner is zoned B5 — 4. The court also noted that a 17-story apartment building was being built a block east of the subject site. The court concluded that the proposed B3 — 4 zoning classification would conform and be compatible with the existing zoning of nearby property. The court did not mention that all the nearby properties were developed in conformity with the zoning classifications.

With respect to the extent to which the subject property’s value is diminished by the B3 — 3 and R5 zoning classification, witnesses for both parties testified that the subject property is worth between $700,000 and $750,000 under the existing zoning. It was undisputed that if plaintiff’s proposed development was built under a B3 — 4 classification, the property would be worth approximately $1 million. The next factor is the extent to which the retention of the B3 — 3 and R5 classification would promote the health, safety, morals or general welfare of the public. The trial court did not believe that these public interests were enhanced by the current, as opposed to the proposed, zoning classification. The court noted that because of the positioning of the proposed building, the properties on North Orchard and on the east side of Burling would continue to have full access to light and air. There was, however, testimony for the City by two residents of the area that they believed construction of the building would decrease the value of their properties.

The trial court then balanced the relative gain to the public with the hardship imposed on plaintiff if the B3 — 3 and R5 classification was upheld. The court noted the testimony of plaintiff’s experts regarding traffic and parking, the stabilizing effect the proposed development would have on the community, the likely increase in taxes generated and the additional patrons for the surrounding businesses which would result from the development. The court concluded that plaintiff’s proposal would have no adverse impact on the community. On the other hand, plaintiff’s property would be worth approximately a quarter million dollars more if the property was developed according to the proposal.

The trial court then acknowledged that plaintiff would receive some benefit from the subject property if the present zoning classification is upheld. Plaintiff need not show that all possible uses of the property would be unsuitable but is required to show the unreasonableness of the zoning restriction and the reasonableness of the proposed use. (See Brunette v. County of McHenry (1977), 48 Ill. App. 3d 396, 398, 363 N.E.2d 122.) Noting that the height of the proposed building, as well as the side, front and rear yard set backs, would have been permitted under the B3 — 3 classification, the court concluded that the alteration regarding density would not affect surrounding properties and demonstrated the suitability of the site for the proposed development. The court pointed out that the subject property had been vacant for two years and is the only vacant lot in the area on which the proposed structure could be built. The trial court concluded that the City of Chicago’s zoning restrictions were unreasonable and arbitrary as regards plaintiff’s property since they do not benefit the surrounding community. The court further concluded that plaintiff’s proposal was reasonable.

In its analysis, the trial court failed to give due weight to the City’s legitimate interest in fashioning an overall zoning scheme. It is within the province of the local municipal body to determine the uses of property and establish zoning classifications. (La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 307, 388 N.E.2d 388.) This authority emanates from the municipality’s police power to enact laws for the protection of the welfare of the community. (Avenue State Bank v. Village of Oak Park (1968), 99 Ill. App. 2d 329, 337, 241 N.E.2d 630.) The borders for zoning classifications must exist somewhere, and an appropriate place for such a border could be a street. (Bennett v. City of Chicago (1962), 24 Ill. 2d 270, 273,181 N.E.2d 96.) We believe that plaintiff failed to prove by clear and convincing evidence that Orchard Street was an inappropriate dividing line between B3 — 3 and B3 — 4 classifications.

With respect to the trial court’s reliance on the existence of the 17-story apartment building located approximately one block east of the subject property, we note that the immediate vicinity of that structure is dramatically different from the immediate vicinity of the subject site. The former is highly congested with a few single- and multi-family residences. The latter is currently less congested with a much higher percentage of single- and multi-family residences. The fact that plaintiff will suffer a financial detriment if prohibited from constructing the 96-unit building is a factor to be considered in determining the validity of the zoning ordinance’s restrictions. That factor is not, however, determinative. (Stachnik v. Village of Norridge (1966), 68 Ill. App. 2d 361, 367, 216 N.E.2d 207.) Plaintiff admits that under the present zoning scheme he can construct a building with approximately 71 units. We note that in addition to the presumption favoring the validity of zoning ordinances in general, there is a presumption that density restrictions contained in zoning ordinances are reasonably related to the welfare of the community. (Lapkus Builders, Inc. v. City of Chicago (1964), 30 Ill. 2d 304, 309, 196 N.E.2d 682.) We believe that plaintiff has failed to rebut this presumption by clear and convincing evidence.

In view of these factors, we find that plaintiff has failed to prove by clear and convincing evidence that the City’s zoning ordinance is unreasonable and arbitrary as regards plaintiff’s property. From a review of the record, it is our belief that plaintiff failed to overcome the presumption in favor of the validity of the zoning classification. We therefore conclude that the trial court’s declaration that the zoning ordinance is unconstitutional as applied to plaintiff’s property is against the manifest weight of the evidence.

The judgment of the trial court is reversed.

Reversed.

DOWNING and HARTMAN, JJ., concur.


author:
JUSTICE LINN
      JUSTICE ROMITI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM MILLER, Defendant-Appellant.
    First District (4th Division)
    No. 80-1406
    Opinion filed July 15, 1982.
    ROMITI, J., dissenting.
    Robert P. Burns, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Barbara A. Levin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a plea of guilty in the circuit court of Cook County, defendant, William Miller, was convicted of murder, attempted murder, attempted armed robbery, and aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1, 8 — 4,18—2, and 12 — 4), and found not guilty of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Defendant was sentenced to 20 years in the Illinois Department of Corrections for the offense of murder, and to concurrent terms of 6 years for the offenses of attempted murder and attempted armed robbery and 4 years for the offense of aggravated battery.

Defendant asks this court to reverse his convictions, arguing that (1) defendant’s failure to file a written motion to withdraw his guilty plea (73 Ill. 2d R. 604(d)) is not a bar to this appeal because the trial judge failed to advise defendant how to preserve his right to appeal as required by Supreme Court Rule 605(b) (73 Ill. 2d R. 605(b)); (2) the trial judge substantially failed to comply with Supreme Court Rule 402 (73 Ill. 2d R. 402) in that the trial judge failed to instruct defendant as to (a) the mandatory supervised release periods that attached to defendant’s convictions, (b) defendant’s right to confront and cross-examine the witnesses against him, (c) defendant’s privilege against self-incrimination, (d) the sentences applicable to the various convictions, and (e) defendant’s right to persist in a plea of not guilty, and failed to inquire whether any threats or promises other than the plea agreement were used to obtain the plea; (3) the trial judge violated defendant’s fourteenth amendment due process rights (U.S. Const., amend. XIV) by these same failures; (4) the trial judge abused his discretion by failing to conduct proceedings relevant to defendant’s oral motion to withdraw his guilty plea.

We affirm.

Facts

On August 8, 1980, counsel for defendant sought leave in the circuit court of Cook County to withdraw defendant’s previously entered plea of not guilty to the charges and enter a plea of guilty (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 2). After defendant told the trial judge that he did wish to plead guilty, the trial judge admonished defendant that he was charged with murder, armed violence, attempted murder, attempted armed robbery, and aggravated battery. The trial judge informed defendant that the possible sentence for murder was 20 to 40 years; for armed violence and for attempted murder, 6 to 30 years; for attempted armed robbery, 3 to 7 years; and for aggravated battery, 2 to 5 years. The trial judge then stated, “As to each of these offenses, without murder being included, the Court can also impose what is called a mandatory supervised release period on you of up to a period of three years as to each of these — on each of these charges. Do you understand what you are charged with, and what the possible sentence is as to each of these charges?” Defendant answered yes.

The trial judge then told defendant that by pleading guilty defendant would give up his constitutional right to a jury trial or, if he wished, a bench trial. Defendant stated that it was his wish that he not go to trial. The trial judge thereupon informed defendant that as a result of the plea bargain conference defendant would receive a sentence of 20 years for the offense of murder, with the shorter sentences for each of the other offenses described above to be served concurrently. After defendant stated that he understood the sentences he would receive on his plea of guilty, the trial judge said, “Let the record show that the defendant has been duly warned of the consequences of his plea, and after being so warned, he persists.”

The State’s Attorney was then asked to set forth the factual basis for the guilty plea. He summarized as follows the anticipated testimony from several witnesses, to which defense counsel stipulated.

At 1:30 a.m. on October 22, 1979, five men were shot in an alley at 25th and California by a man armed with a pistol. One of the victims died of gunshot wounds to the chest. A statement made on October 25, 1979, by defendant to a police investigator was also admitted into evidence by stipulation. Defendant had stated that about 1:30 a.m. on October 22, 1979, he went to 25th and California with a codefendant, Paco Rodriguez, after Rodriguez took a pistol from his house and said, “Let’s rob somebody.” Defendant said that he (defendant) trained the pistol on the five victims in an alley while Rodriguez told them to give him their money. When the victims refused to do so, defendant stated, he gave the gun to Rodriguez, who shot all five men.

One of the victims died. The other four victims sustained gunshot wounds. The bullet removed from the body of the deceased victim was analyzed at the police crime laboratory, which determined that it had come from the gun used by defendant and Rodriguez.

The trial judge ruled that these stipulated facts provided a sufficient basis for a plea of guilty, and accordingly accepted defendant’s plea. The trial judge found defendant guilty of murder, attempted murder, attempted armed robbery, and aggravated battery and entered judgment on each of the findings.

At the sentencing hearing on April 22, 1980, defendant, who was represented by counsel, told the court, “I would like to withdraw my plea, because I didn’t quite understand the proceedings.” The trial judge denied this request and sentenced defendant to 20 years for the murder and shorter concurrent sentences for the other convictions as outlined above. The trial judge advised defendant that he had 30 days within which to file a written and sworn petition setting forth sufficient legal reasons why he should be permitted to withdraw his plea of guilty. Defendant filed no such petition; he filed a notice of appeal on May 13,1980.

Opinion

The first issue that must be addressed in this appeal is whether, in view of the trial judge’s failure to advise defendant of his right to appeal as required by Supreme Court Rule 605(b), defendant has waived his right to appeal by failing to present to the trial court a motion under Supreme Court Rule 604(d) to withdraw his guilty plea and vacate the judgment. Supreme Court Rule 604(d) provides that “[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (73 Ill. 2d R. 604(d).) Accordingly, it has been held that a written motion to withdraw a guilty plea is a prerequisite to an appeal of a judgment of conviction entered on the plea. (People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254; People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46; People v. Newbolds (1981), 98 Ill. App. 3d 1018, 425 N.E.2d 9.) A notice of appeal filed within the 30-day period does not satisfy the requirement of Rule 604(d). (People v. Frey.) However, an exception to the requirement exists where the trial court has failed to admonish the defendant in accordance with Supreme Court Rule 605(b). People v. Newbolds; People v. Gramlich (1979), 69 Ill. App. 3d 23, 386 N.E.2d 1171; People v. Martin (1978), 58 Ill. App. 3d 915, 374 N.E.2d 1156.

Rule 605(b) provides, in pertinent part, as follows:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) That he has a right to appeal;
(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
# # O
(6) That in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” 73 Ill. 2d R. 605(b)(1), (2) and (6).

In this case, after sentencing, the trial judge informed defendant only that he had 30 days within which to file a written petition setting forth sufficient legal reasons to permit withdrawal of the guilty plea. The trial judge not only failed to inform defendant of his right to appeal, but also failed to inform him that the written motion was a condition precedent to defendant’s right to appeal, and that failure to file the written motion would waive any claim of error in the trial court proceedings. In view of these omissions, we hold that defendant did not waive his right to appeal his convictions, and we will consider defendant’s appeal. See People v. Gramlich (1979), 69 Ill. App. 3d 23, 386 N.E.2d 1171; People v. Martin (1978), 58 Ill. App. 3d 915, 374 N.E.2d 1156; People v. Theobald (1976), 43 Ill. App. 3d 897, 356 N.E.2d 1258.

Defendant maintains that the trial judge substantially failed to comply with Supreme Court Rule 402, and also denied him his fourteenth amendment right to due process, by omitting the admonishments outlined in the statement of issues above. The United States Supreme Court has held that due process requires that the record affirmatively demonstrate that a criminal defendant’s plea of guilty was made knowingly and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) A year after the Boykin decision, Supreme Court Rule 402 was adopted to ensure that the Illinois procedure on pleas of guilty conformed to this requirement. (Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments and Historical & Practice Notes, at 529-32 (Smith-Hurd 1976).) Supreme Court Rule 402 states,

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” 73 Ill. 2d R. 402.

The record indicates that at the hearing at which defendant withdrew his plea of not guilty and sought leave to enter a plea of guilty, the trial court informed defendant of the charges against him and the minimum and maximum sentences that he could receive if convicted of those offenses. The following dialogue then took place:

“The Court: As to each of these offenses, without murder being included, the Court can also impose what is called a mandatory supervised release period on you of up to a period of three years as to each of these — on each of these charges.
Do you understand what you are charged with, and what the possible sentence is as to each of these charges?
The Defendant: Yes, your Honor.
The Court: Do you understand that by pleading guilty to the charges, you will lose your Constitutional right to a jury trial, and/or, if you didn’t wish to have a jury, you would lose your Constitutional right to a trial by the Court sitting without a jury.
The Court should add, that two days ago, a jury was selected in this case, and is presently seated in the jury room, awaiting commencement of these proceedings with reference to Mr. Miller.
And I understand that that jury will now be dismissed, and will not hear any of the evidence in this case.
Is that what you wish?
The Defendant: Yes.”

The court then informed defendant of the concurrent sentences he would receive, the longest being 20 years for the offense of murder, which defendant acknowledged he understood. The court then said, “Let the record show that the defendant has been duly warned of the consequences of his plea, and after being so warned, he persists.”

Defendant argues that as a result of the admonishments quoted above, he was not made aware of the mandatory supervised release term that would be imposed in addition to the term of imprisonment as provided by the Illinois Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(d)(1)):

“Except where a term of natural life is imposed, every sentence shall include as though written therein a term in addition to the term of imprisonment. * * * [S]uch term shall be identified as a mandatory supervised release term. 0 6 # [T]he parole or mandatory supervised release term shall be as follows:
(1) for murder or a Class X felony, 3 years.”

Therefore, defendant claims, his plea of guilty was not voluntarily and understanding^ entered.

A review of the pronouncements of the Illinois Supreme Court on the issue of what constitutes compliance with Rule 402 provides guidance in evaluating the merit of defendant’s argument. In People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559, the court stated that “Rule 402 was designed to insure properly entered pleas of guilty, not to provide for merely an incantation or ceremonial.” (58 Ill. 2d 187, 194-95, 317 N.E.2d 559, 564.) Krantz held that the rule requires only substantial, not literal, compliance with its provisions.

The following year, in People v. Wills (1975), 61 Ill. 2d 105, 330 N.E.2d 505, the supreme court “reconsidered the position taken in People v. Krantz” (61 Ill. 2d 105, 109, 330 N.E.2d 505, 508) and held that compliance with Rule 402(a) (2) requires that a defendant be admonished that the mandatory period of parole (now called a mandatory supervised release term) is part of the sentence to be imposed. (61 Ill. 2d 105, 109, 330 N.E.2d 505, 508.) However, the court held that this requirement did not require reversal of defendant Wills’s conviction because he was admonished about the mandatory parole provision on the charge on which he received the greatest sentence, which would govern his eligibility for both parole and discharge.

The Wills court did not say that failure to include notice of the mandatory term in the admonishments given to a defendant who is pleading guilty automatically requires reversal of a judgment of conviction on the plea; it said that “failure to admonish a defendant concerning the mandatory period of parole is, of course, a factor to be considered in determining whether a plea of guilty was voluntarily and intelligently made.” (Emphasis added.) (61 Ill. 2d 105, Ill. 330 N.E.2d 505, 508.) Accordingly, even if we agree with defendant’s claim that he was not properly admonished about the mandatory release term, we cannot agree with defendant’s contention that his guilty plea was thereby rendered involuntary under Wills. Clearly, if the admonishment in question is a factor to be considered, the other circumstances surrounding the plea are also factors which should be considered before making a determination on the issue of the voluntariness of the plea.

The supreme court spoke again in 1979 on the issue of whether “the plea of guilty ‘was not knowingly and intelligently made for the reason that petitioner was not advised that in addition to the penitentiary sentence imposed he would also be required to serve three years on parole.’ ” (People v. McCoy (1979), 74 Ill. 2d 398, 400, 385 N.E.2d 696, 697.) Making no mention of Wills and its “reconsideration” of Krantz, the court in McCoy cited Krantz as follows: “While there appears to be no reason for failure to comply strictly with the explicitly stated requirements of Rule 402, every deviation therefrom does not require reversal. That the plea was ‘intelligent and voluntary’ may be shown by substantial, and does not require literal, compliance with the provisions of Rule 402. People v. Krantz (1974), 58 Ill. 2d 187, [317 N.E.2d 559].” (74 Ill. 2d 398, 402, 385 N.E.2d 696, 698.) Because the latest decision in this chronology ignores Wills and cites Krantz with approval, we conclude that the rule applicable to this case is the rule quoted from McCoy. This court recently has held not only that Rule 402 requires substantial rather than literal compliance, but also that “even when the rule is not substantially complied with, a reviewing court will not vacate a guilty plea absent an allegation and proof of prejudice.” People v. Hoyer (1981), 100 Ill. App. 3d 418, 420, 426 N.E.2d 1139, 1140.

The record discloses that at the change of plea hearing, after defendant informed the trial judge that he wished to plead guilty, the trial judge immediately informed defendant of the charges against him and the possible sentences carried by each crime. Thus the defendant was made aware, even before the trial judge indicated his acceptance of the sentences agreed upon in the plea bargain conference, that defendant could be sentenced to a term of as much as 40 years for the crime of murder; as much as 30 years for armed violence and attempted murder; as much as 7 years for attempted armed robbery; and as much as 5 years for aggravated battery. When asked, “Do you understand what you are charged with, and what the possible sentence is as to each of these charges?” defendant replied, “Yes, your Honor.”

The State cites People v. Townsend (1974), 22 Ill. App. 3d 691, 318 N.E.2d 156, for the rule that a purely technical error which does not prejudice a defendant will not be considered to be less than substantial compliance with Rule 402, and therefore will not warrant reversal of the conviction. (See also People v. Hoyer (1981), 100 Ill. App. 3d 418, 426 N.E.2d 1139.) The State then argues that the defendant here has not been prejudiced because the sentence imposed together with the mandatory supervised release period is considerably shorter than the 40-year sentence that defendant was told he could receive. We agree. “It is most unlikely 600 that given this advice in this case and considering the vicious nature of the crime that knowledge of the parole term would be anything more than an academic factor in defendant’s decision to plead guilty.” People v. Briner (1978), 57 Ill. App. 3d 327, 328, 373 N.E.2d 33, 35.

In dealing with a similar factual situation, the supreme court in People v. McCoy said, “The * * * sentence imposed, together with the mandatory parole period, are [sic] substantially less than the maximum 0 6 * to which defendant knew he could be sentenced. Under these circumstances we hold that the record fails to show that defendant was denied a substantial constitutional right under either the Constitution of the United States or the Constitution of Illinois.” (74 Ill. 2d 398, 403, 385 N.E.2d 696, 699.) Because we have found McCoy to be controlling, we are unpersuaded by defendant Miller’s argument that the trial judge’s failure to admonish him substantially as required by Rule 402 rendered his guilty plea involuntary.

We hold further that defendant has suffered no deprivation of his constitutional rights. We have considered defendant’s claim that U.S. ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F. 2d 180, mandates a reversal of defendant’s conviction because his right to due process of the law was violated by the trial judge. We note that a lower Federal court decision is not binding on this court until the issue is determined by the United States Supreme Court. (People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431.) This court in People v. Robinson (1980), 82 Ill. App. 3d 937, 403 N.E.2d 604, rejected the argument that the due process rights of a defendant who had pleaded guilty had been violated by the trial court’s failure to advise him of the mandatory parole term. The Robinson decision was based on the rationale of Wills and later Illinois cases (see, e.g., People v. McCollum (1979), 71 Ill. App. 3d 531, 390 N.E.2d 16) holding that the omission of certain Rule 402 admonitions was merely one factor in determining whether the guilty plea was voluntarily and intelligently entered. We agree with the reasoning in Robinson. “Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.” United States v. Smith (7th Cir. 1971), 440 F.2d 521, 529 (Stevens, J., dissenting).

Defendant does not argue that he was actually unaware of the mandatory supervised release term, nor does he claim that he would not have pleaded guilty had he been properly admonished about any of the particulars he claims were improperly omitted. The People argue persuasively that the trial judge’s admonition to defendant that a plea of guilty would waive his right to a trial would make it clear that the plea would also waive those rights that are ancillary to a trial. Thus, it has been held that failure to inform a defendant that by pleading guilty he would waive his right to be confronted by witnesses is not reversible error (People v. Sullivan (1973), 12 Ill. App. 3d 394, 297 N.E.2d 586), and that a trial court is not required to admonish a defendant specifically of his privilege against self-incrimination (People v. Bolden (1972), 7 Ill. App. 3d 730, 288 N.E.2d 541).

Defendant’s other claims of error are not factually supported by the record and require no further discussion. Because we have found that defendant’s plea of guilty was entered knowingly and voluntarily, we hold that any specific omissions by the trial judge to admonish defendant under Supreme Court Rule 402 were harmless error. Defendant’s convictions accordingly are affirmed.

Affirmed.

JOHNSON, P. J., concurs.

JUSTICE ROMITI,

dissenting:

When defendant pled guilty he had been incorrectly informed by the trial court that the maximum sentence he would in fact receive would be 20 years, notwithstanding any prior statement by the court concerning a longer possible sentence. Yet defendant received a term of twenty years plus three years’ mandatory supervised release. The court had also failed to inform the defendant that by giving up his right to a trial he was waiving the right to be confronted by witnesses. Nor did the court, ever question defendant to determine whether coercion or other unstated promises were a factor in obtaining his plea. When this 17-year-old defendant, at the next available opportunity (his sentencing hearing), told the court he had not understood the proceedings and wished to withdraw his plea, the court summarily denied his request without any attempt to elicit the nature of defendant’s claimed misunderstanding. The court then failed to adequately instruct the defendant on the significance of the requirement that he file a written petition setting out the legal basis of his request to withdraw his plea. On this record I cannot agree that the defendant knowingly and voluntarily pled guilty and therefore I must respectfully dissent.

I believe it important to stress that it is clear under Illinois Supreme Court cases construing Supreme Court Rule 402 (73 Ill. 2d R. 402), that the trial court is required to inform the defendant of any mandatory supervised release periods accompanying his jail sentences. People v. Wills (1975), 61 Ill. 2d 105, 330 N.E.2d 505, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430, so held, expressly overruling People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559. People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696, applied the Wills holding although it found that despite that omission under the facts before it there was a voluntary and understanding plea. The majority seems to suggest that by citing to Krantz for the proposition that substantial rather than literal compliance with Rule 402 is all that is required, the court in McCoy somehow revived, sub silentio, the Krantz holding that Rule 402 does not by its literal terms require admonitions concerning mandatory supervised release periods. But, of course, the unchanging law since the adoption of Rule 402, as set out explicitly in that rule, has been that only substantial compliance was required. Thus citing to Krantz for that proposition did nothing to revive the separate holding of Krantz concerning the literal requirements of Rule 402.

The United States Court of Appeals, Seventh Circuit, has held that this omission alone, under circumstances where the defendant thus receives a longer sentence (including the mandatory supervised release term) than he was told he would receive, constitutes a violation of that defendant’s constitutional right to due process. Thus, in United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180, the defendant had pled guilty to a charge of armed violence after the trial court indicated it would concur in the State’s recommendation of a one- to two-year sentence. The defendant was informed that the charge carried with it a one- to three-year possible jail term but was not told of an additional mandatory parole period of two years. Significantly, the reviewing court distinguished an earlier case in which a defendant was told he could receive up to 15 years’ imprisonment but was not told of a mandatory three-year parole term. (Bachner v. United States (7th Cir. 1975), 517 F.2d 589.) The Bachner court had found no basis for vacating the defendant’s guilty plea but the Baker court noted that in Bachner the trial judge had not indicated his concurrence in the plea negotiations. That judge had informed the defendant he could receive up to 15 years’ imprisonment and then had sentenced the defendant to a term (including the unstated parole period) less than that period, so that there was no actual prejudice to the defendant. In Baker, which was an appeal from the denial of a habeas corpus petition, the court found that even under the stricter standard applicable to such a collateral attack there had been a due process violation because the two-year mandatory parole period which defendant received without being informed of it constituted a substantial addition to the one- to two-year prison term he was told he would receive. Subsequently the court in United States ex rel. Ferris v. Finkbeiner (7th Cir. 1977), 551 F.2d 185, also found such a due process violation where a defendant had pled guilty in exchange for a negotiated term of five to 10 years in prison but was incorrectly told by the trial court that the mandatory five-year parole period would not apply if he served the full 10-year term. See United States ex rel. Williams v. Morris (7th Cir. 1980), 633 F.2d 71, vacated as moot sub nom. Lane v. Williams (1982),_U.S. _, 71 L. Ed. 2d 508, 102 S. Ct. 1322.

In People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696, the Illinois Supreme Court distinguished Baker and Ferris on precisely the grounds that make those cases on point here. The McCoy court noted that the defendant had only been promised a recommendation by the State of a one- to three-year sentence. He had been warned of the possibility of receiving 20 years. In fact that defendant received one to three years. Thus, even including the mandatory parole period of which he was not advised, the defendant received a lesser sentence than that which he was informed he might receive. Here as I have noted the defendant was affirmatively told by the court that he would receive a maximum of 20 years but in fact received an additional three years’ supervised release. For that reason the decisions in Baker and Ferris are directly applicable. It is also noteworthy that the McCoy decision concerned a petition for post-conviction relief so that the defendant there was held to the high burden of establishing a substantial denial of his constitutional rights. We are, of course, reviewing a direct appeal. I would therefore hold that under the reasoning of Baker and Ferris the defendant’s due process rights were violated when he was not told of the mandatory supervised release period he would receive in addition to the stated term of 20 years in return for his plea of guilty. The majority correctly notes that these cases have not been followed by this court in the past. But those Elinois appellate court cases were either decided on the basis of the pre-Wills law that Rule 402 did not even require this admonishment (People v. McCollum (1979), 71 Ill. App. 3d 531, 390 N.E.2d 16; 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; People ex rel. Swiderski v. Brierton (1978), 65 Ill. App. 3d 153, 382 N.E.2d 628; People v. Irons (1977), 54 Ill. App. 3d 50, 369 N.E.2d 558 (all involving pleas entered before the effective date of Wills)), or they relied on those pre-Wills cases (People v. Robinson (1980), 82 Ill. App. 3d 937, 403 N.E.2d 604), or they factuaUy resembled McCoy or Bachner in that the defendant in fact received a shorter sentence (including mandatory supervised release) than he was advised he might receive. (People v. Coultas (1979), 75 Ill. App. 3d 137, 394 N.E.2d 26.) In addition, all of these cases involved collateral attacks on convictions rather than direct appeals so that the defendants in those cases were faced with a more rigorous standard of review on appeal. I am persuaded by the Elinois Supreme Court’s reasoning in McCoy that when faced with facts such as those presented to us in this case that court will choose to follow the Federal cases and thus bring uniformity to the law in this area. See United States ex rel. Williams v. Morris (7th Cir. 1979), 594 F.2d 614.

But even assuming that this ground alone does not suffice to require vacation of defendant’s guilty plea, I would find that this omission, together with the other omissions I have cited, require a finding that the trial court failed to substantially comply with Rule 402 and that defendant did not voluntarily and intelligently plead guilty. (People v. Waldorf (1981), 94 Ill. App. 3d 976, 419 N.E.2d 428.) The majority, citing People v. Sullivan (1973), 12 Ill. App. 3d 394, 297 N.E.2d 586, appears to find that a defendant who is informed that he is waiving his right to a trial necessarily understands by that admonishment that he is waiving such “ancillary” rights as the right to confrontation of witnesses. Such a holding would render superfluous the specific admonishments established by Rule 402 and I do not construe Sullivan to so hold. In that case the defendant contended that he was not advised concerning his right to confront witnesses. The reviewing court first noted that the admonishment was not required under the then-applicable Supreme Court Rule 401(b). (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b).) The court also found substantial compliance with Rule 402 and finally, noting that defendant was not stranger to the criminal justice system, held that based on the record before it the defendant’s plea was voluntarily and understandingly made. I do not construe this as indicating that admonishment of the right to trial includes by reference all rights “ancillary” to that trial. Nor can it be said, based on this record which contains no reference to any previous criminal history of the defendant, that at age 17 he was so familiar with the criminal justice system that he could be said to understand, without being told, the specific consequences of waiving his right to trial.

These latter factors, the defendant’s young age and the absence from the record of any indication of prior criminal involvement, made it especially important that the trial judge comply with the Rule 402(b) requirement that the “court, by questioning the defendant personally in open court, 000 shall determine whether any force or threat or any promises, apart from a plea agreement, were used to obtain the plea.” (73 Ill. 2d R. 402(b).) Contrary to the majority’s suggestion of no factual basis for defendant’s, claim that this requirement was omitted, the State has conceded the omission but contends that the failure to so inquire was harmless error, citing People v. Ellis (1974), 59 Ill. 2d 255, 320 N.E.2d 15. For the reasons I have cited in this dissent I do not share the State’s confidence that:

“* ° 0 upon review of the entire record it can be determined that the plea of guilty made under the terms of a plea agreement was voluntary, and was not made as the result of force, threats or promises other than the plea agreement * ° e.” (People v. Ellis (1974), 59 Ill. 2d 255, 257, 320 N.E.2d 15, 16.)

Accordingly I would reverse defendant’s convictions and remand the cause so that he may plead anew.


author: PRESIDING JUSTICE GREEN

text:
      In re MARRIAGE OF ANTHONY J. MANUELE, JR., Petitioner-Appellee, and MARGERY E. MANUELE, Respondent-Appellant.
    Fourth District
    No. 17659
    Opinion filed July 22, 1982.
    Rehearing denied August 20, 1982.

      Leahy and Leahy, of Springfield (Mary Lee Leahy, Andrew J. Leahy, and Cheryl S. Redfield, of counsel), for appellant.
    Michael B. Metnick, of Costello, Young & Metnick, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This appeal is from an order of the circuit court of Sangamon County entered in a proceeding under the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.). That order awarded the custody of the children of the parties whose marriage was dissolved to the husband and. wife jointly with the “physical custody” given to the wife subject to specified visitation by the husband. We conclude that an award of joint or divided custody, as made here, is usually an unworkable arrangement. Such an order should rarely be entered, and its use should be discouraged. The order was not justified here. We reverse and remand with directions.

The proceeding was initiated by the husband, petitioner Anthony J. Manuele, Jr., when he filed a petition seeking separate maintenance against the respondent wife, Margery E. Manuele, on January 8,1980. An amended petition seeking dissolution was filed April 14, 1980. The custody order was entered February 18, 1981, and became final on December 8, 1981, when the court entered an order disposing of all remaining issues in the case. In addition to asserting on appeal that the circuit court abused its discretion in vesting petitioner with joint custody rights, respondent also claims the court erred in conditioning her physical custody of the children upon the children continuing to “reside in the Springfield” area which was defined in the custody order as being within Sangamon County.

Twenty-two witnesses testified at the custody hearing. We need not make a lengthy summary of the evidence. The underlying facts were not disputed. The parties were married October 25, 1975. At that time, respondent had a two-year-old daughter, Faye Marie. On August 20,1976, a son, Anthony J. Manuele III, was born to the parties. In October 1976, petitioner became an adoptive parent of Faye Marie. Petitioner was an employee of the City of Springfield Street Department, and respondent was unemployed at the time of the marriage but obtained employment at a local bowling alley where she worked at night supervising a nursery. She sometimes took the children with her to the nursery. Her evidence indicated she took the children with her three or four times per week, while petitioner’s evidence indicated she did so only infrequently. In any event, when she did not take them with her, petitioner cared for them at home.

In November of 1979, the parties separated following an argument between them, apparently over the disciplining of Faye. Petitioner struck Faye during the argument. A social worker who had been counseling the family and who was called as a witness by petitioner described the bruises received by Faye as being so severe that she considered petitioner to have abused Faye. Respondent took the children with her, living for awhile at a center for women in Springfield and then joining her parents, who had moved to Moscow, Idaho. During the summer of 1980, the children lived with their father in Springfield.

The evidence indicated that a principal dispute between the parties concerned the proper disciplining of the children. Some evidence indicated Faye’s relationship with petitioner had been damaged by the incident when he hit her, by other discipline he imposed on her, and because he favored the male child. Much of the testimony concerned this relationship, but we do not consider this evidence to be crucial to our decision. Rather, we consider the crucial fact to be that the parties were in dispute over the manner of the children’s upbringing and were unable to agree. The record indicates that problems constantly arose over temporary custody during the course of the proceedings.

The joint or divided custody ordered here is to be distinguished from alternating custody, where a custody order provides that a child be in the custody of one parent for certain specified periods and in the custody of another during the alternate periods. We are aware that circuit courts of this State have ordered both types custody on occasion. Each gives rise to certain problems. Many of the joint custody awards have probably been entered with the agreement of the parties. The courts of review of this State have not had occasion to pass directly upon the propriety of an order which, as here, gives physical custody to one parent but gives the other custodial rights to the two parents jointly. However, under unusual circumstances a joint custodial arrangement between the children’s stepmother (their father’s widow) and their natural mother was approved in Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 379 N.E.2d 713.

The custody order in Cebrzynski gave the stepmother physical custody with custody to otherwise be exercised by the stepmother and natural mother jointly. The natural mother did not object to the arrangement on the basis that it was cumbersome and not likely to work. Rather, she argued that it deprived her of a per se right, as the natural, fit mother, to the complete custody of the children. The appellate court noted the evidence of extremely strong ties between the children and the stepmother with whom they had lived for a substantial period. The appellate court agreed that a separation from the stepmother could have been traumatic. It deemed the welfare of the children to be the overriding issue and held the trial court did not abuse its discretion.

In Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 382 N.E.2d 7, the appellate court reversed an order concerning custody made in August of 1977 because it was a modification of a January 1977 custody order entered without a showing that circumstances had changed since the previous custody order. The January order gave physical custody to the mother, but provided for joint custody between the two parents for other custody rights. The August order transferred the physical custody to the father. In holding that the August order was a modification of the January order, the court criticized the joint custody provision in these words:

“The court’s grant of ‘joint custody’ in this case was meaningless. Without outlining accommodations for control and care of the children between the parties, the physical possession award here had an effect identical to the taking of the children from the exclusive control of one parent and placing the children in the exclusive control of the other. There was never any attempt by court order to work out details of responsibility between the parties, other than granting the party without the physical custody of the children ‘visiting privileges.’ The change of physical possession from one parent to the other was not merely the adjustment of custodial arrangements. Practically, the change of physical possession of the children meant that the control and custody of the children went from one parent to the other.” 64 Ill. App. 3d 925, 931, 382N.E.2d 7, 11.

Our conclusion that joint or divided custody should rarely be awarded is supported by the substantial weight of authority from other jurisdictions. (Beck v. Beck (1981), 86 N.J. 480, 432 A.2d 63; Mastropole v. Mastropole (1981), 181 N.J. Super. 130, 436 A.2d 955; In re Marriage of Neal (1979), 92 Cal. App. 3d 834, 155 Cal. Rptr. 157; Braiman v. Braiman (1978), 44 N.Y. 2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019; 24 Am. Jur. 2d Divorce and Separation sec. 799, at 907 (1966); 27B C.J.S. Divorce sec. 308(d), at 446 (1959).) In Beck the court approved the divided custody but cautioned that such an award should seldom be made. In the other cited cases, the award was set aside with the courts emphasizing the split authority would likely lead to dispute between the parents unless the parents had a very strong ability to cooperate.

Our decision is consistent with section 608(a) of the Marriage and Dissolution of Marriage Act, which stated at all times pertinent:

“Judicial supervision, (a) Except as otherwise agreed by the parties in writing at the time of the custody judgment, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian’s authority would endanger the child’s physical health or significantly impair his emotional development.” Ill. Rev. Stat. 1979, ch. 40, par. 608(a).

Section 608(a) does not provide for joint or divided custody. Rather it speaks in terms of a single custodian with substantial authority. It also says the parties may agree “in writing at the time of the custody judgment” that a noncustodial parent retain specified rights to determine or participate in the determination of matters concerning the child’s upbringing. The willingness of the parties to agree to participation by a noncustodial parent would evidence a likelihood of cooperation. The specificity required of the written agreement would give meaning to the rights of the parent denied physical custody, deemed meaningless in Carroll and appearing to be uncertain here. In exigent circumstances, section 608(a) also provides for “specific” limitations upon the authority of the custodial parent in the absence of agreement of the parties. Thus, except in very unusual cases, the first predicate for an order giving any rights traditionally described as custodial in nature to one not having physical custody of a child is an agreement of the parties.

We recognize that joint participation by parents, whose marriage has been dissolved, in making decisions concerning the welfare of the children can strengthen the relationship of the children to the parents. (Note, Joint Custody: A Revolution in Child Custody Law? 20 Washburn L.J. 326 (1981).) However, unless the parents have unusual capacity to cooperate, when the vestige of authority in the parent not having physical custody is not specific, substantial bickering and dispute, damaging to the children and harassing to the parent with physical custody, is likely to result. Section 608(a) was intended to help reconcile the conflicting interests of estranged parents. Ill. Ann. Stat., ch. 40, par. 608(a), Historical and Practice Notes, at 81 (Smith-Hurd 1980).

No more vexing problem faces trial courts than ruling upon matters of child custody. Any solution attempted is likely to have noticeable imperfections. The problems here were typical and the trial court made a conscientious attempt to solve them. Nevertheless, we must hold the provision for petitioner to have a joint general right of nonphysical custody to have been error. Neither the agreement nor the exigent circumstances referred to in section 608(a) existed. The order did not indicate what petitioner’s joint custodial authority would be, and the record indicated the parties would not be likely to agree upon the joint exercise of that authority. Both the provisions of section 608(a) and the experience reflected in the precedent from other States indicate that the type of order entered here should be discouraged. On remand, custody should be placed in one person who would have physical custody subject to visitation.

We note that an amendment creating a section 603.1 of the Marriage and Dissolution of Marriage Act recently passed both houses of the General Assembly and at this writing awaits the signature of the governor. (H.B. 2039, 82nd G.A., 1st sess., Senate Amend. No. 3 (1982).) It expressly authorizes joint custody awards when in the best interest of the subject children and upon agreement of the parties. If this provision becomes law, the parties should consider it upon remand and, in any event, the parties should be encouraged to consider the agreement provision of section 608(a).

The custody order must also be reconsidered in respect to the restriction against respondent establishing a residence for the children outside of Sangamon County. The court made this restriction because it felt that respondent would be likely to attempt to move to some place distant enough to discourage petitioner’s exercise of his visitation rights. Respondent maintains the restriction deprives her of her constitutional right of travel. (Shapiro v. Thompson (1969), 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322.) However, the Shapiro court held that a person’s right to travel may be restricted if done for the promotion of a compelling governmental interest. Here, the protection of petitioner’s rights' of visitation would justify a reasonable residential restriction as a condition of respondent’s custody of the children.

The circuit court has broad powers in custody matters. (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831.) These powers include conditioning custody upon a custodian living within a reasonable distance from a noncustodial parent so that visitation may be facilitated. (See Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 320 N.E.2d 581; Martinec v. Sharapata (1946), 328 Ill. App. 339, 66 N.E.2d 103.) The limitation of the residence to Sangamon County was unreasonably restrictive. On remand, the trial court shall reconsider this question.

We reverse and remand for reconsideration of the question of custody in accordance with the views expressed in this opinion. In doing so, the circuit court may call for the parties to present further evidence on any point it desires.

Reversed and remanded with directions.

WEBBER and MILLS, JJ., concur.