text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY L. TURNER, Defendant-Appellant.
    Second District
    No. 81—678
    Opinion filed December 30, 1982.
    Rehearing denied January 28, 1983.

      G. Joseph Weller and David S. Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Henry L. Turner was charged with attempted murder, home invasion, and burglary. On his motion, the trial court ordered that Doctors J. G. Graybill and Carl H. Hamann examine him to determine his fitness to stand trial and his sanity at the time of the offense. After a hearing at which Doctors Graybill and Hamann, as well as defendant and his mother, testified, the trial court found the defendant fit to stand trial.

Subsequently, Turner entered a negotiated plea of guilty to the attempted murder charge, in return for dismissal of the home invasion and burglary counts and dismissal of several unrelated charges. After admonishing the defendant, the trial court found that the plea was knowing and voluntary. The trial court entered a judgment of conviction for attempted murder. At the defendant’s request, the trial court ordered a physical and mental examination of the defendant before sentencing. Subsequently, the defendant was sentenced to 20 years’ imprisonment, from which sentence he appeals raising two issues: (1) whether the trial court erred at the fitness hearing by deferring to the psychiatric opinions as to the defendant’s fitness and (2) whether the defendant’s guilty plea was entered intelligently and voluntarily.

Initially, we note a possible waiver of the first issue due to the defendant’s guilty plea. A voluntary guilty plea waives all errors, defects, and irregularities, including constitutional violations, which are not jurisdictional. (People v. McKean (1981), 94 Ill. App. 3d 502.) However, resolution of this issue may be considered jurisdictional as a defendant’s unfitness could render the proceedings void. (See People v. Rockamann (1979), 79 Ill. App. 3d 575.) Further, as resolution of this issue may affect the determination as to whether the defendant’s guilty plea was voluntarily made, we address this issue.

A criminal defendant has a constitutional right not to be tried or convicted while he or she is incompetent to stand trial. (People v. Lang (1979), 76 Ill. 2d 311, cert. denied (1979), 444 U.S. 954, 62 L. Ed. 2d 326, 100 S. Ct. 433; People v. Murphy (1978), 72 Ill. 2d 421; People v. Turner (1980), 88 Ill. App. 3d 793.) The defendant is unfit if, because of a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in his or her defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104—10; People v. Lang (1979), 76 Ill. 2d 311; People v. Murphy (1978), 72 Ill. 2d 421.) In making this determination, the court should consider whether the defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding and whether the defendant has both a rational and factual understanding of the proceedings. (People v. Turner (1980), 88 Ill. App. 3d 793.) The same standards are used to determine whether a defendant is fit to .enter a guilty plea; i.e., the defendant must understand the nature of the charges and the purpose of the proceedings and must be able to assist in his or her defense. People v. Heral (1976), 62 Ill. 2d 329; People v. Ryan (1979), 74 Ill. App. 3d 886; People v. Perkins (1977), 53 Ill. App. 3d 412.

The law presumes that the defendant is fit to stand trial or to plead guilty. (Ill. Rev. Stat. 1981, ch. 38, par. 104—10; People v. Barnard (1981), 95 Ill. App. 3d 1132.) However, where a bona fide doubt of the defendant’s fitness has been raised, the State has the burden of proving, by a preponderance of the evidence, that the defendant is fit. (Ill. Rev. Stat. 1981, ch. 38, par. 104—11; People v. Bilyew (1978), 73 Ill. 2d 294; People v. Turner (1980), 88 Ill. App. 3d 793.) Both the initial determination as to whether a bona fide doubt as to the defendant’s fitness exists and a finding of fitness after a hearing are matters for decision by the trial court, reversible only upon a showing of abuse of discretion. People v. Dominique (1980), 86 Ill. App. 3d 794; People v. Rockamann (1979), 79 Ill. App. 3d 575.

Here, the trial court ordered a fitness hearing on the defendant’s motion. Doctors Hamann and Graybill, two psychiatrists, examined the defendant on October 4, 1980. Each examination consisted of an interview with the defendant. Both doctors found the defendant to be cooperative and oriented in time, place, and person. Although the defendant was slightly lethargic with Doctor Hamann, he answered the doctor’s questions readily and in a responsive manner, appeared alert, and displayed no unusual behavior. The defendant’s speech was regular and his motor activity displayed no abnormality. While his thought processes were slow, with slight prodding, the defendant proceeded logically towards a goal. The defendant looked around frequently during Doctor Hamann’s examination, but not to an extreme degree. During the interview with Doctor Graybill, the defendant was attentive; however, the defendant’s demeanor was jocular, which Doctor Graybill attributed to a low intellectual capacity. The defendant told each doctor about his background and his family and their activities. He reported to both psychiatrists that he had been expelled from school in the eighth grade for running in the halls. He told Doctor Hamann that he had been charged with auto theft in the past.

Doctors Hamann and Graybill agreed that the defendant was of dull normal intelligence. Doctor Graybill characterized the defendant as not “playing with a full deck.” He noted that the defendant was operating at a level of a 13 to 14-year-old and was not developed intellectually to the level that one would expect given the defendant’s age, 19 years. However, both psychiatrists found no evidence of major thought or perceptual disorder or of major mental illness. Doctor Hamann stated that he had found no history of past major mental illness. Both doctors concluded that the defendant understood the nature and purpose of the charges and could cooperate with his attorney. According to the doctors, the defendant was generally able to observe, recollect, and relate the events leading to the crime, although he could not do so in minute detail and his memory was a bit hazy. Doctor Graybill felt that the defendant’s memory was sufficient that he could take the witness stand, relate his version of the facts, and testify consistently with what he had told his attorney. The defendant knew that he was in trouble and that his conduct was illegal. He told Doctor Hamann that he might be imprisoned for 14 years. The defendant knew that he was charged with burglary and attempted murder and that he had been arrested for invading a home. He described to the doctors his entry into the house, his fight with one of the occupants, and his use of a knife in the fight. The only inadequacy Doctor Graybill found in the defendant’s version of the event was that the defendant characterized the knife he used as small and he did not know how often he had cut the victim. In fact, the knife blade was 5-6 inches long, and the victim sustained 19 stab wounds.

Both psychiatrists noted that the defendant seemed somewhat preoccupied with the fact that a gun had been stolen from him and with a fear of retaliation by his brother, appearing more concerned with that than with the charges. The defendant’s stated motive for the offense was a need to obtain money to cover the cost of the stolen gun. Doctor Graybill felt that the defendant did not seem to recognize the seriousness of the charges, as his affect was inappropriate and his emotional responses were immature. The defendant was not well informed as to the functions and responsibility of various courtroom personnel, such as the court reporter, the clerk, and the bailiff. This caused Doctor Graybill to have some reservation as to the defendant’s ability to fulfill all the fitness requirements if counsel were not present. The defendant also did not know his attorney’s name and claimed not to have seen his attorney. However, the defendant did know that there was a prosecutor, a defendant, defense counsel, and a judge, and he could identify these persons. He roughly understood that the prosecutor presented a case and that the defense counsel would help to minimize the charges.

The defendant’s mother, Annie Turner, testified that the defendant had been treated for mental illness in the past, having spent two months in the Singer Mental Health Center when he was 17 years old. According to Annie Turner, the defendant was sent to Singer pursuant to a court order after an incident in which the defendant had stabbed his sister. At the time, the defendant had been acting quite strange, claiming to see things, such as white people turning black, or one man jumping into the body of another man. The defendant’s hospitalization was approximately two years prior to the fitness hearing, and the defendant had not been hospitalized within the six months prior to the hearing. Similarly, the defendant’s mother had not heard the defendant report seeing people change within the six months prior to the hearing. However, the defendant did tell his mother that while in jail, he had spoken with his uncle and girl friend, both of whom were in Arkansas. The defendant also told his mother that people were bothering him in his cell and taking things from him, but he could not see them. According to the defendant’s mother, the defendant did not seem to know exactly what happened which led to the charges. The defendant told her that a woman had spoken to him about the case and was going to help him get out of jail, but he claimed not to have a lawyer. The defendant’s mother stated that she had seen the defendant regularly since he was put in jail, but she was unable to converse with him as he was constantly looking around. She reported that the defendant was literate and had finished grade school. The defendant had begun high school, but attended for only a short time and frequently was in trouble.

The defendant testified. He was not under the influence of medication, and he was not in pain at the time of the hearing. He recalled talking to two doctors in jail, but did not remember their names. He claimed to know their faces. However, when asked if the men in court were the men he had talked to, the defendant only remembered Doctor Hamann. The defendant knew that Doctor Hamann had spoken with him because Doctor Hamann was a doctor and wanted to see if the defendant had any problems. The defendant and Doctor Hamann discussed the fact that the defendant was in trouble. The defendant stated that he had answered and understood the doctor’s questions. While remembering some of the questions, e.g., the charges, the identity of defense counsel, the defendant did not recall Doctor Hamann asking questions about the court or its personnel.

The defendant stated that the court reporter was a lady, but he did not know a court reporter’s function. According to the defendant, the clerk was “just like the judge” and handled papers. The defendant testified that he knew what a prosecutor was and what function the prosecutor performed. He knew that defense counsel’s job was “talking to” the defendant. While not knowing what a jury was, the defendant stated that he knew what a trial was. According to the defendant, what happened in a trial was “[sjentence, what the sentence.” The defendant indicated that he knew what the judge did, i.e., “[gjive me time.” The defendant thought the possible outcome of his case would be that he would get a sentence, but he did not know how long the sentence would be. He testified that he could be cooperative with his attorney and that he understood that he faced serious charges.

The defendant reported that he told his mother that he had spoken to his grandfather while in jail, but defendant testified that he had not spoken to his grandfather recently. He further indicated that while he was in jail, he had not seen anyone jump out of anyone else. When asked by the court as to the identity of a baby his mother was holding, the defendant responded “I guess my sister,” but did not know the baby’s name. However, the defendant was able to name his aunt, who was also in the courtroom.

During argument, the defendant’s attorney reported that the defendant did not respond to counsel and that counsel had interviewed the defendant twice, but the defendant denied having seen him.

Before ruling that the defendant was fit to stand trial, the trial court made several statements which the defendant contends indicate that the judge was abdicating his responsibility as the trier of fact. The trial judge stated that “*** you have to figure out in your own mind, gentlemen, whether or not Henry Turner knows what he is charged with and can cooperate with his counsel ***.” The court further stated “I don’t believe I can substitute my opinion for the doctors in regard to his mental capacity. I do have some reservations when I hear his mother’s testimony ***.”

In a fitness hearing without a jury, the court is to determine, on the basis of the evidence before it, whether the defendant is' fit to stand trial or to enter a guilty plea. (Ill. Rev. Stat. 1981, ch. 38, par. 104—16(d).) Because the issue of fitness is a question of constitutional dimension, the record must affirmatively show the exercise of judicial discretion in making the determination. (People v. Greene (1981), 102 Ill. App. 3d 639.) A trial court errs when it refuses to exercise its discretion in an area appropriate for its discretion. (See People v. Queen (1974), 56 Ill. 2d 560.) Psychiatric reports and opinions are not necessarily conclusive, even in making the threshhold determination as to whether a fitness hearing is required. (People v. Thomas (1969), 43 Ill. 2d 328.) Similarly, experts’ opinions on the ultimate issue of fitness are not determinative. (See People v. Bilyew (1978), 73 Ill. 2d 294; People v. Williams (1980), 87 Ill. App. 3d 860.) The ultimate issue is to be resolved by the trial court. (73 Ill. 2d 294; 87 Ill. App. 3d 860.) Where the testimony is conflicting, the trial court, as the trier of fact, is to determine the credibility and weight to be given the testimony. People v. Bilyew (1978), 73 Ill. 2d 294; People v. Jackson (1980), 91 Ill. App. 3d 595; People v. Williams (1980), 87 Ill. App. 3d 860.

Here, despite the defendant’s view that the trial court merely accepted the psychiatrists’ ultimate opinions without further analysis, the record indicates otherwise. The trial court’s other statements demonstrate its awareness of its responsibility. The court recognized that it was required to determine the facts and make the ultimate decision as to the defendant’s fitness. The court indicated its concern with defense counsel’s reports of the defendant’s condition and noted defendant’s youth, his lack of education, and his prior mental problems. However, the court considered the fact that both psychiatrists had testified to the defendant’s ability to observe, recall, relate, and cooperate with counsel. The court stated that “I think he has the capacity to choose whether he wants to cooperate with his counsel in a meaningful way ***,” and concluded that the defendant was fit “by applying the psychiatric opinions and *** [defendant’s] own testimony *** to the statute ***.” These statements indicate that the trial court was not relying solely on the opinions of Doctors Hamann and Gray-bill in reaching its decision.

The defendant questions the validity of the psychiatrists’ opinions because of the doctors’ lack of knowledge of the defendant’s prior mental problems. The presentence report gave the defendant’s past history in some depth. After an incident in June 1978, in which the defendant stabbed his sister, the defendant was referred to the Janet Wattles and Singer Mental Health Centers. He was diagnosed as a paranoid schizophrenic and hospitalized, receiving therapy and chemotherapy treatments. He was released after two months. In March 1980, the defendant’s mother brought him to Janet Wattles again. A similar diagnosis was made at that time, but the defendant refused treatment. His family reported that his behavior was often bizarre. The defendant was frequently under the influence of alcohol and marijuana, using intoxicants on a daily basis. He failed all of his high school classes, and could not get along with the staff or other students. He also could not relate to the staff or his peers when he attempted to get job training through a CETA program. His work quality and attendance there were very poor. He failed the written test for admittance into the United States Marine Corps. He manifested some self-destructive behavior, having intentionally hit his head against a wall on two occasions and having attempted suicide in September 1980. Neither psychiatrist reported the defendant’s history of rriental illness. Doctor Hamann in fact maintained that the defendant had no such history. Apparently, neither doctor was aware that the defendant had attempted suicide shortly before the two examinations.

However, the trial court was presented with evidence as to some of the defendant’s past mental problems through the testimony of his mother. She testified as to the defendant’s, prior hospitalization, hallucinations, inattentiveness, and poor performance in school. The trial court is charged with the responsibility of determining the weight and credibility to be given to expert testimony. (People v. Bilyew (1978), 73 Ill. 2d 294; People v. Williams (1980), 87 Ill. App. 3d 860.) Here, the trial court had sufficient information to evaluate the psychiatric testimony.

■ Because the trial court is in the best position to observe the defendant and the witnesses, the trial court’s finding of fitness will not be reversed absent a clear abuse of discretion. (People v. Jackson (1980), 91 Ill. App. 3d 595; People v. Rockamann (1979), 79 Ill. App. 3d 575.) In our view, the evidence does not indicate such an abuse of discretion. Fitness refers only to a person’s ability to function in the context of trial; it does not refer to sanity or competence in other areas. (People v. Lang (1979), 76 Ill. 2d 311, cert. denied (1979), 444 U.S. 954, 62 L. Ed. 2d 326, 100 S. Ct. 433; People v. Murphy (1978), 72 Ill. 2d 421; People v. Bivins (1981), 97 Ill. App. 3d 386.) So long as the defendant understands the nature and object of the proceedings and, in cooperation with counsel, can conduct a reasonable defense, the defendant is fit to stand trial or plead guilty even though his or her mind is otherwise unsound. (People v. Heral (1976), 62 Ill. 2d 329; People v. Bivins (1981), 97 Ill. App. 3d 386; People v. Williams (1980), 87 Ill. App. 3d 860.) Absent other indications of unfitness, the mere fact that the defendant has some mental disorder or requires psychiatric treatment does not render him or her unfit. (62 Ill. 2d 329; 97 Ill. App. 3d 386; see People v. Chambers (1976), 36 Ill. App. 3d 838.) Therefore, defendant could be found fit despite the fact that he was diagnosed as a paranoid schizophrenic and that he had a history of mental treatment. (People v. Tilson (1982), 108 Ill. App. 3d 973; People v. Dominique (1980), 86 Ill. App. 3d 794.) The defendant’s past hospitalization does not indicate that his condition continued to the time of the hearing. (86 Ill. App. 3d 794; see People v. Bivins (1981), 97 Ill. App. 3d 386.) The defendant’s suicide attempts do not compel a finding of unfitness. (See People v. Heral (1976), 62 Ill. 2d 329.) A low intellectual capacity does not necessarily render the defendant incompetent. (People v. Perkins (1977), 53 Ill. App. 3d 412; see People v. Murphy (1978), 72 Ill. 2d 421.) A defense attorney’s assertion that the defendant is not fit does not suffice to create a bona fide doubt of fitness. People v. Jackson (1980), 91 Ill. App. 3d 595; People v. Dominique (1980), 86 Ill. App. 3d 794; People v. Ryan (1979), 74 Ill. App. 3d 886.

The crucial determination is whether the defendant understands the proceedings and can cooperate with counsel. (See People v. Heral (1976), 62 Ill. 2d 329; People v. Bivins (1981), 97 Ill. App. 3d 386.) The finding that defendant was able to do so is supported by the record. .Defendant’s testimony at the fitness hearing was primarily coherent and responsive. (See People v. Riley (1980), 89 Ill. App. 3d 438; People v. Dominique (1980), 86 Ill. App. 3d 794.) The trial court may rely on its own observations of the defendant as a factor in reaching its decision. (People v. Dominique (1980), 86 Ill. App. 3d 794.) The defendant remembered his discussion with Doctor Hamann and knew why Doctor Hamann had interviewed him. While uncertain of the functions of the court reporter and clerk, the defendant basically was aware of the duties of the major court personnel, specifically the prosecutor, defense counsel, and the judge. He stated that he understood the seriousness of the charges and could cooperate with counsel. Defendant’s inability to remember his attorney’s name does not indicate unfitness. (People v. Richardson (1978), 61 Ill. App. 3d 718.) The psychiatric testimony, while not indicative of an intense background examination, revealed that the defendant was able to describe the circumstances of the offense. Therefore, no abuse of discretion appears.

The second issue is whether the defendant’s guilty plea was entered intelligently and voluntarily.

In order to appeal from a conviction based on a guilty plea, the defendant must have filed, within 30 days of sentencing, a written motion in the trial court to withdraw the plea and vacate the judgment. (87 Ill. 2d R. 604(d).) The motion must specify the grounds on which it is based; matters not included in the motion are waived. (87 Ill. 2d R. 604(d).) While the defendant filed a timely motion to withdraw his plea, he subsequently decided to withdraw the motion and file a notice of appeal. Later, the defendant attempted to reinstate the motion. The trial court denied the motion, and the defendant filed a second notice of appeal.

Proper filing of a notice of appeal causes the jurisdiction of the reviewing court to attach instanter and deprives the trial court of jurisdiction to reconsider the merits of the issues on appeal. (People v. Carter (1980), 91 Ill. App. 3d 635; People v. Baker (1980), 85 Ill. App. 3d 661.) Therefore, after defendant filed his first notice of appeal, the trial court lacked jurisdiction to permit the defendant to reinstate his motion to withdraw the plea and similarly lacked jurisdiction to deny the motion. The case must be viewed as if there were no motion to withdraw the plea.

Failure to comply with Supreme Court Rule 604(d) generally requires dismissal of the defendant’s appeal. (People v. Brownell (1980), 86 Ill. App. 3d 697; People v. Meacham (1977), 53 Ill. App. 3d 762.) However, an exception is made to the requirement of a Rule 604(d) motion in situations where the failure to file the motion constituted ineffective assistance of counsel. (People v. Newbolds (1981), 98 Ill. App. 3d 1018; People v. Brownell (1980), 86 Ill. App. 3d 697.) Because the effective assistance of counsel is denied when defense counsel fails to perfect an appeal, the actions of the defendant’s attorney in withdrawing the motion to withdraw defendant’s guilty plea and filing of a notice of appeal constituted ineffective assistance of counsel; therefore, the merits of the defendant’s objections to the plea should be considered. People v. Brownell (1980), 86 Ill. App. 3d 697; People v. LaPointe (1980), 85 Ill. App. 3d 215, rev’d on other grounds (1981), 88 Ill. 2d 482; People v. Meacham (1977), 53 Ill. App. 3d 762.

For a guilty plea to be constitutionally valid, the record must affirmatively show that the plea was intelligent and voluntary. (People v. McCoy (1979), 74 Ill. 2d 398; People v. Douthit (1977), 51 Ill. App. 3d 758.) To implement this constitutional requirement, the trial court must substantially comply with Supreme Court Rule 402 (87 Ill. 2d R. 402) before accepting a guilty plea. (74 Ill. 2d 398; People v. Krantz (1974), 58 Ill. 2d 187.) Under Supreme Court Rule 402, the court must inform the defendant of the nature of the charge, the minimum and maximum possible sentences, including any penalty due to prior convictions, that the guilty plea waives all trial rights, and that the defendant has the right to plead not guilty. The court also must confirm the terms of the plea agreement and determine that there is a factual basis for the plea. (87 Ill. 2d R. 402.) Generally, substantial compliance with Supreme Court Rule 402 indicates that the plea was intelligent and voluntary. People v. McCoy (1979), 74 Ill. 2d 398.

The trial court admonished the defendant at length as to the matters required by Supreme Court Rule 402. However, the defendant asserts that his guilty plea was not voluntarily and knowingly made as he was not aware that he was relinquishing his right to a jury trial and as he misunderstood the possible sentencing alternatives. According to the defendant, these problems were exacerbated by his lack of intellectual capabilities.

A waiver of the right to a jury trial must be made understanding^ and expressly. (See People v. Anderson (1973), 10 Ill. App. 3d 558; People v. Rambo (1970), 123 Ill. App. 2d 299.) Whether a jury waiver was made knowingly and understandingly depends on the particular facts of each case. (See People v. Durham (1974), 23 Ill. App. 3d 737; 10 Ill. App. 3d 558; 123 Ill. App. 2d 299.) Here, at the fitness hearing, the defendant had testified that he did not know what a jury was. However, at the later hearing when the defendant’s plea was entered, the court questioned the defendant as to his understanding of his rights. The court advised the defendant that he had a right to a jury of 12 people to decide if he were guilty. The court explained the various trial rights, including confrontation, cross-examination, and the presumption of innocence. The court told the defendant that he could choose to be tried before the court instead of a jury and that the only difference would be that, in a bench trial, the State was required to convince only one person, instead of 12, of the defendant’s guilt. The court explained that it would sentence the defendant regardless of the type of trial. The defendant indicated that he understood each of these admonitions. This indicates that, despite the defendant’s original lack of understanding of the right to a jury trial, he understood at the time he entered his plea. (See People v. Ryan (1979), 74 Ill. App. 3d 886; People v. Cyburt (1977), 50 Ill. App. 3d 414; People v. Anderson (1973), 10 Ill. App. 3d 558.) This case is distinguishable from People v. Turner (1967), 80 Ill. App. 2d 146, cited by the parties, as in Turner, after learning that the defendant did not know what a jury trial was, the court instructed defense counsel to explain it; however, the court neither advised the defendant further nor ascertained whether counsel actually had advised the defendant of his jury rights. 80 Ill. App. 2d 146.

The defendant read and signed a printed form indicating his waiver of jury trial and his guilty plea. Defendant’s literacy is not determinative of the voluntariness of his plea. (People v. Turner (1967), 80 Ill. App. 2d 146.) The mere fact that he signed the waiver form also is not sufficient, absent a showing that he read the form and understood what it meant. (People v. Spencer (1974), 16 Ill. App. 3d 899; People v. Rambo (1970), 123 Ill. App. 2d 299.) However, the defendant read the form. He stated that he knew what he had read and realized that signing the form meant that he was pleading guilty to attempted murder and giving up his right to a jury trial.

The court advised the defendant, and the defendant indicated that he understood, that the court had no choice as to whether to sentence defendant to a prison term, it was just a matter of the length of the term, that the sentence could be within a range of 6-30 years, that an extended term was a possibility, that the sentence could not be less than six years, and that the time the defendant had spent in jail would be credited toward his sentence. However, there was a potential for confusion as the plea agreement provided that the defendant would plead guilty to attempted murder and several other charges would be dismissed, and the court believed that it was required to explain the potential sentences for all of the offenses.

The court first admonished the defendant as to the sentencing alternative for attempted murder, telling the defendant of the potential for a fixed term of not less than six and not more than 30 years and providing the defendant with an example of a possible sentence. The court advised the defendant of the possibility of an extended term, consecutive term, and sentencing under the Habitual Criminal Act, but noted that none of these would apply, unless the court found the crime to have been exceptionally brutal. In that case, the court told the defendant that an extended term was possible, and that the sentence could be up to 60 years. The defendant indicated that he understood each of these admonitions. The court indicated that alternative dispositions were not available, but that the defendant would have to be sentenced to the penitentiary for not less than six years. The court explained the possibility of a fine or restitution. The defendant indicated that he understood each of these admonitions. The court advised the defendant of the potential for obtaining good conduct days, giving an example, and of the three-year mandatory supervised release period. The defendant stated that he understood. The court then described the possible sentencing alternatives for each of the other offenses in some detail.

The defendant’s position is that these admonitions were overly complex and confusing. While there was some possibility of confusion here, the trial court advised defendant, both before and after reciting the sentencing alternatives, that the defendant would be sentenced only for attempted murder. The defendant indicated that he understood. It is notable that the defendant himself requested that the court explain the charges for two of the offenses which were being dismissed. Further, the court repeatedly ascertained that the defendant understood what was happening, and told the defendant to ask questions if he did not understand. The defendant indicated that he had no questions. These statements reduced the possibility of confusion. The court’s remarks must be read in a practical and realistic manner and are sufficient if an ordinary person in the defendant’s circumstances would understand the court’s advice as conveying the necessary information. (People v. Hopson (1981), 101 Ill. App. 3d 564; People v. Wilcoxen (1974), 23 Ill. App. 3d 377.) In any event, as there was no agreement as to the sentence, it was proper for the court to advise the defendant fully as to the potential sentence. See People v. McCullough (1970), 45 Ill. 2d 305.

A guilty plea is not voluntary and intelligent if the plea was entered on the basis of a misapprehension of law or fact or a misrepresentation by defense counsel, the State’s Attorney, or someone else in authority. (People v. Benedetto (1981), 102 Ill. App. 3d 10; People v. Ryan (1979), 74 Ill. App. 3d 886.) The defendant bears the burden of demonstrating any alleged misunderstanding or misrepresentation. (People v. Hale (1980), 82 Ill. 2d 172; People v. Douthit (1977), 51 Ill. App. 3d 758.) No misrepresentation is alleged here. However, the defendant claims that he was unaware of the possible sentence, as demonstrated by his statement to Doctor Hamann during the presentence examination that the defendant thought he would be sentenced to six years and would be released in three years. While a guilty plea may be involuntary due to a misapprehension as to the sentencing alternatives if the defendant actually was unaware of the possible punishment (People v. Hale (1981), 96 Ill. App. 3d 187, cert. denied (1982), 455 U.S. 953, 71 L. Ed. 2d 669, 102 S. Ct. 1459; People v. Lundeen (1977), 55 Ill. App. 3d 799), where, as here, the defendant has been admonished thoroughly, a guilty plea is not revocable merely because the defendant subjectively believed that he or she would receive a certain sentence but did not. (See People v. Ryan (1979), 74 Ill. App. 3d 886; People v. Burrell (1978), 66 Ill. App. 3d 806.) This is especially true where there is no reasonable justification for the defendant’s mistaken subjective impression. (See People v. Hale (1980), 82 Ill. 2d 172; People v. Douthit (1977), 51 Ill. App. 3d 758.) No such justification is shown here.

There also is no indication that the defendant was not fit to enter a guilty plea. Although the trial judge had to tell the defendant to look at him on a couple of occasions and gave the defendant the opportunity to discuss his plea with his family, throughout the hearing on the plea, the defendant’s answers were lucid and he indicated an understanding of the proceedings and their consequences. (See People v. Cyburt (1977), 50 Ill. App. 3d 414.) Defendant had received a full hearing on his fitness and had been found to be fit. (See People v. Bennett (1980), 82 Ill. App. 3d 596.) A presentence psychiatric examination, made subsequent to the defendant’s plea, indicated that the defendant continued to be competent. Under these circumstances, the defendant’s plea was entered voluntarily and intelligently.

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

Judgment affirmed.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THERON REDFERN, Plaintiff-Appellant, v. MARIAN SULLIVAN, Indiv. and as Ex’r of the William Paul Sullivan Estate, et al., DefendantsAppellees.
    Fourth District
    No. 4—82—0336
    Opinion filed December 23, 1982.
    Modified on denial of rehearing February 4, 1983.

      Paul E. Bender, of Cordis and Bender, of Princeville, for appellant.
    James McLaughlin, of McLaughlin and Florini, of Sullivan, and Richard F. Record, Jr., and Gregory C. Ray, both of Craig and Craig, of Mattoon, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

We deal here with res judicata, injunctive relief, and possession to farmland.

It’s a mixed bag: affirmed in part and reversed in part.

But first — the procedural facts.

Redfern brought an action seeking injunctive relief or, in the alternative, damages for breach of an oral lease of certain farmland. He alleged that defendants are the owners of a tract of farmland and that he is in possession of this tract. He alleged that W. Paul Sullivan, acting as agent for the defendants, entered into an oral lease of this farmland with him. He agreed to provide machinery, equipment, and labor for the purpose of farming defendants’ land. The defendants agreed to pay him according to a schedule of rates published annually im The Prairie Farmer. The term of the lease ran from March 1 to February 28 and had been reaffirmed each year for a period of several years.

W. Paul Sullivan died in November 1981. In January 1982, plaintiff was notified by letter that defendants had decided to terminate the “relationship.” Based upon these allegations, plaintiff, in counts I and II of his amended complaint, sought injunctive relief to restrain defendants from taking possession of the land or otherwise breach the lease. In counts III and IV, plaintiff realleged the same basic facts but requested damages.

Defendants moved to dismiss the amended complaint. They argued that plaintiff failed to allege that his remedy at law was inadequate or that he would be irreparably harmed if the injunction were not granted. Defendants further contended that the facts set forth in plaintiff’s complaint failed to establish that a landlord-tenant relationship existed between the parties.

The trial court entered an order on May 11, 1982, dismissing counts I and II of plaintiff’s amended complaint with prejudice. The trial court also dismissed counts III and IV with prejudice as to defendants McLaughlin & Hargis, Inc., and Thomas Hargis while granting plaintiff leave to amend counts III and IV as to the remaining defendants. The trial court also held that plaintiff had no right of possession in the property in question. A finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) was made by the trial court.

Plaintiff appealed from the entry of the order dismissing counts I and II. While that portion of the case was on appeal, plaintiff filed a “second amended complaint” pursuant to the leave granted by the trial court in its order of May 11. The “second amended complaint” contained one count seeking money damages for the alleged breach of the farm lease. Defendants moved to dismiss and the trial court dismissed the “second amended complaint” with prejudice on July 9, 1982. No appeal has been taken from that order.

MOTION TO DISMISS

Defendants then filed a motion to dismiss this appeal — which we have taken with the case — on the ground that it had become moot because of the actions of the trial court subsequent to the filing of the notice of appeal. Defendants argue that the allegations of counts I and II of plaintiff’s amended complaint and the. allegations contained in plaintiff’s “second amended complaint” are substantially the same and arise from a common nucleus of facts. They contend that the dismissal with prejudice of plaintiff’s “second amended complaint” was a conclusive determination of the facts and issues presented in that complaint. Therefore, defendants argue, since the claims are based upon a common nucleus of facts and arise from the same transaction, the res judicata effect of the later dismissal has caused this appeal to become moot.

RES JUDICATA

Res judicata is a doctrine which reflects the public policy favoring finality in litigation and judicial economy. (Smith v. Bishop (1962), 26 Ill. 2d 434, 187 N.E.2d 217.) The doctrine of res judicata is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.

Estoppel by judgment {res judicata) provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. The doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. (Kahler v. Don E. Williams Co. (1978), 59 Ill. App. 3d 716, 375 N.E.2d 1034.) Where estoppel by verdict (or collateral estoppel) is applied, the parties are precluded from relitigating an issue in a subsequent proceeding where that issue was actually or necessarily decided by a court of competent jurisdiction in an earlier proceeding involving the same parties and a different cause of action. Smith v. Bishop; Fred Olson Motor Service v. Container Corp. (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098; see also Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9 (only party against whom the estoppel is asserted must have been a party, or privy of a party, involved in the prior proceeding).

Under the doctrine of estoppel by judgment, a final judgment may be asserted in bar of a second action where the parties and the cause of action are identical. (City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 367 N.E.2d 1305.) In the case at bar, the parties on appeal were the parties involved in the subsequent proceedings. Thus, the key question to be answered is whether the causes of action involved are identical. (See 23A Ill. L. & Prac. Judgments sec. 331 (1979).) Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, i.e., where the causes of action are based upon a common core of operative facts. Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278; Village of Northbrook v. County of Cook (1980), 88 Ill. App. 3d 745, 410 N.E.2d 925; Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 351 N.E.2d 249.

Here, counts I and II are based upon a different cause of action than that underlying the “second amended complaint”; the same evidence would not sustain both verdicts. Counts I and II seek injunctive relief against dispossession by the defendants. In order to obtain a favorable verdict on these counts, plaintiff would have to show: that his possessory rights were violated; that his legal remedies were inadequate; and that he will suffer irreparable injury if injunctive relief is not granted. (Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 423 N.E.2d 1253.) In order to obtain damages under the theory advanced in his “second amended complaint,” plaintiff would need to show: that he had a contractual right to farm the land; that defendants breached the contract; and that plaintiff suffered damages as a result of the breach.

In an analogous situation, our courts have held that a judgment in a prior action for specific performance does not bar a subsequent action for damages. Pillsbury v. Early (1927), 324 Ill. 562, 155 N.E. 475; In re Estate of Heyder (1964), 48 Ill. App. 2d 119, 198 N.E.2d 350.

The doctrine of estoppel by verdict likewise is inapplicable to the case at bar. An adjudication of a controlling fact or issue between the parties collaterally estops those parties from relitigating that fact or issue in a second suit. (23A Ill. L. & Prac. Judgments sec. 361 (1979).) The fact or matter must have been in issue and actually determined. (Morris v. Union Oil Co.; Raymond Construction Co. v. Midwest America Development, Inc. (1978), 67 Ill. App. 3d 332, 384 N.E.2d 907.) The issue must have necessarily been decided by the court and if any uncertainty exists, the doctrine will not be applied. Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 44 Ill. 2d 73, 254 N.E.2d 468; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831.

The question of plaintiffs right to possession of the farmland was not necessarily determined by the trial court’s order dismissing the “second amended complaint.” In that particular count, plaintiff was seeking damages; the court may have dismissed the count because plaintiff failed to allege damages properly. The trial court’s order does not specify why the “complaint” was found to be inadequate. To speculate that the dismissal was grounded upon a determination that plaintiff had no right to possession of the subject property would remove from the party asserting the defense of res judicata the burden of showing what was determined by the prior judgment with certainty and clarity. (Gale v. Transamerica Corp. (1978), 65 Ill. App. 3d 553, 382 N.E.2d 412; Gonyo v. Gonyo (1973), 9 Ill. App. 3d 672, 292 N.E.2d 591.) Defendants have failed to meet this burden and therefore have not shown that the doctrine of estoppel by verdict is applicable here.

Thus, defendants have failed to show that either estoppel by judgment or estoppel by verdict is applicable to the case before us. The subsequent order of the trial court did not cause this appeal to become moot, and the motion to dismiss the appeal is hereby denied.

INJUNCTION

The trial court dismissed with prejudice counts I and II of plaintiff’s complaint. In these counts, plaintiff sought to enjoin the defendants from taking possession of the farmland or otherwise acting to breach the lease. Plaintiff contends that the trial court erred in dismissing these counts for failure to state a cause of action.

Whether a court of equity will assume jurisdiction in a particular case depends on the facts set forth in the complaint. (Ames v. Schlaeger (1944), 386 Ill. 160, 53 N.E.2d 937.) An injunction is an extraordinary remedy to be granted only when the right to such relief is clearly established. (Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) The complaint must clearly set forth facts which entitle plaintiff to an injunction. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 357 N.E.2d 211; Miollis v. Schneider (1966), 77 Ill. App. 2d 420, 222 N.E.2d 715.) Plaintiff must allege facts that establish that plaintiff’s legal remedies are inadequate and that he will suffer irreparable injury unless an injunction issues. Abel v. Flesher (1921), 296 Ill. 604, 130 N.E.2d 353; Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 421 N.E.2d 374; Larkin v. Howlett (1974), 19 Ill. App. 3d 343, 311 N.E.2d 367.

In his amended complaint, plaintiff outlined the arrangement he had with W. Paul Sullivan. In paragraph 11 of the amended complaint, plaintiff stated, “That plaintiff cannot adequately determine his damages at this time due to the fact that his costs are undetermined.” Plaintiff contends that the quoted language is sufficient to establish that his legal remedies are inadequate. We disagree. The allegation is conclusory and uncertain, stating that damages cannot be determined “at this time” because “plaintiff’s costs are undetermined.” No facts are alleged in support of these two conclusions. Furthermore, plaintiff’s complaint does not contain any facts which establish that plaintiff will suffer irreparable injury unless injunctive relief is granted.

A complaint must allege all the facts necessary to entitle plaintiff to a grant of injunctive relief. (See Stokes v. Riley (1887), 121 Ill. 166, 11 N.E. 877.) Plaintiff has failed to plead two necessary elements in his complaint: inadequacy of legal remedy and irreparable injury. Therefore, his complaint does not state a cause of action entitling him to injunctive relief. The trial court acted properly in dismissing counts I and II of plaintiff’s complaint.

POSSESSION

Plaintiff also contends that the trial court erred in holding that he was not entitled to possession of the subject property. He argues that the question of possession should have been determined in proceedings under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.).

Plaintiff cites City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106, as support for his position. Airline Canteen involved an agreement between the city of Chicago and Airline Canteen whereby the city agreed to “demise and lease” certain areas of O’Hare Airport terminal to Canteen for use in connection with concession sales. The city later alleged that Canteen had breached its agreement. Canteen filed a motion seeking a preliminary injunction to prohibit city officials from hindering or obstructing its operation. The trial court denied Canteen’s motion and found that Canteen had breached the agreement. The trial court held that the city could re-enter and take possession of the premises and transfer possession from Canteen to a new concessionaire.

On appeal, the first district held that the trial court should have granted Canteen’s motion for a preliminary injunction. The court found that the trial court had abused its discretion by granting affirmative relief to the city when the city had not requested such relief. The court also stated that a “fair question” existed as to Canteen’s right to injunctive relief against eviction by the city.

The city argued that the agreement between the parties was a license, not a lease, and that it was terminable at the will of the city. Therefore, the city contended, the provisions of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) were inapplicable. The first district rejected this argument. The court found that the parties treated the agreement as a lease, using such phrases as “lessor,” “lessee,” and “estate.” The court held that the question of whether the agreement was a lease or license should have been decided after a full hearing on the merits of the question.

Finally, the city argued that the trial court’s order granted the same relief as an order granted under chapter 57 and should therefore be affirmed. The appellate court rejected this argument as well, stating:

“As a last resort, the City argues that the order of the trial court, which established an orderly transition from Airline Canteen to Elsons, was the equivalent of the order it would have obtained in a proceeding under the Forcible Entry and Detainer Act. We disagree. Under the Forcible Entry and Detainer Act, the burden of proof rests on the party asserting its right to possession. (19 Ill. L. & Prac. Forcible Entry and Detainer §9, at 526 (1956).) Under the circumstances of this case, it was necessary that Airline Canteen sue for an injunction to prevent its forcible eviction. Under the Forcible Entry and Detainer Act, the foremost issue to be determined would be the City’s right to possession. (See Bielzoff Products Co. v. Beam Distilling Co. (1st Dist. 1954), 3 Ill. App. 2d 530, 533, 123 N.E.2d 135; Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 359, 280 N.E.2d 208; and Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 298 N.E.2d 173.) By requiring Airline Canteen to seek an injunction, many other issues are raised, principally those concerning its right to equitable relief, which cloud the main issue and prevent an expeditious determination of the right to possession. The procedure employed here is clearly not that contemplated by either the Injunction Act or the Forcible Entry and Detainer Act. The report of proceedings in this case is a vivid example of the cumbersome nature of this mode of procedure.” 64 Ill. App. 3d 417, 434-35, 380 N.E.2d 1106, 1119-20.

Several similarities exist between the facts underlying the case at bar and the facts presented in Airline Canteen. First, the trial court granted defendants affirmative relief, i.e., a finding that plaintiff had no right to possession of the property, despite the fact that the defendants did not request such relief in their motion to dismiss. Second, since the trial court granted possession to the defendants, the trial court must have decided that the oral agreement between plaintiff and W. Paul Sullivan was not a lease of the property in question. Whether an agreement is a lease of real property or a license is a question of the intent of the parties. (Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 417 N.E.2d 1039.) No evidence was heard on this issue; the trial court decided the question based on information contained in the pleadings. Finally, plaintiff sought injunctive relief against interference by the defendants with his possession of the subject property. The trial court dismissed his complaint for an injunction and determined that plaintiff had no possessory rights in the property. In the case at bar, no evidence was heard on the issue of possession and, as stated earlier, neither parties’ prayer for relief sought an order granting them possession of the property.

We find the decision of the first district in Airline Canteen to be persuasive and hold that it should control the result in the case at bar. The question of who is entitled to possession of the subject property should have been decided after a full hearing on the merits, not pursuant to a motion to dismiss. The trial court erred in holding that plaintiff had no right to possession in the subject property. Therefore, we reverse the trial court on the question of possession.

The judgment of the circuit court of Moultrie County is affirmed in part and reversed in part.

Motion to dismiss denied.

Affirmed in part and reversed in part.

WEBBER, P.J., and GREEN, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PETTIS, Defendant-Appellant.
    Fourth District
    No. 4—82—0327
    Opinion filed January 6, 1983.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following the withdrawal of pleas of not guilty defendant pleaded guilty upon two counts of armed robbery. The guilty pleas were without negotiation, and the trial court imposed concurrent sentences of 12 years.

The proceedings leading to this appeal are anomalous and require scrutiny. Count I of the information alleged the armed robbery of the manager of a liquor store. Count II alleged the accompanying armed robbery of a woman patron of that store. Defendant filed a pro se motion to vacate only the judgment of guilty entered upon count II. Appointed counsel filed an amended motion to vacate such judgment embodying the allegations made pro se. At the hearing held defendant reiterated that he only desired to vacate the plea as to count II.

The allegations of the motion to vacate count II and the minimal testimony in support of the motion are essentially a repudiation of the facts given as the basis of the plea of guilty, and a claim that defendant did not understand the burden of proof upon the prosecution to establish the armed robbery of the store patron.

We have examined the extended and careful admonition of the trial court and the record made and find no error in the denial of the motion to vacate the judgment upon count II.

As argued here, the appeal is directed to the denial of defendant’s motion to reduce the sentences imposed on both counts I and II. Section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(c)) provides:

“(c) The trial court may reduce or modify a sentence, but shall not increase the length thereof by order entered not later than 30 days from the date that sentence was imposed. This shall not enlarge the jurisdiction of the court for any other purpose.”

We must determine the appealability of the order denying reduction of sentence on count I.

Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) provides in part:

“No 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. The motion shall be in writing and shall state the grounds therefor.”

Supreme Court Rule 605(b)(2), (6) (87 Ill. 2d R. 605(b)(2), (6)) provides:

“(b) 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:
* * *
(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;
* * *
(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.”

The required admonitions by the trial court appear in the record.

It is clear that since there has been no motion to vacate the plea to count I, there has been a failure to comply with the Rule, and the appeal from the denial of a motion to reduce sentence is dismissed for failure to comply with Rule 604(d).

The original pro se statement to vacate the plea upon count II contained an arguable reference to reduction of sentence upon that count, but such reference was not stated in the amended motion. Defendant contends that the trial court erroneously considered failure to pay child support as an aggravating factor in fixing sentence.

Section 5 — 3—2(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—3—2(a)(1)) provides that the presentence report shall set forth the defendant’s history regarding “family situation and background, economic status, education, occupation and personal habits.” The presentence report indicates that defendant was not required to pay child support for his two legitimate children in the decree for dissolution of marriage. It also reported that he paid no support for two illegitimate children. At the sentence hearing, defendant in general terms testified that he provided for the children. The trial court expressed bewilderment that an individual who grossed $1,500 a month would spend money on drugs and not help to keep children. Defendant admitted that he did not make regular payments of child support, but stated that he put money aside for them without specification of how or when or what amount.

The trial court indicated that it was proper to consider a lack of regular child support in determining whether imprisonment would entail excessive hardship on dependents. Such is a mitigating factor under section 5 — 5—3.1(a)(11) (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.1(a)(11)). We conclude that such is a matter properly in the record.

While there was some colloquy upon the nature and extent of defendant’s support for children during his examination and cross-examination, we note that at the conclusion of the hearing the trial court’s findings of fact stated into the record were directed to the manner of accomplishing the armed robbery with a loaded shotgun, the acts of defendant preceding that robbery, and to the matters of defendant’s criminal record including a conviction for involuntary manslaughter. The trial court further noted that while defendant had claimed to have voluntarily undergone treatment for drug abuse, he admitted that at the time of the armed robbery he was under the influence of valium with alcohol and “a little bit of cocaine.” We find that while the trial court expressed some dissatisfaction with the nature of the testimony upon the issue of child support, he concluded that he would accept defendant’s statement that he did provide for his children.

Upon the record we find that there was no abuse of discretion in imposing sentence upon the plea of guilty to count II of the information, and we affirm the denial of the motion to reduce sentence upon count II. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Appeal dismissed in part, affirmed in part.

WEBBER, P.J., and GREEN, J., concur.


author: JUSTICE NASH JUSTICE UNVERZAGT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELIX ROSA, Defendant-Appellant.
    Second District
    No. 81—334
    Opinion filed December 30, 1982.

      UNVERZAGT, J., dissenting.
    Michael E. Deutsch and Jan Susler, both of Chicago, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, Nancy S. Hudell, and Martin P. Moltz, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury, defendant, Felix Rosa, was convicted of two offenses of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2) and sentenced to concurrent 22-year terms of imprisonment. He appeals contending that the trial court erred in (1) denying his motions to quash the jury panel and dismiss the indictment; (2) convicting him for two offenses of armed robbery on the basis of a single physical act; and (3) imposing excessive sentences.

A review of the record on appeal reveals that on December 10, 1980, at approximately 5:50 p.m. Luis Rosado (a codefendant who is not a party to this appeal) walked into the Highland Park Ford dealership and informed one of its salesmen, William Caminiti, that he was considering the purchase of a van. Caminiti identified two vans (stock numbers T-114 and T-132) in which Rosado might be interested through the dealership stock index file. Caminiti obtained the keys to these vans and accompanied Rosado to the parking lot where the vehicles were located approximately 40 feet from one another.

Caminiti first directed Rosado to Van No. T-132 and allowed him to enter and examine it. While Rosado was so occupied, the defendant, Rosa, approached and also inquired of Caminiti about the purchase of a van. Caminiti advised Rosa he would be with him in a moment, and Rosa departed. Caminiti then showed Rosado Van No. T-114 and, after running its engine, the two men returned to the first van and also tested its engine. As they then walked back to the showroom, Rosado informed Caminiti that he wished to purchase the second van, T-114; they returned to it and Rosado started the engine. While Caminiti was explaining the features of the vehicle to Rosado, defendant Rosa ran up behind Caminiti holding something in his hand. Caminiti knocked Rosa’s hand away from him whereupon Rosa pointed a pistol at Caminiti saying, “You almost got fucking blown away man” and put his right arm around Caminiti’s neck. Caminiti was told to shut up and was forced to walk between the two men back to the first van, T-132, where he was told to lie face down in the back of the van and shut up or he would be “blown away.” Rosa gave the pistol to Rosado and tied Caminiti’s hands behind his back, and Rosado then hit Caminiti on the side of the head with the pistol.

Rosa went through Caminiti’s pockets and took his wallet, watch and $50 in cash. He told Caminiti “you cheated us” and warned him not to move for five minutes or he’d be blown away; both defendants then left the van. Caminiti waited a few minutes then exited the van and ran back to the showroom where he was untied, and discovered that van T-114 was missing. The police were notified and a description of the missing van was broadcast over the police radio. Subsequently, the van and the two defendants were stopped on the Peterson Street exit of the Edens Expressway after a high-speed chase on the expressway involving multiple State and municipal police officers.

On December 17, 1980, defendant Rosa was charged by indictment with two counts of armed robbery, two counts of armed violence and one count each of kidnaping, aggravated kidnaping, aggravated battery, theft (under $150) and theft (over $150) in violation of sections 18—2(a), 33A-2, 10-1(a)(1), 10-2(a)(5), 12-4(b)(1) and 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 18—2(a), 33A-2, 10-1(a)(1), 10-2(a)(5), 12-4(b)(1) and 16-1(a)). Prior to trial defendant filed motions to quash the jury panel and the indictment alleging generally that the system used to select the panel and petit jurors was discriminatory and resulted in a nonrepresentative panel. The motion contained no specific allegations of discrimination, nonrepresentation or prejudice nor was it supported by affidavit. At the hearing of the motion defendant offered no evidence in its support. On that basis, the motion was denied by the trial court.

After trial, the court directed verdicts for defendant on the counts for kidnaping and aggravated kidnaping and the jury returned verdicts of guilty on the remaining seven counts. The court subsequently denied defendant’s motion for a new trial but, at the sentencing hearing, vacated all of the judgments against defendant except for the two offenses of armed robbery for which he was sentenced. Defendant did not file a motion to reduce or modify the sentences within 30 days of its imposition as is allowed by section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(c)).

Defendant initially contends that the trial court erred in denying his motion to quash the jury panel and indictment, urged on the grounds that the system used in Lake County to select and impanel grand and petit jurors discriminated against minorities and classes of persons resulting in underrepresentation of those groups on the juries ultimately impaneled to defendant’s prejudice.

It has long been recognized that the systematic exclusion of members of identifiable groups from grand or petit jury service, solely because of their membership in those groups, denies a defendant who is a member of such a group the equal protection of the law as guaranteed by the fourteenth amendment to the United States Constitution. (Castaneda v. Partida (1977), 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272; Alexander v. Louisiana (1972), 405 U.S. 625, 31 L. Ed. 2d 536, 92 S. Ct. 1221; Whitus v. Georgia (1967), 385 U.S. 545, 17 L. Ed. 2d 599, 87 S. Ct. 643; Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667; Carter v. Texas (1900), 177 U.S. 442, 44 L. Ed. 839, 20 S. Ct. 687.) The burden of proving selective discrimination against an identifiable group is upon the defendant. (Whitus v. Georgia (1967), 385 U.S. 545, 550, 17 L. Ed. 2d 599, 603-04, 87 S. Ct. 643, 646; Hernandez v. Texas (1954), 347 U.S. 475, 480, 98 L. Ed. 866, 871, 74 S. Ct. 667, 671; People v. Powell (1973), 53 Ill. 2d 465, 477-78, 292 N.E.2d 409, 416-17; People v. Blair (1974), 17 Ill. App. 3d 325, 336, 307 N.E.2d 679, 687, appeal denied (1974), 56 Ill. 2d 583.) Once a prima facie case of discrimination has been established the burden shifts to the prosecution to rebut the presumption of unconstitutional action by showing that permissible racially neutral criteria and procedures were employed. (Alexander v. Louisiana (1972), 405 U.S. 625, 631-32, 31 L. Ed. 2d 536, 542, 92 S. Ct. 1221, 1226; Whitus v. Georgia (1967), 385 U.S. 545, 550, 17 L. Ed. 2d 599, 603-04, 87 S. Ct. 643, 646.) There are two methods by which a prima facie case may be established by the defendant: (1) showing that the statutory jury selection procedure is racially nonneutral, or susceptible to abuse, on its face (Alexander v. Louisiana (1972), 405 U.S. 625, 31 L. Ed. 2d 536, 92 S. Ct. 1221; Whitus v. Georgia (1967), 385 U.S. 545, 17 L. Ed. 2d 599, 87 S. Ct. 643); or (2) the “rule of exclusion” which requires a showing that, over time, an identifiable group has been substantially underrepresented in jury service in comparison with their proportionate presence in the total population of the community. Castaneda v. Partida (1977), 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272; Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667.

In Illinois, the procedures by which a jury panel may be challenged are provided in section 114 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114—3):

“(a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. For good cause shown the court may entertain the motion after the voir dire has begun but such motion shall not be heard after a jury has been sworn to hear the cause.
(b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.
(c) If the motion states facts which show that the jury panel has been improperly selected or drawn it shall be the duty of the court to conduct a hearing. The burden of proving that the jury panel was improperly selected or drawn shall be upon the movant.
(d) If the court finds that the jury panel was improperly selected or drawn the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.” (Emphasis added.)

Failure of the motion to conform to the requirements of this section will preclude defendant’s right to a factual hearing and the motion will be properly denied. People v. Perry (1980), 81 Ill. App. 3d 422, 427-28, 401 N.E.2d 1263, 1268, cert. denied (1981), 451 U.S. 983, 68 L. Ed. 2d 839, 101 S. Ct. 2313; People v. Hughes (1977), 46 Ill. App. 3d 490, 500-01, 360 N.E.2d 1363, 1370.

When measured by these standards, it is clear that defendant’s motions were insufficient and were correctly denied by the trial court. They were not supported by affidavit and wholly failed to set forth any factual allegations of nonneutrality or substantial underrepresentation of any identifiable class of persons. Rather, the motions set forth only general conclusions of discrimination and prejudice. Moreover, at the hearing on the motions, defendant did not seek to remedy these defects through testimony or other evidence in support of his motion.

Defendant argues, however, that the trial court erroneously denied his request for an order of production requiring the Lake County Jury Commission to make its records available to him for inspection to determine the procedures followed by it and the representation of persons it excused from jury service. Defendant’s counsel advised the court he had spoken preliminarily to one of the commissioners who had responded to his inquiries. Counsel did not suggest in the trial court, nor does he do so here, that any request for records made by him of these officials was refused. The trial court noted defendant’s request for a production order was made at the hearing of defendant’s motions to quash the jury panel, but that no evidence was offered in support of the motions.

The records from which defendant would seek information in support of his motions are public records accessible to him. (Ill. Rev. Stat. 1979, ch. 116, par. 1 et seq.; People ex rel. Gibson v. Peller (1962), 34 Ill. App. 2d 372, 374, 181 N.E.2d 376, 378.) He could also call as witnesses the jury commissioners and cause the production of any records to which he has been denied access. It is not the duty of the court to provide to defendant readily available records to which he has access. We conclude the trial court did not abuse its discretion in denying defendant’s request for a production order and also correctly denied the motions to quash the jury panel and dismiss the indictment.

Defendant next contends he was improperly convicted and sentenced for two offenses of armed robbery in that the thefts of the van and the personal property of Caminiti were based upn a single physical act thus incapable of supporting multiple charges. Defendant requests that his conviction and sentence for armed robbery predicated upon the theft of the van be vacated.

Initially we note that the theft of the van, although accomplished after the victim was tied up and placed in the back of another van, is a proper basis for a charge of armed robbery. Armed robbery is the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a deadly weapon. (Ill. Rev. Stat. 1979, ch. 38, pars. 18—2, 18—1.) Property has been considered to be taken from the person or presence of a victim even though the robber first locks the victim in another room before taking property from the room where the victim was first encountered. (People v. Braverman (1930), 340 Ill. 525, 530-31, 173 N.E. 55, 57; People v. Carpenter (1981), 95 Ill. App. 3d 722, 726, 420 N.E.2d 640, 644.) The test for “presence” in such a case is whether the victim’s proximity or control over the property was so close that he could have prevented the taking if he had not been subjected to force or the threat of force by the robber. (People v. Braver-man; People v. Carpenter; W. LaFave and A. Scott, Criminal Law sec. 94, at 696 (1972).) It is apparent that Caminiti was in such proximity to the stolen van that he could have prevented its taking had he not been subject to the force imposed and threats by defendant. Thus, the theft of the van was a proper basis for one offense of armed robbery; the second offense charged was premised upon the taking of Caminiti’s wallet and watch from his person.

However, if the taking of the personal property from Caminiti’s person and the taking of the van are deemed to be a single physical act, multiple convictions for armed robbery would be improper. More than one offense cannot be carved from the same physical act. (People v. Dixon (1982), 91 Ill. 2d 346, 355, 438 N.E.2d 180, 185; People v. Donaldson (1982), 91 Ill. 2d 164, 168, 435 N.E.2d 477, 479; People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535, 538; People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) An “act” has been defined as “any overt or outward manifestation which will support a different offense.” (People v. Dixon (1982), 91 Ill. 2d 346, 355, 438 N.E.2d 180, 185; People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) If there in fact are multiple acts, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences for separate offenses which are not by definition lesser included offenses. People v. Dixon (1982), 91 Ill. 2d 346, 355, 438 N.E.2d 180, 185; People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535, 538.

We conclude that the theft of the wallet, watch and cash from the person of the victim and the subsequent taking of the van from the presence of the victim were separate overt and outward physical manifestations sufficiently separated by time and distance to support both convictions for armed robbery. That conclusion was also reached by this court in a strikingly similar case. (People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516, appeal denied (1978), 71 Ill. 2d 613.) In Moore, the defendant was convicted of two armed robberies; one was predicated upon the theft of cash from the clothing of the victim while she was tied up in her bedroom and the other upon the theft of a driver’s license and charge card from her purse in another room. We determined that conduct demonstrated separate acts justifying multiple convictions.

Defendant relies largely upon our opinion in People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, where it was held that only one offense of armed robbery could be predicated upon the almost simultaneous taking of a wallet from a victim and the contents from a safe. However, we there distinguished our holding in Moore noting that it was based upon robberies which were separated by time and distance. We conclude defendant was properly convicted and sentenced for both armed robberies in this case.

Defendant also contends that the imposition of concurrent 22-year sentences for armed robbery was excessive and should be reduced.

Although reviewing courts are authorized to reduce sentences by Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)), the determination and imposition of sentence is principally within the trial court’s discretion and will be altered only where its sentencing discretion has been abused. (People v. LaPointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001—1—1 et seq.) gives wide discretion to the sentencing judge in order to permit reasoned judgments as to penalties which are appropriate to the particular circumstances shown by the evidence in each case. The trial judge must fashion a sentence which balances both the need to protect society and to rehabilitate the offender (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348-49), and he is in the best position to make those evaluations and determine the proper sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883.) A reviewing court does not serve as a sentencing court, and we will not substitute our judgment for that of the trial court solely because we might have balanced the appropriate factors differently if the task of sentencing had been ours. People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547.

With these standards in mind we consider whether the sentences were excessive and should be reduced.

Defendant contends the terms imposed are not proportionate to the seriousness of the offenses and also consistent with the objective of restoring defendant to useful citizenship as mandated by section 11 of article I of the Illinois Constitution. (Ill. Const. 1970, art. I, sec. 11.) He argues that the courts purpose in imposing these severe sentences was to exact retribution in this case because of the general problem in our society of crimes of violence in which weapons are employed. Defendant also suggests that because the trial court was made aware during pretrial proceedings of rumors linking defendant to a Puerto Rican organization accused of terrorist activities, the judge became prejudiced resulting in excessive sentences.

The presentence report and other evidence at the sentencing hearing disclosed that defendant was 21 years of age at the time of the offenses. He was married and supported his wife and their child and also her two children by a former marriage. Defendant was employed by the Chicago Youth Center as a counselor earning $7,000 per year. He had completed high school and one year of college. Defendant had no prior felony convictions, but had been convicted of criminal trespass to a vehicle in 1976; possession of marijuana in 1977 and battery in 1979. He successfully completed the sentences of probation imposed in each of those cases. No other evidence of juvenile or adult criminal activity by defendant was introduced at the sentencing hearing.

Before imposing sentence the trial court specified the matters upon which that determination was based noting defendant’s close ties with his family, 13 years of education, his employment and generally laudable background. The judge commented he was not even considering the three misdemeanor offenses for which defendant was convicted. The court further stated,

“In considering the sentence which I will impose upon you, I first take into my determination the legislative intent of a Class X felony, which is to impose a mandatory sentence of not less than 6 years, but not more than 30 years.

Secondly, I also take into consideration the fact that society is sick and tired of crimes of violence where a dangerous weapon is employed. And society is screaming to the courts to do something to stop this problem, which is a growing menace in America.

Third, I have to consider the evidence that is presented in this courtroom, the demeanor of witness Caminiti, the fact that you did have an attache case while dressed in typical street clothes which would deceive an individual that you had a weapon in your possession, that you did have a loaded gun, that you did bind by rope witness Caminiti, and it wasn’t bad enough that you bound him, but you engaged in taking the trivia of a few dollars, his wallet, his watch and other personal property that he had.

Then you participated in taking a van, which is the subject matter of the theft over $150. Then you drove the van in an eastbound direction during the end of heavy traffic, endangering lives of many individuals, pursued by multiple squad cars who had warning lights with their Mars lights.

Without going into the description which was apparently presented during the course of this trial, wherein you endangered the drivers upon the speedway, Route 41, and that finally you turned off and were stopped and arrested some time through the chase. Sometimes the chase went as high as 70 miles an hour.

The Court takes all of this into consideration. The Court also takes into consideration the fact that we commenced a jury trial and afforded you your complete rights as provided by statute, and as interpreted by the Supreme Court and as governed by the constitution of this state, the Constitution of the United States, but that following the testimony of witness Caminiti, you chose on the second day thereof to voluntarily not appear, with the result that the trial was continued and a warrant for your arrest was then issued, and that on the third day you were then arrested, which would be the day after the warrant for arrest was authorized. You were returned to this court and the trial continued. And thereafter for these numerous reasons, I am at this [time] [sic] ready to impose sentence upon you. Are there any questions, please?

MR. DEUTSCH [defense counsel]: Judge, the only thing I would say is, of course, Mr. Rosa did voluntarily return to court. And that is a subject of the other motion we heard. I don’t think the Court should — I think he saw the light and did decide to come back to court and to face the consequences of the case, and I think the Court should consider that as well. That is the other side of what the Court said.

THE COURT: That is a determination this Court nor any other individual will ever know.”

Defendant notes that the record also discloses that on December 19, 1980, at a hearing to set bond of defendant and his codefendant, the assistant State’s Attorney inquired of the codefendant in cross-examination whether he was a member of an organization known as the FALN, but objection to the question was sustained by the trial court. In that hearing the State also called as a witness a special agent of the F.B.I. who was a specialist in domestic terrorist activities; however, the trial court sustained objections to questions to the witness relating to the identity of the codefendant. The witness was not asked whether he had any knowledge of defendant Rosa’s associations. Following the bond hearing, the State recommended it be set at $1,000,000; however, the court set defendant’s bond at $300,000.

Later motions by defendant for continuance or change of place of trial considered by the trial court were supported by clippings from a local newspaper which stated defendant and his eodefendant were suspected by authorities to have links to a Puerto Rican terrorist group. In denying the motions, the trial court noted that nothing had been shown to it that defendants were members of that organization.

The argument that the trial judge was prejudiced by suggestions or rumors defendant was associated with a terrorist organization is not convincing. The judge recognized that no evidence in that regard had been shown and we will not conclude, as urged by defendant, that the court weighed its sentencing determination by matters which were unproven.

It does appear, however, that the trial court gave little, if any, consideration to the evidence in the record of defendant’s personal background and his potential for rehabilitation, as is required by both constitution and statute. Nor do we understand why the court declined to give any consideration to defendant’s prior convictions for three misdemeanors. The court did expressly consider the fact that crimes in which dangerous weapons are employed are a growing menace; so too did the legislature when it provided that the sentence for armed robbery will be imposed on a scale of not less than 6 years nor more than 30 years.

On the record before us, we are unable to determine on what basis the trial court fixed the sentence at 22 years and conclude the court abused its discretion by not adequately balancing the seriousness of the offense with the rehabilitative potential of defendant. See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906; People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233, 243-44; People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1, 4; People v. Goodman (1981), 98 Ill. App. 3d 743, 748-53, 424 N.E.2d 663; People v. Goodwin (1980), 83 Ill. App. 3d 203, 206-07, 403 N.E.2d 1051, 1054.

Accordingly, the judgment of the circuit court is affirmed except as to sentences; they are reduced to concurrent terms of 12 years’ imprisonment in the Department of Corrections.

Judgment affirmed; sentences reduced.

LINDBERG, J., concurs.

JUSTICE UNVERZAGT,

dissenting:

I concur with the majority with regard to the resolutions of the issues presented except for the sentencing issue. I dissent from the majority’s reduction of sentence to concurrent terms of 12 years’ imprisonment.

In my view, the sentencing issue has been waived by the defendant’s failure to raise it in the trial court through a post-trial motion or a motion for reduction of sentence as permitted under section 5 — 8— 1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(c)). It is well recognized in criminal cases that failure to raise objections in the trial court and preserve claimed error in a post-trial motion will preclude the raising of such issues on appeal. (People v. Jackson (1981), 84 Ill. 2d 350.) The purpose of this rule is to afford the trial court an opportunity to correct its errors, thus avoiding the delay and expense of unnecessary appeals. (84 Ill. 2d 350, 358-59.) The rule applies equally to alleged improprieties in sentencing procedures. People v. Davis (1982), 93 Ill. 2d 155; People v. Taylor (1980), 82 Ill. App. 3d 1075; People v. Baseer (1980), 90 Ill. App. 3d 866.

Even if the sentencing issue is not waived, which I believe it is, I would not reduce the sentence as the majority does. First, the sentence is not reviewable as “plain error” under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), and second, the trial judge did not abuse his sentencing discretion. People v. La Pointe (1981), 88 Ill. 2d 482; People v. Cox (1980), 82 Ill. 2d 268; People v. Perruquet (1977), 68 Ill. 2d 149,154.

The defendant did have a prior criminal history of misdemeanors. The trial court chose to disregard these. However, the trial court in its summing up did take into account the fact that in fleeing, the defendant drove the van in heavy traffic at speeds up to 70 miles per hour while being pursued by police with Mars lights flashing, thus endangering the lives of many innocent drivers on Route 41. On balance, I do not believe the trial court abused its discretion in this matter and I would affirm the conviction and sentence of the circuit court of Lake County, Illinois.

I therefore dissent from the majority opinion.


author: JUSTICE LINDBERG

text:
    ALBERT F. BUCCIERI, JR., Plaintiff-Appellant, v. WAYNE TOWNSHIP et al., Defendants-Appellees.
    Second District
    No. 82—198
    Opinion filed December 30, 1982.

      Victor F.Ciardelli, Ltd., of Chicago, for appellant.
    Walter P. Maksym, Jr., of Botti, Marinaccio, Wilkinson & Maksym, Ltd., of Oak Brook, and James F. Campion, of Wheaton, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Du Page County dismissing his complaint for judicial review of an administrative decision of Wayne Township officials. That decision resulted in the discharge of plaintiff from his employment as supervisor of operations for the Wayne Township Highway Department. The trial court, in addition to dismissing plaintiff’s complaint, granted leave for the substitution of counsel for defendant John Ryvold.

The counsel for all defendants except John Ryvold (formerly for all defendants) challenges before this court the trial court’s order granting leave for the appearance of Ryvold’s current counsel. Because a cross-appeal has not been filed, we do not consider this challenge. An appellee who has not prosecuted a cross-appeal cannot properly seek to modify a portion of the trial court’s order or to secure affirmative relief (Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 417 N.E.2d 1070; De Phillips v. Mortgage Associates, Inc. (1972), 8 Ill. App. 3d 759, 291 N.E.2d 329), and this court lacks jurisdiction to consider such an attack on the order below (Mid-West National Bank v. Metcoff (1974), 23 Ill. App. 3d 607, 319 N.E.2d 336).

Plaintiff’s sole contention on appeal is that the trial court erred in dismissing his complaint for judicial review of administrative findings and decision that resulted in plaintiff’s dismissal. Plaintiff argues that the complaint should not have been dismissed because it sufficiently stated a cause of action for judicial review under the Administrative Review Act (hereinafter Act) (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). Although defendants advance various reasons why the complaint fails under the Act, a discussion of just one requirement of the Act disposes of plaintiff’s argument.

Section 2 of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 265) provided that “[t]his Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act.” It is well settled that the Act is applicable only under the circumstance section 2 provides for. (Wilkins v. Department of Public Aid (1972), 51 Ill. 2d 88; Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.) An examination of the acts pertaining to townships (Ill. Rev. Stat. 1979, ch. 139) and of the article pertaining to the administration of township and district roads in the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, pars. 6—101 et seq.) reveals no express adoption of the Act for review of administrative decisions regarding the employment and discharge of township highway employees or any other township employee. Since there is no express adoption of the Act relevant to plaintiff’s cause of action, the Act can not be applied here. Plaintiffs argument that his complaint sufficiently states a cause of action for judicial review under the Act fails.

However, our inquiry into the propriety of the trial court’s dismissal of plaintiff’s complaint does not end with our finding that the Act does not apply here. The Illinois Supreme Court has held that a complaint for judicial review of an administrative decision, even though erroneously argued to be sufficient under the Act, may be sufficient to warrant treatment as a common law writ of certiorari. (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11.) There are no longer substantial differences between common law and statutory certiorari. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11.) In light of this, we shall view plaintiff’s complaint as an attempt to state a cause of action for common law certiorari, despite plaintiff’s failure before either the trial court or this court to argue that basis for the sufficiency of his complaint.

Plaintiff’s complaint alleges certain “findings and decision” by defendants as specified in exhibits incorporated and attached to the complaint. The exhibits consist of copies of letters between the parties and of a “Personnel Record File” informing plaintiff of the termination of his employment by defendant Highway Commissioner John Ryvold. It is apparent from the allegations of the complaint, including the incorporated exhibits, and from the prayer for reinstatement that the “decision” of which plaintiff seeks review is the termination of his employment.

It is clear that an administrative decision is subject to judicial review under the Act only if it “affects the legal rights, duties or privileges” of the plaintiffs. (Ill. Rev. Stat. 1979, ch. 110, par. 264; Winston v. Zoning Board of Appeals (1950), 407 Ill. 588; O’Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App. 3d 764, 291 N.E.2d 349.) Thus a person seeking review has the burden of alleging and proving that he or she has the right to maintain the suit because his rights are adversely affected by the administrative decision. (O’Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App. 3d 764, 291 N.E.2d 349.) In view of the substantial identity of statutory review under the Act and common law certiorari (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11), we conclude that plaintiff here must also allege that the decision for which he seeks review has affected his legal rights, duties, or privileges in order to sustain his complaint as a petition for writ of certiorari.

Paragraph 10 of the complaint reads as follows:

“10. The Defendant Board committed errors in not notifying the plaintiff of the hearing on the charges and specifications and failed to observe the substantive rules of evidence and said errors materially affected the rights guaranteed the plaintiff by the Constitution of the United States and the Constitution of the State of Illinois.”

Plaintiff makes no further allegations elaborating upon which of his constitutional rights were materially affected or by whom they were affected. In light of our statutory mandate to construe pleadings liberally (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)), we read plaintiff’s complaint to allege deprivation of his procedural due process rights by the Wayne Township Board of Trustees through the termination of his public employment after a hearing without notice and without adherence to the rule of evidence.

Even with this liberal construction, however, the complaint is inadequate. A public employee who seeks review of his discharge must allege facts showing a property interest in his employment which is encompassed by due process protection. (See Powell v. Jones (1973), 56 Ill. 2d 70; Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.) To have a protect-able property interest in public employment, a person clearly must have more than an abstract need or desire for it; he must have a legitimate claim of entitlement to it. (Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 171, 430 N.E.2d 636, 639.) While every public employee does not have a right to continued employment, a public employee can have such a right dependent upon the surrounding circumstances including existing rules and understandings. (Powell v. Jones (1973), 56 Ill. 2d 70, 79.) Here, plaintiff has not alleged facts showing a property interest in his continued employment nor even alleged conclusorily that he has such a property interest. We also note that plaintiff has cited no authority in his argument for the proposition that a property interest may be found to exist in his employment as a supervisor of operations for an Illinois township highway department, and we are unable to find such authority.

Moreover, we find a fatal inconsistency within the allegations of the complaint. The incorporated exhibits make it clear that plaintiff was discharged solely by the actions of defendant Highway Commissioner John Ryvold. However, the body of the complaint alleges violations of plaintiff’s legal rights only by “Defendant Board.” The office of township highway commissioner is an elected one functioning separately as a distinct entity from the township board of trustees. (Ill. Rev. Stat. 1979, ch. 121, pars. 6—112, 6—201 through 6—201.17; see Western Sand & Gravel Co. v. Town of Cornwall (1954), 2 Ill. 2d 560.) In short, the complaint alleges facts showing the challenged administrative decision by one defendant while alleging deprivation of his constitutional rights only by the conduct of a different defendant.

Because plaintiff has failed to allege a property interest protected by due process guarantees and because his complaint does not present a consistent theory for the cause of action, we hold that plaintiff’s complaint does not state a cause of action for common law certiorari.

Accordingly, we affirm the order of the circuit court of Du Page County dismissing the complaint.

Affirmed.

UNVERZAGT and NASH, JJ., concur.