text:
    DILLMAN AND ASSOCIATES, INC., d/b/a Dillman Accounting, Plaintiff and Counterdefendant-Appellee, v. CAPITOL LEASING CO., Defendant and Counterplaintiff-Appellant.
    Fourth District
    No. 4—82—0152
    Opinion filed November 15, 1982.

      Asher 0. Geisler, of Geisler, Waks & Geisler, of Decatur, for appellant.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur (Jeffrey D. Richardson, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the question of whether an equipment lease entered into between two business entities, under which the lessor completely disclaims all responsibility for performance of the leased equipment, is unconscionable. On April 23, 1981, plaintiff filed a complaint in the Macon County circuit court, alleging that a copying machine it had leased from defendant was not performing adequately and that the lease agreement, which completely relieved defendant of all responsibility for performance of the machine, was unconscionable. In addition to its prayer that it be relieved of its obligations under the lease because of the lease’s alleged unconscionability, Dillman and Associates also requested damages stemming from the copier’s alleged nonmerchantability. Defendant filed a counterclaim on August 16, 1981, in which it asked for an award of the entire balance remaining due under the lease, plus attorney fees. At the conclusion of a bench trial on January 5, 1982, the court held that the lease was unconscionable, but ruled against plaintiff on its claim for damages flowing from the copier’s alleged nonmerchantability. The court also denied defendant’s counterclaim.

The lease at issue is a form contract, and all portions thereof, except for the names and addresses of the parties, the description of the equipment, term of the lease, number and amount of lease payments, and the date of the lease, are preprinted. The term of the lease is five years, and the copier is to be returned to defendant at the end of that time. The lease contains three express disclaimers of warranty. The first appears on the face of the lease, immediately below the description of the copier and reads:

“THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED OF MERCHANTABILITY, FITNESS, OR OTHERWISE WHICH EXTEND BEYOND THE ABOVE DESCRIPTION OF THE EQUIPMENT. LESSOR ASSUMES NO RESPONSIBILITY FOR PERFORMANCE OR MAINTENANCE. EQUIPMENT WILL BE INSURED BY LESSEE.”

The second disclaimer, which also appears on the front of the lease, provides:

“*** Lessee acknowledges and agrees (1) that each -unit is of a size, design, capacity and manufacture selected by Lessee, (2) that Lessee is satisfied that the same is suitable for its purpose, (3) that LESSOR IS NOT A MANUFACTURER THEREOF NOR A DEALER IN PROPERTY OF SUCH KIND, and (4) that LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION OR WARRANTY OR COVENANT WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY OR SUITABILITY OF ANY SUCH UNIT IN ANY RESPECT OR ' IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR WARRANTY OR COVENANT OF ANY KIND OF CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO. *** AS BETWEEN LESSOR AND LESSEE, THE EQUIPMENT SHALL BE ACCEPTED AND LEASED BY LESSEE ‘AS IS’ AND IF ANY FAULTS PREVAIL LESSEE AGREES TO SETTLE ALL SUCH CLAIMS DIRECTLY WITH THE SUPPLIER AND WILL NOT ASSERT ANY SUCH CLAIMS AGAINST LESSOR OR LESSOR’S ASSIGNEE.”

The third and final disclaimer, which appears on the reverse of the lease reads:

“NO REPRESENTATION REGARDING THE EQUIPMENT HEREIN LEASED HAS BEEN MADE BY CAPITOL LEASING COMPANY. LESSEE HAS SELECTED THE PROPERTY TO BE LEASED AND IT IS ORDERED BY CAPITOL LEASING COMPANY FOR THIS LESSEE AND AT LESSEE’S ENTIRE DIRECTION AND RISK.”

The face of the lease also contains statements in bold capitals, that the terms on the reverse of the lease constitute a part of the agreement and that the lease is noncancelable. Additional salient provisions, printed on the reverse of the lease, are that the lessee is responsible for any and all taxes on the leased equipment, the lease is irrevocable, and that the lessor has no responsibility for maintenance of the equipment. In the event of problems with the equipment, the lessor is to assign to lessee its rights against the supplier of the equipment for breach of warranties for the sole purpose of enabling lessee to pursue claims against the supplier relative to such defects. Finally, in the event of breach of the lessee’s obligations under the lease, the lessor may declare due the entire unpaid rental for the remaining term of the lease and repossess the leased equipment without legal process. The lessor may thereafter lease the repossessed equipment to a third party on terms of its choice or sell the equipment to the highest bidder at a public or private sale. The proceeds of the sale or second lease, less attorney fees and expenses related thereto, are to be deducted from the sum of the total unpaid lease installments, 15% of the lessor’s original investment in the leased equipment (representing the lessor’s loss of residual or salvage value of the equipment), and any other sums due under the lease, to arrive at the deficiency for which the lessee is responsible. The lessee is also liable for the amount of attorney fees incurred in attempting to collect a deficiency.

The plaintiff’s sole witness at trial was its executive director, Ronald L. Christopher. Christopher, who began work with Dillman and Associates in July 1979, testified as to the generally unsatisfactory performance of the leased copier during the time that he had been employed there. The machine had to be repaired a total of 16 to 19 times between July 15, 1979, and December 30, 1979, and 20 service calls were necessary to keep it functioning during 1980. Although Dillman and Associates had a preventive maintenance agreement for the copier with Printing Equipment & Products, Inc., of Decatur, some of the repairs fell outside the scope of this agreement, and on four occasions plaintiff received bills of more than $100 for such repairs. During this time, plaintiff repeatedly requested that defendant replace or repair the machine, but defendant took no action in this regard. Christopher brought three briefcases full of illegible copies produced by the machine into court with him. On April 1, 1981, the machine again began to produce illegible copies. Since that is the heaviest period in plaintiff’s income tax return preparation business, the machine was simply set aside and replaced with another leased copier on a temporary basis. This copier was subsequently replaced with a third machine. The third copier had required only one service call up to the time of the trial. After April 1, 1981, the plaintiff made no further payments on the copier which it leased from defendant.

The defendant presented no evidence.

Before addressing the question of whether the lease at issue is unconscionable, we must first consider plaintiff’s contention that this appeal should be dismissed on the ground of mootness. The plaintiff asserts that defendant has not perfected an appeal from the trial court’s denial of its counterclaim. Therefore, plaintiff argues, the trial court’s decision on defendant’s counterclaim, which is now a final judgment by virtue of defendant’s failure to appeal it, effectively bars defendant from ever receiving any damages on account of breach of the lease. Therefore, plaintiff asserts that the dispute before us is moot.

The written judgment entered by the trial court contains rulings on count I of plaintiff’s complaint (the unconscionability claim), count II of plaintiff’s complaint (the nonmerchantability claim), and defendant’s counterclaim in separately numbered paragraphs. Defendant’s notice of appeal states:

“CAPITOL LEASING CO. *** hereby appeals] *** from the Judgment entered in favor of DILLMAN AND ASSOCIATES, INC., Plaintiff-Counter Defendant, and against Defendant-Counter Claimant, CAPITOL LEASING CO., in terminating the lease without further liability on behalf of the Plaintiff-Counter Defendant.
Defendant-Counter Claimant prays that the reviewing Court reverse said Judgment and arrest Judgment in favor of the Defendant-Counter Claimant, or, in the alternative, enter Judgment in favor of the Defendant-Counter Claimant notwithstanding the verdict, or, as further alternative relief, that the reviewing Court reverse said Judgment and award to the Defendant-Counter Claimant a new trial and remand this cause for a new trial.”

A notice of appeal is jurisdictional, and in order to confer jurisdiction on a court of review, the notice must adequately conform to the requirements of Supreme Court Rule 303(c)(2) (87 Ill. 2d R. 303(c)(2)) which provides, inter alia, that the notice “shall specify the judgment or part thereof appealed from.” If errors in the notice of appeal are merely matters of form as opposed to substance, however, the jurisdiction of the appellate court will nevertheless attach. (Department of Transportation v. Galley (1973), 12 Ill. App. 3d 1072, 299 N.E.2d 810.) Furthermore, notices of appeal are to be liberally construed in view of the purpose of such notices, which is to advise the prevailing party in the trial court of the nature of the appeal. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380.

The question of the scope of the notice of appeal involved in Bur-tell is similar to the question which plaintiff raises in regard to the purview of the notice of appeal in the present case. In Burtell, the trial court entered a decree on December 19, 1975, finding the existence of a joint venture between plaintiff and one of the defendants. The decree was but a preliminary determination necessary to the ultimate relief sought by plaintiff, which was a money judgment based on an accounting. A judgment in favor of plaintiff on the basis of the joint venture and an accounting relating thereto was entered on June 1, 1976. The defendant’s notice of appeal requested only that the judgment entered on June 1, 1976, be reversed; it did not specifically request that the decree of December 19, 1975, be reversed. The court held that the notice of appeal was nevertheless applicable to the decree of December 19, 1975, since that decree was closely related to the judgment of June 1, 1976, in that it was a preliminary determination essential to the ultimate relief obtained by plaintiff as a result of the June 1 judgment.

In the case at bar, the defendant’s right to recover on the basis of the lease agreement’s acceleration clause is obviously dependent upon the conscionability of the lease agreement. Thus, in the present case, as in Burtell, there is a close interrelation between the issue which was admittedly appealed and the issue from which an appeal was allegedly not taken. Moreover, the language contained in the notice of appeal, that defendant appeals from the judgment of the court “in terminating the lease without further liability on behalf of the Plaintiff-Counter Defendant” clearly implies that defendant is appealing from both the termination of the lease on the ground of unconscionability and the court’s refusal to hold plaintiff liable for any of the remaining payments due under the lease by denying defendant’s counterclaim. This interpretation of Capitol’s notice of appeal is buttressed by the repeated references to Capitol Leasing Co. as the “Defendant-Counter Claimant” which are contained in the notice. Therefore, we are of the opinion that defendant’s notice of appeal was sufficient to confer jurisdiction on this court to consider defendant’s counterclaim and that the notice adequately informed plaintiff that defendant was appealing from the entire judgment which the trial court entered on February 10,1982.

Plaintiff further asserts that even if the question of whether defendant’s counterclaim was properly denied falls within the scope of defendant’s notice of appeal, defendant has waived this issue by failing to discuss it in its brief. As support for this contention, plaintiff relies primarily on Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)), which provides that points not argued in an appellant’s brief are waived. In our opinion, however, this Rule does not provide a basis for holding that defendant waived this issue under the circumstances of this case. At trial, plaintiff presented no defenses whatsoever to defendant’s counterclaim other than the lease’s alleged unconscionability. Therefore, under the posture of this case at the conclusion of the trial, a holding that the lease which the parties executed is not unconscionable would mandate a decision that defendant is entitled to damages pursuant to its counterclaim. Since plaintiff’s liability for the amount of defendant’s counterclaim would thus automatically result from a decision that the lease is conscionable, a discussion of defendant’s counterclaim in its brief was unnecessary and would, in fact, have been superfluous. Since defendant therefore did not fail to properly appeal the adverse decision on its counterclaim and was not required to discuss the propriety of the denial of its counterclaim in its brief, the issue of the unconscionability of the lease agreement into which the parties entered is not moot, and we may consider this issue on its merits.

Section 2 — 302 of the Uniform Commercial Code provides:

“Unconscionable Contract or Clause. (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.” (Ill. Rev. Stat. 1981, ch. 26, par. 2-302.)

The generally accepted definition of an unconscionable contract is one “ ‘which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man could accept, on the other.’ [Citation.]” (Neal v. Lacob (1975), 31 Ill. App. 3d 137, 142, 334 N.E.2d 435, 439.) An unconscionable contract is usually improvident, wholly one-sided or oppressive. (Neal.) Courts are generally reluctant to use the unconscionability doctrine to rewrite the terms of contracts into which educated businessmen have entered. Walter E. Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285.

Article 2 of the Uniform Commercial Code should not be applied in toto to equipment leases. Relevant provisions of that article should, however, be applied by way of analogy in equipment lease cases involving the same considerations which gave rise to the Code provisions and where the analogy is not rebutted by the circumstances of the case. Under this test, article 2 has been held applicable to equipment leases of the type entered into by the parties to this action. Heller.

In support of its position that the lease in question is unconscionable, plaintiff relies principally on Bank of Indiana, National Association v. Holyfield (S.D. Miss. 1979), 476 F. Supp. 104, United States Leasing Corp. v. Franklin Plaza Apartments, Inc. (N.Y. Civ. Ct. 1971), 65 Misc. 2d 1082, 319 N.Y.S.2d 531, and Hertz Commercial Leasing Corp. v. Dynatron, Inc. (1980), 37 Conn. Supp. 7, 427 A.2d 872, all cases from other jurisdictions and not binding on us. Furthermore, in Bank of Indiana the parties to the lease were an unsophisticated farmer and a large corporation. The lease was completed in text and executed by the farmer when he was under great economic compulsion. In Hertz, the court held against the lessor on the basis it had not made a commercially reasonable sale of the leased property in mitigation of damages and because a liquidated damages claim was unconscionable. The question of whether a disclaimer of warranties was unconscionable was not reached.

As authority for its assertion that the lease executed by the parties before us is conscionable, defendant relies principally on Heller, FMC Finance Corp. v. Murphree (5th Cir. 1980), 632 F.2d 413 (applying Illinois law), and Bill Stremmel Motors, Inc. v. IDS Leasing Corp. (1973), 89 Nev. 414, 514 P.2d 654. We find Heller to be dispositive of this issue. In Heller, the defendants entered into an equipment lease with plaintiff’s assignor. The lease agreement provided, inter alia, that the lessor made no express or implied warranties as to the leased equipment, and that defects in, or unfitness of, the equipment would not relieve defendants of their obligation to make payments under the lease. The lessor’s assignee sued defendants for the amount due under the lease after defendants refused to make further payments because of the equipment’s alleged inadequacy for their needs, and obtained a judgment against defendants. In rejecting defendants’ contention on appeal that the lease was unconscionable, the court held that while certain provisions of the lease favored one party over another, the lease imposed rights and duties on both parties, and that corporations of substantially equal bargaining power agreed to the lease. FMC Finance and Bill Stremmel Motors both involved factual situations very similar to that present in Heller, and the courts responded to the lessees’ claims of unconscionability in substantially the same manner as the Heller court.

The lease before us, was, like the lease in Heller, entered into by businessmen of equal sophistication. This is not the case of an experienced businessman taking unfair advantage of a poorly educated consumer. Although plaintiff was under no compulsion to lease the equipment and could presumably have purchased it either outright or through the use of conventional financing, it chose to obtain a new copying machine by leasing one for reasons which do not appear in the record. After deciding to lease a new copier, the plaintiff was free to select the machine which would best suit its needs and circumstances. Upon making its selection, the plaintiff signed a lease which contained conspicuous, and thus legally binding (see Heller; Ill. Rev. Stat. 1981, ch. 26, pars. 2 — 316(2), 1 — 201(10)) disclaimers of warranty in not one, but in three locations. The defendant fulfilled its contractual obligations by purchasing and delivering to plaintiff the machine which plaintiff chose. Apparently, the copier which plaintiff received was either defectively manufactured or was inadequate to handle plaintiff’s volume of copying. Plaintiff now asks us to declare the lease unconscionable because it is unable to assert against the lessor claims as to the equipment’s inadequacy, for which the lessor bears no responsibility whatsoever. We cannot accede to this request. Courts should not assume an overly paternalistic attitude toward the parties to a contract by relieving one or another of them of the consequences of what is at worst a bad bargain (see Neal), and in declaring the lease in issue here unconscionable, we would be doing exactly that.

Having determined that the lease into which the parties entered was not unconscionable, we must next ascertain whether any of the evidence which plaintiff presented in support of its unconscionability claim could possibly be construed as evidence sufficient to support plaintiff’s nonliability for the amount of defendant’s counterclaim on grounds of the copying machine’s nonmerchantability or the defendant’s failure to mitigate its damages. As previously intimated, we are of the opinion that this question should be answered in the negative. First of all, the plaintiff did not present evidence of defects in the copier at the time of acquisition sufficient to sustain a claim of non-merchantability under section 2 — 314(2)(c) of the Uniform Commercial Code (Ill. Rev Stat. 1981, ch. 26, par. 2 — 314(2)(c)), for there was no direct evidence of the machine’s performance during the first five months of its use by plaintiff. (See Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 360 N.E.2d 1168.) Furthermore, the plaintiff did not establish the extent to which defendant failed to mitigate its damages resulting from plaintiff’s cessation of payments under the lease. There is indeed evidence that defendant refused to reclaim the machine after plaintiff stopped making payments under the lease and that the machine remained on plaintiff’s premises at the time of the trial. This is not, however, sufficient evidence to support a claim of nonmitigation, since it provides no basis for determination of the amount of the setoff to which plaintiff-counterdefendant is entitled as a result of defendant-counterplaintiff’s alleged nonmitigation of its damages, and the party asserting nonmitigation of damages bears the burden of proof as to the extent of the nonmitigation. See Williams v. Board of Education (1977), 52 Ill. App. 3d 328, 367 N.E.2d 459.

In its counterclaim, defendant requested damages in the amount of $5,889 (representing the total amount of the lease payments), plus attorney fees in the amount of $500, less any payments made pursuant to terms of the lease. The evidence clearly establishes that the total amount due under the lease is $5,889. Therefore, we remand this cause to the trial court with directions that judgment be entered for defendant-counterplaintiff in the amount of $5,889, less all payments made by plaintiff-counterdefendant pursuant to terms of the lease.

The sole reference to the amount of defendant’s attorney fees in the record before us is a statement in the trial transcript that a stipulation with respect to attorney fees may have been entered. The common law record does not, however, contain such a stipulation. Since we thus have no evidence of the amount of defendant’s attorney fees before us, we further direct the trial court to hold an evidentiary hearing to determine the amount of attorney fees reasonably incurred by defendant-counterplaintiff at trial and in the prosecution of this appeal, and to enter judgment for defendant-counterplaintiff in the amount of such fees.

Reversed and remanded with directions.

TRAPP and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v DANIEL KLEBA, Defendant-Appellant.
    First District (5th Division)
    No. 81—0375
    Opinion filed November 12, 1982.

      Julius Lucius Echeles, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Barbara A. Levin, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, defendant was convicted of attempted deviate sexual assault, attempted rape, aggravated kidnaping and robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 10 — 2 and 18 — 1), for which the trial court sentenced defendant to concurrent extended terms of 15 years, 14 years, 20 years and 14 years, respectively. On appeal, defendant contends that: (1) the evidence is insufficient on all charges to sustain a finding of guilty; (2) the trial court erred when it denied a motion for new trial founded upon a new witness; (3) defendant was denied his sixth amendment right to counsel when forced to proceed with counsel not of his own choosing; (4) defendant was subjected to double jeopardy when, after defendant waived his right to a jury trial, the court sought to impanel a jury; (5) the indictment count for aggravated kidnaping fails to state a cause of action; (6) the extended-term provisions of section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1)) are unconstitutional; (7) imposition of separate sentences for attempted rape, attempted deviate sexual assault, robbery and aggravated kidnaping is improper; and (8) the court violated Illinois statutory law when, over defendant’s objection, it ordered the refund of defendant’s bail deposit to his attorney of record. For the reasons that follow we affirm in part and reverse in part.

The pertinent facts disclose that in August 1979, defendant was indicted for attempted rape, attempted deviate sexual assault, unlawful restraint, robbery and aggravated kidnaping. (111. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 8 — 4, 10 — 3, 18 — 1 and 10 — 2, respectively.) Defendant retained Samuel Wexler as his private counsel and, by agreement of the parties, trial was set for December 12, 1979. Between December 12, 1979, and October 27, 1980, trial was continued seven times. The record reveals that six of the seven continuances were at defendant’s request and five of those six were requested because of Wexler’s unavailability due to illness. Because of Wexler’s continued illness, in June 1980 Bernard Brody filed his appearance as co-counsel for defendant.

On October 27, 1980, Brody appeared without Wexler and moved that the trial be continued once again due to Wexler’s illness. Brody further informed the court that a continuance was necessary because defendant insisted that Wexler, not Brody, represent him at trial. The State objected to defendant’s motion, citing the numerous continuances already granted defendant and the resulting inordinate delay. At this point in the proceedings, defendant attempted to formally discharge Brody as his counsel. The court, however, disallowed the discharge and accused defendant of indulging in dilatory tactics. Thereafter, the court ordered commencement of the jury selection, at which time defendant stated that he chose to waive his right to a jury trial. The court recognized defendant’s right to waive trial by jury, but indicated that it would proceed, nonetheless, to impanel a jury for advisory purposes only. The court explained that it would not be required to follow the jury's verdict, rather, it would merely consider the jury’s verdict in making the final determination. Upon defendant’s vehement objection to use of the jury in an advisory capacity, the court recessed the proceeding to review relevant case law. Subsequently, citing the complexity of the advisory jury question, the court granted defendant’s prior motion for a continuance and set the trial date for December 3, 1980. In setting the new date, the court advised defendant that if he was not satisfied with his present counsel, he should retain substitute counsel and be prepared to commence with the trial on the next date.

On December 3, Brody appeared on defendant’s behalf and the trial commenced. The first witness to testify was Dr. Christopher Rose, who resided in a second-floor apartment at the corner of Wellington and Seminary in Chicago. Dr. Rose stated that on August 3, 1979, approximately 12:45 a.m., he heard what appeared to be a muffled female scream coming from below his open window which faced Seminary. He immediately looked out and saw a human form lying face down between two parked cars and a bicycle lying nearby. Upon running outside, he saw that a male was actually lying on top of another person. At that time he could not distinguish the sex of the person on the bottom and he could not see the face of the person on top.

Dr. Rose then testified that while he was upstairs calling the police, he watched the man get up and lead the other person, who he could then discern to be a female, south on Seminary and then west down the alley between Oakdale and Wellington. The man had his right arm around the woman and was carrying what appeared to be a metal object in his left hand, held near the base of the woman’s throat. When the police arrived, Dr. Rose directed them toward the alley.

Complainant was next to testify and stated that on August 3, 1979, approximately 12:45 a.m., she arrived home from work and was standing in front of her apartment building in the 2900 block of Seminary looking for her keys when she was suddenly punched on the side of the face and knocked face down on the ground between two parked cars. Her assailant then jumped on top of her and threatened to kill her if she moved or screamed. After several minutes, the assailant put one arm around complainant’s neck and the other arm around her back, yanked her to her feet, and forced her toward the alley which was a couple of feet away. Complainant then stated that while they were walking down Seminary toward the alley, she saw a woman with two dogs, but was unable to scream for help because of the armlock the assailant had around her throat. When they entered the alley, the assailant forced her toward a dimly lit gangway, then through a gate leading into a dark yard area where the assailant held her against the side of a garage, ordered her to pull down her jeans and underwear, bend over and clasp her ankles. While she was in that position, he began fondling her vagina with one hand while he kept the other hand pressed down on her neck. Complainant further testified that she heard the assailant start to pull down a zipper and she also heard “something rustle like, material like or something.” Complainant also stated that at one point assailant momentarily stopped fondling her and moved his hand down her left arm to loosen her watch. When the watch fell to the ground, he picked it up and put it into his pocket. The assailant then yanked her head up and started pushing her toward a gate between two gangways that led to Oakdale, ordering her to jump over the gate or he would kill her. When a spotlight from a car going west on Oakdale flashed down the gangway, assailant pushed complainant to the ground and fled north toward Wellington. At no time did complainant see her assailant’s face. She did, however, see the back of his hand, and, thus, could positively identify her assailant as a male Caucasian. In addition, complainant testified that her attacker had liquor on his breath and appeared to be a couple of inches taller than she.

Next, Investigator Clarence Oleskiewicz of the Chicago police department testified as to the following. On the morning of August 3, 1979, Oleskiewicz, a plainclothes policeman, was on duty with his partner, Investigator Poli. About 1 a.m. on that date, Oleskiewicz and Poli, in response to a simulcast, headed toward the 1100 block of Wellington. Upon arriving at the scene of the attack, Dr. Rose directed the officers to the alley between Oakdale and Wellington. The officers then drove west down the alley, looking through open gates for a Caucasian male and female. They did not see anyone. They then drove east down Wellington to Seminary, turned right on Seminary to Oakdale and proceeded west on Oakdale, shining their car spotlight down the gangways as they drove along until Oleskiewicz finally saw a Caucasian male apparently choking a Caucasian female in the alley behind 1140 W. Oakdale. He then began chasing the male on foot, through the yards, north toward Wellington. Shortly thereafter, another officer arrived and undertook a lateral pursuit. Finally, in the yard area of 1107 W. Wellington, the assailant ran into a locked gate and was tackled by the pursuing officers. Oleskiewicz testified that he never lost sight of the assailant from the time he first saw him to the actual arrest. At trial, Oleskiewicz identified defendant as the assailant.

Oleskiewicz further testified that when he searched defendant, he found a woman’s watch in defendant’s front pocket, which he then marked with his initials and inventoried at the police station. At trial, complainant identified the watch as hers and both arresting officers identified it as the watch found on defendant at the time of arrest.

Next to testify was Officer Bruce Stefan of the Chicago police department who stated that on August 3, 1979, approximately 1 á.m., he and his partner, Willard Streff, monitored a simulcast after which they proceeded to the 1100 block of W. Wellington. While driving west in the alley between Oakdale and Wellington, Stefan saw a Caucasian male running across the alley with another Caucasian male running about 10 feet behind the first. At trial, Stefan identified defendant as the first male and Oleskiewicz as the man chasing him. Stefan undertook a lateral pursuit of defendant on foot through the adjacent gangway. During the chase, defendant jumped the fence into the yard Stefan was in and proceeded northbound through that building’s gangway toward the front yard where he ran into the front gate, bounced off it, turned, and was wrestled to the ground by the pursuing officers.

Finally, defendant testified that on the evening of August 2, 1979, approximately 9:30 p.m., after completing calls on potential remodeling customers, he stopped in a restaurant at Clark/Broadway/Diversey in Chicago. While in the restaurant, he met a young woman named “Candy” who invited him to her apartment in the 1100 block of W. Wellington. Defendant testified that he had one beer at Candy’s apartment, engaged in sexual intercourse, then left at approximately 1 a.m. He then stated that while he was walking west on the south side of Wellington toward his car, a man ran out of the gangway, almost knocking him down. When he turned to see where the man was going, two other people jumped him from behind, knocked him to the ground and started punching him until he lost consciousness.

Defendant claims that when he regained consciousness, he was on a table in a hospital emergency room and had no recollection as to how he got there. Lastly, defendant denied all charges, denied that the watch was found on him, and claimed that the arresting officers had not read him his rights.

For purposes of impeachment, the State then moved to introduce defendant’s record of prior convictions for rape and robbery into evidence. The court weighed the probative value of the evidence against the unfair prejudice resulting to defendant and concluded that, because the crime of robbery involved dishonesty and reflected on a person’s likelihood to tell the truth, the record of robbery convictions would be admissible. However, because the rape convictions did not prove or disprove defendant’s likelihood to tell the truth, the record of rape convictions was not admissible.

Immediately following closing arguments, the court rendered its decision and, thereafter, granted the State’s motion to revoke defendant’s bond. Post-trial motions were then set, and a presentence investigation was ordered. On December 23, 1980, defendant’s motion to substitute counsel was granted. Shortly thereafter, defendant filed motions for new trial and arrest of judgment which were denied. Defendant’s timely appeal followed.

Opinion

I

Without admitting that the evidence proves beyond a reasonable doubt that he was the assailant, defendant contends that the convictions for attempted rape, attempted deviate sexual assault, robbery and aggravated kidnaping must be reversed because the State failed to present sufficient evidence at trial to establish the essential elements of each offense.

A

Attempted Rape/Presumptions

First, defendant argues that the State failed to prove beyond a reasonable doubt that he had the specific intent to rape complainant, or that he committed an act which constituted a substantial step toward raping her.

Pursuant to the Criminal Code of 1961, the offense of attempt is committed when “with intent to commit a specific offense *** [a person] does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a).) In the pending case, the specific offense charged is rape, defined by the Criminal Code as occurring when “[a] male person of the age of 14 years and upwards *** has sexual intercourse with a female, not his wife, by force and against her will ***.” Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1(a).

Defendant relies on People v. Cieslak (1925), 319 Ill. 221, 149 N.E. 815, for his contention that proof of only an intent to commit a sexual assault is not sufficient to support a conviction for attempted rape. We find Cieslak factually inapposite to the case at bar, and, thus, unpersuasive. In Cieslak, defendant and complainant, an unmarried male and female, were visiting the apartment of friends. When the friends left to go on an errand, defendant and complainant remained at the apartment. When the friends returned, they found complainant sitting on the stair landing, her face badly bruised. Defendant had left. Complainant alleged that defendant threw her on the bed and beat her when she refused to have sexual intercourse with him. Defendant, on the other hand, claimed that complainant encouraged his advances and they fought only when she grabbed money from his pocket in payment for her sexual services. At trial, defendant attempted to introduce evidence of complainant’s unchaste character. In disallowing the testimony, the court made some highly prejudicial remarks which were grounds for reversal on appeal. The Cieslak court never addressed the issue of whether an intent to commit a sexual assault was sufficient to support a conviction for attempted rape.

As an alternative argument, defendant relies on the recent Illinois Supreme Court decision, People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, as support for its position' that “one cannot presume from a given fact to another fact essential to sustain a conviction unless the presumed fact is more likely than not to flow from the proved fact.” Defendant asserts that application of Housby to the pending case requires reversal of the attempted rape conviction because proof beyond a reasonable doubt of defendant’s specific intent to have vaginal intercourse does not flow from the proved fact that an assault was committed.

It is our opinion that Housby has no application whatsoever to the facts of the instant case. The Housby court unequivocally confines its analysis of presumptions to those situations in which a defendant in exclusive possession of stolen property with no reasonable explanation for having the property is presumed to be guilty of burglary. The court held that the unexplained possession of recently stolen property may support an inference of guilt of the crime of burglary only if (1) there is a rational connection between the possession and the participation in the burglary; (2) the guilt of burglary is more likely than not to flow from the possession of the burglary proceeds; and (3) there is corroborating evidence of guilt. Defendant’s statement that “Housby is not limited to the presumption there considered, i.e., presumption of burglary from recent possession” is clearly not supported by Housby or its progeny. ****8Furthermore, application of defendant’s interpretation of Housby to the case at bar would obfuscate the statutory definition of “attempt” and be tantamount to judicial usurpation of the legislature’s amendatory functions.

In its argument, the State relies on People v. Almond (1975), 31 Ill. App. 3d 374, 333 N.E.2d 236, as dispositive of the attempted rape charge. The Almond court held that the specific intent needed to convict the defendant of attempted rape could be inferred from circumstances of the assault itself. In Almond, the defendant attacked the victim from behind on a public street and knocked her to the ground. He then put one arm tightly around her neck and attempted to drag her into a nearby alley, threatening to kill her. At one point, the defendant held the victim against a car and tried to unbutton her clothing. He was interrupted by squealing tires and fled. In upholding the defendant’s conviction for attempted rape, the Almond court stated:

“We feel that the defendant’s choking the prosecutrix and pulling her in the direction of an alley, coupled with his attempt to disrobe her constituted a substantial step toward the commission of the crime of rape. Moreover, a trial court could infer from these circumstances, in spite of the fact the assailant never vocalized his intent, that he intended to rape the prosecutrix. Consequently, we hold that the acts of defendant in this case were in furtherance of the substantive crime, of rape and constituted a substantial step toward the commission of the offense from which the trier of fact could infer the specific intent needed to convict the defendant of the offense charged.” 31 Ill. App. 3d 374, 377-78.

In the case at bar, defendant knocked complainant to the ground, repeatedly threatened to kill her, held her neck in an immobilizing armloek and dragged her into an alley where he forcefully held her next to a garage, ordered her to remove her jeans and underwear, then bend over and clasp her ankles. He then began fondling her vagina. After sexually assaulting her for several minutes, defendant ordered complainant to jump a fence into yet a more secluded area. It was at this point that the police interceded and defendant fled. Based on the striking similarities between the pending case and Almond, we hold that the acts of defendant in this case were in furtherance of the substantive crime of rape and constituted a substantial step toward the commission of the offense from which the trial court could infer the specific intent needed to convict the defendant of attempted rape.

B

Attempted Deviate Sexual Assault

Defendant further contends that the evidence fails to establish the offense of attempted deviate sexual assault. The statutory definition of attempt is given in section “A” herein. The relevant specific offense of deviate sexual assault is defined by the Criminal Code, in pertinent part, as occurring when “[a]ny person of the age of 14 years and upwards *** by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct *** ” Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3(a).

Defendant argues that even though complainant was bent over with her pants pulled down and her buttocks exposed,, exposure alone is not sufficient to prove beyond a reasonable doubt that the defendant had specific intent to have anal intercourse. Testimony by both complainant and defendant revealed that throughout the time complainant was bent over clasping her ankles, defendant was standing in front of her. At no time did defendant stand behind the complainant when she was in the bent-over position.

In response, the State argues that “it would have been difficult for defendant to come any closer to a deviate sexual assault without commission of the offense itself, which would have occurred once his penis touched her anus.” It is our opinion that had defendant at some point in the fondling been standing behind the complainant, the substantial step element of attempted deviate sexual assault would have been met. It is clear from the record, however, that no such position was taken by defendant. Therefore, we hold that no such position was taken by defendant. Therefore, we hold that there was insufficient evidence to prove the offense of attempted deviate sexual assault beyond a reasonable doubt and reverse the trial court’s conviction of that offense.

C

Robbery

Defendant next contends that the State failed to prove the essential “force” element of the offense of robbery and, thus, the conviction should be reversed.

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.” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a).) Specific intent is not an element of robbery. (People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289.) Furthermore, the requirement of force or threat of force is satisfied if the fear of the alleged victim was of such nature as in reason and common experience is likely to induce a person to part with his property for the sake of his person. However, the cause which gives rise to the fear must precede or be contemporaneous with the taking. People v. Whitley (1974), 18 Ill. App. 3d 995, 999, 311 N.E.2d 282.

Defendant maintains that complainant’s watch accidentally fell off her arm, thus, the necessary forcé or threat of force was missing. Defendant further asserts that the force involved in the attempted rape cannot be imputed to the taking of the victim’s property. As support for his arguments, defendant relies on People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013, People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4, and People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661. We find these cases to be clearly distinguishable from the case at bar.

In King, the defendant raped the victim in one room, then took her purse from another. In Pack, defendant choked the victim on a bed until he thought she was dead, then took money from her purse which was lying on a nearby chair. In both King and Pack the use of force on the victim had clearly ceased before the taking of the property. In fact, in neither case was the victim even aware that her property was being taken. In Romo, the defendant, posing as a detective, grabbed the victim’s wallet out of his hand while he was looking for his license. The court held that the “grabbing” of the wallet from the victim’s hands did not demonstrate sufficient force to meet the requirements of the offense of robbery.

In the instant case, unlike in King, Pack and Romo, force was used on complainant both prior to and contemporaneous with the taking of her watch. When defendant first encountered complainant, he knocked her to the ground and repeatedly threatened her life. Defendant then yanked complainant up off the ground and held her so tightly that she could not move her head. Once defendant maneuvered complainant to a dark area, he forced her to pull down her jeans and underwear, bend over and clasp her ankles. While she was in this position, defendant continued pressing down on her neck with one hand and fondling her vagina with another. At one point, he stopped fondling her momentarily and moved his hand down her arm apparently to loosen her watch. When the watch fell off, he picked it up and put it in his pocket. Throughout the time it took to run his hand down her arm and pick up the watch, defendant never stopped pressing down on complainant’s neck. There is no doubt that the physical force used on complainant and the concomitant verbal threats to her life caused her to part with possession of her watch against her will. For these reasons, we hold that all elements of the offense of robbery have been proven beyond a reasonable doubt and the trial court’s conviction is affirmed.

D

Aggravated Kidnaping

Defendant next contends that there was insufficient evidence to prove the secret confinement element of the offense of aggravated kidnaping.

The Criminal Code defines “kidnaping,” in pertinent part, as occurring “when a person knowingly: (1) [a]nd secretly confines another against his will, or (2) [b]y force or threat of imminent force carries another from one place to another -with intent secretly to confine him against his will ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 1(a)(1), (2).) Of further relevance, the Code defines “aggravated kidnaping,” in pertinent part, as occurring when a kidnaper as defined in section 10 — 1(a) “[i]nflicts great bodily harm or commits another felony upon his victim ***.” Ill. Rev. Stat. 1981, ch. 38, par. 10 — 2(a)(3).

The secret confinement element of kidnaping may be shown by proof of the secrecy of either the confinement or place of confinement. (People v. Mulcahey (1978), 72 Ill. 2d 282, 381 N.E.2d 254.) In the instant case, defendant mistakenly relies on Mulcahey and People v. Bishop (1953), 1 Ill. 2d 60, 114 N.E.2d 566, as support for his argument that pushing the complainant down a dark alley to a secluded yard area next to a garage does not demonstrate his intent to secretly confine the complainant.

In Mulcahey, the victim was taped to a chair in her own home. The court held that “[t]he victim in this case was ‘secretly confined’ as effectively in her own home as if defendant had asported her to some remote isolated place of confinement.” (People v. Mulcahey (1978), 72 Ill. 2d 282, 285.) In Bishop, the victim was confined to a moving automobile driven by defendant. The Bishop court held that such confinement was secret in that “[cjommon experience has shown that a victim and his kidnaper so situated can be most difficult to locate.” People v. Bishop (1953), 1 Ill. 2d 60, 64.

Applying the rationale of both Mulcahey and Bishop to the pending case clearly reveals that the complainant was secretly confined within the meaning of the statute. Investigator Oleskiewicz testified that when he drove west in the alley between Oakdale and Wellington, with searchlights on, purposely looking for suspicious activity, he did not see anyone. The difficulty which the officers had in locating defendant and complainant vividly illustrates the secrecy of the place of confinement. In fact, complainant and defendant were not seen until they moved away from the garage. In his brief, defendant further argues that because “there were other people around,” i.e., the woman walking her dogs, the place of confinement was not secret. However, the record reveals that complainant saw the woman while being pushed down the street toward the alley. The woman was not visible while the defendant and complainant were next to the garage, the actual place of secret confinement. For these reasons, we hold that sufficient evidence was presented at trial to prove the secret confinement element of the offense of kidnaping. Furthermore, because the trial court’s conviction of robbery has been affirmed, the felony element of aggravated kidnaping has been satisfied and the trial court’s conviction of aggravated kidnaping is affirmed.

E

Identification

Defendant next maintains that complainant’s inability to identify him as her assailant coupled with the incredible testimony offered by the arresting officers created a reasonable doubt as to his guilt.

Defendant relies on People v. Bartley (1962), 25 Ill. 2d 175, 182 N.E.2d 726, and People v. White (1978), 56 Ill. App. 3d 757, 372 N.E.2d 691, as support for his contention that complainant’s failure to identify him is grounds for reversal. We find Bartley and White to be distinguishable from the case at bar and, thus, of no persuasive value. In Bartley, the court reversed defendant’s murder conviction on the grounds that the sole eyewitness to the crime saw the killer at close range and yet could not identify the defendant, and the only other State’s evidence was circumstantial. In White, the court reversed defendant’s robbery conviction on the ground that the witness who saw the perpetrators full-face in a lighted hotel lobby was doubtful of the identification and there was no corroborating evidence to connect defendant with the crime.

In the pending case, complainant never had the opportunity to see her assailant. She was punched in the face, knocked face down to the ground with defendant lying on top of her. When defendant yanked her up, he was standing slightly behind her and had her in an armlock position that would not allow her to move her head. In fact, the only time defendant faced complainant was when she was bent over, clasping her ankles. The complainant did testify, however, that her assailant was Caucasian, had liquor on his breath and was slightly taller than she. Defendant fit this description exactly.

The rule is well established that in a bench trial, the credibility of witnesses and the weight to be given to their testimony are matters for the trial judge to determine and will not be disturbed on appeal unless it is based upon evidence which is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Beason (1975), 32 Ill. App. 3d 305, 336 N.E.2d 511.) Furthermore, the testimony of a single witness is sufficient to sustain a conviction if positive and credible even if it is contradicted by the accused. People v. White (1978), 56 Ill. App. 3d 757, 372 N.E.2d 691.

Contrary to defendant’s contention, we find nothing incredible in the testimony of the arresting officers. Defendant claims that the officers, while in pursuit of the “real” assailant, ran out of the gangway onto the sidewalk where defendant was walking, grabbed defendant, and beat him until he was unconscious. As a result of the beating, defendant maintains that the officers had to arrest defendant as the assailant because, otherwise, they would have no explanation for their unprovoked assault on him. We concur with the trial court that the explanation of pursuit and arrest given by the pursuing officers was far more credible than that given by defendant. Investigator Oleskiewicz testified that defendant received his injuries when he ran into a locked gate, and was subsequently tackled to the ground by the officers. Officer Stefan corroborated this explanation. In addition, both officers testified that complainant’s watch was found on defendant at the time of the arrest. Defendant, however, offered no plausible explanation as to why the watch was found on him. Instead, he simply denied that it was on him at the time of the arrest. For these reasons, we hold that the weight of the evidence identifying defendant as the assailant was positive, credible and sufficient to establish defendant’s guilt beyond a reasonable doubt.

II

Next, defendant argues that the trial court erred in denying his motion for a new trial when he presented an affidavit from the woman he had visited on the night of the attack which established an alibi.

As set forth by this court, the standard for review of a motion for new trial on the ground of newly discovered evidence states that the new evidence must be of such conclusive character that it will probably change the result on retrial. (People v. Carpenter (1979), 74 Ill. App. 3d 770, 774, 393 N.E.2d 50.) Furthermore, the new evidence must be material to the issue, not merely cumulative, and it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. (People v. Starr (1976), 37 Ill. App. 3d 495, 501, 346 N.E.2d 410, quoting People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1.) Motions for a new trial on the basis of newly discovered evidence are not looked upon favorably by the courts and will always be subjected to the closest scrutiny. The question is largely discretionary on the part of the trial court, and the exercise of its discretion will not be disturbed on appeal except in the case of manifest abuse. People v. Carpenter (1979), 74 Ill. App. 3d 770, 774, 393 N.E.2d 50.

Defendant asserts that Candy’s testimony would have corroborated his version of the facts and thereby dispel the disbelief engendered by the State’s assertions that defendant’s story was ridiculous. We find this argument unpersuasive. Candy’s testimony, as indicated by the affidavit included in the record, seems to be more accurately characterized as impeachment testimony rather than testimony which contradicts by showing facts. It is well-established that newly discovered evidence which serves to discredit, contradict and impeach a witness does not afford a basis for the granting of a new trial. (People v. Holtzman (1953), 1 Ill. 2d 562, 116 N.E.2d 338.) Even if we interpreted the testimony as showing facts, however, the testimony would not have had sufficient probative force or weight to produce a verdict of not guilty. For example, had defendant left Candy’s apartment just 10 minutes earlier, he would have had ample time to have committed the crimes for which he was convicted. Furthermore, Candy did not see the actual apprehension of defendant, nor did she see the alleged fleeing assailant. Thus, she could have done no more than to testify that she spent several hours with defendant, a fact which is not in issue.

Defendant further argues that trial counsel’s (Brody’s) failure to timely produce Candy at trial cannot be a basis for denying a new trial due to lack of diligence when Brody’s failure was the result of his ineffective assistance as counsel. This argument is totally without merit. In effect, defendant is attempting to use the allegation of inadequate representation as an affirmative defense for not having exercised due diligence in trying to locate Candy. While this is creative lawyering, it is inappropriate.

In People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084, the court set forth the standard of effective assistance of counsel, private or court-appointed, and stated that the pertinent inquiry is whether the attorney was actually incompetent, and caused such substantial prejudice to defendant that the outcome was probably changed. In the case at bar, defendant has not established breach of this standard. In fact, the record reveals that Brody put forth a solid, aggressive defense.

Furthermore, the record reveals that defendant informed his counsel, Sam Wexler, about Candy well before trial began. In June 1980, Brody filed his appearance as co-counsel with Wexler. Throughout the period of trial continuances, defendant was cognizant of Wexler’s unavailability due to illness and yet never made certain that Brody, as co-counsel, knew about Candy’s potential value as a witness. The fact that defendant failed to cooperate with Brody cannot now be used to reverse the trial court’s convictions. It would be a mockery of the judicial system, indeed, if a defendant could refuse to cooperate with his counsel and then, on appeal, claim counsel’s lack of preparation as a ground for reversal. (People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) Under these circumstances, we conclude that defendant has not met his burden of rebutting the presumption that the verdict is correct or that the trial court displayed a manifest abuse of discretion in denying the motion for a new trial.

Ill

Defendant next contends that he was denied his sixth amendment right to counsel when the trial court forced him to proceed with counsel not of his own choosing.

A defendant’s right to be assisted by counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8) includes the right to be represented by counsel of his choice. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 196, 384 N.E.2d 767.) However, this right may not be utilized to frustrate the administration of justice or to otherwise embarrass the effective prosecution of crimes. (People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892.) At what point a defendant’s right to select counsel unreasonably interferes with the orderly process of judicial administration necessarily depends upon the particular facts and circumstances surrounding each case and is a matter which lies within the sound judicial discretion of the trial court. People v. Spurlark (1978), 67 Ill. App. 3d 186, 197, 384 N.E.2d 767.

In the pending case, counsel for defendant, Sam Wexler, filed his appearance in August 1979. Trial date was originally set for December 12, 1979. After numerous continuances requested by defendant, Bernard Brody filed his appearance as co-counsel for defendant in June 1980. The record reveals that at the time Brody filed his appearance, Wexler was ill and, in fact, questioned his own future availability as defendant’s counsel. Defendant was aware of Brody’s co-counsel status and verbally agreed to it when questioned by the trial court. After several more continuances, trial was set for October 27, 1980. On that date, Brody asked for yet another continuance stating that defendant did not want to proceed without Wexler who remained hospitalized. The State objected vigorously, reminding the court that Wexler had been ill for over a year. At that point, defendant attempted to discharge Brody as his counsel. The court, however, would not allow it, and admonished defendant for his use of dilatory tactics, stating:

“You know Mr. Brody is a very competent and very trained lawyer around this court, and I believe you chose him to come in as co-counsel for the trial, and I was advised at the time even by Mr. Wexler when he appeared here, and Mr. Brody was going to be the trial counsel, and it was with that understanding that I gave the continuance on the date that I did on April 30th, 1980, and I believe that they’re just going nowhere.
* * *
Now, one of the conditions of your being out on bail is that you cooperate with the Court in getting this case to trial, and it’s been out quite a lengthy time here.”

The trial court then ordered commencement of jury selection, at which time defendant waived his right to a jury trial. Because of questions raised by defendant’s waiver, trial was continued to December 3,1980. In granting the continuance, the court stated:

“And unless this defendant has some other attorney from now until that time who can get prepared and be ready in the event Mr. Wexler cannot — it’s your choice. You certainly can bring in any lawyer you want to try the case, but he’s got from now until that time to be prepared in case Mr. Wexler cannot be prepared.”

The record reveals no attempt by defendant to retain new counsel, and on December 3,1980, Brody appeared on defendant’s behalf.

In support of its position that defendant was not deprived of counsel of his choice, the State relies on People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767. While we find Spurlark to be highly persuasive, we find the recent Illinois Supreme Court case, People v. Williams (1982), 92 Ill. 2d 109, to be dispositive of the issue. In Williams, as in the pending case, it took over a year and a half for the case to proceed from complaint stage to trial, during which time defendant was free on bail. At least a year of that delay was directly attributable to defendant’s continuous changing of attorneys. Trial was finally set for December 3, 1979, then continued twice more on defendant’s motions that he had still not retained counsel. On January 16, 1980, defendant again appeared in court without counsel and asked for yet another continuance. The court, however, denied the motion and demanded that the trial proceed with defendant appearing pro se. On appeal, the appellate court held that the defendant’s right to counsel had been violated. The Illinois Supreme Court reversed, stating:

“Discretion was not abused here. Judicial patience need not be infinite. The trial court could quite reasonably conclude that the defendant was seeking to postpone trial. [W]here a defendant who is financially able to engage counsel has been instructed to do so *** and does not show reasonable cause why he was unable to secure representation, the court may treat such a failure as a waiver of the right to counsel and require him to proceed with the hearing.” 92 Ill. 2d 109, 116-18.

In Williams, the deprivation of counsel was clearly more egregious than in the pending case, yet the supreme court found there was no abuse of judicial discretion. Here, defendant was represented by competent, experienced counsel of his choice. Moreover, defendant had been adequately and timely advised by the trial court to find substitute counsel if he so desired. We find his subsequent failure to do so constitutes an explicit acceptance of Brody as his counsel of choice. Therefore, we hold that the trial court could have reasonably found that the purpose of defendant’s request to discharge Brody on the day of trial was to obtain further delay and thereby hamper the orderly process of law.

IV

Next, defendant argues that he was unconstitutionally twice put in jeopardy when, after he waived trial by jury, the court commenced the process of jury selection, then later dismissed the prospective jurors and proceeded with a bench trial.

It is axiomatic that the protections against double jeopardy are triggered only after an individual has been subjected to the hazards of trial and possible conviction. In criminal jury trials, jeopardy is said to attach when a jury is impaneled and sworn. In a criminal bench trial, the point of attachment is when the first witness is sworn and the court begins to hear evidence. (People v. Shields (1979), 76 Ill. 2d 543, 546-47, 394 N.E.2d 1161, cert. denied (1980), 445 U.S. 917, 63 L. Ed. 2d 602, 100 S. Ct. 1279; Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a)(3).) In the pending case, the parties concur that the prospective jurors were dismissed before a- jury was impaneled. Defendant, however, asserts that where a defendant is exposed to “the emotional trauma of jury selection,” without good cause, the principles of double jeopardy apply. This argument has no basis in law or fact. In the instant case, at the time the prospective jurors were dismissed, defendant had not yet been placed in jeopardy of conviction as defined by case law. Therefore, we find his double jeopardy claim to be without merit.

V

In addition, defendant maintains that count 5 of the indictment charging him with aggravated kidnaping (111. Rev. Stat. 1981, ch. 38, par. 10 — 2) was insufficient and, thus, invalid, because it failed to explain with specificity the asportation element of the offense.

The Illinois Criminal Code states that,' in order for a criminal charge to be effective, it must (1) be in writing, (2) name the offense, (3) cite the pertinent statutory provision, (4) set forth the nature and elements of the offense, (5) state the date and county of the offense, (6) state the name of accused or, if the name is unknown, describe the accused in such a manner that he can be identified with reasonable certainty. (Ill. Rev. Stat. 1981, ch. 38, par. Ill — 3(a)(1), (2), (3), (4), (5).) Furthermore, Illinois case law requires that an indictment be specific enough to inform the accused of the offense with which he is charged, to enable the accused to prepare a defense, and to permit him to plead the judgment as a bar to future proceedings for the offense. People v. Sims (1982), 108 Ill. App. 3d 648, 439 N.E.2d 518.

In the pending case, the indictment by which defendant was charged with aggravated kidnaping alleged that:

“*** on August 3, 1979, at and within [Cook] County Daniel Kleba otherwise called Daniel J. Kleba committed the offense of aggravated kidnaping in that he, knowingly by force and threat of imminent force, carried *** [complainant] from one place to the other with the intent to secretly confine *** [complainant] against her will and committed a felony, to wit: robbery, upon her, in violation of Chapter 38, Section 10 — 2, of the Illinois Revised Statute 1977, as amended ***.”

We believe that count 5 was specific enough to inform defendant of the offense with which he was charged, enabled him to prepare a defense, and will allow him to plead the judgment as a bar to future proceedings for the offense. For these reasons, plus the fact that defendant failed to show that the omission complained of prejudiced him in any way, we find that the trial court did not err in denying the motion to dismiss count 5 of the indictment.

VI

Next, defendant contends that the extended-term provision of section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1)) creates a disparity based upon an irrational classification, i.e., situs of the prior conviction, and, therefore, violates the equal protection and due process clauses of the fourteenth amendment to the United States Constitution and article I, section 2 of the Illinois Constitution. In support of his contention, defendant attempts to compare the habitual criminal provisions (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1) with the extended-term provision and argues that when the legislature recently amended the habitual criminal provisions to include jurisdictions other than Illinois, it indirectly admitted that all statutes with situs distinctions were irrational.

In response, the State relies on People v. Bowman (1981), 96 Ill. App. 3d 136, 420 N.E.2d 1132, as support for its position that there is a rational basis for the situs distinctions, i.e., uniformity of application of the law; thus, the extended-term provision is constitutional. We agree with the State and find Bowman dispositive of the issue. In upholding the constitutionality of the extended-term provision, the Bowman court stated:

“Because of the distinct and comprehensive scheme of classification of felonies in Illinois [citation], the extended term of imprisonment provision is susceptible of uniform application. However, in other States, offenses are either classified differently or not at all, and offenses with similar or identical names often consist of different elements. Thus, it would be impossible to ascertain whether a particular felony in another State was of the same or greater class as the felony for which a defendant is being sentenced in Illinois. As a consequence, it would be impossible to uniformly apply the extended-term provision to defendants with prior convictions in other States. Moreover, the State of Illinois has no direct interest in deterring the commission of crimes in other States; therefore, the distinction serves a valid purpose by excluding prior convictions in such other States.” 96 Ill. App. 3d 136, 147-48.

In accord with Bowman, we conclude that the limitation of the extended-term provision to persons with prior convictions in Ilinois is constitutionally justified by the need for uniformity of application. Therefore, the extended-term sentences imposed by the trial court are affirmed.

VII

Defendant next argues that imposition of separate sentences for attempted rape, attempted deviate sexual assault, robbery and aggravated kidnaping was improper on the ground that any act which was the basis for any one of the convictions was also the act upon which the other convictions were founded.

The rule regarding multiple convictions and concurrent sentences is set forth in People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, as follows:

“Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.”

In the pending case, we find that each of defendant’s convictions which we have affirmed was based on a separate physical act, thereby satisfying the King test. Therefore, we uphold the concurrent sentences imposed by the trial court for those convictions we have previously affirmed.

VIII

Finally, defendant contends that because the court’s authority to refund defendant’s bail deposit is confined to that situation where defendant specifically requests the court to do so, the court violated section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) when, over defendant’s objection, the court ordered the refund of defendant’s bail deposit to his attorney of record, Bernard Brody.

In response, the State asserts that defendant had executed a valid assignment of his bail to Wexler and Brody before trial, therefore, when Brody fulfilled his contractual obligation to defendant by representing him at trial, the court properly refunded defendant’s bail to Brody after trial.

It is well-established under Illinois law that when a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred and stands in the shoes of the assignor. Moreover, it is common practice for a criminal defendant to assign his bail bond deposit, less costs, to his attorney to assure the attorney’s collection of fees. (People v. Wurster (1981), 97 Ill. App. 3d 104, 106, 422 N.E.2d 650.) In the instant case, defendant signed a bail bond slip which operated to assign , the bail refund to his attorneys, Wexler and Brody, in exchange for their representation of him at trial. The record indicates that Wexler was ill throughout the trial and that Brody alone fulfilled his contractual obligation to defendant. For this court to allow defendant to repudiate his legal assignment of the bail bond would be to sanction a blatant attempt on defendant’s part to breach a fully executed contract with Brody. (See People v. Horton (1973), 9 Ill. App. 3d 97, 100, 291 N.E.2d 844.) The fact that defendant is not pleased with the outcome of the trial is not sufficient ground for revocation of the valid assignment. Furthermore, the first paragraph of section 110 — 7(f) states that upon performance of the bail bond, the balance shall be returned to the defendant “unless that court orders otherwise.” The subsequent paragraph of that same section authorizes the court, in its own discretion, to use the bail deposit to pay defendant’s attorney of record if defendant so requests. We interpret the second paragraph as one of explanation, not one of limitation. For these reasons, we hold that the trial court’s decision to refund the bail bond to Brody was a reasonable exercise of sound discretion and, therefore, affirm the refund.

For the foregoing reasons, the judgment of the circuit court of Cook County as to defendant’s conviction on the charges of attempted rape, robbery and aggravated kidnaping is affirmed and the judgment as to the conviction for the offense of attempted deviate sexual assault is reversed.

Affirmed in part; reversed in part.

LORENZ and MEJDA, JJ., concur.

      The charge for unlawful restraint merged with the attempted rape conviction as a lesser-included offense. (People v. McCann (1979), 76 Ill. App. 3d 184, 187, 394 N.E.2d 1055.)

      In Housby, defendant contended that the jury instructions regarding the offense of burglary mandated the jury to draw an inference which deprived him of due process and compelled a verdict of guilty. The jury instructions were as follows: “If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”

      Application of the Housby holding has been confined to those cases involving burglary or retail theft.

      The criminal offense of deviate sexual conduct is defined as: “ ‘Deviate sexual conduct,’ for the purpose of this Article, means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another.” Ill. Rev. Stat. 1981, ch. 38, par. 11 — 2.

      As discussed in section IB of this opinion, defendant’s conviction for attempted deviate sexual assault is reversed by this court, and, thus, is not relevant to this issue.


author: JUSTICE ME JDA

text:
      In re COMMITMENT OF MARK RISNER.—(The People of the State of Illinois, Petitioner-Appellee, v. Mark Risner, Respondent-Appellant.)
    First District (5th Division)
    No. 81—2831
    Opinion filed November 5, 1982.
    Mark J. Heyrman, of Mandel Legal Aid Clinic, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David Shapiro, and Lu Ann Rodi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ME JDA

delivered the opinion of the court:

This is an appeal from an order of the trial court denying respondent’s conditional release from Grasmere Residential Home. We reverse.

Respondent raises three issues on appeal: (1) whether the State proved by clear and convincing evidence that the proposed release plan did not provide reasonable assurances for respondent’s further treatment and for the safety of respondent and others; (2) whether the trial court improperly placed the burden of proof on respondent; and (3) whether the trial court erred in failing to require the State to present proof beyond a reasonable doubt that respondent’s release was inappropriate.

On January 3, 1979, respondent Mark Risner was found not guilty of murder by reason of insanity and was committed to the custody of the Illinois Department of Mental Health and Developmental Disabilities (the Department) pursuant to section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4). The circuit court entered an order on November 6, 1980, conditionally releasing respondent from the Department’s custody and requiring him to reside at Grasmere Residential Home and to continue to receive psychotherapy and medication from the Isaac Ray Center, an outpatient psychiatric clinic of Rush-Presbyterian-St. Luke’s Medical Center. Respondent began living at Grasmere in January 1981.

On August 19, 1981, the facility director of Grasmere notified the circuit court of her determination that respondent was no longer in need of the structured, supervised setting provided by Grasmere, recommending that he be conditionally discharged into the community, as provided by section 5 — 2—4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(d)). The proposed release plan provided that respondent would continue psychiatric treatment at the Isaac Ray Center.

The hearing was held on various dates in October and November 1981 before the trial judge who had ordered respondent’s conditional release from the Department’s custody and subsequent residence at Grasmere. The State’s only witness at the hearing was Dr. Gilbert Bogen, staff psychiatrist at the Cook County Psychiatric Institute. Dr. Bogen testified that he examined respondent on October 21, 1981, pursuant to the court’s October 13, 1981, order. On direct examination he stated that although he was aware that respondent had earlier been diagnosed as schizophrenic paranoid type, during his October 21 examination he found no evidence of mental illness. He testified further that he found no evidence that respondent would endanger himself or others if released to the community and that respondent’s continued receipt of antipsychotic medicine and psychotherapy and the Isaac Ray Center’s periodic reports to the court provided reasonable assurances that his remission was maintained. Dr. Bogen concluded that respondent could be released from Grasmere to live in the community as long as he remained subject to court supervision. He based his opinion on (1) a July 1981 letter from Dr. Kelly, respondent’s psychiatrist, which stated that respondent was in full remission, (2) comments from the Grasmere staff indicating that respondent exhibited no psychotic or depressive symptoms or behavior problems, (3) the August 19, 1981, letter from the facility director of Grasmere recommending respondent’s release and continued outpatient treatment, (4) his own examination of respondent which uncovered no evidence of mental illness, (5) the fact that respondent was employed and able to socialize, and (6) respondent’s receipt of antipsychotic medication. Dr. Bogen admitted that if respondent stopped receiving antipsychotic medication it was possible that he would again exhibit symptoms of mental illness. He noted, however, that individuals who stop taking such medicine often show signs such as sleeplessness and withdrawal which indicate the recurrence of a psychosis. On cross-examination Dr. Bogen reiterated that the requirements that respondent receive regular therapy and medication from the Isaac Ray Center and that the Center report to the court provided reasonable assurances for respondent’s continued treatment and for the safety of respondent and the public.

The State then rested, whereupon respondent moved for judgment, arguing that the State had not met its burden of proof because it failed to show that the release plan did not provide reasonable assurances for the safety of respondent and others and for his continuation in treatment. The court denied respondent’s motion.

Four witnesses testified on respondent’s behalf. Dr. Jonathan Kelly, a licensed psychiatrist employed by the Isaac Ray Center and the Cook County Psychiatric Institute, stated that he had treated respondent continuously since July 1979. At the time of the hearing he was seeing respondent weekly in outpatient sessions lasting 30 to 45 minutes. Although Dr. Kelly diagnosed respondent’s mental state as paranoid schizophrenic, he testified that it was in remission and that he had observed no psychotic symptoms in the two years he had treated respondent. It was Dr. Kelly’s opinion that respondent could handle the stress he would encounter while living outside Grasmere without a recurrence of psychosis. Dr. Kelly testified further that respondent was receiving medication, that he had complied with the terms of his release to Grasmere from the Chicago-Read Mental Health Center, that respondent intended to live with his girlfriend, Lynn Pitkins, upon his release from Grasmere and that medication and treatment would continue after his release. Dr. Kelly concluded that the release plan offered reasonable assurances of continued treatment and rehabilitation of respondent and of the safety of respondent and others.

On cross-examination Dr. Kelly again testified that in his opinion respondent would be able to handle the stress associated with moving out of the structured environment of Grasmere and into the community. He based his opinion on the fact that respondent was able to handle the transition from the inpatient setting of Chicago-Read Mental Health Center to Grasmere and to seek and maintain employment without exhibiting psychotic symptoms. Dr. Kelly stated that even though respondent may be under increased stress after leaving Grasmere, continuation of the antipsychotic medication renders the chance of a recurrence of psychotic symptoms minimal.

Lynn Pitkins met respondent at Chicago-Read Mental Health Center in January 1981 while she was a voluntary patient there. She testified that she knows of respondent’s background, that they spend most of their time together, and that they plan to live together after respondent’s release from Grasmere. At the time of the hearing Pitkins was undergoing monthly therapy sessions with Dr. Kodish.

Nancy Gardner, intake coordinator and former program coordinator at Grasmere, testified that to her knowledge respondent had never violated any rule or regulation of Grasmere. She stated that at the time of the hearing respondent was no longer participating in the activities at Grasmere because they were designed for residents who need help in structuring their time, that respondent does not need this assistance, and that he works during the day and spends his leisure time away from Grasmere, generally returning to the facility only to sleep and do laundry.

Respondent testified regarding the jobs he had held since his release from Chicago-Read in January 1981. He worked for a short time at a clerical job attaching labels and he later delivered pizza. At the time of the hearing he had been working at a fast food restaurant for about six months and one month earlier had been transferred to a different location and given a raise. Comparing the stress he presently felt with the stress he felt at the time of the killing for which he was acquitted, respondent stated that although he had not been in a sheltered environment since his release from Chicago-Read, he no longer experienced the kind of stress he had had at the earlier time. Respondent expressed his intent to continue therapy and medication with Dr. Kelly after his release from Grasmere.

Following the presentation of evidence, the trial court stated that before ordering respondent’s discharge it must receive a letter from Dr. Kodish indicating his understanding of the “condition” of both respondent and Pitkins and giving his opinion regarding whether or not their living together would be appropriate for each of them. The court stated that it would not release respondent from Grasmere unless it was convinced that the release would be beneficial for both respondent and Pitkins.

Pitkins would not consent to having her psychiatrist present a report. Following closing argument, the trial court denied the conditional release of respondent.

Opinion

Respondent has sought a conditional release from the Grasmere Residental Home pursuant to section 5 — 2—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4.) That section, which governs the proceedings for the commitment, discharge or conditional discharge of a defendant following acquittal of a felony by reason of insanity, was amended by Public Act No. 81— 1497, effective September 19, 1980. Subsection (1) of the 1980 amendment specifically provides that it shall apply “to all persons who have been found not guilty by reason of insanity and who are presently committed to the Department of Mental Health and Developmental Disabilities-.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(1).) Because respondent is an individual within the scope of persons to whom the amendment is applicable, this appeal is governed by section 5 — 2—4 as it existed after the 1980 amendment and at the time of the hearing. People v. Gann (1981), 94 Ill. App. 3d 1100, 419 N.E.2d 613.

Respondent first contends that the State failed to prove by clear and convincing evidence that the proposed release plan did not provide reasonable assurances for respondent’s further treatment and for the safety of respondent and others. The applicable section of the statute provides that the findings of the court shall be established by clear and convincing evidence and that the burden of proof rests with the State when a hearing is held to review the determination of the facility director that the defendant should be discharged or conditionally released. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(g); see People v. Nunn (1982), 108 Ill. App. 3d 169, 438 N.E.2d 1342; People v. Czyz (1980), 92 Ill. App. 3d 21, 416 N.E.2d 1; People v. Blumenshine (1979), 72 Ill. App. 3d 949, 391 N.E.2d 232.) Conditional release is defined as “the release from the custody of either the Department of Mental Health and Developmental Disabilities or the custody of the court of a person who has been found not guilty by reason of insanity under such conditions as the court may impose which reasonably assure the defendant’s satisfactory progress in treatment or habilitation and the safety of the defendant and others.” Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4(a)(l)(D).

At the hearing the State’s only witness, Dr. Bogen, testified that during his examination he found no evidence that respondent is mentally ill or that he would endanger himself or others if released to the community. Dr. Bogen concluded that respondent’s continued therapy at the Isaac Ray Center and receipt of antipsychotic medication provided reasonable assurances for his continued treatment and for his safety and the safety of the public. Dr. Bogen admitted that it was possible that respondent would again exhibit symptoms of mental illness if he stopped taking the prescribed antipsychotic medication. He concluded, however, that respondent’s testimony and behavior indicated, to a reasonable degree of certainty, that he would continue the medication.

Although the burden rests on the State to establish, by clear and convincing evidence, that respondent’s release does not meet the statutory standard, the State presented no evidence tending to show that the release was inappropriate. On the contrary, we note that all testimony before the trial court evidenced respondent’s progress since his commitment to the custody of the Department and his compliance with the treatment program. The State’s witness, respondent’s psychiatrist, and the professional staff of Grasmere concurred in the facility director’s recommendation that respondent be conditionally released. Based on the record before us, there can be no finding supported by clear and convincing evidence that the proposed release plan did not provide reasonable assurances for respondent’s further treatment and for the safety of others.

Although the above conclusion is dispositive of this appeal, we will briefly examine the remaining issues raised by respondent.

We agree that the trial court erroneously placed the burden of proof on respondent by requiring him to produce a letter of approval from Pitkins’ psychiatrist, Dr. Kodish. The statute provides specifically that where, as in the instant case, the release plan is proposed by the facility director, the State bears the burden of proving the release plan inappropriate. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2— 4(g).) In the instant case, placing the burden on respondent to prove that the release plan met the statutory standard was an improper assignment of the burden of proof. Where the facility director proposes conditional release of a defendant found not guilty by reason of insanity, the State must prove that the proposed release plan does not meet the statutory standard. The respondent is not required to prove that the release is appropriate.

Although the State argues that the court’s request of a letter from Dr. Kodish was merely an inquiry regarding the safety of respondent and others (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(aXl)(D)) and was a permissible consideration of evidence in addition to expert testimony (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273), it is clear that the court conditioned respondent’s release on its receipt of a letter from Dr. Kodish approving respondent’s living arrangements. We conclude, therefore, that the trial court improperly placed the burden of proof on respondent.

Finally, respondent contends that the trial court erred in failing to require the State to present proof beyond a reasonable doubt that the release plan was inappropriate. As previously stated, under the statute, proof by clear and convincing evidence is the standard used in considering the discharge of persons who were previously found not guilty by reason of insanity. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(g); see In re Stephenson; People v. Gann (1981), 94 Ill. App. 3d 1100, 419 N.E.2d 613.) The trial court applied the correct standard.

For the foregoing reasons, the order of the circuit court is reversed.

Reversed.

SULLIVAN, RJ., and WILSON, J., concur.