author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LEE DIXON, Defendant-Appellant.
    First District (1st Division)
    No. 80-516
    Opinion filed November 30, 1981.

      Ralph Ruebner and Donald B. Mackay, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and John Ashenden, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Anthony Lee Dixon was convicted in a bench trial of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1)) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)) and was sentenced to 40 years on the murder conviction and 7 years on the burglary conviction. Both sentences were to be served concurrently. On appeal, defendant argues that his confession and the physical evidence recovered must be suppressed as the fruit of a custodial interrogation which was not preceded by Miranda warnings. Defendant also argues that the classification of burglary as a forcible felony is arbitrary and unreasonable and, therefore, violative of his equal protection and due process rights.

We affirm.

The record of the hearing on defendant’s motion to suppress reveals that on October 3, 1978, a 32-year-old black male was found strangled in his apartment. A subsequent investigation revealed that the deceased’s apartment had been burglarized. Eugene Woods, a neighbor and long time friend of the deceased, had seen a 5'9", 135-140 pound black male who was about 22 years of age, wearing blue jeans and a two-tone blue denim hat, carrying furniture from the deceased’s apartment to a taxi at about 4 p.m. on the day of the murder. According to Woods, this man frequented Bughouse Square, a park located at Dearborn and Delaware Streets in Chicago. On October 10, 1978, Woods contacted Chicago Police Officer Kaczka and his partner and informed them that the person whom he had observed on the day of the murder was in the park at Dearborn and Delaware. Kaczka and his partner met Woods at 901 North Clark Street shortly thereafter and Woods pointed out defendant, who was located a short distance away, as the man whom he had seen with the deceased’s furniture. At this time defendant was talking with Officers Smith and McHugh. Kaczka went over to where the three stood and asked Smith if defendant was under arrest. When Smith replied that he was not under arrest, Kaczka informed Smith that defendant was a suspect in a recent homicide and instructed him to transport defendant to Area 6 homicide headquarters.

Testimony concerning the events that transpired during the ride to the station and afterwards at the station was introduced at the hearings on defendant’s motion to quash the arrest and suppress the physical evidence and to suppress defendant’s confession. Officer Richard Smith testified for the State at the hearing on the motion to quash the arrest and suppress evidence. He testified that at 5 o’clock on October 10, 1978, he and his partner Officer McHugh were in Bughouse Square when they saw a black man approximately age 20-23, 5'7"-5'9", weighing 140 pounds, wearing blue jeans and a denim two-tone blue flop hat. He resembled a suspect wanted in a murder investigation of which Smith was aware. The suspect in the murder investigation was described as a 22-year-old black male, approximately 5'9", weighing 135 pounds, and wearing blue jeans and a multi-color blue flop cap who frequented the area near Bughouse Square. Smith testified that defendant matched both the physical and clothing description of the murder suspect. Moreover, when the officers approached defendant in their marked squad car he began walking away from them. At this time, the officers approached defendant and asked him for his name and address. Defendant gave his name and stated that he did not live in the area but lived on the south side. Smith then asked him why he was at Bughouse Square and defendant said that he had been at his girlfriend’s house. A question regarding his girlfriend’s address was objected to during the hearing on this motion and was again asked at trial. At that time, Smith responded that defendant gave his girlfriend’s address as 1358 N. Sedgwick. At the time this conversation occurred, Officer Smith testified that defendant was not under arrest. This conversation took place prior to the appearance of Officers Kaczka and Flood at Bughouse Square.

Smith further testified that while he and his partner were talking with the defendant at Bughouse Square two undercover homicide investigators, Officers Kaczka and Flood, appeared and asked him whether they were arresting defendant. Smith replied in the negative and explained that they were conducting a field investigation. Kaczka and Flood then informed him that defendant matched the description of a homicide suspect and asked Smith and his partner to transport him to Area 6 Homicide headquarters. Smith patted down defendant and placed him in his squad car.

Officer Thomas Kaczka testified that he had been assigned to investigate an October 2, 1978, strangulation death. He had been informed by Woods, who knew the deceased, that a black male in his early 20’s, 5'9", weighing 140 pounds and wearing a two-tone blue denim cap, had been seen carrying furniture to a waiting taxi on the day of the murder. According to Woods, he knew the furniture was the deceased’s because of his previous visits to his apartment. Woods also informed Kaczka that he had seen this same man on numerous occasions at Bughouse Square. Kaczka further testified that on October 10, 1978, he and his partner received a message indicating that Woods had seen the suspect at Bughouse Square. Woods’ message indicated that he would meet Kaczka and Flood at 901 North Clark Street. After picking up Woods, Kaczka and Flood parked their unmarked car near the park and Woods remained in the car. Kaczka and Flood approached defendant, who was conversing with two uniformed police officers. Kaczka and Flood asked Smith and his partner, who were in uniform, whether defendant was under arrest. Smith answered in the negative. Kaczka spoke with these officers and explained that a witness had observed defendant carrying furniture from a homicide victim’s apartment to a taxi. Smith explained that he and his partner also had been talking to defendant about a homicide investigation. Kaczka asked Smith to take defendant to Area 6 headquarters. Kaczka further testified that defendant was advised of his constitutional rights upon arriving at Area 6 headquarters.

Defendant then told both officers that he wanted to talk. A 20-minute discussion followed. Kaczka testified that after this conversation, the officer left to attempt to find a photograph of an individual mentioned by defendant. At 8 p.m. the officers returned and showed defendant photographs of accomplice James Anderson. Kaczka and Flood subsequently went to look for Anderson and, when they could not find him, proceeded to the apartment of defendant’s girlfriend on Sedgwick in Chicago. Upon arriving at her residence and being told that defendant was her former boyfriend, Kaczka and Flood observed dining room furniture which resembled the deceased’s furniture. The officers had a photograph which they had recovered from the deceased’s apartment which showed his dining room furniture. The girlfriend informed the officers that the furniture had been given to her as a gift by defendant. The officers informed the girlfriend the furniture was stolen property and had been taken incident to a homicide. She acknowledged that the furniture had been taken from the deceased and told the officers she would cooperate. She then allowed the police to enter her apartment and subsequently showed the officers cash given to her by defendant on October 3, 1978. Kaczka and Flood returned to police headquarters at midnight and, after again advising defendant of his Miranda warnings, showed defendant the furniture recovered from his girlfriend’s apartment. Defendant was again advised of his rights. Defendant understood these rights and told the officers he wanted to talk with them. A 20-minute conversation then took place. According to Kaczka, defendant was given food and a drink and allowed washroom privileges. Defendant signed his written statement at 3:30 a.m.

Officer Flood corroborated Kaczka’s testimony. He also explained that the crime lab transported the furniture found at Ms. Hale’s to Area 6 headquarters. Flood also testified that he advised defendant of his Miranda rights prior to transporting defendant to Area 6 headquarters by the other officers.

Assistant State’s Attorney Rebecca Davidson spoke to the defendant at 1 a.m. on October 11, 1978, concerning the deceased’s murder. She informed him that she was investigating the murder and was an assistant State’s Attorney, not defendant’s lawyer. After she gave him his Miranda warnings, defendant told her he understood the warnings and wanted to talk about his version of the murder. This conversation lasted approximately 15 minutes. At approximately 3 a.m., a court reporter arrived and after receiving his Miranda warnings again, defendant gave a statement which he later read, edited and initialed. According to Davidson, defendant was never promised anything for his statement nor was he physically coerced.

Defendant testified that he had lived with his brother on the south side of Chicago for several weeks prior to his arrest. He stated that he had signed a consent form to search this south side residence. However, he later testified that he only told police where he had stayed the previous night, not where he had been living on the south side. He admitted making a statement to the police. He also admitted on cross-examination that his girlfriend was the only person living at the Sedgwick address during October 1978. He stated that he had lived at the Sedgwick address for four months and has paid approximately one-half of the rent in the apartment during this time. However, the apartment was his girlfriend’s and the lease was in her name.

After hearing argument on the motion to quash the arrest and suppress the physical evidence received from his girlfriend’s apartment, the court found that Officer Smith and his partner had reasonable grounds to stop defendant based on the fact that he matched the description of the murder suspect and denied the motions. The court also ruled that the arrest by Officers Kaczka and Flood was proper because of Woods’ identification in light of defendant’s physical description. The court also ruled that defendant had no reasonable expectation of privacy in his girlfriend’s residence.

At the hearing on defendant’s motion to suppress defendant’s confession, the earlier testimony of Officer Smith, Assistant State’s Attorney Davidson and defendant was admitted by stipulation. Officer Kaczka and Flood’s testimony substantially duplicated their earlier testimony. After hearing this testimony the trial court denied the defendant’s motion to suppress the confession. The trial court found that the defendant was not coerced nor was he subjected to physical abuse or intimidation in giving the confession. Moreover, the court found that he had been fully advised of his rights. The court then ruled it was proper for Officer Smith to ask defendant his girlfriend’s address prior to being taken to the police station because defendant stated he had been visting his girlfriend’s house in the vicinity of Bughouse Square. The court rejected defendant’s testimony that he had given the police the Sedgwick address while being transported to police headquarters. However, the trial court noted that even if defendant did give Officer Smith the address while enroute, this question would have been within the scope of a proper preliminary investigation.

During trial on the matter, defendant presented no evidence, although argument was heard by the court on defendant’s motion for a directed verdict. The court found defendant guilty of murder and burglary and defendant was sentenced to concurrent terms of 40 years and 7 years on the murder and burglary findings, respectively. Defendant appeals.

Defendant argues that his confession and the evidence which was obtained from his girlfriend’s apartment should be suppressed because they were obtained unlawfully through custodial interrogation which was not preceded by Miranda warnings. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Defendant claims that, at the time that he furnished the police officers with the name and address of his girlfriend, he already had been taken into custody and that the officers did not advise defendant of his Miranda rights. He argues that the furniture of the deceased which was recovered from the apartment of defendant’s girlfriend was discovered only after defendant provided the officers with her name and address during the unlawful custodial interrogation and that, therefore, the evidence should be suppressed. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) Defendant further contends that his confession also is tainted because of the close causal connection between the statement obtained through unlawful custodial interrogation and his confession and the evidence recovered from his girlfriend’s apartment. Although defendant’s confession was preceded by Miranda warnings, he urges that this does not dissipate the taint which flows from the evidence discovered as a result of the unlawfully obtained statement. Additionally, defendant contends that the confession was not sufficiently an act of his free will due to the close temporal relationship between the display of the recovered furniture to defendant and his confession. (See Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) Finally, defendant argues that the testimony of his girlfriend concerning the circumstances under which she acquired the furniture should be suppressed because the name and address of his girlfriend was discovered through the unlawful custodial interrogation. See People v. Armstrong (1968), 41 Ill. 2d 390, 243 N.E.2d 825, cert. denied sub nom. Sumlin v. Illinois (1969), 394 U.S. 992, 22 L. Ed. 2d 768, 89 S. Ct. 1483.

The State contends that the information concerning defendant’s girlfriend was elicited during preliminary questioning in Bughouse Square by Officers McHugh and Smith. The State argues that this was not custodial interrogation and that, therefore, Miranda warnings were not required to be given to defendant. (Miranda v. Arizona; People v. Parks (1971), 48 Ill. 2d 232, 269 N.E.2d 484, cert. denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 692.) In response to defendant’s contention that his confession was not sufficiently an act of free will, the State argues that the trial judge specifically noted that there had been no evidence which indicated that defendant was subjected to either physical or mental coercion. The State urges that the record clearly establishes that defendant received Miranda warnings at numerous times during the evening prior to interrogation and that defendant repeatedly waived his rights. The State contends that, in fact, defendant wanted to discuss the circumstances surrounding the homicide. This, the State urges, is sufficient to purge any taint which defendant claims to exist. See Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

Miranda requires law enforcement officers to advise a suspect of his constitutional rights where the suspect is in custody and is being interrogated. Custodial interrogation involves “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) A situation which is noncustodial does not become a situation which is custodial simply because a court of review determines that the interrogation occurred in a coercive environment. (People v. Clark (1980), 84 Ill. App. 3d 637, 405 N.E.2d 1192.) In the instant case, the trial court heard testimony from defendant and various police officers involved in the questioning and arrest of defendant. Except for defendant’s testimony, there was no evidence which indicated that defendant revealed the name and address of his girlfriend after he was placed in the police car. The officers testified that the name and address was elicited during preliminary, on-the-scene questioning of defendant in Bughouse Square. The determination of whether defendant was, in effect, in custody is based upon an objective evaluation of the circumstances surrounding the interrogation (see People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870; People v. Clark), and, under the facts of this case, we do not believe that the trial court erred in finding that defendant was not in custody at the time he provided the officers with the name and address of his girlfriend. Accordingly, we hold that there was no unlawful custodial interrogation of defendant which would require suppression of the evidence seized from his girlfriend’s apartment and suppression of her testimony. In determining whether defendant’s confession was voluntary, the totality of the circumstances surrounding his confession must be evaluated. (People v. Higgins (1972), 50 Ill. 2d 221, 278 N.E.2d 68, cert. denied (1972), 409 U.S. 855, 34 L. Ed. 2d 100, 93 S. Ct. 195; People v. Starling (1978), 64 Ill. App. 3d 671, 381 N.E.2d 817.) In making its determination as to whether the confession of defendant was voluntary, the trial court does not have to be convinced beyond a reasonable doubt that the confession was voluntary. (See People v. Vinson (1978), 61 Ill. App. 3d 684, 378 N.E.2d 348.) In addition, the finding of the trial court that a statement made by defendant was voluntary will not be disturbed on appeal unless the reviewing court finds that the finding is against the manifest weight of the evidence. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) Our review of the arguments raised by defendant leads us to conclude that the finding of the trial court that defendant’s confession was voluntary is not against the manifest weight of the evidence. Accordingly, the trial court was correct in its refusal to suppress defendant’s confession.

Defendant next argues that the classification of burglary as a forcible felony is unreasonable and arbitrary and, therefore, constitutionally infirm under the due process and equal protection clause of the Federal and State constitutions. Neither of the parties have called to our attention any reference to the record in their respective briefs where this issue was presented to and ruled upon by the trial court. We have examined the record and have failed to ascertain if this issue was presented to the trial court and was ruled upon by the court. It appears that this issue has been raised for the first time on appeal and will not be considered. See People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871; People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988.

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

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN BEYAH, a/k/a Tony Downs, a/k/a Melvin Bethea, Defendant-Appellant.
    First District (5th Division)
    No. 80-1053
    Opinion filed November 30, 1981.
    Ralph Ruebner and William S. Clark, Jr., both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard T. Sikes, Jr., and Dianne O. Chaster, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was found guilty of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19 — 1) and sentenced to a term of 5 to 15 years. On appeal, his conviction was affirmed but remanded for resentencing. Subsequently, he was resentenced to a term of 4 to 15 years in the Department of Corrections. Defendant now appeals the sentence. The issue presented for review is whether defendant’s post-conviction refusal to cooperate with the police was improperly considered in aggravation upon sentencing. We affirm.

On July 12,1977, following the return of a jury verdict of guilty to the charge of burglary, defendant was sentenced to serve a minimum of 5 and a maximum of 15 years in the Illinois State Penitentiary. On appeal, this court affirmed the conviction but remanded the case for a new sentencing hearing because the trial court, in imposing sentence, had considered a prior conviction which the supreme court subsequently reversed. People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96.

On August 1, 1979, a second sentencing hearing was held before the same judge who had initially sentenced defendant. In aggravation the People referred the judge to his notes of the trial, the large amounts of money involved in the stolen negotiable instruments, the presentence report and defendant’s criminal record, which included a previous sentence of 2 to 6 years for burglary and a 90-day sentence for theft. The People requested that the sentence of 5 to 15 years be reimposed. The court then inquired and received responses as follows:

“THE COURT: Does the State have any information as to whether or not any additional stocks and bonds were ever recovered by the Chicago Police Department or Treasury Department since the defendant’s arrest or since he was sentenced to the penitentiary?
ASSISTANT STATE’S ATTORNEY: No, your Honor, I would indicate to the Court that the State has no further knowledge in relationship to any of the stocks and bonds being recovered.
THE COURT: Does the State have any information as to whether or not the defendant ever cooperated with the police in attempting to get those stocks and bonds since the date of his arrest?
ASSISTANT STATE’S ATTORNEY: No, your Honor, he never cooperated with the police in relationship to obtaining the other bearer bonds which are still to this day missing.”

Defense counsel did not object to this court-initiated inquiry.

The judge then offered as part of mitigation a letter he received from an assistant warden assigned to program services for the Illinois Department of Corrections.

In mitigation, defense counsel reviewed defendant’s age, marital status and past employment record, his prior enrollment in educational programs and institutions, and his work as a teacher’s aide and tutor. Defense counsel requested that defendant’s sentence be substantially reduced as defendant had shown during his period of incarceration after his conviction an attempt to better himself.

Defendant also addressed the court. He mentioned that he had received a new grant to attend school and also reviewed the numerous job offers he had received. The defendant asserted that he had changed and could now properly function in society.

Following the hearing in aggravation and mitigation, the court concluded:

° 0 “ I have reviewed your case in my case notes a number of times and in this case and the Appellate Court opinion. Based on your previous conviction by the jury, * * *, the charge of burglary, the Court will reduce your sentence modestly but it will affect your release time so that you will be available for release by the parole board at an earlier date.

The Court hereby sentences you to serve a term of four years to a maximum of fifteen years in the Illinois State Penitentiary.” Defendant appeals.

Opinion

Defendant asserts that the trial court erred in considering defendant’s alleged post-conviction refusal to cooperate with the police in recovering the proceeds of the burglary, as defendant had a right to remain silent after conviction.

The State counters first that defendant waived any alleged error by failing to object at the sentencing hearing to the comments concerning his alleged lack of cooperation; and, second, that there was no error in sentencing as the sentence was justified by competent evidence produced at the hearing, and there is no showing that the judge considered this information in determining sentence.

Provision for the guaranty against compulsory incrimination is contained in both the fifth amendment to the United States Constitution which states: 0 * * nor shall any person * ° * be compelled in any criminal case to be a witness against himself * * * applicable to the States through the due process clause of the fourteenth amendment (Malloy v. Hogan (1964), 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489) and the Constitution of Illinois, which provides: “No person shall be compelled in a criminal case to give evidence against himself” (Ill. Const. 1970, art. I, §10). These constitutional provisions have received the same general construction. (People ex rel. Hanrahan v. Power (1973), 54 Ill. 2d 154, 295 N.E.2d 472.) Generally, the privilege protects an accused from being compelled to testify against himself, or to otherwise provide the State with evidence of a testimonial or communicative nature. (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826; People ex rel. Bowman v. Woodward (1976), 63 Ill. 2d 382, 349 N.E.2d 57.) The privilege has been held to be available to a defendant whose conviction has not become final because no sentence has been imposed (People v. Hartley (1974), 22 Ill. App. 3d 108, 317 N.E.2d 57) or where there has been a conviction but a post-trial motion or an appeal pends (Hartley). Thus, a defendant could invoke the privilege and refuse to assist the police in locating the fruits of the crime, certainly evidence of a testimonial or communicative nature, when his conviction had not yet become final or when an appeal is pending.

The State asserts, however, that defendant waived any alleged error here by failing to object to the interchange between the prosecutor and the judge at the second sentencing hearing with regard to defendant’s failure to assist the police in finding the stolen bonds, citing Roberts v. United States (1980), 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358. There the district court considered defendant’s failure to assist the government in the investigation of on-going crimes as a factor in sentencing. The defendant did not object to this consideration. On appeal, defendant contended for the first time that the district court should not have considered his failure to cooperate in sentencing. The Court of Appeals vacated the special parole term but otherwise affirmed the judgment. (United States v. Roberts (D.C. Cir. 1979), 600 F.2d 815.) The United States Supreme Court also affirmed, stating that although defendant’s fifth amendment argument would have merited serious consideration if presented to the district court, the fifth amendment was not self-executing. (445 U.S. 552, 559, 63 L. Ed. 2d 622, 629-30, 100 S. Ct. 1358, 1363-64.) Defendant’s failure to assert the privilege in the district court constituted a waiver. 445 U.S. 552, 560, 63 L. Ed. 2d 622, 630, 100 S. Ct. 1358, 1364.

The record here clearly reveals that defendant failed to object to the allegedly erroneous interchange between the court and the Assistant State’s Attorney at the second sentencing hearing. Nor do we accept defendant’s assertion during oral argument before this court that defendant’s objection to a similar interchange between the court and the Assistant State’s Attorney at the first sentencing hearing preserved the alleged error committed at the second. A review of the record shows that the objection raised at the first sentencing hearing did not assert the privilege but was a general objection to the materiality and relevancy of the failure to cooperate. Accordingly, applying the rationale of Roberts v. United States, we conclude that defendant waived any alleged error at the second sentencing hearing in the trial court’s alleged consideration of his post-conviction refusal to cooperate with the police in recovering the proceeds of the burglary.

Further, even if the issue had not been waived, a review of the record convinces us that no error was committed in sentencing.

In a hearing in mitigation and aggravation, it is presumed that the trial court disregarded any incompetent evidence. (People v. Flynn (1974), 23 Ill. App. 3d 730, 320 N.E.2d 138.) Therefore, the mere inclusion of improper factors in evidence during a sentencing hearing does not warrant relief absent an affirmative indication in the record that the court did consider the incompetent evidence in sentencing. People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914.

In the instant case the court, after noting that he had placed some reliance previously in sentencing on the reversed conviction, stated he had reviewed the case, his notes and the appellate court opinion (which did not mandate a sentence reduction). The court then reduced defendant’s sentence. This reduction in sentence will enable defendant to be eligible for an earlier parole release.

Thus, the only factor in the record which might indicate that the court relied on defendant’s lack of assistance to the police to defendant’s detriment in sentencing was that the court itself initiated the inquiry. However, the mere fact that a trial judge, before imposing sentencing, is aware of certain inadmissible facts does not automatically insure reversal of that sentence. People v. Gaines (1974), 21 Ill. App. 3d 839, 316 N.E.2d 14, citing with approval People v. Wilson (1973), 11 Ill. App. 3d 693, 297 N.E.2d 277.

We do not believe the record before us indicates such a clear abuse of discretion by the trial court to warrant a vacation of the sentence imposed. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Accordingly, for the reasons cited herein, the sentence imposed by the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE WILSON

text:
    BARRY MOGUL, Plaintiff-Appellant, v. KENNETH TUCKER, Defendant-Appellee.
    First District (5th Division)
    No. 80-1239
    Opinion filed November 30, 1981.
    Rehearing denied January 11, 1982.

      Feiwell, Galper & Lasky, Ltd., of Chicago (Bernard L. Rivkin, of counsel), for appellant.
    Friedman & Koven, of Chicago (Paul Homer and Lawrence M. Templer, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff filed a complaint for an accounting and for specific performance of an agreement under which he claims a 25% interest in a shopping center project. The trial court granted defendant’s motion to dismiss the action as being barred by laches. The sole issue raised on appeal is whether the laches defense was properly applied under the circumstances of this case. We reverse and remand.

The facts, contained in the complaint and parties’ affidavits, are undisputed and may be stated briefly. On October 15, 1974, plaintiff, defendant, Roy Gottlieb, and Alan Inbinder, as general partners, entered into a limited partnership agreement forming Kenroy Ventures, Ltd. One purpose of the partnership was to acquire real estate for investment and development. Concurrent with this agreement, the general partners executed a second agreement which provided a method by which the individuals could participate in the investment opportunities tendered to any one of them. In pertinent part, this agreement provided as follows:

“1. Without affecting any obligation imposed on a party hereto by reason of any other agreement or by operation of law, should an opportunity for investment in a real estate transaction be tendered to one of the parties hereto (‘Offeror’), such opportunity shall be made available to the other parties hereto unless the Offeror elects to make such opportunity available to Kenroy Ventures, Ltd., or Kenroy, Inc., (‘Kenroy’); providing, if the Partnership or KENROY rejects the opportunity, the Offeror shall then tender the same to the other parties hereto, and providing further, if the Offeror is MOGUL, only 70% of the opportunity need be tendered in accordance with the provisions hereof. All tenders shall be made within a reasonable time, depending upon the circumstances then involved.
2. Should a party hereto desire to take advantage of the tender, he shall be entitled to do so on the same basis as he participates in the Partnership, that is, an interest of 30% to Gottlieb, 30% to TUCKER, 30% to Inbinder and 10% to MOGUL. If one or more parties hereto decline the opportunity, the interest shall be reallocated among participants in the ratio which the interest of each bears to the aggregate interests of participants.”

In early March 1977, defendant obtained the opportunity to acquire vacant land in Glenview, Illinois, for development as a shopping center. He offered participation in the venture to Kenroy Ventures, Ltd., Kenroy, Inc., Gottlieb, and Inbinder, all of whom declined the opportunity. By the terms of paragraph 2 of the agreement, therefore, plaintiff became entitled to acquire a 25% interest in the investment opportunity. The offer was never tendered to plaintiff, however, and plaintiff first learned of the matter on March 18,1977. Plaintiff made repeated attempts to assert his participation right, but was rebuffed by defendant. On May 29, 1979, 26 months after learning of the investment opportunity, plaintiff filed his complaint.

Defendant moved the trial court to dismiss the action on the grounds of laches and certain other defenses which are no longer at issue in this case. In support of his motion, defendant filed his affidavit, which stated that the shopping center, known as Plaza Del Prado, was begun on March 1, 1977, when he and 23 others formed a limited partnership. Defendant was in charge of arranging and overseeing the financing, construction, and operation of the project. As a general partner defendant was responsible for over $6,000,000. In addition, he personally guaranteed more than $7,000,000. Defendant further stated in his affidavit that he saw plaintiff daily during the 2-year period and that plaintiff had expressed his intention to file suit to enforce his rights as early as the summer of 1977. Defendant told him to do so if he desired.

In opposition to defendant’s motion and memorandum, plaintiff filed his own affidavit and response. In the affidavit, plaintiff stated that he had initially demanded participation in the venture approximately March 18,1977, when he first learned of defendant’s actions. Further, on April 8, 1977, and April 26, 1977, plaintiff had sent defendant memoranda in which he repeated his request to be allowed to participate in the investment. In response to the April 8 memorandum, defendant had written,

“I’ve gone through this with you more than once — and refuse to be harassed on any ongoing basis — This may have been handled poorly but I consider a majority agreement between the major stockholders sufficient to allow me to proceed in the fashion I feel is right ” ”

Plaintiff further averred that after making repeated attempts to resolve the controversy and obtain his participation interest, he resigned from Kenroy, Inc., in 1979 and shortly thereafter filed suit. The reason plaintiff gave for not suing earlier was that he feared reprisals from his employer, Kenroy, Inc., whose principal operating officers and major shareholders were defendant and Gottlieb. Further, he had hoped to obtain an amicable resolution of the controversy through his discussions with the other general partners.

Following a hearing on defendant’s motion to dismiss the action, the trial court agreed that laches should be imposed as a bar to plantiff’s action. In response to plaintiff’s counsel’s argument that defendant was not prejudiced by the delay, the court reasoned:

“You now have a * * ° completed development that is completely in operation now and is ongoing, as compared against twenty-six months ago you had a[n] embryonic situation. That is such a change I think it requires this relief.”

The trial court also denied plaintiff’s subsequent motion for reconsideration.

Opinion

The defense of laches is “not a mere matter of time but principally a question of the inequity of permitting the claim to be enforced * * (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341, 344.) What facts combine to constitute laches is determined in light of the particular circumstances of each case, but the following factors have been approved by the Illinois Supreme Court: (1) defendant’s conduct that gives rise to plaintiff’s claim; (2) plaintiff’s delay in asserting his or her rights; (3) defendant’s lack of knowledge or notice that plaintiff would assert the claim or right; (4) injury or prejudice to defendant if the claim is held not to be barred. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344. Accord, Slatin’s Properties, Inc. v. Hassler (1972), 53 Ill. 2d 325, 291 N.E.2d 641.) For certain types of claims, such as those involving oil and mineral rights, “more than ordinary promptness” is required because of their “speculative or fluctuating character.” Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344 (laches would apply to bar plaintiff’s suit to quiet title against purchaser of tax deed where purchaser had no notice of plaintiff’s claim, was not guilty of any deception, and had paid taxes for 20 consecutive years under color of title).

In the pending case, defendant and the trial court focused almost exclusively on the fourth element set out in Pyle v. Ferrell — whether plaintiff’s delay in filing suit so prejudiced defendant that it would be inequitable to allow the action to proceed. In so doing, we believe, they overlooked two other major considerations: defendant’s initial alleged breach of contract and the repeated notices that plaintiff intended to assert his rights. Defendant admits he was aware from the beginning of plaintiff’s desire to obtain his share of the investment opportunity pursuant to paragraph 2 of the October 15,1974, agreement. Apparently, defendant believes that by adamantly refusing to honor the agreement and then telling plaintiff to go ahead and sue him he somehow relieves himself of further responsibility in the matter, at least under the circumstance that the venture had become a highly profitable enterprise at the time the suit was filed. For support, defendant relies on cases from other jurisdictions, which purportedly adopt a “doctrine of speculative delay.” Pursuant to this concept, an action should be barred where the subject of the claim is speculative and subject to rapid fluctuations in value and the claimant delays asserting his interest until the risk has passed. We believe that this “doctrine” is nothing more than the recognition in Pyle v. Ferrell that “more than ordinary promptness” may be required in prosecuting certain types of claims. Thus, the reasonableness of the claimant’s delay in asserting a claim in a particular case may partly depend on the nature of the interest being s'ought. None of the cases defendant relied upon, however, are factually analogous to the pending case. For example, in Duncan v. Colorado Investment & Realty Co. (1947), 116 Colo. 12, 178 P.2d 428, a lawyer conveyed a quit-claim deed, as payment of his debt, to his creditor realty company in 1922, yet waited until 1944 to file suit. The basis of his action was to have his quit-claim deed (which contained an 11-month repurchase option) adjudged a mortgage so that the title and income from the land could be impressed with a trust for his benefit. The court noted that the creditor had remained in constructive possession since the 1922 conveyance of title. In addition, the creditor had been in open and notorious possession of the land for at least 20 years following the expiration of plaintiff’s repurchase option, which he never exercised. In the 22-year period that the realty company had possessed the land and paid all taxes and other expenses, the land had increased in value. In holding the plaintiff’s action to be barred, the court wryly stated, “We think the defense of laches clearly established and all [plaintiff’s] equities, if he ever had any, which we doubt, definitely foreclosed thereby.” 116 Colo. 12, 14, 178 P.2d 428, 429.

Defendant’s other cited authorities similarly involve facts that reflect a claimant’s long, unexplained or unreasonable delay in asserting rights coupled with prejudice to the adverse party. (See Farrar v. Hood (1952), 56 N.M. 724, 249 P.2d 759 (in suit to quiet title to mineral estate, claim for rescission of conveyance was barred by laches after a delay of more than 24 years, great increase in value of the rights, and the transfer of interest to third parties who purchased them for value); Landell v. Northern Pacific Ry. Co. (D.D.C. 1954), 122 F. Supp. 253, aff'd (D.C. Cir. 1955), 223 F.2d 316 (minority stockholders’ action against a railroad alleging the illegality of its reorganization in 1896 was barred by the lapse of more than 50 years and the substantial changes and monetary expenditures incurred by defendant in time).) Other authorities cited by defendant recognize that the mere increase in value of property does not alone convert delay into laches (Fitzgerald v. O’Connell (R.I. 1978), 386 A.2d 1384, 1388), although it is one circumstance that may be considered. (Lawson v. Haynes (10th Cir. 1948), 170 F.2d 741, 744.) More recently, an Illinois decision noted that in some circumstances, a marked appreciation in the value of the property might constitute sufficient injury or prejudice to justify laches. (Schroeder v. Schlueter (1980), 85 Ill. App. 3d 574, 407 N.E.2d 204.) In Schroeder, the plaintiff waited 10 years before instituting an action for specific performance of an option contract for sale of certain land. The plaintiff’s option to purchase had expired in 1969, and the defendants had given notice that they considered his interest terminated. In the next decade, defendants significantly improved the land, increasing its value from $70,000 to $500,000. When the plaintiff filed suit in 1978, without any previous notice to defendant of his alleged interest, the court held his action barred by laches.

The facts of the pending case are completely dissimilar. Unlike the claimant in Schroeder, plaintiff here gave early and repeated notice of his intention to participate in the investment opportunity. Consequently, it is difficult to see how defendant was prejudiced by the filing of this action within two years of its accrual. It is true that defendant undertook considerable financial risk and that the venture has greatly increased in value by the success of the shopping center. Nevertheless, defendant chose to proceed in the face of plaintiff’s clear statement of intent to acquire his proportionate interest. Defendant’s assumption of the venture’s risk was voluntary, as was his decision to deny plaintiff a portion of the opportunity. Therefore, we find lacking that element of delay that prejudices or misleads a defendant, or causes him to pursue a course different from that which he would have otherwise taken. (DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 136, 418 N.E.2d 413, 417.) It does not appear that defendant changed his position in reliance on plaintiff’s inaction. On the contrary, defendant simply ignored plaintiff’s attempts to assert his rights and proceeded with the shopping center development. Moreover, we find that plaintiff’s explanation for not filing suit earlier is reasonable under the circumstances. We conclude that defendant failed to establish either that plaintiff’s delay was unreasonable or that he was prejudiced by the delay. Therefore, we reverse the trial court’s judgment that the action is barred by laches and remand the cause for reinstatement so the parties may proceed to the merits.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


text:
    VEE SEE CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. HILLARY LUCKETT, Indiv. and d/b/a Luckett Construction Company, et al., Defendants.—(INTERNATIONAL FIDELITY INSURANCE COMPANY, Defendant-Appellee.)
    First District (5th Division)
    No. 80-1745
    Opinion filed November 30, 1981.
    Rehearing denied January 4, 1982.
    Martin, Craig, Chester & Sonnenschein, of Chicago (Edward Atlas, of counsel), for appellant.
    Richard B. Caifano and David E. Feldman, both of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff (Vee See) appeals from a judgment of the trial court entered in favor of it against International Fidelity Insurance Company (Fidelity) in the amount of $3,000. The issues presented for review are (1) whether the trial court had jurisdiction to vacate the first judgment for $15,000 against Fidelity; and (2) whether the judgment of $3,000 was against the manifest weight of the evidence. The pertinent facts follow.

Vee See entered into a contract with the Chicago Board of Education for rehabilitation of an elementary school. They then entered into a subcontract with Hillary Luckett for masonry work in the amount of $19,940. Luckett was required to furnish and did obtain a performance bond in the amount of $20,000, with Fidelity as surety and Vee See as owner.

Vee See filed its complaint on May 31, 1979, alleging that Luckett defaulted on its subcontract and Fidelity breached its performance bond, causing it to incur the costs in obtaining the completion of the work. Fidelity’s attorney entered his appearance for both Luckett and Fidelity; however, only an answer on behalf of Fidelity was filed. Fidelity admitted the execution of the performance bond but stated that alterations or modifications of the original contract may constitute a waiver of responsibility by Fidelity.

On October 12, 1979, Vee See filed its motion to default Luckett. Notice was served upon Fidelity’s attorney that on January 9, 1980, Vee See would move the court for prove-up instanter in the entitled matter. A judgment was entered on January 9,1980, against Luckett and Fidelity in the amount of $15,000.

On April 24, 1980, the trial court held a hearing on Fidelity’s motion to vacate the default judgment. Vee See objected on the ground that Fidelity’s motion to vacate was filed more than two months after the 30 days permitted by section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) and submitted the affidavit of Edward Atlas, attorney for Vee See. The affidavit indicated several communications with Fidelity’s attorney regarding the judgment. A bystander’s report on the proceedings indicated that the court requested counsel for Fidelity to produce a copy of its motion. Fidelity produced a copy of the motion bearing a filing date of February 8, 1980, whereupon the court allowed the motion to vacate and set trial for May 13, 1980. No proof of service was made upon Vee See of the filing by Fidelity of this motion on February 9,1980.

At the hearing in May, the architect testified that Luckett was required to make repairs to the parapet, not contemplated in the original subcontract, but covered by a change order dated June 2, 1977, for an additional amount of $4,010. He indicated that upon inspection of Luckett’s work in August 1978 and the finding that it was unacceptable, he, the building engineer and a Board of Education representative met with Luckett and informed him of the defects.

Vergil Herter, president of Vee See, testified that upon default of Luckett and Fidelity’s refusal to complete the work, Vee See entered into a contract with Ray Anderson on November 9,1979, in the sum of $13,000 for completion of Luckett’s work. Herter stated that at the time Luckett went off the job, the work could have been completed for $3,000 to $4,000. The increase in cost was due to the job being uncompleted for two severe winters.

Vee See and Fidelity’s exhibits detailed the pertinent communications between Vee See, Fidelity and American Bonding Agency, Inc. (Fidelity’s representative in Chicago):

(1) Vee See letter to Fidelity dated October 6, 1978.
(2) Fidelity responded October 10, 1978, advising Vee See that American Bonding Agency would be handling the claim.
(3) Vee See letter to American Bonding dated October 13, 1978.
(4) Vee See letter to Luckett dated November 10, 1978, with copy to American Bonding.
(5) Vee See letter to American Bonding dated December 4,1978.
(6) A memo left by Antonio Alvarado, a representative of American Bonding who came to Vee See’s offices on December 20,1978, requesting information and documents in regard to this matter.

At the close of final arguments, the court entered a judgment in favor of Vee See for $3,000.

Opinion

Vee See argues that the trial court lacked jurisdiction to vacate the judgment entered against Fidelity. The basis of this argument is that there was no compliance with the court records act (Ill. Rev. Stat. 1979, eh. 116, par. 1) and section 47 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 47).

Upon the trial court’s examination of the record at the April 24, 1980, hearing and its determination that certain documents were missing, Fidelity, upon request, presented the court with its stamped copy of the February 8, 1980, motion to vacate. Thereafter, the court reviewed other documents, heard arguments and allowed the motion to vacate the ex-par te judgment. There is no indication in the record that Vee See objected to the bystander’s report insofar as it is an accurate account of those proceedings, nor within that report is there a notation of Vee See’s objection to the procedure for the submission of this motion. A party desiring to preserve a question for review must make appropriate objection in the court below, and a failure to object to preserve a question for review constitutes a waiver. (Bohannon v. Schertz (1974), 21 Ill. App. 3d 149, 315 N.E.2d 316.) Thus, for purposes of this appeal, Vee See waived this issue for review.

Vee See next argues that the trial court’s award of $3,000 is insufficient and against the manifest weight of the evidence. They contend the award of damages should have been the amount required to have Luckett’s work completed by Anderson Co.

A review of applicable surety law principles for background indicates that a surety is one who becomes responsible for the debt or default of another. He binds himself for the payment of a sum of money, or for the performance of something else, for another who is already bound for such payment or performance. (72 C.J.S. Principal ¿r Surety §2 (1951).) A contract of a surety involves a direct promise to perform the obligations of another person in the event such person fails to perform as required by his contract. (Erickson v. Fitzgerald (1951), 342 Ill. App. 223, 96 N.E.2d 382.) The legal duties of a surety on its performance bond should not be expanded beyond the terms of the surety’s promise, but a surety is not allowed to free itself from its contractual obligations. (Neenah Foundry Co. v. National Surety Corp. (1964), 47 Ill. App. 2d 427, 197 N.E.2d 744.) Some cases hold that a judgment against the principal is conclusive evidence against the surety where the contract of the surety obligates him to be responsible for the result of a suit against his principal, or where he has been made privy to the suit against the principal by notice, and has been given an opportunity to defend it. (Westbrooks v. Finley (1956), 11 Ill. App. 2d 428, 138 N.E.2d 77.) However, a judgment on the bond against the surety is a requirement to hold the surety liable. (Westbrooks.) In the pending matter, Fidelity vacated the default judgment against itself, and a subsequent hearing was held which determined Fidelity’s liability on the bond. However, in order to uphold Vee See’s contention that the amount of damages is inadequate, and contrary to the manifest weight of the evidence, we must find that the court ignored the evidence or its measure of damages was erroneous as a matter of law. (See ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299.) A reviewing court will not disturb a trial court’s findings and substitute its own unless the trial court’s findings are manifestly against the weight of the evidence. (Ross v. Steiner (1978), 66 Ill. App. 3d 567, 384 N.E.2d 398.) It is well settled that a trial judge is in a superior position to determine the credibility of witnesses and weigh the evidence. And we are not free as reviewing judges to reweigh the evidence. Department of Revenue v. Marion Sopko, Inc. (1980), 84 Ill. App. 3d 953, 406 N.E.2d 583.

Our examination of the record reveals that at the time of Luckett’s default, Vee See’s own evidence revealed that the work could have been completed for an amount between $3,000-$4,000, but it remained uncompleted for two severe winters. Vee See did offer evidence to support its contention that the delay was not occasioned by their inaction; however, it was within the trial court’s discretion to accept or reject this evidence and to evaluate the weight to be given to it.

As such, the record adequately supports the trial court’s judgment and does not merit a reconsideration of the damages.

We hold, therefore, that the judgment for Vee See in the amount of $3,000 was not contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL MURPHY et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-2108
    Opinion filed November 30, 1981.

      James J. Doherty, Public Defender, of Chicago (Frances Sowa and Dennis Urban, Assistant Public Defenders, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Dean P. Karlos, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal from an order entered after a hearing which transferred them from the juvenile to the adult division of the Department of Corrections pursuant to section 3 — 10—7(a) and 5 — 8—6(c) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1979, ch. 38, pars. 1003 — 10—7(a), 1005 — 8—6(c)). Both defendants contend that those statutory provisions are unconstitutionally vague, and defendant Moore additionally contends that the doctrine of collateral estoppel precluded the consideration of ultimate facts determined in prior hearings and, because no new evidence was presented, the transfer order was improper.

The record discloses that defendants were juveniles, tried as adults and convicted after pleas of guilty to the crimes of rape, deviate sexual assault, armed robbery, and aggravated kidnapping. They were sentenced to the Department of Corrections for 14 years on each charge, to run concurrently. Thereafter, hearings were held by the court on three separate petitions filed by the State, after defendants reached age 17, to transfer one or both of them from the Illinois Youth Center at Joliet to the adult division of the Department of Corrections, pursuant to sections 3 — 10—7(a) and 5 — 8—6(c) of the Code.

The first such hearing was in January 1980 on a petition to transfer Moore, at which the trial court first denied a motion to declare those two sections unconstitutional — following which Marvin Jones, a youth supervisor at the youth center, testified that in September 1979 he caught Moore breaking through a wall in an escape attempt and, because Moore had made numerous previous escapes from another institutional center, the witness said he posed a security threat to the security center. A corrections counselor (Mrs. Hornburg) testified that Moore’s case file disclosed that he had escaped five times from two Illinois youth centers, and she gave an opinion that “he should be transferred to the adult division based upon his past behavior because he is a security risk.” In denying this petition, the court stated in effect that Moore was being given another chance but would be transferred if he again violated any of the youth center regulations.

A second hearing was held on March 24, 1980, on a new petition to transfer Moore, and again a motion attacking the constitutionality of the same two sections was denied. Thereafter, youth supervisor Robert Clayton testified that on March 12, 1980, he found a hacksaw blade in Moore’s cell and noticed that bars on his window had been cut through. The State offered, through witness Betty Harris (a corrections counselor) three documents pertaining to the conduct of Moore on March 12, 1980, which she said were records kept in the regular course of the business of the Department and were under her supervision. The court, however, refused admission of the report and then denied a motion to transfer.

A third transfer hearing was held in June 1980 on a petition of the State to transfer both Moore and Michael Murphy to the adult division. The court again refused to find unconstitutional the transfer sections in question. Defense counsel then made a motion to exclude the documents concerning Moore which had been offered and refused at the prior hearing and to strike as to Moore certain paragaphs of the petition to transfer on the basis that they contained matter ruled on at the prior hearings. The court made no specific ruling on the motions but stated that he would consider the evidence received at the prior hearings with any new evidence that may be presented.

Mrs. Hornburg then testified from institution records that Murphy had made three escape attempts, fought with other students, and was disrespectful to staff members. Lloyd Gaston, a youth supervisor, testified on January 31, 1980, he had opened a door to let a student in when Murphy and another student attempted to break out. Murphy was carrying a steel pipe and, in the ensuing struggle with him, the witness injured his shoulder, neck, and lower back. The court, after stating that it mistakenly refused to admit at the March hearing the three documents concerning Moore’s conduct, denied a motion of Moore for a directed finding and ordered both defendants to be transferred to the adult division. This appeal followed.

Opinion

Defendant first contends that sections 3 — 10—7(a) and 5 — 8—6(c) of the Unified Code of Corrections are unconstitutionally vague because they fail to provide standards to guide judicial discretion. The statutes provide as follows:

“§3 — 10—7. Interdivisional transfers.
(a) In any case where a juvenile was originally committed to the Juvenile Division under Section 5 — 8—6, the Department of Corrections shall, within 30 days of the date that the juvenile reaches the age of 17, send formal notification to the sentencing court and the State’s Attorney of the county from which the juvenile was sentenced indicating the day upon which the juvenile offender will achieve the age of 17. Within 90 days of receipt of that notice, the sentencing court shall conduct a hearing to determine whether or not the juvenile shall continue to remain under the auspices of the Juvenile Division or be transferred to the Adult Division of the Department of Corrections.”
“§5 — 8—6. Place of Confinement.
# # #
(c) * # * The committing court shall retain jurisdiction of the subject matter and the person until he or she reaches the age of 21 unless earlier discharged. However, upon request of the Juvenile Division of the Department of Corrections after a person has reached 17 years of age, the court may conduct a hearing with opportunity to the offender to be heard and defend and order the person transferred or committed to the Adult Division of the Department of Corrections.” Ill. Rev. Stat. 1979, ch. 38, pars. 1003 — 10—7(a), 1005-8 — 6(c).

Although the constitutionality of these sections has not previously been addressed by any court, it appears that there have been determinations with respect to the constitutionality of other statutes requiring dispositional hearings for the transfer of juveniles to be tried as adults under the Juvenile Court Act, and we believe many of the principles underlying those decisions are helpful here. Initially, we note that the Supreme Court has held that juvenile dispositional hearings “must measure up to the essentials of due process and fair treatment.” (Kent v. United States (1966), 383 U.S. 541, 562, 16 L. Ed. 2d 84, 98, 86 S. Ct. 1045, 1057), and that the standard for determining due process requirements in juvenile proceedings is “fundamental fairness” (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976) which, however, does not require that statutes governing juvenile dispositional hearings prescribe a mathematical formula to guide judicial discretion (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Cater (1979), 78 Ill. App. 3d 983, 398 N.E.2d 28, appeal dismissed (1980), 449 U.S. 802, 66 L. Ed. 2d 6, 101 S. Ct. 47).

The court, in Kent, considered as constitutional juvenile statutes which afford a judge a “substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached.” (Kent v. United States (1966), 383 U.S. 541, 553, 16 L. Ed. 2d 84, 93, 86 S. Ct. 1045, 1053.) Although the juvenile transfer statute under scrutiny in Kent contained suggested criteria for transferring juveniles to adult court, subsequently in Breed v. Jones (1975), 421 U.S. 519, 537, 44 L. Ed. 2d 346, 360, 95 S. Ct. 1779, 1790, the court, after pointing out that flexibility and formality are the unique goals of the juvenile system, stated that “the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adtilt court.” Such language leads us to conclude that a precise set of criteria is not constitutionally compelled nor in line with the goals of the juvenile court system.

Moreover, the effects of a dispositional hearing to transfer a juvenile from a youth correctional center to an adult facility differ from those involving a transfer from juvenile court to a court of general criminal jurisdiction where the transfer was considered in Kent v. United States to be a critically important proceeding. The need for criteria in interdivisional transfer hearings such as in the instant case is considerably less, since guilt has already been determined and the sole question left to the discretion of the court under the statutory provisions concerns whether the juvenile’s behavior is such that he should be transferred to an adult institution. The circumstances of each such case will necessarily differ substantially, and the necessary facts potentially bearing on the decision to transfer could not, practically speaking, be specifically identified by statute. In this regard, it is noteworthy that defense counsel, who insisted on oral argument that specific guidelines be included in the transfer sections, could not suggest any appropriate criteria. It appears to us that the legislature intended only that the court act fairly and impartially with regard to the decision to transfer a juvenile to adult facilities under the transfer sections in question. Accordingly, we are of the opinion that those sections are not unconstitutionally vague.

Moore also contends that under the doctrine of collateral estoppel, the facts determined at the first two hearings should not have been considered at the June hearing, and because no new evidence was received at that hearing he argues that his transfer to the adult division should be vacated. We disagree, as the record discloses that new evidence was considered.

At the March hearing, the court refused to admit three documents pertaining to the conduct of Moore which Betty Harris testified were records kept in the regular course of that Department’s business. Those documents were an adjustment committee summary which Harris said concerned an incident in which a student was allegedly involved and placed in segregation, a student violation report written by an employee who witnessed an infraction by a student, and a letter written by another student concerning the March 12 escape attempt by Moore. At the June hearing, the trial court stated that it had mistakenly refused those documents in March and that he would consider the information contained therein. We agree that the documents were mistakenly refused at the March hearing as they appear to have been records kept in the regular course of the Department’s business and, not having been previously received or considered by the trial court, they were new evidence at the June hearing. The objection of defendants that the documents were hearsay and should not have been considered by the court at the June hearing is not well taken, as in an interdivisional transfer hearing hearsay is admissible. People v. Henderson (1976), 39 Ill. App. 3d 1065, 351 N.E.2d 231.

Moreover, even if new evidence was not submitted at the June hearing, we find no merit in the contention of plaintiff that the trial court “was estopped from ordering Frank Moore’s transfer.”

The concept of collateral estoppel is applicable where “an issue of ultimate fact has once been determined by a valid and final judgment” and, in such case, that issue cannot be relitigated between the same parties. (Ashe v. Swenson (1970), 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) While a judgment or order, to be final, need not dispose of all the issues presented, it must terminate the rights of the parties either upon the entire controversy or upon some definite and separate part thereof. Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371.

The granting of a petition to transfer was held to be a final judgment and appealable in People v. Henderson, apparently on the basis that the rights of the parties on the issue as to whether defendant in that case should remain in the juvenile division were terminated by the order transferring him to the adult division of the Department of Corrections. However, where a petition for an interdivisional transfer has been denied, no such finality occurs as no rights terminated since the issue as to whether such a transfer should be effected remains open. In this regard, we note that defendant does not contend that the Department is limited to a single petition — only that the June petition was improperly granted because no new evidence was presented. Under section 5 — 8—6(c), the committing court retains jurisdiction of the subject matter and of the juvenile until he or she reaches age 21, unless earlier discharged, and we agree that additional petitions to transfer may be filed to present new evidence. Because the denials of the January and March petitions lacked the necessary finality, the concept of collateral estoppel has no application.

We affirm the order transferring defendants to the adult division of the Department of Corrections.

Affirmed.

MEJDA and WILSON, JJ., concur.

       The maximum security institution for male juveniles.

       Persons committed to the youth center are called “students.”


text:
    HERBERT T. SCHUMANN, JR., Plaintiff-Appellee, v. CECILIA KUMARICH et al., Defendants.—(THERESA M. PACZESNY, Defendant-Appellant.)—EDWARD E. GORDON, Plaintiff-Appellee, v. CECILIA KUMARICH et al., Defendants.—(THERESA M. PACZESNY, Defendant-Appellant.)
    First District (5th Division)
    Nos. 81-2468, 81-2469 cons.
    Opinion filed November 30, 1981.

      Andrew M. Raucci, of Chicago, for appellant.
    Robert M. Naiman, of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Theresa M. Paczesny (objector) raised objections to the nomination petitions of Herbert T. Schumann, Jr., and Edward E. Gordon (candidates), both of whom were seeking election to the board of trustees of Moraine Valley Community College District 524. The Education Officers Electoral Board (Electoral Board) sustained the objections to the petitions, but the circuit court reversed the Board’s decision. The Electoral Board and the objector appealed that reversal.

The issues presented for review are: (1) whether section 10 — 4 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4) is ambiguous requiring judicial construction; (2) whether section 10 — 4 is mandatory or directory; (3) whether the candidates’ circulators’ affidavits complied with section 10 — 4 requirements; and (4) whether estoppel should be invoked to prevent the striking of the petitions of the candidates.

On August 17,1981, the candidates filed nominating petitions for the office of member of the Board of Trustees of Moraine Valley Community College District 524. Candidate Schumann had originally obtained the petition forms for himself and candidate Gordon from the Moraine Valley Community College. On August 29,1981, objector filed petitions with the secretary of the board of trustees of the college alleging that the nominating petitions of the candidates were defective because the circulator’s affidavit found on the bottom of each petition failed to include the circulator’s residence address and failed to state that the persons signing the petition were “registered” voters of the school district and that the signers’ “respective residences” were correctly set forth.

An education officers electoral board was convened for the purpose of hearing and passing on the objector’s petitions. Candidate Gordon appeared and testified at the hearing, but candidate Schumann did not appear. One member of the Electoral Board commented during the hearing that two other candidates, whose petitions were not objected to on the same grounds, submitted petitions using substantially the same form. After hearing the witnesses the Electoral Board voted 2-1 to sustain the objections and ordered the names of the candidates removed from the ballot.

The candidates sought judicial review of the Electoral Board’s decision. The circuit court reversed the Electoral Board's decision and ordered the candidates’ names reinstated on the ballot. The circuit court’s orders do not recite the reasons for the reversals. Because of the immediacy of the upcoming election, we expedited and consolidated the appeals of the trial court’s orders. Following oral arguments an order was entered in each case on October 23, 1981, with this opinion to follow. The orders reversed the trial court and removed the candidates’ names from the official ballot.

Opinion

Section 3 — 7.1 of the Public Community College Act (Ill. Rev. Stat., 1980 Supp., ch. 122, par. 103 — 7.1) states that all elections held pursuant to that Act shall be governed by provisions of the general election law. Section 10 — 4 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4) - sets forth the information required to be included in a circulator’s affidavit, which is in pertinent part as follows:

““ * “No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with. At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political division for which the candidate or candidates shall be nominated, stating his residence address (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, also stating the street and number of such residence), certifying that the signatures on that sheet of the petition were signed in his presence and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petition duly registered voters under Articles 4, 5 or 6 of the Code of the political subdivision or district for which the candidate or candidates shall be nominated, and that their respective residences are correctly stated therein. * * e”

The objector correctly asserts with no apparent dispute from the candidates that this provision does not lend itself to more than one meaning. Therefore, its meaning is plain and needs no judicial construction. People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368.

The objector first contends that this provision is mandatory and not directory, citing Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 404 N.E.2d 180. In Bowe, the supreme court stated the requirements of section 7 — 10 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7—10) were mandatory and not directory. Section 7 — 10 included content requirements for the circulator’s affidavit very similar to those found in section 10 — 4 of the Election Code as currently amended. In rendering its opinion the Bowe court cited Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App. 3d 823, 329 N.E.2d 436. In Lawlor, the court had construed section 7 — 10 as mandatory because the legislature had specifically and separately set forth the required contents of the nominating petition and of the certificate of candidacy. Further, the court noted that the language of the section read that “Each petition shall include ° * * shall set out * 0 * shall state * * and that the word “shall” is ordinarily interpreted to be mandatory. 28 Ill. App. 3d 823, 829, 329 N.E.2d 436, 440; Schmidt v. Powell (1972), 4 Ill. App. 3d 34, 280 N.E.2d 236; see People ex rel. Adamowski v. Metropolitan Sanitary District (1958), 14 Ill. 2d 271, 150 N.E.2d 361.

Article 10 of the Election Code provides for separate and specific content requirements for certificates of nomination (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 5) and for nominating petitions (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4). Section 10 — 4 specifically provides that the requirements set forth “shall * ” * be as follows” and further that, “No signature shall be valid or be counted * * * unless the requirements of [section 10 — 4] are complied with.” Therefore, under the reasoning in Bowe and Lawlor the requirements of section 10 — 4 are mandatory and not directory.

The candidates suggest, however, that section 3 — 7.10 of the Public Community College Act (Ill. Rev. Stat., 1980 Supp., ch. 122, par. 103 — 7.10) indicates that section 10 — 4 of the Election Code might be directory in the setting of the community college board of trustees election. Section 3 — 7.10 of the Public Community College Act does set forth the specific format for a nominating petition for the office of member of the board of trustees. Prefacing that format is the following statement: “In addition to the requirements of the general election law, the form of such petitions shall be substantially as follows * 0 In essence the candidates contend that the presence of the word “substantially” suggests that section 10 — 4. of the Election Code is directory in the context of community college board elections. This argument fails for two reasons: first, the word “substantially” clearly belongs to that part of the sentence which refers to the specific format set forth in section 3 — 7.10 of the Public Community College Act and not to the phrase containing the general election reference; second, and most importantly, the presence of the word “substantially” does not transform an otherwise mandatory provision into a directory provision. Section 7 — 10 of the Election Code held in Lawlor and Bowe to be mandatory contains the word “substantially” in nearly the identical phrase as is found in section 3 — 7.10 of the Public Community College Act. Yet, both courts held the provision to be mandatory. Thus, the requirements of section 10 — 4 are mandatory even in the context of a community college board of trustees election.

The candidates assert, however, that even if section 10 — 4 is mandatory and not directory they substantially complied with the statutory requirements. Objector asserts they did not. The applicable statutory requirements, the corresponding language in the nominating petitions to which objections were raised, and our analysis of each are set forth below.

Objection No. 1:

Section 10 — 4 provision: “At the bottom * * * shall be added a statement, signed by a registered voter e 0 e stating his residence address * *
Candidate Schumann petition: “I, Herbert T. Schumann Jr., hereby certify that I * * * reside within the district described in this petition * ”
Candidate Gordon petition: “I, Herbert T. Schumann Jr., hereby certify that I 9 * * reside within the district described in this petition * *

Candidate Schumann was the circulator for the petitions of both candidates. Although his address was not included in the. circulator’s affidavit at the bottom of each sheet, it was given at the top of each page of his own petition, wherein he was named to be a candidate. Therefore, Schumann’s petition substantially complied with the statute on this point. Schumann’s address (as circulator) could not be ascertained, however, from any information on candidate Gordon’s petition. Therefore, candidate Gordon’s petition did not substantially comply with this point because his circulator, Schumann, did not attest to his address in the circulator’s affidavit.

Objection No. 2:

Section 10 — 4 provision: “Such petition shall be signed by* * ' qualified voters * * * [with the circulator] certifying that “ “ to the best of his knowledge and belief the persons so signing were at the time of signing the petition duly registered voters under Articles 4, 5 or 6 of the Code 0 ”
Candidates Schumann and Gordon petitions:
“I, * ° * certify * * * that the signatures on this sheet were signed in my presence and are genuine and that to the best of my knowledge and belief .the persons so signing were at the time of signing qualified voters.”

Neither candidate’s circulator’s affidavits attested that the voters were registered, although they did attest that those signing the petitions were “qualified voters.” Section 10 — 4 does use both the terms “qualified voters” and “registered voters.” Clearly, however, the terms are not intended to be necessarily interchangeable relative to the circulator’s affidavit. To hold otherwise would render meaningless and unnecessary the registration attestation requirement, specifically set forth in section 10 — 4. The latter construction would contradict the fundamental rule of construction that each word, clause, and sentence in a statute must if possible be given some meaning. (Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 153 N.E.2d 72.) Furthermore, the term “qualified voters” used in section 10 — 4 to describe those eligible to sign nominating petitions has been construed as requiring the voters so signing to be registered voters when registration is required. (Stout v. Black (1972), 8 Ill. App. 3d 167, 289 N.E.2d 456.) Accordingly, section 10 — 4 requires that the circulator attest that the voters signing the nominating petitions are registered voters. Attesting, as here, that the voters are “qualified” is insufficient to comport with the requirements specifically enunciated in section 10 — 4.

Objection No. 3:

Section 10 — 4 provision: “certifying # # # that their [the voters signing] respective residences are correctly stated therein.”
Candidates Schumann and Gordon petitions: No such statement.

Relative to the third objection, neither circulator’s affidavits attested that the addresses of the voters signing were correct. Therefore, there was no compliance with this requirement.

Having determined that the circulator’s affidavits failed to provide the information required by section 10 — 4 in two instances in candidate Schumann’s case and in three instances in candidate Gordon’s case, we must of necessity conclude that the circulator’s affidavits in question did not comply with the statutory requirements enunciated in that section.

The candidates finally argue, however, that estoppel should be invoked to prevent the striking of their petitions and their removal from the ballot. Their estoppel theory is predicated solely on the argument that Moraine Valley Community College provided them with the nominating petition forms. The candidates do not assert, however, against whom such an estoppel argument should be invoked. It would be invalidly raised against the objector and against the Education Officers Electoral Board because they did not provide the candidates with the forms. As the candidates state they received the forms from the Moraine Valley Community College, it follows that any estoppel argument must be directed to the Board of Trustees of Community College District 524. However, the Board of Trustees of Moraine Valley is not a party to this action.

• 5, 6 Even if the Board of Trustees had been a party here, the candidates’ estoppel argument is without merit. “The board of each community college district is a body politic and corporate * * (Ill. Rev. Stat. 1979, ch. 122, par. 103—11.) Before an estoppel against a public body can be found, it must be shown that an affirmative act occurred on the part of the governmental body which induced substantial reliance by the litigant and the complained of action. (Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.) The affirmative act inducing reliance must be the act of the governmental body itself, rather than the unauthorized act of a ministerial officer or a ministerial misinterpretation. (County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376.) Although the distribution of the nominating petition forms was an affirmative act, the failure of the form to include specific spaces for the necessary information omitted by the candidates here can at most be seen as a ministerial error and not a governmental action of the Board itself.

Finally, we do recognize that the Community College Act does state that it is the duty of the secretary of the community college board of trustees to provide candidates with petition forms. (Ill. Rev. Stat., 1980 Supp., ch. 122, par. 103 — 7.10.) We do not believe, however, that the responsibility to provide forms absolves the candidates of the duty to provide the information required by statute to ensure a place on a ballot. Accordingly, the estoppel argument raised by the candidates in these cases is without merit.

For these reasons stated herein, we concluded that the decision of the Electoral Board was proper and, therefore, the trial court erred in reversing that decision. Accordingly, we entered the order in each, case reversing the trial court and directing that the names of the candidates not appear on the official ballot.

Reversed.

LORENZ and WILSON, JJ., concur.

       Section 10 — 4 as set forth in the 1979 Illinois Revised Statutes incorporates the amendments enacted by Public Act 80-1469, §2,1978 DI. Laws 1847 (1978), and Public Act 81-955, §1,1979 Ill. Laws 3524 (1979). The two amendments are not in conflict and therefore both amendments are effective and in force. People v. Chatman (1967), 38 Ill. 2d 265, 230 N.E.2d 879.