author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN D. BARNES, Defendant-Appellant.
    Fourth District
    No. 4—84—0476
    Opinion filed February 26, 1985.
    Rehearing denied March 25, 1985.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and Gwendolyn Klingler, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial, defendant Stephen Barnes was convicted of speeding, driving under the influence of alcohol, and unlawful possession of cannabis. He was sentenced to concurrent one-year terms of probation on the condition that he serve 23 days in jail. Defendant appeals his convictions and sentences on the grounds: (1) that the trial court failed to comply with the provisions of Supreme Court Rule 401 (87 Ill. 2d R. 401) when accepting defendant’s waiver of counsel, and (2) that the court abused its discretion in denying defendant’s request for continuance made on the day of trial. We affirm.

A review of the procedural history of the case is necessary to deciding the issues raised on appeal. On March 14, 1984, defendant was charged by information with possession of cannabis and by complaint with the vehicle offenses. At his first appearance on that date, the trial court determined that defendant was indigent and appointed public defender William Schildman as counsel. Defendant was represented by Schildman at the preliminary hearing on March 19, 1984. Subsequently, attorney Schildman filed a motion for discovery and a motion for continuance on defendant’s behalf. Schildman also appeared for defendant at the pretrial conference on April 4, 1984, when the motion for continuance was allowed.

During the pretrial conference held on May 2, 1984, defendant requested a different court-appointed attorney, because Schildman purportedly believed defendant to be guilty. Schildman denied this allegation and sought to withdraw as defendant’s counsel. The judge continued the matter and indicated that he would decide the question at a status call set for May 4, 1984. Defendant failed to appear on May 4, however, and the request was not decided.

On the day set for jury trial, May 8, 1984, defendant reiterated the charge that Schildman believed him to be guilty and indicated that he lacked confidence in Schildman’s ability to properly represent him. Schildman acknowledged defendant’s lack of faith in his abilities. Nevertheless, the trial judge expressed his complete confidence in Schildman’s abilities and denied the motion to withdraw. The judge informed defendant that he would appoint Schildman to serve in an advisory capacity unless defendant refused. Defendant replied: “Yes, I would like Mr. Schildman to be there with me to assist me.” At this time, the court also denied a motion for continuance which defendant had made that day.

The record indicates that attorney Schildman took an active role in the subsequent proceedings. Pursuant to defendant’s request, Schildman presented evidence and arguments in support of a motion to suppress prior to trial. During trial, defendant consulted with Schildman frequently. Once, during defendant’s cross-examination of a State’s witness, defendant interrupted the examination to consult with Schildman before proceeding to conclude the questioning. In the course of presenting the defense evidence, defendant consulted with Schildman on the method for introducing physical evidence; later, a 10-minute' recess was allowed to permit defendant to consult with Schildman on the admissibility of a medical encyclopedia; and defendant consulted Schildman several times on how to subpoena a witness.

When the court granted a recess to allow defendant to subpoena a witness, the judge inquired whether defendant sought to continue on his own. Defendant responded that he did and indicated that Schildman had been answering his questions. The record shows that defendant consulted with Schildman in reference to admitting additional documents in evidence, and, once again, just prior to resting the defense case. Afterwards, Schildman accompanied defendant to the judge’s chambers to listen to a tape which the State sought to introduce in rebuttal. Schildman participated in the instruction conference and suggested particular defense instructions. Finally, defendant consulted with Schildman prior to making his closing argument.

On appeal, defendant argues that the judgment must be reversed, because the trial court failed to admonish him according to Supreme Court Rule 401 prior to accepting his waiver of counsel. Defendant notes that the rule requires strict compliance, yet the record reveals no attempt on the part of the court to fulfill the requirements of the rule. The State contends, however, and we agree, that defendant did not waive his right to counsel in the meaning of the rule; therefore, the trial court was not required to administer the admonishments required by Supreme Court Rule 401.

Defendant initially sought to replace public defender Schildman with other appointed counsel. It is clear, however, that an accused has no right to choose his own appointed counsel (People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346), and the trial court found no reason to reconsider its appointment of Schildman. On appeal, defendant does not appear to quarrel with the propriety of this particular ruling. Subsequently, when defendant’s request for the appointment of other counsel was denied, defendant announced that he desired to represent himself. In response, the trial court indicated that it would appoint Schildman in an advisory capacity unless defendant refused. Defendant specifically stated that he wished Schildman to be with him during trial to assist him.

A waiver of counsel occurs when a defendant in a criminal case advises the court that he does not wish the assistance of counsel and chooses to stand alone.

“Where, however, a defendant requests that he be allowed to conduct his own defense with the assistance of a court-appointed lawyer, he does not waiver the right to counsel. He seeks, instead, the best of both worlds: freedom to conduct his own defense and benefit from the assistance of counsel.” (People v. Lindsey (1974), 17 Ill. App. 3d 137, 141, 308 N.E.2d 111, 115.)

In Lindsey, the accused initially indicated that he wished to represent himself. Despite this indication, the court suggested that the counsel appointed for the accused stay on call and assist during trial. The court inquired: “Stay on call to assist you?” The accused replied: “That’s right.” In the case at bar, the record indicates not mere acquiescence in the appointment of standby counsel, as occurred in Lindsey, but an explicit request for the assistance of counsel. Under these circumstances, the requirements of Rule 401 clearly have no application. See People v. Nieves (1982), 92 Ill. 2d 452, 442 N.E.2d 228; compare People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688, where the accused did not request the appointment of standby counsel, and counsel assumed a passive, virtually silent role during trial.

Defendant also contends that the trial court abused its discretion in denying his motions for continuance made on the day of trial. Prior to trial, defendant sought a continuance for the purpose of gathering evidence and researching “court procedure and law.” The request was denied when the trial court announced that it would appoint counsel to advise defendant during trial. Defendant suggests that he was in the same position as new counsel appointed on the threshold of trial (see People v. Hamilton (1974), 17 Ill. App. 3d 740, 308 N.E.2d 216), and therefore a continuance was mandatory. We do not agree. Attorney Schildman was counsel of record from his appointment on March 14, 1984, to the time of trial on May 8, 1984. The record shows that Schildman participated actively in the preparation of the case, and proved ready to present evidence and arguments in support of a motion to suppress on the day of trial. Defendant proceeded to trial with Schildman serving as his advisor, and he repeatedly turned to Schildman for advice and consultation. The distinction between this situation and the circumstances in Hamilton is patent. Defendant cannot at once avail himself of the assistance of counsel who is well prepared for trial, and yet contend that a continuance was required because he personally was not ready for trial. The denial of the pretrial request for continuance represents no abuse of discretion on the facts presented.

During trial, the court granted a short recess to permit defendant to subpoena a doctor. Defendant sought the doctor’s testimony for the purpose of establishing the effects of carbon monoxide poisoning, which, defendant theorized, was the true cause of his intoxication at the time of his arrest. The subpoena required the doctor to appear at 1:30 that same afternoon; the doctor did not appear and the defendant requested the court to order the sheriff to bring the doctor to court. On the State’s motion, the court quashed the subpoena on the grounds that no foundation had been laid to render the anticipated testimony relevant. Specifically, the court found that there was no testimony to indicate defendant had breathed carbon monoxide fumes.

Our review of the record discloses that defendant did not seek a continuance when the trial court declined to enforce the doctor’s presence. We interpret defendant’s argument as a claim that the court should have declared a continuance sua sponte. On the record before this court, we cannot hold that this was error. The only conceivable foundation for the doctor’s testimony was defendant’s testimony that he was confused rather than drunk, and the testimony of other witnesses that they had smelled exhaust fumes inside defendant’s vehicle in the past. When defendant later added more facts in evidence to establish a foundation for the doctor’s testimony, he did not renew his motion to compel the appearance of the doctor, and did not then seek a continuance. In the absence of a request for a continuance or any reasonable foundation for the anticipated testimony, we cannot conclude that defendant has demonstrated an abuse of discretion in this connection.

For the reasons stated herein, we affirm the judgment.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
      In re ESTATE OF RAY H. NEISEWANDER, Deceased (Eleanor J. Neisewander et al., Ex’rs of the Estate of Ray H. Neisewander, Deceased, Petitioners-Appellees, v. Timothy Lyons et al., Objectors-Appellants; Susan L. Burns et al., Objectors).
    Fourth District
    No. 4—84—0437
    Opinion filed February 20, 1985.

      Watts C. Johnson and Michael L. English, both of Johnson, Martin & Russell, P.C., of Princeton, for appellants.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield (T. Kent Cochran, of counsel), for appellees
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The executors of the estate of Ray H, Neisewander filed an interim account for court approval. Five of the decedent’s grandchildren filed an objection to the account. These objectors appeal from the order of the circuit court denying the objection and approving the account. At issue is whether the executors breached their fiduciary duties by engaging in self-dealing.

At his death on October 26, 1979, the decedent was survived by his widow, Eleanor Neisewander, six children and 28 grandchildren. His will named his son, Ray Neisewander, Jr., and Eleanor Neisewander as executors of the estate. The will gave them discretion, exercisable without court order, to: (1) sell, retain, lease or borrow money on any estate property; (2) settle any claims for or against the estate; and (3) settle any tax matters. One-half of the value of the adjusted gross estate was to be distributed to Eleanor Neisewander. The will gave the executors the power to satisfy this bequest in cash or in kind. The remainder of the estate was to be put in trust for the benefit of the decedent’s grandchildren, after payment of taxes, expenses and administration costs. The beneficiaries were to receive the net income of the trust at least yearly. The trustee was given the power, in his sole and absolute discretion without regard to any statute or other law, to invest and reinvest the trust property. Ray Neisewander, Jr., was named as trustee.

The inventory filed by the executors included 23,800 shares of preferred stock in Neisewander Enterprises, Inc. The decedent had formed this corporation in 1974 as part of his estate plan. At the time of organization, its capital structure consisted of 28,000 shares of voting preferred stock and 5,000 shares of voting common stock. Prior to his death, he had given each grandchild 100 shares of common stock and 150 shares of preferred. He had also given Ray Neisewander, Jr., 2,200 shares of common.

After an audit, the Internal Revenue Service and the executors settled on a value of the estate assets, including the value of the 23,800 shares of preferred stock in Neisewander Enterprises. The executors then transferred assets representing one-half of the estate’s value to Eleanor Neisewander. Included in this transfer were all the shares of preferred stock. Eleanor Neisewander subsequently sold 18,700 shares to the corporation and the remaining 5,100 shares to Ray Neisewander, Jr.

The executors filed an interim account on November 4, 1983. Five children of one of the decedent’s daughters objected to the account, alleging the transaction between Eleanor Neisewander and Ray Neisewander, Jr., amounted to self-dealing by the executors. The objectors contended the sale of stock to Ray Neisewander, Jr., enabled him to secure voting control over the corporation. They requested the court to order him to reconvey the stock to Eleanor Neisewander and order her to sell it to the corporation. The court refused and approved the executors’ account.

A preliminary issue concerns the appealability of the order approving the interim account. The account must be considered a determination of the rights of the parties and, therefore, binding upon all persons given notice and required by section 24—2 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 24—2). To rule otherwise would preclude any partial distribution which would be subject to court approval before the final account. Thus, the order is appealable. 87 Ill. 2d R. 304(b)(1).

The executors contend this court should not determine the merits of this appeal because a change of fact has rendered it moot. They maintain the objectors’ only complaint is that Ray Neisewander, Jr., obtained voting control over the corporation through the transaction with Eleanor Neisewander. Subsequent to the account, the corporation purchased stock from two shareholders. As a result, Ray Neisewander, Jr., and his eight children possess more than 50% of the outstanding stock, excluding the 5,100 shares at issue. Even if the relief requested by the objectors is granted, therefore, Ray Neisewander, Jr., and his family will still have control over the corporation. Ray Neisewander, Jr.’s individual control, however, is not the same as his control through his family. We can only speculate as to whether his children will allow him to vote their stock. Moreover, regardless of the control issue, Ray Neisewander, Jr., now owns 5,100 shares, which the objectors allege he obtained by breach of his fiduciary duty. If this is so, the transaction cannot be permitted to stand.

The objectors have moved to amend the record to include a petition for dissolution of marriage filed by the wife of Ray Neisewander, Jr. The dissolution petition relates solely to the issue of mootness. Because we have decided the mootness issue in favor of the objectors, their motion to amend is denied, as is the executors’ motion to dismiss the appeal.

Generally, an executor has a fiduciary duty to act with the highest degree of fidelity and utmost good faith in handling estate assets. (In re Estate of Lindberg (1979), 69 Ill. App. 3d 714, 721, 388 N.E.2d 148, 154.) The objectors assert the executors breached this duty by the distribution of estate assets to a beneficiary, who was also an executor, and the subsequent sale of it to the co-executor. The objectors analogize the present case to the purchase of estate assets by an administrator or executor through the intervention of a nominal third party. Illinois courts have held such sales are fraudulent per se. The reason for the rule is that the fiduciary occupies the positions of both buyer and seller at the same time. To prevent him from being exposed to a conflict of interest, the rule absolutely forbids the fiduciary from occupying two such inconsistent positions. (McCleary v. Lewis (1947), 397 Ill. 76, 81, 72 N.E.2d 862, 865; Miles v. Wheeler (1867), 43 Ill. 123, 126; Eiseman v. Lerner (1978), 64 Ill. App. 3d 185, 189, 380 N.E.2d 1033, 1036.) For the same reason, a fiduciary may not purchase any encumbrance against his principal’s property. Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 240, 432 N.E.2d 841, 846.

Unlike the cases cited, Ray Neisewander, Jr., did not purchase assets from the estate at his own sale, nor did he purchase any encumbrance that would conflict with his fiduciary obligations. Instead, he purchased assets that had been distributed to a beneficiary. Thus, the per se rule is not applicable.

Fiduciaries are not prohibited from having direct dealings with their beneficiaries so long as the transaction is fair. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 245-46, 432 N.E.2d 841, 848.)

“[Tjhere is no duty on the part of a fiduciary to refrain from entering into contracts or conveyances or other transactions directly with his principal. The law does not regard such arrangements as so dangerous to the principal as to forbid them or make them absolutely voidable at the option of the principal. The courts permit such transactions but place upon the fiduciary the duty of the utmost frankness and fair play.” Bogert, Trusts & Trustees sec. 544, at 400 (2d ed. 1978).

Eleanor Neisewander received the stock as a beneficiary under the will. All beneficiaries are entitled to receive the full share of their interest. No rule of law or equity prevents a beneficiary, who is under no incapacity, from disposing of his interests for consideration; and a beneficiary may sell his interest to his fiduciary. Victor v. Hillebrecht (1950), 405 Ill. 264, 268-69, 90 N.E.2d 751, 754.

The objectors argue this is a special case because Eleanor Neisewander was an executor as well as a beneficiary. Thus, she participated in the decision as to which assets she would receive. Neither party has cited any case with specific authority for determination of the issue before this court. In any event, the question of whether an executor has breached his fiduciary obligations must be determined by the facts of the individual case. In re Estate of Busby (1937), 288 Ill. App. 500, 519, 6 N.E.2d 451, 459.

The objectors make no allegation that they suffered any financial harm or that either of the co-executors profited from the transaction. While the objectors are also shareholders in the corporation, none of them received any interest in the corporation from the decedent’s estate. Eleanor Neisewander’s disposal of the stock, therefore, could not affect their interest in the estate. The objectors maintain the executors went against the decedent’s wishes by giving Ray Neisewander, Jr., control over the corporation. Yet, the decedent knew control had to pass through his estate, and he gave the executors broad discretion over his estate and his will. The objectors concede there were legitimate tax reasons why the executors distributed the stock rather than selling it and distributing the proceeds. In fact, they maintain the transaction would have been proper if Eleanor Neisewander had simply waited for the estate to close before selling the stock. She, however, disposed of the stock after it had left the estate. The objectors are, in effect, asking the court to restrict Eleanor Neisewander, as an individual, in her transfer of this stock by prohibiting her from selling it to Ray Neisewander, Jr. Under the facts of this case, we find no justification for this restriction.

For these reasons, the order of the circuit court denying the objection and approving the interim account is affirmed.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE GOOD SAMARITAN HOME OF QUINCY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 4—84—0508
    Opinion filed February 20, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (Jill Wine-Banks, Solicitor General, and Imelda R. Terrazino, Assistant Attorney General, both of Chicago, of counsel), for appellant.
    William G. Keller, Jr., of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On August 13, 1982, the Adams County Board of Review (Board) denied a petition filed by plaintiff, the Good Samaritan Home of Quincy (Home), an Illinois not-for-profit corporation, requesting a charitable tax exemption for certain of its real property for the year 1982. Following an administrative proceeding, defendant, Illinois Department of Revenue (Department), entered a decision on August 16, 1983, which also denied the tax exemption. On administrative review in the circuit court of Adams County, that court entered a judgment on June 8, 1984, finding that the Department’s decision was contrary to the manifest weight of the evidence and reversing the denial of the tax exemption. The Department has appealed. We reverse the circuit court’s judgment and uphold the Department’s decision to deny the tax exemption.

The record of the administrative proceedings in this case contains the following information. The Home’s corporate purpose, as stated in its bylaws, is:

“[EJxclusively for the religious, charitable, benevolent and eleemosynary care for aged people without regard to poverty or riches of the recipient of the service provided, including the establishment, support and maintenance of a home or homes and related facilities for the appropriate care of such aged persons.”

The Home operates a nursing home and related facilities in Quincy for the care of aged persons. During 1982, the main building, which is the nursing home, was licensed by the Illinois Department of Public Health for 105 sheltered care beds and 102 intermediate care beds. The portion of the property on which the main building is located has been exempted for property tax purposes and is not at issue in this case.

The Home also operates a cottage program which provides a total of 90 units of living area for couples or individuals. Six cottages, consisting of 30 apartment units, were constructed prior to 1976, and 12 apartment units were constructed in 1976. Construction of an additional 48 units was begun in 1980 and was completed in 1982. The cottages are adjacent to, but separate from, the main facility

The cottage apartments are constructed by the Home and are rented by individual residents. Construction costs range from $36,000 to $58,000, depending on the size and design of the apartment. The Home finances the construction of the cottages by charging a prospective resident the full construction cost of the cottage on a prepaid rent basis. The prepaid cost of construction is then written down month-by-month by the amount of monthly rental charged for that type of unit. For example, if the construction cost of a particular unit is $40,000, the resident pays that amount to the Home. If the monthly rental for that unit is $320 per month, that amount is subtracted each month from the prepaid rent of $40,000. If the resident dies or moves out, the unused balance is refunded and the next resident must deposit the remaining unpaid cost of construction. After the cost of construction is recovered for a unit, the unit is rented on a monthly basis with no prepayment.

The monthly rent for the cottage apartments varies with size and design. A one-bedroom apartment is $260; a two-bedroom apartment is $320; and a two-bedroom apartment with a garage is $340. The rate of monthly rental is subject to increase by Board action whether the rent is charged against prepayment or not.

A potential cottage resident signs a residential contract prior to construction of a cottage which provides for the amount of down payment required upon signing the agreement and the subsequent payment of the construction cost balance. The contract signed by potential cottage residents also provides that the Home can dismiss a resident any time any provision of the agreement is not performed or if, in the opinion of the Home, a resident is not able to maintain himself properly in the apartment.

The cottage apartments remain the Home’s property throughout a renter’s occupancy. The cottage resident never owns his or her cottage or the real estate upon which the cottage is located. The cottage resident never has any equity in the cottage itself, but simply has the right to a recovery of the portion of the prepaid rent which has not been fully accrued prior to the resident’s vacating of the cottage or death.

All potential cottage residents must fill out an application as do persons seeking admission to the nursing home. The names of those seeking to reside in the cottages are placed on a separate waiting list from those seeking intermediate or sheltered care in the nursing home. Potential cottage residents have the option of being put on a waiting list for one of the units where there is no equity remaining and which require no prepaid rent, on a list for a new unit, or on a list to pay off the remaining equity on a unit. As of January 1, 1982, there were 30 apartment units that had no prepayment requirement, while 60 apartments still have a prepaid rent requirement.

Following the administrative proceeding, the Department’s hearing officer recommended that the tax exemption for the cottages be denied. In support of this recommendation, the hearing officer found that the Home (1) does not dispense charity to all who need and apply for it; (2) places obstacles in the way of those seeking benefits; and (3) did not use the property in question for primarily charitable purposes during 1982. The Department then adopted the hearing officer’s recommended decision. The Department maintains on appeal that the circuit court erred in reversing the Department’s decision because that decision was not contrary to the manifest weight of the evidence. We agree.

Article IX, section 6, of the Illinois Constitution of 1970 provides, . in pertinent part:

“The General Assembly by law may exempt from taxation only * * * property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes ***.” Ill. Const. 1970, art. IX sec. 6.

Section 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 500.7), prior to an amendment effective September 24, 1983, exempted the following property from taxation:

“All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States, all property of old people’s homes, when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit; and all free public libraries.” Ill. Rev. Stat. 1981, ch. 120, par. 500.7.

In order to be entitled to a real property tax exemption in this case, the Home had to prove that the property was (1) owned by a charitable organization, and (2) used exclusively for charitable purposes. The parties in this case agree that the Home is a charitable organization. The remaining issue then is whether the Home’s property on which the cottages are located is exclusively used for charitable purposes.

In Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537, the supreme court established the following guidelines for determining whether the use of property is in fact exclusively for charitable purposes: (1) The benefits derived are for an indefinite number of persons; (2) the organization has no capital, capital stock or shareholders, and does not profit from the enterprise; (3) funds are derived mainly from private and public charity, and the funds are held in trust for the objects and purposes expressed in the charter; (4) the charity is dispensed to all who need and apply for it; (5) no obstacles appear to be placed in the way of those seeking the benefits; and (6) the exclusive (primary) use of the property is for charitable purposes. 39 Ill. 2d 149, 157, 233 N.E.2d 537, 541-42.

The parties present at least some argument as to the applicability of each of the six factors contained in Korzen. The Home maintains that the Department has waived its right to argue on appeal that the Home failed to present adequate proof concerning the third, fourth, and sixth factors because the Department failed to mention these factors during oral argument in the circuit court. No transcript of the oral arguments in the circuit court is contained in the record on appeal. However, we note that the Department’s brief submitted to the circuit court contains arguments as to each of the six Korzen factors. Accordingly, we conclude that the question of the applicability of each of the six factors to the case at bar has been properly presented for review.

We note that (1) because the terms of article IX of the Illinois Constitution subject all property generally to taxation, courts of review must strictly construe statutes granting tax exemptions and require that such statutes keep clearly within the boundaries set forth in the Constitution; (2) the burden of proving the right to an exemption is upon the party seeking it; and (3) in determining whether property is included within the scope of an exemption, all facts are to be construed, and all debatable questions resolved, in favor of taxation. Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537.

After carefully considering the record and the foregoing legal principles, we conclude that sufficient evidence was introduced to support the hearing officer’s findings and the Department’s decision to deny the Home’s request for a tax exemption.

The record indicates that after a person seeking to live in the cottage apartments fills out an application, that person’s name is placed on a waiting list for either a new unit, a unit with no prepayment requirement, or a unit with a prepayment requirement. Construction costs vary from $36,000 to $58,000, and, at the time of the hearing, only 30 of the 90 units had no prepayment requirement.

The Home points out that tax exemptions have been consistently denied to institutions which require the initial payment of a substantial, nonrefundable “founder’s fee.” (See Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537; Plymouth Place, Inc. v. Tully (1977), 54 Ill. App. 3d 657, 370 N.E.2d 56.) The Home argues that its plan may be distinguished from the “founder’s fee” requirements because the unused balance of the “prepaid rent” is refundable if a resident terminates occupancy of the cottage apartments.

The Home’s argument ignores the fact that residents of the cottages with prepaid rent requirements must not only be able to initially afford the prepayment of rent, which is substantially more than many of the “founder’s fees,” but also will not have the financial use of the sums of “prepaid rent.” In addition, old-people’s homes which do not require an entrance fee have been denied tax exemptions. (See Small v. Pangle (1975), 60 Ill. 2d 510, 328 N.E.2d 285.) We conclude that the fact that most applicants are required to pay a substantial amount of “prepaid rent” clearly represents an obstacle to the receipt of the benefits offered by the Home.

The record further indicates that a person who does not have the money to pay the construction cost, or whatever prepayment amount that remains, will not be considered for one of those apartments and will be limited to one of the cottages that does not have a prepayment requirement. The Home did not present any evidence that a person who had been unable to pay, or who was on public aid, had ever lived in the cottage apartments. Accordingly, we conclude that the Home does not dispense aid to those who need and apply for it.

The record indicates that the primary purpose of the cottage apartments is to provide living quarters for residents. The apartments are primarily used as residential lodging for those individuals fortunate enough to be able to afford the financing of their construction and for the monthly rental requirements. Although the apartments are pleasant and benefit those who reside in them, they are merely a convenient way for elderly people to feel secure and live in an environment that satisfies their needs according to their ability to pay. If they do not pay, their residency may be terminated. There is no provision mandating that any charity be dispensed to individuals who do not pay or to any destitute member of society in general. The incidental benefit accruing to the public is no different from that associated with almost any lawful housing endeavor. Accordingly, we conclude that the primary use of the property in question is not for charitable purposes.

The Department’s decision to deny the Home a tax exemption was not contrary to the manifest weight of the evidence.

For the reasons stated herein, we reverse the circuit court’s judgment and affirm the Department’s decision to deny a tax exemption.

Reversed.

MILLS and McCULLOUGH, JJ., concur.


author: JUSTICE SCHNAKE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY D. GRUNER, Defendant-Appellant.
    Second District
    No. 83—1025
    Opinion filed February 19, 1985.
    Richard J. Short, of McHenry, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko, William L. Browers, and Sally A. Swill, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The defendant, Barry D. Gruner, was charged by information with reckless homicide. (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.) Following a jury trial he was convicted of that offense and sentenced to a 30-month term of probation, which included a six-month jail sentence. He was also fined $1,000. The defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt; (2) that the trial court improperly admitted evidence of the concentration of alcohol in his breath as shown by a test administered to him after his arrest; and (3) that the trial court improperly excluded evidence of the concentration of alcohol in the decedent’s blood.

This case arose out of a collision between the defendant’s car and a car driven by Ricky Geren. Geren died as a result of injuries sustained in the collision. The accident occurred on April 9, 1983, in the early morning hours, on Route 14, just west of Borden Street in Cary. At the location of the collision, Route 14 is a two-lane road that runs in a northwest-southeasterly direction.

The State presented two occurrence witnesses, Diane Van Allen, who had been a passenger in the decedent’s car on the night in question, and Christine Militello, who had been driving her car behind Geren’s at the time of the accident.

Van Allen testified that on the night in question she and her friend, Debbie Stoddard, went to Harrigan’s, a tavern in Crystal Lake, sometime between 11 p.m. and midnight. Van Allen was driving her car, and Stoddard was a passenger. Van Allen had previously been at the Bring Her Inn in Crystal Lake, where she had one beer. While she was at Harrigan’s, Van Allen had three more beers.

At about 1 a.m., she saw Ricky Geren in the tavern. She played darts and visited with him, Stoddard, and others. Van Allen, Stoddard, and Geren eventually decided to go dancing at Peabody’s, a bar in Cary, and they left Harrigan’s at about 1:50 a.m. Van Allen stated that when she first saw Geren in Harrigan’s, he had a mixed drink in his hands, and that he had one more before they left. She stated, however, that he did not appear to be under the influence of alcohol.

When they left Harrigan’s, it was agreed that Stoddard would drive Van Allen’s car, and Van Allen would ride in Geren’s car, a red Corvette. Stoddard left about five minutes before Geren and Van Allen.

Van Allen testified that as she and Geren approached the scene of the accident from the west, they were traveling 30 to 35 miles per hour. The speed limit at that location was 30 miles per hour. It was raining. Geren and Van Allen were talking to each other. She testified that Geren “was glancing at me, back and forth between me and the road.” She then saw a car approaching from the east more than halfway in their lane. The other car was about two car lengths away. Geren jerked the steering wheel violently to the right, and the cars collided. The other car hit the Corvette on the driver’s side. After the collision, the Corvette did not travel much, if at all. Geren was unconscious immediately after the crash.

On cross-examination, Van Allen stated that at Harrigan’s Geren told her that he had just purchased the Corvette a week before and wanted to show it to her. She said that when they left, Geren had not finished the second drink she saw him with. She did not smell alcohol on his breath at that time or later on in the car.

When they were driving east toward the accident, Geren had the radio on. Van Allen characterized the rain as “steady.” She testified that when Geren would look at her, he would take his eyes off the road for a second or two. After one of these glances, Van Allen heard Geren say “shit.” She looked forward and then saw the other car. She was able to determine that the other car was partially in the eastbound lane because she could see the center line. After Geren jerked the steering wheel to the right, the Corvette went partially onto the shoulder of the road before the impact.

Christine Militello, who had been driving her car behind the Corvette at the time of the accident, testified that on the night in question from about 10 p.m. until about 11:45 p.m. she was at Cat Ballou’s, a tavern in Crystal Lake. Militello had two beers there. When she left, she went to Harrigan’s, arriving at about 12:10 a.m. Militello testified that she had nothing to drink at Harrigan’s. She listened to music and visited with friends.

According to Militello, at about 1:30 a.m. she left Harrigan’s to meet her sister at Peabody’s. She was driving her Dodge Omni and was alone. She noticed a Corvette traveling east ahead of her. There were no cars between her Omni and the Corvette. It was raining. As they approached the scene of the accident, both cars were traveling about 30 to 35 miles per hour. Militello testified that she saw a car approaching from the east “half over into the eastbound lane.” She saw the Corvette start to swerve to the right, and then the collision occurred. The left front of the westbound car hit the left side of the Corvette right around the front wheel. The westbound car “kept running along the side of the Corvette,” “came around the back” of it, and cut in front of Militello’s car, and pulled over onto the shoulder of the eastbound lane. She did not see the westbound car swerve after it hit the Corvette.

Militello testified that she drove into the westbound lane to avoid the car which cut in front of her. She drove back into the eastbound lane and then parked in a nearby driveway. Militello got out of her car and went over to the Corvette, where she saw Geren unconscious. Van Allen, who was very upset, said to her, “Oh, my God, did you see that car over in our lane?”

On cross-examination, Militello characterized the rain just prior to the accident as “just above a drizzle.” She said that visibility was very good.

The State presented evidence that the defendant was the driver of the westbound car, which was a Ford Thunderbird. Several witnesses testified that after the collision he appeared to be under the influence of alcohol. There was testimony that his cheeks were flushed and his eyes bloodshot. Officer Giallombardo of the Cary police department testified that the defendant did not perform well on certain field sobriety tests. The State also introduced the results of the defendant’s breath test which showed an alcohol concentration of 0.15, based on the definition set forth in section 11—501.2 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.2.) According to that provision, a person is presumed to be under the influence of alcohol if the concentration is 0.10 or more. (The jury was instructed that this presumption was not binding on it, and that other evidence on the question of intoxication could properly be considered.)

Officer Dennis Keys, the evidence technician for the Cary police department, testified concerning his investigation of the scene. He stated that the body of the Corvette was made of fiberglass and that the debris at the scene consisted mostly of fiberglass which had broken off the body of the Corvette. The debris was located primarily in the eastbound lane of Route 14. One piece of debris, also fiberglass, was found on the shoulder of the westbound lane. Officer Keys expressed his opinion, based on the location of the vehicles and debris after the collision, that the impact occurred in the eastbound lane.

On cross-examination, Officer Keys was asked whether the impact could have occurred a “matter of inches” south of the center line, and he replied, “I wouldn’t be able to speculate on that at all due to the weather conditions.”

The defense presented one occurrence witness, the defendant himself. He testified that on the day in question he met his friend, Robert Salzman, at the latter’s place of business in Elk Grove Village. They had planned to shop for uniforms for their softball team that afternoon. They left Salzman’s place of business at about 3:30 p.m. and went to Bennigan’s, a tavern in Schaumburg, each of them driving his own car. They stayed at'Bennigan’s for an hour to an hour and a half, and during that time the defendant had two beers and a cup of clam chowder.

From Bennigan’s they went to a sporting goods store in downtown Palatine to look at uniforms. They were at the store for about a half hour, and upon leaving took with them two or three pamphlets advertising uniforms.

The two then proceeded to Gimmicks, a bar on Route 14 in Palatine, arriving at about 6:30 p.m. The defendant stayed there until about 1:45 a.m. While there, he looked at the brochures with Salzman, played pool and video games, and visited with other patrons of the tavern. The defendant testified that while he was at Gimmicks he had seven beers and two large pieces of deep-dish pizza.

When he decided to go home, the defendant told Salzman he was leaving because he had a golf date in the morning. The defendant testified that when he left the bar, it was pouring rain. He drove westbound on Route 14 toward his home in Cary. On the way, he passed numerous traffic lights and went through the business district of Fox River Grove. When he reached Cary, he was driving very slowly. Visibility was down to about 25 feet because of the rain. The defendant was using the white fog line at the side of the road as a reference point. As he approached the scene of the accident, he could not see the center line.

The defendant testified that as he was driving westbound, he saw a “body of red” about five feet ahead of him, and then the collision occurred. At the moment of impact he was in his own lane, although he might have been very close to the center line. He stated that he felt the left front end of his Thunderbird go up in the air. The left front of his car moved along the side of the Corvette and then dropped to the pavement. At that point he was unable to steer. His tire was locked in a position that forced his car to jump into the eastbound lane, and his car traveled forward for about 50 to 100 feet before it stopped. He then pulled it over onto the shoulder of the eastbound lane, where he sat and waited until a police officer arrived a few minutes later.

As a result of the collision, the defendant received a superficial wound on the top of his head. The defendant denied that he performed poorly on the field sobriety tests.

On cross-examination, the defendant testified that when he first saw the “body of red” of the Corvette, it was almost parallel to his car. He stated that the initial impact might have occurred in the center of the road. He also said that he had been going 25 to 30 miles per hour at the time of the collision.

The defense also presented the testimony of the defendant’s friend, Salzman, which essentially corroborated that given by the defendant concerning events occurring before his departure from Gimmicks. Salzman stated that in his opinion the defendant was not under the influence of alcohol when he left. Salzman said that his friend’s face was not flushed and his speech was not slurred, and that he had no difficulty walking.

The defense also introduced, by way of stipulation, that there was some alcohol in the decedent’s blood, but the trial court prohibited the defense from presenting evidence of the concentration of alcohol, which had been determined to be 0.18.

Whitey Hursh, a tow truck driver who responded to the scene at the request of the Cary police department, also testified for the defense. He stated that when he arrived at the scene, Officer Keys directed him to pick up the debris. According to Hursh, the debris was scattered from right about the center line towards the south side of the road.

The defense also presented evidence that on the morning after the collision, when the Corvette was being towed into an auto body shop to be photographed, the dust cap fell from the left front wheel. There was a castle nut covered with grease inside the dust cap. Several witnesses testified that the threads on the castle nut were not stripped. It is undisputed that the threads of the spindle onto which the castle nut fit were also not stripped. Daniel Streit, an auto mechanic and the owner of the body shop, testified as follows:

“THE WITNESS: If the castle nut came loose [while the Corvette was being driven] it would loosen the bearings which would come out of the rotor which in turn would have to make it [the wheel] start wiggling and the only thing that would hold it on at that point would be the calipers which are the brakes that go in the calipers.
MR. SHORT [defense counsel]:
Q. If someone were to make a violent or any movement of a Corvette especially, turning in any direction, what would the result be as far as that left front wheel?
A. It would definitely turn that way.
Q. Would it lock the wheel?
A. It would lock.”

In rebuttal, the State introduced a dust cap, castle nut, and pieces of a cotter pin. The State’s witnesses testified that these items were from the left front wheel of the Corvette, and the witnesses established a satisfactory chain of custody for them. A forensic scientist with the Illinois Department of Law Enforcement had cleaned off the grease. The threads on the castle nut were completely stripped with the exception of one small section. Royce Donner, a professional engineer, testified for the State that in his opinion the damage to the castle nut was caused by the collision.

The defendant contends that the foregoing evidence was insufficient to prove his guilt beyond a reasonable doubt. The offense of reckless homicide is defined in section 9—3 of the Criminal Code of 1961 as follows:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.” (Ill. Rev. Stat. 1983, ch. 38, par. 9—3.)

The mental state of recklessness is defined in section 4—6, in pertinent part, as follows:

“A person *** acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1983, ch. 38, par. 4—6.

In the instant case there was ample evidence that the defendant was intoxicated at the time of the accident. In addition, two eyewitnesses testified that the collision occurred in the decedent’s lane of traffic. Although the collision occurred at nighttime when it was raining, Christine Militello, the driver of the the car directly behind the decedent’s Corvette, testified that visibility. was very good. Under these circumstances, the jury was justified in finding the defendant guilty beyond a reasonable doubt. See People v. Davis (1982), 105 Ill. App. 3d 129, 434 N.E.2d 13 (reckless homicide convictions affirmed where the defendant, while intoxicated, drove his car into the victims’ lane of traffic, striking their car).

While in the instant case the defendant presented conflicting testimony on the question of his intoxication and the location of the collision, it was the prerogative of the jury to resolve the conflicts as it did. It was also the jury’s prerogative to resolve the conflicting evidence concerning whether the left front wheel assembly of the Corvette was defective prior to the collision. A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In our judgment, the State’s evidence was not at all improbable and was sufficient to prove the defendant’s guilt beyond all reasonable doubt.

People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251, cited by the defendant, is readily distinguishable from the instant case. In Walljasper the cause of the accident was an icy patch of roadway which the defendant would not have been able to negotiate safely even if he had been completely sober. In fact, another driver had lost control of her vehicle on the same icy patch shortly before the fatal accident. In the instant case, if the conflicts in the evidence are resolved in the State’s favor, as they apparently were by the jury, there is no indication that anything other than the defendant’s recklessness could have caused his car to travel into the opposite lane.

The defendant’s next contention is that the trial court improperly admitted evidence of the concentration of alcohol in his breath, i.e., 0.15, as shown by a test administered to him after his arrest. On the second day of trial, the defense presented a motion to exclude the test results. The motion alleged that after the collision the defendant was arrested for a violation of section 11—501 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95V2, par. 11—501) (driving while under the influence of alcohol) or a local ordinance equivalent. He was charged with such offense by the city of Cary, but the charge was nol-prossed when the State decided to bring the reckless homicide charge. According to the defendant’s motion, after he was arrested, the police read him the nine-paragraph warning required by section 11—501.1 of the Code as amended by Public Act 82—221. (Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501.1.) One of those warnings was that, if he took the breath test, the results could be introduced in evidence against him “to support the charge of driving while under the influence of intoxicating liquor.” The defendant sought to exclude the results of the breath test under subsection (c) of that statute, which provided in pertinent part, “No evidence of any test taken pursuant to this Section is admissible in any criminal proceeding except in a proceeding under Section 11—501.” Since the charge under that provision had been nol-prossed, the defendant argued, the trial was not a “proceeding under Section 11—501,” and the test results were inadmissible. He also maintained that use of the test results in the reckless homicide prosecution would violate his constitutional rights because his consent to take the test was limited so that it would be valid only in a prosecution for driving while under the influence of alcohol. The defendant’s motion to exclude the test results was denied, and as noted above, they were admitted into evidence at trial. In this court, the defendant presents essentially the same arguments he presented at trial on this issue.

We will first address the contention that the test results should have been excluded under section 11—501.1 as amended by Public Act 82—221. Public Act 82—221 was passed by our General Assembly on June 18, 1981. Later that same day our legislature passed Public Act 82—311, which also amended section 11—501.1 (see People v. Frye (1983), 113 Ill. App. 3d 853, 859, 447 N.E.2d 1065). Both laws took effect on January 1, 1982, over a year before the accident involved herein took place. Whereas section 11—501.1, as amended by Public Act 82—221, includes the language upon which the defendant relies, limiting the use of tests taken under that section to “proceeding[s] under Section 11—501,” as amended by Public Act 82—311, section 11—501.1 does not include that exclusionary rule. Ill. Rev. Stat. 1981, ch. 95V2, par. 11—501.1.

Section 6 of “An Act to revise the law in relation to the construction of the statutes” provides, in pertinent part:

“Two or more Acts which relate to the same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict. ***
An irreconcilable conflict between 2 or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed.” (Ill. Rev. Stat. 1983, ch. 1, par. 1105.)

Of the two Acts amending section 11—501.1, Public Act 82—311, which does not include the exclusionary provision upon which the defendant relies, was “the Act last acted upon by the General Assembly,” and thus would be controlling in the case of irreconcilable conflict. (People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1065.) The defendant argues, however, that the two Acts are not in irreconcilable conflict, and that we should, therefore, give effect to the exclusionary provision in section 11—501.1 as amended by Public Act 82— 221.

We need not consider the defendant’s interesting arguments in this regard, although it should be noted that in Frye the court concluded that “[reconciliation of the two [Acts] is well beyond the best powers of even a Byzantine theologian.” (People v. Frye (1983), 113 Ill. App. 3d 853, 859, 447 N.E.2d 1065.) The reason this question need not be considered is that over a year after our General Assembly passed the two Acts discussed above, it enacted Public Act 82—783, which took effect prior to the accident involved herein. (1982 Ill. Laws 1233.) Article III of the latter act states that it “provides for the non-substantive revision *** of Sections of Acts necessitated by the amendment *** of Sections by two or more Public Acts of the 82nd General Assembly, which multiple action was not resolved by one of the Acts affecting the particular Section.” (1982 Ill. Laws 231-32.) Section 37 of article III provides that section 11—501.1 is amended to read as it was amended by 82—311. (1982 Ill. Laws 328-35.) Our legislature has, therefore, chosen between the two prior versions of section 11—501.1, and it has selected the one which does not include the exclusionary provision upon which the defendant relies. Accordingly, section 11—501.1 as amended by Public Act 82—221 is not applicable to this case and cannot provide a basis for exclusion of the results of the defendant’s breath test.

The defendant has cited no authority in support of his contention that admission of the test results into evidence violated his constitutional rights. The entire argument on this point in the defendant’s brief is as follows:

“To hold otherwise [than requested by the defendant] would disregard the basic reason why implied consent Statutes have been constitutionally upheld in the face of the constitutional right against self incrimination.
If both the refusal to take the test and the test results are admissible in evidence against the Defendant, how is his constitutional right against self-incrimination satisfied?
He impliedly consents, in return for a driver’s license to take the test or lose his license for a period of time. It can hardly be said that he impliedly consents to take the test or must confess against himself as being intoxicated in a reckless homicide felony case.
When the officer, as required by Statute, explains that a refusal may result in a six month suspension, this is not the equivalent of saying take the test and you might go to the penitentiary [sic]? The Statutory warning says nothing about the results of the test being used in a felony criminal trial.
Even if.the Court is to say that the latter passed Statute [Public Act 82—311] controls, will the refusal to take the test or the test results both be admissible in a prosecution for reckless homicide where the alleged violation of [section 11—501] was dismissed and not tried simultaneously?”

It is clear that the defendant’s argument on this point, aside from its lack of citation of authority, does little more than posit questions and state conclusions, and it is devoid of any meaningful legal analysis. Under these circumstances, we will not rule on the merits of the argument. People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

The defendant’s final contention is that the trial court improperly excluded evidence of the concentration of alcohol in the decedent’s blood. The accident which gave rise to the criminal charge in the instant case occurred at about 2 a.m. on April 9, 1983. The decedent, Ricky Geren, was pronounced dead at Good Shepherd Hospital in Barrington a short time later, and his body was subsequently taken to the Lake County coroner’s facility. At 11 a.m. the same day the chief medical investigator for the Lake County coroner took a blood sample from the body. Tests performed on that sample showed an alcohol concentration of 0.18, which was higher than that of the defendant.

Prior to trial, the State moved to exclude this evidence on the grounds that (1) the blood sample was not drawn from the decedent within six hours of the accident causing his death, or at the direction of a licensed physician, as required by section 10 of “An Act to revise the law in relation to coroners” (hereinafter the Coroner’s Act) (Ill. Rev. Stat., 1982 Supp., ch. 31, par. 10); and (2) the chief medical investigator for the Lake County coroner was not qualified by the Department of Public Health under section 11—501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.2) to withdraw blood samples. The State informed the trial court that, aside from the excessive delay, it had no quarrel with the method by which the blood sample was taken, and that, as far as the State knew, it had no quarrel with the analysis of the sample. The defendant opposed the State’s motion, and the trial court granted it, excluding the specific test results, but permitting the defendant to show that blood samples taken from the decedent’s body after the accident showed “some alcohol.”

In this court the defendant contends that neither the Coroner’s Act nor the Illinois Vehicle Code required the exclusion of the test results, and that he was improperly deprived of an opportunity to present relevant evidence in his defense on the question of whether he caused the accident which resulted in the death. In response, the State raises an issue it did not present to the trial court by arguing that the degree of intoxication of the decedent driver was not relevant. The State also relies on the statutes it cited to the trial court and argues that if the exclusion of this evidence was error, it was harmless error.

It is our judgment that, considering the totality of the evidence introduced in this case on the question of whether the defendant caused the accident and death, the exclusion of the test results, if error, was harmless beyond a reasonable doubt. (See Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) In this regard it should be noted that the State was not required to prove that the defendant’s acts were the sole and immediate cause of death, but rather that they were a contributing cause such that death did not result from a cause unconnected with the defendant. People v. Brown (1973), 9 Ill. App. 3d 730, 293 N.E.2d 1; People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570.

Diane Van Allen, the passenger in the decedent’s car, testified that the defendant’s car was more than halfway in the decedent’s lane prior to the collision. She said that she knew the defendant’s car was in the wrong lane because she could see the center line. Christine Militello, who happened to be driving her car behind the decedent’s Corvette, testified that the defendant’s Thunderbird was “half over” into the decedent’s lane. Militello said that visibility was fairly good at the time of the crash.

Officer Dennis Keys, the evidence technician, testified that the debris from the collision was all in the decedent’s lane of traffic except for one piece on the shoulder of the defendant’s lane. He gave his opinion, based on the location of the debris and the cars after the collision, that the accident occurred in the decedent’s lane. The only evidence to the contrary was the defendant’s testimony that he was in his own lane at the moment of impact. Yet, the defendant also testified that visibility was very poor for him, and he admitted that, as he approached the scene of the collision, he could not see the center line.

In light of this evidence, even if the jury had been informed of the degree of the decedent driver’s intoxication as shown by the test results, the jury could not but have found that the defendant drove his car into the wrong lane and thereby contributed to cause the accident and death. Accordingly, the exclusion of the results of the testing of the decedent’s blood, if error, was harmless beyond a reasonable doubt. See People v. Boyce (1981), 95 Ill. App. 3d 740, 420 N.E.2d 687.

For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

NASH, P.J., and REINHARD, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK BRAJE, Defendant-Appellant.
    Second District
    No. 84—115
    Opinion filed February 19, 1985.

      Kathleen Zellner, John N. Pieper, and Aldo E. Botti, all of Botti, Marinaccio & Maksym, of Oak Brook, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Defendant, Mark Braje, appeals from two orders of the circuit court of DuPage County which denied his motion to withdraw his guilty plea and vacate his conviction and his motion for a reduced sentence. In his motion to withdraw his guilty plea, defendant alleged that the trial court failed to advise him of his right to elect treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1983, ch. 911/2, pars. 120.1 through 120.29) or to order a presentence report. The trial court denied that motion on the basis that another felony was pending and no updated presentence report was needed. Defendant also argues that the trial court erred in denying his motion to reduce his sentence because the sentence imposed was excessive under the circumstances.

Defendant’s encounters with the criminal justice system which led to his eventual pleas of guilty on two separate burglary charges and a residential burglary charge, and three concurrent prison sentences of seven years for each of the burglaries and eight years for the residential burglary, entailed proceedings before three different judges of the circuit court of Du Page County. Initially, the State charged defendant with, among other charges, burglary on March 22, 1982 (No. 82 CF 248—01). He pleaded guilty to burglary before Judge Peccarelli on August 9, 1982, and the State nolle prossed the other charges (No. 82 CF 885, 886, 887, 888). On October 28, 1982, defendant filed a motion to elect treatment as an addict. The court directed that defendant contact a specified drug abuse treatment center to determine his eligibility. Apparently, defendant, after contacting a center, withdrew this motion.

On January 27, 1983, defendant was charged with burglary (No. 83 CF 131—01), theft (No. 83 CF 131—02), attempted burglary (No. 83 CF 132—01), attempted burglary (No. 83 CF 132—02), and criminal damage to property (No. 83 CF 132—03). These proceedings were before Judge Helen C. Kinney. Defendant filed a motion to elect treatment on all five of these counts on March 2, 1983. Again, it appears that defendant subsequently withdrew this motion.

On June 15, 1983, defendant was charged by information with residential burglary (No. 83 CF 400—01) and theft under $300 (No. 83 CF 400—02). These proceedings were before Judge Carl F. J. Henninger.

The proceedings before Judges Kinney and Henninger were transferred to Judge Peccarelli for implementation of a plea agreement. On August 31, 1983, defendant pleaded guilty to burglary (No. 83 CF 131—01) and residential burglary (No. 83 CF 400—01). The State nolle prossed all of the other charges pursuant to a plea agreement. The agreement further provided that defendant’s probation on a prior proceeding would be terminated unsatisfactorily (No. 81 CF 688). During this hearing, the State outlined the factual basis for the pleas of guilty on the charges previously pending before the other judges. The plea of guilty to burglary involved defendant’s remaining in a drug store until it closed, breaking into a drug cabinet, taking a large amount of drugs, and then breaking out of the store. The residential burglary involved defendant’s breaking and entering into a residence and taking an item of jewelry. The earlier burglary charge arose from the breaking and entering of a doctor’s office and the theft of certain drugs and prescription blanks from a prescription pad.

After accepting defendant’s guilty pleas, the court conducted a sentencing hearing. The court referred to the presentence report prepared in the initial burglary proceeding (No. 82 CF 248) and asked whether defendant -wished to add anything to that report. The only new information presented consisted of the fact that defendant had been employed for the past two months. The court then asked whether there was any criminal activity other than those matters appearing before him or those set forth in the presentence report. Defendant and the State answered in the negative. The court then sentenced defendant to three concurrent terms of imprisonment, seven years on each of the two burglaries and eight years on the residential burglary.

On September 30, 1983, defendant filed a motion for reduction of his sentence and a motion to withdraw his guilty pleas and vacate his convictions. The motion to withdraw his guilty pleas was subsequently amended on December 23, 1983. Defendant alleged in that motion, inter alia, that the trial court erred in failing to advise him of this right to elect treatment under the Dangerous Drug Abuse Act. He noted that the presentence report indicated a serious drug problem and that since that report was filed on September 16, 1982, significant events occurred of which the court should have been apprised prior to accepting defendant’s guilty plea—specifically, that he was addicted to a controlled substance at the time that the residential burglary was committed. He alleged that on March 16, 1983, he was voluntarily admitted to a hospital with the following diagnosis: Alcoholism episodic; drug addiction by history; major depression, recurrent. He was discharged from the hospital with the final discharge diagnosis being: Major depression, recurrent, controlled with medication; alcoholism episodic; drug addiction by history. On April 18, 1983, 10 days after his discharge, defendant was readmitted to the hospital for further treatment and discharged on the next day. The doctor who treated defendant executed an affidavit which was attached to defendant’s motion, which, in addition to supporting the allegations in the motion, added that immediately prior to defendant’s March 16 admission, he had an extensive cocaine habit and was using cocaine at least five times per week. Defendant further alleged in his motion that an updated presentence report should have been ordered by the court because it would have apprised the court of the relevant facts.

At the January 11, 1984, hearing on defendant’s motion to withdraw his guilty pleas, the court found that since other charges were pending against defendant and those charges had been transferred there for the implementation of the plea agreement, defendant was not eligible for treatment under the Dangerous Drug Abuse Act. Further, the court found that no error resulted from the lack of an updated presentence report. Consequently, the court denied defendant’s motion.

On February 9, 1984, the court conducted a hearing on defendant’s motion to reduce his sentence, and at the conclusion of this hearing denied the motion.

Defendant filed timely notice of appeal from both of these orders on February 10, 1984.

Defendant argues two bases upon which the trial court should have granted his motion to withdraw his guilty pleas and vacate his convictions. Defendant’s second basis, the trial court’s failure to order an updated presentence report, will be addressed first.

Section 5—3—1, as amended, of the Unified Code of Corrections requires that the trial court consider a written presentence report before sentencing a defendant unless the defendant and the State agree to the imposition of a specific sentence “provided there is a finding made for the record as to the defendant’s history of delinquency or criminality ***.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 3—1.) Thus, where the State and the defendant agree to a specific sentence, the requirement that the trial court be presented with a presentence report may be waived. (See People v. Youngbey (1980), 82 Ill. 2d 556, 561; People v. Casper (1981), 97 Ill. App. 3d 787, 790.) However, dispensing with a presentence report requires the trial court to make a finding for the record as to the defendant’s history of delinquency or criminality. Defendant argues in the instant case that the trial court made no such finding. However, the record of the sentencing hearing discloses that the court asked whether any criminal activity of defendant other than those cases appearing before it and those which were set forth in the prior presentence report existed. The court received a negative response. This exchange indicates that, although the court did not specifically state its finding, it clearly arrived at such a finding based on the presentence report. Thus the purpose of a presentence report, to insure that the trial judge has all necessary information concerning the defendant before sentencing is imposed, was satisfied under the circumstances. See People v. Coleman (1983), 120 Ill. App. 3d 619, 623, aff'd (1985), 105 Ill. 2d 290 (an updated presentence report unnecessary after the defendant’s probation was revoked where a report was prepared at the original sentencing hearing, that report is relatively current and the defendant is given the opportunity to present any additional information).

Defendant’s other point outlined in his motion to withdraw his guilty pleas involves the Dangerous Drug Abuse Act. Section 8 of that Act provides in pertinent part that “[a]n addict *** convicted of a crime is eligible to elect treatment under the supervision of a licensed program *** instead of prosecution or probation, *** unless *** (d) other criminal proceedings alleging commission of a felony are pending against the addict, or *** (f) the addict elected and was admitted to a treatment program on two prior occasions within any consecutive two-year period.” (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.8.) Sections 9 and 10 of the Act, read together, provide that if a court has “reason to believe” that an individual charged with or convicted of a crime is an addict and the court finds that he is eligible to make the election provided for in section 8, the court shall advise him of the possibility of treatment under the Act. (Ill. Rev. Stat. 1983, ch. 91V2, pars. 120.9, 120.10.) Recently, our supreme court found that the purpose of this provision is informational and held that it “requires the trial judge to inform every defendant whom he knows or has reason to believe is an addict of the possibility of treatment under the Act ***.” (People v. Richardson (1984), 104 Ill. 2d 8, 17.) The trial court’s duty to advise a defendant of this right to elect treatment, however, is triggered only when the prerequisites of section 8 have been satisfied. (People v. Berry (1983), 118 Ill. App. 3d 1024, 1025-26.) A circuit court’s discretion to offer a defendant a chance to receive treatment under the Act arises if the defendant is eligible according to section 8 of the Act and there is reason to believe that the defendant is an addict. (People v. Rohman (1983), 117 Ill. App. 3d 55, 58.) When a trial court is required to exercise its discretion under the Act, the record must show that the court has indeed exercised its discretion. 117 Ill. App. 3d 55, 58.

The record of the sentencing hearing in the instant case discloses that the trial court did not exercise its discretion under the Act when it sentenced defendant. In denying defendant’s motion to withdraw his guilty pleas, the court stated that defendant was not eligible under section 8 of the Act for treatment because the other felony proceedings which were pending against him before other judges were transferred to it only for implementation of the negotiated plea agreement. The court continued that therefore the decision in People v. Morguez (1980), 90 Ill. App. 3d 471, was inapplicable. In Morguez, the trial court found the defendant ineligible for treatment because there were other felony proceedings pending against the defendant. The appellate court remanded the cause to the trial court with directions that it exercise its discretion to grant or deny the defendant treatment under the Act. The reviewing court held that although the defendant had been indicted for five unrelated felonies, which were all pending before the same trial court, once the court accepted the defendant’s pleas of guilty, he was a convicted felon and no other criminal proceedings alleging commission of a felony were pending against him. (90 Ill. App. 3d 471, 479.) The court continued that the most obvious purpose behind this disqualifying factor is to prevent the trial court from initiating a rehabilitation program when the defendant might still be sentenced in another courtroom for a crime, the circumstances of which the present sentencing judge might have no knowledge. People v. Morguez (1980), 90 Ill. App. 3d 471, 480.

The holding in Morguez, and other cases which have arrived at holdings in accord therewith (see People v. Chaput (1981), 100 Ill. App. 3d 982, 985; People v. Myers (1976), 36 Ill. App. 3d 458, 463), should apply in the instant case. The fact that the charges had been pending before other judges does not appear sufficient reason to hold Morguez inapplicable. After the court here accepted defendant’s guilty pleas, no other felony proceedings were pending against him. Thus, immediately prior to sentencing, defendant was not disqualified from electing treatment under the Act on the basis relied upon by the trial judge.

To support the trial court’s order denying defendant’s motion to withdraw his guilty pleas, the State contends, as it did below, that defendant’s two voluntary admissions to the hospital constitute an election and admission to a treatment program on two prior occasions within the meaning of section 8(f) of the Act which provides that under those circumstances, a defendant may not elect treatment under the Act. Defendant argues that section 8(f) did not disqualify him from electing treatment since the language of that subsection indicates that the treatment program must be one conducted and approved by the Dangerous Drug Commission. However, the appellate court in People v. Rohman (1983), 117 Ill. App. 3d 55, rejected a related argument. The court stated: “We disagree with the defendant’s argument that the election and admission to ‘a treatment program’ under section 8(f) of the Act must have occurred after the defendant was charged with or convicted of a crime to disqualify the defendant from electing treatment under the Act. As we read the statute, any entry by an individual into a voluntary treatment program on two prior occasions within any consecutive two-year period disqualifies that individual from eligibility for treatment under the Act.” (117 Ill. App. 3d 55, 59-60.) In Rohman, the court consequently held that the defendant was ineligible to elect treatment under the Act. There, however, unlike the court in the instant case, the court had evidence of three separate treatment programs which the defendant voluntarily underwent. Here, the record does not establish that defendant underwent “a treatment program” by his voluntary admissions to the hospital. Further, it appears that the second admission was a continuation of the initial admission in that it occurred 10 days after he had been discharged and consisted of hospitalization for only one day. Under these circumstances, it does not appear that defendant had been admitted to a treatment program on two prior occasions within the meaning of section 8(f) of the Act.

Having concluded that defendant was eligible under section 8 of the Act to elect treatment, the next inquiry focuses upon whether the trial court had reason to believe that defendant was an addict within the meaning of section 10 of the Act. The court never stated on the record its findings in this regard. Nevertheless, this court has authority to review the facts to determine whether there was reason to believe that defendant was an addict even though the court below made no such determination. People v. Beasley (1982), 109 Ill. App. 3d 446, 454.

“Reason to believe” as used in this statute is the semantic equivalent of probable cause. (People v. Futia (1983), 116 Ill. App. 3d 68, 72.) An addict is “any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.3— 3.) Whether there is reason to believe that an individual who has been convicted of a crime is an addict must be determined from the facts presented in each case. Whether those facts, gathered from evidence or information presented during a trial or a sentencing hearing, reach the extent of the statutory definition of addict, cannot be determined from fixed rules or guidelines. (People v. Flores (1979), 79 Ill. App. 3d 869, 876; People v. Newlin (1975), 31 Ill. App. 3d 735, 740-41.) This section, however, does not require the trial court to initiate an inquiry to determine whether there is reason to believe that the defendant is an addict. (People v. Hannon (1981), 97 Ill. App. 3d 358, 362; People v. Melson (1976), 36 Ill. App. 3d 71, 73.) Rather, this section only requires that when sufficient facts are brought to the attention of the trial court showing that there is reason to believe that the defendant is an addict, the court must exercise its discretion and consider alternative treatment under the Act; where the record does not reflect that the trial court ever considered whether defendant was an addict or the appropriateness of allowing the accused to choose treatment under the Act, the cause will be remanded for a new sentencing hearing. People v. Benedetto (1981), 102 Ill. App. 3d 10, 19; People v. Dill (1974), 23 Ill. App. 3d 503, 506.

In this case a number of facts, when considered together, lead to the conclusion that probable cause existed that defendant was an addict. The two burglary offenses involved the theft of drugs and blank prescription slips. Defendant’s brother informed the probation officer who submitted the presentence report that defendant developed a serious drug problem when he was 18 or 19 years old. On the date that the report was completed, defendant was 20 years old. The presentence report indicated that defendant had a poor employment history. Defendant’s brother said that the personnel department of defendant’s most recent employer recommended that defendant receive treatment for a drug problem. Defendant told the probation officer that a doctor wanted him to attend a 28-day drug abuse program, but defendant had decided against it. Defendant admitted that he smoked marijuana every once in a while and that he started using heavier drugs, downers, Quaaludes and Valiums, when he worked for his last employer, and that he had developed a psychological dependence upon them. He denied using any of these drugs since the initial burglary offense on which he pleaded guilty. Defendant’s brother, however, said that defendant had a bad drug problem but that defendant would not recognize or admit it. The probation officer noted that defendant may benefit from an inpatient treatment program for substance abuse.

The trial court was also made aware that defendant voluntarily admitted himself to a hospital to avail himself of drug rehabilitation. During the hearing on defendant’s motion to reduce his sentence, the court explained that the delay in sentencing defendant on the first burglary guilty plea was attributable to defendant’s desire to avail himself of drug rehabilitation.

When comparing the above facts with decisions in other cases, it appears that probable cause existed that defendant was an addict. In People v. Melson (1976), 36 Ill. App. 3d 71, the court found that where the presentence report indicated that the defendant had a serious dependence on drugs and the probation officer recommended treatment, the trial court had reason to believe that the defendant was an addict. Although the probation officer in the instant case did not make a recommendation since the court did not request one, he nevertheless advised the court that defendant would benefit from treatment. In People v. Dill (1974), 23 Ill. App. 3d 503, the appellate court found that evidence that the defendant had voluntarily enrolled in a drug rehabilitation program, had told the probation officer that he had been a heavy drug user since he was stationed in Vietnam in the early 70’s, and was under the influence at the time he committed the crime, raised the belief that defendant was an addict.

Another factor in determining whether sufficient facts exist to establish that the trial court had reasonable doubt to believe that defendant was an addict is the relation of crimes committed to the defendant’s drug addiction. (See People v. Chaput (1981), 100 Ill. App. 3d 982, 984 (crime was intended to obtain money to supply habit and the defendant had voluntarily enrolled in a drug rehabilitation program); People v. Robinson (1973), 12 Ill. App. 3d 291, 294 (crime committed to obtain money to supply habit and the defendant had a reputation as a known narcotic addict).) Reason to believe that the defendant was an addict existed in People v. Miller (1976), 43 Ill. App. 3d 290, where the defendant led a drug- and tavern-oriented lifestyle, excessively used alcohol and other drugs, and the presentence report advised that defendant should go for drug abuse therapy even though the report stated that defendant was currently free from drug dependency. In People v. Flores (1979), 79 Ill. App. 3d 869, the court found that the facts presented were sufficient to establish reason to believe that the defendant was an addict. There, the defendant voluntarily committed himself to a drug abuse program, stated in the presentence report that he was addicted to heroin, and maintained a sporadic work history.

In those cases where the appellate court rejected a defendant’s contention that the trial court was apprised of sufficient facts to alert it that the defendant was an addict, the facts supportive of the defendant’s position were minimal. For example, in People v. Knowles (1977), 48 Ill. App. 3d 296, the defendant had said that he no longer used heroin on a regular basis, although he also stated that he had recently used barbituates; the court found that there was no evidence that defendant’s drug use amounted to addiction. Similarly, in People v. Jones (1981), 97 Ill. App. 3d 619, the court said that, although the defendant may have had a drug problem, that alone did not establish a reason to believe that the defendant was an addict. See also People v. Noascono (1980), 80 Ill. App. 3d 921, 926 (although the defendant had a history of extensive drug use, he had not used drugs in the recent past and no longer had a need for them); People v. Futia (1983), 116 Ill. App. 3d 68.

In the instant case, sufficient facts were brought to the attention of the trial court through the presentence report, the nature of the offenses, and defendant’s hospital admission to establish probable cause to believe that he was an addict. Although defendant advised the court during the sentencing hearing that he had obtained employment, which may have negated a conclusion that he was a drug addict (see People v. Edwards (1975), 29 Ill. App. 3d 625, 629), the other evidence appears to outweigh this factor. Consequently, the trial court should have advised defendant of his right to elect treatment under the Act.

The State further argues that the two bases which defendant alleged to support his motion to withdraw his guilty pleas and vacate the convictions were insufficient as a matter of law. The decision whether to permit withdrawal of a plea of guilty lies within the sound discretion of the trial court. (People v. Smithey (1983), 120 Ill. App. 3d 26, 31.) A defendant should be permitted to -withdraw a guilty plea where he sustains his burden of establishing that he pleaded guilty based either upon a misapprehension of the law or the facts which led him to plead guilty, or that it is necessary to permit the withdrawal to correct a manifest injustice based upon the facts of the case. (People v. Hudson (1981), 95 Ill. App. 3d 350, 354; People v. Burrell (1978), 66 Ill. App. 3d 806, 807.) It has been held that a motion to vacate a guilty plea can encompass the issue of whether the trial court erroneously failed to permit the defendant to elect treatment under the Dangerous Drug Abuse Act. (See People v. Morguez (1980), 90 Ill. App. 3d 471; see also People v. Stickler (1975), 31 Ill. App. 3d 726, 729 (where defendant had pleaded guilty, the appellate court sua sponte vacated his sentence and remanded the cause for a new sentencing hearing because the trial court had failed to exercise its discretion in considering the Dangerous Drug Abuse Act).) Thus, a trial court’s failure to consider the Act in sentencing a defendant is an issue cognizable under a motion to withdraw a guilty plea. The cases cited by the State for the proposition that the expectation of a lower sentence is an insufficient basis to support a motion to withdraw a guilty plea (see People v. Hudson (1981), 95 Ill. App. 3d 350, 354; People v. Burrell (1978), 66 Ill. App. 3d 806, 808; People v. Taylor (1977), 48 Ill. App. 3d 925, 927-28) are inapposite, since the issue here is not based on defendant’s expectation of a lower sentence.

Defendant argues that the sentence of eight yeárs’ incarceration in the Department of Corrections is excessive. This sentence was imposed on the residential burglary negotiated plea of guilty. He does not argue in his brief that the two concurrent seven-year terms of imprisonment imposed on him based upon the other burglaries are excessive. With respect to the imposition of this eight-year term of imprisonment sentence, the court entered this sentence based upon defendant’s negotiated plea of guilty contemplating that specific sentence. Where a defendant enters a negotiated plea of guilty, he voluntarily accepts the sentence, even if it is in excess of the statutory minimum and thereby recognizes and admits that such sentence is fair and justified in light of his history and character and the nature of the circumstances of the offense. (People v. Whitehead (1975), 32 Ill. App. 3d 615, 616.) Consequently, defendant cannot now complain that the sentence was excessive since he had agreed that it was an appropriate sentence under the circumstances.

The essence of defendant’s argument on appeal is that the sentence imposed upon him is not justified for the protection of society or to advance his rehabilitation. He notes that he had been treated for drug abuse and has been recently employed. Further, he comments that the trial judge did not discuss his social and criminal background in any detail. His entire argument, which consists of only six sentences, is unconvincing. In his reply brief, defendant states that his main contention is that the trial court failed to make the necessary examination of his history and character. It is unclear whether defendant means that the trial court erred in not conducting a more extensive sentencing hearing or in not articulating a statement of reasons for the sentence imposed. In either case, no error resulted. A trial court has no independent duty to give a statement of reasons for the sentence imposed. (People v. Davis (1982), 93 Ill. 2d 155, 166.) Further, a trial court need not assign a value to each factor relied upon in determining a defendant’s sentence. (People v. Peacock (1982), 109 Ill. App. 3d 684, 688.) With respect to the sentencing hearing, the court considered the presentence report and permitted defendant an opportunity to advise the court of new relevant information. Thus, the record does not support defendant’s contention that the trial court failed to consider his history and character.

The defendant’s conviction is affirmed, but the cause is remanded to advise defendant of his eligibility for treatment under the Dangerous Drug Abuse Act.

Affirmed and remanded.

STROUSE and HOPF, JJ., concur.