author: JUSTICE REINHARD

text:
    ESTEBAN TORRES, Plaintiff-Appellant, v. THE COUNTY OF KANE, PUBLIC AID COMMITTEE, et al., Defendants-Appellees.
    Second District
    No. 84—693
    Opinion filed January 25, 1985.
    Sarah Megan, of Prairie State Legal Services, of Geneva, for appellant.
    Robert J. Morrow, State’s Attorney, of Geneva (Patricia Johnson Lord, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendants, Aurora Township and its township supervisor, Dennis Wiggins, notified plaintiff, Esteban Torres, that his general assistance grant issued under article VI of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 6—1 et seq.) was being terminated. Pursuant to section 11—8 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 11—8), plaintiff appealed the decision to terminate his welfare aid to the defendant, County of Kane, Public Aid Committee (county), which conducted a hearing, affirmed the decision, and denied the appeal.

Plaintiff then filed in the circuit court of Kane County his complaint for review of the administrative agency’s decision by certiorari alleging, inter alia, that the decision of the county was against the manifest weight of the evidence and was not supported by the facts in the record. Following other proceedings below not pertinent to this appeal, written findings of fact were filed by the hearing officer of the county, and plaintiff filed a new motion for writ of certiorari, alleging solely that the decision was against the manifest weight of the evidence and not supported by facts in the record. The county filed a motion to dismiss the action, contending that the circuit court was without jurisdiction to review, by common law certiorari, whether the county’s decision was against the manifest weight of the evidence. The trial judge granted the motion to dismiss, finding that review by certiorari was limited to issues of want of jurisdiction or the use of illegal procedures, which were not alleged in this proceeding.

The single issue raised on appeal by plaintiff is whether the circuit court has jurisdiction to review on application for a writ of certiorari an administrative agency’s decision where the only issue sought to be reviewed in the circuit court is whether the agency’s decision is against the manifest weight of the evidence.

The parties do not disagree that under section 11—8.7 of the Illinois Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, par. 11—8.7), the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3— 101 et seq.), while expressly applying to certain administrative decisions under the Code, does not apply to those public aid recipients who receive aid under article VI, as is the case with plaintiff. (Miller v. Department of Public Aid (1979), 69 Ill. App. 3d 477, 481-82, 387 N.E.2d 810.) Therefore, we must determine whether review of the county’s administrative decision is available by common law certiorari, where the only issue sought to be reviewed is whether the county’s decision is against the manifest weight of the evidence.

It is true that earlier decisions of our supreme court, as reflected by Jarman v. Board of Review (1931), 345 Ill. 248, 255, 178 N.E. 91, and cases cited therein, hold that the circuit court may award the common law writ of certiorari to review decisions of an administrative agency in only two classes of cases, those where the agency exceeded its jurisdiction, and those where the agency has proceeded illegally. (See also People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher (1940), 373 Ill. 228, 25 N.E.2d 785.) However, in more recent decisions the Illinois Supreme Court has held that the substantial differences that at one time existed between common law and statutory certiorari have all but been obliterated. Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286; Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 338 N.E.2d 186.

Thus, we believe that common law certiorari is available to review the determination of an administrative agency on the ground that the agency’s finding was against the manifest weight of the evidence where review under the Administrative Review Act is not provided (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 338 N.E.2d 186), and have so held. (Batley v. Kendall County Sheriff's Department Merit Com. (1981), 99 Ill. App. 3d 622, 425 N.E. 1201; see also Penrod v. Department of Corrections (1979), 72 Ill. App. 3d 649, 391 N.E.2d 59; S & F Corp. v. Daley (1978), 59 Ill. App. 3d 1024, 376 N.E.2d 699.) While defendants rely on two recent appellate court decisions which appear to follow the older supreme court cases which limit the application of the common law writ of certiorari (C & K Distributors, Inc. v. Hynes (1984), 122 Ill. App. 3d 525, 461 N.E.2d 560; Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073), we decline to follow those decisions, and further note that they do not consider the more recent line of cases decided by our supreme court which eliminate the old distinctions between common law certiorari and review under the Administrative Review Act.

For the foregoing reasons, we reverse the June 26, 1984, order dismissing the action, and remand for further proceedings.

Reversed and remanded.

LINDBERG and HOPF, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS JUSTICE McCULLOUGH,

license: Public Domain

text:
    JOEL COPLEY et al., Plaintiffs-Appellees, v. PEKIN INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—84—0310
    Opinion filed January 30, 1985.
    Rehearing denied March 4, 1985.
    Vance I. Kepley, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellant.
    Craig J. Causeman, of Thomas, Mamer & Haughey, of Champaign, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Doctrine of cancellation by substitution?

Yes.

We reverse.

Joel Copley and Federated Mutual Insurance Company (Federated) filed their two-count complaint on August 10, 1982, naming Pekin Insurance Company (Pekin) as defendant. In count I, Copley asked the court to declare his rights under an insurance policy which he had purchased from Pekin. In count II, Federated asked the court to declare the respective rights and liabilities of Pekin and Federated with regard to a fire loss suffered by their alleged insured, Copley. Pekin contended that its policy with Copley had been cancelled pursuant to the doctrine of cancellation by substitution. The trial court subsequently entered judgment in favor of the plaintiffs, holding that the Pekin policy was in full force and effect at the time of the fire.

A bench trial was held on March 26 and 27, 1984. Testimony at trial indicated that Copley was the owner of an appliance business in Farmer City. In August 1979 Copley purchased a special multiperil insurance policy from Pekin. Copley subsequently renewed the policy in 1980 and again in August 1981. The policy was renewed through John Colvis, an agent of Pekin and personal friend of Copley. In August 1981 Copley paid a lump sum premium to renew the policy for the following year.

Emmanuel DeFrates, an agent for Federated, met with Joel Copley several times prior to September 1981 in an attempt to convince Copley to transfer his insurance coverage to Federated. Copley subsequently bought insurance from DeFrates, which took effect on September 28, 1981. The Federated policy provided $25,000 in insurance coverage for the building which contained Copley’s business and $40,000 for the contents and personal property therein. The Pekin policy had provided $25,000 in coverage for the building and $30,000 for personal property therein.

At trial, Copley testified that he never intended to “keep” both policies. Instead, he intended to cancel the Pekin policy after the Federated policy took effect.

On approximately November 18, 1981, DeFrates delivered the Federated policy to Copley’s appliance store. Copley was not present at that time, but DeFrates did speak to Copley’s wife, Marsha, who also worked at the store. DeFrates testified that Marsha was concerned about the insurance premium that had been paid to Pekin. DeFrates then asked her if he could go to the Pekin insurance agency to determine what had become of the premium payment and to see if he could get a refund for the Copleys. Marsha Copley agreed that DeFrates could act on her behalf in this manner. DeFrates then visited the offices of Farmer City Insural. This insurance agency had been purchased from John Colvis on October 31, 1981, and continued to represent Pekin. DeFrates asked Robert Bockler, vice-president of Farmer City Insural, to cancel Copley’s policy with Pekin and to return to the Copleys a premium refund.

DeFrates then returned to the Copley’s store and informed Joel Copley of where he had been and what he had done. Copley testified that on November 18, 1981, he was “probably” expecting a refund of his Pekin premium. He knew that DeFrates had visited Farmer City Insural to find out if the Pekin policy had indeed been cancelled. Copley testified that he wouldn’t have refused a refund prior to the time of the fire. After he learned of DeFrates’ actions on November 18, 1981, Copley expressed no objection.

Copley further testified that John Colvis also visited his store on November 18, 1981, apparently at the request of Robert Bockler. Colvis told Copley that if he cancelled the Pekin policy, Colvis would have to “pay back all of the commissions.” Although he no longer represented Pekin, Colvis also attempted to persuade Copley that the Pekin policy offered more coverage than the Federated policy. After speaking to Colvis, Copley decided to obtain more information about both policies. However, Copley testified that up to the date of the fire, he would not have objected if he had received a refund of his Pekin premium and that he was “looking to get a refund back.”

Marsha Copley testified that she had spoken to John Colvis on the day before DeFrates came to the appliance store. She asked Colvis why they had received no refund check for their Pekin policy premium. When she spoke with DeFrates on the next day she directed him to Farmer City Insural when he offered to find out “what was going on.” She testified that DeFrates later returned to the store and informed her of what he had done. She assumed that she and her husband would then receive a refund.

Robert Bockler testified that DeFrates visited his office on approximately November 18, 1981, and requested that he cancel Joel Copley’s policy with Pekin. Bockler asked DeFrates to provide him with a copy of the declaration page of the Federated policy that was to replace the Pekin policy. DeFrates complied with this request. Bockler then told DeFrates that he would “take care of it.” Bockler testified that, in order to cancel the policy, he needed to contact Joel Copley to obtain a signed cancellation or the return of the actual policy. Bockler also testified that he did ask John Colvis to talk to Copley to see if Copley actually wanted to cancel the policy. However, Colvis never contacted Bockler. Bockler further testified that Betty Yeagle, the agent-manager of his office, attempted to contact Copley several times after November 17 but before the December 15 fire.

Yeagle testified that she prepared a release for Copley to sign two days after DeFrates visited the office of Farmer City Insural. She attempted to contact Copley so that he could sign the release or return the actual policy in order to cancel the policy.

Copley’s appliance business was destroyed by fire on December 15, 1981. Copley informed DeFrates of the fire immediately after its occurrence. However, Farmer City Insural was not contacted by Copley until three or four weeks later. As a result of the fire, Federated compensated Copley to the limits of its policy coverage. Pekin denied plaintiffs’ claim for compensation.

The trial court found in favor of the plaintiffs in its judgment order of March 29, 1984. In support of its judgment, the court made several findings, among which were: (1) that Copley intended to cancel the Pekin policy, (2) that DeFrates conveyed this intent to Pekin’s agents, and (3) that assuming DeFrates acted with authority, Bockler did not “accept” the cancellation request but, in effect, rejected it. Pekin filed timely notice of appeal on April 25,1984.

On appeal, Pekin contends that its policy with Copley was cancelled pursuant to the doctrine of cancellation by substitution. Therefore, Pekin argues that the trial court erred in determining that its policy with Copley was in full force and effect on December 15, 1981. The plaintiffs respond that the trial court correctly found that Pekin had failed to establish that the policy had been cancelled by substitution.

All of the parties agree that this court’s decision in Sizelove v. INA Insurance Co. (1982), 104 Ill. App. 3d 864, 433 N.E.2d 696, controls the outcome of the present case. In that case, the court announced a clear rule to aid courts in deciding whether cancellation by substitution has taken place. The court stated:

“We are persuaded that a party desiring application of the doctrine of cancellation by substitution must show (1) that the insured secured substitute coverage and either acted in such a manner as would disclose to the insurer an intent to cancel the existing coverage or requested cancellation under the terms of the existing policy; or (2) that the insured secured substitute coverage and that mutual consent to cancel the existing coverage existed between the insured and the insurer.” 104 Ill. App. 3d 864, 868, 433 N.E.2d 696, 699.

We find that the first prong of the Sizelove rule has been established here. It is undisputed that Copley secured substitute coverage when he purchased the Federated policy. Additionally, we hold that Copley effectively requested the cancellation of his existing Pekin policy.

We find that DeFrates’ request to cancel the Pekin policy was authorized by Copley since Copley later ratified the actions of DeFrates. After having learned that DeFrates had requested the cancellation of his Pekin policy, Copley made no objection to any party. Where an act is performed by one person without authority for the benefit of another, or by an authorized agent in excess of his authority, the person for whose benefit the act was performed may ratify such act. (1 Ill. L. & Prac. Agency sec. 69 (1953).) Ratification is the express or implied adoption of the acts of another by one for whom the other assumes to be acting, but without authority, as if the acts ratified had been fully authorized in the beginning. (Larsen v. Thuringia American Insurance Co. (1904), 208 Ill. 166, 70 N.E. 31; Continental Casualty Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 402, 402 N.E.2d 756.) Acquiescence or a failure to repudiate on the part of the person for whose benefit the act was performed will be held to constitute a ratification. (Chalet Ford, Inc. v. Red Top Parking, Inc. (1978), 62 Ill. App. 3d 270, 379 N.E.2d 88; Williamson v. McCann & Co. (1954), 2 Ill. App. 2d 42, 118 N.E.2d 42.) Accordingly, Copley’s failure to object, after learning of DeFrates’ actions, constituted a ratification of the request to cancel. In other words, Copley adopted the request as his own.

Our holding is reaffirmed by Copley’s testimony that he intended to cancel the Pekin policy and that he expected to receive a refund up until the date of the fire. It seems clear Copley believed that DeFrates had requested the cancellation of his Pekin policy and that the policy was in fact cancelled. He was simply waiting to receive his premium refund. Accordingly, we conclude that the policy issued by Pekin was cancelled by substitution.

For the foregoing reasons, the judgment of the circuit court of Champaign County is reversed.

Reversed.

TRAPP, J., concurs.

JUSTICE McCULLOUGH,

specially concurring:

I agree that the judgment should be reversed. I also agree with the majority opinion that in applying Sizelove, the record shows that the insured secured substitute coverage and either disclosed to the insurer an intent to cancel the existing coverage or requested the cancellation under the terms of the existing policy.

I believe that the insured’s intention to cancel the existing coverage was disclosed to the insurer. This varies slightly from the position taken in the majority opinion, which indicates that substitute coverage was secured and the insured requested cancellation under the terms of the existing policy.

As indicated in the majority opinion, Copley testified that he never intended to “keep” both policies. Instead, he intended to cancel the defendant’s policy after the Federated policy took effect. On November 18, 1981, plaintiff testified that he was “probably” expecting a refund of his Pekin premium, and he was “looking to get a refund back.”

Copley also knew that the original insurer had been notified of his intent to cancel the insurance. This intention to cancel was disclosed to the insurer by the actions of DeFrates on behalf of Copley and Copley’s own conduct.


author: JUSTICE SCHNAKE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS NELSON, Defendant-Appellant.
    Second District
    No. 83—989
    Opinion filed January 24, 1985.

      G. Joseph Weller and Robert Hirschhorn, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The defendant, Thomas Nelson, was charged by information with two counts of murder and one count of armed violence. The charges stemmed from the March 22, 1983, stabbing death of his estranged wife, Tina Nelson. After a jury trial in the circuit court of Lake County, the defendant was found guilty of murder and armed violence and not guilty of voluntary manslaughter. The defendant was sentenced to 50 years’ imprisonment on the murder conviction and was not sentenced on the armed violence conviction.

The defendant raises three issues on appeal: (1) whether it was error not to instruct the jury on voluntary manslaughter/unreasonable belief of justification, (2) whether the court erred in finding that the murder was accompanied by brutal and heinous conduct indicative of wanton cruelty and imposing a 50-year extended-term sentence, and (3) whether the murder and armed-violence convictions were carved from the same physical act, thereby requiring that the armed-violence conviction be vacated. We find the defendant’s arguments to be without merit and, therefore, affirm.

On the morning of March 22, 1983, the defendant drove Mrs. Nelson and two of her co-employees to work at the Baxter-Travenol complex in Deerfield. While the Nelsons were separated at this time, the defendant agreed to drive the three women to work because Mrs. Nelson’s car would not start. That afternoon the defendant visited a friend, Penny Nichols, at her apartment. Mrs. Nelson telephoned him there at approximately 2 p.m. and asked if he had her car and what he was doing there. An argument ensued during which Mrs. Nelson demanded that he bring her car to her at work.

The defendant then drove to Baxter-Travenol, arriving about 3:15 p.m. The defendant told the receptionist that Mrs. Nelson’s child was ill and in the hospital. The defendant knew the child was fine, but testified that he used this story because Mrs. Nelson had told him he would have to give some excuse to see her. The defendant also stated that he told Mrs. Nelson the story he had used and she agreed to go along with it. Judy Welsh, Mrs. Nelson’s supervisor, and Cora McClelland, however, testified that Mrs. Nelson became hysterical and cried upon being told about her child.

The defendant and his estranged wife then left the building and walked to the car. The defendant testified that after they were both inside the car, Mrs. Nelson started an argument about her car and Penny Nichols and became hysterical. He tried to leave but she drew a knife from her purse, threatened him, and tried to stab him. A two-to three-minute struggle ensued during which he got his right arm around her and she got the passenger door open and her right foot outside the car. The defendant testified that she continued trying to stab him until he was able to force her hand open and get the knife. She then ran from the car to the building.

The State’s evidence, however, showed that the defendant was not acting in self-defense. Cora McClelland testified that as she walked outside and asked the Nelsons if she could help, Mrs. Nelson got out of the car and called out that the defendant had a knife and had lied about the baby being ill. Mrs. Nelson then tried to break free from the defendant but he grabbed her by the neck and stabbed her in the face. Mrs. Nelson was then able to break free and run to the building.

Mary Pieja, a food service worker, testified that she was driving in the parking lot at the time and saw a man pick a woman up from the ground and push her against a car. The two people struggled and the man appeared to be stabbing the woman, although she never saw a knife.

Donna Waski and Debra Lo testified that they were parking their car at the time of the incident and saw two people inside a car who appeared to be struggling. The car’s passenger side door was open and the woman’s feet were outside the car. As Waski got out of her car she saw that the man was holding the woman around the waist and appeared to be punching her. The woman then got out of the car and fell to her knees. Waski ran into the building, and, as she looked back, she saw the woman, bleeding from a facial wound, run from the car to the building. Debra Lo described the man as “pummeling” the woman’s chest and face.

' Dr. Helen Young testified as to the autopsy she performed, and that decedent had been stabbed nine times, resulting in a total of 12 stab wounds. The cause of death was internal hemorrhaging and collapsed lungs from the chest wounds.

The defendant’s first argument on appeal is that the court erred in failing to instruct the jury, sua sponte, on voluntary manslaughter based on an unreasonable belief of justification. The proper instruction, if given, would have been Illinois Pattern Jury Instructions (IPI), Criminal, No. 7.05 (2d ed. 1981), which states:

“A person commits the crime of voluntary manslaughter when he kills an individual if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual or another;
or
he knows that such acts will cause death to that individual or another;
or
he knows that such acts create a strong probability of death or great bodily harm to that individual or another;
and at the time of the killing he believes that circumstances exist which would justify the deadly force he uses, but his belief that such circumstances exist is unreasonable.”

The court is obligated, however, to use restraint in giving instructions sua sponte so as to not interfere with or frustrate defense strategy. (People v. Requena (1982), 105 Ill. App. 3d 831, 837, cert. denied (1983), 459 U.S. 1204, 75 L. Ed. 2d 436, 103 S. Ct. 1191; People v. Spataro (1978), 67 Ill. App. 3d 69, 74-75.) Interference with defense strategy may itself constitute error. (People v. Precup (1978), 73 Ill. 2d 7, 17.) In the present case the defendant testified that he acted in self-defense and tendered the appropriate jury instructions on the justifiable use of force. His account, if believed by the jury, would have been a complete defense. It is reasonable to assume, therefore, that defense counsel wished to force the jury to either accept or reject the defendant’s version, and not to compromise on it as IPI Criminal No. 7.05 would have permitted them to do. Under these circumstances the court was not obligated to instruct the jury sua sponte.

The defendant argues, however, that once defense counsel had submitted one compromise verdict (voluntary manslaughter/provocation) there could be no valid strategical reason for not tendering all possible compromise verdicts. We disagree. The fact that defense counsel tendered a compromise verdict based on provocation would not affect his self-defense strategy since the jury would not consider the provocation instruction if they accepted the defendant’s story of self-defense. As the court in People v. Lewis (1981), 97 Ill. App. 3d 982, 988, stated:

“Significant strategy considerations may influence a defense counsel’s decision not to present the jury with the full spectrum of lesser included offenses where a complete defense of self-defense is claimed. (People v. Taylor.) Hence, where the defense wholly refrained from tendering an instruction on a lesser included offense, the possibility that such restraint may have been a viable strategy decision militates against our invoking any exceptions to the waiver doctrine.” (Emphasis added.)

Further, defense counsel may have refrained from tendering both voluntary manslaughter instructions for fear of confusing the jury and having them disregard both instructions. (See People v. Strong (1979), 79 Ill. App. 3d 17.) The defendant, therefore, may have decided to offer only the voluntary manslaughter/provocation instruction as a more plausible explanation of the 12 stab wounds.

The defendant argues that, if it was not error for the court to fail to instruct the jury sua sponte, then his counsel’s failure to tender IPI Criminal No. 7.05 amounted to ineffective assistance of counsel under the sixth amendment as defined by the recent Supreme Court decision of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Under Strickland the defendant must establish two elements:

“First, the defendant must show that counsel’s performance was deficient. *** Second, the defendant must show that the deficient performance prejudiced the defense. *** Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.)

In explaining this test the court stated:

“Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy. ’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]” (Emphasis added.) (466 U.S. 668, 689-90, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065-66.)

For the reasons already stated, we believe that defense counsel’s failure to tender IPI Criminal No. 7.05 could have been sound trial strategy and therefore counsel’s actions did not violate the sixth amendment.

The defendant lastly argues that, even if there was no error in failing to instruct the jury on voluntary manslaughter/unreasonable belief of justification originally, it was error for the court to fail to so instruct the jury after the jury had asked the court to review the guilty and not guilty verdicts and the combinations thereof. The defendant relies on People v. Morris (1980), 81 Ill. App. 3d 288, where the court held it was error not to answer the jury’s explicit question on accountability when they had not been instructed on it.

In this case, however, the jury asked:

“Will you review the guilty and non-guilty verdicts and the combinations thereof, particularly with regard to the murder and voluntary manslaughter charges?”

There is nothing in this question to put the court on notice that the jury might have believed that the defendant had an unreasonable belief that circumstances existed which would have justified the killing of his estranged wife in self-defense. This question, therefore, did not require the court to instruct the jury on voluntary manslaughter/unreasonable belief in justification.

The second issue on appeal is whether the trial court erred in sentencing the defendant to an extended-term sentence of 50 years’ imprisonment based on its finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty under sections 5—8—2(a)(1) and 5—5—3.2(b)(2) of the Unified Code of Corrections. Ill. Rev. Stat. 1983, ch. 38, pars. 1005—8— 2(a)(1), 1005—5—3.2(b)(2).

We note, as a preliminary matter, that the trial judge did not conclude that murder was per se subject to an extended-term sentence as the defendant argues. To the contrary, the trial judge stated that while murder itself came “close” to being a brutal and heinous act, the statute required “an exceptional situation.”

The defendant contends that the circumstances of this case do not rise to the level required to impose an extended-term sentence because, while there were 12 stab wounds, the evidence indicated they were inflicted during a struggle when the defendant was defending himself. The defendant’s argument, however, completely ignores that the jury was instructed on, and rejected, the defendant’s account of self-defense. To the contrary, we conclude that the finding of several aggravating factors, including lack of remorse, telling Mrs. Nelson her child was seriously injured to lure her outside, premeditation and the number of stab wounds, sufficiently supports the court’s extended-term sentence. See People v. La Pointe (1981), 88 Ill. 2d 482 (premeditated and cold-blooded murder of a cab driver followed by a callous attitude and a total lack of remorse); People v. Devine (1981), 98 Ill. App. 3d 914, cert. denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490 (clerk shot twice and stabbed seven times during a robbery).

The defendant also contends that the trial judge failed to consider his potential for rehabilitation as shown by his steady employment, his possible future promotion and his lack of prior criminal convictions. While our State constitution requires the court to consider the defendant’s rehabilitation potential in sentencing him, it does not require the judge to give greater weight to that consideration than to the seriousness of the offense. (People v. Ortiz (1981), 96 Ill. App. 3d 497, 505.) Nor does the constitution require the judge to detail for the record the process by which he concluded that the penalty was appropriate. (People v. La Pointe (1981), 88 Ill. 2d 482, 493.) As in La Poiwte, the record indicates that the trial judge carefully considered the evidence in this case, including both mitigating and aggravating factors. The judge specifically noted he had read the presentence report and considered the defendant’s lack of prior criminal behavior. The record, therefore, demonstrates that the court gave thorough consideration to the relevant factors in sentencing the defendant.

The defendant’s last argument on appeal is that he cannot be convicted of both murder and armed violence because the stabbing of his wife was only one physical act. The defendant relies on the Third District case of People v. Mitchell (1981), 98 Ill. App. 3d 398, where the court held that stabbing the victim three times did not amount to three separate acts. The State relies on the contrary First District case of People v. Mays (1980), 81 Ill. App. 3d 1090, where the court held that shooting a victim three times did constitute three separate acts.

We believe this conflict was resolved in People v. Dixon (1982), 91 Ill. 2d 346. In Dixon, the defendant was convicted of mob action and aggravated battery for repeatedly striking the victim with a wooden broom or mop handle during a fight at the DuPage County jail. Our supreme court held that the separate blows, even though closely related, were separate physical acts and could support both convictions. Similarly here, each stabbing was a separate physical act and both convictions should stand.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


text:
      In re MARRIAGE OF PATRICIA RIEDY, Petitioner-Appellant, and PATRICK RIEDY, Respondent-Appellee.
    Second District
    No. 83—1060
    Opinion filed January 24, 1985.

      Howard W. Broecker and Terry Fawell, both of Geneva, for appellant.
    Harold G. Field, of Burek & Field, of Wheaton, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court;

Petitioner-appellant, Patricia Riedy, appeals from an order denying her petition to vacate judgment for dissolution of marriage.

On July 9, 1981, petitioner filed a petition for legal separation. The respondent filed his response and counterpetitioned for dissolution of marriage on July 15, 1981. Petitioner then contested the relief requested in the counterpetition. The parties had been married for over 30 years and had 10 children at the time the proceedings were commenced.

A trial on grounds was to be heard by the court but the parties stipulated that the issue of grounds for a legal separation would be heard as an uncontested matter. Respondent withdrew his petition for dissolution of marriage. After hearing testimony the court found that grounds existed and entered an order of default. On July 14, 1982, petitioner orally moved to amend her petition for a legal separation to a petition for dissolution of marriage. The parties stipulated that the previously proved grounds would stand and be sufficient for the amended petition. It was represented to the court that the parties had reached an oral agreement as to all remaining issues. The petitioner stated that she understood the agreement and entered into it fully and voluntarily.

The court found that the grounds were proved and that the property settlement was fair and just. On August 30, 1982, respondent presented a motion requesting the court to require petitioner’s attorney to prepare and enter the judgment. Petitioner was ordered to appear in court on September 17, 1982, when her attorney presented his petition for attorney fees, and she then requested two weeks to seek new counsel.

The judgment of dissolution was finally prepared by respondent’s attorney and was filed on September 20, 1982. On October 1, 1982, petitioner’s attorney secured a judgment against her for attorney fees in the amount of $12,726. Petitioner retained substitute counsel and on October 8, 1982, within 30 days of entry of judgment, filed a petition to vacate judgment for dissolution of marriage, pursuant to the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1203). After a contested hearing her petition was denied. Petitioner then requested the court to vacate, modify or reconsider its order denying the petition, and that was also denied.

Appellant argues that the trial court abused its discretion in denying her petition to vacate the judgment for dissolution of marriage.

Section 502 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 502) is generally intended to encourage parties to reach an amicable settlement of their rights. The terms of the agreement, except as they pertain to children, are binding on the court unless the agreement is found to be unconscionable. When a party seeks to vacate or modify a property settlement incorporated in a divorce decree, all presumptions are in favor of the validity of the settlement. (Lagen v. Lagen (1973), 14 Ill. App. 3d 74; Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411.) It has been held that modification of a divorce decree rests in the sound discretion of the trial court and courts of review will not disturb its findings unless the evidence clearly so requires. (Harding v. Harding (1978), 59 Ill. App. 3d 25; Dendrinos v. Dendrinos (1978), 58 Ill. App. 3d 639.) A reviewing court may not reverse a judgment of the trial court merely because different conclusions could be drawn or if reversal would involve merely a substitution of judgment for that of the trier of fact. (Doggett v. Doggett (1977), 51 Ill. App. 3d 868.) Nevertheless, although the law looks with favor upon such settlements, the terms of an agreement will not be given effect if procured by fraud or coercion or if contrary to any rule of law, public policy or morals. (James v. James (1958), 14 Ill. 2d 295; In re Marriage of Pearson (1981), 101 Ill. App. 3d 422.) Therefore, it has been held recently that the inquiry into unconscionability in a divorce agreement involves at least two separate considerations: one, the conditions under which the agreement was made, and two, the economic circumstances of the parties resulting from the agreement. In re Marriage of Foster (1983), 115 Ill. App. 3d 969.

In the present case, petitioner argues that both of the above considerations warranted a vacation of the judgment because the agreement was not only manifestly unfair but was the result of fraud, misrepresentation and coercion.

To support petitioner’s claim of coercion, she claims that on the date of the prove-up she was upset, emotionally distraught and under great pressure. She further states that her petition was orally amended to dissolution rather than legal separation on the date of the prove-up, implying that she was forced to do so against her will. Prior to the prove-up, petitioner testified that her former attorney “just kept saying, say yes to everything, say yes, say yes.”

Duress has been defined as including the imposition, oppression, undue influence or the taking of undue advantage of the stress of another whereby one is deprived of the exercise of his free will. (Higgins v. Brunswick Corp. (1979), 76 Ill. App. 3d 273; Stavins v. Stavins (1979), 70 Ill. App. 3d 622.) Evidence of coercion must be clear and convincing in order for a court to set aside the agreement on this basis (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924), and the burden of proving duress is on the person asserting it. (Kaplan v. Kaplan (1962), 25 Ill. 2d 181.) Considering petitioner’s claim of coercion in light of the above, her allegations fall short of meeting the clear and convincing standard of proof as set forth in Carlson. Although petitioner claims that she was upset and under great pressure, this is far from uncommon in divorce proceedings and does not of itself imply coercion. (Beattie v. Beattie (1977), 53 Ill. App. 3d 501.) Furthermore, those cases in which evidence of coercion was found usually involved hastily contrived agreements occurring only hours before the hearing. (See James v. James (1958), 14 Ill. 2d 295; Crawford v. Crawford (1976), 39 Ill. App. 3d 457.) Although it appears that the agreement in the present case was put in its final form over a two-day period prior to the prove-up, petitioner had had three attorneys, took part in depositions and had discussed settlement terms well in advance of the prove-up. Petitioner stated that she was not aware that the court would not have the power under a legal separation to divide the property; however, the attorney who represented her at the time of the prove-up testified that he had discussed with her the difference between legal separation and dissolution of marriage many times. He also stated that the subject of legal separation versus a dissolution had come up intermittently from the onset, although the consensus consistently was legal separation. Also, petitioner’s first attorney’s pretrial memorandum had already set forth all assets and valuations. The record shows that there were many settlement discussions prior to the two days spent in court. Petitioner, in her brief, makes reference to a list given to her attorney prior to the hearing, outlining her proposed settlement in the event there was a dissolution of marriage. All of the above support the conclusion, as respondent argues, that if dissolution had not been considered a possibility by petitioner, the value of the property would not have been relevant. Therefore, her claim of coercion appears unfounded.

Petitioner’s allegation of fraud and misrepresentation centers mainly on two claims; first, the respondent indicated that his health insurance was still in effect at the time of prove-up, which would have allowed petitioner to convert the coverage into an individual policy for herself. Actually, respondent’s policy at some point in time appears to have lapsed because of nonpayment of premiums. Petitioner points to her history of illness as making the conversion privilege especially important. Secondly, petitioner states that her agreement to pay her own attorney fees was based on her attorney’s representation that his fee would be approximately $5,000, not $12,000, which was the amount actually billed to her.

This court has held that in order to be fraudulent, a misrepresentation must consist of a false statement of material fact, known to be false by the party making it, made for the purpose of inducing the other party to act in reliance on its truth, and in fact relied upon by the other party. Fraud must be established by clear and convincing evidence. (In re Marriage of Maher (1981), 95 Ill. App. 3d 1039.) In the present case petitioner argues that respondent was aware that his insurance had been cancelled prior to judgment and that petitioner relied upon his representation that the policy was still in effect so that she could convert the family policy to an individual one for herself. In reference to the issue of insurance coverage, the record is unclear and at times conflicting. At the prove-up, respondent stated that he was in agreement with the terms of the settlement as they were set forth by petitioner in her testimony. Petitioner had testified that her understanding was that respondent was to keep and maintain major medical insurance for the minor children. No mention was made of a conversion privilege for petitioner.

At the post-trial hearing on petitioner’s motion to vacate judgment, respondent testified that he had represented to the court that he had insurance coverage, but that he knew at the time that he was in arrears with the payments although he did not bring the fact of this delinquency to the attention of petitioner or the court. He also stated that as of July 14, 1982 (date of the prove-up), the insurance had not been cancelled. However, respondent’s testimony is confusing as to whether or not he had knowledge that the policy was in effect on September 17, 1982. The record also shows that respondent’s deposition testimony of February 9, 1983, indicated that he realized it was generally understood that he had health insurance. Petitioner also testified that she had talked to a Mr. Venard about getting insurance through respondent’s union prior to the July 14 court date, but the record does not reveal what was discussed at that time. She stated, however, that she had told her attorney “all these things.”

Two seemingly conflicting letters are also of record. The first, dated November 19, 1982, indicates that respondent was dropped from the health insurance plan for nonpayment and had purchased other hospitalization. The second letter, however, dated December 14, 1982, shows a breakdown of the delinquent contributions implying that if paid, the health and welfare coverage would still be effective. Petitioner’s former attorney also testified at the post-judgment hearing that he was under the impression at the time of prove-up that respondent’s health insurance was still in effect. He stated that he had discussed the conversion of the policy from group to individual with respondent’s attorney during settlement discussions but had not made an independent investigation of the matter. He further testified that after the prove-up he had received two letters from respondent’s attorney regarding the insurance conversion but had not discussed them with petitioner because she never responded to his letters and phone calls asking her to come into the office to discuss the matter. The latter situation was apparently connected to petitioner’s dissatisfaction with her attorney at the time because her settlement agreement to pay her own attorney fees was predicated on her attorney’s represented estimation of his fee as being $5,000, when in fact she received a bill for $12,000.

The controversy between petitioner and her then counsel over the amount of the latter’s fees originated before the entry of judgment for dissolution on September 20, 1982, but after the prove-up and agreed property settlement. This dispute cannot be considered attributable to respondent, nor does it relate to the claimed issues of fraud, duress or coercion. It should be noted that the question of fees charged petitioner was settled by separate order pursuant to agreement.

After hearing the testimony outlined above, the trial court found that petitioner failed to prove that any fraud had been committed upon her. As we have previously stated, the existence of fraud must be established by clear and convincing evidence. In view of the fact that it cannot be determined exactly when respondent’s hospitalization was actually dropped and if respondent was aware of any cancellation at the time of prove-up, together with the settlement agreement referring only to respondent’s obligation to retain health insurance for the children, the evidence fails to support petitioner’s claim of fraud and misrepresentation.

Petitioner’s claim of unconscionability in relation to the resulting economic circumstances of the parties requires the application by the trial court of the traditional concepts employed in commercial law. (In re Marriage of Foster (1983), 115 Ill. App. 3d 969.) To be noted is that the “fairness” standard and other similar standards for setting aside settlement agreements have been replaced by the standard of unconscionability. (115 Ill. App. 3d 969, 972.) An unconscionable bargain has been defined as one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept on the other. The term unconscionability includes an absence of meaningful choice on the part of one of the parties together with terms which are unreasonably favorable to the other party. A contract is unconscionable when it is improvident, totally one-sided or oppressive. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930; In re Marriage of Miller (1981), 98 Ill. App. 3d 1084.) Absent such a finding the settlement is binding upon the court. (Ill. Rev. Stat. 1983, ch. 40, par. 502(d).) On review, the trial court’s finding will stand unless it is against the manifest weight of the evidence.

A review of the terms of the separation agreement indicates that petitioner received property paying $1,200 per month. Additionally she received $1,510 a month for life and $400 a month child support until March 24, 1987. She also received a Caprice station wagon, and $100,000 in life insurance was to be taken out and paid by respondent as security for the $1,510 payments. Respondent was awarded partial interest in five parcels of vacant property, the residual value of the nonmarital EZ-Go Gas Station, $5,000 savings (less $2,000 for family bills) and another property whose value was stated to be $230,000. Based on the record evidence, the court made a finding that the agreement was fair and equitable. Since the agreement on its face showed no evidence of unconscionability due to an unreasonable economic favoring of the respondent, the agreement was binding upon the court. Neither petitioner’s motion for vacation of judgment nor the subsequent hearing provided the court with any further evidence of economic disparity rising to the level of unconscionability. Especially notable was the award to petitioner of the sum of $1,510 per month for life. That an agreement merely favors one party over the other does not make it unconscionable. (In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1089.) Therefore, the trial court’s finding in this regard was not against the manifest weight of the evidence.

Appellee has contended that because appellant accepted benefits under the judgment for dissolution of marriage, she is estopped from attacking that judgment on appeal. We affirm the order of the trial court and therefore neither consider nor decide this contention.

Affirmed.

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


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ANDERSON, Defendant-Appellant.
    Second District
    No. 88—572
    Opinion filed January 23, 1985.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Diana Fischer-Woods, Assistant State’s Attorney, and Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Charles Anderson, appeals from his conviction in the circuit court of Du Page County after a jury trial on two counts of obscenity in violation of section 11—20 of the Illinois Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 11—20.) Defendant contends that the two magazines sold by his employee were not obscene as a matter of law beyond a reasonable doubt, that the State failed to prove defendant possessed the requisite scienter for his obscenity conviction, and that the trial court erroneously interpreted the law, thereby necessitating remandment for resentencing. Because we conclude the trial court committed no reversible errors, we affirm defendant’s conviction.

Defendant, the owner and sole proprietor of Villa Park Bookstore, was charged in a nine-count indictment “with having recklessly failed to exercise reasonable inspection which would have disclosed” that certain magazines sold at his bookstore were obscene. Also indicted and tried with defendant was his employee and store clerk, Frank L. Rivera.

The jury trial was conducted on January 18-19, 1983. The State elected to bring prosecution on only four counts based upon the sale of four different magazines. Proofs were submitted by stipulation and included the admission of the magazines into evidence. After the stipulation was read to the jury, the trial court denied defendant’s motion for a directed verdict.

On the basis of the stipulation and the magazines admitted as exhibits, the jury returned guilty verdicts as to two counts but acquitted defendant on two other counts. The trial court entered judgment on the verdicts and on May 19, 1983, after hearing argument in aggravation and mitigation, sentenced defendant to four months in the county jail on each count, with the sentences to run concurrently. The court also imposed a $1,000 fine on one count. Defendant on June 17, 1983, filed a timely notice of appeal.

Defendant first argues that the two magazines which are the basis of this action are not obscene as a matter of law. Each magazine was introduced into evidence and determined by the jury to be obscene. However, this court is required to make an independent judgment as to whether the material is constitutionally protected. Jacobellis v. Ohio (1964), 378 U.S. 184, 12 L. Ed. 2d 793, 84 S. Ct. 1676; People v. Ridens (1974), 59 Ill. 2d 362, cert. denied (1975), 421 U.S. 993, 44 L. Ed. 2d 483, 95 S. Ct. 2000.

The Illinois statute on obscenity provides in relevant part:

“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor and description or representation of such matters.” (Ill. Rev. Stat. 1981, ch. 38, par. 11— 20(b).)

The United States Supreme Court in Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085, construed this statute as constitutional and concluded the examples of obscenity recited in its earlier decision in Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, were intended by the Illinois Supreme Court in Ridens to be incorporated into the Illinois statute. (Ward v. Illinois (1977), 431 U.S. 767, 775, 52 L. Ed. 2d 738, 747, 97 S. Ct. 2085, 2090.) After considering United States Supreme Court interpretations of Illinois case law, our appellate court has articulated the present obscenity guidelines in this State as follows:

“(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct of the kind cited in the following examples:
1. patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated;
2. patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.
(c) whether the material is utterly without redeeming social value.” People v. Speer (1977), 52 Ill. App. 3d 203, 211, 367 N.E.2d 372, 377.

Acknowledging that these guidelines govern this appeal, defendant asserts as one of first impression the question whether the magazines here, depicting bondage scenes, constitute obscenity under the Illinois statute. Our review of the case law confirms defendant’s assertion that no Illinois court has answered the specific question whether magazines depicting women in bondage without more are obscene. However, under analogous circumstances, both the United States Supreme Court and Illinois courts have ruled that sadistic and masochistic publications are obscene.

Defendant makes essentially two arguments with regard to these rulings. First, he contends that bondage is not fairly included within the definition of sadism or sadomasochism. We disagree. Sadism is defined as follows:

“The obtaining of satisfaction, even sexual pleasure, from hurting another. A species of insanity or mental disease in which the sexual instinct of the patient is abnormal or perverted.” (Ballantine’s Law Dictionary 1132 (3d ed. 1969).)

Bondage is “a state of being bound, usually by compulsion.” (Webster’s New Collegiate Dictionary 124 (1979).) The clear intent and effect of these publications is to excite the sexual interest of the readers through the pain caused or simulated when the women represented in these magazines are restrained by ropes. The bondage represented here, which depicts discomfort and pain experienced by the bound women, is fairly characterized as a form of sadism. (See United States v. Ewing (10th Cir. 1971), 445 F.2d 945, vacated (1973), 413 U.S. 913, 37 L. Ed. 2d 1022, 93 S. Ct. 3031 (where publications emphasizing bondage were labeled sadomasochistic material and where expert testimony indicated bondage was a subclassification of sadomasochism).) Defendant’s citation to one commentator’s conclusion that the United States Supreme Court intended bondage and sadomasochism to be considered as distinct medical categories of deviance (see F. Schauer, The Law of Obscenity 78 (1976)) does not require this court to conclude that these bondage magazines are not obscene, for as defendant even acknowledges, the common definition of sadomasochism includes the term bondage. In addition, one case cited by that commentator as having considered the constitutionality of sadomasochistic materials actually employed the terms “bondage” and “sadomasochism” interchangeably. United States v. Ewing (10th Cir. 1971), 445 F.2d 945, vacated (1973), 413 U.S. 913, 37 L. Ed. 2d 1022, 93 S. Ct. 3031.

Defendant’s reliance on three foreign jurisdiction' statutes which define sadomasochistic abuse actually undercuts his contention that sadomasochism and bondage are distinct terms for purposes of obscenity analysis. Both the New York and Pennsylvania statutes define “sadomasochistic abuse” to mean “flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.” (Emphasis added.) (N.Y. Penal Law sec. 235.20(5) (McKinney 1980); Pa. Stat. Ann. tit. 18, sec. 5903(e)(5) (Purdon 1983).) Florida’s statute includes the additional requirement that the person bound and fettered also be subjected to flagellation or torture. (Fla. Stat. Ann. sec. 847.0125(1)(e) (West Supp. 1983).) Despite defendant’s contention that the bondage magazines here could never be included within these definitions of sadomasochistic abuse, we conclude to the contrary that these magazines would be considered obscene under these statutes. The scantily clad women in both magazines are bound, fettered, and physically restrained, and some pictures depict the women tortured through use of clothespins and surgical clamps.

Another reason these statutes are unsupportive of defendant’s position is that the New York and Florida statutes regulate the display and dissemination of indecent materials to minors. When the indictment was filed and throughout defendant’s trial, Illinois had in force an almost identical child pornography statute. (Ill. Rev. Stat. 1981, ch. 38, par. 11—20a(a)(2)(D), repealed by Pub. Act. 83—472, effective January 1, 1984.) Defendant argues the inconsistent positions that while the definitions of sadomasochism in the foreign-jurisdiction pornography statutes support his contention that simple bondage magazines are not obscene, the State’s reliance on nearly identical language in the Illinois child pornography statute is inapposite because that statute’s overbroad definitions are designed to protect the special interests of children. For these reasons, defendant’s citation to these foreign jurisdiction statutes is unpersuasive.

Defendant’s second argument in support of his conclusion that these bondage magazines are not obscene is that other cases which have ruled sadomasochistic publications obscene are distinguishable. In Mishkin v. New York (1966), 383 U.S. 502, 16 L. Ed. 2d 56, 86 S. Ct. 958, the court considered whether certain books, including some which depicted “such deviations as sado-masochism,” were obscene. The New York statute upon which the prosecution was brought proscribed in part any “sadistic, masochistic, or disgusting book ***.” (383 U.S. 502, 503 n.1, 16 L. Ed. 2d 56, 59 n.1, 86 S. Ct. 958, 960 n.1.) Based upon the fact that New York courts had interpreted the terms sadistic and masochistic to be synonymous with the term obscene, the Mishkin court rejected the defendant’s contention that the terms in the State statute were impermissibly vague. The Court further held that the materials were obscene.

The constitutionality of sadomasochistic publications was again addressed by the Court in Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085. In Ward, the defendant was found guilty of violating the Illinois obscenity statute for publishing two magazines, “Bizarre World” and “Illustrated Case Histories, A Study of Sado-Masochism.” The court held that “[mjaterials such as these, which by title or content may fairly be described as sado-masochistic” were properly found by the Illinois courts to be obscene. In reaching this conclusion, the Ward court relied upon three Illinois Supreme Court decisions wherein sadomasochistic materials had been ruled obscene. In People v. Sikora (1965), 32 Ill. 2d 260, the court affirmed an obscenity conviction based upon three books, at least one of which contained a scene “characterized by sadism and masochism.” (32 Ill. 2d 260, 268.) Also relied upon by the Ward court was People v. DeVilbiss (1968), 41 Ill. 2d 135, where the Illinois Supreme Court affirmed the defendant’s obscenity conviction based upon books which were “replete with accounts of *** masochism and sadism.” (41 Ill. 2d 135, 142.) Finally, the Ward court cited City of Chicago v. Geraci (1970), 46 Ill. 2d 576, wherein the court held obscene one sadomasochistic magazine which it described as follows:

“ ‘Mixmates’ is a sado-masochistic magazine which contains photographs portraying lesbianism, rape, whippings, beatings, bondage, axing, and other abnormal sexual conduct. The pictures, almost without exception, depict scenes of excessive violence and brutality. Nearly naked women are shown being whipped, chained, tortured, and otherwise abused. In some pictures, a substance which appears to be blood is smeared on the bodies of the female models, and in other pictures the models appear to be screaming.” (46 Ill. 2d 576, 581-82.)

The Geraci court also ruled obscene one book depicting sadistic and masochistic conduct. More recently, our appellate court has ruled that a book which contained vivid and detailed descriptions of sexual encounters, including sadism, was obscene. See People v. Rota (1973), 9 Ill. App. 3d 754, 292 N.E.2d 738.

Defendant contends these decisions of the United States Supreme Court and Illinois courts are inapposite because in each case, the courts were presented with sexual conduct far more varied and extreme than the simple bondage presented in these magazines. While defendant is correct that in none of these cases previously discussed was a court required to decide whether bondage scenes alone were obscene, this fact does not necessitate the conclusion that the publications here are not obscene. We review these magazines independently to determine if they are obscene.

The front cover of “Black Bondage” contains the captions “Humbled, bound, gagged and beaten, they struggle to get free of their captors ***” and “Their big, black boobs bulged under the tension of the clothespins ***.” Three women are featured on the cover, each tied up with rope in an elaborate system of knots. One woman is gagged with a scarf. Inside, the magazine contains six stories with pictures and text about women who are forced to submit to bondage. Typical is “Circle of Pain,” wherein a male acquaintance, without the female victim’s consent, binds and gags her and then proceeds to spank the woman numerous times on her naked buttocks “until her moans turned into sounds of weeping.” The article describes the tight ropes biting into her flesh, while the male responsible for binding her with rope has intercourse with her. The pictures accompanying the text are very graphic, displaying the women totally naked and bound with ropes in various positions which clearly display their breasts, buttocks and vaginas. In several other photographs in “Black Bondage” the bound women appear to be screaming or attempting to scream, and in others, the women’s breasts are squeezed tightly by rope knots and their mouths are forced shut with either a surgical clamp or a clothespin. In at least one picture, the woman’s vagina is clamped with a clothespin.

The cover of the second magazine, “Bondage and Discipline Quarterly,” contains a picture of a woman blindfolded, gagged, and tied with ropes to the chair with her legs forcibly spread, causing her vagina to be clearly visible. The magazine contains three stories with the common theme conveyed through text and photographs that women are taught to respect their men through their bondage experience. Illustrative is “Turnabout For A Tease,” wherein the woman learns “a valuable but painful lesson” for teasing a man. The text relates that the woman, while tied up, becomes sexually aroused despite the “bounds [sic] cut[ting] into her flesh.” The pictures contain closeup views of the woman’s vagina, buttocks and breasts while she is gagged and bound against a chair or on the floor by rope. None of the pictures in this latter magazine shows the woman tortured with clothespins or other clamp-like devices.

Defendant contends these magazines are not obscene because they do not depict the women engaged in sexual activity. While defendant is correct that all but several pictures show only one person, the woman in bondage, and thus do not depict any sexual activity, the text clearly in “Black Bondage” describes the sex acts, including fellatio and intercourse, which occur between the male and his bound female while she is incapable of moving because of the elaborate system of knots. The text and pictures taken together in “Black Bondage” constitute patently offensive descriptions of ultimate sex acts. (People v. Speer (1977), 52 Ill. App. 3d 203, 211, 367 N.E.2d 372, 377.) The text in “Bondage and Discipline Quarterly” is far less graphic, basically describing each woman as “hot,” “eager for the first man who crossed her path,” “hot and bothered and eager to get it on,” and “want[ing] desperately to relieve the hot ache between her legs.” In another passage, the woman is tied to a coffee table, and the captor invites friends over to view the bound woman, who “felt herself growing more excited as she thought about the men who would be viewing her. She licked her lips as she imagined how glorious the night would be.” Despite the less graphic and less descriptive text in “Bondage and Discipline Quarterly,” its pictures and text, when considered together, suggest imminent sexual activity, including ultimate sex acts, and are obscene.

Defendant’s further attempt to distinguish this case from other sadomasochistic material on the basis that the instant photographs do not depict the women as an object of another’s gratification is simply inaccurate. At least the dominant purpose, if not the sole purpose, of these texts and photographs of the two magazines, taken as a whole, is to depict the women in bondage as the objects of their captors’ gratification. Likewise, defendant’s attempt to distinguish these magazines from the publications considered in City of Chicago v. Geraci (1970), 46 Ill. 2d 576, and People v. Rota (1973), 9 Ill. App. 3d 754, 292 N.E.2d 738, on the basis that the publications in the latter cases contain more extreme and varied violence and brutality, is unpersuasive. Pictures in both magazines in the case at bar show women in pain caused by rope knots and wooden and metal clamp-like devices placed on the women’s breasts, lips, and vaginas. In other cases, women are tied in uncomfortable positions, and at least one woman appears to have bruises on her legs and breasts. These pictures constitute sufficient representations of violence and brutality to warrant a finding of obscenity, and this conclusion is not rendered erroneous because other cases considered magazines portraying conduct even more violent than is present here.

As a subsidiary argument to his contention that these magazines are not obscene, defendant recites the rule enumerated in Mishkin v. New York (1966), 383 U.S. 502, 16 L. Ed. 2d 56, 86 S. Ct. 958, that “[wjhere the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.” (383 U.S. 502, 508, 16 L. Ed. 2d 56, 62, 86 S. Ct. 958, 963.) Defendant argues that the text and pictures in these two magazines are too tame to excite the prurient interest of members of the group which these magazines are designed to service. The Mishkin court adopted this “exception” to rebut the defendant’s argument, in that case that magazines depicting deviant sexual practices such as flagellation and lesbianism did not arouse the prurient interest of the average viewer, but instead disgusted and sickened him. Employing this average person/deviant group standard, the Mishkin court found the material obscene.

We conclude for two reasons that the Mishkin exception, rather than aiding defendant, supports our conclusion that the books here are obscene. First, several of the pictures showing surgical clamps and clothespins placed on the female’s breasts or vagina might not arouse the average person, but very likely would stimulate the average member of the sadomasochism deviant group. Second, while defendant may be correct that these magazines are less violent than other magazines published for this deviant group, they contain enough images of bondage, domination and submission to arouse the prurient interests of the average members of the deviant group. Because of the members’ propensity to be excited by sadomasochistic scenes, they might not need excessive violence to arouse their prurient interests. Therefore, we find unpersuasive defendant’s contention that the two magazines here are too innocuous to arouse prurient interest in the average member of the group to which these magazines are targeted.

Defendant does not contend that these magazines contain any redeeming social value. We agree that they are utterly without redeeming social value, and therefore, the third obscenity criterion in Illinois is satisfied.

Defendant next contends that the State failed to prove beyond a reasonable doubt the requisite scienter for the obscenity offense. The statute requires that a person commits obscenity when “with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he sells *** any obscene writing ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 11—20(a)(1).) Scienter is required “because without it a bookseller could be safe only if he engaged in self-censorship, which might impede the distribution of nonobscene books.” (People v. Sikora (1965), 32 Ill. 2d 260, 267.) However, in cases such as the one at bar where the bookseller specializes in a particular type of book, and therefore knows the type of books he is selling, the self-censorship danger is minimal. People v. Sikora (1965), 32 Ill. 2d 260; Smith v. California (1959), 361 U.S. 147, 154, 4 L. Ed. 2d 205, 211-12, 80 S. Ct. 215, 219.

The State must prove scienter. (People v. DeVilbiss (1968), 41 Ill. 2d 135.) Here, the State charged defendant “with having recklessly failed to exercise reasonable inspection which would have disclosed” that certain magazines sold at his bookstore were obscene. (Ill. Rev. Stat. 1981, ch. 38, par. 11—20(a)(1).) The State’s theory at trial was that defendant was accountable for the conduct of codefendant Rivera, his employee. The trial judge instructed the jury that the State was required to prove that “defendants [sic] or one for whose conduct he is legally responsible sold an obscene magazine” and “that the defendant or one for whose conduct he is legally responsible recklessly failed to exercise reasonable inspection which would have disclosed the nature of the magazine.” Apparently, the State employed the accountability theory because Rivera actually sold the magazines, the State relying on the general rule of accountability that a person may be responsible for the actions of the other “without actually participating in the overt act or acts” which constitute the offense. People v. Schlig (1983), 120 Ill. App. 3d 561, 570, 458 N.E.2d 544, 551.

Both parties at trial entered into a stipulation which contained the following relevant facts: (1) defendant was the owner and sole proprietor of the store and lessee of the premises; (2) the bookstore dealt solely in sexually explicit materials; (3) defendant throughout this period (presumably when these two magazines were purchased) was “regularly present in person” at his bookstore; (4) defendant had knowledge of the nature of the store’s merchandise; (5) the magazines which formed the basis of this action were sold with covers exposed, at prices indicated on the covers, while encased in plastic which prevented examination of the contents until after purchase; (6) the store’s windows were covered to prevent observation of the interior from a public way; (7) outside signs prohibited persons under 21 years of age from entering and described defendant’s place of business as an adult bookstore open 24 hours; and (8) the policeman purchased the subject magazines from defendant’s employee, Frank Rivera. Defendant contends that these facts in light of Illinois case law do not establish the requisite scienter, citing the rule that “[e]very publication or film found in an establishment limited to adult patronage, upon payment of an admission fee at certain times, and charging high prices may not be presumed to be obscene.” People v. Hart (1981), 101 Ill. App. 3d 343, 351, 427 N.E.2d 1352, 1359.

The State responds that the' facts here demonstrate defendant was proved to possess scienter. One important fact emphasized by the State is that the magazines were sold with the covers exposed. The front cover of “Bondage and Discipline Quarterly” shows a woman with her hands raised in pain or fear bound by an elaborate system of knots with her vagina and breasts exposed. The magazine’s back cover is a photograph of a woman with her feet and hands tied to a chair, her mouth gagged, and her vagina and breasts exposed. The front cover of “Black Bondage” also shows three women, each with their breasts bound and one with her mouth gagged and teeth clenched and her breasts so tightly roped that the ends of her breasts are grossly distended. The magazine’s back cover contains 12 separate pictures displaying women’s breasts, vaginas and buttocks, and advertises “12 EROTIC FILMS FOR THE S&M CONNOISSEUR.” The text relates that one film portrays “a female slave punished with an enema solution and then sodomized to climax.” The films are touted as “reality” and not “pretense” and as portraying “[Ijeather bondage that will make you cringe. You’ve never seen it so violent *** so real *** so tough *** so vivid. You’ll feel that you’re really part of the action.” These magazine covers are evidence that defendant, through his employee, was aware of the contents of the magazines. Furthermore, the magazine “Black Bondage” contains the words “Adults Only” on the cover, which even defendant concedes is suggestive that Rivera and thus defendant were aware of the obscene nature of the magazine. City of Chicago v. Doe (1964), 47 Ill. App. 2d 460, 197 N.E.2d 711.

Defendant rejoins that the mere facts that defendant owned the bookstore, was present when the magazines were purchased, and further that the store’s signs advised the public that admission was limited to patrons 21 years of age and older, are wholly insufficient to permit the inference of scienter. However, while each of these facts alone may be insufficient, considered together they warrant an inference of scienter.

Both defendant and the State rely upon People v. Rode (1978), 57 Ill. App. 3d 645, 373 N.E.2d 605, and People v. Tannahill (1976), 38 Ill. App. 3d 767, 348 N.E.2d 847, to support their respective positions. In Rode, the court affirmed the trial court’s finding of the clerk’s scienter based upon the facts that the clerk had viewed the cover of the magazine, had worked in the store for two months, had stated to the police officer that he would not sell the magazine to a minor, and because of the premium charged for the magazine. Similarly, the clerk here viewed the magazine covers, and each magazine carried a $6 cover price which represents a premium over what is customarily charged for magazines. Furthermore, defendant here was not merely a clerk who had been working for two months, but rather was the owner of the store.

In People v. Tannahill (1976), 38 Ill. App. 3d 767, 348 N.E.2d 847, the court affirmed a finding of scienter regarding the owner of the store, who was not even present at the store when the magazines in question were sold. That court reasoned:

“It is hardly conceivable that the operators of a store specializing in salacious books would not be aware of the contents of those books, especially where the magazines are clearly arranged and priced according to their sexual explicitness.” (38 Ill. App. 3d 767, 772, 348 N.E.2d 847, 851-52.)

Attempting to distinguish Tannahill, defendant asserts the record here contains no evidence that the magazines were displayed according to their sexual explicitness. However, the bookstore in Tannahill was divided into three parts, with the first part containing nonobscene materials (i.e., comics and off-color magazines). The Tannahill court focused on the segregation of the “more risque” materials in the second part of the room as indicative of the owner’s scienter. Here, as defendant admitted in the stipulation, the Villa Park Bookstore dealt solely in sexually explicit material, thereby making unnecessary the segregation of sexually explicit magazines from those which were not. Therefore, the absence of any evidence in this record that the magazines were grouped according to sexual explicitness does not support defendant’s conclusion that scienter was not proved. Furthermore, courts are permitted to infer scienter more easily when the bookseller deals exclusively in sexually explicit material, because such a bookseller would not likely engage in self-censorship. People v. Sikora (1965), 32 Ill. 2d 260, 267.

Additional facts present here which were not present in Tannahill and which are indicative of defendant’s scienter are that defendant was on the premises when the sales were made and that defendant stipulated he had knowledge of the nature of the merchandise in the store. The stipulated facts that the windows were covered to prevent observation from a public way and that the store’s signs described the establishment as an adult bookstore and limited admission to patrons over 21 years of age also are suggestive of defendant’s scienter. Therefore, the trial court record contained sufficient evidence to establish that defendant was proved beyond a reasonable doubt to have violated section 11—20 (Ill. Rev. Stat. 1981, ch. 38, par. 11—20).

Defendant’s final contention is that the trial court misapprehended the law when it sentenced defendant to serve four months in the county jail and to pay a fine. At the May 14, 1983, sentencing hearing, the trial court stated:

“Very candidly, if periodic imprisonment were available, I would consider periodic imprisonment, but periodic imprisonment is not available either through the State or through the County.
That being not available, it just cannot be.
Therefore, as far as it being some greater period of time insofar as periodic imprisonment is concerned, I am imposing a lesser sentence of four months which is called straight time of incarceration.”

Defendant cites section 5—5—3(b)(2) of the Uniform Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3(b)(2)) as authorizing periodic imprisonment for this misdemeanor conviction. Implicitly, the State concedes that periodic imprisonment is legally available for this offense because it does not argue that periodic imprisonment is unavailable as a proper sentencing alternative here. Rather, the State argues solely that the judge was not referring to the legal unavailability of periodic imprisonment, but instead to the fact that “the State and the county are unable to provide the facilities to implement a program of periodic imprisonment.”

The sentencing statute reveals no reason why periodic imprisonment was legally unavailable as a sentencing alternative. The crime of obscenity is a Class A misdemeanor. (See Ill. Rev. Stat. 1981, ch. 38, par. 11—20(d).) Section 5—5—3(b)(2) (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3(b)(2)) prescribes that periodic imprisonment is available for all felonies and misdemeanors except those contained in section 5—5— 3(c) (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3(c)). Because Class A misdemeanors are not mentioned in section 5—5—3(c), periodic imprisonment is a sentencing alternative for that offense.

Defendant relies upon People v. Cross (1979), 77 Ill. 2d 396, wherein the court remanded for resentencing the defendant’s drug conviction because of the trial judge’s misapprehension that he was precluded from imposing a term of periodic imprisonment and felt compelled to impose a four-year minimum sentence. The court concluded that the trial judge had incorrectly applied the more recent amendment to the statute which precluded periodic imprisonment as a sentencing alternative for certain violations of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 561/2, par. 1401 et seq.).

Cross is distinguishable in that there, the trial judge’s action could not be interpreted in any way other than as a misapprehension of the law. Here, the State’s interpretation, that there were currently no facilities available for periodic imprisonment, is supported by the trial court’s reference to the unavailability of periodic imprisonment in the county as well as the State, because the unavailability of periodic imprisonment as a matter of law would be determined only by State statute. The practical unavailability of periodic imprisonment facilities, however, would be affected by decisions made at the county level of government. Our reading of the record convinces us that the trial judge was referring not to the legal, but rather to the practical unavailability of periodic imprisonment facilities. Therefore, a remand for resentencing is unnecessary.

Defendant’s conviction in the circuit court of DuPage County is affirmed.

Affirmed.

REINHARD and UNYERZAGT, JJ., concur.