text:
    ROBERT HARRELL, Plaintiff-Appellant, v. SOUTHERN ILLINOIS UNIVERSITY et al, Defendants-Appellees—(Lisa Haines, Intervening Plaintiff-Appellant).
    Fifth District
    No. 83—112
    Opinion filed November 14, 1983.

      John R. Clemons, State’s Attorney, of Murphysboro, and H. Carl Runge, Jr., and Sue Sachtleben, both of Runge & Gumble, P.C., of Collinsville, for appellant Robert Harrell.
    H. Carl Runge, Jr., and Sue Sachtleben, both of Runge & Gumble, P.C., of Collinsville, for appellant Lisa Haines.
    Shari Rhode and Thomas P. Polityka, both of Southern Illinois University, of Carbondale, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

Appellants, Robert Harrell, a political candidate, and Lisa Haines, a student, appeal from the judgment of the circuit court of Jackson County denying appellants injunctive relief from enforcement of Southern Illinois University at Carbondale (SIU-C) Housing Procedure 1304, which establishes the period during which political candidates may canvass door-to-door in university housing. Harrell and Haines argue that enforcement of 1304 is an impermissible infringement of théir rights of free expression and association guaranteed by the first amendment (U.S. Const., amend. I). In his capacity as county clerk, Harrell appeals from that portion of the judgment which found voter registrars to be exempt from procedure 1304 and enjoined SIU-C from barring their registration efforts in university housing during a period of 60 to 28 days immediately preceding an election. He contends that any university restrictions on solicitation in university housing are in conflict with the State’s policy of facilitating voter registration.

Five thousand students live in University Housing at SIU-C. They are grouped according to their marital status. Married students live in apartments with private entrances. They do not have a common dining or recreational facility. Generally, single students live two to a room in residence halls, three of which are high rise buildings containing 1,200 rooms. Rooms in single-student housing are arranged along common hallways, every two rooms sharing a bathroom. In some residences single students share community bathrooms. The main access to high-rise buildings is the front door, which is unlocked from 7 a.m. to 11 p.m. From 3 p.m. until 11 p.m. a desk clerk supervises activities in the common areas and provides information or help to those who request it. After 11 p.m. the door is locked and a guard is on duty. In other residence halls the doors are locked 24 hours a day. All residents of single-student housing have round-the-clock access to their building and rooms by showing proper identification. They are permitted to invite guests to their rooms whenever they wish.

Dining facilities, administrative offices, the mail room, snack bar and recreational facilities are located in buildings adjacent to the dormitories. These buildings are open seven days a week from 8:30 a.m. to 1 a.m. whenever the university is in session. Under the university’s general solicitation policy, registrars will be provided tables and chairs in the public areas upon their request. They may register voters during any period when these buildings are open and the Election Code permits registration. In family housing where there are no such common areas, registrars are permitted door-to-door access during reasonable hours. At no time may registrars solicit door-to-door in single-student housing.

In October 1976, SIU-C adopted Housing Procedure 1304 to govern door-to-door canvassing by political candidates of students living in both single-student and married housing. The procedure was amended in 1982, but the provisions at issue here were not substantially changed.

The University described the adoption of procedure 1304 as an effort “to delineate acceptable methods by which *** contact [between political candidates and students living in university housing] can be made without violating the rights of the student residents to accept or refuse.” Those in charge of University Housing were expected to exercise care “to insure that student residents do not become a captive audience for any political group, but have the opportunity to participate in political solicitation if they desire.” In addition to protecting student privacy and freedom to participate in political solicitation, the directors of University Housing were to establish rules “to provide fair and equitable political canvassing opportunities for all candidates for public office in any specific election.”

The “Implementing Procedures” permitted candidates and their representatives to canvass door-to-door to single-student housing only during “the 30-day period (Monday through Friday, 6:00 p.m. to 10:00 p.m. —Saturday and Sunday excluded) immediately before a primary or regular election.” In family housing canvassers could operate in the same periods “during reasonable hours.” All candidates were automatically entitled to the required canvassing permit, and their representatives were granted permits upon request. Area student governments were allowed to sponsor meetings with candidates or their representatives at any time. Candidates and representatives could attend such meetings without a canvassing permit. Political advertisements were restricted to “the bulletin boards of the commons building in each of the housing areas desired.”

In 1982, Harrell, then seeking reelection to the office of county clerk, was evicted from university housing for canvassing door-to-door in a residence for single students before the 30-day period. At the time he was evicted, Harrell had the required canvassing permit. As the incumbent county clerk, Harrell was also county registrar in “full charge and control of the registration of voters ***.” Ill. Rev. Stat. 1981, ch. 46, par. 4 — 4.

On September 24, 1982, following his expulsion from university housing, Harrell filed his complaint seeking equitable relief from the enforcement of procedure 1304 because it (1) unreasonably restricted the efforts of registrars to register single students as voters and thereby deprived the single students of “their right of free association” and “rights and privileges relating to registration to vote,” (2) “[l]imit[ed] the fundamental right to vote of the single student without a showing of a compelling governmental interest,” and (3) “[arbitrarily denie[d] equal access by deputy registrars to the single student voter in University housing which access is afforded all other persons.” Harrell also complained that deputy registrars were improperly prevented from contacting single students because 1304 did not permit access until 30 days before the election and Illinois law prohibited registration within 28 days of an election (Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6), thus limiting a registrar’s effective solicitation of students in university housing to two days. In 1982, one of those two days was Sunday on which no access was permitted, so that registrars had only one day to canvass door-to-door in the dormitories. After argument by attorneys representing SIU-C and Harrell, both as county clerk and political candidate, the court granted a temporary restraining order barring SIU-C from restricting the activity of the registrars in university housing. The court limited the canvassing by registrars to the hours of 10 a.m. to 10 p.m. from September 25, 1982, to October 5. Denying Harrell’s request that he, as a candidate, be freed from the constraints of procedure 1304, the court set the matter for a full hearing on October 5, 1982.

On October 4, 1982, Lisa Haines, a student at SIU-C, identifying herself as a potential voter in Jackson County, petitioned to intervene and filed her complaint alleging that application of procedure 1304 to registrars and candidates infringed her right to vote and to associate freely with political representatives. There is no evidence in the record that Haines testified or presented evidence in support of her allegations. Responding to the joint complaint, SIU-C admitted that its policy was to evict candidates violating procedure 1304 but denied all other allegations, specifically denying that 1304 applied to registrars.

On October 26, 1983, the trial court heard argument and received evidence on the issue of whether SIU-C should be permanently enjoined from enforcing procedure 1304 and from barring registrars from door-to-door solicitation in university housing. Samuel Rinella, director of housing at SIU-C, was the only witness at the October 26 hearing. The court denied each side’s motion for directed verdict. In its order of November 17, 1982, the court found that 1304 did not apply to registrars and deputy registrars and that allowing them access to students would “not unnecessarily affect or disturb university policy or substantially interfere with the opportunity of other students to obtain an education.” The university was therefore ordered to permit registrars access to university housing during the “period from 45 days to 28 days immediately preceding the election.” Finding that 1304 restricted the plaintiffs’ constitutional rights, the court nevertheless denied their request for a permanent injunction against the enforcement of 1304. Denial was based on the finding that in light of the nature of university housing, procedure 1304 was “a reasonable restraint based on the time, manner and place of the First Amendment activity in question and [was] not a regulation of the content of speech.”

On December 16, 1982, the appellants moved the court to reconsider its order of November 17, 1982. Appellants urged the court to recognize that it had erred in proceeding to the issue of the reasonableness of procedure 1304 before the university had carried its burden of providing that the housing regulation was necessary to protect a compelling State interest and was the least restrictive means of protection. The same argument was made in urging the court to reconsider the propriety of its findings “that place any restrictions on registrars or deputy registrars.” After reviewing memoranda submitted by counsel and hearing argument, the court denied the motion to reconsider but modified the permanent injunction to require SIU-C to allow registrars to solicit door-to-door during a period 60 days to 28 days before an election.

On February 14, 1983, Harrell and Haines appealed from the trial court’s denial of a permanent injunction against the enforcement of procedure 1304 and from the denial of the appellants’ motion to reconsider that decision as they pertain to Harrell as a political candidate and to Haines. Harrell, as county clerk, filed a separate notice of appeal on February 17, 1983, in which he sought relief from a permanent injunction giving registrars access to single student housing only during the period between 60 and 28 days prior to an election.

The appeal by Harrell and Haines asks us to decide whether it was error for the trial court to decide that 1304 was a permissible restriction on appellants’ rights of free speech and association because it was a reasonable restraint on the time, manner, and place of political activity based on the special nature of university housing. We affirm.

Harrell phrases his second appeal as a request for a permanent injunction barring SIU-C from interfering with registrar activity in university housing “in any manner or way.” We read this as a request to modify the permanent injunction below. We affirm.

Although Haines did not testify or offer evidence to show she was prevented from associating or speaking with Harrell, we will assume the trial court correctly found that 1304 restricts “students’ First Amendment right to speech, [and] the candidates’ First Amendment right to speech and to association.” We therefore recognize that STU-C’s procedure 1304 must withstand strict scrutiny. It must be the least restrictive method by which the University protects a compelling interest. We believe SIU-C’s procedure 1304 passes this test.

The United States Constitution does not require that everyone have “an absolute *** right to use all parts of a school building or its immediate environs for his unlimited expressive purposes.” (Grayned v. City of Rockford (1972), 408 U.S. 104, 117-18, 33 L. Ed. 2d 222, 233, 92 S. Ct. 2294, 2304.) In Grayned, the court recognized that a public school system had a “compelling interest in having an undisrupted school session conducive to the students’ learning ***” (408 U.S. 104, 119, 33 L. Ed. 2d 222, 234, 92 S. Ct. 2294, 2305), and could therefore enforce an anti-noise statute against political expression which diverted students from the normal school activities (408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294). Even “pure speech” may be restricted by public schools if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” (Tinker v. Des Moines Independent Community School District (1969), 393 U.S. 503, 513, 21 L. Ed. 2d 731, 741, 89 S. Ct. 733, 740.) Colleges also have a legitimate interest in preventing campus disruptions. (Healy v. James (1972), 408 U.S. 169, 33 L. Ed. 2d 266, 92 S. Ct. 2338.) Universities have the “right to exclude even First Amendment activities that *** substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent (1981), 454 U.S. 263, 277, 70 L. Ed. 2d 440, 452, 102 S. Ct. 269, 278.

Appellants protest strongly that the university has failed to provide so much as a “scintilla of evidence” of a compelling interest. At trial, appellants charged that the university had “not put anybody on in this proceeding that explains why deputy registrars need to be restricted, why canvassers need to be restricted in these dormitories.” Counsel for SIU-C tried repeatedly to elicit from housing director Rinella the reasons for procedure 1304, but appellants’ counsel was sustained in its objections that such testimony was irrelevant. Nevertheless, as appellants point out, “[t]he background” of 1304 is presented in the housing procedure itself, copies of which were offered into evidence by both parties.

Housing director Rinella’s testimony is rich with evidence to support the university’s argument that it has a strong interest in “presenting] the educational atmosphere of the dorms.” The university provides housing for 5,000 young people, a large number of whom are freshmen and sophomores required to live in approved housing. These students live in 18 buildings, some of which are quite large and others somewhat removed from the center of campus. Most students live in close quarters, often studying, sleeping and dressing in the same room. Such circumstances naturally require supervision and regulation to promote order and quiet.

The university controls access to and use of these buildings with a number of regulations, including 1304. At night, doors are locked and guards are posted at entrances to monitor traffic into the buildings. In the afternoons, desk clerks are available to supervise the lobbies and provide assistance. Guests are permitted in the building only at the invitation of residents. Dining, lounge and recreation areas are centralized away from individual living and study areas. Nonpolitical solicitation is permitted only in the well-trafficked areas. Members of the housing staff are on duty 24 hours a day and are authorized to ask for identification in order to prevent unsponsored persons from being in the dormitories. All of these provisions evince the university’s interest in creating and maintaining a situation in which students might pursue their education undisturbed. Housing Procedure 1304 dovetails with these provisions. Procedure 1304 was intended to protect individual privacy and prevent students in university housing from being “a captive audience for any political group.” It does so by preventing the distraction and invasion of privacy necessarily attendant on unrestrained campaigning by political candidates knocking on door after door.

It is not enough, however, that SIU-C show that procedure 1304 protects a compelling interest. A regulation which restricts first amendment rights must be drawn as narrowly as possible to serve the university’s purpose. (Heffron v. International Society for Krishna Consciousness, Inc. (1981), 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559; Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) This requirement may be satisfied if the university can show that 1304 is appropriate and reasonable (Healy v. James (1972), 408 U.S. 169, 33 L. Ed. 2d 266, 92 S. Ct. 2338), as well as “content-neutral.” (Widmar v. Vincent (1981), 454 U.S. 263, 277, 70 L. Ed. 2d 440, 452, 102 S. Ct. 269, 278.) Reasonableness must be determined in light of the “normal activities” of the building where the restriction is in effect. Grayned v. City of Rockford (1972), 408 U.S. 104, 116, 33 L. Ed. 2d 222, 232, 92 S. Ct. 2294, 2303.

Procedure 1034 places a few limits on the exchange of political views as are consonant with preservation of student privacy and study conditions. Limiting only the time, place and manner of campaigning, 1304 is at no time an absolute bar to a candidate’s activities in the dormitories as was disapproved in James v. Nelson (N.D. Ill. 1972), 349 F. Supp. 1061. A student is always free to join in group meetings in the common areas or to invite the candidate to his room. Candidates may carry on their activities in the common areas of dormitories as well as in other campus buildings under the general solicitation policy which allows them access from 8:30 a.m. to 1 a.m. every day that the university is in session. A candidate is prevented only from choosing to inject himself into the normal activities of the dormitory rooms. During the 30 days before an election, the restriction is reduced even further to allow candidates to initiate door-to-door canvassing from 6 p.m. to 10 p.m. in the single students’ residences and at reasonable hours in the married students’ apartments. The greater leeway granted in approaching married students corresponds to the greater privacy they have in apartments which may be entered directly from the outside rather than from a hallway lined with bedrooms. In view of the normal activities of university dormitories, including sleeping, dressing, and studying, and the high density of the student population in those dormitories, we think procedure 1304 is reasonable and appropriate.

Appellants allege that the university has not availed itself of the less restrictive alternative of providing “no solicitation” signs to students so they could indicate their wishes at their doorways. This device, while not enlarging the students’ freedom of choice, would allow candidates to range through the dormitories in search of willing voters without regard to the normal activities of the dormitory. It would not provide the protection afforded by 1304.

Enforcement of 1304 does not depend on the content of a candidate’s message or on a student’s political choices. It is designed to ensure “that the student residents have an opportunity to participate or not as they desire’ and to provide fair and equitable political canvassing opportunities for all candidates ***.” (Emphasis added.) Appellants have offered no evidence that 1304 was enforced in a manner which discriminated on the basis of a candidate’s views. We believe 1304 is “content-neutral” as required by law.

Turning now to Harrell’s appeal as county clerk, we first note that the omission of the second notice of appeal from the appellants’ brief occasioned some uncertainty about his position. However, we now understand him to argue that voter registrars should have completely unfettered access to students living in university housing. It has not been made clear to us how the disruption by roaming registrars would be less than that of campaigning candidates, nor indeed how one would distinguish the purpose behind such disruption when a candidate was also a registrar. Appellants have provided us with no authority or argument for the proposition that registration of voters is entitled to greater protection than freedom of speech and association which may be subject to reasonable time, place, and manner restraints. (Widmar v. Vincent (1981), 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269; Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) Illinois law provides no license for voter registrars to disregard such reasonable regulations promulgated by SIU-C.

As county clerk, Harrell was given “full charge and control of the registration of voters within [his] county” by the Election Code. (HI. Rev. Stat. 1981, ch. 46, par. 4 — 4.) However, his choice of the manner in which registration was to be carried out was not limitless. We do not think the legislature contemplated a round-the-clock, door-to-door effort as necessary to carry out the policy of registering all qualified voters. (Ill. Const. 1970, art. Ill, sec. 4.) The Election Code specified both the days and hours at which registration could take place in the county clerk’s office, conforming in general to regular business hours of 9 a.m. to 5 p.m. and Saturday until noon. The clerk could, at his discretion, extend the Saturday hours, but any action by the county board with regard to hours superseded his discretion. HI. Rev. Stat. 1981, ch. 46, par. 4 — 6.

In counties of less than 1,000,000 population, the clerk was required to provide one or more alternate methods of registration (Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6.1.) If he chose to have a precinct registration, the county board was entitled to appoint the place of registry in the precinct, choosing a “place or places *** in the most public, orderly and convenient portions thereof ***.” (Ill.. Rev. Stat. 1981, ch. 46, par. 4 — 3.) Such places were to “be opened at noon and remain open until 9:00 P.M.” and the public notified of the dates, hours and places of registration. (Ill. Rev. Stat. 1981, ch. 46, par. 4— 7.) If he preferred to “establish temporary places of registration” in the county, he had discretion to choose both times and locations, provided that the “temporary places of registration” served areas used by the public or where the population was concentrated, such as nursing homes, shopping centers, or county fairs. Again published notice was required to tell qualified voters where and when they could go to register. Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6.3.

A third option permitted the clerk to appoint deputy registrars in a precinct. In doing so, he was required to deputize all precinct committeemen as precinct registrars who could then “accept registrations at any place within the precinct ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6.2.) Deputy registrars who were not precinct committeemen could accept registrations only “at such place as the county clerk designates at the time of appointment.” (Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6.2.) Deputy registrars, whether precinct committeemen or not, were permitted to “accept registrations at any time” except for those periods prior to elections during which the clerk was prohibited from accepting registrations in his office. (Emphasis added.) Ill. Rev. Stat. 1981, ch. 46, par. 4 — 6.2.

In choosing to provide either a precinct registration or a temporary place of registration, the clerk was required to carry out registration at a fixed public location where qualified voters could expect to find registrars on duty during specific hours. Deputy registrars who were not precinct committeemen could accept registrations at any time but only at designated places. In these cases, the statute assumes that those who wish to register will come to the registrars. The role of the precinct committeeman who becomes a precinct registrar is consistent with this pattern. He may make himself available at any time or any place to accept registrations from those who wish to register. There is nothing in this enlarged availability which translates into a right to search out potential voters without regard to university regulations intended to protect student privacy and the educational process of the university. The solicitation policy of the university which provides registrars with table space in public areas during fixed times is fully consistent with the principles and purposes of the Election Code and Illinois Constitution.

We agree with the trial court that registration is necessary to the right to vote, but we do not think that right has been infringed by the university’s policy of barring registrars from door-to-door canvassing. The student remains at all times free to register at the clerk’s office, at a temporary registration place if the clerk chooses to establish one in the public area of the campus, or in his own room if he wishes to invite the deputy registrar there. No testimony has been offered to show that students were not free to register to vote on terms equal to those granted to other qualified voters. However, the university concedes that it raised no cross-appeal to the permanent injunction allowing registrars limited access to university housing. We, therefore, must affirm the permanent injunction.

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

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE HASTY, Defendant-Appellant.
    Fifth District
    No. 81—691
    Opinion filed December 7, 1983.

      Randy E. Blue and Susan Diehl, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, defendant Lawrence Hasty was found guilty of attempted murder, and sentenced to 30 years in prison. Defendant appeals this conviction on the ground that he was denied .effective assistance of counsel. Defendant alternatively contends that the trial court abused its discretion in inflicting an unduly harsh sentence. We find both allegations to be without merit, affirming defendant’s conviction and the sentence imposed by the circuit court.

The victim, John Haverman, testified that on the evening of May 1, 1981, he was approached in a parking lot by an unfamiliar person and forced at gunpoint to drive his mother’s car to a secluded area. According to Haverman, the assailant (subsequently identified as defendant), upon reaching his destination, ordered Haverman out of the car and demanded the keys. Haverman testified that when he refused to comply with defendant’s order, defendant shot him. Haver-man struggled with defendant and was shot a second time. Haverman then began running, whereupon defendant shot him twice again in the back before driving away in the Haverman automobile.

Defendant challenged Haverman’s testimony, maintaining that he and Haverman had known one another prior to the evening of the shooting. According to defendant, Haverman had twice engaged defendant in homosexual relations, once in Haverman’s car and once in Haverman’s home. Defendant testified that, feeling resentful of these encounters, he asked Haverman to meet him in the parking lot on the evening of May 1, ostensibly to fraternize* but with the actual intention of beating Haverman. Defendant stated that Haverman picked him up at the appointed time, drank beer with defendant, and drove to “a back road” where Haverman demanded that defendant engage in sexual conduct. When defendant refused, Haverman threatened him with a gun. A struggle ensued in which defendant shot Haverman. Defendant did not dispute the fact that Haverman was shot four times, but maintained that, due to defendant’s extreme emotional state, aggravated by a combination of alcohol and valium, he could remember only once shooting Haverman.

Defendant’s contention that he was denied effective assistance of counsel is premised solely upon his attorney’s failure to object at trial to the following jury instruction:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another.”

Relying on the rule of People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28, that “[a]n instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown,” defendant argues that the instruction given at trial prejudiced his case by allowing the jury to convict defendant of attempted murder even if defendant’s intent was only to cause great bodily harm. Since the failure to instruct the jury that an intent to kill is an essential element of attempted murder was held in Harris to constitute reversible error, defendant maintains that trial counsel’s failure to object to the defective instruction was tantamount to incompetency, thus entitling defendant to a new trial.

There is no question that the instruction given in the instant case was erroneous. In light of People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, however, we cannot accept the argument that the error was of such magnitude that defense counsel’s failure to object to the instruction entitles defendant to a new trial. In Roberts, the supreme court addressed a situation involving a defective instruction on attempted murder similar to that in the case at bar. The instruction read in part:

“ ‘A person commits the crime- of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual.’ ” (75 Ill. 2d 1, 8.)

The precise issue before the supreme court was whether the instruction constituted a defect sufficient to provide an exception to the waiver rule, thus allowing defendant to raise the issue for the first time on direct appeal. The court held that the defective instruction was not “grave error” for purposes of the waiver rule, and did not severely threaten the fundamental fairness of the defendant’s trial. (75 Ill. 2d 1, 14-15.) We are compelled to follow the reasoning of the supreme court, and conclude that defense counsel’s failure to object to an almost identical instruction is not an error so egregious as to constitute incompetence. This conclusion is strengthened by a consideration of the facts of the instant case. There was no question that John Haverman was shot four times in his struggle with defendant, and that Haverman was abandoned in a secluded area. Given these facts, a jury could reasonably have inferred a specific intent of defendant to kill John Haverman regardless of whether it was instructed that such an intent was a necessary element of attempted murder. Indeed, such an inference seems, as a practical matter, inevitable. The contention that the jury in the instant case would not have inferred from the evidence a specific intent on the part of defendant to kill John Haver-man, inferring rather an intent on the part of defendant only to do great bodily harm to Haverman, and that defendant was found guilty of attempted murder as a proximate result of this latter inference is, in our judgment, too tenuous to dictate a finding of reversible error. Compare People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343.

Defendant’s second allegation of error is that the trial court abused its discretion in sentencing defendant to 30 years in prison for attempted murder. An abuse of discretion will be found to exist if the sentence imposed is greatly at variance with the purpose and spirit of the law or greatly disproportionate to the nature of the crime. (People v. Willett (1976), 44 Ill. App. 3d 545, 551, 358 N.E.2d 657.) At the time of sentencing, the court stated that it had considered the factors in mitigation contained in section 5 — 5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 5 — 3.1), and found none of those factors present in the instant case. The court further stated that it had considered the factors in aggravation contained in section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2), finding that defendant’s conduct caused very serious bodily harm to the victim, that defendant had a history of prior criminal activity, and that the sentence was necessary to deter others from committing the same crime. Our review of the record of the instant case substantiates these findings. We therefore conclude that the trial court did not abuse its discretion in sentencing the defendant to 30 years in prison. The conviction of the defendant for the crime of attempted murder and the sentence imposed by the trial court are accordingly affirmed.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SANDRA HOLLINGSWORTH, Defendant-Appellant.
    Fifth District
    No. 82—627
    Opinion filed December 14, 1983.
    Randy E. Blue and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Following a bench trial in the circuit court of St. Clair County, the defendant was convicted of robbery and sentenced to three years’ imprisonment. In her appeal from that conviction, she presents one issue: that the State’s evidence failed to prove that property was taken from the victim by a threat of the imminent use of force. We affirm.

The principal witness at trial was Mary Wrenn. On May 12, 1982, she was employed as the principal of Cannady Elementary School in East St. Louis. At approximately 1 p.m., she was in her office when Vertís Hawkins entered, accompanied by a woman who Ms. Wrenn identified at trial as the defendant. Ms. Wrenn had known Hawkins previously, because Hawkins had attended Cannady School. Hawkins and the defendant positioned themselves in front of Ms. Wrenn’s desk, as she sat behind the desk. On the desk was about $200 in cash and checks collected from area schools to be given to the American Cancer Society, in addition to $25 in cash belonging to Ms. Wrenn.

For ten or fifteen minutes, Hawkins and the defendant remained in Ms. Wrenn’s office, talking to her about the school and about several children at the school. As they spoke, Hawkins moved around the desk to a position behind Ms. Wrenn’s chair. Then, the defendant reached toward the desk and picked up the cash and checks. Ms. Wrenn testified that when the defendant moved toward the desk, she observed the handle of a gun tucked in the front of the defendant’s jeans. According to Ms. Wrenn, she did not attempt to stop the defendant, because she was afraid of the weapon carried by the defendant and because the defendant appeared to her “to be spaced out on some dope or something.” After the defendant took the money, she ran from Ms. Wrenn’s office and Hawkins ran out behind her. Ms. Wrenn told the defendant to stop, but to no avail.

Upon the defendant’s arrest several days later, she gave a statement to East St. Louis police officers. In that statement, she admitted taking cash and checks from Ms. Wrenn’s office. However, she stated that she was not armed during this incident, nor did she believe that Vertís Hawkins was armed.

The essence of a prosecution for robbery is that property be taken from the person or presence of another “by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a).) It is apparent that no actual force was employed by the defendant in taking the money from Ms. Wrenn, so the question presented here is whether she threatened the imminent use of force in doing so. Proof of such a threat is established by evidence that the fear of the victim was of such nature as in reason and common experience is likely to induce a person to part with his property for the sake of his person. (People v. Dates (1981), 100 Ill. App. 3d 365, 371, 426 N.E.2d 1033, 1038.) A subjective feeling of fear will not support a conviction for robbery in the absence of facts to show that that fear was reasonable. People v. Romo (1980), 85 Ill. App. 3d 886, 892, 407 N.E.2d 661, 666.

When the word “robbery” is mentioned, one normally envisions a defendant taking some action which would indicate that he is armed, combined with words spoken to the victim, either announcing the robbery or warning the victim that he will be harmed if he does not cooperate. If the evidence at trial proves that such action was taken and such words were spoken, a defendant will be guilty of robbery even if he was not actually armed. (See, e.g., People v. Fiala (1980), 85 Ill. App. 3d 397, 406 N.E.2d 931.) On the other hand, if the defendant does not take any action which would reasonably allow the victim to conclude that he was armed, and only gives instructions such as “put the money in the bag,” which do not, of themselves, threaten force, then no robbery is committed. (People v. Williams (1976), 42 Ill. App. 3d 134, 355 N.E.2d 597.) The case at bar falls between these two examples, for although there was objective evidence to support Ms. Wrenn’s impression that the defendant was armed, the defendant did not speak or otherwise communicate to Ms. Wrenn as defendant took the money from her desk.

In People v. Bradford (1979), 78 Ill. App. 3d 869, 397 N.E.2d 863, the defendants approached a cashier in a grocery store and presented her with a note which instructed her to place all the money from the cash drawer in a paper bag. She looked up at the men, and one of them placed his right hand inside a shoulder bag which he carried. Finding this evidence sufficient to sustain a robbery conviction, the court explained that this hand movement, under the circumstances, indicated a threat of the imminent use of force. Similarly, a defendant who reached inside his shirt, revealing a portion of a gun, and instructed the victim to open the cash drawer, from which the defendant took money, was properly convicted of armed robbery in People v. Chapman (1981), 94 Ill. App. 3d 602, 418 N.E.2d 995.

The defendants in Bradford and Chapman took action which indicated to the victims that they were armed, and it is this common factor which supported the convictions in both cases. The instructions communicated to the cashiers were not probative of a threat of imminent force, because similar instructions in People v. Williams (1976), 42 Ill. App. 3d 134, 355 N.E.2d 597, were held insufficient to sustain a robbery conviction. Therefore, Bradford and Chapman illustrate the principle that a robbery conviction may be based upon facts from which the victim reasonably concluded that the defendant was armed with a deadly weapon when he took property from the person or presence of the victim. Such facts can include, but are not limited to, a “menacing gesture” of reaching into a place where a weapon could be kept (People v. Fiala; People v. Bradford) or a display of all or part of a weapon (People v. Chapman). The presence of the gun handle in the defendant’s jeans is a specific fact from which Ms. Wrenn could have plausibly concluded that the defendant carried a gun. Therefore, the defendant’s conviction for robbery must be affirmed.

Our decision is consistent with authorities which have explained that the victim must have parted with property “ ‘under the temporary suspension of the power of exercising his will through the influence of the terror impressed.’ ” (People v. Carpenter (1966), 71 Ill. App. 2d 137, 143, 217 N.E.2d 337, 340, quoting Steward v. People (1906), 224 Ill. 434, 443, 79 N.E. 636, 639.) It is difficult to overestimate the coercive power of a deadly weapon; once its presence is indicated to the victim, nothing more need be communicated to the victim in order to generate a sense of terror. To describe the crime at bar as theft, while calling it robbery if the defendant would have pointed a gun at Ms. Wrenn or told her that “this is a stickup,” ignores that the fear of Ms. Wrenn would be just as rational and just as based on specific facts, in any of these examples. We will not hold these facts insufficient to prove a robbery and thereby give rise to a meaningless distinction.

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

Affirmed.

KARNS and HARRISON, JJ., concur.


author: JUSTICE EARNS

text:
    PAUL F. BIRK, Petitioner-Appellant, v. BOARD OF EDUCATION OF FLORA COMMUNITY UNIT SCHOOL DISTRICT NO. 35, CLAY COUNTY, Respondent-Appellee.
    Fifth District
    No. 5—83—0347
    Opinion filed December 14, 1983.
    Drach and Deffenbaugh, P.C., of Springfield, for appellant.
    Robbins, Schwartz, Nicholas, Lifton and Taylor, Ltd., of Decatur (John T. Taylor, of counsel), for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

Paul F. Birk, a tenured teacher, appeals from the dismissal by the circuit court of Clay County of his petition for a writ of mandamus directing the Board of Education of Flora Community Unit School District No. 35 (the Board) to reinstate him as a guidance counselor on a 10-month contract.

During the 1981-82 school year the Flora, Illinois High school had two guidance counselors working on 10-month contracts. Birk had worked for the district on this basis for more than 20 years. During 1982-83, Birk taught one period of physical education and worked in guidance five periods a day. The second counselor, Nancy Clark, had originally been hired in 1969 on a nine-month contract as a classroom teacher, but she later shifted into guidance for two or three hours a day. Prior to the scheduling change in 1982, both Birk and Clark spent the tenth month of service in completing student registration, resolving scheduling conflicts, and counseling students.

On March 16, 1982, Birk was notified by the Board that his “ten month contractual continued service is reduced to nine month effective beginning the 1982-83 school year” because of a “reduction in staff resulting from declining enrollment.” The Board’s resolution authorizing this notice to Birk stated that his “present ten month contractual continued service shall terminate honorably at the close of the present school year.” The record reveals no challenge to Birk’s qualifications or competency as a guidance counselor. When the Board refused to honor his request that he be given the ten-month contract instead of Clark, Birk filed a petition for a writ of mandamus to compel the Board to reinstate him on a ten-month basis in place of Clark who had less seniority. He also asked for actual damages in the amount of lost wages due to the reduction of his contract.

Birk sought relief under section 24 — 12 of the School Code which provides that:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement or contract between the board and a professional faculty members’ organization ***.” (Ill. Rev. Stat. 1981, ch. 122, par. 24-12.)

The Board contends that section 24 — 12 is not applicable because Birk has not been dismissed or removed but only reduced to a nine-month status. The Board views the reduction as a reassignment permitted under section 24 — 11 which provides that tenure “shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill ***.” (Ill. Rev. Stat. 1981, ch. 122, par. 24— 11.) They therefore feel they may allocate the tenth month of guidance work without regard to the relative seniority of Birk and Clark.

The issue is whether the “bumping” provisions of section 24— 12 apply when a school board reduces a tenured teacher’s contract from ten to nine months while retaining a less senior tenured teacher on a ten-month contract when both teachers are qualified to do the work required during the tenth month. We find that section 24 — 12 is applicable in such a case and the seniority of the teachers must be taken into account.

While it is beyond question that the Teacher Tenure Law must be strictly construed because it thrusts new liabilities upon school boards (Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127, 340 N.E.2d 7), such construction must be consistent with the Teacher Tenure Law’s primary purpose of protecting teachers who have tenure. (Graham v. Board of Education (1973), 15 Ill. App. 3d 1092, 305 N.E.2d 310.) We recognize that school boards have broad powers to arrange class schedules and to assign teachers according to their qualifications. However, such powers may not, even when exercised in good faith, “circumvent the purpose and spirit of the tenure laws.” (Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 994, 372 N.E.2d 990, appeal after remand (1980), 83 Ill. App. 3d 1097, 404 N.E.2d 899, reversed on other grounds (1981), 84 Ill. 2d 436, 420 N.E.2d 147.) The purpose of the tenure laws is to protect teachers from “political, partisan or capricious” board action. (Donahoo v. Board of Education (1952), 413 Ill. 422, 425, 109 N.E.2d 787, 789.) Where circumstances force a school board to retain only one of two teachers qualified for a position, section 24 — 12 requires that the tenured teacher be preferred over the untenured. Where the choice is between equally qualified tenured teacher, the senior teacher is to be preferred. Ill. Rev. Stat. 1981, ch. 122, par. 24-12.

The Board argues strongly that these protective principles cannot be activated in Birk’s behalf because he is claiming tenure in a particular position. They are correct in pointing out that our courts have consistently held that a board may transfer a teacher from one position to another for which he is qualified and reduce his salary to a level comparable with that of other teachers in the second position. (Hicks v. Board of Education (1979), 77 Ill. App. 3d 974, 397 N.E.2d 16; People ex rel. Brown v. Board of Education (1978), 66 Ill. App. 3d 169, 383 N.E.2d 711; Newby v. Board of Education (1977), 53 Ill. App. 3d 835, 368 N.E.2d 1306; Lane v. Board of Education (1976), 38 Ill. App. 3d 742, 348 N.E.2d 470; Lester v. Board of Education (1967), 87 Ill. App. 2d 269, 230 N.E.2d 893.) But this is not a case in which the Board has transferred Birk to another position. He began his teaching service in Flora as a guidance counselor and continued in that position through 1982-83, a period of more than twenty years. With the exception of one class of physical education, his primary duties in 1982-83 were those related to guidance. What Birk experienced was a reduction in the number of months during which he was to carry out those duties. We believe the Board shared this view at the time they notified Birk that his ten-month contractual service was “reduced” to nine months.

Because we view the Board’s action as a reduction in the extent of Birk’s employment, we will follow the principle expressed in Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 375 N.E.2d 157. In that case a teacher was reduced to a part-time appointment which the Board there argued did not trigger the bumping privileges of section 24 — 12. Recognizing that section 24 — 12 did not refer to a reduction of employment, the court concluded nevertheless that the terms “removed” and “dismissed” encompassed “any reduction in the extent of employment. *** If this were [not] the case, a board could merely nibble away and reduce one’s employment until economic necessity forced the tenured teacher to resign.” (Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157, 158-59.) The Board wishes to distinguish Caviness from the present case because Caviness concerned a reduction from full-time to part-time status while Birk was reduced from a ten-month contract to a nine-month contract. We find nothing in section 24 — 12 which bases the degree of protection afforded a tenured teacher on the length of his contract. There is nothing in the reasoning of Caviness to support such a principle. If an experienced teacher is to be protected against “capricious, fickle and irregular exploits of school boards” (Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157, 158), he must be protected in his employment even though his contract exceeds in length the contracts of others. We therefore find that section 24—12 is applicable to Birk’s situation.

We reject the Board’s assertion that the footnote in Caviness is dispositive of the issue in this case. The footnote indicates that:

“a mere change in position or status does not come within the purview of ‘removed’ or ‘dismissed.’ (Lane v. Board of Education of Fairbury-Cropsey Community School District No. 3 (1976), 38 Ill. App. 3d 742, 348 N.E.2d 470.) Nor, of course, would such interpretation be applied to a teacher’s extracurricular duties or assignments, such as coaching sports activities, directing class plays, training debaters or other forensic students, etc. — or any other function not specifically encompassed within the teacher’s primary curricular job description.” (Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 31, 375 N.E.2d 157,159.)

The change in status referred to in the footnote is the transfer of a principal to a teaching position with a reduction in contract length and salary. We have previously distinguished such a situation from the present case. We do not consider the duties to be performed during the tenth month of guidance on a par with coaching or training students but rather the natural culmination of the teacher’s primary job as counselor. They do not, therefore, place Birk beyond the protection of section 24 — 12.

We are aware that a school board’s best efforts to organize a program of instruction could be turned to chaos if teachers were permitted to claim the right to individual courses assigned to teaching positions they are not otherwise qualified to teach. For this reason, a dismissed tenured teacher has not been permitted to create a position for himself out of classes assigned to non-tenured teachers (Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126), or less senior teachers (Hayes v. Board of Education (1981), 103 Ill. App. 3d 498, 431 N.E.2d 690.) Nevertheless, reassignments made because of staff reductions must be scrutinized to see that tenure rights are protected. (Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126.) When a tenured teacher was reduced to part-time status and the courses he had previously taught were assigned to a less senior teacher who also taught other unrelated courses, the senior teacher was deemed “entitled under section 24 — 12 to have been assigned those classes” he had previously taught. The court believed that “the good faith rearrangement of assignments [by the Board] operated to ‘circumvent the purpose and spirit of the tenure laws.’ ” Hayes v. Board of Education (1981), 103 Ill. App. 3d 498, 502, 431 N.E.2d 690, 693.

We recently noted with approval the reasoning of Peters v. Board of Education (1982), 106 Ill. App. 3d 77, 435 N.E.2d 814, which determined “that teachers with district seniority have a right to insist upon the ‘horizontal realignment of course assignments’ to maintain their full-time teaching status where such realignment would not jeopardize the rights of other faculty members.” (Wilfong v. Collinsville Community Unit School District No. 10 (1982), 107 Ill. App. 3d 930, 934, 438 N.E.2d 225, 228.) This conclusion grew out of that court’s conviction that “[w]here *** it can be demonstrated that courses in the particular discipline are freely interchangeable between the various faculty members, it is palpably arbitrary and capricious for the school board to assign courses so as to require dismissal of faculty” unnecessarily. (Peters v. Board of Education (1982), 106 Ill. App. 3d 77, 81, 435 N.E.2d 814, 817.) We understand that circumstances in the Flora school district may not permit both Birk and Clark to continue teaching on an equal footing as was possible in Peters. Nevertheless, we think that where it appears Birk and Clark are equally competent to perform the guidance duties during the tenth month, Birk is entitled to insist on the horizontal realignment in his favor. Such a resolution comports with the spirit of the tenure law which favors the senior teacher.

A claim for back salary may be properly brought as part of the action for a writ of mandamus seeking reinstatement. (Walter v. Board of Education (1982), 93 Ill. 2d 101, 442 N.E.2d 870.) The measure of damages is the amount the teacher would have earned had he not been improperly dismissed. Board of Education v. Metskas (1982), 106 Ill. App. 3d 943, 436 N.E.2d 587.

For the foregoing reasons, the judgment of the Clay County circuit court is reversed and remanded with directions to issue the writ of mandamus and to determine the amount of damages to which Birk is entitled.

Reversed and remanded with directions.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CARL A. RALSTON, Defendant-Appellee.
    Fifth District
    No. 5—83—0381
    Opinion filed December 8, 1983.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy E. Blue, of State Appellate Defender’s Office, of Mt. Vernon, and Michael A. Lynch, law student, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The State appeals from the dismissal of a three-count forgery indictment against the defendant for failure of the complaining witness to appear on the date set for trial.

On February 21, 1983, defendant was arrested and bond was set at $30,000. On May 9, 1983, defendant asked for a dismissal after the State had made a motion for continuance. The court stated that the cause would be continued until 9 a.m. the next day. It appears that the parties and the court had an in-chambers discussion prior to going on the record in open court. On May 9, 1983, the court entered the following written order:

“This cause coming before the Court; the Court being fully advised in the premises and having jurisdiction of the subject matter; The Court finds: Complaining witness fails to appear. Court calls case to trial, State moves to continue; IT IS THEREFORE ORDERED: that State’s Motion is denied as to continuance. This cause be and is hereby dismissed for failure of complainant Brown to appear. Def. ordered released forthwith.”

The State contends that the court abused its discretion by dismissing the indictment as dismissal was neither authorized by law nor warranted by the facts. The defendant contends that the court did not abuse its discretion as the State made no showing that it had acted diligently in attempting to procure the presence of the complaining witness.

The only statutory grounds authorizing the discharge of a defendant without trial are found in section 114 — 1 of the Code of Criminal Procedure of 1963 (El. Rev. Stat. 1981, ch. 38, par. 114 — 1). (People v. Abel (1974), 21 Ill. App. 3d 314, 315 N.E.2d 136.) A dismissal for want of prosecution does not come within any of the statutory grounds set forth in section 114—1. 21 Ill. App. 3d 314, 315, 315 N.E.2d 136,137.

In People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, the supreme court expanded upon the statutory provisions of section 114 — 1, declaring that an action may be dismissed where the defendant has been denied due process as a result of preindictment delay. (People v. Grimm (1979), 74 Ill. App. 3d 514, 392 N.E.2d 1138.) However, the supreme court continued that its holding

“must not be construed as an invitation to disregard statutory provisions on dismissal. The courts must proceed with restraint and ascertain preindictment denial of due process only with certainty. Such certainty may be ascertainable in a pretrial evi-dentiary hearing on a motion to dismiss.
Whether the court chooses to determine issues of prejudicial delay in a pretrial hearing or at trial is for it to decide; the fundamental consideration is the competing interests of the defendant and the People.” People v. Lawson (1977), 67 Ill. 2d 449, 457, 367 N.E.2d 1244, 1247.

Section 114 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, eh. 38, par. 114 — 4(e)) provides in part:

“After a hearing has been held upon the issue of the State’s diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall be not less than 14 nor more than 30 days from the date of the court's finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this section.”

Balancing the competing interests of the State and defendant and considering section 114 — 4(e), the court erred in not granting the State a continuance of not less than 14 days nor more than 30 days from the date of the court’s ruling.

Defendant alleges that he was prejudiced because he was incarcerated for failure to post bond while the State attempted to secure the presence of the complaining witness for trial. However, we perceive no prejudice because the provisions of section 114 — 4(e) and the statutory provisions governing bail (HI. Rev. Stat. 1981, ch. 38, par. 110 — 1 et seq.) operate independently of each other.

For the foregoing reasons the judgment of the circuit court of St. Clair County is reversed and remanded with directions to afford the State one more court date upon which to proceed as provided by the second paragraph of section 114 — 4(e) of the Code of Criminal Procedure of 1963.

Reversed and remanded.

HARRISON and KASSERMAN, JJ., concur.


author: JUSTICE TRAPP JUSTICE WEBBER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE SINGLETON, Defendant-Appellant.
    Fourth District
    No. 4—83—0234
    Opinion filed December 19, 1983.

      WEBBER, J., concurring in part and dissenting in part.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

After a jury trial, defendant Willie Singleton was convicted of the offense of aggravated battery. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4.) Upon consideration of his criminal record, he was sentenced to three years’ imprisonment, the sentence to run consecutive to the 10-month misdemeanor sentence of imprisonment then being served. Defendant appeals the judgment of the circuit court of McLean County. We affirm.

Defendant raises two issues on appeal: (1) Whether the language of section 5 — 8—4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(d)) prohibits the trial court from ordering a defendant to serve a felony sentence consecutive to the misdemeanor sentence of imprisonment then being served; and (2) whether a consecutive sentence may properly be imposed where the trial judge does not use the statutory language of section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(b)) to indicate such sentence was imposed to protect the public.

The record discloses the following facts. On the evening of March 27, 1982, while at the Salt and Pepper Lounge in Bloomington, Illinois, defendant struck one Horace Yarbrough in the head causing his nose to bleed. Defendant left the bar, reentering several minutes later with one hand in his raincoat pocket. He drew this hand from his pocket and struck Yarbrough again, knocking him unconscious. Several witnesses testified that they saw a gun cupped in defendant’s hand as he struck Yarbrough after reentering the bar. There was testimony that defendant then “stomped” Yarbrough’s head. During the course of these events, Yarbrough made no attempt to strike the defendant. As a result of the incident, Yarbrough received 43 stitches inside and outside the area of his mouth and near one eye. One of his teeth was knocked out and his dentures were broken.

On January 14, 1983, a jury found defendant guilty of the offense of aggravated battery.

The sentencing hearing was held on February 28, 1983. The State argued that a sentence of five years’ imprisonment was necessary to protect the public; and that a lesser sentence would deprecate the seriousness of the offense and minimize defendant’s criminal record. The presentence report reflects the following prior convictions of defendant:

DATE CHARGE CONVICTED OF SENTENCE OR FINE
6/14/61 Indecent liberties one to three years, Illinois Department of Corrections Penitentiary System
2/9/63 Paroled
10/10/65 Disorderly conduct Fined $100; spent two days in county jail
4/7/74 Aggravated assault Fined $32.60
4/30/74 Battery Fined $150
8/10/75 Wrong way on one-way Fined $10 plus costs street
10/16/76 Unlawful use of weapons Sentenced on March 3, (76-CM-1433) 1977, to one year probation, fined $75 and ordered to spend two days in county jail
3/25/77 Failure to obey police Fined $50 plus costs officers
6/18/78 Unlawful use of weapons Sentenced on February (78-CM-659) 21, 1979, to 12 months’ probation, 30 days in jail, and a fine of $100 plus costs
1/20/79 Criminal damage to Sentenced on May 18, property (79-CM-99) 1979, to 12 months’ probation and ordered to pay a $200 fine, costs, and $51.99 restitution
8/2/80 Resisting a police officer Sentenced on November (80-CM-1284) 25, 1980, to 12 months’ probation and 14 days in jail
3/25/81 Deceptive practice over Convicted on April 21, $150 (81-CF-385) 1982; sentenced on May 14, 1982, to a term of 30 months’ probation and ordered to pay $145 restitution plus costs within 12 months
6/12/81 Battery (81-CM-856) Pleaded guilty on Sep- ^ tember 20, 1982; or- I dered to pay $50 fine ' plus costs
7/5/81 Unlawful use of weapons Sentenced on March 19, (81-CM-1064) 1982, to 10 months in the Department of Corrections — Penal Farm; case appealed; sentence upheld by mandate on November 21, 1982; mit-timus issued December 1,1982
9/25/82 Battery, resisting a peace Hearing pending officer (82-CM-1308)

In pronouncing sentence, Judge Townley made the following observations:

“Mr. Singleton, I’m sorry to say I’m afraid the record here indicates that you have repeatedly been given opportunities to straighten out your life. Now you had four [five] probations granted to you before you committed this offense. Four [five] different times you got *** probation with some time, small jail sentences. At the time you committed this offense you had just been sentenced eight days before to ten months and had appealed that case and were out waiting disposition of the appeal so within eight days after you had been sentenced for ten months at the Penal Farm for unlawful use of weapons, which would indicate to you you are facing real trouble, and you needed to straighten yourself out, you got involved in this which is a serious offense from the testimony as to the injuries that Mr. Yarbrough had and the circumstances under which the offense took place.
The Court just cannot consider this to be other than a serious offense, and so I cannot admit you to probation this time, and I am going to sentence you to the Illinois State Penitentiary for a term of three years which is not what the State is asking, and it is not the minimum sentence. However, the Court is going to provide that that three-year sentence is to be consecutive to the ten months you are serving. And the reason is there is no reason to reward you for getting involved in more trouble again after you had been sentenced to 10 months and say, ‘We will just throw those two sentences together,’ because it is obvious to me that that would be a miscarriage of justice. And while the Court could impose a greater sentence here, it seems to me that isn’t the point. The point is that we should make the sentence consecutive so you are serving your sentence for the ten months *** which is a separate item from this and also impose the three year sentence for your charge here. Now the Court could impose a greater sentence, but it would appear to me not to be the way to handle this case.
You pay the penalty on each of those separately, and the Court is going to order a Mittimus to issue. *** And depending on your conduct, you are entitled to earn some good time and some early release periods, but in the meantime you are going to have to remember what you do is primarily going to determine when you are going to get out. I think it is time you realize if you don’t change your conduct you are going to get longer and longer sentences here. And if you do, you are going to end up paying the penalty if you make the wrong decision [about] what you are going to do.”

Defendant first contends that the trial court erred by ordering his felony sentence to be served consecutive to the 10-month misdemeanor sentence in 81-CM-1064. Section 5 — 8—4(d) of the Unified Code of Corrections states:

“An offender serving a sentence for a misdemeanor who is convicted of a felony and sentenced to imprisonment shall be transferred to the Department of Corrections, and the misdemeanor sentence shall be merged in and run concurrently with the felony sentence.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(d).)

Defendant urges that the language of this statute be read as mandatory, citing People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641. We disagree for several reasons and find that the language of section 5—8—4(d) is directory.

The use of the word “shall” in a legislative enactment does not automatically dictate a mandatory construction. See, e.g., People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855; In re Application of Rosewell (1983), 97 Ill. 2d 434, 454 N.E.2d 997.

This court has held that when a defendant is first sentenced for a felony and subsequently sentenced for a misdemeanor conviction, the sentences need not be merged under section 5 — 8—4(d). People v. Por-zelius (1981), 97 Ill. App. 3d 865, 423 N.E.2d 985.

The language and structure of article 8 of the Unified Code of Corrections, effective January 1, 1973 (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1 et seq.), shows both explicitly and implicitly that contemporaneous sentences of imprisonment imposed for a misdemeanor and a felony may be either concurrent or consecutive. Section 5 — 8—1 states the scheme of sentences for felonies, while section 5 — 8—3 provides the terms of sentences for misdemeanors. Section 5 — 8—4(a) provides general judicial authority in the language “*** when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State *** the sentences shall run concurrently or consecutively as determined by the court.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(a).) That section continues to state that sentences shall be served concurrently unless otherwise specified by the court, but does not distinguish the exercise of judicial discretion as between felonies and misdemeanors, severally or jointly.

Subsection (b) of section 5 — 8—4 states certain standards for the exercise of judicial discretion in imposing a consecutive sentence without distinction between a felony and a misdemeanor. Subsections (c)(1) and (c)(2) state the limits upon the aggregate maximum period permitted for consecutive sentences and each subsection includes a provision applicable “*** [w]hen sentenced only for misdemeanors ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(c)(2).

Subsection (d) has been quoted as incident to defendant’s argument for relief. That argument disregards the language of the subsection which immediately follows:

“(e) In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents: ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(e).

Section 5 — 8—4(e)(1) further specifies:

“[T]he maximum period of a term of imprisonment shall consist of the aggregate ***, if any, plus the aggregate of the imposed determinate sentences for felonies plus the aggregate of the imposed determinate sentences for misdemeanors ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(e)(1).

The sum of the language of the several provisions simply does not countenance an argument that the trial court is without authority to impose consecutive sentences of imprisonment upon convictions of felonies and misdemeanors or support a view that a misdemeanor sentence of imprisonment must necessarily be merged with a felony sentence.

The opinion in People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641, does not enhance the effect of section 5 — 8—4(d) upon the issue. Pate substantially antedates the Uniform Code of Corrections and its provisions for concurrent and consecutive sentences. There were no judicial consecutive sentences concerned, although it may be said that a consecutive sentence was effectively created by the action of the prison administration. The court considered the “merger” language found in the then penitentiaries code (Ill. Rev. Stat. 1961, ch. 108, par. 49.1). The language of that section is of similar purport to that of subsection (d), but as construed in the Pate opinion cannot be associated with a judicial consecutive sentence under the present code.

Examination of the language and structure of article 8 of the Code makes clear that section 5 — 8—4(d) providing for the “merger” of misdemeanor and felony in prison does not bar a judicial decision to impose the consecutive sentences upon coexisting convictions of felony and misdemeanor. We conclude that a construction of 5 — 8—4(d) as directory is consistent with the legislative intent and is designed to control the administration of sentences where there is no judicial imposition of consecutive sentence.

We next consider the merits of defendant’s argument that the judge erred in imposing consecutive sentences since he did not state that the term was necessary for the protection of the public. The State argues that the sentencing court need not include a ritualistic recitation of the statutory language of section 5 — 8—4(b) that “a consecutive term is required to protect the public from further criminal conduct by the defendant.” This precise issue was considered by the supreme court in People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836. Therein the court stated:

“Although it would be better practice to state the opinion in the language of the statute, failure to do so does not necessarily require reversal. (See People v. Davis (1982), 93 Ill. 2d 155; People v. Kuesis (1980), 83 Ill. 2d 402, 409-10; People v. Cox (1980), 82 Ill. 2d 268, 280-81; People v. Meeks (1980), 81 Ill. 2d 524, 534.) What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public. *** As to the sufficiency of the reasons set forth in the record for the consecutive sentence, it is settled that a reviewing court will not substitute its judgment for that of a sentencing court merely because it would have balanced the appropriate factors differently. (People v. Perruquet (1977), 68 Ill. 2d 149.)” (93 Ill. 2d 169, 177-78, 442 N.E.2d 836, 840.)

(See also People v. Soloman (1983), 116 Ill. App. 3d 481, 451 N.E.2d 953.) We conclude that the reasons for sentencing set forth in the record are sufficient to satisfy the requirements of section 5 — 8—4(b).

Finally, defendant contends the only reason the trial court imposed a consecutive sentence was to punish him for committing another crime. We are satisfied that consecutive sentence was imposed in view of the nature and circumstances of the offense and the history and character of the defendant, consistent with the terms of section 5 — 8—4(b).

Affirmed.

MILLS, P.J., concurs.

JUSTICE WEBBER,

concurring in part and dissenting in part:

I concur with my colleagues that the trial judge need not recite the precise statutory litany when imposing a consecutive sentence. I disagree, however, that a trial judge possesses unbridled authority to impose a consecutive sentence. Section 5 — 8—4(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(d)) represents one restriction.

Pate, rejected by the majority, is precisely in point. Present section 5 — 8—4(d) is simply a paraphrase of former section 1 of “An Act in relation to merger of certain sentences” (Ill. Rev. Stat. 1961, ch. 108, par. 49.1). An offender cannot be “transferred to the Department of Corrections” within the meaning of section 5 — 8—4(d) unless he is already serving some sentence elsewhere, presumably in the county jail under section 5 — 8—6(b) of the Code. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—6(b).

The majority’s reliance on section 5 — 8—4(e) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(e)) is misplaced. In my opinion sections 5 — 8—4(d) and 5 — 8—4(e) are aimed at different situations, (d) deals with the case wherein an offender is already serving a term for a prior and unrelated misdemeanor; (e) is directed at multiple convictions, both felony and misdemeanor, growing out of the same act or series of related acts. The Pate court saw this clearly and precisely articulated the legislative policy behind it. The wisdom of the merger policy is not for us to examine.

In the instant case the trial judge appeared to be aware of the problem by saying, “Now the Court could impose a greater sentence, but it would appear to me not to be the way to handle the case.” It appears to me that this is precisely the way to handle the case. If the trial judge is insistent that both offenses be punished, and if he is aware of the merger provisions of the statute, all that need be done is to increase the felony sentence by the amount of the unserved time under the misdemeanor sentence.

The business of construing a statute under the mandatory-versus-directory hypothesis is a tricky operation at best and is too slender a reed upon which to lean in this case. The question should not even be reached.

I would affirm the convictions but vacate their consecutive nature pursuant to this court’s authority under Supreme Court Rule 366(aX5) (87 Ill. 2dR. 366(aX5)).