author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY BOSWELL, Defendant-Appellant.
    First District (4th Division)
    No. 83—169
    Opinion filed March 14, 1985.

      Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Defendant, Jeffrey Boswell, was found guilty following a jury trial of murder. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1.) He was sentenced to a term of natural life imprisonment. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 8—1(a)(1), (c).) Defendant raises several issues on appeal. The only issue we deemed dispositive is the question concerning the trial court’s refusal to ask certain questions tendered by defense counsel during voir dire.

As defendant does not contest the sufficiency of the evidence to support his conviction, we summarize the evidence presented at trial as follows. On September 9, 1980, at about 10:30 p.m., the victim, Dorothy Guyton, along with Norine Williams, Nancy Wamble and two others, were standing on a street corner when they were approached by a man identified by Williams and Wamble as the defendant. The defendant made a derogatory remark and an argument ensued between the defendant and the victim. At that point, the defendant pulled out a revolver. The argument subsided a few minutes later and the defendant withdrew his gun. A bottle of liquor was then purchased and after it was consumed by the group, the victim’s four friends left and went upstairs to Williams’ apartment, a short distance away. Shortly thereafter, a gunshot was heard, and the victim was found lying at the bottom of the stairs leading to Williams’ apartment, mortally wounded.

On September 24, 1980, Williams and Wamble identified defendant from a group of photographs shown to them by police. On October 1, a police officer prepared a sworn complaint for preliminary examination charging the defendant with the murder of Guyton and appeared before a circuit court judge in order to secure a warrant for defendant’s arrest. (See Ill. Rev. Stat. 1983, ch. 38, par. 107 — 9.) A warrant was issued, and defendant was arrested the next day. Defendant was immediately placed in a lineup and was identified by Williams and Wamble. An indictment charging the defendant with murder was filed on October 3,1980.

Defendant introduced testimony that he was noticeably limping subsequent to his interrogation by police. Defendant did not testify.

Prior to voir dire examination of the jurors, defense counsel submitted a list of supplemental questions, in accordance with Supreme Court Rule 234, which he sought to have the court ask during voir dire. (See 94 Ill. 2d R. 234.) Three of those questions concerned the attitude of the jurors towards the failure of a defendant to testify in his own behalf, whether the jurors could render a verdict of not guilty if the State failed to prove its burden beyond a reasonable doubt, and whether the jurors understood the concept that the defendant did not have to offer any evidence in his own behalf but was presumed innocent and had to be proved guilty by the State beyond a reasonable doubt. The trial court rejected these questions on the basis that they covered matters of law about which the jury would be later instructed and that the trial court’s question to jurors as to whether they could follow the law as given to them by the trial court was sufficient. Defendant argues that under the recent Illinois Supreme Court decision of People v. Zehr (1984), 103 Ill. 2d 472, 468 N.E.2d 1062, the trial court’s refusal to ask these questions or otherwise probe the subject matter raised by these questions was reversible error.

Zehr considered the effect of a trial court’s failure to ask the same three voir dire questions submitted by a defendant regarding the State’s burden of proof, the failure of the defendant to testify in his own behalf, and the presumption of the defendant’s innocence. In Zehr, the State had argued that the trial court properly refused to ask these questions as they pertain to matters of law or instructions, which precluded the trial court under Rule 234 from posing the questions tendered. Also, the State there had argued, as it argues here, that jury instructions adequately advised the jurors regarding the subject matter covered by defense counsel’s proposed questions. (103 Ill. 2d 472, 476-77, 469 N.E.2d 1062.) Rejecting the State’s arguments, the supreme court characterized each of these questions as going to the heart of a juror’s bias or prejudice, the failure to ask even one of which is sufficient to deprive the defendant of his right to a fair and impartial jury. The court indicated that in order to assure that jurors possess the requisite impartiality, it was essential that jurors be informed that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. (103 Ill. 2d 472, 477, 469 N.E.2d 1062.) The court emphasized that if a juror has a prejudice against any of these basic guarantees, jury instructions on these concepts given at the end of the trial would have “little curative effect.” (103 Ill. 2d 472, 477, 469 N.E.2d 1062.) Although the questions need not be asked in the exact form submitted, the court concluded that the failure to probe the subject matter of the questions proposed results in reversible error. 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062.

The State argues that the trial court’s comments to the entire venire prior to voir dire examination and during the individual voir dire adequately probed the jurors for any possible bias or prejudice in compliance with the dictates of Zehr. Pursuant to Supreme Court Rule 234, the trial court conducted voir dire examination of prospective jurors. Prior to the individual voir dire, the trial court addressed the entire venire, in which he indicated that a defendant is presumed innocent of the charges against him, that this presumption continues throughout the trial, and that this presumption is only overcome by proof beyond a reasonable doubt introduced by the State. If the presumption is not overcome, the trial court instructed the jurors, the defendant must be found not guilty. Continuing, the trial court told them that the defendant need not prove himself innocent. Finally, the jurors were told that they must be able to follow the law as given to them by the trial court. In examining the various panels, the court specifically asked jurors if after being instructed on the general principles of law governing criminal cases they would follow the law as given them by the court even though they might personally disagree with it.

After considering the trial court’s comments to the jury, we believe that under the rule announced in Zehr those questions concerning the presumption of defendant’s innocence and the absence of any burden of proof on the defendant to prove himself innocent, and the State’s burden to establish the defendant’s guilt beyond a reasonable doubt tendered by defense counsel were sufficiently broached in this case to alleviate any error in these respects. However, while the subject matter of these important guarantees was adequately probed, we cannot also conclude that the matter regarding the defendant’s failure to testify in his own behalf was asked or otherwise covered during voir dire. The principle that a defendant’s failure to testify in his own behalf cannot be held against him is perhaps the most critical guarantee under our criminal process, and it is vital to the selection of a fair and impartial jury that a juror understand this concept. Given the supreme court’s pronouncement that each of these questions is required to be covered during voir dire when requested, we are compelled to reverse the defendant’s conviction and remand the cause for a new trial. See People v. Zehr (1984), 103 Ill. 2d 472, 477-78, 469 N.E.2d 1062; see also People v. Britz (1984), 128 Ill. App. 3d 29, 40, 470 N.E.2d 1059, appeal allowed (1984), 101 Ill. 2d 583; cf. People v. Estes (1984), 127 Ill. App. 3d 642, 655, 469 N.E.2d 275; but see People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.

In reaching this holding, we reject the State’s initial contention that the Zehr decision, decided three years after the trial in the instant case occurred, should be applied prospectively to this case.

As a general rule, a decision will be applied retrospectively unless the court expressly declares its decision to be a “ ‘clear break with the past,’ ” (United States v. Johnson (1982), 457 U.S. 537, 549, 73 L. Ed. 2d 202, 213, 102 S. Ct. 2579, 2587; People v. Tisler (1984), 103 Ill. 2d 226, 246, 469 N.E.2d 147), such as when the court explicitly overrules its own past precedent, disapproves a practice it had previously sanctioned, or overturns a well-established body of lower court authority. (People v. Seats (1984), 121 Ill. App. 3d 637, 639, 460 N.E.2d 110.) Accordingly, the State maintains that Zehr is a clear break from past supreme court interpretation of Rule 234 so that prospective application of Zehr is required.

While it is within the court’s inherent powers to give a decision prospective or retrospective application (Lane v. Sklodowski (1983), 97 Ill. 2d 311, 319, 454 N.E.2d 322), there is no indication in Zehr that the supreme court intended its decision to be applied prospectively. The State relies principally upon Justice Ryan’s dissenting opinion in Zehr to support its argument that the majority holding suggests a break with past supreme court authority relating to Rule 234. (People v. Zehr (1984), 103 Ill. 2d 472, 481, 469 N.E.2d 1062 (Ryan, J., dissenting).) However, the State’s reliance on the dissenting justice’s view of the relationship between Rule 234 and the majority opinion is irrelevant in the absence of any express statement by the majority that it was breaking with past interpretation of Rule 234. Zehr expressly overruled no clear past precedent. Nor did Zehr disapprove an established practice that the court had previously sanctioned. The court’s own citation of Rule 234 indicates that its ruling was not an abandonment or modification of its prior treatment of its own rule. Nor did it expressly overrule lower court authority which had applied Rule 234. As there is nothing in Zehr which suggests that it should be treated as an exception to the general rule of retroactivity, we conclude that Zehr has retrospective application.

As this cause must be remanded for a new trial, we shall address those additional issues likely to arise again.

The first issue we shall consider is whether the lineup identification testimony should have been suppressed on the ground that defense counsel was not present at the lineup.

The right to counsel assured by the sixth amendment attaches at the time that “adversary judicial proceedings” are initiated against a person by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82; People v. Burbank (1972), 53 Ill. 2d 261, 272, 291 N.E.2d 161, cert, denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) Defendant maintains that the lineup identification must be suppressed because the issuance of an arrest warrant following the filing of a criminal complaint and the defendant’s subsequent arrest pursuant thereto constituted a “formal charge” and thereby activated his constitutional right to have counsel present during the lineup.

In the instant case, no information or indictment was filed at the time of the lineup. An application for the issuance of an arrest warrant in the form of a complaint for preliminary examination accusing the defendant of murder was sworn to and filed by a police officer. (See Ill. Rev. Stat. 1983, ch. 38, par. 107 — 9.) The State’s Attorney’s office reviewed the form of the application and approved the issuance of an arrest warrant. The police officer then presented the complaint to a circuit court judge, and an arrest warrant was issued on the basis of that complaint.

The State argues that the mere filing of a criminal complaint by a police officer in order to obtain a warrant for a defendant’s arrest, much like a warrantless arrest, does not amount to the initiation of “adversary judicial proceedings.” The State maintains that whether “adversary judicial proceedings” commence with the filing of a complaint is dependent upon the degree of prosecutorial input. The State draws a distinction between the filing of a complaint by or at the direction of the prosecutor, which may constitute the commencement of adversary judicial proceedings, and the filing of such a complaint by a police officer in order to secure an arrest warrant, as here, with no indication of any significant prosecutorial involvement.

In resolving this issue, we must look to the purpose with which the right to counsel serves. The Supreme Court has recognized that the “core purpose” of the counsel guarantee is to assure aid at trial, “when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” (United States v. Ash (1973), 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573.) Similarly, at certain “critical” pre-indictment proceedings, the Supreme Court has extended an accused’s right to counsel (Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882), recognizing that “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both” (United States v. Ash (1973), 413 U.S. 300, 310, 37 L. Ed. 2d 619, 627, 93 S. Ct. 2568, 2573), in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.” (United States v. Wade (1967), 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 1156, 87 S. Ct. 1926, 1930, quoted in United States v. Gouveia (1984), 467 U.S. 180, 189, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292, 2298.) It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882.) While the court has indicated the various contexts in which the right to counsel is implicated, the court has emphasized that “[t]he initiation of judicial criminal proceedings is far from a mere formalism.” 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417-18, 92 S. Ct. 1877,1882.

While several Illinois appellate courts have held that the right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant (People v. Jumper (1983), 113 Ill. App. 3d 346, 349, 447 N.E.2d 531; People v. Faulkner (1980), 86 Ill. App. 3d 136, 139, 407 N.E.2d 126; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 282, 387 N.E.2d 1071), no Supreme Court nor Illinois Supreme Court decision has resolved the issue of whether the sixth amendment right automatically attaches upon the filing of a criminal complaint. (See People v. Owens (1984), 102 Ill. 2d 88, 101, 464 N.E.2d 261; People v. Jones (1984), 128 Ill. App. 3d 842, 848, 471 N.E.2d 590.) However, it has never been held that the right to counsel attaches at the time of the arrest. United, States v. Gouveia (1984), 467 U.S. 180, 189-90, 81L. Ed. 2d 146,155-56,104 S. Ct. 2292, 2299.

In Illinois, a warrantless arrest based on probable cause does not trigger the commencement of adversary judicial proceedings. (People v. Martin (1984), 121 Ill. App. 3d 196, 209, 459 N.E.2d 279; People v. Agee (1981), 100 Ill. App. 3d 878, 881-82, 427 N.E.2d 244.) The State’s analogy between a warrantless arrest and an accused’s arrest pursuant to an arrest warrant issued upon the filing of a criminal complaint may have some relevance in analyzing when the right to counsel attaches in this context. Under Illinois law, the standard for an arrest with a warrant and an arrest without a warrant is the same; both must be based upon a finding of probable cause. (Compare Ill. Rev. Stat. 1983, ch. 38, par. 107 — 2(c) (arrest without a warrant) with Ill. Rev. Stat. 1983, ch. 38, par. 107 — 9(c) (arrest with a warrant).) The procedure for securing an arrest warrant upon complaint is ex parte, in which the court makes a probable-cause determination that the person against whom the complaint was made has committed an offense. (Ill. Rev. Stat. 1983, ch. 38, par. 107 — 9(c).) Thus, in either situation the prosecutor does not necessarily become involved in the investigation of the accused. At this point, an indictment or information is then required in order to prosecute a felony offense. Ill. Rev. Stat. 1983, ch. 38, par. 111 — 2(a).

Instructive here are a number of Federal and out-of-State court decisions which have applied a flexible test in determining when the right to counsel attaches. (United States v. Duvall (2d Cir. 1976), 537 F.2d 15, cert, denied (1976), 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173; Lomax v. Alabama (5th Cir. 1980), 629 F.2d 413, cert, denied (1981), 450 U.S. 1002, 68 L. Ed. 2d 205, 101 S. Ct. 1712; Iowa v. Johnson (Iowa 1982), 318 N.W.2d 417, cert, denied (1982), 459 U.S. 848, 74 L.Ed. 2d 95, 103 S. Ct. 106.) Focusing upon the degree to which the prosecutorial forces of the State have centered upon an individual, courts applying this standard have held that an arrest by itself, with or without a warrant, does not constitute the onset of adversary judicial proceedings absent proof of significant prosecutorial involvement in procuring the arrest warrant. Where the extent of the prosecutor’s involvement in the procurement of the warrant is no more than in the assistance and preparation of the complaint (United States v. Duvall (2d Cir. 1976), 537 F.2d 15, cert, denied, (1976), 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173), as in the instant case, the arrest must be characterized as purely investigatory without any commitment by the State at this point to pursue prosecution.

Applying this test to the facts of this case, absent proof of significant prosecutorial involvement in procuring the arrest warrant, we conclude that the defendant’s sixth and fourteenth amendment rights to counsel had not attached at the time of the lineup. We reject the defendant’s formalistic proposition that the issuance of an arrest warrant, with nothing further, is enough to transform an investigatory arrest into the trial-like confrontation with the prosecutor contemplated under the sixth amendment.

• 6 Finally, defendant contends that the mandatory imposition of a natural life sentence under sections 5 — 8—1(a)(1) and (c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 8—1(a)(1), (c)) violates the Elinois Constitution (Ill. Const. 1970, art. I, sec. 11; art. II, sec. 1; art. VI, sec. 1) and the eighth and fourteenth amendments to the Federal Constitution (U.S. Const., amends VIII, XIV), since it requires the trial court to impose a life sentence without considering any mitigating or rehabilitative factors in the sentencing process.

Defendant relies upon People v. Taylor (1983), 115 Ill. App. 3d 621, 450 N.E.2d 1256, as support for his first assertion that if sections 5— 8 — 1(a)(1) and (c) are read as a mandatory directive the sections would be unconstitutional as violative of section 11, article I, of the Illinois Constitution, which provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship,” and would also violate the separation of powers clause under section 1, article II, as an invasion of the judiciary’s function to impose sentences. However, this issue was recently decided adversely to the defendant’s contention by our supreme court. (People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, rev’d in part (1983), 115 Ill. App. 3d 621, 450 N.E.2d 1256.) The supreme court in Taylor found that the statute does mandate a natural life sentence, and that providing for it does not unduly infringe upon judicial authority, nor does it violate the constitutionally stated objective of restoring offenders to useful citizenship. The court reasoned that as the legislature has the power to define offenses and fix penalties, unless the challenged penalties are clearly in excess of constitutional limitations, the section will be upheld as valid. 102 Ill. 2d 201, 205-06, 464 N.E.2d 1659.

Defendant next attacks the statute’s mandatory and nondiscretionary character as being cruel and unusual punishment under the eighth and fourteenth amendments as well as a violation of due process requirements. The cases cited by defendant, however, examine only the constitutionality of death penalty provisions. (See Eddings v. Oklahoma (1982), 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869; Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978; Roberts v. Louisiana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001.) Since these cases involve the death penalty, they are of limited usefulness in assessing the constitutionality of a mandatory term of life imprisonment. (See Rummel v. Estelle (1980), 445 U.S. 263, 272, 63 L. Ed. 2d 382, 390, 100 S. Ct. 1133, 1138 (“Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions [in death penalty cases] *** are of limited assistance in deciding the constitutionality of [other] punishment ***”); Lockett v. Ohio (1978), 438 U.S. 586, 605, 57 L. Ed. 2d 973, 990, 98 S. Ct. 2954, 2965.) The Supreme Court has stated that, although discretionary sentencing is an accepted practice, it is not constitutionally required in cases not involving the death penalty but rests on State public policy concerns enacted in sentencing statutes. (Lockett v. Ohio (1978), 438 U.S. 586, 602, 604-05, 57 L. Ed. 2d 973, 988, 989-90, 98 S. Ct. 2954, 2963, 2964-65 (plurality opinion); Woodson v. North Carolina (1976), 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (opinion of Stewart, Powell and Stevens, JJ.).) In Taylor, the Illinois Supreme Court recognized that the legislature considered the seriousness of the offense of multiple murders in determining that a mandatory minimum sentence of natural life imprisonment was required in the interest of public safety. People v. Taylor (1984), 102 Ill. 2d 201, 206, 464 N.E.2d 1659.

Furthermore, defendant’s reliance on Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, is misplaced. Solem did not involve a mandatory term of life imprisonment. The court did, however, hold that the imposition of a term of life imprisonment without the possibility of parole was unconstitutional where the sentence was imposed on a habitual offender who had an alcohol problem and who had committed no crimes of violence. The Supreme Court concluded that the defendant’s sentence was “significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.” (463 U.S. 277, 303, 77 L. Ed. 2d 637, 658, 103 S. Ct. 3001, 3016.) On this basis, Solem is distinguishable, as the crime committed in this case involved a crime of substantial violence. Therefore, we reject the defendant’s assertion that sections 5 — 8—1(a)(1) and (c) are unconstitutional as being cruel and unusual because they do not allow consideration of mitigating circumstances. Similarly, we also reject defendant’s challenge on due process grounds. The legislature has broad discretion in prescribing criminal penalties for offenses, subject only to the requirement that the statute be reasonably designed to remedy the evil the legislature deems to be a threat to the public health, welfare and safety. People v. Mathey (1983), 99 Ill. 2d 292, 298-99, 458 N.E.2d 499.

Defendant’s final contention with regard to sections 5 — 8— 1(a)(1) and (c) is that defendant should only have been sentenced under sections 5 — 8—1(a)(1) and (b), which permit a discretionary natural life sentence (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 8—1(a)(1), (b)), because both sentencing provisions are applicable to the defendant’s conduct. Sections 5 — 8—1(a)(1) and (b) state that the court may sentence a defendant to natural life if any of the aggravating factors from section 9 — 1 are present — in this case, where the defendant has been convicted of two or more murders. (See Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(b)(3).) Sections 5 — 8—1(a)(1) and (c) provide that when a defendant has been convicted of two or more murders the court shall sentence the defendant to natural life imprisonment. Based on the foregoing provisions, defendant contends that both provisions could apply to the instant case and are therefore ambiguous. Under the circumstances, the defendant contends that he therefore should have been sentenced under the more lenient permissive provision. We disagree.

One of the well-established principles of statutory construction is that a specific statutory provision controls as against the general provision on the same subject. (People v. Maya (1983), 119 Ill. App. 3d 961, 965, 457 N.E.2d 501; People v. Matzker (1983), 115 Ill. App. 3d 70, 72, 450 N.E.2d 395.) Sections 5 — 8—1(a)(1) and (b) are general provisions governing when a natural life sentence may be imposed for murder. Sections 5 — 8—1(a)(1) and (c) were specifically enacted to make a natural life sentence mandatory when a defendant has been convicted of two or more murders. Hence, the trial court properly imposed sentence under sections 5 — 8—1(a)(1) and (c) based on the defendant’s prior conviction for murder.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY A. WILLER, Defendant-Appellant.
    Fourth District
    No. 4—84—0646
    Opinion filed April 15, 1985.
    Modified on denial of rehearing May 3,1985.

      Daniel D. Yuhas and Judith N. Kirby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Robert J. Biderman and Timothy J. Londrigan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant entered a plea of guilty in the circuit court of Vermilion County to the offenses of indecent liberties with a child, attempted aggravated incest, and two counts of aggravated incest (Ill. Rev. Stat. 1983, ch. 38, pars. ll-4(a)(2), 8-4(a), ll-10(a)(l), ll-10(a)(2)) on June 5, 1984, before Judge Robinson. On July 24, 1984, Judge Robinson imposed concurrent terms of imprisonment of seven years for indecent liberties with a child, seven years for aggravated incest, and two years for attempted aggravated incest. On July 26, 1984, defendant filed a motion to withdraw his plea of guilty because of the sentences imposed. The motion was denied on August 8, 1984, and this appeal followed, challenging the sentences imposed and requesting sentence credit.

We first consider defendant’s argument that the trial court abused its discretion in imposing sentences beyond the statutory minimum. The defendant pleaded guilty to the offenses of indecent liberties with a child, a Class 1 felony providing for a term of imprisonment of from four to 15 years; aggravated incest, a Class 2 felony providing for a term of imprisonment of from three to seven years; and attempted aggravated incest, a Class 3 felony providing for a term of imprisonment of from two to five years. (Ill. Rev. Stat. 1983, ch. 38, pars. 11— 4(a)(2), 11 — 10(a)(2), 8 — 4(a), 1005 — 8—1.) The only sentencing restriction under the plea agreement was that the sentences imposed by the court be concurrent. As the sentences were made concurrent, and were within the statutory range for the offenses and the sentencing range as described to the defendant prior to the court’s acceptance of his guilty plea, which plea was reaffirmed by the defendant at the inception of the sentencing hearing, imposition of sentences beyond the statutory minimum does not, of itself, require that he be allowed to withdraw his plea of guilty. In People v. Stacey (1977), 68 Ill. 2d 261, 266-67, 369 N.E.2d 1254, 1256-57, it was stated:

“As a part of such [a plea] agreement the defendant implicitly undertakes to accept the sentence of the court and to admit that the sentence is fair and justified under the circumstances of the case. (People v. Whitehead (1975), 32 Ill. App. 3d 615, 616; People v. Melvin (1975), 27 Ill. App. 3d 269, 273; People v. Edwards (1974), 18 Ill. App. 3d 379, 380.) This agreement applies to both a negotiated and nonnegotiated sentence imposed after a plea of guilty. ***
* * *
As we have observed, Rule 604(d) is more than a simple procedural step. It is one which goes to the heart of the agreement entered into between the People and the defendant. To allow the defendant to appeal by attacking only the sentence would make for the unwholesome situation of the accused, through negotiation with the State, obtaining modification or dismissal of the more serious charges, entering a plea of guilty, and then attacking not his admission of the crime but only the sentence imposed.”

Although the above language in Stacey was in the context of holding compliance with Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) condition precedent to appeal after sentencing upon a plea of guilty, we find it likewise applicable here. The defendant’s dissatisfaction is with the sentences imposed, but this dissatisfaction does not render involuntary his admissions of the crimes, and therefore does not require vacating the pleas of guilty. Moreover, we have reviewed the evidence presented in aggravation at the sentencing hearing, and find no abuse in the sentences imposed. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Defendant also argues that he is entitled to sentence credit pursuant to the terms of section 5 — 8—7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—7(b)), first, for nine days served in jail on this charge prior to his release on recognizance bond (from May 8, 1984, to May 17, 1984); and second for 68 days of “total home confinement,” with release for employment and medical purposes, imposed as a condition of his release on recognizance bond, from the time of his release through the date of sentencing. Section 5 — 8—7(b) provides:

“The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3 — 6—3 of this Code.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 8 — 7(b).)

The State concedes defendant’s entitlement to sentence credit for the nine days served in the Vermilion County jail, but argues he has waived the issue of his entitlement for the 68 days of “total home confinement” by failing to raise it in his motion to withdraw his plea of guilty, citing Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)).

Rule 604(d) provides that “[u]pon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” At the outset, the State’s waiver argument, if applicable at all, applies with equal force to both periods for which defendant requests sentence credit. We hold that the waiver language of Rule 604(d) does not apply to issues of sentence credit raised for the first time on direct appeal from denial of a motion to withdraw a guilty plea.

Section 5 — 8—7 of the Code does not specify which authority is to compute the credit the defendant should be accorded for “time spent in custody” on a given charge. In People v. Johnson (1974), 23 Ill. App. 3d 886, 895, 321 N.E.2d 38, 46, the court commented that although it appeared the Department of Corrections could more conveniently perform the calculation, it had been the practice of some trial judges to compute and allow this credit. Johnson stated that, so long as the credit was given as required, it did not matter how it was accomplished. In People v. Miles (1983), 117 Ill. App. 3d 257, 259-60, 453 N.E.2d 68, 69-70, this court considered a case which demonstrated the obstacles which can arise when the calculation of jail credit is left to nonjudicial personnel. It is the judgment of the court which is the authority for the detention of the prisoner. (Ill. Rev. Stat. 1983, ch. 110, par. 701.) Further, it is fundamental that “ ‘[a] sentence should be *** so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning.’ ” (People v. Miles (1983), 117 Ill. App. 3d 257, 259, 453 N.E.2d 68, 69, citing People v. Walton (1969), 118 Ill. App. 2d 324, 333, 254 N.E.2d 190, 194-95.) Here, the record does not show that defendant was given any credit toward the sentences imposed by the trial judge. It is preferable for a defendant to request that the trial judge grant the sentencing credit to which he is entitled, and present any argument thereon, but the statute does not require that this procedure be followed.

Under Johnson, the Department of Corrections may be left to perform the calculation of credit, but any error, or the failure to perform the calculation, would not necessarily be known to a defendant at the time for filing the motion to withdraw his guilty plea. Section 5 — 4— 1(e)(4) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005-4-1(e)(4)) provides that the clerk shall transmit to the department or institution to which the defendant is committed the number of days, if any, which he has been in custody and for which he is entitled to credit against the sentence, which information shall be provided to the clerk by the sheriff. Neither would any resulting error, or the failure to comply with this section, necessarily be known to a defendant at the time for filing the motion to withdraw his guilty plea. As the right to sentence credit derives wholly from statute and is not a constitutional right, it does not appear that sentencing credit would be the subject for relief in proceedings under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.; People v. Owens (1966), 34 Ill. 2d 149, 150-51, 214 N.E.2d 749, 750.) We see little point in requiring a defendant to initiate additional proceedings when sentencing credit issues may as well be raised on direct appeal from the denial of a motion to withdraw a plea of guilty. Also, since the statute does not mandate that the trial court compute and announce sentence credit to which a defendant is entitled, it cannot be said that sentence credit is within the scope of the plea agreement within the meaning of Stacey. We therefore consider the merits of the issue raised.

Upon a review of the record, we concur that defendant is entitled to sentence credit for the nine days served in jail prior to his release on recognizance bond. We reject defendant’s argument as to his entitlement to an additional 68 days’ sentence credit.

On May 16, 1984, defendant filed a motion to modify bail conditions, stating that he had been placed on “work release” bond with confinement in the county jail when not working, but had now arranged a place to live apart from his spouse and step-children within walking distance of his employment, and that he had no criminal record and was employed in the community. He sought modification of his bail conditions to permit his release. At hearing on May 17, 1984, defendant testified that if released, he would stay at a hotel within three blocks of his employment. The State opposed the motion. The court allowed the motion and ordered defendant’s release from the public safety building, substituting as a bond condition “total home confinement” at the hotel indicated, with a release for employment and medical purposes, e.g., counseling. The no-contact provisions, of which the defendant had previously been advised, were continued. The trial judge further informed the defendant that if the conditions were unsatisfactory, he could still utilize the 10% bond provisions provided by statute. (Ill. Rev. Stat. 1983, ch. 38, par. 110 — 7.) Although the docket sheet shows the recognizance bond filed May 17, 1984, no written order appears in the common law record on appeal.

Defendant contends that the commentary to section 5 — 8—7 illustrates legislative intent not to dictate specifically the place of confinement for purposes of sentence credit: “This section *** gives full credit for time served in custody as a result of the offense for which the sentence was imposed. This would apply irrespective of where the offender was confined and would apply to custody outside of the State.” (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 1005 — 8—7, Council Commentary, at 224 (Smith-Hurd (1982).) Defendant further relies on certain statements in the decisions in People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 316 N.E.2d 769, and People v. Freeman (1981), 95 Ill. App. 3d 297, 420 N.E.2d 163.

In Sielaff, the Illinois Supreme Court rejected the petitioner’s contention that he was entitled to sentence credit for the period of his release on bail under section 5 — 8—7(b) of the Code. The court noted that the term “custody” has been defined as actual imprisonment, or it has been adapted to include lesser restraints (Black’s Law Dictionary 460 (4th ed. 1951)). However, the court observed that article 8 of chapter V of the Code contains several provisions in which the term “custody” necessarily must be construed as relating to confinement, and further, that bail is defined as the security necessary to release a person from “custody.” (See also People v. Leon (1980), 82 Ill. App. 3d 344, 402 N.E.2d 844.) In Freeman, this court rejected the defendant’s contention that she was “in custody” within the meaning of section 5— 8 — 7(b) of the Code during her stay at Gateway House Foundation Residential Drug Treatment Program in Springfield under the authority of a probation order. As the original record on appeal contained no information as to the nature or environment of Gateway House, this court on its own motion remanded the cause to the circuit court for the purpose of taking supplemental testimony and making supplemental findings of fact, and thereafter affirmed the trial court in denying sentence credit. The Freeman court stated that custody need not be penal in nature in order to obtain credit, and that under prior authority “confinement” is the functional equivalent of “custody,” but found that the restraints of Gateway House amounted to neither. We emphasize that Freeman was not in the bail context.

The term “custody” has been defined as very elastic, and encompassing the mere power, legal or physical, of imprisoning or taking manual possession, as well as actual imprisonment or physical detention. Nevertheless, the very concept of “bail” is generally contrary to the concepts of “custody” or “confinement.” Bail has been defined as:

“To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain within jurisdiction of court. *** To deliver the defendant to persons who, in the manner prescribed by law, become security for his appearance in court. To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called ‘bail’ ***.” (Black’s Law Dictionary 127 (5th ed. 1979).)

“Release on own recognizance” has been defined as:

“Release of a defendant on personal recognizance when, having acquired control over his person, the court permits him to be at liberty during the pendency of the criminal action or proceeding upon his written promise to appear whenever his attendance before court may be required and to render himself amenable to the orders and processes of the court.” (Black’s Law Dictionary 1160 (5th ed. 1979).)

Article 110 of the Code of Criminal Procedure of 1963 pertains to the provisions of bail. (See Ill. Rev. Stat. 1983, ch. 38, pars. 110 — 1 through 110 — 17.) Section 110 — 10 provides in part:

“Conditions of bail bond, (a) If a person is admitted to bail before conviction the conditions of the bail bond shall be that he or she will:
(1) Appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court;
(2) Submit himself or herself to the orders and process of the court;
(3) Not depart this State without leave of the court;
(4) Not violate any criminal statute of any jurisdiction; and
(5) Such other reasonable conditions as the court may impose.
(b) If a person is released on his or her own recognizance, the
court may impose other conditions, if, based upon proof presented, the court finds that such conditions are reasonably necessary to assure the defendant’s appearance in court, protect the public from the defendant, or prevent the defendant’s unlawful interference with the orderly administration of justice.
(1) Report to or appear in person before such person or agency as the court may direct;
(2) Refrain from possessing a firearm or other dangerous weapon;
(3) Refrain from approaching or communicating with particular persons or classes of persons;
(4) Refrain from going to certain described geographical areas or premises;
(5) Refrain from engaging in certain activities or indulging in intoxicating liquors or in certain drugs;
(6) Undergo treatment for drug addiction or alcoholism;
(7) Undergo medical or psychiatric treatment;
(8) Work or pursue a course of study or vocational training;
(9) Attend or reside in a facility designated by the court;
(10) Support his or her dependents.” (Ill. Rev. Stat. 1983, ch. 38, par. 110 — 10.)

It is clear from a reading of the statute that the legislature intended that broad discretion be accorded the trial judge in fashioning the conditions of bail bond, all of which might be deemed restrictive in nature. Irrespective of the terminology used by the trial court to describe the conditions of bail or recognizance bond, we reject defendant’s contention that being restricted to a hotel, with leave for purposes of employment, counseling and medical needs, can be equated to either custody or confinement for purposes of sentence credit under section 5 — 8— 7(b); such a strained interpretation of these terms would interject a degree of subjectivity into the determinations not clearly intended by the legislature. This appeal does not challenge the propriety or reasonableness of the restriction as a condition of bond, and we offer no comment upon it.

Defendant further cites section 5 — 6—3(b)(ll) of the Code, defining the conditions of home confinement when used as a condition of probation, in arguing that the terms of the recognizance bond placed “severe restrictions” on his freedom. (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 6 — 3(bXll).) This statutory language is inapplicable to the circumstances here, both by its express terms and by the fact that when sentencing on probation revocation a defendant is entitled to sentence credit for time served on probation unless the trial judge expressly states otherwise. People v. Hollingsworth (1982), 89 Ill. 2d 466, 433 N.E.2d 682.

Accordingly, judgment of the circuit court of Vermilion County is affirmed and the cause remanded for crediting the defendant for nine days served in custody prior to his release on recognizance bond.

Affirmed and remanded.

TRAPP and MORTHLAND, JJ., concur.


author: JUSTICE SULLIVAN

text:
      In re MARRIAGE OF CAROLYN WENTINK, a/k/a Carolyn Trutter, Petitioner-Appellant and Cross-Appellee, and GLENN WENTINK, RespondentAppellee and Cross-Appellant.
    First District (5th Division)
    Nos. 83—1886, 84—0616 cons.
    Opinion filed December 7, 1984.
    Rehearing denied April 11,1985.

      Doss, Puchalski, Keenan & Bargiel, Ltd., and Barry Schatz, of Rinella & Rinella, Ltd., both of Chicago (Paul J. Bargiel, of counsel), for appellant.
    Jones, Baer & Davis, of Chicago (Joseph W. Baer, Roderick E. MacRae, and Muriel Kuhs, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

In consolidated appeals from certain orders entered in an action for dissolution of marriage, petitioner contends that (1) the apportionment of the marital assets was inequitable; (2) the amount awarded her for child support was inadequate; and (3) the supplemental order requiring her to pay the fees of respondent’s attorneys for this appeal was improper. Respondent cross-appeals from that portion of the order allocating the marital assets, also contending that the distribution was inequitable.

Judgment for dissolution was entered on July 8, 1983. No issues pertaining to those portions of the order dissolving the marriage and awarding custody of the minor child to petitioner are raised in this appeal. Testimony and evidence presented at hearings on the remaining issues established that the parties were married in 1970 and have one child — Holly—born in 1975. Petitioner, 38 years of age at the time of trial, has a bachelor’s degree in business and worked in the commercial banking field for 2 k years prior to the marriage; but, except for volunteer work which she discontinued when Holly was born, she was not employed during the 12-year marriage. At the age of 25, she received the corpus of a trust established by her grandfather which consisted of more than 5,600 shares of AT&T stock, and upon the death of her mother, in 1977, she inherited approximately $500,000, of which $120,000 was placed in a trust for Holly. She had also acquired various items of furniture, jewelry, furs and silver before the marriage. Respondent, also 38 years of age, has a master’s degree in civil engineering and has worked for a firm as a consultant in that field for more than 15 years, earning approximately $46,000 in salary and a $7,500 bonus annually at the time of dissolution. Prior to the marriage, respondent had about $5,000 in savings, some furniture, and jewelry.

In 1971, the parties purchased the marital home for $80,000 with a down payment of $35,000 — apparently obtained primarily from the sale of some securities — and a $45,000 mortgage. Several years later, they contracted for the construction of an addition to the home which ultimately cost over $200,000, payment therefor being made with dividends from certain of petitioner’s securities and a $140,000 bank loan, $110,000 of which remained outstanding at the time of judgment. Throughout their marriage, both parties deposited their incomes into joint accounts, petitioner’s income approximating 60% and respondent’s 40% of the total contributions thereto. Household and family expenses were paid from those accounts and, on occasion, monies were withdrawn to purchase securities, both jointly and in their individual names. On July 8, 1983, the trial court entered its written order containing the following valuation and distribution of property:

Nonmarital Property Petitioner Respondent

Negotiable securities $1,111,695

Jewelry 40,000

Silverplate 10,000

Furniture 10,000

Furs 2,000

Total $1,173,695 -0-

Marital Property

Marital residence $275,000’ -0-

Negotiable securities 52,200 $ 49,400

Furniture 73,660 8,154

Cash -0-100,600

1979 Volkswagen 4,000 -0-

1981 Cutlass -0-6,000

Total $404,860 $164,154

Liabilities

Indebtedness on marital

home $158,000

Cash to be paid to re-

spondent 100,600s

Total $253,600 -0-

Net award $151,260 $164,154

In addition, the court ordered respondent to pay petitioner $350 per month for Holly’s support and each party to pay his or her own attorney fees and costs. On August 4, 1983, petitioner filed a notice of appeal, and on August 17, 1983, respondent filed a notice of cross-appeal. Thereafter, respondent moved for and was granted attorney fees to defend petitioner’s appeal, from which order petitioner takes the second appeal consolidated herein.

Opinion

Petitioner first contends that the trial court abused its discretion in apportioning the marital assets because it failed either to consider or give sufficient weight to her contributions to the acquisition and preservation of the marital estate.

It is well settled that the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 501 et seq.) requires the trial court to divide the marital property in “just proportions,” taking into account all relevant factors (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238), including those enumerated in section 503(d) of the Act, the most pertinent of which, for purposes of this appeal, are:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
* * *
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income ***.” (Ill. Rev. Stat. 1983, ch. 40, pars. 503(dXl) through (10).)

After considering all relevant factors, the court may, in its discretion, distribute the property in whatever proportions it deems equitable, and a reviewing court will not disturb that decision absent a showing that there was an abuse of that discretion (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925), which occurs only where the court acted arbitrarily and without the employment of conscientious judgment or exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866).

Applying these principles to the case at bar, we note initially that after hearing all the evidence, the trial court specified, in its written order, that in apportioning the marital property it had considered all relevant factors including, but not limited to, those set forth in sections 503(c) and (d) of the Act, and found that the distribution ultimately fashioned was equitable.

Nevertheless, petitioner posits that because the Act incorporates a shared-enterprise theory of marriage, “the distribution of marital property should be treated as nearly as possible like the distribution of assets incident to the dissolution of a [business] partnership” (see Ill. Ann. Stat., ch. 40, par. 503, Historical and Practice Notes, at 455 (Smith-Hurd 1980)); and thus, absent countervailing circumstances which emerge from the application of the other factors in section 503(d) — all of which, she maintains, relate only to “need” by the noncontributing spouse — the proportionate contributions of the parties to the marital estate must be reflected in the ultimate disposition thereof if it is to be deemed equitable. Arguing that her financial contributions accounted for at least 60% of the marital income and nearly all of the funds used for the down payment and construction of the marital residence; that she also contributed services as a homemaker, wife and mother; and that there are no countervailing circumstances, i.e., “needs” of respondent which warrant an apportionment on any basis other than contribution, petitioner asserts that the division of property between her and respondent should have been 70-30%, or no less than 60-40%, respectively.

Petitioner cites numerous cases holding essentially that an order distributing marital property should recognize and compensate each party for his or her contribution to the marital estate. Since, as noted above, the Act specifically mandates consideration by the trial court of this factor, the basic tenet expressed in those cases is undisputed; however, we do not interpret them to stand for the proposition that absent circumstances establishing need, contribution is the only — -or even the primary — factor to be considered. Moreover, the cases are, for the most part, factually dissimilar from the one before us.

For instance, in In re Marriage of Goforth (1983), 121 Ill. App. 3d 673, 455 N.E.2d 95, the husband appealed an order awarding the marital estate — valued at $81,000 — to the wife, and requiring him to assume $128,000 in debts incurred both during the marriage and after the parties had separated, and to pay maintenance, child support, and attorney fees. In modifying the order, the court found that the distribution “fail[ed] to recognize any of [the husband’s] contributions to the marriage, by leaving him with only debts, Christmas decorations and a wall placque,” and that it “[did] not put the parties in a position from which they can begin anew.” (Emphasis added.) 121 Ill. App. 3d 673, 679, 455 N.E.2d 95, 99.

Similarly, in In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189, the court reversed an order awarding the wife assets valued at $66,000 and the husband assets which — after computation of the outstanding debts thereon — had a negative value of $25,000. The court held that an order denying the husband any share of the net wealth accumulated during the marriage, while at the same time obligating him to satisfy all of the debts therefrom, could not be upheld absent the most extraordinary circumstances— which the court did not find — and ordered remandment of the case for reconsideration of the property distribution.

In In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596, this court determined that the trial court abused its discretion in awarding the husband possession and one-half of the net equity in a home held in joint tenancy but which had been purchased with the proceeds from the sale of another home awarded to the wife upon dissolution of the parties’ first marriage and an inheritance from her family. The court found that in view of the vast disparity in the parties’ economic circumstances, the wife’s serious health problems, the 15-month duration of the second marriage, and the fact that the order effectively took back everything petitioner had been awarded in the earlier judgment, the order was inequitable.

Clearly, the order appealed from here does not deny petitioner any share in the marital estate nor put her in a position from which she will be unable to begin anew; indeed, unlike the appellants in the cases above, she was awarded nearly one-half of the net marital assets.

In the case of In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336, the court did, as petitioner points out, hold that the order awarding the husband a greater share of the marital property than that awarded to the wife was justified by his greater contributions thereto; however, the court also stated that it had considered all other relevant factors as well; that the overall distribution was 49-46% — a division favoring the husband by only 3%; that he was also required to pay child support and one-half of the wife’s attorney fees; and that the order was modified on appeal to award the wife an additional one-half interest in a savings account erroneously categorized by the trial court as nonmarital property, thereby narrowing the dispositional disparity even further.

An examination of In re Marriage of Woodward (1980), 83 Ill. App. 3d 253, 404 N.E.2d 575, a case which petitioner argues is “strikingly similar to this one,” discloses that petitioner there was the primary wage earner throughout the marriage, working so that her husband could complete his education. Recognizing her contributions, the court awarded her the family home — the only significant marital asset — which had a net equity of approximately $3,400, noting that the wife would receive the home upon dissolution since the husband had received an education, largely through her efforts, during the marriage. Thus, the award was based not solely upon her financial contributions, but also upon a determination that each party was entitled to share in the benefits accrued during the marriage.

Finally, in In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730, it was held that the trial court did not abuse its discretion in a 60-40% distribution favoring respondent where all relevant factors were considered and it appeared that respondent was primarily responsible for the success of the family business, the principal asset of the parties; that it would have been impracticable to divide the business; and that petitioner received assets valued at over $500,000.

In summary, it is clear from a reading of the cases cited by petitioner that each was decided upon its own unique facts and circumstances as they related to the factors set out in section 503(d), and that in none did the trial court hold that absent a demonstration of need an order of distribution must reflect the respective contributions of each party.

Furthermore, notwithstanding the partnership approach to "marriage taken by the Act, it has been noted that “[a] marriage is not a business relationship *** [and] the fact one party’s contribution to the estate can be readily quantified in dollars in no way maximizes that party’s interest over another’s” (In re Marriage of Stralow (1981), 95 Ill. App. 3d 235, 238, 419 N.E.2d 1227, 1229); i.e., it does not automatically entitle him or her to a greater share of the marital property (In re Marriage of Theeke (1982), 105 Ill. App. 3d 119, 433 N.E.2d 1311; In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126). Indeed, our supreme court has cautioned against placing too much emphasis on monetary contributions in attempting to distribute the property in just proportions (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238) because, although contribution is an important consideration, it is but one factor to be weighed and balanced against all others (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635; In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748). We reiterate, and decisional law has consistently held, that to achieve a just apportionment, the trial court must also assess the relevant economic circumstances of each party, the value of the property — both marital and nonmarital — set apart to each spouse, the amount of income generated therefrom, and the reasonable opportunity for each party to acquire assets and income in the future. Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465; In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262; In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.

In this case, the parties were married for 12 years throughout which respondent was gainfully employed and contributed nearly all of his earnings to the parties’ joint accounts to meet family and household expenses and, as petitioner acknowledged in oral arguments, also made nonmonetary contributions to the family in his roles as husband and father, as did she as wife, mother, and homemaker; and while it is true that, based on a review of his earnings, which have steadily increased to the current annual level of approximately $50,000, his economic circumstances and potential for acquiring additional assets and income in the future are good, it appears also that in view of petitioner’s large nonmarital estate, which includes negotiable securities valued at more than $1,100,000 (generating nearly $100,000 income per year) and $73,000 in personalty, her economic circumstances and prospects for accumulation of additional wealth appear significantly greater. Moreover, she — like respondent— is a relatively young, college-educated person possessing certain skills and experience which we believe it reasonable to infer from the evidence afford her at least a moderate earning capacity should she choose to seek employment in the future. Therefore, under these circumstances, we find no abuse of discretion here by the trial court in the apportionment of the marital assets.

Having so determined, we need not engage in an extended and repetitive discussion in addressing respondent’s cross-appeal, wherein he contends that the trial court failed to consider petitioner’s nonmarital “fortune” when dividing the marital estate, and that in the light of the “staggering disparity” between the parties’ personal assets, in order to achieve an equitable distribution, he should be given substantially all of the marital property. We do note, however, with respect to respondent’s first assertion, that it is evident, both from the trial court’s statement in its written findings that “a substantial amount of property was acquired by the petitioner for classification as non-marital property,” and from the order itself, which lists the items and values thereof, that proper recognition was accorded thereto. In regard to respondent’s second assertion, which is essentially that there should be an inverse relationship between the amount of nonmarital property owned by a spouse and the amount of marital property awarded to him or her, it is our opinion that this conclusion is predicated upon the same type of erroneous reasoning employed by petitioner in her argument that absent a demonstration of need, contribution should be the only basis upon which a property apportionment is made. Selection and consideration of only certain factors in structuring the division would contravene the legislative intent expressed in the language requiring the court to consider “all relevant factors” and would render meaningless the language preceding enumeration thereof, that “the court shall assign each spouse’s non-marital property to that spouse.” (Ill. Rev. Stat. 1983, ch. 40, par. 503(d).) In our view, respondent seeks to invade petitioner’s nonmarital estate under the guise of procuring an equitable distribution of marital assets, and we therefore decline to disturb the property disposition fashioned by the trial court.

Petitioner next contends that the amount respondent was ordered to pay for Holly’s support is grossly inadequate, given his financial means and the child’s standard of living.

Under section 505 of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 505) and precedential authority in this State, the financial responsibility for the support of a child is the obligation of both parents (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 436 N.E.2d 561; Hursh v. Hursh (1975), 26 Ill. App. 3d 947, 326 N.E.2d 95), and in a proceeding for dissolution of marriage, a determination of the proper amount of child support lies within the discretion of the trial court after consideration thereby of all relevant factors, including those set forth in section 505(a), which are:

“(1) the financial resources of the child;
(2) the financial resources and needs of the custodial parent;
(3) the standard of living the child would have enjoyed had the marriage not been dissolved;
(4) the physical and emotional condition of the child, and his educational needs; and
(5) the financial resources and needs of the noncustodial parent or parents.” Ill. Rev. Stat. 1983, ch. 40, pars. 505(a)(1) through (5).

In the case before us, the evidence establishes that Holly is the beneficiary of two trusts valued in excess of $275,000, and while petitioner points out that respondent did not contribute thereto, the fact remains that irrespective of their source, the funds set aside for the child are sizeable and, absent some unexpected occurrence or other extraordinary circumstances, ensure that her needs will be met in the upcoming years and that her present standard of living need not be significantly altered by the dissolution. In addition, as previously noted, petitioner’s personal assets yield an income of nearly $100,000, in contrast to respondent’s earnings of approximately one-half that amount. In the light thereof, it is not unreasonable to expect petitioner to assume the remaining portion of the support obligation. Furthermore, although there is nothing in the record to suggest that Holly is in other than good physical and emotional health, we note that the trial court’s order also obligates respondent to maintain health insurance for her and to contribute toward any of her uninsured extraordinary medical expenses. Considering the respective resources of the parties, as well as those of the child, we find no abuse of discretion by the trial court in ordering respondent to pay $350 per month toward her support.

Petitioner’s final contention is that the trial court’s order requiring her to pay respondent’s attorneys $5,000 to defend her appeal of the issues discussed herein was improper. Although her argument centers on the premise that respondent has failed to demonstrate that he lacks the ability to pay his own fees and that she is able to do so, our resolution of this issue does not rest on an analysis of the parties’ respective financial positions.

Section 508(a) of the Act clearly provides that “[t]he court *** may order either spouse to pay a reasonable amount for *** the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with *** (3) [t]he defense of an appeal of any order or judgment under this Act ***.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 508(a)(3).

Here, we note that although he was originally named as appellee in this appeal, respondent’s participation herein has not been to defend, i.e., to urge affirmation of the trial court’s order; rather, in his cross-appeal — filed less than two weeks after petitioner’s appeal — he, like petitioner, has sought reversal and/or modification thereof. In view of the clear language of section 503(a)(3), specifying that fee awards may be made for the defense of an appeal — ostensibly to eliminate the possibility that due to financial hardship a party might be foreclosed from securing adequate representation to protect whatever benefits were awarded in the order being challenged (see In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867) — we do not believe that fees should be awarded here, where, although defending the court’s order, respondent in his cross-appeal is at the same time attacking the order. Accordingly, the award of attorney fees to respondent for appeal under section 508(a) will be reversed.

For the reasons stated, the court order relating to the property distribution and child support is affirmed; however, the portion of the order requiring petitioner to pay appellate attorney fees of respondent is reversed.

Affirmed in part; reversed in part.

LORENZ and PINCHAM, JJ., concur.

       This estimate of fair market value, which is about $5,000 less than the sum of the 1970 purchase price and the cost of the 1981 addition was based, in part, on a finding by the appraiser in 1982 that the house had depreciated in value by about $97,000, and that due to the economic recession, housing-market conditions were poor. Respondent has not contested this valuation.

       Although this automobile was specifically awarded to respondent, its value was omitted from the figures computed in the order.

       Our research discloses that the opinion in In re Marriage of Goforth (1983), 121 Ill. App. 3d 673, 455 N.E.2d 95, was withdrawn to be republished at a later date.

       The trial court, in its order, gave petitioner the option of meeting this amount by assigning $22,700 of the jointly-held securities awarded her to respondent and paying him either the remainder in cash or the difference between $150,000 and the value of the securities he retained.


author: JUSTICE McNAMARA

text:
    WILLIAM J. BAGEL, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 84—741
    Opinion filed March 29, 1985.

      Davis & Cichorski, of Chicago (Richard M. Janci, of counsel), for appellant.
    Cassiday, Schade & Gloor, of Chicago (Debra K. Marcus, John J. Pappas, and Richard E. Patinkin, of counsel) for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, William J. Bagel, filed this action against defendant-appellee American Honda Motor Company, Inc., and defendant Carr’s Motorcycle Division seeking to recover damages for the repair, loss of use and loss of value for a Honda motorcycle. No personal injury or other property damage was sustained. Plaintiff sought recovery under theories of negligence, strict products liability and breach of implied warranty. Pursuant to section 2 — 615(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615(a)), the trial court dismissed with prejudice both counts of plaintiff’s complaint against American Honda.

Plaintiff purchased a used Honda CX500 motorcycle from Fred Humphreys, the original purchaser, in 1979. American Honda had provided an express limited warranty to Humphreys. This warranty was expressly given to the first retail purchaser only and was not transferable to subsequent owners. It provided coverage for six months from the date of purchase or 6,000 miles. The express limited warranty limited all implied warranties to the duration of the written guaranty and specifically disclaimed responsibility for all consequential damages.

In November 1978, American Honda undertook a recall campaign of its CX500 motorcycles to correct a possible cam chain defect, which would cause breakage and engine lock-up. Pursuant to the recall directive, Carr’s Honda modified and repaired Humphreys’ motorcycle. On April 19, 1981, while plaintiff’s motorcycle was idling in his garage, the engine seized and the motorcycle ceased operating. Plaintiff did not sustain personal injury and there was no property damage other than to the motorcycle.

In 1983, plaintiff filed a three-count complaint against American Honda and Carr’s Honda. Plaintiff alleged that the engine seizure was a direct result of cam chain breakage, causing a complete mechanical failure of the motorcycle. Count I alleged that American Honda negligently designed and manufactured the motorcycle and that its defective condition was unreasonably dangerous to plaintiff and his property. Count II alleged that Carr’s Honda negligently repaired the cam shaft mechanism prior to the engine seizure. Count III alleged that American Honda breached an implied warranty of merchantability pursuant to the Uniform Commercial Code. Finally, plaintiff alleged that he sustained damages, including cost of repair, loss of use, of profits, and of value of the motorcycle, due to its mechanical failure.

American Honda filed its motion to dismiss, contending that count I of plaintiff’s complaint failed to state a cause of action allowing tort recovery for negligence or strict products liability according to the economic loss doctrine set out in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. American Honda also contended that count III failed to state a cause of action for breach of implied warranty pursuant to the terms of the express limited warranty which limited the duration of the implied warranty and type of damage recoverable. The trial court granted American Honda’s motion to dismiss both counts of the complaint directed against it. Count II of plaintiff’s complaint remains pending in the trial court against Carr’s Honda.

In ruling upon a motion to dismiss, all well-pleaded facts in the complaint are taken as true and all reasonable inferences are drawn in favor of the opponent. (Palatine National Bank v. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635.) A motion to dismiss, however, does not admit conclusions of law or fact which are unsupported by allegations of specific facts. (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E. 2d 1022.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved entitling plaintiff to relief. (Palatine National Bank v. Greengard Associates (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635.) Moreover, the granting of a motion to dismiss is within the sound discretion of the trial court. Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 430 N.E.2d 1022.

Plaintiff initially contends that the complaint, which alleges only damage to a defective product and resulting losses, states a cause of action allowing tort recovery. Both parties agree that Moorman and Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 466 N.E.2d 195, are controlling. Plaintiff contends that damages to a motorcycle caused by a defective cam chain in the engine which posed a risk of harm to plaintiff and his property are the type of loss for which tort recovery is allowed. Defendant counters that the present allegations preclude recovery under Moorman and Vaughn.

In Moorman, the court delineated the scope of tort and contract actions for economic losses caused by defective products. The court held that physical injury to a person or his property was compensable under tort theories of strict products liability or negligence where plaintiff has been exposed to unreasonable risk of injury. On the other hand, economic loss resulting from a qualitative defect in a product was within the realm of contract law which protected a consumer’s expectation interests. In a situation where the harm alleged is damage to a product itself, the court distinguished between physical property damage (tort remedy) and economic loss (contract remedy). Quoting with approval the reasoning of Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co. (3d Cir. 1981), 652 F.2d 1165, the court stated:

“ ‘In drawing this distinction [between physical damage and economic loss] the items for which damages are sought, such as repair costs, are not determinative. Rather, the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk, and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.’ [Citation.]” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 85, 435 N.E.2d 443.)

The court further explained the distinction by focusing on the element of causation to determine the type of loss involved:

“ ‘When the defect causes an accident “involving some violence or collision with external objects,” the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. ***’ [Citation].” (91 Ill. 2d 69, 83, 435 N.E.2d 443.)

See also Vaughan v. General Motors Corp. (1983), 118 Ill. App. 3d 201, 454 N.E.2d 740, aff’d (1984), 102 Ill. 2d 431, 466 N.E.2d 195.

In Moorman, the supreme court found that the type of loss resulting from a crack in a grain storage tank was economic loss for which there was no recovery in tort. Although plaintiff had alleged a “sudden and violent” occurrence, the court concluded that since the crack had developed over a period of time the harm resulted from a qualitative defect. In Vaughan, the court held that plaintiff had stated a cause of action based on strict products liability where plaintiff’s truck sustained damage due to an accident involving defective brakes. Plaintiff was driving the truck when the brakes locked, causing the truck to overturn. The court reiterated the distinction announced in Moorman between physical harm or property damage and economic loss "with respect to damage to the product itself. The court concluded that the complaint alleged a “sudden and calamitous occurrence” caused by a defect in the product.

Therefore, Moorman and Vaughn require an inquiry into the type of damage alleged, the nature of the defect and the manner in which the damage occurred. If property damage results from a sudden or dangerous occurrence, then tort theory may provide recovery. If the loss relates to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause, then the remedy lies in contract. See Bi-Petro Refining Co. v. Hartness Painting, Inc. (1983), 120 Ill. App. 3d 556, 458 N.E.2d 209.

Here, plaintiff alleged damages as follows: cost of repair, lost profits, and loss of use and loss of value of the motorcycle. Plaintiff clearly alleged damage to the product itself and resulting losses, falling within the Moorman definition of economic loss. The nature of the alleged defect was a breakage of the engine’s cam chain. The damage allegedly occurred when the “engine suddenly stopped and seized” while the motorcycle was idling in plaintiff’s garage. Although plaintiff alleges that this was a sudden occurrence, we find that the loss resulted from a qualitative defect in the motorcycle like the crack in the grain storage tank in Moorman. Here, as in Moorman, the defect developed over a period of time. The engine ceased operating over two years and several thousand miles after the cam chain was repaired pursuant to American Honda’s recall directive. Whether the damage to the engine resulted from gradual deterioration or internal breakage, it did not occur in a dangerous manner that posed an unreasonable risk of injury to plaintiff or his property. The loss related to plaintiff’s disappointed commercial expectations.

This occurrence is clearly different from the truck accident in Vaughn. In that case, the brakes locked, causing the truck to overturn while plaintiff was driving the vehicle. The damage to the product in Vaughn resulted from a dangerous and calamitous event which threatened plaintiff with physical injury and property damage. The defect itself actually caused a risk of injury. Here, the damage to the product occurred while the engine was idling, not while the motorcycle was in use or motion. There was no sudden and calamitous event; there was no actual threat of injury to plaintiff or to his property. The supposition that plaintiff could have been injured had he been riding on the motorcycle is merely a possibility that did not occur. In Illinois, a motor vehicle is not a dangerous instrumentality per se. See Brill v. Davajon (1964), 51 Ill. App. 2d 445, 201 N.E.2d 253.

In a similar situation where the engine of an electrical generator failed, the Supreme Court of Alaska held that the plaintiff’s loss was economic and nonrecoverable under a strict products liability theory. (Northern Power & Engineering Corp. v. Caterpillar Tractor Co. (Alaska 1981), 623 P.2d 324.) There, plaintiff alleged that the engine sustained damage as a result of a defective oil pressure mechanism which failed to operate and caused the engine to seize. In finding that this was not a dangerous occurrence, the court found that there was no showing that the defect presented a danger to persons or other property and no showing of violence, fire, collision with external objects, or other calamity as a result of this failure. “The engine apparently just stopped operating.” (623 P.2d 324, 329.) Likewise in Gibson v. Reliable Chevrolet, Inc. (Mo. App. 1980), 608 S.W.2d 471, the court denied recovery in strict liability in tort where plaintiff was driving her automobile and the engine ceased to function. The court concluded that plaintiff’s pecuniary loss did not result from a violent occurrence or imminently dangerous product, but rather from internal breakage.

We also reject plaintiff’s contention that American Honda admitted in its recall claim that the cam chain was defective and presented an unreasonable risk of injury to persons or property. American Honda’s recall notice stated that “cam chain breakage could occur, and there is a possibility of engine lock up. In that case, loss of control and vehicle crash could result.” A manufacturer’s recall does not admit a defect in a particular product, but refers to the possibility of a defect in a certain class of products. Further, American Honda has not admitted that plaintiff has a cause of action in strict products liability by filing a motion to dismiss, since such a motion does not admit conclusions of law. (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 430 N.E.2d 1022.) Accordingly, we hold as a matter of law that plaintiff’s complaint does not state a cause of action for negligence or strict products liability. Therefore, the trial court correctly dismissed count I of plaintiff’s complaint.

Plaintiff next contends that its complaint states a cause of action for breach of implied warranty of merchantability against American Honda under section 2 — 314 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 — 314). Plaintiff purchased the used motorcycle from Humphreys, the original purchaser who received American Honda’s express and implied warranties. Generally, privity of contract is a necessary element in Illinois for an action on an implied warranty for economic losses. (Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App. 3d 897, 466 N.E.2d 1040.) Plaintiff was not in privity of contract with American Honda and, therefore, cannot claim breach of implied warranty against American Honda. Moreover, there is no allegation that plaintiff, a second-hand purchaser, fits within the third-party beneficiary exception to the privity requirement. (See Frank’s Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App. 3d 980, 408 N.E.2d 403.) Further, plaintiff does not allege that he purchased the motorcycle from a merchant within the meaning of the Uniform Commercial Code. Section 2 — 314 of the Uniform Commercial Code states in pertinent part:

“Unless excluded or modified *** a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”

The original purchaser, Humphreys, who sold the motorcycle to plaintiff was not a merchant. There is no allegation that Humphreys was a Honda dealer or a professional in the business of selling motorcycles. Rather it appears that the transaction was an isolated sale which does not confer “merchant” status upon Humphreys for the purpose of the Uniform Commercial Code (Ill. Rev. Stat. 1983, par. 2 — 314(i); see Sieman v. Alden (1975), 34 Ill. App. 3d 961, 341 N.E.2d 713). Because plaintiff was not in privity of contract with American Honda and purchased the used motorcycle from a seller who was not a merchant, plaintiff cannot claim breach of implied warranty of merchantability. We need not consider, therefore, American Honda’s argument that the terms of its express warranty limited its implied warranty of merchantability to the first purchaser for six months or 6,000 miles.

We likewise reject plaintiff’s contention that American Honda waived its limitation of implied warranty of merchantability by its letter to plaintiff dated September 11, 1981. In the letter American Honda stated that it would not extend the warranty period and would not pay plaintiff’s repair costs. American Honda had no warranty obligations toward plaintiff, and, therefore, a waiver agreement is inapplicable. Nor do we accept plaintiff’s argument that American Honda’s recall campaign was an exclusive remedy which failed of its essential purpose pursuant to Uniform Commercial Code section 2 — 719(2), for the same reason. There can be no claim of failure of an exclusive remedy when American Honda had no contractual obligations toward plaintiff. The complaint did not state a cause of action for breach of implied warranty against American Honda on the grounds of waiver or Uniform Commercial Code section 2 — 719(2). The trial court properly dismissed count III of plaintiff’s complaint against American Honda.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing counts I and III of plaintiff’s complaint directed against American Honda is affirmed.

Judgment affirmed.

McGILLICUDDY and RIZZI, JJ., concur.