text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BAKER, Defendant-Appellant.
    Third District
    No. 79-463
    Opinion filed November 24, 1981.

      HEIPLE, J., concurring in part and dissenting in part.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, and John X. Breslin and Kenneth Wilhelm, both of State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

On appeal from an order of the circuit court of Tazewell County revoking his probation and sentencing him to a term of imprisonment of 364 days, the defendant, James Baker, raises two issues for our consideration: first, did the defendant effectively waive his right to counsel at the probation revocation hearing; and second, must the trial court’s order that the costs for the services of a public defender are to be taxed against the defendant’s bail bond deposit be reversed. With regard to this latter issue, the State and the defendant are in agreement that the statute authorizing payment for legal services out of a defendant’s bail deposit is unconstitutional (People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56; Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(g)). Accordingly, that portion of the court’s order deducting $35 from the defendant’s bail deposit to meet the costs of the public defender must be reversed, and we hereby order that the $35 be returned to the defendant.

The State and the defendant are not in agreement on whether the defendant effectively waived his right to counsel at the probation revocation hearing. It is to this issue that we address the balance of this opinion.

On November 2, 1978, the defendant pleaded guilty to the offenses of aggravated assault (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 2(a)(1)) and unlawful use of weapons (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1(a)(1)). Pursuant to plea negotiations worked out between the defendant’s counsel, assistant public defender Fred Bernardi, and the assistant State’s attorney, the court sentenced the defendant to a 1-year term of probation. The probation was conditioned upon the voluntary commitment of the defendant to the Danville Veteran’s Administration Hospital for psychiatric treatment, and upon the serving of 90 days’ imprisonment in the Tazewell County jail.

On March 20,1979, the defendant left the V.A. hospital without first receiving the consent of the adult probation officer of Tazewell County. That same day a petition was filed in the circuit court of Tazewell County charging the defendant with violating the conditions of his probation, and seeking the revocation thereof. The office of the public defender was again appointed to represent the defendant.

The probation revocation hearing was held on May 14, 1979. The defendant was present, as was assistant public defender Fred Bernardi. Prior to the presentation of the State’s case, the defendant addressed the court and made a motion to discharge Mr. Bernardi, explaining that he was dissatisfied with Mr. Bernardi’s performance. The defendant then informed the court that he had discussed his case with another attorney who had agreed to represent him, and moved for a continuance so that his new attorney could fully familiarize himself with the case. The court initially denied both of the defendant’s motions, and directed Mr. Bernardi to cross-examine the State’s witnesses. The defendant, however, again objected to Mr. Bernardi’s representation, and the following colloquy ensued:

“The Defendant: Your Honor, I would rather that Mr. Bernardi did not cross examine them. He could possibly do more damage to my cause than good.
The Court: All right.
Mr. Bernardi: I will do anything the Court states. I will sit here as a mute or I will be discharged. Whatever the Court determines as necessary. This man does not want me and I don’t want to be next to him in this case and harm it if he says he doesn’t want me here.
The Court: All right. Again, the motion to discharge counsel, that if, if I didn’t allow you to discharge your attorney and would deny you a continuance, you would in effect be submitting here to representing yourself here today. Do you understand that, sir?
The Defendant: Yes sir.
The Court: All right. And full well realizing that, do you wish the, again, the Court to discharge your attorney of record?
The Defendant: Yes.
The Court: All right. Mr. Bernardi, you will be discharged then from the cause at this time. And your motion for a continuance in order to obtain counsel is heard and denied.”

The court then directed the State to proceed with its case. The State presented three witnesses who testified that on March 20, 1979, the defendant left the Danville V.A. hospital without permission. The defendant, proceeding pro se, did not cross-examine any of the witnesses, nor did he offer any evidence on his own behalf.

The court denied several additional motions by the defendant for a continuance. Upon the State’s waiver of closing argument, the defendant recited that he had received no psychiatric treatment at the veteran’s hospital. The court thereafter found the defendant guilty of violating his probation.

Section 5 — 6—4(c) of the Unified Code of Corrections guarantees a defendant accused of violating probation the right to representation by counsel at the probation revocation hearing (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6— 4(c)). In People v. Barker (1975), 62 Ill. 2d 57, 338 N.E.2d 385, the Illinois Supreme Court stated that in light of the fact that this statutory right to counsel can only be waived knowingly and understandingly (People v. Hessenauer (1970), 45 Ill. 2d 63, 256 N.E.2d 791), “[t]he circuit court should not permit the offender to waive counsel unless it determines, by addressing him in open court, that the offender understands: (1) the purpose of the revocation proceeding and the nature of the violation of the condition of probation upon which it is based: (2) that he has the right of confrontation, cross-examination and representation by counsel and that if he is indigent he has the right to appointed counsel; (3) the minimum and maximum sentence which may be imposed if the probation is revoked.” 62 Ill. 2d 57, 59, 338 N.E.2d 385, 387; see Ill. Rev. Stat. 1979, ch. 110A, par. 401(a).

Because an indigent defendant has no right to choose his appointed counsel (People v. Purvis (1977), 48 Ill. App. 3d 813, 363 N.E.2d 455; People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14), and because the facts of this case do not warrant the appointment of counsel other than the public defender (Ill. Rev. Stat. 1979, ch. 34, par. 5604), the defendant’s decision to discharge his appointed attorney in the face of the court’s denial of his motions for a continuance is the equivalent of a decision made at the outset of a probation revocation hearing to proceed pro se (People v. Roberts (1978), 56 Ill. App. 3d 126, 371 N.E.2d 1284; see People v. Voight (1977), 52 Ill. App. 3d 832, 368 N.E.2d 165). Consequently, before such a decision was made the defendant was entitled to receive Barker-type admonitions to insure'that his decision to proceed pro se was made understanding^ and with full knowledge of the rights afforded him under the laws of this State.

An examination of the colloquy between the court and defendant Baker at the time the defendant made his decision to discharge attorney Bernardi and proceed pro se reveals that the court gave the defendant no Barker-type admonitions. The record does not show that the defendant was advised either of the purpose of the revocation proceeding or of the nature of the probation condition violation upon which the proceeding was based. He was not informed he had the right to confront and cross-examine witnesses. (He was ultimately informed during the proceeding that he could cross-examine the State’s witnesses, but this occurred after the decision to waive counsel had been made.) He was not informed of the minimum and maximum sentences he could receive if his probation was revoked. On these facts, and particularly in light of the prior acknowledgement by the trial court that the defendant required psychiatric help, we cannot conclude as a matter of law that defendant Baker’s decision to waive counsel by discharging attorney Bernardi was knowingly and understandingly made. See People v. Shaw (1980), 89 Ill. App. 3d 69, 411 N.E.2d 143; People v. Myles (1980), 83 Ill. App. 3d 843, 404 N.E.2d 385; People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374; People v. Jones (1976), 36 Ill. App. 3d 190, 343 N.E.2d 644.

In so ruling we necessarily reject the arguments presented by the State, the first being that it was not necessary for the court to give the defendant Barker-type admonitions prior to a waiver of counsel because the defendant had no right to appointed counsel at all. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756.) Although Gagnon does indeed stand for the proposition that an indigent defendant is not constitutionally entitled to appointed counsel in probation revocation proceedings (but see People v. Voight (1977), 52 Ill. App. 3d 832, 368 N.E.2d 165), the absence of a constitutional guarantee of a right does not preclude the recognition and protection of the same right by State law. The right of a defendant to counsel in probation revocation proceedings is recognized in both the statutory and decisional law of this State. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(c); People v. Barker.) The statement in Barker that an accused probation violator is to be admonished that “if he is indigent he has the right to appointed counsel” (62 Ill. 2d 57, 59, 338 N.E.2d 385, 387) is not mere obiter dicta, as the State attempts to convince us, but a clear, definitive pronouncement of the law of the State of Illinois from its highest court. Although the right to appointed counsel in probation revocation proceedings may not be constitutionally mandated, it is nonetheless guaranteed under Illinois law.

There is another reason why we do not find Gagnon to be dispositive here. The United States Supreme Court was reluctant to declare in Gagnon that indigent defendants in probation revocation proceedings are entitled to appointed counsel because, inter alia, “[t]he introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding” (Gagnon v. Scarpelli (1973), 411 U.S. 778, 787, 36 L. Ed. 2d 656, 665, 93 S. Ct. 1756, 1762, which it saw as vastly different from a criminal trial (411 U.S. 778, 789, 36 L. Ed. 2d 656, 665-66, 93 S. Ct. 1756, 1763). In Illinois, however, the probation revocation proceeding, provided for by the Unified Code of Corrections, is in many respects more similar to a criminal trial than it is to the informal, quasi-criminal type of proceeding to which the Supreme Court alluded (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4). The very nature of the Illinois proceedings compels appointment of counsel to those who are unable to obtain it, a fact undoubtedly realized by both the general assembly and our Illinois Supreme Court in guaranteeing the right to counsel in such proceedings.

Secondly, the State contends that the defendant in the case at bar was not entitled to receive Barker-type admonitions because he was already represented by counsel. In so arguing, the State overlooks the fact that once Baker discharged attorney Bernardi he would not be entitled to representation by another appointed attorney. His decision to discharge his appointed counsel was, therefore, tantamount to a waiver of counsel and a decision to proceed pro se. It is this precise situation that triggers the need for admonishments pursuant to the Barker dictates.

Finally, however, the State argues that the failure to give the defendant Barker-type admonitions was harmless here because the record reveals that the defendant was represented by counsel and aware of the rights contained in those admonitions when he made his decision to waive counsel. (People v. Varnold (1977), 45 Ill. App. 3d 724, 359 N.E.2d 1135; see People v. O’Neal (1978), 62 Ill. App. 3d 146, 379 N.E.2d 12.) Although it might be assumed from the record of defendant’s April 6, 1979, fitness hearing that he understood the purpose of the impending revocation proceeding and the nature of the violation of the probation condition upon which the future hearing was based, it is not clear that he knew he had the right to cross-examine the witnesses against him before he made his decision to waive counsel. Nor is it clear that he was aware of the minimum and maximum sentences he could receive as a result of his probation violation. With regard to the latter, we will not presume that this defendant was able to remember the details and consequences of his one-year sentence rendered some six months earlier (cf. People v. Roberts (1978), 56 Ill. App. 3d 126, 371 N.E.2d 1287); and further, there is absolutely no evidence that the defendant knew that if he violated his probation he was in fact facing a term of imprisonment of that length. Based upon the foregoing, and in light of the fact that there is no evidence attorney Bernard! adequately or appropriately informed the defendant of his rights, we do not believe the failure of the court to give the defendant Barker-type admonitions prior to the latter’s waiver of counsel can be deemed harmless. For the reasons which we have stated herein, we hold that the defendant did not knowingly, understanding^, and effectively waive his right to counsel. We therefore reverse the order of the circuit court of Tazewell County, and remand for a new probation revocation hearing.

Because of our disposition with respect to the waiver of counsel issue, we do not find it necessary to comment at length about the correctness of the trial court’s denial of defendant’s motions for a continuance — an issue not argued on appeal. Suffice it to say that were the defendant’s right to counsel not violated, and were the issue raised on appeal, we would agree with our dissenting brother that the trial court did not abuse its discretion in denying the defendant’s motions.

As previously stated, we also order that the $35 deducted from the defendant’s bail deposit as payment for the services of the public defender be returned to him.

Reversed and remanded with directions.

ALLOY, J., concurs.

Mr. JUSTICE HEIPLE,

dissenting in part and concurring in part:

The reversal in this case, posited on the majority’s opinion that the defendant, James Baker, did not knowingly and understandably waive his right to counsel, is a total misconception of the issue. The learned discussion on waiver of counsel has no more application to this case than would a discussion on the doctrine of springing uses or the Rule in Shelley’s Case.

What are the facts?

Originally, the defendant pleaded guilty to aggravated assault and unlawful use of weapons. He was represented by court-appointed counsel. The trial judge determined his plea was voluntary and advised Mr. Baker of its consequences. He received a sentence of probation. Five months later, the State filed a petition to revoke probation. Again, Mr. Baker was appointed counsel from the public defender’s office. On April 6, 1979, at a fitness hearing, the nature of the revocation proceeding and the act giving rise to the State’s petition to revoke were explained to the defendant.

The petition to revoke probation came on for hearing on May 14, 1979. The defendant advised the court that he wanted to fire his court-appointed lawyer and have the case continued so that he could hire another lawyer. The prosecutor objected to any continuance, advising the court that the State’s witnesses were present. Apparently concluding that the case should not be continued, the trial court advised the defendant that the case was going to proceed to a hearing and that if the defendant fired his lawyer that he would be proceeding that day to a hearing without a lawyer. Defendant fired his lawyer anyway. The hearing went on. The defendant lost and his probation was revoked. He was sentenced to a term of imprisonment of 364 days.

The majority concludes that Baker’s choice was made unwittingly and without full realization of its consequences. And, since the possible effects of such an election were severe, they believe that the hearing judge erred in permitting Baker to represent himself without admonishing him of his right to counsel.

Why, it may be asked, should a trial judge advise a defendant of his right to counsel when the defendant has counsel? The suggestion is ludicrous. Supposing a prisoner was offered a full meal which was set down in front of him. Suppose further that the prisoner stated that he wanted to buy his own meal and he would like to go down to the corner restaurant to do so. Suppose further that the jailer told the prisoner that he would have to eat the meal served or go hungry. Suppose further that the prisoner then threw the meal in the wastebasket. Could the prisoner then be heard to complain against the jailer that he had been allowed to go hungry and miss his meal and that the jailer had not explained to him that prisoners have a right to meals? The analogy is apropos.

The defendant did not waive counsel. He fired him. Mr. Baker did not relinquish the right to an attorney; he explicitly terminated that relationship. Waiver of counsel, then, is a nonissue. The defendant had counsel: when he pleaded guilty; immediately after the revocation petition was filed; at the fitness hearing; and at the beginning of the revocation hearing. Nothing is furthered by a declaration of procedural rules where the rights those rules protect are adequately understood in practice and have been knowingly exercised. It is only the defendant’s discharge of counsel knowing the hearing would go on anyway which prevented him from being represented by counsel. This was a self-imposed condition. The issue of whether the judge should have granted defendant’s motion for continuance, which neither party addressed, is the only issue this appeal should have presented.

Generally, the propriety of continuing a cause for substitution of counsel is for the trial court’s resolution. Absent an abuse of discretion its ruling will not be disturbed. Where a motion for continuance assigns an improper ground as a reason for delay it is not error to deny it. People v. Smith (1961), 23 Ill. 2d 512.

On entering his guilty plea, Mr. Baker was adequately informed of the nature of the charges, the allowable sentences, and his right to confront and cross-examine witnesses. The purpose of the revocation proceeding and his conduct giving rise to it were explained to him at the fitness hearing. At the revocation hearing he was allowed to confront and cross-examine witnesses. Because he was disenchanted with his original probation sentence, Mr. Baker asked to fire his lawyer. A court cannot force a lawyer on a party. Yet neither can Mr. Baker employ his desire for new counsel as a weapon to thwart the administration of justice or otherwise embarrass an effective prosecution. People v. Friedman (1980), 79 Ill. 2d 341, 347-349.

No abuse of discretion occurred in denying the continuance. During the 2/2 months preceding the revocation hearing Mr. Baker never complained of incompetent counsel. No remarks were lodged concerning inefficiency at the fitness hearing. When the continuance motion was made, the revocation hearing had begun. The People had secured the attendance of witnesses for that hearing. Moreover, Mr. Baker’s oral motion to continue did not specifically identify new counsel or that attorney’s willingness to enter the cause without further delay. (People v. Koss (1977), 52 Ill. App. 3d 605, 607.) Baker’s general statement that court-appointed counsel “could do more harm than good” provides no articulable basis why his attorney was unfit. The hearing judge was quite justified in denying the continuance.

To expect a trial judge to advise a defendant of rights which have already been made known to him, understood by him, and previously exercised, forsakes substance in the name of formality that is both tedious and inane. Furthermore, it ignores the duty a trial judge possesses in the movement of cases in a fair and responsible fashion. This is just the sort of appellate ruling that has brought the administration of criminal justice into disrepute.

The judgment of the circuit court deducting $35 from defendant’s bail deposit to pay the public defender admittedly should be reversed: that part of the judgment revoking the defendant’s probation, however, should be affirmed for the reasons stated.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER Mr. JUSTICE HEIPLE,

license: Public Domain

text:
    ROY KEITH, Plaintiff-Appellant, v. B & B BUILDERS SUPPLY, INC., Defendant-Appellee.
    Third District
    No. 81-59
    Opinion filed November 24, 1981.
    •HEIPLE, J., dissenting.
    Douglas E. Reymore, Jr., of Leiter, Leiter and Sahn, of Peoria, for appellant.
    James V. Cunningham, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

From April 26, 1976, through August 23, 1976, the defendantappellee, B & B Builders Supply, Inc., constructed a home for the plaintiff-appellant, Roy Keith, under an oral contract. On August 22, 1978, B & B Builders Supply, Inc., filed a verified complaint against Roy Keith, seeking the sum of $3,386.12 in money due on a completed contract and an account stated between the parties. The complaint, filed as Peoria County Circuit Court No. 78-M-3586, contained a full explanation of all billings, services and materials. Roy Keith failed to respond to an appearance time and date summons, and a default judgment was entered against him in the amount of $3,386.12. Keith filed a motion to set aside the default judgment, but that motion was denied by the trial court, and no appeal was taken in case No. 78-M-3586.

On March 30, 1979, Roy Keith filed a complaint against B & B Builders Supply, Inc., seeking damages in the amount of $3,500.05 based on alleged breaches of warranties of fitness for a particular purpose and of habitability in the construction of Keith’s home. Peoria County Circuit Court No. 79-LM-1345 was assigned to Keith’s complaint. B & B Builders Supply, Inc., filed a motion to dismiss Keith’s complaint, or in the alternative to make insufficient pleadings more certain, or in the alternative to strike certain provisions objected to on April 19,1979.

On April 23, 1979, Keith confessed the motion to dismiss without notice to B & B Builders Supply, Inc., and was granted leave to file an amended complaint. Keith subsequently filed an amended complaint on November 24,1980. B & B Builders Supply, Inc. responded on December 4, 1980, by filing a motion for dismissal based on certain defects and defenses pursuant to section 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). In moving for dismissal, B & B Builders Supply, Inc., alleged, among other things, that Keith’s cause of action was barred by the doctrine of res judicata.

Following a hearing and request for briefs, the trial court granted the motion to dismiss filed by B & B Builders Supply, Inc. and found, as a matter of law, that Roy Keith’s cause of action was barred by the doctrine of res judicata arising out of the default judgment entered against Keith in case No. 78-M-3586. An order to that effect was entered on January 23, 1981, and the instant appeal followed.

On appeal, Keith submits that the trial court erred in dismissing his complaint with prejudice and applying the doctrine of res judicata to bar his suit against B & B Builders Supply, Inc., because the causes of action represented by his complaint and the earlier case No. 78-M-3586 are separate and distinct, albeit arising out of the same contract. The appellant asserts that Peoria County Circuit Court case No. 78-M-3586 was founded upon a completed contract and an account stated, whereas his complaint alleged a breach of warranties in which the factual issues focus upon allegations of faulty workmanship.

Thé appellee asserts that the doctrine of res judicata was properly applied to bar the appellant’s lawsuit, since the same parties are involved in both law suits and all matters arising under the contract were or should have been disposed of in the prior action. (See Gale v. Transamerica Corp. (1978), 65 Ill. App. 3d 553, 382 N.E.2d 412.) The appellee points out that Keith’s complaint alleges that he notified the appellee within 30 days following the completion of the house on August 23, 1976, of various defects in construction and of breaches of warranties. This time period is almost two years before the date of the appellee’s suit on the completed contract and account stated. It is the appellee’s contention that Keith’s actions in 1976 in notifying the appellee about the alleged defects and breaches of warranty brought those issues before the parties at the time of the first lawsuit. The appellee further contends that in their complaint in case No. 78-M-3586, they pleaded a condition precedent to the payment of monies due and owing on the contract pursuant to Supreme Court Rule 133. (Ill. Rev. Stat. 1979, ch. 110A, par. 133(c).) That condition precedent was a general allegation that all conditions of the contract had been performed satisfactorily. They conclude that the appellant’s failure to deny those allegations in case No. 78-M-3586 admitted that the contract had been completed satisfactorily. For this reason, they urge this court to affirm the trial court’s application of the doctrine of res judicata.

The application of that doctrine requires that three elements be present in both cases under consideration: the same parties or those privy to them, the cause of action, and the subject matter. (Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 403 N.E.2d 1262.) In the case at bar, the same parties are clearly involved and the same subject matter, namely the contract, is at issue. Whether the same cause of action is involved becomes the critical inquiry.

We hold that the cause of action represented by Keith’s claim is separate and distinct. Although his claims might have been raised in the prior action in the form of a set-off or counterclaim, he is not precluded from raising those issues now in a separate lawsuit. (See Ill. Rev. Stat. 1979, ch. 110, par. 38(1).) Section 38(1) of the Civil Practice Act provides that all issues between parties can be tried in one forum at the same time, but it does not require a defendant to immediately assert his rights by way of a counterclaim if it would be inconvenient or strategically inadvisable for him to do so. An election is available for the defendant under these circumstances, and the Illinois cases interpreting this section have so held. Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 403 N.E.2d 1262; Stoner v. Stoner (1953), 351 Ill. App. 304, 115 N.E.2d 103.

In the case at bar, Keith’s allegations of defects in construction and breach of warranties, while suitable issues to have been raised in the form of counterclaims in the earlier lawsuit (No. 78-M-3586), are equally cognizable as the basis of a separate cause of action. We make this determination mindful of the principle which indicates that res judicata extends not only to those matters actually determined in a case between the same parties or their privies, but also extends to any other matters properly involved which might have been raised and determined but were not. (Hilti, Inc. v. Griffith (1978), 68 Ill. App. 3d 528, 386 N.E.2d 63; Cheatem v. Cook (1974), 23 Ill. App. 3d 862, 320 N.E.2d 520.) Given the elective counterclaim rule in Illinois, this principle apparently extends only to matters the plaintiff in a lawsuit might or could have raised.

For the foregoing reasons, we reverse the order of the Circuit Court of Peoria County dismissing the appellant’s complaint and remand this cause for further proceedings.

Reversed and remanded.

BARRY, J., concurs.

Mr. JUSTICE HEIPLE,

dissenting:

I do not agree with the result reached by my colleagues. According to their analysis, Roy Keith’s suit is not barred by the doctrine of res judicata because his suit advances a different cause of action than the suit of B & B Builders.

While their statement of the doctrine is correct, the law and its application go further. It has long been recognized that a second suit between the same parties on a different cause of action may be precluded if there is an identity of issues in the suits, and there has been a prior adjudication of those issues in a suit between the same parties. This rule applies where the question upon which recovery in the second action depends has, under the same circumstances, parties and conditions, been previously adjudicated. (Hoffman v. Hoffman (1928), 330 Ill. 413; Public Utilities Com. v. Smith (1921), 298 Ill. 151.) This doctrine of collateral estoppel or estoppel by verdict is a derivative of res judicata. Instead of preventing a second assertion of the same claim or cause of action, the rule of collateral estoppel prevents a second litigation of issues between the same parties even if presented in a different cause of action.

B & B Builders in their suit (No. 78-M-3586) claimed they satisfactorily performed all their duties under the contract to build a house for Roy Keith. Such allegation was a necessary element in their cause of action to collect on the contract. Since judgment was entered on B & B’s suit, in their favor, the issue of successful contract performance cannot be relitigated. Roy Keith’s suit seeks to collect damages from B & B because he claims the contract was not satisfactorily performed and warranties were breached. This issue had its day in court. It cannot be relitigated. Collateral estoppel bars the suit of Roy Keith.

I am mindful of the elective counterclaim rule and find it wholly compatible with the principles of collateral estoppel and res judicata. While all issues between parties may be tried at one time or over a period of time, I find no suggestion in the Civil Practice Act that one issue may be tried and retried between the parties over a period of time and under the label of a different suit or cause of action.

Accordingly, I would affirm the trial court.


author: Mr. JUSTICE BARRY

text:
    RUSSELL HALE, Plaintiff-Appellant, v. WALTER HELLSTROM, Chief of Police of the City of East Peoria, et al., Defendants-Appellees.
    Third District
    No. 81-205
    Opinion filed November 24, 1981.
    Thomas F. McGuire, of Buffalo Grove, for appellant.
    Robert V. Clevenger, of Pekin, and Carl F. Reardon & Associates, of East Peoria, for appellee Board of Fire and Police Commissioners of the City of East Peoria.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

This appeal is from a judgment of the Circuit Court of Tazewell County affirming upon administrative review the 10-day suspension of Sergeant Russell Hale by the Board of Fire and Police Commissioners of the City of East Peoria.

On June 1, 1980, Sergeant Hale and Patrolman Dennis Róese responded to a call of a reported shooting at a motel in East Peoria. They were the first officers at the scene. In room 66 they found the male victim bleeding profusely from a head wound and the victim’s female companion. The officers were given a description of two suspects, which caused Hale to believe that a man and woman he had seen as he pulled up might be involved. Hale immediately left the scene in pursuit of the two suspects, and he succeeded in taking them into custody. After turning them over to other officers, he returned to the motel where he saw Julie Bill and Carrie Wilson, two police department female radio dispatchers, standing in the hall outside the room where the shooting had occurred. The dispatchers were just completing their duty shift when the call about the shooting came in, so they decided to go to the scene to see what was happening. The dispatchers were in uniform, and were employed by the city, not the police department.

According to Hale, his first thought was, “What in the heck are they doing here?” Then he thought one of the detectives at the station might have sent them to the scene since there were females involved in the crime. Hale testified that he just assumed the two dispatchers had a right to be there, and he did not, therefore, inquire as to their authority.

Shortly after Hale returned to the scene, the victim was removed and transported to a hospital in an ambulance accompanied by Officer Róese and by the victim’s female companion. As Róese was leaving, he told the dispatchers, “You can probably go in after he [the victim] is out of here.” Sergeant Hale remained in the room after the victim was removed, and he did not object or question the dispatchers when they came into the room. At one point he told Julie Bill not to touch anything, and at another time he asked her to turn on the air conditioning. (It was a warm humid evening.)

After an interval of time estimated variously as five to 20 minutes, Detective Paul Fisher arrived at the scene, and he became the ranking officer at the scene of the crime. Fisher told the dispatchers that they could leave, and they did so. A short time later the chief of police and the chief of detectives arrived at the scene and entered the room. According to the technicians who later checked out the scene of the crime, no evidence was contaminated by improper handling.

Hale was charged with intentionally allowing unauthorized personnel entrance to the crime scene in violation of two rules of the East Peoria Police Department involving the procedures for dealing with crime scene evidence. Rule 106.02(6) (a) required officers called to the scene of a crime to take immediate steps to “apprehend the perpetrator, care for the injured, investigate the circumstances, obtain the names and addresses of the victims and witnesses, protect the area, and prevent the destruction, mutilation, concealment or contamination of physical evidence, call the detective bureau and such help as may be necessary.” Rule 106.02(6) (e) stated that the “first officer at the scene of a serious crime shall exclude from the area all unauthorized persons and those who are not actually engaged in its investigation. Members of the department who are off duty or on duty but not assigned to the case shall not enter the premises or do any other thing that might interfere with the investigation or alter physical evidence in any respect, provided, however, that the officer in charge may assign such a member to immediate duty, when necessary.”

The Board of Fire and Police Commissioners found Sergeant Hale guilty of the violations charged and imposed a 10-day suspension without pay. Hale filed a complaint for administrative review in the Circuit Court of Tazewell County, and following a hearing, the court entered a judgment affirming the decision of the Board.

The judgment order of the court recited that the Board found Hale “guilty of intentionally allowing unauthorized personnel entrande to a crime scene on June 1, 1980, in violation of rules and regulations promulgated by the East Peoria Police Department.” The order also stated that the parties had previously stipulated that the error relied upon by Hale was that the decision of the Board was against the manifest weight of the evidence. The court then found that the decision was not against the manifest weight of the evidence. This appeal followed.

Before this court, Hale’s primary contention is that, considering the stress of the situation, his failure to ascertain whether the uniformed dispatchers had been authorized to visit the scene of the crime was not substantial misconduct as would justify a suspension.

The applicable standard for suspension was discussed in Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33, where the court said:

“A broad discretion is accorded the Board of Fire and Police Commissioners in determining what constitutes a proper cause for suspension, but it is essential to the validity of such suspension that it shall be based upon substantial misconduct or incapacity. Disobedience of a proper order given by a superior officer is such misconduct.” 28 Ill. App. 2d 435, 439, 172 N.E.2d 33, 34-35.

In other words minor misconduct or technical violations of rules should not be the basis for a suspension from duty, but rather should be corrected by means of a reprimand or other “in house” discipline.

Both the Board and the police chief in the case before us answer that Hale’s misconduct was substantial and could have resulted in a contamination of evidence which might have prevented the prosecution of the perpetrators of a violent crime. They assert the importance of a police department enforcing the rules designed to protect the chain of evidence. Finally, they insist that the Board’s decision was not contrary to the manifest weight of the evidence.

In a case where an officer was suspended for sleeping on duty, the reviewing court held that, if there is no dispute as to the facts, then the question is solely one of law and is reviewable by the court; however, if the evidence is conflicting or if credibility is involved, then the administrative agency’s decision cannot be disturbed unless it is contrary to the manifest weight of the evidence. Pryka v. Board of Fire & Police Commissioners (1978), 67 Ill. App. 3d 10, 384 N.E.2d 872.

Hale testified that he knew it was his duty to keep unauthorized persons from the scene, that he did not inquire as to the dispatchers’ authority to be present, and that he did not authorize them to be present. He argues that he assumed they were authorized, that he knew they had been at the scenes of other crimes, that he did prevent contamination of the evidence which was his primary duty, and that he in fact pressed one of the dispatchers into service when he asked her to turn on the air conditioner. We do not find the latter point to be very significant, but what is significant is that Hale could have requested the dispatchers to assist him at the scene. He was alone in a motel room containing contraband, blood, and, for all he knew, other material evidence. He had just chased on foot and captured two suspects and then returned to supervise the removal of the wounded victim and his companion from the room. The other officer with him left in the ambulance. Events were moving swiftly, and Hale could hardly be expected to cross-examine every person in a police uniform who appeared when he was responsible for protecting the area and for investigating the scene for possible additional evidence. At oral argument before this court, counsel for the Board admitted that Hale would not have been guilty of any violation of the rules if he had asked the dispatchers for their assistance.

We can only conclude that a rule violation based upon the fact that Hale failed to ask for assistance, but instead accepted it without question, was not such “substantial misconduct” as to justify a suspension in this case. Furthermore, we believe the evidence does not indicate an intentional violation of the rules but rather, at the most, an inadvertent failure to say the appropriate words authorizing the dispatchers to help him with his duties at the scene. Accordingly, we hold that the Board and the trial court erred.

By so holding, we do not intend to condone violations of police department rules or to prevent a board of police and fire commissioners from disciplining officers who engage in conduct which seriously impairs the functioning of the department. What we do hold is that the misconduct in this case was not substantial and did not support a suspension. Accordingly, we reverse the judgment of the trial court.

Reversed.

SCOTT, P. J., and HEIPLE, J., concur.


author: Mr. JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD ALLAN SHERMAN, Defendant-Appellant.
    Third District
    No. 81-285
    Opinion filed November 24, 1981.
    Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Rita F. Kennedy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Gerald Allan Sherman, appeals from the order of the Circuit Court of Tazewell County dismissing his petition for post-conviction relief without his presence and without an evidentiary hearing.

In 1978, the defendant was found guilty of robbery and theft following a jury trial. He subsequently received a concurrent 5-year term of imprisonment for each offense. He directly appealed, and this court affirmed the robbery conviction, vacated the theft conviction, and affirmed the sentencing order. (People v. Sherman (1980), 87 Ill. App. 3d 937, 409 N.E.2d 486.) Thereafter, he filed this instant petition for post-conviction relief, claiming that his retained trial counsel, Robert H. Jones, had rendered ineffective assistance of counsel and that the record did not contain the alleged error. The defendant also asked the court to appoint counsel who would more competently present the alleged constitutional violation in an amended petition. After appointing two attorneys who were forced to withdraw because of conflicts of interest, the court finally appointed attorney Michael Bush.

Contrary to the defendant’s desires, though, Bush failed to file an amended post-conviction petition. Instead, he moved to withdraw, saying he was unable to discover a basis for relief. In his verified motion, Bush maintained that (1) his motion was not intended to prejudice the defendant in any future post-conviction proceeding and that (2) the motion should not be interpreted by the court to mean that no basis for post-conviction relief existed, but only that the defendant's appointed counsel failed to discern any basis to support the alleged constitutional violation. The record contains no reference showing that Bush notified his client of his decision to withdraw.

Without the defendant being present, the court heard Bush’s motion to withdraw. Bush first said he thoroughly reviewed the entire record of the defendant’s trial, having specifically focused on the defendant’s allegation that his retained counsel had rendered ineffective assistance. He then wrote the defendant pursuant to Supreme Court Rule 651(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 651(c)) and asked him to detail the basis of his claim. In his reply, the defendant failed to reveal any specific basis amounting to ineffective assistance and instead asserted that he had been denied due process of law. Bush assumed from this letter that the defendant no longer wished to base his post-conviction petition on his retained counsel’s alleged ineffectiveness. Nevertheless, Bush researched the issue. He concluded that, because the standard for establishing ineffective assistance of retained counsel was that the representation must be so ineffective as to amount to no representation at all, the defendant could not sustain that burden of proof. With respect to the defendant’s claimed violation of due process, Bush said he also researched that issue and concluded that, in order for the defendant to prevail, he would have to prove that no rational jury could have found him guilty beyond a reasonable doubt. In Bush’s opinion, the prosecution submitted sufficient proof of all elements of the offense as charged, leaving only a question of credibility among the witnesses. Bush believed the defendant could not sustain this burden in light of the evidence. Bush made no mention of whether he explored outside the record for possible constitutional errors, as the defendant claimed in his petition. Following Bush’s statement, the prosecution orally moved to dismiss the defendant’s petition, stating that in light of the facts presented by Bush the allegations of constitutional error were without merit. The circuit court then waived the defendant’s presence in court, granted Bush’s motion to withdraw, and granted the prosecution’s oral motion to dismiss the defendant’s petition without the benefit of an evidentiary hearing.

Although the defendant has presented several issues for review, we vacate the circuit court’s order on the ground that the defendant failed to receive notice of either his counsel’s motion to withdraw or the prosecution’s motion to dismiss the petition. Ordinarily, it would be inconceivable that counsel would fail to inform his client of counsel’s motion to withdraw. Yet, according to Supreme Court Rule 651, appointed counsel to post-conviction proceedings must confer with his client, who is usually incarcerated, only to the extent necessary to ascertain the sufficiency of the defendant’s claims of constitutional violations. In this respect, appointment of counsel in post-conviction proceedings is sui generis. We simply cannot assume, as a matter of course, that Bush informed the defendant of counsel’s motion to withdraw, nor does the record contain any evidence to the contrary. The failure to adequately notify the defendant of this motion and to give him sufficient time to respond thereto resulted in effectively depriving him of any representation at the hearing which ultimately ended in the dismissal of his petition.

Judging from Bush’s actions following his motion to withdraw, we are convinced that he considered his representation of the defendant to have been terminated then and that his duty to vigorously represent the defendant’s best interest was contingent upon the court’s denial of his motion. Although counsel’s motion specifically admonished the court not to infer from the motion that the defendant’s claims were without merit, counsel unequivocally said before the court that the defendant’s rights to effective assistance and due process of law had not been violated. His conclusion was based in part upon a single, ambiguous letter which the defendant wrote in response to counsel’s inquiries. At this moment of the hearing, the defendant, who was not present, stood without representation and without having even an opportunity to rebut pro se his appointed counsel’s claims. This lack of representation is made clearer when, following Bush’s statement, the prosecution moved to dismiss the defendant’s petition on the very grounds offered by Bush in his motion to withdraw. Of course, Bush could raise no objections. As such the court could hardly do anything but grant both motions, the notice of which the defendant must have received to his surprise and dismay.

Accordingly, we hold that, because of the nature of the proceedings and because of counsel’s separation of his interests from those of the defendant by virtue of his motion to withdraw, the defendant was entitled to adequate notice of counsel’s motion to withdraw and the prosecution’s motion to dismiss in order to allow the defendant to respond pro se.

For this reason, we vacate the order of the Circuit Court of Tazewell County and remand for further proceedings consistent with the opinions therein expressed.

Vacated and remanded.

ALLOY and HEIPLE, JJ., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
      In re MARRIAGE OF ROBERT W. HUMPHREY, Petitioner-Appellant and Cross-Appellee, and MARION D. HUMPHREY, Respondent-Appellee and Cross-Appellant.
    Third District
    No. 80-652
    Opinion filed November 17, 1981.

      Anthony C. Raccuglia & Associates, of Peru, for appellant.
    Louis E. Olivero, of Peru, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

After a union spanning several decades, the marriage of Robert W. Humphrey and Marion D. Humphrey was dissolved on December 4, 1979, by the Circuit Court of La Salle County. Thereafter, on July 10, 1980, the same court entered findings and ordered the disposition of the marital property of the parties. It is the trial court’s property disposition which is the subject of this appeal by the petitioner, Mr. Humphrey, and a cross-appeal by the respondent, Mrs. Humphrey.

Mr. and Mrs. Humphrey were married on May 24,1942. Seven years later, the Humphreys moved to a 171-acre farm in Clarion Township of Bureau County. The 171-acre farm was owned by Mrs. Humphrey’s parents, and the Humphreys began their association with the Clarion Township farmland as tenants. The status changed some 10 years later when, upon the death of Mrs. Humphrey’s father, she inherited 121 of the 171 acres. Another ownership change was effected in 1962 when Mrs. Humphrey inherited the remainder of the farm with her mother’s passing.

During the years between 1949 and 1976, the Humphreys farmed the 171 acres either as tenants or as owners, and they both contributed to the enterprise. Mr. Humphrey was primarily the one whose labors operated the farm, but Mrs. Humphrey assisted her husband in planting, fertilizing, trucking and various other duties.

Mr. Humphrey’s physical condition caused the couple to re-evaluate their situation in 1976. Arthritis, ulcers, hypertension and high blood pressure made farm work difficult for Mr. Humphrey, and in consequence, a decision was made to sell the 171 acres. With the recommendation of their banker, the Humphreys consulted an attorney in Sterling, Illinois, regarding the sale of the farm and the tax consequences thereof. The attorney discussed various concepts with the Humphreys, including gifts between spouses to effect estate and inheritance tax savings as well as installment selling utilizing contracts for deeds. Both of these techniques were employed by the couple, and as will soon be apparent, the former technique, gifts among spouses, has provided the tinder which fires this appeal.

Having made the decision to sell the farmstead, the Humphreys proceeded to dispose of the asset in four transactions to three buyers. On December 21, 1976, the Humphreys entered into a contract for deed to sell 51 acres to Kenneth Alshouse. Then, on December 29,1976, the couple entered into a contract for deed to sell 81 acres to Wilbur Stamberger. Finally, on February 4, 1977, they sold 4 acres to Gerald Eich in a cash transaction, and on the same date they sold the remaining 36 acres to the same party with a contract for deed. In each instance, the contracts provided for payments of principal and interest through the year 1982.

At the same time, the Humphreys were heeding the advice of their attorney. On December 29,1976, Mrs. Humphrey deeded to Mr. Humphrey the north 22 acres of the total 40 acres sold to Eich the following year. In a similar fashion, on October 7, 1977, Mrs. Humphrey deeded to Mr. Humphrey an individual one-half interest in the 81 acres previously sold on contract to Stamberger. On the same date, she assigned to her husband one-half of her interest in the Stamberger contract. Gift tax returns were prepared, and a gift tax was paid in regard to the deeds and assignment.

In its order, the trial court determined that a valid gift was intended and made with the transfers between the then spouses. Having made that finding, the court divided the various parcels of real estate in the following manner: First, the 51 acres which was the subject of the Alshouse contract was determined to be nonmarital as to its value on the date it was inherited by Mrs. Humphrey, and that property’s increase in value since the date of inheritance was determined to be marital, with Mrs. Humphrey being awarded 70 percent of the increase and Mr. Humphrey being awarded 30 percent of the same amount. Second, the 81 acres which was the subject of the Stamberger contract was determined to be the marital property of the parties, and Mrs. Humphrey was awarded 70 percent of its value while Mr. Humphrey was awarded 30 percent of its value. Third, the 22 acres deeded to Mr. Humphrey as carved from the 40 acres which was the subject of the two Eich transactions was determined to be the marital property of the parties, and its value was divided equally between them. Finally, 14 acres remaining of the 40 acres described in the two Eich transactions was determined to be nonmarital as to its value on the date it was inherited by Mrs. Humphrey, and that tract’s increase in value since the date of inheritance was determined to be marital, with Mrs. Humphrey being awarded 70 percent of the increase and Mr. Humphrey 30 percent of that amount.

Situated on the 4-acre parcel deeded to Eich in 1977 was the residence occupied until that time by the parties. According to the trial court’s order the proceeds from the sale of the 4-acre homestead were applied, with other joint funds, to the purchase of a new residence titled in joint tenancy and located in Mendota, Illinois. The Mendota home was determined to be marital property and each party was awarded an equal interest therein. As noted at the outset, both parties urge that differing portions of the trial court’s order were incorrect and should be reversed. In considering the merits of the issues raised by both parties, we are aided by several recent decisions of our supreme court which post-date the trial court’s original order.

We believe the trial court’s disposition of the Alshouse 51 acres, or more precisely the proceeds from the Alshouse contract, must be reversed and remanded for further consideration. Since the Alshouse acres were acquired solely by Mrs. Humphrey by devise subsequent to the marriage, our decision with regard to this asset is governed by the recent supreme court decision. (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305.) Therein, it was determined that the character of nonmarital property remains unchanged when it appreciates in value during the course of the marriage due solely to inflationary factors. The evidence gleaned from the transcript of proceedings in the circuit court indicates that the 51 acres in question appreciated by an amount in excess of $130,000 from the time it was acquired through inheritance by Mrs. Humphrey until the date of the contract for deed. There is evidence that some of this increase may have resulted from noninflationary factors. Indeed, Mrs. Humphrey conceded that her husband’s labors had contributed to the appreciation in value realized. Mr. Humphrey buttressed that testimony with his own recollections of tiling the fields; dragging, cleaning and improving ditches; pouring a new concrete feed floor; drilling a new water well; building, repairing and improving corn cribs; and repairing, replacing and cleaning fence lines. The only evidence presented as to the value of these improvements affecting the entire farm, not simply the 51 acres, was testimony that the initial cost totaled slightly less than $16,000. While the Komnick case and the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1)) allow that a spouse’s contribution to the appreciation of nonmarital property is to be accounted for in the division of that property, we conclude that the evidence in the record before us which monetizes the value of Mr. Humphrey’s contribution to the appreciation of the entire farmstead fails to warrant his award of 30 percent of the appreciation in value of this 51-acre portion. For that reason, we believe the trial court must reconsider its decision as it affects this asset.

Our decision with regard to the Stamberger 81 acres is governed by three recent decisions of the supreme court. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 633; In re Marriage of Emken (1981), 86 Ill. 2d 164; In re Marriage of Smith (1981), 86 Ill. 2d 518.) Therein, it was determined “whether non-márital property, title to which [was] originally held in the name of one spouse, becomes marital property if that spouse transfer[ed] title to joint ownership.” (Smith, at 528.) In each of the three cases, Rogers, Emken and Smith, it was held that nonmarital property so transferred will be presumed in fact as marital property. Where one person obtains by conveyance an undivided share of a parcel of real estate, he becomes a tenant in common with the remaining owner or owners (Pure Oil Co. v. Byrnes (1944), 388 Ill. 26, 57 N.E.2d 356), and as such he jointly owns the entire parcel, a concept described by the courts as unity of possession. (Douds v. Fresen (1946), 392 Ill. 477, 64 N.E.2d 729.) The facts of the instant case are of this pattern. Mrs. Humphrey conveyed to her husband an undivided one-half interest in the 81 acres and assigned to him an undivided one-half interest in the proceeds of the Stamberger contract. Thus they stood as tenants in common, or joint owners, of the asset. It follows that the trial court correctly presumed that this asset was wholly marital property and subject to equitable division between the spouses. (Rogers; Emken; Smith.) Since it is proper to consider the contribution of each spouse in the acquisition of marital property (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1)), and since this asset was substantially acquired with the contribution of Mrs. Humphrey’s nonmarital property, we conclude that the trial court did not abuse its discretion in awarding 70 percent of its value to Mrs. Humphrey and 30 percent of its value to Mr. Humphrey. Considerable disagreement among the appellate courts existed on this issue prior to the definitive decisions in Rogers, Emken and Smith, as evidenced by the dozen conflicting cases enumerated by Justice Clark in the Rogers decision. Nevertheless, the weight of those cases’ authority, many of which were cited in the briefs before us, must yield to the high court’s recent decisions.

It is correct that this presumption in fact can be rebutted by “convincing 060 evidence.” (Rogers, 85 Ill. 2d 217, 220, 422 N.E.2d 633, 638.) Mrs. Humphrey would have us find that such evidence was presented here, where, according to her testimony, the sole motivation for the transfer to multiple tenancy was tax minimization. There was counterbalancing testimony presented that Mr. Humphrey was a hard-working farmer and a good provider for nearly 30 years, that the farm was considered to be a joint asset during that time, and that the conveyances were an attempt to accomplish legally the ownership relation which was “morally” contemplated by the spouses. In light of this conflicting testimony we do not believe the trial court erred in its determination that convincing evidence sufficient to rebut the presumption in fact was absent from the record. Consequently, we affirm the trial court’s disposition of the Stamberger asset.

The two transactions with Eich purported to involve 4 acres and 36 acres respectively. The trial court’s order divides the 36 acres according to two schemes, the 22 acres conveyed to Mr. Humphrey by one formula and the remaining 14 acres by another. Yet, the same order declares that the 4 acres deeded outright to Eich was included in the 22-acre tract. If this finding is correct, then Mr. Humphrey was deeded only 18 of the acres which were the subject of the Eich contract for deed, and Mrs. Humphrey retained 18, not 14, of those contract acres. That being the case, the trial court order is incomplete inasmuch as it fails to make disposition of 4 of the acres which were the subject of the Eich contract. Rather than speculate on the proper resolution of this apparent ambiguity, we deem it prudent to remand the question of the disposition of this asset to the trial court where further evidence may, as necessary, be elicited. In reviewing its previous disposition of this asset, and by way of guidance to the lower court, we note that the presumption applicable to jointly owned property does not “change the law regarding interspousal transfers of property owned individually.” (Rogers, 85 Ill. 2d 217, 220, 422 N.E.2d 633, 638.) Further, and also by way of guidance, our prior observations concerning the sharing in the appreciation of nonmarital property would be equally applicable to the 14 or 18 acres of property retained by Mrs. Humphrey.

The proceeds from the sale of the 4-acre homestead, be they the nonmarital property of Mrs. Humphrey, or, because of the 22-acre conveyance, the nonmarital property of Mr. Humphrey, were the consideration in part of the purchase of a jointly owned asset, the Mendota residence. Applying the rule of Rogers, Emken and Smith, that jointly owned asset would be presumed in fact as marital property. We therefore find no error in the lower court order which so held and which divided that asset equally between the parties.

Finally, during the pendency of this litigation, proceeds from the various contracts for deed were placed in an escrow account to permit the court to determine an appropriate disposition before the funds were dissipated. The lower court ordered that those funds should be divided in the same manner as the properties and the contracts from which said funds originated. Property acquired in exchange for nonmarital property retains its nonmarital character (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(2)), and all other property is presumed to be marital property (Ill. Rev. Stat. 1979, ch. 40, par. 503(b)). The funds in the escrow account represent property acquired in exchange for nonmarital and marital property, and we conclude that the trial court’s division of those funds in the same manner should be affirmed, subject, however, to any modifications made to that method of division ordered upon remand.

For the reasons hereinbefore set forth, and with reliance of the authorities cited, the decision of the Circuit Court of La Salle County is affirmed in part, reversed in part, and remanded for further proceedings.

Affirmed in part; reversed in part; remanded.

HEIPLE and STOUDER, JJ, concur.


text:
    THE BOARD OF LIBRARY TRUSTEES OF THE FOUNTAINDALE PUBLIC LIBRARY DISTRICT, WILL AND DU PAGE COUNTIES, Plaintiff-Appellee, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Appellant.—(RAY J. BENOIT & SON, INC., Defendant.)
    Third District
    No. 81-137
    Opinion filed November 24, 1981.
    — Rehearing denied December 30, 1981.

      Cornelius F. Riordan, Gary L. Griffin, and Terrance A. Vaisvilas, all of McNeela & Griffin, Ltd., of Chicago, for appellant.
    Edgar D. Ballard, Jr., Bruce K. Roberts, and Marcia E. Doane, all of Schuyler, Ballard & Cowen, of Chicago, for appellee.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

The Board of Library Trustees of the Fountaindale Public Library District (the Board) brought this action against Fidelity and Deposit Company of Maryland (Fidelity) and Ray J. Benoit & Son, Inc. (Benoit), upon a performance bond issued by Fidelity. The Board sought recovery for a nine-month delay in completion of the construction of two buildings, which delay was caused by Benoit’s default on its contract with the Board. The trial court directed a verdict against Fidelity on the issues of special damages resulting from the delay and Fidelity’s liability for general damages. The jury determined that the amount of general damages for the nine-month period was $150,000, and the court entered judgment accordingly. On appeal, Fidelity contends that the award of general damages for delay in completion of public library buildings is in error. Fidelity does not challenge the directed verdict on special damages.

Shortly after the Fountaindale Public Library District was formed in 1968, the Board determined that it required the construction of two buildings to house its facilities. Arrangements were made with Valley View Unit District No. 365U, Will County, Illinois (School District 365U), whereby the School District would furnish two tracts of land — one in Bolingbrook and the other in Romeoville, Illinois — in exchange for a 10-year lease on the entire lower level of the building to be constructed in Romeoville. Both tracts were situated within zones restricted for residential use; however, certain public purpose buildings, including public libraries, were also permitted. The amount of usuable space rented to School District 365U was about 19,000 square feet. The period of the lease was to commence upon the issuance of the architect’s certificate of substantial completion.

Later, similar arrangements were made between the Board and the Joliet Junior College and between the Board and Du Page Township for the rental of 11,500 square feet of space on the lower level of the Bolingbrook facility. The rental rate for these entities was to be determined based on the amortization of the direct costs incurred by the Board in providing the space. No profits were anticipated. The upper levels of both buildings were reserved for library occupancy.

The Board awarded the construction contract for the two buildings to general contractor, Ray J. Benoit & Son, Inc., in August 1973. The contract provided that the completion date would be within 365 days of the contract date. It included a “time is of the essence” clause, and required that Benoit furnish a performance bond to the Board. The bond so furnished was executed by Benoit as principal and Fidelity as surety.

Benoit performed under the contract from August of 1973 until April of 1974, when it ceased activities and declared itself in default. Fidelity stepped in and rebid the general contracting job pursuant to the terms of the performance bond. At the recommendation of Fidelity, the Board entered into a new contract with Wilfred’s, Inc., in July 1974 for the completion of the two projects. This contract specified that the work would be completed within 320 days. In May 1975 the Romeoville building was substantially complete; and in September 1975 the Bolingbrook building was ready for occupancy. The quality of construction is undisputed — both parties agreeing that the buildings were very well constructed.

The Board brought suit in the circuit court of Will County seeking general damages for the nine-month delay — from August of 1974 to May of 1975 — in completion of the buildings. (No damages were sought for the period between May and September of 1975 when the Bolingbrook facility was finally completed.) In addition, the Board sought special damages for additional architects’ fees and attorney’s fees that were occasioned by the delay. Although both Fidelity and Benoit were named defendants in the suit, only Fidelity appeared and answered the complaint.

The cause proceeded to a trial by jury on November 3, 1980. Upon the completion of the presentation of all evidence, the court allowed plaintiff’s motion for a directed verdict on the issues of special damages and Fidelity’s liability for the delay. The sole issue thereafter remaining for the jury’s consideration was the amount of general damages for delay recoverable by the Board.

On the latter issue, the Board presented two real estate appraisers as expert witnesses. They testified that the fair rental value of the properties for the nine-month period was between $358,479 and $376,000. These figures were based on comparable commercial rentals in the geographic areas involved. Fidelity presented its own expert witness who testified as to the rental value of the space for which leases had been secured by the Board. According to this witness, the space occupied by School District 365U was valued at $34,400 per year, and the space occupied by Joliet Junior College — 16,061 square feet — and Du Page Township — 1674 square feet — was worth $3.50 and $4.48 per square foot per year respectively. He appraised the value of the upper levels of the buildings, occupied by the library and measuring approximately 19,000 square feet in each building, at $3.50 per square foot per year.

The jury was instructed to assign a fair rental value based on gross rental value less expenses saved by the Board as a result of the delay. The jury returned a verdict for the Board in the amount of $150,000, and judgment was entered accordingly.

On appeal, Fidelity has raised two primary issues — whether general damages for delay in completion of a public building are recoverable by the public body; and whether the trial court committed reversible error in refusing to instruct the jury that they could not consider inconvenience to the public in computing general damages for delay.

We first consider whether the Board may recover general damages. If so, we must further determine whether the proper basis for measuring damages to a public body is the fair rental value for the period of delay.

Fidelity argues firstly that a public body, such as the Board, with no profit motive can not recover general damages for delay in the completion of a public improvement because the injury is mere inconvenience to the public, a loss which is nonrecoverable because it is incapable of measurement. (Harlev v. Sanitary District (1907), 226 Ill. 213, 225.) Fidelity cites several cases as authority for the proposition that a public entity will be denied relief in the form of general damages for delay unless the contracting parties included a liquidated damages provision in their agreement. We note, however, that none of Fidelity’s cases deal with buildings, such as those with which we are concerned in this case. Rather, the cases cited to us concern improvements such as a drainage canal (Harlev), a water pumping station (Parker-Washington Co. v. City of Chicago (1915), 267 Ill. 136), bridges (Wisconsin Bridge & Iron Co. v. City of Alpena (1927), 238 Mich. 164, 213 N.E. 93), and athletic fields (Abel Construction Co. v. School District (1972), 188 Neb. 205, 195 N.W.2d 744).

Only one case has been cited which deals with a public building comparable to the buildings in the present case. In the rather old case of Hipwell v. National Surety Co. (1905), 130 Iowa 656, 105 N.W. 318, the city of Fort Dodge, Iowa, contracted for the construction of a public library. When the contractor failed to perform within the time specified, the city sued the surety for general damages resulting from the delay. The Hipwell court observed that, under ordinary circumstances, the measure of damages is the rental value of the building during the period of delay. However, when a public building has no rental value, evidence of actual value of its use to the public is permissible. The city in Hipwell sought to prove damages by establishing the rental expenses incurred by the city for substitute space during the delay. However, no proof of rental value of the library building itself was introduced. The court, accordingly, ruled that because the city’s evidence failed to establish that the library was rentable, the city’s proof of rental of other buildings was insufficient to serve as a basis for relief.

The result in Hipwell does not control our determination in the present case. If the sole evidence of fair rental value had consisted merely of what the Board paid to rent temporary space for its facilities, we might be inclined to adopt the reasoning of Hipwell. In fact, the evidence of rental value of the library buildings themselves was presented through testimony by both parties to the instant suit. The Board established that the buildings had been designed with the express intention of renting out space to other entities. The lease with School District 365U was signed on June 11, 1973, more than two months before the Board entered into its contract with Benoit. Negotiations for leasing space to the Joliet Junior College and Du Page Township were also begun in 1973 and culminated in leases which were signed in May of 1975. Fidelity’s expert witness established the rental value of the two buildings with reference to the leases. On these facts, we do not hesitate to conclude, as did the trial court, that the Board, unlike the city in Hipwell, established ample foundation for measuring general damages by the fair rental value of the buildings during the period of delay.

Proof of fair rental value in the present case consisted of expert testimony from three individuals with considerable experience in appraising the value of real estate. Fidelity’s own expert’s testimony established that the fair rental value of the space in the two buildings during the delay was approximately $160,000. The Board’s experts testified that the fair rental value, based on comparable buildings, was in the range of $358,500 to $376,000. The jury was instructed to determine general damages by subtracting the amount of money saved by the Board as a consequence of the delay from the fair rental value of the two buildings during the nine-month period. The amount of damages determined by the jury — $150,000 —is clearly within the range of the evidence admitted during the trial. Accordingly, we will not disturb the jury’s finding.

Finally, we are asked to decide whether or not the trial court properly refused to give Fidelity’s instruction which stated that the jury was not to consider inconvenience to the public as an element of damages. The tendered instruction is a correct statement of the law in Illinois. (See Harlev v. Sanitary District (1907), 226 Ill. 213, 225.) As we have stated above, however, the verdict returned by the jury was well within the range of the evidence which could be considered by them; in addition, there is no evidence that the jury improperly included any damage value for the inconvenience suffered by the public. Error in failing to instruct the jury on inconvenience to the public was, therefore, harmless.

For the reasons stated, we affirm the judgment entered by the circuit court of Will County.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE PERLIN Mr. JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS P. WALSH, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2707
    Opinion filed October 27, 1981.
    — Supplemental opinion filed on denial of rehearing December 15, 1981.

      James J. Doherty, Public Defender, of Chicago (Mary T. Woodward, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Thomas Walsh, was convicted of two counts of aggravated kidnapping and one count of deviate sexual assault and elected to be sentenced under the determinate sentencing provisions of the Class X legislation. The trial court sentenced defendant to two concurrent extended terms of 60 years for the aggravated kidnapping convictions but inadvertently failed to sentence defendant for the deviate sexual assault conviction. On appeal, we affirmed defendant’s convictions but remanded the cause to the trial court with directions to enter proper sentences on the aggravated kidnapping convictions and to impose sentence on the deviate sexual assault conviction. People v. Walsh (1980), 80 Ill. App. 3d 754, 770, 400 N.E.2d 587, 599.

Following remand, the trial court permitted both the State and defendant to introduce further evidence in aggravation and mitigation. The State, however, offered nothing in aggravation beyond that which was presented at defendant’s first sentencing hearing. Further, the trial court denied defendant’s request that he be allowed to elect anew between the indeterminate sentencing provisions in effect at the time of his offenses and the determinate provisions in effect at the time of sentencing. The court sentenced defendant to 50 years for deviate sexual assault; ordered one count of aggravated kidnapping merged with deviate sexual assault; and resentenced defendant to an extended term of 30 years on the remaining aggravated kidnapping count. From those sentences, defendant has appealed.

The sole issue presented by this appeal is whether the trial court properly carried out this court’s directions for resentencing when, on remand, it refused to allow defendant to elect again between determinate and indeterminate sentencing. The mandate reads, in part, that “the cause is remanded for sentencing not inconsistent with the opinion of this court filed herein.” By express direction of the mandate, therefore, the proceedings in the trial court upon remand had to conform to the views expressed in the opinion. Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 872, 288 N.E.2d 894, 897; PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 427 N.E.2d 122.

Defendant acknowledges that “the mandate of a reviewing court gives the trial court jurisdiction to do only that which the mandate requires,” (People v. Lowther (1980), 85 Ill. App. 3d 735, 739, 407 N.E.2d 1038, 1041) and that “[p]recise and unambiguous directions 800 must be obeyed” (Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114), but contends that the directions in this case were ambiguous. Because of this alleged ambiguity, defendant argues that the trial court erred when it interpreted this court’s opinion to preclude defendant from making a second election between determinate and indeterminate sentencing. We find no such ambiguity and reject defendant’s argument.

In part IV of our original opinion we concurred with the State’s contention that “the cause should be remanded 080 for sentencing because the trial court failed to sentence defendant for deviate sexual assault, a Class X felony,” and noted defendant’s election to be sentenced under the Class X legislation. (Walsh, at 770 n.5.) In light of these explicit references to Class X, we cannot agree that the remandment “for sentencing on the deviate sexual assault conviction” (Walsh, at 770) created any ambiguity as to which sentencing statute was to be applied.

With respect to the aggravated kidnapping counts, we accepted defendant’s contention that “the cause should be remanded so that the trial court may correctly sentence defendant to an extended term of not more than 30 years for each of the convictions of aggravated kidnapping, a Class 1 felony [citations].” (Walsh, at 770.) We stated further, at page 770, that “when factors in aggravation are found to be present, a judge may sentence an offender who has committed a Class 1 felony to an extended term of not more than 30 years.” The remandment for “proper sentencing on the aggravated kidnapping convictions” (Walsh, at 770) left no doubt as to which sentencing statute was to be applied but clearly envisioned resentencing under the extended term provisions of the Class X legislation. We have also examined the briefs defendant filed in the first appeal and observe that defendant specifically requested proper resentencing under the extended term provisions of the new code.

Based on the foregoing, we conclude that the trial court did not err when it refused to permit defendant to elect anew. This conclusion bars consideration of defendant’s related claim that a new election should have been allowed because the trial court misclassified the aggravated kidnapping convictions as Class X felonies at defendant’s first sentencing hearing. A new election would have contravened the directions set forth in our opinion. (People v. Dukett (1975), 33 Ill. App. 3d 863, 864-65, 338 N.E.2d 487, 488-89; People v. Street (1974), 19 Ill. App. 3d 541, 311 N.E.2d 796; Beaven v. Village of Palatine (1969), 106 Ill. App. 2d 160, 169-70, 245 N.E.2d 560, 565-66.) Moreover, this claim must be deemed waived since defendant failed to raise it in the original appeal. Dukett; Street.

Accordingly, the sentences entered on defendant’s convictions are affirmed.

Affirmed.

HARTMAN, P. J., and STAMOS, J., concurring.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. JUSTICE PERLIN

delivered the opinion of the court:

In his petition for rehearing defendant argues for the first time that an extended term could not be imposed for the offense of aggravated kidnapping other than for ransom because it was not “the most serious offense of which the offender was convicted.” Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—2(a).

Section 5 — 8—2 of the Unified Code of Corrections states:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—2(a).

Defendant was convicted of aggravated kidnapping other than for ransom, a Class 1 felony, and deviate sexual assault, a Class X felony, and was sentenced to serve extended terms of imprisonment on both convictions. He now argues that the extended term of 30 years for aggravated kidnapping other than for ransom was an illegal sentence because it did not belong to “the class of the most serious offense of which the offender was convicted.”

In their response to defendant’s petition the State initially maintains that defendant has waived this issue by failing to raise it before the trial court or in his first appeal. Under normal circumstances, we would agree that an issue may not be argued for the first time in a petition for rehearing. (Ill. Rev. Stat. 1979, ch. 110A, pars. 341(e)(7), 367(b); People v. Mallett (1970), 45 Ill. 2d 388, 397-98, 259 N.E.2d 241.) The waiver rule, however, is not a limitation upon the jurisdiction of the reviewing court but an admonition to the parties. (Hux v. Raben (1967), 38 Ill. 2d 223, 224, 230 N.E.2d 831.) Because defendant’s petition concerns the legality and not merely the excessiveness of a sentence, in the interest of substantial justice, we choose to address it.

In People v. Evans (Docket Nos. 54395, 54396, November 20, 1981), 87 Ill. 2d 77, 429 N.E.2d 520, the supreme court held that an extended term may be imposed only for the most serious offense of which the offender is convicted. (87 Ill. 2d 77, 87.) In light of this holding we conclude that the trial court erred in sentencing defendant to an extended term of 30 years for the offense of aggravated kidnapping other than for ransom. Accordingly we reduce defendant’s sentence on that conviction to 15 years, which is the maximum for a Class 1 felony. As modified, defendant’s sentences for aggravated kidnapping other than for ransom and deviate sexual assault are affirmed. Defendant’s petition for rehearing is denied.

Sentences affirmed, as modified.

HARTMAN, P. J., and STAMOS, J., concur.

       Aggravated kidnapping other than for ransom is a Class 1 felony. (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 2(b)(2).) The maximum extended term for a Class 1 felony is 30 years. Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—2(a)(3).


author: JUSTICE MILLS JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE RAY ROBINSON, Defendant-Appellant.
    Fourth District
    No. 16986
    Opinion filed October 7, 1981.
    Supplemental opinion filed on denial of rehearing December 22, 1981.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Basil G. Greanias, State’s Attorney, of Decatur (Kenneth R. Boyle and Donald L. Hays, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

The question of two public defenders revisited.

We again find no conflict of interest.

We once more affirm.

The pertinent chronology is this:

Sept. 8, 1980: Robinson charged with two separate counts of burglary.
Sept. 9,1980: Defendant served with copy of information, found to be indigent, public defender appointed to represent him.
Sept. 18,1980: Defendant appears in open court with his attorney, Public Defender Scott B. Diamond, pleads not guilty, case alloted for jury trial.
Nov. 10, 1980: Motion to quash arrest and to suppress evidence (filed by Public Defender Scott B. Diamond) denied.
Dec. 10, 1980: Public Defender Jerry Finney appears for defendant, case re-alloted for Dec. 15,1980, for trial or as soon thereafter as reached on trial call.
Dec. 22, 1980: Defendant pleads guilty to count I, count II is dismissed, sentence of four years imposed. (The plea was a negotiated one and the agreed sentence was four years.)
Jan. 12,1981: Robinson files pro se motion to withdraw guilty plea and vacate sentence.
Jan. 23, 1981: Hearing held on motion to withdraw plea.

At that hearing, Robinson testified that his plea was involuntary because the trial court — Chief Judge Rodney A. Scott — denied requests for a continuance to allow his appointed counsel to prepare for trial or to permit Robinson to hire his own counsel. He said that he was first represented by Public Defender Scott Diamond, and was later represented by Public Defender Jerry Finney when Mr. Diamond was appointed an associate circuit judge. Robinson testified that while in jail he talked with attorney Finney twice, primarily about the possibility of pleading guilty. Robinson said that he did not want to plead guilty, but Mr. Finney advised that the State had a strong case. Robinson testified he did not feel that Mr. Finney attempted to force him into pleading guilty or that Finney intentionally tried to coerce a guilty plea. When asked to explain his claim that his guilty plea was coerced, defendant testified that when he first came into the courtroom on December 22 — the day set for trial — he asked Finney if it was possible to get a continuance. When Finney stated that it would be impossible to get a continuance, Robinson said he would ask the judge. In chambers, Robinson told the judge that Finney had been on the case for less than two full weeks and had not had enough time to prepare for the case and asked for a continuance to hire his own attorney or to allow Finney to prepare a defense. In response to questioning by the trial court, Robinson testified that he had not done anything about hiring an attorney because he had no assets and his mother had been laid off from work until late November. The trial judge explained that Scott Diamond (defendant’s original attorney) and Finney were both public defenders, and denied the continuance. Robinson testified that he did not feel that the denial was intended to coerce a guilty plea, but that it had that effect. He also said that he felt he had to plead guilty because Finney had not had enough time to prepare a defense. He further testified that he should not have been tried before Judge Scott because Judge Scott had twice sentenced one of defendant’s brothers and because Robinson himself had been before Judge Scott four times. (However, Robinson did not ask to have Judge Scott excused from the case, and did not tell Mr. Finney about his prior appearances before Judge Scott.) After the motion for continuance was denied, Robinson said he pleaded guilty because he thought that he could withdraw the plea, as a matter of right without a hearing, within 30 days. Attorney Finney did not tell Robinson that he could withdraw his plea as a matter of right; it was the inmate who prepared his pro se motion to vacate his plea who so advised him. Robinson said he intended to withdraw his plea because he thought there was no other way to gain adequate time to prepare a defense. Robinson admitted that at the time of his plea he understood the judge’s explanation of the possible sentences, the nature of the case, the proposed plea agreement, the judge’s statement about the plea agreement, and that he was going to be sentenced to four years’ incarceration under the plea agreement.

Attorney Jerry Finney testified at the same hearing that he had been a public defender for four years, had represented Robinson, consulted with him in the county jail two or three times prior to trial, utilized the file of Scott Diamond which had been accumulated when Diamond was representing Robinson, had discussed Robinson’s case with Diamond, and was prepared for trial on December 22. Finney had tried more than 100 jury trials. He testified that he never told defendant that he would not represent him at trial, but he did tell Robinson that he preferred to have the cases tried separately, and also discussed possible witnesses who could be called to trial on Robinson’s behalf. Defendant did not name any specific witnesses whom he wished to call. Finney realized that defendant did not really want to plead guilty, but thought that Robinson had decided that a guilty plea was better than going to trial. Mr. Finney testified that few of his clients really want to plead guilty and that the greatest pressure to plead guilty often occurs just before trial. Finney testified that Robinson consistently stated that he was not guilty of the offenses.

At the conclusion of the January 23, 1981, hearing, the trial court found that at the time he pleaded guilty, Robinson intended to move to withdraw his plea, that Robinson’s plea was not coerced, that his motions to continue the trial and to hire private counsel were intended to delay trial, that two pretrial readiness calls had been made, that defense counsel was ready for trial, and that the only coercion present was the coercion which was present in every guilty plea. The motion to withdraw the plea was denied.

Public Defenders

Defendant in his brief phrases the solitary issue on review thusly: “Whether the trial court [Judge Scott] erred by failing to appoint counsel other than an assistant public defender [James Brinkoetter].to represent the defendant on his motion to vacate his guilty plea where that motion challenged the representation of defendant by the public defender [Jerry Finney] at the time the plea was entered.”

More specifically, it is argued that because Robinson’s motion to withdraw his plea attacked the quality of representation afforded by Public Defender Finney, the trial court erred by appointing Assistant Public Defender James Brinkoetter on the motion to withdraw the plea and this court should reverse the trial court and remand the cause for a new hearing with different counsel.

This is precisely the question posited in People v. Puckett (1979), 70 Ill. App. 3d 743, 388 N.E.2d 1293. We held in Puckett that there is no conflict in a defendant’s continued representation by a second public defender even though the defendant calls into question the effectiveness of his appointed trial counsel — another member of the office of public defender — where the public defender’s office of that county is decentralized in its operation. Puckett dealt with Adams County.

We held likewise in People v. South (1979), 70 Ill. App. 3d 245, 387 N.E.2d 1294, which involved Sangamon County. The opinions in both Puckett and South were handed down the same day.

Now we have the identical question postulated in a case from Macon County. We have followed our procedure utilized in Puckett by remanding this case to the Circuit Court of Macon County for a supplemental hearing and preparation of an additional record on the question of the composition and character of the Macon County Public Defender’s Office. This was accomplished with commendable dispatch, and a very extensive and thorough hearing on this evidentiary question was conducted and a comprehensive order of findings entered thereon by Judge Scott. It is clear from this supplemental record and order that all public defenders hold part-time positions, they are not furnished office space in county facilities, there are no central or adjacent offices provided, and each public defender “has his own law firm affiliation with none the same, and each has his own practice with county authorization by pay provisions that it be to half-time.” As to assigned criminal cases, no common or mutual sets of files are maintained. Cases are individually assigned, and there is no joint responsibility for cases shared between public defenders. Each case is the sole responsibility of the public defender assigned, and there is no review or overseeing of the public defenders, each of whom has complete professional discretion to determine how his assigned cases will be handled. No common investigator or mutual staff are employed or utilized by all public defenders,

Ergo, we concur completely in Judge Scott’s ultimate finding that the Office of the Public Defender of Macon County is completely “decentralized and each defender functions as a separate independent entity.” Puckett and South control. No error.

Incompetency of Counsel

Although this entire case is actually rooted in whether or not Robinson received adequate representation by counsel at the time of his plea of guilty, that issue is not raised or argued in his brief in this court. Consequently, the matter is waived. But even if it were not, we find no merit in the charge. We have set forth in toilsome and wearying detail the factual and procedural background revealed by the trial record. Our unreserved conclusion is that no incompetency of counsel was demonstrated, and we concur completely with the trial judge’s finding in this regard. (People v. Elliott (1977), 46 Ill. App. 3d 887, 361 N.E.2d 852, cert. denied (1978), 435 U.S. 973, 56 L. Ed. 2d 65, 98 S. Ct. 1617.) Motions on behalf of the defendant for discovery, to quash and suppress and for severance of counts for trial were presented. The record reflects no indication whatever of inadequacy of counsel. And the defendant has totally failed to demonstrate either actual incompetence or substantial prejudice to himself. People v. Stepheny (1970), 46 Ill. 2d 153,263 N.E.2d 83.

Finding no error below, we affirm.

Affirmed.

GREEN and WEBBER, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MILLS

delivered the opinion of the court:

Following the filing of this opinion, we allowed the filing of supplemental briefs and arguments by the defendant and the State. We have examined those briefs and arguments — which simply compare the facts in Puckett and South to those in this case — and find nothing in them to alter our original opinion as to the correctness of Judge Scott’s determination that the Macon County Public Defender’s Office was decentralized.

GREEN and WEBBER, JJ., concur.