author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN WOODS, Defendant-Appellant.
    First District (1st Division)
    No. 84—0911
    Opinion filed February 11, 1985.

      Robert S. Bailey, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Peter D. Zaper, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Kevin Woods, entered pleas of guilty to three informations charging him with a variety of criminal offenses. In information No. 83 — 8739, defendant pleaded guilty to rape, deviate sexual assault, armed robbery, aggravated kidnaping and indecent liberties with a child, and he was sentenced to serve concurrent terms of 28 years each for rape, deviate sexual assault and armed robbery and 10 years each for aggravated kidnaping and indecent liberties with a child. In information No. 83 — 8740, defendant pleaded guilty to armed violence, attempted armed robbery and aggravated kidnaping, and he was sentenced to serve concurrent terms of 20 years for armed violence, and 10 years each for attempted armed robbery and aggravated kidnaping. In information No. 83 — 8741, defendant pleaded guilty to rape, deviate sexual assault and armed robbery, and he was sentenced to serve concurrent terms of 28 years each for rape and deviate sexual assault, and 20 years for armed violence. The trial court ordered the concurrent sentences it had imposed for the offenses charged in each information to be served consecutively to the sentences imposed on the offenses charged in the other two informations. Defendant filed a timely motion to vacate his pleas of guilty, but his motion was denied. On appeal, defendant contends that the trial court improperly imposed consecutive sentences, that the consecutive sentences exceed the sum of the maximum terms authorized by the Unified Code of Corrections for the two most serious felonies involved and that the sentences are excessive.

I

Defendant initially contends that the trial court improperly imposed consecutive sentences. Section 5 — 8—4(b) of the Unified Code of Corrections states:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the events and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1983, ch. 38, sec. 1005 — 8—4(b).

Defendant submits that the trial court erred in imposing consecutive sentences because the court did not specifically find, nor does the record disclose, that a consecutive sentence was required to protect the public from further criminal conduct by the defendant. We disagree.

The statutory requirement that the court “shall set forth in the record” the basis for the court’s determination that consecutive sentences are “required to protect the public from further criminal conduct by the defendant” is permissive rather than mandatory and has been waived where, as here, the defendant did not request a specific finding of the sentencing court relative to the protection of the public, nor did defendant complain that a basis for the required statutory finding was not sufficiently articulated. (People v. Hicks (1984), 101 Ill. 2d 366, 374, 462 N.E.2d 473.) Nevertheless, although this issue has been waived, we note that at the sentencing hearing the trial

court told defendant:

“You have committed the ultimate crime against two of your victims and attempted the ultimate crime against a third. You have taken their choice away from them, you have subjected them to your will, subjected them to the ultimate degradation that a woman can be subjected to. There is no more horrible crime that could possibly be imagined.”

The court found that defendant’s conduct had caused “incalculable harm to each of the young ladies *** he assaulted” and that defendant not only had inflicted “physical pain and suffering” on the victims, but also created “psychological disharmony in their lives.” Defendant exhibited “little concern for the people” around him. The court recognized that a defendant’s rehabilitative potential is a constitutionally mandated consideration in sentencing. The court, however, properly noted that it was also directed “to look at the damage that an individual does to the community, the effect of his acts, the impact on the community, the safety of the community and the impact *** alternative sentences might have on the seriousness of certain offenses.” Immediately before imposing sentence, the trial court stated that “a lengthy term [of imprisonment] in each of these offenses” was required because defendant posed an “immediate threat *** to the community.”

These comments by the sentencing court clearly establish that the court was of the opinion that consecutive terms were necessary for protection of the public. This constitutes sufficient compliance with the requirements of section 5 — 8—4(b) of the Unified Code of Corrections, and we find no abuse of discretion in the court’s determination. See People v. Hicks (1984), 101 Ill. 2d 366, 376, 462 N.E.2d 473; People v. Peebles (1984), 125 Ill. App. 3d 213, 223, 465 N.E.2d 539; People v. Harris (1984), 123. Ill. App. 3d 899, 908, 463 N.E.2d 1030.

II

Defendant next contends that the consecutive sentences imposed in this case exceed the sum of the maximum terms authorized by section 5 — 8—4(c)(2) of the Unified Code of Corrections. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—49(c)(2).) Section 5 — 8—4(c)(2) provides in pertinent part:

“For sentences imposed under the law in effect on or after February 1, 1978, the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5 — 8—2 for the 2 most serious felonies involved.”

Defendant, as we noted, entered pleas of guilty to seven Class X felonies and four Class 1 felonies. The maximum term authorized by section 5 — 8—2 of the Unified Code of Corrections for a Class X felony is 60 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a)(2).) Thus, under section 5 — 8—4(c)(2), the aggregate of consecutive sentences that could be imposed on defendant could not exceed 120 years, which is the sum of the maximum terms authorized under section 5— 8 — 2 for the two most serious felonies involved. The aggregate of consecutive sentences imposed in this case was 76 years.

Defendant, however, submits that the aggregate of consecutive sentences in this case cannot exceed 60 years, which is the sum of the maximum terms authorized under section 5 — 8—1(a)(3) for the two most serious felonies involved. Defendant reasons that since he was not eligible for an extended-term sentence under section 5 — 5—3.2 of the Unified Code of Corrections, the extended-term sentences authorized by section 5 — 8—2 could not be used in computing the aggregate of consecutive sentences allowed by section 5 — 8—4(c)(2). Defendant cites no applicable authority in support of this proposition, and we are aware of none. In our judgment defendant has misread section 5 — 8— 4(c)(2), which refers to section 5 — 8—2 only as a measuring statute. Defendant need not meet the separate qualifications for an extended-term sentence.

Ill

Finally, defendant contends that his sentences are excessive. In People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473, our supreme court stated:

“We have repeatedly emphasized the undesirability of a reviewing court simply substituting its judgm'ent or preference as to punishment for that of the sentencing court. The trial judge is ordinarily best situated to tailor a sentence or other disposition to the needs of the case. He balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered upon review absent an abuse of that discretion. [Citations.]”

In the instant case defendant pleaded guilty to having committed seven Class X felonies, including rape, deviate sexual assault and armed robbery, and four Class 1 felonies,- including aggravated kidnaping, indecent liberties with a child and attempted armed robbery, against three young women, one of whom was only 15 years old, in three unrelated and unprovoked attacks which took place over the course of 15 days in August 1983. We recognize, as the trial court did, that defendant was only 18 years old at the time of the offenses, had no prior criminal record and may have some rehabilitative potential. Nevertheless, in light of the number and seriousness of the criminal offenses to which defendant pleaded guilty, we are unable to conclude that the consecutive sentences the trial court imposed constituted an abuse of discretion. Accordingly, we affirm the judgment of the circuit court of Cook County.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defending this appeal and incorporate it as part of the judgment.

Affirmed.

McGLOON, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    RONALD PAGE, Plaintiff-Appellant, v. THE CORLEY COMPANIES, INC., Defendant-Appellee.
    First District (4th Division)
    No. 84—177
    Opinion filed February 7,1985.

      Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago (Edwin M. Plaza, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Michael J. Grant and Sean P. Kennedy, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff Ronald Page (Page) appeals from the order of the Cook County circuit court which entered summary judgment in favor of defendant Corley Companies, Inc. (Corley). Page sought recovery for personal injuries he allegedly sustained when he slipped and fell upon a masonite floor covering while working -at a construction site for which Corley was general contractor. The sole question for our review is whether the masonite sheets placed on top of a terra-cotta lobby floor were a “support” within the scope of the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et sea.). We affirm the trial court’s decision that they were not.

Page was an employee of Leader Plumber, a plumbing subcontractor hired by Corley to provide plumbing for a portion of a condominium complex under construction in Northbrook. Roughly two to three weeks prior to his injury, terra-cotta tiles were put in place on the lobby floor of the building at which he was working. When the terracotta had hardened a few days later, masonite sheets roughly four feet by eight feet in size and one-quarter inch thick were butted together and taped in place directly on top of the entire lobby floor. This masonite covering was placed over the terra-cotta in order to protect it from damage. Although the building was then approximately 95% completed, some finishing work was still required on the upper floors and as a result the lobby was used by workers as a means of ingress and egress to and from the building.

Page was injured when he walked through the lobby in order to obtain additional tools from his truck, which he had parked outside the building. As he crossed the lobby, his foot caught an edge of the masonite, which had begun to warp and become uneven, causing him to fall and injure his right arm. On December 12, 1980, he filed his one-count complaint against Corley based upon a violation of the Act. After discovery, Corley filed its motion for summary judgment on April 11, 1983. A response and reply were subsequently filed by both parties. On November 9, the trial court granted summary judgment in favor of Corley on the ground that the Act was inapplicable. Page’s timely appeal followed.

Page argues initially that there exists a genuine issue of material fact which precluded summary judgment. Specifically, he contends that whether the masonite covering was a support under the Act is a disputed factual issue which should be determined by a trier of fact. We disagree. This contraverted issue is not one of fact but one of law, since the question of whether a certain device is governed by the Act is a matter of statutory construction and thus a question of law for the court to determine. (See, e.g., People ex rel. Rappaport v. Drazek (1975), 30 Ill. App. 3d 310, 313, 332 N.E.2d 532.) Consequently, we must consider Page’s second claim that the masonite covering fell within the purview of the Act.

Section 1 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 60) provides:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”

The purpose of the Act is to protect individuals employed in dangerous and extrahazardous occupations on or near a construction site. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573; Rochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 847, 463 N.E.2d 921.) It is not intended, however, to cover all construction-related injuries. Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536, 263 N.E.2d 817; St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 522, 439 N.E.2d 12.

Page claims that the masonite covering upon which he fell is a “support” under section 1. The Act does not define this term, and its meaning is not clear and unambiguous since it is usable in many contexts and has various shades of meaning. We note, however, that a “support” is classified in section 1 with other devices such as “scaffolds, hoists, cranes, stays, ladders, *** or other mechanical contrivances.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) Under the rule of statutory construction of noscitur a sociis, “when two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word.” (2A Sutherland, Statutory Construction sec. 47.16, at 161 (4th ed. rev. 1984); see Jarecki v. G.D. Searle & Co. (1961), 367 U.S. 303, 307, 6 L. Ed. 2d 859, 863, 81 S. Ct. 1579, 1582 (“a word is known by the company it keeps”); People v. Goldman (1972), 7 Ill. App. 3d 253, 255, 287 N.E.2d 177.) We therefore interpret “support” in its narrower sense such that it is similar in function to the other devices with which it is listed under the Act. In our view, the common characteristic of each of the enumerated structures is to serve as a temporary platform which elevates workers or materials from the permanent floor or ground level in order to perform or accommodate performance of a construction task; the concomitant increased hazard of each is the greater likelihood that workers or materials will fall off of or through the structure more easily, causing personal injuries. Thus, in Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724, for example, the court held that metal girders which formed a permanent part of the building under construction but which were used by the plaintiff worker as a form of temporary support were governed by the Act. In reaching this result, the court quoted with approval (39 Ill. 2d 445, 450) the following passage from the decision of the Wisconsin Supreme Court in Koepp v. National Enameling & Stamping Co. (1912), 151 Wis. 302, 314-15, 139 N.W. 179,184:

“Much that has been said respecting ‘repairing’ applies to ‘scaffolding’ and ‘mechanical contrivance.' The scope thereof would reasonably include any temporary structure made up of parts, viewing the term in its broadest scope, used for support while doing any kind of work mentioned in the law, — any kind of an elevated platform for workmen to use in the performance of their duties. Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance. The legislature, in the combination of words, ‘scaffolding, hoists, stays, ladders or other mechanical contrivance,’ viewed in a broad remedial sense in favor of employees, left little, if anything, uncovered which may be used in the work mentioned, where required to be done beyond the reach of one standing on an ordinary surface.”

Similarly, in Frick v. O’Hare-Chicago Corp. (1966), 70 Ill. App. 2d 303, 217 N.E.2d 552, the court concluded that a plank upon which the plaintiff worker stood in order to perform assigned construction work and from which he fell was a scaffold, because the plank was several inches high and rested upon boards in a parallel manner which had been placed upon a 14-foot concrete form. More recently, in Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 448 N.E.2d 1011, the court determined that a plank across which the plaintiff worker walked and from which he fell while delivering equipment to the jobsite was a support, because it was placed above an area of mud several feet deep. In contrast to these cases, however, courts have concluded that a completed concrete floor area designed for machine equipment was not a scaffold where the plaintiff’s injuries resulted from a fall upon the concrete floor while in the act of moving machinery piping from one area of the floor to another (Choi v. Commonwealth Edison Co. (1984), 129 Ill. App. 3d 878), and that a concrete floor was not a scaffold where the plaintiff, while walking across the completed floor area, fell through an opening therein. Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607; Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.

As these cases demonstrate, courts have looked to three factors to determine whether a structure comes within the scope of the Act: (1) the intended use of the device at the time of the injury; (2) the connection between the injury and the hazardous nature of the device; and (3) the element of danger involved in the use of the. structure and whether it was this danger which the legislature sought to alleviate in enacting the statute. Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 297-98, 448 N.E.2d 1011.

Upon consideration of these criteria, we conclude that the masonite covering here was not a support under section 1. The masonite did not serve as a working platform about the terra-cotta floor, nor was it intended for this purpose. Instead, it was meant only to protect the finished flooring. Moreover, the hazard of the masonite covering was not that workers would fall off of or through it more easily, but rather that at most they might fall on it, as did Page. Although falling onto masonite floor covering might involve some harm, as Page’s injuries demonstrate, such is not the ultrahazardous risk against which the Act seeks to protect.

Page attempts to distinguish the facts presented here from those in Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, and Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011. In both Quinn and Tenenbaum the courts concluded that based on the facts presented there, the floors upon which the plaintiffs fell and sustained injuries were not scaffolds or supports under the Structural Work Act. Page suggests that Quinn and Tenenbaum are distinguishable because the floors there were completed and left in the form in which they had been designed, while the terra-cotta floor here, although completed, was not left in its finished form but was instead covered with masonite sheets. We find this distinction of no significance, however, as the record establishes that the purpose of the masonite was to serve as a surface floor which protected the terra-cotta directly underneath. “Where, as here, nothing distinguishes a completed floor [and its protective covering] from any other floor as that term is commonly used and understood, but for the fact that a workman chose to stand on it [or walk across it], it is not, as a matter of law, a scaffold [or a support].” Carlson v. Moline Board of Education (1984), 124 Ill. App. 3d 967, 972, 464 N.E.2d 1239.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE SULLIVAN

text:
    SELMA SEWELL, Plaintiff-Appellant, v. LORENZO WOFFORD et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—2642
    Opinion filed February 8, 1985.
    Christopher S. Carroll, of Benjamin & Shapiro, Ltd., of Chicago, for appellant.

      Jesmer & Harris, of Chicago (Charles E. Taimen and Terrance Akio Iwamuro, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

In this personal injury action, there were verdicts (1) for defendants Wofford and Checker Taxi Company (Checker) and against plaintiff; and (2) for plaintiff and against defendant McAllister in the amount of $14,525, with answers to special interrogatories that (a) Wofford and Checker were not negligent, (b) McAllister was the agent of plaintiff, and (c) plaintiff was 60% negligent and McAllister 40%. In entering judgment on the verdicts, the trial court reduced the award of damages to zero on the basis that she was 100% negligent (her 60% negligence plus McAllister’s 40% which the trial court imputed to her on the jury finding that he was her agent). Plaintiff’s post-trial motion was denied, and this appeal followed.

Plaintiff contends that (1) the court erred (a) in permitting improper testimony and argument concerning the nonuse of a seat belt, and (b) in refusing to strike McAllister’s affirmative defense that as her agent negligence on his part was imputed to her; and (2) the verdict in favor of Wofford and Checker was against the manifest weight of the evidence.

Plaintiff and her cousin, William Cole, were passengers in her automobile which was being driven by McAllister at her request, and she was injured when the vehicle was involved in a collision with a Checker taxi driven by Wofford. The occurrence took place about 4 a.m. as they were returning from a party. Wofford testified that his cab was struck from behind as it was stopped for a red light, and although their testimony varies on details, plaintiff, Cole, and McAllister testified that the taxi backed into their automobile.

Opinion

Plaintiff first contends that the trial court erred in allowing improper testimony concerning the nonuse of a seat belt by plaintiff. We disagree. It appears that when defense counsel presented a hypothetical question to plaintiff’s physician as to whether the use of a seat belt would have prevented or lessened the severity of her injuries, plaintiff’s counsel stated, “I’m going to object unless there was evidence of the non-use of seat belts.” The trial court overruled the objection subject to possible later exclusion of the testimony if there was a failure to show that plaintiff had not used a seat belt. The doctor then answered, “It’s possible.” Plaintiff, however, subsequently admitted that she had not been wearing her seat belt at the time of the accident, and she made no later motion to strike the answer of her physician. Although she now argues the question was improper because causal connection was not shown between her failure to use a seat belt and her injuries, it is clear that she made no objection on that basis to the hypothetical question. “It is well established that an objection must specify the grounds for the objection and that no other grounds other than those stated will be considered on appeal.” Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 179, 399 N.E.2d 606, 610-11.

Plaintiff also takes the position that defendant improperly argued nonuse of a seat belt for the purpose of showing contributory negligence on the part of the plaintiff, and that the jury was improperly instructed on this issue. Although the failure to use a seat belt may not be used to show contributory negligence but may be introduced only on the issue of mitigation of damages (Clarkson v. Wright (1984), 121 Ill. App. 3d 230, 459 N.E.2d 305), plaintiff has waived any impropriety in this argument by her failure to object thereto (see Principato v. Rudd (1981), 102 Ill. App. 3d 362, 430 N.E.2d 63). Moreover, the record contains no transcript of the conference on instructions and, in the absence thereof, plaintiff is barred from raising the argument here that the issues instruction given at the request of defendant was improper because of reference that defendant McAllister claims plaintiff was contributorily negligent in failing to use a seat belt. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) In this regard, we note also that plaintiff does not allege in her brief that she objected to the issues instruction as given. In the light thereof, we conclude that she failed to properly preserve this issue for appeal.

Plaintiff next contends that the trial court erred in denying her motion to strike McAllister’s affirmative defense, which alleged that he was the agent of plaintiff at the time of the occurrence in question and thus that any negligence attributable to him should be imputed to her as his principal and any award of damages to her should be reduced by the percentage of negligence attributable to him.

The negligence of the driver of a motor vehicle is imputable to an owner-passenger by a third party where the doctrine of respondeat superior applies between the driver and the owner-passenger or where they are engaged in a joint enterprise (Summers v. Summers (1968), 40 Ill. 2d 338, 239 N.E.2d 795; Staken v. Shanle (1959), 23 Ill. App. 2d 269, 162 N.E.2d 604; see Restatement (Second) of Agency sec. 415, comment b (1958), and Prosser, Torts sec. 72, at 480 (4th ed. 1971)), but in an action by the owner-passenger against the driver of a motor vehicle, the negligence of the driver is not imputable to the owner-passenger (Summers v. Summers (1968), 40 Ill. 2d 338, 239 N.E.2d 795; Guthrie v. Van Hyfte (1966), 36 Ill. 2d 252, 222 N.E.2d 492; see Restatement (Second) of Agency sec. 415, comment b (1958) and Prosser, Torts sec. 72, at 480 (4th ed. 1971)). Even in the absence of a respondeat-superior relation or a joint enterprise, the owner-passenger could be liable to a third party for the negligent failure to properly control the conduct of the driver (Bauer v. Johnson (1980), 79 Ill. 2d 324, 403 N.E.2d 237; see Restatement (Second) of Torts sec. 495 (1965)); however, the owner-passenger’s liability therefor is not on the theory that the negligence of the driver is imputed to the owner-passenger, but on the basis of the latter’s own negligence in failing to control the conduct of the driver (Bauer v. Johnson (1980), 79 Ill. 2d 324, 403 N.E.2d 237; Palmer v. Miller (1942), 380 Ill. 256, 43 N.E.2d 973). Cases from other jurisdictions involving similar facts have come to the same conclusion. See Williams v. Knapp (1968), 248 Md. 506, 237 A.2d 450; Parrish v. Walsh (1982), 69 Ohio St. 2d 11, 429 N.E.2d 1176; Reeves v. Harmon (Olda. 1970), 475 P.2d 400.

In the light of the above, the trial court should have stricken McAllister’s affirmative defense on the basis that his negligence was not imputable to plaintiff in her action against him; however, we note that the motion to strike was in limine and, in denying it, the trial court stated it was premature and that it would be ruled upon “when it comes to instructing the jury.” It appears that no request for a ruling was made thereafter, and because there was also no objection to the given instruction imputing McAllister’s negligence to plaintiff, we find that this issue has been waived and cannot be raised on appeal. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) In any event, plaintiff was not prejudiced because the jury did not impute to plaintiff the negligence of McAllister. This is reflected in its findings attributing 60% negligence to plaintiff and 40% to McAllister. Had the jury imputed the latter’s negligence to plaintiff, it would necessarily have found her 100% negligent.

Plaintiff also contends, and we agree, that the trial court erroneously reduced her damages award to zero by finding as a matter of law that the negligence of McAllister was imputed to her. In entering judgment, the trial court ordered “that the jury’s finding of damages in the sum of $14,525, having been reduced by plaintiff’s 60% negligence; and the 40% negligence of the defendant McAllister having been imputed to the plaintiff Sewell as principal of agent McAllister; the plaintiff Sewell is awarded zero damages.” Because, as set forth above, McAllister’s negligence was not imputable to plaintiff in her action against him, the court improperly reduced plaintiff’s award by the 40% negligence attributable to McAllister, and to that extent we will reverse the order appealed from and direct, on remand, that the order be amended to award damages in the amount of $5,810 (40% of $14,525) to plaintiff and against defendant McAllister.

The final contention of plaintiff is that the verdict in favor of Wofford and Checker was against the manifest weight of the evidence. Citing no authority whatsoever, she argues in effect that the verdict should not stand because three witnesses testified in her case and only one for these defendants. We find this argument to be without merit. The jury’s finding should not be disturbed unless the opposite conclusion is clearly evident or the finding is unreasonable, arbitrary, and not based upon the evidence (Gabrenas v. R. D. Werner Co. (1983), 116 Ill. App. 3d 276, 451 N.E.2d 1307), and we note here that the jury was presented with a choice between two basic versions concerning the occurrence. Wofford testified that plaintiff’s vehicle struck his cab from the rear as it was stopped at a red light. Plaintiff, Cole; and McAllister testified that the cab backed up into their car. While plaintiff argues that the jury disregarded the testimony of Cole, whom she characterizes as “an uninterested occurrence witness,” we note that Cole was plaintiff’s cousin, was a passenger in her car, and lived with her in her townhouse. Although not a party to the litigation, he can hardly be characterized as “uninterested.” Finally, the record discloses that Wofford’s version of the occurrence was supported by the testimony of the police officer arriving at the scene shortly after the accident. He testified that all parties told him that plaintiff’s vehicle struck the taxi as it was stopped for a red light. Inherent in the jury’s verdicts is a finding that plaintiff’s automobile ran into the rear of the cab which was stopped for a traffic light, and we believe this finding was reasonable and based upon the evidence.

We affirm that part of the judgment order entered in favor of defendants Wofford and Checker Taxi Company and against plaintiff. We also affirm that part of the judgment order reducing the $14,525 verdict of the jury against McAllister by the 60% negligence attributable to plaintiff, but we reverse that portion of the order which further reduced the award by the 40% negligence attributable to McAllister, and we remand this matter to the trial court with a direction to amend its judgment order to reflect an award of damages to plaintiff and against defendant McAllister in the amount of $5,810.

Affirmed in part; reversed in part; remanded with directions.

LORENZ and PINCHAM, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HURLEY MALLETTE, Defendant-Appellant.
    Second District
    No. 84—289
    Opinion filed February 21, 1985.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Hurley Mallette, was found guilty in a jury trial of three counts of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a)) all occurring during the early morning of January 24, 1983, at three separate businesses located in the same Lakeside Drive office complex in Bannockburn. Following a sentencing hearing, defendant was sentenced to concurrent six-year terms of imprisonment for each of the three burglary offenses.

Defendant raises two issues on appeal: (1) whether defendant’s presence as a passenger in a vehicle containing proceeds from recent burglaries was sufficient proof beyond reasonable doubt that he committed the burglaries, and (2) whether error occurred during post-trial proceedings, requiring a remand for appointment of new counsel and a new hearing on defendant’s assertion of ineffective assistance of counsel, where defendant proceeded pro se below to argue his post-trial contention of ineffective assistance of his trial counsel.

The evidence adduced at trial below showed that at approximately 3 a.m. on January 24, 1983, three separate businesses, all located in a Bannockburn office complex, were burglarized and various items of office equipment were later found missing.

Lake County Deputy Sheriff Jimmy Bryant testified that while on patrol, at approximately 3 a.m. on January 24, 1983, he received a radio dispatch alerting him that a burglar alarm had been activated at the American Roller Company in a Bannockburn office complex; that upon arriving at that location he initially found a typewriter lying in the snow outside the office complex and that the front door glass had been broken; that he found other windows belonging to several different businesses in the complex had also been broken; that he stayed at the office complex and radioed for an investigator; and that he did not see anyone enter or leave the complex during the time he was there.

Chicago police department officer Steve Viggiano testified that at 3:40 a.m. on January 24, 1983, while on routine patrol with his partner, Officer Donald McGrath, he noticed a 1975 Plymouth station wagon northbound on Lockwood approaching Lake Street in Chicago; that they curbed the vehicle because it did not have any brake lights; that he exited the squad car and approached the passenger side of the curbed vehicle to check for a city vehicle sticker and was handed a temporary registration certificate by defendant, who was seated in the middle of the front seat next to another passenger; that he returned to the rear of the curbed vehicle where his partner was speaking to the driver; that as he was returning to the rear of the vehicle, defendant slid behind the steering wheel and fled the scene; that his partner, Officer McGrath, jumped back in the squad car and chased the fleeing vehicle, while Viggiano handcuffed the original driver; and that he and his partner noticed numerous typewriters, computer equipment and a photocopy machine in the rear of the curbed station wagon. On cross-examination, Viggiano stated that he observed the middle passenger in the front seat for approximately five seconds and had no doubt that it was defendant.

Chicago police department officer Donald McGrath corroborated Officer Viggiano’s version of the occurrence and added that when they first observed the 1975 Plymouth station wagon he noticed an IBM typewriter in the back window in plain view; that he saw numerous typewriters and other types of office equipment in the back of the wagon; that while he was chasing the wagon, after it had fled from the scene, he called for assist units; that the fleeing vehicle stopped in a vacant lot and he pulled his squad car up behind it; that he exited his police vehicle and proceeded to the driver’s side door of the wagon; that he observed the occupants of the wagon crouched down in the front seat; that both occupants exited the passenger-side door and fled on foot in different directions and he chased defendant; that defendant hopped a fence into a rear yard of a nearby residence; that two assist units then arrived and the area was cordoned off; that defendant was discovered crouched on his hands and knees in the mud beneath a rear stairway; that defendant was dressed in dark, muddy clothing, was perspiring and his heart was beating quite strongly; that defendant, the station wagon, and the office equipment contained therein, were taken to the 15th District police station in Chicago; that he and his partner called all the suburban Chicago municipalities in an attempt to ascertain whether a burglary had been committed; that he was informed by the Lake County sheriff’s department that three burglaries had been recently committed and that the serial numbers of the office equipment reported missing matched the serial numbers of the recovered items; that three persons representing the three burglarized businesses came to the 15th District police station and identified all of the recovered items between the hours of 7:30 a.m. and 11:30 a.m. on January 24, 1983. On cross-examination, McGrath stated that he never lost sight of the station wagon while chasing it; that he never saw defendant’s face while chasing him on foot; that he lost sight of defendant for one or two minutes after defendant had jumped over the fence; and that when he found defendant he was wearing the same clothing as the man he was chasing.

No witnesses were presented on behalf of defendant. At the close of all the evidence, defendant did, however, move for a directed verdict, arguing that the State had not shown that defendant was in exclusive or joint possession of the stolen property and that his mere presence in the vehicle did not establish his participation in the earlier burglaries. Defendant’s motion for directed verdict was denied by the court below.

The trial court then submitted the case to the jury, which was instructed, inter alia, that if they found that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, they might infer that the defendant obtained possession of the property by burglary. (See Illinois Pattern Jury Instructions, Criminal, No.. 13.21 (2d ed. 1981).) The jury found defendant guilty of all three burglary offenses as charged.

Defendant first contends that he was not proved guilty of burglary beyond a reasonable doubt because his conviction was based solely on a permissive inference of his guilt arising from the exclusive and unexplained possession of recently stolen property. In support of this contention, defendant maintains that his mere presence in an automobile which he neither owned nor was driving, and which contained the proceeds of a recent burglary, does not establish his exclusive possession of the stolen property and the presumption of guilt arising therefrom.

The question of whether the State sustained its burden of proof on the burglary charge turns on whether the jury should have been allowed to infer defendant’s guilt from his presence in an automobile containing recently stolen property.

In People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, our supreme court reevaluated its prior decisions permitting an inference of guilt of burglary from the exclusive and unexplained possession of recently stolen property in view of the United States Supreme Court decision in County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, and concluded that such an inference of guilt is only proper if: (1) there is a rational connection between the possession and the participation in the burglary; (2) the guilt of burglary more likely than not flows from the possession of the burglary proceeds; and (3) there is corroborating evidence of guilt. (See People v. Housby (1981), 84 Ill. 2d 415, 424, 420 N.E.2d 151; People v. Felters (1982), 105 Ill. App. 3d 1066, 1067, 433 N.E.2d 368; People v. John son (1981), 96 Ill. App. 3d 1123, 1125-26, 422 N.E.2d 19.) The same evidence will apparently satisfy all three prongs of the Housby test. People v. Klein (1983), 115 Ill. App. 3d 582, 585, 450 N.E.2d 1268.

Our examination of the record reveals that the Housby three-prong test was satisfied in the instant case, and thus, the permissive inference of defendant’s guilt by the jury was proper.

Under the first prong of the above analysis, we find that the evidence adduced at trial sufficiently established that there was a rational connection between defendant’s recent possession of the stolen office equipment and his participation in the charged burglaries. Lake County Deputy Sheriff Bryant testified that he responded to a burglary alarm at 3 a.m. on January 24, 1983, which had been activated at a business located in a Bannockburn office complex. When he arrived at the scene he noticed that there had been forced entries into several business offices at that location through smashed window and door panels. Bryant stated he did not see anyone enter or exit the building. However, 40 minutes after the burglaries had been perpetrated, a station wagon visibly loaded.with office equipment, in which defendant was a passenger, was stopped in Chicago for a traffic violation at 3:40 a.m. It was further established that the office equipment recovered from the rear of the station wagon matched the items reported missing from the Bannockburn businesses. The evidence also showed that defendant, while seated in the front of the vehicle, handed one of the officers a temporary registration certificate for the car indicating that he was not just a casual passenger. Under these facts we find that a rational connection between defendant’s recent possession of the proceeds and his participation in the burglaries did, in fact, exist. See People v. Felters (1982), 105 Ill. App. 3d 1066, 1067, 433 N.E.2d 368; People v. Moore (1981), 98 Ill. App. 3d 507, 511, 424 N.E.2d 751; compare People v. Ross (1981), 103 Ill. App. 3d 883, 886, 431 N.E.2d 1288.

Under the second prong of the Housby analysis, requiring that the guilt of burglary more likely than not flows from the “possession” of the burglary proceeds, defendant maintains, relying on People v. Evans (1962), 24 Ill. 2d 11, 179 N.E.2d 657, that he was not in “exclusive possession” of the stolen property since he was merely a passenger in an automobile along with two other persons and was unaware that it contained the proceeds of a recent burglary.

We find the situation presented in the case at bar distinguishable from that in Evans, where the stolen property was in the trunk of the car and the defendant passenger had no key to open it. Here, the numerous items of stolen office equipment filled the entire portion of the cargo area of a station wagon as verified by the testimony of the arresting officers. Indeed, our supreme court has held that a passenger in an automobile retained exclusive possession of stolen property under substantially similar circumstances. (People v. Reynolds (1963), 27 Ill. 2d 523, 526, 190 N.E.2d 301 (where stolen property filled the whole interior of automobile in which defendant was a passenger).) The Illinois appellate court has also recognized that joint possession with others can be exclusive possession for the purposes of satisfying the Housby presumption of guilt test. (People v. Ross (1981), 103 Ill. App. 3d 883, 887, 431 N.E.2d 1288; see also People v. Ricketson (1970), 129 Ill. App. 2d 365, 378, 264 N.E.2d 220.) Thus, we find defendant had exclusive possession of the burglary proceeds for the purpose of satisfying the second prong of Housby.

We conclude that defendant’s joint, but “exclusive possession” of the stolen office equipment, in view of the short time span between the initial perpetration of the burglaries and the subsequent discovery of the burglary proceeds in defendant’s possession 40 minutes later, more likely than not establishes his guilt under the second prong of Housby.

We also find ample evidence in the instant record firmly corroborating defendant’s guilt under the third prong of Housby. At trial, both arresting officers testified that while they were questioning the initial driver of the station wagon at the rear of the vehicle, defendant slipped behind the wheel and fled from the scene. Officer McGrath testified that he jumped into his squad car and chased the fleeing vehicle, driven by defendant,- around several comers into a vacant lot. As McGrath exited his squad car, he at first noticed defendant and another passenger crouched down in the front seat of their vehicle and then saw the two occupants jump out of the car and flee on foot in different directions. After chasing him over a fence and into the yard of a nearby residence, McGrath found defendant crouched beneath a stairway. Defendant’s conduct of fleeing both in the vehicle, and subsequently on foot, as well as hiding beneath the stairway, tends to show his consciousness of guilt (People v. Harris (1972), 52 Ill. 2d 558, 561, 288 N.E.2d 385), supplying the necessary corroborative evidence under the third prong of Housby. See People v. Moore (1981), 98 Ill. App. 3d 507, 512, 424 N.E.2d 751.

The evidence illustrates that the requirements of Housby were fully complied with in the instant case. Therefore, we find that the permissive inference of defendant’s guilt from his exclusive possession of recently stolen property was properly utilized by the court below. The burden of production then shifts to the defendant to neutralize the State’s case in the eyes of the jurors by providing a reasonable explanation of his possession of the proceeds. (People v. Housby (1981), 84 Ill. 2d 415, 430-31, 420 N.E.2d 151; see also People v. Moore (1981), 98 Ill. App. 3d 507, 513, 424 N.E.2d 751.) Defendant did not offer any reasonable explanation of his possession of the stolen property, and the jury was free to infer his guilt under these circumstances. Consequently, we conclude that on this record defendant was proved guilty of burglary beyond a reasonable doubt.

Defendant’s second issue raised on appeal arises out of the post-trial proceedings on his motion for a new trial. A written motion for a new trial was filed by defendant’s counsel, assistant public defender Gordon Dougherty. The motion contained nine typewritten points in support of the motion. A tenth point handwritten by defendant alleged that “[t]he defendat [sic] was denied effectiveness of [sic] assistance of counsel.” At a hearing on the motion, Dougherty presented argument on the first nine points of the motion, and asked that the defendant be permitted to personally argue the tenth point, which the court allowed.

Defendant essentially stated that another assistant public defender had been assigned to his case, but on the day of the jury trial his present counsel was assigned and represented him at trial because his other counsel was ill. Defendant briefly argued that his trial counsel, Dougherty, “didn’t have time to go over my case with me, interview any witnesses, or anything.” Dougherty then reminded the trial court that there had been a motion regarding this allegation prior to the beginning of trial and he had then informed the court that he had read the case and felt familiar enough with it to go to trial. The trial court denied the motion for a new trial in its entirety. At no time during the post-trial proceedings did the defendant request new counsel to assist him in his ineffective-assistance-of-counsel contention.

The record reveals that just before defendant’s jury trial began, Dougherty,: on behalf of defendant, moved to continue the trial because defendant’s counsel up to this date, assistant public defender Steven Martin, had called in sick. Dougherty informed the court that defendant told him that he would like Martin as his attorney, as he had worked with him throughout the last month and felt Dougherty could not defend him effectively. Dougherty also informed the court that he had consulted with the defendant three times, had read the entire case, had talked with Martin on the telephone twice that morning regarding the case, and felt capable of defending the defendant. Defendant himself informed the court that he did not think Dougherty could defend him effectively on such short notice. The court denied the motion for continuance, stating the case did not appear to be complex and Dougherty indicated he was familiar enough with the case to proceed.

On appeal, defendant argues that it was not enough to allow defendant to be heard pro se on his post-trial contention of ineffective assistance of his trial counsel and, citing People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, and People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178, requests that we remand to the trial court for appointment of new counsel and for another hearing of his assertion of ineffective assistance of counsel.

In Krankel, defense counsel filed a motion for new trial and, later, defendant filed a pro se motion for a new trial which repeated the assertions of defense counsel’s motion, and added the issue of ineffective assistance of counsel based on defense counsel’s alleged refusal to set forth the defense of alibi and alleged failure to investigate the defendant’s whereabouts at the time of the offense. Defense counsel argued for a continuance of the motions, stating, inter alia, that defendant was entitled to other counsel. The motion for a continuance was denied, defendant was given an opportunity to present argument on his pro se motion, which he did, and the trial court denied both motions for a new trial.

Although the appellate court reversed and remanded for a new trial, holding that the trial court had erred in denying defendant’s pro se motion for a new trial based on the fact that his appointed counsel failed to investigate an alibi witness on his behalf (People v. Krankel (1983), 113 Ill. App. 3d 992, 447 N.E.2d 1379 (Mills, J., dissenting)), our supreme court vacated the judgment of the appellate court and remanded for a new hearing on defendant’s assertion of ineffective assistance of counsel and for appointment of new counsel, stating:

“In their briefs, both the State and the defendant agree that the defendant should have had counsel, other than his originally appointed counsel, appointed to represent him at the post-trial hearing in regard to his allegation that he had received ineffective assistance of counsel. We agree with the parties and remand this matter for a new hearing on the defendant’s motion for a new trial with appointed counsel other than his originally appointed counsel. If, after the hearing, the judge finds that the defendant did not in fact receive effective assistance of counsel based upon counsel’s alleged failure to present a valid alibi defense, then he shall order a new trial. If, however, he determines that the defendant received the effective assistance of counsel, he shall deny a new trial and leave standing defendant’s conviction and sentence for burglary. If the circuit court denies defendant a new trial, defendant can still appeal to the appellate court based on his assertion of ineffective assistance of counsel or the other three issues which were raised in the appellate court and in this court but were not addressed.” People v. Krankel (1984), 102 Ill. 2d 181, 189, 464 N.E.2d 1045.

We do not interpret the holding in Krankel to establish a per se rule that all pro se motions for new trial by defendants alleging ineffective assistance of trial counsel mandate appointment of new counsel to assist in the motion irrespective of the basis of the motion and in the absence of a request for new counsel. In the case at bar, the defendant did not request new counsel to assist him in presentation of the motion and argued the basis of the motion pro se. In Krankel, the State agreed on appeal that the defendant should have had counsel, and we think it reasonable to assume from the limited record of the trial proceedings included in the opinion that the defendant had requested in the trial court the appointment of new counsel to assist him in the motion. See also People v. Simpson (1984), 129 Ill. App. 3d 822.

Additionally, we believe that the basis for which the defendant here asserted ineffective assistance of counsel, namely, his trial counsel’s inability to properly prepare a defense because of the short time he had been assigned to the case, is a contention that the defendant could present pro se and the trial court could determine based on its knowledge of defense counsel’s performance at trial. In contrast, the allegation of ineffective assistance of counsel based upon counsel’s failure to present a valid alibi defense in Krankel more clearly requires the assistance of counsel in the preparation and presentation of evidence to support this contention.

Accordingly, we do not believe Krankel establishes an inflexible rule requiring appointment of new counsel to assist him on all occasions where a defendant presents pro se a post-trial argument of ineffective assistance of counsel. Nor do we find People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178, also cited by defendant, as apposite. Here, as contrasted with Fields, defendant was allowed to present and argue pro se his motion asserting ineffective assistance of counsel and his counsel did not make any arguments to refute the contention, thereby placing him in conflict with the defendant. Under the circumstances of this case, we decline to remand for the purpose of appointment of new counsel and for a new hearing on defendant’s motion for a new trial on the assertion of ineffective assistance of counsel.

Although defendant has not argued in his appellate brief the merits of his post-trial contention of ineffective assistance of counsel, thereby waiving the issue for review, we have nevertheless examined the entire record which conclusively shows that defense counsel conducted a vigorous defense and exhibited no lack of knowledge or effectiveness due to the short time he had to examine the case prior to trial. He reviewed the entire file, talked with the defendant’s prior attorney on several occasions about the case, and consulted with the defendant. Moreover, defendant has neither in the trial court nor in this court stated specifically how he was prejudiced by his counsel’s late entry into the case. (See People v. Williams (1974), 59 Ill. 2d 402, 320 N.E.2d 849.) The case was not complex. Judging counsel’s performance under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, we cannot say defendant was denied his constitutional right to effective assistance of counsel. People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.

For the foregoing reasons; the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and SCHNAKE, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD COLEMAN, Defendant-Appellant.
    First District (4th Division)
    No. 83—1590
    Opinion filed February 7, 1985.

      James J. Doherty, Public Defender, of Chicago (Georgeen M. Carson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Elizabeth Loredo Rivera, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Donald Coleman, was convicted of attempted murder, aggravated battery, armed violence predicated on attempted murder, armed violence predicated on aggravated assault, and reckless conduct. The trial judge vacated all convictions with the exception of attempted murder, for which he imposed a 12-year term of imprisonment.

On appeal, defendant claims, inter alia, that the verdicts finding him guilty of attempted murder and reckless conduct are legally inconsistent and thereby warrant a reversal and a new trial on all counts.

We agree, and, accordingly, we reverse the convictions and remand for a new trial on all counts.

Background

The following evidence was adduced at trial:

Defendant, Donald Coleman, had been involved in a relationship with the victim, Rosita McClain, for over a year and a half when the shooting incident out of which this case arises took place. Defendant rented a room in the victim’s sister’s house and was present in that room with the victim on the night of August 28, 1982. Rosita and defendant started arguing. Defendant grabbed a shotgun and stated to the victim, “1 ought to blow your head off.” When the victim heard this, she stood up.

The testimony as to what occurred from that point on is disputed. The victim testified that she was standing across the room from defendant and that he then fired the gun at her. Defendant testified that he was close to the victim and that when he pointed the gun at her, she grabbed it, and it went off.

The victim was severely injured when the gun discharged and she fell to the couch. Defendant called the police and initially denied knowing anything about the shooting. During repeated interrogation by the police, defendant related many different versions of the incident.

The victim remained in the hospital for six months. Some four months after she entered the hospital, the victim was interviewed by the police concerning the shooting. They asked her if it was an accident. The victim first nodded yes, then said that she did not know. Detectives testified at trial that the victim was lapsing in and out of consciousness during this questioning. At trial, the victim unequivocally testified that defendant shot her and that she never touched the gun.

Following a jury trial, defendant was convicted of attempted murder, armed violence, aggravated battery and reckless conduct. The trial judge vacated sua sponte all convictions except that for attempted murder and sentenced defendant to a 12-year term in the Illinois Department of Corrections. Defendant now appeals.

Opinion

Oh appeal, defendant claims as error that (1) he was denied effective assistance of counsel; (2) he was not proved guilty beyond a reasonable doubt; (3) he was denied a fair trial by repeated instances of prosecutorial misconduct; and (4) that the case must be reversed and remanded due to the jury’s finding of legally inconsistent verdicts. We find defendant’s last claim to be dispositive of this appeal and to warrant reversal and remand for a new trial on all counts.

Defendant was found guilty of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4) and of reckless conduct (Ill. Rev. tat. 1983, ch. 38, par. 12 — 5). Defendant contends that these verdicts are legally inconsistent and that under People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, where juries return such inconsistent verdicts on separate indictments or separate counts of a single indictment, a reversal and a new trial must follow. The State, on the other hand, argues that verdicts of guilty for attempted murder and for reckless conduct are not legally inconsistent because the mental state of “reckless” is merely a lesser included mental state of “intent.” The jury apparently understood recklessness to be a lesser included mental state of intent and found that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of all the crimes of which he was convicted. We do not quarrel with the jury’s conclusion as to the sufficiency of evidence, aware that this does not mean we are making a finding as to defendant’s guilt or innocence which would be binding on retrial. (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) The basis of our disagreement here is not with the jury’s factual findings but rather with their legal understanding. While we agree that recklessness is indeed one of the mental states set forth in the Criminal Code of 1961 that may satisfy a general intent crime (Ill. Rev. Stat. 1983, ch. 38, pars. 4 — 3, 4 — 6), the Code specifically states that it may do so only “if the statute does not prescribe a particular mental state applicable to an element of an offense.” (Ill. Rev. Stat. 1983, ch. 38, par. 4 — 3(b).) The attempt statute, however, is not such a statute and requires a specific intent.

The elements of attempt are set forth in section 8 — 4(a) of the Criminal Code of 1961 as follows:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(a).

It is clear from the plain language of this statute that to be found guilty of attempt, one must be proved to have intended to commit a specific offense; here, that offense was found to be murder. Recklessness, on the other hand, involves no specific intent but rather a conscious disregard of the consequences of one’s actions:

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

A person commits “reckless conduct” if he “causes bodily harm to or endangers the bodily safety of an individual” by performing recklessly the acts which cause the harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 5.) The difference between this mental state, that of recklessness, and the specific mental state required for attempt is aptly illustrated by the following:

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge xof attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).” (W. La Fave & A. Scott, Criminal Law sec. 59, at 428-29 (1972).)

The mere fact that both “attempt” and “reckless conduct” require that a person act consciously is not, as the State contends, sufficient to make “recklessness” a lesser included mental state of the intent to commit murder.

In People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, the supreme court affirmed People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, in which the court recognized that legally inconsistent verdicts could not stand and that where inconsistent verdicts of guilty are returned, a reversal and new trial on all counts must follow. (People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.) Because we find that guilty verdicts for attempted murder and for reckless conduct are legally inconsistent, we are required to reverse these convictions and remand for a new trial on all counts.

Reversed and remanded.

JIGANTI, P.J., and ROMITI, J., concur.


author: PRESIDING JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK MAJER, Defendant-Appellant.
    Second District
    No. 84—0075
    Opinion filed February 27, 1985.

      David G. Taylor and Michael J. Ventrelle, both of Elmhurst, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Defendant, Frank Majer, appeals from an order of the circuit court convicting him of reckless driving (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 503(a)), contending (1) the conviction violated the terms of his plea agreement with the State, and (2) was not an authorized disposition under the provisions of the Unified Code of Corrections relating to supervision (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 1—21, 1005 — 6—1(c), 1005-6-3.1).

A verbatim transcript of the guilty plea hearing held June 13, 1983, which is the subject of this appeal, was not available and the parties have provided an agreed statement of facts pursuant to Supreme Court Rule 323 (87 Ill. 2d R. 323(c)(d)). From it and the common law record furnished to this court, certain facts are ascertainable.

Defendant was charged with driving while under the influence of alcohol on January 6, 1983, by an Illinois Uniform Traffic Ticket and Complaint; he was also charged with speeding and improper lane usage. After plea negotiations with the State, defendant and his attorney appeared in the circuit court on June 13, 1983, and he entered a plea of guilty to the D.U.I. offense. The agreed statement of facts by the parties states the plea was entered in accordance with a written plea agreement, which was attached as exhibit A, and was approved by the trial court. That exhibit, which is titled “Traffic School of Behavior Change, Inc. D U I Program Referral,” was dated June 13, 1983, and identifies the defendant, court, attorneys and arresting police department, but does not specify the offense to which he entered a plea of guilty. Under a section titled “Plea Agreement,” it states defendant pleaded guilty, was found guilty and was placed on court supervision until December 12, 1983. It further provided that defendant was not to commit any alcohol-related offense, was to attend D.U.I. school and was to pay a $350 fine and court costs of $120. The last handwritten entry in the plea agreement section states “Reduce to Reckless Driving.”

As a result of this “plea agreement,” the trial court entered a written order on June 13 for court supervision, which is attached to the agreed statement of facts as exhibit B. It sets forth that defendant entered a plea of guilty to driving while under the influence of alcohol and, if he successfully completed the terms of supervision, which he had requested, defendant would be discharged and no judgment of guilty would be entered against him. The order for supervision further provided as terms that defendant would not violate any alcohol-related statutes or ordinances; would complete the traffic school; would pay a fine of $350 and report back to the court on December 12, 1983. Under a section titled “Other” was the statement “Reduce to Reckless Driving.”

The record also discloses that on December 12, 1983, defendant appeared in court and tendered proof he had paid the fine and court costs and had satisfactorily completed the traffic school. On that same day, the trial court entered an order convicting defendant of reckless driving; no sentence or fine was imposed upon that conviction.

At the hearing of defendant’s motion to vacate the conviction, the attorney who had represented him at the time of his guilty plea testified he had not informed defendant the reckless driving conviction would be entered at the end of the supervision period and that it was the attorney’s understanding the phrase “reduce to reckless driving” meant the original charge would be so reduced and there would be no conviction after the satisfactory completion of supervision. Counsel stated he had advised his client all charges would be then dropped.

The trial court denied defendant’s motion to vacate the reckless driving conviction, finding that the procedures followed were in accord with the practices of the court in such cases. The judge noted that when an order for supervision was entered on a negotiated driving-while-under-the-influence-of-alcohol charge, it was a part of the agreement between defendant and the State that a conviction for reckless driving, or other less severe charges, be entered. The judge considered that the plea agreement removed the case from the provisions of the statute relating to supervision.

I

Defendant’s contention that the conviction for reckless driving violated the terms of his plea agreement with the State is not supported by the record provided to this court.

The parties agree that as a part of the plea agreement defendant pleaded guilty to and was convicted of the offense of driving while under the influence of alcohol and was placed on supervision for six months; they also agree as to the terms of the agreement relating to other violations, traffic school, fine and costs. The State argues that an additional condition of the plea agreement, as shown in the common law record and agreed statement of facts, was that a judgment of conviction for reckless driving would be entered upon successful completion of supervision. Defendant argues that was not included in the plea agreement.

Supreme Court Rule 402(b) provides that where a plea of guilty is tendered pursuant to a plea agreement, the agreement shall be stated in open court. The trial court has a duty to question defendant in open court to confirm the terms of the plea agreement and shall not enter a final judgment without determining whether there is a factual basis for the plea. 87 Ill. 2d R. 402(b).

The well-established rule is that an appellant must demonstrate the existence of error in the record, and failure to do so creates a presumption of regularity that attaches to all trial court proceedings. (People v. Calvert (1980), 82 Ill. App. 3d 350, 353, 402 N.E.2d 638.) The purpose of appellate review is to evaluate the record presented in the trial court and, generally, review will be confined to what appears in the record. (People v. Benford (1975), 31 Ill. App. 3d 892, 894, 335 N.E.2d 106.) Because a court of review cannot presume the existence of an error that the record does not demonstrate affirmatively, it must resolve silence in the record against the defendant. (People v. Harrell (1982), 104 Ill. App. 3d 138, 143, 432 N.E.2d 1163.) It is also well-settled that the defendant has the burden of properly preserving the record of the proceedings conducted in the trial court. (E.g., People v. Edwards (1978), 74 Ill. 2d 1, 6, 383 N.E.2d 944, cert, denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862; People v. Smith (1969), 42 Ill. 2d 479, 483, 248 N.E.2d 68; People v. Turner (1982), 110 Ill. App. 3d 519, 522, 442 N.E.2d 637; People v. Malley (1982), 103 Ill. App. 3d 534, 536, 431 N.E.2d 708.) Consequently, when the record presented on appeal is incomplete, a court of review will indulge in every reasonable presumption favorable to the judgment from which the appeal is taken, including that the trial court ruled or acted correctly. Any doubt arising from the incompleteness of the record will be resolved against the appellant. People v. Turner (1982), 110 Ill. App. 3d 519, 523, 442 N.E.2d 637; People v. Bruhn (1977), 51 Ill. App. 3d 269, 271, 366 N.E.2d 932.

The parties filed an agreed statement of facts which included the stipulation that the defendant entered into a plea agreement that the trial court approved. The stipulation stated that a copy of the agreement was attached as an exhibit, and it contains the notation “Reduce to Reckless Driving” under the heading “Plea Agreement.” On appeal, the parties dispute the meaning and effect of this phrase, and it is apparent that the agreed statement of facts does not contain a definitive description of the terms of the plea agreement.

Given the incomplete and inadequate nature of the record offered on appeal, this court must presume, as the trial court found, that the plea agreement contained the condition that the defendant agreed to be convicted of reckless driving upon his successful completion of the period of supervision imposed with respect to the offense of driving while under the influence of alcohol. Applying the presumption, we conclude that the court correctly denied the defendant’s motion to vacate his conviction on this ground.

II

Defendant also contends that the conviction for reckless driving is not authorized by the supervision provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 1—21, 1005— 6 — 1(c), 1005-6-3.1).

Section 5 — 1—21 defines “supervision” as a “disposition of conditional and revocable release without probation or supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 1—21; People v. Bushnell (1984), 101 Ill. 2d 261, 266, 461 N.E.2d 980.) Section 5 — 6—3.1(e) provides that when a defendant has completed supervision in a satisfactory manner, “the court shall discharge the defendant and enter a judgment dismissing the charges.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 6 — 3.1(e); Hajawii v. Venture Stores, Inc. (1984), 125 Ill. App. 3d 22, 24, 465 N.E.2d 573; People v. Tarkowski (1981), 100 Ill. App. 3d 153, 157, 426 N.E.2d 631, appeal denied (1982), 88 Ill. 2d 554.) Section 5-6 — 3.1(f) of the Code also provides that “[d]ischarge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime.” Ill. Rev. Stat. 1983, ch. 38, par. 1005— 6 — 3.1(f); People v. Talach (1983), 114 Ill. App. 3d 813, 824, 448 N.E.2d 638.

Defendant argues that the trial court was required to dismiss the charge of driving while under the influence of alcohol, to which defendant pleaded guilty and was granted supervision, and the court was not authorized by the Unified Code of Corrections to, instead, convict him of reckless driving. The State argues, however, that the conviction for reckless driving was the bargained-for result of defendant’s negotiated plea of guilty and dismissal of pending charges and conviction of another offense is a permissible practice, citing People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886.

The question which appears to be presented is whether a trial court may properly impose a disposition of a case, agreed to by the parties in a plea agreement entered pursuant to Supreme Court Rule 402(d) (87 Ill. 2d R. 402(d)), which is not authorized by the Unified Code of Corrections.

It is established that all dispositions imposed by the courts in criminal cases must be authorized by law. (People v. Breen (1976), 62 Ill. 2d 323, 327, 342 N.E.2d 31; People v. Joseph (1982), 105 Ill. App. 3d 568, 569, 434 N.E.2d 453.) The legislature has authorized the disposition of a case by an order for supervision and has specified the conditions of supervision which may be imposed. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6—1, 1005 — 6—3.1.) Those authorized conditions do not suggest that a defendant who satisfactorily completes a period of supervision may, as a part of that disposition, be convicted of another offense. The concept of supervision, as determined by the legislature, is that it should be used in those less serious cases where “(1) the offender is not likely to commit further crimes; (2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and (3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under the Code.” Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(c).

In the present case, the trial court entered a conviction for reckless driving after defendant completed the other terms of his supervision, and it is apparent the court considered that as an additional condition of defendant’s supervision. We find that condition is not authorized by the Code of Corrections in an order for supervision and should not have been imposed. See People v. Roper (1983), 116 Ill. App. 3d 821, 824, 452 N.E.2d 748 (error to impose a jail term as a condition of supervision).

The question remains whether the unauthorized disposition thus entered is cured because, in doing so, the trial court was implementing the plea agreement between defendant and the State. We conclude that it is not.

The Unified Code of Corrections applies to negotiated plea agreements. (People v. Cole (1973), 12 Ill. App. 3d 1003, 299 N.E.2d 394; People v. McElroy (1974), 23 Ill. App. 3d 674, 676, 320 N.E.2d 129.) Nothing contained in Supreme Court Rule 402 (87 Ill. 2d R. 402) suggests that a plea agreement relating to a sentence or other disposition need not comply with law simply because the parties have agreed to it. We do not consider that a trial court could properly concur in a proposed disposition of a case which it was not authorized to impose absent a plea agreement.

The relief requested by defendant in this case is that we vacate the order of conviction for reckless driving entered by the trial court. We note, however, that disposition, although erroneous, was agreed upon by him when defendant pleaded guilty to driving while under the influence of alcohol. It is also apparent that vacating the reckless driving conviction would not fully correct the errors in this case, as the trial court did not discharge defendant and enter a judgment dismissing the charge to which he pleaded guilty, as is required by section 5 — 6—3.1(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—3.1(e)) after successful completion of supervision. We conclude the most appropriate remedy is to reverse the judgment of the trial court, vacate defendant’s plea of guilty and the orders entered thereon, and permit him to plead anew.

Accordingly, the judgment of the circuit court is reversed, defendant’s plea is vacated and the cause remanded for further proceedings.

Reversed and remanded.

HOPE and SCHNAKE, JJ., concur.