author: JUSTICE KASSERMAN

text:
    THE PEOPLE ex rel. LaRUE LOVELACE, Montgomery County Collector, Plaintiff-Appellant, v. CARL H. HELDEBRANDT, Defendant-Appellee.
    Fifth District
    No. 83—141
    Opinion filed October 11, 1984.
    Barbara Adams, State’s Attorney, of Hillsboro (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    Mark Levy, of Collinsville, for appellee.
    Danny J. Leifel, of Bloomington, for amicus curiae.

   JUSTICE KASSERMAN

delivered the opinion of the court:

Carl H. Heldebrandt, defendant, paid his Montgomery County real estate taxes for revenue year 1980 under protest and subsequently filed tax objections to the application by. the Montgomery County Collector (collector) for a judgment for delinquent real estate taxes and taxes paid under protest for 1980. After a hearing, the trial court ordered a refund of some of the taxes defendant had paid under protest. The collector appeals this decision and contends that: (1) Mr. Heldebrandt failed to exhaust his administrative remedies; (2) the tax objection filed by Mr. Heldebrandt was legally insufficient; and (3) Mr. Heldebrandt failed to establish constructive fraud in the assessment of taxes on his farmland.

Prior to trial, the collector moved to dismiss Mr. Heldebrandt’s tax objection on the ground, inter alia, that the objection failed to state sufficient facts to allege constructive fraud. The trial court denied the motion.

Testimony from Montgomery County Board of Review (board of review) members established the following facts: On January 22, 1981, the board of review received correspondence from the Illinois Department of Revenue stating that the proposed tax assessments that the board of review had submitted for the year 1980 were erroneous. The Department of Revenue recommended two alternatives to the board of review to rectify the problem. The board of review was informed that it could either reassess the entire county or increase the tax rate on farmland by 1.08 pursuant to section 108(5) of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 589(5)). The board of review chose to increase the assessment on farmland because the shortage of time precluded reassessing the entire county. Notice of hearing on the matter was published in a newspaper of general circulation in Montgomery County. Such notice stated:

“PUBLIC NOTICE
NOTICE OF BOARD OF REVIEW HEARING
Notice is hereby given, that the Board of Review has been requested and directed by the Department of Revenue, State of Illinois, to reconvene in this session.
This session is for the purpose of adjusting agriculture land only, for 1980 assessments; as required by Section 108 of the Revenue Act of 1939, in accordance with Section 20e of the Act, as revised by applying the multiplier set forth below:
1.08
Notice is further given that the owners of property affected or any one representing them, or other citizens of the affected territory may appear before the Board of Review at a hearing to be held at 1:30 p.m. on Monday, February 23, 1981, at the Montgomery County Courthouse, Supervisor’s Room, to show cause why such action should not be taken.
Montgomery County Board of Review
* ** fi

A public hearing in conformity with such notice was conducted on February 23,1981. Mr. Heldebrandt did not attend.

The hearing on February 23, 1981, was attended by Mr. John Lambert, the legislative chairman of the Montgomery County Farm Bureau. According to Mr. Lambert’s testimony, he read a prepared statement at the hearing in opposition to the proposed increase in the assessment. Mr. Lambert further stated that he did not appear at the meeting as a representative of Mr. Heldebrandt.

On February 27, 1981, the board of review decided to increase the 1980 assessment on Montgomery County farmland by applying the 1.08 tax “multiplier.”

Richard McCain, the director of State and local finance property taxation for the Illinois Farm Bureau, testified in Mr. Heldebrandt’s behalf as an expert in the area of farm tax assessments. Mr. McCain stated that he was involved in drafting the language of section 20e of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 501e). He testified that the purpose of section 20e was to arrive at the equalized value for farmland by soil types. It was Mr. McCain’s opinion that if you applied an across-the-board multiplier to the 1979 assessed values of farmland, it would distort the equalization which should have resulted based on soil type under the 1980 amendment to section 20e. Compare Ill. Rev. Stat. 1977, ch. 120, par. 501e, with Ill. Rev. Stat. 1979, ch. 120, par. 501e.

Randall Carrón, a former deputy of the St. Clair County Board of Assessors, also testified in Mr. Heldebrandt’s behalf. He concurred with Mr. McCain’s testimony that the application of an across-the-board multiplier to the 1979 assessed valuation of farmland would distort the 1980 farmland assessment in Montgomery County.

At the close of defendant’s presentation of evidence, the collector moved to “dismiss” the case on the grounds, inter alia, that Mr. Heldebrandt failed to exhaust his administrative remedy, failed to sufficiently plead constructive fraud, and failed to prove constructive fraud. This motion was denied by the trial court.

The collector then called as a witness Arnold McGill, who was the field man for the supervisor of assessments of Montgomery County and was involved in the assessment of farmland. Mr. McGill stated that in assessing the farmland in Montgomery County, the same figures were used for the 1980 assessment as had been used in 1979 and that the board of review adjusted those figures upward by the application of the 1.08 multiplier. Mr. McGill gave a detailed account of the method used to assess farmland, which included an explanation of how the 1979 and 1980 methods of assessment would be represented graphically. Mr. McGill stated that, in his opinion, Mr. Heldebrandt’s tax assessment would have been higher had section 20e of the Revenue Act of 1939 been complied with.

The trial court found the addition of the 1.08 increase to be constructively fraudulent and sustained the tax objection of Mr. Heldebrandt; and the collector perfected this appeal. This court has granted the motion of the Illinois Agricultural Association to file a brief amicus curiae.

The collector first contends that the court had no jurisdiction to hear Mr. Heldebrandt’s tax objection because Mr. Heldebrandt failed to exhaust his administrative remedies. We agree.

Section 108(5) of the Revenue Act of 1939 states that the board of review shall:

“[ijncrease or reduce the entire assessment of either real or personal property, or both, or of any class included therein if, in its opinion, the assessment has not been made upon the proper basis, or equalize the assessment of real or personal property, by increasing or reducing the amount thereof, in any multi-township or township, or part thereof, or any portion of the county as may, in its opinion, be just, but the assessment of any class of property or of any township or multi-township or part thereof, or any portion of the county, shall not be increased until the board shall have published a notice in a newspaper of general circulation published in the county, of such proposed increase and shall have given the owners of the property affected, or any one representing them, or other citizens of said territory, an opportunity to be heard within 20 days after the date of such publication. The board of assessors, assessor or supervisor of assessments shall have like opportunity to be heard thereon, except where such action is taken in individual cases upon complaint. The board shall hear any person, upon request, in opposition to a proposed reduction in the assessment of any person, corporation or territory.” (Ill. Rev. Stat. 1979, ch. 120, par. 589(5).)

Under section 108 of the Act, the board of review has the authority to increase or decrease tax assessments. (See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 274, 408 N.E.2d 204, 210.) Under subsection (5) of section 108, this authority may be exercised after 20 days’ notice by publication and personal service is not required. (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 960, 436 N.E.2d 1073, 1081; Commonwealth Edison Co. v. Tucker (1980), 86 Ill. App. 3d 630, 634, 408 N.E.2d 364, 367.) It is undisputed that notice pursuant to statute was given in the instant case.

The general rule in Illinois is that there is no right to judicial review of an allegedly excessive or fraudulent tax assessment unless the administrative remedy has been exhausted. (People ex rel. Needham v. H. A. Abbott Estate (1970), 47 Ill. 2d 491, 497, 265 N.E.2d 612, 616; People ex rel. Nordlund v. Lans (1964), 31 Ill. 2d 477, 479-80, 202 N.E.2d 543, 545; In re Application of Wallace (1977), 53 Ill. App. 3d 760, 761, 368 N.E.2d 1127, 1128.) We are of the opinion that such doctrine is applicable to the instant case.

We conclude that Mr. Heldebrandt was precluded from seeking relief in the circuit court without having first complied with the requirements of the Revenue Act of 1939. Mr. Heldebrandt admitted that neither he nor anyone representing him appeared before the board of review to voice his objection to the proposed tax assessment increase under section 108(5). Having failed to give the board of review any opportunity to consider his specific objections to his 1980 real estate tax assessment and having failed to comply with the provisions of the Revenue Act of 1939 regarding appeals, Mr. Heldebrandt is not at liberty to pursue his tax objection in the circuit court.

We reject Mr. Heldebrandt’s contention that he should not be required to exhaust the administrative remedies established by the Revenue Act of 1939. Mr. Heldebrandt was not aggrieved by any administrative action until after the requisite hearing was held. While it is true that the decision to alter the tax assessment pursuant to section 108(5) was not made until after the required statutory hearing held on February 23, 1981, the board of review’s actions remain administrative and were devoted to establishing the original real estate taxes for the revenue year 1980. We also reject Mr. Heldebrandt’s assertion that his objection to the board of review would have constituted a futile act. Nothing in the record supports this conclusion. The fact remains that Mr. Heldebrandt did not follow proper administrative procedures set forth in the applicable statute.

The Illinois Agricultural Association (IAA) suggests that this court follow In re Application of Clark County Collector (1983), 116 Ill. App. 3d 539, 452 N.E.2d 100, in the case at bar and urges that we find that exhaustion of administrative remedies should not be required. We decline to do so. While the court in the Clark County Collector case refused to require the exhaustion of administrative remedies, it did so noting the complexity of the statutory provisions involved and relying on the fact that the published notice may have been inadequate. (116 Ill. App. 3d 539, 540-41, 452 N.E.2d 102-03.) Here we are not confronted by a considerable array of confusing legislation; section 108(5), the applicable statute in the instant case, expressly sets forth the procedure which must be followed before a board of review may alter an assessment. There must be notice by publication at least 20 days prior to hearing and an opportunity for interested parties to be heard. Mr. Heldebrandt was afforded an opportunity to be heard; and, as we have already stated, it is undisputed that notice was properly given in the case at bar and that Mr. Heldebrandt made no objection to the board of review before the tax assessment was established.

We note that the court in In re Application of Clark County Collector, relied on by the IAA, in determining that the tax objector should not be required to exhaust his administrative remedies, based its decision on Boylan v. Illinois Central Gulf R.R. Co. (1978), 72 Ill. 2d 387, 381 N.E.2d 276. However, it is crucial that the supreme court in Boylan indicated that there are “two separate and distinct steps in the taxing process” involved in the assessment of railroad property under the provisions of section 80 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 561). After observing that “[t]he first step is the original assessment of the property involved, and the second is the equalization of that assessment [citations],” the Boylan court stated that the supreme court had recognized that the reference to the Administrative Review Act in section 138 of the Revenue Act applies to the Department’s original assessment function and thus that assessment is exclusively reviewable under the Administrative Review Act, but that where constructive fraud is alleged, the Department’s equalization function is properly challenged in tax objection proceedings. The court in Boylan then stated that the reason for this dichotomy had been stated in certain of its earlier decisions where it had been recognized that the original assessment function was a complex procedure involving the department of revenue’s expertise and was therefore susceptible to meaningful judicial review as envisioned in the Administrative Review Act, while the equalization function was purely a mathematical operation which did not involve discretionary judgment factors, in which there would be less value in the legislature’s affording judicial review under the Administrative Review Act. See Boylan v. Illinois Central Gulf R.R. Co. (1978), 72 Ill. 2d 387, 392, 381 N.E.2d 276, 277.

We conclude that the rationale of Boylan is applicable to the case at bar and that the IAA’s reliance on In re Application of Clark County Collector is misplaced. Although the instant assessments were made under section 108 of the Revenue Act of 1939 and not the section governing the assessment of railroad property, they did in fact involve the original assessment function of the taxing body and not its equalization function. Furthermore, the original assessment function in the instant case is also a complex procedure involving the expertise of the board of review and was therefore susceptible to meaningful judicial review as envisioned by the Administrative Review Act. We conclude, therefore, that defendant was required to exhaust his administrative remedies in the case at bar and failed to do so.

We do not perceive of any compelling reason to deviate from the general rule requiring the exhaustion of administrative remedies in the instant appeal. Mr. Heldebrandt has failed to follow required administrative procedures and has deprived the board of review of any opportunity to address his allegations regarding the propriety of his tax assessment. To allow Mr. Heldebrandt to proceed directly to the circuit court would, in effect, render meaningless the statutory notice and hearing requirements set forth in section 108(5).

Moreover, even if we were to consider this appeal on the merits, we would be constrained to reverse the decision of the trial court. The evidence presented by Mr. Heldebrandt did not prove either actual or constructive fraud. Indeed, Mr. McGill, the field man for the supervisor of assessments of Montgomery County, indicated that the application of the 1.08 multiplier to the 1979 assessed value of the farmland resulted in a lower assessment than that which would have resulted had the assessment been made in full compliance with section 20e of the Revenue Act of 1939. While the increase in the assessment in this case by the use of the 1.08 multiplier may, as Mr. McGill testified, have resulted in a distortion of the graphic representation of the assessment, this fact alone does not make the assessment fraudulent. Merely because section 20e of the Revenue Act of 1939 was not technically complied with does not, in the absence of other proof, dictate the conclusion that the assessment is fraudulent either absolutely or as compared to any other taxpayer.

The judgment of the circuit court of Montgomery County is, therefore, reversed.

Reversed.

EARNS and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    ROWE CONSTRUCTION COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Catarino Villanueva- Appellant).
    Fourth District (Industrial Commission Division)
    No. 4—84—0102WC
    Opinion filed October 31, 1984.

      Law Office of Mike McElvain, and Robert E. Williams, Ltd., both of Bloomington (Mike McElvain, of counsel), for appellant.
    Alan L. Sternberg, of Pratt, Sternberg & Finegan, P.C., of Bloomington, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The claimant, Catarino Villanueva, filed a claim under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). He has appealed from the judgment of the circuit court of McLean County, which found the decision of the Industrial Commission to be against the manifest weight of the evidence and reinstated the arbitrator’s award. We reverse.

On October 8, 1979, the claimant was a 12-year general laborer in the employ of the respondent, Rowe Construction Company. He was 48 years of age, had a seventh-grade education and no specialized training. His prior work history consisted of construction, farm, and general labor work.

While at work, the claimant was holding one end of a heavy pipe. The pipe jerked when the equipment holding the other end malfunctioned. The claimant both heard a pop in his back and felt pain there. The employer arranged an appointment with Dr. Cunningham, who prescribed heat treatments. Four days later the claimant engaged the services of a chiropractor, which continued for a period of some six months. He was next seen by Dr. Gordon Schultz, and it appears that he was referred to the Carle Clinic in Urbana. On July 2, 1980, the claimant underwent a laminectomy and fusion. A neurologist, Dr. Kaufman, of the Carle Clinic performed the laminectomy, and the fusion was performed simultaneously by orthopedic surgeon Alain F. Menguy. On November 2, 1981, Dr. Menguy released the claimant to return to work.

At the May 26, 1981, hearing before the arbitrator, the claimant testified that soon after he was released by Dr. Menguy, he informed the respondent that he was available for work. He also went to his union local to seek a job. The respondent presented in evidence an April 1981 letter from Dr. Menguy which offered the opinion that the claimant had soreness of a kind tolerated by most patients and normal or near normal flexibility. Dr. Menguy opined that the claimant was employable with a 60-pound lifting limitation and that the claimant would have a permanent residual disability.

On July 30, 1981, the arbitrator entered an award of 67V2 weeks of temporary total disability and permanent total disability of 35% of the whole man under section 8(d)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)). The arbitrator determined the claimant’s average weekly wage under section 10(d) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(d)). The claimant sought review by the Industrial Commission.

Upon review on April 28, 1982, the Commission received the claimant’s additional testimony that he had pain in his legs and was unable to stand longer than approximately one hour at a time. The claimant also testified that he had sought work with the respondent and through the unemployment office and had not been employed since his injuries.

In an evidence deposition submitted to the Commission, Dr. Men-guy testified that he had examined the claimant several times since the arbitration hearing. The latest examination was in January of 1982. At that time, the claimant complained of persistent back pain and was measurably less flexible than at his April 1981 examination. Specifically, in his January 1982 examination Dr. Menguy objectively found that the claimant had markedly more limitation in his back. His extension was limited to 10 degrees. His level bend was also limited to 10 degrees on either side. When the claimant bent forward with his knees straight he experienced pain in his back when his hands only reached the upper leg level. In April 1981, on the other hand, Dr. Menguy found that the claimant had normal extension to 30 degrees and normal lateral bending. Based upon the claimant’s current complaints and the January examination, the doctor offered his opinion that the claimant was unable to work.

The respondent presented a medical report from Dr. O. H. Hoffman, who examined the claimant in March of 1982. Dr. Hoffman found that the claimant had some impairment of motion but normal mobility in some aspects. He also found no measurable neurological deficit in either lower extremity. Dr. Hoffman opined that the claimant was then able to be gainfully employed but that he should not do heavy lifting or climbing.

The respondent also presented the evidence deposition of Robert Duncanson, respondent’s general superintendent. Duncanson equivocated. He testified that he received the claimant’s work release and both that he had no knowledge of the lifting limitation and that he did not recall any such restriction. Duncanson further testified that there was available work for which the claimant could qualify, given the lifting limitation. He also testified that work was less plentiful in 1981 than in 1980. According to Duncanson, there was an unwritten agreement between the individual local contractors and the union that gave recall rights to employees who had worked for a company the previous year. He said respondent’s foremen had authority to decide which employees to call to work. He testified that he did not know whether the claimant was called back, and that to his knowledge the claimant was not called back. The record indicates that the claimant was never called back to work with the respondent after his injury.

The claimant testified before the Commission that Mr. Duncanson had told him that because of his lifting limitation it was unlikely he would be called back to work. Claimant also testified that he had looked for work at the unemployment office. The record included the claimant’s testimony before the arbitrator that he also had sought employment at his union local.

Proofs were closed on May 26, 1982. On June 30, 1982, the Commission denied the respondent’s motion to reopen. The respondent sought to admit a newspaper photograph published on May 27, 1982, in which the claimant was shown dancing.

In January of 1983, the Commission found that the claimant was totally and permanently disabled and determined the average weekly wage under section 10(e) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(e)).

The respondent sought review of the Commission’s decision in the circuit court. On June 23, 1983, the circuit court held that the decision of the Commission was against the manifest weight of the evidence. The court set aside the decision of the Commission and reinstated the award of the arbitrator. The claimant now appeals from the order of the circuit court.

The first issue on appeal is whether the Industrial Commission’s finding that the claimant is permanently and totally disabled is against the manifest weight of the evidence. The claimant contends that the findings of the Commission were not against the manifest weight of the evidence and that the circuit court improperly substituted its own interpretation of the evidence.

The Illinois Supreme Court has held that “a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists.” (E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, 361-62, 376 N.E.2d 206, 210.) The Moore court further held that, in determining whether an employee may perform any useful services, his age, training, education and experience must be taken into account. Under Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 419 N.E.2d 1159, unless he is obviously unemployable or unless he presents medical evidence to support a claim of total disability, a claimant has the burden to prove that no employment is available for a person in his circumstances. However, once the claimant establishes that he falls into the “odd-lot” category of persons who are not altogether incapacitated but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden shifts to the employer “to show that some kind of suitable work is regularly and continuously available to the claimant.” 84 Ill. 2d 538, 547, 419 N.E.2d 1159, 1163.

The claimant argues that he presented a prima facie case of total disability so that the burden shifted to the respondent to show that some kind of work is regularly and continuously available to the claimant. The claimant’s argument is made in the alternative. He argues first that he offered medical evidence to support a claim of total disability, thus shifting the burden. (Ceco Corp. v. Industrial Com. (1983), 95 Ill. 2d 278, 447 N.E.2d 842.) He argues secondly that the burden shifted when he presented evidence to establish that he fell into the “odd-lot” category of persons described in Valley Mould. We agree that the burden shifted in this case and that the respondent did not meet its burden.

The claimant correctly argues that Dr. Menguy’s January 1982 evaluation is medical evidence to support the claim of total disability. Despite the respondent’s assertion to the contrary, Dr. Menguy’s January 1982 examination of the claimant did produce objective medical evidence that the claimant’s condition had deteriorated from the condition which Dr. Menguy observed before the arbitration hearing. Specifically, Dr. Menguy reported the claimant’s marked loss of extension, level bending, and ability to bend forward.

The Commission was presented with conflicting evidence both of the claimant’s medical condition and on the availability of work for which the claimant is qualified. The Industrial Commission believed Dr. Menguy’s testimony concerning the extent of the claimant’s disability and found unpersuasive Duncanson’s testimony that there is work which the claimant can do. It is for the Commission to decide questions of fact, including the credibility of witnesses, and to choose between conflicting medical evidence. (Walden v. Industrial Com. (1983), 93 Ill. 2d 527, 445 N.E.2d 326.) The decision of the Industrial Commission was not against the manifest weight of the evidence. The circuit court therefore erred in reversing the Commission’s decision. Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464, 394 N.E.2d 397.

The second issue on appeal is whether the court improperly reinstated the arbitrator’s finding on average weekly wage. The claimant argues that the trial court improperly reinstated the arbitrator’s finding without determining that the Commission’s finding was contrary to the manifest weight of the evidence.

The arbitrator determined the claimant’s annual wage under section 10(d) of the Act, which applies to “employees in employments in which it is the custom to operate throughout the working days of the year.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(d).) The Commission found instead that the claimant’s work was seasonal and thus determined the claimant’s annual wage under section 10(e), which applies to employments “in which it is the custom to operate for a part of the whole number of working days in each year.” Ill. Rev. Stat. 1979, ch. 48, par. 138.10(e).

The Commission’s determination that the claimant’s employment was seasonal was not against the manifest weight of the evidence. The respondent’s general superintendent, Robert Duncanson, testified that “spring is a very slow start” for the respondent’s construction work. Additionally, the claimant testified before the arbitrator that during his years of employment with the respondent he worked nine to 10 months of the year. The court erred in reversing the Commission’s computation of the claimant’s average weekly wage.

Having decided that the court erroneously reversed the decision of the Commission on the existence of total disability and the average weekly wage, we need not address the claimant’s third issue of whether the court’s decision deprived the claimant of a decision from the majority of the Commission.

Lastly, we address an issue raised by the respondent. The respondent argues that the Commission abused its discretion in failing to reopen proofs to admit the respondent’s photographic evidence of the claimant dancing. The respondent requests only that we determine that he has a right to present the additional evidence on remand. Since we do not remand, we need not make any specific finding as to whether the Commission erred in failing to admit the evidence. We note, simply, that under the Act and the decision of the Commission, the respondent may bring future proceedings to show that the claimant is able to return to work and there is work available to him (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)), or that there has been a material change in the claimant’s disability (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(h)). In any future proceedings, as in the prior proceedings, it will be within the sound discretion of the Commission to admit additional evidence. Niles Police Department v. Industrial Com. (1981), 83 Ill. 2d 528, 416 N.E.2d 243.

For the reasons given, the judgment of the circuit court of McLean County is reversed and the award of the Industrial Commission of January 10,1983, is reinstated.

Judgment reversed and award reinstated.

SEIDENFELD, P.J., and McNAMARA, WEBBER, and KASSERMAN, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK BRADLEY, Defendant-Appellant.
    Fourth District
    No. 4—84—0019
    Opinion filed October 16, 1984.

      Fellheimer, Fellheimer, O’Dell & Travers, Ltd., of Pontiac (Carey J. Luckman, of counsel), for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Michael Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial, defendant Frank Bradley was convicted of indecent liberties with a child and sentenced to four years’ imprisonment. On direct appeal, this court affirmed the conviction. The only claim asserted by Bradley in that appeal was that he should be granted a new sentencing hearing because the trial court had failed to consider the alternative of periodic imprisonment. (People v. Bradley (1983), 113 Ill. App. 3d 1172 (Rule 23 order).) Leave to appeal was thereafter denied in the Illinois Supreme Court.

Bradley then filed a petition for relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.) The petition alleged that the statute under which he was convicted is unconstitutionally vague; that the trial court lacked jurisdiction because the information charging him is defective; that he was denied a prompt preliminary hearing in violation of the Illinois Constitution; and that his constitutional guaranty against being placed in jeopardy twice for the same offense was violated. Bradley also alleged that the admission of a caseworker’s testimony violated his constitutional right against self-incrimination and his right to assistance of counsel; that errors occurring at trial denied him due process of law and deprived him of a fair trial; and that the cumulative effect of the alleged errors deprived him of a fair trial. Bradley further argues that all of the above errors demonstrate that he was denied effective assistance of counsel at trial and on direct appeal of his conviction.

The circuit court found that Bradley failed to raise any issues of constitutional magnitude and that Bradley waived the alleged errors by failing to object at trial or to raise them on direct appeal. The circuit court also found that neither Bradley’s trial counsel nor appellate counsel were incompetent.

In this appeal, Bradley argues that this court should consider all of the issues raised in his petition for post-conviction relief because fundamental fairness requires that the doctrine of waiver not be applied to the substantial violations of his constitutional rights.

A post-conviction proceeding does not afford a defendant yet another opportunity for the determination of guilt or innocence, but provides a new proceeding to redress errors in the conviction which violate substantial constitutional rights. (People v. Smith (1977), 56 Ill. App. 3d 569, 371 N.E.2d 921.) The defendant is not entitled to an evidentiary hearing on his petition as a matter of right. (People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.) The petition must make a substantial showing of a violation of a constitutional right. (People v. Arbuckle (1969), 42 Ill. 2d 177, 246 N.E.2d 240.) Mere allegations that a trial error has constitutional ramifications does not elevate it to constitutional status. People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.

Where an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues decided by the court and all issues which could have been presented are deemed waived. (People v. Brown (1972), 52 Ill. 2d 227, 287 N.E.2d 663.) Only where application of the waiver doctrine would be manifestly inconsistent with fundamental fairness will waiver not be invoked in post-conviction proceedings. (People v. Adams (1972), 52 Ill. 2d 224, 287 N.E.2d 695; People v. Hamby (1965), 32 Ill. 2d 291, 205 N.E.2d 456.) The issue to be determined by this court is whether Bradley’s post-conviction petition presents a substantial showing of a denial of constitutional rights, which may not be deemed to have been waived.

Bradley argues that section 11 — 4(a)(3) of the Criminal Code of 1961, under which he was convicted for committing indecent liberties with his daughter by performing a lewd fondling, is unconstitutionally vague. (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(a)(3).) A statute is unconstitutionally vague when it fails to apprise a person of ordinary intelligence as to what conduct is prohibited. (People v. Gurell (1983), 98 Ill. 2d 194, 456 N.E.2d 18.) The constitutionality of section 11 — 4(a)(3) was upheld in People v. Polk (1973), 10 Ill. App. 3d 408, 294 N.E.2d 113. The court in Polk held that the statute provides fair notice of what conduct is proscribed. We agree and therefore find that Bradley’s contention is without merit.

Next, Bradley argues that his conviction is void because the information charging him with performing a lewd fondling does not allege the specific acts constituting the offense and thus was not sufficient either to inform him of the charge so he could prepare his defense or to prevent his being subjected to another prosecution for the same offense. We do not agree.

Couched in the language of paragraph 11 — 4(a)(3), the information charging Bradley with indecent liberties alleged that he:

“[Cjommitted the offense of Indecent Liberties with a Child in that he, a person of the age of seventeen years and upwards performed a lewd fondling on [his daughter], a child under the age of sixteen years, to wit: fourteen years of age, done with the intent to arouse or to satisfy the sexual desires of either [his daughter] or himself *** in violation of Section 11 — 4(a)(3) of Chapter 38 of the Illinois Revised Statutes.”

An indictment which charges an offense in the language of a statute is sufficient when the statute apprises the defendant with reasonable certainty of the offense charged. (People v. Patrick (1967), 38 Ill. 2d 255, 230 N.E.2d 843.) An information charging an offense of lewd fondling or touching, worded in substantially the same language as the statute, is sufficient and need not specify the particular acts constituting the crime. People v. Rogers (1926), 324 Ill. 224, 154 N.E. 909.

Bradley additionally argues that the information is void because it uses the disjunctive conjunction “or,” making it uncertain whether he was charged with committing the act with the intent to satisfy the desires of the victim or the desires of himself. Again, we disagree.

A charge which states the offense in the language of the statute and uses the disjunctive conjunction “or” is not defective where the statute does not provide a number of distinct and alternative acts which may singularly constitute the crime charged. (People v. Lewis (1973), 14 Ill. App. 3d 237, 302 N.E.2d 157.) Bradley was charged with but one act — performing a lewd fondling. Use of the disjunctive conjunction “or” in setting apart the differing mental states provided by a statute does not render a charge fatally defective. (People v. Glass (1976), 41 Ill. App. 3d 43, 353 N.E.2d 214.) Therefore, the use of “or” does not render the charge uncertain and the indictment charging Bradley is not defective.

Another issue raised by Bradley is that his constitutional right to a prompt preliminary hearing was violated. The information charging Bradley was filed on November 6, 1981. Bradley’s preliminary hearing was scheduled for November 23, 1981. On that date, the State, realizing that it had summoned the wrong caseworker, moved for a continuance. The trial court rescheduled the hearing for December 8,1981. The hearing took place on that date.

Section 7 of article I of the 1970 Illinois Constitution provides that a defendant who was not charged initially by a grand jury indictment and is held on a criminal charge punishable by imprisonment in the penitentiary must be afforded a prompt preliminary hearing to determine probable cause. Because the legislature has not provided a remedy for a violation of this section, the majority of reviewing courts, declining to fashion a remedy, have refused to dismiss the charges against the defendant. People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403; People v. Meredith (1980), 86 Ill. App. 3d 1136, 409 N.E.2d 70; People v. Anderson (1981), 92 Ill. App. 3d 849, 416 N.E.2d 78; People v. Hunt (1975), 26 Ill. App. 3d 776, 326 N.E.2d 164.

We need not determine whether Bradley’s right to a prompt preliminary hearing was violated nor need we decide what remedy is available for such a violation. Bradley’s failure to raise the issue upon direct review of his conviction waives the question. Only where fundamental fairness requires will the rule of waiver be relaxed. Under the facts of this case, the delay occasioned by the granting of the continuance did not deprive Bradley of a fair and impartial trial. Even Bradley does not claim that the delay hampered the presentation of his defense. The issue has been waived.

The following facts form the basis for Bradley’s next argument on appeal. Initially, the State charged Bradley with committing indecent liberties on November 2, 1981. Prior to trial, the trial court granted the State’s motion to add an additional count charging Bradley -with committing indecent liberties on November 3, 1981. That count, charging Bradley with committing indecent liberties on November 3, was dismissed with prejudice after the jury was impaneled. In its opening statement, the State referred to the act of lewd fondling as occurring on November 3, 1981. At one point during cross-examination, Bradley’s daughter referred to the incident as occurring on November 3, 1981. The jury was instructed that if they found Bradley committed the offense they need not find that it was committed on the date charged, November 2, 1981.

Bradley argues that the evidence, coupled with the instruction, demonstrates that the jury convicted him of committing indecent liberties on November 3, 1981, rather than on November 2, 1981. Bradley maintains that his conviction constitutes double jeopardy contrary to the prohibition of the Federal and State constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10.) We find no merit in Bradley’s contention. The purpose of the double jeopardy prohibition is to protect an individual from repeated prosecutions for the same offense and to prevent the State from subjecting the accused to the embarrassment, expense, and ordeal of successive proceedings. (People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) Based on the defendant’s right to be free from double jeopardy, the dismissal of a charge with prejudice bars subsequent prosecutions for the same offense. People v. Creek (1983), 94 Ill. 2d 526, 447 N.E.2d 330.

Bradley was not placed in jeopardy twice for the same offense. We reject Bradley’s contention that the evidence demonstrates that the offense occurred on November 3, 1981. Bradley’s daughter clearly stated that the offense occurred on November 2, 1981. The State’s remark, in opening statement, does not constitute evidence, and the jury was so instructed.

Bradley submits that his petition for post-conviction relief need only demonstrate a possibility that the jury might have found him guilty of committing the offense on November 3, 1981. Bradley’s claim, however, is based wholly upon speculation and conjecture and, as such, is not cognizable under the Post-Conviction Hearing Act.

Bradley also claims that the trial court erred in admitting into evidence certain incriminating statements made by Bradley to a caseworker. The caseworker testified that Bradley voluntarily relayed to her an incident concerning his attempt to demonstrate to his daughter why he objected to her dating boys. He instructed his daughter to put her arms around him and kiss him. He then fondled her breast. Bradley told the caseworker of the incident when she was visiting the Bradley home to follow up on the Department of Children and Family Services’ investigation.

Appended to Bradley’s petition for post-conviction relief are his affidavit and one by his wife, stating that the caseworker advised Bradley that any matters they discussed would be confidential. Bradley argues that the admission of the caseworker’s testimony violated his constitutional right against self-incrimination under the fifth amendment and his right to assistance of counsel under the sixth amendment. We do not agree.

In People v. McKean (1981), 94 Ill. App. 3d 502, 418 N.E.2d 1130, the court rejected a similar claim where the defendant argued that his constitutional right against self-incrimination was violated when a social worker to whom he had admitted incestuous acts informed the prosecuting authorities. The court in McKean held that under the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1983, ch. 23, par. 2054), the social worker was under an affirmative duty to report instances of child abuse and that no privileged communication could exist.

Similarly, we reject Bradley’s claim that his right to counsel was denied by the admission of the caseworker’s testimony. Inculpatory statements deliberately elicited from an indicted defendant, in the absence of his counsel, violate the defendant’s right to counsel under the sixth amendment and are inadmissible at trial. (Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.) The record in the present case contains no evidence that the caseworker deliberately elicited Bradley’s statement for prosecutorial purposes. Rather, the record demonstrates that Bradley freely relayed the information to the caseworker in order to effect a return of his daughter to his home. Therefore, Bradley’s right to counsel was not violated when he made the statement to the caseworker without his counsel being present.

Bradley also argues that the admission of evidence of prior similar occurrences deprived him of a fair trial. Bradley’s daughter testified that similar acts of indecent liberties had repeatedly occurred. Bradley contends that her testimony should not have been allowed.

Evidence of crimes other than the one for which the defendant is being tried is inadmissible to show the defendant’s criminal propensity. (People v. Daugherty (1983), 112 Ill. App. 3d 541, 445 N.E.2d 473.) A well-recognized exception to the rule exists, however, with respect to sexual offenses. In the prosecution of a sex-related offense, evidence of prior acts between the defendant and the complaining wifi ness is admissible to show the familiar relation of the parties and to corroborate the complaining witness’s testimony as to the act relied upon for conviction. People v. Kraus (1946), 395 Ill. 233, 69 N.E.2d 885; People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286; People v. Long (1977), 55 Ill. App. 3d 764, 370 N.E.2d 1315.

The testimony of Bradley’s daughter was admissible to show the familiar, intimate relationship existing between Bradley and his daughter and to corroborate her testimony. In addition, the evidence of other acts of indecent liberties was admissible to show Bradley’s intent regarding the crime charged. People v. McMillan (1980), 86 Ill. App. 3d 208, 407 N.E.2d 207.

Bradley additionally argues that the State’s dismissal of count II of the information charging him with committing indecent liberties on November 3, 1981, improperly informed the jury of another offense committed by Bradley. The State argues that the dismissal of that charge was a proper exercise of its discretion. We agree.

The prosecution has broad discretion to file a nolle prosequi. (People v. Mooar (1981), 92 Ill. App. 3d 852, 416 N.E.2d 81.) The prosecution’s power to nol-pros continues throughout the proceedings, until the imposition of a sentence. (People v. Baes (1981), 94 Ill. App. 3d 741, 419 N.E.2d 47.) The trial court is required to enter the nolle prosequi absent a clear abuse of the prosecutor’s discretion. (People v. Baes (1981), 94 Ill. App. 3d 741, 419 N.E.2d 47.) Only where the entry of the nolle prosequi is capricious or vexatiously repetitious will the court limit the prosecution’s power. People v. Covelli (1953), 415 Ill. 79, 112 N.E.2d 156.

Bradley does not argue that the action of the State in dismissing the charge was an abuse of discretion, but only that no apparent reason existed for the State’s delay. There is nothing in the record to demonstrate that the State’s action was capricious or vexatiously repetitious. The State clearly did not abuse its discretion in moving to nol-pros the charge against Bradley.

Bradley also argues that the trial court’s questioning of his daughter deprived him of a fair trial. Bradley asserts that the trial court assumed a prosecutorial role. The trial court may question a witness in order to clarify material issues. (People v. Palmer (1963), 27 Ill. 2d 311, 189 N.E.2d 265.) The trial court’s examination should be brief and must be conducted in a fair and impartial manner, without indicating bias or prejudice against either party. People v. Green (1959), 17 Ill. 2d 35, 160 N.E.2d 814.

A careful review of the record reveals that the questions asked by the trial court were proper and did not constitute an abuse of discretion. The questions were asked in a fair and impartial manner and did not indicate the assumption of a prosecutorial role.

Another issue raised by Bradley is whether certain remarks made by the State in closing argument deprived him of a fair trial. First, Bradley complains of the State’s opening remark in rebuttal argument advising the jury that it “considered” its ensuing argument to be a statement of fact. Next, Bradley asserts that he was prejudiced by the State’s remark that the testimony of the caseworker and Bradley’s son evidenced their belief that the alleged acts had occurred. Finally, Bradley claims that the State’s comment that the only defense was that Bradley’s daughter fabricated the incident impermissibly drew attention to Bradley’s failure to testify. The jury was instructed by the court that closing arguments not based on the evidence should be disregarded and that such arguments are not evidence. A careful examination of the record reveals that Bradley’s allegations of improper argument do not establish a substantial showing of a violation of his constitutional rights.

Next, Bradley contends that the combined effect of errors set forth in his petition for post-conviction relief deprived him of a fair trial. Since we have found all of Bradley’s claimed errors to be without merit, this contention similarly must fail.-

Bradley also argues that he was denied effective assistance of counsel. In support of this argument, Bradley contends that his trial counsel was incompetent for failing to raise the foregoing issues. In order to sustain a claim of incompetency of trial counsel, the defendant must clearly establish actual incompetence of counsel as reflected in the manner of carrying out his duties which resulted in substantial prejudice to the defendant, without which the outcome would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) The review of counsel’s competence, however, does not extend to matters involving the exercise of judgment, discretion or trial strategy. People v. Newell (1971), 48 Ill. 2d 382, 268 N.E.2d 17.

We conclude that Bradley received competent representation based upon his trial counsel’s performance throughout the proceedings. Bradley’s counsel strenuously objected to matters raised at trial, cross-examined the State witnesses, moved for a directed verdict at the close of the State’s case, gave a persuasive closing argument, moved and argued for a new trial, and called witnesses to testify in mitigation at the sentencing hearing. Moreover, there is no indication that substantial prejudice resulted to Bradley which adversely affected the outcome of his trial.

Bradley also argues that his counsel on appeal was incompetent for failing to raise the foregoing issues and for failing to raise the issue of incompetency of his trial counsel. We disagree. On appeal, counsel is not required to brief every possible issue. (Jones v. Barnes (1983),_ U.S. __, 77 L. Ed. 2d 987, 103 S. Ct. 3308.) Failure to raise an issue on appeal does not constitute incompetence unless the issue is patently meritorious. (People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25.) In view of our disposition of all of the issues raised by Bradley, the record clearly does not support Bradley’s allegations of ineffective counsel.

Finally, Bradley argues that the circuit court abused its dis- • cretion in granting the State an extension of time to file a response to his petition for post-conviction relief. We disagree. Bradley’s petition for post-conviction relief was filed on October 7, 1983. On November 2, 1983, the circuit court granted the State an extension of time to file its response until November 21, 1983. On that date, the State filed a second motion for an extension of time to respond. On November 29, 1983, the State filed its motion to dismiss Bradley’s petition.

The granting of extensions of time to answer a petition for post-conviction relief is within the trial court’s discretion. (People v. Cartee (1980), 86 Ill. App. 3d 895, 408 N.E.2d 396.) Where the defendant fails to demonstrate any prejudice resulting from the delay, a valid disposition of a petition for post-conviction relief will not be set aside merely because the State was dilatory in filing its response. People v. Farnsley (1973), 53 Ill. 2d 537, 293 N.E.2d 600.

In conclusion, Bradley’s petition for post-conviction relief presents no substantial showing of any violation of his constitutional rights. Therefore the judgment of the circuit court of Livingston County is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY LEE WILLIAMS, Defendant-Appellant.
    Fourth District
    No. 4—83—0770
    Opinion filed October 22, 1984.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

Defendant, Johnny Williams, was convicted of murder and attempted rape following a jury trial. He was sentenced to natural life imprisonment for murder and a concurrent term of 30 years’ imprisonment for attempted rape. Defendant appeals, raising 13 issues: (1) whether his arrest was illegal because there was neither consent nor exigent circumstances justifying a warrantless entry; (2) whether the trial court erred in denying defendant’s motion to suppress statements which were allegedly involuntary because he had difficulty understanding the words “murder” and “waive”; (3) whether the trial court erred in prohibiting a defense expert from giving his opinion whether defendant was intelligent enough to understand the rights waiver form; (4) whether his constitutional right to a trial by a fair and impartial jury was violated when the trial court excused for cause all prospective jurors who expressed reservations about capital punishment; (5) whether the examination of prospective jurors in accordance with the standards promulgated in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, resulted in the selection of a jury biased in favor of the prosecution; (6) whether defendant was denied his right to a fair and impartial jury because of the prosecution’s use of peremptory challenges to exclude certain blacks from the jury on the basis of race; (7) whether the State proved defendant guilty of murder beyond a reasonable doubt; (8) whether the State proved defendant guilty of attempted rape beyond a reasonable doubt; (9) whether Dr. Sheldon Rudnick was a qualified expert in bite-mark comparisons; (10) whether permitting the jury to view photographs of the murder victim was prejudicial error; (11) whether it was reversible error to refuse the defense request that the jury be given both paragraphs of the circumstantial evidence instruction; (12) whether the trial court abused its discretion in sentencing defendant to natural life imprisonment for murder; and (13) whether the trial court erred in sentencing defendant to an extended term of imprisonment for attempted rape because it was not the most serious offense of which defendant was convicted. We affirm the convictions.

Defendant was charged with five counts of murder and one count of attempted rape stemming from the April 1, 1983, beating death of an 80-year-old woman at the Holland Apartments in Danville, Illinois. At about 9:15 p.m. on April 1, 1983, Pauline Hayne saw defendant inside the Holland Apartments. The victim was sitting in a chair by the elevator door, a short distance from the defendant. Defendant was wearing a blue or red jacket. At about 10 p.m., Hayne saw defendant run out of the building toward the parking lot of the Quality Inn. Defendant was not then wearing his jacket.

A short time later Officer Calvin Showers encountered defendant 2V2 blocks away from the Holland Apartments. Defendant asked Showers for a ride home. Showers saw a large quantity of blood on the defendant’s hands, arms, and clothing. The blood “pretty much covered” the defendant’s hands and arms. The defendant was not wearing a jacket although it was cool and raining slightly. When asked about the blood, defendant said he had been in a fight but did not want to press charges. When questioned later, he was unable to state with whom he had the fight or where it had occurred. During the ride home, the defendant asked Showers, “Are you taking me to jail?” The defendant also said, “I got blood all over me, Cal Showers. I got blood all over me.”

At about 11:35 p.m., the victim was found in the basement of the Holland Apartments. The body was nude from the waist down with the exception of her pantyhose, which had been torn and pulled down to her ankles. A man’s blue and orange coat and a blue comb were found near the body.

When defendant was later picked up at his home, he was still wearing the bloody clothes. The police officers who were with the defendant on April 2 and 3 noted that he had a small cut on his right hand, that his right hand was swollen, and that there were traces of blood under his fingernails and in the cracks of his skin. At the station, defendant’s clothing was taken from him and he was given a pair of coveralls to wear. The forensic expert testified that the bloodstains on defendant’s clothing were the same type as the victim’s.

The defendant was interviewed by the police on April 2 and again on April 3. In these conversations, defendant repeatedly denied being given a ride home by Officer Showers. He also denied being near the Holland Apartments and claimed he had been in a fight with an unknown man at an unspecified location some 16 blocks from the crime scene. When confronted with the coat and comb found near the victim’s body on April 2, the defendant initially said that he had been wearing a different coat. He then admitted that the coat and comb were his. The defendant stated, however, that they had not been found near where anyone was killed.

After being confronted with Hayne’s statement that she saw him inside the building, the defendant admitted that he had seen her when he went into the apartment to visit some friends. Defendant admitted that his statement about the fight was not true and stated that he got the blood all over him when he tried to help a woman he had heard screaming in the basement. The defendant stated that he dropped her and fled when some lady yelled, “Leave that lady alone.” When asked about a bloodstain in the elevator, the defendant stated that he had dragged the woman into the elevator and had taken her to the first floor, where he left her when confronted by the unknown woman.

Defendant first contends that his arrest was illegal because there was no consent or exigent circumstances justifying a warrant-less entry. The evidence indicated that two police officers dressed in street clothes went to defendant’s apartment at about 1 a.m. on April 2. Defendant’s mother answered the door. The officers identified themselves to her, showed her their badges, and told her that they wanted to speak with the defendant. She recognized Officer Showers and invited both officers in. She pointed to the defendant, who was asleep on the couch. After defendant was awakened, the officers told him that they would like him to come with them to the station to talk with an investigator. Defendant agreed and the officers drove him to the station.

The defendant filed a pretrial motion to quash arrest and to suppress evidence seized and statements made pursuant to the arrest. The motion alleged that the arrest was illegal because it was made without a warrant and no exigent circumstances existed to excuse a warrant. The trial court, in its written order denying the motion to quash arrest and suppress evidence, stated:

“[T]he officers’ entry was consensual. Officer Showers had shortly before let the defendant off at his direction at this building and address. When he knocked he was invited in by the defendant’s mother without complaint by the defendant’s brother. Evidence indicates that the defendant’s mother may, in fact, reside in the next apartment. Legal residency is not the issue. The defendant’s mother was clearly an occupant of the premises at the time she invited the officers in, and her invitation was a valid consent to enter. This was not, therefore, a nonconsensual- entry. Consent must be voluntary, and under the totality of the circumstances, was here. Nor has the defendant under these facts adequately contested the validity of the consent voluntarily given by other occupants of the residence apartment.”

Defendant contends that the trial court erred in finding that the entry was consensual because defendant’s mother, who allegedly was not a resident of her son’s apartment, did not have authority to consent to the police officers’ entry to her son’s apartment. In People v. Taylor (1975), 31 Ill. App. 3d 576, 333 N.E.2d 41, we held that the brother of the defendant, who did not reside with the defendant and his mother, could not consent to a search of their premises. Defendant, thus, argues that Mrs. Williams did not have authority to consent because she did not live with her son.

However, Mrs. Williams gave consent to enter the premises, not consent to search as in Taylor. In People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608, the supreme court upheld a warrantless consensual entry into an apartment where the officers were admitted into defendant’s apartment by his mother. No showing was made in Bean that defendant’s mother lived at that location. Likewise, this court upheld an entry to make an arrest where permission to enter was obtained from an unidentified person inside the home. (People v. Bell (1976), 41 Ill. App. 3d 233, 355 N.E.2d 38.) Therefore, the trial court did not err in finding that Mrs. Williams had the authority to consent to the police officers’ entry into the home.

Furthermore, the State presented evidence that Mrs. Williams was in her own home when the police arrived. At trial, Mrs. Williams expressly testified that the defendant was arrested in her home on the morning of April 2. Mrs. Williams was at the apartment in question at 8:30 p.m. on April 1 when the defendant returned home from visiting a friend, at about 9 p.m. on April 1 when the defendant left, and when the defendant was returned home by Officer Showers. Mrs. Williams was still at this residence at 1 a.m. when the police arrived to pick up the defendant. She was later contacted by the police on several occasions at this residence.

The defendant next addresses the argument that exigent circumstances did not exist to allow a warrantless entry. We need not address this issue, because we have found that the entry was consensual. Defendant’s arrest was valid.

Defendant next contends that the trial court erred in denying his motion to suppress statements made by defendant. He contends that the statements were not voluntary because of the length of questioning, the conditions during questioning, and his limited intelligence. He also contends that he did not understanding^ waive his constitutional rights.

On a motion to suppress a defendant’s statements, the burden is on the prosecution to show by a preponderance of the evidence that the statements made were voluntary. (People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160; Ill. Rev. Stat. 1981, ch. 38, par. 114-ll(d).) A confession is not voluntary if a defendant’s will has been overborne at the time he confessed. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) This determination must be based on a totality of the circumstances under which the confession was given. (People v. Murdock (1977), 50 Ill. App. 3d 198, 365 N.E.2d 1301.) The reviewing court’s inquiry is limited to whether the trial court’s finding is against the manifest weight of the evidence. People v. Higgins (1972), 50 Ill. 2d 221, 278 N.E.2d 68.

The police officers went to defendant’s home at about 1 a.m. to ask him to come down to the station. He was asleep, but after he was awakened by his brother he voluntarily went with the police to the station. He was placed in an interview room, where he fell asleep. At about 7:25 a.m., he was given breakfast and the interview began.

Before the start of the interview, Lieutenant McGee read the defendant the Miranda warnings from a form and asked him to read it out loud. Defendant stated that he did not understand the use of the word “murder” on the form, explaining that he knew murder meant when someone was killed but that he had not murdered anyone. Defendant also expressed some lack of understanding about the word “waive,” and this word was explained to him. Defendant signed the rights waiver form after he finished reading each section.

Investigator Rory Steidl testified that defendant appeared to understand his rights and why he was being questioned. The defendant did not appear to be confused or disoriented. The defendant did not refuse to answer any questions, did not indicate that he wished to stop talking or speak to an attorney, and did not indicate that he was too tired or wanted to sleep. Lieutenant Edwin McGee stated that other than being fidgety, nervous, and “a little sleepy-eyed” there was nothing unusual about the defendant.

When the defendant asked to speak with his mother, the officers called her to come to the station. Questioning was discontinued until defendant’s mother arrived. Lieutenant McGee stated that he had talked to defendant for about an hour between 7 and 10 a.m. on April 2. Defendant was questioned again about 3 p.m. on April 3.

Defendant was kept in a jail cell in the interim. On April 3, the defendant’s rights were again read and explained to him and he read the rights form aloud and signed it. The defendant had no trouble reading the form and only questioned the word “murder,” stating that he knew what this was but not why he was being charged. The defendant was not confused during the conversation of April 3. The defendant stated that he understood his rights and had no questions about them.

Dr. Dallas Grant also testified at the suppression hearing. Dr. Grant is a school psychologist and had given defendant intelligence tests on three different occasions. Defendant was found to be in the Educable Mentally Handicapped (EMH) group. At the suppression hearing, Dr. Grant examined a copy of the rights waiver form and gave his opinion that the waiver form contained words above defendant’s reading level. Dr. Grant stated that his opinion was that defendant could not understand the rights waiver form, regardless of how he had been advised of his constitutional rights.

The Illinois Supreme Court has held that a mental deficiency alone is not enough to render a confession or statement involuntary, but rather it is one issue to be considered in the totality of the circumstances under which the statement was made. People v. Turner (1973), 56 Ill. 2d 201, 306 N.E.2d 27; People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466.

The trial court denied the motion to suppress statements defendant had made because he found that the statements were made voluntarily and his rights understandingly waived. The police officers who interviewed defendant and observed defendant believed that he understood his rights and voluntarily made statements to the police. The police explained the rights waiver form in terms that defendant could understand. Defendant read the form aloud and with little difficulty and signed the form. Defendant did have some difficulty with the words “murder” and “waive.” However, after the officers explained these terms to him, he expressly stated that he understood. Furthermore, defendant’s only problem with the word “murder” was that he did not understand why he was being charged with killing someone.

The manner in which a defendant answers questions can also be a factor in the totality of the circumstances test. (People v. Carpenter (1976), 38 Ill. App. 3d 435, 347 N.E.2d 781.) Defendant answered questions rationally. He contradicted himself several times in an attempt to exculpate himself. Defendant did not admit culpability. Defendant did not appear confused. He made requests to use the phone and asked for cigarettes, food, and soft drinks. These requests were honored. The officers limited the questioning of . defendant to reasonable lengths of time on separate days. It cannot be said that his will was overborne or that he did not make the statements voluntarily.

Defendant cites our opinion in People v. Devine (1974), 17 Ill. App. 3d 1053, 309 N.E.2d 76, in support of his contention that his statements were not voluntary. In Devine, this court affirmed the trial court’s suppression of certain statements and confessions. The defendant’s confessions in Devine were found to be involuntary under unique circumstances: (1) the defendant was only 13 or 15 and had a mental age of 7; (2) the defendant was questioned continuously from 7:30 p.m. to 4 a.m.; (3) no inquiry was made by the police into the defendant’s educational level prior to questioning; (4) defendant’s request to speak with his mother was not honored; (5) the defendant cried and was incoherent when speaking to the police; (6) defendant made a suicide attempt; and (7) defendant was found incompetent to stand trial because he could not understand the charge or assist his attorney. In the case at bar, the only similarity is that the defendant is of limited intelligence. His conduct and manner in answering questions showed that he understood his rights and made voluntary statements.

We find that the trial court’s denial of the motion to suppress defendant’s statements was proper.

Defendant next contends that the trial court erred in not allowing Dr. Grant to testify at trial as to his opinion of defendant’s ability to understand the rights waiver form.

At trial, Dr. Grant testified that intelligence tests which he administered to the defendant indicated that the defendant was of relatively limited intelligence. This testimony was relevant to the weight and credibility to be given defendant’s statements. The trial court had previously determined admissibility of the statements at the motion to suppress hearing. Dr. Grant was not permitted to testify as to his opinion regarding the defendant’s ability to understand the rights waiver form.

In limiting the scope of testimony, the court stated:

“I have passed on the issue of voluntariness and the jury may not redecide that issue. All you may go into is the circumstances under which the statement was made. Included in those circumstances would be evidence regarding the general I.Q. of the individual. But to allow you to go beyond that issue and attempt to litigate the issues of whether or not he understood by the use of an expert in my opinion is not permitted.”

The defendant contends that this limitation deprived him of a fair trial since that evidence was relevant to the voluntariness of his statements to the police.

The Illinois Supreme Court stated the applicable rule in People v. Cook (1965), 33 Ill. 2d 363, 369-70, 211 N.E.2d 374, 377:

“[T]he admissibility of a confession which is challenged on the ground that it is involuntary is a matter for the trial judge to determine in the first instance by a hearing out of the presence of the jury. [Citation.] If the court rules that the confession is voluntary and the confession is admitted in evidence, the defendant still has the right to present evidence to the jury which affects the credibility or weight to be given the confession.”

Under Cook, the trial court properly allowed that portion of Dr. Grant’s testimony which was relevant to the credibility of defendant’s statements. The trial court properly admitted Dr. Grant’s opinion that the defendant was of relatively limited intelligence because it was relevant to defendant’s credibility. However, the trial court properly refused to admit Dr. Grant’s testimony regarding the defendant’s ability to understand the rights waiver form. Whether or not defendant understood his Miranda rights was relevant only to the admissibility of defendant’s statements, and not the credibility of the statements. The trial court made the determination at the motion-to-suppress hearing that defendant’s statements were admissible. The defendant is not allowed to present evidence at trial relating to the admissibility of his statements once the court has determined admissibility in a motion to suppress. Because the testimony that the trial court excluded was relevant only to the admissibility of the statements, and not credibility, the court properly refused to allow Dr. Grant’s testimony about defendant’s ability to understand the rights waiver form.

Defendant argues that the trial court erred in “death-qualifying” the jury, pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. “Death-qualifying” a jury involves questioning prospective jurors during voir dire examination about their attitudes towards the death penalty. Pursuant to this process, five prospective jurors were excused for cause by the trial judge because of their attitudes against the death penalty. Defendant argues that this questioning during voir dire examination is improper because it amounts to a systematic exclusion of a legally cognizable group from jury service. However, the Illinois Supreme Court and this court have previously rejected this argument. People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346; People v. Johnson (1984), 123 Ill. App. 3d 1008, 463 N.E.2d 877.

Defendant next argues that a “death-qualified” jury is more likely to find a defendant guilty than a jury which is not questioned about their attitudes towards the death penalty. Defendant contends that he was denied his right to a fair trial. However, this court previously rejected this contention in People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 387 N.E.2d 1284.

Defendant next contends that he was deprived of a fair trial and an impartial jury by the prosecutor’s alleged use of peremptory challenges to exclude blacks from the jury based solely on race. This court is bound by the Illinois Supreme Court’s opinions in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, and People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, which expressly addressed and rejected this contention.

Defendant contends that the State did not prove beyond a reasonable doubt that he was guilty of murder. In the case at bar the State relied on circumstantial evidence. However, the burden of proof when the State relies on circumstantial evidence is the same as if the evidence is direct. It is proof beyond a reasonable doubt. People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.

At about 9:15 p.m. on April 1, 1983, the defendant was seen inside the Holland Apartments by Pauline Hayne. At that time, the victim was sitting in a chair by the elevator door, a short distance from the defendant. The defendant was wearing a blue or red jacket. At about 10 p.m., Hayne saw the defendant run out of the building towards the parking lot of the Quality Inn. At that time, the defendant was not wearing his jacket.

Defendant asked Officer Showers for a ride home. Showers saw a large quantity of blood on the defendant’s hands, arms, and clothing. The blood “pretty much covered” the defendant’s hands and arms. The defendant was not wearing a jacket. When asked about the blood, defendant said he had been in a fight but did not want to press charges. When questioned later he was unable to state whom he had the fight with or where it occurred. During the ride home, the defendant asked Showers, “Are you taking me to jail?” The defendant also said, “I got blood all over me, Cal Showers. I got blood all over me.”

At about 11:35 p.m., the body of the victim was found in the basement of the Holland Apartments. A man’s blue and orange coat and a blue comb were found near the body.

When confronted with the coat and comb found by the victim’s body on April 2, the defendant initially said that he had been wearing a different coat. He then admitted that the coat and comb were his. The defendant, however, stated that they had not been found where anyone was killed.

After being confronted with Hayne’s statement that she saw him inside the building, the defendant admitted that he saw her when he went into the apartment to visit some friends. At this point, the defendant admitted that his statement about the fight was not true and stated that he got the blood on him when he tried to help a woman he had heard screaming in the basement. The defendant stated that he dropped her and fled when some lady yelled, “Leave that lady alone.” When asked about the bloodstain in the elevator, the defendant stated that he had dragged the woman into the elevator and taken her to the first floor, where he left her when confronted by the unknown woman.

The evidence supports a finding that defendant was guilty of murder beyond a reasonable doubt. The offense occurred between 9:15 p.m. and 9:51 p.m. on April 1. The blood in the elevator and streaks leading down the corridor in the basement suggested that the initial assault had probably occurred in or by the elevator, and that the victim was taken to the basement by her assailant, where the final assault had occurred. The victim had last been seen alive sitting next to the elevator, with the defendant standing a short distance away. The defendant was' later seen running from the building and had bloodstains on his clothing of the same blood type as the victim. The defendant gave numerous inconsistent explanations for his presence at the crime scene and for the blood on his clothing. Finally, defendant’s coat was found at the scene of the crime.

Defendant claimed to have heard a scream and when he found the victim tried to help her. However, the State presented testimony that the victim had a very soft voice and could hardly be heard in normal conversation. Furthermore, defendant did not tell this story to the police initially. He told Officer Showers he had been in a fight and had blood all over him. In light of his own inconsistencies in telling the story and the other evidence, the jury was not required to believe defendant’s story. We find that the jury verdict was supported by the evidence. The State proved defendant guilty of murder beyond a reasonable doubt.

Defendant contends that he was not proved guilty beyond a reasonable doubt of the attempted rape because the evidence failed to show that he had the intent to rape the victim. In an attempted rape conviction the State must prove that defendant intended to have sexual intercourse with the victim. (People v. Stagg (1963), 29 Ill. 2d 415, 194 N.E.2d 342.) This intent may be inferred from the conduct of the defendant, the character of the assault, the acts done, and the time and place of the occurrence. People v. Oetgen (1978), 62 Ill. App. 3d 29, 378 N.E.2d 1355; People v. Hamil (1974), 20 Ill. App. 3d 901, 314 N.E.2d 251.

When the victim’s body was found, her stockings were found down at her ankles, one undergarment was found lying on her chest, and a pair of torn and bloodstained panties were found in another area of the basement. She was lying on her back with her legs and feet spread slightly apart. Vaginal and rectal swabs were taken from the body and testing revealed no semen present. The doctor that performed the autopsy stated that he found no injuries or abnormalities in his examination of the external genitalia.

The victim had been brutally attacked and dragged to an isolated place in the basement. Defendant suggests that her clothing could have been accidentally or incidently removed during the beating. However, it was her underpants and stockings which were removed. The evidence supports a finding that defendant was guilty of attempted rape beyond a reasonable doubt.

Several Illinois cases support this attempted rape conviction. In People v. Bonner (1967), 37 Ill. 2d 553, 229 N.E.2d 527, the court found that a violent assault made by the defendant on a woman, during which the victim was thrown to the ground, the defendant reached under her clothing to pull down her slip, tore her blouse, and tried to remove her skirt, was sufficient to establish attempted rape even though there had been no exposure of the genitals and no words manifesting the intent to rape. In People v. Beason (1975), 32 Ill. App. 3d 305, 336 N.E.2d 511, the court held that attempted rape was proved where the defendant was shown to have attacked a woman in a parked car, struck and choked her, pulled her into the back seat of the car, and ordered her to take off her pants, and where the victim passed out and awoke to find that her blouse had been unbuttoned and her slacks and panties pulled down. Finally, in People v. Almond (1975), 31 Ill. App. 3d 374, 333 N.E.2d 236, evidence that the defendant assaulted the victim at 1 a.m., knocked her to the ground, choked her, dragged her towards an alley, and attempted to disrobe her was found to be sufficient to establish the intent to commit rape.

In view of the evidence and cases cited, we find that the attempted rape charge was proved beyond a reasonable doubt.

Defendant next contends that the trial court erred in allowing Dr. Sheldon Rudnick to give his opinion regarding the comparison of the bite marks on the victim’s body to the defendant's mouth and teeth because Dr. Rudnick did not have sufficient experience to qualify as an expert in bite-mark comparison.

It is within the trial court’s discretion whether an individual is qualified to testify as an expert. (People v. Pappas (1978), 66 Ill. App. 3d 360, 383 N.E.2d 1190; People v. Beil (1979), 76 Ill. App. 3d 924, 395 N.E.2d 400.) This decision will not be overturned on appeal unless clearly and prejudicially erroneous. (People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528; People v. Oberlander (1969), 109 Ill. App. 2d 469, 248 N.E.2d 805.) We stated the applicable rule in Beil:

“An individual will be permitted to testify as an expert when his experience and qualifications give him knowledge which is not common to the world and where his testimony will aid the jury in reaching its determination.” People v. Beil (1979), 76 Ill. App. 3d 924, 929, 395 N.E.2d 400, 403.

Dr. Rudnick has worked in general dentistry for 19 years and has taught several classes in forensic identification, including bite-mark identification. He is deputy coroner in Champaign County and is associated with Burnham Hospital for the purpose of forensic odontology. Dr. Rudnick has received training in bite-mark comparison at respected institutions. However, he is not board-certified in the field of forensic odontology. He testified that he had only made one prior bite-mark identification. This identification involved a bite mark made in cheese. This case is his first comparison of a bite in human tissue.

Based on his qualifications, the trial court properly allowed Dr. Rudnick to testify as an expert. An expert need only have experience and knowledge which is not common to the world. (People v. Beil (1979), 76 Ill. App. 3d 924, 395 N.E.2d 400.) Dr. Rudnick had 19 years’ experience in dentistry, had taken two courses specifically in bite-mark comparison, and had taught courses on the subject. Furthermore, his testimony only went as far as his expertise. He only stated that the defendant could have made the bite mark in the victim’s arm in that some of his teeth and his dental arch did match the bite mark.

Therefore, we find that the trial court properly allowed Dr. Rudnick’s expert testimony.

Defendant next contends that he was deprived of a fair trial because the jury was allowed to examine a number of photographs of the victim’s body, including three photographs taken during the autopsy. Defendant contends that the photographs were cumulative, gory, and of no value other than to arouse the horror of the jury.

Where photographs are relevant to establish any fact in issue, they are admissible in spite of the fact that they may be gruesome. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) The trial court’s decision to admit gruesome photographs will not be reversed unless an abuse of discretion can be shown. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) In Lindgren, the supreme court upheld the introduction of two photographs of the murder victim’s body that showed the genital amputation and which were taken before the genitals were recovered from the victim’s mouth.

The photographs in the case at bar depicted the victim’s battered and bloody face and her partially unclothed body. The photographs were gory specifically because they showed the severity of the victim’s injuries. The photographs also showed the position of the victim’s body and the condition of her clothing. The photographs were relevant in showing how the murder had occurred and in showing intent to commit rape.

Three photographs were admitted which were taken during the autopsy. The State argues tfiat these were relevant to assist the jury in understanding the pathologist’s testimony and in showing the cause of death. These three photographs included a close-up of the victim’s face, a photograph of the victim’s naked body on the morgue table, and a close-up of one head wound. The photograph of the victim’s naked body shows the incisions for the autopsy.

In comparison to Lindgren, we do not believe that these photographs were so gory or gruesome that any prejudicial effect outweighed the probative value. They are gruesome because they depict a gruesome offense. We find that the trial court did not abuse its discretion in admitting these photographs, because they were relevant to show the severity of the beating and to aid in the medical testimony of the cause of death.

Defendant next contends that he was denied a fair trial because the trial court refused to give both paragraphs of the circumstantial evidence instruction to the jury, since the State’s evidence was entirely circumstantial.

The jury was given the first paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), which states:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of a defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

Defendant contends that the entire IPI Criminal No. 3.02 should have been given. The second paragraph states:

“You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

In People v. Hammers (1976), 35 Ill. App. 3d 498, 507-08, 341 N.E.2d 471, 477, we stated:

“[Cjourts of review of this State are extremely reluctant to rule that the failure to give the second paragraph of the instruction is reversible error. The committee notes are couched in terms limiting the times when it is permissible to give the second paragraph and not in terms of stating the times when that paragraph must be given. In People v. Merkel 23 Ill. App. 3d 298, 319 N.E.2d 77, it is stated:
<*** the faiiure 0f the trial court, if it were error, to give the second part of IPI-Criminal No. 3.02 does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error.’ (23 Ill. App. 3d 298, 302, 319 N.E.2d 77, 80.)”

In view of the evidence of guilt, it does not appear that the verdict resulted from the refusal to give the second paragraph of the instruction, nor does it appear that justice was denied. No reversible error.

Defendant contends that the trial court abused its discretion in imposing natural life imprisonment as sentence because there was no showing that he could not be rehabilitated.

Section 11 of article I of the 1970 Constitution (Ill. Const. 1970, art. I, sec. 11) provides that “[a]Il penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Emphasis added.) However, the Illinois Supreme Court has stated that “[tjhere is no indication that the italicized portion of section 11 is to be given greater consideration than that which establishes that the seriousness of the offense shall determine the penalty.” (People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 556-57, 301 N.E.2d 300, 302.) On appeal, it is not the function of the reviewing court to substitute its judgment for that of the trial court merely because the appellate court might have weighed the factors differently or imposed a different sentence. People v. Waud (1977), 69 Ill. 2d 588, 373 N.E.2d 1; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In the case at bar, the trial judge stated:

“I am required, if I am to do my task in an appropriate manner, particularly in this case, to balance the possibility or potential for rehabilitation against the need to protect the public by removal of you from society; and I find little in the way of potential for rehabilitation.”

We find from the trial judge’s statements that he did weigh the defendant’s rehabilitative potential in imposing sentence. The trial court also weighed the competing interest of society. We find that the trial court’s determination was not an abuse of discretion.

The trial court imposed an extended sentence of imprisonment of 30 years for attempted rape. Defendant contends that the trial court erred in imposing this sentence because the attempted rape was not the most serious offense for which he was convicted.

Section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)) provides:

“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.”

Our supreme court recently addressed this issue in the case of People v. Jordan (1984), 103 Ill. 2d 192. The court held that when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class felony for which convictions were obtained. Because we are bound by this holding, we find that it was improper to sentence defendant to an extended term for the attempted rape conviction. It is therefore necessary that we reduce the sentence on the attempted rape conviction to a term of 15 years, the maximum for a Class 1 felony, to be served concurrently with the natural life sentence on the murder conviction. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1.

For the reasons stated, we affirm defendant’s convictions and his sentence for murder and reduce his sentence on the attempted rape conviction.

Convictions affirmed; sentence for murder affirmed; sentence for attempted rape reduced.

MILLS, P.J., and GREEN, J., concur.