author: JUSTICE REINHARD JUSTICE NASH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY W. BERGMAN, Defendant-Appellant.
    Second District
    No. 82—909
    Opinion filed January 12, 1984.

      NASH, J., dissenting.
    Patrick A. Tuite and Cornelia Honchar Tuite, both of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (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, Larry W. Bergman, and a codefendant, Paul J. Basista, were charged in an information in count I with unlawful delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. SG1/^, par. 1401(a)(2)), in count II with unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2)), and in count III with unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. BG1/^, par. 1402(a)(2)), all counts alleging the same transaction in an amount of 30 grams or more of a substance containing cocaine. Basista entered a negotiated plea of guilty to count I and was sentenced to a six-year term of imprisonment. Bergman, who is the only defendant in this appeal, pleaded guilty to count I without any agreement with the State and was sentenced to a 25-year term of imprisonment and fined $200,000.

Defendant, Bergman, appeals contending his 25-year imprisonment term and fine constitute an abuse of sentencing discretion because (1) the sentence is grossly disparate with that of his codefendant, (2) the trial court compared him with defendants in totally unrelated cases rather than his codefendant, and (3) the trial court failed to make sufficient findings of record to support the sentence imposed on him and failed to balance the seriousness of the offense with his potential for rehabilitation.

On May 28, 1981, defendant and his codefendant, Basista, were arrested and charged with the delivery of 30 grams or more of cocaine alleged to have occurred on that day. On August 23, 1982, defendant entered a nonnegotiated plea of guilty to count I, unlawful delivery of more than 30 grams of a substance containing cocaine. Counts II and III were nolle prossed. The factual basis which the State proffered was that agents of the Federal, Drug Enforcement Administration (DEA) and deputies from the Du Page County sheriff’s office would testify that arrangements were made with Basista for the delivery of a pound of cocaine; that on May 28, 1981, Basista drove his car into the parking lot where the sale was to take place; that defendant was in the passenger seat and subsequently crawled over into the back seat and crouched down; that the DEA agents drove near where the vehicle was parked; that Basista got into the rear seat of the agents’ vehicle and was handed a bag containing $33,000 by the agents; that Basista told the agents that the person in his car was the one who had been sitting on the cocaine and had the package; that Agent Collins walked to the car and defendant then drove the vehicle away from the area because he observed a security guard had been watching; that defendant told Agent Collins that the package was in a tennis racket which he handed to Collins; that Collins withdrew a bag containing white powder and was told by defendant it was of good quality and was the same as samples previously received from Basista; that defendant was then arrested and stated he was not a big dealer and asked why they wanted him; and that a later laboratory analysis indicated the white powder contained 453.5 grams of a substance containing cocaine.

At defendant’s sentencing hearing on October 8, 1982, DEA agent Richard L. Ripley testified, in addition to events occurring at the time of the delivery, that he had a telephone conversation with Basista on May 26, 1981, in which Basista informed the agent that he was ready to deliver a pound of cocaine from his source who was sitting on it, and the source, in turn, had to meet another person, who was to fly in from out of town, before the deal could be consummated; that defendant was the person sitting on it; that the substance which was seized in this case was 72% pure cocaine; that one pound of 72% pure cocaine had a street value of $140,800 ($2,200 per ounce) when the substance was diluted and cut to four pounds of 18% purity, which was the average percentage of purity the agent encountered in his work; that he had received two prior samples of cocaine from Basista; that Basista was supposed to receive $3,000 for his part in the transaction; and that the agent had no personal knowledge regarding how much money, if any, defendant was going to realize as the result of this cocaine deal.

DEA agent Patricia M. Collins testified that when she entered the vehicle to procure the cocaine, the defendant told her that the cocaine was high quality, was as good as the two samples, and was all his cocaine; and that after his arrest, informed her that the cocaine was Basista’s.

The defendant testified at the sentencing hearing that he was not going to make any money as a result of the cocaine transaction and the deal was totally Basista’s; that he had used cocaine for a substantial period of time and that he made deals with various people to cut the price for himself; that Basista was a cocaine user; that he had not used cocaine since his arrest and was convinced that using cocaine was not the thing to do; and that he had never been arrested except for traffic tickets and was always gainfully employed. On cross-examination, when defendant was asked who gave him the cocaine involved in the present case, defendant paused for 30 to 45 seconds before he answered the question at the direction of the court. He replied that he received the one pound of cocaine from Bob Lidinsky; that Bob was a high school friend of his; that he hesitated in answering the question because he did not like saying anything more than he had to about it; that he called Bob to tell him that a guy (Basista) wanted to make a deal; that Bob gave him the pound of cocaine without requiring the defendant to pay for it upon receipt of the substance; that Bob gave him the cocaine without prior payment because he could trust the defendant; that Bob had given the defendant quantities of cocaine previously, and defendant had always paid Bob later; that during the course of a one-year period, Lidinsky gave him cocaine on five or 10 occasions without asking for prior payment; that Bob never offered him anything or threatened him not to reveal his name; and that this was Basista’s deal, his customers.

Following arguments of counsel, defendant was sentenced to a 25-year term of imprisonment and fined $200,000. The trial court articulated its reasons for the sentence. The court stressed the large amount of the cocaine delivered, its purity, and its ability to be cut and channeled out to individual street buyers. The court disbelieved defendant’s testimony that Basista was the moving party in the transaction, and stated Basista located the customers, but defendant had access to the source of this unusually large quantity. The trial judge also stated she did not believe defendant’s testimony that he procured the cocaine without a motive to participate in the profit. The court reasoned this was not a quantity that can reasonably be viewed as a casual delivery by a naive distributor as evidenced by defendant’s testimony that the supplier entrusted him with this quantity without collateral. The court concluded that defendant’s reliability as a transmittal agent was well-established with his supplier and he sold cocaine with a profit motive. Finally, the court stated the reason for imposing the substantial fine was to remove the profit motive.

Following imposition of the sentence, the defendant later filed a post-trial motion to vacate his conviction and a motion to reduce the sentence. Both were subsequently denied. At the hearing on the motion to reduce his sentence, it was stated that Basista was sentenced to a six-year term of imprisonment on his plea of guilty to the same offense before the same judge. The prosecutor revealed that Basista, in plea negotiations, received substantial leniency based on his willingness to cooperate in general with regard to drug enforcement and specifically with regard to the prosecution of defendant, who at the time, had not entered a plea of guilty. The prosecutor characterized defendant as the “dealer” and Basista as the contact or “straw man” in this delivery. It was represented to the court that neither man had a prior record, and presentence investigation reports for both are in this record. The salient points of both reports are that Basista is 25, defendant is 31, both are married with one child, both have employment in the past although defendant has a more steady work record, and both received generally favorable evaluations from the reporting probation officer. Upon her denial of the motion to reduce sentence, the trial judge remarked on the different involvement of the two in the cocaine transaction, the cooperation of Basista who was willing to testify against defendant, and the negotiated plea by Basista. The court also commented on how this transaction differed from other cases it had heard and reflected on the charges and sentences in several cases.

We review first defendant’s contention that the trial court erred in supporting a grossly disparate sentence on defendant by comparing him with defendants in totally unrelated cases, rather than with his codefendant, Basista. In this regard, defendant refers to comments about sentences in drug cases for other defendants in her court made by the trial judge at the post-sentencing hearing in denying his motion to reduce his sentence.

The remarks of the trial court about other prior cases before her were made at the hearing on the motion to reduce defendant’s sentence and after arguments by defendant’s counsel and the prosecutor.

It is further clear from the record of that hearing that defendant’s counsel first presented and argued the question of disparity in the defendant’s sentence with Basista’s. Subsequently, the trial judge pointed out her reasons for the difference in sentence between the two codefendants here, stressing the plea-bargained cooperation of Basista, the degree of involvement, and the quantity and purity of the cocaine in this transaction. The court then mentioned that this was a Class X felony with a mandatory minimum sentence of six years. The court then briefly reviewed three other narcotics cases in which she had imposed the mandatory minimum sentence in two, and a sentence of eight years in the other. One was a case of possession of two ounces of cocaine, one a case of delivery of two ounces of cocaine by one who received no money from the transaction, and one a case of delivery of two ounces of cocaine by one who participated in the profits of the sale. The court then reiterated the quantity and purity of the cocaine in this transaction, and the impact if it had reached the street in smaller quantities.

We conclude that the trial judge’s remarks were clearly directed to the difference in sentences it had previously imposed on defendant and Basista. The references to other defendants in separate cases appears to have been made only to illustrate that a distinction in the severity of a sentence must be made between one who delivers cocaine of high quality in a large quantity with a profit motive, such as here, from those who possess or deliver a smaller “street” quantity. In the context in which the trial judge made these comparisons, we find no error was committed.

Next, defendant contends that the trial court abused its discretion in imposing grossly disparate sentences on the two codefendants whose participation in the crime, prior records, and potential for rehabilitation were the same.

Although an arbitrary and unreasonable disparity between the sentences of codefendants who are similarly situated is impermissible, the mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. (People v. Kline (1982), 92 Ill. 2d 490, 508, 442 N.E.2d 154; People v. Godinez (1982), 91 Ill. 2d 47, 55-56, 434 N.E.2d 1121.) A disparity in sentences between codefendants will not be disturbed where it is warranted by differences in the nature and extent of the concerned defendants’ participation in the offense (People v. Godinez (1982), 91 Ill. 2d 47, 55-56, 434 N.E.2d 1121), by differences in the criminal records of the participants (People v. Kline (1982), 92 Ill. 2d 490, 508, 442 N.E.2d 154; People v. Cook (1983), 112 Ill. App. 3d 621, 623, 445 N.E.2d 824), by a defendant’s greater relative maturity (People v. DeWaele (1981), 98 Ill. App. 3d 636, 637, 424 N.E.2d 876; People v. Dimmick (1980), 90 Ill. App. 3d 136, 139, 412 N.E.2d 1150), or by a defendant’s greater rehabilitative potential. See People v. Godinez (1982), 91 Ill. 2d 47, 54, 434 N.E.2d 1121; People v. Jackson (1979), 79 Ill. App. 3d 698, 708, 398 N.E.2d 959.

Moreover, it is proper for a trial court to grant leniency in sentencing a defendant who by his plea ensured prompt and certain application of correctional measures to him, acknowledged his guilt and showed a willingness to assume responsibility for his conduct, and cooperated in the successful prosecution of other offenders. (People v. Massarella (1979), 80 Ill. App. 3d 552, 573, 400 N.E.2d 436.) It has been recognized by the United States Supreme Court that the trial court may properly take into consideration, when fixing a sentence, the defendant’s willingness or refusal to cooperate with law enforcement officials investigating criminal activity in which he was a participant. (See Roberts v. United States (1980), 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358.) In People v. Sivels (1975), 60 Ill. 2d 102, 104-05, 324 N.E.2d 422, our supreme court indicated dispositional concessions may be made to a defendant who pleads guilty, and quoted from the A.B.A. Project on Minimum Standards for Criminal Justice (Standards Relating to Pleas of Guilty sec. 1.8 (1968)), which provides that dispositional concessions may be made by a court to a defendant who pleads guilty and enumerates various considerations which are appropriate. One of those factors is “that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct.” Standards Relating to Pleas of Guilty sec. 1.8(a)(v) (1968).

In the instant case, we agree with the defendant’s contention that he and Basista had the same criminal record which was devoid of arrests or convictions, and relatively the same personal histories. There are two other significant factors relied on by the trial court, however, which must be examined to determine whether they support the disparity in sentences.

At the time sentence was imposed on defendant,' the trial judge emphasized the large amount of cocaine sold, its purity, and its street value when cut and channeled out to street buyers. The court specifically disbelieved defendant’s testimony that Basista was the moving party in the transaction, and found that Basista simply located the customer and defendant had access to the source of the unusually large quantity of cocaine. Finally, the court reasoned that defendant acted from a motive to participate in the profit and his reliability as a transmittal agent was well established with his supplier because he was entrusted with this large quantity of cocaine without collateral.

At the hearing on the motion to reduce the sentence wherein the disparity in sentences was first raised, the trial judge again pointed out her belief that there was a difference in the involvement in the transaction between Basista and defendant. While defendant argues on appeal that Basista’s role was equal to or possibly greater than defendant’s, we do not agree with that contention.

From our careful review of the record of the factual basis for the plea of guilty and the sentencing hearing, we conclude that the trial judge’s findings in that regard were warranted and supported in the record. The court disbelieved defendant’s testimony that Basista was the moving party and that defendant did not have a motive to participate in the profit. Credibility assessments are the peculiar prerogative of the trier of fact. (See People v. Kline (1982), 92 Ill. 2d 490, 505, 442 N.E.2d 154.) Where a difference exists in the roles played by defendants in a drug transaction, a valid basis is found to warrant disparate sentences for the offenders. People v. Hodges (1979), 69 Ill. App. 3d 113, 115-17, 387 N.E.2d 29; People v. Rodriguez (1978), 59 Ill. App. 3d 769, 774, 376 N.E.2d 460.

The other factor for the difference in sentences emphasized by the trial judge at the hearing on the motion to reduce the sentence was the negotiated plea by Basista and his commitment to cooperate with DEA authorities and willingness to testify against defendant. Although defendant has not furnished us with a record of the negotiated plea of guilty and sentence proceedings for Basista, it is apparent from the prosecutor’s unobjected-to comments at the hearing on the motion to reduce sentence that Basista in plea negotiations received substantial leniency in his sentence based upon his willingness to cooperate generally in drug enforcement and specifically with regard to prosecution of defendant who at the time of Basista’s promised cooperation had not entered a plea of guilty. While defendant contends that he, too, should be given some consideration in his sentence because he pleaded guilty and gave information about his supplier at the sentencing hearing, the court below could properly consider that Basista’s willingness to testify against defendant may have, in part, induced the guilty plea by defendant, and defendant’s identification of his supplier came reluctantly on cross-examination pursuant to the order of the trial court to answer the questions about his source.

For the foregoing reasons, we conclude that a disparity in the sentences between Basista and defendant was warranted. Defendant, however, also points to the great disparity in sentences as an abuse of discretion. In People v. Bares (1981), 97 Ill. App. 3d 728, 423 N.E.2d 538, we recognized that while differences in the degree of participation in the commission of the crime by codefendants and differences in their criminal record may warrant disparate sentences, an extremely disparate sentence must be reduced to be more consistent with that of an accomplice. (97 Ill. App. 3d 728, 737-38, 423 N.E.2d 538.) Although the sentence of imprisonment for defendant was approximately four times greater than that of Basista, as was the difference in sentences between the codefendants in Bares, under the particular facts present in the case at bar we do not find the court abused its discretion by imposing substantially different sentences.

It is evident that Basista’s sentence was lower than what it might have been because of his negotiated plea of guilty which included his willingness to assist in drug enforcement and also to testify against defendant. (See People v. Sivels (1975), 60 Ill. 2d 102, 324 N.E.2d 422; People v. Massarella (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436.) The trial court’s finding that there was a difference in participation between defendant and Basista in the transaction is supported by the record. Here, the trial court’s conclusion was that defendant was the one who had access to the supplier of a large quantity of very pure cocaine. It cannot be seriously contested that one who is higher up in the chain of drug trafficking deserves a greater sentence. Thus, a disparity between sentences will not be disturbed where it is warranted by differences in the nature and extent of the concerned defendants’ participation in the offense. People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121.

Under the particular facts present here, which we have carefully reviewed, we do not find the disparity in the sentences of imprisonment between Basista and defendant so severe to be an abuse of discretion. It is recognized that a court of review, in considering the appropriateness of punishment, must give great weight to the judgment of the trial court. (People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The concession in the length of Basista’s sentence of imprisonment resulting from his negotiated guilty plea and willingness to cooperate, and the significant difference in the participation in this transaction both tend to support the disparity in the two sentences. For these reasons, we find no abuse in the considerable disparity in the sentences of imprisonment.

Finally, we consider the defendant’s contention that the trial court abused its discretion when it failed to make sufficient findings of record to support defendant’s sentence and failed to balance the seriousness of the offense with the defendant’s potential for rehabilitation. This, defendant argues, resulted in an excessive sentence.

Considering first whether the court below failed to comply with section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)), which requires the trial judge to specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to her sentencing determination, we conclude that any such contention raised here for the first time on appeal, where a statement of reasons was not requested at the trial level, is waived. (People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855; People v. Baker (1983), 114 Ill. App. 3d 803, 812, 448 N.E.2d 631.) Further, it is apparent from the record that the trial judge did go into considerable detail in articulating her reasons for defendant’s lengthy sentence. However, defendant on appeal maintains that the court below failed to comment on the evidence in mitigation.

We think it is apparent from our reading of the entire record that the trial court considered factors in mitigation. Moreover, where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28, 451 N.E.2d 607; People v. Baker (1983), 114 Ill. App. 3d 803, 811-12, 448 N.E.2d 631.) Where a sentencing judge articulates factors in aggravation, as in the instant case, a court of review may assume the trial judge properly considered factors in mitigation. People v. Baker; People v. Bartik (1981), 94 Ill. App. 3d 696, 701, 418 N.E.2d 1108.

We turn next to the contention that the trial court failed to balance the seriousness of the offense with the defendant’s potential for rehabilitation which, defendant maintains, resulted in an excessive sentence. In a sentence determination, the objective of restoring the offender to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense, and the prime responsibility for striking the proper balance between these two. factors rests with the trial court. (People v. Waud (1977), 69 Ill. 2d 588, 596, 373 N.E.2d 1.) The sentencing judge is always charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) The trial court is not required to detail for the record the process by which it concluded that the penalty imposed was appropriate. (People v. La Pointe (1981), 88 Ill. 2d 482, 493, 431 N.E.2d 344.) However, where on the record before us we are unable to determine on what basis the court fixed a particular sentence, we have found an abuse of discretion by the court in not adequately balancing the seriousness of the offense with the rehabilitative potential of the defendant. People v. Rosa (1982), 111 Ill. App. 3d 384, 394-95, 444 N.E.2d 233.

It is clear from the record that the trial judge at the sentencing hearing had before her a presentence investigation report, and heard mitigating evidence from defendant and his attorney. In evaluating the defendant’s version of his participation in this offense, she chose to specifically disregard certain aspects of defendant’s testimony. Although in pronouncing her reasons for the sentence to be imposed the trial judge focused mainly on the seriousness of the crime of delivery of cocaine and the impact of such a large quantity of high quality cocaine had it reached the level of street sales, we cannot conclude that the court ignored the rehabilitation factor. While it is preferable for the trial judge to more completely discuss the statutory factors in aggravation and mitigation (see Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2) which would give a reviewing court better insight into the sentencing determination, the requirement that the court set forth its reasons in the record for a particular sentence imposed does not obligate the judge to recite, and assign a value to, each fact presented in evidence at a sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 533-34, 411 N.E.2d 9.) On this record, we are convinced that the trial judge incorporated all the information provided at the sentencing hearing, which included defendant’s rehabilitative potential, in her sentencing decision.

The defendant also raises the contention that the imposition of the 25-year imprisonment term, just five years short of the maximum sentence, and the additional imposition of the $200,000 maximum fine, are excessive, and that we should reduce this sentence pursuant to the authority of Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)).

The trial judge is normally in a better position to determine the punishment to be imposed, and his decisions in regard to sentencing are entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the task of sentencing had been ours. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) It is not the province of the reviewing court to reduce a sentence merely as an act of judicial clemency (People v. Barber (1983), 116 Ill. App. 3d 767, 779, 452 N.E.2d 725), and absent an abuse of discretion by the trial court, a sentence may not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

The 25-year term of imprisonment, although severe, was within the statutory framework of from six to 30 years’ imprisonment for this Class X felony. The trial judge was properly concerned with defendant’s role and ability to procure a large quantity of very pure cocaine and the potential harm to the many ultimate buyers had the delivery of this cocaine reached the street after being cut for street sales. Even though defendant had no prior record, the trial court sentenced defendant to a substantial term of imprisonment in view of his role as the supplier of a large amount of cocaine. See People v. Atencia (1983), 113 Ill. App. 3d 247, 254-55, 446 N.E.2d 1243; People v. Rodriguez (1978), 59 Ill. App. 3d 769, 772-73, 376 N.E.2d 460.

We observe that section 411 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1411) expressly provides that in determining the appropriate sentence for any conviction under that Act, the sentencing court may consider certain listed factors as indicative of the type of offenses which the legislature deems most damaging to the peace and welfare of the citizens of Illinois and which warrants the most severe penalties. Two of those factors deemed most damaging are applicable here, i.e.: “the unlawful delivery of the most highly toxic controlled substances, as reflected by their inclusion in Schedule I and II of this Act;” and “offenses involving unusually large quantities of controlled substances, as measured by their wholesale value at the time of the offense ***.” (See People v. Rodriguez (1978), 59 Ill. App. 3d 769, 772-73, 376 N.E.2d 460.) As a further indication of the legislative intent of the Illinois Controlled Substance Act, section 100 provides an express acknowledgement that one of its purposes is to “penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; ***.” Ill. Rev. Stat. 1979, ch. 56x/2, par. 1100; see People v. Childers (1980), 83 Ill. App. 3d 358, 360-62, 403 N.E.2d 1295.

Where the record reveals that the trial court considered all the relevant factors which the law requires prior to imposing sentence, a substantial term of imprisonment for the unlawful delivery of a large quantity of cocaine is not an abuse of discretion. (See People v. Atencia (1983), 113 Ill. App. 3d 247, 254-55, 446 N.E.2d 1243.) Under all the circumstances present here and the express legislative intent quoted above, it would be improper to substitute our judgment for the trial court even if we would have imposed a different sentence had the function been ours. We find the sentence of imprisonment not to be an abuse of sentencing discretion.

The basis given by the trial court for the imposition of a $200,000 fine was “to remove the profit motive from drug trafficking.” The statutory provision in effect at the time of the commission of this offense provides for a fine of not more than $200,000. (Ill. Rev. Stat. 1979, ch. 56x/2, par. 1401(a).) We note that after the date of this offense, and thus not applicable here, section 5 — 9—1.1 was added to the Unified Code of Corrections (Ill. Rev,. Stat. 1981, ch. 38, par. 1005 — 9—1.1). Section 5 — 9—1.1 provides for a mandatory fine to be levied by the trial court after a person has been adjudicated guilty of certain drug related offenses of “not less than the full street value of the cannabis or controlled substances seized.” (See People v. Ruff (1983), 115 Ill. App. 3d 691, 693-95, 450 N.E.2d 1369.) The testimony here was that the street value of the cocaine seized was approximately $140,800.

Since this provision requiring a mandatory fine was not law at the time of the commission of this offense, the imposition of the fine here was discretionary and the trial court had the statutory obligation in determining the amount and method of the payment of a fine to consider “the financial resources and future ability of the offender to pay the fine ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 9 — 1(c)(1).) The record does not reveal the financial resources of the defendant other than $1,000 in savings; he is no longer on bond; nor may we reasonably infer from the record what, if any, profits he may have made in the prior drug transactions testified to by him as it relates to his ability to pay the $200,000 fine. Thus, the fine is vacated and the cause is remanded for the limited purpose of conducting a hearing to determine the defendant’s ability to pay a fine, and the amount of any fine. See People v. Morrison (1983), 111 Ill. App. 3d 997, 998-99, 444 N.E.2d 1144.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed in all respects except for the imposition and the amount of a fine to be determined at a hearing on remand.

Affirmed in part; vacated and remanded in part.

VAN DEUSEN, J., concurs.

JUSTICE NASH,

dissenting:

I respectfully dissent. While I find no fault with the general analysis of the sentencing rules and considerations made by the majority, I do not agree with its conclusions that defendant’s 25-year sentence was neither excessive or unreasonably disparate from the six-year sentence of codefendant. It seems apparent the trial court gave little or no consideration to the requirement that it balance the seriousness of the offense with defendant’s potential for rehabilitation and, in my view, there are insufficient grounds in this record to support the difference in punishments imposed. Compare People v. Rosa (1982), 111 Ill. App. 3d 384; People v. Bares (1981), 97 Ill. App. 3d 728.

It is, of course, people who are sentenced, essentially based upon consideration of their good and bad conduct in the past, what they did in the present case and what they may do in the future after completion of sentence. It appears here that the trial court concentrated entirely upon the purity of the drugs involved in the offense to which defendant pleaded guilty; while that is a proper factor to take into account, it should not be considered dispositive.

I would reduce defendant’s sentence to 12 years’ imprisonment and remand for imposition of a fine.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
      In re ESTATE OF EDWARD C. CANCIK, Deceased-(Thomas S. Chuhak, guardian ad litem for Unknown Paternal and Maternal Heirs of Decedent, Petitioner-Appellee, v. First National Bank of Cicero, Ex’r of the Estate of Edward C. Cancik, et al., Respondents-Appellants).
    First District (5th Division)
    No. 83—541
    Opinion filed January 13, 1984.

      Allen S. Greene, of Wheaton, for appellants.
    Thomas S. Chuhak, guardian ad litem, of Chicago, pro se (William J. O’Connor, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Thomas Chuhak (Chuhak) filed a petition to construe a will and Charles Cancik (Charles) appeals from the order of the trial court denying his claim that he is the residuary legatee of decedent’s estate. The sole issue on appeal is the propriety of that order.

During his lifetime, Edward Cancik (testator) entered into a contract with the Woodlawn Cemetery Association (Woodlawn) whereby he paid $4,150 to the Woodlawn Trust Fund for an endowment policy for the care and maintenance of the Cancik Family Mausoleum (mausoleum). Thereafter, in September 1978, he executed a will in which he bequeathed, in clause IV, all of his personal and household effects to Charles; and then, in clause V, placed the residue of his estate into a testamentary trust, the income of which was to be used for the perpetual maintenance of the mausoleum. The First National Bank of Cicero was named executor of the will and trustee of the residuary funds. In the final clause of the will (clause VII), testator stated:

“I have intentionally omitted the names of any of my relatives from this my Last Will and Testament for reasons I deem good and sufficient with the exception of my aforesaid cousin, CHARLES E. CANCIK.”

Testator died on January 18, 1982, leaving a net estate valued at more than $200,000. His will was admitted to probate on March 5, 1982, and in May of that year Charles filed a complaint alleging that the value of the trust corpus vastly exceeded the amount necessary to accomplish its purpose and asked that the surplus be held upon a re-suiting trust for testator’s estate and distributed to him as testator’s only heir at law. Thereafter, Chuhak, acting guardian ad litem, for any unknown heirs, filed a petition to construe the will, asserting that the purpose of the trust had been accomplished by the endowment policy purchased by testator from Woodlawn; that if not set aside, the trust would generate an unlawful accumulation of income; and that the excess funds should be declared a resulting trust in favor of testator’s heirs, 12 of whom were later found to be living in Czechoslovakia. Charles then amended his complaint, requesting that the residuum of the estate be distributed to him in accordance with the intention of the testator. In the meantime, Woodlawn agreed to provide the perpetual care described in the terms of the testamentary trust upon receipt of an additional payment of $10,850.

Both parties submitted memoranda of law, and after consideration thereof, the trial court found that the residuary bequest was against public policy and invalid because of the inexhaustible residuum that would result from the investment of the trust funds; that it was, in effect, a lapsed legacy which passed as intestate property; and that clause VII of the will did not effectively disinherit testator’s other heirs or constitute an alternate residual bequest to Charles. The court then denied Charles’ claim to the residuum and ordered that it be distributed to testator’s heirs at law as provided in the statute of descent and distribution. Ill. Rev. Stat. 1981, ch. 11072, par. 2 — 1.

Opinion

Charles contends that the trial court erred in finding that the undisposed residuary estate is intestate property which must pass to testator’s heirs. He reasons that (a) since the purpose of the trust has been accomplished without depleting its assets, the surplus should be held upon a resulting trust for the estate of the testator; (b) the property must then pass under the will in accordance with the intention expressed therein; and (c) an alternate gift, by implication, of the residuary estate was made to him by the language of clause VII, wherein testator expressed his intention to disinherit all other heirs.

Initially, we note that a resulting trust, characterized as an “intent enforcing trust,” is created by operation of law (In re Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23; see Restatement (Second) of Trusts, ch. 12 (1957)) upon the failure of an express trust (Zimmerman v. Schuster (1957), 14 Ill. App. 2d 535, 145 N.E.2d 94) or where the trust purpose has been fully accomplished without exhausting the trust assets. In such situations, the beneficial interest results to the settlor or his estate (see Restatement (Second) of Trusts sec. 430 (1957)), and it then becomes necessary to determine whether he provided for its disposition in his will.

The object of testamentary construction is to ascertain the intention of the testator and, in so doing, the intention which must be given effect is that expressed in the language of the will, not one which the testator may have had in his mind but failed to express. (Bond v. Moore (1908), 236 Ill. 576, 86 N.E. 386.) Although there is a presumption against intestacy, it is only a presumption and may not be used to overcome the language of the will or to supply language which has been omitted. Thus, where the testator has overlooked a contingency for which he probably would have provided had it occurred to him, the court may not speculate as to what that provision might have been (Kenney v. Pasieka (1970), 125 Ill. App. 2d 24, 260 N.E.2d 766); rather, any property not specifically devised or bequeathed will pass under the residuary clause, but where there is no residuary provision or that clause itself has failed for some reason, the undisposed portion of the estate becomes intestate property and vests in the heirs of the testator according to their proportionate statutory shares (Griffin v. Griffin (1963), 29 Ill. 2d 354, 194 N.E.2d 641; Glaser v. Chicago Title & Trust Co. (1946), 393 Ill. 447, 66 N.E.2d 410).

Here, Charles concedes that the will contained no specific dispository provision for the unused trust funds; nevertheless, he maintains that clause VII effectively disinherits all other heirs and thus creates, by implication, an alternate residuary bequest to him as the only heir who was not excluded from participating in the distribution of the estate. We find this argument unpersuasive. First, it is well settled that heirs cannot be disinherited merely by a declaration that they are excluded from the will or that they take only a certain amount. (Tea v. Millen (1913), 257 Ill. 624, 101 N.E. 209.) The only means by which a testator can disinherit an heir is to give the property to someone else (First Trust & Savings Bank v. Olson (1933), 353 Ill. 206, 187 N.E. 282); thus, no matter how strong the intention to disinherit may be expressed in a will, the testator is presumed to know the law that where a testamentary gift fails, for whatever reason, and no alternate dispositional intention is expressed, the property passes by intestacy to the heirs at law (Strohm v. McMullen (1949), 404 Ill. 453, 89 N.E .2d 383). Furthermore, while gifts by implication have long been recognized in Illinois, our supreme court has repeatedly held:

“ ‘[They] can only be given effect in cases of such clear necessity that from the will itself no reasonable doubt of the intention can exist. Probabilities as to the testator’s intention cannot be weighed, but the implication must be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind. [Citations.] It must be such as to leave no hesitation in the mind of the court and permit no other reasonable inference. [Citation.] ***’ ” Bradshaw v. Lewis (1973), 54 Ill. 2d 304, 308, 296 N.E.2d 747, 749; see also Bond v. Moore (1908), 236 Ill. 576, 580, 86 N.E. 386, 387.

In our view, a reading of the will in its entirety, and of the language of clause VII in particular, does not give rise to an implication so strong as to leave no reasonable doubt that the testator intended Charles to inherit the entire excess residuum of his estate. It appears that his major concern was for the care and maintenance of the family mausoleum, and it was to this purpose that he directed, through clause V, the overwhelming bulk of his assets; and although he referred to Charles with a certain degree of affection, as his “beloved cousin,” the bequest to Charles in clause IV of the will consisted of only personal property of minimal value when compared to the total estate. In the light of this vastly disproportionate division of property between the trust and Charles, we cannot conclude, as Charles suggests, that he (Charles) was so favored by the overall scheme of the will as to raise an inference that clause VII evidenced testator’s intention to disinherit all other heirs; or, more importantly, that it created an alternate residuary bequest to him upon the termination or failure of the trust. As noted earlier, where a will is silent or where its provisions lend themselves to more than one interpretation, the courts may not supply gifts not found therein, and the property left undisposed then passes by intestacy to the heirs of the testator notwithstanding any attempts in the will to disinherit them.

We therefore reject Charles’ argument that the trial court improperly “transmuted” the trust funds from testate to intestate property. While we agree that the trust was not invalid from its inception and was, in fact, intended to pass as testate property, whether it is characterized as a “lapsed legacy” or a “resulting trust” is immaterial to the issue before us because, in either case, where no testamentary provision was made for its disposition, the property must pass to the heirs by the laws of intestacy.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

MEJDA, P.J., and WILSON, J, concur. .


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSEMARY COX, Defendant-Appellant.
    Third District
    No. 3—83—0021
    Opinion filed January 6, 1984.

      Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Officer, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Rosemary Cox, appeals following her conviction for murder in the circuit court of Will County. The defendant was sentenced to the minimum term of 20 years in the Department of Corrections.

On appeal the defendant presents the following allegations for review: (1) that the trial court erred in denying a motion to suppress following an arrest without a warrant; (2) the trial court erred by refusing to give defendant’s tendered instruction regarding voluntary manslaughter (provocation); (3) that the trial court’s failure to give an elements instruction which incorporated the affirmative defense of justifiable use of force, even though not tendered by defense counsel, amounted to plain error; (4) that the defendant was not proved guilty beyond a reasonable doubt; (5) that the court should exercise its power to reduce the degree of the offense from murder to manslaughter pursuant to Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)).

The evidence indicates that on October 19, 1980, the 65-year-old defendant repeatedly shot and killed her 68-year-old live-in companion, Willie Hatten, with whom she had been living for three to four years prior to the shooting. However, on the day of the shooting and for a short time prior thereto, the couple had been separated. Evidence was presented that the defendant had, as early as July 1980, told the decedent’s son, “I love your father and I’ll kill him.” The threat had been made because the decedent had not returned home the night before.

The defendant owned a .22-caliber revolver which was kept under her mattress in her apartment “for protection.” No evidence was presented which indicated that the defendant normally carried the gun with her.

On October 19, 1980, the defendant went to the front yard of the decedent’s home and an argument followed. The decedent was heard to have told the defendant that “he was going to kick her mother fucking ass.” The defendant shot at the decedent three times, and an autopsy revealed the cause of death to be a gunshot wound to the decedent’s chest. Another wound was located on the right upper arm. The decedent was intoxicated.

When the defendant arrived at the decedent’s house he was with another woman. He asked her to stay in the bedroom while he answered the door. While in the bedroom, Shirley Lanier heard an argument between the decedent and the woman later identified as the defendant. She heard the woman ask the decedent why he hadn’t taken her to the laundromat and why he had not come home the night before. The argument continued until gunshots were heard.

Shortly after the shooting, the defendant was arrested in her home without a warrant. The defendant was advised of her Miranda rights and elected to talk to the police. The defendant told them that she had waited for the decedent to return home to take her to the laundromat. When he failed to show up the defendant walked to the decedent’s house. Upon hearing a woman’s voice coming from inside the house, the defendant knocked on the door but stood away from the window so the decedent couldn’t see her. When the decedent failed to open the door the defendant broke the latch and entered the house. The decedent came out of the bedroom in his shorts. The defendant told him that she would not hurt the woman and asked him to bring her out of the bedroom. An argument followed which ended in the defendant shooting and killing Hatten.

The defendant’s first argument on appeal concerns the refusal of the trial court to suppress her statements to the police following her arrest. Specifically, the defendant contends her arrest was illegal because it occurred without either a warrant or under exigent circumstances. She does not contend that the police did not have probable cause to arrest her, however.

While the defendant is correct in that the warrantless and nonconsensual entry into a suspect’s home to make an arrest absent exigent circumstances is prohibited by the fourth amendment (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371), where the police have probable cause to arrest a defendant, they may make a warrantless arrest at the entrance to a defendant’s home after the defendant voluntarily opens the door in response to the police knocking on the door (People v. Schreiber (1982), 104 Ill. App. 3d 618, 432 N.E.2d 1316, cert. denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214; People v. Krohn (1981), 100 Ill. App. 3d 37, 426 N.E.2d 540).

The evidence taken at the suppression hearing indicated that the defendant voluntarily admitted the police to her home. We believe that based upon the evidence the trial court properly denied defendant’s motion to suppress.

Next the defendant contends that the trial court erred in refusing to give a tendered instruction regarding voluntary manslaughter (provocation).

During the trial, the defense argued that the defendant shot the decedent in self-defense. Based on such evidence, the jury was properly instructed on self-defense and voluntary manslaughter based on the unreasonable belief that the defendant’s use of force was justified.

Serious provocation recognized as sufficient to require an instruction for voluntary manslaughter based on provocation includes physical injury or assault, mutual quarrel or combat, illegal arrest and adultery with the offender’s spouse. Mere words or gestures are not adequate to mandate the instruction. (People v. Fausz (1983), 95 Ill. 2d 535, 449 N.E.2d 78; People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913.) While the trial court may believe there is sufficient evidence to support a self-defense instruction and a voluntary manslaughter instruction based upon an unreasonable belief that force was necessary, it does not follow that a voluntary manslaughter instruction based upon provocation must also be given. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) While acts of passion or a sudden desire for revenge may indicate a state of mind which would entitle a defendant to a voluntary manslaughter instruction based on provocation, if the defendant’s actions were merely defensive or motivated by fear and a desire to escape the victim, it has been held proper to refuse a voluntary manslaughter instruction based on provocation. People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295.

The critical question is whether the decedent’s conduct reached a level of serious provocation which permits the killing to be reduced to manslaughter. The provocation must be sufficient to excite an intense passion in a reasonable person. The test is objective, not subjective. (People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270.) One who initiates combat and then relies on the dispute to mitigate his offense from murder to manslaughter is not entitled to the instruction. People v. Causey (1978), 66 Ill. App. 3d 12, 383 N.E.2d 234.

We believe the evidence was overwhelming that the defendant, not the decedent, was the aggressor and under such circumstances the trial court properly refused defendant’s tendered instruction on provocation. People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.

Next the defendant claims that the failure of the trial court to give an issues instruction which included as an element the unjustifiable use of force amounts to plain error.

Our review of the record indicates that the jury was adequately instructed on the issue of self-defense, murder and voluntary manslaughter and the People’s duty to prove the defendant guilty beyond a reasonable doubt. The failure to include the proposition that the People had to prove that the defendant’s actions in shooting the decedent were without legal justification, while erroneous, did not amount to plain error under the circumstances of this case where the defendant did not object to the issues instruction given nor tender the proper issues instruction. Additionally, we believe there was no plain error here because the instructions given, in combination with the closing arguments of both attorneys, apprised the jury that the State had the burden of proving that the defendant was not justified in the force which she used. We also note that this case is not closely controverted on the facts and that fundamental fairness does not therefore require a reversal and remand for a new trial. See People v. Huckstead (1982), 91 Ill. App. 3d 536, 440 N.E.2d 1248.

Next the defendant contends that she was not proved guilty beyond a reasonable doubt.

It is well settled that a jury’s determination of guilt should not be overturned unless the evidence is so unreasonable, improbable or unsatisfactory as to create a reasonable doubt. (People v. Ware (1981), 96 Ill. App. 3d 923, 422 N.E.2d 148.) A defendant’s exculpatory testimony does not have to be believed by the trier of fact, the judge of the credibility of the witnesses. (People v. Tirrell (1980), 87 Ill. App. 3d 511, 408 N.E.2d 1202.) The deterioration of the relationship between the decedent and the defendant, the extent to which the behavior initiated the confrontation and her lack of effort to retreat or withdraw from the altercation, together with the nature of the decedent’s conduct (verbal as opposed to physical), all support the jury’s rejection of the defendant’s claim of self-defense. The defendant is 5 feet 3 inches and weighs 210 pounds. The decedent was 5 feet 4 inches and weighed only 160 pounds. (People v. Rosas (1977), 52 Ill. App. 3d 555, 367 N.E.2d 986.) In addition, defendant’s flight from the scene and her attempt to dispose of the weapon used in the shooting clearly evidence her consciousness of guilt. People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

Without restating the facts, it is clear from the evidence that the defendant planned to go to the decedent’s house, she deliberately carried a gun with her, broke into the decedent’s house, confronted her estranged man and repeatedly shot him, thereby causing his death. There was additional evidence that the idea of killing the decedent had been on the defendant’s mind for some time.

The foregoing scenario tragically but clearly supports the defendant’s conviction and sentence for murder.

We cannot, as defendant argues, reduce the degree of the offense committed out of mere “merciful benevolence.” (87 Ill. 2d R. 615(b)(3); People v. Mau (1980), 88 Ill. App. 3d 924, 411 N.E.2d 323.) While it is true that the minimum penalty for murder is harsh, the crime committed was equally, if not more, harsh. A life was taken deliberately and without cause, except perhaps jealousy. The decedent did not die as a result of and during a jealous rage, however. The evidence indicates that the thought of killing the decedent was no stranger to the defendant’s mind. The defendant had been left alone before and she resolved that she would not be left alone again. The eternal triangle, not unlike the ageless, ballad of Frankie and Johnny, appears to have claimed yet another victim from the ranks of our occasionally all too-violent society.

For the foregoing reasons, the judgment and sentence of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    BOARD OF EDUCATION, COMMUNITY UNIT SCHOOL DISTRICT NO. 207-U OF WILL AND KANKAKEE COUNTIES, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0246
    Opinion filed January 6, 1984.

      Steven Tongren, of Clinton, Tongren & Grim, of Peotone, for appellant.
    Ralph C. Murphy, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is a declaratory judgment proceeding sought to declare the rights of the parties to recover attorney fees and costs incurred in a previous lawsuit which defendant, Country Mutual Insurance Company, had refused to defend. In the first lawsuit, Papp, a school principal, sued the school district for breach of his employment contract by wrongfully discharging him. The relief sought by the complaint was reinstatement, an injunction against the School District from hiring anyone to replace Papp, mandamus and exemplary and punitive damages in the amount of $600,000. The school district contends in this declaratory action that the legal liability insurance policy issued to the school district by Country Mutual covered the Papp lawsuit and that as a result Country Mutual -was obligated to defend the Papp lawsuit. The Circuit Court of Will County disagreed and granted defendant’s motion for summary judgment dismissing the complaint.

Two issues are now before this' court. First, whether Country Mutual should have directly defended the Papp lawsuit and second, whether the attorney fees and costs of the Papp lawsuit are covered under the coverage provision of the policy. Both issues require an analysis of the coverage of the legal liability policy because the duty to defend is limited to a civil suit alleging a wrongful act which is covered under the terms of the policy.

General rules of contract construction govern the interpretation of insurance policies. If there is no ambiguity as to the policy terms, the policy must be read as any other contract according to the plain and ordinary meaning of its terms. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921.) The policy provision which defines the insurance company’s obligation to defendant states:

“II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS

With respect to such insurance as is afforded by this Policy, the company shall:

A. Defend any civil suit against the Insured or any of them, alleging a Wrongful Act which is covered under the terms of this policy ***.”

Wrongful Act is defined in the definitions section of the policy

“D. Wrongful Act means any and all of the following: actual or alleged errors, misstatement or misleading statement, act or omission or neglect or breach of duty by the Insured, individually or collectively, in the discharge of School District duties, or any matter claimed against them solely by reason of being or having been the Insured during the policy period.”

The policy provisions alone appear to cover a broad spectrum of wrongful acts. However, as this court recognized in Community Unit School District No. 5 v. Country Mutual Insurance Company (1981), 95 Ill. App. 3d 272, 419 N.E.2d 1257 a policy must not be examined in a vacuum. The court must look to the surrounding circumstances to determine the intent of the parties. Both parties admit that the policy was purchased to comply with the mandate of section 10 — 20.20 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 20.20). Therefore, we must also consider section 10 — 20.20 as it affects the coverage of the policy itself. Section 10 — 20.20 mandates that a school district provide protection and indemnity for itself and its employees “against civil rights damage claims and suits, constitutional rights damage claims and suits and death and bodily injury and property damage claims and suits, including defense thereof, when damages are sought for negligent or wrongful acts alleged to have been committed in the scope of employment or under the direction of the board.”

The statutory description of required coverage limits the type of claim considerably. Because there is no question that the Country Mutual policy was issued to comply with the statutory mandate the questionable claim must be analyzed both under section 10 — 20.20 and the applicable policy provisions. We find that Papp’s claim for breach of his employment contract was not meant to be afforded the protection of section 10 — 20.20 for two reasons. First, Papp’s claim is neither a civil rights or constitutional rights claim nor is it a personal injury or property damage claim as described in section 10 — 20.20. Second, the statute limits coverage to claims for which damages are sought. The relief sought in the Papp complaint was a writ of mandamus to order the School District to reinstate Papp, an injunction against the school district to prevent them from hiring someone to replace Papp and punitive and exemplary damages. Nowhere in the complaint did plaintiff Papp ask for compensatory damages. This court in Ladd Construction Company v. Insurance Co. of North America (1979), 29 Ill. App. 3d 43, 47, 391 N.E.2d 568, 572, found that a duty to defend must not be based upon speculation as to the inherent power of a court to award monetary damages when none are prayed for because such a holding would alter the responsibilities between the parties and obligate insurers to defend all suits regardless of the insurance policy provisions. No actual damages were prayed for and coverage for exemplary and punitive damages is specifically excluded by the policy.

For the foregoing reasons, we affirm the decision of the Circuit Court of Will County granting defendant’s motion for summary judgment and dismissing plaintiff’s complaint.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE HEIPLE,

text:
    GLORIA E. CABLE, Ex’r of the Estate of Walter A. Cable, Deceased, et al., Plaintiffs-Appellants, v. DARREL L. PERKINS et al., Defendants-Appellees.
    Third District
    No. 3—83—0291
    Opinion filed January 6, 1984.

      HEIPLE, J., dissenting.
    R. Philip Steele, of Massie and Steele, of Alpha, for appellants.
    Gary D. Nelson and Bradford B. Ingram, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a summary judgment granted by the Knox County circuit court. The plaintiff sued Darrel Perkins, who was delivering newspapers for his mother Carolyn Perkins when he collided with plaintiff’s decedent, Walter Cable. Walter Cable died of a heart attack several months after the collision with Darrel Perkins. The Galesburg Printing & Publishing Company was also made a defendant. The Knox County circuit court granted summary judgment in favor of the Galesburg Printing & Publishing Company finding as a matter of law that Carolyn Perkins was an independent contractor. Plaintiff appealed, raising as an issue whether the circuit court erred in finding as a matter of law that Perkins was an independent contractor and granting summary judgment. We affirm.

We base our decision largely.on the similarities between this case and a previous decision by this court in Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045. In Manahan v. Daily News-Tribune, this court found that a motion for summary judgment was properly granted in favor of the newspaper publisher when one of its deliverymen collided with plaintiffs while delivering newspapers. Like Carolyn Perkins, the Daily News-Tribune deliveryman had a contract with the newspaper publisher for whom he worked. The terms of the delivery contract in the Daily News-Tribune case provided that the deliveryman furnish and maintain his own equipment, maintain insurance and employ any persons necessary to carry out his job. The deliveryman did not have to follow any designated route so long as he delivered to every customer designated by the publisher. His compensation was based on the number of customers plus a flat fee, and no withholding tax or social security contributions were withheld. The newspaper also had the right to terminate the contract if the deliveryman failed to make deliveries. This court in Manahan found that the deliveryman was an independent contractor as a matter of law.

This court reasoned that if there are no genuine issues of material fact after giving consideration to pleadings, affidavits and any other evidence before the court that the trial court could draw the necessary inference from the undisputed facts and properly grant summary judgment. The facts in this case are undisputed. Carolyn Perkins and the Galesburg Publishing Company executed a delivery contract which was undisputedly adhered to by both parties. The contract provided that Perkins supply all necessary manpower, vehicles and pay all expenses regarding delivery. Perkins was paid a flat rate of $145 per week — an amount determined by the number of customers and the mileage. Perkins was to pay her own taxes and, therefore, there was nothing withheld from her weekly check. No one instructed Perkins as to how she was to make deliveries, and no one ever rode with her on her route. Either party could terminate the contract with 30 days’ notice.

It is true that customer complaints were raised through the company and not directed personally to Perkins. The route was designated by the company and deliverymen had no control over customer lists. Nevertheless we find this delivery contract nearly indistinguishable from the contract in Manahan v. Daily News-Tribune. As this court held in Manahan, the contract between the parties may be conclusive if the parties to the contract abided by its terms. (50 Ill. App. 3d 9, 14.) There is no evidence that the parties did not abide by the contract terms and, therefore, we hold that Perkins was an independent contractor as a matter of law and, therefore, that the circuit court of Knox County should be affirmed.

Judgment affirmed.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

The issue in this appeal is whether the trial court erred in granting the defendant’s, Galesburg Printing, motion for summary judgment. The determinative issue of the motion for summary judgment was whether Mrs. Perkins, a newspaper carrier for Galesburg Printing, was, as a matter of law, an independent contractor and not an employee, or servant, of Galesburg Printing. If Mrs. Perkins was an employee of Galesburg Printing, then Galesburg Printing could be liable, under the doctrine of respondeat superior, for the injuries to the plaintiff, Cable, which were caused by Mrs. Perkins’ son, Darrel, while delivering newspapers. Apparently, Galesburg Printing acquiesces in the assumption that Darrel Perkins was a qualified agent to deliver its newspapers in the stead of Mrs. Perkins. The trial court reviewed the record, found no issues of fact and ruled in favor of Galesburg Printing. The majority opinion finds the facts in this case nearly indistinguishable from the facts in Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9. Manahan affirmed a lower court’s order of summary judgment in favor of a newspaper company. The majority opinion in the instant case, likewise, affirms the lower court’s order of summary judgment in favor of a newspaper company. I dissent.

Summary judgment is inappropriate in this case for two reasons: one, there are material facts in dispute; two, taking the evidence in a light most favorable to the nonmovant, Cable, and accepting as true all reasonable inferences favoring that party, Cable presented a factual basis of an employee relationship between Perkins and Galesburg Printing which could arguably entitle him to a judgment in his favor.

A motion for summary judgment should only be granted when there is no genuine issue of fact. If the court is presented with facts with which reasonable men may disagree or facts which are subject to conflicting inferences, summary judgment should not be granted. Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9,12.

There is no absolute rule by which one can determine whether a person is an independent contractor or an employee. Nonetheless, there are six factors which form the basis of any evaluation of the issue: (1) the right to control work, (2) the manner of payment, (3) the right to discharge, (4) the skill required, (5) the furnishing of materials, and (6) whether the work performed is part of the regular business of the employer. (E.g., Westlund v. Kewanee Public Service Co. (1956), 11 Ill. App. 2d 10, 20-21.) The evidence relevant to each factor leads to a factual finding which weighs for or against the legal finding of an employee or independent contractor relationship. The factual findings, of course, are normally reserved for the trier of fact. (Donovan v. Raschke (1969), 106 Ill. App. 2d 366, 372.) The six factors need not be given equal weight. The first and second factors are generally given more weight than the other four, and the first factor is considered the most important of the first two. (E.g., Dumas v. Lloyd (1972), 6 Ill. App. 3d 1026, 1029.) It follows, then, that when the evidence can give rise to inconsistent factual findings and inferences relevant to the first and second factors, summary judgment should not be ordered and the factual issues should be presented to the trier of fact.

In the instant case, the evidence relevant to the first factor gives rise to conflicting conclusions. Galesburg Printing claims that the contract gave Perkins complete autonomy in performing her duties and that Galesburg Printing only controlled the result of Perkins’ work, which was to deliver papers to subscribers. However, Cable argues that Galesburg Printing retained the right to control the manner in which Perkins delivered the papers. For example, customers directed their complaints to Galesburg Printing, and not to Perkins, when they complained that the papers were placed on their driveways and not in their newspaper boxes. If customers requested that papers be placed in a specific location, Galesburg printing could and did instruct Perkins to so act. Whether Galesburg Printing controlled the result or manner of Perkins’ work is a fact upon which reasonable people could disagree.

Also, it is a fact that Galesburg Printing controlled the scope of Perkins’ route. She had a clearly defined territory with clearly defined customers. Perkins only controlled the order in which she delivered the papers in her territory. She could deliver papers only to those listed by the newspaper, and could not sell papers or solicit subscriptions to anyone. Control of the route and freedom to sell papers have been important facts in similar cases. Where the newspaper controlled the scope of the route and the access to subscribers, the carrier was found to be an employee. Where the carrier controlled or owned the route and had free access to subscribers, the carrier was held to be an independent contractor. Compare Cooper v. Asheville Citizen-Times Publishing Co. (1963), 258 N.C. 578, 129 S.E.2d 107, with Ross v. Post Pub. Co. (1943), 129 Conn. 564, 29 A.2d 768; Annot., 55 A.L.R.3d 1216,1233-35 (1974).

The evidence relevant to the second factor also gives rise to conflicting conclusions. On the one hand, the carrier agreement provided for a flat weekly payment which, according to a Galesburg Printing employee, was based upon the number of papers delivered plus the number of miles driven. Yet, Perkins’ weekly payment was reduced in weeks which contained newspaper holidays, and, on standard weeks, the payment remained the same even though the number of deliveries fluctuated. If these latter facts are true, then Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, which is cited as controlling authority, by the majority opinion, would be distinguishable from the instant case. In Manahan, the court found the contract was determinative of the parties’ relationship because the carrier and newspaper company acted in accordance with the terms of the agreement. In the instant case, there is a discrepancy between the carrier agreement and the actual conduct of Perkins and Galesburg Printing in the manner of payment and, as noted above, in the control over deliveries. Also, in Manahan, the carrier was paid a flat rate of $64 per week, plus an amount based upon the number of customers served. Here, Perkins apparently was paid a constant weekly sum, regardless of the number of deliveries. Reasonable people can disagree as to the facts which establish the first and second factors; for this reason alone, summary judgment was improper.

The majority opinion, in addition to failing to note the disputed factual issues, also fails to properly evaluate the facts in a light most favorable to the nonmovant, Cable. It is important to remember that, at the summary judgment stage, the plaintiff is not required to prove his case. He is only under a duty to present a factual basis which would arguably entitle him to a judgment in his favor. (Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 385.) The court must accept as true all reasonable inferences favoring the nonmovant. Southeast Village Associates, Inc. v. Health Management & Associates, Inc. (1981), 92 Ill. App. 3d 810, 811.

Cable presented sufficient evidence relevant to the first factor to support a finding that Galesburg Printing controlled the manner as well as the result of Perkins’ work, and that Galesburg Printing controlled the scope of Perkins’ route and contact with customers. As noted above, these facts suggest an employee relationship. Evidence relating to the second factor supports a conclusion that Perkins was paid a weekly sum regardless of the number of papers delivered, and had no power to sell papers. These facts distinguish Perkins from independent contractor carriers who buy newspapers at wholesale and sell them at retail to whomever they choose. (See Rathbun v. Payne (1937), 21 Cal. App. 2d 49, 68 P.2d 291; Annot., 55 A.L.R.3d 1216, 1234 (1974).) Lastly, the evidence supports the inferences that Perkins could be terminated at will, that delivering newspapers does not require a special skill, that Galesburg Printing supplied the important materials and that delivering papers is an integral part of the newspaper business. These inferences also suggest an employee relationship.

No court can reasonably say that, taking the evidence in a light most favorable to the nonmovant, Cable, and accepting as true all reasonable inferences favoring Cable, Cable has not shown that Perkins may be an employee of Galesburg Printing. Every factor weighs for a finding that Perkins was an employee. Cable presented a factual basis which would arguably entitle him to a judgment in his favor. Consequently, the order for summary judgment in favor of Galesburg Printing was improper. Therefore, I respectfully dissent.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY HAMMER, Defendant-Appellant.
    Fourth District
    No. 4—83—0327
    Opinion filed December 6, 1983.
    Modified on denial of rehearing February 8, 1984.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant was charged by information with the offense of unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1981, ch. 56V2, par. 1401.) At the time of the alleged offense, defendant was serving a sentence of probation after pleading guilty to a charge of possession of a controlled substance. On the basis of the delivery charge, the State filed a report of probation violation. After hearing evidence on the delivery offense, Judge Morthland found that the probation violation had been proved by a preponderance of the evidence. Defendant’s probation was revoked pursuant to the terms of section 5 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 6 — 4) and he was sentenced to a term of three years’ imprisonment. Defendant’s counsel then raised other matters with the court, and the State’s motion for reimbursement for the services of court-appointed counsel (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1) was heard. The court set reimbursement at $400. Defendant’s bail in this cause was ordered held to reimburse the county for said services. Defendant appeals his conviction and the recoupment order of the circuit court of Macon County. Upon motion for rehearing, we have modified our previous opinion and find as follows.

We first consider the issues raised regarding the probation revocation. Defendant contends that (1) his probation violation was not proved by a preponderance of the evidence, and (2) the controlled substance was not properly admitted into evidence.

The testimony at the hearing on the report of a probation violation may be summarized as follows. Wendell Donaldson, police informant, testified that on December 13, 1982, at approximately 11 p.m. he went to defendant’s home. There he received a small quantity of cocaine as partial payment for his proposed assistance in returning certain drugs to defendant which had been stolen from him by a third party. Donaldson personally used this cocaine.

Donaldson then called Officer Gerald Shields and arranged to make a police purchase of cocaine from defendant. He met Officer Shields at approximately 12:15 a.m., on December 14, 1982. Shields performed a pat-down search of Donaldson, checking his pockets and boots, gave him $50 to purchase cocaine and drove him to within three-quarters of a block of defendant’s residence. Defendant was not at home when Donaldson arrived but he returned approximately 15 minutes later. Donaldson testified he purchased one-half gram of cocaine packaged in a folded piece of paper from the defendant. Donaldson left defendant’s residence, walked to the location of Officer Shields’ car, turned over the cocaine, and received $50 for his work.

Donaldson said that while he was at defendant’s residence to make the cocaine purchase several other persons entered and made purchases. Donaldson acknowledged that at the time of the occurrence he had a drug habit.

Officer Shields corroborated Donaldson’s testimony on arrangements for the cocaine purchase from defendant. Shields said he searched Donaldson and found no contraband. He observed Donaldson enter defendant’s residence and later saw a white male enter the house. He watched as Donaldson later emerged from the house with a plastic bag of white powder. Donaldson did not meet anyone, stop or pick anything up on the street as he walked to the prearranged meeting location. Shields performed a field test on the substance Donaldson allegedly had purchased from defendant. He sent the remaining powder to the crime laboratory for analysis. Officer Shields testified that during the period of observation he saw only Donaldson and a white male enter the residence and saw only Donaldson leave.

John Martin, forensic scientist with' the Illinois Department of Law Enforcement, identified the powder sent for analysis in this case as cocaine." Upon questioning by the court, Martin indicated that the instruments used in identifying the substance were tested bimonthly or monthly; he could not state, however, when the instruments had been tested relative to the analysis of the substance in this case. Defendant’s counsel asked no questions about the testing of the equipment and stated that he had no objections to the receipt of the cocaine exhibit into evidence.

Defendant contends the State failed to prove a probation violation by a preponderance of the evidence since Donaldson, a narcotic user and informant, was the only witness to the alleged transaction. Defendant recites the rule that a narcotics conviction may not rest on the uncorroborated testimony of an addict-informer. The fact that a witness is both an informer and a narcotics addict has a definite bearing on his credibility, although these factors do not necessarily render him unworthy of belief. His testimony, like that of an accomplice, must be carefully scrutinized. (People v. Hill (1967), 83 Ill. App. 2d 116, 227 N.E.2d 117.) In the cases cited by defendant this standard was applied in criminal proceedings requiring the defendant to be proved guilty beyond a reasonable doubt. (People v. Porter (1973), 13 Ill. App. 3d 437, 300 N.E.2d 314; see also People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649; People v. Luckett (1977), 48 Ill. App. 3d 536, 362 N.E.2d 1297; People v. Smith (1979), 69 Ill. App. 3d 704, 388 N.E.2d 184.) This same standard does not adhere in a probation revocation proceeding. In People v. Meyer (1976), 43 Ill. App. 3d 109, 356 N.E.2d 1303, the defendant contended that the evidence at the hearing on a motion to revoke his probation was insufficient to prove a violation of probation since it was based upon the testimony of an accomplice whose reliability was strongly impeached. Defendant recited the rule that uncorroborated testimony of an accomplice shown to be unreliable is insufficient to support a conviction. This court held that that rule was only applicable when the burden is upon the State to prove the guilt beyond a reasonable doubt. We conclude that the distinction recognized in Meyer is applicable here.

In a proceeding to revoke probation, the State need prove the allegations of the petition only by a preponderance of the evidence. (People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721; Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—4(c).) A reviewing court should reverse only if the finding of the trial court is contrary to the manifest weight of the evidence. (Crowell.) The testimony of Donaldson was a direct account of the occurrence. Despite his status as an informant and narcotics user, his testimony had some weight. Moreover, his account of the occurrence was corroborated to some extent by the testimony of Officer Shields. Since there was no contrary evidence, we cannot say that the trial court’s finding was contrary to the manifest weight of the evidence.

Defendant next asserts that the trial court erred in admitting conclusions that the powdery substance in this case was cocaine without first requiring a foundation establishing that the State’s scientific instruments were tested and certified as accurate. The State argues that this contention of error has been waived. We agree. It is elemental that defendant’s objections to the sufficiency of the foundation for identification of the substance as cocaine may not be raised for the first time on appeal. People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817; see also E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 103.2 (3d ed. 1979 & 1983 Supp.).

Defendant also raises three issues concerning the propriety of the court’s disposition of the State’s motion for reimbursement for the services of court-appointed counsel: (1) Whether section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, eh. 38, par. 113 — 3.1) violates due process because it fails to provide for notice at the time the defendant posts bail or when a public defender is appointed that the defendant’s bail money may be held to reimburse the county for the public defender’s services; (2) whether the hearing afforded the defendant in this case satisfied the requirements of section 113 — 3.1; and (3) whether the trial court abused its discretion by ordering reimbursement under section 113 — 3.1 where the order was not based upon the county’s actual cost of supplying counsel but upon the arbitrary amount of $50 per hour.

The constitutional argument raised by defendant has been considered and rejected by this court in People v. Kelleher (1983), 116 Ill. App. 3d 186, 452 N.E.2d 143, and in People v. Bramlett (1983), 118 Ill. App. 3d 1056.

We next consider defendant’s argument that the hearing on the motion for reimbursement did not comport with the requirements of section 113 — 3.1(a). Defendant urges that the trial court’s consideration of his financial status at the hearing was inadequate. The statute provides as follows:

“Whenever under either Section 113 — 3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for some or all of the costs of court-appointed counsel. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113 — 3 of this Code and any other information pertaining to the defendant’s financial circumstances which may be submitted by the parties.”

The statute provides that any sum deposited as money bond with the clerk of the circuit court under section 110 — 7 of the Code may be used in the court’s discretion in whole or in part to comply with any payment order entered under section 113 — 3.1(a). (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1(a).) In this case, defendant had posted bond in the amount of $500. The record on appeal contains no affidavit of assets and liabilities. The presentencing report indicated defendant had been unemployed since January 1983. He and his wife and child were dependent on public aid. The report indicated defendant owned an automobile valued at between $400 and $500.

The State contends defendant has waived this argument because he did not object below. We agree. Defendant was present and represented by counsel when the State’s motion for reimbursement was heard. The trial judge inquired specifically whether the defendant wanted to comment on the assessment of attorney fees. The defendant answered in the negative. Where, as here, the order of reimbursement may be satisfied from the bail bond posted in the case, further inquiry into his ability to pay is:,not required. It is sufficient that defendant was afforded the opportunity to comment, which he declined.

Defendant’s final argument regarding the judgment for reimbursement is that the court abused its discretion because the order was based upon the arbitrary amoimt of $50 per hour rather than the county’s actual cost of supplying counsel. As this court stated in Bramlett reimbursement under section 113 — 3.1 must be computed with reference to the county’s cost of providing the services of the public defender rather than the value of the legal services as such. The precise formula for estimating a county’s cost in this regard will vary according to the particular circumstances and organization for the public defender’s office involved in the case. Factors to be considered in the calculation of this cost might include the office rental, salaries, books, equipment, supplies, transportation and other costs of the public defender’s office. Evidence of the county’s cost of providing the services of the public defender must be presented in some form, and the amount of reimbursement should be calculated on the basis of this evidence. Herein, defendant’s counsel indicated that he spent eight hours in representing defendant in this cause. No evidence of the county’s costs was offered. Therefore, we reverse and vacate the order for reimbursement and remand the cause for a redetermination of the appropriate amount of reimbursement.

Defendant’s conviction and sentence are affirmed; the reimbursement order is vacated and the cause remanded.

Affirmed in part, vacated in part, and remanded.

MILLS, P.J., and MILLER, J., concur.