author: JUSTICE LINDBERG

text:
      In re APPLICATION OF JACK L. ANDERSON, County Treasurer (Jack L. Anderson, County Treasurer, Applicant-Appellant, v. William Apostalakis et al., Objectors-Appellees).
    Second District
    No. 83 — 425
    Opinion filed April 17, 1984.

      Fred L. Foreman, State’s Attorney, of Waukegan (James C. Bakk, Assistant State’s Attorney, of counsel), for appellant.
    Robert John Anderson, of McKenna, Storer, Rowe, White & Farrug, of Waukegan, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an appeal from judgments in cases consolidated in the circuit court of Lake County ordering refunds to taxpayers who made payment of their 1980 real estate taxes under protest and denying the taxpayers’ request for interest on those refunds.

The central issue presented on appeal is whether the publication by the Lake County Board of Review (Board) gave proper notice to these taxpayer-objectors that their 1980 assessed valuations would be increased by the amount of the 1979 equalization factors.

William Apostalakis and certain other taxpayers in Cuba, Ela, Vernon and West Deerfield townships in Lake County paid their real estate taxes for the year 1980 under protest contending that the 1980 assessments were invalid as to their properties because no proper notice was given of an increase in their assessments due to the application of the 1979 equalization factors as adopted by the Board for the 1979 tax year. The county collector (Collector) made application for judgment against the protesting taxpayers who filed objections to the application. The objectors and the Collector each filed a motion for summary judgment. The trial court allowed the Collector’s motion, denied that of the objectors, and entered judgment for the Collector. Upon the objectors’ motion for reconsideration, the trial court vacated its earlier order and gave judgment to the objectors for the amount protested, but denied their request for interest on those refunds. The Collector appeals from this order. The objectors filed a cross-appeal from the trial court’s denial of interest on their refunds.

At the trial court level, the parties stipulated to the following facts. For the 1979 tax year, the Board published notice of “proposed” multipliers to be applied in Cuba (1.1719), Ela (1.1508), West Deerfield (1.1371) and Vernon (1.0753) townships typically as follows:

“Under powers granted to Boards of Review under section 108(5), of the Revenue Act of 1939, as amended [citation], the 1979 Lake County Board of Review contemplates the following action:
Ela Township — Raise the value of all real estate subject to taxation *** in Ela Township, by application of a factor of 1.1508 to all such property ***.”

Following a hearing on each proposed township equalization factor, the Board published final notice listing the changes in the assessment of real property for 1979. The proposed figures were adopted for Ela, Cuba, and West Deerfield townships but the Board increased the equalization factor for Vernon from 1.0753 to 1.1075.

The parties agreed that the 1980 tax year was a nonquadrennial year for the various townships. Prior to the delivery of the 1980 tax books to the township assessors, the assessed valuations for the 1979 tax year were increased by the amount of the 1979 multiplier. Further, the list published by the Lake County assessor of changes made in the 1980 assessed valuations pursuant to the requirements of section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 584) did not include the properties of these objectors. In May of 1981, the Board published notice of a proposed change in the assessment of real property for the year 1980 as modified by the 1980 equalization factor. The notice of changes published for the 1980 tax year did not include the properties of these objectors and did not contain a general statement that the assessed valuations of the objectors’ properties had been increased from the preceding year by the percentage of the 1979 equalization factor.

The sole issue presented by the Collector on appeal and to the trial court was whether the objectors had been given proper notice regarding their initial, preequalization, 1980 assessment. More specifically the question is whether the publication of the 1979 equalization factors constituted notice for their initial 1980 assessments to be set at the same value as the 1979 equalized assessment rather than the 1979 initial assessment.

Section 108(5) of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 589(5)) permits boards of review to increase, reduce or otherwise adjust the assessments of any class of property. However, no assessment shall be increased until the Board has given notice by publication to the owners of the property affected of the proposed increase and an opportunity to be heard within 20 days after the date of publication.

While personal notice of the application of equalization factors is not required by statute (Commonwealth Edison Co. v. Tucker (1980), 86 Ill. App. 3d 630, 634, 408 N.E.2d 364), the notice of hearing requirements prescribed in section 108(5) have been found to be for the benefit and protection of the taxpayers’ rights and are therefore mandatory and require strict and timely compliance. In re Application of McHenry County Collector (1980), 91 Ill. App. 3d 49, 52, 414 N.E.2d 229, citing Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 19-20, 373 N.E.2d 1332.

The issue of compliance with the notice and hearing requirements under section 108(5) was addressed by this court in In re Application of McHenry County Collector. There, protesting taxpayers objected to the application of a 1975 Board of Review equalization factor to their 1978 tax assessment. The 1975 tax year notice of the proposed increase in the equalization factor specifically stated it as being “for the tax year 1975 payable in 1976.” In 1977, the Board applied the same multipliers to the 1978 assessments. The objectors paid the resulting 1978 tax under protest contending that their assessed valuations had been increased without notice to them. The trial court gave judgment for the objectors and this court affirmed. The court found the notice misleading in referring only to the 1975 tax year of the proposed increase in the equalization factor and concluded that the increase could not be extended through the remaining years of the quadrennial period on the basis of that specific notice. Any tax resulting from the increase in assessment which had been made without complying with section 108(5), the court held, was invalid. In re Application of McHenry County Collector (1980), 91 Ill. App. 3d 49, 52-53, 414 N.E.2d 229.

A similar result obtains here. In this case the 1978 assessment was increased by the 1979 equalization factor and the resulting 1979 equalized assessment was increased by the 1980 equalization factor to arrive at the contested 1980 equalized assessment. Such stairstep escalation of the original quadrennial assessment may indeed reflect legislative intent.

We suggest however, that such intent would be recognized only by its author. For example, section 103 speaks of “a list of real estate for which assessments have been added or changed since the last preceding assessment” (emphasis added) (Ill. Rev. Stat. 1981, ch. 120, par. 584), leaving the taxpayer to guess whether that would be the most recent year’s “assessment” or “equalized assessment.” This semantical morass is hardly enhanced by a further reference in section 111 (Ill. Rev. Stat. 1981, ch. 120, par. 592) that “[tjhe assessment so completed by the board of review and certified to the county clerk, and as equalized as provided by law, shall be the assessment upon which the taxes of that year shall be extended by the county clerk.” (Emphasis added.) Without more precise definition a taxpayer could easily conclude that equalized assessments are only for the tax year for which the notices of proposed equalization (Ill. Rev. Stat. 1981, ch. 120, par. 589(5)) and changed assessments (Ill. Rev. Stat. 1981, ch. 120, par. 590) were published. In short the Revenue Act of 1939 never specifically states that the most recent equalized assessment becomes “the last preceding assessment” to which the subsequent equalization factor is applied.

The trial court’s memorandum order found that, as in In re Application of McHenry County Collector, it was far from clear from the notice published of the 1979 equalization factors that the increase in the objectors’ assessment would extend to the next tax year. It also found that a taxpayer ordinarily would not realize the possible cumulative effects of such a notice for future tax years.

While the Collector maintains that the notice of the 1979 equalization factors did not contain fortuitous misleading statements as in In re Application of McHenry County Collector, as the objectors correctly point out, that case involved an attempt by the county to utilize the same equalization factor for the remaining years of the quadrennial period. Here, as the trial court observed, the objectors’ 1980 assessments were being affected by two separate multipliers. The objectors’ 1980 assessments were increased by the amount of the 1979 equalization factors and then subject to equalization by the 1980 multipliers.

Further, it was not clear from either the 1979 or 1980 notice publications that the taxpayers’ assessed valuations were being increased each year during a quadrennial period by the application of the previous year’s equalization factors and the current tax year’s equalization factors. The Collector’s argument is without merit wherein he contends that as the objectors’ 1980 assessed value was the same as their 1979 equalized value there was no “change” in the objectors’ assessment such that they would have been entitled to additional notice for the 1980 tax year. Accordingly, a fair reading of the statute as presently drafted provides that the objectors were entitled to notice by publication due to a change in their 1980 assessment resulting from the application of the 1979 equalization factor. (Ill. Rev. Stat. 1981, ch. 120, par. 589(5).) The fact that the Board has no authority to make a change or modification in assessments during a quadrennial period for one year only (People ex rel. Carr v. Keogh (1922), 306 Ill. 323, 137 N.E.2d 816; People ex rel. Carr v. Chicago Dock & Canal Co. (1923), 306 Ill. 399, 138 N.E. 214), as the Collector notes, is not relevant to the issue here. In Keogh and Chicago Dock, it was held that once the level of assessment was ultimately determined for a quadrennial period, such assessment must remain constant for the remaining years of the quadrennial period. Any change in the assessment during this time must be done in the specific manner prescribed by the act. Consequently, Keogh and Chicago Dock support the objectors’ contention that as the 1980 assessed valuation was increased over the previous year, without proper notice, the 1980 assessment was invalid. Accordingly, the trial court did not err in granting the objectors’ motion for summary judgment.

Finally, regarding the refund due to the Vernon township objectors, as the Board failed to give proper notice to the objectors as to an increase in their 1980 assessments before 1980 equalization, the trial court properly reduced the amount of tax for the various townships, included Vernon, by the amount of the 1979 multipliers (In re Application of McHenry County Collector (1980), 91 Ill. App. 3d 49, 414 N.E.2d 229), and we need not consider the issue the Collector raises as to whether the refunds awarded to the Vernon township objectors should be limited to the difference between the proposed and applied 1979 multiplier.

The objectors cross-appeal from the trial court’s denial of their request for interest on the ordered tax refunds. The objectors argue that they are entitled to interest on their refunds under section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 675).

The legislature has recently amended section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 675), effective January 1, 1982, to provide for the payment of interest in cases of refunded real property taxes paid under protest. The amendment reads:

“Such amounts paid under protest and withheld from distribution shall be deposited by the collector in interest bearing accounts. If the final order of a court on the protest results in a payment to the taxpayer of all or a part of the taxes paid under protest and withheld, all or a proportional share of such interest earned during the pendency of the protest by the amount repaid to the taxpayers shall also be paid to the taxpayer. If the final order of a court on the protest results in a payment to the taxing districts of all or a part of the taxes paid under protest and withheld, the interest earned during the pendency of the protests by such taxes paid to the taxing districts shall be paid into the county treasury.”

The trial court held that as the objectors’ payment under protest accompanying their tax payments in the spring and fall of 1981 occurred prior to the effective date of the amendment, the objectors were not entitled to interest on the ordered refunds. The objectors on appeal argue that the event triggering section 194 is not when the notice of appeal is filed, but rather when the objection is filed in the circuit court after the payment of taxes under protest. As the objectors filed their objections in the circuit court to the Collector’s application for judgment on January 19, 1982, after the effective date of the statute, the objectors maintain that section 194 entitles them to interest earned on the protested taxes. The objectors maintain to hold otherwise would defeat the intention of the amendment, which is to ensure that taxpayers paying taxes under protest would receive interest on the amount so protested. See Rosewell v. LaSalle National Bank (1981), 450 U.S. 503, 67 L. Ed. 2d 464, 101 S. Ct. 1221; Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 449 N.E.2d 65.

In construing a statute, the language should be given its plain and ordinary meaning. (City of East Peoria v. Group Fire Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492.) The amendment to section 194 provides the mechanism for taxpayers to object to the assessment of taxes. In order to obtain a tax refund under section 194, prepayment of real estate taxes under protest is a mandatory condition precedent to the filing of any objection to a tax assessment. (People v. Hagerty (1982), 104 Ill. App. 3d 240, 244, 432 N.E.2d 908; In re Application of Rosewell (1979), 78 Ill. App. 3d 769, 773, 397 N.E.2d 232; see Ill. Rev. Stat. 1981, eh. 120, par. 716.) Thus, applying the clear and ordinary meaning of the statute, it is the filing of notice of protest accompanied by the payment of taxes that invokes the application of section 194 which would entitle the objectors to interest on the taxes withheld since the payment under protest. Accordingly, as the objectors’ protests were filed prior to the effective date of the amendment to section 194, the trial court properly denied the objectors’ request for interest on the ordered refunds.

The judgment of the circuit court of Lake County granting the objectors’ motion for summary judgment and denying the objectors’ request for interest on the ordered tax refunds is affirmed.

Affirmed.

NASH and HOPE, JJ., concur.

      Section 108 was recently amended, adding inter alia, section 108d (Ill. Rev. Stat. 1983, ch. 120, par. 589.4), to require personal notice to taxpayers when boards of review equalize assessments pursuant to section 108(5). However, as this amendment did not become effective until January 1,1984, it is not relevant to this appeal.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIZABETH MORGAN PADEN, Defendant-Appellant.
    Second District
    No. 82 — 914
    Opinion filed April 13, 1984.

      A.F. Mannina, of Downers Grove, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Elizabeth Paden, was charged in a two-count information with the offenses of attempt (armed robbery) (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A— 2). Both counts alleged the same act: on February 18, 1982, defendant, while armed with a dangerous weapon, a gun, “demanded property, being a purse and money from the person and presence of Valerie Dziak, by threatening the imminent use of force.” Count I charged defendant with attempt (armed robbery) in that she, with the intent to commit the offense of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)), performed a substantial step toward the commission of that offense. Count II charged defendant with armed violence in that she, while armed with a dangerous weapon, a gun, committed the offense of attempt (robbery) (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)) in that she, with the intent to commit the offense of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a)), performed a substantial step toward the commission of that offense.

The cause proceeded to jury trial on October 5, 1982. Verdict forms offered by the State, including one for the offense of attempt (robbery), went to the jury with no objection from defendant. The jury returned three verdict forms: (1) guilty of attempt (robbery); (2) guilty of attempt (armed robbery); and (3) guilty of armed violence.

On November 23, 1982, the trial court sentenced defendant to the minimum term of six years in the Department of Corrections for the offense of armed violence. The defendant filed a timely notice of appeal from that sentence.

On appeal defendant contends that her sentence for armed violence was improper and should be vacated and the matter remanded to the trial court for sentencing for the offense of attempt (armed robbery).

Distilled to its essence, defendant’s argument appears to be that she could be subject to either of two disparate punishments for the exact same conduct in violation of due process. Specifically, she argues that her attempted robbery of Valerie Dziak by the use of a gun is punishable as a Class I felony when sentence is imposed for attempt (armed robbery) and as a Class X felony when sentence is imposed for armed violence predicated on robbery while armed with a gun and that there is no constitutional rationale or guideline for the sentencing court to mete out one punishment over the other. Therefore, it is defendant’s contention that her constitutional assurances of proportionate penalties and due process have been violated.

The State initially argues that defendant has waived this point on appeal. Even though the waiver rule applies to constitutional questions as well as other issues, the matters sought to be raised here affected defendant’s substantial rights, and, pursuant to Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), may be noticed although not brought to the attention of the trial court. People v. Pickett (1973), 54 Ill. 2d 280, 282.

Turning to the merits of defendant’s appeal, defendant relies in the main on the recent supreme court case of People v. Wisslead (1983), 94 Ill. 2d 190. In Wisslead the defendant was charged with committing the offense of unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3(a)) and the offense of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) based on the underlying felony of unlawful restraint. The criminal information alleged that on March 31, 1981, Wisslead, while armed with a revolver, detained his estranged wife without legal authority. Our supreme court affirmed the trial court holding that the armed violence statute as applied to the unlawful restraint statute was unconstitutional in that “ ‘the statutory scheme of penalties is arbitrary, capricious, and not reasonably related to the seriousness of the offense’ classified under article 10 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 1 through 10 — 5 (kidnaping and related offenses)).” People v. Wisslead (1983), 94 Ill. 2d 190,192.

In doing so, the supreme court observed that the armed violence statute provides that it is applicable when a defendant commits “any felony defined by Illinois law,” but the court went on to note that in People v. Haron (1981), 85 Ill. 2d 261, 278, the court had concluded that armed violence could be based only on “ ‘a predicate offense which is a felony without enhancement by the presence of a weapon.’ ” (People v. Wisslead (1983), 94 Ill. 2d 190, 193.) The presence of the weapon is not an element of the felony offense of unlawful restraint, and in People v. Jones (1981), 93 Ill. App. 3d 475, it was held that unlawful restraint could serve as the underlying offense to a charge of armed violence.

Similarly, in the instant case, defendant was charged with armed violence predicated on attempt (robbery) while armed with a gun. The presence of a weapon is not an element of the felony offense of attempt (robbery), and it thus appears that the crime may serve as the underlying offense to a charge of armed violence. In charging defendant in this manner, the prosecutor here avoided the controversy as to whether attempt (armed robbery) could serve as the predicate felony for armed violence, since the presence of the gun elevated attempt (robbery) to attempt (armed robbery) which would constitute, according to some authority, impermissible double enhancement. Compare People v. Del Percio (1983), 118 Ill. App. 3d 539; People v. Goodman (1982), 109 Ill. App. 3d 203, with People v. Lucien (1982), 109 Ill. App. 3d 412, cert. denied (1983), 459 U.S. 1219, 75 L. Ed. 2d 459, 103 S. Ct. 1223; People v. Del Percio (1983), 118 Ill. App. 3d 539 (Nash, J., dissenting).

However, the supreme court in Wisslead went on to point out, the argument being made in that case was not considered in People v. Jones (1981), 93 Ill. App. 3d 475, which held that unlawful restraint could be the predicate felony for armed violence. The supreme court then found the involved statutory scheme of penalties arbitrary and capricious on two bases: (1) the sentences which may be imposed for the offense of armed violence based on unlawful restraint with a Category I weapon and for the more serious offense of aggravated kidnaping are unconstitutionally disproportionate; and (2) the sentencing scheme violates the constitutional assurances of proportionate penalties and due process, since the penalty for the Class 2 offense of forcible detention is less than that for armed violence based on unlawful restraint though another element is added to those of the latter, a lesser-included offense, to constitute forcible detention. People v. Wisslead (1983), 94 Ill. 2d 190, 194-97.

Defendant would apply the holding and rationale in Wisslead to this case because attempt (armed robbery) is a Class 1 felony while armed violence predicated on attempt (robbery) while armed with a gun is a Class X offense. According to defendant, this gives rise to a disparity between the armed violence statute and the attempt statute, which reduces the sentence for the inchoate offense of attempt (armed robbery) from the Class X penalty for armed robbery to a Class 1 felony, and makes apparent a serious question of disproportionate sentences and due process. A close examination of Wisslead, though, shows that it is not applicable to this case on either of the two bases upon which the holding in that case rests.

In Wisslead, the supreme court first compared the two unenhanced crimes of unlawful restraint and kidnaping, which are, under the Criminal Code of 1961, related offenses (Ill. Rev. Stat. 1981, ch. 38, pars. 10 — 3, 10 — 1). Considering the conduct and penalty for each respective offense, the court observed that unlawful restraint is a less serious crime than kidnaping. When one adds the element of the presence of a Category I weapon, such as a gun, to those required for unlawful restraint and to those required for kidnaping, the offenses may be prosecuted as armed violence based on unlawful restraint and aggravated kidnaping respectively. Incongruously, however, where aggravated kidnaping is charged, the lesser offense of unlawful restraint becomes a graver offense than kidnaping because armed violence predicated on unlawful restraint with a Category I weapon is a Class X felony, whereas aggravated kidnaping is only a Class 1 felony, a lesser offense. The Illinois constitutional provisions for due process and proportionate sentences are violated because the penalty prescribed for the more serious offense of aggravated kidnaping is not as great or greater than the penalty prescribed for the less serious offense of unlawful restraint when enhanced by a gun so as to constitute the predicate felony for a charge of armed violence. People v. Wisslead (1983), 94 Ill. 2d 190,195-96.

In the present case, there is no related unenhanced offense under the Criminal Code of 1961 with which the effect of enhancing the offense of attempt (robbery) by the presence of a gun could be compared as was done in Wisslead regarding unlawful restraint and kidnaping. The incongruous result and unconstitutionally disproportionate sentences in Wisslead are, therefore, not possible where, as here, a robbery offense is involved. Stated differently, this is not a case where conduct comprising a less serious offense is subject to a graver penalty than that imposed for conduct comprising a more serious offense where each offense is enhanced by the identical additional element, a gun.

The second basis for the Wisslead holding concerns a comparison of the unlawful restraint statute with the forcible detention statute. (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 3, 10 — 4.) The court found that a comparison of the definitions of the two offenses showed unlawful restraint to be a lesser-included offense of forcible detention. “A lesser included offense is one which is established by ‘less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.’ (See Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9(a).)” (People v. Wisslead (1983), 94 Ill. 2d 190, 196-97.) The court found that commission of unlawful restraint while armed with a Category I weapon is a Class X felony but that, remarkably and incongruously, when the element of the holding of a hostage is added to that offense the offense becomes, by definition, that of forcible detention which is a Class 2 felony. According to the supreme court, this sentencing scheme violates the constitutional assurances of proportionate penalties and due process since the penalty for a Class 2 offense, forcible detention, is less than that for armed violence based on unlawful restraint though another element, the holding of a hostage, is added to those of the lesser-included offense in order to comprise the offense of forcible detention. 94 Ill. 2d 190, 197.

In the present case, attempt (robbery) is a lesser-included offense of armed robbery, since the latter requires completion of the offense of taking property from the person or presence of another by use of force or by threatening the imminent use of force (thus going beyond the substantial step toward the commission of the offense required under the attempt statute) and the possession of a dangerous weapon. Armed robbery, the greater offense, is always a Class X felony, and the lesser-included offense of attempt (robbery) if armed with a Category I weapon is also a Class X felony when charged as armed violence and would be a Class 2 felony as armed violence with a Category II weapon present. In no event would the penalty for armed robbery, to which the additional element of completion of the offense has been added to those of the lesser-included offense, be less than that for the lesser-included offense. Therefore, the incongruous and unconstitutional result forming the second basis for the Wisslead holding is not present in this case.

As another ground for defendant’s contention that she should have been sentenced on the attempt (armed robbery) conviction rather than the armed violence conviction, she argues that the legislature clearly intended that a defendant who merely attempts an armed robbery should be treated less harshly than one who completes the act. She points out that the attempt statute reduces the sentence for attempt to commit a Class X felony, like armed robbery, to a Class 1 felony (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(c)(2)), but that predicating armed violence on attempt (robbery) while armed with a gun results in the same penalty as the completed crime. However, Illinois case law and statute support the actions here.

Where two offenses are based on the identical conduct of the defendant and this conduct is known to the prosecuting officer at the commencement of the prosecution, Illinois statute places the burden on the prosecutor to either elect the charge on which he desires to proceed or to proceed on both charges. (People v. Mullenhoff (1965), 33 Ill. 2d 445; Ill. Rev. Stat. 1981, ch. 38, par. 3 — 3.) The fact that defendant’s conduct may constitute the basis of charges for two different offenses with different penalties for each is not a denial of due process and equal protection, and the State’s Attorney, as representative of the People, has the responsibility of evaluating the evidence and other pertinent factors in determining what offense can properly and should properly be charged. The kind of determination committed to' the discretion of the State’s Attorney by the statute in this situation is the same kind of discretion that is committed to him with respect to a host of other offenses, is exercised by him every day, and is not an unconstitutional delegation of authority. People v. McCollough (1974), 57 Ill. 2d 440, appeal dismissed (1974), 419 U.S. 1043, 42 L. Ed. 2d 637, 95 S. Ct. 614.

It does not appear that the State abused its discretion in charging this defendant with both attempt (armed robbery) and armed violence on these facts. Not all attempt (armed robbery) fact patterns would qualify for a Class X penalty under the armed violence statute. It only happens where, as here, a defendant commits attempt (robbery) and has a Category I weapon such as a gun. When the perpetrator has a Category 2 weapon and commits attempt (robbery), it constitutes a Class 2 felony as armed violence because attempt (robbery) would carry a lesser penalty as a Class 3 felony (Ill. Rev. Stat. 1981, ch. 38, pars. 33A — 1, 33A — 2, 33A — 3, 18 — 1(b), 8— 4(c)(4)); the same conduct would be a Class 1 felony as attempt (armed robbery) (Ill. Rev. Stat. 1981, ch. 38, pars. 18 — 2(a), 8— 4(c)(3)). In this latter situation, a prosecutor might choose to charge the offenses in a different manner than under the facts here.

Though both offenses could be properly charged and prosecuted in this case, a judgment of conviction and sentence could only be entered on one of them. Where the same physical act constitutes two or more offenses, it is proper to enter a judgment of conviction and sentence on the most serious of the offenses. (People v. Donaldson (1982), 91 Ill. 2d 164, 170; People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Burnette (1981), 97 Ill. App. 3d 1015, 1021.) Under these facts, the trial judge properly sentenced defendant on the armed violence conviction, as this Class X offense is more serious than the Class 1 felony of attempt (armed robbery).

The defendant’s conviction and sentence for the offense of armed violence are affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE BARRY

text:
    ELVIS E. ENDICOTT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Roscoe Emmerson Whitmer, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 84—0121 WC
    Opinion filed April 13, 1984.
    William D. Knight, Jr., of Knight & Knight, of Rockford, for appellant.
    R. Eugene Beckman, of Sycamore, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Roseoe Emmerson Whitmer filed a claim for compensation under the Workmen’s Compensation Act (now Workers’ Compensation Act) (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained during and arising out of his employment with Elvis E. Endicott, d/b/a Jim Endicott, d/b/a/ DeKalb Standard Service. Whitmer alleged that he sustained a ruptured spinal disc on June 28, 1976. The arbitrator awarded Whitmer compensation for temporary total disability, medical expenses and permanent partial disability. The Industrial Commission adopted and affirmed the arbitrator’s decision. The circuit court of DeKalb County confirmed the decision of the Commission. On appeal, the employer asserts that the Commission’s decision is contrary to the manifest weight of the evidence.

Specifically, the employer asserts that Whitmer’s testimony regarding the sustaining of the injury was not credible and was uncorroborated. A review of the record on appeal demonstrates that the employer failed to present any credible evidence, and that the decision of the Commission is not against the manifest weight of the evidence. See Scott v. Industrial Com. (1979), 76 Ill. 2d 171, 390 N.E.2d 90.

Accordingly, the judgment of the circuit court of DeKalb County is affirmed.

Affirmed.


author: PRESIDING JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS L. THOMPSON, JR., Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL G. JOHNSON, Defendant-Appellant.
    Fourth District
    Nos. 4 — 83—0614, 4 — 83—0615 cons.
    Opinion filed April 17, 1984.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellants.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Eider man and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Thompson and Johnson appeal their convictions of the crime of attempt home invasion and their sentences of four years each in the Department of Corrections plus restitution in the amount of $500 each for attorney fees for services provided by the public defender.

Affirmed but remanded.

On March 23, 1983, Decatur police officers Pittenger and Harris observed defendants in the vicinity of the Albert Prado residence. Thompson was on the porch of the house, crouched down at doorknob level; Johnson was standing on the ground facing away from the house, his head turned back the other way. Both defendants had nylon stockings pulled over their heads and masks on their faces As Pittenger approached Thompson, he saw a butcher knife in his hand. Thompson quickly dropped the knife on the porch and put his hands against the door. Harris arrested Johnson in the yard and found a knife up the right sleeve of his coat. During a brief conversation following their arrests, Thompson said that the two had been out jogging, while Johnson said that they were involved in some kind of joke. No marks of attempted forced entry were found at the residence.

Just prior to their arrest, Richard Leihser had seen the two in an alleyway in Decatur. The two had gotten out of a car and then headed in different directions down an alley. At the time that they were observed, one individual was wearing a ski mask and the other was wearing a paint shop type mask. Leihser flagged down a nearby police car and gave the officer in the car a partial license plate number.

Albert Prado was unaware that anyone was at his home until he happened to look out the window and saw an officer arresting one of the defendants. Prado had known Thompson for about six years and had had Thompson over to his house as a social guest before.

The defendants did not testify and presented no evidence. Following closing arguments, both defendants were convicted of attempt home invasion and acquitted of attempt residential burglary. On August 5, 1983, both defendants were each sentenced to four years’ imprisonment and both were ordered to pay $500 each in attorney fees.

On appeal, defendants raise three issues, two going to their trial and one going to the assessment of attorney fees. The first argument is that the evidence failed to show beyond a reasonable doubt that the defendants took a substantial step towards the commission of a home invasion and also that the evidence failed to establish any criminal intent on their part at the time of their arrest.

The law in Illinois is that each attempt case must be decided on its own facts. (People v. Brown (1979), 75 Ill. App. 3d 503, 394 N.E.2d 63.) The defendants’ position here is that the evidence here failed to show a physical attempt to enter a structure which is necessitated in cases of this nature. However, in our view, the recent case of People v. Terrell (1984), 99 Ill. 2d 427, 459 N.E.2d 1337, disposes of this issue. In Terrell, defendant was indicted for the offense of attempt armed robbery and unlawful use of a weapon. The charges arose from the following facts: On August 7, 1980, an anonymous telephone call was received by the Kankakee city police. The caller stated that two men, armed with guns, were hiding behind a local service station. Two patrol cars responded to the call. Upon arriving, one of the officers saw a man crouched in the weeds 20 to 30 feet from the gas station. As the officer got out of his car, the defendant, who was carrying a gun, jumped up from the weeds, ran towards the fence, climbed to the other side, and then ran down another street. Some 12 to 15 minutes after the initial contact, the second officer discovered the defendant hiding in the weeds behind a second company which was located nearby. The defendant had removed his shirt and was lying on it. A black nylon stocking with a knot at the end of it was found in his pocket. A second individual who had also fled the scene upon the approach of the police was subsequently arrested about 180 feet from the scene of the original confrontation.

The defendants in Terrell raised arguments similar to those raised here in that the State failed to establish, beyond a reasonable doubt, the requisite intent to commit a specific offense and the completion of a substantial step towards the commission of that offense. The supreme court rejected these arguments. In response to the substantial step argument, the court admitted that it would be impossible to compile a definitive list of acts which, if performed, would constitute a substantial step towards the commission of any crime. Rather, the determination can only be accomplished by evaluating the facts and circumstances of particular cases. The court noted that in the instant case the defendant was in possession of the materials necessary to carry out a contemplated crime and was near the place for its commission. Specifically, the defendants were in the possession of a loaded revolver, a disguise, and the assistance of an accomplice, whose presence and identical disguise indicated a prearranged plan. The defendants were lying only 25 to 30 feet from an apparent target with a gun in hand. Only the arrival of the police caused the defendants to abandon their plan. Similarly in the instant case defendants were found with knives on their persons and disguises in place at the scene of an apparent contemplated crime. In Terrell, the court noted that “[i]t should not be necessary to subject victims to face to face confrontation with a lethal weapon in order to make a positive finding of the essential element of a substantial step.” People v. Terrell (1984), 99 Ill. 2d 427, 435, 459 N.E.2d 1337,1341.

In our view, the Terrell case disposes of the case at hand. Since Johnson and Thompson were found near the scene of the crime with disguises in place, and possessed of weapons which could lead to the threatened use of force necessary to sustain a conviction for home invasion, the court was correct in finding that the necessary elements of a substantial step were proved beyond a reasonable doubt. No error.

A similar analysis also disposes of the defendants’ contention that the State failed to prove their intent to commit a crime. Turning again to Terrell, the supreme court held that the intent to commit a criminal offense need not be expressed, but may be inferred from the conduct of the defendant and the surrounding circumstances. The court specifically noted that a jury can look at the circumstances in existence at the time of an arrest and infer the intent to commit a crime. In Terrell, the evidence revealed a defendant who had concealed himself in the weeds in close proximity to a service station while in possession of a stocking mask and a fully loaded revolver. The court also noted the defendant’s efforts to elude the police as well as his weak excuse for his presence at the scene were also elements which could properly be considered by a jury. Under those circumstances, the court found it incredible that the defendant had any intent other than the armed robbery of the service station. Similarly, in the instant case, the defendants were found in close proximity to a residence (in fact, on the porch) where people were home, wearing nylon stockings over their faces and carrying knives. Under these circumstances, it would similarly be incredible to conclude that the defendants had any intent other than to enter the home with the weapons and to use them in threatening the victims, therefore supporting the crime of attempt home invasion. No error.

The second argument raised by defendants is that prosecutorial comment in closing argument deprived them of a fair trial. The offending comment was that the defendants could not explain the fact that they were standing on the porch with knives. Defendants urge that this be found error in that it is improper prosecutorial comment on the failure of defendants to present any evidence at trial. The State responds that the comment was simply a statement indicating that the State’s case was uncontroverted, citing People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819. The State’s reliance upon Norman is well placed. Defendants made no attempt to explain their presence and in fact presented no evidence whatsoever on their behalf. Under these circumstances it was not error for the State to call attention to the fact that its case was uncontroverted. While the wording of the comment was inartful, the wording does not raise the comment to reversible error. No error.

The final argument raised by defendants is that the procedure followed in the instant case in assessing fees for the defendants’ representation by the public defender was improper under our decision in People v. Bramlett (1983), 118 Ill. App. 3d 1056, 455 N.E.2d 1092. The State agrees that there was error. Since the State has conceded error, we remand this case for redetermination of the proper award of attorney fees per our holding in Bramlett.

Convictions and sentences affirmed and remanded with directions.

Affirmed and remanded.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE B. WILKERSON JR., Defendant-Appellant.
    Fourth District
    No. 4 — 82—0400
    Opinion filed April 17, 1984.

      Marian Kurata, of Urbana, for appellant.
    Robert G. Frederick, Special Prosecutor, of Urbana (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant was tried by a jury, convicted of several counts each of attempted murder, armed violence, and aggravated battery, and sentenced on the two more serious groups of convictions, those for attempted murder and armed violence, to concurrent terms of 25 years’ imprisonment. On appeal the defendant raises a number of questions concerning the course and conduct of his trial and the sentences that were imposed. We conclude that no error occurred and therefore affirm the defendant’s convictions and sentences for attempted murder. The convictions for armed violence and aggravated battery and the sentences for armed violence are redundant, however, and must be vacated.

The convictions arose from a dispute that occurred between the defendant’s family and some neighbors on September 23, 1978, at an apartment complex in Champaign. That day Vivian Turner, the defendant’s sister, learned that her son had been bitten by a neighbor’s son and complained about this to the neighbor, Katie Bolden. Turner and Bolden got into a fight, which a police officer ended temporarily. Later, Turner and Bolden resumed fighting. The defendant and his brother, Johnnie “Little Johnnie” Wilkerson, then appeared; the defendant was armed, and he shot and wounded two members and a friend of the Bolden family. The defendant also was wounded. Whether anyone in the Bolden group was armed was disputed at trial.

This was the defendant’s second trial on these charges; his earlier convictions were vitiated by trial error and reversed on appeal (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526).

I

The defendant argues first that he was denied a fair trial because of per se conflicts of interest inhering in the persons appointed here as special prosecutor and special defense counsel.

At arraignment after the cause was remanded for a new trial, the defendant objected to the appointment of the public defender as his counsel because he feared that a conflict of interest could arise from the public defender’s simultaneous representation of his brother on charges arising from this same incident. The defendant requested the appointment of Marian Kurata, who had successfully argued his earlier appeal. The trial court granted the defendant’s request and appointed Kurata as defense counsel. Robert Frederick had been appointed to serve as special prosecutor.

Later, Kurata moved to vacate the appointment of Frederick as special prosecutor and her own appointment as defense counsel. The basis for the motion was Frederick’s and Kurata’s former employment together in the Champaign County public defender’s office during the defendant’s first trial on these charges. At that time, Frederick was head of the office, Kurata was an assistant, and another assistant was representing Vivian Turner, the defendant’s sister, on charges arising from this same incident; the defendant was represented by privately retained counsel. The motion alleged that trial strategy might have been discussed by or made available to these various lawyers.

At a hearing on this motion, Frederick said that he could remember no conversations with Turner’s lawyer regarding this case and that he had no knowledge of that representation. The trial court denied the motion to vacate Frederick’s appointment as special prosecutor. The trial court then asked the defendant whether he wanted Kurata to continue as his lawyer, and the defendant replied that he did. The court denied the motion to vacate Kurata’s appointment as defense counsel.

Frederick’s service here as special prosecutor did not violate the rule forbidding criminal prosecution by a person who has acquired from the accused confidential information concerning the particular offense. (People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165; People v. Rhymer (1975), 32 Ill. App. 3d 431, 336 N.E.2d 203; People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669.) In Gerold the court said:

“An attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith.” (People v. Gerold (1914), 265 Ill. 448, 478, 107 N.E. 165,177.)

Because Frederick never had a professional relationship with the defendant, the only way in which he could have obtained the disqualifying information would have been through conversations with the defendant’s privately retained lawyer or, less directly, with the assistant in his own office who was handling Vivian Turner’s case. Both those routes are too attenuated to compel the conclusion that Frederick occupied a position that gave him access to disqualifying information. Further, we note that at the hearing on the pretrial motion, Frederick stated that he had no knowledge of defendant’s case from any prior representation.

We note also that a public defender’s office is not regarded per se as a law firm or single entity in considering conflicts of interest arising from multiple representation. (People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261.) Therefore, Frederick’s former position as head of the office cannot by itself mean that he should be deemed to have acquired whatever information his assistant defenders acquired.

The defendant also objected to Kurata’s appointment as special defense counsel. Kurata served as an assistant public defender during Frederick’s tenure as head of that office and while Vivian Turner was being represented on charges arising from this same incident. This by itself does not compel Kurata’s disqualification. (Nelson.) More important, Kurata’s earlier employment as an assistant public defender under Frederick’s authority was placed on the record in the defendant’s presence. The defendant persisted in his desire to have Kurata serve as his lawyer, however. Therefore, the defendant has knowingly waived any conflict of interest that might have derived from Kurata’s previous employment.

The defendant also argues that Kurata’s agreement to evidentiary stipulations proposed by the State is evidence of a less than vigorous defense. Before trial the special prosecutor asked the court to admit stipulations concerning the chain of custody of five bullets that either had been found at the scene or had been removed from the victims’ bodies. Kurata told the court that she signed the stipulations over the defendant’s objection; she believed that the defendant could secure a similar stipulation in exchange for agreement here. The defendant told the court that he did not want to help the State prove its case against him. The stipulations were admitted into evidence, and the defendant repeated his objection when they were read to the jury. The defendant believed that the State and defense counsel were conspiring against him.

The relationship between a lawyer and her client is that of agent and principal; a lawyer is bound to follow the lawful instructions of her client, and her actions are restricted to the scope of the authority conferred. (Chiappetti v. Knapp (1974), 20 Ill. App. 3d 538, 314 N.E.2d 489; Fleener v. Fleener (1970), 133 Ill. App. 2d 118, 263 N.E.2d 879.) At the same time, though, the lawyer is the manager of the lawsuit, and therefore decisions on trial strategy and tactics may be made by counsel alone. People v. Williams (1966), 36 Ill. 2d 194, 222 N.E.2d 321.

The decision whether to stipulate with the State to the chain of custody of the various bullets involved an assessment of trial strategy and tactics, and as such, it was Kurata’s decision to make, based upon her professional judgment as the defendant’s lawyer. Kurata entered into the stipulations in return for the special prosecutor’s promise that he would stipulate to the chain of custody of a bullet that the defendant was seeking to have removed from his body. The defendant believed that the bullet’s characteristics would provide evidence of an undiscovered gun, buttressing his assertion that the victims were armed and he acted in self-defense. Thus, the defendant stood to benefit from Kurata’s agreement. Therefore, we do not find evidence of a conspiracy between Kurata and the special prosecutor, her former employer. We note that the defendant specially requested that Kurata be appointed to represent him in this appeal, despite his earlier disagreements with her, so he has waived any conflict arising from that.

II

The bullet was never removed from the defendant’s body, however, and that forms the basis of his next argument: that the trial court should have ordered its removal or, alternatively, should have granted his motion for a continuance so that he could have time to find a surgeon that would perform the necessary operation.

The defendant filed a motion on March 5, 1982, asking the court to order the surgical removal of a bullet that had been lodged in his buttocks since the date of the disturbance at the apartment complex. The defendant wanted to have the bullet examined by a forensic scientist; the defendant believed that this might produce evidence that the victims were armed and that he acted in self-defense. The trial court ordered a physical examination of the defendant by Dr. R. B. Helfrich and reserved its ruling on the motion.

After examining the defendant, Dr. Helfrich wrote the court a letter reporting that the bullet was embedded in the defendant’s right buttock but that surgery was “not indicated on medical grounds.” Several days later the court received a letter from Krail Lattig, a forensic scientist employed by the Department of Law Enforcement, who said that a reasonably close approximation of the bullet could be made by using X rays but that that method would not make possible a specific identification of the cartridge and weapon type.

Needing more information, the court granted the defendant a continuance on March 26, moving the start of the trial back more than a month, from April 5 to May 10. In response to the court’s request for elaboration on several points, Dr. Helfrich sent another letter, explaining why removal of the bullet was medically unwise and what it would cost. Dr. Helfrich said that the bullet was located near the defendant’s sciatic nerve and that removing the bullet might injure the nerve, which could permanently paralyze the lower half of the defendant’s body. Dr. Helfrich also believed that the bullet might elude discovery. He said that the surgery would take more than an hour and cost more than $600, not include the hospital’s separate charges. After holding another hearing, the court denied the defendant’s motion for removal of the bullet.

On April 26, 1982, the defendant filed a supplemental motion for a continuance for more time to find a surgeon that would be willing to perform the operation. The motion listed the names of a dozen doctors who had refused either to examine the defendant or to perform the surgery. The motion was denied; the trial began on May 10,1982.

The court did not err in failing to order the removal of the bullet. The operation would have been elective and therefore outside the scope of section 103 — 2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 2(c)), which provides that persons in custody shall be afforded medical treatment if required; the defendant was in custody until April 7, 1982, when he was released on bond. Dr. Helfrich predicted that the operation would cost more than $600, well in excess of the amount, $250, that may be paid for a defendant’s necessary expert witnesses (see People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645, extending the statutory provision (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(d)), which restricts itself to capital cases, to a prosecution for forgery). Most important, no surgeon was available to perform the operation. Thus, the defendant’s constitutional rights to compel the production of witnesses in his behalf (U.S. Const., amends, VI, XIV; Ill. Const. 1970, art. I, sec. 8) were not violated.

Nor did the court err in refusing to grant the defendant’s supplemental motion for a continuance. The defendant had already been granted the continuance of more than a month so that he could try to arrange for the surgery. The court was not required to wait indefinitely while the defendant searched for a willing surgeon. Allowing the defendant more time would not likely have led to success. The professional assessment before the court of the operation’s dangers, along with the defendant’s own list of the dozen unwilling surgeons, meant that only with great difficulty would the defendant ever be able to find someone who would do the operation. The granting of a continuance is reserved to the discretion of the court. (People v. Pinkston (1976), 44 Ill. App. 3d 357, 357 N.E.2d 1386.) Under the circumstances presented here, the trial court’s denial of the motion for a further continuance was not an abuse of discretion.

Ill

A

The trial court allowed the State to read to the jury transcripts of the testimony that Dr. Walter Rhode and Veve Grant had given at the defendant’s first trial. Rhode died before the defendant’s second trial, and the State could not find Grant. A witness’ previous testimony may be admitted into evidence at a trial, as an exception to the hearsay rule, if the witness has become unavailable and the current opponent of the evidence had the opportunity to cross-examine the witness at the earlier hearing. (Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 383 N.E.2d 954; People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160.) This does not violate, in a criminal proceeding, a defendant’s constitutional rights to confront the witnesses against him. People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544.

Dr. Rhode was the admitting physician in the hospital emergency room to which the victims were taken after the shooting, and he testified at the first trial regarding the nature of their injuries. The defendant argues that use of this testimony at his second trial was cumulative and unduly focused the jury’s attention on the medical aspects of the case. At the second trial, in addition to the transcript of Rhode’s earlier testimony, the State presented the live testimony of the three physicians who had treated the victims for their various wounds; also, the victims themselves testified about their medical treatment. Rhode was the first doctor to treat the victims of the shooting, and he described their conditions at the time they were admitted to the hospital. His testimony included the locations of various bullet wounds in their bodies. As the first examining physician, Rhode was able to provide information that the other medical witnesses could not. For these reasons, the testimony had probative value, and its use was not cumulative.

The State also presented a transcript of Veve Grant’s testimony from the defendant’s first trial. Grant, a resident of the apartment complex where the dispute occurred, saw the defendant and his brother shoot at the unarmed Bolden group. The defendant argues that the State failed to show Grant’s unavailability at the time of the second trial and that her testimony had no probative value.

In arguing before trial for the use of Grant’s earlier testimony, the special prosecutor explained that he had traced Grant to West Memphis, Arkansas, but that he had not been able to locate her after that. He also said that he was continuing his efforts to locate her. The State was unsuccessful, however, so ultimately the transcript was used.

The record shows that the State made a good faith effort to locate Grant and obtain her presence at the defendant’s second trial. Therefore, the trial court correctly ruled that she was unavailable, which would permit the use of her previous testimony. Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597,100 S. Ct. 2531.

Grant’s testimony had probative value. She saw the defendant and his brother fire weapons, and she said that the victims did not return any fire. These observations were relevant, for they tended to negate the defendant’s theory that he was acting in self-defense. The court did not err in allowing the transcript to be read to the jury.

B

The defendant also argues that the trial court erred in permitting the State to read to the jury a transcript of his own testimony from his first trial. Here, the defendant was tried alone; earlier he was tried together with his brother, Little Johnnie Wilkerson, and sister, Vivian Turner. There, Little Johnnie Wilkerson decided at the last moment to rely on an alibi defense; the defendant argued self-defense. The defendant asserts that his testimony was influenced by the trial together of the several defendants and by the sudden change in his brother’s defense. The defendant concludes that because he had given this earlier testimony under vastly different circumstances, the trial court should not have allowed the State to use it here.

As a general, rule, a defendant’s earlier testimony is admissible against him at a later trial. (Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008; Miller v. People (1905), 216 Ill. 309, 74 N.E. 743; People v. Peterson (1982), 108 Ill. App. 3d 856, 439 N.E.2d 1103.) In the second trial, the defendant was free of course to explain any discrepancies between his current testimony and his earlier testimony. That the presence of the codefendants influenced the defendant’s testimony at his first trial is not a reason to prohibit its later use.

IV

Over the defendant’s objections, the jury received instructions on accountability, an aggressor’s use of force, and provocation and retaliation. The defendant argues that the evidence presented at trial did not justify instructing the jurors on these points.

Both the State and the defendant are entitled to instructions embodying their separate theories of the case; evidence supporting a particular theory will justify giving an instruction in it. (People v. Isenberg (1978), 60 Ill. App. 3d 325, 376 N.E.2d 778.) The instructions in question were supported by the evidence.

The jurors received Illinois Pattern Jury Instruction (IPI), Criminal, No. 5.03 (2d ed. 1981), setting forth the circumstances when one person is accountable for the acts of another; accountability was also included in the various issues instructions on the offenses. The State introduced evidence that the defendant and Little Johnnie Wilkerson acted together in attacking the Bolden group and that the defendant, finding himself out of ammunition, told his brother to shoot Rickey Jones, a friend of the Boldens; Little Johnnie Wilkerson then shot Jones. This evidence tended to establish the defendant’s accountability for his brother’s acts (Ill. Rev. Stat. 1981, ch. 38, par. 5— 2(c)). That a defendant may be guilty as a principal does not preclude instructions on accountability (People v. Taglia (1979), 76 Ill. App. 3d 199, 392 N.E.2d 725); also, accountability instructions may be used even though the defendant is tried alone (People v. Thomas (1979), 72 Ill. App. 3d 28, 389 N.E .2d 1316). It was proper to instruct the jury on that theory.

The jurors also received IPI Criminal No. 24 — 25.09 (2d ed. 1981), which sets forth the circumstances when an initial aggressor is justified in using force, and IPI Criminal No. 24 — 25.11 (2d ed. 1981), which provides that a person may not provoke the use of force against himself so that he may retaliate later. These instructions reflect several aspects of the statutory provisions regarding an aggressor’s use of force. (Ill. Rev. Stat. 1981, ch. 38, pars. 7 — 4(b),(c).) These two instructions may be used if the State introduces evidence that the defendant was the aggressor. (People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295.) The defendant testified that he was shot first either by one of the Boldens or their friend, Jones, and only then fired his gun. Other witnesses, however, testified that the defendant appeared with a gun and shot at the Bolden group, who were sitting peacefully and unarmed on their front porch. This testimony justified giving these instructions.

V

The defendant was convicted of three counts of attempted murder, three counts of armed violence, and six counts of aggravated battery. The trial court sentenced the defendant to six concurrent terms of 25 years’ imprisonment on the convictions for attempted murder and armed violence; the court did not sentence the defendant on the convictions for aggravated battery, concluding that they merged with the attempted murder convictions.

The State agrees with the defendant that his convictions for armed violence and aggravated battery must be vacated because they are based on the same acts as the convictions for attempted murder. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) This is appropriate here, so only the attempted murder convictions remain, and the sentences for armed violence must be vacated. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011.) Because of this result, we need not address the defendant’s argument under People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, and People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, that the armed violence indictments should have been dismissed because they were based on double enhancement.

The defendant also argues that his concurrent 25-year sentences for the three attempted murder convictions are excessive and grossly disparate, for his brother received three concurrent 6V2-year sentences for attempted murder, which he pleaded guilty to after remand of his cause.

A sentence imposed by a trial court will not be altered on appeal ■without a showing that the trial court abused its discretion in imposing that particular sentence. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) At the same time, however, fundamental fairness requires that defendants similarly situated should not receive grossly disparate sentences. People v. Gokey (1974), 57 Ill. 2d 433, 312 N.E.2d 637; People v. Nester (1976), 40 Ill. App. 3d 735, 353 N.E.2d 23.

In the case at bar, a rational basis exists to explain the disparity in the sentences imposed upon the defendant and his brother. First, the evidence introduced at trial shows that the defendant was more culpable than his brother. Witnesses testified that the defendant fired a shot into the air, yelled “Hold it,” and then began shooting at them. When Jones fell, the defendant stood over him and pulled the trigger several times. The defendant was out of ammunition and yelled at his brother to shoot Jones. Little Johnnie Wilkerson then shot Jones in the leg. The record shows that defendant did the bulk of the shooting and, when he ran out of ammunition, ordered his brother to shoot a wounded man.

Second, the defendant had a more extensive and more serious criminal record than his younger brother. Little Johnnie Wilkerson’s criminal record comprises four juvenile convictions in Ohio: assault with intent to rob, breaking and entering, auto theft, and aggravated burglary. The defendant has a longer criminal history, and it includes several violent crimes. In 1969 he was convicted of possessing a loaded gun in an automobile; in 1974 he was convicted of aggravated battery for shooting a person several times; in 1978, he was convicted of disorderly conduct.

A sufficient basis exists in the record to justify the lengths of the sentences imposed by the trial court. Having examined the record, we conclude that the trial court did not abuse its discretion in sentencing the defendant.

The defendant’s convictions for armed violence and aggravated battery and his sentences for armed violence are hereby vacated. In all other respects, the judgment of the circuit court of Champaign County is affirmed.

Affirmed in part and vacated in part.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE WEBBER

text:
    WILLIAM E. WHEELER et al., Plaintiffs-Appellants, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0606
    Opinion filed April 17, 1984.
    Bennett, Willoughby & Latshaw, P.C., of Decatur (K. Michael Latshaw, of counsel), for appellants.
    Hull, Campbell & Robinson, of Decatur (Michael I. Campbell and Jon D. Robinson, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The plaintiffs (husband and wife), filed their six-count complaint against the defendant (husband’s former employer) alleging retaliatory discharge and the intentional infliction of severe emotional distress along with accompanying counts for loss of consortium. The defendant filed an answer to the complaint. The circuit court then allowed the defendant to withdraw its answer and to file a motion to dismiss in its place. The court subsequently ruled in favor of the defendant on its motion to dismiss. On appeal, plaintiffs contend that the circuit court erred in allowing the defendant to withdraw its answer and to substitute a motion to dismiss. The plaintiffs also claim that, in any event, the court’s order granting the motion to dismiss was error because their complaint did state a cause of action for retaliatory discharge as a matter of law. We affirm.

The facts, in brief, as gleaned from the complaint suggest that the plaintiff-husband was discharged by the defendant company on August 29, 1979, after having been employed by it since 1955. At the time of his discharge, the plaintiff was an “at-will” employee engaged in quality control testing for the defendant. He worked regularly with electrically generated radiation in the X-ray department. In 1979 this department switched to a live source of radiation called a Cobalt 60 Unit. At this time the plaintiff repeatedly requested that he be transferred out of this department because he felt that the Cobalt 60 Unit was not being operated properly and because he feared for his safety. The defendant, however, did not allow the plaintiff to transfer. Consequently, the plaintiff refused to work with the Cobalt 60 Unit and the defendant discharged him.

The plaintiffs filed their complaint on May 12, 1981. Counts I and II alleged that the defendant’s wilful and wanton conduct caused the plaintiff-husband severe emotional distress. Compensatory and punitive damages were requested in these counts. Count III alleged that the discharge violated public policy and contained a request for compensatory and punitive damages for the plaintiff-husband. Counts IV and V requested compensatory damages only for the plaintiff-wife as a result of her loss of consortium caused by defendant’s infliction of severe emotional distress upon her husband. Count VI alleged violation of public policy and requested compensatory damages for the wife for her loss of consortium caused by the defendant’s alleged retaliatory discharge of her husband.

The defendant filed an answer to the complaint on June 11, 1981, and discovery was initiated. The case was originally set for trial on June 20, 1983; however, the plaintiffs filed a motion on May 5, 1983, seeking an indefinite continuance of the cause. On May 13, 1983, the defendant filed a motion to withdraw its answer and to file, in lieu thereof, a motion to dismiss. On June 10, 1983, the court granted the motion to continue and allowed the defendant to replace its answer with a motion to dismiss. The motion asked that counts III and VI be dismissed for failure to state a cognizable cause of action and that counts I and II be dismissed because they contained insufficient allegations to support prayers for punitive damages. In its order of August 24, 1983, the court dismissed counts III and VI for failing to state a cause of action. The court also dismissed the prayers for punitive damages in counts I, II, IV, and V, although counts IV and V contained no such prayers. The court then found that there was no reason to delay appeal pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

On appeal the plaintiffs first argue that the circuit court erred in permitting the defendant to withdraw its answer and to file a motion to dismiss in its place. The defendant’s original answer was filed on June 11, 1981. Nearly two years later on May 13, 1983, the defendant filed its motion to withdraw its answer and to substitute a motion to dismiss. The plaintiffs contend that this time span and the amount of discovery conducted in the meantime make the court’s decision an abuse of discretion.

The parties here agree that the defendant’s motion should be governed by section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), formerly section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45). That section places no specific time limit for the filing of a motion with respect to pleadings. Subsection (e) does state that any party “may seasonably move” for a judgment on the pleadings. Illinois courts have construed this section to give circuit courts the discretion to allow the filing of late pleadings. In Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253-54, 433 N.E.2d 1350, 1355, the court stated:

“There is very little case law concerning the time period in which motions to dismiss can be filed. In Greenlee Brothers & Co. v. Rockford Chair & Furniture Co. (1969), 107 Ill. App. 2d 326, 332-33, however, this court did state that the trial court has discretion to permit the filings of tardy pleadings, and unless plaintiff can show that it was prejudiced by the late filing there is no abuse of discretion. See also Silberstein v. Joos (1978), 59 Ill. App. 3d 293; McGrath Heating & Air Conditioning Co. v. Gustafson (1976), 38 Ill. App. 3d 465.
Because this court can view the joint motion to dismiss as a section 45 motion, because section 45 does not refer to a time period in which such motions must be brought, and because plaintiff has failed to establish that it has been prejudiced by the late filing of the joint motion, the trial court did not abuse its discretion in ruling on the joint motion to dismiss, notwithstanding the fact that several of the moving defendants had previously filed answers to the complaint.”

Likewise, the Illinois Supreme Court has stated that the “objection that the complaint does not state a cause of action *** may be raised at any time, either before or after judgment.” (Krachock v. Department of Revenue (1949), 403 Ill. 148, 153, 85 N.E.2d 682, 685, appeal dismissed, (1949), 338 U.S. 804, 94 L. Ed. 487, 70 S. Ct. 72.) Therefore, to prove that the court here abused its discretion the plaintiffs must show that they were somehow prejudiced by the late filing of the defendant’s motion.

The plaintiffs do not allege any specific prejudice that they have suffered as a result of the defendant’s tardy motion. They merely allege that the ends of justice cannot be served by allowing the motion after nearly two years of preparing for trial. This general allegation must be considered in the light of the plaintiff’s own request for a continuance of the trial, filed only eight days before the defendant’s motion to withdraw its answer. Since the plaintiffs sought, and were granted, an indefinite delay in the proceedings, it is not likely that they were prejudiced by the tardy filing of the defendant’s motion to withdraw its answer. Since the plaintiffs have failed to show any prejudice we cannot say that the court’s decision to allow the tardy motion was an abuse of discretion.

The plaintiffs next contend that even if the motion to dismiss were properly filed, the circuit court erred in granting it. They claim that counts III and VI of their complaint did state a cause of action based upon the tort of retaliatory discharge. However, any contention that the court erred in dismissing the prayers for punitive damages in counts I and II has been waived by the plaintiffs’ failure to argue this point on appeal. See 87 Ill. 2d R. 341(e)(7).

To withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. In ruling upon a motion to dismiss the circuit court may consider the pleadings, affidavits in support of the motion, answers to interrogatories, and deposition evidence. (Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 401 N.E.2d 1218.) If the facts alleged demonstrate any possibility of recovery, the order of dismissal will be reversed.

With the decision of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, Illinois joined the growing number of States recognizing the tort of retaliatory discharge. This tort is an exception to the general rule that an “at-will” employee may be discharged at any time for any cause. To state a cause of action for retaliatory discharge “[a]ll that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876, 881.

In the present case, the complaint states that the plaintiff-husband was discharged because of his refusal to work with allegedly unsafe equipment. The complaint also alleges the defendant’s operation of the Cobalt 60 Unit violated several Nuclear Regulatory Commission rules. The complaint then states that the discharge of the plaintiff-husband was in contravention of the public policy of Illinois in that a worker should not be discharged for refusing to work with allegedly unsafe equipment. It is clear from the complaint that the plaintiff was discharged in retaliation for certain activities. Thus the issue to be resolved is whether the plaintiffs have sufficiently alleged that the discharge was in violation of a clear public policy.

There are no Illinois court decisions discussing public policy under similar factual circumstances. In Kelsay, the supreme court held that discharging an employee for filing a workmen’s compensation claim violated the clear public policy enunciated in the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.). In Palmateer, the supreme court held that discharging an employee for assisting the police in the investigation and prosecution of suspected crimes violates the clear public policy in favor of the enforcement of the criminal code of Illinois.

In its Palmateer decision, the supreme court sought to determine the contours of the tort of retaliatory discharge. In doing so, the court stated that an employer retains the right to fire workers at will in cases where no clear mandate of public policy is involved. The court then discussed the definition of public policy and stated:

“In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. (Smith v. Board of Education (1950), 405 Ill. 143, 147.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878-79.)

The court went on to list a number of decisions from other jurisdictions upholding the tort of retaliatory discharge for such things as refusing to commit perjury; refusing to engage in price fixing; refusing to violate a consumer credit code; refusing to practice medicine without a license; refusing to evade jury duty; engaging in statutorily protected union activities; and for filing a workers’ compensation claim. On the other hand, the action had not been allowed where a worker disputed a company’s internal management system; took too much sick leave; tried to examine the company’s books in a shareholder capacity; impugned the company’s integrity; refused to be examined by a psychological-stress evaluator; or used the employer’s Christmas fund improperly.

In summary, the supreme court noted that the action had been allowed where the public policy was clear. However, the action was denied where it was clear that only private interests were at stake. The court then observed that where the interest at stake is less than clear, the courts of other jurisdictions have given conflicting answers. In this list, the court included the situation where an employee is discharged for internal disputes regarding product safety. This situation appears closest to the circumstances in the present case.

While the supreme court expressed no view as to the less-than-clear areas, it did cite Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 399 A.2d 1023, and Geary v. United States Steel Corp. (1974), 456 Pa. 171, 319 A.2d 174, as cases dealing with the situation where an employee was discharged for challenging the safety of the company’s products. In Pierce the court held that this factual situation may state a cause of action and it remanded the case for further factual development. In Geary the court held that this type of internal dispute did not involve clear public policy and affirmed the lower court’s dismissal of the complaint.

In determining which side of the line the allegations in the present complaint should fall upon, it is important to note that the facts here involve less indicia of public policy than those in Pierce and Geary. Those cases dealt with an employee voicing concerns to his superiors about possible defects in the employer’s products. These products were being sold to the public. On the other hand, we deal here with an employee who was discharged because he maintained that the equipment for his job was possibly unsafe.

To sustain his position, plaintiff alleged in his complaint that an investigation by the United States Nuclear Regulatory Commission (NRC) had found inadequacies in the defendant’s radiation safety program. These allegations must be viewed as of the time of plaintiff’s discharge, which was on August 20, 1979. The record reveals that the investigations by the NRC occurred on October 12, 1979, and March 11, 1981. There is no indication in the record that any investigation was contemplated nor pending on the date of plaintiff’s discharge.

Moreover, we have examined those reports and they do not reveal that any inadequacies were of a life-threatening nature. Briefly summarized, the report of October 12, 1979, found the following: (1) failure to post a certain notice; (2) a practice of padlocking the door to the radiographic facility during operations; (3) failure to keep survey records of radiation levels in unrestricted areas; (4) failure to calibrate two survey meters for more than three months; (5) maintaining utilization logs with less than all the information required; (6) maintaining a less than adequate daily record of dosimeter readings; (7) failure on 11 days to record radiation surveys to determine that the sealed source was in its shielded condition.

The report of March 11, 1981, states, “No items of noncompliance or unsafe conditions were found.”

It is thus apparent that on August 20, 1979, there was no hard evidence of unsafe conditions, but rather only plaintiff’s unilateral and subjective decision that such conditions did exist. His position is therefore untenable.

The plaintiffs also rely on Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588, to support their contentions. The employee in that case was fired for attempting to force his employer to comply with the Illinois criminal code. The court there found that the public policy in favor of the enforcement of criminal laws which was cited in Palmateer was also present in that case. While the plaintiffs can point to no criminal violations here, they do allege violations of Nuclear Regulatory Commission rules. However, it is clear from the record that these violations were not discovered until an inspection more than one month after the plaintiff’s dismissal. The plaintiff was not attempting to remedy any possible rule violations, nor could they have played a part in his discharge. The public policy found in Palmateer and Petrik is not present in this case.

As the court in Pierce noted, courts

“must guard against a potential flood of unwarranted disputes and litigation that might result from such a doctrine, based on vague notions of public policy. Hence, if there is to be such an exception to the at-will employment rule, it must be tightly circumscribed so as to apply only in cases involving truly significant matters of clear and well-defined public policy and substantial violations thereof.” (Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 342, 399 A.2d 1023,1026.)

The plaintiffs here can point to no articulation of a clear or well-defined public policy that has been contravened. In the absence of this, we cannot say that the trial court erred in dismissing counts III and VI of their complaint.

Accordingly, the judgment of the circuit court of Macon County dismissing counts III and VI and the prayers for punitive damages in counts I and II is affirmed and the cause is remanded to that court for further proceedings.

Affirmed and remanded.

TRAPP and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF GERI L. ROSENOW, Petitioner-Appellee, and JOHN B. ROSENOW, Respondent-Appellant.
    Fourth District
    Nos. 4 — 83—0379, 4 — 83—0795 cons.
    Opinion filed April 25, 1984.
    Dotson & Fuqua, of Mattoon, for appellant.
    Edward H. Rawles, of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This case presents the question of whether a trial court’s order in a dissolution of marriage proceeding, which reserves jurisdiction for the purpose of later deciding the question of the apportionment of a party’s nonvested pension benefits, is an appealable order. We conclude that it is not, and dismiss these appeals.

The petitioner filed a petition for dissolution of marriage on March 23, 1982. A judgment of dissolution was entered on December 3, 1982. All ancillary matters were reserved for future disposition. On May 4, 1983, the court entered a supplemental judgment order, apportioning the parties’ marital property. Jurisdiction to apportion the respondent’s interest in the State Universities Retirement System pension fund was “reserved by the court for an apportionment determination if, as, and when Respondent receives any benefits from the System.”

On May 11, 1983, the petitioner filed a petition for an award of attorney fees and on May 23, 1983, respondent filed a notice of appeal from the supplemental judgment order. On July 7, 1983, the court entered an award of attorney fees in petitioner’s favor. Following the denial of a motion for rehearing with respect to this award on September 6, 1983, respondent filed a second notice of appeal on October 4, 1983. This notice requested reversal of both the supplemental judgment order of May 4, 1983, and the September 6, 1983, award of attorney fees.

In In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, the supreme court, in holding that a custody order entered in the course of a dissolution of marriage proceeding is not a separate claim which is individually appealable even if the circuit court makes the requisite Rule 304(a) (87 Ill. 2d R. 304(a)) findings, stated:

“A further reason counseling against the appealability of a custody order pursuant to Rule 304(a) is that it does not constitute a separate ‘claim’ in a dissolution proceeding. A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 409 (Ward, J., concurring).) They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. *** Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” (In re Marriage of Leopando (1983), 96 Ill. 2d 114,119, 449 N.E.2d 137, 140.)

Leopando has been interpreted as preventing the appeal of a dissolution of marriage order which reserves the question of the apportionment of attorney fees for decision at a later date (In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90), and as preventing appeal of a judgment dissolving a marriage in the absence of a resolution of the support and maintenance, property distribution and attorney fees issues. In re Marriage of Koch (1983), 119 Ill. App. 3d 388, 456 N.E.2d 644.

The respondent advances several reasons as to why we should hold that we have jurisdiction of this matter, but we find none of them persuasive. The implication of the above-quoted language in Leopando is clear: In the absence of a complete resolution of all issues present in a dissolution of marriage proceeding, an order entered in such a proceeding deciding such an issue is not a final order even as to a claim and thus is not appealable except in accordance with the Supreme Court Rules specifically applicable to interlocutory appeals (see, e.g., 87 Ill. 2d R. 306(a)(l)(v)). The interdependence of the various matters involved in a dissolution of marriage proceeding provides ample justification for such a policy. Cf. In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 210-12, 443 N.E.2d 1089,1097-99.

Although the apportionment of interests in nonvested pension benefits is more difficult than is the apportionment of interests in other types of property, the need to apportion such benefits in order for a dissolution of marriage decree to become an appealable order does not present an insurmountable obstacle. Several acceptable methods of apportioning both benefits which will most likely vest in the immediate future and benefits which will vest, if at all, in the distant future have been devised. These methods are described in some detail in our recent opinion in In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.

Because the orders from which respondent appeals are not final as to the sole claim in the case, we have no jurisdiction to adjudicate the merits of respondent’s allegations of error (In re J.N. (1982), 91 Ill. 2d 122, 435 N.E.2d 473) and must dismiss the appeals.

Appeals dismissed.

MILLS, P.J., and TRAPP, J., concur.