author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE HOWELL, Defendant-Appellant.
    Fourth District
    No. 4—82—0676
    Opinion filed November 1, 1983.

      Daniel D. Yuhas and Jerome McGuire, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig DeArmond, Special Prosecutor, of Danville, for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Howell escaped from the Vermilion County Jail.

Twelve years later he was tried for escape.

Did the delay deny him any procedural rights?

No.

We affirm.

In an attempt to concisely set forth the tangled jumble of dates and details from the record below, here is a chronological table listing the relevant developments surrounding Howell’s past 14 years’ experience with the criminal justice system:

Chronology of events

2-12-69 Defendant sentenced to 4 to 6 years in a Federal correctional institution for interstate transportation of a stolen motor vehicle.

5- 70 Defendant escaped from Federal correctional institution in Florida.

6- 14-70 Defendant arrested in Vermilion County and charged with rape.

8-3-70 Defendant pleaded guilty to rape and was sentenced to 9 to 10 years’ imprisonment to run concurrently with the Federal sentence. Defendant then escaped from the Vermilion County jail.

9-16-70 Defendant arrested in Texas for robbery. Defendant indicted by Vermilion County grand jury for escape.

11-16-70 Defendant sentenced on the robbery charge to 20 years’ imprisonment with the Texas Department of Corrections.

1971 According to defendant, he wrote a letter to the Vermilion County State’s Attorney’s office requesting that he be brought to trial on the escape charge.

6-19-73 Defendant’s file in the Vermilion County State’s Attorney’s office was reviewed, his Texas conviction noted, and the file marked “close file until notified.”

5-30-80 Defendant paroled in Texas and released to Federal custody to complete his initial Federal sentence.

9-15-80 Defendant wrote a letter to the Vermilion County State’s Attorney’s office.

9-24-80 Defendant wrote a letter to the Vermilion County circuit court.

12-5-80 Defendant was paroled on his initial Federal sentence and began serving an 18-month sentence for his escape from the Florida institution.

12-24-80 A special prosecutor was appointed to prosecute defendant for his Illinois escape.

1-5-81 The Vermilion County authorities were notified of defendant’s impending release.

2-4-81 Vermilion County sent to Federal officials a certified copy of defendant’s indictment for the Illinois escape.

12-31-81 Defendant was released from Federal prison into the custody of the sheriff’s office of Shelby County, Tennessee.

3-24-82 Defendant extradited to Illinois to stand trial for escape.

8-31-82 Defendant convicted of escape after bench trial.

Defendant appeared in Vermilion County circuit court on March 25, 1982, when counsel was appointed and he was given a trial daté of April 7, 1982. Prior to trial on the escape charge, defendant’s appointed counsel filed a writ of habeas corpus and moved to dismiss the charge on the basis of prosecutorial misconduct and denial of a speedy trial. Both motions and the writ were denied.

Defendant waived a jury trial and proceeded to bench trial on August 31, 1982. He was convicted of escape (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 6) and — by his own election — was sentenced under the prior statute to a term of imprisonment of not less than two and not more than six years, to run concurrently with his sentence on the Illinois rape conviction.

Howell appeals, maintaining that: (1) his constitutional and statutory rights to a speedy trial were denied; (2) he was denied due process because of prosecutorial misconduct; and (3) his sentence of imprisonment was improperly imposed.

We affirm — on all grounds.

I. SPEEDY TRIAL

At the hearing on defendant’s motion to dismiss the escape charge, he testified that while serving in the Texas penitentiary in 1971:

“I wrote a letter — just a plain letter to the District Attorney’s office asking them if they had anything against me on the escape charge or any other charge, would they bring me to Court as soon as possible to do away with the charges.”

Defendant received no response to this letter. According to further testimony at the hearing, there is no record in the Vermilion County State’s Attorney’s file that any such letter was ever received. On June 19, 1973, defendant’s file was reviewed, his Texas conviction and the “hold” sent to Texas authorities were noted, and the file marked “close file until notified.”

Defendant wrote another letter dated September 15, 1980, and received on September 17, 1980, by the Vermilion County State’s Attorney. The letter stated in part:

“While in Texas I wrote to your office asking for a fast and speedy trial on your state’s escape charge which your office decided not to prosecute.”

The letter also made inquiry as to what amount of time remained for defendant to serve on his sentence for rape.

Defendant wrote another letter dated September 24, 1980, to the Vermilion County circuit court. This letter made no reference to the letter alleged to have been written in 1971, but it did make inquiry regarding what amount of time remained for defendant to serve on his sentence for rape.

Defendant first argues that the inaction of the Vermilion County State’s Attorney denied his right to a speedy trial under the United States Constitution. In determining whether a delay in trial has breached constitutional limitations, a four-part test weighing the conduct of both the defendant and the prosecution is used. (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182.) The four factors to be considered are (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant.

The length of the delay is a triggering mechanism to the operation of the test. (Barker v. Wingo (1972), 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) The defendant was indicted on September 16, 1970, and Illinois did not seek his extradition until December of 1982. The delay of over 11 years is inordinate and sufficient to trigger an inquiry into the other facts that go into that test.

The State explains the delay as the result of a procedure whereby the prosecution awaits the completion of sentence in a foreign jurisdiction prior to having a defendant transferred to face trial on unrelated charges. Relying on People v. McInery (1980), 91 Ill. App. 3d 68, 413 N.E.2d 876, the State claims that Illinois courts have given tacit approval to such delays. The reliance is misplaced. In McInery, there was a 33-month delay between the issuance of an extradition warrant and the appearance of the defendant in court pursuant to a fugitive information. The court commented on the delay as follows:

“The reason for this delay is unexplained. While we disapprove of such a delay, there is no evidence that the State intentionally delayed the proceeding so as to deprive defendant of his rights. Instead it appears the State felt it would be more orderly to wait until the sentence defendant was serving on his Illinois conviction was completed. [Citation.]” (Emphasis added.) 91 Ill. App. 3d 68, 70, 413 N.E.2d 876, 877.

Contrary to the State’s assertion, Mclnery explicitly disapproved of the delay which the State’s procedure caused.

Furthermore, in People v. Bryarly (1961), 23 Ill. 2d 313, 178 N.E.2d 326, the Illinois Supreme Court indicated that the State is not free to delay trial until the conclusion of a defendant’s foreign incarceration. There, defendant was indicted in September 1952, and his out-of-State incarceration became known to the Illinois authorities in April of 1955. An alias warrant was issued in October of 1959, and he was extradited in January of 1960. In reversing the conviction and dismissing the charges, the supreme court said that “the burden of taking the steps necessary to bring about a prompt trial rested upon the People.” (23 Ill.2d 313, 319, 178 N.E.2d 326, 329.) Therefore, we conclude that the State here had a duty to take steps to bring the defendant to a prompt trial. See also People v. Harflinger (1977), 49 Ill. App. 3d 31, 35, 363 N.E.2d 875, 878.

However, neither McInery nor Bryarly necessarily require reversal here. In subsequent speedy trial cases, the supreme court indicated that the reversal in Bryarly was grounded in large part upon facts, other than merely the delay, indicating that the prosecution of the defendant had been abandoned. (See People v. Moriarity (1966), 33 Ill. 2d 606, 610, 213 N.E.2d 516, 518; People v. Tetter (1969), 42 Ill. 2d 569, 575, 250 N.E.2d 433, 436.) There is no evidence here of an abandonment of the prosecution. Also, as in Mclnery, there is no evidence that the State intentionally delayed the proceedings as to prejudice the defendant or deprive him of his rights. We thus proceed to the remaining factors involved in the Barker test.

The third factor to be considered is the defendant’s assertion of his right to a speedy trial. The supreme court in Barker emphasized “that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (407 U.S. 514, 532, 33 L: Ed. 2d 101, 118, 92 S. Ct. 2182, 2193.) In its order denying defendant’s motion for dismissal, the trial court took note of the defendant’s testimony regarding the letter purportedly written in 1971 and the fact that neither the letter nor a copy was offered in evidence. The court explicitly found that “the evidence fails to sustain that defendant asserted his right to a speedy trial.”

In most cases where a speedy trial violation has been found, there was a continuous assertion of a right to a speedy trial on the part of the defendant through various letters and motions. (Barker; Smith v. Hooey (1969), 393 U.S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575; Dickey v. Florida (1970), 398 U.S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564.) By our defendant’s own testimony, other than the letter written in 1971, he made no inquiry regarding the status of the escape charge until September of 1980. Even then, defendant’s interest was not that he be given a speedy trial, but rather to what extent the time he was then beginning to serve in Federal custody would offset his sentence on the Illinois rape charge.

The 1980 letter to the State’s Attorney made reference to defendant’s purported request for a speedy trial in 1971. It made no request or demand for trial. Instead, it made a self-serving assertion that the State’s Attorney had decided not to prosecute the escape charge. Defendant’s 1980 letter to the circuit court did not even make reference to the 1971 letter, nor did it make or refer to any demand for trial. The defendant admitted in his own testimony that in neither of the letters written in 1980 was he demanding a speedy trial. The trial court’s conclusion that the defendant did not assert his constitutional right' to a speedy trial was not against the manifest weight of the evidence. Accordingly, this factor must be weighed heavily against the defendant. Barker; Harflinger.

Finally, defendant makes no claim that any actual prejudice in presenting his defense occurred because of the delay. Indeed, the record indicates that there is no question that the defendant forcibly absented himself from the Vermilion County jail, and there is no perceptible way in which the delay in trial hindered his defense. Defendant does assert that while in Federal custody he would have been eligible for work release and halfway house programs had it not been for the Illinois detainer. Also, he claims he has lost any chance to have his escape sentence run concurrently with any earlier prison terms.

We have found nothing in the record which indicates that defendant was denied entry into a work release or similar program because of a pending charge for escape. Furthermore, it is not clear that such could properly be considered as prejudice caused by a delay in trial. See Moody v. Daggett (1976), 429 U.S. 78, 86-87, 50 L. Ed. 2d 236, 243-44, 97 S. Ct. 274, 278-79; Watkins v. United States (6th Cir. 1977), 564 F.2d 201, 206-07.

As to defendant’s other claim of prejudice, a defendant already imprisoned can be injured by trial delay that prevents him from receiving a sentence at least partially concurrent with the one he was receiving. See Smith v. Hooey (1969), 393 U.S. 374, 378, 21 L. Ed. 2d 607, 611, 89 S. Ct. 575, 577.

Defendant’s two- to six-year sentence for escape runs concurrent to his sentence for rape. Since the rape sentence was for 9 to 10 years, to run concurrent with the Federal sentence, and the defendant subsequently served less than two years in Federal prison, the delay in his trial and sentencing on the escape charge did not result in any prejudice to him.

We are left with weighing the four factors, no one of which is either a necessary or sufficient condition for finding a deprivation of the right to speedy trial. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” (Barker v. Wingo (1972), 407 U.S. 514, 533, 33 L. Ed. 2d 101, 118, 92 S. Ct. 2182, 2193.) The trial delay of over 11 years after indictment is extraordinary. The delay was caused not by any bad faith on the part of the State, but merely its desire to postpone defendant’s trial until he would be returned to Illinois to serve his rape sentence in the normal course of serving his various outstanding prison terms. The evidence shows defendant made no assertion of his right to a speedy trial. The facts of the case are straightforward, and there is overwhelming evidence of defendant’s guilt. Defendant admits he suffered no prejudice in the defense of his case and we find no other prejudice caused to the defendant by the delay.

Defendant argues that the length of delay here is of such magnitude that (1) it tips the balance of the four factors in his favor, and (2) prejudice should be presumed. We have found no authority for basing a speedy trial violation on delay alone. Neither is there authority .for an irrebuttable presumption of prejudice solely because of the length of the delay in bringing a defendant to trial. Since People v. Love (1968), 39 Ill. 2d 436, 442, 235 N.E.2d 819, 823, several Illinois cases have suggested that pretrial delay may be so prolonged that it may be deemed to have prejudiced the accused. (See also People v. Gulley (1980), 83 Ill. App. 3d 1066, 404 N.E.2d 1077; People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815.) However, both in Love and the succeeding cases, the court either found actual prejudice or the delay was sufficient for prejudice to be presumed. The court in Love, in recognizing that a delay can be so prolonged that it must be presumed to have prejudiced an accused, cited two Federal appellate court cases, both of which make clear that the presumption merely shifts the burden to the prosecution to prove that the defendant has suffered no prejudice. (United States v. Banks (4th Cir. 1966), 370 F.2d 141, 145; Jackson v. United States (D.C. Cir. 1965), 351 F.2d 821, 822.) That burden has been met here.

We conclude on these facts, that extraordinary delay, produced by a good faith but improper procedure of the State, does not by itself constitute a speedy trial violation where the defendant did not assert his right to a speedy trial and clearly suffered no prejudice.

Defendant next claims that his right to a speedy trial under the agreement on detainers (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9) was denied. Under article III of the agreement a prisoner invokes its procedural time limits when, inter alia:

“[H]e shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint.”

A demand for a speedy trial under the agreement is to be evaluated against a more stringent standard than a request that a charge be dismissed based on an alleged violation of defendant’s constitutional right to a speedy trial. (See People v. Jones (1981), 84 Ill. 2d 162, 417 N.E.2d 1301.) A demand for a speedy trial must be clear and unequivocal (People v. Athide (1979), 71 Ill. App. 3d 963, 966, 389 N.E.2d 240, 242). A demand for a speedy trial is distinct from request for a dismissal based on its alleged denial. (See Sacco v. Falke (8th Cir. 1981), 649 F.2d 634, 636; Brown v. Estelle (5th Cir. 1976), 530 F.2d 1280, 1283.) Further, the sending of informal requests for disposition of a defendant’s charges does not initiate the Act’s provisions. Beebe v. Vaughn (D. Del. 1977), 430 F. Supp. 1220; Gray v. Benson (D. Kan. 1978), 443 F. Supp. 1284; Williams v. Maryland (D. Md. 1978), 445 F. Supp. 1216.

We have already discussed how defendant’s two letters written in 1980 failed to make a request for a speedy trial even under the less stringent requirements of the sixth amendment. Defendant admits that the explicit requirements of the agreement were not met, but maintains a liberal construction should be given to the two letters because there is nothing in the record to indicate that the defendant was notified, as required by the agreement, of his right and duties under the agreement. Defendant cites no authority for this proposition. The law in Illinois is to the contrary. Despite the fact that a warden fails to advise a defendant of his rights under the agreement, a court has no authority to dismiss an indictment unless the explicit terms of the agreement are fulfilled by a defendant. People v. Uplinger (1976), 45 Ill. App. 3d 558, 359 N.E.2d 1052.

Even if it would be appropriate in extraordinary circumstances, the facts here would not justify such an extension. In defendant’s 1980 letter to the State’s Attorney, his reference to his 1971 letter clearly shows that he understood the distinction between demanding a speedy trial and claiming one had not occurred. Furthermore, on cross-examination at the hearing on the motion to dismiss, the defendant gave the following testimony regarding the 1980 letters:

“Q. You don’t contend that you are specifically demanding speedy trial in People’s Exhibit 12, do you?
A. I can’t say that I did in writing, no, sir.
Q. Okay, thank you. Now, in Number 15, your letter of the 24th, please review that, and tell us if, in there, you are demanding speedy trial?
A. No, sir.
Q. Okay, Mr. Howell, you’ve reviewed Number 15 and your answer is?
A. No.
Q. You did not demand a speedy trial in that exhibit either?
A. No, sir.”

It is only in the letter of 1971 that defendant claimed that he demanded a speedy trial. No argument has been made that the 1971 letter served to trigger the agreement' on detainers.

Finally, we note that we are aware that since the agreement is an interstate compact, it is Federal law and is to be interpreted as such. (Cuyler v. Adams (1981), 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703; People ex rel. Vogel v. Fairman (1983), 112 Ill. App. 3d 477, 445 N.E.2d 860.) We know of no Federal law contrary to the conclusions we have reached. In fact, in Federal habeas corpus proceedings, great significance has been attached to the distinction between a demand for a speedy trial and a claim that a speedy trial has been denied. (See Sacco; Brown.) Therefore, we conclude that the trial court’s order denying defendant’s motion to dismiss because of an asserted denial of a speedy trial, was correct.

II. PROSECUTORIAL MISCONDUCT

Due to the current State’s Attorney having been the defendant’s appointed counsel in the rape case, a motion for appointment of special prosecutor was filed on December 24, 1980, and John McClory, a private attorney was appointed.

The defendant, through his counsel in Memphis, Tennessee, negotiated an agreement with the special prosecutor whereby, if the defendant succeeded in his petition for executive clemency for the 1970 rape conviction, the prosecutor would dismiss the pending escape charge. The agreement was evidenced in part by a letter written to Governor Thompson in care of the Illinois Prison Review Board by McClory in which he wrote, inter alia:

“For these reasons I recommend that Mr. Howell’s remaining sentence on the rape case (70 Y 131) be remitted by executive clemency. If this occurs, I will dismiss the Illinois escape case. I have discussed this with our chief judge and he indicated that he concurs in my recommendation.”

After McClory inexplicably disappeared in December of 1980, Craig DeArmond, another local attorney, was substituted as special prosecutor. After reading the files and contacting defendant’s attorney, DeArmond came to the conclusion that the negotiated “agreement” at no time included a requirement that the special prosecutor either cooperate with or recommend executive clemency, but merely that if such clemency was granted there was an obligation to dismiss the escape charge. DeArmond notified defendant’s counsel of his position.

DeArmond also discovered that McClory’s letter contained a false representation regarding the presiding judge’s purported concurrence with McClory’s personal recommendation for clemency made outside the perimeters of the agreement. DeArmond immediately notified both the judge involved and the Governor through the Prisoner Review Board of this misrepresentation, and the judge then wrote a letter confirming the same. In his letter, DeArmond also strongly opposed the granting of executive clemency to the defendant. In a letter to defendant’s attorney, DeArmond wrote:

“I neither agree with nor will I assist in obtaining Executive Clemency for Mr. Howell. I have spoken with Judge Robinson, who indicated he at no time agreed with or supported Executive Clemency. He further advised he agreed only that Mr. Mc-Clory, as prosecutor, could make whatever decision he chose with regard to prosecution of the Escape should Mr. Howell receive Clemency. As a judicial officer, Judge Robinson indicated he was not and would not be a party to the decision making process, but merely that he was in agreement with Mr. Mc-Clory’s prosecutorial discretion. If pressed for an opinion, he indicated he would not support a request for Executive Clemency.”

Defendant’s request for executive clemency was denied.

There is no question that a successor prosecutor is bound by the agreements of his predecessors. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 385 N.E.2d 829.) Defendant concedes that the prosecutor did not violate the letter of the “agreement,” but maintains that the prosecutor was implicitly bound not to subvert the promise by opposing executive clemency. Thus, DeArmond’s conduct was improper.

The difficulty with defendant’s position is that there was no plea agreement involved here. In fact, the defendant agreed to nothing. The prosecutor made a gratuitous promise requiring nothing of the defendant. The defendant was free at all times to seek or not seek clemency from the Governor. Upon succeeding to the prosecutor’s post, DeArmond informed defendant’s attorney that he would abide by the letter of the “agreement,” but would attempt to block the occurrence of the condition which would trigger it. There was no guile in the actions of the prosecutor.

With Cooper v. United States (4th Cir. 1979), 594 F.2d 12, as his authority, defendant implicitly argues that he need show no prejudice in order to have a court enforce this “agreement” with the special prosecutor. We remain unconvinced that defendant has a constitutional right to prevent the undermining of a gratuitous promise by a prosecutor. In Cooper, the terms of a plea agreement were withdrawn by the prosecutor shortly after the defendant agreed to accept the agreement, but before defendant’s counsel could communicate his acceptance to the prosecutor. The court stated:

“We hold instead that under appropriate circumstances — which we find here — a constitutional right to enforcement of plea proposals may arise before any technical ‘contract’ has been formed, and on the basis alone of expectations reasonably formed in reliance upon the honor of the government in making and abiding by its proposals.” (594 F.2d 12, 18.)

The third circuit (Virgin Islands v. Scotland (3d Cir. 1980), 614 F.2d 360), and the Illinois Appellate Court (People v. Robinson (1980), 82 Ill. App. 3d 937, 403 N.E.2d 604) have rejected Cooper’s conclusion that an expectation alone is sufficient to establish a defendant’s interests in a plea agreement. We believe Virgin Islands and Robinson represent the better view.

Defendant also asserts that he detrimentally relied on the prosecutor’s promise. However, he does not explain what the alleged detriment was, and we find nothing in the record to indicate that defendant was in any way prejudiced. Therefore, the trial court’s denial of defendant’s motion to dismiss because of prosecutorial misconduct was correct.

III. THE SENTENCE

The trial court, in passing sentence, made the following comments:

“The State has presented the position that you are one of those people, Mr. Howell, who has no redeeming virtue and that for the protection of society, you should be warehoused indefinitely, and there are some people who fall in that category. *** The arguments of Mr. Ney are also a bit persuasive. *** Mr. Ney has represented that you have served a large portion of your life behind bars, that you would reach a point of diminishing your terms, that further incarceration would only serve to make you more bitter and less useful at whatever date you might be released, that you have paid in full for whatever offenses you may have committed, and that now is the time that you should be released. If the Court was gifted with a crystal ball, I would know which position is right. Unfortunately, I am not. I think that certainly you have spent an awfully large portion of your life, you’ve spent a lot of years behind bars. I think it goes without saying that any rehabilitative factors that may be at work that may be beneficial, you have had the time and opportunity to receive those. And probably as far as you are concerned individually, Mr. Howell, you have reached or maybe already passed the point at which it would be better to release you into society with the hope that you have benefitted from your experiences, learned the error of your ways, and would be able to make it successfully on the outside. However, the Court cannot consider you alone. When a man is isolated from his fellowman whose acts are not isolated, whatever anyone does has an effect on the rest of the People. *** The Court has to consider the effect this sentence might have on someone else that may be down in the Public Safety Building facing a sentence and considering the possibility of effecting his own release. The manner in which you perpetrated the escape, endangering the safety of the correctional officers, one of them a young officer who was just starting his career. *** I feel that there has to be some penalty imposed for this escape due to the effect it would have on others considering such a manner of getting out of jail. I think if no sentence were imposed upon it, it would deprecate the seriousness of the offense itself.” (Emphasis added.)

Defendant, by selectively quoting from the above comments, suggests that the trial court concluded that the defendant was rehabilitated, that further incarceration would be of no benefit to him or protect the public, and that he was improperly imprisoned solely to deter others. People v. Knowles (1979), 70 Ill. App. 3d 30, 388 N.E.2d 261.

Taken as a whole, the trial judge’s comments clearly indicate that he was unsure as to whether defendant had been rehabilitated. Furthermore, he specifically found that if no sentence was imposed “it would deprecate the seriousness of the offense.” The record thus amply demonstrates substantial compliance with the requirements of section 5 — 6—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1). See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Defendant also argues that his sentence of imprisonment is contrary to the purposes of the Unified Code of Corrections. Section 1— 1 — 2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1001 — 1—2) sets out its purposes as follows:

“Purposes. The purposes of this Code of Corrections are to:
(a) prescribe sanctions proportionate to the. seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders;
(b) forbid and prevent the commission of offenses;
(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; and
(d) restore offenders to useful citizenship.”

Defendant argues that, because he has demonstrated that he is rehabilitated, further incarceration serves no purpose. Even if we assume that defendant is completely rehabilitated, contrary to the reluctance of the trial court to reach such a conclusion, we still cannot conclude that a sentence of imprisonment here subverts the purposes of the Code of Corrections. Among the purposes listed in the Code is to prescribe sanctions proportionate to the seriousness of offenses and to forbid and prevent the commission of the offenses.

Imposing a sentence so as to not deprecate the seriousness of an offense serves to both prescribe sanctions proportionate to the seriousness of the offense and prevent the commission of offenses. The trial court noted that in the commission of the escape a correctional officer was taken hostage and his life was endangered. We cannot say that the trial court’s conclusion, that no sentence of imprisonment would deprecate the seriousness of the offense, was erroneous. The sentence was within the purposes of the Unified Code of Corrections.

The judgment and sentence of the trial court are affirmed.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER H. WASSELL, Defendant-Appellant.
    Fourth District
    No. 4—83—0048
    Opinion filed November 3, 1983.
    Jack P. Rimland, of Chicago, for appellant.
    Michael R. Roseberry, State’s Attorney, of Pittsfield (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted by a jury in the circuit court of Pike County of the offense of solicitation (murder) in violation of section 8 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 1). He was sentenced to six years’ imprisonment.

On appeal three issues are raised: (1) error by the trial court in refusing to suppress evidence gained by use of an eavesdropping device, (2) improper jury instructions, and (3) error by the trial court in refusing to grant a new trial based upon newly discovered evidence. While the guilt of the defendant appears plainly evident, we find that he was deprived of a fair trial through the use of improperly obtained eavesdropping evidence and that a new trial is mandated. In view of this holding, the other issues become moot.

The chain of events leading to the filing of the information charging the offense began with the filing of a petition for authorization of the use of an eavesdropping device on May 26, 1982. The petition was executed by Alfred Benton, a special agent of the Illinois Department of Law Enforcement. In pertinent part it alleged:

“(a) The offense of Solicitation/Murder, is about to be committed in that Walter H. Wassell has on two occasions between May 9, 1982 and May 18, 1982 contacted a confidential source of police officials and inquired if C/S could arrange to have Lucy Wassell, wife of Walter, killed in such a manner so as to appear it was a Burglary of the Wassell residence, some time immediately following June 1,1982.
(b) That on May 18, 1982 Walter Wassell agreed to meet with an individual for the purpose to discuss the details of said killing.
That on May 25, 1982 and May 26, 1982 Walter Wassell agreed further to meet an individual on May 26, 1982, at 8 pm, at Colonial Motel, E. Hannibal, II in East Hannibal, Ill. [sic] for the express purpose of discussing and arranging for the death of Lucy Wassell.”

Filed with the petition was a consent signed by Arthur Avart, another special agent of the Illinois Department of Law Enforcement, and a consent of the State’s Attorney of Pike County. Based upon these documents, and without any further evidence, a judge of the circuit court of Pike County signed an order authorizing the eavesdropping on May 26,1982, between the hours of 7 and 10 p.m.

A report was made on May 28, 1982, stating that no conversations were overheard because the defendant failed to appear at the scheduled meeting. A second application was filed on June 1, 1982, and was labeled “Request for Extension.” It was executed by Benton and accompanied by consents from Avart and the State’s Attorney.

The pertinent passages from it allege:

“The felony of Solicitation/Murder has been is, or is about to be committed, such belief being based on the following facts: (see initial application) Walter Wassell has contacted Informant about setting up death of his wife Lucy and that as soon as May 31, 1982, Walter Wassell has confirmed his desire to have his wife killed and requested Informant to have person who would do it contact him per clause 7(c) of this petition.”

Clause 7(c) of the application alleges in pertinent part:

“On May 31, 1982 Walter Wassell did contact confidential source and requested telephone call from agent at Cardinal Inn, Pittsfield, Illinois on or after June 1, 1982 at 6:30 am regarding arranged death of his wife.”

The same circuit judge, based upon the request for extension and the accompanying consents, and without further evidence, signed an order authorizing eavesdropping from June 2, 1982, at 6 a.m. to June 10,1982, at 11:59 p.m.

Under the authority of this latter order two telephone conversations between defendant and agent Avart were recorded oñ tape on June 2, 1982. On June 2, 1982, a meeting between Avart and defendant was tape-recorded and video-recorded. At this meeting defendant arranged with Avart, whom he believed to be the “hit man,” to have Avart murder his wife.

Defendant filed two pretrial motions to suppress the eavesdropping evidence, one before the judge who issued the orders and the other before the judge who presided at trial. Both motions were denied.

Since the State’s argument concerning the eavesdropping evidence is based in part upon some of the evidence received at trial, a brief recapitulation of the trial evidence is in order even though no question of reasonable doubt has been raised on appeal.

William Pruitt, a convicted burglar and an inmate of the Vandalia Correctional Center, was returned upon a writ of habeas corpus ad testificandum and testified for the State. He stated that defendant spoke to him about May 9, 1982, stating that his wife was “giving him a hard time” and wondered if Pruitt “could find somebody to kill his wife.” He told Pruitt that he wished the incident to appear as a burglary. After waiting a couple of days, Pruitt spoke to Robert Yel-liott, a police officer, who requested him to meet with him on the afternoon of May 11. Pruitt arrived for that meeting and found special agent Benton present. He informed Yelliott and Benton that defendant was seeking someone to murder his wife.

. Yelliott and Benton both testified for the State, the former confirming the conversation with Pruitt. Benton described the various efforts to arrange meetings with the defendant and further testified that Pruitt had been paid $500 for his services as an informant in this case.

Arthur Avart, the special agent who ultimately met with defendant, described various telephone calls which led up to the meeting between himself and the defendant on June 2 and explained the mechanics of the recording devices. During the meeting defendant drew a map of his home for Avart and handed him a $100 bill for expenses incurred. Defendant was arrested after his meeting with Avart.

The recordings of the two telephone conversations and the videotape of the meeting were then played for the jury. On that tape defendant indicated that he could no longer get along with his wife and wanted her dead; Avart was to commit the murder and to make it appear to have occurred in the course of a burglary; the agreed price was $1,000, the money to be placed in defendant’s dresser to be collected at the'time of the murder.

After the playing of the tapes, the State rested. Defendant’s son testified on his behalf that even after defendant’s arrest he continued to live with his wife and that during the months of April and May 1982 Pruitt called his house two or three times a week asking him to have defendant call Pruitt. Eleven character witnesses appeared for defendant, all of them testifying that his reputation in the community for being a peaceful and law-abiding citizen was excellent.

Defendant took the stand in his own defense and stated that he received numerous phone calls from Pruitt and Avart (whom he knew as Rick); he admitted to the conversations and the meeting with Avart but claimed he was trying to find excuses to put off the alleged “hit” because he did not intend to have his wife killed; his version of the $100 to Avart was that it was an attempt to get rid of him. Defendant’s wife, Lucy, testified that she did not believe he intended to have her killed.

In rebuttal, both Pruitt and Avart testified about the phone calls. Avart stated that he called defendant only on the day of the meeting; Pruitt denied making the calls during April and May.

■As has been indicated, the jury returned with a verdict of guilty. Defendant filed a motion for new trial based upon newly discovered evidence. Park Lacy, Jr., testified at that hearing that sometime during the month of May 1982 William Pruitt was in Lacy’s tavern and that Lacy heard him say that he and defendant “were on the outs” and that “he was going to fix him up good.” Terry Wassell, defendant’s son, also testified that he had been informed by a Rick Johnson that Johnson had overheard a similar statement by Pruitt. The trial court denied the motion for lack of diligence on the part of the defendant in discovering the evidence.

This case is one in which one of the parties consents to the eavesdropping. The Supreme Court has held that such a situation does not offend the fourth amendment. (United States v. White (1971), 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122.) Any restrictions placed upon it are regulated by statute and not the constitution. People v. Childs (1979), 67 Ill. App. 3d 473, 385 N.E.2d 147.

The statutory regulations in this State are found at sections 108A — 1 through 108A — 11 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, pars. 108A — 1 through 108A — 11.) Section 108A — 3(a) sets forth the requirements for an application for an eavesdropping device. Among other things, the application must contain a statement of facts and circumstances relied upon by the applicant to justify his belief that an order should be issued. Section 108A— 3(b) provides: “The judge may request the applicant to furnish additional testimony, witnesses, or evidence in support of the application.” Section 108A — 4 requires the authorizing judge to find reasonable cause.

Defendant has argued here that the application must meet the two-prong test of Aguilar and Spinelli (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584). We note that this test has been abandoned by the Supreme Court in favor of a “totality of circumstances” test. (Illinois v. Gates (1983), 462 U.S. -, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) In any event, that argument was rejected in People v. Moore (1980), 90 Ill. App. 3d 760, 413 N.E.2d 516. In Moore this court explained the difference in mechanics between an application for a search warrant and an application for an eavesdropping device. In the case of the search warrant, the AguilarSpinelli test (now the Gates test) must be met on the face of the application. In the case of the eavesdropping device, the additional testimony under section 108A — 3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3(b)) is the key. In both instances these are methods of determining the credibility and reliability of the hearsay in the applications.

Without deciding, as we need not in this case, whether there is a qualitative difference between probable cause needed for a search warrant and reasonable cause needed for an eavesdropping device, it is our opinion that the record here sustains neither burden.

The State makes the novel argument that the testimony received at trial would somehow retroactively support the application. Specifically, the State points to the trial testimony of Yelliott and Benton that Pruitt had previously acted as a confidential informant. We know of no well-reasoned authority which states that after-acquired or after-presented testimony is available to bolster an inadequate application.

The fundamental principle involved is that the judge issuing an eavesdropping authorization must find reasonable cause; it follows from this that if hearsay appears in the application, he must have some basis for crediting that hearsay. This may be accomplished in either of two ways: (1) on the face of the application itself as in the case of an application for a search warrant (Moore), or (2) through the use of additional evidence under section 108A — 3(b). Ill. Rev. Stat. 1981, ch. 38, par. 108A-3(b).

The statement made in People v. Sylvester (1980), 86 Ill. App. 3d 186,193-94, 407 N.E.2d 1002, 1009, is pertinent:

“Therefore, we conclude that the judge's approval or authorization for use of an eavesdropping device, upon a finding that reasonable cause exists for believing an individual is committing, has committed or is about to commit a felony and that a particular conversation relating to that felony will be obtained (Ill. Rev. Stat. 1977, ch. 38, pars. 108A — 4(b), (c)), can appropriately be based on the application submitted together with additional testimony and evidence submitted at his request.
Irrespective of what additional information or testimony, if any, was given at the time the eavesdropping application was reviewed, we reject the defendant’s argument because we find the application and accompanying documents were sufficient to enable the judge to make the findings required by statute.”

In the case at bar neither course of action was taken. An examination of the application and the extension, set forth above, reveals unadulterated hearsay in each of them. The record is totally silent as to any evidence taken in connection with either one. The authorization was improperly granted and the evidence obtained should have been suppressed. It was not, and defendant is entitled to a new trial without that evidence.

Since the case must be retried, a brief comment on the instructional issue is in order, although it has not been preserved for review in defendant’s post-trial motion. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

The court gave to the jury the pattern instruction defining the offense of solicitation. (Illinois Pattern Jury Instruction (IPI), Criminal, No. 6.01 (2d ed. 1981).) It followed IPI Criminal No. 6.01 with IPI Criminal No. 7.01 defining murder. The latter included three types of murder: (1) intent to kill, (2) knowledge that such acts will cause death, and (3) knowledge that such acts create a strong probability of death. Since solicitation is an offense requiring specific intent, the contradiction is patent. People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.

Standing alone, we do not believe that this error constitutes a basis for reversal. Defendant claimed entrapment and thereby admitted all of the elements of the offense, including the mental state. Therefore, the jury could not have been misled. However, on retrial only the specific intent to kill alternative of IPI Criminal No. 7.01 should be given.

In view of the necessity of retrial the question of newly discovered evidence becomes moot.

The conviction and sentence of the defendant are therefore reversed and the cause is remanded to the circuit court of Pike County for a new trial in accordance with the views expressed herein.

Reversed and remanded for new trial.

GREEN and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY STARKS, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS MILLER, Defendant-Appellant.
    Fourth District
    Nos. 4 — 83—0144, 4 — 83—0145 cons.
    Opinion filed November 3, 1983.
    Rehearing denied December 7, 1983.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s

      Office, of Springfield, for appellant Terry Starks.
    Jerome Rotenberg, of Chicago, for appellant Travis Miller.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Livingston county, defendants, Terry Starks and Travis Miller, were convicted on January 12, 1983, of a violation of section 3 — 6—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6—4(a)). On February 16, 1983, the court sentenced them to terms of 12 and 11 years’ imprisonment, respectively. Each sentence was ordered to be consecutive to sentences each defendant was then serving. Separate notices of appeal were filed but the cases have been consolidated in this court.

Defendant Miller maintains that the indictment was defective. They both contend that: (1) The trial court erred in allowing correctional officers to give testimony identifying defendants as persons the officers had seen on a videotape taken during the occurrence giving rise to the charges; (2) the prosecutor’s closing argument was prejudi-cially improper; and (3) the court erred in sentencing.

The indictment returned on October 6, 1982, charged of each defendant that on July 29,1982:

“being a person committed to the Department of Corrections, he caused or participated in the destruction of property during a disturbance at the Pontiac Correctional Center by knowingly tearing conduit off pipes and damaging other property, of the State of Illinois, Pontiac Correctional Center,”

in violation of section 3 — 6—4(a) of the Unified Code of Corrections. Relevant portions of that section state:

“A committed person *** while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property is guilty of a Class 2 felony.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6— 4(a).)

Thus, the charges did not state in the language of the statute that the defendants were “participating in [a] disturbance” while they participated in destruction of the property. Defendants maintain that, accordingly, the indictment was fatally defective.

Defendants’ contentions concerning the sufficiency of the indictment are viewed in the posture of the failure of the defense to raise the issue in the trial court. When attack is made upon a charge at this time, the charge “is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.) In Pujoue, a complaint purporting to charge unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, pars. 24 — 1(a)(4), 24 — l(a)(10)) failed to make the required allegation that the weapon involved was either concealed or loaded. The supreme court, nevertheless, deemed the charge sufficient to enable preparation of a defense and to protect the defendant from double jeopardy.

We need not decide whether any defect in the charges here would constitute error, if timely raised, because any claimed defect was no more prejudicial to defendants here than was the defect in Pujoue which failed to apprise the defendant that the State claimed his weapon was concealed or loaded. Here, as in Pujoue, a resulting conviction could be pleaded in bar of subsequent prosecution. The defect in the charge did not require reversal.

The evidence undisputedly showed that on July 29, 1982, defendants were inmates at the Pontiac Correctional Center and that a riot occurred at that institution on that date apparently arising from a dispute between rival gangs. An inmate was killed during the course of the riot. The evidence was also undisputed that a telephone communication conduit was torn from a wall during the episode. One inmate testified that he saw defendant Miller tear portions of the conduit off of a wall and pass it to another inmate. This witness was impeached by evidence that he had previously told an investigator that he knew nothing of the incident and then told of seeing Miller’s conduct only after receiving favorable treatment from the administrative officer of the center. All of the rest of the testimony tying either defendant to the offenses charged came from the testimony of correction officers who had viewed a videotape of the occurrence made by cameras which had been trained on the area where the riot occurred. This testimony identified Miller as a person shown in the tapes to be tearing a portion of a conduit from a wall and Starks as a person shown there to have passed the torn conduit to other inmates.

Defendants argue that the testimony of the guards was expert testimony by persons not experts and on a subject upon which the jury was fully capable of making its own determination by viewing the tapes after they were admitted into evidence. (People v. Dixon (1980), 87 Ill. App. 3d 814, 410 N.E.2d 252.) However, we do not deem the testimony to have been expert testimony but rather lay testimony of persons familiar with the defendants, identifying persons shown on tapes as defendants. Although the witnesses did not all know the names of the defendants, all testified to having seen the defendants they identified on numerous occasions prior to the event. Some of them had to look at mug shots containing the defendants names in order to learn the names of the defendants.

The United States Circuit Courts of Appeal have considered the problems of the introduction of testimony of lay witnesses identifying the accused as being a person depicted in pictures. At issue has been the application of Rule 701 of the Federal Rules of Evidence, which states:

“If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

In United States v. Calhoun (6th Cir. 1976), 544 F.2d 291, the court stated that testimony of a defendant’s parole officer that the defendant was a person shown in a picture taken at the time of the offense would have been helpful because the appearance of the defendant had changed between the time of the offense and trial. The court stated that the evidence “teases the outer limits” of Federal Rule 701. Nevertheless, the court awarded a new trial because of the prejudicial effect of showing that the defendant was subject to parole.

In United States v. Butcher (9th Cir. 1977), 557 F.2d 666, testimony similar to that given in Calhoun was given by the defendant’s probation officer and two law enforcement officers. The court held that the trial court did not abuse its discretion in considering the probative value of the evidence to outweigh the prejudice arising from the inference that defendant had committed other crimes. The court was concerned with whether the testimony invaded the province of the jury because, unlike in Calhoun, the appearance of the defendant at trial was more similar to that at the time of the crime than that when the witnesses last saw the defendant before the crime. The court concluded that the admission of the evidence was not error of constitutional dimensions. See also United States v. Barrett (9th Cir. 1983), 703 F.2d 1076; United States v. Borrelli (10th Cir. 1980), 621 F.2d 1092.

In People v. Mixon (1982), 129 Cal. App. 3d 118, 180 Cal. Rptr. 772, California law, as first established in People v. Perry (1976), 60 Cal. App. 3d 608, 131 Cal. Rptr, 629, was described as requiring:

“two predicates for the admissibility of lay opinion testimony as to the identity of persons depicted in surveillance photographs: (1) that the witness testify from personal knowledge of the defendant’s appearance at or before the time the photo was taken; and (2) that the testimony aid the trier of fact in determining the crucial identity issue.” (129 Cal. App. 3d 118, 128, 180 Cal. Rptr. 772, 777; see also State v. Jamison (1980), 93 Wash. 2d 794, 800, 613 P.2d 776, 779.)

Mixon and Jamison both indicate that the second predicate can be satisfied whenever the surveillance photograph is not a clear depiction of the subject or the defendant’s appearance at the time of trial is different from his appearance at the time of the crime.

Here, there was no prejudice from having correctional officers testify because the jury would otherwise have been fully aware that the defendants were convicted criminals. The officers were familiar generally with the defendants’ appearances at the time of the occurrence but there was no indication that their appearances had changed by time of trial. The indications of the Butcher opinion was that the court there would have upheld the admission of the evidence under these circumstances. However, in United States v. Jackson (7th Cir. 1982), 688 F.2d 1121, 1125, the court implied that testimony of the nature here should be excluded when not necessary because the accused’s appearance had changed between time of the offense and time of trial.

In this case there is an additional element referred to in Mixon but not involved in the Federal cases. The tape was such that the persons stated to be defendants were somewhat in the background of the picture, making it more difficult for jurors to make identification. This case is also different than those cases in which still pictures were used. Here the scene shown was a moving one. One familiar with the defendants’ mannerisms and body movements would be better able to determine whether either defendant was shown in the videotape than would a juror who had only seen defendants in the court room.

We conclude that the testimony here was rationally based upon the witnesses’ personal knowledge of the defendants before the occurrence and their perception of what they saw in the videotapes. It was an aid to the jury in resolving the issue of identification and did not invade the province of the jury. We hold the evidence to be admissible. We caution, however, that admission of such testimony would permit similar testimony on behalf of defendants. (See United States v. Jackson (7th Cir. 1982), 688 F.2d 1121, 1126 (Shador, J., dissenting).) Trial judges should limit the amount of such cumulative evidence.

Objection was made that the procedure in which the witnesses viewed mug shots was unduly suggestive because of some evidence that the officers talked among themselves while viewing those pictures. However, the procedure was only for the purpose of obtaining the name of the persons the officers had in mind and not for the purpose of determining whether the persons the officers had in mind were the persons shown on the videotape. The procedure was not erroneous.

We need not comment on defendants’ claims of error in the prosecutor’s closing argument. Clearly, none of the argument amounted to plain error. If any lesser error occurred it was waived by the failure of defendants to raise the issue in the trial court. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

The offense of which the defendants were convicted was a Class 2 felony, punishable by a term of from two to seven years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6—4(a).) The trial court found each of them to be subject to extended terms of imprisonment (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2(b)(l)) of 12 years for Starks and 11 years for Miller. In making a comprehensive explanation of the sentence imposed, the trial court mentioned that it found the conduct of defendants to have caused serious harm to the convict who was killed. Defendant Miller maintains that imposition of an extended term was error. Both contend that the finding that the defendants’ conduct had caused harm to the convict who was killed was not supported by the evidence and was prejudicial error.

The consecutive sentences were imposed because each defendant had, within the past 10 years, been convicted in this State of a greater class felony upon charges separately brought and tried and arising out of different acts. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) Miller’s prior conviction was for armed robbery and that of Starks was for murder. Defendant Miller maintains that the enhancement was improper because the reason they were incarcerated was because of those offenses and thus those offenses should be considered as an element of the offense of which their convictions are on appeal. He seeks to draw analogy to the decisions in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654. In Haron, the court held that the possession of a weapon by the accused cannot both raise what would otherwise be a misdemeanor to a felony and also serve as the basis for convicting the defendant of armed violence. Similarly, in Gresham the court held that the same prior conviction may not enhance what would otherwise be a misdemeanor charge to a felony and also serve as the basis of imposing an extended term sentence for that felony. Miller also stresses that in People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254, we held that in sentencing the trial court erred in considering, as an aggravating factor (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)), that 'the defendant’s conduct caused or threatened serious harm. We concluded there that the harm threatened was no greater than that inherently threatened in any burglary and that the legislature did not intend to enhance sentences for conduct inherent in the principal offense.

The foregoing cases are not analogous to the instant case. In Harón, the very same conduct was used to raise the offense for which the defendant was convicted from a misdemeanor to a felony and then to armed violence. In Gresham, the offense was raised to a felony and then enhanced merely because of the same conviction. Here, the defendants had to have been committed to the Department of Corrections to have been guilty of the offense charged and would not have been committed but for the offenses used to enhance. However, here, there is no predicate offense which rose from a lesser offense merely because defendants had committed the prior offenses used to enhance. Miller contends that either the offenses of criminal damage to property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a)) or criminal damage to State-supported property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 4(a)) could constitute that predicate offense. But the offense charged here requires not only that the defendants be committed to the Department but that their conduct occur during a disturbance, an element which was not part of the offenses used to enhance.

The case also differs from Allen. Even if being committed to the Department be deemed the same as the commission of an offense that is an element of the crime, the commission of a crime severe enough to be used to enhance the sentence is not required in order for a person to be committed. That could result from a misdemeanor or a lesser felony. Thus, the conduct forming the basis for the enhancement was not inherent in the offense for which the defendants had been convicted as was the case in Allen.

The record does not support the trial court’s finding that the defendants’ conduct caused serious physical harm to the inmate who was killed in that the evidence did not show a connection between the portion of the conduit torn by Miller and passed by Starks and the wounds suffered by the inmate. However, the court’s finding that the defendants intended that the tom material be used as a weapon could have properly been inferred from the evidence. The complained-of finding was but one of many aggravating factors considered. No contention was made at sentencing that the court was considering improper aggravating factors. No reversible error occurred.

For the reasons stated, we affirm the convictions and the sentences.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE ex rel. MICHAEL RAY YORK et al., Petitioners-Appellees v. ALAN C. DOWNEN, Hamilton County State’s Attorney, Respondent-Appellant.
    Fifth District
    No. 83—295
    Opinion filed November 4, 1983.
    Rehearing denied December 5, 1983.

      Alan C. Downen, State’s Attorney, of McLeansboro, for appellant, pro se.

    Charles M. Given, of Mt. Vernon, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Respondent Alan Downen, State’s Attorney of Hamilton County, appeals from an order of the circuit court of that county enjoining him from conducting a grand jury investigation into alleged election irregularities occurring in connection with the general election held November 2, 1982. That order also appointed the Attorney General of the State of Illinois as a special prosecutor for the purposes of conducting such an investigation. The respondent’s assignments of error are that (1) the trial court erred in denying his motion for a change of venue as a matter of right, (2) the petition and the evidence in support of it were insufficient to justify the appointment of a special prosecutor, and (3) the injunction issued was overly broad. Because we agree that the petitioners have not established cause to appoint a special prosecutor, we reverse the court’s order and need not consider the remaining issues.

The alleged election irregularities which are the subject of this litigation have to do with the casting of approximately 700 absentee ballots in the 1982 general election. After that election took place, the respondent was contacted by the Illinois State Board of Elections, who alerted him to the possibility of those irregularities. The respondent, in turn, contacted the Illinois Department of Criminal Investigation, which sent several agents to Hamilton County to investigate the casting of absentee ballots. A suit was filed in the circuit court of Hamilton County, captioned Illinois State Board of Elections and Alan Downen v. Lovella Craddock. This suit, against the county clerk of Hamilton County, sought impoundment of the absentee ballots. Those ballots were still under impoundment at the time of the hearing on the instant petition.

In February 1983, the respondent filed a petition with the circuit court to convene a grand jury. One of the areas of investigation by this grand jury was to be the alleged voting irregularities. That grand jury was scheduled to meet on April 18, 1983. This litigation began with the filing of a petition by certain voters and residents of Hamilton County on April 11. The petitioners averred that the respondent was “interested in any cause of [sic] proceedings, civil or criminal, which may arise concerning the General Election held November 2, 1982,” and requested the appointment of a special prosecutor pursuant to section 6 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1981, ch. 14, par. 6).

The respondent asserts that the petition was insufficient as a matter of law, for it did not identify a pending cause of action from which he could have been disqualified. While section 6 (Ill. Rev. Stat. 1981, ch. 14, par. 6) only refers to the appointment of special prosecutors in pending cases, this does not mean that the circuit court is limited to those circumstances in appointing a prosecutor. These principles are explained in In re Appointment of Special State’s Attorneys (1976), 42 Ill. App. 3d 176, 356 N.E.2d 195, and Wilson v. County of Marshall (1930), 257 Ill. App. 220, and there is no need to repeat them here.

Section 6 of “An Act in regard to attorneys general and state's attorneys” authorizes the appointment of a special prosecutor if the State’s Attorney “is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend.” (Ill. Rev. Stat. 1981, ch. 14, par. 6.) The petition filed in these proceedings lists two categories of conflicts which, it is asserted, preclude the respondent from calling for the grand jury investigation into the alleged voting irregularities., First, the petitioners contended, and the court so found, that the statutory duty of the respondent to give legal advice to county officials such as the county clerk (Ill. Rev. Stat. 1981, ch. 14, par. 5) gave rise to an attorney-client relationship between the respondent and the clerk, and thus to a conflict of interest. Second, the petitioners referred to certain irregularities in the absentee ballots cast by the respondent’s grandmother and ex-wife. This category of allegations was not mentioned in the court’s order.

We cannot agree that the respondent’s capacity as advisor to the county clerk gives rise to a conflict of interest requiring the appointment of a special prosecutor. In In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 415 N.E.2d 1354, it was held that a State’s Attorney was not disqualified from investigating alleged misconduct involving a township official merely because the State’s Attorney represented that official in several pending suits, in the State’s Attorney’s capacity as attorney for the county board. To disqualify the State’s Attorney from conducting such an investigation would “require the appointment of a special prosecutor in every investigation of official misconduct involving county officials.” (In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 863, 415 N.E.2d 1354, 1360.) The Swan court rejected such a result, and so do we.

Nor have the petitioners produced specific evidence which would establish that the respondent’s convening of a grand jury to investigate a subject which might involve the county clerk would present a conflict of interest. Both the respondent and Ms. Craddock, the county clerk, testified that they had had discussions concerning the conduct of the general election, but neither could recall the exact times or subjects of those conversations. The respondent stated that he had probably talked about the absentee ballots with Ms. Craddock some time after he was contacted by the State Board of Elections. However, as the respondent correctly maintains, this evidence shows no more than that he was fulfilling his statutory duty to provide legal advice to county officials. As such, no conflict has been established, according to Swan. See also Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50.

Furthermore, the existence of the impoundment suit fails to present a conflict of interest. This action neither renders him interested in the outcome of an investigation as a private individual, nor places him in the status of a party to any action arising from an investigation, except in his capacity as a prosecutor. (People v. Trolia (1982), 107 Ill. App. 3d 487, 437 N.E.2d 804, cert, denied (1983),_ U.S._, 75 L. Ed. 2d 798, 103 S. Ct. 1442; People v. Lynn (1980), 89 Ill. App. 3d 712, 412 N.E.2d 15.) The impoundment suit is merely an adjunct to the investigation of the Department of Criminal Investigation and was designed to facilitate the grand jury proceedings. It would be incongruous to create a conflict of interest due to a State’s Attorney’s filing of an action against county officials in order to preserve evidence. To the extent that the trial court held otherwise, and found a conflict of interest arising from the respondent’s connections with the county clerk, it was in error.

Finally, the evidence presented at the hearing on the petition did not support the petitioners’ claims that actions taken on the absentee ballots cast by the respondent’s grandmother and ex-wife made the respondent personally interested in the proposed grand jury investigation. The petitioners did introduce testimony which showed that the absentee ballot of the respondent’s grandmother, Ethel Downen, was disallowed because the signature on the ballot did not match the official handwriting exemplar. Curtis Downen, the respondent’s father, stated at the hearing on the petition that Ethel Downen was 94 years old and occasionally had difficulty writing. He transacted business for her pursuant to a written power of attorney. When Ethel Downen voted in the 1982 general election, Curtis Downen was present. They discussed the candidates, and then Curtis marked the ballot as Ethel had indicated, signed it and mailed it to the county clerk’s office. That day, Ethel Downen was unable to sign her own name.

At the hearing, the petitioners presented no evidence relating to the absentee ballot cast by the respondent’s ex-wife, Ava Downen. However, in the petition, it was alleged that “there is reason to believe” that, at the time she voted, she was not a bona fide resident at the address listed on her absentee ballot application. Ava Downen testified that her divorce from the respondent became final in August and September of 1982, and in late August or early September, she moved to the house of her mother; in DuQuoin. After moving to Du-Quoin, Ava Downen did not live at the respondent’s McLeansboro address for any period of time. Nonetheless, she testified that even after the divorce became final, she intended to return and reside at that address, if she and the respondent were able to “work things out.” To that end, she and the respondent were still seeing a marriage counselor in late October. Ava Downen stated that the last of her personal possessions were removed from the respondent’s home in December 1982.

These facts do not give rise to a conflict of interest on the part of the respondent. The possibility that any investigation into alleged voting irregularities would disclose wrongdoing on the part of Ethel Downen or Ava Downen is extremely speculative, in view of the evidence introduced by the respondent at the hearing on the petition. A special prosecutor may not be appointed solely because of the suspicions or speculations of the petitioners (People ex rel. Baughman v. Eaton (1974), 24 Ill. App. 3d 833, 321 N.E.2d 531), and the allegations concerning the respondent’s grandmother and ex-wife are simply that.

In conclusion, we hold that neither the respondent’s connections with the county clerk nor the ballots cast by his grandmother and ex-wife provide grounds for the appointment of a special prosecutor. Any other allegations in the petition were entirely unsupported by evidence at the hearing. The respondent was doing nothing but pursuing his duties in a proper manner. For these reasons, the circuit court of Hamilton County abused its discretion in granting the relief requested by the petitioners. Accordingly, the order of that court appointing the Attorney General as special prosecutor is reversed, and the injunction against the respondent’s conducting an investigation is dissolved.

Order reversed; injunction dissolved.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM WILLIS, JR., Defendant-Appellant.
    Fifth District
    No. 81—683
    Opinion filed October 18, 1983.

      Randy E. Blue, of State Appellate Defender’s Office, of Mt. Vernon (Robert L. Carter, of Coppinger and Carter, of counsel), for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Karen Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, William Willis, Jr., appeals from his conviction for the offense of armed violence following a jury trial in the circuit court of Williamson County. He asserts on appeal that he was denied his right to a fair trial because (1) the trial court erroneously admitted evidence of a prior crime and (2) the prosecutor made improper remarks during closing argument. We affirm.

The events giving rise to the armed violence charge against the defendant occurred on March 12, 1981, when the defendant and four other boys decided to drive from Flora, Illinois, to Oklahoma in a car belonging to one of them. On the way, at 2 a.m. on March 13, 1981, the boys stopped at Johnston City, Illinois, behind Buck’s Convenience Store. Two of the boys, David McCormick and Chris Lagle, got out of the car. Chris Lagle stood look-out while David McCormick, armed with a gun, went into the store and told the night cashier to give him the money out of the register. McCormick grabbed the $37 placed on the counter by the cashier, and he and Lagle ran across the field behind the store back to the car. The boys drove off but stopped down the highway to get gasoline, candy bars, Cokes and coffee. They then drove on to Oklahoma.

Prior to trial the defense counsel made a motion in limine to preclude the State from offering testimony as to other crimes committed by the defendant with the people present at the time of the armed-violence offense. One of these crimes involved the siphoning of gasoline from a car on March 12, 1981, in Flora, Illinois. The court reversed ruling on this motion on the basis of the State’s argument that such evidence might be admissible for a limited purpose under the rule regarding the admissibility of evidence of other crimes.

At trial the prosecutor made an opening statement to the effect that the defendant would be proved accountable for McCormick’s armed robbery of the Huck’s store. The defense counsel asserted that the defendant neither committed acts nor had the requisite intent to aid or abet McCormick in the commission of the crime. He contended, therefore, that the defendant could not be held liable for McCormick’s actions on an accountability theory.

The court subsequently ruled that evidence of the gasoline siphoning incident in Flora, Illinois, was admissible to show the defendant’s intent or motive in the offense charged. James Dulaney, one of the four boys accompanying the defendant on the night in question, testified that during the evening hours of March 12, 1981, he, Chris Lagle, David McCormick, Nelson Pruitt and the defendant were riding around in Flora, Illinois, in Dulaney’s autoiriobile. The five boys eventually decided to go to Oklahoma although they had no money for the trip. Before leaving Flora they stopped at Grubb’s Salvage where the defendant and another one of the boys siphoned gasoline into a 10-gallon can. Dulaney then put the gasoline into his car for the trip to Oklahoma.

The witness testified further that when the boys started to run low on gasoline around Johnston City, Illinois, they went into Johnston City and looked around for a place to siphon some more gasoline. When they were unable to find such a place, they agreed to rob a Huck’s store to get money for gasoline. Dulaney testified that the defendant handed Lagle a gun that the defendant had put into the car and that Lagle gave the gun to McCormick, who robbed the store. The boys then used the money to buy gasoline and candy bars.

Another witness for the State, Detective Marc Oliva, testified that on May 31, 1981, he had talked with the defendant in the Clay County jail in Louisville, Illinois. Oliva stated that on that occasion the defendant discussed the armed robbery of March 13, 1981, in Johnston City and discussed “his participation in the said armed robbery.” When asked what the defendant’s participation was, Oliva responded:

“He said that on that date about 2:00 A.M. he and four other friends were involved in the armed robbery. That while he was seated in the car parked on the west side of Huck’s in Johnston City, Chris Lagle and Dave McCormick left the car and committed the armed robbery of the Huck’s store.”

Detective Oliva continued to testify concerning the details of the armed robbery as related to him by the defendant. He stated that the defendant told him he could hear Lagle and McCormick discussing something in the back seat prior to the robbery but that he (the defendant) “didn’t know what was going on ***.” The prosecutor asked Oliva:

“Q. Did he [the defendant] say anything to the effect that he knew they were going to rob the store when they got out of the car?
A. Yes, he did. He said he didn’t know they were going to do it.”

During closing argument the prosecutor made the following comment:

“You then heard from Detective Oliva, who testified that he interviewed the defendant in Louisville, Illinois, *** the defendant admitted, admitted participation in the crime. He admitted participation in this process — .”

The defense counsel objected to this as a misstatement of the evidence, but the trial judge ruled that the jury would have to decide the accuracy of the prosecutor’s statement.

The defense counsel then gave his closing argument, stressing that there was insufficient evidence of the defendant’s specific intent to make him accountable for the offense in question. In his rebuttal argument the prosecutor stated:

“Counsel would have you believe that he [the defendant] is not guilty just because he was there. But read the law. Read the instruction I read to you earlier. Listen to the judge when he tells you, aiding, abetting, planning or commission of this offense, and just remember if it had not been for his gun there would have been no armed robbery because there would have been no gun. His gun.
The evidence is uncontradicted that it was his gun. The evidence is basically uncontradicted except by James Nelson Pruitt [witness for the defense] that he handed him the gun.
But don’t fall for the trap that he had to hand him the gun, take a physical act of handling it to him, he didn’t — .”

This statement was objected to as a misstatement of the law, but the court allowed the prosecutor to continue as follows:

“As I was saying, counsel would have you believe that he had to have him hand him that gun, that’s the only shred of evidence that establishes, that is not the case.”

The jury found the defendant guilty of armed violence, and the court entered judgment on the verdict. A post-trial motion was filed in which the defendant cited as error the court’s admission of evidence of the gasoline siphoning incident in Flora. The court denied this motion, and the defendant then filed the instant appeal.

On appeal the defendant contends that the admission of evidence of the gasoline siphoning incident was erroneous because that offense was too dissimilar to the instant armed violence offense to be admissible as other crimes evidence. He notes that the two offenses occurred in different cities, several hours apart, and that they constituted entirely different crimes. Thus, the defendant contends, the probative value of this evidence was insufficient to justify its use in view of the potentially prejudicial effect of the evidence on the jury.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) In determining the admissibility of evidence of other crimes, it is necessary to weigh the probative value of such evidence against its probable prejudicial effect. People v. Bynum (1981), 102 Ill. App. 3d 461, 430 N.E.2d 110.

In the instant case the trial court found that evidence of the gasoline siphoning incident was admissible to show the defendant’s intent in the subsequent armed violence offense in Johnston City. Since the defendant was being tried for the latter offense on an accountability theory, it was necessary to show that the defendant participated in the offense with the requisite intent. (See People v. Ray (1979), 80 Ill. App. 3d 151, 399 N.E.2d 977.) The admissibility of the disputed evidence, then, depended upon whether it was sufficiently related to the instant offense to be probative on the issue of intent.

The supreme court, in People v. McKibbins, recently considered the degree of similarity required between two offenses where evidence of a crime other than that charged is offered to prove the absence of an innocent state of mind or the presence of criminal intent. The defendant there had been charged with murder, armed robbery and armed violence in connection with his participation in the armed robbery and murder of a parking lot attendant. The defendant had given a statement in which he admitted accompanying the perpetrators to the scene of the crime but stated that he had remained in the car while his two companions entered the shack in the parking lot to rob the victim, who was killed during the robbery. At trial the State introduced evidence regarding the defendant’s active participation in another armed robbery, involving the same companions, two days later.

The defendant contended on appeal that the two crimes were not sufficiently similar to justify the admission of evidence of the subsequent armed robbery in the defendant’s murder trial. In response, the McKibbins court stated:

“[W]hen evidence of [a] defendant’s involvement in another offense is not offered to prove the commission of the crime charged, but is offered to prove the absence of an innocent frame of mind or the presence of criminal intent *** mere general areas of similarity will suffice. If these general similarities are shown, evidence of the defendant’s involvement in another offense may be shown to establish the necessary criminal intent of the defendant in the offense charged. [Citation.]” (96 Ill. 2d 176,185-86, 449 N.E.2d 821, 825.)

The court held that, in view of the defendant’s statement that he had remained in the car during the commission of the murder and armed robbery, evidence of the subsequent crime was admissible

“*** to dispel any idea that the defendant had been somehow innocently involved in the robbery-murder. Although he may not have directly and actively participated in the actual robbery and murder, his involvement in the subsequent offense with the same two companions and the other similarities noted tend to establish that he participated in the previous offense with the necessary criminal intent. The evidence was thus relevant for a purpose other than to show the defendant’s propensity to commit crime and was therefore admissible. [Citations.]” 96 Ill. 2d 176, 186, 449 N.E.2d 821, 826.

In the instant case, as in People v. McKibbins, evidence of the defendant’s involvement in another offense was offered, not to prove the defendant’s commission of the offense charged, but to establish that he participated in the latter offense with the necessary criminal intent. Here, as in McKibbins, the case against the defendant was premised upon his accountability for the acts of others, and evidence of his active participation in a related offense a few hours previously with the same companions served to negate the defendant’s attempt to show an innocent state of mind as to the offense charged.

While, as the defendant notes, the offenses here at issue constituted crimes of a different nature, they were sufficiently related by their circumstances to come within the McKibbins requirement of general similarity. From the evidence it appears that both offenses were part of a joint enterprise by the defendant and his companions to obtain gasoline for their trip to Oklahoma. Both offenses were theft related and resulted from the boys’ lack of money to make the trip. All five boys were present for both offenses, and, in each case, two of the boys actually committed the offense while the others waited in the car. Finally, both offenses were committed within a few hours after the boys had decided to go to Oklahoma and while they were on their way there.

Because of the common features connecting these offenses, the situation here differs markedly from that in People v. Romero (1975), 31 Ill. App. 3d 704, 334 N.E.2d 305, affd (1977), 66 Ill. 2d 325, 362 N.E.2d 288, upon which the defendant relies. In People v. Romero evidence of the defendants’ plan to burglarize a sporting goods store and their possession of burglary tools for that purpose was held to be inadmissible in the defendants’ trial for burglary of a house 24 hours earlier. While, as the court noted, the length of time between the two events was not great, there was a lack of evidence connecting the subsequent planned burglary to the burglary charged. For this reason evidence of the subsequent crime was not sufficiently probative to justify its admission in the case.

By contrast, in the instant case, the evidence showed that the offenses at issue were connected by a common purpose in that both offenses were committed to obtain gasoline for the trip to Oklahoma. Evidence of the defendant’s participation in the gasoline siphoning incident, therefore, was probative on the issue of the defendant’s intent in the subsequent armed-robbery offense, and we accordingly find no error in the court’s admission of this evidence for that purpose.

The defendant further contends on appeal that he was unfairly prejudiced by improper remarks made by the prosecutor during closing argument. The defendant, however, failed to include this allegation of error in his post-trial motion and so has waived it for purposes of review. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) While, in such an instance, an alleged error may be considered on review if it constitutes plain error (73 Ill. 2d R. 615(a)), we find that no such error occurred in the instant case.

The remarks complained of by the defendant occurred in the first instance when the prosecutor summarized the testimony of Detective Oliva by stating that the defendant “admitted participation in the crime [the robbery of the Huck’s store]” to Oliva. The defendant contends that this remark was tantamount to saying that he confessed to the crime when the defendant actually told Oliva that he did not know that McCormick and Lagle were going to rob the store. In his testimony, however, Detective Oliva stated that the defendant “discussed his participation in the armed robbery” and admitted that he was present at the scene of the crime, that he knew the robbers had a gun, and that he waited -in the get-away car for their return. The prosecutor’s remark, therefore, was not such a gross misstatement of the evidence as to constitute plain error, and the defendant cannot be said to have been unduly prejudiced thereby.

The defendant also complains that the prosecutor misstated the law of accountability in his rebuttal argument by implying that the defendant’s presence at the scene of the crime was sufficient to support a conviction for the armed violence offense. The essence of the prosecutor’s argument, however, was that proof of an overt, physical act by the defendant was not required for him to be held accountable for the crime charged. This was an accurate statement of the law, since one may aid and abet another in the commission of a crime without actively participating in the overt act. (People v. Ray.) The jury was, moreover, properly instructed on the law of accountability and was admonished by the court not to accept counsel’s version of the law. We therefore find no merit in the defendant’s argument that the prosecutor's remarks were improper and constituted reversible error.

For the reasons set forth in this opinion, we hereby affirm the judgment of the circuit court of Williamson County.

Affirmed.

HARRISON, P.J., and WELCH, J., concur.