author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELORES BERGER et al., Defendants-Appellants.
    Second District
    No. 81—715
    Opinion filed November 1, 1982.

      Martin J. Weisenburger, of Chicago, for appellants.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Judith Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Christine Berger attended high school I2V2 days out of 352 school days during the academic years 1979-80 and 1980-81.

Her parents, Delores Berger and Lawrence Berger, were each charged with permitting the truancy of a child in violation of the Illinois compulsory attendance statute (Ill. Rev. Stat. 1979, ch. 122, par. 26 — 10). Following a consolidated bench trial, the defendants were both found guilty and sentenced to one year’s probation.

On appeal, the defendants contend that (1) they were not proved guilty beyond a reasonable doubt of knowingly and wilfully permitting a child to be truant, (2) they were denied the effective assistance of trial counsel, and (3) the trial judge erred in permitting prosecutors to introduce evidence of a pending criminal prosecution at the sentencing hearing.

Section 26 — 10 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26 — 10) provides:

“Fine for noncompliance. Any person having custody or control of a child subject to the provisions of this Article to whom notice has been given of the child’s truancy and who knowingly and wilfully permits such a child to persist in his truancy within that school year, upon conviction thereof shall be guilty of a Class C misdemeanor and shall be subject to not more than 30 days imprisonment and/or a fine of up to $500.”

The facts are hardly disputed. The defendants do not deny that Christine Berger did not attend school 339V2 days during the school years 1979-80 and 1980-81. Christine Berger was 14 and 15 years old during those school years. Jan Howes, a Lake County truant officer, testified that she sent the defendants a letter which notified them of Christine’s absence on February 15, 1980, and advised them of their legal responsibility to see that she attend school. She further advised that a doctor’s certificate was required to excuse a child’s illness. Howes sent a second letter on February 25, 1980, advising that the matter was being referred to Probation Intake for action and that prosecution for noncompliance was possible. She also phoned Mr. and Mrs. Berger who explained that Christine was ill. Howes informed them that Christine could receive home-bound tutoring if she obtained a doctor’s certification that she was unable to attend school.

Elvera Kasberger, dean of students, testified that on August 27, 1980, Mrs. Berger brought Christine to the registrar, but when Christine complained of a headache, Mrs. Berger took her home. Dean Kasberger informed Mrs. Berger that the parent of a sick child should inform the attendance office each day a child is sick and that a doctor’s verification should be presented to reinstate a student absent for more than five consecutive days. The following day Christine also left school early and she did not return during that year. Dean Kasberger received no doctor’s excuses. She sent three truancy letters to the defendants, the second two of which were refused and returned. She was unable to contact them by phone. Kasberger testified that on November 12, 1980, she received a letter from Doctor Aven excusing Christine from school for three weeks to undergo allergy testing, but that excuse was later rescinded.

Doctor Allen Aven, a family practitioner specializing in clinical ecology, testified that he saw Christine in November 1980. He performed a series of 35 tests for different materials found in the environment and Christine exhibited a sensitive reaction to 13 of the tests, including formaldehyde, a variety of molds, tobacco, milk, some pollens, insect spray, and some dust particles. He suggested that with proper treatment Christine could function adequately and perhaps normally and he concluded that she probably could attend school. He excused Christine from school during the testing, but rescinded the excuse when she stopped coming in for testing. Cora Friedl, the attendance clerk at Christine’s high school, verified that during the 1979-80 year Christine attended only 3% days out of 176. Friedl was told by Mrs. Berger that Christine had allergies and was too ill to attend school. In the 1980-81 school year, Christine was credited with attending nine days out of 176. Mrs. Berger called three times in September to report a doctor’s appointment and Christine’s illness, and although Friedl requested a medical certification, none was ever received. She notified the defendants that Christine was not present for her first semester’s exams and was told that Christine was at a clinic.

The school nurse, Ardell Frandsen, stated that Christine came to her office twice in August and September of 1979, complaining of cramps and allergies and left school. Nurse Frandsen requested a physical examination report for Christine’s records and later received one filled out by Doctor Goldberg, which indicated allergic rhinitis, or “a little nasal congestion.” She received another note from Doctor Goldberg stating that Christine was suffering from headaches due to allergies. When she called him, he said that the allergies alone were not severe enough to warrant Christine’s absence from school. Christine Went to Nurse Frandsen’s office twice in August of 1980, complaining of a headache and an earache. On September 12, 1980, Nurse Frandsen received a note from Doctor Pollock excusing Christine from gym class. She phoned the doctor and he said that Christine’s allergies were not severe enough nor was there any medical reason for Christine to be absent from school. Neither Nurse Frandsen nor her office ever received a medical certificate excusing Christine from class.

Delores Berger, Christine’s mother, testified in her own defense that she had explained Christine’s situation to Dean Kasberger. Mrs. Berger said Christine could not attend school because she would experience headaches and a severe ringing in her ears. She spoke to Truant Officer Howes and a man from the Lake County Youth Service Bureau about Christine’s truancy. Christine had to be hospitalized in May 1980; she was diagnosed at the Monroe Clinic as having migraines; she was in the hospital in November 1979, she began seeing Doctor Randolph in December 1980, and she saw Doctor Goldberg for allergy treatments from September 1979 to March 1980. Mrs. Berger testified that she had taken Christine to 13 doctors in two years. She said that Doctor Goldberg gave her a verbal medical excuse the school would not accept and that she was not told about home-bound tutoring and that she requested it and was refused. She acknowledged that the note she received from Doctor Aven was to dismiss Christine from school for testing. She had asked Doctor Goldberg not to communicate with the school because she said the school nurse told him that Christine got headaches only at school and not at home. She never inquired of Doctor Goldberg about home-bound tutoring. Mrs. Berger testified that Doctor Goldberg gave her some notes regarding Christine’s allergies which she gave to the school and that she thought the people at the school, were hiding all of the doctor’s notes. She then said that she had requested a note from Doctor Goldberg and he replied that he could not write one because he did not yet know what was wrong with Christine. Mrs. Berger said her daughter’s absences had always been because of allergies. When Christine was at home she would read if her eyes did not hurt, watch TV or listen to the radio. Mrs. Berger stated that even when Christine was able to read she could not attend school because of the chemicals in the school environment, such as chlorine in the pool, alcohol in the laboratory and. nurse’s office, and mimeographic paper, and the fact that the school was heated by natural gas. She testified that she smoked at home but not around her daughter. Her daughter’s specific complaints to her were pain in her knees, ringing in her ears, severe eyeache and chest pains. Mrs. Berger said the chest pains had disappeared having been caused by medication prescribed by the doctors and that which the school nurse ordered Christine to take on several occasions. Mrs. Berger testified that her daughter attended school two or three days in 1980-81; she stopped seeing Doctor Aven before he finished testing Christine saying that she was seeking answers to Christine’s symptoms. Doctor Pollock had told Mrs. Berger that Christine had a chemical imbalance but could not test for it so she went to Doctor Aven. Doctor Aven told her that some of Christine’s reactions could be counteracted but that he was not sure whether Christine could take a formaldehyde antitoxin. Christine was supposed to take two years of biology and Doctor Aven had proposed to discuss the formaldehyde and insecticide problems with the school after he finished testing. Mrs. Berger testified that Christine’s illness, though present, was not the same as it had been because Christine had been taking some medicine for three weeks, but she had not attended school because she had nothing to counteract her alcohol allergies.

Lawrence Berger, Christine’s father, testified that Christine had been sick for quite awhile, had been to numerous doctors, a clinic and a hospital for tests and had taken numerous prescriptions but nothing seemed to help. He acknowledged that he was aware that his daughter was not attending school; that he received a letter and a phone call from the school authorities and explained Christine’s absence. He further testified that his wife procured a medical certificate allowing Christine to remain out of school on a permanent basis and that she presented letters from different doctors which either ran out of time or were not acceptable. Doctor Theron Randolph testified that he began seeing Christine on December 22, 1980. After testing, he found that Christine was highly susceptible to a wide range of environmental exposures frequently found in both the outside air and the inside air at school and at home. Christine’s symptoms were sore throat, headache, earache, nervousness, excessive gas, abdominal cramps, elbow and knee joint problems, muscle cramps, extreme fatigue, nasal stuffiness, occasional hives, intermittent depression, sometimes fits of anger and screaming, and extreme irritability and intermittent excessive perspiration. He presumed that Christine’s condition developed as the result of exposure to a sewage disposal plant near her home and possibly the gas utilities in her home, or certain exposures in her school. He recommended that she move to an all-electric home in a less polluted area. On cross-examination, he testified that he was told by Christine and her mother that Christine was more ill when she attended school upon which he based his opinion of the effects of the school. He never wrote to the school directly. He last saw Christine at his office in April 1981, and her diagnosis as to allergies was unchanged.

The defendants’ first contention is that they were not proved guilty beyond a reasonable doubt. They do not deny that Christine failed to attend almost all of the two school years in question. Rather, their defense is based upon the assertion that mere absence from school does not constitute truancy. As support for their argument, the defendants cite section 26 — 2a of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 26 — 2a), which reads as follows:

“A ‘truant’ is defined as a child subject to compulsory school attendance and who is absent without valid cause from such attendance for a school day or portion thereof.
‘Valid cause’ for absence shall be illness, death in the immediate family, family emergency, and shall include such other situations beyond the control of the student as determined by the board of education in each district, or such other circumstances which cause reasonable concern to the parent for the safety or health of the student.
‘Chronic or habitual truant’ shall be defined as a child subject to compulsory attendance and who is absent without valid cause from such attendance for 15 out of 90 consecutive school days.”

The defendants contend, that since Christine’s illness arising from allergies is well established, under the applicable statutory definition there is no ground for truancy upon which the defendants’ convictions were based, reasoning as follows: (1) truancy is absence without valid cause; (2) illness is a valid cause for absence; (3) Christine was ill; (4) therefore, Christine was not truant. The defendants also argue that there is nothing in the statutory definition which makes illness contingent upon a doctor’s statement. They further assert that Christine’s illness was sufficient to “cause reasonable concern to the parent for the *** health of the student.” Ill. Rev. Stat. 1979, ch. 122, par. 26— 2a.

The definitions upon which the defendants rely must be considered in the context of the entire statute. (Jahn v. City of Woodstock (1981), 99 Ill. App. 3d 206, 209.) Each provision should be construed in connection with every other section and in the light of the statute’s general purpose. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 81.) However, section 26 — 1 of the statute, which the defendants do not even consider, provides exemptions for children who are physically unable to attend school:

“Whoever has custody or control of any child between the ages of 7 and 16 years shall cause such child to attend some public school in the district wherein the child resides the entire time it is in session during the regular school term, except as provided in Section 10 — 19.1; Provided, that the following children shall not be required to attend the public schools:
1. Any child attending a private or a parochial school ***;
2. Any child who is physically or mentally unable to attend school, such disability being certified to the county or district truant officer by a competent physician; or who is excused for temporary absence for cause by the principal or teacher of the school which the child attends; ***.” (Ill. Rev. Stat. 1979, ch. 122, par. 26-1(1), (2).)

The defendants cannot urge, on the one hand, that Christine was too ill to attend school for two years and then totally disregard the provision for such students, which clearly requires a doctor’s certification. There is an alternative basis to support the school’s requirement of a doctor’s excuse. The School Code specifically provides that a school board has the duty “[t]o adopt and enforce all necessary rules for the management and government of the public schools of their district.” (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 20.5.) There was testimony that school policy required a doctor’s excuse for reinstatement when a student missed more than five consecutive school days. School authorities’ discretion in a similar matter (determining what constitutes a sufficient excuse for absence from school) has been upheld, and the court will not interfere absent an abuse. (People ex rel. Latimer v. Board of Education (1946), 394 Ill. 228, 235-36.) A doctor’s certification that a child is unable to attend school is a reasonable requirement, not an abuse of discretion. It both verifies a child’s medical condition and promotes administrative efficiency in monitoring attendance.

The objective of the compulsory attendance law has been established — that all children be educated. (Morton v. Board of Education (1966), 69 Ill. App. 2d 38, 45.) Where the main intent of the legislature can be determined, words may be modified, altered, or supplied so as to obviate any inconsistency with the legislative intention. (Community Consolidated School District No. 210 v. Mini (1973), 55 Ill. 2d 382, 386.) The “illness” contemplated in section 26— 2a must surely be one that would warrant absence from school. Applying the facts of this case to the statute under which the defendants were prosecuted, Christine was shown beyond a reasonable doubt to be truant. A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence and the credibility of the witnesses unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Hall (1982), 104 Ill. App. 3d 1064, 1069.) In this case, although Christine saw 13 doctors in a two-year period, there was no evidence that a single doctor thought her unable to attend school for this two-year period. There was, however, medical testimony that she could have attended school. And, even if she was unable to attend school, which was not proved, all the school personnel who testified stated that no medical certificate was ever received by school personnel which indicated that Christine had been absent due to illness, or that she was unable to attend school, and the defendants did not credibly refute this proof. Thus, the degree of illness established regarding Christine’s allergies was not one which would amount to a valid cause for such a protracted absence. Here the court’s finding of guilty was clearly supported by the evidence, and each element of the charge was proved. The record established that defendants, as Christine’s parents, had custody of her; that at 14 and 15 years of age she was within the statutory age range of seven to 16; that the defendants received the requisite notice of their daughter’s protracted absences; and they admittedly knew of and supported her inattendance which amounted to truancy.

The defendants’ second contention is that their trial counsel, whom they retained, did not assist and represent them effectively when he (1) failed to obtain any discovery prior to trial; (2) failed to insist that closing arguments and the trial judge’s findings be recorded; (3) failed to cross-examine prosecution witnesses, and redirect examine defense witnesses, and (4) failed to prepare adequately. The State argues that the defendants neither demonstrate actual incompetence nor indicate how the alleged errors prejudiced their case.

We note that following the decision of the United States Supreme Court in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, the same standard in reviewing competency pertains to retained and appointed counsel, that being whether the defendant’s attorney was actually incompetent in carrying out his duty to his client to defendant’s substantial prejudice. (People v. Talley (1981), 97 Ill. App. 3d 439, 443; People v. Scott (1981), 94 Ill. App. 3d 159, 164; People v. Lovitz (1981), 101 Ill. App. 3d 704, 710.) The Illinois cases set out several factors to be considered on the competency question. The presumption that a member of the bar in good standing is competent will be overcome only by strong and convincing proof of incompetence. (People v. Ruple (1980), 82 Ill. App. 3d 781, 786.) A defendant is entitled to competent, not perfect, representation (People v. Berland (1978), 74 Ill. 2d 286, 311, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63); nor is a defendant entitled to a successful defense (People v. Ruple (1980), 82 Ill. App. 3d 781, 786). Competency is determined from the totality of counsel’s conduct at trial. (People v. Steel (1972), 52 Ill. 2d 442, 453; People v. Julian (1980), 89 Ill. App. 3d 60, 64.) Conduct which can be shown to be an exercise of judgment, discretion, or trial strategy does not prove incompetency. (People v. Newell (1971), 48 Ill. 2d 382, 387; People v. Coss (1977), 45 Ill. App. 3d 539, 542.) Proof of prejudice cannot be based on mere conjecture. (People v. Hills (1980), 78 Ill. 2d 500, 506; People v. Nutall (1980), 91 Ill. App. 3d 758, 767.) A defendant also may not rely on speculation as to the outcome of his case had the representation been of higher quality. (People v. Thomas (1972), 51 Ill. 2d 39, 44; People v. Hills (1980), 78 Ill. 2d 500, 506.) Nor is the test what appellate counsel would have done or would have liked seen done. People v. Barbour (1972), 5 Ill. App. 3d 323, 326.

The defendants point out that the record shows no pretrial motions or requests for discovery, specifically for the school and medical records which were introduced at trial by the State. They contend that the trial counsel should “have moved for production of those matters which tend to negate the guilt of the defendants.” The State, however, argues the defendants failed to indicate how such lack of discovery prejudiced their convictions and that the defendants’ former counsel also did not see fit to file any discovery motions. The State notes that six of the exhibits it introduced simply verified Christine’s absence from school, which was no secret to the defendants; the other three exhibits were two notes from Doctor Goldberg and the nurse’s note regarding a phone call to Doctor Pollock, and the defendants were well aware of their daughter’s medical history.

In People v. Howard (1979), 74 Ill. App. 3d 138, the defense counsel’s failure to discover the medical records of the defendant’s psychiatric history for use at a competency hearing amounted to ineffective assistance of counsel. That information contradicted evidence presented at the hearing upon which the court heavily relied and, therefore, clearly could have affected the outcome of the trial. (74 Ill. App. 3d 138, 141.) In the present case, there is no attempt by trial counsel to seek discovery reflected in the report of proceedings, but it is difficult to envision how this could have affected the defendants’ case adversely. The exhibits defendants mentioned did not contain information unknown to them. Nor do the defendants suggest exactly what matters, lack of discovery of which they now complain is error, would have “tended to negate” their guilt, and there was certainly nothing exculpatory in the State’s evidence. The defendants neither produced a doctor’s certification of Christine’s inability to attend school, nor showed that Christine was receiving a private education, either of which would have been a defense. Since these defenses appear to have been nonexistent, information proving them could hardly have been procured through discovery. Since the defendants fail to point to any prejudice arising from the failure to seek discovery, and we can perceive of none, ineffective assistance of counsel cannot be found on this basis.

The defendants also assign as error evidence of their counsel’s incompetence due to the lack of a record of closing arguments and the judge’s findings, which they contend deprives them of asserting on appeal any specific errors which might have occurred during those proceedings. The defendants cite the case of People v. Coss (1977), 45 Ill. App. 3d 539, 543, as authority for this argument. This case, however, does not pertain to the absence of a record, but deals rather with a trial counsel’s improper failure to participate in a revocation proceeding after being admonished to do so by the trial judge. The State responds the defendants merely speculate that errors might have occurred and again have neither shown that prejudice occurred nor even suggested a prejudicial nature of the prosecutor’s final argument.

In People v. David (1981), 96 Ill. App. 3d 419, the court in dicta stated that failing to request a transcription of final arguments is not an indication of incompetence of counsel or of judicial carelessness but rather is commonly done to save costs. The court expressed its concern that to reverse a conviction on that basis would invite the practice of deliberately building error into the record or, “sandbagging.” The court also noted the supreme court rule for reconstructing an absent record. (96 Ill. App. 3d 419, 422.) Under this rule, a proposed report of proceedings may be prepared by the appellant from the best available sources, including recollection, and submit it to the trial court for settlement and approval, after which, if certified, it is included in the record on appeal’; or, the parties may stipulate to a statement of facts material to the controversy. (85 Ill. 2d R 323(c), (d).) Under Rule 612(c) (73 Ill. 2d R. 612(c)) these rules are applicable to criminal appeals. In People v. Owens (1978), 58 Ill. App. 3d 37, where a transcript of a hearing was not available, the court said that where a defendant failed to supplement the record on appeal as provided by the above rules and did not cite as error anything which occurred at the hearing, the court would presume that no error occurred. (58 Ill. App. 3d 37, 40-41.) In People v. Lewis (1977), 55 Ill. App. 3d 1022, the court concluded that counsel’s decision to waive the recording of final arguments was discretionary and did not mandate a conclusion that trial counsel was incompetent. (55 Ill. App. 3d 1022, 1026-27.) The court in People v. Barbour (1972), 5 Ill. App. 3d 323, reached the same decision despite a preference for recording final arguments. (5 Ill. App. 3d 323, 327.) In People v. Morgan (1981), 93 Ill. App. 3d 12, the court admonished that counsel should not waive transcription of closing arguments but nevertheless despite the defense counsel’s inability to tell whether errors had occurred for purposes of appeal, concluded that there was no problem sufficient to warrant reversal. (93 Ill. App. 3d 12, 15.) In the present case, where the defendants did not, at their option, submit a bystanders’ report, nor do they now designate any specific prejudice resulting from the absence of this portion of the record, we cannot determine that counsel was incompetent for failing to provide this record.

Defendants also argue that their trial counsel did not cross-examine prosecution witnesses adequately or, in some cases, at all and that what cross-examination he did was often irrelevant. They argue that this was equivalent to not participating in the trial and that, therefore, under the rule we laid down in People v. Coss (1977), 45 Ill. App. 3d 539, they need not show that the outcome of their trial probably would have been different. The defendants also allege it was error for their trial counsel to fail to cross-examine defense witness Doctor Randolph simply to save time. The State notes that the defendants’ counsel cross-examined each of its witnesses and suggests that nothing would have been gained from further examination of Doctor Randolph.

In People v. Nutall (1980), 91 Ill. App. 3d 758, where defense counsel did not cross-examine all the witnesses, the court indicated that cross-examination was important to adequate presentation of the defendant’s case but found that mere conjecture or speculation as to whether the defendant would have benefited was insufficient to show inadequacy of counsel. The totality of the attorney’s conduct at trial did not reflect ineffective assistance. 91 Ill. App. 3d 758, 767.

In the particular instances of which the defendants complain, it is difficult to see any rhyme or reason to their trial counsel’s line of questioning. He concluded his cross-examination of Doctor Aven as follows:

“Q. Now Doctor, in the course of your study of medicine were you familiar with, in the early 30’s, with the epidemic in the south with the Mulligan Stew case?
A. I am not familiar with that.
Q. In that particular instance — you are not familiar with that. All right. That’s all.”

Perhaps counsel was trying to impeach the doctor’s professional credibility through this line of questioning. As to his failure to redirect Doctor Randolph, however, there can hardly be a strategic justification for not allowing his only defense witness, other than the defendants themselves, to explain an incomplete answer, particularly when the answer went to the apparent heart of his testimony:

“Q. Doctor, do you think Christine Berger should never attend school?
A. Beg your pardon?
Q. Do you think Christine Berger should never attend school?
A. No, I would not say she should never attend school.
[Mr. McCollum, Assistant State’s Attorney]: I have no further questions, Your Honor.
[The witness]: I would like to qualify that question before I’m cut off on it.
[Mr. McCollum]: There’s no question pending at this time.
[The court]: That’s counsel’s job. Do you have any redirect?
[Mr. Goodgold, defendants’ counsel]: No, I want to cut this as short as possible. That's all, Doctor.”

The entire purpose of Doctor Randolph’s direct testimony as elicited by defense counsel presumably was to indicate that Christine was too ill to attend school. For defense counsel not to let him explain his answer, regarding whether she could never attend school, is hard to comprehend. The doctor himself asked to qualify the answer, the court specifically noted that was counsel’s job, and in his answer Doctor Randolph might have expressed an opinion that Christine had indeed been too ill to attend school but could perhaps resume classes after treatment. All this is speculative, however, and again the defendants do not suggest any prejudice to the outcome but simply characterize the trial counsel’s conduct as incompetent. Rather, the defendants argue that trial counsel’s action was equivalent to not taking part in the trial and that, therefore, the defendants need not show that the outcome probably would have been different. They cite People v. Coss (1977), 45 Ill. App. 3d 539. However, in that case there was literally no participation by the trial counsel, and the total lack of representation was controlling. Here, there was certainly participation, and the appropriate approach is to see whether such participation was so inadequate as to deprive the defendants of a fair trial. It appears that the only way the trial counsel’s failure to redirect would have affected the outcome is if the doctor had excused Christine’s two-year absence due to an inability to attend and if the court had given Doctor Randolph’s testimony more credence than the other medical testimony to the contrary, and if the court had then overlooked the defendants’ failure to tender a proper excuse on the ground that the severity of Christine’s illness justified her absence and the medical certificate, which also was not proved, was merely a formality. All this seems highly unlikely, particularly in view of the totally conjectural nature of the first premise, i.e., Doctor Randolph’s unheard testimony.

Finally, the defendants contend that the record as a whole reflects trial counsel’s inadequate preparation for trial. They state that he was unaware prior to trial of what certain witnesses would say and what he expected to prove by them. The State notes that defense counsel cross-examined State witnesses, moved for a directed verdict, and presented evidence on behalf of the defendants. Although failure to prepare adequately for trial has been held to constitute inadequate representation by counsel (People v. Stepheny (1970), 46 Ill. 2d 153; People v. Vargas (1981), 97 Ill. App. 3d 347, 349), in order to warrant a reversal a defendant still must establish actual incompetence as reflected by the representation which resulted in substantial prejudice. (People v. Witherspoon (1973), 55 Ill. 2d 18, 21; People v. Vargas (1981), 97 Ill. App. 3d 347, 349.) This issue must be determined from the entire record rather than from isolated instances in the trial. (People v. Posey (1980), 83 Ill. App. 3d 885, 891.) Again, the defendants do not establish prejudice. They do not even designate the “certain witnesses” to which they are referring. In the case they cite to support their argument (People v. De Simone (1956), 9 Ill. 2d 522), defense counsel, among other things, had not interviewed defense witnesses before trial and their testimony was specifically found to be damaging to the defendant, which was a key factor. The defendants here simply argue a general lack of preparation and do not set forth any showing of prejudice.

An examination of the record reveals that the defendants’ claim of incompetence is probably not far off the mark. Their trial counsel did not make a single objection during the State’s case, although there were numerous instances of hearsay testimony. His cross-examinations seemed to be merely gestures and were pointless for the most part. His direct examination was ineffective in that he had difficulty in understanding and overcoming the State’s objections. He exhibited an unfamiliarity with courtroom procedure. As an example, when the State asked whether he had other witnesses to testify he answered, “Unless the doctor may want to question the witnesses in open court, the child in open court. That would be the only exception.” To which the court replied, “Can’t conceive of that situation.” Were we to determine that the defendants’ trial representation must satisfy “minimum professional standards for reasonably competent representation,” a standard which a number of Federal courts have adopted (see, e.g., Cooper v. Fitzharris (9th Cir. 1978), 586 F.2d 1325; United States v. Bosch (1st Cir. 1978), 584 F.2d 1113; United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634), we would be forced to answer that he did not satisfy those minimum professional standards for reasonably competent representation. (People v. Greer (1980), 79 Ill. 2d 103, 121.) However, our supreme court has considered that question and rejected it, refusing to change the Illinois standard. (People v. Greer (1980), 79 Ill. 2d 103, 121; People v. Murphy (1978), 72 Ill. 2d 421.) Despite defense counsel’s less than adequate conduct of the trial, no prejudice has been shown. It is up to a defendant who charges that his counsel was incompetent to establish both that incompetency and the resultant prejudice (People v. Rettig (1980), 88 Ill. App. 3d 888, 890), and the charges cannot be based solely upon assertions (People v. Ashley (1966), 34 Ill. 2d 402, 411). Here nothing that the defendants complain of has been shown by them to have prejudiced their trial and certainly not to the extent that the outcome would have been different.

The defendants’ final contention on appeal is that it was error for the trial court during the sentencing hearing to permit the State’s introduction of evidence of a similar charge involving another daughter, which was then pending against the defendants. They argue that evidence of mere charges is improper and note that the trial judge did consider this evidence in determining the defendants’ sentence. The State responds that the cases upon which the defendants rely are People v. Kennedy (1978), 66 Ill. App. 3d 35, and People v. Williamson (1979), 69 Ill. App. 3d 1037, whose conclusions were rejected by our court in People v. Fritz (1979), 77 Ill. App. 3d 1, rev’d on other grounds (1981), 84 Ill. 2d 72. The State urges that the evidence was presented permissibly on the question of probation and was not for consideration in determining the length of the sentence to be imposed. The State further notes that the evidence presented contains proof of the underlying criminal conduct.

In People v. LaPointe (1981), 88 Ill. 2d 482, the supreme court addressed the apparent inconsistencies in the appellate court districts’ treatment of the admission at sentencing hearings of evidence of criminal conduct which has not resulted in prosecution and conviction. In its opinion the court states that adequate guidelines already exist in the provisions of chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-1-1 through 1005-9-3), which deal with sentencing, and in the court’s earlier opinions. The court specifically refers to People v. Adkins (1968), 41 Ill. 2d 297, for guidelines. In Adkins, the court emphasized that a sentencing judge has wide discretion as to sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed and that, while a judge is not limited to considering only information which would be admissible under the adversary circumstances of a trial, he must exercise care to insure the accuracy of any information considered. (People v. LaPointe (1981), 88 Ill. 2d 482, 496; People v. Adkins (1968), 41 Ill. 2d 297, 300.) The court in La Pointe concluded that “[wjhether a defendant had been prosecuted and convicted for other misconduct, proof of which is offered at a sentencing hearing, is not, in our judgment, controlling as to its admissibility. More important are questions of relevancy and accuracy of the information submitted. Those questions are, of course, initially determined by the trial judge in the exercise of an informed discretion.” (88 Ill. 2d 482, 498.) The court affirmed the trial court’s imposition of a natural life sentence without parole on the 18-year-old defendant and found that under the circumstances the trial judge properly received proof of criminal conduct for which no prosecution and conviction ensued. (88 Ill. 2d 482, 499.) In People v. Brown (1982), 103 Ill. App. 3d 306, the appellate court, following LaPointe, affirmed the trial court’s consideration of evidence of a pending charge that had not yet resulted in conviction for the purpose of determining the length of sentence to be imposed, notwithstanding the general rule articulated in People v. Tiess (1981), 97 Ill. App. 3d 45, 51; 103 Ill. App. 3d 306, 310. In Tiess, the court found that to the extent that the defendant was seeking probation at the sentencing hearing, evidence of previous conduct, which included arrests not disposed of in conviction, was relevant to deciding whether or not probation should be granted. (97 Ill. App. 3d 45, 51.) In People v. Fritz (1979), 77 Ill. App. 3d 1, where the trial court, in determining fitness for probation, considered a rap sheet which listed a number of arrests with no disposition, the court said, “Mindful of the possible unfairness to a defendant in having the length of his sentence determined in part by charges not reduced to conviction, our courts have carefully limited the use of such information to the question of whether a request for probation should be granted and do not allow its use in determining the length of imprisonment.” (77 Ill. App. 3d 1, 6.) In People v. Makes (1981), 103 Ill. App. 3d 232, where evidence of a similar offense for which no criminal charges were filed was considered at the sentencing hearing, the appellate court noted that the accuracy of the information was adequate and did not find consideration of the charges in sentencing to be error. In People v. Poll (1980), 81 Ill. 2d 286, which the defendants cite, evidence of pending charges was introduced at a sentencing hearing, but the trial court did not mention any reliance on that evidence, and the court, therefore, found the claim of error to be -without merit. (81 Ill. 2d 286, 289-90; see also People v. Turner (1981), 93 Ill. App. 3d 61, 71; People v. Mosley (1980), 87 Ill. App. 3d 903, 905.) However, the court also stated that even had the judge considered the evidence of the defendant’s pending charges, the introduction of evidence concerning those charges would not be reversible error under the circumstances of the case. (81 Ill. 2d 286, 290.) Although the circumstances of Poll did include evidence of several other convictions which supported the sentence, the Poll court cited with approval People v. Bey (1972), 51 Ill. 2d 262. In Bey, the court reaffirmed that proof of a pending indictment is properly presentable at a hearing in aggravation and mitigation, noting that a trial court is presumed to recognize incompetent evidence and disregard it. 51 Ill. 2d 262, 267.

These cases give trial judges wide latitude in receiving evidence relative to sentencing. Proof of pending charges, of criminal conduct for which no charges were filed, and of prior arrests without disposition have all been considered at sentencing hearings without error. Although use of such evidence has sometimes been limited to consideration only in determining whether probation should be granted and not as to the length of sentence to be imposed, in light of La Pointe even this is not rigid. (In LaPointe, the trial court could not have granted probation on a murder conviction. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(b), (c).) Therefore, the court’s only consideration was determining the length of sentence to be imposed.) The more important inquiry is whether safeguards were taken to insure accuracy and whether the particular information is relevant.

In considering a grant of probation, a reviewing court may only determine whether the trial court abused its discretion in acting in an arbitrary manner. (People v. Bolyard (1975), 61 Ill. 2d 583, 586; People v. Girard (1977), 48 Ill. App. 3d 1, 3.) In the present case, charges were pending against the defendants regarding the truancy of a second daughter. Offering evidence in aggravation, the State elicited testimony from truant officer Jan Howes which tended to establish the second daughter’s prolonged absence from school and her parents’ knowledge thereof. In LaPointe, the court, in holding that there was no abuse of discretion by the trial court, noted that “[t]he conduct testified to was relevant to a determination of a proper sentence in that it bore upon the likelihood or unlikelihood that defendant would commit other offenses; it appeared trustworthy; defendant had the opportunity to face and cross-examine the witness; and the accuracy of the information was not challenged. (88 Ill. 2d 482, 498-99.) All of these factors were present in the case at issue. Consideration of this evidence was not an abuse of discretion. As the State notes, the trial judge also considered factors in mitigation and elected not to impose a fine or term of incarceration.

For the foregoing reasons, the judgments of the circuit court of Lake County are affirmed.

Judgments affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    JOHN J. GORDON et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
    Second District
    No. 82—46
    Opinion filed October 29, 1982.
    Rehearing denied December 1, 1982.
    Tyrone C. Fahner, Attorney General, of Springfield (Karl Yost and Roy E. Frazier, Jr., Assistant Attorneys General, of counsel), for appellant.
    William A. Kelly, of Nack, Richardson & Kelly, of Galena, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

The Department of Transportation of the State of Illinois (department) appeals from a judgment of the circuit court of Carroll County ordering the issuance of a writ of mandamus compelling the department to commence condemnation proceedings with regard to certain property alleged in the petition for a writ of mandamus to be owned by plaintiffs John J. Gordon and John E Gordon, and in which plaintiff Savanna State Bank, holds a security interest. The department raises the following issues for our review: (1) whether the trial court erred in ordering issuance of the writ of mandamus against the department based upon plaintiffs’ claim of adverse possession; (2) whether the Illinois Court of Claims has exclusive jurisdiction of this action; (3) whether the trial court erred in denying the department’s motion to strike the petition; and (4) whether plaintiffs are estopped from claiming ownership of the subject property.

We find it unnecessary for this court to address any issue other than the jurisdiction of the circuit court to hear this matter in view of our conclusion that the action cannot be maintained in any court except as provided in the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.).

In their petition for a writ of mandamus, plaintiffs allege their ownership and a security interest in certain legally described.property (which the proofs indicate is a parking lot adjacent to a restaurant known as Meeker’s Seafood Inn); that the department has physically taken a portion of this property; that no condemnation proceedings were instituted by the department with regard to this property; that the department has refused to condemn the property taken; and that plaintiffs are entitled to a writ of mandamus ordering the department to commence condemnation proceedings with respect to the property. The department answered the petition and asserted affirmative defenses that (1) no condemnation proceedings have been instituted because no condemnation proceedings are warranted, (2) the Savanna State Bank in another proceeding implicitly acknowledged that its claim is baseless, and (3) title to the property in question was previously determined in another case and the matters are res judicata.

A bench trial was held, and we briefly set out only that evidence which is necessary to the resolution and understanding of the determinative issue of the jurisdiction of the circuit court to hear this action.

John J. Gordon, one of the plaintiffs, purchased Meeker’s Seafood Inn in 1956 and operated the premises and used an adjacent parking lot continuously and exclusively until 1977; the restaurant and parking lot were continuously used by Gordon’s predecessors since at least 1942; the description in the 1956 deed to Gordon did not include the portion of the parking lot at issue; and the record title owner of the portion of the parking lot at issue was Oscar Skaien, and previously his predecessors in title, until 1977 when Skaien quitclaimed his interest to the State of Illinois. In 1977, the State of Illinois was in the process of constructing a new bridge across the Plum River near Savanna, Illinois. The northern approach to the bridge went across the portion of the parking lot at issue herein. At least two other bridges crossing the Plum River at this approximate location had been built and torn down when replaced by new bridges constructed next to the bridge replaced. Prior to 1930, a bridge, long since torn down, had existed in the approximate, location of the newest bridge under construction. The plaintiffs claimed below that they owned the portion of the parking lot in question by adverse possession. The department claimed it owned this property either based upon the 1977 quitclaim deed from Skaien or by common law dedication or by prescription since a previous bridge torn down around 1930 had been in that location for many years.

The trial court in a memorandum opinion found that Gordon and his predecessors had adversely possessed the property in question since 1942 against Skaien and his predecessors in title prior to Skaien’s quitclaim deed to the State in 1977; that the department took by quitclaim deed only that interest Skaien had in 1977; that the department also failed to prove it had acquired the property by common law dedication or by prescription by virtue of the existence of a previous bridge at that location prior to 1930; and even if the State had acquired an interest in the property by common law dedication or by prescription, the property was lost by abandonment.

After the memorandum opinion was filed, the department filed its post-trial motion and subsequently filed a motion to dismiss; the latter requesting for the first time that the action be dismissed since the State could not be a defendant or party in any court except as provided in the Court of Claims Act. Both motions were denied by the trial court.

Section 4 of article XIII of the Illinois Constitution of 1970 provides:

“Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

Section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1979, ch. 127, par. 801) provides:

“Except as provided in ‘An Act to create the court of claims, to prescribe its powers and duties, and to repeal An Act herein named,’ filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.”

Thus, it is clear that the General Assembly has specifically prohibited making the State of Illinois a defendant or party in any court.

What we must determine is whether in this action the State of Illinois is a defendant or a party within the statutory proscription.

We conclude that the decision of our supreme court in Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, is controlling on this issue. In Sass, the plaintiff filed an action in the circuit court against John Kramer, the Secretary of the Department of Transportation, State of Illinois, to quiet title to and for a writ of possession of land over which the State had acquired an easement for a public highway by virtue of a dedication by plaintiff’s predecessors in title. The court initially determined that while the suit was nominally against an officer of the State, it clearly affected property of the State. It then held that:

“The real party in interest in the case is not the individual defendant named but the People of the State of Illinois, title to whose property is at stake in this litigation. Under the authority set out above, such an action cannot be maintained in a court, and the same proscription prevails under the 1970 Constitution and under Public Act 77 — 1776 (Ill. Rev. Stat. 1973, ch. 127, par. 801).” (72 Ill. 2d 485, 492, 381 N.E.2d 975.)

The court further concluded that “the action cannot be maintained in any court except as provided in the Court of Claims Act.” 72 Ill. 2d 485, 493, 381 N.E.2d 975.

In the case at bar, the Department of Transportation of the State of Illinois is named as the only defendant in this lawsuit and ownership of the property in question was disputed, litigated and determined in the court below. A department of State government is a part, or division, of the government, and a suit against a department of the State is a suit against the State. (Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 8 N.E.2d 637.) When the property of the State is involved, the State is directly and adversely affected by the suit and the action must be held to be one against the State. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) It is readily apparent here that the State is, in reality, a defendant in a suit in which a determination was made in the court below that the State had no interest in certain property. Clearly, then, the action is one against the State which under the holding in Sass cannot be brought in any court except as provided in the Court of Claims Act.

The plaintiffs argue, however, that in Sass the action was a suit to quiet title, whereas here the mandamus proceeding does not pursue a claim against the State, but seeks to enforce the performance of an official duty. They contend that numerous decisions have allowed a mandamus suit in the circuit courts to compel the State to initiate eminent domain proceedings. (See, e.g., Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285; People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 158 N.E.2d 577; People ex rel: O’Meara v. Smith (1940), 374 Ill. 286, 29 N.E.2d 274; People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 16 N.E.2d 761.) Initially, we point out that in the decisions cited immediately above which allow an action for mandamus to compel institution of proceedings under the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.), the defendant in each case was an officer of State government, the director of a department of the State of Illinois. Mandamus is an appropriate remedy to compel a public officer to exercise the discretion vested in him (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 99, 368 N.E.2d 903), or to compel public officials to comply with statutory or constitutional duties. (Overend v. Guard (1981), 98 Ill. App. 3d 441, 443, 424 N.E.2d 731.) Nonetheless, the defendant in the instant case is a department of State government which makes this a suit against the State. (Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 8 N.E.2d 637.) Thus, the State is a defendant in a suit which, pursuant to “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1979, ch. 127, par. 801), cannot be maintained in any court except as provided in the Court of Claims Act. See Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.

Even were plaintiffs here to have brought this action against the Secretary of the Department of Transportation, under the facts of this case the issue which must necessarily be decided before a writ of mandamus could issue compelling institution of eminent domain proceedings is ownership of the property in question. As the determination of title to property involves and directly affects an interest in property of the State of Illinois, the State is the real party in interest and cannot be sued except as provided in the Court of Claims Act. (Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.) In cases where a mandamus action against the director of a department of State government to compel eminent domain proceedings has been allowed in the circuit court, no issue of the State’s interest in that property was a matter to be determined by the court; the issue was whether a property owner who can prove that his property has been damaged by the State can compel the institution of eminent domain proceedings. (See Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285; People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 158 N.E.2d 577; People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 16 N.E.2d 761.) Thus, the mandamus action is not against the State but against the secretary of the department to compel him to do his duty: i.e., institute eminent domain proceedings. It is recognized that a provision immunizing the State from being made a defendant or party in a court does not forbid actions against State officials in cases where the State would not be directly and adversely affected by the relief sought, and that such officials may under those circumstances be compelled to perform a duty required by the constitution or statute, or be restrained from acting beyond their authority or from acting under color of an invalid statute. (People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 224, 120 N.E.2d 35.) Thus, the fundamental difference under the circumstances of this case is that the ownership of the property in question here was in dispute, and the issues litigated in the circuit court directly involved and affected the ownership of property claimed by the State of Hlinois. The State is the real party in interest. Accordingly, the mandamus action here is not merely to compel an officer of State government to do his duty, but involves a determination of ownership of property in which the State of Hlinois claims an interest. The proper forum in which to determine this matter is the Hlinois Court of Claims.

For these reasons, the judgment of the circuit court of Carroll County is reversed.

Reversed.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. COLLINS, Defendant-Appellant.
    Fourth District
    No. 4—82—0060
    Opinion filed November 4, 1982.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Mona C. Mack, both of State's Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Robert E. Collins was convicted of theft with a prior theft conviction, following a trial by jury in absentia. He was sentenced to two years in the Department of Corrections with credit for four days previously served. He appeals from his conviction and sentence. We affirm.

Collins asserts: (1) The statute that permits the trial in absentia of defendants who wilfully absent themselves from their trials (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a)) is unconstitutional; (2) the State did not meet its burden of establishing his wilful absence from his trial; (3) the trial court acted improperly in conducting his sentencing hearing in his absence; (4) evidence of his prior theft conviction should not have been presented to the jury; (5) the prosecutor improperly commented on his failure to testify; and (6) the State failed to prove his guilt beyond a reasonable doubt because it did not establish that the subject of a photograph introduced into evidence was the same Robert Collins who was on trial.

On August 16, 1981, Steven Henderson, Sr., security manager at the K-Mart Department Store in Urbana, saw defendant enter the store. The defendant was attired in bluejeans, a hooded sweatshirt, a plaid flannel shirt, and a T-shirt. This attracted Henderson’s attention because the outside temperature on that day was between 65 and 75 degrees. The defendant subsequently picked up a 17-piece tool set, put it inside his pants, and walked through the cash register area without paying for it. Henderson stopped Collins in the store’s vestibule area and asked him about the tool set. The defendant started to walk back into the store with Henderson but then turned and ran into the store’s parking lot. As the defendant was running across the lot, the tool set fell out from under his pants. Henderson identified People’s Exhibit No. 1 as a picture of defendant and identified the tool set that defendant took from the store. Henderson could not recollect the defendant having any unusual facial features but did remember his hairstyle and- approximate weight and height. Henderson testified that he first saw the photograph of defendant in court on the day of the trial but that he had previously been told that he might have to make a photographic identification at the trial.

Jack Hammel was the State’s second witness. He also was working at the Urbana K-Mart store on August 16, 1981. Henderson requested his help in apprehending defendant. Hammel observed Henderson’s interception of Collins as he was attempting to leave the store and saw defendant’s attempted flight from the store. He also observed something fall from under Collins’ clothing as he was fleeing. Hammel and another employee gave chase and apprehended defendant in a weed-covered lot behind a neighboring store. Hammel testified that he got a “good look” at defendant and his description of him generally conformed to the description that Henderson related. Hammel also identified People’s Exhibit No. 1 as a picture of the defendant. He saw the photograph for the first time on the day of the trial, but he likewise had previously been told that he would be asked to view a photograph when he testified. Hammel stated, however, that the latter fact did not influence his identification of the person pictured in the photograph as the person whom he captured.

The State’s final witness was Assistant State’s Attorney Don Parkinson, who testified that he prosecuted defendant in a prior case, Champaign County No. 81 — CM—328, which resulted in defendant’s conviction of theft. Parkinson also identified People’s Exhibit No. 1 as a photograph of the person whom he prosecuted in that case.

The court subsequently admitted, over defendant’s objections, People’s Exhibit No. 1 and, again over defendant’s objections, took judicial notice of the file in Champaign County case No. 81 — CM—328. Both sides then rested.

At the outset, we note that this court recently upheld the constitutionality of the trial in absentia statute (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a)) in People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708. The third district subsequently reached the same result in People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590. The defendant has failed to present us with any persuasive arguments of why we should not adhere to our decision in Powell. Most of the cases cited by defendant in support of his claim that the trial in absentia statute is unconstitutional do not address the constitutionality of such a statute. Lewis v. United States (1892), 146 U.S. 370, 36 L. Ed. 1011, 13 S. Ct. 136, United States v. Gregorio (4th Cir. 1974), 497 F.2d 1253, and People v. Beck (1922), 305 Ill. 593, 137 N.E. 454, do indeed contain statements that a defendant has a right to be present at his trial, but these cases do not say that a defendant may not waive that right by wilfully failing to appear at trial after being advised that his failure to appear will result in waiver of this right. In People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634, the court held that a trial in absentia violated the defendant’s constitutional rights under the facts of the case, but as we intimated in Powell, the Davis court premised its decision principally on the State’s failure to afford defendant the representation of counsel at his in absentia trial. We do not read Davis as a condemnation of in absentia trials under all circumstances. In the absence of any conclusive contrary authority, we choose to adhere to our position on this matter as set forth in Powell and hold that the statute under which defendant was tried and convicted was not per se violative of any of his constitutional rights.

As for defendant’s allegation that the State did not meet its burden of establishing his wilful absence from trial, we initially note that defendant has waived his right to have this issue considered on review because he failed to include this alleged error in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Even if we were to consider this issue on its merits, however, we would hold that the State presented sufficient evidence that defendant was wilfully avoiding trial to sustain the court’s decision to try him in absentia. The State’s Attorney stated that his office had contacted all the local hospitals and that the defendant was at none of them, and that the Champaign County sheriff’s department had also attempted to locate defendant at his last known address. This evidence of defendant’s wilful absence from his trial is at least as great as that presented in Powell, where it was held that evidence that the police had been unable to locate defendant and that there were outstanding warrants for defendant’s arrest was sufficient proof that the defendant had wilfully absented himself from his trial. Although here, as in Powell, direct testimony of those persons responsible for searching for defendant would have been preferable to the State’s Attorney’s merely summarizing the efforts that were made to locate defendant, we cannot say that the trial court abused its discretion in trying defendant in his absence on the basis of the evidence that it had before it.

We next consider the question whether defendant was improperly sentenced in his absence. Defendant first contends that he should have been specifically advised that the sentencing hearing could be conducted in his absence. Although defendant was not so advised, he was told that his trial could be conducted in his absence. Since a sentencing hearing is merely a component part of a criminal trial (see People v. McInnis (1980), 85 Ill. App. 3d 109, 406 N.E.2d 199), the notice to defendant that his trial could be conducted in his absence was by its very nature a notice that the entire trial, including the sentencing hearing, could be conducted in his absence. Defendant also maintains that he should have received separate notice of the exact date of his sentencing hearing. Although defendant may not have personally received such a notice, his attorney did receive notice of the date of the sentencing hearing. This constructively gave knowledge of the date of the hearing to defendant. See Clark.

Defendant next contends that he was sentenced on the basis of an incomplete presentence report. We note that the record contains no indication that defendant objected to any alleged deficiencies in the report when it was tendered to the court. Because of this and the defendant’s apparent failure to attend an interview with a probation officer before completion of the report, we are of the opinion that defendant waived his right to object to any deficiencies in his presentence report. See People v. Lane (1980), 91 Ill. App. 3d 827, 414 N.E.2d 1249.

Defendant also contends that evidence of his prior conviction for theft under section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)) was improperly admitted. As support for this contention, defendant relies on the decision of our supreme court in People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. The defendant in Hayes was convicted of retail theft of less than $150. At bench trial, she stipulated that she had previously been convicted of retail theft. On appeal, the sole issue before the court was whether, in order to obtain the enhanced penalty contained in section 16A — 10(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10(2)), the State must allege in the information that the alleged offense was a second or subsequent offense of retail theft.

The supreme court affirmed Hayes’ felony conviction, holding:

“[I]n order to invoke the provisions of section 16A — 10(2) the sentencing court must find beyond a reasonable doubt, after notice to the accused and an opportunity to refute the allegation, that the accused was in fact convicted of a prior offense of retail theft and that the record supports that finding.” 87 Ill. 2d 95, 98, 429 N.E.2d 490, 491-92.

Defendant contends that Hayes eliminated the need for introducing evidence of a prior conviction, for purposes of enhancing the degree of the offense, during the evidentiary stage of the trial. Evidence of his prior conviction for theft served no purpose other than to inflame the jury, defendant asserts, and amounted to reversible error. We disagree.

Hayes discussed the leading Illinois cases on the subject (People v. Dixon (1970), 46 Ill. 2d 502, 263 N.E.2d 876; People v. Owens (1967), 37 Ill. 2d 131, 225 N.E.2d 15; People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499), which uniformly hold that it is proper to introduce evidence of prior convictions that serve to increase the degree of the offense during the evidentiary stage of the trial. The supreme court did not overrule this line of cases in deciding Hayes.

Defendant was convicted of theft under section 16 — 1(a)(1) after a jury trial. He did not stipulate that he had a prior theft conviction. It was proper for the State to introduce evidence of that conviction during trial. (Dixon.) The trial court did not err in admitting evidence of defendant’s prior theft conviction.

Moreover, a conclusion opposite to what we have reached in regard to the admissibility of the above evidence would not warrant reversal of defendant’s conviction, for it is obvious that under the circumstances of this case, an erroneous admission of such evidence would have been harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) The store security manager saw defendant conceal merchandise on his person and walk through the checkout area without paying for it. The security manager and one other employee witnessed defendant’s attempted flight and saw the stolen merchandise fall out from under his clothes. In view of this overwhelming and uncontradicted evidence of defendant’s guilt, any error in the admission of evidence of defendant’s propensity to commit crime would undoubtedly have been harmless.

We next address defendant’s contention that the following portion of the prosecutor’s closing argument is reversible error because it improperly referred to his failure to testify:

“Ladies and gentlemen, we’re sorry that the defendant isn’t here. It is our problem, too. I wish he was here to give us his version.”

Immediately following this statement, the court instructed the jury to. disregard it and repeated earlier admonitions to the effect that the defendant’s absence from his trial was irrelevant to the question of his guilt and that his failure to testify was not to be considered by the jury in arriving at its verdict. Furthermore, the jury was given the usual instructions that it was to consider only the testimony of witnesses and exhibits introduced into evidence in arriving at its verdict.

The prosecutor’s comments stated the obvious, that the defendant was absent. The comments were ill-advised and unnecessary, but were harmless beyond a reasonable doubt. The evidence against the defendant was overwhelming. Furthermore, the trial court immediately admonished the jury to disregard defendant’s absence from trial and his failure to testify in reaching its verdict. (People v. Edwards (1979), 77 Ill. App. 3d 237, 395 N.E.2d 1095.) In light of these circumstances, the trial court acted properly in failing to declare a mistrial.

The defendant’s final contention is that the State did not prove that the person pictured in 'People’s Exhibit No. 1 was the same Robert E. Collins who was on trial in the case, for no one identified the person pictured in the exhibit as the same individual who had been arraigned in this case. This allegation of error is likewise groundless. Henderson saw the police arrest defendant and saw the defendant while he was in custody at the Urbana police station. Hammel also saw the police arrest defendant. Assistant State’s Attorney Parkinson prosecuted defendant in a previous theft case and obviously had an opportunity to view him during the trial of that case. All three of these witnesses testified that the person pictured in the photograph was the same one they had seen before. Taken altogether, this evidence conclusively establishes that defendant was the same Robert E. Collins who had previously been convicted of theft, who committed a theft at the Urbana K-Mart store on August 16, 1981, and who was arrested and jailed on charges that he committed that theft. In view of this strong and uncontradicted evidence, the fact that no one testified that the person pictured in People’s Exhibit No. 1 was the same individual who had previously been arraigned in the case is immaterial.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY JOYNER, Defendant-Appellant.
    Fourth District
    No. 4—82—0154
    Opinion filed October 21, 1982.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, and Julie P. Verheye, law student, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was tried in absentia in the circuit court of Macon County for the offense of burglary in violation of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a)). A jury convicted him of the offense and he was sentenced to four years’ imprisonment.

On appeal defendant challenges the composition of the jury which tried and convicted him; he further claims that the proof was insufficient to establish that he wilfully avoided trial, thus invalidating proceedings taken in his absence. No question of reasonable doubt has been raised and therefore we need not delve into the facts of the case.

On January 18, 1982, which appears to be the opening day for jury trials in the county and before any cases were called for trial, defense counsel, together with a number of other counsel representing criminal defendants, filed a verified motion challenging the jury array. The affidavit supporting the motion must be taken as true, since no counteraffidavits were filed and at one point in the proceedings the People offered to confess the motion.

That affidavit discloses that approximately 300 veniremen had been drawn by the Macon County Jury Commission for the January 1982 venire; that one of the cases on the January call involved the A. E. Staley Manufacturing Company and Swift and Company, an Es-mark Company subsidiary; and that this case was anticipated to last about three months. The affidavit further states that “the Court” caused to be sent to all of the 300 veniremen a questionnaire which contained, among others, the following questions:

It further appears from the affidavit that if any veniremen answered in the affirmative to any of the foregoing questions, he was deferred until some following month; and that the Staley-Swift case was only one of approximately 200 cases which had been called for trial in January 1982.

A hearing was held on the motion before the chief judge of the circuit, who was apparently responsible for the questions and the consequent deferrals. One of the defense counsel testified at the hearing and stated that 37 persons were deferred on account of some connection with either Staley or Swift and that 84 persons remained in the venire which reported for service on January 18. The remainder of the 300 is apparently accounted for by failure of notice, physical or mental disability, or hardship.

The reason for the deferrals is not articulated at length in the record except for one finding by the chief judge as follows:

“The January jury list was screened to eliminate jurors who would be challenged for cause as employees, stockholders, or friends of the Staley v. Swift civil trial [sic], which was represented to last in excess of three months.”

The motion was then denied.

Defendant’s trial was then assigned to another circuit judge and the motion was renewed before him. It was again denied as having already been ruled upon by the chief judge.

It is apparent from reading his remarks in ruling on the challenge to the array that the chief judge was principally concerned with the matter of selection at the initial stage, that is, drawing names from a drum for the jury commission:

“This jury to start with was drawn like any other jury. There was an order that three hundred jurors be drawn. It was drawn exactly like any other panel by have [sic] a Jury Commissioner, a Clerk, a Judge, and a person from the County Clerk’s office, the Circuit Clerk was present. The drawing was like we’ve had for months and or years to get the three hundred. And then, we had the screening process that is done one way or another. Every jury panel by — usually the jury panel sends out — the Jury Commission sends out a card to a jury saying you are coming up for jury duty in two months. If you have a question or a problem call this number which is the Clerk of the Jury Commission. Then, they get into the matter of interviews which are held the first Tuesday of each month getting the juror’s problem or their question. In this case, being aware of the unusual case, the process was a little more direct by pointing out to jurors about this problem of the Staley case which we haven’t had a case that lasted three months in my recollection, that goes thirty-years; and we knew that it was going to be a special problem to every juror; and, therefore, the card that went out under the name of the Jury Commission was to them to ask them for their problems that may arise from this case. They also asked them about disqualification for cause. But, that is the Jury Commission function. I freely admit that the Jury Commission was assisted in this in certain things that was done by the courts in trying to get a jury that would proceed today as we had been assured the trial would take place. ***”

This argument ignores the fact that prejudice to a defendant may occur by systematic exclusion of a discrete group of the community either from the jury drum itself or from the venire which is selected by a jury commission and sent to courtrooms for trial. In Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, the Supreme Court struck down a Louisiana statute which exempted women from jury duty under certain circumstances. The court held that a requirement that a jury be drawn from a fair and representative cross-section of the community is fundamental to the sixth amendment right to a jury trial in criminal cases. The court also held that it was not dictating any particular method of jury selection, “but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” 419 U.S. 522, 538, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.

In Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, the Supreme Court was again faced with a question of exclusion of women from juries. In that case the court laid down three elements which must be established in order to present a prima facie violation of the fair-cross-section requirement: (1) that the class alleged to have been excluded is a “distinctive” group within the particular community; (2) that the representation of this group in the venire from which the jury was selected was not fairly and reasonably related to the number of such persons in the community; and (3) that the underrepresentation of such persons in the venire is a result of a systematic exclusion of that class of persons in the jury selection process.

While we will not be understood as condoning the procedures employed in the instant case, we find that defendant here has failed to make out the prima facie case under Duren. The evidence clearly, and by the court’s own admission, met the third prong of the test, systematic exclusion. However, the first two prongs of the test have not been met.

Defendant’s chief complaint is that he was denied “blue collar” workers on his jury. He did establish that 37 persons connected with either Staley or Swift were deferred, but there is no showing as to how many of these were “blue collar” persons as opposed to “white collar” workers, directors, executives, stockholders, creditors, or relatives of persons connected with either of the businesses. Secondly, defendant has failed to establish that the composition of the venire from which his jury was selected was not reasonably related to the general composition of the community. No evidence was presented as to the number of “blue collar” workers in the final venire as compared with the number of “blue collar” workers in the community generally, nor was there any evidence of the percentage of the population of Macon County which could reasonably be considered “blue collar.”

The trial court committed error, but we are unwilling and unable under Duren to adopt a per se rule for which defendant appears to be arguing, i.e., that any exclusion is a sixth amendment violation. Duren requires evidence. We are also constrained to remark that the trial court’s finding that Staley and Swift people “would be challenged for cause” is not supported by the record. There is no showing of any pretrial stipulation in that case that connection with either company would be an automatic challenge for cause. If the trial court were so persuaded, it was overreaching the prerogative of counsel in that case.

Defendant’s second contention is that the State did not produce substantial evidence that he was wilfully absenting himself from trial and it was therefore error to try him in absentia.

Defendant’s chief complaint is that the State did nothing to ascertain his whereabouts or that he was avoiding trial, unlike People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708, and People v. Zielinski (1979), 77 Ill. App. 3d 157, 395 N.E.2d 1020, where the record demonstrated affirmative efforts in that regard.

We do not believe that heroic efforts are required of the State. In People v. Watson (1982), 109 Ill. App. 3d 880, 883, it was said:

“Rather than require the State to negate every possibility that a defendant’s absence was not wilful, we hold that a prima facie case is established by showing that the statutory requirements have been complied with. Only if the defendant introduces some evidence that he did not act wilfully should more be required of the State. [Citations.]”

The record here shows that the defendant was admonished at arraignment that he might be tried in absentia if he failed to appear; he was personally present at a pretrial call when the case received a specific date for trial; his attorney stated that he had personally informed defendant of the trial date and at the hearing on his motion for new trial defendant corroborated this; his only excuse as presented on the latter occasion was that he must have “misunderstood the date.” There can be no doubt that defendant was charged with knowledge of his trial date.

Section 4 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5) provides:

“Conduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.”

Powell clearly indicates that a decision to proceed in absentia is a matter for the discretion of the trial judge. The record here supplies no basis for disturbing that discretion.

The judgment and sentence of the circuit court of Macon County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
      In re ESTATE OF SHANNON ENLOE, a Minor.-(St. John’s Hospital, Petitioner-Appellee, v. Shannon Enloe, by Warren Enloe, Guardian of the Person of Shannon Enloe, et al., Respondent-Appellant.)
    Fourth District
    No. 4—82—0108
    Opinion filed October 26, 1982.
    Knuppel, Grosboll, Becker & Tice, of Petersburg (R. John Alvarez, of counsel), for appellant.
    Graham and Graham, of Springfield (Richard J. Wilderson, of counsel), for appellee.
    Nolan Lipsky, of Petersburg, guardian ad litem.
   JUSTICE MILLS

delivered the opinion of the court:

Hospital lien allowed below.

We affirm, as modified.

The minor, Shannon Enloe, appeals from the finding of the trial court that the hospital had a valid and enforceable lien. The lien was filed under the authority of section 1 of “An Act providing for a lien for nonprofit hospitals ***” (Ill. Rev. Stat. 1979, ch. 82, par. 97) (Hospital Liens Statute) which provides for hospital liens upon claims of injured persons treated by such hospital. Shannon was under two years old during the periods of her treatment.

It is urged that (1) there was no valid underlying contract between the infant and the hospital; (2) the parents are solely liable for medical bills of an infant under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1979, ch. 40, par. 1015) (Family Expenses Statute); and (3) there was a failure to show strict compliance with the statutory procedural prerequisites for a valid lien. It is also argued (4) that, even if there is liability under the lien, the amount of the award should be reduced.

We affirm the finding of liability and modify the finding as to the amount.

Shannon Enloe was born on August 12, 1979. Eight days later, she was involved in a vehicle accident resulting in her hospitalization at St. John's Hospital in Springfield. On June 1, 1981, a petition was filed by Warren Enloe as the guardian of Shannon Enloe, alleging that the child had been injured when the pickup truck in which she was a passenger overturned and that the pickup truck was owned by Donald R. Winterbauer and driven by Cherrill Battaglia. The petition requested the court to approve a settlement of respondent’s claim against Winterbauer. The petition also alleged that Shannon had been injured in the accident and hospitalized for treatment at St. John’s.St. John’s filed a lien for the amount of hospital charges with the law firm of Knuppel, Grosboll, Becker and Tice, as attorneys for Shannon. The petition requested the court to determine whether St. John’s lien was valid and enforceable. The court approved the settlement but stated it had no authority to pass on the validity of the lien.

Through matters not entirely clear from the record, St. John’s .Hospital apparently became the petitioner of record and subsequently filed a motion to reconsider and vacate and to enforce the lien. A hearing was held on this motion on November 3, 1981. The court entered an order on February 2, 1982, finding that the lien should be sustained and was adjudged to be in the sum of $11,627.91.’

I

We do not deem it necessary to respond to the various arguments concerning the existence of a valid underlying contract between the infant and the hospital since we conclude that the validity of a lien under the Hospital Liens Statute is not dependent upon common law contract theories. Section 1 of the statute provides:

“Every hospital organized for nonprofit, or hospital maintained and operated entirely by a county, rendering service in the treatment, care and maintenance, of such injured person shall have a lien upon all such claims and causes of action for the amount of its reasonable charges at ward rates in such hospital organized for nonprofit, or hospital maintained and operated entirely by a county up to the date of payment of such damages.” (Ill. Rev. Stat. 1979, ch. 82, par. 97.)

General language can be found that no lien attaches without an underlying debt. (See 51 Am. Jur. 2d Liens sec. 36 (1970).) However, we interpret the clear and mandatory language of the statute as creating such debts and liability of the injured person secured by lien, regardless of any such remedy at common law.

II

Minor’s second argument is that parents are solely liable for the medical expenses of their minor children under the Family Expenses Statute, and, therefore, the infant cannot be held liable under the Hospital Liens Statute. Section 15 of the Family Expenses Statute provides:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” (Ill. Rev. Stat. 1981, ch. 40, par. 1015.)

Medical expenses are properly considered expenses of the family under this statute. (Graul v. Adrian (1965), 32 Ill. 2d 345, 205 N.E.2d 444.) Minor notes that the statute states the parent “shall be” liable for the expenses and concludes that this mandatory language renders the parents solely liable. The hospital also points out that in Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App. 3d 158, 389 N.E.2d 211, the court stated the parents were primarily liable under the statute. However, in that case the distinction between the person primarily liable and one secondarily liable was crucial since the case dealt with subrogation which applied only when a debt was paid for one who was primarily liable. The primary-secondary distinction is not crucial to this case.

We agree with petitioner that the statute merely provides an alternative remedy for creditors. Chargeable means “capable of being charged to a particular account or as an expense or liability ***.” (Webster’s Third New International Dictionary 377 (1976).) Had the legislature intended for this statute to be the sole remedy for creditors, the legislature could easily have stated that the expenses “shall be charged” upon the property of the parents. Since the legislature instead merely stated the expenses shall be capable of being charged to the family’s property, it follows that this is not an exclusive remedy and therefore it does not conflict with the clear language of the Hospital Liens Statute.

Ill

Shannon Enloe’s final attempt to avoid liability under the lien statute concerns the failure of St. John’s to affirmatively show strict compliance with the procedural requisites of the statute. The second paragraph of section 1 of the Hospital Liens Statute provides that the lien be served “by registered mail or in person” on “both the injured person and the party against whom such claim or right of action exists.” (Ill. Rev. Stat. 1979, ch. 82, par. 97.) Minor asserts that the lien is ineffective because there is no proof of compliance with these requirements.

The hospital argues this issue is waived since it was not raised below. (Snow v. Dixon (1977), 66 Ill. 2d 443, 362 N.E.2d 1052.) The minor replies that there is an exception to the general waiver rule when there are sufficient facts in the record for the issue to be reviewed. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 335 N.E.2d 448.) However, this exception only applies if proof might have been offered to refute or overcome the issue had the issue been presented in the trial court. In the present case, there was no testimony as to how the liens were served upon the parties and such proof might easily have been offered by petitioner if the issue had been raised. Furthermore, although there was testimony as to whom the liens were served upon, this does not preclude the possibility that such testimony was incomplete since it was not offered with the purpose of showing compliance with the procedural requirements of the liens statute. Since proof might have been offered — had the issue been raised at trial — on both of these procedural requirements, we find the issues waived.

Shannon also notes that portion of the statute providing the hospital shall have a lien “for the amount of its reasonable charges at ward rate in such hospital,” and asserts that there was no evidence of what were “reasonable charges” or “ward rates.” An administrative officer of the hospital testified that the hospital had no wards, but that it did have two-bed rooms and private rooms. He also testified that Shannon was billed at “ordinary rates” and “usual and customary rates” for two-bed rooms. Minor urges that the liens are invalid for failure to prove that the amounts claimed by the liens are allowed by the statute.

But St. John’s has argued that since the hospital’s witness testified that the billings were at the “usual and customary rates,” this is sufficient testimony that the charges were reasonable. Furthermore, although there are no wards at St. John’s, it could not have been the intention of the legislature to preclude recovery of charges by a hospital which has no wards.

Webster’s Third New International Dictionary 2575 (1976) defines ward as “a large room in a hospital where a number of patients are accommodated,” and gives as examples a four-bed ward or a 12-bed ward. Since there is a fairly wide discrepancy in the number of beds which can constitute a ward under the accepted definition of that term, we believe that a two-bed room comes within the range of the plain meaning of the term “ward.” We note that the amount recoverable is the “reasonable charges at ward rates in such hospital.” (Emphasis added.) Thus, the reasonableness of the charges depends upon the particular hospital filing the lien. Therefore, the testimony that respondent was charged at the “usual and customary rates” for two-bed rooms suffices to support the conclusion that the amounts claimed by the liens were authorized by the statute.

IV

Finally, we agree with the trial court that the liens are valid. But, the trial court found the liens to total $11,627.91, being the total sum of all the bills submitted into evidence at trial. It appears, however, that liens were filed on only four of these bills, totaling $11,043.06. The hospital here has argued that the finding of the trial court as to the amount of the lien cannot be disturbed unless it is against the manifest weight of the evidence. St. John’s also notes that the Hospital Liens Statute provides that “the total amount of all liens hereunder shall not exceed one-third of the sum paid or due to said injured person on said claim or right of action ***.” (Ill. Rev. Stat. 1979, ch. 82, par. 97.) It is argued that the only justification for the trial court’s reduction of the hospital lien is if it exceeds one-third of the total amount of the recovery by the injured person. O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 388 N.E.2d 1073.

It is clear, however, that the reference in the O’Donnell case to the limitation of the power to reduce the lien assumes that the lien' is in fact for at least as much as is awarded under the lien. The trial court’s finding is against the manifest weight of the evidence and we do not believe the statute limits our power to reduce the award to the amount of charges for liens which were filed. Therefore, pursuant to the power granted this court by Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), we find that the total amount of the valid and enforceable liens is $11,043.06.

Any excess monies from the settlement proceeds of $82,500 which have not already been paid to the successor guardian of the minor’s estate, the State Bank of Lincoln, shall be distributed to the State Bank of Lincoln.

Affirmed as modified.

WEBBER and TRAPP, JJ., concur.