author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD KESSLER, Defendant-Appellant.
    Second District
    Nos. 81—317, 81—318 cons.
    Opinion filed March 21, 1983.
    —Rehearing denied April 25, 1983.

      G. Joseph Weller, Josette Skelnik, and Mary Robinson, all of State Appellate Defender’s Office, of Elgin, for appellant.
    James Williams, State’s Attorney, of Mt. Carroll (Phyllis J. Perko and Gene Armentrout, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Gerald Kessler appeals from the denial of his motion to withdraw his pleas of guilty to the offenses of criminal damage to State-supported property (111. Rev. Stat. 1981, ch. 38, par. 21 — 4), and to driving while under the influence of intoxicating liquor (111. Rev. Stat. 1979, ch. 95V2, par. 11 — 501(a)). He seeks also to vacate the conviction and sentence of one year’s probation on the criminal damage charge and 10 days in the county jail for the charge of driving while intoxicated. He contends that his prior adjudication as an incompetent created a prima facie presumption of unfitness to stand trial; that the trial court erred in failing to inquire into his fitness before accepting his plea; and that his plea was not knowingly and understandingly made.

The bystander’s report shows that on April 28, 1981, the judge informed the defendant, who appeared pro se, of his right to counsel, to be appointed if he were indigent, of the nature of the charges, the range of penalties, and his right to plead not guilty and to have a trial. After defendant said he wished to plead guilty to both charges the court stated that defendant would be giving up his right to representation by an attorney and his right to a trial. The defendant answered that he understood. The defendant read the written guilty plea forms and signed them. After finding a sufficient factual basis for the pleas, judgments of conviction were entered.

On May 1, 1981, defendant’s then attorney filed a motion to withdraw the defendant’s guilty plea. At this hearing defendant admitted that he had been advised of his rights and said that he had understood the charges “pretty well.”

In response to a further question defendant said that he did not take care of his own affairs, that his conservator manages his affairs, but that he took care of himself “a little bit” and that the conservator managed only his money.

Defense counsel has filed proof of the petition and order resulting in the appointment of a conservator for defendant on May 31, 1977. The order generally states that the defendant “is an incompetent as defined in Section 11 — 2 of the Probate Act and incapable of managing his estate.”

Neither the defendant nor the State made a request for a fitness hearing at any time. However, because of the fundamental constitutional nature of the fitness requirement, the trial court has a duty to order a fitness hearing sua sponte once facts are brought to its attention which raise a bona fide doubt of the accused’s fitness. (People v. Murphy (1978), 72 Ill. 2d 421, 430; People v. Tilson (1982), 108 Ill. App. 3d 973, 975.) The statutory provision in effect during the course of the proceedings below provided that the defendant, the State, or the court may raise the question of the accused’s fitness to stand trial and be sentenced at any appropriate time before, during, or after trial. “When a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.” (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a); People v. Barnard (1981), 95 Ill. App. 3d 1132, 1135.) Whether a bona fide doubt exists is a decision which rests largely within the discretion of the trial court which, unlike the court of review, was in a position to observe the accused and evaluate his conduct. People v. Murphy (1978), 72 Ill. 2d 421, 426.

A defendant is presumed to be fit to stand trial and be sentenced. (111. Rev. Stat. 1981, ch. 38, par. 104 — 10.) Fitness for trial or sentencing consists of the two qualities enumerated in section 104— 10 of the Code of Criminal Procedure of 1963: the ability of the accused to understand the nature and purpose of the proceedings against him and to assist in his defense. Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10; People v. Tilson (1982), 108 Ill. App. 3d 973, 975.

Although the determination of whether there is a bona fide doubt of fitness depends upon the particular facts of the individual case (People v. Murphy (1978), 72 Ill. 2d 421, 435), certain well-defined principles have emerged which provide guidance. Fitness involves only the accused’s ability to function within the context of the legal proceeding; it does not refer to competency in other areas. Thus, a defendant may be fit for trial even though his mind is otherwise unsound. (People v. Murphy (1978), 72 Ill. 2d 421, 432-33; People v. Tilson (1982), 108 Ill. App. 3d 973, 975.) No one factor in itself raises a bona fide doubt of the defendant’s fitness to stand trial. (People v. Davenport (1980), 92 Ill. App. 3d 244, 246.) In particular, the mere fact that the accused suffers a mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt regarding his ability to understand the nature and purpose of the proceedings against him or to assist in his defense. (People v. Heral (1976), 62 Ill. 2d 329, 336; People v. Jones (1982), 109 Ill. App. 3d 120, 130.) Furthermore, prior mental problems or even prior commitment to a mental hospital do not by themselves raise a bona fide doubt of the defendant’s fitness. (People v. Jones (1982), 109 Ill. App. 3d 102, 129-30.) In addition, the defendant’s limited mental capacity does not require the trial court to question to accused’s fitness. People v. Murphy (1978), 72 Ill. 2d 421, 432.

While the appointment of a conservator for defendant could have been on the basis of incapability of managing either person or estate under the statute then in effect, the adjudication order appears to support the conclusion of the trial judge that the conservator was appointed in the civil matter for the purpose of managing his estate or affairs and not his person. The evidence at the hearing to withdraw the guilty plea supports the conclusion that the conservator managed only defendant’s financial affairs.

We also note that the decisions on which the defendant principally relies involve feeble-minded persons adjudicated incompetent under a former provision which required that the party be incapable of managing both himself and his affairs. (See Ill. Rev. Stat. 1947, ch. 23, par. 346; People ex rel. Wiseman v. Nierstheimer (1948), 401 Ill. 260, 274.) In fact, defense counsel argues only that since defendant had been adjudicated incapable of managing his own affairs he also should have been presumed incapable of pleading guilty. We cannot agree with this general statement, which is unsupported.

Here, the trial judge’s comments reveal that the defendant was advised of his rights under Supreme Court Rules 401(a) and 402(a) (87 Ill. 2d Rules 401(a), 402(a)) and stated that he understood them. The defendant himself testified during the hearing on his motion to withdraw his guilty pleas that he “pretty well” understood the rights the trial court indicated to him, including the charges to which he was pleading guilty. In denying the defendant’s motion, the trial court properly remarked that a distinction existed between incompetency for purpose of managing one’s affairs and the question whether an individual was unfit to enter guilty pleas to criminal charges. The court specifically found that the defendant “seemed fully aware” of what he was doing on the day he entered his guilty pleas and the court admonished him. Based on his observations of the defendant’s conduct at the arraignment, the trial judge concluded that the defendant was sufficiently competent to understand substantially the information which the court conveyed to him.

In our opinion the court did not abuse its discretion in failing, sua sponte, to conduct a fitness hearing at the time the defendant pleaded guilty or thereafter. First, it is clear that the trial court did not know of the adjudication of incompetency with the appointment of a conservator of defendant’s estate at the time the defendant pleaded guilty. In addition, apparently nothing about the defendant’s conduct at the time he entered the guilty pleas demonstrated any indication of his unfitness to understand the nature of the charges against him or the purpose of the guilty plea proceedings. The trial judge had an ample opportunity to observe the defendant’s demeanor, behavior and conversation during the guilty plea proceedings, and again during the subsequent hearing on his motion to withdraw the pleas. We agree with the finding of the trial court that incompetency resulting in the appointment of a conservator of the estate in an unrelated civil context standing alone is insufficient to raise a bona fide doubt of defendant’s fitness to plead guilty to the charges on this record.

Defendant’s further argument that his waiver of counsel was invalid raises, however, a more difficult question which must be addressed.

The standards for waiver of counsel for a defendant presumed to be competent are set forth in Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). The objective of Rule 401(a) is to provide a mechanism which will eliminate any doubt that an accused understands the nature and consequences of the charges brought against him before a trial court accepts his waiver of the right to counsel; the rule sets forth a procedure which precludes a defendant from waiving the assistance of counsel without full knowledge and understanding. (People v. Feliciano (1981), 93 Ill. App. 3d 642, 644; People v. Myles (1980), 83 Ill. App. 3d 843, 850, rev’d on other grounds (1981), 86 Ill. 2d 260; People v. Brown (1980), 80 Ill. App. 3d 616, 622; People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 49.) It appears from the record that the trial court complied fully with the dictates of Rule 401(a). The defendant, in fact, has not argued in his brief that the court below failed to comply with the provisions of that rule.

It is also well established that the waiver of counsel should be carefully scrutinized. (People v. Heral (1976), 62 Ill. 2d 329, 336.) In determining whether there has been a valid waiver, the courts will indulge every reasonable presumption against waiver. (People v. Myles (1980), 83 Ill. App. 3d 843, 849, rev’d on other grounds (1981), 86 Ill. 2d 260.) The finding of waiver of counsel must not be made lightly. The record must demonstrate that the accused was offered counsel and knowingly and intelligently refused the offer. (People v. Williams (1981), 96 Ill. App. 3d 519, 523.) The trial court is required to conduct more than a routine inquiry when making that determination. People v. Feliciano (1981), 93 Ill. App. 3d 642, 645.

In addition to engaging in a colloquy with the accused, the trial court must determine for itself whether the defendant has the requisite capacity to make an intelligent and knowing waiver of his right to counsel. The criteria generally utilized in making that decision are the defendant’s age, level of education, mental capacity, and prior involvement, if any, in legal proceedings. (People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 49-50.) Based upon the particular circumstances of the case and the above factors, the trial court must make a subjective evaluation of whether the defendant was aware of what he was doing. (People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 50.) In reaching its decision, the trial court need not be convinced beyond a reasonable doubt, and the finding of the court on that issue will not be disturbed unless it is against the manifest weight of the evidence. People v. Petty (1977), 54 Ill. App. 3d 1044, 1050.

Defendant also argues that the pleas and waiver of counsel were invalid since the trial court did not inquire into defendant’s competence to waive counsel at the time the court accepted the pleas. He argues that even if he were competent in the sense that he was able to understand the nature and purpose of the proceedings and to assist in his defense, there is a stronger presumption against waiver of counsel because of the importance of that right in preserving the free exercise of other constitutional rights. In fact, the defendant urges that we hold that a waiver of counsel should never be accepted from one who is found so mentally deficient as to be unable to manage his own affairs. Defendant relies principally on Massey v. Moore (1954), 348 U.S. 105, 108, 99 L. Ed. 135, 139, 75 S. Ct. 145, 147, and Westbrook v. Arizona (1966), 384 U.S. 150, 16 L. Ed. 2d 429, 86 S. Ct. 1320 (per curiam).

In Westbrook, the defendant, charged with murdering the attorney representing him in a civil case, waived counsel and unsuccessfully defended himself. In a very brief per curiam opinion, the United States Supreme Court reversed his conviction and remanded on the basis that although there had been a hearing on the issue of competence to stand trial, there appeared to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and to proceed to conduct his own defense. In Massey, which predates Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, the accused was forced to proceed pro se because he was too poor to retain an attorney, and was convicted of a felony carrying a mandatory life term, despite manifestations of possible insanity during trial. However,' the Massey court did not have occasion to reach the separate issue of defendant’s competence to waive counsel.

Westbrook did not define what kind of additional “hearing or inquiry” should have been conducted before the waiver of counsel was accepted, nor did the Westbrook court pause to explain how such a trial inquiry would differ from the hearing on defendant’s competence to stand trial. The post -Westbrook cases have drawn different conclusions as to what in Westbrook necessitated the added inquiry into defendant’s competence to waive counsel — the waiver itself, defendant’s self-representation at trial, or both in conjunction. See Note, Competence to Plead Guilty: A New Standard, 1974 Duke L.J. 149, 160-61.

In People v. Heral (1976), 62 Ill. 2d 329, 336, the Illinois Supreme Court adverted to whether Westbrook v. Arizona required that there be a separate and specific determination that an accused, found competent to stand trial, was also competent to enter a guilty plea. The court exhaustively reviewed the various opinions and writings which had construed Westbrook in various ways (see People v. Heral (1976) , 62 Ill. 2d 329, 332-36), and held that there is not a dual standard as to competency to stand trial as compared to competency to enter a guilty plea since

“a finding of competency to stand trial necessarily involves a finding that, with the advice and assistance of counsel, defendant is capable of waiving some or all of his constitutional rights, whether by a plea of guilty or during the course of his trial.” (People v. Heral (1976), 62 Ill. 2d 329, 335.)

In Heral, however, because the defendant had counsel, the court found it unnecessary to decide whether competency to waive counsel involves a higher standard. 62 Ill. 2d 329, 336.

Here we are squarely confronted with the questions not directly decided in Heral, whether a separate inquiry and the application of a higher standard of competency is necessary and to waive counsel and to make the decision to plead guilty or stand trial pro se.

The competence to waive counsel is generally considered to require a stricter scrutiny than the standard to stand trial or to plead. See generally Winick & DeMeo, Competence to Stand Trial in Florida, 35 U. Miami L. Rev. 32, 72 (1980); Silten & Tullís, Mental Competency in Criminal Proceedings, 28 Hastings L.J. 1053, 1065-72 (1977); United States ex rel. Konigsberg v. Vincent (2d Cir. 1975), 526 F.2d 131, 133, cert. denied (1976), 426 U.S. 937, 49 L. Ed. 2d 388, 96 S. Ct. 2652; State v. Williams (1980), 228 Kan. 723, 728-29, 621 P.2d 423, 429; Pickens v. State (1980), 96 Wis. 2d 549, 567, 292 N.W.2d 601, 610.

Pickens v. State, in our view, appears to be particularly well reasoned. The standard for determining competency to stand trial is, as we have previously noted, whether one is able to understand the nature and purposes of the proceedings against him and to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10; People v. Tilson (1982), 108 Ill. App. 3d 973, 975.) The reference to the ability to “assist in his defense” (emphasis added) implies that more is required to determine whether a defendant is able to conduct his own defense without aid of counsel than a mere inquiry into competence to stand trial with the assistance of counsel. In Pickens, the court stated a standard for making a knowing and intelligent waiver which we believe is apt:

“[W]e hold that in order for an accused’s waiver of his right to counsel to be valid, the record must reflect not only his deliberate choice to proceed without counsel, but also his awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he is facing and the general range of possible penalties that may be imposed if he is found guilty. Unless the record reveals the defendant’s deliberate choice and his awareness of these facts, a knowing and voluntary waiver will not be found.” (96 Wis. 2d 549, 563-64, 292 N.W.2d 601, 609.)

The Pickens court then went on to hold that when the defendant expresses a wish to waive counsel, it must also be determined whether he has the minimal competence necessary to proceed pro se. If he does not, the defendant may be prevented from proceeding pro se even though he has knowingly waived counsel. 96 Wis. 2d 549, 567-68, 292 N.W.2d 601, 610-11.

Turning to the present record, we first conclude that this defendant’s waiver of counsel was properly accepted under the standard for waiver quoted above. There is no question that the court properly admonished the defendant who testified that he “pretty well” understood his rights. The judge noted at the hearing that the defendant at his arraignment seemed fully aware of what the court was saying and what the defendant was doing.

As to the defendant’s competency to proceed pro se, the trial court made no separate finding, but the record shows that the defendant possessed the necessary minimal competence. The defendant was 27; he had been employed previously as indicated by the lapse of his unemployment benefits; he was able to answer responsively the questions asked at the later hearing on his motion to vacate; and he was familiar with the criminal justice system as shown by a recent conviction in the same county for driving while intoxicated. The fact that the defendant pleaded guilty did not demonstrate his unfitness to waive counsel and proceed pro se. See People v. Teron (1979), 23 Cal. 3d 103, 115, 151 Cal. Rptr. 633, 639, 588 P.2d 773, 779.

Under the standards that we have expressed the record assures us that the defendant had the competence necessary to make a deliberate and knowing choice to waive counsel upon an awareness of the facts, and to plead guilty in the absence of legal representation.

We therefore affirm the judgment of the circuit court of Carroll County.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.

       Ill. Rev. Stat. 1977, ch. UOVz, par. 11 — 2. The statute defines incompetent to include (a) a person who because of among other matters mental illness or mental retardation “is incapable of managing his person or estate” and (b) a person because of various factors not including mental illness so spends or wastes his estate. The adjudication order fills out a blank part of the form, stating Kessler is incapable of managing “Ms estate."

       The Illinois Supreme Court has concluded that the “test of competency shall be the same whether the defendant is standing trial or pleading guilty,” since a plea of guilty waives several Federal constitutional rights including the privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one’s accusers. (People v. Heral (1976), 62 Ill. 2d 329, 334.) We thus make no distinction here between the pleas of guilty and trial. It has also been suggested that although a plea of guilty does not involve all the complexities of a trial it requires the mental capacity to assess the strength and weaknesses of the prosecution’s case, to make pretrial motions, conduct plea negotiation, offer evidence in mitigation and to decide whether to withdraw a plea of guilty. 28 Hastings L.J. 1053, 1074.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD AHLSTRAND, Defendant-Appellant.
    Second District
    Nos. 81—419, 81—961 cons.
    Opinion filed March 21, 1983.

      G. Joseph Weller, John Wimmer, and Mary Robinson, all of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Barbara Preiner, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is a consolidated appeal from which defendant appeals four convictions. All of the cases against defendant were disposed of in a single proceeding wherein defendant pled guilty. Two charges of armed robbery in cases Nos. 80 CF 641 and 80 CF 642 were appealed as No. 81 — 419 within 30 days of defendant’s conviction. Additional charges of armed robbery and robbery in cases Nos. 80 CF 1154 and 80 CF 1155 were appealed as No. 81 — 961 pursuant to defendant’s motion for late notice of appeal, which was granted by this court. Subsequently, the State moved to dismiss these appeals because defendant had not moved to withdraw his guilty pleas in accordance with Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)), and this motion was ordered taken with the case.

The State also contends on appeal that this court does not have jurisdiction of these appeals because no valid notice of appeal was filed. This is so, the State argues, because the notice of appeal in No. 81 — 419 reveals on its face that the signature of the defendant, Richard Ahlstrand, was affixed not by the defendant personally but by Mrs. Josephine Ahlstrand. The State correctly points out that Supreme Court Rule 606(a) (87 Ill. 2d R. 606(a)) provides that the filing of a notice of appeal is jurisdictional and that it must be signed by the defendant, his attorney, or the clerk of the trial court. The record in this matter does, however, establish that Mrs. Josephine Ahlstrand was the mother of the defendant, filed the notice at the defendant’s request, and signed his name. The State has not in any way suggested how it has been prejudiced, nor has the State cited any case law in support of its position. The defect is one of form rather than substance and as such does not preclude an appeal of these convictions. See People v. Mason (1969), 118 Ill. App. 2d 47, 50-51.

On appeal, defendant concedes that his failure to file a motion to withdraw his guilty pleas as required by Supreme Court Rule 604(d) ordinarily precludes an appeal even where a pro se notice of appeal is filed within the 30-day period, at least where defendant has been properly admonished of the requirements of Rule 604(d). People v. Frey (1977), 67 Ill. 2d 77.

The single issue raised by defendant upon this appeal is that the trial court failed to substantially comply with the requirements of Supreme Court Rule 605(b) (87 Ill. 2d R. 605(b)), and therefore, this matter should be remanded to the trial court to allow defendant an opportunity to file a motion to withdraw his guilty pleas.

Defendant sets forth no other claims of error. As was pointed out in no uncertain terms in People v. Saldana (1977), 53 Ill. App. 3d 636, 638, defendant should have accompanied his request for remandment with a showing of the facts upon which he relies to secure a withdrawal of his guilty pleas. If the claim of error is one which may be supported by the record, the reviewing court will then be in a position to review the case without an unnecessary remandment and thus effect a saving of judicial time. (53 Ill. App. 3d 636, 638.) The bare statement that defendant may have claims of error based, in part, on matters outside of the record is not enough. The dilemma faced by the appellate court in People v. Saldana is not before us, however, since our review of the record convinces us that the trial court did substantially comply with the requirements of Supreme Court Rule 605(b) and, as defendant did not comply with companion Rule 604(d), this appeal must be dismissed. People v. Schmidt (1978), 59 Ill. App. 3d 762, 765.

At the close of the sentencing hearing, the trial court advised the defendant as follows:

“THE COURT: Now, even though you have entered a plea of guilty, you have a right to appeal the sentence of the Court. However, before you can appeal, you must file in this Court in writing within 30 days of today’s date a motion asking to withdraw your plea of guilty and listing all of the legal grounds on which you rely to withdraw your plea of guilty and vacate the sentence.
If you fail to set forth any one particular ground, it could be waived for purposes of any appeal.
If you are indigent and cannot afford an attorney for any appeal purposes, I will appoint one to represent you in the appeal proceeding and a record of the sentencing hearing will also be made available to you free of charge.
DEFENDANT AHLSTRAND: Yes.
THE COURT: Do you have any questions regarding your right to appeal and what you have to do to perfect an appeal?
DEFENDANT AHLSTRAND: No. I would just ask my lawyer, if I do. I don’t, but I will ask him if I do.” (Emphasis added.)

In support of his position that the admonitions of the trial court were insufficient, defendant relies upon People v. Brooks (1977), 54 Ill. App. 3d 963, and People v. Gramlich (1979), 69 Ill. App. 3d 23. In Brooks, the defendant, as a result of the court’s admonitions, was left with the impression that he could appeal the sentence alone without first filing a motion to withdraw his guilty plea, and this misapprehension of the defendant was reinforced when the court told him that a public defender would file defendant’s notice of appeal despite the fact that no motion to vacate his guilty plea had been filed. Since the defendant was unaware that it was necessary to file a motion to withdraw his guilty plea, as required under Rule 604(d), before taking an appeal, the appellate court in Brooks excused compliance with that rule.

Similarly, in People v. Gramlich (1979), 69 Ill. App. 3d 23, while the trial court advised the defendant that he had a right to file a motion to vacate the plea and judgment entered against him, at no time did the court refer to defendant’s right to appeal or explain that the motion to withdraw the plea was a prerequisite to the taking of an appeal. Under these circumstances, the trial court also excused compliance and considered the appeal on its merits.

Such is not the case here. The judge’s admonitions concerning the defendant’s obligations to file a motion to vacate the judgments and withdraw his guilty plea before he could take an appeal were definite and explicit and complied in detail with the requirements of Rule 605(b)(2). Unlike the defendants in Brooks and Gramlich, defendant Ahlstrand was properly advised of his obligation to file a motion to withdraw his plea of guilty and to vacate the judgment before taking an appeal.

On this appeal defendant Ahlstrand does not contend that the trial court did not properly explain the requirements imposed upon him by Rule 604(d) or that he did not understand the trial court in this regard. Rather, his only contention is that the admonitions of the trial court indicated to him that he could appeal his sentences only, not his convictions.

While the trial judge’s introductory statement might be construed as limiting defendant’s right to appeal to the sentences imposed rather than the convictions, a reading of the complete admonition goes a long way toward dispelling any such misapprehension. Any possible ambiguity in this regard, however, does not lessen the clarity of the court’s explanation that “before you can appeal, you must file *** a motion *** to withdraw your plea of guilty ***.”

Finally, the defendant’s contention that, as a result of the court’s admonitions, he believed that he could appeal only the sentence is refuted by the acts of the defendant in filing a pro se notice of appeal within 30 days in which he appealed not only his sentences but his convictions.

The defendant failed to comply with the requirements of Rule 604(d), and his appeals are therefore dismissed.

Appeals dismissed.

NASH and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ARCHIE LEE JOHNSON, Defendant-Appellee.
    Second District
    No. 81—840
    Opinion filed March 21, 1983.

      Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Archie Lee Johnson, was charged by information with the offense of burglary (111. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)). After an initial mistrial, a second jury was impaneled, and trial commenced.

During a recess following the testimony of two of the State’s witnesses, the State informed the court that defense counsel intended to make a motion to preclude the State from introducing testimony of Nick Garris, the owner of Grove’s Liquors, that defendant had not been in Grove’s Liquors on the night in question. Garris’ testimony was to be proffered by the State following the testimony of a police officer that defendant had told him that, on the night of the burglary, he (the defendant) was at Grove’s Liquors. The State further stated that the motion would be untimely and prejudicial, since the State’s Attorney had discussed the testimony in his opening statement. Defense counsel, in substance, advised the court that he was making such motion. A brief argument was had on the motion, and the court continued the hearing on the motion to the following day.

At that time, the court heard extensive argument from counsel. In his argument, defense counsel contended that Garris’ testimony was not relevant except as rebuttal evidence in the event that the defendant testified. The State’s Attorney argued that the evidence was properly admissible as a false exculpatory statement to show consciousness of guilt on the part of the defendant and its admission should not be limited to rebuttal.

The trial court granted defendant’s motion and ruled that the court would “not permit testimony from a third party concerning the whereabouts of the defendant in the absence of the defendant taking the stand in the proceedings.” The State, thereupon, indicated its intent to take an interlocutory appeal and moved for a mistrial. The defendant, contending that a mistrial was not the proper remedy for an adverse ruling made during trial, objected, and the trial judge agreed and denied the State’s motion for a mistrial. However, upon being advised by the State that it would file a certificate of impairment as required by People v. Flatt (1980), 82 Ill. 2d 250, and People v. Young (1980), 82 Ill. 2d 234, the trial court granted, over defendant’s objection, the State’s motion for leave to take an interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) and discharged the jury. Thereafter, the State filed its notice of interlocutory appeal.

On appeal, the State contends that the trial court erred both in entertaining and in granting what the State characterized as the “defendant’s midtrial motion to suppress evidence.”

The initial question which this court must consider on appeal, however, is whether the State may appeal from a ruling, entered during the trial, sustaining defendant’s objection to evidence of his false exculpatory statement. In a criminal case the State may appeal only as permitted by Supreme Court Rule 604(a). (87 Ill. 2d R. 604(a); People v. Montaigne (1980), 86 Ill. App. 3d 220.) Supreme Court Rule 604(a)(1) permits the State to bring an appeal from an order “the substantive effect of which results in *** suppressing evidence.” (87 Ill. 2d R. 604(a)(1).) Stated differently, the issue before this court is whether the trial court’s ruling here was, in fact, an order “suppressing evidence” as that term is used in Supreme Court Rule 604.

The extent of the State’s right to appeal in criminal cases has been expanded greatly. (People v. Young (1980), 82 Ill. 2d 234, 238.) While the bare language of Supreme Court Rule 604(a)(1) appears to allow the State to appeal any order precluding the admission of evidence, such an interpretation, at least in the past, has been rejected uniformly by the courts. (See 82 Ill. 2d 234, 239.) As observed by our supreme court in People v. Young (1980), 82 Ill. 2d 234, 241-42, several appellate court decisions construed People v. Van De Rostyne (1976), 63 Ill. 2d 364, to preclude appeal from orders excluding evidence on grounds other than the illegality of the search and seizure or the involuntariness of a confession. However, Van DeRostyne was qualified by People v. Young, which held that the State’s right to bring an interlocutory appeal was not limited solely to suppressions based on the illegality of a search and seizure or the involuntariness of a confession.

While Young involved an appeal from a pretrial suppression order, as distinguished from an order entered during the course of the trial as was the case here, People v. Flatt (1980), 82 Ill. 2d 250, addressed the problem in a case involving a midtrial order. According to Flatt, the State may seek review on the merits of a midtrial suppression order where the order granted a defense motion to suppress evidence on the grounds that it was obtained illegally. If, however, the defendant’s motion did not allege that the evidence was obtained illegally and the trial court granted the motion, the State could seek review of the court’s authority to entertain the motion during trial. In such a case, though, the merits of the trial court’s ruling would not be considered. People v. Flatt (1980), 82 Ill. 2d 250, 263-64; People v. Tomasello (1981), 98 Ill. App. 3d 588, 597-98; see Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 11(g), 114 — 12(c).

This distinction was made because, at common law, the defendant was required to object before trial to illegally obtained evidence. This rule was relaxed by statutory provisions permitting defense motions to suppress to be made during trial so long as the grounds for the motion were that the evidence had been obtained illegally and the motion could not have been made prior to trial. (82 Ill. 2d 250, 262; see Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 11(g), 114 — 12(c).) Since the trial court was thus authorized to entertain a midtrial motion only where the motion sought the suppression of illegally obtained evidence, the State’s right to appeal on the merits was limited to orders entered after such a motion. People v. Flatt (1980), 82 Ill. 2d 250, 262-63.

However, recognizing the need to permit some review of erroneous orders granting motions which should have been made prior to trial, the court in Flatt held that the State could seek review of the court’s authority to enter such an order even if the suppression was not based on the illegality of the method by which the evidence was obtained. (82 Ill. 2d 250, 264.) In such a case, the reviewing court would consider only the trial court’s authority to entertain the motion during trial and would not consider the merits of the ruling. 82 Ill. 2d 250, 264; see People v. Tomasello (1981), 98 Ill. App. 3d 588.

The problem is in defining what constitutes an order of suppression. (See People v. Flatt (1980), 82 Ill. 2d 250, 258; People v. Tomasello (1981), 98 Ill. App. 3d 588, 597.) Cases preceding Flatt had noted that only suppression orders, as opposed to mere evidentiary rulings, could be the subject of an interlocutory State appeal and that suppression orders, within the meaning of Supreme Court Rule 604(a)(1), were those which suppressed evidence because it was illegally obtained. (E.g., People v. Montgomery (1980), 84 Ill. App. 3d 695; People v. Young (1978), 60 Ill. App. 3d 49, cert. denied (1979), 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1539; People v. Macaluso (1976), 36 Ill. App. 3d 592.) However, in People v. Young (1980), 82 Ill. 2d 234, our supreme court stated that “suppressed evidence” is to have ;a broader meaning than evidence which is illegally obtained. (People v. Phipps (1980), 83 Ill. 2d 87, 91.) Since the appeal of a suppression order can no longer be resolved merely on the basis of whether the evidence was excluded because it was obtained illegally, the line which separates an evidentiary ruling from a suppression order has become blurred. See 82 Ill. 2d 250.

In the context of pretrial orders, the State’s right to bring an interlocutory appeal has been construed broadly, (See People v. Wallace (1982), 106 Ill. App. 3d 567, 568-69; People v. Kite (1981), 97 Ill. App. 3d 817, 822-23.) Our supreme court has said that such an order which operates to prevent evidence from being admitted is one which suppresses evidence. People v. Phipps (1980), 83 Ill. 2d 87, 90-91.

However, there are obvious and significant differences between pretrial appeals and appeals brought during trial. Interlocutory appeals necessarily prolong trials, but one which interrupts an ongoing trial exposes the defendant to additional strain and expense inherent in recommencing a case after the appeal has been determined. Moreover, the scope of interlocutory appeals affects the orderly functioning of the judicial system. To the extent that interlocutory appeals are allowed the trial process will be disrupted, but the degree of disruption is less if the appeal is taken before rather than after the commencement of trial. People v. Young (1980), 82 Ill. 2d 234, 243-44.

Nevertheless, the court’s opinion in People v. Tomasello (1981), 98 Ill. App. 3d 588, could be construed as authority for the proposition that the State may appeal from any order entered during trial which operates to prevent the admission of evidence, so long as the prosecutor certifies that the ruling substantially impairs the prosecution of the case (98 Ill. App. 3d 588, 597) and that an order should be considered a suppression order whenever its substantive effect is to prevent evidénce from being admitted (98 Ill. App. 3d 588, 598.) However, the language in Tomasello should not be construed so broadly.

It is well settled that the precedential scope of a decision is limited to the facts before the court. (People v. Flatt (1980), 82 Ill. 2d 250, 261.) The trial court’s ruling in Tomasello, from which the State had appealed, had granted the defendant’s motion to strike exhibits and testimony of certain witnesses on the grounds that the State had violated the Illinois statute governing the appropriate compensation to be paid detectives and investigators (Ill. Rev. Stat. 1977, ch. 111, par. 2701). In response to defendant’s argument in favor of dismissing the appeal in that case, this court said the rule that has emerged from People v. Young (1980), 82 Ill. 2d 234, and People v. Flatt (1980), 82 Ill. 2d 250, is that the distinction between suppression of evidence based upon statutory and upon constitutional grounds does not affect appealability. (98 Ill. App. 3d 588, 597.) This court then proceeded to consider the State’s appeal of the order, which had.been entered during trial and had excluded evidence based on statutory grounds, as an order “suppressing evidence” within the meaning of Supreme Court Rule 604(a)(1).

Similarly, in People v. Flatt (1980), 82 Ill. 2d 250, the motion in question was a midtrial motion to suppress any fingerprint evidence for failure to comply with discovery orders of the court. In People v. Young (1980), 82 Ill. 2d 234, which was an appeal of a pretrial order, the motion in question was one to suppress the report of the defendant concerning the activities which were the basis of his prosecution on the grounds of statutory immunity (Ill. Rev. Stat. 1977, ch. 95%, par. 11 — 401(b)). In People v. Phipps (1980), 83 Ill. 2d 87, the pretrial order excluded testimony from certain witnesses unless they first gave up their statutory privilege regarding confidentiality of their personnel files (Ill. Rev. Stat. 1979, ch. 91%, par. 810). On the other hand, in People v. Williams (1982), 108 Ill. App. 3d 219, the court held that a midtrial appeal of a ruling that the prosecution failed to show a chain of evidence in the handling of the certified documents presented by the State could not be taken pursuant to Supreme Court Rule 604(a)(1) because it was an evidentiary ruling and not a suppression order. Clearly, the suppression orders that are appealable by virtue of Supreme Court Rule 604(a)(1) are distinguished from evidentiary rulings which are not appealable. See People v. Flatt (1980), 82 Ill. 2d 250, 258.

Bearing in mind the distinction drawn by our supreme court between pretrial and midtrial appeals and its reluctance to allow the latter (see People v. Young (1980), 82 Ill. 2d 234, 243), our review of the factual situations present in the above cases leads us to conclude that a midtrial order “suppressing evidence,” as that term is used in Supreme Court Rule 604(a)(1), is one in which the evidence is suppressed and denied admittance because it was illegally obtained in violation of a constitutional or statutory right, or even though lawfully obtained, its admittance is to be denied because of a statutory prohibition or the violation of a court rule or some other grounds besides the recognized rules concerning the admission of evidence. To hold otherwise and to consider any objection to the admission of evidence on the grounds of relevancy or materiality or hearsay or other such evidentiary basis as a motion to suppress under Supreme Court Rule 604 would, under the mandate of People v. Flatt (1980), 82 Ill. 2d 250, prohibit the trial court from even considering the merits of any objection to the admission of evidence during the course of the trial except where there is also a contention that the evidence was illegally obtained. We do not believe that such a result was intended by the supreme court in its promulgation of Supreme Court Rule 604, nor is such an interpretation of the rule required by the supreme court’s opinion in People v. Flatt. Such a result would cause grave disruption of criminal trial proceedings and would violate defendants’ constitutional rights to due process and fair trial.

In the instant case, the trial court’s ruling may have been erroneous on a substantive basis, but it was based wholly on evidentiary grounds, specifically the relevancy of the testimony in the State’s case in chief. It was not a suppression order from which an interlocutory appeal would lie under Supreme Court Rule 604, and the filing of a certificate of impairment by the State (People v. Young (1980), 82 Ill. 2d 234) did not make the ruling an appealable order. The appeal must therefore be dismissed.

A question remains, however, as to whether defendant can be further prosecuted on this charge or whether further prosecution is precluded by double jeopardy principles. The constitutional prohibition against double jeopardy represents a policy of finality in criminal prosecutions (United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547) to protect defendants from being forced to go through a trial more than once (People v. Phillips (1975), 29 Ill. App. 3d 529). The first issue in any double jeopardy analysis is the determination of whether jeopardy had attached at the time the first proceeding ended. (People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 534, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) In a jury trial, such as this one, jeopardy attaches when the jury is impaneled, selected and sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156.) Here, the jury had been impaneled and testimony had been taken when the proceeding ended so that defendant clearly had been placed in jeopardy. 74 Ill. 2d 527.

A second trial is not necessarily barred merely because jeopardy had attached in the first proceeding; this depends upon the circumstances of the case. (People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 534-35, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) Where a mistrial has been declared on the defendant’s motion or is attributable in some manner to the defendant, reprosecution is not barred, as the defendant cannot, by his or her own act, avoid the original jeopardy and then assert it as a bar to subsequent proceedings. (People v. Flatt (1980), 82 Ill. 2d 250, 265; 74 Ill. 2d 527; see People v. Wright (1982), 105 Ill. App. 3d 187.) This assumes that the defendant’s motion was not based on gross misconduct or overreaching, as opposed to mere error, by the judge or the prosecutor. United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547; see People v. Turner (1982), 105 Ill. App. 3d 393, 396.

In some circumstances, a second trial may be conducted even though a mistrial was declared over the defendant’s objection. (Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033.) The trial court, in the exercise of its sound discretion, has the authority to discharge a jury before verdict whenever there is a manifest necessity to do so or the ends of public justice would be defeated by a continuation of the proceeding. (Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066; see People v. Turner (1982), 105 Ill. App. 3d 393, 396.) A mistrial generally is appropriate if an impartial verdict could not be reached or if a conviction could be obtained but would have to be reversed on appeal due to an obvious procedural error at trial. (Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066.) The trial court should exercise its discretion with great caution, granting a mistrial only in urgent circumstances and for very plain and obvious reasons. (People v. Laws (1963), 29 Ill. 2d 221, 225.) Where the court has acted properly, retrial of the defendant is not barred. (29 Ill. 2d 221; People v. Turner (1982), 105 Ill. App. 3d 393.) However, double jeopardy bars further prosecution where the trial court has abused its discretion and a mistrial has been declared improperly. United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547 (trial court, on its own motion and contrary to the testimony, found the State’s witnesses unable to testify as they had not consulted with counsel and discharged the jury without considering the possibility of a continuance); Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033 (some prosecution witnesses were not present for trial, and the prosecutor, without seeking a continuance, requested that the jury be discharged); People v. Laws (1963), 29 Ill. 2d 221 (trial court, acting under a misapprehension of law, believed that a mistrial was necessary); People v. Phillips (1975), 29 Ill. App. 3d 529 (mistrial ordered, without consideration of other possible remedies such as contempt or exclusion, due to a bystander’s conduct); People v. Cobb (1974), 19 Ill. App. 3d 520 (mistrial ordered after the State objected to the composition of the jury, where the State had previously stipulated to that jury and the jury had been impaneled).

Defendant’s action in objecting to the testimony on the basis of relevancy was timely and proper. It was the State’s insistence on filing a certificate of impairment following the court’s denial of a mistrial that induced the trial court mistakenly to grant leave to the State to take an interlocutory appeal and thereupon to discharge the jury. Defendant objected to this procedure, and the discharge of the jury occurred solely as a result of the actions of the State and the trial court. Under these circumstances, the doctrine of double jeopardy does apply and the defendant is entitled to be discharged and have the charge pending against him dismissed.

This appeal is dismissed, and this cause is remanded to the trial court with directions to dismiss the charge and discharge the defendant.

Appeal dismissed; cause remanded with directions.

HOPF and NASH, JJ., concur.

       While Flatt specifically referred to motions to suppress based on an illegal search and seizure, identical statutory provisions apply to motions based on the involuntariness of confessions. Therefore, the two situations should be treated the same. See Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 11(g), 114 — 12(c); People v. Hoffman (1981), 84 Ill. 2d 480, 485-86.


author: JUSTICE HEIPLE

text:
      In re R.P.M., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. R.P.M., Respondent-Appellant.)
    Third District
    No. 82—825
    Opinion filed March 16, 1983.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case arises out of a previous appeal wherein we reversed the revocation of the minor’s probation. On appeal to the supreme court, our decision was reversed and the cause remanded to this court for further proceedings. The facts are as follows.

Two petitions to revoke the minor’s probation were filed, both of which named as respondents the minor, his natural parents and his stepfather. The petitions erroneously named the minor’s legal guardian as the proposed guardian. The only respondent who was formally served with notice of the pending proceedings was the minor’s mother. Present at the hearing were the minor, his attorney, his mother, and the minor’s probation officer who represented the legal guardian. Not present were the minor’s natural father and his stepfather.

On appeal, the minor argued that failure to give notice to himself, his natural father, stepfather and legal guardian deprived the court of jurisdiction. In an unpublished opinion (In re R.P.M. (1982), 104 Ill. App. 3d 1212 (Rule 23 order), we held that the failure to notify the minor’s noncustodial father and his stepfather was not fatal to jurisdiction. (In re J.W. (1981), 87 Ill. 2d 56.) However, we agreed that the lack of notice to the minor and his guardian failed to invoke the court’s jurisdiction, and we reversed the lower court.

The supreme court granted leave to appeal and, without elaboration, entered a supervisory order reversing our decision with respect to the issue of jurisdiction, citing In re J. W. (1981), 87 Ill. 2d 56. The cause has now been remanded for consideration of two issues we did not reach due to our reversal on jurisdictional grounds.

First, the appellant argues that he is entitled to a new dispositional hearing because the court’s decision to commit him to the Department of Corrections was not based solely upon the original conduct for which he had been placed on probation. According to the appellant, the court improperly considered the conduct which constituted a violation of the appellant’s probation, and an alleged car theft for which the respondent had not previously been charged.

It is true that a dispositional order should be based on the conduct which initially resulted in a finding of delinquency. Had the court in the instant case completely ignored that conduct and sentenced the appellant in order to punish him for his conduct while on probation, we would not hesitate to order a new dispositional hearing. But that has not happened. In committing the appellant to the Juvenile Department of Corrections, the court made the following statement:

“On the 30th of March of this year, the Court released the Minor and, as I recall, that hearing was similar to this as far as the statements made to it by the Minor. It was talked at that time of the job at Heritage House. So the situation, as far as the Minor is concerned, has remained relatively constant. But then the petitions that bring this matter again to the Court’s attention were filed in something just over a week, on April the 8th, from that release. The conduct involved in this matter is as serious, but it adds new light to the information that the Court had available to it on the 30th. And that is it provides an input as to whether or not an outpatient in the treatment program can be successfully established for [R.P.M.] and I think the clear conclusion is that it can’t.
The minor is having such difficulty getting a grip on himself to stay in one place long enough that somebody can look at him and focus on the problem and to assist him in solving the problem, and that the treatment can’t be properly administered outside a confined situation.
The psychiatrist makes the recommendation that if it can’t be done in an outpatient basis, then an inpatient period of treatment should be followed. I don’t know whether he was speaking euphemistically — the only secured facility available to this Court where a person is locked up against their [sic] will for purposes of receiving rehabilitative treatment is the Department of Corrections. Every other facility has an element of voluntariness to its confinement.
Clearly, the running that this Minor has done in the past indicates that a secured facility is necessary. For the reason stated, the Court feels compelled to select the Department of Corrections as the appropriate disposition and, clearly, in the Minor’s best interest.”

The court clearly was not attempting to punish the appellant for his conduct while on probation. The court was simply reassessing appellant’s rehabilitative potential in light of the events which transpired after he was placed on probation. The court properly noted that the conduct which was the subject of the revocation hearing occurred less than two weeks after appellant was placed on probation. Such recency reflected poorly on appellant’s rehabilitative potential. A circuit court, when imposing its sentence following revocation of probation, is free to consider the probationer’s conduct while on probation in order to reassess his rehabilitative potential. That is precisely what the court did in the case before us. 111. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3(d); People v. Deskin (1977), 47 Ill. App. 3d 328.

While the instant case was being appealed to the supreme court, another case with similar facts was also being argued before that court. (In re R.D.S. (1983), 94 Ill. 2d 77.) After the supreme court handed down its supervisory order reversing our decision in the present case, the appellant filed a petition for rehearing, pointing out that In re R.D.S. was a mirror image of this case. The petition was denied.

On January 24, 1983, the supreme court filed an opinion in In re R.D.S. affirming the appellate court’s finding that the trial court lacked jurisdiction over the minor. Appellant argues that since the instant case is so factually similar to In re R.D.S., the court should also have found that jurisdiction was lacking in the present case. Because the two cases were decided differently, appellant now asks this court to declare that the supreme court has denied his right to equal protection of the law and to fundamental fairness.

The threshold issue is whether an appellate court can rule that its own State supreme court has violated the constitution in reaching a decision. We find that we have no such authority. It is fundamental that appellate courts are without authority to overrule the supreme court or to modify its decisions. (Beagley v. Andel (1978), 58 Ill. App. 3d 588.) In addition, we believe that the appellant’s contention is without merit. Our comparison of In re R.D.S. and the instant case discloses significant distinctions which we will briefly discuss in the interest of clarity.

In both cases, the minor’s guardian did not receive formal notice of the pending adjudicatory hearing. However, an employee of the guardian’s office was present at the hearing. That is where the similarity ends.

In In re R.D.S., the name of the legal guardian appeared nowhere in the petition. In the present case, the guardian’s name was included in the petition, but erroneously labeled as the proposed guardian. In In re R.D.S., although an employee of the guardian’s office was present at the hearing, the appellate court specifically found that there was no showing that the legal guardian had de facto notice of the proceeding so as to uphold jurisdiction under the rule set forth in In re J.W. (1981), 87 Ill. 2d 56. In the present case, it is reasonably clear from the record that the employee of the guardian’s office was appearing on behalf of the guardian and that the legal guardian had de facto notice of the proceeding. Thus, in In re R.D.S., there existed a number of reasons for finding that the lower court lacked jurisdiction which have no application to the case at bar. Therefore, there was nothing arbitrary in the supreme court’s finding that the lower court had jurisdiction over the minor in this case.

For these reasons, we affirm the order of the circuit court committing the minor to the Juvenile Department of Corrections.

Affirmed.

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


author: JUSTICE ALLOY PRESIDING JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER HOWARD, Defendant-Appellant.
    Third District
    No. 82—79
    Opinion filed March 16, 1983.

      BARRY, P.J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Rita K. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Roger Howard, was charged with five counts of taking indecent liberties with a child, two counts of battery and one count of resisting a peace officer. (111. Rev. Stat. 1979, ch. 38, pars. 11 — 4(a)(3), 12 — 3(a)(1), and 31 — 1, respectively.) After a jury trial in the circuit court of Fulton County, the defendant was convicted on all counts except one count of battery. He was sentenced to four-year terms of probation on each of the five indecent liberties convictions, with the first 120 days to be served in the county jail. The defendant was also sentenced to a one-year term of probation on each misdemeanor conviction, with the first 120 days in the county jail. All sentences were to run concurrently with one another.

The complaining witness for the State was the defendant’s stepdaughter, Lisa Reedy. At the time of the trial she was 15 years old, having been 14 years old when the incidents occurred. Lisa testified that on Easter Sunday morning, April 19, 1981, she was in the front room of her house and the defendant was sitting in a nearby chair. He told Lisa to sit on his lap. When she complied, the defendant placed his hand inside her underpants. The defendant explained that he wanted to see if Lisa,was “a good girl or a bad girl,” and he fondled her vagina. Although Lisa told him no, he did not stop until Lisa’s brother, Clifford Howard, entered the room. After this episode, the defendant went into his bedroom and told his wife, Lisa’s mother, Delila Howard, what had occurred.

Lisa testified to a second incident on July 11, 1981. The defendant had awakened her at about 6:30 a.m. He picked Lisa up off the floor of her bedroom, which she shared with her three brothers and one sister, and then dropped Lisa on the floor when she tried to get free. The defendant left the room but returned. He told Lisa to take her younger brother to the bathroom, which she did. On her way back to the bedroom, the defendant stopped her in the kitchen. Once again he told Lisa to sit on his lap, and he fondled her vagina. When he finished, the defendant told his wife what happened.

On July 17, 1981, Lisa was outside of the house when the defendant asked her to come into the garage. The defendant leaned Lisa against some tires and began kissing her. He also rubbed the outside of her pants around the vagina area. Lisa broke away and went into the house. Lisa said that her younger brother, Carl Reedy, was around the garage at the time. However, when Carl Reedy testified for the defense, he claimed that he did not see the defendant doing anything to Lisa.

Lisa described a fourth incident with the defendant which occurred on July 19, 1981, at about 3:30 a.m. The defendant came into Lisa’s bedroom and awakened her. He had been drinking. She was told to go into her parents’ bedroom so her parents could talk to her. When Lisa was seated on their bed, the defendant asked her why she had been lying to her mother concerning the defendant’s sexual advances. Lisa said she had not been lying. The defendant pushed Lisa and struck her. After some further conversation, the defendant told Lisa, “Well, I ought to just screw you and get it over with. It’s what you want.” Then he pulled off Lisa’s underpants, tearing them in the process, and inserted his finger into her vagina. When Lisa’s mother attempted to intervene, the defendant pushed her back on the bed. Afterwards, Lisa went to her room to go to sleep.

At approximately 7:30 a.m. on July 19, 1981, the defendant and Lisa were in the kitchen together. He fondled her and inserted his finger in her vagina. Lisa screamed and ran into her bedroom. She climbed into the upper bunk bed with her older brother, Jeff Reedy. The defendant came into the room and pulled her out of bed onto the floor. He told his wife to get Lisa out of the house. Jeff then ran outside the house, and the defendant sent his wife after him. Lisa joined her mother.

Lisa testified further that she and her mother went to a neighbors’ house, the Sipes, to call the police. Lisa was telling her story to a police officer when the defendant arrived on the Sipes’ porch. The defendant was telling his wife to come outside so that he could talk to her. Other police officers arrived and instructed the defendant to stay. The defendant, however, did not obey them and began to walk away. He had to be apprehended by both officers and handcuffed.

After returning home to change her clothing, Lisa went to a hospital where she was examined by a doctor. From the hospital, she went to make a statement to the police.

The complaining witness’ older brother, Jeff Reedy, testified for the State. He corroborated Lisa’s testimony as to some of the facts of July 11, 1981, and July 19, 1981. Jeff said that on July 11, 1981, he woke up and heard the defendant lifting Lisa off the floor. He heard her start to cry at which point the defendant dropped her. After Lisa took their brother to the bathroom, Jeff heard the defendant from the kitchen say “Do it,” and heard Lisa say “No.” He then heard a sound like a slap.

As to the events of July 19, 1981, Jeff testified that he was awakened when Lisa jumped into the upper bunk bed with him. She was crying and screaming. The defendant came into the room and pulled Lisa off the bed, dropping her to the floor. Jeff stated that the defendant was kicking her and telling Delila Howard to get Lisa out of the house before the defendant killed her.

The doctor who examined Lisa on July 19, 1981, Dr. Mohammed Dowlut, testified for the State. He explained that a total pelvic examination was not performed because there was no report of intercourse. However, he described the outer vaginal area as moderately red which could have been caused by various factors, including rubbing.

The State also submitted into evidence a pair of Lisa’s underpants. These were torn and described as the pair Lisa wore on July 19,1981.

The first witness for the defense was the complaining witness’ mother, Delila Howard. She denied any knowledge of the defendant’s sexual advances toward her daughter until July 18, 1981. Delila claimed that she never witnessed any such activity. Although she admitted that she had made previous statements to the police and the State’s Attorney which confirmed Lisa’s testimony, Delila said that she had lied then. She claimed to have fabricated the previous statements with Lisa because at first she believed her daughter. Delila also said she lied in order to send the defendant to jail and secure a divorce from him. She no longer felt that way, however, and was now telling the truth to the jury. Delila also accused her daughter of lying in her testimony

Lisa Howard’s 14-year-old brother, Carl Reedy, was a defense witness. He testified that on July 18, 1981, while his parents were out, he saw Lisa and Jeff Reedy lying on the floor when he got up to use the bathroom. Both of them were naked and Jeff was inserting his finger into Lisa’s vagina. Carl went back to bed but did not tell anyone of the incident. He said Jeff threatened him so he would not say anything. Carl did not tell anyone until he moved back with the defendant sometime after the defendant’s release on these charges. Lisa and Jeff denied Carl’s story during testimony. They both gave a similar description of the evening of July 18, 1981, which sharply contrasted with Carl’s.

The defendant testified on his own behalf. He denied the allegations made by Lisa and claimed he never made any sexual advances to her. The defendant testified that in the early morning hours of July 19, 1981, Lisa, Delila Howard, and he discussed the lies Lisa was telling about these incidents. The defendant also admitted to hitting Lisa. As to the incident later that morning, the defendant claimed he was merely coming out of the bathroom when Lisa began screaming. She ran into her room and climbed in bed with Jeff. The defendant’s account of the rest of the story was similar to those of the other witnesses.

One other witness was called by the defense but the court ruled her testimony inadmissible. The defendant, however, made an offer of proof outside the presence of the jury.

Wilda Decker would have testified to a conversation she had with Lisa Ready about IV2 years ago. Apparently at that time, Delila Howard and her children went to stay with Decker for two to three days. Delila left the defendant because Lisa said the defendant had made sexual advances towards her. Decker asked Lisa if she was telling the truth about the defendant. Lisa informed Decker that she had lied in order to separate her parents. Lisa did not want her mother living with the defendant because he disciplined the children too much. Decker also stated that she had been the defendant’s girlfriend in the time between this incident and the trial.

Lisa testified that she did not like living with the defendant because he made her work around the house but would not let her go out. She also claimed he was “mean” to her. She denied, however, having a conversation with Wilda Decker.

The first issue the defendant raises is whether he was convicted by proof establishing his guilt beyond a reasonable doubt. In order to establish guilt beyond a reasonable doubt in cases of this sort, the complaining witness’ testimony must be corroborated or clear and convincing. (People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063.) The credibility of the complaining witness, of course, is a question for the trier of fact. In this case, the testimony of the State’s witnesses, if believed, would be sufficient to establish guilt beyond a reasonable doubt.

The fact that the State’s evidence is sufficient to establish guilt beyond a reasonable doubt does not, however, end our inquiry in this appeal. This court cannot normally overturn findings of fact made by a jury. This court does have a duty, though, to insure that all relevant facts were properly placed before the jury.

In this regard, the defendant argues the trial court erred when it refused to admit the testimony of Wilda Decker. This testimony, the defendant contends, would establish Reedy’s bias or prejudice against the defendant and prove the motive to testify falsely. We agree with the defendant and reverse this cause for a new trial.

A showing of bias or motive to testify falsely is an accepted method of impeaching a witness. (People v. Lenard (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054.) Moreover, a court should allow a criminal defendant wide latitude to establish bias, prejudice or a motive to testify falsely. (See People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708 (court should give defendant wide latitude on cross-examination to establish bias). See also People v. Lenard (refusal to admit evidence or permit cross-examination of State’s witnesses to establish motive to testify falsely was error).) This wide latitude is particularly important where — as in the case at bar — the State’s case rests almost entirely on the credibility of its witnesses. The evidence of bias, of course, must be direct and positive.

In this case, Decker’s testimony would have had a direct and positive bearing on the credibility of the complaining witness. Decker’s testimony would have revealed that Reedy made similar charges against the defendant IV2 years prior to the incidents in question here. Decker’s testimony also would have revealed that Reedy fabricated those prior charges in an effort to persuade her mother to divorce the defendant. Additionally, Reedy openly admitted, in her testimony, that she did not like her stepfather because he insisted upon Reedy doing housework and would not allow her to go out at night. Significantly, the same motive to fabricate her testimony at trial may have existed a year and a half earlier. Decker’s testimony would have demonstrated that Reedy engaged in a persistent pattern of conduct in an effort to separate her mother from the defendant — either by causing a divorce or by causing the latter’s imprisonment. Decker’s testimony, if believed by the jury, could have been a substantial and important element in proving Reedy’s bias and motive to lie.

The State’s reliance on People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328, indicates it is confused about the issue in this appeal. In Garza, this court ruled that it is impermissible to challenge a witness’ credibility by establishing that on a former occasion he lied about a totally unrelated matter. In contrast, the issue here is whether the witness can be impeached by showing bias, prejudice, hostility or motive to testify falsely. Although the evidence of this bias is a pattern of untruths, nevertheless the issue remains whether the defendant should be permitted to show prejudice or motive to testify falsely. More particularly, Reedy’s statements a year and a half prior to trial, if established, under a parallel set of circumstances, combined with the same motive to lie on both occasions, cannot be characterized as “totally unrelated” to the criminal charge. In fact, Garza noted that evidence of a witness’ hostility towards the defendant is clearly relevant to that witness’ credibility and admissible for impeachment.

For these reasons, the trial court erred when it refused to admit Decker’s testimony. Even if the State’s evidence is sufficient to establish guilt beyond a reasonable doubt, the defendant must be permitted to adequately challenge that evidence. The credibility of the complaining witness here was directly in issue and the defendant should have had an opportunity to fully challenge that credibility.

The judgment of the circuit court of Fulton County is reversed and the cause remanded for a new trial.

HEIPLE, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

I cannot agree that reversible error occurred here. This is not a case wherein the defendant was improperly limited in his cross-examination of the State’s witnesses, as in People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526, People v. Lenard (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054, People v. Hobson (1979), 77 Ill. App. 3d 22, 396 N.E.2d 53, and People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708. Instead, what we are here obligated to determine is whether the trial judge abused his discretion in refusing the testimony of an additional defense witness, Wilda Decker.

The evidence of witness Decker was offered in an attempt to show that the complaining witness had a motive for lying, i.e., to cause her mother and stepfather to separate or divorce. The incident to which Decker would have testified, as disclosed by the offer of proof, happened IV2 years prior to the crimes charged here. It is axiomatic that it is within the discretion of the trial court to exclude evidence offered by the defense in a criminal case without infringing upon the accused’s constitutional right to present a defense when the relevancy of the evidence is so speculative as to give the evidence little probative value. (People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550.) Judge Wilhelm denied the defense motion to permit Decker’s testimony ruling that it was totally remote in time and place and irrelevant. Given all the circumstances of this case, including that the alleged activity of a former day was not here charged, including the length of time that had passed and the fact that Decker admitted she was now the defendant’s girlfriend, I would not say the trial court abused its discretion in excluding Decker’s testimony. Further, there was nothing to indicate that the complaining witness continued to want the separation of her mother and stepfather up to the time of these incidents. (Cf. People v. Moretti (1955), 6 Ill. 2d 494, 522, 129 N.E.2d 709, 725.) It should also be noted that Decker’s evidence would have been cumulative at best. The mother of the complaining witness had already testified to the earlier incident, and the complaining witness admitted that she wanted out of the house and was glad that she was no longer living in the same house with her stepfather, and that she in fact hated him.

Furthermore, the complaining witness was thoroughly cross-examined, and her testimony was convincing and unwaivering. Her disclosures were supported by the immediate reporting to the police by her and her mother and the results of an immediate examination by Dr. Dowlut who found abrasions and scratches on her right shoulder, redness in the vaginal area and torn underclothing. Her testimony was corroborated by her brother Jeff and the defendant’s own admissions regarding contemporaneous occurrences.

I would find that the trial judge did not abuse his discretion, that the defendant got a fair trial and that he was properly found guilty beyond a reasonable doubt.


text:
    CITY NATIONAL BANK OF KANKAKEE, Trustee, et al., Plaintiffs-Appellees, v. KENT SCHOTT et al., Defendants-Appellants.
    Third District
    No. 82—333
    Opinion filed March 16, 1983.
    — Rehearing denied April 25, 1983.

      James C. Franczek, Jr., and Barbara J. Stob, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellants.
    Edwin W. Sale, of Kankakee, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs (petitioners), owners of a large tract of land, filed a petition with the Regional Board of School Trustees for the Kankakee County Service Region and the Board of Education of the Kankakee School District No. 111 for disconnection from the Kankakee School District No. 111 and annexation to Bradley Grade School District No. 61 and to Bradley-Bourbonnais High School District No. 307. The Board of Education of District No. 111 opposed the disconnection and requested a hearing. After the hearing, the hearing board denied the petition. The petitioners then appealed to the circuit court of Kankakee County, in the Twelfth Judicial District, for an administrative review. The circuit court held that the order of the hearing board was against the manifest weight of the evidence, reversed the order and ordered the requested disconnection and annexation. The defendant, School Board of District No. 111, appeals the decision of the circuit court and asks this court to determine whether the lower court correctly held that the hearing board’s decision denying the petition for detachment was contrary to the manifest weight of the evidence. The nature of the issue compels this court to review the evidence, as well as applicable law, and judge the quality of the hearing board’s findings. Wirth v. Green (1981), 96 Ill. App. 3d 89; Board of Education v. Regional Board of School Trustees (1980), 85 Ill. App. 3d 394; Virginia Community School District No. 64 v. County Board of School Trustees (1963), 39 Ill. App. 2d 339.

The property in question consists of two tracts of land totaling 77 acres. The land sits on the northern boundary of the Kankakee School District No. 111. The Bradley-Bourbonnais High School District (BB) adjoins the tracts on the north and west. The Bradley Grade School District (BGS) adjoins the tracts only to the west. The land is within the corporate limits of the village of Bradley, and is an unspecified, but substantial, distance to the north of the city of Kankakee. Touching the northwest corner of the tracts is a subdivision called Quail Hollow, which is within BB and BGS districts. Quail Hollow was developed by one of the petitioners, Mr. Lovell. While the acreage is now vacant land, the petitioners (except Richard) proposed to develop and subdivide 30 acres of the western tract in which, it is anticipated, approximately 90 homes, costing from $60,000 to $75,000, will be sold for residences. (If, at some future date, Mr. Richard develops his half of the tract, then there could be between 160-210 homes in the area.) Water, gas and electricity are available, but the land has not yet been subdivided. As noted above, petitioners asked that the land be disconnected from the Kankakee School District.

The Illinois School Code, section 7 — 2.6, outlines what consequences must be considered by the hearing board when evaluating a petition for disconnection. The statute states, in relevant part, as follows:

“*** The Hearing Board (a) shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto, and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, (b) shall take into consideration the division of funds and assets which will result from any change of boundaries, and the will of the people of the area affected, and (c) shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils should such change in boundaries be granted.” 111. Rev. Stat. 1979, ch. 122, par. 7 — 2.6.

Apart from the stipulations of the parties, the board made several findings of fact. From the evidence presented by the petitioners (which included maps and the testimony of several petitioners), the board concluded the petitioners based their request solely on financial and personal preference reasons, and Mr. Lovell’s feasibility studies and investigations as to who would live in the proposed subdivision were outdated and unsubstantiated. The board also noted there was no testimony from any person with children in the Kankakee School District and there were 10 students residing in a neighboring tract who attend the School District No. Ill — these residents and students, who were not part of the petition, raised substantial negative inferences regarding the viability of the petitioners’ claims that the potential residents of the subdevelopment would be primarily interested in having their children attend either the BB District or the BGS District.

From the evidence presented by the school district (which included attendance records and the testimony of the district superintendent Dr. Doglio), the board concluded the proximity of the various schools is not considerably different and busing would be needed; in the event the development did occur, the Kankakee School District would enjoy a substantial financial gain — or, if the petition were granted, a financial loss; and lastly, the disconnection would result in further segregation of the racial makeup of School District No. 111.

With these conclusions, the board found that it was not in the best interests of the schools of the area and the educational welfare of the pupils affected to allow the boundary changes requested by the petitioners. The board cited Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, for the rule that the welfare of the affected districts and their pupils as a whole must control rather than the wishes of a few, and such petitions should be granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. (12 Ill. 2d 190, 193-94.) Then, it held that the petitioners had fallen far short of establishing that the benefits of the proposed disconnection would offset the detriment to District No. 111. The board did not consider any standards other than the rule in Oakdale.

In the 25 years following the Oakdale decision, our appellate courts and supreme court have had several opportunities to review disconnection hearings, and have substantially built upon the Oakdale standard. (Wirth v. Green (1981), 96 Ill. App. 3d 89, 91.) Most recently, the supreme court, in Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 382, reviewed two factors which a board had considered in determining what were the best interests of the pupils in question. The board, in turn, had drawn these factors from various appellate court decisions. The court noted that it was not improper for the board to consider the “whole child” and “community of interest” factors. “The former factor recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. (School District No. 106 v. County Board of School Trustees (1964), 48 Ill. App. 2d 158.)” (89 Ill. 2d 392, 397.) The latter factor is used to “ascertain whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his natural community it enhances not only his educational opportunity but encourages his participation in social and other extracurricular activities that figure importantly in the ‘whole child’ idea. The court in Burnidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503, 509-10, stated that more important than benefits of increased safety and savings in transportation costs and time ‘is the fact that an identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area.’ ” (89 Ill. 2d 392, 398.) The supreme court has not established any one of these guidelines as an absolute rule. But, the fact the high court considers them proper and many appellate courts have used these factors suggests that they should, at least, be evaluated during a hearing. In the instant case, the board totally failed to consider these factors. Furthermore, after reviewing the record, we believe that the board overlooked important evidence, and its findings as to financial loss and impending segregation were greatly exaggerated.

In order to avoid a lengthy point-by-point refutation of the board’s findings, we shall summarize the evidence which the board chose to ignore. The appellants cite our supreme court in Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 397, for the principle that “[i]t is not for a court to reweigh evidence or substitute its judgment” for that of the hearing board. This is an important principle of administrative review. Nevertheless, the supreme court has also made clear, in Oakdale Community Consolidated District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 195, that the “rule which accords a prima facie validity to administrative decisions does not relieve a court of the important duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact. It is unnecessary for this court to advert to the dangers inherent in a relaxation of this function. *** Our Administrative Review Act does not require judicial recognition of an order which is against the manifest weight of the evidence, ‘nor does the law allow a stamp of approval to be placed on the findings of an administrative agency merely because such agency heard the witnesses and made the requisite findings.' Drezner v. Civil Service Com. 398 Ill. 219, 231.” (Emphasis added.) See Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 396.

It was the board’s duty to determine whether annexation to the Bradley school districts would be beneficial to the educational welfare of any pupils who might later reside in the area. (Cf. Burnidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503, 511.) The educational welfare should be determined by considering the “whole child” and “community of interest” factors. These factors can be evaluated simply by discerning, from the available evidence, the practical educational and social needs of the future residents. This requires a comparing of the quality and physical proximity of both the schools and the extracurricular facilities and programs offered by the competing school districts, as well as the safety of the children. And, when the competing districts are located in separate communities, a determination must be made as to the natural gravitation of the future residents to one or the other community.

To begin, it must be remembered that, at present, no one lives on the property in question and that the property is within the territory of the village of Bradley. Petitioner, Mr. Lovell (Mr. Lovell is an experienced real estate developer in the area and could be considered an expert on the subject at hand), testified that in his opinion most of the residents would come from Bradley. His opinion was based upon his own informal survey and knowledge as a real estate developer in the area. It should be noted that Mr. Lovell conducted a similar investigation before developing the Quail Hollow subdivision. Mr. Lovell anticipated that most of the residents of Quail Hollow would come from Bradley; and indeed, they did. Mr. Lovell conceded that being in the Bradley districts would increase the value of the land in the proposed development and make the homes more marketable. The board seems to have seized upon this one economic consideration and totally ignored the fact the land would be worth more, in large part, because of the educational benefits which would accrue to the future residents, if the land were within the Bradley school districts. The petitioners requested the annexation to the Bradley districts so that future residents coming from the Bradley districts could keep their children in the Bradley schools and programs and not be forced to place their children in unfamiliar surroundings. Testimony also indicates that the village of Bradley is about 50% Catholic and that it was anticipated there would be a substantial Catholic population in the proposed subdivision, which is in the St. Joseph Church area. The church operates a grade school in the center of Bradley. The Kankakee school bus would deposit students at this school eight blocks from their destination while the BGS bus would take them within three blocks. Moreover, the Kankakee District No. 111 grade and high schools were almost twice as far as the Bradley schools (the former located between 2.5 and 3.9 miles from the property, and the latter 1.7 miles). Although, in either district, the children would require busing, the care and safety of the younger children would undoubtedly benefit from the shortest practical distance. Also, the village of Bradley operates a park program for children; the BB and BGS districts operate a recreational program at the high school community center, as well as little league and midget football programs; and, a grade school athletic program is operated at a site on North Street approximately three blocks from the proposed subdivision. The programs of the school districts would be available only to their own students and families. There is apparently no similar limitation on the park program. School District No. Ill did not offer evidence of similar programs in the neighborhood. The appellants claim that none of the petitioners’ testimony is credible. Yet, in no way did District No. Ill impeach this testimony or even offer its own predictions as to the needs of the future residents. We find the evidence and testimony of the petitioners to be credible and important. The proximity of the Bradley community and the facilities and programs which could be offered by the Bradley school districts lead this court to conclude that, regardless of whether the residents will come from Bradley, the Bradley districts are in the natural community of the future residents. Taken together, this evidence clearly falls within the “whole child” and “community of interest” factors and should have weighed heavily in the board’s evaluation of the possible benefits which would arise from the granting of the petition. Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392; Board of Education v. Regional Board of School Trustees (1980), 86 Ill. App. 3d 230; Brunidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503.

The finding of the board as to possible financial loss to District No. Ill was cryptic at best. The order does not explain what facts led to this finding. Nevertheless, the transcript of the hearing suggests that the board based its finding on the loss of enrollment in District No. Ill over the past 10 years, the loss of State funds as a result of decreased enrollment, the fact District No. Ill has a lower per student assessed valuation than the Bradley districts and the change in the ratio of black to white students over the past several years. This last factor was also important to the board’s fear of segregation.

Several statistics must be analyzed in order to determine the possible financial loss to District No. 111. These include the number of homes expected in the development, the number of school children in those homes, the market value of the homes, and the assessed value of those homes. The number of homes was estimated to be initially 90 in the first 30 acres and, if the rest of the tract (belonging to Mr. Richard) were developed, eventually 160-210 homes in the entire 77 acres. The values would range between $60,000 and $75,000 per home. The parties stipulated that eventually 300 students would live on the 77 acres. The assessed value of all the future homes was estimated to be $4,252,500 (this amount is obtained by multiplying the market value of all the homes, 210 homes x $75,000 = $15,750,000, by the assessed valuation percentage used in the county of Kankakee, 28%). The present assessed valuation of the property is $24,614. It was also stipulated that the assessed valuation of BB is $114,253,288, of BGS is $47,320,790 and of District No. Ill is $148,849,207. The per pupil assessed valuation of BB is $62,600, of BGS is $34,970 and of District No. 111 $24,000.

The board stressed that the per pupil assessed valuation of District No. 111 ($24,000) was lower than that of the BB and BGS districts. Appellants argue that this court should consider the fact District No. Ill is already taxing at its maximum rate without referendum and can ill afford to lose the assessed valuation the land will generate. If we take the appellant’s projected assessed valuation of the land with 210 homes, at $75,000 per home, and divide the total by 300 students, one finds a per student assessed valuation of approximately $14,000 per student. Thus, adding the subdivision and its 300 students to District No. 111 would only further decrease the district’s per student valuation. It seems the Bradley districts are in a better position than District No. 111 to absorb this low per student valuation. Furthermore, in terms of percentages of total assessed valuation, the $4,252,500 valuation of the development would be only about 3% of District No. Ill’s $150,000,000 total tax base. If we consider the testimony that only 90 homes would be initially built, then the percentage drops to about 1.3%. The tax income from the development would range from $51,263 to $149,517 (depending on whether there will be 90 or 210 homes respectively). These amounts, while not loose change, are insignificant in comparison to the whole of District No. Ill’s funds, and it is unlikely that the loss of these amounts would adversely affect the ability of District No. Ill to function, or meet the statutory standards of recognition. (Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 401 (whether a detaching district will remain financially healthy and able to meet the statutory standards for recognition is more important than the size of the loss of tax revenues and assessed valuation the district must bear).) The appellants also urge this court to consider the State aid which District No. Ill would receive for each attending student. The State presently reimburses the district $1,460 per pupil. The education cost per student is $1,527. Thus, the total added cost to the district for 300 students would be $19,500. This cost, of course, would be offset by the $51,263 to $149,517 in possible tax revenue from the development. At the same time, this calculation demonstrates the diminishing monetary value of the development to District No. 111.

The board also reviewed and compared the enrollment statistics of the various districts in question. The board found that in the last five years District No. Ill lost approximately 790 students, while the Bradley districts had a net gain of 10 students (the high school gained 145 and the grade schools lost 135). It is suggested that simply having the future students in District No. Ill will benefit the district and, conversely, losing the students will be a detriment. We must look, again, at total numbers. The student population in District No. Ill schools in 1980 was 6,334 (a decrease from 7,124 in 1976). the student population of the BGS district was 1,342 and that of BB high school was 1,796. The possible “loss” of 300 future students to a school district containing over 6,000 students is not seriously detrimental. Furthermore, Mr. Lovell’s predictions, that most of the future residents and students will come from Bradley, lead this court to the conclusion that not granting the petition would result in a real loss to the smaller Bradley school districts.

In its order, the board also based its decision on the conclusion that District No. Ill would suffer further segregation if the tracts were disconnected. Enrollment data shows that over the past 10 years District No. Ill has experienced a declining white student enrollment and an increasing black student enrollment to the point where, in 1980, there were 3,675 whites and 2,639 blacks. The future projections indicated that by 1985 the white enrollment will have dropped to 2,615 and the black enrollment will have attained 2,936. It is our opinion, based on these statistics, that there was no need for the hearing board to engage in its own desegregation program — an approximately 1-to-l ratio is not segregation. The superintendent of District No. Ill, Dr. Doglio, did make an interesting point concerning the detriment to the future students were they not within the integrated District No. 111. He testified that the Bradley districts had, in 1980, only 30 black students. It was Dr. Doglio’s opinion that, if the petition were granted, the future students would be deprived of the opportunity to be educated in a truly integrated environment, and, in particular, would be denied the opportunity to associate with and better understand members of minority groups. In the case at hand, we do not believe this factor, standing alone, is sufficient to deny the petition. There was no evidence that blacks would be discouraged from buying homes in the proposed development. The neighboring Quail Hollow subdivision has several black families. And, there is no evidence that allowing the petition will foster segregation or affect the racial makeup of District No. Ill schools.

It is the opinion of this court that the petitioners provided evidence that the disconnection would not just serve the personal and financial interests of the petitioners, but also the educational development of the future students of the proposed subdivision. Considering the location of the development within the village of Bradley and its very close proximity to Bradley schools and school programs, it is clear there would be a “community of interest” closely connected with the village of Bradley and that allowing the disconnection would foster the development of the “whole child” and, thus, result in an improvement in the educational picture of the entire area. Moreover, the financial loss to District No. Ill in terms of tax income would be insignificant when compared to its total tax base, and the district would not suffer a real decrease in per student assessed valuation. The detriment alleged by the appellants would neither impair the district’s financial health nor its ability to meet the statutory standards for recognition. Thus, we conclude that “the overall benefit to the annexing district and the detachment area considered together *** ‘clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole.’ [Oakdale], 12 Ill. 2d 190, 194” (emphasis added) (Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 400-01), and find, as did the lower court, that the hearing board’s findings of fact were against the manifest weight of the evidence and that the board’s application of the relevant law to the facts was erroneous.

The decision of the lower court is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.