text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ONE 1978 MAZDA GLC HATCHBACK AUTOMOBILE, SERIAL NO. FA4TS700177, LICENSE NO. IL 1981, JW 7362, et al., Defendants-Appellees.
    Fifth District
    No. 82—210
    Opinion filed April 19, 1983.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    James B. Bleyer, of Marion, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

The State brought this action for the forfeiture of an automobile pursuant to article 36 of the Criminal Code, Seizure and Forfeiture of Vessels, Vehicles and Aircraft (Ill. Rev. Stat. 1981, ch. 38, par. 36— 1). The circuit court for Williamson County denied the State’s forfeiture petition, finding that the car was owned by a person not a party to the litigation.

On December 16, 1981, the State’s Attorney filed a forfeiture complaint alleging that defendant, John Louis Whitright, was the owner of a 1978 Mazda GLC Hatchback, bearing serial number FA4TS700177, license number Illinois 1981, JW 7362. The complaint alleged that defendant used the motor vehicle in the commission of the felony of possessing between 30 and 500 grams of a substance containing cannabis in violation of section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56½, par. 704(d)). In addition, the petition stated that the motor vehicle was seized on December 6, 1981. Notice of the forfeiture proceedings was sent to defendant.

On December 22, 1981, defendant filed an answer in which he alleged that the search and seizure of the cannabis was unlawful and that any evidence should be suppressed and not admitted into evidence. Defendant denied the allegations of the complaint and requested that it be dismissed and all relief sought be denied.

A hearing was held on February 2, 1982, at which defendant testified that he was the owner of record of the 1978 Mazda GLC Hatchback. Defendant further testified that the automobile was purchased by his father who furnished all the money for the purchase. Defendant testified that title to the automobile was in his name but that he would repay his father for the full value of the automobile and that he considered his father to be the owner.

On cross-examination, defendant stated that he intended to pay his father but had not yet started to do so. Defendant also stated that since the car was purchased in August 1981, he was the only one who normally possessed a key to the automobile.

James H. Whitright, defendant’s father, testified that he purchased the automobile by giving Wallace Motors in Carbondale a check for the full purchase price of $3,470. Whitwright stated that he considered himself to be the owner of the automobile so long as his son owed him money for the purchase price.

On February 4, 1982, the trial court, after hearing the evidence, denied the forfeiture complaint and ordered that the automobile be returned to its lawful owner, defendant’s father. On March 9, 1982, the State filed a motion to reconsider, alleging that the court’s finding that defendant’s father had an interest in the automobile was contrary to the manifest weight of the evidence. The court denied the motion to reconsider and this appeal followed.

The State contends on appeal that the trial court erred in holding that an unrecorded interest was sufficient to defeat forfeiture proceedings. The State maintains that defendant’s father’s failure to record his interest excluded him from the protection of the forfeiture statute.

A forfeiture action is an in rem proceeding against the item used in the commission of a crime. The legislative policy behind forfeiture statutes is that forfeiture of vehicles is permitted in order to repress certain types of crimes when these vehicles are used in the commission thereof. People ex rel. Carey v. 1976 Chevrolet Van Serial No. CGV1564131316 (1979), 72 Ill. App. 3d 758, 760, 391 N.E.2d 137, 139.

Section 36 — 1 of the Criminal Code of 1961 provides for the seizure of any vehicle used in the commission of a felony with the knowledge of the owner. (Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1.) This section provides that the sheriff shall give notice of the seizure to each person “whose right, title or interest is of record in the office of the Secretary of State.” Section 36 — 1(a) provides that the State’s Attorney shall promptly release any vehicle to any lienholder or secured party “whose right, title or interest is of record as described in Section 36 — 1,” if such lienholder or secured party shows to the State’s Attorney that his lien or secured interest is bona fide and was created without knowledge that the vehicle was used in the commission of an offense. Ill. Rev. Stat. 1981, ch. 38, par. 36(l)(a).

In the instant case, the trial court, in denying the forfeiture complaint, found that “[tjhere was no evidence of a loan of money from the defendant’s father to the defendant.” The court went on to state that “[a]s between the defendant’s father and the defendant, the father owned an interest that was not recorded or made of public record.” The court also noted that “[i]t is not clear why the son held title with nothing in writing to show a lien in the father; yet this was a family relationship and thus loosely conducted.” After reviewing the trial court’s findings, we hold that the father’s unrecorded interest was not a proper basis for denying the forfeiture complaint.

In People ex rel. Carey v. 1976 Chevrolet Van Serial No. CGV1564131316 (1979), 72 Ill. App. 3d 758, 391 N.E.2d 137, a case involving facts similar to those presented here, the court held that the determination that defendant’s father was the “true owner” of the vehicle, which was in defendant’s name, was contrary to the manifest weight of the evidence. In that case, defendant’s father testified that he gave his son $5,000 to purchase the van in his father’s name. Defendant, however, placed the title to the vehicle in his own name; although the father stated that the failure to place title in his own name was inadvertent, he did not take any action to change the registration.

The court in the 1976 Chevrolet Van case reversed the trial court, stating that there was no binding agreement requiring defendant to pay his father for the vehicle. In reaching its decision, the court did not address plaintiff’s contention that under the forfeiture statute a person who has no recorded interest in a vehicle cannot be considered an owner of the vehicle. The trial court in the present case noted this omission in denying the forfeiture complaint.

We believe that the forfeiture statute is clear and unambiguous in protecting only individuals whose ownership interest is of record. Defendant’s father’s failure to record his interest in the automobile precludes him from contesting the forfeiture. Although we realize that the statute may impose an unanticipated hardship upon defendant’s father, we believe that the language of the statute allows no other result.

Defendant contends that the forfeiture statute vested the trial court with broad discretion to determine the sufficiency of the evidence and whether forfeiture should be ordered. In support of his position, defendant points to the use of the word “may” in section 36 — 2 of the Criminal Code of 1961. The language to which defendant refers states, “Where the State has made such showing, the Court may order the vessel, vehicle or aircraft destroyed; may order it delivered to any local, municipal or county law enforcement agency, or the Department of Law Enforcement of the State of Illinois; or may order it sold at public auction.” (Ill. Rev. Stat. 1981, ch. 38, par. 36—2.) We believe that the word “may” as used in section 36—2 does not grant a trial court the broad discretion that defendant suggests, but rather refers to alternative dispositions of the vehicle in question.

For the foregoing reasons, the judgment of the circuit court of Williamson County denying the State’s forfeiture complaint is reversed.

Reversed.

HARRISON, P.J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT PRESIDING JUSTICE BARRY,

license: Public Domain

text:
    LYMAN MELVIN TWADDLE, Plaintiff-Appellant, v. DIANE LITCHFIELD, a/k/a Diane Sayers, Defendant-Appellee.
    Third District
    No. 81—683
    Opinion filed May 17, 1983.
    Rehearing denied July 8, 1983.
    BARRY, P.J., specially concurring.
    Robert G. Heckenkamp, of Heckenkamp and Simhauser, of Springfield, for appellant.
    James J. Elson, Chartered, of Canton, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This action arises out of an automobile-motorcycle collision which occurred in rural McDonough County. Following a jury trial in the circuit court of that county, a verdict was returned for the defendant. This appeal has been prosecuted by the plaintiff, who seeks a new trial.

On April 9, 1977, the plaintiff, Lyman Melvin Twaddle, was driving his motorcycle south on Candy Lane Road. Riding with him was a passenger, Melodie McGrew. Candy Lane was a two-lane, blacktopped road south of Macomb, Illinois, which proceeded generally in a north and south direction. It was straight, with a dip to the north of and near the place of the collision in question.

Three miles south of Macomb’s Grant Street, Candy Lane forms a “T” intersection with a road that runs to the west, but not to the east. As the plaintiff approached this intersection on his motorcycle, he was followed by an automobile driven by the defendant, Diane Litchfield (Sayers). Arriving at the “T” intersection, the plaintiff made a right turn toward the west, made a “U” turn on the intersecting road, made a rolling stop, and then re-entered Candy Lane Road going north. As the plaintiff’s motorcycle re-entered Candy Lane Road, it crossed the path of defendant’s oncoming automobile. The defendant, fearing a collision, applied the automobile’s brakes. The application of its brakes caused the automobile to skid into the northbound lane of Candy Lane where a collision occurred between the automobile and the plaintiff’s motorcycle.

As previously recounted, a suit was filed, and in the trial which followed the plaintiff advanced the position that he was traveling in his lawful lane of traffic, and that defendant’s actions which caused her automobile to skid into the northbound lane of traffic were negligent. In contrast, the defendant advanced the position that her reaction in applying the brakes was a reasonable response to an emergency situation created by the plaintiff’s failure to yield, and therefore the resultant skid into the northbound lane was legally excusable.

On appeal, the plaintiff urges that the verdict of the McDonough County jury was against the manifest weight of the evidence. Although the statement of facts previously set forth is somewhat abbreviated, we have nevertheless thoroughly reviewed the record of proceedings below and we cannot agree with the plaintiff that the position advanced by defendant is not supported by credible evidence. Indeed, the evidence presents a close case, and the jury verdict reflects a careful consideration of the contrasting positions of the litigants. None of the cases cited by the plaintiff, Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758, Martin v. Miles (1963), 41 Ill. App. 2d 208, 190 N.E.2d 473, Nikkinen v. Evans (1967), 90 Ill. App. 2d 438, 232 N.E.2d 774, and Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692, involve the question of one’s conduct when confronted with an emergency where the standard of care imposed by law may be less stringent than in other circumstances. (Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277.) Thus, the rule announced in those cases must be distinguished from the instant case.

Another alleged error urged upon us by the plaintiff involves the defendant’s failure to comply with the pretrial discovery requests made upon her. In defendant’s answers to plaintiff’s interrogatories she stated that she had 10 photographs taken by her insurance carrier, eight of the collision site, one of the motorcycle and one of the automobile. Defendant was requested to produce these photographs in her possession. Prior to trial, the defendant produced xerox copies of seven photographs. At the time of trial, the defendant produced seven original photographs taken by her insurance carrier and three slide transparencies taken by her attorney.

As a further part of pretrial discovery, plaintiff requested that the defendant produce all discoverable notes or memoranda relating to the collision. That request was purportedly complied with on March 8, 1979. When the seven original photographs were produced at trial, it was revealed that written on the backs of the photographs were notations concerning the collision scene, the length of the defendant’s skid marks, and the exact point of impact. None of these notations were produced on March 8, 1979. The plaintiff’s counsel, unprepared for this revelation of newly discovered matter at the commencement of trial, demanded that the defendant stipulate into evidence the substance of the notation concerning the length of defendant’s skid marks, or in the alternative, that the court order a continuance to permit the plaintiff an opportunity to subpoena the notation’s author. The trial court indicated that it was not adverse to continuing the matter pursuant to plaintiff’s demand, and following a recess in the proceedings, the litigants returned to court and entered into the stipulation demanded.

The photographs again became an issue in post-trial proceedings before the court. At that time, the plaintiff directed the court’s attention to answers given by the defendant in response to the plaintiff’s interrogatories. Since only seven photographs were produced— the remaining three being slide transparencies — and since only seven photographs were taken by the insurance carrier — the slides having been taken by defendant’s attorney — it was the plaintiff’s contention that the interrogatory was incorrect or that disclosure was incomplete. In order to verify that the unaccounted for photographs taken by the insurance company had not been wrongfully withheld in the pretrial discovery process, the plaintiff subpoenaed the insurance carrier’s investigative file as well as it claims supervisor and its claims adjuster.

The defendant objected to this procedure which she characterized as unauthorized post-trial discovery, and dismissed the apparent inaccuracy of the interrogatory response as mere inadvertence. Despite objection, the trial court permitted plaintiff’s counsel to question both the claims supervisor and the claims adjuster. The court did not permit plaintiff’s counsel to examine the insurance carrier’s file; however, the court did impound the insurance carrier’s file as maintained by its claims adjuster, and the file of defendant’s attorney, for the purpose of inspecting both files in camera. Further, the court ordered those parts of the insurance carrier’s “original investigative file” having “anything to do with [the] photographs” to be certified to and produced by an officer of the carrier. Following the trial court’s in camera inspection of the impounded files, it denied the plaintiff’s post-trial motion which sought a finding that defendant had failed to make a good faith pretrial discovery response.

Plaintiff now urges that a new trial should be granted because he was denied a continuance upon the revelation of the undisclosed notations and because he was denied the opportunity after trial to examine the insurance carrier’s investigative file. With regard to the matter of the continuance, we cannot agree that the trial court denied the plaintiff’s request, let alone that it erred in doing so. As previously recited, plaintiff’s demand was made in the alternative as follows:

“I would call upon Counsel [for the defendant] at this time to stipulate that if, in view of these circumstances and in view of having been taken by surprise since we have been here in this matter, call upon him to stipulate that *** if the person who took these photographs was here, he would testify that the skid marks that he found on this photo or exhibit measured 105 feet. In the alternative, I would ask for a continuance of this trial ***.”

The trial court responded that it “wouldn’t be adverse to continuing this.” A recess was taken and following a recess the stipulation demanded was agreed to on the record. We do not believe justice would be served if the plaintiff here were granted a new trial for the reason that the very stipulation he demanded, albeit in the alternative, was agreed to by the defendant. Moreover, the refusal of a continuance is not prejudicial where the anticipated testimony of an absent witness is admitted. Kellyville Coal Co. v. Strine (1905), 217 Ill. 516, 75 N.E. 375.

Likewise, we do not believe the plaintiff is entitled to a new trial because he was denied the opportunity to examine the insurance carrier’s investigative file. Without considering the defendant’s contention that there is no statutory authority for post-trial discovery, we would observe that all discovery is limited by certain basic restraints. For example, the information sought to be discovered must be relevant (73 Ill. 2d R. 201(b)(1)), it must not be privileged (73 Ill. 2d R. 201(b)(2)), and it must not include strategies prepared for trial (73 Ill. 2d R. 201(b)(2)). Under the facts of the instant case, the only issue raised by the post-trial motion involved defendant’s good faith in producing all the photographs in her possession. Thus, the only material which could have been relevant under the general rules which govern all discovery was material relating to the photographs and the number taken. Yet, under these circumstances, the relevant information in the files sought to be examined was intermingled with nondiscoverable privileged matters and work product. Faced with this dilemma, the trial court impounded the subpoenaed files, reviewed them, and made available to the plaintiff those parts of the file relevant to plaintiff’s post-trial inquiry. This method of proceeding afforded plaintiff the opportunity he sought to verify that discovery had been conducted in good faith, while protecting the confidentiality of defendant’s privileged matters and work product. The trial court’s authority to so supervise the discovery process is clearly granted by the Supreme Court Rules (73 Ill. 2d R. 201(c)), and we believe the trial court’s exercise of its supervisory authority under these circumstances adequately protected the rights of both litigants.

To additionally insure that no bad faith occurred in the pretrial discovery phase of this action, we have meticulously examined the impounded files, and we find nothing to indicate that the insurance carrier ever exposed or possessed more than seven photographs. The statement by the defendant that the insurance carrier took 10 photographs — when in fact the defendant’s attorney took three of the 10 appears to be a careless, inexact response to the interrogatory propounded; however, it does not appear that three photographs were secreted or withheld. We find no attempt by the defendant to subvert the discovery process by intentionally withholding information or photographs which should have been produced in discovery, nor do we conclude that the defendant’s inexact response engendered such confusion as to require the granting of plaintiff’s post-trial motion for imposition of sanctions.

For the reasons set forth the judgment of the circuit court of McDonough County is affirmed.

Affirmed.

STOUDER, J., concurs.

PRESIDING JUSTICE BARRY,

specially concurring:

This was a contributory negligence case. The ultimate question before us is whether the defendant’s fractional discovery prejudiced this plaintiff. In the final analysis I think not. However, as is indicated by the majority, “indeed, the evidence presents a close case, ***.” The critical fact is whether the motorcycle was headed north in its proper lane. No photograph of the damaged area of the motorcycle was produced by the company. Only a photograph of the undamaged rear of the motorcycle was produced.

This close case deserves more careful scrutiny for a special reason — here we have a common insurer, insuring both the plaintiff and the defendant. We know from Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410, that absolute good faith and a stricter standard of disclosure is necessary in such cases. With these principles in mind, and considering that the objective of discovery is disclosure, I have painstakingly reviewed the record. The question thus is whether this insured did in fact comply with the standard of disclosure applicable to this case. There is evidence of noncompliance. In his post-trial motion the plaintiff requests appropriate sanctions for failure to make good faith discovery. Consideration must be given to whether the noncompliance was so substantial as to have been prejudicial.

About a month after the accident, on May 6, 1977, the insurance company determined that it also insured Mr. Twaddle. Prior thereto Mr. Twaddle cooperated with the company, giving a statement regarding the incident, and submitting bills and medical reports regarding his injuries. Ultimately, during October 1977, Mr. Twaddle engaged counsel to represent him, suit was filed several months later, and about two years thereafter interrogatories were propounded to Diane Litchfield, the defendant. In response, the defendant, with the aid of insurance company counsel, responded that 10 photographs were taken “right after the accident” by the insurance company.

As the trial commenced, in August 1980, only seven original photographs were given over to plaintiff’s trial counsel by the insurance company’s defense counsel in compliance with plaintiff’s discovery requests and for possible introduction into evidence. Legends on the back of some of the photographs were then revealed for the first time. The trial court indicates that all parties concerned were genuinely surprised. This was the first and only evidence of the skid marks put down by the defendant’s automobile, obviously a fact of more than passing importance. No skid marks were noted on the police report.

The foregoing, constituting at the very least less than full discovery of investigative matters when total discovery is required by the common insurance carrier, prompted post-trial proceedings by the plaintiff in an attempt to prove that the company denied him access to materials to which he was entitled in preparation for trial against another insured. He asked only for the company’s investigative file as it existed prior to the date he engaged counsel in October of 1977. The opinion of the trial judge was that the discovery matters in the case were “highly disputed” and merited a full hearing.

I have scrutinized the impounded files and find no reference disclosing anything more than that some photographs were taken by one of two investigating company adjusters, apparently within two days following the accident, “probably the day that [they] learned of the accident.” The company transmittal photo envelope included in one of the impounded files had no blanks completed regarding the number of photographs taken, or otherwise. It bore only the legend “Sayers,” the name of the defendant Litchfield as of her marriage on June 17, 1978 — about one year after the accident.

Near the end of that lengthy post-trial hearing the insurance defense counsel refused to allow his and his company’s entire files to be viewed in camera by the court. It appears that there were three, or possibly four, company files in all. The trial judge, Judge Charles Wilhelm, in attempting to fashion a remedy for which there are no post-trial discovery rules, settled for defense counsel’s interpretation of what was his own work product and what was the content of his client’s investigative files. The record does not support the majority’s assertion that the trial judge ever had an opportunity to review the entirety of the files. My review of the record indicates that the trial court permitted defense counsel to extract from the files any of those parts that he, the defense counsel, chose to cull out. In my opinion, that was error. To distinguish relevant investigative information from nondiscoverable privileged matters and work product is properly the chore of the trial court.

Finally the trial judge, in denying the post-trial motion of the plaintiff, wrongly indicates that the entire file was requested to be discovered by the plaintiff. The record supports that only the investigative file, prior to the date the matter became an adversary proceeding, in October of 1977, was requested, and that except for copies of two letters he was refused access. The response was inadequate. The motion for reconsideration was filed in response to that denial, but no transcript is found in the record on review of that hearing. The motion to reconsider was denied, but we do not have the benefit of the court’s reasoning therefor.

Nonetheless, in this case, since I am convinced that the plaintiff was not prejudiced, I do not believe that the severe sanction of a new trial would be appropriate.

I, therefore, concur in the result reached by the majority.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. WAY, Defendant-Appellant.
    Third District
    No. 82—298
    Opinion filed June 9, 1983.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Robert E. Way, was convicted on one count of attempt (murder) and two counts of deviate sexual assault. He was sentenced to an extended term of 60 years for attempt (murder) and two extended terms of 60 years for deviate sexual assault. The sentence for attempt was to run consecutively to the concurrent terms for deviate sexual assault. The defendant challenges his sentence on appeal, arguing that the court erred in imposing more than one extended sentence and in utilizing the defendant’s prior conviction for murder as the basis for the extended sentence.

The defendant asserts that the extended terms for deviate sexual assault must be reduced to a nonextended term because only one extended-term sentence may be imposed upon a defendant convicted of multiple offenses arising from a single incident. The defendant argues that because he received an extended term for attempt (murder), the court erred in also sentencing him to extended terms for deviate sexual assault. The defendant bases his argument on the language of section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2(a)), and the decision in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.

Section 5 — 8—2(a) provides in relevant part:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5—5—3.2 were found to be present. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—2(a).)

The defendant argues that the language “a term of imprisonment” indicates that the legislature intended that only a single extended term be imposed on a defendant when multiple convictions stem from a single incident. The defendant infers this intent from the failure of the legislature to use the plural “term(s)” in the statute.

We believe the defendant has too strictly interpreted the statutory language. The essence of the language is that each sentence imposed by the court may not exceed the maximum provided for the class of the most serious offense unless an aggravating factor is present. Section 5—8—2(a) limits the maximum sentence which a defendant may receive unless a factor in aggravation is present. (People v. Jordan (1983), 114 Ill. App. 3d 16.) The defendant’s argument would expand the scope of the statute to limit not only the maximum sentence which a defendant may receive but also the number of extended sentences which a court may impose. We decline to so expand the effect of section 5 — 8—2(a) based solely upon the usage of “term” rather than “term(s).”

The defendant also argues that the decision in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, supports his contention that only one extended sentence may be imposed upon him. The court in Evans held that when a defendant has been convicted of multiple offenses of differing classes, an extended term may be imposed for the most serious offense only if that offense was accompanied by an aggravating factor. Several courts subsequently interpreted the Evans decision as mandating that an extended term be imposed only for the most serious offense of which a defendant has been convicted. People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937; People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327.

However, more recent decisions interpreting section 5—8—2(a) have rejected the holdings of Walsh and Winston. The court in People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311, refused to interpret the Evans decision as requiring that only one extended term be imposed upon a defendant for multiple convictions arising from a single incident. The court in People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684, acknowledged that it was departing from its earlier decision in Walsh and affirmed extended sentences for Mims’ convictions of murder and armed robbery, both of which stemmed from a single incident. The court in Mims relied upon the Illinois Supreme Court decision in People v. Williams (April 16, 1982), No. 51870, wherein the supreme court held that extended terms were properly imposed for convictions of rape and aggravated kidnaping, which are different class offenses, although both convictions arose from one incident. A subsequently issued opinion reversed and remanded the Williams case on other grounds but left the analysis of the sentencing issue undisturbed. People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.

This court recently decided the issue in the instant case in accord with the decision in Mims. In People v. Jordan (1983), 114 Ill. App. 3d 16, 27, we held that section 5 — 8—2(a) “does not limit the imposition of an extended term sentence to the most serious. class of offenses of which an accused is convicted.” Instead, the statute acts as a limit on the maximum sentence a defendant may receive where no factor in aggravation is present.

Based upon our decision in Jordan, as well as the reasoning and holdings of Mims and DeSimone, we conclude that the imposition of multiple extended-term sentences for convictions of offenses of different classes is proper under section 5 — 8—2(a), even where the multiple convictions are based upon a single incident. We therefore hold that the trial court properly sentenced the defendant in this case to three extended-term sentences based upon the convictions for attempt (murder) and deviate sexual assault.

The defendant also argues that the court erred in imposing extended terms of imprisonment because the court relied upon the defendant’s prior conviction of murder, pursuant to section 5 — 5— 3.2(b)(1) of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(1).) The defendant’s prior conviction was based upon a guilty plea by the defendant. The defendant asserts that a conviction which results from a guilty plea cannot be used as a factor in imposing an extended-term sentence.

Section 5—5—3.2(b)(1) provides that an extended-term sentence may be imposed:

“(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(l).)

The defendant argues that the language “separately brought and tried” precludes the use of a conviction based upon a guilty plea because in such a situation the charges against the defendant were never “tried.”

We disagree. The meaning of the statutory language on which the defendant relies was recently considered by the court in People v. Baker (1983), 114 Ill. App. 3d 803. The defendant in Baker challenged the use by the trial court of a prior conviction as a factor in imposing an extended sentence where the record was unclear as to whether the conviction resulted from a guilty plea or a trial verdict. Baker’s appeal was based upon the very language on which the present defendant now relies.

We find the decision in Baker to be the correct resolution of this issue. The purpose underlying the extended-term statute is to increase the punishment of recidivists. As the court in Baker noted, charges against an accused may be brought separately but tried together. This provision of the extended-term sentence prevents a court from imposing an extended term upon a defendant based upon charges tried concurrently. The language in question thereby ensures that a prior conviction, when used as the basis for an extended term, will be totally separate and distinct from the charges for which the extended sentence is imposed, so that it is clear that the accused is in fact a recidivist. We conclude that the language “separately brought and tried” was meant to reflect the goal of punishing recidivists and not, as the present defendant argues, to distinguish between prior convictions based on trial verdicts rather than guilty pleas. The trial court in the instant case properly utilized the defendant’s prior conviction for murder as a factor in imposing the three extended-term sentences on the defendant.

Because the trial court properly imposed extended-term sentences for the defendant’s multiple convictions, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE STOUDER

text:
    ITT THORP CORPORATION, Plaintiff-Appellant, v. MARY LOUISE HITESMAN, Defendant-Appellee.
    Third District
    No. 82—480
    Opinion filed May 26, 1983.
    Rehearing denied July 8, 1983.

      David L. Cover, Ltd., of Peoria, for appellant.
    Danny L. Schroeder, Jr., and Joseph F. Bartley, III, both of Bartley, Fraser, Parkhurst, Hession & Renner, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff ITT Thorp Corporation filed a complaint for foreclosure of a real estate mortgage against defendant Mary Louise Hitesman and other parties not germane to this appeal. After defendant failed to appear, plaintiff obtained a default judgment for foreclosure and sale. Thereafter defendant filed an answer to the original complaint and a motion to set aside the default judgment, which was granted. After the subsequent bench trial on the merits, the circuit court of Peoria County granted judgment in defendant’s favor.

On December 4, 1980, defendant mortgaged certain properties to secure a loan from plaintiff. In June 1981, she was stricken with a heart ailment and was thereafter unable to continue her employment. As a result of this, defendant was unable to make her monthly loan payments after September 1981. She thereafter contacted plaintiff to see if she could increase the term of the loan to lower her payments. Defendant was advised that increasing the term would not benefit her due to the amount of interest, and that plaintiff might be forced to commence a foreclosure action against her. On March 5, 1982, it did so,

Among the various instruments defendant admitted to signing on December 4, 1980, was an application for insurance and notice to loan applicant. By means of this instrument, a borrower was able to apply for credit disability, credit life, and property insurance. Defendant’s application reflected her election to be covered by single decreasing credit life insurance. Near the top of the printed form appears the following in red letters:

“INSTRUCTIONS: This request For Insurance Must Be Filled In And Signed BEFORE The Note Is Completed. Applicants) Must Initial Appropriate Box If Insurance Is Requested.” (Emphasis added.)

Accordingly, the box next to the elected life insurance was initialed. No other box was. Near the bottom of the form appears the printed statement “I [we] desire Credit Life Insurance,” immediately below which is a line for a date and signature. On defendant’s application, the date and her signature appear on this line. There are other such lines, including one above which appears on the printed statement “I desire Credit Disability Insurance.” On defendant’s application, none of these other lines are dated or signed.

In her answer and in her trial testimony, defendant responded that the mortgage and note in question were signed in blank and completed at a later time. As for the insurance application, defendant offered the following explanation on direct examination as an adverse witness:

“Q. And it states here on the application then, that you are applying for single decreasing credit life with premium of $1625 for 120 months?
A. Yes.
Q. Or over ten years?
A. He had me initial that.
* * *
Q. Also, I’d like to point out, there were other alternatives here where it says ‘Credit Disability Insurance will cost,’ that is all crossed out and then amount of monthly disability is crossed out. Do you recall that?
A. Being crossed out? No, sir, I don’t.
Q. Then also further down, we have some signature lines here and below the signature where it says, T or we desire Credit Life Insurance,’ then you signed that?
A. Yes, sir. As a transaction I had with him or anybody, I have always had disability insurance and credit life. * * *
Q. Well, now, down here where it says, ‘I desire disability insurance,’ there is a place to sign for this, and date it. That was not signed; is that correct?
A. It is dated 12-4-80.
Q. That is under the box where it says, ‘I desire credit life insurance.’ Could it have been that maybe you were just mistaken and you forgot to apply for credit?
A. No. I surely wouldn’t jeopardize my home, no.
Q. But you knew enough to apply for credit life insurance, though, and you even applied for an additional life insurance.
A. They have never denied me disability insurance, and I was under the assumption that I would be totally covered.”

On behalf of plaintiff, assistant manager Joney Pruss testified that corporate policy was that all forms must be completed before they are signed, and Nancy Remmert, a cashier, secretary, and notary public, testified that “[o]ur papers are always filled out.” Neither of the witnesses to the transaction, the office manager and defendant’s sister, were called to testify. The court found the documents were signed in blank and held in defendant’s favor.

The first issue presented for our review is whether the trial court erred in vacating the default judgment for foreclosure and judicial sale. Plaintiff disputes defendant’s claim that the court failed to obtain personal jurisdiction over her for want of proper service. While numerous arguments and counterarguments have been advanced by the parties regarding the propriety of service herein, we need consider but one.

The trial court granted plaintiff leave to employ “Steven D. Logue and/or his agent” as a private process server in this cause. Abode service pursuant to section 13.2(l)(b) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.2(l)(b)) was effected by Robert E. Sorrells of S. D. Logue and Associates. Where personal jurisdiction is based on constructive service, strict compliance with every requirement of the statute must be shown. (Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645; Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 397 N.E.2d 183; Bank of Ravenswood v. King (1979), 70 Ill. App. 3d 908, 388 N.E.2d 998.) Section 13.1(1) of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1)) provides, inter alia, that “[t]he court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” The statute confers upon the court the power to order service to be made by a “person,” rather than persons, and the limiting language “over 18 years of age” implies a corporate entity is not contemplated. This latter conclusion is supported by the fact that when the General Assembly lowered the age of emancipation to 18, the statute was amended to reduce the minimum age of a private process server from 21 to that age. (See Ill. Ann. Stat., ch. 110, par. 2—202, Historical and Practice Notes, at 129 (Smith-Hurd 1983).) Nowhere in the statute is there a provision allowing the person ordered by the court to effect service to designate another person to fulfill this duty; yet Steven D. Logue designated Robert E. Sorrells to serve defendant. For the aforementioned reasons, we hold there was no strict compliance with the requirements of the statute, and the court did not, therefore, obtain personal jurisdiction over defendant in the default proceeding. This being the case, it did not err in vacating its judgment for foreclosure and judicial sale.

While any discussion of such would be beyond the parameters of our decision today, we are not unmindful of its potential ramifications and defer, in this regard, to the wisdom of the General Assembly.

The second issue we today address is whether the trial court erred in holding that the documents in question were improperly executed. While the judgment order in this cause does not indicate the basis for this ruling, the record reflects that the court found that the instruments had been signed in blank and/or were improperly notarized.

At the outset of our discussion of this issue, it should be noted that the only issue of fact raised by those pleadings addressed to merits of this cause is whether the documents in question were signed in blank. Both parties refer to section 3 — 115 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 3-115):

“(1) When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed. ***”

During the trial of this cause, defendant raised only one instance of the instruments in question not being completed in accordance with her authority. She testified unequivocally that she intended to apply for the credit disability insurance which apparently would have avoided her failure to make her monthly payments and this litigation. According to her testimony, she first became aware she was not so insured when she was stricken with her heart condition in June 1981.

Section 3 — 115 of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 115) continues:

“(2) If the completion is unauthorized the rules as to material alteration apply (Section 3 — 407), even though the paper was not delivered by the maker or drawer; but the burden of establishing that any completion is unauthorized is on the party so asserting.”

Section 3 — 407 of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 407) provides:

“(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect ***.”

As previously indicated, all signing and initialing of the documents was done on December 4, 1980. Ten days later, defendant received her loan and her copies of the instruments, and no claim is made that they were then incomplete. Although she allegedly signed the documents in blank, defendant apparently did not review them at this time. Assuming, arguendo, that the insurance application was signed in blank and later the cost, term, and amount of monthly disability were not inserted, and in fact had lines across the places for insertion of those figures, is of no moment. The form itself was printed and, even if blank, contained the previously discussed provisions. In spite of the need to sign and date the request for the omitted insurance and in spite of the red-lettered instruction to initial the appropriate box, defendant neither signed nor initialed where required. Thus, the provisions in question did not come into play. This being the case, the contract could not have been changed and thus no material alteration is involved.

As to any improper notarization, the application contains no provision requiring nor space for notarizing the instrument, and we are not aware that such is required. As to any other instrument, no claim is made that they were completed except as authorized by defendant. We therefore hold the trial court erred in holding that the instruments in question were improperly executed.

Accordingly, the judgment of the circuit court of Peoria County is affirmed in part, reversed in part, and remanded for further proceedings consistent with the views herein.

Reversed in part and remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE KASSERMAN

text:
    OPAL NUNLEY, Adm’x of the Estate of Dennis W. Churchill, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF CAHOKIA, Defendant-Appellee.—(Noel D. Hulsey, Defendant-Appellee.)
    Fifth District
    No. 82—313
    Opinion filed April 28, 1983.
    David M. Duree, of O’Fallon, and Leritz & Reinert, P.C., of St. Louis, Missouri, for appellant.
    Richard F. Nash, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee Noel D. Hulsey.
    Robert W. Cadagin, of Cadagin, Cain & Tognarelli, of Collinsville, for appellee Village of Cahokia.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, as administratrix of the estate of the decedent, Dennis W. Churchill, brought negligence actions against defendants, the Village of Cahokia (hereinafter the Village) and Noel D. Hulsey. It was alleged that the Village was negligent in the maintenance of a traffic signal at the street intersection where decedent was killed. It was further alleged that Mr. Hulsey was negligent in the operation of a motorcycle which struck decedent at the intersection. The case was tried and submitted to the jury on a comparative negligence theory as to each defendant. Plaintiff appeals from the verdicts and the judgment returned in favor of defendants.

At trial, Billy Halley, a police officer for the Village, testified that he reported a traffic collision involving a pedestrian and a motorcycle rider which occurred at about 4:30 p.m. on August 27, 1977, at the intersection of Camp Jackson Road and Range Lane in the Village. Officer Halley testified that when he arrived at the scene he discovered decedent, Mr. Churchill, lying on the corner of the intersection and Mr. Hulsey, the motorcycle rider, a few feet farther away. He said he saw no skid marks on the street and that the collision occurred in daylight when the streets were clear and dry. Officer Halley stated that at this intersection Range Lane is a two-lane highway running northeast and southwest and that Camp Jackson Road is four lanes wide running east and west, with two eastbound lanes and two westbound lanes divided by a concrete median. Traffic at the intersection is controlled by electric traffic signals with the normal red-green-amber sequence, but on the afternoon of the collision one of the traffic signals had apparently been damaged by an automobile, and, consequently, the remaining signals automatically switched to flashing yellow for Camp Jackson Road traffic and flashing red for Range Lane traffic. Officer Halley denied that it was a regular practice of. the Village to send a police officer to direct traffic at the intersection when the traffic lights malfunctioned and operated in a flashing mode. Officer Halley described the pedestrian traffic at this intersection as minimal.

Officer Halley further testified that Mr. Hulsey told him at the scene of the collision that he was traveling west on Camp Jackson Road when decedent walked out in front of his motorcycle. According to Officer Halley, Mr. Hulsey explained that he swerved to avoid hitting decedent but that the decedent turned and started back towards the curb and stepped right in front of him. Officer Halley said he also spoke with two eyewitnesses, Jeff Fox and Martin Blecha, and that their descriptions of the collision were consistent with Mr. Hulsey’s observations.

Noel Hulsey testified that he and Martin Blecha were on their motorcycles traveling west on Camp Jackson Road, approximately one-half block from the intersection with Range Lane, when they first observed decedent. He said the traffic signals on Camp Jackson Road were flashing yellow and traffic was moderately heavy. Mr. Hulsey said he heard the sound of a car’s horn and saw decedent take a few steps and jump up to the curb from in front of a car traveling in the westbound curb lane of Camp Jackson Road. Mr. Hulsey said that at this time he did not apply the brakes on his motorcycle but let up on the motorcycle’s throttle and began to slow down.

Mr. Hulsey related that he next saw decedent from a distance of approximately 30 feet from the intersection. According to Mr. Hulsey, decedent ran from the northwest corner of the intersection through the westbound curb lane and into the westbound median lane of Camp Jackson Road. When Mr. Hulsey observed decedent running into the street, he said he applied his back brake and began to swerve into the westbound curb lane of Camp Jackson Road away from decedent, continually sounding his horn as he did so. Mr. Hulsey testified that he did not apply his motorcycle’s front brake because of the possibility of dumping the motorcycle in the street. Mr. Hulsey said that as he began his evasive actions he saw decedent stop for an instant in the median lane and stoop over, apparently to pick up a book from the street. Mr. Hulsey said he next saw decedent a few feet directly in front of his motorcycle in the westbound curb lane near the curb itself. Mr. Hulsey stated that he applied both front and back brakes at that moment but was unable to avoid the collision.

Martin Blecha took the stand and corroborated many of the details of Mr. Hulsey’s testimony. Mr. Blecha estimated that both he and Mr. Hulsey were traveling at about 40 m.p.h. as they approached the intersection and about 15 m.p.h. and 30 m.p.h., respectively, at the time of impact. Mr. Blecha testified that decedent’s progress into the intersection prior to the collision brought him within three feet of the median and that he would have avoided the collision had he con-tinned to proceed across instead of attempting to make it back to the curb on the north side of the intersection. Mr. Blecha further testified that decedent did not look toward the oncoming traffic when he entered the intersection, nor did he look toward the oncoming traffic when he returned and ran in front of Mr. Hulsey’s motorcycle.

Jeff Fox, who was traveling west on Camp Jackson Road in a pickup truck at the time of the collision, testified that he saw decedent run out into the street, stop, and act like he was going to proceed across to the median but that he appeared undecided as to what to do. Mr. Fox stated he then saw decedent run back to the point where the collision occurred. Mr. Fox also stated a belief that if decedent had not run back in front of the motorcycle, Mr. Hulsey’s evasive actions would have avoided the collision.

Village Mayor Michael King testified that the intersection at Camp Jackson Road and Range Lane was hazardous before traffic signals were installed in 1975 but that this situation was, for the most part, rectified by the installation of the traffic signals. Mayor King said that the intersection was not a pedestrian crossing and that there was no pedestrian overpass or crosswalk, nor were there pedestrian traffic signals at the intersection. Mayor King indicated that it was the regular practice of the Village police to direct traffic at this intersection when there was heavy traffic and a hazardous condition existed. The mayor also stated that the Village owned and maintained the traffic signals and that on the day of the collision he noticed that the signal at the intersection was flashing yellow sometime between 1 p.m. and 4 p.m. Mayor King radioed the police dispatcher, who informed the mayor that the police had already been notified of the situation and had called Dron Electric Company to perform repairs on the damaged signals. The signals were not repaired until several hours after the collision involving decedent.

Dr. Asif A. Hameedi, the emergency room physician at the Centreville Township Hospital, testified that decedent suffered a fracture of the right leg and severe head injuries which caused decedent’s death.

Darlene Atchinson testified that traffic at the intersection of Camp Jackson Road and Range Lane was heavy both before and after the collision and that the signal on Camp Jackson Road was flashing yellow at around noon on the day of the collision. Mrs. Atchinson and her teenage daughters llene and Melody stated that pedestrians crossed at this intersection daily.

A number of ordinances of the Village relating to traffic control were read into evidence by the plaintiff’s counsel.

Lieutenant Lawrence Sanderson of the Village police testified that the State of Illinois had exclusive control of Camp Jackson Road but acknowledged that the Village constructed and owned the traffic signals. Lieutenant Sanderson also testified that after installation of the traffic signals in 1975, the automobile collision rate at the intersection decreased, resulting in eight collisions in 1980 and six collisions in 1981, but there had been no collisions involving pedestrians. Lieutenant Sanderson concluded that if a pedestrian used good judgment in crossing the intersection at Camp Jackson Road and Range Lane “it shouldn’t be that much of a hazard.”

During closing argument plaintiff argued that the Village was negligent in that (1) it did not send a police officer to direct traffic at the intersection of Camp Jackson Road and Range Lane during the approximate six-hour interim when the traffic lights malfunctioned and the lights were in the flashing mode; (2) it failed to provide safe passage across the intersection; and (3) it failed to warn pedestrians of the danger at the intersection. Plaintiff also argued that Mr. Hulsey failed to use reasonable care in that he failed to slow down and apply his brake soon enough.

Both defendants argued, inter alia, that their actions were not the proximate cause of the decedent’s death. They submitted to the jury that the decedent’s own negligence in entering traffic and failing to look before doing so was the sole cause of decedent’s death.

In her post-trial motion, plaintiff moved for judgment n.o.v. on the issue of liability and, alternatively, for a new trial.

Plaintiff first argues that the negligence of the Village and Mr. Hulsey were, as a matter of law, the proximate cause of decedent’s death and the trial court should have granted her motion for judgment n.o.v. We cannot agree.

Initially, we agree with plaintiff that governmental immunity is not an issue in this case since the Village admitted that it had contracted for insurance against the liability sought to be imposed and, therefore, has waived any defenses available to the Village under the Local Governmental and Governmental Employees Tort Immunity Act. Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.; Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 365, 282 N.E.2d 437, 442; Gowler v. City of Mt. Vernon (1972), 7 Ill. App. 3d 466, 467, 288 N.E.2d 80, 81.

The standard governing our review of the trial court’s decision to deny plaintiff’s request for judgment n.o.v. is the rule announced in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. There the court stated that judgment n.o.v. can be entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) This is not such a case. The issue at trial was whether the negligence of both or either of the defendants was the proximate cause of the decedent’s death. This was a question of fact for the jury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74, 80; Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 659, 371 N.E.2d 1240, 1243.) In this case, we think the trial court properly let the jury determine whether the actions of the Village or Mr. Hulsey constituted negligence which proximately caused decedent’s death.

Plaintiff cites a number of cases in support of her contention that the Village must be held liable as a matter of law. We find these cases to be distinguishable. The present case does not involve the failure to maintain the visibility of a stop sign or intersection as did Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242, and First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326. Nor does this case involve the failure to illuminate a street as did Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, or the removal of a traffic light as in Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401. Also, the instant case does not present a question regarding a municipality’s liability for hazards which protrude into the street as did Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, and Hennigs v. Centreville Township (1973), 56 Ill. 2d 151, 306 N.E.2d 287. In the case at bar, the allegedly hazardous traffic lights were operating although not in a green-yellow-red sequence. We conclude as a matter of law that a municipality is not liable in a situation such as this where the traffic lights were operational and created no danger at the intersection.

Additionally, we cannot say that Mr. Hulsey is at fault as a matter of law. While the jury could have accepted plaintiff’s argument that Mr. Hulsey was negligent by failing to stop in time to avoid the collision, the evidence was not so overwhelming as to preclude the jury from finding that Mr. Hulsey exercised due care and that the sole proximate cause of the accident was decedent’s own negligent attempt to retrieve an object from the street. (See Moore v. Checker Taxi Co. (1971), 133 Ill. App. 2d 588, 592, 273 N.E.2d 514, 516-17.) Both pedestrians and motorists have mutual obligations to exercise due care. (Palausky v. Landers (1978), 67 Ill. App. 3d 985, 987, 385 N.E.2d 751, 752.) We find that the jury properly could have concluded that the decedent’s conduct alone was the proximate cause of the collision which resulted in his death.

We reject plaintiff’s suggestion that the recent case of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which adopts comparative negligence in Illinois, somehow dictates another result. The law remains that if the conduct of a defendant is found not to be the proximate cause of the injury, no liability arises. Plaintiff’s reliance on Agnello v. Puzzo (1982), 110 Ill. App. 3d 913, 443 N.E.2d 648, is also misplaced. In Agnello the defendant admitted passing an ice cream truck entering the wrong lane of traffic with children nearby. In the case before us, defendant was lawfully proceeding through an intersection in the proper lane.

Plaintiff also argues that although the evidence may not be so overwhelmingly in her favor to warrant the trial court to enter judgment n.o.v., the judgment was against the manifest weight of the evidence and a new trial should be granted. Again, we disagree. In determining whether a jury’s verdict is against the manifest weight of the evidence, the inquiry on appeal is whether the result reached is reasonable on the facts and evidence, not whether other conclusions are possible. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447, 454.) For a verdict to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. (Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 624, 380 N.E.2d 407, 410.) We find that given the evidence presented in the present case, it was reasonable for the jury to conclude that the proximate cause of decedent’s death was decedent’s lack of due care in entering the street as he did.

The evidence establishes that when Mr. Hulsey approached the intersection on his motorcycle, the light on Camp Jackson Road was flashing yellow and the light on Range Lane was flashing red. As Mr. Hulsey approached, decedent jumped to the north curb from in front of an oncoming car. Mr. Hulsey continued toward the intersection and decedent ran back into the street in front of Mr. Hulsey. In order to avoid a collision, Mr. Hulsey swerved into the curb lane away from decedent. At this time, decedent, without looking for oncoming traffic, turned and ran back toward the north curb into the path of the motorcycle. Mr. Blecha testified that a sudden stop by Mr. Hulsey probably would have caused the traffic following the motorcycles to run into them. Both Mr. Blecha and Mr. Fox testified that Mr. Hulsey’s attempt to avoid the collision would have been successful had decedent not run into Mr. Hulsey’s path. We conclude that the evidence supports the jury’s decision not to impose liability based on the Village’s maintenance of the traffic lights or Mr. Hulsey’s actions and that the verdicts were not unreasonable.

Finally, plaintiff complains that the trial court erred by improperly instructing the jury. We do not consider this issue; plaintiff failed to raise this contention in her post-trial motion and has, therefore, waived it. Ill. Rev. Stat. 1981, ch. 110, par. 68.1(2); 87 Ill. 2d R. 366(b)(2)(iii); Sandquist v. Kefalopoulos (1977), 49 Ill. App. 3d 456, 460, 364 N.E.2d 475, 478.

Accordingly, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BRYANT, Defendant-Appellant.
    First District (5th Division)
    No. 80—1682
    Opinion filed March 4, 1983.
    Rehearing denied June 15, 1983.

      Ralph Ruebner and Susan Kaplan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and David King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempt escape (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4, 31—6) and sentenced to a term of 10 years’ imprisonment in the Illinois Department of Corrections.

On appeal he argues that: (1) effective waiver of counsel was not established pursuant to Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)); (2) the trial court abused its discretion by refusing to grant him a continuance to procure a witness for his defense; (3) the trial court erred in limiting his cross-examination thereby depriving him of a fair trial; (4) the trial court abused its discretion in sentencing him to the maximum term under the extended term statute; (5) evidence concerning the nature of his underlying convictions was improperly admitted; (6) the trial court erred in refusing to answer a question submitted to it by the jury; (7) the prosecutor’s remarks during closing argument constituted reversible error.

Material to our disposition are the following facts. On February 8, 1980, defendant was charged with escape from the Cook County jail. At a preliminary hearing, probable cause was found for attempt escape and the information was subsequently amended.

On May 7, 1980, defendant requested appointment of a bar association attorney citing “lack of communication” between himself and his appointed counsel. The court denied this motion but appointed another assistant public defender, Phillip Olson, who subsequently informed the court that defendant wished to represent himself. Defendant was granted leave of court to represent himself with the public defender as an adviser.

At the commencement of trial on May 19, 1980, Olson asked the court to clarify his status in the case, and the trial judge responded that the defendant would represent himself with “you at his elbow.” The court admonished defendant pursuant to Supreme Court Rule 401(a) and told him, inter alia, the range of sentences, including an extended-term sentence, and stated that the sentence could run consecutively to the sentence defendant was presently serving. The court read the information to defendant and informed him that he could call witnesses, cross-examine witnesses, take the stand on his own behalf or not, that defendant had a right to a lawyer and that the public defender could conduct his defense. The court then denied the public defender’s motion for leave to withdraw.

The venire was brought in and the trial judge read the charge against defendant, including his prior armed robbery conviction. Following jury selection, Olson asked for a mistrial on the basis that the jury should not have been informed about the nature of the prior conviction and pending escape charge, and that defendant had not seen photographs of the jail which the State intended to put into evidence. In denying the motion, the court stated that defendant’s lawyers had seen those photos earlier that day and that the conviction was part of the charge.

Trial commenced on May 19, 1980. The following evidence was adduced at trial.

On December 2, 1979, defendant was incarcerated in Cook County jail as the result of an armed robbery conviction and a pending escape charge and was confined to a fourth-floor cell immediately below the roof.

Officer Kenneth Washington testified for the State that he was a guard assigned to the tier where defendant’s cell was located and that three prisoners were discovered to be missing following his head count.

A search was initiated, and when additional officers arrived, he went to the roof and noticed bed sheets tied to one of the windows leading from a higher roof to a lower roof. Defendant conducted a cross-examination of this witness, wherein the State’s objections to testimony relating to gangs in the prison were repeatedly sustained.

Officer Nadine Kmiec, an employee of the Cook County Department of Corrections’ record office, identified an arrest history card showing that defendant was in jail on December 2, 1979, on an armed robbery conviction and a pending escape charge. This exhibit was admitted into evidence as a business record over defendant’s objection.

Officer Milton Dixon, a guard at the Cook County jail, was called as the State’s witness and identified and explained the photographs of the jail, which were admitted into evidence and published to the jury, and further stated that during the course of the search he found defendant and a second inmate, Charles Anderson, lying on top of the pipes in the prison transformer building less than 100 yards from the outer fence of the jail.

The State rested its case, and defendant’s motion for a directed verdict was denied.

Defendant asked to call inmate Anderson as a witness on his behalf although he had not previously been subpoenaed. In denying defendant’s request, the court noted that the case had been held on trial call for two weeks prior to commencement of trial. The defense rested. During the conference on jury instructions, the defendant’s tendered instructions regarding the defense of compulsion were refused.

The State’s closing arguments included an account of the commission of the offense. Defendant delivered his own closing argument, and following rebuttal argument, the jury was instructed and excused for deliberations.

During deliberations, the jury sent a note to the judge which stated: “Was Byrant [sic] given sufficient time in order to get any witnesses for his defense.” In responding to the note, the trial court brought the jury into the courtroom in the presence of defendant and Olson, and said, “*** as I told you at the time you were selected as jurors, that you would hear the evidence in the case from the witness stand, and you did, and this inquiry is outside the evidence of the case. It is an improper inquiry. It has nothing to do with the case, ***” and excused the jury. Olson thereupon asked the court to read the note into the record and the court stated that it would be filed in the case “as you usually file them on the sheet of paper.” When defendant asked to see the note, the following colloquy ensued:

“The Defendant: May I see the note.
The Court: Talk to your lawyer.
The Defendant: I am my lawyer.
The Court: Take him back.”

The jury subsequently found defendant guilty of attempt escape. At the sentence hearing, Olson presented a motion for a new trial and in arrest of judgment which he had prepared at defendant’s request. Both motions were denied. Following a hearing in aggravation and mitigation, the trial court sentenced defendant to an extended term of imprisonment of 10 years to run consecutively to two previously imposed sentences.

Prior to oral argument on this appeal, defendant’s underlying conviction for armed robbery was reversed by this court and petition for leave to appeal was allowed. The supreme court reversed the appellate court decision and affirmed the defendant’s conviction in the trial court on January 24,1983, in People v. Bryant (1983), 94 Ill. 2d 514.

Opinion

Defendant first argues that effective waiver of counsel was not established pursuant to Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)), and although the State’s argument that defendant waived this issue in his motion for a new trial is an accurate statement of law, it is within our discretion to review issues not properly preserved for review where substantial rights of the defendant may be affected (87 Ill. 2d R. 615(a)), and we believe that it is particularly appropriate to consider such an issue here. People v. McKinney (1978), 62 Ill. App. 3d 61, 378 N.E.2d 1125.

He argues that he did not knowingly and intelligently waive his right to counsel due to the trial court’s alleged failure to comply with Supreme Court Rule 401(a), which requires that the defendant be advised by the trial court of the nature of the charge against him, the minimum and maximum sentence, and his right to counsel.

Here, the trial court asked defendant in open court: “Now we get to the matter that Mr. Olson, the public defender here raises. *** the question is, do you wish Mr. Olson to be your associate counsel during the course of your trial, or do you not? Do you wish him to conduct your defense, or do you wish to conduct it and have him just available for any questions that you may want to ask?” Defendant responded, “Well, —well, I decided to be available for any questions that I may ask [sic].” Shortly thereafter, the court related to defendant that “Mr. Olson will be here sitting at the counsel table throughout the trial of the case, and you may consult with him at any time that you chose [sic].”

At the close of the State’s case, the court stated: “I want the record to show that even though the defendant has conducted his own cross-examination throughout the trial of this case, that he has conferred throughout the trial at counsel table with Mr. Olson, the Public Defender ***.” The record further indicates that Olson made several motions and objections on defendant’s behalf, participated in a sidebar conference, and argued at the sentencing hearing.

The purpose of Supreme Court Rule 401(a) is to provide a procedure which will eliminate any doubt that a defendant understands the nature and consequences of the charge against him before a trial court accepts his waiver of the right to counsel. 87 Ill. 2d R. 401(a).

However, when a defendant requests that he be allowed to conduct his own defense with assistance of a court-appointed lawyer, he does not waive the right to counsel. (People v. Lindsey (1974), 17 Ill. App. 3d 137, 141, 308 N.E.2d 111.) He seeks, instead the best of both worlds: freedom to conduct his own defense and benefit from the assistance of counsel. (People v. Lindsey (1974), 17 Ill. App. 3d 137, 141, 308 N.E.2d 111.) It is within the trial court’s discretion to decide whether defendant may have an attorney to assist and advise him (People v. Allen (1967), 37 Ill. 2d 167, 226 N.E.2d 1, cert. denied (1967), 389 U.S. 907, 19 L. Ed. 2d 225, 88 S. Ct. 226), and in such instances, the admonitions of Rule 401(a) need not be given because defendant has not made a waiver of counsel within the meaning of the rule. People v. Pittman (1979), 75 Ill. App. 3d 683, 394 N.E.2d 702.

In the present case, as in People v. Lindsey (1974), 17 Ill. App. 3d 137, 141, 308 N.E.2d 111, the defendant told the trial court that he wanted to conduct his own defense, with his lawyer remaining in the case to assist him. Moreover, we note that although defendant contends on appeal that he did not understand the nature of the charge or that consecutive sentencing was mandatory, the record here does reflect sufficient “substantial compliance” with Rule 401(a) (People v. Norris (1977), 46 Ill. App. 3d 536, 361 N.E.2d 105), and we hold that any alleged deficiency in the formality of the court’s admonition was harmless. Nonetheless, we find that the rule admonitions need not have been given defendant because, by his request to conduct his own defense with his court-appointed lawyer assisting him, he did not make a waiver of counsel within the meaning of Supreme Court Rule 401(a).

We next consider defendant’s argument that the trial court abused its discretion by refusing to grant him a continuance to procure a witness for his defense.

The grant or denial of a continuance to procure a witness is within the discretionary powers of the trial court (People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321), and its disposition will not be disturbed on appeal without a showing of clear abuse of discretion. People v. Rivera (1978), 64 Ill. App. 3d 49, 380 N.E.2d 1018.

Facts must be presented showing a diligent effort to have a witness present, and where such facts are not shown the motion is properly denied. (People v. Polk (1979), 70 Ill. App. 3d 903, 388 N.E.2d 864.) Moreover, the absence of a witness whose testimony would corroborate only collateral aspects of defendant’s testimony is not sufficient justification for a continuance. People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321.

With these principles in mind, an examination of the record reveals that defendant sought to obtain a fellow inmate who had joined him in the escape attempt, Charles Anderson, as a witness during the middle of trial. However, defendant had approximately two weeks while the case was held on the trial call to procure Anderson’s attendance, and we do not find that defendant has established a diligent effort to procure this witness. In addition, although defendant argues on appeal that Anderson’s testimony was crucial to his compulsion defense, defendant did not make an offer of proof as to the substance of Anderson’s testimony. Since we cannot speculate as to the nature of testimony which is dehors the record, defendant has failed to demonstrate that any prejudice to him resulted. Accordingly, we find that the defendant’s motion for a continuance was properly denied.

Defendant next argues that the trial court unduly restricted his cross-examination of Washington, claiming that he was thereby prevented from introducing evidence as to an affirmative defense of compulsion.

While the State initially argues that the defendant lacks “standing” to object because he did not admit to commission of the offense charged, we find this argument to be without merit as it is permissible for a defendant to argue his position in the alternative. Defendant, however, also argues that his cross-examination of the prison guard was improperly restricted as it was relevant to his affirmative defense of compulsion.

Limitation of cross-examination is a matter resting within the discretion of the trial court, and absent a clear abuse of that discretion, it will not be disturbed on review. People v. Jones (1975), 34 Ill. App. 3d 103, 339 N.E.2d 485, cert. denied (1976), 426 U.S. 953, 49 L. Ed. 2d 1192, 96 S. Ct. 3179.

We note that the compulsion which will excuse a criminal act must be present, imminent and impending, and will render a defendant not guilty of an offense only “if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.” Ill. Rev. Stat. 1979, ch. 38, par. 7—11.

A review of the testimony defendant sought to elicit from the guard in the present case relates to whether gangs threatened “other people’s lives”; whether Washington personally knew if any inmates’ lives had been threatened or if any hostile incidents would be kept in a log book; and what the procedure was when an inmate’s life was in danger.

Since the scope of the attempted cross-examination was not relevant to evidence of imminent threats of death, great bodily harm, or future injury to defendant himself but to other inmates, we find that this line of questioning constituted inadmissible hearsay and thus did not operate to properly raise an affirmative defense of compulsion as to defendant. We hold that the trial court did not err in limiting such cross-examination.

Lastly, defendant contends that the imposition of both a consecutive sentence and an extended sentence is excessive and constitutes improper “double enhancement” of the armed robbery conviction for which he was incarcerated at the time of the attempted escape.

We initially find defendant’s argument concerning the consecutive sentence to be without merit. Section 5 — 8—4(g) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(g)) provides: “A sentence under Section 3 — 6—4 for escape or attempted escape shall be served consecutive to the terms under which the offender is held by the Department of Corrections,” and the trial court properly determined that imposition of a consecutive sentence was mandated by statute.

Defendant also argues, however, that imposition of an extended sentence was excessive and constitutes double enhancement. Again, we do not agree.

While a Class 3 felony such as attempt escape is normally punishable by imprisonment of not less than two years and not more than five years (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(6)), the trial court, in its discretion, may sentence a defendant to an extended term of imprisonment of not less than five years and not more than 10 years following a conviction for a Class 3 felony (Ill. Rev. stat. 1979, ch. 38, par. 1005 — 8—2(a)(5)) where the “defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts ***.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1).

An examination of the record reveals that defendant had been convicted of three felonies of a greater class: a 1977 robbery conviction, a 1979 armed robbery conviction, and a 1980 escape conviction, all of which occurred within the 10-year limit for imposition of an extended term. We also note that defendant’s arguments pertaining to the reversal of his 1979 armed robbery conviction have been rendered moot by the supreme court decision affirming this conviction on January 24, 1983, in People v. Bryant (1983), 94 Ill. 2d 514. Consequently, we agree with the reasoning set forth in People v. Racinowski (1979), 78 Ill. App. 3d 954, 963-64, 397 N.E.2d 932, 939, wherein the court stated: “There is nothing in section 5 — 5—3(b)(1) that indicates that a judge may not consider a prior conviction, resulting in incarceration, in sentencing a defendant to a discretionary extended term, when such sentence is imposed for the crime of escaping from such incarceration. The mandatory consecutive sentence for escape and the discretionary extended sentence for second offenders are not mutually exclusive. We do not find that the judge abused his discretion in sentencing the defendant to an extended term.”

Accordingly, we hold that the trial court did not abuse its discretion in sentencing defendant to an extended term of imprisonment.

We have also considered defendant’s arguments that prejudicial error occurred due to (1) the admission of prior convictions into evidence, (2) the trial court’s response to a question submitted to it by the jury, and (3) the alleged improper closing argument by the State, and we find that defendant did not raise these issues by either objecting at trial or including them in his motion for a new trial which was both prepared and tendered by the public defender and not by defendant, at the defendant’s request. Accordingly, we find that defendant has waived these issues for purposes of appeal. People v. Donald (1977), 56 Ill. App. 3d 538, 371 N.E.2d 1101.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE WHITE

text:
    FIRST NATIONAL BANK OF WINNETKA, Plaintiff and Counterdefendant-Appellee, v. LILLIAN ALLEMAN et al., Defendants-Appellees.—(Jeanette Markin, Defendant and Counterplaintiff-Appellant.)
    First District (3rd Division)
    No. 81—2035
    Opinion filed March 30, 1983.
    Rehearing denied July 8,1983.

      Lowell J. Myers, of Chicago, for appellant.
    Carter Howard and James A. Flesch, both of Keck, Mahin & Cate, of Chicago, for appellee First National Bank of Winnetka.
    Howard R. Slater, of Slater and Lieberman, of Chicago, for appellees Steven L. Amdur and Neal O. Amdur.
    Aaron E. Hoffman and Barbara C. Herbert, both of Altheimer & Gray, of Chicago, for appellees Arvin Rieger, Bessie Katz Rieger, and Ruth Rieger Karlin.
   JUSTICE WHITE

delivered the opinion of the court:

First National Bank of Winnetka (the Bank), appellee, as successor trustee under a testamentary trust created under the last will of Toby Provus, brought this action seeking construction by the court of Article Eight (c)(e) of that will which distributes two-thirds of the corpus of the trust in specified amounts to certain named beneficiaries and the remainder to “all nieces and nephews, great-nieces and great-nephews, and blood cousins of the first and second degrees of my late beloved husband, Isadore Provus, and myself, who shall be living at my demise.” The trial court entered a judgment and decree which construed the language “blood cousins of the first and second degrees” to mean “first cousins and their natural children.”

Notice of this litigation was given to the nieces, nephews, great-nieces, great-nephews, first cousins and first cousins once removed. On the motion of the Bank, the trial court appointed guardians ad litem to represent “all first cousins of the second or greater removals and all second cousins of all removals of either Toby Provus or Isadore Provus.” Appellant Markin, by several motions, requested the trial court to serve notice upon the first cousins of the second or greater removals and the second cousins. These motions were denied and the trial court found that the guardians ad litem, as representatives of the two named classes, would adequately represent the classes and that there was no requirement for further notice to the class members.

Markin, a niece of testatrix, appeals contending, inter alia, that the trial court lacked jurisdiction because proper notice was not given to first cousins of the second or greater removals and second cousins, and that the appointment of guardians ad litem was not sufficient. The Bank’s amended complaint made first cousins of the second or greater removals and second cousins defendants in the case and alleged that those persons may have a beneficial interest in the trust fund.

This proceeding is one in which the first cousins of the second or greater removals and second cousins may be deprived of property rights. Accordingly, due process requires that they be apprised of the pendency of the action and afforded an opportunity to present their objections. Schroeder v. City of New York (1962), 371 U.S. 208, 9 L. Ed. 2d 255, 83 S. Ct. 279; Mullane v. Central Hanover & Trust Co. (1949), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652; Valdez v. City of Ottawa (1982), 105 Ill. App. 3d 972, 434 N.E.2d 1192.

Appellees argue that notice was not required under the facts of this case. They concede that generally all persons who have an interest in the subject matter of the litigation and who will be affected by the judgment should be made parties to the action, citing Georgeoff v. Spencer (1948), 400 Ill. 300, 79 N.E.2d 596. However, they note, there are two exceptions to this rule: (1) where beneficiaries are very numerous, so that the delay and expense of bringing them in become burdensome and oppressive; and (2) where absent parties are adequately represented by persons actually before the court who are equally certain to bring forward the entire merits of the question. (See Anderson v. Elliott (1954), 1 Ill. App. 2d 448, 117 N.E.2d 876.) Appellees contend that the facts of the instant case bring it within the above exceptions and, therefore, lack of notice to the first cousins of the second and greater removals and second cousins did not result in a jurisdictional defect. They maintain that this task is particularly burdensome since it is required prior to a determination by the court that these collateral relatives have any interest in the trust fund. Additionally they argue that those relatives were adequately represented by the guardians ad litem. We disagree.

Appellant Markin maintains that the number of persons involved is relatively small; that their names and addresses are either known or obtainable with a reasonable effort; and that Mullane v. Central Hanover & Trust Co. (1949), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652, requires that they be notified. Mullane involved the constitutional sufficiency of notice to beneficiaries by the trustee of a common trust fund. There the only notice given beneficiaries was by publication in a local newspaper. The Mullane court held that such notice to beneficiaries whose names and addresses were known was inadequate because under the circumstances it was not reasonably calculated to reach those who could easily be informed by other means at hand such as the ordinary mail. As to beneficiaries whose interests or whereabouts could not with due diligence be ascertained, the court held that notice by publication was sufficient since there was no other means of giving them notice which was both practicable and more effective.

Applying these principles to the case at bar we are of the opinion that the first cousins of the second or greater removals and second cousins should have been notified of the present litigation. The record shows that approximately 300 cousins comprise the group at issue in this appeal and in addition to their names, the addresses of some of those cousins are known. A comprehensive list of the relatives of the testatrix has been compiled and the trial court ordered that the cost of preparing that list be paid out of the testamentary trust fund. Under such circumstances, we do not believe it would be unduly burdensome or oppressive to require that those individuals who are named in the list be notified as required by Mullane. The purpose of notice is to give the relatives an opportunity to be heard regarding any potential interest they may have in the trust. To notify them after the court has already made a determination in that regard deprives them of that opportunity.

We note that the guardians ad litem who represented the first cousins of the second and greater removals and the second cousins adopted the memorandum of one of the appellees. Implicit in the argument of that memorandum is that the first cousins of the second or greater removals took nothing under the testamentary trust. Although this may ultimately have been the position of those relatives, we are not persuaded that it was in their best interest to preclude them from appearing with their own attorneys and voicing any objections they might have had.

Accordingly, for the reasons set forth above, we reverse the judgment of the trial court and remand this cause for proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA, P.J., and RIZZI, J., concur.