author: PRESIDING JUSTICE LINN

text:
    RONALD RALSTON, Plaintiff-Appellant, v. FRANCISCO CASANOVA et al., Defendants-Appellees.
    First District (4th Division)
    No. 83-2973
    Opinion filed December 27, 1984.

      Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Larry M. Evans, of counsel), for appellant.
    Barbara Ross, of Ross & Hardies, of Chicago, for appellee Ford Motor Company.
    Raymond R. Cusack, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellee Allied Chemical Corporation.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

After suffering personal injuries in an automobile collision while allegedly wearing his seat belt, plaintiff brought a strict liability action against defendant automobile manufacturer and defendant seat belt manufacturer, alleging that manufacturing and design defects rendered the seat belt unreasonably dangerous. Defendants moved to preserve the seat belt assembly and to refrain from destructive testing, and the trial court entered two protective orders to such effect. Plaintiff’s expert, in violation of these orders, disassembled the seat belt assembly and performed testing. As a result thereof, defendants moved the trial court to bar plaintiff from offering any testimony on the condition of the seat belt. The trial court entered the requested sanction, and, based thereupon, defendants moved to strike and dismiss or for summary judgment. The trial court granted defendants’ motion, and plaintiff appealed.

We affirm the decision of the trial court.

BACKGROUND

While operating his Mercury Cougar on the John F. Kennedy Expressway in Chicago, plaintiff, Ronald Ralston, was involved in a collision with another automobile. Plaintiff sustained injuries to the head, chest and ribs while wearing his seat'belt, and, consequently, brought an action in strict liability against defendant automobile manufacturer, Ford Motor Company (Ford), and defendant seat belt manufacturer, Allied Chemical Corporation (Allied), alleging that the seat belt, due to design and manufacturing defects and defendants’ failure to warn, was unreasonably dangerous.

In an attempt to preserve the seat belt assembly involved in the occurrence, defendants moved individually for protective orders. Two such orders were issued by the court on December 30, 1980, and on August 17, 1981, requiring that the seat belt be preserved in its then present condition and location, that defendants be notified of any examinations or tests to be conducted on said belt by plaintiff, and that no destructive testing be performed without further order of the court.

Subsequent to the entry of these protective orders and concededly in violation thereof, plaintiff’s expert, Herbert Thomiszer, without notice to defendants, proceeded to disassemble, examine, and test the seat belt assembly. In response to Thomiszer’s actions, defendants filed motions to bar testimony, requesting that plaintiff be barred from offering any testimony at trial regarding the condition of the seat belt involved in the occurrence.

In order to determine whether to grant defendants’ motions, the trial court ordered each party to submit the names of two experts, from which the court selected and appointed an independent expert, Frank Pepe of the United States Testing Company, to examine the seat belt at issue and report the effect, if any, of Thomiszer’s tests upon it. The court also ordered that Thomiszer be redeposed as to the specific actions he performed during his examination of the seat belt assembly. Pepe’s report indicated that although Thomiszer’s disassem-bly had been carefully done, his testing had not been conducted in compliance with the applicable Federal Motor Vehicle Safety Standards for seat belt testing and could cause erroneous test results on any subsequent appropriate testing performed on the seat belt.

Based on Pepe’s reports, Ford and Allied again moved to bar plaintiff from offering any evidence at trial regarding the condition of the seat belt. The motions to bar testimony were granted by the trial court on December 2, 1982, in an order that barred plaintiff “from presenting any testimony at the trial of this cause regarding the condition of the allegedly defective seat belt which is the subject of this action.”

Plaintiff thereafter moved to vacate the sanction order and for reconsideration. On May 13, 1983, the court heard argument on plaintiff’s motion to vacate and reconsider and ordered Pepe to appear for an evidentiary hearing to elaborate on his previously filed report. The evidentiary hearing was held on July 20, 1983. At this hearing, Pepe testified at length and in great detail as to the internal workings of the seat belt assembly, the findings of his prior report, and the possible effect of Thomiszer’s testing of the seat belt on future tests which might be performed. Further argument on plaintiff’s motion to vacate and for reconsideration was heard on July 27, 1983. At the conclusion of this hearing, the trial court found that plaintiff’s expert had violated the protective orders and that the violative conduct, the unauthorized tampering, had “thoroughly and permanently compromised” the validity, credibility and possibility of accuracy of any future tests that could be performed on the seat belt assembly involved in the occurrence. Fully aware of the seriousness of the sanction that it had imposed, the trial court denied plaintiff’s motion to vacate and for reconsideration.

Thereafter, defendants moved to dismiss or for summary- judgment. Several hearings on these motions were held. At the first of these hearings, plaintiff requested a briefing schedule because he felt he needed to respond to defendants. The court scheduled the motion to be heard on September 30, 1983. Plaintiff failed to respond in writing and, at the scheduled hearing, presented the trial court with no written response. After noting how 'much time and effort had been spent on this case and the seriousness of the sanction that had been imposed, the trial court asked plaintiff why he had prepared no written response to defendants’ motion. Plaintiff replied that he did not “feel it was necessary” and that he could respond orally. Finding that it was “absolutely ridiculous” to expect the court to absorb and rule on such a motion without having had any time to think about it, and despite plaintiff’s protestation that he did not want more time and wanted to cover the matter that morning, the trial court granted plaintiff more time to file a written response.

A third hearing was held on November 2, 1983. At the outset of this hearing, the trial court denied defendants’ motions to dismiss to the extent that it relied on Code of Civil Procedure section 2 — 615 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615), finding that plaintiff’s complaint was adequately pleaded, and considered defendants’ motions on the basis of Code of Civil Procedure sections 2 — 619 and 2 — 1005. (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 619, 2 — 1005.) The court phrased the issue before it as whether “any evidence is or can be put in in any way or if this case is still sustainable on the issues of fact.”

At this hearing, plaintiff asserted that he could prove a prima facie case of products liability without the use of expert testimony concerning the possibility of a specific defect in the allegedly defective seat belt. By way of evidence in support of this assertion, plaintiff submitted only his deposition testimony, in which he stated that he was involved in an automobile accident while wearing his seat belt and that he was thrown against the interior of the auto, sustaining injuries to his head and other parts of his body. From this evidence, plaintiff claimed that he had shown that in the absence of abnormal use or reasonable secondary causes, the seat belt failéd to perform in the manner reasonably expected in light of its nature. Although plaintiff postulated that he could “possibly show perhaps that seat belts do not perform as a unit properly,” no evidence other than plaintiff’s deposition testimony was presented to the trial court. At the conclusion of this third hearing on defendants’ motions to dismiss or for summary judgment, the trial court granted the motions. Plaintiff now appeals.

OPINION

Defendants’ motions to dismiss or for summary judgment were granted pursuant to Code of Civil Procedure sections 2 — 619(a)(9) and 2 — 1005(b) (Ill. Rev. Stat. 1983, ch. 110, pars. 2-619(a)(9), 2-1005(b)), which provide, respectively, as follows:

“Sec. 2 — 619. Involuntary dismissal based upon certain defects or defenses, (a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. ***
* * *
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim. ***”
“Sec. 2 — 1005. Summary judgments. ***
(b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.
* * *
(c) *** The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law.”

“Affirmative matter,” as used in section 2 — 619, has been defined as something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 433 N.E.2d 1350.) A section 2 — 619 motion such as the one at bar is a fact motion that amounts essentially to a summary judgment procedure. (Laycock, Dispositive Pre-Trial Motions in Illinois-Seetions 45, 48 and 57 of the Civil Practice Act, 9 Loyola Chi. L.J. 823 (1978).) A summary judgment motion asks whether the non-movant, here plaintiff, has presented any evidence to raise a genuine issue of material fact. (Laycock, 9 Loyola Chi. L.J. 823, 838-40.) Where the evidence either raises no issue of material fact, or where crucial issues of material fact are refuted by affirmative matter, fact motions made pursuant to either section 2 — 619(a)(9) or 2 — 1005 may properly be granted. Ill. Rev. Stat. 1983, ch. 110, pars. 2-619(a)(9), 2-1005.

In the instant case, defendants moved to dismiss or for summary judgment on the basis of the trial court’s grant of their motion to bar, on the grounds that it effectively rendered plaintiff unable to prove and defendants unable to defend against plaintiff’s strict liability claim. Plaintiff argues on appeal that the sanction imposed by the trial court was too severe, that the trial court abused its discretion by determining questions of fact as if matters of law, and that plaintiff should be allowed to proceed on the merits. We examine plaintiff’s position in light of the particular facts and circumstances of the instant case.

The imposition of sanctions for noncompliance with discovery rules and orders rests largely within the discretion of the trial court and will not be disturbed on review unless that discretion has been abused. (Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307.) Supreme Court Rule 219(c)(iv) specifically authorizes the court to enter orders barring a witness from testifying concerning an issue to which a violation of a previously entered discovery order relates. (73 Ill. 2d R. 219(c)(iv).) The proviso attaching to the court’s entry of such sanctions is that the orders entered be just. 73 Ill. 2d R. 219(c).

Initially, we note that the sanction entered by the trial court on defendants’ motion was not dismissal of the action but rather an order barring plaintiff from “presenting any testimony at trial *** regarding the condition of the allegedly defective seat belt which is the subject of this action.” To determine whether this order was just, we must look to the conduct that gave rise to it and to the effect of that conduct on the parties involved.

Plaintiff brought an action based on strict liability. To recover under strict liability in tort, plaintiff must prove that (1) his injury resulted from a condition of the product, (2) that the condition was an unreasonably dangerous one, and (3) that the condition existed at the time the product left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that, in the absence of abnormal use or secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449.

While these elements may be proved inferentially by either direct or circumstantial evidence (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449), it is clear that preservation of the allegedly defective product, if possible, is of the utmost importance in both proving and defending against a strict liability action. Here, defendants, fully aware of the need to preserve the seat belt assembly involved in the occurrence, timely moved to preserve the belt in its then present condition and at its then present location, specifically requesting that they be notified of and be given a reasonable opportunity to be present at any inspection conducted by plaintiff or any other parties to the suit. The trial court, on two separate occasions and in two separate protective orders, granted defendants’ respective motions, preserving the seat belt in its present condition, ordering that no testing be performed without giving each defendant notice and an opportunity to be present, and prohibiting any destructive testing without further order of the court.

Despite the clear and repeated protective orders entered by the trial court, plaintiff’s expert proceeded to disassemble, inspect, and test the seat belt, without giving notice to defendants. An independent expert appointed by the court testified that the effect of. plaintiff’s expert’s conduct was to render questionable the results of any subsequent tests performed on the seat belt assembly. In light of this testimony, defendants moved the court for an order barring plaintiff from presenting any testimony on the condition of the subject seat belt. After several in-depth hearings and much deliberation, the trial court, fully aware of the seriousness of the sanction it was imposing, granted defendants’ motion to bar testimony, pursuant to its authority under Supreme Court Rule 219(c) (73 Ill. 2d R. 219(c)). We cannot say, considering the particular circumstances of this case and the full deliberation afforded the matter by the concerned trial court, that the entry of the order barring plaintiff’s testimony was an abuse of discretion.

Having found that the sanction imposed by the trial court was not error, we turn to plaintiff’s contention that the trial court abused its discretion by determining questions of fact as matters of law in granting defendants’ motion to dismiss or for summary judgment.

Plaintiff asserts that such questions as whether the product was destroyed by the tests conducted by plaintiff’s expert, whether the product was the proximate cause of plaintiff’s injury, and whether there is any reason to doubt the reliability of subsequent testing are questions of fact to be resolved by the jury. What plaintiff fails to realize is that resolution of these factual questions was not the basis of the trial court’s grant of defendants’ motion to dismiss or for summary judgment. As noted previously, both a motion to dismiss made pursuant to section 2 — 619 and a motion for summary judgment are fact motions. The phrase “fact motion” refers not, as plaintiff’s assertion suggests, to the questions raised by the motions, but rather to the information on which the motions and their resolutions must be based. (Laycock, Dispositive Pre-Trial Motions in Illinois-Sections 45, 48 and 57 of the Civil Practice Act, 9 Loyola Chi. L.J. 823, 825-26 (1978).) Fact motions must be based on facts, as proven by admissions or by sworn and competent witnesses whose testimony has been reduced to writing. Consideration of such motions are preliminary inquiries to determine whether there is a genuine issue of material fact which must be determined by the factfinder. (Laycock, 9 Loyola Chi. L.J. 832, 839.) “Genuine” is construed to mean that there is evidence to support the position of the nonmoving party. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

The record plainly reveals that the trial court did not make factual findings per se on the various issues plaintiff presents. The trial court determined whether, as a matter of law, the affidavits, depositions, exhibits and pleadings in the case raised a genuine issue as to any fact material to the elements of plaintiff’s claim. The trial court determined, in light of all the documents before it including the December 2, 1982, order barring testimony regarding the condition of the seat belt at issue, that no genuine issue of material fact had been raised. The correctness of this threshold legal finding leads us to the merits of plaintiff’s final contention.

Plaintiff’s contention on appeal is that he should be permitted to proceed on the merits. Relying on Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449, plaintiff contends that even barring expert testimony as to the condition of the seat belt at issue, plaintiff would be able to establish a prima facie case of strict liability, should this court find that the trial court’s order, barring all evidence as to the condition of the seat belt, was an abuse of discretion.

Assuming, arguendo, that the order entered by the trial court was intended to bar all testimony as to the condition of the belt both prior to and subsequent to the belt’s having been tampered with by plaintiff’s expert, and that this appellate court found that order to be unjust, plaintiff has nevertheless failed to present any evidentiary facts to either this court or the court below that would support the elements of his claim.

While a plaintiff is not normally required to prove his case at the summary judgment stage, he must present some evidentiary facts to support the elements of his claim. (Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503.) Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is proper. Carruthers v. Christopher Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

“It was plaintiff’s responsibility, on defendant’s motion for summary judgment, to bring forth all facts and evidence that he believed would satisfy his burden of proving the existence of an unreasonably dangerous condition which existed at the time the product left defendant’s control and which proximately caused the injury. [Citation.] Plaintiff failed to do so and cannot claim that at trial he could have produced witnesses to substantiate his claim. [Citation.] There is nothing in this record to reveal that plaintiff needed additional time to complete discovery or preparation of his case before the motion for summary judgment was heard.” Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 979, 382 N.E.2d 36, 40.

While it may indeed be possible to introduce sufficient evidence to establish a prima facie case of strict liability even in the absence of the allegedly defective product itself (Mateika v. LaSalle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503), or of expert testimony concerning the presence of a specific defect in the allegedly defective product (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449), plaintiff must present some evidence to raise a material issue as to the absence of abnormal use and the elimination of reasonable secondary causes to prove what condition the product was in when it left the defendants’ control. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) The requirement that the plaintiff establish the precise cause of his injury may, under certain circumstances, be excused in an action grounded on strict liability provided plaintiff establishes some credible basis for the reasonable inference that a condition of the product proximately caused the injury. (Neighbors ex rel. American States Insurance Co. v. City of Sullivan (1975), 31 Ill. App. 3d 657, 334 N.E.2d 409) and for the elimination of reasonable secondary causes. Livingston Service Co. v. Big Wheels, Inc. (1981), 96 Ill. App. 3d 591, 421 N.E.2d 1042.

Here, the only evidence presented by plaintiff was his own deposition testimony stating that he was wearing a seat belt while operating his vehicle and that he sustained injuries during an automobile collision. However, it cannot legally be presumed from evidence of the mere occurrence of an accident involving a product that the product was defective when it left the manufacturer’s control (Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 336 N.E.2d 338); an inference of defectiveness may not be drawn from the mere fact of injury. (Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561.) Where, as here, plaintiff has failed to produce any evidence to prove the allegedly defective condition of the product existed at the time the product left defendants’ control other than his deposition testimony stating the fact of injury involving the product, he has not presented evidentiary facts sufficient to withstand a motion for summary judgment. Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503.

Plaintiff here had sufficient time to complete discovery and preparation of his case prior to the motion to dismiss/summary judgment hearings. Several hearings were held on defendants’ motions to dismiss or for summary judgment. Plaintiff requested a briefing schedule and, despite this, failed to respond in writing until requested to do so by the trial court. Lengthy evidentiary hearings were held at which plaintiff could have introduced evidence to support the elements of his claim. Moreover, there is nothing in the record that suggests plaintiff either needed or requested additional time to complete discovery or preparation of this case before defendants’ motions were heard. He cannot now claim that at trial he would have produced the necessary evidence to prove his claim of a defective product. In light of the trial court’s order barring plaintiff’s testimony on the condition of the seat belt and in the absence of any evidence, other than the mere fact of injury, indicating any design or manufacturing defect, we cannot find that the trial court’s grant of defendants’ motion to dismiss or for summary judgment was improper.

For all of the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOMBACHER

license: Public Domain

text:
    JERRY LEE FREEMAN, Plaintiff-Appellant, v. MICHAEL P. LANE, Defendant-Appellee.
    Third District
    No. 3—84—0269
    Opinion filed January 9, 1985.

      Verlin R.E Heinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Michael T. Mullen, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Plaintiff Jerry Lee Freeman filed a petition for a writ of mandamus to compel defendant Michael P. Lane, Director of the Department of Corrections, to grant Freeman meritorious good time earned prior to July 13, 1983. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6— 3(a)(3).) In pertinent part, Freeman’s petition alleged that he had been incarcerated for 91 days in the county jail and 127 days in the Department of Corrections (hereinafter called DOC) prior to the Illinois Supreme Court’s decision in Lane v. Sklodowski (1983), 97 Ill. 2d 311, 454 N.E.2d 322. In that case, the court limited the awarding of meritorious good time credit by the DOC to a total of 90 days. The court did not, however, alter any meritorious good time credits that had been awarded prior to the date of its decision, being July 13, 1983.

Freeman’s petition further alleged that prior to the Lane v. Sklo-dowski decision, it was the established policy of the DOC to credit inmates who presented little or no disciplinary problem with meritorious good time, in amounts as specified by each institution, on a regular basis. The petition further alleged that by virtue of the policy of the DOC respecting meritorious good time awards, a duty had arisen upon Lane, as Director, to award defendant Freeman meritorious good time for the amount of time he had spent incarcerated prior to the Lane v. Sklodowski decision. The petition asserted that despite demands and requests, Freeman had not received the meritorious good time credit for the period of his incarceration prior to July 13, 1983. Freeman also alleged, with supporting affidavits, that he met all the conditions set forth as departmental policy for such an award and requested that a writ of mandamus issue, directing Lane, as Director, to grant him 96.8 days of meritorious good time, calculated at 40 days for each 90 days served prior to July 13,1983.

The State responded with a motion to dismiss the petition, asserting that it was insufficient as a matter of law. The State’s motion was premised upon the assertion that Director Lane was under no duty to award Freeman meritorious good time, as the award of credit is an act within the director’s discretion, and therefore not subject to mandamus action. The State argued that as a discretionary action, Freeman had no clear right to the award such as would permit mandamus. Reliance was placed upon pertinent statutory provisions (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 6—3(a)(3)) and applicable administrative regulations of the DOC. The circuit court agreed with the State, concluding that the decision on the award of meritorious good time is within the sole discretion of the director, not subject to a mandamus action. The court dismissed the petition, and this appeal followed.

We reverse and remand.

There is little dispute as to the applicable law with respect to mandamus actions and discretionary duties. A writ of mandamus will not lie to direct the manner of performance of an action which requires the exercise of discretion. (People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 519-20, 147 N.E.2d 89.) While it has been used to compel the exercise of discretion by a public official (People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201, 207, 195 N.E.2d 651), it may be not used to direct or alter the manner in which discretion is to be exercised. To do so would be to substitute a court’s judgment and discretion for that vested in the public official, and that is not permitted. (Ickes v. Board of Supervisors (1953), 415 Ill. 557, 563, 114 N.E.2d 669.) Mandamus relief is available where the duty is nondiscretionary, or ministerial, and where the petitioner has shown a clear right to the relief requested. People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill. 2d 515, 520; People ex rel. Heydenreich v. Lyons (1940), 374 Ill. 557, 30 N.E.2d 46.

As noted, there is no dispute on this basic law, and neither is there dispute that, theoretically, the statutory provision respecting meritorious good time and the administrative regulations pertaining thereto leave the award of good time to the discretion of the director. The latter is not controlling, however, given the procedural posture of the instant case and the allegations of the petition for writ of mandamus. The State’s motion to dismiss addressed only the legal sufficiency of the petition, and under accepted principles, well-pleaded facts in the petition must be taken as true by the court deciding the motion to dismiss. People v. Johnson (1977), 52 Ill. App. 3d 843, 845, 368 N.E.2d 111.

The factual allegations of Freeman’s petition indicate a policy of the DOC where the discretion of the director had been surrendered by him, and supplanted by an established and regular policy of granting meritorious good time to a certain class of inmates of which Freeman alleges he is a member. These factual allegations, as noted, must be taken as true at the motion to dismiss stage of the proceedings. We find the allegations sufficient to state a claim for mandamus relief because they indicate that the discretion vested with the director by law has been transformed, de facto, into a nondiscretionary policy for awarding good time credit. If that is the case, and there was an across-the-board award of such credits to inmates in Freeman’s class, then Freeman is entitled to an award.

The State, in its brief, suggests that Director Lane reviewed Freeman’s case and made a conscious decision, after individual analysis, to deny him the award. It is contended that such actions indicate the discretionary nature of the decision with respect to Freeman. The difficulty with this is that there is nothing in the record indicating such action by Lane, nor anything contradicting the allegations of the petition. Statements from the brief of a party are not a substitute for matters of record. The State, upon remandment, will have full opportunity to present evidence disproving the allegations of the petition and establishing the discretionary nature of the decision. If they do so, then the petition for mandamus relief will be denied. At this point, the only factual matters are those pleaded in the petition, and, as noted, they are sufficient to state a claim for relief by way of mandamus.

We turn next to supplemental arguments presented by the State in support of the circuit court’s decision. The State argues that the petition is fatally defective because if mandamus is granted, it would create confusion and disorder within the DOC. It is established, as the State contends, that the issuance of a writ of mandamus is not a right, but lies within the sound discretion of the court. Further, a writ may be denied when its effect will be to create disorder and confusion and will not promote substantial justice. (Hill v. Butler (1982), 107 Ill. App. 3d 721, 727, 437 N.E.2d 1307.) However, this argument with respect to the effect of mandamus upon the DOC is advanced for the first time on appeal, without any supportive evidence to substantiate it. Without its presentation and consideration in the trial court, we are in no position to evaluate it. The argument may certainly be advanced and supported at the hearing upon remandment. If another appeal is taken, we will then have the benefit of an adequate record and the decision of the trial judge. Any determination at this time would be inappropriate and premature.

The State also argues that the petition must be denied because an award of meritorious good time to Freeman would be in violation of the decision and direction of the Illinois Supreme Court in Lane v. Sklodowski. While this argument was not advanced to the trial court, some comment is in order. It is established that mandamus will not issue for the performance of an act which, for any reason, has become unlawful to be performed, or where the act is no longer within the power of the public official involved. (People ex rel. Cannella v. Chicago (1955), 7 Ill. 2d 416, 418, 131 N.E.2d 98.) In Lane v. Sklodowski, the court determined that the director could not grant more than a total of 90 days’ credit for meritorious good time. (97 Ill. 2d 311, 320.) It also held that “credits that the Director awarded prior to July 13, 1983, are to be honored,” regardless of whether they exceeded the 90-day maximum set forth in the case. (Emphasis added.) (97 Ill. 2d 311, 320.) Thus, the director, by virtue of the supervisory order in Lane, may not grant more than a total of 90 days’ meritorious good time to any inmate subsequent to July 13, 1983.

To the extent that Freeman seeks an award in excess of 90 days, it would not be available to him because of the decision in Lane v. Sklodowski. However, so far as the record indicates, there have been no awards of meritorious good time to Freeman. Thus, if he prevails after hearing, Lane v. Sklodowski is not violated by an award, obtained through mandamus, which grants to him 90 days of meritorious good time. We reject Freeman’s contention that the prospective application of Lane v. Sklodowski focuses upon July 13, 1983, and the question of whether an inmate’s good-time credits were earned prior to that date. The clear focal point of the decision and its date for prospective application is whether such credit had been awarded. While acknowledging the fundamental fairness argument of Freeman on this issue, the supreme court decision is clear, and any change or alteration in its application should be made by that court. Returning to the question of whether this mandamus action seeks to compel an action in violation of Lane v. Sklodowski, on the record before us we find no inherent incompatibility between the relief requested and that decision. If Freeman proves his case, he will be entitled to a total of 90 days’ good-time credit, which award will not violate the court’s directive in Lane v. Sklodowski.

Finally, we turn to the issue of whether Freeman, as a matter of equal protection of the law, is entitled to meritorious good time for the time he spent incarcerated in the county jail. That issue will also depend upon the facts as brought forth at the hearing upon remandment. The State’s response to Freeman’s equal protection argument is premised upon its assertion that the award of meritorious good time is discretionary, and not subject to mandamus. Having already determined above that at this stage the allegations are sufficient to state a claim for mandamus relief, the State’s response must fail.

We will note, however, that if Freeman establishes the de facto non-discretionary award of good time, thereby entitling him to mandamus relief, we see no distinction, for purposes of equal protection, between this case and Hampton v. Rowe (1980), 88 Ill. App. 3d 352, 410 N.E.2d 511. The justifications and obstacles asserted by the State to an award of meritorious good time by the DOC for time spent in the county jail are the same as those advanced, and rejected, by the court in Hampton v. Rowe. Certainly, however, the State will be free to advance other arguments upon remandment in an attempt to distinguish the situation here from that considered in Hampton v. Rowe.

In conclusion, we find that the court erred in dismissing the petition for a writ of mandamus, for the reasons stated above, and we remand for a hearing on the petition, consistent with this opinion.

Reversed and remanded with directions.

HEIPLE, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLTON HORNE, Defendant-Appellant.
    First District (2nd Division)
    No. 83—1182
    Opinion filed December 28, 1984.

      James J. Doherty, Public Defender, of Chicago (Alison J. Norwood and Robert P. Isaacson, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Joan M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

After a jury found defendant guilty of two counts each of rape, attempted murder, aggravated battery, armed violence, and home invasion, and one count of armed robbery, the circuit court sentenced him to an aggregate term of imprisonment of 120 years. On appeal, defendant raises as issues whether: (1) he was denied a fair trial by certain alleged instances of prosecutorial misconduct; (2) his extended term sentence for attempted murder was improper; (3) he was erroneously sentenced for both armed violence and attempted murder; and (4) his sentences were improperly augmented by application of both extended term and consecutive sentencing provisions.

At trial, J.T. testified that after she left work at 8 p.m. on May 10, 1982, she went to the home of her friend, M.S., who was babysitting J.T.’s five-year-old daughter. While she was there, defendant stopped by and conversed with M.S. in the kitchen while J.T. watched television in the living room. M.S. and defendant came into the living room, where they all watched television; defendant then left. J.T. lay down on the living room floor, fully dressed, and fell asleep. The next thing she recalled was waking up in the burn unit of Cook County Hospital, where she remained for two months, after which she spent five months at Oak Forest Hospital. She suffered a head injury, her legs were burned, and all her toes were burned off. She did not see who had hit her on the head.

M.S. testified that on May 10, 1982, she lived in an apartment with her two-year-old son and eight-year-old daughter. Sometime after 8 p.m. on that date, her friend J.T. arrived. J.T. said she was tired and asked to spend the night there. The children were put to bed in the rear bedroom. There was a knock at the kitchen door and defendant, known to M.S. as “Squirrel,” asked to come in for a glass of water. She opened the door and the burglar gates and admitted him. They conversed briefly and then entered the living room and watched television for a “pretty good little while.” She asked him to leave, escorted him to the door, and locked it behind him. After accidentally dropping her cigarettes into the toilet, she went across the street to a 24-hour store. Returning home, she took out her keys to unlock her front door. She heard a “commotion,” turned around, and was struck under her right eye. She struggled with her assailant. They fell against her door and into her apartment. In the kitchen, she recognized her attacker to be defendant. He picked up a hammer, chased her into the living room, and hit her on top of the head, causing her to fall. He dazed her with a blow behind her right ear. Defendant went to J.T., who was still asleep on the floor, grabbed her by her hair, and “he hit her and he hit her and he hit her” with the hammer. He released her head, which dropped to the floor. Every time she moved or moaned, he hit her again. He finally stopped. He vomited beside J.T. He went into the kitchen, where drawers were heard opening and closing. Defendant returned to the living room, and went through J.T.’s pockets, removing her money, bracelet, and earrings. He found two children’s coin banks and shook the money from them. He ransacked the hall closet.

Defendant returned and pulled off J.T.’s pants. He removed his own shorts and inserted his penis inside her, saying, “[a]ct like you like it, bitch, act like you like it.” Defendant then took off M.S.’s pants and cut the bottom of her leotard with a knife. Removing a sanitary napkin, he inserted his penis into her vagina. M.S. “just laid there because I was scared.” She blinked her eyes, unable to keep them closed. He told her: “Bitch, I will spare your life if you open your eyes.” She opened her eyes and asked him why he was doing this. Defendant got up, picked up a cement bank and hit her head twice with it, then broke the bank over J.T.’s head. He had intercourse with J.T. again. He went to the washroom and returned, wiping himself with a towel. He put his shorts back on. He then ransacked the apartment.

From the closet, defendant took a maroon bag containing a zoom lens, tape recorder, CB radio, and TV equalizer. He looked through J.T.’s purse and said, “I’m gone fix it so won’t nobody look at y’all again.” He wrapped J.T. in a comforter and threw a blanket over M.S. She smelled lighter fluid and could hear matches being struck. She smelled something burning. Defendant left the room, returned, and hit the front of her neck with a pop bottle. He then wiped off door knobs and the “places that he had touched” with a towel. He covered her up again. She could hear the striking of matches, and felt the cover begin to burn. She felt the heat on her feet and legs. After she heard the kitchen door close, she pulled off the cover, crawled to J.T. and pulled the comforter from her. The room was filled with smoke. She put out the flames with water, then called the police and fire departments. She told the arriving police what happened and identified and described her attacker. She described the items that might have been taken from her apartment by defendant. She was taken to Loretto Hospital, remaining there three to four weeks. Her hands were burned, her thumb was “separated from” her hand, and her arms, legs and face were bruised.

The Chicago police officer who arrived at M.S.’s apartment at about 3 a.m. on May 11, 1982, testified that M.S., who was covered with blood, said she had been raped. The apartment “looked like a cyclone” had hit it and was covered with a layer of smoke. J.T. was lying on the floor. M.S. said that “Squirrel” had attacked them, describing his clothing to the officer. Defendant was arrested at his home shortly thereafter. Another police officer testified that he found a maroon bag containing a cassette player and a CB radio in the garbage dumpster behind defendant’s apartment building.

A Chicago police microanalyst tested blood samples, vaginal smears, and various items recovered by evidence technicians. Blood from the carpet was found to be type AMN, the same as J.T.’s. The broken cement bank was found to have blood of type A, as well as human hair similar to J.T.’s. Defendant’s fingernail clippings contained blood, but in an insufficient amount to be typed. Defendant’s socks were negative for blood, but human blood, not typed, was discovered on his shoes and shirt. Vaginal smears from both victims tested negative for the presence of spermatozoa.

A physician examined M.S. in the hospital on the morning of May 11, 1982. He observed a hematoma under her right eye, multiple cuts on her head that had been sutured, and an open laceration on her right thumb. The injuries to her head and neck were consistent with hammer blows. A specialist in burn surgery examined J.T. on May 11, 1982, and found 20% of her body, mainly from her knees down, covered with second and third degree burns. She was unconscious and on a respirator. X rays revealed skull fractures on either side of her head, requiring immediate surgery. A microsurgeon performed a bilateral craniotomy later that day. The burn surgeon subsequently operated on J.T. five times and amputated all her toes because they had become gangrenous.

Defendant testified on his own behalf. A month before the subject incident, he went to M.S.’s apartment. He then accompanied her to the intersection of Madison and Austin, where they were picked up by a van containing three men, one of whom, named Snake, was known to defendant, as they had been fellow inmates during defendant’s previous incarceration. The others were introduced to him as Robert and Mike Spencer. The van pulled into an alley, and M.S. gave the bag she had been carrying to Robert. After some “reefer” was rolled up, Robert gave money to M.S. in exchange for the bag. The van returned M.S. and defendant to Madison and Austin, and they walked back to M.S.’s apartment. M.S. gave him three bags of marijuana and $10 when they returned. Sometime between 1 and 2 a.m. on May 11, 1982, defendant heard a knock at his door. The person identified himself as Snake and told him M.S. was “in some trouble” and needed his help. He dressed and went in the van with Snake and Mike to M.S.’s apartment. He was pushed inside the apartment and led into the living room. A light was turned on and he saw M.S. and J.T. on the floor “all bloody and everything.” He got sick. He was asked for money and marijuana and patted down. He put M.S.’s bloody face on his lap, and she asked him to see if her children were all right. He was escorted to the bedroom, where he found the children safe. He related this to M.S. He asked her where the marijuana was so that they would leave, but she told him she had no more. Snake then walked up to him with a maroon bag and told him to get up, which he did. Snake then “slung the bag” at him, hitting his chest with it. He was told to take the bag, which he did. He was driven home and warned to remain quiet. Police arrived shortly thereafter and arrested him. On cross-examination, he testified that Mike threw the bag at him. The defense rested.

After defendant was found guilty as outlined above, and after the court denied defendant’s motion for a new trial, a sentencing hearing was conducted. A Chicago police officer testified that on November 15, 1979, he arrested defendant, who was holding a bloody straight razor. He was then taken to a hospital, where a woman identified him as the assailant who robbed her and inflicted two deep slash wounds to her throat. The State filed certified copies of the following convictions: burglary, 1974, sentenced to three years’ probation; unlawful use of weapons, 1976, sentenced to one year’s imprisonment; three counts of theft, 1979, two years’ imprisonment; and aggravated battery, 1980, five years’ imprisonment.

In imposing sentence, the circuit court noted that it considered the offenses against each of the victims separately, as defendant’s actions indicate that his intent as to each was different. Accordingly, the order of sentence is divided into two parts, one reflecting defendant’s offenses against M.S. and the other those against J.T.; the court ordered that the sentences with respect to each victim be served consecutively. As to the counts involving J.T., defendant was sentenced to concurrent terms of 45 years for attempted murder, 10 years for rape, and 10 years for armed violence; as to those counts involving M.S., he received consecutive terms of 45 years for attempted murder and 30 years for rape, and concurrent terms of 20 years for home invasion, and 10 years for armed violence. The sentences aggregated 45 years for offenses involving J.T. and 75 years for those involving M.S., with a total aggregate sentence of 120 years. This appeal followed.

I

Defendant contends that he was denied a fair trial by virtue of certain prejudicial remarks made by the prosecution during its rebuttal closing argument. Defendant points to the prosecutor’s statements that defense counsel “literally attacked” M.S. on the witness stand, and that counsel’s cross-examination effectively put her on trial. Further, defendant argues that the prosecutor interchanged the identities of defendant and his counsel by referring to counsel’s “testimony.”

Generally, intimations that defense counsel has used trickery or misrepresentation to free his client are improper. (People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41; People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298), as such comments tend to arouse the antagonism of the jury and try the lawyers rather than the issue of guilt (People v. Ray (1984), 126 Ill. App. 3d 656, 660, 467 N.E.2d. 1078; People v. Suggs (1977), 50 Ill. App. 3d 778, 783, 365 N.E.2d 1118). Here the subject remarks did not suggest any prevarication or use of “trickery” on the part of defense counsel, but were permissible comments on trial tactics employed on defendant’s behalf. (See People v. Thomas (1983), 116 Ill. App. 3d 216, 222, 452 N.E.2d 77; People v. Johnson (1979), 73 Ill. App. 3d 431, 434-35, 392 N.E.2d 587.) Furthermore, the comment regarding defense counsel’s “testimony” was neither objected to at trial nor specified in defendant’s post-trial motion; defendant thus waived his objection to any alleged error in this regard, which also does not constitute plain error. People v. Jackson (1981), 84 Ill. 2d 350, 358-60, 418 N.E.2d 739; People v. Turk (1981), 101 Ill. App. 3d 522, 530, 428 N.E.2d 510.

Defendant also claims to have been prejudiced by the prosecutor’s comment that “[y]ou [the jury] stand between Carlton Horne and the streets, where he can reek [sic] more havoc on today’s society.” Such comments, however, dwelling on the results of crime and urging a fearless administration of the law, are not improper. People v. Cukojevic (1981), 103 Ill. App. 3d 711, 721, 431 N.E.2d 1154; People v. Johnson (1979), 73 Ill. App. 3d 431, 435-36; People v. Ivery (1979), 72 Ill. App. 3d 158, 161, 390 N.E.2d 608.

Defendant lastly urges that the cumulative impact of the foregoing remarks requires reversal. Generally, a prosecutor has wide latitude in his closing argument, and improper remarks will not merit reversal unless they substantially prejudice defendant (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200; People v. Pittman (1982), 93 Ill. 2d 169, 176, 442 N.E.2d 836), with consideration given to the content of the language used, its relationship to the evidence, and its effect on defendant’s right to a fair and impartial trial (People v. Ray (1984), 126 Ill. App. 3d 656, 663; People v. Brown (1983), 113 Ill. App. 3d 625, 630-31, 447 N.E.2d 1011). In view of the overwhelming evidence of defendant’s guilt, it is doubtful that the cumulative effect of the remarks complained of, even if prejudicial, would have materially affected the jury’s verdict.

II

Defendant next maintains that the circuit court erred by imposing an extended term sentence for attempted murder, while failing to find that his conviction for home invasion was also accompanied by behavior permitting imposition of an extended term. Here, defendant’s convictions with respect to M.S. included ones for attempted murder and home invasion. The circuit court specifically found that the attempted murder by burning was “exceptionally brutal and indicative of wanton cruelty, almost heinous behavior beyond belief.” Accordingly, the court’s entry of an extended term of 45 years on this conviction was proper. (See Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5— 3.2(b)(2).) The court, however, did not find that the home invasion count, premised on the same acts as the subject attempted murder count, was accompanied by similar behavior permitting the imposing of an extended sentence.

Defendant contends that the home invasion conviction is the “more serious” offense; therefore, the court’s action here allegedly contravened section 5 — 8—2(a) of the Unified Code of Corrections (Code). (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a).) We disagree. The cases relied upon by defendant are inapposite, as in both People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, and People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804, imposition of extended terms for less serious offenses was deemed improper where the subject felonies were of different classes. Here, by contrast, home invasion and attempted murder are both Class X felonies and, accordingly, are of equal seriousness. Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4(c)(1) and 12 — 11(b).

Defendant nevertheless insists that home invasion is here the more serious offense because the home invasion count required proof of all elements required for the attempted murder count, in addition to other elements. We disagree. Defendant’s home invasion conviction required proof that he “intentionally injured” his victim; his attempted murder conviction, on the other hand, necessitated proof of a specific intent, vastly different from that required for home invasion. (See Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a).) As a result, it was possible here that defendant could have been found guilty of home invasion without also being found guilty of attempted murder. The circuit court did not err by imposing the extended term only on the attempted murder conviction.

Ill

Defendant urges that he should not have been sentenced for both armed violence and attempted murder, as both offenses were based on the same physical acts. In People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the supreme court considered the issue of multiple convictions premised on a single physical act and held that a defendant is prejudiced only when he “is convicted of more than one offense, some of which are, by definition, lesser included offenses.” Armed violence requires proof of an underlying felony. (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2.) Thus, multiple convictions for armed violence and its underlying felony, which, by definition, is an included offense, cannot stand where the same physical act is the basis for both charges. People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.

In determining whether a defendant’s conduct constituted a single act or multiple acts, courts have considered: (1) the existence of an intervening act or event; (2) the time interval between successive parts of defendant’s conduct; (3) the identity of the victim; (4) the similarity of the acts performed; and (5) whether the conduct occurred at the same location. (People v. Baity (1984), 125 Ill. App. 3d 50, 52-53, 465 N.E.2d 622.) In light of these factors, the court here correctly found that defendant’s conduct consisted of a number of separate acts. Those of his actions which support the attempted murder charge-striking the victims with a hammer and a coin bank, and setting them on fire — although part of a continuous course of conduct, were separated by various intervening acts, occurred over a considerable period of time, were inflicted on different victims in different parts of the apartment, and were dissimilar acts.

Defendant, however, argues that, because the indictments resulting in his convictions for attempted murder and armed violence were all based on the same acts, the sentence for armed violence was improper. Prosecutorial intent, as reflected in the language of the indictment, is another factor to be considered in determining whether defendant’s conduct constituted a single act or several separate acts. (People v. Baity (1984), 125 Ill. App. 3d 50, 54; People v. Davis (1981), 100 Ill. App. 3d 268, 271, 426 N.E.2d 1047.) By citing the same acts in all the relevant indictments, the State evidenced an intention to treat defendant’s conduct as a single act. Nevertheless, in view of the strength of the other factors cited above, the circuit court did not err by sentencing defendant for both attempted murder and armed violence.

IY

Defendant lastly maintains that the circuit court improperly augmented his sentences for a series of “closely related and almost simultaneously committed acts” by applying both extended term and consecutive sentencing provisions. Section 5 — 8—4(b) of the Code provides that a sentencing court “shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4(b); see People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836.) A finding consistent -with this provision was expressly made here by the circuit court. We therefore find no error in this regard.

The cases relied upon by defendant to urge that the sentences here were inherently unfair are distinguishable, in view of defendant’s prior history of violent criminality and the brutal and violent circumstances of the instant offenses. (Cf. People v. Gray (1984), 121 Ill. App. 3d 867, 460 N.E.2d 354; People v. Griffin (1982), 113 Ill. App. 3d 184, 446 N.E.2d 1175; People v. Pace (1975), 34 Ill. App. 3d 440, 339 N.E.2d 785; People v. Zadel (1979), 69 Ill. App. 3d 681, 387 N.E.2d 1092.) People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311, cited by the State, is considerably more apposite to the instant situation. There, the court’s requirement that defendant serve consecutively two 60-year sentences for attempted murder and armed robbery was upheld, as defendant had a prior murder conviction on his record. Here, similarly, defendant’s criminal history, as well as the nature and circumstances of the present offenses, support the court’s conclusion that consecutive sentencing “is not only justified, but is necessary to protect the public.”

The instant sentences also do not contravene section 5 — 8—4(a) of the Code, which provides, in relevant part (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4(a)):

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively.”

The court specifically found that defendant’s original criminal objective was rape, but that, “some considerable time later,” it changed to attempted murder. The evidence, reflecting defendant’s various actions on the night in question, supports the court’s conclusions in this regard. Moreover, even if defendant’s criminal objective is viewed as unchanging throughout the incident, consecutive sentencing was proper in that he was convicted of a Class X felony and inflicted severe bodily injury upon his victims. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—4(a); People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1023.

As there is no indication that the circuit court abused its discretion in applying the consecutive sentencing provisions of the Code, we find no basis for altering these sentences. See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL CARTER, Defendant-Appellant.
    First District (4th Division)
    No. 83—136
    Opinion filed December 27, 1984.
    Rehearing denied January 24, 1985.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Mary Louise Kiernan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial the defendant was convicted of rape, deviate sexual assault and attempted armed robbery, receiving concurrent 40-year sentences for those crimes, to be served consecutive to prior concurrent 40-year sentences he had received on unrelated charges. On appeal defendant contends: (1) he was denied a fair trial by the prosecution’s introduction of evidence that he was a gang member, had been arrested for other crimes, and had committed an unrelated offense just prior to his arrest; (2) improper prosecutorial comments in final argument to the jury denied him a fair trial; (3) the extended-term sentence for attempted armed robbery was improper where that offense was of a lesser class than the other two offenses; (4) the sentences must be vacated because the trial court failed to state on the record that it had found the factors necessary to permit extended terms and consecutive sentences; (5) those sentences must be vacated because the extended terms and the consecutive sentences were im-permissibly based on the same conduct; (6) the trial court abused its discretion in sentencing the defendant to such lengthy terms.

We affirm defendant’s convictions, reduce his sentence for attempted armed robbery to 15 years, and affirm his sentences in all other respects.

The prosecution’s evidence at trial established the following: On April 27, 1981, Karen D., accompanied by her one-year-old daughter, walked to the 16-story housing project building where her mother resided on the ninth floor. As she waited outside the building for the elevator she observed a man approaching her. It was a sunny, clear day and the man stood about seven feet from her. She identified him in court as the defendant. She and her daughter got on the elevator, followed by the defendant. As the elevator began to rise, the defendant pushed the emergency stop button, pointed a knife with a 12-inch blade at Karen’s stomach, and demanded her money and jewelry. When Karen said she did not have any the defendant forced her at knifepoint to turn her back to him and remove all her clothes, telling her he would make her pay for “being stupid.” With Karen’s daughter crying in the corner behind the defendant, Karen was made to get down on her knees, at which point defendant placed his penis in her mouth. He then made her lie down on her back as she pleaded with him not to harm her or her daughter and had sexual intercourse with her as he held the knife to her neck. After two or three minutes the defendant got up. Karen’s daughter had crawled beside her mother and was crying. The defendant told her to “shut that bitch up” before he “cut her head off.” Defendant then released the emergency button and left the elevator at the fifth floor, telling Karen not to dress for 15 minutes, not to leave for 30 minutes, and not to call the police because he would come back. Karen immediately went to her mother’s apartment, where she called the police. When they arrived she described the defendant to them as five feet eight or nine inches tall, 145 pounds, dark complected, with long hair parted in the middle, a hairnet, dimples, a red eye, and a thick gold chain double-wrapped around his neck.

Karen was taken to the hospital, where a medical examination and tests revealed the presence of sperm in her vagina and evidence of recent trauma to her cervix, causing vaginal bleeding.

That evening at the police station, Karen examined three books of photographs and identified a picture of the defendant as the man who had attacked her. At about one a.m. on April 29, Karen was sleeping at her mother’s apartment when a group of people brought the defendant into the apartment. Karen identified him as the man who had raped her. The defendant struck one individual and tried to run but was subdued by the people there. The police were then summoned.

The defense rested without presenting evidence.

I

We first consider defendant’s contention that the State improperly introduced evidence of his gang affiliation, of his having been arrested before, and of his commission of a crime immediately prior to his arrest.

The alleged gang affiliation evidence consisted of testimony that the defendant had a tattoo stating “El Rukin” above his left nipple. The first testimony concerning this came from Officer Dennis Bolda, who was asked if he observed anything unusual about the defendant when he was taken to the hospital after his arrest. In addition to stating that the defendant was badly bruised and was wearing a double gold chain, the officer stated that defendant had the tattoo above his left nipple. No objection was offered to this testimony. Later another police officer, Katherine O’Brien, was asked by the prosecution to describe what she observed about the defendant at the hospital. She described his bruises, his chain, and the tattoo. A defense objection to this response was overruled. Defense counsel failed to specify the nature of his objection, and indeed, on cross-examination of Officer O’Brien, he elicited more details from her concerning the tattoo.

We do not find that the defendant was improperly prejudiced by this evidence. Although not included in the record on appeal, it is apparent that a photograph of the defendant which was taken at the hospital and was introduced into evidence depicted him with his shirt open or off and revealed the tattoo. Defense counsel had previously impeached Karen with her failure to include in her detailed description of the defendant the fact that he had a mole on his face and pierced ears. The prosecution may well have anticipated that defendant would argue to the jury that Karen’s omission of any mention of the tattoo also impeached her testimony. Thus the prosecution elicited from Karen the fact that defendant left his shirt on in the elevator and they elicited from the police the information that the tattoo was not visible when the defendant had on his shirt. Given this proper purpose for the introduction of the evidence concerning the tattoo the fact that it might have also tended to prejudice the defendant was not a sufficient basis to exclude it. People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.

Defendant also contends that he was prejudiced when the prosection adduced evidence that Karen had identified his photograph from an array of photographs contained in several books shown to her at the police station. No objection was made to the admission into evidence of the book of photographs, nor has that book been included in the record on appeal so as to establish whether the photographs bore such incriminating information as the name of a police department or dates antedating the date of the current offenses at issue. (See People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284.) Indeed, the record establishes that a jury request to examine this book was denied by the trial court. Defendant correctly notes that at one point a police officer testified that the photographs were of persons “arrested in the CHA,” but defendant’s objection to this was sustained, and the jury was instructed to disregard any reference to arrests. We do not find that this evidence was such as to unduly prejudice the defendant in the context of the very strong evidence of guilt presented by the prosecution, and consequently we find no ground for reversal on this basis. People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284.

Defendant next contends that he was prejudiced when the prosecution adduced evidence of his commission of another crime-striking a member of the group holding him as he attempted to flee after Karen identified him in her mother’s apartment. Clearly this evidence was admissible as evidence of flight, tending to show defendant’s consciousness of guilt. People v. Harris (1972), 52 Ill. 2d 558, 288 N.E.2d 385.

II

Defendant has asserted on appeal that the prosecutors made a number of improper and prejudicial statements in final argument to the jury. Only one of these comments was objected to at trial, and the objection to that comment was sustained. Ordinarily, such a failure to object constitutes a waiver of the alleged error. (People v. Gunner (1979), 73 Ill. App. 3d 533, 392 N.E.2d 165.) Moreover, upon review of the comments at issue, we cannot say that they could have prejudiced the defendant’s right to a fair trial or affected the jury in its deliberations, and, accordingly, we find no basis for finding that any of these comments constituted plain error. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Ill

Defendant is correct in his assertion that his 40-year extended sentence for attempted armed robbery was improper. Section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2) authorizes an extended-term sentence only for the class of the most serious offenses of which a defendant has been convicted. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) Because defendant was also convicted of two Class X felonies, he could not receive an extended-term sentence for this Class I felony. Accordingly we reduce that sentence to the maximum permissible, 15 years.

IV

Defendant has also contended that his sentences must be vacated because the trial court failed to specify in the record that the factors necessary to permit extended-term sentences and consecutive sentences were present. In the absence of any request by the defend- . ant at the sentencing hearing for a statement of reasons for the sentences, we find that defendant has waived this issue. (People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473; People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855.) We would also note that the trial court was specifically informed by the prosecutors of defendant’s prior convictions for several Class X felonies, including 1982 convictions for rape, deviate sexual assault, and two armed robberies. In sentencing defendant, the court specifically referred to the indictment number of these charges. Thus, it cannot be contended that the trial court was not aware that a proper basis existed for the imposition of extended-terms, prior convictions, within 10 years, for the same or greater class felonies. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) We also find that the record amply supports a finding that consecutive sentences were necessary to protect the public from further criminal conduct by the defendant. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(b).) The trial court was informed that in the past four years prior to the convictions at issue the defendant had been convicted of four armed robberies, rape, deviate sexual assault, and unlawful restraint. During this trial the court was forced to have the defendant forcibly removed from the courtroom at one point because of his belligerent behavior. All these factors tend to support the consecutive terms imposed by the trial court.

V

Defendant next contends that the extended and consecutive terms were based on the same conduct and thus constituted impermissible double enhancement of the punishment imposed on him. Without regard to defendant’s assumption that such double enhancement would be improper (see Missouri v. Hunter (1983), 459 U.S. 359, 74 L. Ed. 2d 535, 103 S. Ct. 673), we find that, based on our prior discussion of defendant’s sentences and the factors supporting them, it is clear that there existed sufficient independent bases for imposition of both consecutive and extended-term sentences.

VI

Our review of the factors supporting the trial court’s sentencing determination also establishes that, with the exception of defendant’s extended-term sentence for attempted armed robbery, the trial court did not abuse its discretion in imposing these sentences. Absent a finding of such an abuse of discretion, we will not disturb the trial court’s determinations. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Defendant’s convictions are affirmed. Defendant’s sentence for attempted armed robbery is reduced to 15 years. The remaining sentences are affirmed, with all sentences to be served consecutively to defendant’s prior 40-year sentences as provided by the trial court.

Affirmed as modified.

JOHNSON and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    DR. ANGELINE CARUSO, Plaintiff-Appellee and Cross-Appellant, v. BOARD OF TRUSTEES OF THE PUBLIC SCHOOL TEACHERS’ PENSION AND RETIREMENT FUND OF CHICAGO, Defendant-Appellant and Cross-Appellee.
    First District (1st Division)
    Nos. 83—1082, 83—1452 cons.
    Opinion filed December 24, 1984.

      Friedman & Koven, of Chicago (Steven L. Bashwiner and Jodi Landsman Kornfeld, of counsel), for appellant.
    Murray & Girard, Ltd., of Chicago (Michael J. Murray and Richard E. Girard, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Dr. Angeline Caruso, sought administrative review of a decision of the defendant, Board of Trustees of the Public School Teachers’ Pension and Retirement Fund, regarding pension benefits payable to her. After a hearing, the trial court reversed the decision of defendant as being in violation of article XIII of section 5 of the Illinois Constitution, and defendant appeals. Additionally, plaintiff appeals the denial of her petition for attorney fees. We affirm as to both matters.

The record reflects the following. On December 13, 1979, plaintiff was appointed interim general superintendent of the Chicago public school system. At that time, plaintiff, who was 57 years old, had served for approximately 36 years in the Chicago school system and was a member of the Teachers’ Pension and Retirement Fund (Pension Fund) for a similar length of time. Shortly after her appointment, the Chicago board of education began to search for a permanent general superintendent. Plaintiff therefore started planning for her retirement because she believed it was the “professional thing” to do. In the fall of 1980, she sought the assistance of James Ward, the executive director of the Pension Fund, to help her formulate her retirement plans.

The first of four meetings between plaintiff and Ward took place in November 1980. At this meeting, plaintiff asked Ward to prepare several alternative retirement dates at differing salary levels so that she could retire without incurring a penalty in her pension. Plaintiff advised Ward she intended to request from the board of education a salary level and retirement date which would permit her to retire with the same pension benefits she would have received had she been granted an 8^2% salary increase recently given other school employees and continued in the school system until age 65.

At their second meeting in February 1981, Ward represented to plaintiff, in response to her request, that based on an annual salary of $100,000 and a retirement date of February 5, 1982, her annual pension allowance would be $57,478. The computation was made in accordance with section 17 — 116(1) of the Illinois Pension Code, which provides that in computing retirement pensions, “[ajverage salary shall consist of the average annual rate of salary for the 4 consecutive years of validated service within the last 10 years of service when such average annual rate was highest.” (Ill. Rev. Stat. 1983, ch. IO8V2, par. 17 — 116(1).) An “exclusionary amendment” to section 17 — 116(1), which took effect August 1, 1979, provides that “in the determination of average salary for retirement allowance purposes, for members retiring after August 31, 1979, that part of the salary for any year shall be excluded which exceeds the annual full-time salary rate for the preceding year by more than 20%.” Ward’s representation did not take into account the 1979 exclusionary amendment.

Pursuant to Ward’s representation, plaintiff went before the board of education in March 1981 and requested that her current $70,000 yearly salary be increased to $100,000, retroactive to the date she took over as Interim General Superintendent. She also sought approval to continue in the school system until February 5, 1982. The board granted both requests. Thereafter, the Pension Fund proceeded to deduct contributions from plaintiff’s pay based on her salary of $100,000 per year.

In early January 1982, plaintiff met with Ward a third time. At this meeting, Ward told her a mistake had been made and that her annual pension would be only $36,000 rather than $57,478. For the first time he made reference to the 1979 exclusionary amendment containing the 20% limitation provision.

At a fourth meeting on January 13, 1982, Ward told plaintiff her retirement allowance would be $52,397. Notwithstanding this latest representation, plaintiff received a notice from the Pension Fund after she retired, informing her that her pension would be only $46,195. Plaintiff demanded a hearing before the Pension Fund’s board of trustees.

Following a hearing in June 1982, the board of trustees determined that the 20% limitation provision applied to plaintiff and, accordingly, plaintiff’s pension should be $46,195 annually. Plaintiff thereafter filed an action to review the board’s decision pursuant to the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.). The trial court reversed the board’s computation of plaintiff’s pension benefits and ordered the board to calculate plaintiff’s annual pension without applying the 20% limitation provision and to pay her the amount that had been withheld by reason of the application of the provision. The court reasoned that since plaintiff was a participant in the Pension Fund prior to the August 1979 effective date of the limitation provision, the provision diminished and impaired her contractual rights under article XIII, section 5, of the Illinois Constitution, which provides:

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

The court, however, denied plaintiff’s petition for attorney fees.

I

On appeal, defendant argues the trial court erred in holding that the 20% limitation in section 17 — 116(1) does not apply to plaintiff. This issue is moot, given the fact that, during the pendency of defendant’s appeal to this court, section 17 — 116(1) was amended by Public Act No. 83 — 840, effective September 26, 1983. This amendment makes it clear that the legislature did not intend for the 20% limitation provision, which took effect August 31, 1979, to apply retrospectively to individuals who were already members of the Pension Fund. Section 17 — 116(1), as amended in 1983, provides:

“Average salary shall consist of the average annual rate of salary for the 4 consecutive years of validated service within the last 10 years of service when such average annual rate was highest. In the determination of average salary for retirement allowance purposes, for members who commenced employment after August SI, 1979, that part of the salary for any year shall be excluded which exceeds the annual full-time salary rate for the preceding year by more than 20%.” (Emphasis added.)

It is well established that where the legislature has amended a law during the pendency of an appeal, the case must be disposed of by the reviewing court under the law as it exists at the time its decision is rendered, and not as it existed at the time the decision was made by the trial court. (Rios v. Jones (1976), 63 Ill. 2d 488, 348 N.E.2d 825, appeal dismissed (1976), 429 U.S. 934, 50 L. Ed. 2d 304, 97 S. Ct. 346.) Under the language of section 17 — 116(1) as it currently exists, the 20% limitation provision is clearly not applicable to plaintiff because she did not commence employment after August 31, 1979. Accordingly, we affirm the trial court as to this issue.

II

Plaintiff appeals the denial of her petition to recover attorney fees brought pursuant to “An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages” (Ill. Rev. Stat. 1983, ch. 13, par. 13). This statute provides for reasonable attorney fees to be awarded whenever

“a mechanic, artisan, miner, laborer, servant or employee brings suit for wages earned and due and owing according to the terms of the employment, and establishes by the decision of the court or jury that the amount for which he has brought suit is justly due and owing, and that a demand was made in writing at least 3 days before suit was brought, for a sum not exceeding the amount so found due and owing ***.” (Ill. Rev. Stat. 1983, ch. 13, par. 13.) .

There is no common law principle in Illinois allowing attorney fees, either as costs or damages. (Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 273, 364 N.E.2d 595.) As such, the above statute must be considered in derogation of the common law and is to be strictly construed. (Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.) The statute must be complied with in every particular to entitle the plaintiff to recover attorney fees. Moore v. Terhune (1911), 161 Ill. App. 155, 157.

Defendant in this case urges that the trial court properly denied plaintiff’s petition because no written demand was made by plaintiff in accordance with the statute’s requirements. Defendant further contends that plaintiff was not an “employee” under the statute and that no “wages” were recovered by her or withheld by defendant.

After reviewing the record before us, we find that plaintiff failed to comply with the statute’s requirement that a demand be made more than three days before suit is filed for an amount not exceeding that found due and owing. We note that attached to the fee petition was plaintiff’s exhibit No. 7, which plaintiff maintains is a satisfactory demand under the statute. The record, however, belies such a position. Exhibit No. 7, entitled “Average 4 Year Salary for Pension Purposes,” was presented at plaintiff’s hearing before the defendant board of trustees on June 7, 1982. The document, however, was presented and admitted at the hearing for the limited purpose of showing how plaintiff calculated her claim for pension benefits. It is apparent that exhibit No. 7 was not served on defendant as notice of plaintiff’s claim and therefore was not a “demand” as that term is used under the statute.

Even if we were to assume that exhibit No. 7 was a demand, the document still fails to satisfy the statute. To entitle plaintiff to attorney fees under the statute, the demand must be for the sum not exceeding the amount found to be due and owing; if the demand exceeds the amount established to be due on the trial, no attorney fees can be recovered. (Moore v. Terhune (1911), 161 Ill. App. 155.) Here, plaintiff’s alleged demand sought $58,057. Plaintiff, however, had been receiving an annual pension of $46,195 since the time of her retirement. As such, the amount found due and owing by the trial court is approximately $12,000, which represents the difference when the 20% limitation provision of section 17 — 116(1) was applied and when it was not. Plaintiff’s “demand” for $58,057 exceeds the amount found due and owing and therefore is not in compliance with the statute.

Plaintiff submitted a second document to the trial court which also purported to bé a demand under the statute. The document was a letter dated February 11, 1982, to the executive director of the Pension Fund. The letter, however, fails to specify an amount due and owing, and therefore plaintiff’s second attempt to comply with the statute must also fail.

Accordingly, we conclude that the trial court properly denied plaintiff’s petition for attorney fees. We need not discuss whether plaintiff satisfied the other requirements of the statute.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.