author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRISTOPHER DILGER, Defendant-Appellee.
    Second District
    No. 2—83—0174
    Opinion filed June 20, 1984.
    Rehearing denied July 24, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Prei-ner and Diana Fischer-Woods, Assistant State’s Attorneys, and Phyllis J. Perico, of State’s Attorneys Appellate Service Commission, of counsel), for the People.

      Travis, Tucker, Pavesich & Associates, of Lombard, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from the purported acquittal by the circuit court of defendant, Christopher Dilger, of the offense of theft of labor or services or use of property. (Ill. Rev. Stat. 1981, ch. 38, par. 16— 3(b).) It contends the trial court’s finding of not guilty constituted an improper dismissal of the charge against defendant.

The primary issue we consider is whether the trial court was authorized to enter a judgment of not guilty on behalf of defendant premised upon the factual basis for his plea of guilty offered by the State’s Attorney pursuant to Supreme Court Rule 402(c) (87 Ill. 2d R. 402(c)).

A jury trial of the charge against defendant in the information was scheduled for the afternoon of January 24, 1983. On the morning of that day the assistant State’s Attorney, defendant’s counsel and defendant appeared before the trial court and stated they wished to tender to it a tentative plea agreement. The terms of the agreement were that the offense would be reduced from the Class 4 felony charged to a Class A misdemeanor and the State would recommend a sentence of one year supervision, a fine of $500 and an order for restitution of $1,600 to Hertz Rent-a-Car.

As the factual basis for the plea, the assistant State’s Attorney represented that on July 17, 1982, defendant rented a Lincoln Continental automobile from the Hertz Corporation in Itasca, Illinois. The contract provided the car was to be returned on July 19, 1982, and when it was not returned, Hertz sent a written notice to defendant demanding return of the vehicle. After waiting seven days, the car had still not been returned and Hertz notified the police it was missing and the criminal charge was placed against defendant. Defendant turned himself in to the police and stated he had rented the car, used it for one day and then loaned it to a Carol Lawson, telling her to return it on July 19. She failed to do so, and defendant stated he did not know how to get in touch with her. On September 11, the car was recovered from Lawson after having been driven an additional 4,000 miles. The following colloquy then took place:

“THE COURT: I reject the agreement. As far as I am concerned, that statement of facts does not show any wilful violation of any criminal statute. Those are the facts and he is not guilty of anything.
MS. WILSON [Assistant State’s Attorney]: Your Honor, it is the People’s position that his lending a car to a person that he does not know or barely knows, does not know how to get in touch with and doesn’t have the addre’s [sic] for —
THE COURT: Certainly there is a civil claim for Hertz against this person for whatever damages he might have caused, but it does not constitute a criminal violation.
MR. McCOY [Defendant’s counsel]: I move to strike the complaint, then.
THE COURT: Well, no, we will have to have a trial. I can’t strike anything. Let me take a look at the complaint.
It says he wilfully failed to return the vehicle within that period of time, but the statement of facts is contrary to that. The statement says he gave it to somebody else and that person didn’t return it and I don’t know how that could sustain a charge of wilfulness. As I say, it doesn’t state a criminal offense the way you told it to me just now. I find the Defendant not guilty and he is discharged.”

The State contends that as a trial did not take place and defendant was never placed in jeopardy, the court was not authorized to find him not guilty. Defendant asserts that as he was in court for the purpose of entering a plea of guilty and stipulated to the prosecutor’s facts, he was in danger of being found guilty and sentenced. Thus, he argues, he was placed in jeopardy and the trial court had the power under Supreme Court Rule 402(c) (87 Ill. 2d R. 402(c)), which requires the trial court to determine the factual basis for a guilty plea, to enter a finding of not guilty. Defendant also argues that the judgment of not guilty is res judicata and principles of double jeopardy bar further prosecution.

It is fundamental that after a trial on the merits in a criminal case the State may not appeal from a judgment of acquittal. (Ill. Const. 1970, art. VI, sec. 6; People v. Van Cleve (1982), 89 Ill. 2d 298, 307, 432 N.E.2d 837; People v. Verstat (1983), 112 Ill. App. 3d 90, 96, 444 N.E.2d 1374.) An acquittal occurs when the trier of fact renders a finding of not guilty based upon evidence before it (People v. King (1974) , 17 Ill. App. 3d 1064, 1066-67, 309 N.E.2d 598); however, the word “acquittal” has no talismanic quality, as the substance of what was done controls, not how it was labeled. (Serfass v. United States (1975) , 420 U.S. 377, 392, 43 L. Ed. 2d 265, 276-77, 95 S. Ct. 1055, 1064-65; People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, cert, denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) A trial court’s designation of its judgment as an acquittal or dismissal is not determinative of the judgment’s nature or appealability. United States v. Scott (1978), 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77-78, 98 S. Ct. 2187, 2196-97; People v. Deems (1980), 81 Ill. 2d 384, 388-89, 410 N.E.2d 8, cert, denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378; People v. Verstat (1983), 112 Ill. App. 3d 90, 96, 444 N.E.2d 1374.

It is also apparent that a defendant cannot be acquitted until after a trial. The purpose of a trial is to discover, so far as human agencies can, whether a defendant is guilty or not and has been described as a contest held just once between well-prepared adversaries of roughly equal strength. (People v. Tribbett (1967), 90 Ill. App. 2d 296, 301, 232 N.E.2d 523, aff’d (1968), 41 Ill. 2d 267, 242 N.E.2d 249.) The rights of the State to a fair, orderly, impartial trial are to be protected by the court to the same extent as defendant’s. (People v. Kalpak (1957), 10 Ill. 2d 411, 428, 140 N.E.2d 726; People v. Meisenhelter (1942), 381 Ill. 378, 389, 45 N.E.2d 678.) The State is allowed one full opportunity to vindicate its societal interest in enforcement of its criminal laws. United States v. Jorn (1971), 400 U.S. 470, 483-84, 27 L. Ed. 2d 543, 555-56, 91 S. Ct. 547, 556; People v. Pankey (1983), 94 Ill. 2d 12,19, 445 N.E.2d 284.

Supreme Court Rule 402 governs pleas of guilty, and Rule 402(c) provides that “[t]he court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” (87 Ill. 2d R. 402(c).) The purpose of the rule is to allow the trial court to insure that defendant is not pleading guilty to a crime which his acts and mental state do not support. (People v. Barker (1980), 83 Ill. 2d 319, 327-28, 415 N.E.2d 404, cert, denied (1981), 452 U.S. 964, 69 L. Ed. 2d 976, 101 S. Ct. 3116; People v. Martin (1978), 58 Ill. App. 3d 633, 637, 374 N.E.2d 1012, appeal denied (1978), 71 Ill. 2d 612.) The quantum of proof necessary to establish a factual basis for a plea is less than that necessary to sustain a conviction after a full trial. (People v. Barker (1980), 83 Ill. 2d 319, 327, 415 N.E.2d 404, cert, denied (1981), 452 U.S. 964, 69 L. Ed. 2d 976, 101 S. Ct. 3116; People v. Nyberg (1976), 64 Ill. 2d 210, 215, 356 N.E.2d 80, cert, denied (1977), 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654.) In evaluating the sufficiency of the factual basis to support a plea of guilty, the trial court should apply standards similar to those used to determine the sufficiency of the State’s evidence at trial to withstand a motion for a directed verdict of not guilty (People v. Barker (1980), 83 Ill. 2d 319, 328, 415 N.E.2d 404, cert, denied (1981), 452 U.S. 964, 69 L. Ed. 2d 976, 101 S. Ct. 3116), and a plea of guilty should not be accepted if a defense worthy of consideration exists. People v. Spicer (1970), 47 Ill. 2d 114, 116, 264 N.E.2d 181; People v. Ramos (1982), 110 Ill. App. 3d 225, 228, 441, N.E.2d 1153, ap peal denied (1982), 91 Ill. 2d 578.

It is also well established that a trial court is not required to accept a tendered plea agreement (People v. Ferguson (1977), 46 Ill. App. 3d 732, 734, 361 N.E.2d 333; People v. Morgan (1973), 14 Ill. App. 3d 232, 234, 302 N.E.2d 152, aff’d (1974), 59 Ill. 2d 276, 319 N.E.2d 764) and, if the court finds that doubt exists as to a defendant’s guilt and justice requires the withdrawal or the nonacceptance of a tendered guilty plea, then the matter is to go to trial. See People v. Worley (1966), 35 Ill. 2d 574, 221 N.E.2d 267, cert, denied (1967), 386 U.S. 972, 18 L. Ed. 2d 130, 87 S. Ct. 1163; People v. Benedetto (1981), 102 Ill. App. 3d 10, 428 N.E.2d 1169; People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902, appeal denied (1979), 74 Ill. 2d 587.

Nothing contained in Supreme Court Rule 402 supports the procedures followed by the trial court in this instance. If, after considering the factual basis for a plea offered by the State, a court finds that there is an insufficient basis offered on which it may accept a plea of guilty from defendant, the court has no alternative other than to submit the case to trial. In this case, the trial court apparently considered the factual statements by the assistant State’s Attorney as evidence upon which it was authorized to decide whether defendant was guilty or not guilty. That is not the purpose of Rule 402(c), and neither that rule nor any other authority permits resolution of a case on this basis. It has been said that “[t]he determination of whether or not there is a factual basis for a plea is poles apart from a determination of whether or not after a full-blown trial the evidence will sustain a conviction or establish a defense not made or asserted during the proceedings.” People v. Love (1972), 6 Ill. App. 3d 577, 581, 286 N.E.2d 355, appeal denied (1972), 52 Ill. 2d 598.

It is apparent that the present case was not called for trial, no witnesses were sworn and no evidence received by the trial court. The State was not required in this proceeding to establish its case beyond a reasonable doubt. (People v. Nyberg (1976), 64 Ill. 2d 210, 215, 356 N.E.2d 80, cert, denied (1977), 430 U.S. 970, 52 L. Ed. 2d 362, 97 S. Ct. 1654; People v. Hudson (1972), 7 Ill. App. 3d 800, 803, 288 N.E.2d 533.) The trial judge improperly combined the preliminary issue of whether to accept a plea of guilty from defendant with the substantive issue of guilt or innocence. (See People v. McKee (1977), 52 Ill. App. 3d 689, 367 N.E.2d 1000.) The standards adopted by the rule for accepting guilty pleas are for the purpose of assuring protection of a defendant’s procedural rights in criminal proceedings (In re Beasley (1977), 66 Ill. 2d 385, 389, 362 N.E.2d 1024, cert, denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734), and are not intended to be a substitute for a trial on the merits.

Supreme Court Rule 604(a)(1) provides that the State may appeal from a judgment, “the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963.” (87 Ill. 2d R. 604(a)(1).) The rule has been interpreted to allow a State appeal from a judgment having that substantive effect, even if the ground upon which the court disposed of the case is not stated in section 114 — 1. People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244; People v. Verstat (1983), 112 Ill. App. 3d 90, 96, 444 N.E.2d 1374.

This case was not dismissed for any of the grounds contained in section 114 — 1 or for an asserted violation of defendant’s right to due process. The trial court conceded the offense was properly charged and no written motion for dismissal was tendered by defendant. We consider the trial court, in disposing of the case on merits which were not yet before it, engaged in a procedure of the type which has been criticized in other cases. (See People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, eert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378; People v. Hall (1983), 117 Ill. App. 3d 881, 454 N.E.2d 6; People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374; People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117, appeal denied (1981), 85 Ill. 2d 569.) The judgment of not guilty entered by the trial court in these circumstances must be considered as void and of no effect.

For the reasons we have earlier discussed, we find that defendant’s further argument that the judgment of the trial court is res judicata is without merit. Equally without merit is defendant’s contention that he was placed in jeopardy, thus barring any further prosecution. The constitutional concept of jeopardy requires that the accused be on trial for the offense charged at a judicial proceeding directed to reaching a final determination of his guilt or innocence of the offense. (People v. Chatman (1967), 38 Ill. 2d 265, 270, 230 N.E.2d 879; see People v. Kinion (1982), 105 Ill. App. 3d 1069, 435 N.E.2d 533, cert, denied (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256.) In a bench trial, jeopardy ordinarily attaches when the first witness is sworn and the court begins to hear evidence. (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 569, 51 L. Ed. 2d 642, 649-50, 97 S. Ct. 1349, 1353-54; People v. Deems (1980), 81 Ill. 2d 384, 389, 410 N.E.2d 8, cert, denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) No witnesses were sworn in this case and no evidence was heard. Where a cause has been called to trial improperly, no witnesses sworn and no evidence received, a defendant has not been put to trial and jeopardy will not attach. People v. Dellecarto (1978), 67 Ill. App. 3d 490, 495-96, 384 N.E.2d 902, appeal denied (1979), 74 Ill. 2d 587.

Accordingly, the judgment of the trial court will be reversed, its order vacated and this cause remanded to the circuit court for trial or further proceedings before another judge.

Reversed, vacated and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH WILLIAMS, Defendant-Appellant.
    Fourth District
    No. 4—83—0807
    Opinion filed June 29, 1984.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was found guilty at a bench trial in the circuit court of McLean County of the offense of battery in violation of section 12 — 3 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3.) He was sentenced to 12 months’ probation conditioned upon six months in the county jail.

No issue is raised as to reasonable doubt and therefore the facts become immaterial on appeal. The sole issue in this court is the validity of the defendant’s jury waiver. We find it void and reverse the conviction.

Some procedural history is required for an understanding of the issue on appeal. Defendant was charged by information on March 3, 1983. He was served with a copy of the information on that date and the matter was set for pretrial on April 11, 1983. On the following day, March 4, 1983, counsel entered appearance on behalf of the defendant. The docket shows that the pretrial was held and the case apparently assigned for the next jury calendar, although no transcript of the proceedings appears in the record.

The next docket entry is that of June 27, 1983, and appears to be the trial date. It shows that defendant failed to appear and a warrant was ordered to issue. It was returned July 14, 1983, at which time defendant appeared in the custody of the sheriff, bond was fixed and bail posted, and the cause continued to the next available jury setting.

On September 6, 1983, a document was filed by the circuit clerk as follows:

“The undersigned defendant in the above entitled cause, comes now in open court in (his) own proper person, acknowledges receipt of copy of complaint in due time, acknowledges admonition by the Court as to effect of this plea, for plea herein says that (he) is guRty/not guilty in manner and form as charged in said complaint, and waives/dcmands a jury in said cause.” (Strikeovers and underscoring in original; script in parentheses, balance in print.)

The document bears the signature “Kenneth Williams.”

The docket entry on that date states: “Jury waiver filed. Cause set for BT on 10-3-83 @ 9:00 a.m. Mr. Banford to notice State.”

Counsel on appeal has supplemented the record with a document entitled “Bystanders Report of Filing of Jury Waiver.” It was executed by the trial judge and states in substance that the waiver was filed with the trial judge’s secretary by defendant’s trial counsel and that defendant himself was not present at the time.

The case then proceeded through trial on October 3 and sentencing hearing on November 2, 1983. A further hearing on stay of sentence pending appeal was held on December 2, 1983. At no time during these proceedings was the question of the jury waiver raised by either the defendant or his counsel.

Section 103 — 6 of the Code of Criminal Procedure of 1963, implementing the constitutional guaranties of jury trial, provides:

“Every person accused of an offense shall have the right to a trial by jury unless understanding^ waived by defendant in open court.” Ill. Rev. Stat. 1981, ch. 38, par. 103 — 6.

The statute is plain on its face and contains two requirements for a valid waiver: (1) that it be in open court, and (2) that it be understandingly made. These principles were interpreted in People v. Oatis (1977), 47 Ill. App. 3d 229, 361 N.E.2d 1146. In that case the defendant proceeded through a pro se bench trial and on appeal maintained that his jury waiver was not understanding^ made in open court. The court held that the defendant had not presented a sufficient record to demonstrate error and hence affirmed the conviction. However, the court also stated, “If the record shows that the waiver was not made in open court or not made under circumstances indicating an understanding waiver, the court should reverse.” 47 Ill. App. 3d 229, 232, 361 N.E.2d 1146, 1148.

In the instant case the record is more complete than that in Oatis, although with the addition of the bystander’s report, it becomes internally contradictory; i.e., the waiver states that it occurred in open court, while the bystander’s report negates that aspect of the case.

However, faced with the difficult choice of picking and selecting which element of the record to believe (a situation forced upon us by defendant), we elect to follow the bystander’s report. The specific statement of the trial judge carries greater weight than a printed form. This should not be interpreted as a sanction for the procedure used here. Even if the waiver had been filed outside of open court, there was more than adequate opportunity at the commencement of the bench trial to confirm it according to the statute.

It follows that since the waiver was not executed, nor confirmed in open court, the statute was violated. The record required by Oatis is sufficient.

Defendant also argues that the record does not demonstrate the second prong of the statutory test, intelligent waiver. However, the record has not been preserved by the defendant on this point, and we decline to consider it. People v. Oatis (1977), 47 Ill. App. 3d 229, 361 N.E.2d 1146.

We turn next to the nettlesome question as to whether the defendant has waived the issue by failing to raise it at the trial level. As has been indicated, neither defendant nor his trial counsel at any time during the proceedings, trial, post-trial motion, or sentencing hearing, raised the question of jury waiver. It appeared for the first time on appeal. Waiver is a familiar doctrine and needs no citation of authority. It applies to constitutional issues (People v. Black (1972), 52 Ill. 2d 544, 288 N.E.2d 376), and has been held specifically to apply to jury waivers. People v. Sheppard (1974), 20 Ill. App. 3d 1036, 313 N.E.2d 287.

The only basis upon which this court may consider the issue is that of plain error under Supreme Court Rule 615(a). (87 Ill. 2d R. 615(a).) We have been cautioned by the supreme court that plain error is not to be lightly and indiscriminately used, and is limited to those cases “in which the plain error affected substantial rights.” (People v. Garcia (1983), 97 Ill. 2d 58, 86, 454 N.E.2d 274, 286.) Under our system of jurisprudence the right to a jury trial is basic and fundamental. Any tampering with it represents an infringement on a substantial right. We believe that the procedure used in the case at bar raises itself to the level of plain error and we so consider it.

The results reached by the appellate courts have generally tended to find plain error in circumstances similar to those found here. In People v. Banks (1979), 71 Ill. App. 3d 15, 389 N.E.2d 180, an apparently complete record contained no mention of waiver of jury trial; it was held to be plain error. Where the record indicates that a pro se defendant does not fully comprehend his right to jury trial, plain error exists. (People v. Miller (1977), 55 Ill. App. 3d 1047, 371 N.E.2d 917.) Similarly, when a defendant is handicapped in such a manner as to reduce his ability to comprehend his right to jury trial, plain error has been found. People v. Murff (1979), 69 Ill. App. 3d 560, 387 N.E.2d 920.

While none of the special circumstances found in the foregoing cases appears to be present here, nevertheless the record is plain that defendant’s waiver did not occur in open court and it is silent as to his comprehension of his right. Although defendant’s criminal record is extensive, we decline to speculate on the level of his comprehension of the right to jury trial. The case is thus unlike People v. Eveland (1980), 81 Ill. App. 3d 97, 400 N.E.2d 1078, wherein the defendant had been fully admonished as to her right to jury trial. The waiver came by way of letter from her counsel. No objection was raised at trial, and it was held to be ministerial error, not elevated to the status of plain error. No admonishment of any kind appears in the instant record.

We are aware that many of the requirements of the Code of Criminal Procedure of 1963 place great burdens on high-volume courts, such as traffic and misdemeanor tribunals. However, there are no safe shortcuts, and judicial economy is better served by following the statute in the first instance.

The judgment of the circuit court of McLean County is therefore reversed and the cause is remanded to that court for a new trial in accordance with the views expressed in this opinion.

Reversed and remanded for new trial.

TRAPP and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL GOBLE, Defendant-Appellant.
    Fourth District
    No. 4—83—0791
    Opinion filed June 29, 1984.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Following a jury trial, defendant was convicted of five counts of burglary, violations of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a)). He was sentenced to concurrent terms of four years’ imprisonment. Defendant appeals the trial court’s imposition of sentence. We affirm.

Because defendant does not contest the propriety of his convictions, an extended recitation of the facts is unnecessary. Suffice it to say that the evidence established that on September 23, 1982, defendant unlawfully entered into five vehicles that were parked near a bowling alley in Danville, Illinois. Several items of personal property that were in the vehicles were either taken or tampered with by defendant. The evidence also established that defendant was assisted by an accomplice, Thomas Lutz, who acted as a lookout for defendant. After a separate jury trial, Lutz was also convicted of five counts of burglary stemming from this incident. Lutz, however, was sentenced to concurrent terms of four years’ probation.

Defendant’s arguments on appeal center about a claimed disparate sentence. As indicated, he received four years’ imprisonment and Lutz, who had been previously tried to a jury and found guilty, received four years’ probation. Defendant has supplemented the record in this court with a copy of Lutz’ presentence report.

Defendant’s presentence report indicates that he had been convicted previously of contributing to the sexual delinquency of a child in 1980 and indecent liberties with a child in 1977. He was sentenced to one year's probation for the former offense and to a term of imprisonment of not less than four years and not more than six years for the latter offense. Indecent liberties was a Class 1 felony (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 4(c)).

Lutz’ presentence report indicates that he was convicted of “armed robbery” in Edmonton, Alberta, Canada, in 1980.

From this state of the record, defendant argues that he was sentenced under section 5 — 5—3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(c)(2)(F)), which provides in substance that a sentence of probation shall not be imposed on one who has been convicted of a Class 2 or greater felony, if that person had been convicted of a Class 2 or greater felony within 10 years of the date on which he committed the offense for which he was being sentenced. Burglary is a Class 2 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(b).) Since Lutz was sentenced to probation, defendant extrapolates that the statute applies only to offenses and offenders within the State of Illinois and thus is unconstitutional as a denial of equal protection.

We disagree. An examination of the transcript of defendant’s sentencing hearing reveals no mention by either court or counsel of section 5 — 5—3(c)(2)(F) of the Code. The court stated only, “I do not feel I can impose a minimum sentence with your prior record, Mr. Goble.” The question of section 5 — 5—3(c)(2)(F) is raised for the first time on appeal. See People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.

Furthermore, the statute itself contains no language which indicates that a differentiation exists between offenses committed in this State and elsewhere. Nor do we have any information as to whether it was considered at Lutz’ sentencing hearing.

Also of significance is the fact that defendant assumes that “armed robbery,” as set forth in Lutz’ presentence report, is a Class 2 or greater felony. At oral argument counsel stated that this court could take judicial notice of the laws of Alberta, Canada. Such a statement overlooks section 8 — 1007 of the Code of Civil Procedure, which provides:

“The law of a jurisdiction other than those referred to in Section 8 — 1003 of this Act shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.” Ill. Rev. Stat. 1983, ch. 110, par. 8 — 1007.

From the record presented to us we cannot determine the quality of armed robbery in Alberta, Canada, nor can we determine whether the matter was presented to the trial court in Lutz’ case. As the record stands, defendant has a prior conviction of a Class 1 felony within 10 years of the instant offense, and Lutz has only a bare statement in a presentence report, prepared by a layman, indicating some offense in Alberta, Canada, for which he received a prison sentence.

It is the burden of the defendant, when arguing disparate sentences, to produce a record upon which a rational comparison can be made. (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) This he has failed to do in the instant case, and we therefore find no basis to interfere with the trial court’s judgment.

The sentence imposed by the circuit court of Vermilion County is therefore affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE TRAPP

text:
      In re R.L.G., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.L.G., Respondent-Appellant).
    Fourth District
    No. 4—83—0609
    Opinion filed June 27, 1984.
    Daniel D.- Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

On June 2, 1982, a delinquency petition was filed against R.L.G., a 14-year-old, alleging battery. On June 30, 1982, after admonitions by the trial judge, the minor admitted and stipulated to the charge of battery. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3.) R.L.G. was adjudicated a delinquent minor and made a ward of the court. On August 11, 1982, after a dispositional hearing, the minor was placed on 12 months’ probation and directed to serve eight days in the youth detention center.

On October 8, 1982, a petition to revoke probation was filed against the minor, alleging that he violated a condition of his probation by committing the offenses of forgery and theft. On October 12, 1982, a supplemental petition to revoke probation was filed against the minor alleging that he committed the offense of criminal trespass to land and unlawful possession of cannabis. On October 25, 1982, after being admonished by the trial judge, the minor admitted and stipulated to the charges of forgery and theft set forth in the petition filed October 8, 1982. Ill. Rev. Stat. 1981, ch. 38, pars. 17 — 3(a)(2), 16-1.

On November 3, 1982, after a dispositional hearing, the minor was admitted to two years’ probation.

On August 8, 1983, a petition to revoke probation was filed against the minor alleging that he committed the offense of burglary. On August 17, 1983, the trial judge conducted a hearing on the petition and, after being admonished, the minor admitted and stipulated to the charge of burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) After a dispositional hearing on September 1, 1983, the minor was committed to the Illinois Department of Corrections, Juvenile Division. This appeal follows.

The single issue on appeal is whether the revocation of the minor’s probation must be reversed and the cause remanded for proceedings to be conducted in compliance with section 1 — 20(6) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(6)) because the trial judge on his own motion heard jointly seven cases wherein the juveniles would be offering to admit and stipulate to one or more of the charges pending against them.

Section 1 — 20(6) of the Juvenile Court Act states:

“The general public except the news media [and the victim] shall be excluded from any hearing and, except for the persons specified in this Section, only persons, including representatives of agencies and associations, who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing. However, the court may, for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.”

The State contends that this issue has been waived inasmuch as neither respondent nor his counsel objected to the presence of other persons at the hearing. We agree. Appeals from juvenile proceedings are subject to the rule that failure to raise an issue in the trial ■ court results in waiver unless it amounts to plain error. (In re T.D. (1980), 81 Ill. App. 3d 369, 401 N.E.2d 275.) We conclude that this is not a case of plain error.

In this case, the trial judge appears to have admonished R.L.G. and one other minor alternately. He announced R.L.G.’s cause and the appearances and then announced the cause and appearances pertaining to the other minor. He then read R.L.G. the charge against him and inquired whether he understood that charge. R.L.G. responded that he did. The judge then read the charge against the other minor and inquired whether he understood the charge against him. The court continued with its admonitions in this fashion, alternately addressing each minor to inquire whether he understood. In each instance, R.L.G. responded that he did understand. A factual basis for the offer was stated as agreed by the parties. The court inquired whether R.L.G. had any questions about the proceedings, and R.L.G. responded that he did not. The court thereafter accepted the offer.

On appeal the minor maintains that the circuit court has no power to permit the public to attend a juvenile hearing and violation of the right set forth in section 1 — 20(6) is analogous to violation of the proscription of section 5 — 1(1) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 1(1)). The latter section states in pertinent part:

“*** No order of commitment to the Department of Corrections shall be entered against a minor before a written report of social investigation, which has been completed within the previous 60 days, is presented to and considered by the court.”

We do not find the analogy to section 5 — 1(1) to be persuasive. We find In re Starks (1978), 60 Ill. App. 3d 934, 377 N.E.2d 590, cited by the minor, to be inapposite. Therein this court remarked:

“Furthermore, because more emphasis is placed upon rehabilitation in a juvenile dispositional proceeding than in criminal sentencing, the judge in the juvenile proceeding is in greater need of social information. We conclude that the legislature did not intend that the juvenile report requirement be waived.” (60 Ill. App. 3d 934, 936-37, 377 N.E.2d 590, 592.)

There is a fundamental difference between the right to have members of the public, apart from the media, who are not directly interested in the case excluded from the courtroom and the right to have the report of social investigation considered by the court prior to entry of an order of commitment to the Department of Corrections.

We caution that hearings conducted in the presence of others, particularly wherein juvenile cases are jointly heard as here, a minor may be distracted from the gravity of admonitions and explanations from the bench and may be inhibited in asking questions material to his cause. If judicial discretion is fully exercised in detail, we can see little difference in time saved. A court of review also feels some concern with the clarity of the record. We conclude that the procedure itself does not call for reversal in this case, however, given the absence of any showing of prejudice or misunderstanding affecting the validity of the revocations.

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE REINHARD

text:
    GARTH UHWAT, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant (Cheryl Illg et al., Defendants-Appellees).
    Second District
    No. 2—83—0526
    Opinion filed June 21, 1984.

      Julian Johnson, of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellant.
    Charles W. Smith, of Rosing, Magee & Applehans, of Waukegan, for ap-pellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Country Mutual Insurance Company (Country Mutual), appeals from a judgment entered in favor of plaintiff, Garth Uhwat, after a jury trial in a declaratory judgment action which plaintiff brought to determine whether his 1976 Ford pickup truck was covered as a “newly-acquired vehicle” under the terms of a personal vehicle policy that he had with Country Mutual.

Country Mutual raises the following issues on appeal: (1) whether the trial court erred in failing to strike and dismiss plaintiff’s amended complaint for failure to allege a good cause of action; (2) whether the Ford pickup truck was a “vehicle” within the definitions in Section I of the policy and whether that was a question of law to be decided by the court; (3) whether the pickup truck was acquired for the same use within the meaning of the policy as the insured vehicle, a 1974 Chevrolet four-door sedan, and whether that was a question of law to be decided by the court; (4) whether the trial court erred in admitting into evidence 1978 and 1979 partnership income tax returns; and (5) whether plaintiff’s counsel engaged in prejudical final argument.

Plaintiff filed an amended complaint for declaratory judgment alleging, inter alia, that Country Mutual issued a policy of personal vehicle liability insurance which was in full force and effect on October 4, 1979, and provided for payment of claims for bodily injury and property damage caused by accident arising out of ownership, maintenance, or use of a vehicle and for defense of any suit alleging such bodily injury or property damage; that on or about September 15, 1979, plaintiff acquired ownership of a pickup truck; that on or about October 4, 1979, plaintiff, while driving the pickup truck, was involved in an accident with Cheryl Illg; that the policy provided in part:

“5. AUTOMATIC INSURANCE ON NEWLY ACQUIRED VEHICLE
If the vehicle described in the Declarations is disposed of and another acquired in its place by the Named Insured, or spouse, this policy shall without notice transfer to the newly acquired vehicle.
The insurance coverage of this policy with respect to the vehicle described in the Declarations shall also apply to an additional vehicle of which the Named Insured or spouse acquired ownership evidenced by certificate of title thereto. If the vehicle acquired is a motor vehicle as defined in Section I this paragraph shall apply if the newly acquired motor vehicle was acquired for the same use as a motor vehicle described in the Declarations and, provided further the Company insures all vehicles and automobiles owned by and titled to the Named Insured or spouse.
The terms of the two preceding paragraphs apply provided notice of delivery of such vehicle to the Named Insured or spouse is given to the Company within the policy period then current, or if delivery is less than thirty (30) days prior to the end of such period, then within thirty (30) days after delivery. This General Condition 5 shall not extend or affect the expiration provisions of this policy. The Named Insured shall pay any additional premium required for such insurance afforded from date of delivery of such vehicle”;

that Illg had filed a complaint against plaintiff seeking property damages and plaintiff believed he would be sued by Illg for personal injuries; that plaintiff made demand upon Country Mutual to assume his defense and to afford liability coverage by reason of the contract of insurance, but Country Mutual refused to undertake plaintiff’s defense. Plaintiff asked the court to declare the rights of the parties, declare that Country Mutual was obligated to defend plaintiff and to reimburse plaintiff for amounts spent in his defense, and construe the insurance policy as including the vehicle which plaintiff was operating on October 4, 1979, as an additional vehicle.

Attached to the amended complaint were a copy of the personal vehicle policy, the complaint filed by Illg against plaintiff, and the letter from Country Mutual, signed by Phillip Collins, to plaintiff denying coverage. The definitions under Section I of the policy provided in pertinent part:

“ ‘Vehicle’ means any Private Passenger Automobile described in the Declarations or any Motor Vehicle described in the Declarations and includes a Temporary Substitute Vehicle; and under Coverages A and B, includes (1) a trailer designed for use with a Private Passenger Automobile and while used in conjunction with the Private Passenger Automobile described in the Declarations or Motor Vehicle described in the Declaration; providing it' is not (a) a passenger trailer, (b) a trailer used for business purposes other than farming, (c) a trailer used as premises for office, store, display purposes, and (d) a trailer while used as a permanent residence, and (2) a farm wagon or farm implement while used with the Private Passenger Automobile described in the Declarations or the Motor Vehicle described in the Declarations.
* * *
‘Motor Vehicle’ means a land motor vehicle including trailers designed for use with a Private Passenger Automobile, but shall not include Private Passenger Automobiles, Midget Automobiles, Motorcycles, or Motorscooters unless described in the Declaration.”

Country Mutual filed a motion to strike and dismiss the amended complaint, arguing that it failed to state a good cause of action. The trial court denied the motion.

The following evidence was adduced at trial: plaintiff and Peter Ratajczyk were partners in the Joe Meyer Tree Service. The 1976 Ford pickup truck was originally purchased in 1977 and was paid for by trading in a truck owned by the Joe Meyer Tree Service and with a loan procured by plaintiff. Although title to the truck was taken in plaintiff’s name, the partnership made payments on the truck and the license plates were acquired in the name of the Joe Meyer Tree Service. While being used in the partnership business, the pickup was used for traveling to and from one job to the next and for hauling tools, power saws, ladders, ropes, and pulleys.

Plaintiff testified that he acquired ownership of the truck on September 9 or 10 of 1979 in a dissolution of the partnership. After that dissolution, the truck was used for transportation, and he did not haul anything in it except for perhaps firewood for his fireplace. Plaintiff owned a 1974 Chevrolet and a snowmobile which were insured by Country Mutual. The Chevrolet was used for personal transportation. Plaintiff stated that on October 4, 1979, while driving the pickup truck, he was involved in an accident with Cheryl Illg. Illg sued him, and he asked County Mutual to defend him, but the company refused.

Plaintiff’s wife, Bonnie Uhwat, testified that she tried to call their insurance agent with Country Mutual, LeRoy Gallagher, several times at the end of September, prior to the accident, but she could not get in touch with him. After the accident, she called Country Mutual and talked to a Mr. Phillips and told him they had gotten a truck recently and that it had been in an accident and asked if they had insurance. She stated that Mr. Phillips said there was no problem; as soon as she brought in the check for the insurance premium, the truck would be covered and they would process the claim. Mrs. Uhwat further stated that she had her sister-in-law take the premium in. About a month later, after receiving a letter from Country Mutual, Mrs. Uhwat called Mr. Phillips who said the Uhwats were not covered because it was a truck and not a car.

Mary Soder, office manager for Country Mutual, identified a personal vehicle insurance application for the pickup truck and stated that no one named Mr. Phillips was an agent in their office but admitted that a Phillip Collins had worked there. Peter Carrigan, an agent for Country Mutual, identified his handwriting on the application which was in black ink, but he did not know who filled out the parts written in blue ink. He said he spoke with one of the applicants but denied telling Mrs. Uhwat that coverage would extend to the October 4, 1979, accident.

Pursuant to a motion to produce, Peter Ratajczyk, plaintiff’s former partner, brought in copies of the partnership tax returns for 1978 and 1979. Ratajczyk testified that he had looked for other documents requested by defense counsel in his subpoena but was unable to find the bill of sale for the pickup truck, the check used for its purchase, or the receipt for payment. He also stated that he did not bring insurance policies for the pickup truck in the name of Joe Meyer Tree Service.

Leonard Dam, accountant for the Joe Meyer Tree Service, testified that a 1976 pickup truck was listed on the depreciation schedules for the 1978 and 1979 tax returns. Country Mutual objected, arguing that documents requested by the notice to produce had not been produced so that it was unable to intelligently examine the witness, and moved that the witness’ testimony be stricken and the tax forms not be admitted into evidence. The trial court admitted the tax forms into evidence. On cross-examination, Dam testified that charges were made against the individual partner’s account and those records were retained by the client. Defendant again objected because those records had not been produced.

Country Mutual moved for a directed verdict, arguing that the pickup truck was not a “vehicle” as defined in the policy and was not acquired for the same use as the 1974 Chevrolet. The motion was denied. The jury found for plaintiff and against Country Mutual and awarded no damages. Country Mutual’s post-trial motion seeking judgment notwithstanding the verdict or, in the alternative, a new trial, was denied, and this appeal followed.

Country Mutual first contends that the amended complaint failed to allege a good cause of action in that while plaintiff alleged that the truck was covered as an additional vehicle under paragraph 5 of the policy, he did not specifically allege facts which would show that he fulfilled the requirements of that provision which would entitle him to coverage. Plaintiff claims that this contention has been waived because Country Mutual did not raise this issue in its post-trial motion.

Country Mutual does not argue that the amended complaint totally fails to state a cause of action but instead challenges its sufficiency with respect to the particularity with which the facts are set out. (See Owens-Illinois Glass Co. v. McKibbin (1943), 385 Ill. 245, 250, 52 N.E.2d 177.) While there may be a difference between alleging a good cause of action in a defective manner and in stating no cause of action in determining when the complaint can be challenged (Lasko v. Meier (1946), 394 Ill. 71, 73-75, 67 N.E.2d 162; Owens-Illinois v. McKibbin (1943), 385 Ill. 245, 250, 52 N.E.2d 177; see also Swager v. Couri (1979), 77 Ill. 2d 173, 183-86, 395 N.E.2d 921), for the purpose of this appeal, we choose to ignore possible waiver considerations and to proceed to an examination of the sufficiency of the amended complaint.

After a careful review of the amended complaint, and cases wherein the sufficiency of the complaint has been questioned (see, e.g., Carrao v. Health Care Service Corp. (1983), 118 Ill. App. 3d 417, 420-21, 454 N.E.2d 781; Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 826-28, 444 N.E.2d 657), and keeping in mind the guidelines set forth in Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976, we find that the allegations of the amended complaint constitute the substance of a good cause of action. While plaintiff did not specifically allege that he had fulfilled all the requirements to be eligible for coverage under paragraph 5, his allegations that the policy was in effect, that it made provision for newly acquired vehicles, that he had a newly acquired vehicle, and that he made demand upon defendant to assume his defense and afford coverage based on the policy, clearly reveal that he believed he met the requirements for coverage. Although the better practice may have been to allege also that all plaintiff’s duties under the policy had been performed (see Scott v. Freeport Casualty Co. (1945), 392 Ill. 332, 340, 64 N.E.2d 542) and that the truck was a “motor vehicle” as defined in the policy and acquired for the same use as his other vehicles, the amended complaint was not vague or uncertain, and Country Mutual was not unaware of plaintiff’s claim.

Country Mutual next argues that whether the pickup truck would fall within the provisions of the insurance policy was a question of law which should have been decided by the trial court, not the jury. The controlling case is United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 427 N.E.2d 127, where the court was faced with deciding whether a Volkswagen was a replacement or additional vehicle as defined in the insurance policy. The court stated that this was a question of law to be determined by the court. (86 Ill. 2d 339, 342; 427 N.E.2d 127.) When facts are undisputed, the question whether those facts fall within the provisions of an insurance policy is a matter of interpretation, the province of the court rather than the fact finder. (86 Ill. 2d 339, 342-43, 427 N.E.2d 127; see also Sawyer Fruit & Vegetable Co-Operative Corp. v. Lumbermans Mutual Casualty Co. (1983), 117 Ill. App. 3d 407, 408, 453 N.E.2d 826; Illinois Casualty Co. v. Peters (1979), 73 Ill. App. 3d 33, 34, 391 N.E.2d 547.) The trial court found United Farm Bureau distinguishable, saying that in that case all facts were admitted whereas in the instant case facts were contested. While questions of fact exist in this case, we believe that the question of whether the pickup truck was a “vehicle” can be determined solely through interpretation of the policy without the aid of a fact finder.

Nevertheless, reversal is not required since a reviewing court may make an independent determination of questions of law. (Bowers Manufacturing Co. v. Chicago Machine Tool Co. (1983), 117 Ill. App. 3d 226, 232, 453 N.E.2d 61; Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1054, 452 N.E.2d 804.) In interpreting the policy, we initially note that if a provision of an insurance contract can reasonably be said to be ambiguous, it will be construed in favor of the insured and against the insurer, who was the drafter of the instrument. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.) However, if the provisions of the insurance policy are clear and unambiguous, there is no need for construction, and the provisions will be applied as written. (88 Ill. 2d 1, 4, 429 N.E.2d 1203.) All the provisions of the insurance contract, rather than an isolated part, should be read together to interpret it and to determine whether an ambiguity exists. 88 Ill. 2d 1, 5, 429 N.E.2d 1203.

Under paragraph 5 of the policy in question, insurance coverage will extend to a newly acquired vehicle if it “is a motor vehicle as defined in Section I ***.” Section I provides that a “ ‘Vehicle’ means any Private Passenger automobile described in the Declarations or any Motor Vehicle described in the Declarations *** ‘Motor Vehicle’ means a land motor vehicle including trailers *** but shall not include Private Passenger Automobiles, Midget Automobiles, Motorcycles, or Motorscooters ***.” After reviewing these provisions, we conclude that there is no ambiguity, and where provisions are clear and unambiguous, it is the duty of the court to enforce them according to their plain meaning. (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 371, 418 N.E.2d 744.) Here, coverage will extend to land motor vehicles, including trailers but excluding private passenger automobiles (which are covered but defined elsewhere), midget automobiles, motorcycles, and motorscooters. A pickup truck is not specifically mentioned or separately defined in the insurance contract, and it is obviously a “land motor vehicle” in the plain and ordinary sense of that phrase. Because we find that the pickup truck falls within the definition of “motor vehicle” and thus qualifies for coverage, we need not determine whether it could also qualify for coverage as a “private passenger automobile,” which the policy defines as “a four wheel land motor vehicle of private passenger or station wagon type ***.”

Country Mutual, again relying on United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 427 N.E.2d 127, similarly argues that the use of the truck was not disputed and should have been determined by the trial court. On this issue, however, Country Mutual’s reliance on United Farm Bureau is misplaced. In that case, the Illinois Supreme Court stated: Thus, United Farm Bureau indicates that where the issue concerns how the vehicle was used, it is not purely a matter of law. While the only evidence as to the use of the truck came from plaintiff, the parties disputed the interpretation of that evidence. During both trial and appellate argument, Country Mutual did not directly argue that, unlike plaintiff’s Chevrolet, which was used for personal transportation, the pickup truck was used for business purposes, but suggested that it was not so used only because plaintiff was not then employed. Therefore, even though Country Mutual did not introduce evidence to rebut plaintiff’s testimony, the use of the truck was nonetheless disputed and the issue was proper subject matter for jury determination.

“The sole question is whether the Volkswagen was a replacement or an additional vehicle as defined in the policy. That question is one of law, to be determined by the court. When facts are undisputed, the question of whether those facts fall within the provisions of an insurance policy is a matter of interpretation, the province of the court rather than the fact finder. [Citation.] This rule is a corollary of the more general statement that where the facts are not in dispute, their legal effect is a matter of law. [Citation.] Some courts have referred to the issue in this case as a mixed question of fact and law [citation], but that type of characterization should be sparingly applied. There is a mixed question only where there is some dispute over what happened — when the accident occurred, how the replaced vehicle was used and the like. Where the facts are clear, it is the responsibility of the court to rule on the legal effect of those facts [citation], and there is no need for the services of a fact finder.” (Emphasis added.) (86 Ill. 2d 339, 342-43, 427 N.E.2d 127.)

Defendant next argues that the trial court erred in admitting the partnership income tax returns since books of original entry, balance sheets, and other accounting statements listing the pickup truck as an asset of the Joe Meyer Tree Service were requested pursuant to a notice to produce and were not turned over to Country Mutual. Country Mutual maintains that without these requested documents, it was severely limited in effectively cross-examining the accountant regarding the income tax returns. Furthermore, at oral argument, Country Mutual also claimed that the tax returns were not produced in a timely fashion.

Country Mutual relies on Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511, as authority for the proposition that the trial court should have barred the admission of the tax returns as a sanction for failing to comply with the notice to produce. However, imposing sanctions against a party for noncompliance with discovery rules is within the discretion of the trial court. (City of Chicago ex rel. Cohen v. Keane (1982), 105 Ill. App. 3d 298, 305, 434 N.E.2d 325.) Campen does not require trial courts to find violations and impose sanctions but merely reaffirms the trial court’s discretion to do so, which has been granted pursuant to Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)). Here, there was testimony that the documents had been searched for but were not found, and it was within the trial court’s discretion to believe that testimony and decline to impose sanctions. See City of Chicago ex rel. Cohen v. Keane (1982), 105 Ill. App. 3d 298, 305-06, 434 N.E.2d 325.

Country Mutual contended at oral argument that the tax returns were not produced at the opening of trial, as specifically required by the notice to produce and subpoena, and thus should not have been admitted into evidence. However, after a careful reading of Country Mutual’s appellate brief, we note that this argument is not contained therein. Points not argued in the appellant’s brief are waived and shall not be raised in oral argument. (87 Ill. 2d R. 341(e)(7); Board of Education v. Ballweber (1983), 96 Ill. 2d 520, 527-28, 451 N.E.2d 858.) However, even if we were to ignore considerations of waiver (see Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 973, 447 N.E.2d 1358), the result would be the same. The notice to produce requested that the documents be turned over at the opening of trial. Although the tax returns were turned over during trial, they were presented on the first day of trial. Since the accountant did not testify until the second day of trial, Country Mutual cannot claim that it had no opportunity to examine those tax returns prior to the time of the accountant’s cross-examination. Thus, we hold that the admission of the partnership income tax returns was proper.

Country Mutual’s final appellate contention is that during closing argument, plaintiff compared his unsophisticated business practices and limited finances to the sophistication and considerable financial size of Country Mutual. Closing argument, however, was not recorded. An appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) It is no excuse for Country Mutual to argue that it was unaware that closing argument was not being transcribed (see Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 243, 406 N.E.2d 611, affd (1982), 92 Ill. 2d 72, 440 N.E.2d 848), since it could have filed a substitute for a report of proceedings authorized under Supreme Court Rule 323 (87 Ill. 2d R. 323; Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392, 459 N.E.2d 958), but failed to do so. Thus, we are unable to review this contention, and we affirm the trial court’s ruling that comments made during plaintiff’s closing argument were not improper.

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

Affirmed.

SEIDENFELD, RJ., and HOPE J., concur.


text:
      In re ADOPTION OP BABY GIRL LEDBETTER (Robert Dennis Santarelli et al., Petitioners-Appellants and Cross-Appellees, v. James C. Ellison, Respondent-Appellee and Cross-Appellant).
    Fourth District
    Nos. 4—83—0741, 4—83—0800 cons.
    Opinion filed June 21, 1984.
    Tepper & Gwinn, of Urbana (John Gwinn and Victoria Mather, of counsel), for appellants.
    Ames & Manecke, of Coal Valley, for appellee.
    Larry R. Silkwood, of Urbana, and Steven LeSueur, of Champaign, guardians ad litem.

   JUSTICE TRAPP

delivered the opinion of the court:

Petitioners, Robert and Karen Santarelli, appeal from a judgment denying their petition for adoption of Baby Girl Ledbetter and denying in part recovery of certain expenses they incurred in caring for the baby. Respondent, James Ellison, cross-appeals, claiming the trial court erred in requiring him to reimburse petitioners for some of their expenses.

On December 23, 1982, Bonnie Ledbetter gave birth to a baby girl in Moline, Illinois. No father was named on the birth certificate. When Ms. Ledbetter was released from the hospital on December 26, petitioners’ attorney drove her to the law offices of Rosborough & Daily in Moline. There Ms. Ledbetter executed a final and irrevocable consent to adoption. She refused to name the baby’s father.

On December 30, petitioners filed for adoption. The petition named Ms. Ledbetter as the mother, but no father was named. Petitioners served process on the baby and published notice “to whom it may concern” in a local newspaper. The trial court gave temporary custody of the baby to petitioners. The court appointed a guardian ad litem for the baby and another guardian ad litem for the unknown father and all concerned.

On January 27, 1983, Ellison filed an appearance claiming to be the natural father. Petitioners demanded proof of paternity and alleged Ellison was unfit. In an evidence deposition on July 15, Ms. Ledbetter stated she was married to Robert Ledbetter at the time of conception. The record reveals no attempt to locate or serve Mr. Led-better, and he did not participate in the proceedings.

The court held a hearing on October 31, 1983. The evidence concerning paternity consisted of Ms. Ledbetter’s deposition and Ellison’s testimony. According to Ms. Ledbetter’s deposition, she ceased living with her husband in June 1981. She obtained a divorce in April 1982. She also stated that in 1982 until the time she became pregnant, she had intercourse only with Ellison. Ellison also testified he and Ms. Ledbetter engaged in sexual intercourse during the time of conception. Petitioners argued this evidence was insufficient to overcome the legal presumption that Mr. Ledbetter was the baby’s natural father. The trial court, however, concluded Ellison was the natural father and awarded him custody. Because petitioners had paid the medical expenses for the baby’s delivery, the court ordered Ellison to reimburse them. The court also ordered Ellison to compensate petitioners for food and diaper expenses they had incurred while caring for the baby. The court refused to order reimbursement for the cost of furniture, wallpaper, clothes, and toys because petitioners had not delivered any of these items to Ellison.

In Illinois, the law presumes a child born to a married woman is legitimate. Because the Ledbetters were still married when the baby was conceived, Mr. Ledbetter presumptively was the father of the baby. People ex rel. Davis v. Clark (1981), 99 Ill. App. 3d 979, 426 N.E.2d 294.

Mr. Ledbetter, as presumptive father, was a necessary party to the action.

"If a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in. If a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct such person to be made a party.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(a).)

The ruling that' Ellison was the natural father effectively cut off Mr. Ledbetter’s rights as the presumptive father. Additionally, if Mr. Led-better were the father, the court could not grant the adoption petition without his presence.

Ellison contends the presumption was overcome by clear and convincing proof; therefore, Mr. Ledbetter need not be made a party. Absent the order in this case, however, Mr. Ledbetter could assert full parental rights regardless of the true state of paternity. His rights cannot be terminated without sufficient notice to him. Moreover, the only parties represented were Ellison, who claimed paternity, and petitioners, who knew none of the relevant facts. Mr. Ledbetter was never given an opportunity to rebut the evidence at which Ellison points.

The guardian ad litem for the unknown father could not properly represent Mr. Ledbetter’s interests. Mr. Ledbetter’s identity was disclosed as early as the date of Ms. Ledbetter’s deposition. He was not an unknown party. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 413.) While a guardian may represent a minor’s interest (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 502), the interest of a person not in being (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 501), or an incompetent’s interest (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1008(c)), due process requires proper service on a known competent adult before adjudication of his rights.

The requirement of joinder of necessary parties is absolute and inflexible. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 270, 398 N.E.2d 278, 284.) Both the trial and appellate court have a duty to enforce this principle of law sua sponte when it is brought to their attention. (National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 121, 336 N.E.2d 115, 123-24.) An order entered without jurisdiction over a necessary party is null and void. People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 38, 219 N.E.2d 617, 620.

For the foregoing reasons, the judgment of the circuit court is vacated and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion. If upon service of summons, Robert Ledbetter fails to appear or file a responsive pleading, the trial court is directed to affirm the judgment heretofore entered.

Vacated and remanded with directions.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE HEIPLE

text:
      In re D.K., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. D.K., Respondent-Appellant).
    Third District
    No. 3—83—0675
    Opinion filed June 20, 1984.

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

delivered the opinion of the court:

The respondent minor, D.K., appeals from an order revoking the minor’s probation and sentencing the minor to the Illinois Department of Corrections (IDOC) for a term not to exceed his 21st birthday. The sole issue on appeal is whether the trial court erred in sentencing the minor. We affirm.

The minor was originally adjudicated a delinquent after being charged with theft. During a subsequent placement with the Youth Farm Agency, the minor escaped from the facility on four occasions, thereby violating his parole. These escapes resulted in the instant proceedings to revoke his parole.

At the parole revocation hearing, the court received the testimony of the minor’s parole officer and of his counselor at the Youth Farm. The minor and his father also testified. Immediately upon the closing of the evidence, the court stated simply that the minor “shall be committed to the Illinois Department of Corrections.” No objections to the disposition were raised. The trial court later entered a written order committing the minor to the IDOC.

The issue on appeal is whether the cause should be remanded for resentencing because of the trial court’s failure to comply with the sentencing procedure set forth in section 5 — 1(5) of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 1(5).) Section 5 — 1(5) requires that “[w]hen commitment to the Department of Corrections is ordered, the court shall state the basis for selecting the particular disposition, and the court shall prepare such a statement for inclusion in the record.”

The trial court in the instant case failed to state any basis for its selection of disposition. Its cursory statement that the minor was committed to the IDOC did not satisfy the requirements of section 5— 1(5). The question then is whether this error requires remandment.

We do not remand because we find that the error was waived. Section 5 — 1(5) is substantially equivalent to section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005— 4 — 1(c)). Under section 5 — 4—1(c), a trial court is required to state for the record its basis for a sentence. The Illinois Supreme Court in Peo ple v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855, held that this requirement was permissive rather than mandatory and therefore waivable.

The minor argues that Davis is not persuasive in the instant case because minors are entitled to greater protection under the Juvenile Court Act than are adult offenders under the criminal statutes. However, the Illinois Supreme Court based its decision in Davis on the constitutional principle of separation of powers. The court in Davis found that the legislature could not constitutionally impose a mandatory requirement that the trial court state its reasons for imposing a particular sentence. The Davis court therefore found that the requirement of a stated basis for a particular sentence was permissive and could be waived.

These same principles of separation of powers apply to the statute now before us. If the legislature cannot constitutionally impose a mandatory requirement that a court state its reasons for sentence in a criminal proceeding, it similarly cannot impose a mandatory requirement in proceedings under the Juvenile Court Act. We find no basis for distinguishing the effect of the principle of separation of powers in the instant case from that presented in Davis.

Accordingly, we find that the requirements of section 5 — 1(5) are permissive and therefore waivable. We further find that the minor in the instant case has waived any objection to the court’s failure to state its reasons for the record. The minor did not object to the court’s omission at trial.

We also decline to review the issues as plain error under Supreme Court Rule 615 (87 Ill. 2d R. 615). Although brief, the court’s order was supported by the record. The fact that the minor had escaped four times while placed at the Youth Farm was particularly relevant. The minor’s counselor at the Youth Farm was unable to recommend any alternative to placement with the IDOC. We therefore do not review the issue as plain error.

Finally, our affirmance of the court’s order in the instant case should not be construed as a condonation of its disposition of this case. The trial court had the responsibility of determining the future of a young person. The interests of the parties and the judicial system are better served when difficult decisions are set forth for the record.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
      In re ESTATE OF PETER J. CORNELIUS, Deceased (Eldred J. Cornelius, Ex’r of the Estate of Peter J. Cornelius, Petitioner-Appellee, v. Terry Lee Mingee, Respondent-Appellant).
    Fourth District
    No. 4—83—0813
    Opinion filed June 28, 1984.
    James L. Dobrovolny, of Dobrovolny & Souk, of Urbana, for appellant.
    Richard Kirby, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Intestate estate closed.

$400,000 in farmland.

Will found under an old rug.

Will admitted.

We affirm.

The facts are as follows. Cornelius died September 15, 1980. No will was immediately found so his estate was administered intestate. After payment of the éxpenses of administration, there remained to be distributed an estate valued at over $400,000, consisting primarily of farmland. The estate was closed November 23,1981.

In March 1983, Roy R Johnson found an envelope under an old rug in the living room of Cornelius’ house. He thought that this contained the last will and testament of Cornelius. On March 22, 1983, the document was filed with the clerk of the circuit court of Champaign County. On April 20, 1983, appellees here filed a petition to vacate the court’s order of November 23, 1981, which closed decedent’s estate. The relief was requested pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401).

Upon the filing of this petition, a guardian ad litem was appointed to represent the interest of a minor, Terry L. Mingee, who was an heir of the estate. The guardian ad litem opposed the petition to vacate. A hearing was had, at which time Roy Johnson described the events leading to his discovery of the document purported to be Cornelius’ will. Following the taking of evidence, the trial court ruled that its original order closing decedent’s estate should be vacated and granted petitioner leave to file a petition for probate of the will and for letters testamentary in the estate of Peter Cornelius.

A hearing was held on October 6, at which time the petitioner put on proof pertaining to the execution of the will of Cornelius. Betty Smith, an employee of the probate division of the local circuit clerk’s office, testified that she was familiar with the handwriting of one of the witnesses and identified his signature as appearing on page 2 of the will. She also testified that to her knowledge the witness had been dead for more than 10 years.

Ann Bell testified that her signature appeared on page 2 of the will and that she placed it there at the request of Cornelius. She also testified that she observed Cornelius sign the will. She stated that two other witnesses were present when she signed the will. She indicated that she had personally observed the two witnesses sign the will and identified their signatures thereon.

James Myers, president of the First National Bank of Ogden, Illinois, testified that the signature on page 1 of the will appeared to be that of the testator. He also indicated that he had refreshed his recollection as to the testator’s signature from signature cards at his bank before coming to court to testify.

Eldred Cornelius testified that he was a son of decedent, that he was familiar with the signature of his father, and that his father’s signature appeared on the first page of the will.

On November 2, 1983, a written order was entered, admitting the last will and testament of decedent, Peter J. Cornelius, to probate. Letters testamentary were also ordered issued.

Appellant has raised numerous issues which — it is argued — require us to reverse the decision of the trial court. In view of our disposition of this case, only two issues bear discussion.

The first issue is whether section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 11072, par. 24 — 9) spells out the only circumstances under which a closed estate may be reopened. It does not. The second issue is whether the proof offered by appellees was sufficient to allow the trial court to admit decedent’s will to probate. It was.

I. Exclusivity of Section 24 — 9

Appellant’s first argument is that the legislature specified the only circumstances under which an estate may be reopened and that those circumstances are not present here. Section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 11072, par. 24 — 9) provides in pertinent part that a decedent’s estate which has been closed and whose representative has been discharged may be reopened to permit the administration of newly discovered assets or of an unsettled portion of the estate of any interested person. From the language of this portion of the statute appellant goes on to argue that since there are no newly discovered assets here — nor is there an unsettled portion of an estate — this estate may not be reopened upon the discovery of an unknown will.

Appellant’s argument fails for two reasons. First, section 24 — 9 is found in that portion of the Probate Act of 1975 dealing with accounts. From this we may infer that it was meant to apply to situations involving changes in the corpus of an estate, not the way in which that corpus is divided. Second, Illinois courts have long recognized that a newly discovered will provides adequate grounds for vacating a prior distribution and taking up anew the matter of the estate. (See Oliver v. Oliver (1924), 313 Ill. 612, 145 N.E. 123.) Further, courts constructing section 24 — 9 have closely limited its application to instances of newly discovered assets rather than limiting the application of the Probate Act of 1975 in toto by operation of one section of the act. We consider that such a view is more in keeping with the legislative scheme as well as the trend in Illinois and the country generally which seeks to simplify and streamline probate matters. Such a view avoids the formalistic ties with which this area of the law has so long been bound.

To conclude: Section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 11072, par. 24 — 9) does not establish the sole grounds under which a closed estate may be opened. Further, it did not preclude the trial court here from vacating its prior order which was based on its finding that Peter Cornelius had died intestate.

II. Burden of Proof

Appellant’s second claim of error is that appellee neither established the competency of the attesting witnesses nor the fact that the witnesses and the testator signed the will in the presence of each other. Appellant’s argument centers mostly on the perceived inadequacies of the testimony of the lone surviving witness, Ann Bell. Appellant would have us vivisect the testimony, then put the pieces back together and find that the witness failed to invoke the magic incantation pertaining to her viewing the attestation in the presence of the testator and the other subscribing witnesses. We decline.

Under our view of the scenario of this case, Bell did not have to testify at all!

The testimony about which appellant complains was had at a hearing, the purpose of which was to “prove” the will. Under section 6— 4(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 6— 4(a)), the proponents of wills must prove several factors. Under section 6 — 4(b) (Ill. Rev. Stat. 1983, ch. 1101/2, par. 6 — 4(b)), the factors may be proved by the presence of an adequate attestation clause attached or made part of the will. The will, which was part of the record before this court, bears an attestation clause which states that the witnesses, believing the testator to be of sound mind and memory, signed the last will and testament of the testator in the presence of him and in the presence of each other. This is enough to satisfy the proponent’s burden of proof under section 6 — 4.

Appellant’s arguments all seem to go to matters which might be pertinent had the hearing been convened pursuant to section 6 — 21 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 6 — 21). This section specifically states that upon the petition of an interested party, the proponents of a will must, by testimony, prove the matters of section 6 — 4. Section 6 — 21 specifically states that the proof cannot be by an attestation clause alone when there has been a petition for formal proof. But as we have previously noted, section 6 — 21 requires an interested party without notice to petition the court for formal proof.

In sum, a proper attestation clause is self-proving as long as all interested parties received adequate notice.

Affirmed.

GREEN and MILLER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS W. THORNTON, Defendant-Appellant.
    Second District
    No. 2—83—0423
    Opinion filed June 29, 1984.
    G. Joseph Weller, Josette Skelnik, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After a bench trial defendant, Thomas W. Thornton, was convicted of the unlawful delivery of a controlled substance (Ill. Rev. Stat. 1981, ch. 561/2, par. 1401(a)(2)) and was sentenced to six years’ imprisonment. Defendant appeals, contending the trial court erred in denying his motion to require the State to disclose the identity of an informant.

Defendant made a pretrial oral motion for disclosure of an informant known as C — S 82830, who was mentioned in police reports which described three drug purchase transactions which had taken place between defendant and Special Agent John Hindes of the Illinois Department of Law Enforcement. The police reports noted that the informant met with police officers on March 17, 1982, after which the officers observed the informant while he met with defendant. Defendant and the informant then drove to another location where they met with Officer Hindes who purchased a bag of cocaine from defendant for $625. No arrest was made at that time. The reports also described a second purchase of cocaine from defendant by Officer Hindes on March 24, 1982, and a third purchase made on April 8, 1982, after which defendant was arrested. The informant was not present at either of the latter two transactions.

Defendant’s counsel sought pretrial disclosure of the informant’s identity on the grounds that was necessary in order to determine whether defendant could raise the defense of entrapment. The State conceded the informant had participated in the first drug transaction on March 17, but argued that as he had not participated in the third transaction on April 8, upon which the charge against defendant was based, the informant’s identity was not relevant to it. The trial court denied defendant’s motion.

At trial Officer Hindes testified only to the drug sale which took place on April 8, 1982. He stated that he called defendant on April 6, saying he wanted to purchase a quarter pound of cocaine. Defendant responded he could not get that much and, when they met at a truck stop on April 7, offered to sell one ounce. Hindes declined, stating he wanted to purchase a larger quantity. The two men met again at the truck stop on April 8 when Officer Hindes received two bags of cocaine from defendant for which he agreed to pay $4,350. Other officers who were watching were then signaled and defendant was arrested.

Defendant testified in trial that he knew John Hindes, who called him on April 6 seeking to purchase a quarter pound of cocaine. They met at a truck stop where defendant offered to sell an ounce of cocaine, but Hindes declined, saying he wanted a larger quantity. Defendant testified he later tried to return the ounce of cocaine to his supplier, who would not take it back, but did give defendant another ounce. Defendant met with Hindes on April 8 and, after delivering the cocaine to him, was arrested.

Other evidence was presented that the two bags contained approximately 6.8 grams of cocaine. The trial court found defendant to be guilty of the offense occurring on April 8, 1982, sentence was imposed and he appeals.

Defendant argues that the informant’s participation in the first of the three drug transactions between defendant and the officer gives rise to the possibility the informant possessed knowledge relevant to an entrapment defense of the third sale for which defendant was prosecuted, and asserts disclosure of the informant’s identity was thus required to give defendant a fair trial.

We note initially that in the trial court defendant raised an entrapment defense only to the extent of arguing that Officer Hindes induced him to sell two ounces of cocaine rather than the one ounce which defendant had offered to sell. He did not otherwise present evidence or argument of entrapment in trial or testify that the informant was a participant in or witness to the transaction on April 8 for which defendant was convicted. Entrapment is an affirmative defense, and, if the State's evidence does not raise the issue, the burden is upon defendant to do so before the State may be required to prove defendant was not entrapped. People v. Brown (1968), 95 Ill. App. 2d 66, 70, 238 N.E.2d 102; Ill. Rev. Stat. 1981, ch. 38, par. 3 — 2; see People v. Terry (1976), 38 Ill. App. 3d 795, 349 N.E.2d 129.

The circumstances wherein disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii) (87 Ill. 2d R. 412(j)(ii)), as follows:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.”

A defendant's request for disclosure is not automatic and he has the burden of demonstrating its necessity. In making its determination the court must balance a defendant’s need for the informant’s identity in order to prepare his defense against the public interest in protecting the informant’s identity, thereby encouraging citizen participation in the control of crime. (People v. Rinaldo (1976), 34 Ill. App. 3d 999, 1001, 341 N.E.2d 166; Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.) Crucial factors to be considered by a court are whether the informant was a participant in or witness to the offense charged. (People v. Lewis (1974), 57 Ill. 2d 232, 238, 311 N.E.2d 685; In re J.T. (1978), 65 Ill. App. 3d 865, 867, 382 N.E.2d 1288.) Where an unnamed informant was neither a participant or witness to the offense, it has been held that he is not a crucial witness or source of information for the defense and his identity need not be disclosed. People v. Gonzalez (1980), 87 Ill. App. 3d 610, 613, 410 N.E.2d 146, appeal denied (1981), 85 Ill. 2d 570; People v. Gresham (1981), 96 Ill. App. 3d 581, 585-88, 421 N.E.2d 1053.

Defendant suggests in this case the informant may have acted to lure defendant into committing the offense of delivering drugs to the officer when defendant was not predisposed to do so and thus may have knowledge necessary to offer an entrapment defense to the April 8 transaction, although he was not present. Defendant did not, however, present any reason to the trial court sufficient to require disclosure of the informant, nor did he claim the informant did anything to induce him to commit the April 8 offense. Defendant offered only speculation for the court’s consideration.

The cases cited by defendant in support of his argument that the informant’s conduct in the initial drug transaction on March 17 requires that he be considered as a “participant” in the April 8 sale are inapposite. (See Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623; Gilmore v. United States (5th Cir. 1958), 256 F.2d 565; People v. Chaney (1976), 63 Ill. 2d 216, 347 N.E.2d 138; People v. Gresham (1981), 96 Ill. App. 3d 581, 421 N.E.2d 1053.) In each of these cases the informant was either an active participant or witness to the transaction for which the defendant was prosecuted.

We conclude defendant offered no adequate reason to the trial court for requiring disclosure of the identity of the informant, and the court correctly denied his request.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.