author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE A. WALKER, JR., Defendant-Appellant.
    Fifth District
    No. 81—357
    Opinion filed March 30, 1983.

      Randy E. Blue and Richard J. Bennett, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant pleaded guilty to various offenses including murder and was sentenced inter alia to the death penalty. On appeal to the Illinois Supreme Court the cause was reversed and remanded for a new sentence on the murder count. On remand the circuit court of St. Clair County imposed an 80-year sentence for murder, to be served consecutively to the other sentences imposed, the greatest of which was 60 years. Defendant appeals the murder sentence.

Defendant was jointly indicted with Paul Bainter for offenses occurring at the State Park Cafe in Caseyville, Illinois, on May 20, 1978. On October 2, 1978, defendant pleaded guilty to murder, attempted murder (four counts), armed robbery, conspiracy to commit armed robbery, and armed violence. The State had agreed to recommend concurrent sentences of 60 years for murder, 15 years for each count of attempted murder, and 30 years for armed robbery and armed violence; however, before a sentencing hearing could be held, defendant was permitted to withdraw his guilty plea on his own motion.

On February 6, 1979, defendant again pleaded guilty to all eight counts. The State’s Attorney informed the court that the State would seek the death penalty. Defendant was admonished inter alia concerning the possible sentences and the possibility of consecutive sentencing on the murder charge if sentenced to a term of years for murder. The State’s Attorney recited the factual basis for the pleas, as follows:

Armed with a .30-caliber carbine rifle called an “Enforcer” and wearing a hood partially covering his face, defendant entered the State Park Cafe and announced a robbery. He fired two shots into the floor near the patrons. Defendant ordered the patrons to place their money on a table and move into the kitchen. Defendant fired two shots at Elsie Wallace, who was killed. Defendant followed the remaining patrons into the kitchen and again demanded money. Someone responded that he already had it. Defendant fired the rifle at least eight more times. James Outland was shot in the face, Carol Alier in the right breast, George Delisle in the leg and Terry Wallace in the arm. Defendant fled, leaving behind the money taken from the patrons and the cash register.

Defendant and Bainter were arrested in Texas. Defendant told police that he recalled announcing the holdup but did not recall shooting anyone. This statement also mentioned that defendant and Bainter had drunk beer and taken mescaline prior to the offenses.

Defendant’s death penalty hearing was by the circuit court sitting without a jury. The State’s evidence included testimony by the four persons defendant had shot in the State Park Cafe kitchen. These witnesses testified in detail concerning the events in the kitchen. Defendant’s wife and Bainter testified regarding defendant’s and Bainter’s drinking prior to the offenses in question. Bainter also testified concerning the prior drug usage and defendant’s involvement in an unrelated burglary. Dr. Syed Raza, a psychiatrist, testified that defendant had told him that he drank two or three cases of beer and took hallucinogenic drugs prior to the offenses and that based on these facts and his examination of defendant, defendant’s mental faculties would have been “severely” affected. State Agent Jimmy Bivens testified that he had not found any arrests or convictions of defendant in his check with the Illinois Crime Bureau. The State cross-examined Bivens concerning the arrest of a person named Amos Earl Walker in St. Louis County in 1975.

The court sentenced defendant to death for murder, 60 years for each count of attempted murder, 60 years for armed robbery, 30 years for armed violence and three years for conspiracy to commit armed robbery. The court did not indicate whether the sentences were to be served concurrently or consecutively.

On review by the supreme court (People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167), that court vacated the conspiracy conviction, remanded for resentencing on the murder, and affirmed in all other respects. With respect to the murder count, the court stated that “the cause is remanded to the circuit court for the imposition of a sentence not greater than 80 years in the penitentiary.” 84 Ill. 2d 512, 526, 419 N.E.2d 1167, 1176.

Defendant was resentenced by the same sentencing court on June 26, 1981. Both parties elected to rely on the evidence adduced at the death penalty hearing. The State recommended a consecutive sentence of 80 years, and the court imposed that sentence.

First, defendant argues that the State’s consecutive sentence recommendation punished defendant for the lawful exercise of his rights, i.e., appealing his death sentence. The courts have recognized that the imposition of a penalty upon a defendant for having successfully invoked a right afforded by law would be a violation of due process of law. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098.) Defendant urges that this principle prevents consecutive sentencing in the instant case. We disagree. The vindictiveness principles were held to have been triggered in the case at bar when the prosecutor, without notice, increased the possible sanction from a penitentiary sentence to a sentence to death for no valid reason after the defendant had exercised a procedural right. (People v.' Walker.) However, as to the imposition of consecutive sentences, the record indicates that defendant was advised of the possibility of consecutive sentences before his original plea of guilty was made; and, after its withdrawal and before the entry of the second guilty plea, defendant was again admonished that, if sentenced to a term of imprisonment for murder, his sentences could be ordered to run consecutively. Thus, it cannot be said that defendant was not free to pursue his statutory right to appeal free from the fear that if a new trial were granted, he would face an additional and more severe sanction of consecutive sentences.

We are of the opinion that this conclusion comports with the rationale of the supreme court in the automatic appeal of defendant’s death sentence where the court stated:

“If it were shown on the record in this case that the prosecutor informed defendant from the start that the death penalty would be sought if defendant did not plead guilty, had defendant subsequently pleaded guilty, and then had defendant reneged on that bargain, we would not prevent prosecutors from again seeking to execute him.” (People v. Walker (1981), 84 Ill. 2d 512, 525, 419 N.E.2d 1167, 1175.)

The substitution of the term “consecutive sentences” for references to the death penalty and seeking to execute defendant in the above quote, results in precisely what transpired in the case after remand. Defendant, having been made aware of the possibility of consecutive sentences from the outset, was sentenced to consecutive terms of imprisonment.

Parenthetically, we also disagree with defendant’s contention that the record does not support the State’s assertion that defendant knew, when he entered the first guilty pleas, that the plea agreement included forbearance on the part of the State to seek consecutive sentencing. Defendant thus urges that it cannot be said that the State bargained away the possibility of consecutive sentencing. Any plea agreement involving the State’s recommendation of a specific lesser sentence implicitly includes the State’s forbearance to seek the maximum penalty the law provides for the offense. This is true whether or not the prosecutor so states in open court.

Next, defendant contends that the sentencing court failed to make on the record the findings requisite to imposition of consecutive sentences. Section 5 — 8—4(b) of the Unified Code of Corrections requires that the sentencing court, on imposition of consecutive sentencings, find on the record that in light of the history and character of the defendant and the nature and circumstances of the offense, such a term is required to protect the public from further criminal conduct by the defendant. (Bl. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 4(b); People v. Gaston (1980), 88 Ill. App. 3d 314, 315-16, 410 N.E.2d 531, 532.) Here the court found on remand that:

“*** having regard for the nature and circumstances of the offense, to the history, character, and condition of the defendant *** the Court FINDS: That any sentence other than imprisonment would deprecate the seriousness of the defendant’s conduct and would be inconsistent with the ends of justice and it is necessary for the protection of the public that the defendant be sentenced to a term of imprisonment. ***”

The court’s statement followed immediately that defendant’s sentence for murder was 80 years, to be served consecutively. We agree with the State that such statements conveyed the court’s feeling that a consecutive sentence, not merely a sentence of imprisonment, was necessary to protect the public. This rationale is supported by the fact that murder, the offense for which defendant was being sentenced, requires a sentence of imprisonment; thus it would have been superfluous for the court to state that a sentence of imprisonment was necessary. El. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(2)(A).

Defendant also argues that the following statement by the trial court indicates that court’s erroneous belief that it was compelled to impose consecutive sentences:

“The Court has imposed the consecutive sentence pursuant to the provisions of Section [1005] — 8—4, because the Court feels that this is provided for by law, one or more of the offenses being a Class X or a Class 1 felony.”

We disagree -with defendant’s construction of this remark. That the court was aware of the extent of its discretion with respect to imposition of consecutive sentences is apparent in the court’s comment to defense counsel just prior to the remark relied upon by defendant:

“Isn’t it true, Mr. Glass, that even if they arise out of the same transaction, even if there is no substantial change in the criminal objective, the fact that one of them is a Class X or a Class 1 justifies a consecutive sentence?”

We find defendant’s contention in this regard to be without merit because justification for the imposition of consecutive sentences does not amount to a requirement for their imposition.

Next, defendant argues that he could be sentenced to an extended term of 80 years only if the trial court found that defendant had previously been convicted of the same or a greater class felony or that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant urges that no such finding appears of record. However, at the hearing at which the death penalty was imposed prior to defendant’s appeal to the supreme court, the same trial court expressly found that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Subsequently our supreme court remanded with directions that a sentence not greater than 80 years be imposed. Where a cause is remanded by our supreme court, the trial court cannot err if it follows the mandate of the supreme court in the further proceedings of the case, and no attention will be given to arguments that it erred in so doing. (Sawicki v. Clemons (1951), 411 Ill. 28, 30, 103 N.E.2d 107, 108.) In any event, the requisite finding having been made, we find that the fact that it was made prior to the most recent remand is without significance.

Defendant’s contention that such a finding was not supported by the evidence is also without merit. Defendant urges that such a finding cannot be made where the acts complained of cause the vietim’s instantaneous death. This court rejected that contention in People v. Andrews (1982), 105 Ill. App. 3d 1109, 1113-14, 435 N.E.2d 706, 708-09, which we find dispositive of the instant case. See People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.

Defendant next contends that the 80-year consecutive sentence for murder was excessive. Defendant argues: (1) this sentence leaves no hope of rehabilitation; (2) the court did not give sufficient weight to evidence of defendant’s low intelligence and his intoxication at the time of the shootings; and (3) defendant had no history of significant prior offenses. In this regard, we are authorized to reduce the sentence of the trial court only if the court abused its discretion in imposing that sentence. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884; People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541, 548.) We find that the instant penalty is amply justified by the circumstances of the offense. The trial court properly could have concluded that protection of the public was more important than defendant’s rehabilitation under these extreme circumstances. (See People v. Velillari (1980), 84 Ill. App. 3d 333, 347, 405 N.E.2d 466, 476.) The nature of the instant offense is such that we need not consider the veracity of evidence regarding defendant’s state of intoxication at the time of the murder in determining the propriety of his sentence, as defendant invites us to do.

Defendant also argues that the trial court erred in concluding that codefendant Bainter was an expert witness upon the subject of defendant’s intoxication, Bainter having drunk alcoholic liquor with defendant regularly over a long period of time. The court stated: “You could almost characterize Bainter as an expert in expressing his opinion as to the intoxication of Walker, as well as himself.” We conclude that the court’s use of the word “almost” evidences the court’s awareness of the fact that Bainter was not literally an expert on the subject. We find no indication here that the court misunderstood the law with respect to the subject of expert witnesses.

Next defendant argues that the trial court erred at the hearing at which the death penalty was imposed in considering alleged criminal activity by defendant which did not result in convictions of record. Defendant implies that the trial court considered the same matters in sentencing defendant to consecutive terms of imprisonment on remand. The following four alleged offenses are complained of: (1) defendant’s alleged 1978 arrest for unlawful use of weapons; (2) defendant’s alleged 1978 arrest for suspicion of burglary; (3) the 1975 Clayton, Missouri arrest of “Amos Earl Walker” for theft over $150; and (4) Paul Bainter’s testimony that he and defendant had participated in a Cahokia burglary. As stated in People v. Grau (1975), 29 Ill. App. 3d 327, 332, 330 N.E.2d 530, 534, on appeal it is presumed that the trial court recognized and disregarded any incompetent evidence introduced during sentencing proceedings. As to the first three of these four matters, we find nothing of record to rebut the presumption that these matters were not considered by the trial court. Regarding the alleged 1978 arrest for unlawful use of weapons, the presumption is reinforced by the court’s express acknowledgment that the charge was dismissed. Concerning the “Amos Earl Walker” arrest, the court expressly stated that there was no disposition of record.

As to Paul Bainter’s testimony that he and defendant had participated in a Cahokia burglary, we conclude that the trial court accorded that testimony little, if any, weight. The court on three occasions referred to Bainter’s credibility as questionable during the sentencing hearing at which the death penalty was imposed. Regardless, Bainter’s credibility as a witness was for the trial court to determine. (See People v. Catlett (1971), 48 Ill. 2d 56, 64, 268 N.E.2d 378, 382.) Here, the court was shown to understand the importance of determining Bainter’s credibility. Accordingly, if the trial court did determine that Bainter’s uncontradicted testimony regarding the alleged burglary was true, we find that such conclusion was not reversible error.

Additionally, we note that the sentencing hearing at which the death penalty was imposed reveals numerous references by the court, which are not now objected to, regarding offenses by defendant. These included weapons violations and almost continuous controlled substances offenses. Those matters support the trial court’s apparent conclusion that defendant had a serious prior criminal history; the court need not have considered the four alleged offenses defendant now complains of to reach such a conclusion.

Finally, defendant contends that the court erred in listening to extensive testimony from the surviving shooting victims as to the extent of their injuries and their physical and financial suffering. Defendant urges that such evidence admitted at trial has been found to be reversible error. We reject defendant’s contention that evidence inappropriate in a jury trial is also inappropriate at sentencing. (People v. Adkins (1968), 41 Ill. 2d 297, 300, 242 N.E.2d 258, 260.) The effect of a crime upon the victims is an aggravating factor which the sentencing court may properly consider. (People v. Burton (1981), 102 Ill. App. 3d 148, 153, 429 N.E.2d 543, 547.) We need not consider defendant’s contention that the “rubric of plain error” requires that we consider this issue despite defendant’s failure to object to this evidence at the time of its admission.

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

Affirmed.

HARRISON, RJ., and EARNS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MARGARET J. FINK, Plaintiff-Appellee, v. EDWIN A. ROLLER, Defendant-Appellant.
    Fifth District
    No. 81—600
    Opinion filed March 28, 1983.

      Christopher B. Hunter, of Farrell, Heil, Long & St. Peters, P.C., of Godfrey, for appellant.
    Linda L. Zazove and Steven N. Mottaz, both of Thomas, Mottaz & Eastman, of Alton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On October 25, 1977, plaintiff filed her petition in the circuit court of Madison County for modification of child support payments arising out of a paternity action. Plaintiff appealed that court’s dismissal of her petition, and this court reversed and remanded. (Fink v. Roller (1979), 76 Ill. App. 3d 818, 395 N.E.2d 617.) On remand, the circuit court on October 21, 1981, modified defendant’s monthly child support obligation from $75 to $150, retroactive to October 25, 1977, and assessed defendant’s responsibility for plaintiff’s attorney fees in the action at $2,325. In this appeal, defendant argues that (1) plaintiff did not demonstrate the “substantial change in circumstances” necessary to support a child support modification; (2) the court erred in ordering such modification to be retroactive to the date of plaintiff’s modification petition; and (3) the court erred in awarding plaintiff attorney fees with respect to the modification proceedings.

The child in question was born in 1966. By stipulation filed in the trial court on November 8, 1967, defendant agreed to pay plaintiff $75 per month for the child’s support.

Defendant testified at the May 20, 1981, hearing on remand: He was manager of a 300-acre grain farm and part-time real estate appraiser and he was in the same business in 1967. He held title to the grain farm from 1956 until 1980, when he conveyed it to a land trust. A tenant farmed the grain acreage under a “standard arrangement” pursuant to which defendant received half the crop annually. Defendant had two adopted children; one, age 20, was in the Navy, and the other, age 18, attended Washington University. Defendant received $400 a year for a road easement used for access to a landfill adjoining his farm. He received $4,265.16 in 1980 and $2,675 in 1979 for sale of other easements. He rented a vacant lot in Alton to an automobile dealer for $350 per month. In 1978 he sold certain real estate he owned outright for $32,500 on a contract for deed basis and had received all but $11,700 of that amount. Prior to 1961, he had operated a hamburger stand there but closed it due to poor health. He owned the grain farm, his house, and his 1980 Cadillac outright. He also owned a 1970 pickup truck with camper and a 16-foot boat. His savings account was under $2,000. He owned stock including General Motors (300 shares), Occidental Petroleum (300), American Telephone and Telegraph (100), A.A.R. Corporation (213), and Utah Power and Light (100). Defendant did not itemize deductions in his income tax returns. His total adjusted gross income was as follows: in 1980, $35,707.84; in 1979, $31,429.57; in 1978, $29,672.86; and in 1977, $29,189.99.

Plaintiff testified at the hearing on remand that her gross income as a secretary for 1980 was nearly $17,000, up $2,000 from 1979; her sole significant asset was her home, in which she had equity of about $18,700; she was receiving $900 a year from defendant as child support; and the child in question was in ninth grade and had been fitted with dental braces in 1979 at a cost of $1,650.

First, defendant argues that plaintiff failed to establish a substantial change of the parties’ circumstances necessary to sustain an increase in defendant’s child support obligation. In this regard, modification of child support obligations under the Illinois Marriage and Dissolution of Marriage Act is permitted only upon a showing of a substantial change in circumstances. (111. Rev. Stat. 1981, ch. 40, par. 510(a); Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, 642-43.) Section 9 of the Paternity Act states that the trial court retains jurisdiction to modify child support. It also provides that in determining the father’s support obligation, the court shall consider not only the father’s financial condition and circumstances but also the income and resources of the mother. Although section 9 does not purport to set forth a standard to be used in determining requests for modifications of child support (111. Rev. Stat. 1981, ch. 40, par. 1359), section 9 has been construed as requiring the same showing for a support modification as is required under the Illinois Marriage and Dissolution of Marriage Act, i.e., a substantial change in circumstances. People ex rel. Spicer v. Coleman (1979), 72 Ill. App. 3d 631, 637, 391 N.E.2d 46, 50.

It has been stated that under the Illinois Marriage and Dissolution of Marriage Act, a showing of a substantial change in circumstances amounts to a showing both that the needs of the child have increased since the initial judgment and that the means of the defendant have increased during that time. (See In re Sharp (1978), 65 Ill. App. 3d 945, 948, 382 N.E.2d 1279, 1282; Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 414, 214 N.E.2d 139, 141.) Since Kelleher, this standard has been stated less inflexibly:

“It is still incumbent upon the court to consider both the needs of the children and the ability of the former spouses to pay when considering a petition to increase child support. But, instead of marching in step to some precise equation of percentage change, the court considers the children’s needs as ranging from the bare necessities to the practical, to the useful, to the luxurious. Similarly, the court considers whether the means of each spouse has changed absolutely, has changed relative to the other, and has changed relative to the children’s needs. The court must then accommodate, or adapt, or harmonize all these considerations to determine whether an increase in support is justified. Child support payments must necessarily reflect a balance of the intensity of the child’s need with the ability of the parents to provide for that need.” (In re Sharp (1978), 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279, 1282-83.)

See Metcoff v. Metcoff (1972), 4 Ill. App. 3d 160, 161, 280 N.E.2d 572, 573; Harding v. Harding (1978), 59 Ill. App. 3d 25, 27, 374 N.E.2d 1304, 1306.

In the case at bar there was adequate showing that the child’s need had increased. True, inflation alone does not constitute a substantial change of circumstances (Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 185, 343 N.E.2d 640, 643); however, absent evidence to the contrary, we may assume that the child’s needs have increased due to rising costs of living and the child’s advancing age. (In re Sharp.) While defendant’s means as of 1967 were not shown, defendant was shown to have a present income far in excess of plaintiff’s and to own considerable real and personal property without significant indebtedness. It appears that increasing defendant’s support obligation will benefit the child significantly without hardship to defendant. We cannot say that the trial court abused its discretion in resolving these facts in favor of the child whose welfare the court was bound to protect in this proceeding. Additionally, we note that defendant’s initial support order was stipulated to rather than judicially fixed; thus, the instant petition for modification afforded the court its first opportunity to balance the child’s need against defendant’s means. We conclude that the trial court did not abuse its discretion in concluding that the evidence adduced warranted increase in defendant’s support obligation.

Next, defendant argues that the court erred in making the support obligation “retroactive” to the date the petition for modification was filed. The Paternity Act does not state what date the court may use as the effective date of an order of increased child support. Defendant argues that the effective date cannot be prior to the date the modification order is filed. We disagree for several reasons. First, section 9 of the Paternity Act authorizes the trial court to make whatever supplementary orders are necessary with respect to child support. (111. Rev. Stat. 1981, ch. 40, par. 1359.) Where a petition alleges and a plaintiff establishes the existence of circumstances at the time of filing the petition which would warrant modification, it would be anomalous to conclude that the trial court could not fashion an order to meet that need. Second, the father’s obligation under the Paternity Act is to support the child “to the same extent and in the same manner as the father of a child born in lawful wedlock ***.” (111. Rev. Stat. 1981, ch. 40, par. 1352.) It is noteworthy that the Illinois Marriage and Dissolution of Marriage Act permits increases “retroactive” to the time of filing the petition for modification. (See 111. Rev. Stat. 1981, ch. 40, par. 510(a); In re Marriage of Junge (1979), 73 Ill. App. 3d 767, 771, 392 N.E.2d 313, 316.) Section 2 of the Paternity Act implies that the father’s obligation thereunder should extend back to the time of filing of the petition, because a lesser liability would not be “to the same extent” as that applicable to a child born in lawful wedlock under the Illinois Marriage and Dissolution of Marriage Act. Third, the main purpose of the Paternity Act is to provide for the support of illegitimate children so that those children will not become wards of the State. (People ex rel. Blackmon v. Brent (1968), 97 Ill. App. 2d 438, 442, 240 N.E.2d 255, 256-57.) This purpose could be virtually thwarted if the courts were without authority to order that an increase be effective prior to final judgment. We cannot adopt a construction of section 9 which would defeat the legislature’s evident intent. See Sickler v. National Dairy Products Corp. (1977), 67 Ill. 2d 229, 235, 367 N.E.2d 674, 677.

Additionally, defendant argues that even if a “retroactive” award were possible under the Paternity Act, he was not notified by pleadings or formal request by petitioner that an award effective as of the filing of the petition for modification was being sought. We consider the petition itself to have been implicit notice. That is, we see no justification for an assumption on defendant’s part that plaintiff’s plea for relief could be granted only as to payments accruing after the date the judgment complained of was rendered.

Finally, defendant argues that the trial court erred in assessing part of the attorney fees incurred by plaintiff with respect to the petition for modification against defendant. In Illinois, attorney fees are not allowable absent a statute or contractual agreement providing therefor. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 166, 390 N.E.2d 859, 865.) Section 9 of the Paternity Act provides that if the trial court enters judgment to the effect that the defendant is father of the child in question, “the court shall take evidence upon the requirements of the child for its support, maintenance, education and welfare, and upon the expenses of the mother during pregnancy, confinement and recovery, and for reasonable attorney’s fees and shall enter an order with respect thereto.” (111. Rev. Stat. 1981, ch. 40, par. 1359.) Without further reference to the subject of attorney fees, section 9 further provides that the court may make new or supplementary orders “for the support, maintenance, education and welfare” of the child as from time to time the court deems necessary. (111. Rev. Stat. 1981, ch. 40, par. 1359.) Defendant argues that section 9 authorizes an award of attorney fees only for the initial determination of paternity and matters incident thereto, including support, but not for a subsequent petition for modification. Defendant urges for comparison section 508 of the Illinois Marriage and Dissolution of Marriage Act, which specifically provides for attorney fees incident to modification proceedings. (111. Rev. Stat. 1981, ch. 40, par. 508.) Defendant argues that the legislature is cognizant of the fact that attorney fees may be incurred in a modification proceedings, as evidenced by the latter enactment, and that the legislature’s failure to do so in section 9 of the Paternity Act suggests that the legislature did not intend to allow fees in modification proceedings under the Paternity Act. Plaintiff responds that if we conclude that the Paternity Act does not provide for attorney fees for modification proceedings, attempts to obtain modification of support provisions would be seriously deterred at the expense of the child.

Rules of statutory construction are useful only where there is doubt as to the meaning of a statute. A court may not alter that meaning beyond the clear import of the language employed. (Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 755, 442 N.E.2d 1374, 1377.) We find that section 9 of the Paternity Act is not ambiguous on the issue of allowance of attomey fees in modification proceedings. And, since there is no statutory or contractual obligation for the payment of such fees, we conclude that none are allowable. Furthermore, there is no showing in the case at bar that plaintiff requested the State’s Attorney to represent her, which she was at liberty to do under the provisions of section 4 of the Paternity Act (HI. Rev. Stat. 1981, ch. 40, par. 1354). We are quite aware that to construe the Paternity Act in this restrictive manner tends to defeat the primary purpose of the Paternity Act at the expense of the welfare of the child. Nevertheless, the award of attorney fees in modification proceedings instituted under the Paternity Act is a matter for legislative enactment and not judicial fiat.

In view of our determination that the trial court improperly awarded plaintiff attorney fees in the instant case, it is unnecessary that we consider defendant’s final contention that the evidence did not show defendant’s ability to pay plaintiff's attorney fees, or plaintiff’s inability to pay them.

For the foregoing reasons, the judgment of the circuit court of Madison County awarding plaintiff $150 per month as child support retroactive to October 25, 1977, is affirmed, and that portion of said judgment ordering defendant to pay plaintiff’s attorney fees in the amount of $2,325 is reversed.

Affirmed in part and reversed in part.

EARNS and WELCH, JJ., concur.


author: JUSTICE WELCH

text:
    PENNY G. BARNETT, Plaintiff-Appellee, v. WILLIAM JOSEPH CLARK, Defendant-Appellant.
    Fifth District
    No. 82—314
    Opinion filed April 14, 1983.

      Charles H. Stegmeyer, of Storment, Stegmeyer and Read, of Belleville, for appellant.
    David R. Smith, of Nehrt, Sachtleben and Fisher, of Chester, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This interlocutory appeal by permission is taken from an order of the circuit court of Randolph County denying defendant’s motion to dismiss the plaintiff’s paternity action against him. (87 Ill. 2d R. 308.) The question of law identified by the trial court for our resolution, and described as one of first impression in Illinois, is whether the two-year limitation contained in section 4 of the Paternity Act (111. Rev. Stat. 1981, ch. 40, par. 1354) is tolled during the minority of the mother of the illegitimate child. We agree with the trial court that it is.

In its order denying defendant’s motion to dismiss, the court found that the plaintiff gave birth to a child on July 9, 1978. She reached the age of majority on May 25, 1980, and instituted her paternity action on December 10, 1981, more than two years after the birth of the child. Section 4 of the Paternity Act provides that “[n]o such action may be brought after the expiration of 2 years from the birth of the child.” The defendant urges this court to apply this language literally and hold that all actions brought more than two years after an illegitimate child is born are untimely.

Our supreme court has recently addressed a similar issue in Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112. There, it was held that the one-year limitation period contained in the Dramshop Act (111. Rev. Stat. 1981, ch. 43, par. 135) was not tolled during a plaintiff’s minority. The court explained that the limitation period contained in the Act, unlike a general statute of limitations, functioned “as a limitation of the liability itself and not the remedy alone.” (92 Ill. 2d 1, 6, 440 N.E.2d 112, 115.) Such a provision is normally to be strictly construed. (Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447.) The supreme court found no indication that the General Assembly intended to relax this restriction for minors, at least in part because the Act had not been amended to change an earlier holding that the one-year limitation applied to minor plaintiffs. Lowrey v. Malkowski (1960), 20 Ill. 2d 280, 170 N.E.2d 147, cert. denied (1961), 365 U.S. 879, 6 L. Ed. 2d 191, 81 S. Ct. 1029.

It could be argued that the result reached in Demchuk should obtain here as well. Like the Dramshop Act, the Paternity Act creates a statutory cause of action, and the limitation in the Paternity Act has been held to be a condition of the right to bring a paternity action rather than simply a limitation upon such an action. (Cessna v. Montgomery; People ex rel. Margetich v. McCarroll (1981), 97 Ill. App. 3d 502, 423 N.E.2d 266; People ex rel. Getz v. Lang (1978), 61 Ill. App. 3d 933, 378 N.E.2d 398.) Moreover, the Paternity Act does not contain a provision which tolls the limitations period during a plaintiff’s minority. Compare Ill. Rev. Stat. 1981, ch. 70, par. 2 ("wrongful death).

However, whether a limitations period contained within a statute which creates a cause of action is tolled during the minority of a potential plaintiff requires examination of the legislative intent (Demchuk v. Duplancich; Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784) in addition to relevant policy considerations. (Serafini v. Chicago Transit Authority (1979), 74 Ill. App. 3d 738, 393 N.E.2d 1120.) In our opinion, the policies which support the Paternity Act indicate that the two-year limitation should be tolled during the minority of the mother of the illegitimate child.

Under section 4 of the Paternity Act, the right to bring an action is vested in the mother of the illegitimate child (Cessna v. Montgomery; People ex rel. Cullison v. Dile (1931), 347 Ill. 23, 179 N.E. 93), although if the child is receiving Public Aid, or if the mother is receiving Public Aid and declines to file a complaint, the Department of Public Aid may bring an action in the name of the child. According to that provision, an action may be instituted “only on the filing of a complaint in writing” by one of those parties. While this language should not be read as supplanting the broad powers of the court to appoint a next friend to pursue an action on behalf of a minor (Clarke v. Chicago Title & Trust Co. (1946), 393 Ill. 419, 66 N.E.2d 378), the fact remains that it is the mother upon whom the responsibility to decide to take action initially falls. As a practical matter, failing to toll the two-year limitation period during the minority of the mother of the illegitimate child would place the burden of taking action upon an infant, who is without the power to contract for legal services. It does not seem an exaggeration to say that a mother not in the custody of parents or other guardians or not receiving Public Aid would be without an effective remedy during the period of her minority, and if the child were born to a mother younger than 16 years the mother’s failure to act while she is still an infant would forever deprive her of recourse against the father of the child. This is not the sort of decision-making responsibility which a minor is competent to appreciate (see McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476), and we decline to place such a responsibility upon the plaintiff, especially where the interests which could be foreclosed are not only hers but are also those of the illegitimate child and the State with a possible future duty to provide for the child’s support.

We recognize that other jurisdictions which have considered the precise question presented here have reached contrary results. But, those decisions are readily distinguishable under the language of the relevant paternity statutes. For example, the statute under which the bastardy action in State ex rel. Ulen v. Pavey (1882), 82 Ind. 543, was brought specified that the plaintiff was properly the State, and not the mother. Thus, unlike in an action under our Paternity Act, the plaintiff could not be said to have been under any disability.

The New York courts, under a statute requiring a paternity action to be brought within two years of the birth of the child (N.Y. Fam. Ct. Act sec. 517(a) (McKinney)), held that that period was not tolled during the minority of the mother. (Matter of Anonymous v. Anonymous (1965), 48 Misc. 2d 949, 266 N.Y.S.2d 505; Matter of Howard v. Robinson (1969), 32 App. Div. 2d 837, 302 N.Y.S.2d 347; contra, Matter of Roe v. Doe (1968), 56 Misc. 2d 59, 287 N.Y.S.2d 292.) However, the New York Family Court Act unequivocally states that a paternity action “may be commenced by the mother, whether a minor or not” (emphasis added) (N.Y. Fam. Ct. Act sec. 522 (McKinney)), and therefore, the legislature, in enacting the two-year limitation, must have known that that period would apply to minors as well, unlike the General Assembly in outlining the limitations in our Paternity Act. It might be added that the result reached in these New York decisions, which has been described as inequitable (Matter of Lorraine M. v. Linwood M.S. (1981), 108 Misc. 2d 366, 437 N.Y.S.2d 580), is no longer the law, due to the addition of language to the Family Court Act allowing a minor to bring a paternity action within two years of her eighteenth birthday. N.Y. Fam. Ct. Act sec. 517(a) (McKinney).

Finding, then, no plain indications in the Paternity Act that the General Assembly intended the two-year limitation to apply to infant mothers of illegitimate children, and finding strong policy considerations against so applying that limitation, we hold that a mother has two years from the birth of the child, or from her attaining majority, whichever date is later, to bring a paternity action. (Serafini v. Chicago Transit Authority.) Under this standard, the plaintiff’s complaint was timely, as the trial court held. The decision of the circuit court of Randolph County is accordingly affirmed, and this cause is remanded for further proceedings on the complaint.

Affirmed and remanded.

HARRISON, P.J., and KASSERMAN, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH MUIR, Defendant-Appellant.
    Third District
    No. 81—631
    Opinion filed April 14, 1983.
    Carl W. Telford, of Law Offices of Telford and Driver, of La Salle, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Kenneth Muir, and a codefendant, Grace Wilson, not a party to this appeal, were indicted in the circuit court of Will County for theft by deception. The defendants were tried jointly, Muir receiving a jury trial and Wilson receiving a bench trial. Both defendants were convicted and Muir was subsequently sentenced in absentia to three years in the Illinois Department of Corrections. Muir has now appealed his conviction and sentence.

On December 5, 1979, the defendants were charged by indictment with two counts of theft by deception, a Class 3 felony pursuant to section 16 — 1(b) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(b)). Count I of the indictment charged that the defendants knowingly obtained by deception United States currency valued at more than $150, property of Bee Newspaper, Inc., with the intent to permanently deprive the owner of the use and benefit of said property. Count II of the indictment charged that the defendants knowingly obtained control by deception of Bee Newspapers valued at more than $150, property of Bee Newspaper, Inc., utilizing said property in such a manner as to permanently deprive the owner of the property’s benefit.

At trial, the testimony revealed that in August 1978, Lee Crittenden, president and general manager of Bee Newspaper, Inc., contracted with the defendants to utilize their delivery service in distributing Bee Newspapers in households in various areas.

Several of the defendants’ employees who assisted in the newspaper delivery testified that on various occasions throughout the latter half of 1978 and during 1979 more than two-thirds of the Bee Newspapers received by the defendants were not delivered. The defendants were compensated by Bee Newspaper, Inc., for their delivery services at the rate of four cents per newspaper, receiving from 10 to 15 thousand copies for delivery weekly.

The employees stated that the undelivered newspapers were occasionally sold to a paper yard and stacks of the newspapers had been observed in a dumpster at Grace Wilson’s residence. Business records from the paper yard indicated that on numerous occasions the defendants sold large quantities of paper to the yard under various aliases. During this time, Mr. Crittenden stated that the defendants assured him and his wife that delivery was going well.

Kenneth Muir testified that he seldom picked up Bee Newspapers for delivery and rarely spoke with Mrs. Crittenden. He also claimed that there was no delivery problem until January of 1979. At that time, Muir informed Bee Newspaper, Inc., of the problem and part of his compensation was withheld. As for the use of the dumpster, Muir stated that the dumpster was utilized to dispose of Monroe catalogs, Monroe being another of the defendants’ clients.

In addition, Muir and his brother James Muir testified that James had subcontracted to deliver Bee Newspapers employing an extensive crew of workers who assisted him in his delivery of between 5,000 to 8,000 Bee Newspapers per week.

The jury returned a verdict with respect to Kenneth of guilty on both counts of theft by deception, as did the trial court with reference to Grace Wilson. Subsequently, the court vacated the guilty verdicts with respect to count II of the indictment. Grace Wilson was sentenced to 30 months’ probation and ordered to pay $5,000 in restitution. Kenneth Muir was sentenced in absentia to three years in the Illinois Department of Corrections after voluntarily absenting himself from the jurisdiction of the trial court. No post-trial motions were filed.

Before reaching the issues of error alleged by the defendant, Kenneth Muir, to have occurred at trial, we shall deal with the State’s assertion that this court does not have jurisdiction to determine the merits of the defendant’s appeal.

The State contends that a case may not be taken to a reviewing court until a final judgment has been rendered on the merits including the imposition of a definite and certain sentence. In the case at hand, the defendant was sentenced in absentia and, therefore, pursuant to section 115 — 4.1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 115 — 4.1), he may be entitled to a new sentencing hearing upon application to the trial court if he can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. The State concludes the relief created by the statute precludes the defendant's conviction and sentence from being considered a final and appealable judgment.

None of the case law cited as authority by the State in support of its jurisdictional argument indicates that the right to request a new sentencing hearing by a defendant sentenced in absentia affects the finality of his judgment of conviction or imposition of sentence. Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371; People v. Wasilewski (1978), 66 Ill. App. 3d 1, 383 N.E.2d 31; People v. Culhane (1975), 34 Ill. App. 3d 158, 340 N.E.2d 63.

The defendant has never requested a new sentencing hearing in the trial court and has elected to pursue his right of appeal in this respect, thereby waiving any right to request a new sentencing hearing under section 115 — 4.1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). This court, therefore, has jurisdiction to determine the merits of the defendant’s appeal.

The defendant claims that a number of errors were committed by the trial court which should result in the reversal of the defendant’s conviction and a remand of the case for a new trial. These alleged errors include: (1) the admission into evidence of certain receipts for paper received by the FSC Paper Corporation, the paper yard which testimony revealed purchased Bee Newspapers from both of the defendants, Muir and Wilson, said admission being a violation of the hearsay rule and not within the business records exception; (2) the admission into evidence of the testimony of Clyde Ruble, a Bolingbrook, Hlinois, police officer, indicating that he had only received the Bee Newspaper on one occasion at his home in Bolingbrook during the period of its distribution, said testimony being irrelevant and prejudicial; (3) the admission into evidence of various statements made by the codefendant, Wilson, said statements being hearsay and not within the co-conspirator exception; (4) the giving of Illinois Pattern Jury Instructions, Criminal, No. 3.14 requiring the jury to consider any evidence of other crimes committed by the defendant for the limited purpose for which it was received, no evidence of other crimes having been presented at trial; and (5) the trial court’s failure to adequately explain said instruction to the jury at their request. In addition, the defendant argues that his conviction should be reversed because there was insufficient evidence to establish a prima facie case of theft by deception against him.

Alternatively, the defendant requests that this cause be remanded for a new sentencing hearing because the trial court erred in sentencing him to three years in the Department of Corrections, said sentence being grossly disproportionate and an abuse of discretion.

Failure to preserve an alleged error in a defendant’s post-trial motion waives consideration of the issue on appeal even though an objection was made during trial. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027; People v. Brabson (1977), 54 Ill. App. 3d 134, 369 N.E.2d 346.) However, if the error rises to the level of plain error, such error shall be considered by the reviewing court despite the defendant’s failure to record his objection and preserve the record for review. People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.

Defendant Muir did not file a post-trial motion thereby failing to preserve for our review the errors he alleges occurred during trial. Furthermore, upon a review of the record, we find that these errors when considered either individually or collectively would not rise to the level of plain error. None of the cited errors would either result in a serious injustice being done to the defendant or injure the integrity or reputation of the judicial process, thereby depriving the defendant of a fair trial. People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.

In considering the sufficiency of the evidence against the defendant, the law states that a jury’s verdict will not be set aside by a reviewing court unless the evidence is so palpably contrary to the verdict or so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Seiber (1971), 76 Ill. App. 3d 9, 394 N.E.2d 1044; People v. Henderson (1976), 39 Ill. App. 3d 502, 348 N.E.2d 854.) The evidence in this case when viewed in its entirety is not closely balanced; the great weight of it is against the defendant and establishes his guilt beyond a reasonable doubt.

Therefore, because of the defendant’s failure to preserve the record for our review and the weight of evidence establishing his guilt beyond a reasonable doubt, we find that the defendant’s conviction should be upheld.

As for the defendant’s request for a new sentencing hearing, we see no merit in his argument. The trial court’s decision in regard to sentencing is entitled to great deference and should not be altered unless a clear abuse of discretion can be shown. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record supports the trial court’s' conclusion that defendant Muir was the primary force responsible for the criminal activity involved in this case. In addition, the defendant’s voluntary absence from the sentencing hearing prevented the court from considering any factors in mitigation which might have otherwise been proffered by the defendant.

Accordingly, we affirm the judgment of the circuit court of Will County with respect to the defendant, Kenneth Muir.

Judgment affirmed.

BARRY, P.J., and ALLOY, J., concur.


author: JUSTICE REINHARD

text:
    THE FIRST NATIONAL BANK OF CHICAGO, Special Guardian for the Estate of Jason Toepper, a Minor, et al., Plaintiffs-Appellants, v. G. SHERMAN PORTER, M.D., et al., Defendants-Appellees.
    Second District
    No. 82—282
    Opinion filed April 15, 1983.
    Rehearing denied May 10, 1983.

      James H. Canel, Ltd., and Jack Josephy, both of Chicago, for appellants.
    Stanley J. Davidson, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, H.C. Griffin, of Lord, Bissell & Brook, Wildman, Harrold, Allen & Dixon, and Clausen, Miller, Gorman, Caffrey & Witous, P.C., all of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court;

Plaintiffs, First National Bank of Chicago (as special guardian for the estate of Jason Toepper, a minor), Jane Toepper and Jim Toepper, appeal from a directed verdict in favor of defendant, Richard Randall Adams, M.D., at the close of plaintiffs’ case and from directed verdicts in favor of all other defendants, G. Sherman Porter, M.D., McHenry Hospital (hospital), Ruth Miller Ramsey, R.N., and Lee Lull Ulrich, R.N., entered after a jury failed to reach a verdict. The plaintiffs’ complaint alleged that all defendants committed medical malpractice during the delivery and birth of Jason Toepper on January 24, 1978, or during the treatment leading up to his delivery. They claim defendants’ actions resulted in severe brain damage to Jason.

Plaintiffs raise the following issues on appeal: (1) did the trial court lack authority to enter directed verdicts after discharging the jury and declaring a mistrial; (2) did the trial court erroneously enter directed verdicts under the Pedrick standard; (3) did the court commit trial errors which prejudiced plaintiffs; and (4) should the trial court have directed a verdict on liability for plaintiffs.

We summarize only the facts necessary for an understanding of the issues decided. Ronald Cooker, R.N., the director of nursing services at defendant hospital, called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), recodified as section 2— 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102) testified that the hospital had an obstetrical nursing manual which delineated the responsibilities of obstetrical nurses. The nurses were expected to follow the guidelines in the manual.

The manual provided that nurses were to do a vaginal pre-check examination of women who came to the obstetrical department (department) believing themselves to be in labor. The examination was to check dilation of the cervix and to determine if the woman was in active labor. The nurse was then to report the findings to a physician, who would determine whether the woman should be sent home or kept at the hospital. The purpose of this policy was stated to be the protection of the hospital, the nurses, and the patient in case something happened to the patient after she was sent home.

Cooker testified that he learned the nurses were not, in all cases, checking with a doctor before sending women home, and, that he discussed this with Dr. Porter, the chairman of the department, in the fall of 1977. Dr. Porter told him they had always done things that way and that it had never been a problem.

Plaintiffs called defendant G. Sherman Porter, M.D., under section 60. He testified he- was a certified specialist in obstetrics and gynecology and chairman of the department at the hospital. In 1977 he was vice-president of the hospital’s medical staff and was president of that staff in 1978.

When Dr. Porter arrived at the hospital in 1965, the nursing service had a “standing sort of thing” where a nurse would do the precheck vaginal examination, determine if the woman was in labor, and if she were not, the nurse would send her home. In April 1977 a new procedure, which Dr. Porter agreed to, came into effect. Under it the nurses no longer had a judgment role in deciding whether to discharge. Rather, they were to call a doctor who would make that decision. He stated that he expected the obstetrical nurses to call him day or night under this procedure, when he was the on-call physician. He testified he never told the nurses not to bother him at night.

He testified that, prior to January 24, 1978, he had provided the department with Jane Toepper’s prenatal record. He said a doctor was available at all times, to be called by the department’s nurses in case something that only the doctor knew about had happened between the time the prenatal report was given to the department and the time the woman came to the labor room.

Dr. Porter’s standing orders called for electronic fetal monitoring for patients in labor. These orders applied to women in active labor.

Dr. Porter testified that he believed it was within the standard of care for a nurse to conduct a pre-check examination.

Defendant Ruth Miller Ramsey, R.N., testified under section 60 examination. She testified that no physician had taught her how to do vaginal pre-check examinations. She had developed her own technique. She stated that the progress of a woman’s labor could be determined by performing these examinations over a period of time and by comparing the changes that occurred.

Nurse Ramsey testified she had no independent recollection of Jane Toepper’s arrival at the hospital at 2:15 a.m. on January 24, 1978. Referring to the hospital record, she determined that she performed a vaginal examination on Jane Toepper at 2:15 a.m. Jane Toepper was admitted at 2:15 a.m. and discharged at 2:30 a.m. The record noted no dilation of the cervix, thick effacement (less than 50% effaced), that the baby was at zero station, and that she could not determine which part of the baby was coming down the birth canal first. She charted the fetal heart tones (FHT) as 132 per minute. She measured them by use of either a Dopp tone device or a fetoscope. She charted Braxton Hicks contractions (false labor) at 2:30 a.m. The chart indicated that Jane Toepper’s membranes had been stripped on January 23, 1978. She did not call a physician before discharging her. She was unaware of nursing manual requirements that a physician be contacted before discharge.

She testified that she did not know whose handwriting appeared on the “Delivery and Newborn Record” or who wrote the Apgar scores. Apgar scores show the condition of the baby at one and five minutes after birth. A score of 10 is perfect and seven is normal. Jason’s scores were recorded as seven at one minute and nine at five minutes.

Plaintiffs called defendant Richard Randall Adams, M.D., under section 60. He was employed by the McHenry Medical Group, a firm of which Dr. Porter was a member.

Dr. Adams stated Dr. Porter had a verbal rule that nurses were to make admission decisions based on the vaginal examination they conducted. The written orders were contrary to this verbal understanding.

Dr. Adams first saw Jane Toepper December 27, 1977. He also saw her January 23, 1978. Up to this time the pregnancy had been uneventful. The baby was at zero station and coming into the birth canal. Jane Toepper’s cervix was 80% effaced. He stripped the membranes to “enhance” delivery. He felt the baby’s head through the bag of waters, and therefore knew the head was the first part of the baby to enter the birth canal. The cervix was favorable to delivery and he expected contractions would start in about 24 hours.

Dr. Adams was on call the night of January 28-24, 1978, and left a number where he could be reached. He was first contacted between 5:20 a.m. and 5:30 a.m. January 24,1978.

He stated that only in two rare instances would a woman who was 80% effaced have a thick cervix: (1) if she was pushing against an undilated cervix; or (2) if she was having a dysfunctional labor. Both cases require the patient to be in labor. It would be important for a doctor to know if this later thickening had occurred.

When he was telephoned between 5:20 and 5:30 a.m. he was informed Jane Toepper was at plus two station (i.e., the baby was making progress down the birth canal from zero station), that the bag of waters had broken, and that meconium (baby’s fecal matter) was in the amniotic fluid. Meconium is a sign of possible fetal distress.

Upon his arrival at the hospital, he told Jane Toepper to push. When he examined her, he found fresh meconium. Fresh meconium meant “something acute” had happened within the previous 12 to 24 hours. With meconium present, it is important to check the FHT. He testified that if there was a change in the FHT from the onset to the conclusion of the contraction, called late deceleration, it would indicate fetal distress.

On delivery, he noticed meconium was present and that the umbilical cord was wrapped tightly around Jason’s neck. This would deprive him of oxygenated blood and cause a decrease in the FHT. He stated an infant can sustain a lack of oxygen for eight to 15 minutes. He removed the cord from around Jason’s neck allowing oxygenated blood to flow through it from his mother. The meconium had not stained the skin, so it had not been there a long time.

Dr. Adams suctioned Jason’s mouth so he wouldn’t breath meconium. He then suctioned him again. Jason did not make as great a respiratory effort as desired, so he suctioned Jason again above and below the vocal cords. Not much meconium was found below the vocal cords.

Jason didn’t cry at birth, had poor color, and didn’t respond to the touching of his foot immediately, though it was less than one minute from birth before the first response from him. Dr. Adams gave Jason 100% oxygen at 40 breaths per minute for four minutes. Jason’s re- ■ sponse to the oxygen indicated he lacked adequate oxygen levels.

Dr. Adams delivered Jason at 5:56 a.m. and the placenta at 6 a.m. Jason showed continuing improvement after suctioning. Dr. Adams acknowledged the hospital records were inconsistent with his testimony in that they indicated Jason had been born at 5:45 a.m. and that Dr. Adams had arrived at 5:46 a.m. Also, the record indicated Jane Toepper had left the delivery room prior to 6 a.m. which is the time the record indicates the placenta was delivered.

Plaintiffs called defendant Lee Lull Ulrich, R.N., under section 60. She was an experienced obstetrical nurse. Nurse Ulrich was unaware of the policy in the nursing manual requiring nurses to check with a doctor before discharging a woman. The nurses always performed the pre-check and sent the woman home if they determined she was not in labor. There was a verbal understanding not to call the doctors at night.

She testified she had no independent recollection of Jason’s delivery. She filled out the “Progress of Labor” chart which indicated labor began at 2:15 a.m. and that the bag of waters and fluid were meconium stained. She did not use an electronic fetal monitor to check FHT even though the standing orders provided for its use for normal patients in labor. She testified she believed checking FHT with either a Dopp tone or a fetoscope was proper under the standing orders.

At 5:15 a.m. she knew that birth was imminent. Nurse Ulrich did not know if the Apgar scores were in her handwriting.

Nurse Ulrich did not see Jane Toepper at 2:15 that morning. The records do not indicate any emergency or any fetal distress during delivery.

Plaintiff Jane Toepper testified that when she became pregnant she went to the McHenry Medical Group for obstetrical care. Her due date was January 24, 1978. She awoke at midnight on January 24 with pains. She was sure they were labor pains because they were in a pattern and getting stronger. She went to the hospital around 2 a.m. Nurse Ramsey did a vaginal examination and sent her home saying the baby would not be born for a couple more days.

She went home, but couldn’t sleep because the pains were bad. She called the hospital again and they told her to come in if it would make her feel better. A few minutes later she called again. While the phone was ringing, her bag of waters broke and she saw “green water, dark water” on the floor. She hung up before anyone answered and then went back to the hospital.

At the hospital Nurse Ramsey or Nurse Ulrich said “My God, the baby is here, it is going to be born.” Nurse Ramsey then told her to blow out and not to bear down. When Dr. Adams arrived, he told her to push but she was exhausted from blowing out. She said Jason did not cry when he was born.

She testified Jason had no unusual sicknesses prior to October 27, 1978. She noticed he had a twitch on that afternoon.

On cross-examination she admitted Jason had gone to the emergency room for illnesses, once in the summer, and once in early September with a temperature of 102 or 103. She also stated he had a fever of about 103 on October 27, 1978.

Plaintiff Jim Toepper testified that when-he brought his wife in after 5 a.m., Nurse Ulrich asked, “Why didn’t someone 'wake me?” (Apparently she had been sleeping when Jane Toepper came in at 2:15 a.m.) He stated he never heard a beeping sound during the delivery (a Dopp tone used to measure the FHT would beep); that the nurses did not listen to his wife’s abdomen with anything; but that Dr. Adams did listen to her abdomen.

Plaintiffs called Grace Blake and Joyce Sweeney who babysat for Jason on several occasions between March 1978 and October 27, 1978. Blake testified she was concerned since Jason would stiffen his back and cry for about 10 seconds periodically. He never grasped a bottle or rattle, or sat up, or attempted to lift himself or rollover. Sweeney stated Jason had to be propped up when she put him in a walker in October because he could not sit by himself. His head wobbled, he could not hold himself up, and he tired within 15 minutes of being placed in the walker. He could not move the walker. He never grasped toys, crawled, or sat unassisted.

August M. Rossetti, M.D., testified for plaintiffs that he was Jason’s pediatrician. He saw Jason soon after birth and he appeared normal in muscle tone, color, cry, skin, and head size. His reflexes, including neurological reflexes, were normal. He saw Jason two weeks after birth and he appeared normal. He was well on March 20, 1978. On April 3, 1978, Jason had diarrhea and a temperature of 103. He was fine up through early July when he was taken to the emergency room with a 103° temperature and a breathing problem. He was well through September 5, 1978, whereupon he had an upper respiratory infection.

On October 27, 1978, Dr. Rossetti saw Jason. He had an acute febrile (fever) illness, pharyngitis (throat infection) and transient clonus (intermittent jerking). Test results showed the presence of Hemophilus influenza. On November 2, 1978, Rossetti referred Jason to Dr. Tomasi. Dr. Rossetti’s discharge diagnosis was (1) Hemophilus influenza, nasopharyngitis and (2) seizure disorder residual of birth injury. Dr. Rossetti testified he relied on Dr. Tomasi’s opinion in writing this diagnosis.

Thomas W. McElin, M.D., an obstetrician, testified for plaintiffs. He testified that the 2:15 a.m. examination by Nurse Ramsey was a deviation from the nursing standard of care because it only lasted 15 minutes and true labor cannot be diagnosed in that time and because effacement had to be greater than Nurse Ramsey observed based on the prior day’s action by Dr. Adams. He stated it was a deviation from the standard of care to tell Jane Toepper to blow out while waiting for the doctor.

Dr. McElin said Dr. Porter deviated from the standard of care when, as chairman of the department, he did not inform the nurses of the written procedure requiring a doctor’s decision on discharging a patient, and when he failed to correct the procedure the nurses were following when he learned of it.

He stated there was a deviation from the standard of care by the nurses in not using the electronic fetal monitor during the 2:15 a.m. examination and in failing to keep Jane Toepper in the hospital with continuous fetal monitoring. He testified that the hospital, through its director of nursing services, deviated from the standard of care in failing to tell the nurses of the written policy and in failing to insure that they followed it. He testified it was a deviation from the standard of care by the obstetricians for their prenatal record not to include the fact that Jane Toepper experienced cardiac arrythmia in delivery of her other child. However, he acknowledged on cross-examination that the hospital record did contain a reference to that fact which he had not noticed before.

On cross-examination, Dr. McElin stated there was no way of knowing precisely when the meconium was passed except that it had to have been passed prior to the time of the rupture of the membrane, nor was there any test that could prove whether hypoxia occurred between the onset of labor and delivery. On redirect, he indicated he believed “hypoxia is known by the amount of resuscitation that was required.” He then answered “yes” to the question whether that was “evidence of hypoxia which occurred prior to birth and during the birth process.” He testified he could not find any fault with the care and treatment rendered to Jane Toepper by Dr. Adams.

Lawrence G. Tomasi, M.D., a pediatric neurologist, testified for plaintiffs. He examined Jason in early November 1978. He diagnosed hypoxia ischemia (lack of oxygenated blood to the brain) occurring sometime during the birth process as the cause of Jason’s problems. He said lack of sufficient blood flow would cause stress and cause meconium to be released. He testified that the birth process is always stressful for a child; that it is optimal for the child to “come out crying and screaming and pink. Anything less than that is less than optimal.” Jason was less than optimal when he came out. He had greater stress than is optimal. He was “stressed sufficiently to cause everybody concern and it certainly caused some dysfunction.” Dr. Tomasi testified it was “hard to say one way or another whether this caused a severe injury, but it certainly is a likely candidate for that severe injury.” He stated that he and Dr. Rossetti “related both [Jason’s] seizures and his delayed development to difficulties that he had in and around the time of labor and delivery.” Jason has severe brain damage and will require continual care for the remainder of his life.

Plaintiffs called several other witnesses whose testimony is not material to the issues raised on appeal. After plaintiffs rested their case, a directed verdict was entered for Dr. Adams.

Defendants presented expert testimony that the injury to Jason was not caused by hypoxia at birth. Defendants called other witnesses whose testimony is not relevant to the issues raised on appeal. At the close of all the evidence, the remaining defendants moved for directed verdicts and the plaintiffs sought a directed verdict as to liability. The court reserved a ruling on all motions. The jury failed to reach a verdict and was discharged. Subsequently, verdicts were directed for all defendants.

Plaintiffs first contend that because a mistrial “vitiates all prior proceedings” the trial court was without authority to consider defendants’ reserved motions for directed verdicts. We note, initially, that this argument does not go to Dr. Adams, in whose favor a verdict was directed at the close of plaintiffs’ case.

Section 68.1 (2) and (3) of the Civil Practice Act recodified as amended as section 2 — 1202(b) and (c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1202) provided, in part:

“(2) Relief desired after trial in jury cases, heretofore sought by reserved motions for directed verdict or motions for judgment non obstante veredicto, for judgment notwithstanding the verdict, in arrest of judgment or for new trial, must be sought in a single post-trial motion. Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury, even though no motion for directed verdict was made or if made was denied or ruling thereon reserved. ***
(3) Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days or any extensions thereof. ***” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, pars. 68.1 (2), (3).

Plaintiffs argue that section 68.1 does not allow the trial court to grant a post-trial motion for a directed verdict after the jury has failed to reach a verdict and a mistrial has been declared where ruling on the directed verdict motion was reserved at the close of all the evidence. However, the clear intent of the statute is to allow such a post-trial motion. The Joint Committee Comments to this statute, which may be used in determining legislative intent (People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 49, 445 N.E.2d 270), demonstrate such an intent. They explain these provisions as follows:

“By revised section 68.1(2), the right to judgment after trial when, under the evidence, the court would have had the duty to direct a verdict exists whether or not the jury is able to agree on a verdict. Accordingly, a provision has been inserted in subsection (3) to provide a time for filing post-trial motions in cases wherein no judgment on a verdict is possible because of the disagreement of the jury. The effect of subsections (2) and (3) is to continue, with slight modification, the practice authorized by the 1937 amendment to former section 68(3)a of the Act whereby a party could obtain a judgment after trial even though the jury had disagreed and was discharged without rendering a verdict.” (Emphasis added.) Ill. Ann. Stat., ch. 110, par. 68.1(2), (3), Joint Committee Comments, at 33 (Smith-Hurd 1968).

Section 68.1 has been held to allow the trial court to grant judgment on a post-trial motion where the jury failed to reach a verdict. (Upgrade Corp. v. Michigan Carton Co. (1981), 97 Ill. App. 3d 1132, 1135, 423 N.E.2d 1277.) Similarly, we hold that the statute allows the court to grant a directed verdict on a post-trial motion where ruling on the directed verdict motion had been reserved before the case went to the jury and where the jury then failed to reach a verdict. It is apparent from the Joint Committee Comments, and from the language of the statute itself, that the statute is intended to allow the trial court to take such action.

The two cases cited by plaintiffs are inapposite. In Papageorgiou v. F.W. Woolworth Co. (1978), 66 Ill. App. 3d 873, 383 N.E.2d 1346, the basis of the appellate court’s decision was that an unbiased jury had ultimately decided the case and therefore plaintiff had not been prejudiced by the declaration of a prior mistrial granted during the selection of a different panel of jurors. In Haywood v. Swift & Co. (1964), 53 Ill. App. 2d 179, 202 N.E.2d 880, the appellant sought to have the trial court enter judgment based on a special interrogatory answered by the jury where the jury failed to return a general verdict and the court declared a mistrial. The appellant urged that the answer to the special interrogatory was a special verdict. The appellate court held that no authority existed to allow entry of judgment on a special interrogatory. Thus, the question whether application of the directed verdict standard entitled defendant to a directed verdict was not an issue in that case.

Plaintiffs’ next contention is that the trial court erroneously applied the Pedrick standard when it directed verdicts for defendants. In order to properly direct a verdict, all of the evidence, when viewed in its aspect most favorable to the opponent, must so overwhelmingly favor the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

In a medical malpractice action, plaintiff, by use of expert testimony, must establish the standard of care applicable to physicians and that “judged in the light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff.” (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301.) A hospital is required to conform to the legal standard of reasonable conduct in light of the apparent risk, and expert testimony is essential to the proof of the standard of professional care. (Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 662, 343 N.E.2d 589.) For the purpose of this appeal, all defendants, except for Dr. Adams, concede that sufficient evidence was presented to create a factual question for the jury whether defendants deviated from the standard of care. We, too, proceed on the basis that plaintiffs’ evidence was sufficient to withstand a directed verdict on the issue of the defendants’ deviation from the standard of care. Nonetheless, defendants contend that the directed verdicts were proper based on plaintiffs’ failure to prove by expert testimony that defendants’ allegedly negligent acts proximately caused Jason Toepper’s injuries.

Plaintiffs respond that proximate cause is normally proved by medical evidence, but deny that “any case requires a medical expert to establish medical cause by repetition of a shibboleth or formula.” They maintain that proof of causation “can be established by hypothetical questions, and by the assemblage of facts.” They further contend that “once it is realized that the operative legal cause here is the failure to make timely diagnosis and failure to make timely intervention, the fact that the record in this case overwhelmingly establishes the required connection between defendants’ conduct and the effect becomes manifest.” Plaintiffs also argue that numerous trial errors caused by defendants “prevented the trial court from admitting evidence of cause.”

Appellate court decisions of this State have stated that in order to recover in a medical malpractice action, a plaintiff must prove by expert testimony that defendant’s breach of the standard of care caused the plaintiff’s injury. (Carman v. Dippold (1978), 63 Ill. App. 3d 419, 425, 379 N.E.2d 1365; Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634, 662, 343 N.E.2d 589; Lundahl v. Rockford Memorial Hospital Association (1968), 93 Ill. App. 2d 461, 464-65, 235 N.E.2d 671; cf. York v. Stiefel (1982), 109 Ill. App. 3d 342, 350-52, 440 N.E.2d 440, appeal allowed (1983), 92 Ill. 2d 579.) Generally, expert testimony is needed to support a charge of malpractice because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279.) We believe that rationale is equally sound and applicable to the element of causation in a medical malpractice case.

It is plaintiffs’ contention that the numerous deviations from the standard of care by defendants resulted in the failure to make a timely diagnosis of Jason’s distressed condition during the birth process and the failure to make timely medical intervention to prevent Jason’s injury. However, it is clear from this record that plaintiffs’ expert obstetrical witness only offered an opinion on the deviations from the standard of care, but no expert evidence was adduced that these deviations caused Jason’s injury. The critical missing link was the lack of expert testimony that these deviations caused the injury or that the defendants deviated from the standard of care by their failure to make a timely diagnosis of Jason’s distressed condition during the birth process and that the failure to make timely intervention caused Jason’s injury.

In sum, Dr. McElin testified that the defendants deviated from the standard of care. Dr. Tomasi testified that hypoxia during the birth process caused Jason’s injuries. However, neither these experts, nor any other expert, testified that the deviations from the standard of care caused the hypoxia or that the defendants’ failure to timely diagnose or intervene caused Jason’s injury. From our examination of the voluminous record in this case, we reject plaintiffs’ contention that the record “overwhelmingly establishes the required [causal] connection between defendants’ conduct and the effect.” To the contrary, there was no expert medical testimony of a causal connection. From our reading of the record, the medical evidence is highly technical, further illustrating the importance of the requirement of expert testimony on causation to assist the trier of fact in medical malpractice cases.

In Carman v. Dippold (1978), 63 Ill. App. 3d 419, 425, 379 N.E.2d 1365, plaintiff’s expert testified that “[b]ased on the delivery room history *** the 10 minutes taken to deliver the aftercoming head resulted in the lack of oxygen” which caused the baby’s death. No such expert testimony was presented here. In the absence of expert testimony that any act by any of the defendants could be said, within a reasonable degree of medical certainty, to have caused Jason’s injuries, it would be impossible for a jury verdict in plaintiffs’ favor to stand. Thus, the directed verdicts were appropriate. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 252-53, 381 N.E.2d 279; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

The only evidentiary errors raised by plaintiffs that we must address, which arguably bear on the issue of causation, are the trial court’s limitation of plaintiffs’ questioning of Dr. Tomasi about electronic fetal monitoring and limitation of their questioning of Dr. Adams as to how he would have acted had Jane Toepper’s 2:15 a.m. visit been called to his attention.

Plaintiffs argue that the failure to use the monitor deprived them of documentation of the extent of Jason’s fetal distress. Because of this, they argue, the court erred in sustaining objections to plaintiffs’ questions “designed to explore this problem.” Plaintiffs’ question asked the doctor if, assuming that “a pediatric neurologist diagnosed the condition *** to be caused by a hypoxic ischemic event, which occurred during labor and delivery,” he had an opinion “as to whether or not fetal distress was ongoing?” Defendants’ objection that the question asked the witness to assume the controlling issue in the case was sustained. In an offer of proof, the witness answered that he could not “quantify the degree of distress *** unless [he had] a way of monitoring it.” He said that electronic fetal monitoring is the way you assess a baby’s well-being and that if fetal distress persists, intervention would be necessary to relieve it.

Whether to admit evidence or not is within the sound discretion of the trial court, and the trial court’s decision will not be reversed absent a clear abuse of discretion. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 411, 444 N.E.2d 220; Johnson v. Tipton (1982), 103 Ill. App. 3d 291, 297, 431 N.E.2d 464.) An offer of proof is useful only if it demonstrates the admissibility of the evidence foreclosed by sustaining the objection. (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 91, 438 N.E.2d 924; Snedden v. Lavenka (1981), 92 Ill. App. 3d 979, 985-86, 416 N.E.2d 1097.) Here, the offer of proof does not demonstrate the admissibility of the proffered evidence. Plaintiffs asked if the doctor had an opinion whether the fetal distress was ongoing. The offer of proof showed that the doctor did not know whether it was ongoing. We cannot say the trial court abused its discretion in precluding plaintiffs’ witness from answering since his answer, as disclosed by the offer of proof, had no probative value. (Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 313, 379 N.E.2d 773.) Even if admitted, the evidence would not have affected the issue of causation. The offer of proof did not contain evidence of expert testimony which would establish that the deviations from the standard of care were the cause of Jason’s injury.

Plaintiffs also argue that it was error to bar as speculative Dr. Adams’ testimony concerning what he would have done had he been notified before Jane Toepper’s discharge of the results of the 2:15 a.m. examination conducted by Nurse Ramsey. Plaintiffs contend this ruling excluded evidence of cause. However, the offer of proof discloses that Dr. Adams’ testimony on this point does not bear on the issue of causation.

In the offer of proof, Dr. Adams stated that since the nurse’s finding would have been in conflict with his earlier examination, he “very likely” would have recommended that Jane be kept at the hospital. He .would have had the nurse walk Jane, take FHT about every 15 minutes, and recheck her in half an hour or an hour. Plaintiffs then read a portion of Dr. Adams’ deposition which indicated that he had previously stated he “probably would have come in.”

This offer of proof shows that the precluded testimony dealt only with the actions Dr. Adams would have taken or actions he would have instructed the nurse to take. It is not an opinion that the failure to notify him was the cause of Jason’s injury. Accordingly, while the testimony may have been relevant to further show the nurses’ deviation from the standard of care, its exclusion was not prejudicial to the plaintiffs’ proofs on causation. See Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 559, 356 N.E.2d 779.

In addition to the plaintiffs’ failure to establish causation. Dr. Adams argues that the directed verdict in his favor was correct because no expert testimony indicated he deviated from the standard of care. Plaintiffs’ expert’s testimony that failure to include Jane Topper’s arrhythmia on the prenatal record sent to the hospital was a deviation from the standard of care was shown to lack a basis in the evidence when Dr. McElin acknowledged that a notation of heart “murmurs” was on the prenatal record. He further testified that he could not find any fault with the care and treatment of Jane Toepper by Dr. Adams. Therefore, the directed verdict in favor of Dr. Adams was proper because of the lack of expert testimony that he deviated from the standard of care (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301), as well as for the failure to prove causation.

In view of the correctness of the trial court’s ruling on all the defendants’ motions for directed verdict, it was, of course, proper to deny plaintiffs’ request for a directed verdict on liability.

For the foregoing reasons we affirm the directed verdicts entered in favor of defendants.

Affirmed.

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