text:
    ROBERT W. HUDSON et al., Plaintiffs-Appellees, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellant—(Mid-America Contractors & Builders, Inc., Defendant).
    Fourth District
    No. 4 — 83—0157
    Opinion filed August 25, 1983.

      Hull, Campbell, Robinson & Gendry, of Decatur (Thomas W. Gendry, of counsel), for appellant.
    Welsh, Kehart, Shatter & Hughes, P.C., of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns a suit for enforcement of a subcontractor’s mechanic’s lien against an owner of real estate which has been improved pursuant to a contract with a general contractor. The owner contends that it is entitled to a reduction in the amount of the lien, because of payments it voluntarily made to the United States after receiving notice that the United States had a tax lien against all monies owed to the general contractor. The trial court held that the owner was not entitled to a reduction. We agree.

On December 12, 1979, plaintiffs, Robert W. Hudson, Richard Betterton, and Charles Hankins, brought suit in the circuit court of Macon County against defendants, Caterpillar Tractor Company (Caterpillar) and Mid-America Contractors & Builders, Inc. (Mid-America). The suit arose out of a contract whereby Mid-America agreed to construct a building on land owned by Caterpillar. Plaintiffs sought to foreclose a subcontractor’s lien resulting from Mid-America’s failing to pay them for work they performed pursuant to the subcontract. After a bench trial, the circuit court entered a judgment of foreclosure on September 28, 1982, (1) finding plaintiff was entitled to recover from “Defendant” the sum of $20,513.41 which included interest in the amount of $5,068.97, (2) finding plaintiff had a lien in that amount upon the premises of Caterpillar, and (3) ordering a sale of the premises to satisfy the amount owed. Caterpillar appeals. We affirm.

The case was tried on stipulated facts. The contract between Caterpillar and Mid-America was executed on December 14, 1977. On September 13, 1978, and October 17, 1978, pursuant to 26 U.S.C. sec. 6323 (1976), the United States properly recorded tax liens against Mid-America in the respective sums of $7,249.87 and $15,444.43 arising under 26 U.S.C. sec. 6321 (1976). On October 26, 1978, the subcontract between plaintiffs and Mid-America was executed providing for a total price of $15,444.43. On December 26, 1978, the Internal Revenue Service served upon Caterpillar a notice of levy against any sums owed by Caterpillar to Mid-America. Plaintiffs complied with all statutory provisions necessary to perfect its claimed lien.

The original contract price between Caterpillar and Mid-America was $65,190. On June 16, 1978, without complying with its statutory duty to obtain affidavits of amounts owing to subcontractors (III. Rev. Stat. 1977, ch. 82, par. 5), Caterpillar paid directly to Mid-America the sum of $53,076 for work already performed. Thus, only $12,114 of the contract price remained unpaid. After receiving the notice of levy from the Internal Revenue Service, Caterpillar negotiated with that agency and obtained an agreement whereby the tax lien was released upon the payment by Caterpillar of the sum of $9,864. The theory of the agreement was that additional work at a cost of $2,250 had been arranged by Caterpillar to complete the work provided for in the original construction contract thus reducing the amount owed on it.

Caterpillar maintains that the case turns upon a determination as to priority of right to “moneys *** due [to Mid-America] under the original contract” (Ill. Rev. Stat. 1977, ch. 82, par. 21) between (1) the lien of the United States, and (2) the lien given by the aforesaid statutory provisions to plaintiffs as unpaid subcontractors. Caterpillar contends that, because a Federal tax lien has priority over a mechanics’ lien created by State law (United States v. Security Trust & Savings Bank (1950), 340 U.S. 47, 49, 95 L. Ed. 53, 56, 71 S. Ct. 111, 112-13; 26 U.S.C. sec. 6323(h)(2) (1976)), it should receive credit against plaintiffs’ lien for the $9,864 it paid to the United States in obtaining a discharge of the Federal lien. Caterpillar's analysis is incorrect for two reasons.

Section 21 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1977, ch. 82, par. 21) provides for unpaid subcontractors to have not only a lien against amounts owed by the owner to the general contractor, but also against the owner’s real estate improved. The judgment of foreclosure here referred only to the latter type of lien. Caterpillar was the owner, and the United States had no lien against Caterpillar’s real estate. No question of priority was involved as far as the lien foreclosed was concerned.

Protection is given to owners as to the maximum amount they may be required to pay to contractors and subcontractors, for work performed and materials furnished pursuant to a contract between the owner and the general contractor, by the following statutory provision:

“In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of such house, building or other improvement than the price or sum stipulated in said original contract or agreement, unless payment be made to the contractor or to his order, in violation of the rights and interests of the persons intended to be benefited by this act. ***” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 82, par. 21.

As Caterpillar’s previous payments to Mid-America had been made in violation of the rights and interests of plaintiffs by Caterpillar’s failure to obtain the required affidavits (Ill. Rev. Stat. 1977, ch. 82, par. 5) in making its previous payment to Mid-America, the fact that payment to discharge plaintiffs’ lien would require Caterpillar to pay to Mid-America and subcontractors more than the total contract price was not a defense which Caterpillar could have raised.

Moreover, we conclude that under the circumstances here, there were no monies owing to Mid-America pursuant to its contract with Caterpillar. Accordingly, there was no obligation of Caterpillar to Mid-America to which the Federal lien upon Mid-America’s property might attach. Whether Mid-America had a property right against Caterpillar was a question of State law. (Aquilino v. United States (1960), 363 U.S. 509, 4 L. Ed. 2d 1365, 80 S. Ct. 1277.) Under Illinois law, an owner has a duty to subcontractors to withhold a sufficient sum to pay amounts due to them before making payments to the general contractor. (Ill. Rev. Stat. 1977, ch. 82, par. 27; Kiefer v. Reis (1928), 331 Ill. 38, 47, 162 N.E. 157, 160.) Here, the amount owed by Caterpillar to plaintiffs was greater than the balance otherwise owed on the contract with Mid-America.

The circuit court correctly awarded plaintiffs a lien against Caterpillar’s real estate for the full amount due from Mid-America under the subcontract plus interest. We affirm.

Affirmed.

TRAPP and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY WAYNE HARRIS, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0018
    Opinion filed August 25, 1983.
    Greaves & Lerner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals from a denial by the circuit court of Champaign County of his post-conviction petition following an evidentiary hearing on it. The sole issue raised is that of ineffective assistance of counsel on direct appeal and at the post-conviction proceeding.

Some background information is required for an understanding of the issue raised. Defendant was originally found guilty by a jury of unlawful use of weapons by a convicted felon in violation of sections 24 — l(a)(10) and 24 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — 1(a)(10), 24 — 1(b)). On direct appeal this court affirmed. People v. Harris (1982), 104 Ill. App. 3d 1213 (Rule 23 order).

In that appeal defendant was represented by attorney Donald Johnson of the Office of the State Appellate Defender. He raised four issues; a fifth issue, conflict of interest in trial counsel, was presented to this court through a pro se brief filed by the defendant. Attorney Johnson thought the issue to be nonmeritorious and declined to raise it. For this reason defendant filed a pro se motion to discharge him, which motion was denied by this court. The hub of the matter, then and now, is a document which indicates that defendant waived any potential conflict existing in his trial counsel.

As indicated in the prior Rule 23 Order and not contested by the parties, the Public Defender of Champaign County was appointed to represent the defendant on the original charge. At the same time that office was representing defendant’s son in an unrelated juvenile case. A hearing was held by Judge Nicol in Champaign County on the matter of conflict in these representations, but for reasons not immediately apparent no court reporter was present, nor have any tapes been found. Thereafter, at the behest of attorney Johnson, Judge Nicol prepared and certified a two-page document entitled “Bystander’s Record”, which relates his recollections of the proceeding. It is uncontested that this report was not prepared in the manner provided in Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)).

In it Judge Nicol recites the appearances of the State by an assistant State’s Attorney and of the defendant in his own proper person and by counsel, an assistant public defender. The nature of the potential conflict was then recited by the assistant public defender, indicating only that the office of the Public Defender, not the particular assistant defender himself, had been appointed to represent defendant’s son. Defendant stated that he understood the nature of the potential conflict and that the court had the power to appoint an attorney not connected with the Public Defender’s office to represent him. He then further stated, according to the report, that he preferred to have the assistant continue to represent him. Judge Nicol then found that the defendant had waived a potential conflict.

Defendant was apparently dissatisfied with Judge Nicol’s report and filed in this court a document entitled “Affidavit in Contest.” In it he swears that the assistant public defender never told him of the potential conflict and its nature; he also states that the court never informed him that he might have another attorney. He lodged then a general objection to the entire report.

Attorney Johnson, after reviewing the report and the affidavit, declined to raise the conflict issue, and as indicated above, it was presented to this court via defendant’s pro se brief. We held it to be without merit.

Defendant filed a post-conviction petition on August 31, 1982, alleging a variety of errors, including denial of effective assistance of counsel both at trial and on appeal. New counsel was appointed and argued that since there was no verbatim transcript of the proceedings before Judge Nicol, no effective waiver had been shown. He further argued ineffective assistance of appellate counsel since attorney Johnson refused to pursue this issue. The trial court denied the prayer of the petition, holding that the conflict issue had already been determined by this court and whether to raise it at all lay within the judgment of the appellate counsel.

Defendant’s argument appears to be one of procedure only. His post-conviction petition, drafted pro se and not amended, alleges ineffective assistance of counsel only in the most general terms. The record made at the hearing thereon indicates that the public defender, Brian Silverman, represented him at trial and also represented his son in an ongoing juvenile proceeding. However, this is not a per se conflict. The Supreme Courts of both the United States and of this State have held that joint representation of criminal defendants does not give rise to a per se violation of the guaranty of effective assistance of counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Since a juvenile proceeding is not criminal in nature (In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024), any potential conflict becomes even more attenuated, almost to the point of nonexistence.

Defendant’s argument centers only on the mechanics of waiver. He assumes a conflict whose existence is dubious and then claims that the record of waiver was so deficient, not having been prepared in accordance with Supreme Court Rule 323(c), that it was incompetent for appellate counsel not to press the point and seek to have it stricken. He also maintains that it was likewise incompetent for trial counsel at the post-conviction hearing not to do the same.

At the outset it should be noted that defendant has not denied making a waiver. The following appears on defendant’s direct examination at the post-conviction hearing:

“Q. Getting back to November 5th, 1980, did Judge Nicol tell you about your conflict? Did he ever explain it?
A. Did he admonish me in open court? Is that what you’re asking?
Q. Yes.
A. No. He asked me did Mr. Silverman - okay. Mr. Hooker explained to him that Mr. Silverman had talked with me and that he asked me did Mr. Silverman talk with me and was I waiving conflict and I said yes.”

The report of Judge Nicol is not so deficient as to be meaningless. In this connection the words of the supreme court are pertinent:

“It is the exclusive province of the judge before whom a cause was tried to determine the accuracy of the bill of exceptions presented for his signature. [Citation.] The law makes him the judge of the accuracy and propriety of the act he is called upon to verify, and it is not for other persons to determine its truth. He acts under the solemnity of an oath and the presumption is that he will honestly and faithfully perform his duty.” Bauman v. C.I.T. Corp. (1934), 356 Ill. 336, 339, 190 N.E. 696, 698.

We view the report as having been properly made under Supreme Court Rule 329 as incorporated into criminal procedure by Supreme Court Rule 612. (87 Ill. 2d Rules 329, 612.) In connection with Rule 329 the supreme court has said:

“Rule 329, as the Committee Comments demonstrate, is a very broad provision whose object is to allow the record on appeal to be amended to correct inaccuracies, supply omissions, correct improper authentication, and settle controversies as to whether the record on appeal accurately discloses what occurred at trial. It is designed to facilitate the amendment of the record on appeal.” People v. Chitwood (1977), 67 Ill. 2d 443, 447, 367 N.E.2d 1331, 1333.

With the information in hand as disclosed by the report, attorney Johnson made the professional determination that the point was not meritorious. This was not incompetency. (People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25.) Furthermore, defendant, through his pro se brief on the subject, was permitted to bring it to this court’s attention. It has been reviewed. Compare People v. Hamby (1965), 32 Ill. 2d 291, 205 N.E.2d 456.

The same rationale applies to trial counsel at the post-conviction hearing.

A somewhat collateral argument by defendant requires only brief mention. He maintains that waiver of conflict must be handled in the same manner as waiver of counsel as provided in Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). We do not agree. The supreme court has said that in cases of conflict “we are to apply the general guidelines enunciated in our prior cases and those of the United States Supreme Court on the subject of conflicts of interest.” People v. Miller (1980), 79 Ill. 2d 454, 461, 404 N.E.2d 199, 202.

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

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    HENRY G. SCHULTZ et al., Petitioners-Appellees, v. ATWOOD FIRE PROTECTION DISTRICT, Respondent-Appellant.
    Fourth District
    No. 4 — 83—0103
    Opinion filed September 1, 1983.
    Lee & Lee, Ltd., of Tuscola, for appellant.

      Lemna, Moore & Carroll, of Tuscola, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Respondent, Atwood Fire Protection District, appeals a judgment of the circuit court of Douglas County entered January 24, 1983. The judgment permitted detachment from the district of a tract of approximately 97 acres of farmland without buildings which was owned by petitioners. Respondent asserts that the trial court’s decision was contrary to the manifest weight of the evidence. We agree and reverse.

The proceeding was brought pursuant to section 15 of “An Act in relation to fire protection districts” (Ill. Rev. Stat. 1981, ch. 1271/2, par. 35). The section provides that upon a proper petition, notice, and hearing, a circuit court “shall” order a tract detached from a district if the court finds, as pertinent here: (1) The tract “is not reasonably protected by the district from the hazards of fire”; or (2) the district “would receive greater benefit of service from another such district or another municipal corporation,” and (3) the detachment will not cause remaining territory to be noncontiguous; and (4) “the loss of *** territory will not impáir the ability of the district to render fully adequate” service to the territory remaining in the district.

The parties agree that (1) no showing was made that the property was not reasonably protected by the district, and (2) a sufficient showing was made that detachment would neither make the remaining territory noncontiguous nor impair the ability of the district to properly serve the remaining territory. Thus, the issue remaining concerns whether petitioners would receive even better service upon detachment. They proposed to obtain that service by an agreement with another municipal corporation, the city of Tuscola. The question for our determination is whether the trial court’s determination that better service would, in fact, be received from that city is contrary to the manifest weight of the evidence.

The evidence was undisputed that both that city and the respondent district furnished good service. They both operated volunteer groups with an electric “beeper” system of notifying their available volunteers. The Tuscola fire department received calls for help through the Douglas County sheriff’s office in Tuscola which was manned around the clock. Personnel of that office then called the firemen. Respondent had one paid employee on duty at all times at its station in Atwood. The practice was that the person on duty, upon receipt of a report of a fire, would summon available volunteers and then immediately drive toward the site of the fire with one vehicle which would contain much of the individual members’ equipment. Other vehicles would then be brought by other volunteers who were assigned to go immediately to the station to do so. Most of the volunteers were assigned to go directly from the place where they received the call to the site of the fire. Each firefighting unit had arrangements with other such units for mutual aid when needed.

The evidence tending to support petitioners’ contention that better service could be obtained from the Tuscola fire department was: (1) The Tuscola fire station was two to three miles closer to petitioners’ tract than was the station of respondent in Atwood; (2) persons most likely to spot a fire on the tract would be persons in the petitioners’ son’s house located on a small parcel next to the tract; (3) the telephone in the son’s house was such that the Tuscola fire department could be reached by dialing only five digits while it was necessary to dial seven digits to reach respondent’s station.

The evidence supporting petitioners’ position was countered by evidence that respondent’s equipment was geared more to fighting a fire in a field than was that of the Tuscola fire department. The source of water closest to petitioners’ property was a farm pond one-half mile from the property. Except for one vehicle, all of Tuscola’s equipment was made to attach to a hydrant. That single vehicle had a capacity of 1,000 gallons and equipment enabling it to draft water from wells, cisterns, lakes and streams. In fighting a fire on the tract, the Tuscola department would be limited by the amount of water brought in the one tanker supplemented by water that could be obtained if the tanker was taken to the nearby pond and refilled or such water as could be pumped through hoses from the pond, a distance of about one-half mile, to the tract.

In comparison, respondent was shown to have four vehicles capable of storing and carrying water with a total capacity of 3,850 gallons, nearly four times the capacity of the Tuscola department. Two pieces of respondent’s equipment were designed for fighting field fires. They had extended front bumpers upon which firemen could stand and play a hose on fires on the ground as the vehicle moved about.

We do not consider the lesser number of digits necessary to dial in phoning the Tuscola department rather than respondent to be of substantial significance. The lesser number of miles equipment would have to travel to reach petitioners’ property was of more significance. A saving of four or five minutes in arrival time could well result from use of the Tuscola department. However, this saving of time cannot reasonably be held to exceed in value the advantage in fighting field fires with equipment (1) having the capacity to carry three or four times the amount of water carried by the lone Tuscola vehicle, and (2) having extended bumpers from which firefighters can stand, spraying water, on a vehicle which is moving through a field.

We hold that the trial court’s finding, that petitioners would receive greater benefit of service if permitted to detach, was contrary to the manifest weight of the evidence.

Respondent argued that the arrangement between petitioners and the city of Tuscola was not shown with sufficient definitiveness to be considered. Longtime Tuscola Fire Chief, Dennis Dietrich, had testified that a Tuscola ordinance authorized his department to answer a rural fire for a $500 fee. The evidence was at least as strong as that held to show an arrangement for service if detachment was permitted in the case of In re Carol Stream Fire Protection District (1979), 76 Ill. App. 3d 795, 395 N.E.2d 395. However, more formal proof would have been better.

Respondent has argued that if detachment is permitted to stand here, other petitions by landowners closer to Tuscola than to Atwood would also have to be allowed. Respondent contends that in toto the detachments could “impair the ability of the district to render fully adequate” service to the area remaining in the district. This court has faced a similar argument in connection with school district detachment. (Board of Education v. Scott (1969), 105 Ill. App. 2d 192, 244 N.E.2d 821.) This court held that such a threat was too speculative to be considered. In Kaupas v. Regional Board of School Trustees (1977), 47 Ill. App. 3d 222, 361 N.E.2d 1157, we expanded upon the rule to say that if a succession of petitions should be filed, consideration could then be given to the effect allowance of one petition would have on other requests.

Respondent points out that, here, the problem is more crucial upon the initial petition than in the cited school cases because, here, the detachment was allowed almost solely upon the matter of distances, an element which would likely be common to subsequent petitions, while in those cases, there were characteristics that would be unique to the original petition. Because we reverse, we need not rule upon respondent’s contention. The problem presented does indicate the desirability of a public policy towards maintaining the stability of governmental district boundaries.

Our decision reversing the judgment is for the reasons stated.

Reversed.

MILLS and MILLER, JJ., concur.


author: JUSTICE MILLS

text:
    BORIS N. LYMAN, d/b/a B&H Furniture Company, Plaintiff-Appellant, v. EDWARD HARBAUGH et al., Defendants-Appellees.
    Fourth District
    No. 4-83-0107
    Opinion filed August 26, 1983.
    Thomas H. Piper, of White Hall, for appellant.
    Paul L. Pratt, P.C., of East Alton (John B. Pratt, Sr., of counsel), for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

The only issue in this appeal is whether the cost of carpeting is a family expense within the scope of the family expense statute. Ill. Rev. Stat. 1981, ch. 40, par. 1015.

The trial judge, the Honorable L. Keith Hubbard, said it was not.

We disagree.

We reverse and remand.

THE FACTS

Charlotte and Edward Harbaugh were married in the spring of 1970. Along with Charlotte’s three children from a previous marriage, they set up housekeeping in a home in Greenfield, Illinois.

On June 19, 1978, Charlotte purchased several rooms of carpeting from Boris Lyman, d/b/a B & H Furniture. Edward never consented to the purchase. The carpeting was delivered and installed in the Harbaugh’s home, at a total cost of $696.52.

In the fall of 1979, Charlotte and Edward separated. Edward moved out of the house and the couple’s marriage was dissolved on August 12,1980.

Lyman never received payment for the carpeting and he eventually filed a small-claim complaint against both .Charlotte and Edward. After a great deal of procedural maneuvering, a hearing was held and Judge Hubbard ruled that the cost of the carpeting was not a family expense. Nevertheless he ordered Edward to pay Lyman $100 for the use of the carpeting while he lived with Charlotte.

Lyman appeals, arguing that the cost of the carpeting is a family expense within the scope of the family expense statute and that Edward should be liable for the entire cost of the carpeting.

In reply, Edward contends that the cost of the carpeting does not come within the scope of the family expense statute because: (1) the carpeting was a luxury and not a necessity; and (2) he did not consent to the purchase.

We agree with Lyman.

THE FAMILY EXPENSE STATUTE

The family expense statute originated as a section in the Husband and Wife Act of 1874. (Ill. Rev. Stat. 1874, ch. 68, par. 15.) Today the statute is section 15 of “An Act to revise the law in relation to husband and wife.” (Ill. Rev. Stat. 1981, ch. 40, par. 1015.) The statute states in pertinent part:

“The expenses of the family *** shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

An expense is an “expense of the family” when it is incurred for an article which contributes to the welfare of the family generally and tends to maintain the integrity of the family. Carson Pirie Scott & Co. v. Hyde (1968), 39 Ill. 2d 433, 235 N.E.2d 643.

The expense of the carpeting is just such an expense. Carpeting in the family home clearly benefits the entire family and consequently is an “expense of the family” as that phrase is used in the statute. See Louis Berman & Co. v. Dahlberg (1948), 336 Ill. App. 233, 83 N.E.2d 380.

LUXURY VERSUS NECESSITY

Edward maintains that the carpeting was a luxury item and not a necessity and therefore its cost does not come under the scope of the statute. He argues that the linoleum flooring that was already in the home was not only adequate but also suitable to the family’s station in life. His position is that only the cost of necessities is covered by the statute.

We disagree. Edward’s argument may have been valid 110 years ago under the common law but it is not valid today under the statute. Whether or not the expense of an item is a family expense does not depend on whether that item is a necessity. As this court stated 84 years ago in Arnold v. Keil (1899), 81 Ill. App. 237, 242:

“At common law the wife could bind the husband for necessaries only as express authority was given her, or as authority could be implied from the husband’s neglect to furnish articles suitable to her station in life, which said articles were considered and treated in law as necessaries. ‘Family expenses,’ under the statute, embrace much more than ‘necessaries’ under the common law. [Citations.]”

And the court in Hudson v. King Brothers (1887), 23 Ill. App. 118, 122, stated that the family expense statute:

“*** does not limit the liability *** to expenditures for necessary family expenses; it applies to the expenses of the family without limitation or qualification as to kind or amount, and does not depend upon the wealth, habits or social position of the party.”

(See also White v. Neeland (1983), 114 Ill. App. 3d 174, 448 N.E.2d 649; Louis Berman; O’Haran v. Leiner (1940), 306 Ill. App. 230, 28 N.E.2d 315.) Therefore, even if the carpeting should be considered a luxury, that alone does not prevent its cost from being a family expense.

SPOUSE’S CONSENT

Next, Edward argues that the cost of the carpeting is not a family expense because he did not consent to the purchase of the carpeting. Once again we disagree. The statute does not contain an express consent requirement and the courts have not interpreted it as containing an implicit consent requirement. (See Carson Pirie Scott; Hudson.) In short, whether or not the spouse consented to the expense does not determine whether the expense is a family expense.

CONCLUSION

In conclusion, we find that the cost of the carpeting was a family expense within the scope of the family expense statute. Therefore, we reverse and remand this case to the circuit court with directions to enter an order consistent with this decision.

Reversed and remanded with directions.

WEBBER, RJ., and MILLER, J., concur.


author: PRESIDING JUSTICE WEBBER JUSTICE GREEN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAWN LANGE, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREG LANGE, Defendant-Appellant.
    Fourth District
    Nos. 4 — 83—0154, 4 — 83—0155 cons.
    Opinion filed August 30, 1983.
    GREEN, J., dissenting.
    John P. O’Rourke, of Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville, for appellants.
    Michael M. McFatridge, State’s Attorney, of Paris (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The defendants, Greg and Dawn Lange, were charged with attempted murder and other related offenses. They were released on bond after each had posted $10,000 (10% of the $100,000 bond that had been set). The charges were later dismissed. The People appealed. Defendants’ bonds pending appeal were then set in the reduced amount of $10,000 each. From the original deposits of $10,000 made by each defendant the circuit clerk of Edgar County retained $1,000 as the cash bail on the bonds pending appeal; he also retained another $1,000 each as costs assessed against the original bail of $10,000 and refunded $8,000 to each defendant. On appeal (People v. Edwards (1982), 105 Ill. App. 3d 822, 434 N.E.2d 1179), this court affirmed the dismissals and ordered a refund of $1,000 to each defendant of the costs which we held had been prematurely assessed.

We remanded for the purpose of making the refunds and a dispute then arose as to the amounts. The defendants maintained that they were each entitled to $1,900 — the $1,000 previously improperly assessed and $900 from the appeal bonds. The trial court ordered the clerk to refund $1,000 to each defendant as costs improperly assessed, but further held that the clerk was entitled to retain $1,000 each as to the penalty on the $100,000 bond originally set. Defendants appeal, and we reverse and remand with directions.

Section 110 — 7 of the Code of Criminal Procedure of 1963 sets forth the general procedures for posting bail in criminal cases. (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7.) Subsection (a) provides that 10% in cash of the bail set shall be deposited with the clerk of the court. Subsection (f) authorizes the clerk to retain 10% of the deposited cash, or 1% of the total amount of the bond, as bail bond costs. The statute states:

“(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.” Ill. Rev. Stat. 1981, ch. 38, par. 110— 7(f).

The statute clearly states that the time for assessing costs is at the close of the case, when the accused has been discharged. As we stated in the first appeal of this case, assessment of costs at any ear-Her stage is premature and improper. (People v. Edwards (1982), 105 Ill. App. 3d 822, 830, 434 N.E.2d 1179, 1184.) This point is not contested on appeal.

The issue on appeal is whether such costs should be determined on the basis of the original bond deposit or on the basis of the bond deposit that is held by the clerk at the close of the case. Admittedly, the statutory language “sum which had been deposited” and “amount deposited” is ambiguous. The State argues that the statute should be read to direct the assessment of costs on the basis of the original amount that was deposited. We believe, however, that the better interpretation of this statute would have costs assessed on the basis of the amount of the bond deposit that is properly in the hands of the clerk at the time that the assessment is to be made, namely, at the close of the ease.

If the court has reduced the bond and the deposit required, it should follow that the costs should be reduced proportionately. Were this not so, there would arise situations where the bond is reduced to a point such the the amount actually on deposit at the close of the case may be less than the 1% of the original bond necessary to pay the bond costs. Since the statute only allows a clerk to “retain” part of the deposit to cover costs, if the costs are greater than the deposit, they cannot be recovered in full. This anomalous result is avoided by determining the “amount deposited” at the same time that costs are being assessed at the close of the case. This was obviously the legislature’s intent. It should be pointed out that the same rule would apply if the amount of the original bond were later increased. The amount of the bond posted at the close of the case will control.

We do not regard the language from Schilb v. Kuebel (1970), 46 Ill. 2d 538, 264 N.E.2d 377, cited in the dissent, as either controlling or persuasive. A bond is “originally” set when an information or indictment is presented to a court and a warrant is ordered to issue. This is an ex parte proceeding and the amount is ordinarily that recommended by the State’s Attorney. The defendant has no opportunity to contest that amount until arraignment. It would be fundamentally unfair to a defendant to carry through to the assessment of costs such an “original” amount. Furthermore, the Schilb court was not faced with the problem presented in the instant case. It was concerned with the constitutionality of the entire scheme, not with specific amounts. The bonds there were fixed by statute and rule and were not subject to alteration.

No doubt the circuit clerk, and thus the county, may lose some revenue if bonds are reduced. While we have no hard empirical evidence on the matter, it is at least arguable that more bonds are increased, principally after conviction and pending appeal, than are decreased. Instead of losing costs under the rule enunciated here, the counties may indeed gain.

For the foregoing reasons, we conclude that the circuit court’s order was error. Pursuant to Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), the circuit clerk of Edgar County is ordered to retain $100 from each defendant as bail bond costs and to pay over to each defendant $900 which was retained in excess of costs. Accordingly, the order of the circuit court of Edgar County is reversed.

Reversed and remanded with directions.

MILLER, J., concurs.

JUSTICE GREEN,

dissenting:

I dissent.

I agree that the statutory language “sum which had been deposited” and “amount deposited” is ambiguous, but I do not agree that the better interpretation of section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) is to base the amount of the clerk’s fee upon the amount of the bail deposit at the time the bond is fully discharged.

In upholding section 110 — 7(f) in Schilb v. Kuebel (1970), 46 Ill. 2d 538, 264 N.E.2d 377, the supreme court spoke of the section providing for a fee based upon “the amount of bail originally set by the court” (emphasis added) (46 Ill. 2d 538, 543, 264 N.E.2d 377, 380) and described the purpose of the fee as allowing the courts “a reasonable fee as bond costs for handling bail bonds and offsetting the monetary amount of any loss resulting from the occasional bail jumper where the professional bondsman under the former system might have forfeited the amount of bail.” (Emphasis added.) 46 Ill. 2d 538, 544, 264 N.E.2d 377, 380.

Here, 1% of the amount of the “original” bail bond would have been the sum of $1,000 per bond which is the amount claimed by the State as the fee for the clerk. To reduce this amount of the fee, because, after the trial court judgment dismissing the charges, the court determined that bond in a smaller amount was still required, does not seem logical. The task of the clerk was, if changed at all, increased by the change in the amount of the bond. More importantly, the exposure of the county to “loss resulting from the occasional bail jumper where the professional bondsman under the former system might have forfeited the amount of bail” would be more accurately measured by 1% of the bond deemed necessary, while the charges were pending than by 1% of the amount of the bond as reduced later. As indicated in Schilb, the amount of the clerk’s fee is to be considered in comparison to the 10% premium previously charged by the professional bondsman. That premium was not returned to the accused upon his discharge of his responsibilities under the bond and was not reduced to such sum as to be based on the amount of bail finally required.

The holding of the majority might bring about illogical results in other cases as well. For example, if a defendant, held on a high bond, should be acquitted of a principal charge but convicted of an included much less serious offense, logic might dictate that his bond be reduced. However, if that were done, the clerk’s fee on his bond would be less than it would have been had he been completely acquitted. The majority’s holding would also place conflicting incentives on defendants and the State in regard to lowering of bonds in cases because of changed conditions and would create additional disputes.

With the benefit of hindsight, it appears that we might have saved additional litigation if we had resolved the question of the amount of the clerk’s fee when ruling on the former appeal. In any event, I would now affirm the order of the trial court permitting the clerk to retain $1,000 of the deposit on each bond. While language in Schilb would indicate that the amount of the “original” bond should determine the fee, I would hold that, generally, the highest amount of the bond should determine the fee. An exception to that rule would occur when a subsequent determination was made that the bond in the highest amount was excessive. Under those circumstances, the fee should be fixed in the highest amount of bond which had been fixed properly.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENARD LEACH, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0021
    Opinion filed August 25, 1983.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Benson, State’s Attorney, of Paxton (Robert J. Biderman and Rebecca White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

Defendant was convicted of the armed robbery of a gas station in Paxton. He was sentenced to a term of 20 years’ imprisonment. He appeals, contending that his conviction must be reversed because the evidence was insufficient to show that he aided and abetted Ennix Blackman in the commission of the offense.

Michael Moynihan testified that he was employed at the Standard Oil gas station near the intersection of Route 9 and Interstate 57 on August 11, 1982. At about 12:45 a.m., a green and white Cadillac pulled into the station. The driver, Ennix Blackman, told Moynihan that his car was overheating and asked Moynihan to check the oil. The driver had a passenger along with him, whom Moynihan identified as the defendant. Both the driver and defendant got out of the car.

Moynihan determined that the Cadillac’s radiator was low on water. The defendant pulled the car over to the side of the station where the water hose was located. Moynihan filled the car’s radiator and closed the hood. Blackman asked Moynihan where the money was kept. Moynihan looked down and saw a revolver in Blackman’s hand.

Moynihan gave Blackman a roll of currency approximately $130, which Moynihan had in his pocket. Blackman then forced Moynihan to go back into the back room of the station. He made Moynihan stand in the corner of the room and face the wall. Moynihan heard defendant talking to another man; Moynihan said the other man seemed to be in a hurry. Moynihan heard the front door open and close several times. After five minutes had passed, Blackman ordered Moynihan to lie down on the floor and put his hands behind his back. Blackman tied Moynihan up; the other man kept insisting that he and Blackman should leave. The other man also told Blackman that Moynihan was not tied up well enough.

The two men then left the station and drove away. Moynihan managed to free himself and called the sheriff’s office. Moynihan stated that he, Blackman and the defendant were the only persons on the premises when the robbery occurred. Moynihan stated that, in addition to the roll of currency, a television set, a coin changer and some rolled coins and Moynihan’s blue jean jacket were also missing after the robbery.

Gary Wisenbarn, an Iroquois County deputy sheriff, testified that he received a radio dispatch from the State police at approximately 12:55 a.m. on August 11, 1982. He proceeded to Interstate 57 near Buckley, where he saw a vehicle fitting the description contained in the dispatch. He followed the vehicle for about five miles until the vehicle pulled to the shoulder of the road. Wisenbarn pulled in behind the vehicle and waited for assistance to arrive. Trooper Ward of the Illinois State Police arrived on the scene a few minutes later.

Wisenbarn and Ward placed Blackman and the defendant under arrest. Wisenbarn saw a large amount of change on the floor on the passenger side of the vehicle and a black-and-white portable television set in the back seat. Officer Ward patted the defendant down and found a number of rolls of change in his pants pocket and some currency in defendant’s shirt pocket.

Ennix Blackman testified in defendant’s behalf. Blackman admitted robbing the Standard Oil gas station in Paxton on August 11, 1982. He maintained, however, that defendant was asleep during the robbery and did not participate in it in any way. Blackman indicated that defendant awoke after Blackman had gotten back on the highway. At that point, Blackman gave part of the stolen money to the defendant.

Following closing arguments, the case was submitted to a jury. The jury found defendant guilty of armed robbery. A sentencing hearing was held on January 3, 1983, and defendant was sentenced to a term of 20 years’ imprisonment.

Section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2) provides, in pertinent part:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Defendant contends that there is no evidence to support the conclusion that he aided or abetted Ennix Blackman in the armed robbery of the gas station. He maintains that the mere presence of an accused at the scene of the crime does not render the accused accountable under section 5 — 2. People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.

In People v. Dandridge (1979), 79 Ill. App. 3d 693, 398 N.E.2d 955, the court discussed what proof is necessary to establish the accused’s accountability for the offense of armed robbery. The court said:

“In order to establish accountability, the State must prove that the accused solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense, that such participation occurred either before or during the commission of the offense, and that such participation was with the intent to promote or facilitate the commission of the offense. (See Ill. Rev. Stat. 1975, ch. 38, par. 5 — 2(c); People v. Ivy (1979), 68 Ill. App. 3d 402, 386 N.E.2d 323; People v. Owens (1975), 32 Ill. App. 3d 893, 337 N.E.2d 60.) Mere presence at the scene of the crime or negative acquiescence in another’s action is insufficient to establish accountability. (People v. Nugara (1968), 39 Ill. 2d 482, 236 N.E.2d 693; People v. Cole (1977), 50 Ill. App. 3d 133, 365 N.E.2d 133.) One may aid and abet, however, without actively participating in the overt act. (People v. McConnel (1977), 48 Ill. App. 3d 355, 362 N.E.2d 1280.) Proof that defendant was present during the commission of a crime without disapproving or opposing the commission of a crime, a continued close affiliation with a co-defendant after the commission of a crime and a defendant’s failure to report the offenses are all factors which may be considered in establishing accountability. People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.” 79 Ill. App. 3d 693, 695, 398 N.E.2d 955, 957.

In Dandridge, Milian suggested that he and defendant rob the decedent at a party. Defendant refused the suggestion. A few hours later, Milian told defendant “Let’s go,” and the pair left the party with the decedent. The three men walked down an alley; Milian pulled out a sawed-off shotgun and ordered decedent to hand over his money. Defendant was about four or five feet behind Milian in the alley. Defendant told Milian to let the decedent go; Milian responded by shooting the decedent in the face. The pair then fled to defendant’s girlfriend’s apartment and later went to defendant’s home.

The court found that defendant was well aware of Milian’s predisposition to rob the decedent and that the evidence supported the inference that defendant was a “lookout.” Also, defendant remained with Milian for a considerable amount of time following the shooting. The court held that the evidence was sufficient to support a finding of accountability and that the evidence showed defendant to be guilty beyond a reasonable doubt of armed robbery.

Similarly, a verdict of guilty in an armed robbery prosecution based upon defendant’s alleged aiding and abetting of the offense was upheld in People v. Peters (1975), 33 Ill. App. 3d 296, 337 N.E.2d 725. In that case, the evidence showed that defendant drove others involved in a holdup of a sporting goods store to the scene and waited in the alley with the car’s motor running. He also admitted opening the trunk of the car so that his father could put guns, which were stolen from the store, into the trunk. Despite defendant’s claim that he was only an innocent bystander and was not involved in the robbery, the court found that the question of accountability presented an issue of fact for the jury to decide. The court stated that the evidence was no so unsatisfactory as to justify a reasonable doubt of guilt.

Michael Moynihan testified that both Blackman and the defendant got out of the car. When Moynihan found that the car’s radiator was low on water, defendant drove the car to the side of the station. Moynihan testified that, while he was facing the wall in the back room of the station, Blackman spoke with a second man, who was in a hurry to leave the station. Moynihan could not positively identify the second man as the defendant, but he stated that defendant and Blackman were the only two persons on the premises at the time the robbery was committed. Also, when Blackman and the defendant were arrested, the defendant’s pockets contained items which matched the description of a portion of the stolen property.

While no direct evidence was produced at trial to show that defendant aided and abetted Blackman in the armed robbery, there was a significant amount of circumstantial evidence leading to that conclusion. The evidence produced at trial was sufficient to support a finding that defendant was accountable, as an aider and abettor, for the acts of En-nix Blackman. The evidence was not so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt exists. People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.

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

Affirmed.

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


text:
      In re PETITION FOR FEES—(The People of the State of Illinois, Plaintiff and Petitioner-Appellant, v. Clarence Eugene Wilson, Defendant—(Michael C. Goode et al., Respondents-Appellees)).
    Fourth District
    Nos. 4-82-0706, 4-82-0758, 4-82-0815 cons.
    Opinion filed August 30, 1983.

      Neil Hartigan, Attorney General, of Springfield (Jon Anderson, State’s Attorney, and Neal B. Goodfriend and Michael V. Accettura, Assistant Attorneys General, of counsel), for the People.
    Arnold Bernstein, of Highland Park, and Michael C. Goode, of Chicago, pro se, for appellee Michael C. Goode.
    Gillespie, Cadigan & Gillespie, of Springfield, for appellees D. Bradley Blodgett and Charles Neuf.
   JUSTICE MILLS

delivered the opinion of the court;

A question of fees.

For a court-appointed attorney, a lawyer who argued a motion, and an investigator.

We affirm — but modify slightly.

In 1970, the police chief of Oblong, Illinois, was shot and mortally wounded while investigating a burglary in process. Clarence Eugene Wilson and two other men were indicted for the offenses of burglary, intentional murder, and felony murder. Wilson was brought to trial five separate times on one or more of the above charges with the fifth trial resulting in an acquittal. The present appeals relate to fees which were awarded by the trial court to those who participated in Wilson’s defense during his fifth trial.

Prior to the trial, attorney Michael Goode, who was representing Wilson in a civil rights action in Federal court, requested to be appointed as defense counsel for Wilson. The trial court denied the request but granted Goode permission to argue a motion to dismiss on behalf of Wilson and to submit a petition for fees. Goode sought $2,352.47 in fees based on 45 hours of work at $50 per hour and expenses of $102.47. The trial court granted attorney fees to Goode in the amount of $1,012.47.

D. Bradley Blodgett was appointed to represent Wilson on May 7, 1982. On July 8, 1982, four weeks prior to the trial, the trial court granted Wilson’s request to proceed pro se and, from that time forward, Blodgett served as Wilson’s legal advisor. Blodgett’s petition for fees sought $11,368.15 based on 277.8 hours of work at $35 per hour and expenses of $1,645.15. The trial court awarded Blodgett $9,761.40.

Charles Neuf, a private investigator hired by Blodgett, petitioned for fees in the amount of $6,858.84. The trial court awarded Neuf $5,089.90.

The State appeals from the orders awarding fees to Goode, Blodgett and Neuf. Blodgett has cross-appealed from the order insofar as it denied the entire amount sought in his petition.

Cause No. 82 — 0706

The State argues that Goode is entitled to no compensation whatsoever because he was not appointed by the trial court to represent Wilson.

Section 113 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(c)) provides for the payment of a “reasonable fee” to the court-appointed counsel of an indigent defendant. No provision is made for the payment of fees to those other than court-appointed counsel. However, our supreme court has recognized that appointed counsel may be compensated for time spent and services rendered by his associates, law clerks or paralegals. (See People v. Johnson (1981), 87 Ill. 2d 98, 106, 429 N.E.2d 497, 500.) It has been held that court-appointed counsel may be compensated for work performed by associates or law clerks when the work performed is necessary for the preparation of the defendant’s case and consistent with the appointed counsel’s primary obligation to defend. People v. Atkinson (1977), 50 Ill. App. 3d 860, 366 N.E.2d 94.

The State does not contend that the work performed by Goode was either unnecessary or inconsistent with defense counsel’s obligation to defend. Consequently, if Goode had performed his work as an associate of Blodgett, there is little question that Blodgett would have been entitled to a reasonable fee based on Goode’s work. Still, it is not the nature of the work alone that determines whether an attorney is entitled to a reasonable fee. Court-appointed counsel is entitled to compensation not merely because he provided services to an indigent defendant but also because he was, in fact, appointed by the trial court. In the present case, while Goode was not appointed by the trial court to represent defendant, he was granted leave by the court to appear on defendant’s behalf and argue a motion to dismiss. For his services, which were authorized by the trial court and were both necessary for the preparation of defendant’s case and consistent with appointed counsel’s duty to defend, Goode was entitled to a reasonable fee.

The trial court’s award of attorney fees to Goode is affirmed.

Cause No. 82 — 0758

D. Bradley Blodgett, the court-appointed counsel, was compensated at the rate of $35 per hour. The State contends that this rate is unreasonably high and should be reduced to $30 per hour.

The reasonable fee provision of section 113 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113— 3(c)) was interpreted by the supreme court in People v. Johnson (1981), 87 Ill. 2d 98,105-06, 429 N.E.2d 497, 500. The court stated:

“The formula for reasonable compensation should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor. In determining what constitutes a reasonable fee, the trial court must consider a number of factors, including, but not limited to, time spent and services rendered, the attorney’s skill and experience, complexity of the case, overhead costs, and ex-pensés of trial. Another consideration is local conditions, which refers to the number of attorneys, in a given location, who could be called upon to perform pro bono work.”

Blodgett testified at the hearing on the petition for fees that his office normally charged $60 per hour to its best clients who provided a large volume of business, and $75 per hour to other clients. He also testified that his accountants advised him that on a $60 per hour basis his overhead was at least $30 per hour and probably more. Blodgett’s petition for fees shows that he billed for 277.8 hours. Blodgett acted as Wilson’s attorney for about two months and then was directed to act as his legal advisor after the trial court granted Wilson’s request to proceed pro se. Nevertheless, Blodgett was active in the presentation of defendant’s case, questioned several witnesses at trial, and made part of the closing argument.

Blodgett was 45 years of age and had practiced law in Illinois for 20 years. From 1962 through 1965 he was in the United States Naval Reserve on active duty as a Judge Advocate General and his duties included the defense of accused persons at courts-martial. He continued in the United States Naval Reserve as a commander and lectured at reserve centers in Illinois and Iowa on criminal law. After Blodgett concluded his active duty with the Navy in 1965, he was employed in the State’s Attorney’s Office in Sangamon County from 1965 to 1972. During that period he prosecuted many felony cases, including murder cases, and was the first Assistant State’s Attorney for several years. From 1972 to 1977 Blodgett was corporation counsel for the city of Springfield. In 1977 Blodgett went into private practice and has engaged in trial work since that time.

Blodgett was required to represent and advise Wilson on a charge based on a 12-year-old indictment alleging the murder of a police officer. Aside from the difficulty of obtaining witnesses and evidence, the case was further complicated by issues of double jeopardy as Wilson was being brought to trial for the fifth time.

A petition for fees is addressed to the sound discretion of the trial court. (People v. Sledge (1978), 59 Ill. App. 3d 777, 376 N.E.2d 60.) Upon consideration of the foregoing factors, we find the trial court did not abuse its discretion in awarding Blodgett compensation at the rate of $35 per hour. In 1979, the Illinois legislature removed the $30 per hour limit for the rate of compensation to be awarded to appointed counsel under section 113 — 3(c) in counties with populations of less than two million. We are not inclined to reinstate this limit, despite the State’s continued efforts to have us do so. See In re Petition for Fees (1981), 93 Ill. App. 3d 848, 417 N.E.2d 1062.

The State next contends that the trial court abused its discretion in compensating Blodgett for the following items: (a) time spent communicating with the news media; (b) expert witness fees; (c) time and expenses involved in filing writs of prohibition in the Illinois Supreme Court and the Federal Court of Appeals; and (d) undocumented photocopying expenses.

Communications With The News Media

The trial court allowed Blodgett to be compensated for 1.2 hours spent in speaking with and writing letters to news reporters. The court reasoned that these activities were part of Blodgett’s obligation to further the best interests of his client.

Section 113 — 3(c) of the Code of Criminal Procedure of 1963 directs the trial court, in determining a reasonable fee, to “consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel.” (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(c).) We find that the scope of compensable work under section 113 — 3 is limited to that which is reasonably related to the legal representation of the defendant on the offenses for which he is charged. While the trial court may have correctly surmised that Blodgett’s communications with the news media were in Wilson’s best interests, such activity was not sufficiently related to the defense of the charges against Wilson to justify compensation. Since Blodgett was compensated at the rate of $35 per hour, his award is to be reduced by $42.

Expert Witness Fees

Among Blodgett’s expenses was a charge of $400 for Dr. Horatio Rivero, an expert witness for the defendant. The State argues that Dr. Rivero’s fees should be limited to $250 in accordance with section 113 — 3(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3(d)), which provides:

“In capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant.”

Notwithstanding the express limitation in section 113 — 3(d) to capital cases, the supreme court has held that the trial court has inherent power to award expert witness fees in noncapital cases where necessary to protect the constitutional rights of indigent defendants to compel the attendance of witnesses. (People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645; see People v. Vines (1976), 43 Ill. App. 3d 986, 358 N.E.2d 72.) We noted in Vines that Watson left uncertain whether the $250 limit stated in section 113 — 3(d) would be the limit of reasonable expert witness fees granted pursuant to the trial court’s inherent power. We indicated in Vines that a trial court may exceed the $250 limit where there is a showing that the expert testimony is necessary to prove a crucial issue or that the defendant would be prejudiced if the testimony were not obtained.

In the present case, the trial court presumably found that the expert witness fee of $400 was necessary for the protection of defendant’s constitutional rights. The State does not argue that Dr. Rivero’s testimony was either unnecessary to prove a crucial issue or that defendant would not have been prejudiced without it. Consequently, we find that the trial court did not err in exceeding the $250 limit of section 113 — 3(d) in awarding expert witness fees.

Filing Writs Op Prohibition

• 7 With the permission of the trial court, Blodgett filed a writ of prohibition in the Illinois Supreme Court seeking dismissal of the charges against Wilson on double jeopardy grounds. The writ was subsequently dismissed at Wilson’s request. Blodgett then filed a similar writ in the Federal Court of Appeals for the Seventh Circuit without the permission of the trial court. Blodgett’s petition for fees sought compensation for time spent in preparing both writs. The trial court allowed Blodgett compensation for one-half of the time spent working on the writ filed in the supreme court but denied compensation for time spent on the writ filed with the Federal court. The State objects to the award of compensation on the grounds that Blodgett was not authorized to represent Wilson in a court of review. Blodgett cross-appealed, arguing that he is entitled to compensation for all time spent on the writs filed in both the supreme court and the Federal court.

We find that the trial court did not abuse its discretion in calculating the amount of compensation for Blodgett’s work on the writs of prohibition. The filing of the writ of prohibition in the supreme court was within the scope of Blodgett’s representation of defendant and the amount awarded was reasonable under the circumstances. Furthermore, the trial court was not required to compensate Blodgett for his efforts to obtain relief in the Federal courts after Wilson had abandoned similar efforts in the State courts.

Photocopying Expenses

Blodgett’s petition for fees included $338.20 for photocopying expenses. Blodgett testified that his secretary provided him with the figures for photocopying expenses and he did not know how she derived them. The trial court allowed the expenses. On appeal, the State argues that the lack of documentation for photocopying expenses requires that the award be reversed.

At a cost of 10 cents a page, the amount awarded would pay for 3,382 copied pages. Considering the complex nature of the case and the fact that defendant proceeded pro se and would have been in need of various items of what was presumably a lengthy record, we find that the trial court did not abuse its discretion in awarding photocopying expenses to Blodgett.

Cause No. 82 — 0815

Prior to Wilson’s trial, the trial court granted Blodgett’s motion to appoint a private investigator. Blodgett subsequently hired Charles Neuf to work on Wilson’s case. Neuf’s petition for fees was included with Blodgett’s petition and sought $6,858.84. The trial court awarded Neuf $5,089.90.

There is no statutory provision for the allowance of investigator fees. However, in People v. Veal (1982), 110 Ill. App. 3d 919, 443 N.E.2d 605, the court found that a defendant may have a constitutional right to investigatory services when the services are, (1) necessary to prove a crucial issue, and (2) the lack of funds necessary to provide investigatory services would substantially prejudice the defendant.

In the present case, the State does not question the necessity of Neuf’s services and only questions certain items included in the fees awarded to Neuf. The State first argues that Neuf should not have been compensated on a “per diem” basis for his expenses while he was “on the road.” Neuf testified that the per diem charges represented such expenses as meals,, lodging and parking for himself and an assistant while they were traveling. The State’s only objection to the charges is that Neuf presented no receipts for his actual expenses. The total per diem charges were $190 and consisted of two days at $50 a day which included a day’s traveling and overnight expenses, three days at $25 per day which included only the day’s traveling, and one day at $15 per day which was for Neuf’s assistant. We find these charges to be reasonable and hold that the trial court did not abuse its discretion in awarding them.

The State next contends that the allowance of $190.90 as “costs” should not be allowed because Neuf provided no documentation as evidence of the costs. The record indicates that Neuf submitted a phone bill to the court for $169 as well as a receipt for photocopying expenses of $9.90. This would leave $12 of undocumented costs. Although Neuf did not have recéipts for the expenses he incurred, he did record them in his business records which were submitted to the court with Blodgett’s petition for fees. We find that the trial court did not abuse its discretion in awarding these expenses.

The State also objects to an award of $321.25 for 19 hours of work performed by Neuf’s assistant. The State maintains that the assistant was used to serve subpoenas on two prison inmates and this work could have been done by either Neuf or the sheriff’s office. The State provides no explanation as to how the cost of serving subpoenas could have been reduced by requiring Neuf or the sheriff’s office to perform the service. Furthermore, the State’s contention that only services rendered by Neuf himself were compensable is without merit. Just as appointed counsel may bill for services rendered by his associates, law clerks or paralegals, an appointed investigator may bill for services rendered by his assistants. The portion of the award representing services rendered by Neuf s assistant is affirmed.

Finally, the State contests fees awarded to Neuf based on time spent eating meals. The trial court noted that Neuf ate several meals in the courthouse while Wilson’s trial was in progress and had met with Wilson and Blodgett during these times. The State does not object to the allowance of fees for these “courthouse” meals but rather objects to 27 hours charged by Neuf for meals other than those at the courthouse. We agree that the county of trial should not be required to pay an appointed investigator to eat. Since Neuf was compensated at a rate of $20 per hour, his award is to be reduced by $540.

The orders of the trial court are affirmed as modified.

The award of fees in cause No. 4 — 82—0706 is affirmed in toto.

The award of fees in cause No. 4 — 82—0758 is affirmed, but reduced by $42.

The award of fees in cause No. 4 — 82—0815 is affirmed, but reduced by $540.

Affirmed as modified.

TRAPP and GREEN, JJ., concur.


author: JUSTICE CAMPBELL JUSTICE McGLOON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARRION LOGAN, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 1188
    Opinion filed June 30, 1983.

      McGLOON, J., dissenting.

      James J. Doherty, Public Defender, of Chicago (Gerald T. Winiecki, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Mary A. McKenzie, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Marrion Logan, was found guilty in a jury trial of murder and was sentenced to 50 to 100 years to run consecutively to a sentence he was already serving. Defendant appeals from his conviction and sentence.

Defendant raises the following issues before this court: (1) whether defendant’s statutory right to a speedy trial was violated; (2) whether the prosecutor’s use of peremptory challenges to exclude blacks from the jury violated defendant’s right to an impartial jury; (3) whether a lineup identification of defendant was improperly admitted at trial where defendant’s counsel was not present at the lineup; and (4) whether the entry of a consecutive sentence was proper in the alleged absence of a finding on the record that such a sentence was necessary for the protection of the public.

Defendant was charged with the murder of Raymond Hord. No issues are raised with respect to the sufficiency of the evidence. The evidence produced at trial established that defendant and his girlfriend were at the Good Rockin Lounge at 12:30 a.m. on July 1, 1976. The victim was also there with a group of friends. Witnesses for the State testified that the defendant kicked the victim and smudged the victim’s white slacks. An argument ensued and defendant and the victim were asked to leave the bar. The victim left but the defendant refused to leave. After a short time defendant and his girlfriend left. Defendant returned 15 minutes later wearing a full-length trench coat and demanded that the bar patrons tell him where the victim went. He then opened his trench coat and raised a shotgun. Defendant left the bar and got into a car parked across the street. He began to drive away when he spotted the victim sitting in a car. Defendant and the victim got out of their cars. The defendant told the victim that he was going to kill him and fired three shots, striking the victim once in the chest and killing him. Defendant got into his car and drove away. He stopped his car a few blocks away and shot randomly toward the murder scene. Defendant testified on his own behalf that he had never been to the Good Rockin Lounge and that at the time of the incident he was spending the weekend with some friends in Homestead, lilinois.

The first issue raised by defendant is whether the trial court erred in denying defendant’s timely motion for discharge because the statutory term of the speedy trial act had run. (Ill. Rev. Stat. 1975, ch. 38, pars. 103 — 5(a) through (f).) Defendant claims that he was not brought to trial within 160 days of the date that his attorney answered ready and demanded trial.

On September 15,. 1980, defendant answered ready for trial. The case was continued several times by motion of the State until December 11, 1980, when the State answered ready for trial. The case was continued three more times by order of the court until February 17, 1981. On February 17, defendant’s case was called but the defense attorney was not present. The following colloquy occurred:

“THE CLERK: Marion Logan. Marion Logan.
THE COURT: You had better have Dorfman call him again, and talk to him, himself, because you know, ■ secretaries have romance on their minds and other things. You cannot rely upon them to convey the message, properly. Mr. Logan, your lawyer is not here. I understand he was in the building, earlier, and there must be some reason, some inconsistency or some other reason that he is not here, so we will have to hold your case on the call until tomorrow and remand you to the custody of the Cook County Sheriff.
THE DEFENDANT: All right.
THE COURT: I will see you in the morning.
THE DEFENDANT: All right.
THE COURT: It is 2:25 p.m. That is order of Court, February 18th. That concludes the call.”

The trial court’s entry on the memorandum of orders indicated that the continuance was by order of the court. The following day the defense attorney appeared but the State requested a continuance. The State indicated that defense attorney had just tendered a new list of alibi witnesses and the State wanted to interview the witnesses. The case was continued until March 2 and again until March 9 on motion of the State. On March 9, 1981, defendant filed a petition for discharge under the speedy trial act alleging that 175 days had elapsed since defendant answered ready for trial.

During argument on the petition for discharge, the State asserted that the continuance entered on February 17 was attributable to defendant since defense counsel did not appear in court on the day when the case was called. Defense counsel advised the court that on February 17 he was in the courthouse but when he called his office his secretary informed him that it was not necessary to proceed to court since the court clerk had telephoned and indicated that the case was being held on call until the following day. The trial court denied defendant’s petition and changed its previous order of February 17 to indicate that a continuance was granted on motion of defendant. The trial in this matter commenced on March 23,1981.

Defendant contends that in the period between the time he demanded trial on September 15, 1980, and the filing of the petition for discharge on March 9, 1981, defendant did nothing to delay trial nor did he request or agree to a continuance. Defendant argues that defendant’s response, “All right,” to the judge’s decision to hold the case until the next day was not a continuance by agreement and did not constitute a waiver of the right to a speedy trial even though the defendant did not object to the court’s order. Defendant argues that on the previous court date (January 30, 1981) there was no indication that the case was set for trial on February 17, so the fact that defense counsel failed to appear did not delay the trial of defendant’s case. Further, defendant argues that the trial court should have asked the defendant if he was ready to proceed to trial without counsel. Since the court was aware that the term was running, the court should have informed defendant that the continuance would break the term.

The State argues that a delay caused by the failure of defendant’s counsel to be in court on the appointed day is properly attributable to defendant under People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658, and tolled the running of the statute. We agree. The supreme court held that where “a continuance or delay in trial is occasioned because the counsel of an accused is engaged elsewhere, it is a delay properly charged to the accused.” (46 Ill. 2d 348, 354, 263 N.E.2d 840, 845. Accord, People v. Spurlark (1979), 74 Ill. App. 3d 43, 392 N.E.2d 214; People v. Solheim (1977), 54 Ill. App. 3d 379, 369 N.E.2d 308; and People v. Howard (1975), 34 Ill. App. 3d 145, 340 N.E.2d 53.) The court reasoned that,

“To hold to the contrary, in our opinion, would be incompatible with the letter and spirit of the implementing statute and would serve only to provide a weapon with which the administration of criminal justice could be avoided or unduly harassed.” (46 Ill. 2d 348, 354, 263 N.E.2d 840, 845.)

Defendant urges that his failure to appear only resulted in a one-day . postponement of the .matter. Such an exception is not found in the speedy trial act. Furthermore, the fact that the matter was delayed for only a day is merely a fortuitous consequence of both the trial judge and the prosecutor being available to hear the matter the next day. The defense attorney was present in court when the case was set for February 17. On February 17, the defense attorney was called in the morning and again in the afternoon yet he failed to come to court. When he still did not appear by midafternoon the case was continued until the following day. Under the circumstances, the trial court correctly denied defendant’s motion for discharge.

Furthermore, the trial court did not err in failing to ask the defendant if he wanted to proceed to trial without counsel when, as here, the trial court knew that defendant was represented by counsel and counsel had answered ready for trial. In Hairston, the court determined that the fact that a defendant was not tried within the statutory period of the speedy trial act because his counsel failed to appear did not bring the two constitutional rights, the right to a speedy trial and the right to be represented by the counsel of his choice, into conflict or put an accused in a position of having to elect between rights. The court stated that “both constitutional rights were designed for the protection of the accused, and it could not have been intended that one could be played against the other in order to provide an avenue to escape prosecution.” 46 Ill. 2d 348, 354, 263 N.E.2d 840, 845.

The second issue raised by defendant is whether the prosecutor’s use of seven of eight peremptory challenges exercised to exclude blacks violated defendant’s fight to an impartial jury. If the State’s peremptory challenges were exercised in the manner and form defendant alleged, as reprehensible and sinister as this practice may be, the use of peremptory challenges to exclude members of one race from the jury does not deprive defendant of a fair trial under People v. Williams (1983), 97 Ill. 2d 252. The court indicated that it would not depart from the holding in Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837, which concluded that only a systematic and purposeful exclusion of blacks from the jury in case after case raises a question under the fourteenth amendment. See People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353.

Defendant’s third contention of error is that he was denied his sixth amendment right to counsel. While defendant was in custody and awaiting trial on an unrelated charge, he was placed in a lineup conducted pursuant to the investigation of the present case. At that time defendant was represented by counsel on the other matter. Defendant allegedly requested that the lineup be delayed until his attorney, who was on his way to the jail arrived, but it was not. When the lineup took place, defendant had not been charged or indicted in this case.

It has been established that the right to counsel attaches to “lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means.” (People v. Burbank (1972), 53 Ill. 2d 261, 272, 291 N.E.2d 161, 167, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) A defendant does not have a constitutional right to counsel at a pre-indictment lineup unless adversary proceedings have been initiated such as by formal charge, preliminary hearing, indictment, information or arraignment. (Burbank; Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) The right of counsel does not arise merely because when the lineup was held, defendant was in custody in an unrelated criminal matter. (People v. Agee (1981), 100 Ill. App. 3d 878, 427 N.E.2d 244; People v. Earl (1979), 78 Ill. App. 3d 188, 397 N.E.2d 97.) The State has not initiated formal prosecution against defendant on the matter being investigated, and the lineup was not used in the earlier case. (Agee.) Further, if the right of counsel did not attach, it was not error to proceed with the lineup despite defendant’s alleged request that his attorney be present.

Lastly, defendant contends that his consecutive sentence should be vacated and his case remanded for resentencing because the trial court failed to make a finding that a consecutive sentence was necessary for the protection of the public. Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 4(b)) provides:

“The Court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

The act does not require the trial judge to specifically repeat the statutory language in order to make the required finding that a consecutive sentence is necessary for the protection of the public although to do so would be the better practice. (People v. Pittman (1982), 93 Ill. 2d 169, 177-78, 422 N.E.2d 836.) “What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public.” People v. Pittman (1982), 93 Ill. 2d 169, 178, 442 N.E.2d 836, 840.

In the present case, the trial judge stated that he had considered defendant’s record, the presentencing report and the arguments at sentencing which urged that defendant was dangerous even to people in his own neighborhood (see People v. Thomas (1981), 98 Ill. App. 3d 852, 859, 424 N.E.2d 985, 991). The court also noted defendant had committed a calculated murder of the victim over the slightest of consequences, indicating that the defendant was “a homicidal person.” The record at the sentencing hearing provides ample support for the trial judge’s imposition of a consecutive sentence.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

GOLDBERG, J., concurs.

JUSTICE McGLOON,

dissenting:

I respectfully dissent from the decision of my colleagues on the issue of whether defendant’s right to a speedy trial was violated. As the majority indicates, the trial court’s entry on the memorandum of orders clearly discloses that on February 17, 1981, the court continued the case “by order of court.” Thereafter, two continuances were granted on motion of the State until March 9, 1981. Defendant filed his petition for discharge based upon the fact that 175 days had elapsed since he answered ready for trial. The petition was denied and the order of February 17, 1981, was altered to indicate that a continuance was granted on defendant’s motion.

In People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242, the Illinois Supreme Court established the criteria which this court must follow in determining whether a defendant’s acts contributed to delay in bringing him to trial. The court, in Fosdick, held that the provisions of section 103 — 5 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a) through (f)) were designed to implement the speedy trial rights and must be liberally construed. The facts of each case must be carefully examined to prevent a “mockery of justice” either by technical evasion of the right to a speedy trial by the State or by a delay truly caused,by defendant. Fosdick.

Having examined the facts of the instant case under the liberal construction doctrine in Fosdick, I conclude that the trial court erred in denying defendant’s petition for discharge.

The instant case was not scheduled for trial on February 17, 1981. The State did not indicate it was ready to proceed to trial on that date. Furthermore, the very next day, the State indicated that it was not ready and requested a continuance. At the hearing on the petition to discharge, defendant’s attorney testified that he was prepared to go to trial on February 17, 1981. However, when he called his office his secretary informed him that she had received several calls from the court clerk, Mr. Kerr, and had been advised that the matter was being held on call until February 18, 1981, by order of the court. Most importantly, my examination of the record fails to disclose that defendant made a motion for continuance on February 17, 1981. (People v. House (1957), 10 Ill. 2d 556, 141 N.E.2d 12; People v. Wyatt (1962), 24 Ill. 2d 151, 180 N.E.2d 478.) In the instant case, the court informed defendant that his attorney was not present and stated “*** we hold your case on call until tomorrow ***.” (Emphasis added.) Similarly, in House and Wyatt, the defendants appeared at arraignment without counsel and the trial judge suggested that their cases be continued. I am unable to see, as was the supreme court in Wyatt, how the fact that defendant was willing to take advantage of the court’s offer to hold the case converted the offer into a request for delay on motion of defendant. The court in House concluded:

“The constitutional guarantee of a speedy trial would be a mockery, indeed, if this court were to permit the State’s Attorney and trial court *** to ascribe to the defendant, when appearing for arraignment and without counsel, a motion for continuance which he did not make, and thereby toll the running of this statute.” (10 Ill. 2d 556, 559, 141 N.E.2d 12, 14.)

Accordingly, I believe that the delay which occurred was attributable to the court rather than defendant. The trial court should have granted defendant’s petition for discharge.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO RODRIGUEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 533
    Opinion filed August 30, 1983.
    Rehearing denied October 4, 1983.

      Frederick F. Cohn, of Chicago, and Michael J. Vitale, of Berwyn, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In a bench trial, defendant, Orlando Rodriguez, was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18— 2) and one count of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4). Defendant was sentenced to serve three concurrent six-year terms in the Illinois Department of Corrections. On appeal, defendant contends that he was denied his right to the effective assistance of counsel; that he was deprived of a fair hearing on his motion for a new trial; and that he was not proved guilty beyond a reasonable doubt of attempted murder. For the reasons hereinafter stated, we affirm.

Marc Fagot testified that at approximately 12:20 a.m. on October 8, 1980, he and his wife, Robin Fagot, were robbed at gunpoint by two young men, later identified as Alfredo Figueroa and George Del Valle, as they were walking home on Astor Street in Chicago. Figueroa and Del Valle took the victims’ jewelry and money, fled north on Astor, then ran west into an alley toward a blue, four-door sedan. Marc pursued the two men into the alley. When Marc was about 20 feet behind them, Figueroa turned around, aimed his revolver straight at him and fired once. Marc saw a flash, dove to one side of the alley and heard a “whoosh.” Figueroa and Del Valle then jumped into the back seat of the vehicle as it was driven away.

After a high speed automobile chase, the police apprehended defendant, Orlando Rodriguez, who was driving the blue sedan; codefendant, Ms. Lin Kuela, who was sitting in the front passenger seat; and Figueroa and Del Valle, who were in the back seat. The police searched the back seat and recovered some but not all of the property taken in the robbery. The police also found a .32 revolver on the street next to the front passenger door. The weapon had five unspent bullets and one spent cartridge. Marc was brought to the scene of the arrest where he identified his property, the handgun, Figueroa and Del Valle. He did not identify Rodriguez or Kuela.

Rodriguez told investigator Monroe Vollick that he was driving his automobile with his girlfriend, Lin Kuela, when two juveniles they knew, Alfredo Figueroa and George Del Valle, “flagged” them. The two juveniles asked Rodriguez “to drive [them] on a stickup.” Figueroa had a gun and offered to share the proceeds of the robbery with Rodriguez. Rodriguez agreed.

Figueroa directed Rodriguez to drive to the area of State and Division and told him to park in an alley and wait for them. Figueroa and Del Valle then left the vehicle. About five to 10 minutes later, Rodriguez heard Figueroa and Del Valle running through the alley toward his car. Defendant saw Figueroa turn and fire a shot in the direction of a man who was chasing them. As Figueroa and Del Valle ran past the vehicle, Rodriguez drove the car at approximately the same speed they were running so that they could get into the car. Figueroa and Del Valle jumped into the back seat and Rodriguez drove out of the alley. Rodriguez tried to elude the police but his vehicle broke down and all four occupants were arrested.

I

Defendant first contends that he was denied his right to the effective assistance of counsel.

At trial, defendant was represented by attorney Charles Carroll. Defendant cites the following instances of Carroll’s allegedly ineffective representation: Carroll did not adequately interview Rodriguez before proceeding to trial; did not conduct an independent investigation of the case; demanded trial when the term had not been running; did not arrange psychiatric or psychological interviews for defendant or have him confer with a social worker to determine his fitness to stand trial; was not aware that a severance had been granted; perfunctorily cross-examined the arresting officer; allowed the victim to reiterate his testimony on cross-examination; unsuccessfully attempted to impeach the officer to whom defendant made his oral statement; and filed a boiler plate motion for a new trial which, although this was a bench trial, asserted errors in jury instructions and referred to the prosecutor’s inflammatory closing argument to the jury. While Carroll’s representation of defendant may be subject to some criticism, we find it unnecessary to discuss each instance individually.

In Illinois, the inadequacy of a defendant’s trial counsel entitles him to a new trial only if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial probably would have been different. (People v. Corder (1982), 103 Ill. App. 3d 434, 437, 431 N.E.2d 701.) It is defendant’s burden to establish clearly both such incompetency and the resultant prejudice. People v. Martin (1983), 112 Ill. App. 3d 486, 494, 445 N.E.2d 795.

In the instant case, it appears that defendant was convicted on the basis of the extremely incriminating oral statement he gave to Investigator Vollick, the admissibility of which defendant does not challenge. In light of this compelling evidence of defendant’s guilt, we are unable to perceive how trial counsel’s allegedly ineffective representation substantially prejudiced defendant to the extent that the outcome of the trial would have been different. People v. Berger (1982), 109 Ill. App. 3d 1054, 1068, 441 N.E.2d 915.

In oral argument appellate counsel suggested that attorney Carroll may have been ineffective for not engaging in plea negotiations with the State’s Attorney’s office. Whether this constitutes evidence of ineffectiveness is questionable but need not be decided in this case because the record does not reflect whether Carroll in fact attempted to negotiate defendant’s plea to lesser charges (e.g., robbery and/or aggravated assault) or whether defendant was amenable to such a disposition.

Defendant also contends that he was “defacto” represented by counsel who owed an obligation to his codefendant, Lin Kuela, and that these competing interests conflicted so as to deprive defendant of the undivided loyalty of his trial counsel.

The record reveals that attorney John Carroll originally sought to represent both defendant Rodriguez and his codefendant, Lin Kuela, in the instant matter. On September 18, 1981, the trial court ruled that John Carroll could not represent both defendants since Rodriguez’ motion for severance previously had been granted. John Carroll filed his appearance for Lin Kuela only and the cases were continued until September 25, 1981, at which time Charles Carroll, John’s brother, filed an appearance for defendant Rodriguez. At the same time John Carroll was representing Lin Kuela in the instant case, he was also representing defendant Rodriguez in an unrelated civil matter and also in a criminal prosecution for aggravated assault in which Lin Kuela, John Carroll’s client in the present matter, was the complaining witness.

Defendant now alleges that John Carroll was manipulating his brother to the extent that defendant was really represented by John Carroll. Defendant refers to Charles as John’s “puppet brother” and argues that he and his codefendant were “de facto” represented by one counsel which representation resulted in a conflict of interest.

In support of this theory, defendant points out that prior to trial, John Carroll, through his partner, James McCarron, represented defendant Rodriguez on a motion to vacate a bond forfeiture. This, of course, was before the trial judge ordered separate counsel for defendant. In our judgment, defendant has not established that John Carroll in fact represented him in the trial of the present case. That Charles Carroll filed an answer to discovery for defendant which was identical to the one which John filed in behalf of his codefendant and may have respected his older brother’s experience do not prove that Charles was his brother’s “puppet.” Charles and John were not partners at the time of defendant’s trial, did not share offices or discuss strategy during the trial. Defendant does not contend, and we do not find, that Charles Carroll had- any conflict of interest which would have prevented him from according defendant his undivided loyalty.

II

Defendant next contends that he was deprived of a fair hearing on the motion for a new trial because the trial court improperly-invoked the work product privilege to deny defendant’s request to produce documents in the possession of Charles and John Carroll, and because the court limited his inquiry into the fee arrangement between defendant and his trial counsel. We need not reach the merits of either claim of error, however, because defendant has failed to explain how the documents or the fee arrangement could have assisted him in proving prejudice in Charles Carroll’s representation of him.

III

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt of attempted murder. Defendant argues that the State failed to prove that he had the specific intent to kill.

The record establishes that defendant was tried for attempted murder on an accountability theory. To establish defendant’s guilt, the State was required to prove that defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; that such participation occurred either before or during the perpetration of the crime; and that this participation was with the concurrent specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c); People v. Dandridge (1979), 79 Ill. App. 3d 693, 695.) A defendant’s conduct subsequent to the commission of the offense may raise an inference of prior or concurrent participation. People v. Posey (1980), 83 Ill. App. 3d 885, 404 N.E.2d 482.

In his oral statement to the police, defendant admitted that he picked up two juveniles who wanted to commit a “stickup.” Defendant knew one of the juveniles was armed and accepted their offer to share the proceeds of the robbery. Defendant drove them to the scene and waited for them in a nearby alley. About five to 10 minutes after the juveniles left defendant’s car, he heard them running toward the car. He saw one of them turn, point a gun at the man who was pursuing them, and fire. As the two juveniles ran past his car, defendant started the vehicle and drove it at approximately the same speed they were running so that they could get into the car. Both men jumped into the back seat of the vehicle and defendant drove out of the alley. Defendant then unsuccessfully tried to flee from the police. In our judgment, People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29, is controlling.

In Kessler, the defendant was the driver of a car used in committing a robbery. Defendant remained in the car while two codefendants entered the premises and shot one of the proprietors. The supreme court held that to convict the defendant of attempted murder, it was not necessary to prove that he had the specific intent to commit attempted murder, or that he committed an overt act in furtherance thereof. It was necessary to prove only that there was a common design to commit the robbery which encompassed the criminal act of attempted murder done in furtherance of the plan and intended act.

Here, the defendant agreed to assist in the perpetration of an armed robbery. The defendant knowingly and willingly aided and abetted the two juveniles in trying to escape from the scene of the crime after he knew that one of them had attempted to kill his pursuer. In our opinion, the attempted murder was committed in furtherance of the armed robbery, and defendant was properly convicted of both offenses.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.

      Despite the granting of the motion for severance, both defendants were tried simultaneously before the same judge.