author: JUSTICE WILSON

text:
    JOHN T. BURNS et al., Plaintiffs-Appellees, v. THE REGIONAL TRANSPORTATION AUTHORITY et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—0772
    Opinion filed December 30, 1982.
    Rehearing denied February 8, 1983.

      Jeremiah Marsh, Michael Schneiderman, Michael M. Conway, and John L. Rogers, III, all of Hopkins & Sutter, of Chicago (Carl J. Frank, General Counsel of the Regional Transportation Authority, of counsel), for appellant Regional Transportation Authority.
    John O. Demaret, Ronald F. Bartkowicz, and Jean M. Golden, all of Chicago, for appellant Chicago Transit Authority.
    Ray G. Rezner, W. Scott Porterfield, and Jonathan D. Moses, all of Fish-man, Merrick & Perlman, P.C., of Chicago (Julius V. Padegimas, Keefe & Ehemann Law Center, Ltd., McCarron & Carroll, Michael Glosen, and Miles Hartman, Ltd., of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

This action consolidates six complaints filed by persons who purchased July 1981 monthly passes from the Chicago Transit Authority (CTA) to contest ordinances of the CTA and Regional Transportation Authority (RTA) whereby transit fare increases affected July monthly pass holders. Plaintiffs contend that their monthly passes were contracts which entitled them, in all events and regardless of intervening fare increases, to unlimited use of CTA service for the month of July at the original price charged for their passes.

On November 7, 1979, the Chicago Transit Board (the governing body of the CTA) passed an ordinance authorizing the sale of monthly transportation passes in the Chicago metropolitan area. Purchasers of the monthly passes received unlimited services on the CTA facilities for the appropriate month upon presentation of a pass.

The public was encouraged to purchase monthly passes through a variety of advertising media including television, radio and printed circulars which touted the monthly pass for its convenience. The public was told that all purchasers of passes would be entitled to unlimited ridership for that month without the bother of needing correct change or a transfer. A pamphlet entitled “CTA Monthly Pass” contained a typical description of the benefits of owning a monthly pass. The pamphlet read in part as follows:

“Congratulations on receiving your CTA Monthly Pass. You now have unlimited riding privileges on the CTA for the entire month for which your pass has been issued. Correct change is unnecessary and you won’t have to buy a transfer — you’ll just show your Pass!”

CTA monthly passes were sold for approximately one year, when in December 1980, as the result of a financial crisis, defendants authorized a series of fare increases. The price of a CTA monthly pass thereafter rose from $30 to $35.. The following summer (1981), defendants’ fiscal problems had still not yet been resolved and in order to avoid system shutdowns, additional fare increases were implemented as well as service cutbacks.

On July 1, 1981, the Chicago Transit Board enacted Ordinance No. 81 — 88, which increased rates for service on the CTA by 12.5%. The ordinance read in part as follows:

“Ordinance No. 81 — 88
BE IT ORDAINED BY CHICAGO TRANSIT BOARD OF CHICAGO TRANSIT AUTHORITY:
Basic fare will be ninety cents ($0.90) plus ten cents ($0.10) for a transfer;
Reduced fares will be forty cents ($0.40), plus ten cents ($0.10) for a transfer;
Premium rates for express service shall be ten cents ($0.10) additional;
Monthly passes shall be sold at a charge of forty dollars ($40.00);
Packets of ten (10) tokens shall be sold at a discounted price.”

On July 2, 1981, the RTA enacted Ordinance No. 81 — 179 which, in effect, adopted the CTA’s 12.5% rate increase and which authorized the imposition of a surcharge.

CTA fare increases became effective July 6, 1981.

Between June 26 and July 1, 1981, plaintiffs (as well as hundreds of other persons) purchased July monthly passes for $35. They received unlimited service on the CTA’s facilities from July 1 through July 5 upon presentation of their passes. When the price hike became effective on July 6, 1981, however, defendants sold daily and monthly tickets to riders at the increased fares and they began collecting a 10-cent-per-ride surcharge from plaintiffs as well as all other holders of July monthly passes who had purchased passes for $35. Each plaintiff had to pay a 10-cent surcharge each time he rode the CTA from July 6 through July 31, 1981, in addition to showing his monthly pass, or else be denied access to CTA facilities.

A number of class action lawsuits were immediately filed in the circuit court of Cook County against the CTA and RTA challenging the imposition of the surcharge against July monthly pass holders. In some cases, injunctions or restraining orders were sought to ban collection of the surcharge. All of these requests were denied. The remaining cases were consolidated and a plaintiff class, representing all July pass holders who purchased July passes prior to July 6, 1981, was organized.

Plaintiffs filed an amended consolidated complaint for all cases which had been consolidated. Count I alleged that defendants had breached the contract they had with July monthly pass holders by imposing a per-ride surcharge. Count II alleged, in the alternative, that if the RTA was not a party to the contract, it had tortiously interfered with the contract between the CTA and July monthly pass holders.

The trial court granted plaintiffs’ motion for partial summary judgment on count I, the issue of liability. Plaintiffs’ motion for summary judgment on count II was denied. The RTA’s motion for summary judgment on count II was granted on the ground that the RTA was a party to the contract with July pass holders and therefore could not have tortiously interfered with its own contract. The court also certified the following issue of law pursuant to Illinois Supreme Court Rule 308 (87 Ill. 2d R. 308):

“Did plaintiffs have a contract with the Chicago Transit Authority or the Regional Transportation or the Regional Transportation Authority or both as a result of their purchase of July CTA monthly passes prior to July 6, 1981, which contract was breached by the imposition of a per ride surcharge from July 6 to July 31, 1981, following enactment of ordinances by the CTA and RTA imposing general fee increases effective July 6, 1981, so as to entitle plaintiffs to entry of partial summary judgment on the issue of liability on Count I.”

We find that a contract did exist between plaintiffs and both defendants but that it was not breached because of defendants’ statutory power to establish transit routes and fares. We reverse.

Opinion

The rule in Illinois is that a contractual relationship between passenger and carrier begins when the passenger has presented himself at the proper place to be transported with the intention of becoming a passenger and is then either expressly or impliedly accepted by the carrier for transportation. (Chicago & Eastern Illinois R.R. Co. v. Jennings (1901), 190 Ill. 478, 60 N.E. 818.) Although it is not necessary that fare should have been paid or that the person have a ticket (Illinois Central R.R. Co. v. O’Keefe (1897), 168 Ill. 115, 48 N.E. 294), the person must put himself in the care of the carrier or directly within its control with the bona fide intention of becoming a passenger. He may manifest his intention by being at the place provided for passengers by the carrier, such as the waiting room or platform at the station (Chicago & Eastern Illinois R.R. Co.) or by simply moving toward the carrier’s vehicle in order to board. (Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 289 N.E. 2d 623.) Since a carrier owes a duty of protection to its passengers, the circumstances must be such that the carrier will understand that such a person is a passenger in its care and entitled to its protection. Chicago & Eastern Illinois R.R. Co.

A contract arises, therefore, through an offer by a person to be carried, followed by an express or implied acceptance by the transportation facility to carry the person to an agreed upon destination for the current fare. O’Donnell v. Chicago & Northwestern Ry. Co. (1903), 106 Ill. App. 287.

Applying this rule to the facts before us in the instant case, we find that a contract of transportation clearly existed between plaintiffs and defendants. Plaintiffs offered themselves to be carried on defendants’ bus lines — they purchased a monthly pass from the CTA and put themselves into the CTA’s care and control. The CTA accepted plaintiffs’ offer by granting them unlimited service on its transportation facilities upon presentation of a July monthly pass between July 1 and July 5, 1981. Plaintiffs thereby became passengers and, as a matter of law, a contract of carriage was established. See Chicago & Eastern Illinois R.R. Co. v. Jennings (1901), 190 Ill. 478, 60 N.E. 818, and O’Donnell, where the Illinois supreme and appellate courts held that what facts will create a contractual relation of carrier and passenger is a question of law.

We further find that plaintiffs entered a contractual relationship with both the CTA and RTA. The RTA is statutorily authorized to enter into financial grant agreements with the CTA and has a corresponding authority to determine fares under the Regional Transportation Authority Act. (Ill. Rev Stat. 1981, ch. lllzk, par. 701.01 et seq.) The RTA Act further provides that the setting of fares is a precondition for any transportation agency, including the CTA, to receive RTA funding. The RTA is therefore the single authority responsible for mass transit in a six-county region in northern Illinois. Regional Transportation Authority v. Burlington Northern Inc. (1981), 100 Ill. App. 3d 779, 426 N.E.2d 1143.

The CTA is a unit of local government created pursuant to the provisions of the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 301 et seq.). It is responsible for operating a mass transit system in Cook County (Lustfield v. Chicago Transit Authority (1951), 408 Ill. 404, 97 N.E.2d 347) and is the recipient of grants from the RTA. The Chicago Transit Board is responsible for creating and implementing fares. Ill. Rev. Stat. 1981, ch. lllzk, par. 330.

Since a CTA ticket holder is subject to the authority of both transit authorities to alter fares and schedules, we find that a contractual relationship arises between all three parties: the RTA, the CTA and the passenger.

In its argument that a contract did not exist between plaintiffs and defendants, the CTA attempts to restrict the meaning of the term “contract of carriage.” The CTA contends that this term is used by the courts only in reference to a carrier’s liability for a passenger’s personal injuries or death. The CTA further contends that the term “contract of carriage” is inapplicable to the case at bar since the issue raised on appeal deals with an alleged breach of contract for transit fare.

We disagree with the CTA’s argument. The phrase “contract of carriage” may be used not only in relation to the liability of a carrier for personal injury or death of a passenger as a result of its failure to properly perform its duties to receive and transport such passenger, but the term encompasses all rights, liabilities and duties of the carrier and the passenger as well. Indeed, this contract is essential to the creation of the relationship of carrier and passenger. (Illinois Central R.R. Co. v. O’Keefe (1897), 168 Ill. 115, 48 N.E. 294.) We therefore give the phrase “contract of carriage” a broader interpretation than defendant CTA allows. Our reading of the controlling cases on this issue leads us to affirm over 75 years of Illinois case law which affirmatively characterizes the relation between a passenger and carrier as contractual. (O’Donnell v. Chicago & Northwestern Ry. Co. (1903), 106 Ill. App. 287.) We hold that this relationship exists in the case at bar.

Next for our consideration is whether the mere purchase of a CTA monthly pass gives rise to a contractual relationship between plaintiffs and defendants. We hold that it does not.

In accordance with our analysis above that in order to create a passenger-carrier relationship, a passenger must first make an offer to be carried, that he must put himself in the care and control of the carrier with the intention of becoming a passenger and that the carrier may show his acceptance by receiving the passenger and transporting him over its lines, it naturally follows that merely purchasing a ticket does not in and of itself create a contract of carriage. O’Donnell v. Chicago & Northwestern Ry. Co. (1903), 106 Ill. App. 287; Chicago & Eastern Illinois R.R. Co. v. Jennings (1901), 190 Ill. 478, 60 N.E. 818; Illinois Central R.R. Co. v. O’Keefe (1897), 168 Ill. 115, 48 N.E. 294.

Our courts have consistently held that a ticket (which, in the pending case is in the form of a monthly pass) forms a part of the contract of carriage but it is not itself a contract. Chicago & Alton R.R. Co. v. Dumser (1896), 161 Ill. 190, 43 N.E. 698; Illinois Central R.R. Co. v. Copeland (1860), 24 Ill. 332.

A monthly pass, like a single-ride ticket, is a receipt which reflects prepayment of the current fare and is subject to the statutory powers and obligations of the carrier (CTA and RTA). Lust v. Metropolitan West Side Elevated Ry. Co. (1921), 222 Ill. App. 288.

In Lust, a passenger had purchased a ticket from the railroad at the then current fare of six cents. The ticket bore the words “good for one fare” on its face. Prior to the passenger’s presenting the ticket for travel, the railroad raised its fare another two cents pursuant to authorization from the Illinois Public Utilities Commission. When the passenger sought to tender the ticket for transportation, the railroad refused to accept it without payment of an additional two cents. The court held that the presentation of the ticket subsequent to the fare increase was not a tender of the established fare for carriage. The court stated:

“ ‘The settled opinion is, that a passage ticket, in the ordinary form, is merely a voucher, token or receipt, adopted for convenience, to show that the passenger has paid his fare from one place to another, and does not constitute the contract of carriage ***.’ ” 222 Ill. App. 288, 293.

We are in agreement with the Lust decision as well as earlier cases which have held similarly. Chicago & Alton R.R. Co. v. Dumser (1896), 161 Ill. 190, 43 N.E. 689; Illinois Central R.R. Co. v. Copeland (1860), 24 Ill. 332.

We next turn to the terms of the contract between plaintiffs and defendants. The issue here is whether the contractual terms were breached as a result of defendants’ demand for a ten-cent surcharge. We hold that the terms were not breached because of defendants’ statutory grant of authority to alter fares.

Plaintiffs contend that under the terms of the contract, defendants were obligated to provide unlimited transportation service to plaintiffs for the month of July 1981 at the price plaintiffs paid, which was $35. Plaintiffs further contend that their purchase of a July pass before July 5, 1981, entitled them to an exemption from the rate increase and subsequent ten-cent-per-ride surcharge.

Plaintiffs argue further that the CTA’s promotion of the rights of a potential pass holder on television, radio and in newspapers, which informed the public that the monthly pass would be sold for $35, were “offers to buy” and that after plaintiffs accepted defendants’ “offer” the CTA was obligated to provide unlimited rides at that price. To support their argument, plaintiffs cite Lust v. Metropolitan West Side Elevated Ry. Co. (1921), 222 Ill. App. 288, for the proposition that the terms of a contract between carrier and passenger can be proven by parol evidence. By applying parol evidence rules, plaintiffs contend that defendants’ “offers” became part of the contract of carriage and that this contract was breached by the demand for a ten-cent surcharge.

We disagree with plaintiffs’ argument for two essential reasons. (1) Although it would appear that defendants’ advertisements were solicitations to purchase monthly passes, we are unable to characterize them as “offers.” They were merely promotions of a municipal service to the public. As we have stated earlier in this opinion, a contractual relation between carrier and passenger is established by a passenger’s offer to be carried, followed by an acceptance by the carrier. (O’Donnell v. Chicago & Northwestern Ry. Co. (1903), 106 Ill. App. 287.) (2) Since defendants did not breach the contract with plaintiffs merely by the imposition of a per-ride surcharge, plaintiffs were not entitled to unlimited service without paying a ten-cent-per-ride surcharge.

Our finding on this issue is supported by Illinois case law which holds that laws and ordinances existing at the time a contract is entered into which affect its validity, construction or enforcement enter into and form a part of the contract. Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 276, 356 N.E. 1269; Archibald v. Board of Education (1958), 19 Ill. App. 2d 554, 154 N.E.2d 867. See also Burn v. Chicago, Burlington & Quincy Ry. Co. (1910), 153 Ill. App. 319, which held that a prospective passenger purchases a ticket from a carrier subject to all laws and regulations which may be imposed on or by that carrier, and Stine v. Chicago Transit Authority (1973), 13 Ill. App. 3d 219, 300 N.E.2d 548, which recognized the discretion of the CTA to alter its operating structure without prior notice.

Therefore, although plaintiffs paid for their July passes according to the then current fare, the laws existing at the time plainly provided that the fare schedule could be changed. (Ill. Rev. Stat. 1981, ch. lll2/s, par. 701.01 et seq.\ Ill. Rev. Stat. 1981, ch. 111%, par. 330.) Plaintiffs thus purchased their passes subject to the possibility of an increased charge for the use of public transportation.

That plaintiffs purchased their monthly tickets subject to defendants’ power to increase the fare is also supported by the Lust decision. (Lust v. Metropolitan West Side Elevated Ry. Co. (1921), 222 Ill. App. 288.) The Lust court upheld the statutory authority of the Public Utilities Commission to enact a fare hike despite the fact that the plaintiff in that case purchased a ticket prior to the increase. The court stated:

“All public service contracts of this character are made with an implied provision that the rate is subject to change according to law and subject to the power of the State through its lawfully created agencies to change the rate in the future.” 222 Ill. App. 288, 294.

Lust supports our position that a contract cannot fetter a carrier’s exercise of its statutory rights. We therefore hold that plaintiffs bought their passes subject to the implied provision that the CTA’s fare structure was subject to change.

Further support for our holding that defendants properly used their authority to alter the fare schedules can be found in Hite v. Cincinnati, Indianapolis & Western R.R. Co. (1918), 284 Ill. 297, 119 N.E. 904.

The court’s rationale in Hite is applicable to the case at bar. Plaintiff Hite conveyed a parcel of land to a railroad in exchange for free transportation for him, his wife and their son during their natural lives. Free passes were provided pursuant to this contract from 1880 until 1915. In 1916, the railroad refused to issue any further passes, claiming that the Illinois Public Utilities Act required a uniform fare structure and prohibited the railroad from accepting compensation not provided for in the Commission’s rate schedule.

Hite argued that the Act as applied to his agreement with the railroad violated his constitutional right to be free from laws which impair the obligations of contracts. The court rejected this contention and held:

“All contracts, whether made by the State itself, by municipal corporations or by individuals, are subject to be interfered with or otherwise affected by subsequent statutes enacted in the bona fide exercise of the police power, and do not, by reason of the contracts clause of the Federal constitution, enjoy any immunity from such legislation. *** The condition contained in this deed was therefore subject to such regulation as might thereafter be made by the State in the exercise of its police power. Appellant dealt with the railroad company knowing that it was a public utility and that any contract made with it relating to its service was subject to alteration or abrogation by the State in its exercise of that police power.” (Emphasis added.) 284 Ill. 297, 299-300.

The court further held that because Hite had contracted for his lifetime pass subject to the power of the State to alter its fares, he no longer had the right to free transportation. 284 Ill. 297, 300.

Recent Illinois case law also affirms the discretionary power of the CTA and RTA to change the rates charged for transportation services. Our supreme court treated such a situation in Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111. In that case, the teachers union sued for breach of contract, alleging that the board of education’s decision to close the schools one day early in order to save $2.8 million in teachers’ salaries violated its collective bargaining agreement. The Illinois Supreme Court held that when a legislatively created agency is given discretionary authority, the terms of any contract with that agency are subject to those discretionary powers. The court stated:

“Just as the board has discretionary power, derived from the Code, to terminate employees *** the Code empowers the Board to control budgetary considerations ***. *** [T]he Board’s powers here are discretionary unto itself and may not be delegated. ***.
* * *
In this case, any terms relating to the length of the school term in the collective bargaining agreement were subject to the Board’s statutory power to close the schools early. Inasmuch as closing the Chicago public schools one day early was effected in compliance with provisions of the Code, that action was a lawful exercise of the Board’s discretionary power.” 88 Ill. 2d 63, 72-73.

The court concluded that the section of the School Code which granted the Board discretionary power to set an earlier closing date should be read into the union contract. 88 Ill. 2d 63, 73.

The Illinois Supreme Court’s reasoning in Board of Education and Hite v. Cincinnati, Indianapolis & Western R.R. Co. (1918), 284 Ill. 297, 119 N.E. 904, is applicable to the pending case in that like the school board of Board of Education and like the railroad in Hite, the CTA and RTA have the discretion to alter a contract for services. This contract must therefore yield to the defendants’ power to unarbitrarily charge a different fare than the one requested when the ticket was issued. Plaintiffs’ argument on this point therefore fails.

In denying that plaintiffs are entitled to damages, we do not imply that the acts of the CTA and RTA may never be subject to legal challenge. This was discussed in Stine v. Chicago Transit Authority (1973), 13 Ill. App. 3d 219, 300 N.E.2d 548, where the court rejected the plaintiffs’ claims to a proprietary interest in the CTA’s service. The court stated:

“This does not mean, however, that persons who may consider themselves aggrieved by ordinances of the Board are without remedy or recourse. On the contrary, the courts have power to protect all persons against oppressive, arbitrary or unreasonable ordinances; precisely as in the case of any other municipal corporation.” 13 Ill. App. 3d 219, 224.

The court system affords plaintiffs and all other aggrieved parties an opportunity to contest a municipal agency’s actions. In the case at bar, plaintiffs pursued their grievance through the proper legal channels; however, we find their argument that they should have been immune from paying a surcharge to be without merit. Defendants’ imposition of a ten-cent surcharge was not arbitrary or unreasonable and must be upheld. The RTA had lost important sources of local revenue, including a motor fuel sales tax, a public transportation fund supported by sales taxes and vehicle taxes, in addition to grants the State formerly made to the RTA’s carrier to support reduced fares for the elderly and students. As a result of this financial drain, the RTA was having difficulty in meeting increased operating costs that were hastened by a national price inflation. In addition, it owed carriers within the RTA region over $90 million. Under these circumstances, it had no alternative but to curtail service, shut down certain lines and raise fares. On several occasions during the last six months of 1980 the RTA publicly announced that without additional finances, mass transit operation would cease. We therefore conclude that defendants’ rate increase and the resulting surcharge that were implemented in order to offset continuing cost increases were justified.

We are aware of the fact that there is an element of unfairness here. When a carrier raises its fares, the person who purchased his ticket before the increase is, in effect, “stuck.” He is forced to submit to the increase if he wants to be a passenger. Nonetheless, we are constrained to conclude as we do. Illinois law as cited in Lust, Hite and Board of Education is clear: a contract between a public carrier and a ticketholder has an implied term that the fare is subject to change by the public agency which is statutorily charged with regulating fares. As a result, users of mass transit in Illinois, such as plaintiffs, have no contractual right to maintenance of fares at any specific level. Defendants’ authority to supersede previously issued fare passes, either by invalidating those passes purchased at lower rates or by requiring payment of additional charges, has been settled for more than 60 years. Defendants’ authority is the manifestation of the public policy which allows governmental bodies to act freely in exercising the discretion granted to them by law.

For our final consideration is the issue of whether defendants’ surcharge was prospective or retroactive. We find that the surcharge was prospective. As held by the Lust court:

“Appellee does contend, however, that the Public Utilities Commission had no power to enact any rule or order impairing the validity of an existing contract. ***
This question also has been fully settled by our Supreme Court and is not now open to debate. The substance of all these decisions is to the effect that the Public Utilities Act conferred upon the Public Utilities Commission the power of changing the rates to be charged by public utilities corporations. [Citations.] It is clear that the provisions of the State and federal constitutions forbidding the passage of laws by the State impairing the obligations of contracts do not apply to the contract involved in the case at bar.” (Emphasis added.) 222 Ill. App. 288, 293-94.

Lust clearly holds that a lawfully created agency of the State such as the RTA and CTA has the power to enact this type of fare hike. No pass holder was charged for rides taken before it became effective but rather for those trips subsequent to the fare increase. Applying the court’s rationale in Lust to the case at bar, we find that the surcharge was prospective.

We therefore hold that: (1) plaintiffs had a contract with both defendants — -the CTA and the RTA; (2) defendants properly exercised their statutorily granted authority to raise fares, which grant of authority became an implied term of the contract with plaintiffs; and (3) the contract was not breached.

For the foregoing reasons, the decision of the circuit court granting plaintiffs’ motion for partial summary judgment on count I, the issue of liability, is reversed. Upon remand, the court is directed to enter judgment in favor of defendants on count I based upon our disposition of the question certified for review.

Reversed and remanded with directions.

SULLIVAN, P.J., and MEJDA, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE ex rel. C. DAVID VOGEL, Livingston County State’s Attorney, Petitioner v. JAMES FAIRMAN, Pontiac Correctional Center, Respondent-Appellee.—(John Szostek, Relator-Appellant.)
    Fourth District
    No. 4—82—0385
    Opinion filed February 8, 1983.
    Rehearing denied March 9, 1983.
    Edward Mogul, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and C. David Vogel, State’s Attorney, of Pontiac (Michael B. Weinstein and Michael V. Accettura, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

The Interstate Agreement on Detainers.

Defendant is serving time for armed robbery in an Illinois penitentiary. Arizona wants him sent there to stand trial for another armed robbery.

Question: Did the Arizona judge “approve” the request for temporary custody?

The Illinois trial court found that he had.

We also find that he did.

We affirm.

Szostek is presently a prisoner at the Pontiac Correctional Center where he is serving a six-year sentence for armed robbery. The State of Arizona, pursuant to the Agreement on Detainers (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9) (the Agreement), forwarded a request for the temporary custody of Szostek in order to prosecute him for a second armed robbery. The request was signed by the deputy county attorney of Maricopa County, Arizona, and certified by an Arizona judge. Governor James R. Thompson of Illinois approved the request.

Szostek filed a petition for a writ of habeas corpus in Livingston County. He alleged in his petition that the Arizona judge had failed to duly approve the request for temporary custody. The trial court issued the writ and two hearings were held before the Honorable William T. Caisley. Judge Caisley found that the Arizona judge had duly approved the request and then ordered the writ of habeas corpus discharged. Szostek was remanded to the custody of Warden Fairman. Judge Caisley further ordered the warden to honor the State of Arizona’s request for temporary custody of Szostek.

Szostek argues that the Arizona judge failed to comply with the requirements of the Agreement because he failed to duly “approve” the request for temporary custody. Article IV(a) of the Agreement requires the judge in the State requesting the prisoner to “have duly approved, recorded and transmitted the request.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9, art. IV(a).) The Arizona judge’s signature on the custody request in the present case follows a clause which states in full:

“I hereby certify that the person whose signature appears above [the deputy county attorney of Maricopa County] is an appropriate officer within the meaning of Article IV(a) and that the facts recited in this request for temporary custody are correct and that having duly recorded said request I hereby transmit it for action in accordance with its terms and the provisions of the Agreement on Detainers.”

Szostek bases his position — that the judge’s signature following the above clause does not constitute approval of the request — on two separate arguments. First, he argues that the absence of the word “approved” in the clause above demonstrates a lack of approval by the judge and, second, he argues that the clause fails to reflect an independent investigation of the request by the judge.

I

His first argument is without merit. In the interpretation of statutes, common sense is often the court’s truest guide. Many times, common sense prevails where linguistic gymnastics fail. Such is the situation concerning Szostek’s first argument.

We have no reason to believe that the Arizona judge was not fully aware that the Agreement required him to approve the request. Common sense then tells us that if the judge had not approved of the request, he would not have signed it. The absence of the express term “approved” is immaterial. The judge’s signature following the above-quoted clause on the request fully constitutes the requisite approval.

II

Szostek’s second argument concerns the action a judge must take in approving a request. Szostek argues that by using the word “approved,” the legislature intended for the judge to carry out an independent investigation into the background of each detainer request. He argues that the judge may “approve” the request only after he is satisfied that the prosecutor is not filing the detainer request without grounds or in bad faith. Because the request in the case at bar contained no evidence that the judge based his decision on such an investigation, Szostek argues that it has not been duly approved.

In reply, the State argues that the word “approved” simply requires a judge to determine that the statutory requirements of the Agreement have been met. Those requirements are: (1) the requested person is in custody in another jurisdiction; (2) there is a charge presently pending in the requesting jurisdiction; and (3) the prosecutor and the requesting jurisdiction have decided to proceed with the prosecution. See generally Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9, art. III(a).

Unlike the first argument, common sense does not provide an easy answer to Szostek’s second argument. The term “approved” is a general term — undefined within the Agreement itself. Standing alone, the term does not tell us what actions must comprise the judge’s “approval” — whether he must conduct an independent investigation or whether he must simply insure that the statutory requirements are met. Therefore, this court is left with the task of determining what constitutes approval as the term is used in article IV(a) of the Agreement. There are four interpretive tools which may be employed to aid this court in defining the specific meaning of a general statutory term: plain meaning, dictionary meaning, prior judicial definitions, and legislative policy.

One prefatory note before we use those four tools. Although the Agreement is an Illinois statute, passed by the Illinois legislature, signed into law by our governor, and codified in our statute books, the United States Supreme Court has recently held that it is a Federal law. In Cuyler v. Adams (1981), 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703, the court held that an agreement such as ours is an interstate compact approved by Congress under the compact clause of the United States Constitution. The court stated that where Congress authorizes the States to enter into cooperative agreements dealing with matters which are the proper subject of Federal legislation, the consent of the Congress transforms the agreements of the States into Federal law.

Therefore, we will use the four interpretive tools as they are defined by Federal law.

(a) PLAIN MEANING

In construing a statutory term that has not been previously judicially interpreted, the court is guided by the plain meaning of the language. (Janowski v. Teamsters Local No. 710 Pension Fund (7th Cir. 1982), 673 F.2d 931.) The words in the statute should be given their ordinary meaning. NLRB v. Coca-Cola Bottling Co. (1956), 350 U.S. 264, 100 L. Ed. 285, 76 S. Ct. 383; United States v. Marathon Pipe Line Co. (7th Cir. 1978), 589 F.2d 1305.

Szostek’s interpretation of the word “approved” strains its plain meaning. If the legislature had intended the judge to launch an independent investigation into the background of each detainer request, it would have used more than the word “approved” in setting out that requirement. It appears more reasonable to this court to view the plain meaning of “approved” as a legislative direction that the judge insure that all of the statutory requirements for a transfer request have been met.

(b) DICTIONARY MEANING

In the absence of statutory definition of an ordinary term, the presumption is that the word is being used in the ordinary dictionary sense. (United States v. Fordyce (S.D. Cal. 1961), 192 F. Supp. 93.) Webster’s Third New International Dictionary defines “approve” in part as: “1. to demonstrate the truth or correctness of: *** 4. to judge and find commendable or acceptable: *** 5a. to express often formally agreement with and support of or commendation of as meeting a standard.” Webster’s Third New International Dictionary 106 (1976).

Black’s Law Dictionary defines “approve” as: “To be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another. To sanction officially; to ratify; to confirm; to pronounce good ***.” Black’s Law Dictionary 94 (5th ed. 1979).

None of the above definitions have perimeters wide enough to include Szostek’s interpretation of “approved.” None of the definitions explicitly or implicitly require independent fact finding on the part of the person making the approval. Instead, all of the definitions have a common theme — that to approve means to certify someone else’s actions as satisfactory. That is exactly what takes place under the State’s interpretation. The approving judge certifies the prosecutor’s request as meeting all of the statutory requirements.

(c) PRIOR JUDICIAL DEFINITIONS

Often prior judicial definitions of the same term in different contexts prove helpful in defining a general term. The court in Stewart v. Yellowtail (D. Mont. 1940), 35 F. Supp. 798, 799, stated that “[t]o ‘approve’ is in its essential and most obvious meaning to confirm, ratify, sanction, or consent to some act or thing done by another.” The court in Tibbens v. Clayton (E.D. Okla. 1923), 288 F. 393, 396, stated that to approve means to “sanction officially” and that the term embraced “both direction and confirmation.” Under the above cases, to “approve” means simply to ratify or sanction the act of the prosecutor. It does not mean that the judge must conduct an investigation into whether the prosecutor is using the agreement in bad faith or whether there are sufficient grounds for the custody request.

(d) LEGISLATIVE POLICY

Finally, courts must heed the general policy pronouncement of a statute. (Villanueva v. Motor Town, Inc. (7th Cir. 1980), 619 F.2d 632.) This is especially true when a statute, such as the Agreement, is fashioned after a model statute. (Pritchard v. Liggett & Myers Tobacco Co. (3d Cir. 1965), 350 F.2d 479.) It is the court’s duty to favor an interpretation which effectuates the policy behind the enactment of a statute, particularly where such an interpretation is consistent with the plain language of the statute. United States v. General Motors Corp. (D.C. Cir. 1975), 518 F.2d 420.

Article I of the Agreement states in pertinent part, “[I]t is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition” of detainers. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9, art. I.) Article IX of the Agreement requires that the Agreement “shall be liberally construed so as to effectuate its purposes.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9, art. IX.) Furthermore, the expedient and orderly processing of detainers and the increased cooperation between the party States have been judicially recognized as purposes of the Agreement. (See United States v. Mauro (1978), 436 U.S. 340, 56 L. Ed. 2d 329, 98 S. Ct. 1834; Mars v. United States (6th Cir. 1980), 615 F.2d 704 (recognizing that every effort should be made to accomplish the disposition of detainers as promptly as possible).) The State’s interpretation of “approved” furthers these legislative policies. Simply insuring that the statutory requirements are met without carrying out a background investigation results in the expeditious and orderly disposition of requests and ergo increased cooperation between the party States.

FINIS

In conclusion, it is apparent to this court that the approving judge is not required by the language of article IV(a) of the Agreement to investigate the background of every custody request. Instead, it is sufficient that he first insure that the statutory requirements have been met and then acknowledge that fact by simply signing the request form. Furthermore, that form need not contain the specific phrase “duly approved” as long as it is clear from the face of the form that the judge has approved its contents by affixing his signature.

Therefore, we find that the Arizona judge duly “approved” the request for the temporary custody of Szostek.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WAELTERMAN, Defendant-Appellant.
    Fifth District
    No. 81—307
    Opinion filed January 28, 1983.
    Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant Terry Waelterman pleaded guilty to a charge of armed violence based upon the predicate felony of aggravated battery using a deadly weapon. The plea was entered pursuant to a plea agreement whereby the State agreed to nolle prosse five other counts. On appeal, the defendant contends that his conviction for armed violence was improper where the charge against him failed to allege a proper predicate felony. We agree and accordingly reverse the defendant’s conviction for armed violence. We find, however, that upon remand the State may reinstate the charges against the defendant that were nolle prossed under the plea agreement.

On November 18, 1980, the defendant was charged by information with two counts of aggravated battery, two counts of armed violence and two counts of attempted murder. All six counts were based upon an incident that occurred on August 24, 1980, when the defendant allegedly fired a shotgun through the windshield of a car, hitting two of the five youths inside.

On March 2, 1981, the defendant appeared with counsel and entered a negotiated plea of guilty to count V of the information. Count V charged that the defendant committed the offense of:

“ARMED VIOLENCE in that said defendant while armed -with a dangerous weapon, a shotgun, performed acts prohibited by Chapter 38, Illinois Revised Statutes, Section 12 — 4(b)(1) in that he knowingly and without legal justification shot Timothy J. Murphy in the chest and the side of his body thereby causing bodily harm to Timothy J. Murphy, in Madison County, Illinois in violation of Ill. Rev. Stat. Ch. 38, Section 33a — 2.”

In exchange for the defendant’s plea of guilty to count V, the State agreed to dismiss the other five counts against the defendant. The court accepted the guilty plea and sentenced the defendant to six years with the Department of Corrections.

On April 24, 1981, the defendant filed a pro se motion to withdraw his guilty plea which was denied after a hearing on June 29, 1981. The defendant then filed this appeal, asserting that the trial court erred in not permitting him to withdraw his guilty plea and that his conviction should be reversed because it was based upon a charge that was fatally defective and void. As a result of our disposition herein, we need address only the latter of these issues.

In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, it was held that the use of a dangerous weapon which serves to enhance a charge of battery to aggravated battery may not also serve to further enhance the latter charge to armed violence. (Accord, People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987.) As the court stated:

“[T]he requirement of section 33A — 2 [the armed violence statute] that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” (People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.)

Thus, where, as in the instant case, the charge of armed violence is based upon the predicate felony of aggravated battery under section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)) which itself is based upon the use of a deadly weapon in the commission of a battery, the charge is defective and cannot stand.

We find no merit in the State’s argument that the armed violence charge was sufficient under the standard of People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, which applies when a charge is attacked for the first time on appeal. The court there held that an information or indictment is sufficient when attacked for the first time on appeal “if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (63 Ill. 2d 23, 29, 344 N.E.2d 456, 460.) Thus, while an allegation that a charge is void can be raised at any time and is not waived by failure to object at trial (People v. Walker (1980), 83 Ill. 2d 306, 415 N.E.2d 1021; People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654), a defective charge may be held to be sufficient on appeal if the defendant has not been prejudiced thereby in his defense. See People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437; People v. Rege (1976), 64 Ill. 2d 473, 356 N.E.2d 537.

The Gilmore line of cases is distinguishable from the instant case, however, because of the nature of the defects there alleged. In those cases the charging document was challenged on appeal due to omission of a material element of the offenses charged. The court found from the record of the trial that no prejudice had resulted from the omission. People v. Pujoue (defendant was not prejudiced by failure of complaint charging violation of section 24 — l(a)(10) (Ill. Rev. Stat. 1973, ch. 38, par. 24—l(a)(10)) (unlawful use of weapons) to allege that gun was loaded where defendant testified that the gun “accidentally went off”); People v. Gilmore (forgery charge failed to name payee of check but the check was available to defendant at preliminary hearing); People v. Walker (failure of attempted murder charge to allege that defendant acted with intent to kill did not prejudice his defense where defendant implicitly acknowledged his intent to shoot victim).

In the instant case, the charge against the defendant appeared to be complete in that it included all the necessary statutory elements for the offense of armed violence. By application of the Harón rule, however, it failed to allege a proper predicate felony. There is no indication that the defendant was aware of the true nature of the charge against him when he entered his plea of guilty, and we cannot say therefore that no prejudice resulted. Although, as the State points out, the factual circumstances in the instant case may have supported a plea of guilty to one or more of the dismissed counts, this fails to justify holding the defendant to his plea of guilty to a defective charge.

Our reversal of the defendant’s conviction for armed violence, which followed from a negotiated plea agreement with the State, raises the question of whether the State may, upon remand, reinstate the charges which were nolle prossed, under the terms of the plea agreement. The supreme court in People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886, held that such charges may be reinstated where the defendant successfully appeals a conviction based upon a guilty plea. Since a nolle prosequi entered before jeopardy has attached does not operate as an acquittal so as to prevent a subsequent prosecution for the same offense but leaves the matter in the same condition as before the prosecution (People v. McCutcheon), and since the defendant has successfully challenged the conviction resulting from his negotiated plea agreement, the State may, upon remand, consider reinstatement of the charges which were nolle prossed under the agreement. (This, of course, does not include reinstatement of the other count of armed violence which suffers from the same defect as that discussed in this order.) We therefore reverse and remand this cause with directions to proceed in accordance with the views expressed herein.

Reversed and remanded.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR E. MARTIN et al., Defendants-Appellants.
    First District (2nd Division)
    No. 80—2432
    Opinion filed January 25, 1983.

      Stephen Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David L. Kind, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendants, Arthur Martin and Darnell Jenkins, were charged in a four-count indictment with the murder and armed robbery of Joshua Beasley. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1), (a)(2), (a)(3) and 18 — 2.) In a bench trial, both defendants were found guilty on all counts and judgment was entered accordingly. Defendants were sentenced to serve concurrent terms of 30 years for murder and 20 years for armed robbery in the Illinois Department of Corrections. On appeal defendants contend that they were deprived of their right to the effective assistance of counsel; that they were denied a fair trial by the prosecutor’s suggestions that the testimony of certain witnesses was the product of intimidation; that they were not proved guilty beyond a reasonable doubt; that the trial court erred in denying their motions for a new trial; that the trial court abused its discretion in sentencing defendants to 30 years’ imprisonment for murder; and that they were improperly convicted of both armed robbery and murder. For the reasons hereinafter stated, we affirm the convictions and sentences for armed robbery and for murder under the first count of the indictment (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1)) and vacate the convictions for murder under the second and third counts of the indictment (111. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a)(2), (a)(3)).

The victim, Joshua Beasley, resided in an 11th floor apartment in a Chicago Housing Authority facility located at 2145 West Lake Street in Chicago (2145 building). Lena Mae Beasley, his first wife, testified that at approximately 6 p.m. on Sunday, January 27, 1980, Beasley accompanied her from his apartment to the ground floor. Upon reaching the ground floor, Mrs. Beasley stepped out of the elevator and a young black man ran past her and jumped into the elevator. Another young man in the courtyard of the building “hollered at him” to hold the elevator. In the courtyard two men appeared to be forcing a third man towards the elevator. Mrs. Beasley stated that all of the men were “in their twenties” but could not describe them in any greater detail because it was too dark. She looked back at Beasley, who was still in the elevator, to try to get his attention to tell him something was wrong. Beasley asked her what she was looking at but she was afraid to answer and hoped that he would “catch her eye” and get out of the elevator. Beasley told her not to stand there because it was getting dark and she had a bus to catch. Mrs. Beasley then walked to the bus stop. Beasley was wearing a white fur hat, a three-quarter length brown leather jacket with buttons, black leather gloves, pants and a sweater. He was also wearing a birthstone ring.

Perry Lewis, who was 17 years old at the time of trial, testified that he was playing on the stairs in the 2145 building with his 12-year-old cousin, Odessa Turner, when he heard a moan on the 11th floor. Lewis walked to the stairwell of the 11th floor where he saw both defendants, whom he had known for three years, and a third unidentified man with Joshua Beasley. Jenkins and the third man were holding Beasley while Martin stood in front of him demanding his money. When Beasley replied that he had none, Martin searched Beasley’s pockets, found his wallet and said, “I thought you didn’t have any money.” Beasley pleaded with Martin, saying, “I need this money very bad, I need it badder than you do.” According to Lewis, Martin then began striking Beasley on the side of his head with an object that was approximately 12 inches long. Jenkins and the third man removed Beasley’s coat, Martin hit him again and Beasley “slid down the wall.” The three offenders then approached the stairwell where Lewis had witnessed the attack on Beasley. Lewis ran up one flight of stairs and then began to jump down the stairs as if he were playing. On the 11th floor Lewis encountered Martin and asked him, “What’s up Red [Martin’s nickname]?” Martin threatened him, saying, “If you see anything, if you tell anybody you see anything, something is going to happen to you.”

Lewis testified that he observed the three men with Beasley for between 10 and 20 minutes and that his cousin, Odessa Turner, was not with him during that interval. He did not call for help because he was frightened. Lewis admitted that he did not tell the police what he knew until they interviewed him on March 11, 1980, more than six weeks after the crime. He explained that he did not approach the police earlier on his own initiative because he was scared. The same evening Lewis returned from the police station, defendant Martin’s brother, Charles Martin, came over to his apartment and threatened him. Lewis testified that “he [Charles Martin] said that Red [defendant Martin] said that if he get indicted, something was going to happen to me.” Martin did not elaborate but told Lewis, “You will find out.” Lewis then moved out of the 2145 building.

The police discovered Beasley’s body lying face up on the kitchen floor of his 11th floor apartment shortly before 7 p.m. on January 27. There were bloodstains around his head and the crime scene indicated that Beasley crawled to his apartment after the beating. He was already dead when the police arrived and his body was removed to the Cook County Morgue where Dr. Edmund R. Donoghue, a forensic pathologist, performed the autopsy.

Dr. Donoghue testified that he observed 21 evidences of external injury, consisting of lacerations, bruises and abrasions over his head, arms, knees and back, and three evidences of internal injury, consisting of hemorrhages under the scalp, on the back of the neck and under the skin overlying that part of the chest where the collarbones join the breastbone. Dr. Donoghue stated that these injuries were consistent with the use of blunt force. The autopsy also revealed that Beasley had severe coronary atherosclerosis (hardening of the arteries) and a thrombosis or total occlusion of the left descending anterior artery and that he had suffered prior heart attacks. Dr. Donoghue concluded that the cause of Beasley’s death was “arteriosclerotic cardiovascular disease secondary to the beating.” By “secondary to the beating” he meant that Beasley had very severe heart disease and the stress of the beating placed such a strain on his heart that he died. The beating “definitely aggravated” Beasley’s heart condition and “caused his death at this time.” A person without heart disease probably would not have been killed by the injuries Beasley sustained.

Both defendants testified in their own defense and denied that they had robbed or beaten the victim. Their testimony was substantially the same. Jenkins stated that he spent the afternoon of January 27, 1980, in his apartment in the 2145 building with his mother, Geraldine Jenkins, and his girlfriend, Frances Sims. Both Mrs. Jenkins and Ms. Sims corroborated this testimony. At approximately 6:30 or 6:45 p.m., Jenkins went to Martin’s apartment on the 14th floor of the same building to celebrate Martin’s birthday. Martin and his common law wife, Evelyn Jackson, testified that they had spent most of the day in their apartment with their children. Although Martin’s birthday is March 7, Ms. Jackson explained that Martin usually celebrates his birthday more than a month early. She could not recall, however, whether there was a birthday celebration for Martin on January 27.

The defendants testified that after a few minutes they left Martin’s apartment, walked to the 12th floor, took the elevator to the seventh floor where they tried to find Dwayne Beasley, the victim’s son, and then walked downstairs to the first floor. Lester Neal, a resident of the same building, corroborated Martin’s testimony that Martin and Jenkins had visited his seventh floor apartment looking for Dwayne Beasley. Jonathan Regunberg, an assistant State’s Attorney, testified in rebuttal that on March 11, 1980, Martin told him that when defendants left Martin’s apartment, they proceeded downstairs without stopping on the seventh floor.

Defendants testified that they drove downtown, ate dinner at the Windy City Restaurant and went to the Woods Theater. Martin stated that they arrived at the theater at approximately 7:45 p.m. and stayed for 2V2 hours. At trial, the defendants could not remember which movies they had seen. On cross-examination, Martin admitted that on March 11, 1980, he told Assistant State’s Attorney Regunberg that he had seen either “The Onion Field” or “The Tattoo Connection.” In rebuttal, Regenberg testified that Martin said that they had seen “The Onion Field,” and Jenkins said that they had seen “Cult of the Damned.” Jenkins testified that he never mentioned the name of the movie to Regunberg. Fidel Irizarri, a friend of Martin and an employee of the Woods Theater, testified that he saw Martin at the theater on January 27, 1980, at approximately 8:30 p.m. The theater was showing “Night Charge, Night Child,” “Police Woman” and “Tattoo Connection.” According to Irizarri, the theater never exhibited “Cult of the Damned.” Martin testified that he saw his friends, the Sanders sisters, at the theater, and Lily Sanders corroborated this statement.

Defendants testified that they left the theater between 10:15 and 10:30 p.m., stopped at a liquor store and then drove home. Martin and Evelyn Jackson both stated that he returned to their apartment between 10:45 and 11:30 p.m. Geraldine Jenkins stated that her son returned at 2 a.m.

Odessa Turner, Perry Lewis’ cousin, denied seeing Perry Lewis at any time on January 27, 1980. She stated that on the night before she testified she received a telephone call from Lewis who threatened her that if she told the truth, Lewis and his friend Darryl Lee would catch her “by herself.” Turner testified further that on July 24, 1980, during the court proceedings, Lewis’ mother threatened her while she was sitting in a waiting room. Turner also stated that Lewis’ sister kidnaped Turner’s mother’s baby. On cross-examination, Turner admitted that prior to trial she told an assistant State’s Attorney that she had been playing on the stairs with Perry Lewis on January 27, 1980.

Susie Turner, another resident of the 2145 building and Perry Lewis’ aunt, testified that on July 15, 1980, eight days before trial commenced, Perry Lewis visited her apartment and told her he had lied about defendant Martin and that Martin was innocent. Lewis denied that he had ever discussed the killing with his aunt.

Dwayne Beasley, the victim’s son and a Mend of defendant Martin, testified that Martin and Joshua Beasley were friends and that Martin occasionally loaned him money because he knew Beasley was poor. Beasley identified Defense Exhibit No. 3, a gold wedding band, as a ring which his father had worn. The ring had no identifying marks and Beasley did not know whether his father was wearing it on January 27. Willie Patton testified that he purchased the ring and a watch from Perry Lewis and Darryl Lee on January 28 or 29, 1980, for $15. Patton also tried on a “quarter length” brown leather coat they showed him. Lewis denied that he had attempted to sell Patton a gold band, a watch or a leather coat and stated that he had last seen Patton on January 27, 1980. Patton testified that he sold the ring to a jewelry store and pawn shop on March 6, 1980, for $24 and gave the original receipt for the ring to Geraldine Jenkins. Dwayne Beasley testified that sometime after his father’s death, he, Willie Patton, Evelyn Jenkins and Geraldine Jenkins went to a pawn shop and Mrs. Jenkins bought the ring. Mrs. Jenkins stated that only Patton accompanied her to the store.

Vanessa Beasley, the victim’s daughter, testified in rebuttal that she had seen her father wear a birthstone ring but had never seen him wear any other ring. Lena Mae Beasley, the victim’s first wife, testified in the State’s case in chief that Joshua Beasley was not wearing a wedding band on January 27,1980.

The trial court found both defendants guilty on all counts of the indictment, entered judgment thereon and sentenced each defendant to concurrent terms of imprisonment of 30 years for murder and 20 years for armed robbery.

I

Defendants first contend that they were deprived of their constitutional right to the effective assistance of counsel. Each defendant was represented by his own privately retained counsel. The Illinois Supreme Court has not yet decided whether the same standard of competence applies to both retained and appointed counsel. (See People v. Williams (1983), 93 Ill. 2d 309, 324-26.) Decisions from four of the five districts of our appellate court, however, have held in conformity with the United States Supreme Court’s opinion in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, that the effectiveness of counsel, retained or appointed, is to be measured by one standard: whether the attorney is actually incompetent as reflected in the performance of his duties as a Mai attorney, and whether that incompetence produced substantial prejudice to the defendant such that the outcome of the trial was probably changed. (People v. Moore (1981), 105 Ill. App. 3d 264, 269-70, 434 N.E.2d 300; People v. Talley (1981), 97 Ill. App. 3d 439, 442-43, 422 N.E.2d 1084; People v. Lovitz (1981), 101 Ill. App. 3d 704, 710, 428 N.E.2d 727; People v. Corder (1982), 103 Ill. App. 3d 434, 437, 431 N.E.2d 701; People v. Scott (1981), 94 Ill. App. 3d 159, 162-64, 418 N.E.2d 805.) It is defendant’s burden to establish clearly both that incompetency and the resultant prejudice. People v. Berger (1982), 109 Ill. App. 3d 1054, 1067.

In Berger, the court set out several factors to be considered in evaluating an attorney’s competence. A defendant is entitled to competent, not perfect, representation; nor is a defendant entitled to a successful defense. Competency is determined from the totality of counsel’s conduct at trial. Conduct which can be shown to be an exercise of judgment, discretion or trial strategy does not prove incompetency. Proof of prejudice cannot be based on mere conjecture. A defendant also may not rely on speculation as to the outcome of his case had the representation been of higher quality. Nor is the test what appellate counsel would have done at trial. (People v. Berger (1982), 109 Ill. App. 3d 1054, 1062.) With these principles in mind we turn to defendants’ specific allegations of incompetence.

Defendants complain of their counsel’s failure to call either Anthony or Larry Mayweather as witnesses, although both were named in the State’s answer to discovery. Defendants, however, fail to suggest what testimony Anthony Mayweather could have given. With respect to Larry Mayweather, defendants’ counsel, after trial, produced an affidavit of Denise Beasley in which she stated that Larry Mayweather had told her that he had witnessed the robbery and that defendant Martin was not one of the assailants. As the trial court correctly noted, this statement was obviously inadmissible hearsay. There was no affidavit from Mayweather. Whether Mayweather was available to testify at trial and would have testified as Beasley represented is entirely speculative. (See People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203.) Under the circumstances presented by this record, we cannot say that defense counsel’s failure to call either Mayweather was evidence of incompetence.

Defendants’ next allegation of incompetence concerns the testimony of Dwayne Beasley. On direct examination, Beasley, a defense witness, accused Perry Lewis of first selling his father a clock and a bottle of cologne and then stealing them. On cross-examination, Beasley admitted that he had no personal knowledge of this alleged conduct and the trial court disregarded his testimony on this matter. Defendants claim that this demonstrates that counsel either failed to interview Beasley properly or was unaware that his testimony was hearsay. We do not believe that these are the only two possible explanations but regardless of the reason that this particular attack on Lewis’ credibility did not succeed, it falls far short of suggesting incompetence.

Defendants also point out that defense counsel failed to prove up the impeachment of Lena Mae Beasley and Perry Lewis. On cross-examination, defense counsel questioned Mrs. Beasley about prior inconsistent statements she purportedly made to the police in which she had described the young men at the elevator as being 15 to 18 years old. Her testimony on direct examination was that they were “in their twenties,” which was the approximate age of defendants. In response to counsel’s inquiry, Mrs. Beasley stated that she could not recall whether she had so described them but if she had, it was because she was very upset. Defense counsel did not prove that the witness gave an inconsistent statement, but we do not find that this is evidence of incompetence. Although the witness did not unequivocally admit that she had made the prior inconsistent statements, nothing in the record indicates that the court ignored this impeachment or doubted whether she had given an inconsistent statement. In closing arguments, which were notable for their extraordinary give and take between counsel and the court, defense counsel represented without correction by the court that the witness had told the police that the men she saw on January 27 were 15 to 18 years old. In any event, the failure to use available impeaching evidence relative to a witness’ description does not constitute incompetence. (People v. Nelson (1982), 106 Ill. App. 3d 838, 844, 436 N.E.2d 655.) This is particularly true in the case at bar where the witness, Lena Mae Beasley, never identified either defendant. The identification of defendants was based entirely on the testimony of another witness, Perry Lewis, who had known both of them for several years.

On cross-examination, Perry Lewis denied that he used several aliases. Defendants argue that defense counsel’s failure to introduce evidence contradicting Lewis’ denial is indicative of incompetence. We cannot agree. Nothing in the record establishes that defense counsel had evidence that Lewis employed aliases. Moreover, even if counsel had such evidence, we question whether that evidence would have been admissible (see People v. Steptore (1972), 51 Ill. 2d 208, 216-17, 281 N.E.2d 642 (regarding impeachment on collateral matters) or probative of Lewis’ credibility (see People v. Berlin (1979), 75 Ill. 2d 266, 268, 388 N.E.2d 412 (regarding the innocuous use of aliases)).

Lewis also denied on cross-examination that he told the police that the crime occurred on the seventh, and not the 11th, floor of the 2145 building. The attempted impeachment was not perfected. In closing argument defense counsel referred to a police report in which Lewis allegedly said that the offense occurred on the seventh floor. At this point, the court interjected, “It may be just a technical point, but none of that impeachment was completed, was it?” Nothing in the court’s question indicates that it was going to overlook the attempted impeachment. Counsel was permitted to continue with his argument and, after a few moments, returned to a discussion of what the police report said without further comment by the court. In our judgment, counsel’s technical failure to perfect his impeachment on this matter does not necessarily reflect on his competence.

As further evidence of incompetence, defendants mention three instances during the cross-examination of defendant Martin and defense witness Dwayne Beasley when, without objection by defense counsel, the State was allowed to suggest matters for which there was no evidence. Failure to object, however, may have been a tactical decision which is not reviewable. (People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203.) Moreover, this was a bench trial and there is a presumption in a bench trial that the court considered only competent evidence. (People v. Rodgers (1978), 58 Ill. App. 3d 719, 724, 374 N.E.2d 721.) This presumption is not overcome unless the record affirmatively shows that the court actually relied on the objectionable evidence. (People v. Conwell (1978), 64 Ill. App. 3d 995, 1003, 382 N.E.2d 64.) No such showing has been made here. We have reviewed defendants’ other allegations of incompetence and find that they are without merit.

The issue of competence of counsel must be determined from the entire record rather than from isolated instances in the trial. (People v. Berger (1982), 109 Ill. App. 3d 1054, 1067.) Upon our examination of that record, we cannot say that defendants were denied the effective assistance of counsel. Defense counsel vigorously and extensively cross-examined the State’s witnesses, moved for directed findings, presented 12 witnesses in defense and gave detailed closing arguments and responded immediately and thoroughly to the court’s inquiries during those arguments. Throughout the trial counsel manifested familiarity with all aspects of the case against their clients and capably, albeit unsuccessfully, defended them.

To be entitled to a new trial on grounds of ineffective assistance of counsel, defendants must clearly establish both that counsel were actually incompetent as reflected in the performance of their duties as trial attorneys, and that this incompetence substantially prejudiced defendants such that the outcome of the trial was probably changed. In our judgment, defendants have shown neither incompetency nor the resultant prejudice. We therefore conclude that defendants are not entitled to a new trial.

II

Defendants next contend that the State attacked the credibility of certain defense witnesses with repeated, unsupported insinuations that the witnesses’ testimony was the product of threats and intimidation. The State initially responds that this issue has been waived since it was not raised in either defendant’s motion for a new trial. While we could find that the issue has been waived, nevertheless we choose to address it.

At trial, one of the prosecutors suggested to the court that the purpose of the defense in sending defendant Martin’s brother to the home of Susan and Odessa Turner was not to transport them to court but to intimidate them into testifying for the defense. When defense counsel objected, the trial judge stated that he was not likely to be inflamed by remarks of either counsel. Obviously the court was not affected by the prosecutor’s suggestion. Prior to Perry Lewis testifying, the prosecutor argued that the presence of the defendants’ families in the courtroom was a subtle form of intimidation of the witness. Again defense counsel objected and the court said: “Without going into [ajllusions, if the request is simply that since there is room and everybody is sitting on the other side of the courtroom, these people should as well, I think that is appropriate and I will so ask.” Nothing in the court’s answer indicates that it was improperly influenced by the prosecutor’s comments. After Lewis testified, the prosecutor asked that he be allowed to leave the courtroom and the building immediately “because of the threats and his own family’s fears.” The court granted this request, stating that “[tjhere is at least a colorable claim of his concern for himself in that he wants to get out of here, ***.” In light of Lewis’ testimony that both defendant Martin and his brother threatened him, we find nothing objectionable either in the prosecutor’s request or in the court’s response.

The major portion of defendants’ second argument is devoted to the State’s cross-examination of Susie Turner, Perry Lewis’ aunt, who testified on direct examination that Lewis admitted to her that he had lied in naming Martin as one of the offenders. Mrs. Turner initially refused to relate the substance of that conversation, explaining that she had been threatened. Defense counsel declined the court’s invitation to inquire further about any threats to the witness and this became an area of the State’s cross-examination.

Mrs. Turner stated that she knew that members of defendants’ families were present in court as she was testifying and was aware that they lived in her building. Several relatives of defendants spoke with her before she took the stand. She stated that she had feared to testify because she had been threatened, but was not afraid to return to her apartment since she had testified that “Red [defendant Martin] didn’t do it.” On further cross-examination, Mrs. Turner admitted that she had not wanted to give a statement to anybody because she was afraid. She concluded her testimony saying, “Either way it go, I am afraid.” In our opinion the State’s cross-examination was not improper.

The attempted intimidation of a witness in a criminal case is properly attributable to a consciousness of guilt and is thus relevant. (People v. Jones (1980), 82 Ill. App. 3d 386, 393, 402 N.E.2d 746.) It was brought out on direct examination that Mrs. Turner had been threatened and the State was well within the bounds of permissible cross-examination to explore the source of those threats. Defendants, however, argue that although the State failed to prove who had threatened Mrs. Turner, it succeeded in insinuating to the court that it was the defendants. Defendants refer us to a comment the court made during closing argument, but we do not find that the comment, in context, supports defendants’ argument.

Defense counsel’s theory at trial was that Perry Lewis had implicated the defendants to avoid being charged himself. In developing this theory in closing argument, counsel posed the rhetorical question, why would Susie Turner lie. The court interjected:

“No, let’s not get onto Susie Turner for a moment. Even assuming what you are saying is true [that Lewis had falsely accused the defendants], why would he [Lewis] go back to 2145 West Lake Street where apparently on sight and with justification he could believe that any number or any large number of people would see him, would at least jump on him and beat him up.”

The court’s remarks were clearly addressed to the reasonableness of defendants’ theory that Lewis had “framed” the defendants and did not even remotely reflect a belief on the court’s part that defendants or their families had threatened or intimidated Susan. Turner. Defendants have failed to show that they were prejudiced by the prosecutor’s comments or by his cross-examination of Mrs. Turner.

Ill

Defendants next contend that they were not proved guilty beyond a reasonable doubt. Specifically, defendants argue that there was insufficient evidence that defendants’ acts caused the victim’s death and that the testimony of the sole occurrence witness, Perry Lewis, was unworthy of belief.

In a criminal trial, the State bears the burden of proving beyond a reasonable doubt all the material and essential facts constituting a crime. (People v. Weinstein (1966), 35 Ill. 2d 467, 470, 220 N.E.2d 432.) In a murder prosecution, those facts are proof of death and proof of a criminal agency causing death. (People v. Benson (1960), 19 Ill. 2d 50, 58, 166 N.E.2d 80.) The State, however, is not required to prove that a defendant’s acts constituted the sole and immediate cause of death. It is sufficient that the State establish that those acts constituted a contributory cause such that the death did not result from a source unconnected with those acts. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 625, 432 N.E.2d 1316; People v. Brown (1978), 57 Ill. App. 3d 528, 531, 373 N.E.2d 459.) In our judgment, the State has met this burden.

The pathologist, Dr. Donoghue, testified that the cause of Joshua Beasley's death was “arteriosclerotic cardiovascular disease secondary to the beating.” By “secondary to the beating,” he meant that Beasley had very severe heart disease and the beating placed such a strain on his heart that he died. Evidence similar to this has been held sufficient to establish criminal agency. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 624-25, 432 N.E.2d 1316; People v. Cunningham (1902), 195 Ill. 550, 63 N.E. 517.) The fact that a person without the deceased’s history of heart disease probably would have survived the attack is immaterial. People v. Humble (1974), 18 Ill. App. 3d 446, 449-50, 310 N.E.2d 51.

Defendants, however, point out that based on his autopsy examination alone, Dr. Donoghue could not exclude the possibility that the victim’s death was caused by some stress independent of the beating. The testimony of Lena Mae Beasley and Perry Lewis, however, established that the victim was alive before and during the assault. The only reasonable inference that can be drawn from their testimony is that the stress of the beating did in fact trigger the heart failure. This was also the opinion of Dr. Donoghue who testified that the beating “definitely aggravated” Beasley’s heart condition and “caused his death at this time.”

The determination of whether there was a casual relationship between the defendants’ conduct and the decedent’s death is a matter properly left to the trier of fact. (People v. Dillon (1975), 28 Ill. App. 3d 11, 18, 327 N.E.2d 225.) The trial court found that the beating inflicted upon Joshua Beasley caused his death. On the basis of the evidence presented, we cannot say that this finding was erroneous. The State proved beyond a reasonable doubt that the victim’s death was the result of criminal acts.

Defendants argue that their convictions for murder and armed robbery must be reversed because they rest on the uncorroborated and uncontradicted testimony of a single witness, Perry Lewis, who only identified defendants as the offenders after he had been arrested and advised of his rights. We have carefully examined the evidence on which defendants rely and find that defendants’ argument merely raises questions of credibility which, in a bench trial, were within the province of the trial judge to decide. (People v. Glaze (1977), 48 Ill. App. 3d 523, 532, 362 N.E.2d 1287.) The testimony of a single witness, if positive and credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. (People v. Carr (1973), 16 Ill. App. 3d 76, 78, 305 N.E.2d 554.) Where, as here, the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) In the instant case the trial court apparently believed the testimony of Perry Lewis and rejected the alibi presented by defendants. We cannot say that these determinations were in error. Accordingly, the defendants’ convictions will not be reversed for insufficiency.

IV Defendants next contend that the trial court abused its discretion in refusing to grant them a new trial. The basis of defendants’ motion for a new trial was newly discovered evidence. In support of their motion, defendants attached the affidavits of George Adams, a security guard at the 2145 building, Aaron Beasley and Denise Beasley. George Adams alleged in his affidavit that sometime after the attack upon Joshua Beasley, he heard Perry Lewis brag that he (Lewis) had committed the offense himself. Aaron Beasley stated that the gold wedding band marked as Defense Exhibit No. 3 was indeed his father’s ring. Denise Beasley denied that the deceased was wearing a birthstone ring on the day that he died and claimed that no one had given her sister, "Vanessa Beasley, a birthstone ring on January 27, 1980.

Motions for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts and, in order to prevent fraud and imposition on the part of the defeated party, should always be subjected to the closest scrutiny by the court. (People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) To entitle a defendant to a new trial, newly discovered evidence must meet the following standards: it must be conclusive and likely to change the result upon retrial; it must be material and noncumulative; it must have been discovered after the trial; and it must be of such character that it could not have been discovered before trial by the exercise of due diligence. (People v. Ramos (1980), 80 Ill. App. 3d 722, 725, 400 N.E.2d 676.) Newly discovered evidence which only has the effect of impeaching, discrediting or contradicting a witness does not afford a basis for a new trial. People v. Carpenter (1979), 74 Ill. App. 3d 770, 774, 393 N.E.2d 50, citing People v. Holtzman (1953), 1 Ill. 2d 562, 568, 116 N.E.2d 338.

The averments in the affidavits of Aaron and Denise Beasley are merely cumulative of evidence presented at trial and could not be regarded as conclusive on any issue. Turning to the affidavit of George Adams, we note that defense counsel initially made a tactical decision to proceed to trial without George Adams because counsel believed that there was enough evidence without Adams’ testimony to raise a reasonable doubt of the defendants’ guilt. Defense counsel was aware of what testimony Adams purportedly could have given but did not seek a continuance in order to locate him. Given these circumstances, the trial court ruled that defense counsel failed to exercise due diligence in discovering the evidence provided by George Adams. We cannot say that this determination was in error.

A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of a manifest abuse of that discretion. (People v. Miller (1980), 79 Ill. 2d 454, 462, 404 N.E.2d 199; People v. Reese (1973), 54 Ill. 2d 51, 59, 294 N.E.2d 288.) No such showing has been made, and we find no error in the trial court’s denial of defendants’ motion for a new trial.

V

Defendants next contend that the trial court abused its discretion in sentencing defendants to 30-year sentences for murder. Defendants maintain that these sentences are excessive and that the minimum sentence of 20 years would be more appropriate given the defendants’ “youth and exemplary backgrounds” and their potential for rehabilitation. Defendants also argue that the court placed undue weight on the need for deterrence and improperly considered the fact of the victim’s death as a factor aggravating defendants’ convictions for murder.

Our courts have frequently stated that the trial judge is in a better position to determine the punishment to be imposed than the courts of review. (See, e.g., People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. (People v. Bolyard (1975), 61 Ill. 2d 583, 589, 338 N.E.2d 168.) This judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors which is superior to that afforded by the cold record in this court. (Perruquet.) Accordingly, “the trial judge’s decisions in regard to sentencing are entitled to great deference and weight,” and, “absent an abuse of discretion *** a sentence may not be altered upon review.” People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, quoting People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

Initially, we must point out that the trial court specifically declined to impose either consecutive sentences or extended term sentences. And the court did not impose the maximum sentence for murder (40 years) “primarily because of the prior good record of these defendants, ***.” Among the factors in mitigation, the court placed principal emphasis on the “absence of any prior record of convictions,” stating that “in each case that is a very significant fact.” The court also mentioned “the mitigating factors of employment ***.” It is apparent from these and other remarks at the sentencing hearing that in selecting an appropriate sentence, the trial court did take into account the age, employment history and absence of a criminal record of each defendant. The court, however, found that a minimum sentence was inappropriate “because of the viciousness of the actions which occurred, ***.” The court elaborated:

“This was a beating for sport, he was beaten for the fun of being beaten, and he was beaten to death.
It was not a beating as part of or a necessary part of the other unlawful end of the armed robbery. Apparently, at some point it took on its own end to simply beat Joshua Beasley because he was there and handy, and it was fun to do to beat this old man down to his knees and leave him in the kind of condition he was in as he crawled away from the puddle of blood outside the elevator, a puddle of blood brought about not by any deep wound, but a puddle of blood caused by extensive bleedings from superficial wounds, wounds around the face and head and the like, which is an indication of just how badly he was beaten to leave that much blood.”

The record amply demonstrates that defendants received sentences in excess of the minimum for murder because of the “vicious, senseless, unprovoked beating” they inflicted upon the deceased. Moreover, we do not find that the court gave “undue weight” to the need for deterrence. The court stated that defendants had to be punished both in consideration of the effect of punishment upon them and as deterrence to others. The court explained:

“I don’t know to what extent it would make any difference, but the Court has to do at least its part in getting the message across that it’s not open season on the Joshua Beasleys of this world and the Taylor homes or in any other housing projects, wherever they may be, but they are citizens and entitled to the same protections we all enjoy.”

We find no error in this. Nor do we find any error in the court’s reference to “the aggravating factor which was previously pointed out of the matter of the death of Mr. Beasley.” We have recently stated that “[i]t is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error.” People v. Barney (1982), 111 Ill. App. 3d 669, 679.

The apparent thrust of defendants’ argument is that no sentence in excess of the minimum may be imposed unless an aggravating factor not implicit in the crime itself is present. Since, according to defendants, there were no aggravating factors here, the trial court’s sentences for murder are excessive. While our previous examination of the trial court’s comments at the sentencing hearing leaves no doubt that there was an aggravating factor (see People v. Warfel (1979), 67 Ill. App. 3d 620, 625-26, 385 N.E.2d 175), we also believe the premise of defendants’ argument is erroneous.

We have recently observed that the Code of Corrections “imposes no requirement that the minimum sentence be imposed in the absence of aggravating factors.” (People v. Barney (1982), 111 Ill. App. 3d 669, 679.) After a careful analysis of the Code of Corrections, we concluded that “a sentence not in excess of the maximum authorized may be imposed in the absence of such aggravating factors.” (111 Ill. App. 3d 669, 680.) While it is improper to impose a sentence more severe than the sentence that would have been imposed if the impermissible factor had not been considered (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906), we do not find that an impermissible factor was considered here. Defendants have failed to show that the trial court abused its discretion in sentencing them to 30 years’ imprisonment for the crime of murder.

VI

Defendants’ final contention is that they were improperly convicted and sentenced for three counts of murder and one count of armed robbery which arose out of the same physical acts. Defendants also contend that the armed robbery convictions and sentences must be vacated because armed robbery is a lesser included offense of the felony-murder conviction.

Defendants were indicted on three counts of murder (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3)) and one count of armed robbery. They were found guilty on each count and judgment was entered on each count. In sentencing defendants, the trial court stated: “I’m going to impose on each of these defendants upon their conviction [not convictions] of murder, which is to the Department of Corrections for a period of thirty years ***.” The mittimus indicates that each defendant was sentenced to a single 30 year term on all three convictions. In our judgment, the trial court imposed one 30-year sentence for murder on each defendant, not three 30-year sentences, as defendants represent.

Since there was only one victim, only one murder conviction is appropriate. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Where multiple convictions have been entered erroneously, the less serious or “included” offense(s) will be vacated. (People v. Whitaker (1980), 87 Ill. App. 3d 563, 566, 410 N.E.2d 166.) The Criminal Code defines an “included” offense as one which is established by proof of a less culpable mental state than that which is required to establish the commission of another crime charged. Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9(a).

Here, defendants’ three murder convictions are equally serious Class X offenses. Of the three, however, the most culpable mental state is that which is required for a conviction of “intentional” murder under subsection (a)(1), which requires proof of a defendant’s “actual intent” to kill or do great bodily harm. By comparison, subsection (a)(2) requires proof that a defendant “know” that his acts create a “strong probability” of death or great bodily harm. Felony-murder (subsection (a)(3)) is an “implied intent” offense. A person may be convicted of felony-murder “whether the killing *** is intentional or accidental, or is committed by a confederate without the connivance of the defendant.” (Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments, at 16 (Smith-Hurd 1979).) For purposes of felony (armed robbery) murder, there is no requirement that the State prove a mental state element for the underlying offense. (People v. Hawkins (1973), 14 Ill. App. 3d 549, 551, 302 N.E.2d 128.) Thus, no mental state element as such need be proved to obtain the felony-murder conviction. (People v. Gulliford (1980), 86 Ill. App. 3d 237, 244, 407 N.E.2d 1094.) The defendant is held strictly liable for felony-murder upon proof of armed robbery. By contrast, in order to obtain a conviction under the first classification of murder as defined in Illinois, the State is required to prove beyond a reasonable doubt that the defendant intended “to kill or do great bodily harm,” or knew that his acts would cause death. To obtain a conviction under the second classification, the State must prove that the defendant knew that his acts “created a strong probability of death or great bodily harm.”

The mental state element in subsection (a)(1) renders more culpable a subsection (a)(1) offense than a subsection (a)(2) offense. And both are most culpable than a subsection (a)(3) offense for which no mental state element exists. Thus, it appears that on the basis of criminal culpability, the defendants’ felony (armed robbery) murder convictions under subsection (a)(3) and their convictions under (a)(2) are “included” offenses of their convictions under subsection (a)(1) and must therefore be vacated. See People v. Bone (1982), 103 Ill. App. 3d 1066, 1068-69, 432 N.E.2d 329 (of defendant’s two murder convictions under subsections (a)(2) and (a)(3), the appellate court vacated the (a)(3) conviction); People v. Robinson (1969), 106 Ill. App. 2d 78, 86-87, 246 N.E.2d 15 (of defendant’s two murder convictions under subsections (a)(1) and (a)(2), the appellate court vacated the (a)(2) conviction); People v. Brownell (1980), 79 Ill. 2d 508, 514, 404 N.E.2d 181 (of defendant’s two murder convictions under subsections (a)(1) and (a)(3), the trial court vacated the (a)(3) conviction).

Our vacation of defendants’ convictions under subsections (a)(2) and (a)(3) makes it unnecessary to reach defendants’ contention that the armed robbery convictions must be vacated as lesser included offenses of the felony-murder convictions. But see People v. Miller (1980), 89 Ill. App. 3d 973, 979, 412 N.E.2d 175; People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094 (armed robbery is not a lesser included offense of felony-murder).

We do not find that it is necessary to remand the cause for resentencing on either the defendants’ convictions for murder under subsection (aXl) or for armed robbery. Defendants’ argument in favor of remandment assumes that defendants’ sentences in excess of the minimum are explainable only by reference to the fact that there were multiple convictions for murder. For the reasons set forth previously (Part V), we disagree and therefore decline to remand for resentencing.

For the foregoing reasons, we affirm the defendants’ convictions and sentences for armed robbery and for murder under the first count of the indictment (Ill. Rev. Stat. 1977, ch. 38, par. 9 — l(aXl)) and vacate the convictions for murder under the second and third counts of the indictment (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — l(aX2) and (aX3)).

Affirmed in part and vacated in part.

DOWNING, P.J., and STAMOS, J., concur.

       Although defendants urge us to replace this standard with the “minimum standard of professional representation” test articulated in United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, our supreme court has repeatedly rejected that standard. (See, e.g., People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203.) We therefore decline defendants’ invitation to adopt it.