author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK L. McKOWN, Defendant-Appellant.
    Third District
    No. 80-361
    Opinion filed January 28, 1982.
    Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Frederick L. McKown, appeals from his aggravated battery conviction following a jury trial in the Circuit Court of Fulton County. The circuit court sentenced the defendant to 2 years probation conditional upon serving 14 days’ imprisonment and payment of $500 in restitution. The issues presented on appeal are whether a conflict of interest existed by virtue of defense counsel’s relationship with the Attorney General’s office and whether the defendant knowingly and intelligently waived the conflict of interest. We affirm.

The defendant was initially represented by the Fulton County public defender, who withdrew because of a conflict of interest arising from his representation of the two co-defendants in the case. Attorney Ronald J. Weber then entered his appearance on behalf of the defendant. But Weber, who was privately retained, also presented a potential conflict of interest in that a member of his firm was then employed as a special assistant Attorney General for condemnation litigation. Prior to trial, Weber informed the defendant of the existence of the potential conflict and, pursuant to section 5 of the Attorney General’s internal code of conduct, attempted to gain his client’s written waiver of the conflict by means of the following preprinted form:

“ATTORNEYS DISCLOSURE OF CONFLICT OF INTEREST
You are hereby informed that Ronald Weber and C. Eugene Taylor, members or associates of the law firm of Froehling, Taylor & Weber are Special Assistant Attorneys General for condemnation. The Illinois Courts have ruled that where a defendant in a criminal case is represented by an attorney who is a Special Assistant Attorney General for the handling of any matters, whether civil or otherwise, there is a conflict of interest. That conflict bars the attorney from acting for the defendant unless the defendant waives it freely upon a full disclosure of the facts. We are now making that disclosure so that you can, if you choose, waive the conflict and retain us as your lawyer.
The conflict arises from the commitment of every Special Assistant Attorney General to the People of Illinois to seek enforcement of the law, and it exists even though a particular Special Assistant may never be employed in any criminal proceeding on behalf of the State. In any criminal case in Illinois, the Attorney General’s office may be called upon to aid in the prosecution. Although neither Ronald Weber nor C. Eugene Taylor are likely to be called upon to represent the State in your case or in any other criminal proceeding, nonetheless you should be aware that the courts have held that because of their relationship with the Attorney General a conflict of interest exists. You are entitled to be informed about that conflict so that you can determine whether it might or might not be detrimental to you.
Dated: May , 1980.
s/ Ronald Weber.”
The waiver form involved is as follows:
“DEFENDANTS RECEIPT AND WAIVER
I, Frederick McKown, being a defendant in the above-entitled action, acknowledge receipt of a copy of the above disclosure. I have read it and I understand that my lawyers, because of their position with the Attorney General’s Office do have commitments to the People of Illinois generally to seek enforcement of the law and could therefore have other interests than mine as they work on my case. I am satisfied that the firm of Froehling, Taylor & Weber, including Ronald Weber and C. Eugene Taylor, will represent me fairly and competently in the above-entitled action and I hereby freely consent to their doing so. I hereby waive any right that I may now have, or have had, or may hereafter have, to claim that I was harmed or not fairly or competently represented because of any conflict of interest by reason of the matters and things set forth above or because said firm or any member of associate of the firm is now a Special Assistant Attorney General.
Dated: May , 1980.
s/ Fred McKown
Defendant.”
At a pretrial hearing held to apprise the court of the potential conflict and the defendant’s purported waiver, the following colloquy took place:
“BY MR. WEBER: Your Honor, I would at this time like to state for the record that my office represents the Attorney General’s Office, specifically Gene Taylor is an Assistant Attorney General for the purpose of condemnation, and I believe the law now provides that pursuant to our representation of the Attorney General’s Office, we could be called upon to do appellate work for the State’s Attorney’s Office, and pursuant to that, we are required to disclose this to my client, Mr. McKown, which I have previously done; that that potential conflict does exist, and while I feel that in no way would it affect my representation of him, I do feel that this disclosure should be made in open court; and Mr. McKown has suggested to me privately that he has no objections, and at this time I would ask him if he would have any objections.
BY MR. MCKOWN: No sir.
BY THE COURT: Do you fully understand what your counsel is telling you?
BY MR. MCKOWN: Somewhat. I don’t know for sure.
BY THE COURT: Well, his office is retained and represents the Attorney General’s Office. The Attorney General’s Office of the state of Illinois is a law enforcement office, too, and that office is sometimes involved in appellate matters that come out of this court.
BY MR. MCKOWN: What is appellate matters?
BY THE COURT: It means review, court of review, a higher court. This court would review. Now, it’s possible that this case could wind up with the Attorney General’s Office representing the People, which would be adverse to your interests. Do you see?
BY MR. MCKOWN: Uh huh.
BY THE COURT: The possibility is probably very slender, but still there is that possibility. Now, that makes the conflict, you see?
BY MR. MCKOWN: Uh huh.
BY THE COURT: Do you see the conflict?
(MR. MCKOWN NODS HIS HEAD.)
BY THE COURT: Now, what’s he’s asking is that you waive that conflict and for him to represent you.
BY MR. MCKOWN: Yeah.
BY THE COURT: Have you got any questions?
BY MR. MCKOWN: No, sir.
BY THE COURT: Do you want him to represent you?
BY MR. MCKOWN: Yeah.
BY THE COURT: Or do you want another attorney?
BY MR. MCKOWN: I will let him represent me.”

Thereafter, three defendants were tried jointly. The State adduced the testimony of the victim and two occurrence witnesses, and the three defendants each testified in their own defense. The victim stated that the defendants provoked a brawl while the defendants testified that the victim started the melee when, without provocation, he kicked the defendant’s brother in the stomach. Thereafter, the jury returned a guilty verdict against defendant McKown and acquitted his two co-defendants.

On appeal, the defendant asserts (1) that his retained counsel had a conflict of interest which requires no demonstration of prejudice to the defendant and (2) that the purported waiver was not made knowingly and intelligently.

Since People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, the Illinois courts have applied, at least in nonmultiple representation situations, a per se rule to conflicts of interest in criminal cases. According to Stoval and its progeny, once a conflict of interest is established on the part of defense counsel at the time of trial, the defendant was denied effective assistance of counsel, and reversal is automatic without any demonstration of prejudice to the defendant. See, e.g., People v. Meyers (1970), 46 Ill. 2d 149, 263 N.E.2d 81; People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67; People v. Arreguin (1981), 92 Ill. App. 3d 899, 416 N.E.2d 402.

The Illinois Supreme Court has likewise applied the per se rule to claims of conflict of interest based upon certain relationships between defense counsel and the prosecution. In People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569, for example, defense counsel formerly was a member of the State’s Attorney’s office and had appeared for the prosecution several times in the defendant’s case before leaving to represent the defendant. The supreme court reversed the defendant’s conviction entered on his negotiated plea because of the possibility that counsel might have been reluctant to attack portions of the prosecution’s case for which he was responsible. As in Stoval, the defendant in Kester was not required to show that the conflict actually caused prejudice to him.

More recently, the per se rule was applied in People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345, which found a disqualifying conflict of interest where an appointed defense counsel was also employed as a special assistant Attorney General for workman’s compensation litigation. Referring to the subliminal pressures created by the hostility of interests between the Attorney General’s office and the defendant, the Fife court declared that:

“[A] conflict of interest exists where defense counsel is a special assistant Attorney General, even though limited to specified noncriminal work, and his client in a criminal case is inadequately informed of the affiliation with the Attorney General and fails to effect a knowing and intelligent waiver. In such circumstances, actual prejudice need not be shown. * 0 *.
We are concerned about the possible, perhaps subliminal pressure a defense counsel who is also a special assistant for workmen’s compensation cases might receive from the Attorney General’s office, but we believe that problem is nullified or significantly lessened by complete and effective disclosure, by effective, knowledgeable waiver, and by the fact that special assistants are engaged in duties of a noncriminal nature and of specifically defined scope, wholly unrelated to their private employment. [Citations.]
Finally, there is no question that our holding is applicable to those cases in which a member of the same law firm has an affiliation with the Attorney General while another member represents a criminal defendant.” (Emphasis added.) People v. Fife (1979), 76 Ill.-2d 418, 424-25, 392 N.E.2d 1345, 1348.

We find the Fife rule applies directly to the case at bar and establishes a per se disqualifying conflict of interest. The fact that in Fife counsel was appointed, while here, Weber was retained is not significant. The United States Supreme Court in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, abolished any distinction between retained and appointed counsel for the purpose of determining whether a conflict of interest impaired the defendant’s sixth and fourteenth amendment rights to effective assistance of counsel.

The State urges this court to reject the Illinois per se approach and adopt the recent holding of the United States Supreme Court in Cuyler v. Sullivan. Sullivan requires a defendant to demonstrate that an actual conflict of interest adversely affected his counsel’s performance in order to establish a sixth amendment violation, and thus holds that our per se rule is not constitutionally mandated. Nonetheless, in Illinois the per se rule is still the law. Cf. People v. Lewis (1981), 88 Ill. 2d 429, 430 N.E.2d 994.

Having established the existence of a per se conflict of interest, in addition to considering whether the disclosure was effective, we now must determine whether the defendant effected a knowing and intelligent waiver of that conflict. People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345.

In People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157, the supreme court observed that the trial court thoroughly informed Robinson of the circumstances producing the possible conflict and explained the potential harm that could result to his defense. The court distinguished People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, where the trial court made no effort to explain how the conflict might subtlely affect the vigor of counsel’s representation, and then concluded:

“Defendant appears to have understood the problem and freely chose to proceed with an assistant public defender as his counsel. Assuming the possibility of conflict, in view of its attenuation here, defendant’s decision does not appear imprudent.” (79 Ill. 2d 147, 166, 402 N.E.2d 157, 166.)

On the basis of the satisfactory written and oral waivers by defendant in the case at bar, we conclude that, similar to Robinson, defendant appears to have understood the problem. The written waiver signed by McKown states quite clearly that he understood that defense counsel had a commitment to seek enforcement of the law, and he was further advised by the trial judge as to the remote possibility that defense counsel’s firm might be called upon to work for the prosecution upon appeal. We find he waived his right to conflict-free counsel both in writing and orally. At some point, a defendant must accept the consequences of his words and actions which purport to waive his rights. (People v. Duncan (1981), 97 Ill. App. 3d 896, 424 N.E.2d 67.) We believe that point was reached in this case when defendant was given a second chance to reject Mr. Weber as his counsel, and he again indicated that he wanted to retain Mr. Weber. We hold defendant’s waiver to have been effective.

Accordingly, we affirm the judgment of conviction and the sentence of the Circuit Court of Fulton County.

Affirmed.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    JOSEPH A. COURI, Plaintiff-Appellee and Cross-Appellant, v. ANTHONY J. COURI, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 81-163
    Opinion filed January 28, 1982.
    John E. Cassidy, Jr., of Cassidy, Cassidy, Mueller fit Price, of Peoria, for appellant.
    David B. Daley, of Sutkowski & Washkuhn, Assoc., of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Joseph Couri, and his brother, Anthony Couri, the defendant, jointly operated the Couri Brothers Supermarket. Plaintiff sought an accounting from the defendant for his share of that business. The trial court ordered Anthony Couri to pay $122,690 and convey his interest in a tract of real property to plaintiff. Defendant appeals. Joseph Couri cross-appeals, seeking to increase the amount of the judgment.

The business agreement, or lack thereof, which is the genesis of this controversy spans two generations. This cause, transpiring over almost a decade, consumed the services of several firms of attorneys and two judges. As are many causes involving disgruntled siblings who seek to resolve their economic differences in court, this action has featured uncompromising enmity. The facts follow.

The Couri family opened their supermarket on December 22, 1928, in Peoria. It was a family run business. Everyone helped out. Defendant began working full-time in 1931, a year out of high school: plaintiff worked full-time beginning in 1935. In 1938 the parties’ father left the business due to poor health. He died two years later. Anthony, Joseph, and Peter Couri, all brothers, opened the Couri Brothers Supermarket in 1941. They agreed to share equally in the control of the enterprise and its profits and losses for an indefinite period. The agreement was not memorialized by a writing.

Between 1941 and 1946 Joseph Couri was in the United States Army. Upon return, he began working in the store and resided above it with his mother and other family members including the defendant. From 1947 to 1956, Anthony Couri opened, operated; and eventually sold, as a partner with another, a tavern known as the Western Tap. Then, Peter Couri decided to attend medical school. In 1954, Joseph and Anthony Couri purchased in equal shares Peter’s interest in the supermarket. Operation of the store was not curtailed. In 1958, Anthony and Joseph apparently decided to sell the business to their cousins. The deal fell through.

In September 1973, Joseph Couri left the store with the resolution of dissolving the partnership with his brother. Thereafter, defendant changed the locks on the doors and reopened the same business as Couri’s Supermarket. In June 1980, a court-appointed receiver wound up the affairs of Couri Brothers Supermarket.

The partnership’s bookkeeping is unintelligible and inconsistent with acceptable accounting practices. At the end of each business day a daily report was prepared by each grocery checker. The elements of this report consisted of gross receipts less cash paid out for expenses. In short, the figure represented cash on hand at the end of the day, or at least should have. It seems that large expenses often were paid out by check during the day and such disbursements would be deducted from gross receipts. Also, the partners’ draws were taken directly from the register. Prior to 1959 no accounting existed for such draws. After 1959 each partner took what he needed and put a chit in the register with his name and the amount taken. The accuracy of this procedure, or that it was even followed, is somewhat dubious since plaintiff did not make a draw according to it until 1962.

Each month these daily reports were compiled in a monthly summary and thereafter a yearly report. The latter two reports were used for sales tax and federal income tax reporting. The defendant was responsible for these records except from 1947 to 1956 when his sister, Gladys Couri, prepared the daily reports. The defendant for the most part was responsible for depositing the cash receipts of the business. Plaintiff did the store’s ordering, paid employees, and often toiled as a butcher in the meat department.

After plaintiff decided to dissolve the partnership in September 1973, he went to settle his differences at defendant’s home. They agreed that in the previous 14 years that defendant had overdrawn from the business approximately $88,000 more than plaintiff. Since Joseph Couri wanted to sell the business he requested the account books for the prior two years. Defendant gave him the yearly books and told him he would get the “other figures.” These latter totals represented a different set of accounts for the business. In any event, settlement could not be reached as to Joseph Couri’s share of the partnership. This petition for an accounting resulted.

Six years of litigation and over a dozen hearings later, the trial court decided the case. It concluded that defendant’s calculation of store income of $546,143 was wrong. Instead, the trial judge found that between January 1, 1957 and June 30,1980, the partnership’s income was $750,000. Accordingly, defendant was ordered to pay plaintiff $122,690 based on the difference in the brothers’ respective draws from the business and the assets of the partnership.

As could be expected, both parties were dissatisfied, and appeal to this court. Plaintiff claims the accounting is inadequate and should be increased to $327,440 since the partnership’s gross profits were $1,094,500 from 1957 to 1980. Also, he contends, Anthony Couri was not entitled to $65,000 compensation as a partnership employee after the partnership was dissolved and before it was wound up on June 30, 1980. Defendant cross-appeals, arguing in the alternative that the judgment be reduced or the cause dismissed.

The initial prerequisite for maintaining a suit for an equitable accounting, as opposed to suing in law on an account, is the absence of an adequate legal remedy. The issues this cause presents is nothing more than an unsettled claim by one person against another. In conventional parlance, a debt is allegedly owed. For such a wrong a legal remedy has long been recognized in this State. Garrity v. Hamburger Co. (1891), 136 Ill. 499. 509.

Nevertheless, the fact this action is cognizable at law does not signify the sufficiency of any legal remedy that could be obtained. Given the length of this partnership and the fiscal accounting spectacle of the business, we agree with the trial judge that any legal remedy would amount to nothing more than an uncollectible chose in action. Notwithstanding, the existence or absence of mutual accounts of the parties, as well as the duty of the defendant to account to plaintiff, we cannot agree that fashioning an equitable decree is possible. Therefore, we reverse the decision of the trial court and dismiss the bill for want of equity.

Generally, to obtain an accounting in equity, plaintiff must establish the existence of a fiduciary relationship between him and the person required to account, a need for discovery, and the existence of mutual accounts which are of a complex nature. (Ely v. King-Richardson Co. (1914), 265 Ill. 148, 152.) Yet a duty to perform an act is nothing less than futile if what is requested cannot be done. In other words, the defendant cannot be made to account where no evidence exists from which such reckoning can be made.

Both parties agreed that how much income the partnership received from its incipiency until liquidation could be verified reliably from the “daily reports.” Such a concession is open to considerable doubt since those reports resulted in only a cash total for each day tabulated. Such figures did not incorporate any balancing from day to day, nor provide figures for cost of goods sold or merchandise sold on credit, even if their method of computation was precise. We have the credit accounts before us. Such records, which plaintiff kept, were inscribed on the backings of cigarette cartons and cracker boxes. They are undated and consist of a name, no address and various amounts. Additionally, over a 20-year period (1955-1975), slightly more than half of such fundamental business records as the business’ checking account statements are in the record. Nor prior to 1959 is any recordkeeping system in evidence as to the respective draws each partner took from the business. Money was taken from the till when needed.

The daily reports, which were restated in the monthly summaries and the yearly books, were destroyed two years after the filing of the instant suit. One of the defendant’s children, on the urgings of his mother, cleaned out the garage and the attic of defendant’s home while the rest of the family was on vacation. The records were in the attic. Thus, with the destruction of the records, even the question of their dubious trustworthiness has become irrelevant.

Accordingly, the parties attempted to re-create or manufacture those records. The defendant submitted the partnership’s tax returns. From 1957 through 1973 the defendant produced 10 or 11 returns, the others having been lost or destroyed. The validity of these returns is highly improbable. Defendant apparently kept two sets of books for the partnership. One represented an actual depiction of the business while the other set was used for tax purposes. The latter books misstated income so that tax liability would be reduced. Quite simply, it’s anybody’s guess what the business took in. The net income from the store for 1974-1980 was computed from the defendant’s personal income tax returns. Also, the parties submitted affidavits indicating their calculations as to what the income of the business was from 1957-1980. Defendant indicated the business generated $546,143 in income during such period. His conclusion was not supported by any schedules. Plaintiff, based on compilations made by his nephew, a certified accountant, testified that total payouts made by the partnership were $666,647. Plaintiff contends the imputed net income of the business during this time was $1,442,000. No method existed to verify the draws of either party other than their recollections. The accountant’s report had been based on the suspect partnership tax returns, affidavits by each party, and various amounts paid by the partnership to financial institutions concerning other real estate purchases by the brothers. The accountant admitted he had no idea whether any of the reports were correct. The trial court ruled the actual net income of the grocery store for the years 1957 to June 30,1980, was $750,000. This figure was the basis for calculating plaintiff’s award.

The findings of a trial judge will not be disturbed unless against the manifest weight of the evidence. Where the record, however, is barren of evidence to support the trial judge’s decision, a judgment based on such decision cannot stand. The record fails to reveal any facts which support the trial judge’s conclusion, or his method of computation, that $750,000 was the actual net income of the business over the relevant period. The figure was pure guesswork, perhaps motivated by the trial court’s propensity to end an interminable dispute rather than state with certainty an amount actually owed. Although justice is not an exact science, neither can judicial remedies be formed from arbitrary reasoning or calculations. Because plaintiff’s award was based on the trial court’s determination of the business’ actual net income, the judgment which was the result of such erroneous calculation is equally wrong.

An accounting cannot be formulated because the data necessary for such a computation has been destroyed. Although the records from 1971-75 are arguably complete to make some type of accounting, most of the figures the records provide are misstatements. Defendant testified that he understood business income as well as the cost of goods sold during that period. Although the parties have made an effort to extrapolate the truth by re-creating such récords, their effort is infected by supposition and hypothesis. Neither is a suitable benchmark for judicial decision-making.

Plaintiff argues that due to the large amount of payouts made by the partnership or the defendant between 1957-1980, it can be determined what income was necessary to make such payments. The infirmity of this reasoning is the fact that both parties had considerable real estate investments as tenants in common which were separate ventures from the supermarket partnership. Such purchases occurred over the life of the partnership, and the business served as the vehicle through which payment was made on the various financing arrangements on these properties. Also, Anthony Couri’s statement that his draws exceeded his brother’s by $88,000 is nothing more than a fact. Because he withdrew more does not mean he was not entitled to do so. Maybe he had it coming. Perhaps the money was spent on the real estate ventures. Nobody can tell. Over the 37 years the partnership existed, half of that time no system existed of measuring draws against the partnership assets.

We recognize defendant had a duty to account to plaintiff concerning the parties’ respective shares. In other words, he had the burden of production. Where no accounts exist it is impossible to say how much is due one party or the other. Nonetheless, defendant’s inability to produce does not relieve plaintiff of the ultimate burden of persuasion on the issue of the amount of his share. (Fineman v. Goldberg (1928), 319 Ill. 507, 512.) Attempting to make records or manufacture evidence will not suffice. Once the daily reports were innocuously swept away by a teenager obeying his parent, the accounting for this partnership became not only impracticable, but unattainable. The myriad exhibits, the voluminous, often rambling transcript, and the speculation of the trial judge groping for a resolution, make this abundantly evident.

For the reasons stated, we reverse the judgment of the Circuit Court of Peoria County and dismiss the petition for an accounting.

Reversed.

BARRY and STOUDER, JJ, concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC T. JENSEN, Defendant-Appellant.
    Third District
    No. 81-447
    Opinion filed January 28, 1982.
    Robert Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial in the circuit court of Tazewell County, the defendant, Eric T. Jensen, was found guilty of five counts of felony theft by deception and three counts of misdemeanor theft by deception to which the court subsequently sentenced him to five concurrent terms of four years’ imprisonment. The conviction was premised on a nine-count indictment which charged that between March 23 and April 20, 1981, the defendant knowingly obtained control of money by use of deception, with the intent to deprive the owners permanently of property in violation of section 16—1(b)(1) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 16—1(b) (1)). The indictment alleged that on nine different occasions the defendant falsely told persons that he needed money from them to pay an outstanding debt to the “mob” and thus avoid injury to himself and his wife and child.

On appeal, defendant contends that the State failed to prove his guilt beyond a reasonable doubt. Thus, an examination and analysis of the evidence adduced at trial is mandated.

With slight variations which we will discuss below, the defendant’s contacts with his first two purported victims, the Reverends David Wright and Johnny Arnold, both of Morton, Illinois, were identical to those of his other “victims.” The defendant, who identified himself as Eric Jensen, called Wright by telephone on March 21 and discussed spiritual matters with him. They arranged to meet later that day at a Morton restaurant. At the restaurant, the defendant first talked about spiritual and religious matters, but then he related the following story. For the past several years, he had worked in the Chicago area for a crime syndicate in some unsavory capacity before recently retiring. (Although witnesses used various terms to describe the defendant’s allegedly nefarious underworld creditors, for the sake of convenience,, we will borrow the defendant’s argot and refer to them as the mob.) Later, his wife developed a disease in her fallopian tubes. She badly needed surgery but the defendant was unable to finance such medical treatment. He first turned to a pastor of his local church for assistance, but he met with no success. As a last resort, he desperately returned to his former employers, the mob, for the money. They obliged, and his wife’s operation was financed. But then the mob demanded that its loan be repaid at a prodigious rate of interest. Moreover, he was told that failure to pay would result either in physical harm to himself and his wife and child, or in forcing him to leave his family and return to work for his former employers. Although he had but one payment remaining, he could afford no more. In hopes of escaping the mob, the defendant and his family sought refuge in Morton. But the mob had quickly discovered his whereabouts and demanded the final payment immediately. The defendant was unable to pay and his family again was threatened. Wright asked how much money the defendant needed. The defendant reluctantly replied that the final payment was $380. Wright said he would help. Although they did not discuss the terms for repayment, Wright considered the money to be a loan.

On Monday, March 23, Wright met the defendant at a Morton food store and handed him $380 in cash. The defendant then made a telephone call to the mob and was instructed to go to a Morton restaurant to make the payment. At 1 p.m., Wright drove the defendant to the restaurant and left. Instead of meeting the mob, however, the defendant had arranged to meet there with the Reverend Johnny Arnold.

As with Wright, the defendant had telephoned Arnold two days earlier and had asked to meet and discuss spiritual matters with him. At the restaurant, the defendant told Arnold of his plight, whereupon Arnold asked how much the defendant needed to “get off the hook.” The defendant replied that he needed $250, although he implied he needed much more, perhaps even $600. Arnold agreed to help the defendant. They drove to the bank where Arnold withdrew $250 and gave it to the defendant. He then had Arnold drive him to Peoria to make the payment. Arnold dropped the defendant off in front of a Peoria bank and waited. The defendant quickly left the bank, returned to Arnold’s car, and told him that because the mob was out to lunch, there was no need for Arnold to wait. Thus, Arnold returned to Morton alone. The defendant then called Wright and informed him that the mob had taken him from Morton to Peoria and arranged for Wright to pick him up in Peoria. When the defendant entered Wright’s car, he appeared shaken. He told Wright that he had just made the final payment and that he was finally free from the mob.

Two days later, the defendant called both Wright and Arnold, assured them that everything was fine, and inquired about attending Bible classes at their respective churches. Later that week, the defendant called Wright again and told him that he would repay the loan that day. When Wright asked the defendant for his address, he initially evaded answering, but finally gave an address which later proved to be false. After their March 23 meetings with the defendant, neither Wright nor Arnold saw the defendant again, nor did they receive any money from him.

Arnold, who testified first for the prosecution, said that although he disbelieved the defendant’s tale of woe, he did believe the defendant was in need of money and, on that basis, gave him $250 on March 23. Because of this testimony, the court granted the prosecution’s motion to dismiss one count for felony theft by deception which involved Arnold. Wright, on the other hand, testified that he believed the defendant’s story and that had it not been for the story of threatened physical harm to the defendant’s family, Wright would not have volunteered the money.

The remainder of the defendant’s alleged victims then testified. As . with Wright and Arnold, they were men who were either Morton church officials or closely involved with a Morton church. In each case, the defendant told the “victim” of his desperate plight after first talking about spiritual matters. In some cases, the defendant told them his wife had suffered from a neck injury instead of a fallopian tube disease. He also told several, but not all, “victims” that the money he needed constituted a final payment which would at last free him and his family from the mob’s threats. To several “victims,” the defendant identified himself as Tom Westland. As was the case with Arnold and Wright, the defendant never directly solicited the money; the “victims” asked what they could do to help after hearing of the defendant’s dilemma. Most considered the money only a loan and had expected repayment, but they had never discussed any of the terms. As with Wright and Arnold, the defendant usually called his “victims” a few days after receiving the money and assured them that the mob had been satisfied and that they would be repaid soon. With the exception of Arnold’s testimony, each “victim” testified that he believed the defendant’s story and that had it not been for that story, he would not have given the defendant any money. Each “victim” also testified that he had no knowledge that the defendant’s story was false. In fact, they only became suspicious after police had contacted them and had told them that the defendant was a con artist who had fleeced other Morton persons with the same false story.

The final prosecution witness was Morton police officer Samuel Pearce, who interrogated the defendant on April 21. The defendant admitted he received money from the representatives of several churches, but he insisted that he had never asked for the money and that he intended to repay each creditor in full. He told Pearce that he had received “about $600” from three people and that he had used the money to pay his debts to “heavy people in Chicago,” whom he refused to identify. This debt arose because of his wife’s illness.

In fact, the prosecution established that the defendant had received slightly more than $2,200 from nine Morton people, that, although he was not married, he lived with a woman and child, and that he had repaid none of the $2,200.

The only evidence introduced by the defendant was a stipulation to three matters: first, that the court had dismissed the theft by deception charge involving Arnold; second, following the defendant’s arrest, he filed an affidavit of assets and liabilities indicating that he owed $2,200 to several people; and, third, the stipulation noted that the defendant never posted bond and had remained in the custody of the police following his arrest.

The charge in this case is theft by deception. One of the necessary elements of the offense is that the owner of money be induced to part with it. Another is that the sine qua non for the transfer of money be deception. Another is that the recipient intend to permanently deprive the original owner of the money. All three elements must be proven beyond a reasonable doubt.

There is no dispute here that the first element was proven. Certain persons were induced to part with money. A careful review of the evidence, however, discloses the State failed to meet its burden of proof on either of the other two elements, i.e., deception and permanent deprivation. Thus, the convictions must fall.

In order to sustain the deception element, it is necessary to show that the defendant’s statements were false. There is no such evidence in the record. It is not the defendant’s burden to prove the truth of his statements. The defendant is not required to prove his innocence. Was the defendant in debt to the mob? Did he need money to pay off the mob to avert harm? If his statements were true, they would not be deceitful. Were they true? Or were they false? From the record, it is impossible to say. The answer of the jury, in the absence of facts, was necessarily based on supposition, guess or conjecture. Such is not permissible to sustain a criminal conviction. In popular parlance, the defendant’s representations to the men of the cloth would appear to be a cock and bull story. Mostly bull. That, however, is not the point. The point is whether the State proved the falsity of those critical statements. They did not.

The final element which the State failed to prove was that the defendant intended to permanently deprive the owners of their money. Preliminarily, it must be borne in mind that the defendant never even asked for money. He relayed a sob story it is true. It was the “victims” themselves, however, who volunteered the money. Although most of them considered the money to be a loan, they never specified when the defendant was to repay it. It is true that the defendant made declarations that the money would be repaid. Were these declarations false? This is not established by the record. The lack of repayment does not necessarily negate an intention to repay. If it did, all defaulting debtors would be guilty of theft. Such is not the law. While reasonable persons might suppose or conjecture that the defendant did not intend to repay these monies, proof of this element must meet the same evidentiary standard of guilt beyond a reasonable doubt that is applicable to every other element of the offense. There is no proof on this point.

For the foregoing reasons, we reverse the judgment of conviction entered in the circuit court of Tazewell County.

Reversed.

SCOTT, P. J., and ALLOY, J„ concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC DOUGLAS, Defendant-Appellant.
    Fifth District
    No. 80-279
    Opinion filed January 12, 1982.
    John H. Reid and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The issue in this appeal is whether the circuit court of Madison County abused its discretion in denying defendant’s motion to withdraw his guilty plea. We find no reversible error in those proceedings and therefore affirm.

Defendant was charged with an armed robbery which occurred on Christmas Day of 1979. He entered a negotiated plea of guilty to that charge during his jury trial after the State and defense had closed their respective cases in chief and prior to the State’s anticipated rebuttal. Eight days later, defendant’s motion to withdraw his guilty plea was filed. Subsequently, defendant was sentenced to eight years’ imprisonment. Then, after an evidentiary hearing, defendant’s motion to withdraw his guilty plea was denied.

The record indicates that defendant’s trial counsel, Michael Glenn, moved for and was granted leave to withdraw prior to sentencing and prior to the hearing on defendant’s motion to withdraw his guilty plea. Private counsel then was appointed in Mr. Glenn’s stead. The main thrust of defendant’s arguments at the hearing to withdraw the guilty plea was that Mr. Glenn had overborne the 18-year-old defendant’s will and coerced defendant into pleading guilty. The witnesses at this hearing, all appearing on defendant’s behalf, were Mr. Glenn, defendant, and defendant’s mother, Clara Douglas.

Mr. Glenn testified that he urged defendant to plead guilty for two reasons: (1) he did not expect to prevail if the case went to the jury and (2) he was of the opinion that defendant might well receive a sentence longer than eight years if he persisted in his plea of not guilty in view of defendant’s juvenile record. Mr. Glenn further testified that he expected the testimony of Arthur Price for the State on rebuttal to be particularly damaging. In that regard, in reciting the factual basis for defendant’s plea, the prosecution summarized Mr. Price’s expected testimony as indicating that defendant gave Mr. Price a check stolen from the robbery victim and went with Mr. Price to cash it and, also, that defendant had written letters to Mr. Price asking him to change his testimony regarding those events. Mr. Glenn stated that he was of the opinion that defendant would not have pleaded guilty except for his urging. Mr. Glenn recalled that he and defendant had spoken about changing the plea several times. At first defendant refused, and then Mr. Glenn asked members of defendant’s family to help convince him. According to Mr. Glenn, defendant maintained his innocence “all the way through” and “in no way wanted to stop the trial at that point.” Mr. Glenn further testified that he had listened to a tape recording of the guilty plea proceedings and had noted that when the court asked defendant whether he had committed the robbery, defendant had answered “yes” only after a 20-second pause. According to Mr. Glenn, he had taken defendant aside at that time and explained to him that his guilty plea would not be accepted if he did not admit his guilt.

Defendant next testified in his own behalf and stated that he paused before admitting the offense because he did not commit it. He confirmed that Mr. Glenn was the person who first mentioned pleading guilty and stated that at first he had wanted to go through with the trial but that Glenn had predicted a lengthy sentence in that event. Asked whether his change of plea was voluntarily made, defendant replied: “I just thought it was the best way out.”

Mrs. Douglas, defendant’s mother, then testified that she had spoken with Mr. Glenn concerning the guilty plea about three times at the jail, twice in the company of defendant. Defense counsel questioned her as to (1) whether defendant expressed “an interest or desire to change his plea * * and (2) whether defendant ever told her that he was pleading guilty voluntarily. The State’s objections to both questions were sustained on the grounds that they sought to elicit hearsay evidence. The last question defense counsel asked her was: “In your opinion did your son plead guilty voluntarily or of his own free will when he pled guilty?” Her reply was: “I couldn’t say.”

We reject defendant’s assertion that those questions directed to Mrs. Douglas to which objections were sustained did not seek to elicit hearsay evidence. We are aware that the declarant, defendant, was present in court and available for cross-examination, as pointed out by the defense. Further, we recognize that the opportunity for cross-examination is the main rationale underlying the hearsay rule, as stated in People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853, People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383, People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738, and McCormick, Evidence §245 (2d ed. 1972). However, we conclude that in order to utilize the opportunity to cross-examine the declarant to prevent the testimony sought to be elicited from being hearsay evidence, the opportunity to cross-examine must, in fact, exist. In the case at bar, the defendant presented the testimony of Mr. Glenn, the defendant, and then defendant’s mother, in that order. Thus, Mrs. E>ouglas could have attributed any statement to defendant; and, since defendant could not be called as a witness by the State after her testimony, there would have been no effective availability of cross-examination. Additionally, if there had been any error in excluding the testimony, it would have been harmless because the questions put to Mrs. Douglas sought to elicit answers which were nothing more than conclusions. Defendant made no attempt to establish by this witness or any other what actually transpired at defendant’s plea discussions with his trial counsel.

The record’s failure to disclose the content of those • discussions requires us to conclude that defendant’s assertions of coercion and undue influence were not supported by the evidence. Mr. Glenn’s testimony does not establish that he exceeded his proper role as counselor and advisor to his client. His advice to plead guilty was, by his own account, based on his evaluation of the very difficult situation which faced the defendant. We note that after reflecting on the matter at the later date, Mr. Glenn failed to suggest that he believed that this was not the best advice he could give under the circumstances.

Several factors present here indicate that defendant’s decision to plead guilty was voluntary. The admonitions by the trial court to defendant prior to acceptance of the plea were exemplary; defendant does not challenge their sufficiency. During the conference with his attorney in which defendant decided to plead guilty, defendant was accompanied by his mother, who was his alibi witness, and, apparently, at least one other member of the family. Defendant had heard the evidence for the State and in his own defense at the trial and thus had an opportunity to make his own evaluation of his chances for acquittal, an opportunity not normally afforded an accused contemplating the entry of a plea of guilty. Defendant’s own statements just prior to acceptance of his guilty plea and at the hearing on the motion to withdraw it indicate that the choice to so plead was ultimately his own. Prior to his change of plea, defendant was asked at least twice whether it was his desire to plead guilty. Moreover, he was twice asked whether he had committed the robbery in question, and he answered “yes” both times. At the hearing on his motion to withdraw his guilty plea, defense counsel asked defendant whether he pleaded guilty voluntarily; defendant answered, “I just thought it was the best way out.”

We do not view the 20-second “pauses” by defendant before admitting his guilt in open court as requiring a different result. Faced with the prospect of eight years’ imprisonment, his reluctance to abandon even a slim possibility of a verdict of acquittal was understandable. At least those pauses show that defendant carefully considered the questions posed by the court and his answers thereto.

In our view, defendant’s decision to pleád guilty was not unreasonable. Defendant’s sole alibi witness other than himself was his mother. We disagree with defendant’s assessment of the robbery victim’s identification of defendant at trial as “shaky.” Mr. Emery, the victim, described defendant as wearing black pants and a black shirt with gold designs at the time of the robbery. The two robbers were in the victim’s presence long enough to take the victim’s wallet and coin change, to search through his coat, and to order him to climb into the trunk of his taxi. Although it was night, illumination was provided by a nearby street light and the taxi’s headlights and dome light. Further, Mr. Emery replied in the affirmative when asked whether he could see, and certainly he was motivated to remember the robbers’ faces. A stipulation read into evidence indicates that the weather at the time of the robbery was not an obscuring factor. There was no indication that the robbers’ faces were masked or otherwise covered. There was testimony that Mr. Emery looked through numerous police photographs on the night of the robbery, that he did not identify any photographs as depicting the robbers, and that defendant’s photograph was not among those Mr. Emery then saw. However, on January 14,1980, Mr. Emery was shown a group of six photographs from which he identified defendant’s photograph as depicting one of the robbers. Parenthetically, Mr. Emery testified that he remembered one other person whose photograph was in that group, but not from the robbery. A public defender’s investigator testified she was told by Mr. Emery that when he picked the other photograph, an officer told him that that person was “out of the question.”

We find the following testimony by Mr. Emery particularly significant with respect to the certainty of his identification of defendant as the gunman:

“Q. How certain are you that this is the man that robbed you?
A. Well, this is—has been about since Christmas since I seen anything about it other than the photos. I’m not very good at remembering names, I wasn’t really, at first I wasn’t sure that I remembered the face, but I remember the face, sir. * * *
Q. Now, did you ever look at their faces when you were looking at the gun?
A. Yes, sir.
# * * Q. As you look at that man, is that the same man?
A. It looks like it sir.”

We view the above quoted questions and answers as showing that Mr. Emery was quite certain in his identification of defendant. While defendant characterizes the first of these answers as showing a lack of certainty, we agree with the State that this answer was more indicative of the witness’ “proclivity to ramble,” which the form of the question invited him to do.

It appears that in entering a negotiated plea of guilty, defendant made what he and his attorney considered to be a good bargain under the circumstances. His sentence of eight years was fairly low considering the possible range of six to 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(3).) Defendant’s presentence report reveals juvenile adjudications of guilt of theft and burglary. Accompanying the plea bargain was the dismissal of a pending forgery charge against defendant. These facts indicate to us that defendant was motivated to plead guilty in large part because of these relatively favorable terms.

The decision whether to allow a defendant to withdraw his guilty plea, once entered, is within the sound discretion of the trial court. Obviously an abuse of discretion is established where it is shown that the plea was not voluntarily entered. Additionally, an abuse of discretion will be found where it appears the guilty plea was entered on a misapprehension of the facts or law, in consequence of misrepresentations by defense counsel, the prosecutor, or some other person in authority, or where doubt appears as to the guilt of the accused, where the defendant has a defense worthy of consideration, or for any other sound reason. (People v. Hale (1979), 77 Ill. App. 3d 721, 396 N.E.2d 317, reversed (1980), 82 Ill. 2d 172, 411 N.E.2d 867; People v. Zuckerman (1964), 46 Ill. App. 2d 210, 197 N.E.2d 136.) In our view, the record in the case at bar indicates no abuse of discretion by the trial court. The case against defendant at trial was substantial, with highly damaging rebuttal testimony yet expected at the time of the guilty plea. Further, testimony offered by defendant to prove coercion by attorney Glenn amounted to conclusions without factual support. We perceive no error in the trial court regarding defendant’s motion to withdraw his guilty plea.

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

Affirmed.

KARNS, P. J., and JONES, J., concur.


text:
    THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellant, v. R. W. Mc GOVERN, Trustee, et al., Respondents-Appellees.
    Fifth District
    No. 80-498
    Opinion filed January 27, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Roy E. Frazier and Robert D. Larson, Assistant Attorneys General, of counsel), for appellant.
    Dailey & Walker, of Granite City, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is an interlocutory appeal from a ruling of the circuit court of Madison County entered in a condemnation proceeding instituted by petitioner, the Department of Transportation of the State of Illinois, in which respondents, Henry Ross and Henry Ross Construction Company, Inc., filed a cross-petition for damages. The Department’s motion to dismiss such cross-petition was denied, and this court granted the Department’s petition for leave to appeal from that ruling.

On appeal the Department contends that: (1) the cross-petition failed to state a cause of action; (2) cross-petitioners were without standing to pursue the claims set forth in the cross-petition; and (3) assuming cross-petitioners have both a cause of action and standing, the Illinois Court of Claims and not the circuit court is the proper forum for that cause of action.

The first two of these contentions apparently raise issues not yet considered by Illinois courts of review; however, it is not necessary for this court to address them in view of our conclusion that the cause must be reversed upon the Department’s third contention.

The record establishes that the Department in the case at bar sought to condemn a parcel of real estate which is a portion of a larger tract of land which cross-petitioners had obtained an option to purchase prior to April of 1976 for the purpose of developing and erecting a shopping center. In their cross-petition, respondents allege that they requested that the Department issue a driveway permit for access to a presently existing highway but that by letter dated April 30, 1976, the Department notified them that the land was needed by it for future development. It is further alleged that by letter to cross-petitioners and the owners of the parcel dated June 10,1976, the Department stated:

“You are hereby notified that the department, at this time, does not intend to acquire the needed right of way * *

According to the allegations of the cross-petition, respondents thereafter procured surveys, engineering data, tentative plans and other necessary information and studies preliminary to their development of the real estate. The amended cross-petition further avers that respondents, in reliance upon the June 10, 1976, letter, proceeded with their shopping center plans, making substantial expenditures for engineering data, drawings, estimates, consultations, and virtually all of the preliminary work necessary for sending out invitations for bids to develop the project. According to the cross-petition, after additional written and oral declarations by the Department of its lack of interest or intent to condemn, the Department, by letter dated February 25,1977, rescinded its letter of June 10, 1976, and again declared an intent to take the property in question.

Respondents allege that the Department failed to comply with section 4—510 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 4—510). They sought damages alleged to have resulted from their failure to exercise their option to purchase the real estate in question after expending large sums in reliance upon the Department’s representation that it did not intend to acquire the land in question.

Section 4—510 of the Code provides in part as follows:

8 8[N]o one shall incur development costs or place improvements in, upon or under the land involved 8 8 8 without first giving 60 days notice by registered mail to the Department. 8 8 8 The Department shall have 45 days after receipt of that notice to inform the owner of the Department’s intention to acquire the land involved; after which, it shall have the additional time of 120 days to acquire such land by purchase or to initiate action to acquire said land through the exercise of the right of eminent domain. When the right of way is acquired by the State no damages shall be allowed for any construction, alteration or addition in violation of this Section unless the Department has failed to acquire the land by purchase or has abandoned an eminent domain proceeding initiated pursuant to the provisions of this paragraph.” Ill. Rev. Stat. 1979, ch. 121, par. 4—510.

The parties concede that cross-petitioners never exercised their option to purchase the real estate which is the subject matter of this dispute. However, respondents urge that their claim is not for compensation for the taking of a property interest, compensable in eminent domain proceedings; instead, they emphasize that they seek damages resulting from the Department’s failure properly to comply with section 4—510 of the Illinois Highway Code. The Department maintains that pursuant to the Court of Claims Act, cross-petitioners’ claims were under the exclusive jurisdiction of the court of claims.

The Court of Claims Act provides in pertinent part as follows:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency 8 8 8. * O *
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit * 0 (Ill. Rev. Stat. 1979, ch. 37, par. 439.8.)

This plain language of section 8 of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8) requires that a claim for damages such as that set forth in the amended cross-petition be filed in the court of claims. Cross-petitioners do not contend otherwise. Instead, they argue that, by filing the condemnation petition naming cross-petitioners as respondents, the Department selected the forum and, under the facts alleged, it is not now in a position to dispute respondents’ right to a hearing in such proceedings. Thus, the issue presented to this court for determination is whether cross-petitioners’ cause of action may be maintained in the circuit court due to its status as a cross-petition rather than an original complaint. Stated otherwise, does section 4—510 of the Illinois Highway Code create an exception to the traditional exclusive jurisdiction of the court of claims in the case of a counterclaim for damages in an eminent domain proceeding?

It is our opinion that no such exception exists. Our conclusion is based upon the unique nature of eminent domain proceedings. In such proceedings the jury is impaneled solely for the purpose of ascertaining the just compensation to be paid to the owner of the property sought to be taken or which is damaged. This is the only issue triable by the jury in such a case. (Sanitary District v. Johnson (1931), 343 Ill. 11, 174 N.E. 862; Wehrum v. Village of Lincolnwood (1968), 91 Ill. App. 2d 418, 235 N.E.2d 343.) Thus, it has been held that in order to be admissible in a condemnation proceeding, evidence as to damages to land not taken by petitioner must be specifically related to a diminution in the fair market value of that land. (Department of Transportation v. Jones (1976), 44 Ill. App. 3d 592, 358 N.E.2d 402.) Further, the question of damages for tortious action by the condemning authority with respect to the real estate taken, e.g., tortious trespass to the land prior to the condemnation proceeding, cannot be an issue in the condemnation proceedings. (Wehrum v. Village of Lincolnwood; Chicago Housing Authority v. Lamar (1961), 21 Ill. 2d 362, 172 N.E.2d 790; see 4A Nichols, Eminent Domain §14.24, at 130-31.) Additionally, the owner of abutting land, no part of which is taken in the condemnation proceeding, is not entitled under the United States or Illinois constitutions to ascertainment of the amount of or payment of any consequential damages claimed by him in a condemnation proceeding. In such case, the remedy of such abutting owner is an action at law for his damages. County of Mercer v. Wolff (1908), 237 Ill. 74, 86 N.E. 708; Horn v. City of Chicago (1949), 403 Ill. 549, 87 N.E.2d 642, cert. denied (1950), 338 U.S. 940, 94 L. Ed. 580, 70 S. Ct. 429; People ex rel. Pratt v. Rosenfield (1948), 399 Ill. 247, 77 N.E.2d 697.

These cases, therefore, are authority for the proposition that the scope of eminent domain proceedings is strictly limited. Moreover, not only is a respondent not required to file an answer to a condemnation petition, if one is filed, it may be subject to a motion to strike. Department of Public Works i? Buildings v. Lewis (1931), 344 Ill. 253, 176 N.E. 345.

It is essential to observe that section 4—510 of the Illinois Highway Code is not a provision of the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.). Further, no mention is made in section 4—510 of any particular method of pursuing whatever rights a party might acquire thereunder. Had the legislature intended to change the scope of eminent domain proceedings by permitting the rights established by section 4—510 to be asserted in such proceedings, it could have done so. In that regard, the legislature is presumed to have acted with knowledge of judicial decisions concerning prior case law. People v. Choate (1979), 71 Ill. App. 3d 267, 389 N.E.2d 670; see People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436, aff'd on remand (1970), 45 Ill. 2d 227, 258 N.E.2d 793; see Reeves v. Eckles (1966), 77 Ill. App. 2d 408, 222 N.E.2d 530, aff'd on remand (1969), 108 Ill. App. 2d 427, 248 N.E.2d 125.

We conclude that the instant amended cross-petition may not be maintained in these proceedings and that the trial court erred in denying the Department’s motion to dismiss. Therefore, the judgment of the circuit court of Madison County is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded. .

KARNS, P. J., and JONES, J., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY L. ERVIN, Defendant-Appellant.
    Fifth District
    No. 80-316
    Opinion filed January 29, 1982.

      John H. Reid and John F. Erbes, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Daniel Hartigan, State’s Attorney, of Newton (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Following a bench trial defendant was convicted of aggravated incest and indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, pars. 11—10 and 11—4). The court imposed a sentence of four years on the latter conviction; no sentence was imposed on the aggravated incest conviction. The court pronounced sentence on May 29, 1980, stating, in pertinent part:

“I am going to sentence you to the minimum 4 years in the penitentiary. Judgment will be entered on the sentence and mitimus [sic] will be ordered to issue instanter.
Judgment order should be prepared. It will set forth the credit. One other matter I have to advise you of, Mr. Ervin, you have a right to take an appeal and to preserve your right to appeal you must file with the Clerk of this court within 30 days of today’s date a written notice of appeal and that will perfect your right to take an appeal to the Appellate Court.”

The defendant, who was represented by counsel at the sentencing hearing, was admonished of his rights on appeal pursuant to Supreme Court Rule 605(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 605(a)). A formal written “judgment and sentence” was signed by the court, dated May 29, 1980, but not filed until June 3, 1980. No post-trial motion was filed after the May 29, 1980, sentencing hearing. On July 2, 1980, defendant’s pro se notice of appeal was filed. Neither the defendant nor his counsel requested in open court at the time he was advised of his right to appeal, or subsequently in writing, that he desired to file a notice of appeal (see Ill. Rev. Stat. 1979, ch. 110A, par. 606(a)).

The threshold issue we must address is whether defendant’s notice of appeal was timely filed in order to confer jurisdiction upon this court. This, of course, depends on the date of “the entry of the final judgment appealed from” under Supreme Court Rule 606(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 606(b)).

Although Supreme Court Rule 606(b) requires that a notice of appeal in a criminal case be filed within 30 days after entry of the final judgment, or order disposing of a motion directed against the judgment, there is no provision in article VI of the Supreme Court Rules that denotes when a judgment is entered. However, in civil cases Supreme Court Rule 272 (Ill. Rev. Stat. 1979, ch. 110A, par. 272) provides some guidance. If at the time of announcing final judgment the court requires submission of a written judgment, the judgment becomes final when the signed judgment is filed. If no submission is required, the judgment is entered at the time it is “entered of record.”

In Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 983, 326 N.E.2d 74, 82, the court observed that Supreme Court Rule 272 “does not explicitly fix the time at which a judgment is entered of record in circumstances where no written judgment order is requested by the court.” After examining the unique procedure followed in the County Department of the Cook County Circuit Court, the court held that the judgment was entered of record not with entry in the “minute book” of the trial court, but with the transcription of the minute book entry to the “Docket and the Law Record Book.” Further discussion of the application of Supreme Court Rule 272 to the labyrinth of idiosyncratic recordkeeping procedures peculiar to Cook County can be found in Berzana v. Mezyk (1980), 86 Ill. App. 3d 824, 408 N.E.2d 412. There the court held that a judgment entered in the circuit court’s “minute book,” but not upon the “half-sheet,” in the Municipal Department was “entered of record” for purposes of Supreme Court Rule 272. In In re Annexation to City of Darien (1973), 16 Ill. App. 3d 140, 144, 304 N.E.2d 769, 773, the court observed that “when an order is ‘entered’ it becomes of record in the case either as a written document placed in the file, or by being placed in the circuit court clerk’s docket book.” In Heritage Shelter Care Home, Inc. v. Miller (1975), 31 Ill. App. 3d 700, 334 N.E.2d 355, we held that a trial judge’s record-sheet entry was an entry of an “order” disposing of a motion for rehearing for purposes of determining when the 30-day period for appealing began to run under Supreme Court Rule 303(a).

In short, these cases reflect that under Supreme Court Rule 272, an order or judgment is not entered of record upon the oral pronouncement of the court, but rather a judgment is entered of record when a signed judgment is filed, if the court requires submission of a written judgment; or, if no written judgment or order is to be prepared, when it is noted (1) in the docket and law record book in the County Department or the minute book in the Municipal Department of the Cook County Circuit Court or (2) in the “Record Sheet” (commonly referred to as docket entry sheet) elsewhere. The administrative order of the Supreme Court on recordkeeping in the circuit courts provides that the record sheet is part of the basic court record (see sections 1001.3 and 5136).

Article VI of the Supreme Court Rules (Ill. Rev. Stat. 1979, ch. 110A, par. 601 et seq.) governing appeals in criminal cases does not have a provision similar to Supreme Court Rule 272. Neither does the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 100—1 et seq.)

The final judgment in a criminal case is the sentence. (People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507; People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.) The precise issue we are presented with; then, is when is the final judgment or sentence in a criminal case “entered of record.”

In People v. Boston (1975), 27 Ill. App. 3d 246, 327 N.E.2d 40, the State appealed from a May 23, 1974, order granting defendants’ motions to dismiss various criminal charges. At the May 23 hearing the court granted the motions but stated a written order was to be prepared. Written orders were filed July 10 after the State filed notices of appeal on June 21. We held that the May 23 announcement did not constitute entry of that order. The orders were entered of record when they, were filed July 10. Thus, since the State filed its notices of appeal before entry of the orders, the appeal was dismissed for lack of jurisdiction.

In People v. Allen (1977), 49 Ill. App. 3d 108, 363 N.E.2d 892, we held that the oral pronouncement of sentence, at which time the court indicated that a written order was to be prepared, was not entry of the final judgment. The 30-day period under Supreme Court Rule 606(b) for filing a notice of appeal did not begin to run until the written order was subsequently filed, i.e., the judgment was entered of record. We observed that if a court after a sentencing hearing indicated a written judgment was to be prepared but nevertheless informed a defendant that he had “30 days from today to appeal,” fundamental fairness might compel treating the premature notice of appeal as timely filed. We also noted that if the court did not indicate a written judgment was to be prepared, the judgment was final at that time as evidenced by the record sheet entry. People v. Krug (1976), 38 Ill. App. 3d 383, 347 N.E.2d 807, citing Heritage Shelter Care Home, Inc. v. Miller.

These attempts at applying the rationale of Supreme Court Rule 272 to criminal cases was rejected by the supreme court in People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283, wherein it was held that the judgment was entered of record at the time of its oral pronouncement by the court regardless of whether a party was directed to prepare a formal written judgment for the court’s signature and filing.

In the present case the court pronounced sentence on May 29,1980, at which time it directed that a judgment be prepared and advised defendant that he had 30 days from “today’s date” in which to file a notice of appeal. Pursuant to the court’s admonition under Supreme Court Rule 605(a) and the holding of People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283, it was incumbent upon the defendant to file a notice of appeal within 30 days from the May 29 oral pronouncement of sentence, i.e., by June 30, 1980 (since the 30th day, June 28, was a Saturday). (See Ill. Rev. Stat. 1979, ch. 1, par. 1012.) Although the court directed that a “judgment order should be prepared” and defendant filed a notice of appeal within 30 days from the date it was subsequently signed and filed, we are constrained under People v. Allen to hold that it was not timely filed.

.In his reply brief, defendant argues that his notice of appeal, filed within 30 days of the written judgment, was timely since the written judgment varied from the oral pronouncement of the court and thus was the final judgment to be appealed. The basis of this argument is that at the time of the oral pronouncement of judgment the court stated: “Judgment Order should be prepared. It will set forth the credit.” Immediately preceding this statement by the court, the court had inquired if there was any previous incarceration of defendant. The State’s Attorney said there had been two or three days; defendant’s attorney said there had been six days. When the written judgment was filed, it conferred seven days’ sentence credit. Defendant contends that since he did not know the exact amount of sentence credit he was to be granted until the written judgment was filed, it must constitute the final judgment.

Defendant’s argument is not well taken. The sentence credit in this case is conferred by the applicable statute and is not a subject for exercise of discretion by the trial court. Furthermore, it is a statutory administrative duty of the clerk to advise the Department of Corrections as to the number of days sentence credit the defendant is to receive.

Section 5—8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—7(b)) provides in pertinent part:

“(b) The offender shall be given credit on the determinate sentence * * * for time spent in custody as a result of the offense for which the sentence was imposed, * *

Section 5—4—1(e)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1(e)(4)) provides in pertinent part:

“(e) The clerk of the court shall transmit to the department, agency or institution, if any, to which the defendant is committed, the following: * e «
(4) the number of days, if any, which the defendant has been in custody and for which he is entitled to credit against the sentence, which information shall be provided to the clerk by the sheriff; * # « ”

Cf. People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872; People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 316 N.E.2d 769.

For the foregoing reasons, this court has no jurisdiction and the appeal must be dismissed.

Appeal dismissed.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE WELCH

text:
      In re ESTATE OF RANDALL A. BROWN et al.—(LESLIE DEAN WEGER, Petitioner-Appellee, v. EVA PURCELL, Respondent-Appellant.)
    Fifth District
    No. 80-530
    Opinion filed February 2, 1982.

      Robert L. Douglas and Charles C. Roberts, both of Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellant.
    Roscoe D. Cunningham, of Roscoe D. Cunningham, Ltd., of Lawrenceville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This is an action to modify custody of three-year-old Janet Marie Weger. Her mother died within a week of Janet’s birth. Leslie Weger, Janet’s father, placed the child with his sister, Eva Purcell, and initiated proceedings to have Eva named guardian of Janet. Leslie remarried some time later and sought to have the guardianship terminated and custody of Janet returned to him. The trial court ordered the child returned and the guardianship terminated. Eva Purcell appeals from that order.

The issue before this court is: was it against the manifest weight of the evidence to modify custody and terminate the guardianship?

Janet Weger was born February 25, 1978, to Leslie Weger and Harriett Irene Weger. Harriett was Leslie’s second wife, his first marriage having ended in divorce. Shortly after Janet was born, Harriett died of cancer of the liver. Janet was small and sickly. She weighed only five pounds and two ounces at birth and stayed in the hospital three weeks. When she was first released from the hospital Janet required feeding every two hours around the clock.

Upon her discharge from the hospital Janet went to live with her aunt, Eva Purcell, by arrangement of her father. Eva and her husband, Robert, have five children, two of whom are still minors and living at home with Janet. Janet has three older siblings: Randall A. Brown, Robert L. Weger, and Deborah L. Parker. They stayed with Leslie. On May 25, 1978, Leslie Weger filed a petition for guardianship, nominating Eva Purcell to be guardian of the person and estate of all four children. Eva was appointed guardian on June 20, 1978. Janet continued to live with Eva, while the other three children continued to live with Leslie.

On August 25,1978, Leslie remarried. His new wife was Nancy Ruth Weger. She had children of her own and they moved in with Leslie’s three. On March 7,1979, Leslie filed a petition to terminate the guardianship, stating that he had remarried and wished Janet to be returned to him. The petition did not allege any wrong-doing on the part of Eva pursuant to section 23—2 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. llOJá, par. 23—2), regarding removal of representatives.

A motion for summary judgment for the plaintiff was heard and denied July 13, 1979. Shortly thereafter Leslie was divorced from this third wife. He “courted” a fourth wife for about five months, and on January 7, 1980, married Nancy Weger. Nancy Weger had three children by a previous marriage. Leslie and the three siblings of Janet moved in to his new wife’s home, with her three children. The eight of them visited Janet in January 1980, for a weekend at the Purcell home. They visited again around Easter of 1980.

No action was taken on the case until it was set in June by the judge for a hearing on the petition to terminate on July 24, 1980, more than a year after the denial of the motion for summary judgment. The hearing was delayed because of time conflicts of the judge. Leslie did not visit Janet at all between Easter 1980 and the hearing on the petition on September 18, 1980. Testimony was taken and memoranda of law were submitted to the court. On October 27, 1980, the court entered an order finding both Leslie Weger and Eva Purcell to be fit parents or custodians, and reciting that it was “in the best interest” of Janet to be returned to her natural father. The court ordered that Janet be returned to the custody of Leslie and that the guardianship of all four children be terminated as no longer being needed. Eva Purcell appealed the order and the court stayed the transfer pending the appeal.

The order appointing Eva Purcell guardian of the person and of the estate of Janet confirmed the actual custody which Leslie had given her. The statute describes the duties of the guardian of the person of a minor thus: “Under the direction of the court: (a) The guardian of the person shall have the custody, nurture and tuition and shall provide education of the ward * * (Ill. Rev. Stat. 1979, ch. 110/2, par. 11—13.) The guardianship order is a custody judgment among other things.

The petition to appoint Eva could have been filed under the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(1) or (2)). The Act became effective October 1,1977, and the petition was not filed until May 25,1978. The provisions of IMDMA, including the criteria the court could use in settling contested custody cases, are more suited to the facts of this case than are the provisions of the Probate Act of 1975 with its stress on the property of minors and incompetents for whom guardians have been named.

The section of the IMDMA which deals with modification of custody is section 610 (Ill. Rev. Stat. 1979, ch. 40, par. 610). The Supreme Court of Illinois has pointed out that the legislature, in section 610, has introduced a presumption in favor of the existing custodian.

“By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child’s custodial and environmental relationships which is not to be lightly overturned.” (In re Custody of Harne (1979), 77 Ill. 2d 414, 421, 396 N.E.2d 499, 502.)

During the first two years of a custody placement that presumption is extremely difficult to overcome. A party must file affidavits as to serious danger to the child before the court will entertain a motion to modify at all. Ill. Rev. Stat. 1979, ch. 40, par. 610(a).

No such affidavits were filed in connection with Leslie’s petition to terminate guardianship and transfer custody. However, the petition was not heard until more than two years had elapsed from the time of the guardianship order. Section 610(b) would be the applicable section under IMDMA.

“Modification of a prior custody judgment under 610(b) requires a two-step approach. First, the petitioner must satisfy the ‘jurisdictional prerequisites’of subsections (b)(l)-(3). [Citations.] Second, only after the conditions set forth in one of these three subsections have been met, consideration is to be given to the best interest of the child under 602(a).” In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 784, 412 N.E.2d 49, 52, appeal denied (1981), 82 Ill. 2d 583.

The “jurisdictional prerequisites” referred to in Batchelor require that “the court shall retain the custodian appointed pursuant to the prior judgment unless: (1) the custodian agrees to the modification * * obviously that is not the case here: “(2) the child has been integrated into the family of the petitioner with the consent of the custodian ° * again, not the case here: “or (3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.” (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(1), (2), (3).) There is no evidence that Janet Weger’s present environment with Eva Purcell endangers her physical, mental, moral, or emotional health. The trial court specifically found that Eva was not unfit. Leslie Weger admitted in testimony that she took good care of Janet and that Eva was the only mother Janet had ever known.

As we observed before, Leslie’s petition to terminate guardianship did not allege any of the causes for removal of a representative (executor, administrator, or guardian) enumerated in sections 23—2(a)(1) through (9) (Ill. Rev. Stat. 1979, ch. 1101/2, pars. 23—2(a)(1) through (9)). Counsel urges that section 23—2(a) (10), “other good cause,” would cover the transfer of custody situation, and cites Layton v. Miller (1975), 25 Ill. App. 3d 834, 322 N.E.2d 484, wherein we held that neglect and deprivation of the children were sufficient to constitute “other good cause” for removal. The enumerated grounds for removal of a guardian all involve malfeasance, e.g., conviction of a felony, waste or mismanagement of the estate, etc. (Ill. Rev. Stat. 1979, ch. 1101/2, pars. 23—2(a)(1) through (9)). Neglect and deprivation of the children also involve malfeasance. No malfeasance has been alleged or proved in this case, simply a change in circumstances of the noncustodial parent. We can find no authority for Leslie’s contention that such a change constitutes “good cause shown” for removal.

Leslie urges that the doctrine of the natural parent’s superior right to his child should decide the matter. The Illinois Supreme Court has acknowledged that right and the correlative responsibility of the parent to care for his child in In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231. However, the right does not exist in a vacuum. The court in Townsend cited People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 210, 247 N.E.2d 417, 422, with approval for the proposition that

“* * “a finding that the parent was fit was only one factor a court was to consider and * * 0 the right of the parent to the custody of his or her child under the probate act ‘must yield to the best interest of the child even though the parent is a fit person.’ ” 86 Ill. 2d 502, 511-12.

The best interest of the child, Janet Weger, appears from the manifest weight of the evidence to be for her to remain with Eva Purcell who has raised her from infancy and into whose family she has been integrated. She has a happy, well-adjusted, stable life with Eva. To change her custody to Leslie, whom she hardly knows, and put her in a position of competing with six other children for attention and affection, not to mention the instability of her lifestyle involving frequent moves and numerous marriages, would not be in Janet’s best interest.

The standard of review for removal of an executor, under section 23—2 is whether the decision was against the manifest weight of the evidence. (In re Estate of Hubbard (1977), 54 Ill. App. 3d 238, 369 N.E.2d 292.) The standard review in custody changes is also whether the decision was against the manifest weight of the evidence. In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 783, 412 N.E.2d 49, 51, appeal denied (1981), 82 Ill. 2d 583.

A review of the trial court’s findings and the record leads us to the conclusion that the decision to modify Janet Weger’s custody and remove Eva Purcell as guardian was indeed against the manifest weight of the evidence. We therefore reverse the trial court’s custody transfer of Janet Marie Weger and order the guardianship of Eva Purcell reinstated as to Janet.

We note that the last names of two of the older children, who are also wards of the court under the original guardianship order, are not “Weger.” Inasmuch as they are children of Harriet Irene Weger born prior to her marriage to Leslie, we remand the guardianship order for consideration by the court. If Leslie Weger is not the adoptive father of Randall A. Brown and Deborah L. Parker, the dismissal of the guardianship order may serve to place these children “in limbo.” Their mother is deceased, and the person with whom they live is not their legal guardian. It would seem to be preferable to transfer guardianship of Randall and Deborah to Leslie Weger. The children have been integrated into the family of Leslie with the consent of Eva for the entire duration of her guardianship of them.

Leslie Weger is the natural father of Robert L. Weger and with regard to him we agree that continued guardianship by Eva serves no discern-able purpose. We affirm the dismissal of the guardianship as to Robert L. Weger.

To recap:

Janet—custody reversed, guardianship reinstated.
Robert—guardianship dismissed.
Randall and Deborah—guardianship remanded to be transferred or dismissed as determined by the court upon verification of Leslie Weger’s legal relationship to the children.

Reversed in part, affirmed in part, and remanded in part.

KASSERMAN and HARRISON, JJ., concur.