text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BETTY ANN KILLINGS, Defendant-Appellant.
    Fourth District
    No. 17274
    Opinion filed February 25, 1982.
    Rehearing denied March 15, 1982.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Following a jury trial on April 29, 1981, in the circuit court of Macon County, defendant, Betty Ann Killings, was convicted of the offense of retail theft. She previously had been convicted of theft so her conviction in this matter constituted a felony. She was sentenced to a 2-year term of imprisonment. Defendant appeals her conviction. We affirm.

Section 16A—3 of the Criminal Code of 1961 defines the offense of retail theft as follows:

“Offense of retail theft. A person commits the offense of retail theft when he or she knowingly:
(a) Takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise.” Ill. Rev. Stat. 1979, ch. 38, par. 16A—3.

On appeal, defendant claims the trial court erred in giving, over her objection, the fpllowing instruction:

“If you find that the defendant concealed upon her person or among her belongings unpurchased merchandise offered for-sale in a retail mercantile establishment and removed that merchandise beyond the last known station for receiving payments for that merchandise,- you may presume that the defendant possessed or carried away the merchandise with the intention of depriving the merchant permanently of the possession, use, or benefit of the merchandise without paying the full retail value of the merchandise.”

We consider defendant’s claim in light of the very strong evidence of her guilt. Mathew Doris, a part-time security guard at the Eisner’s Food Store where defendant was arrested, testified that on December 19,1980, he observed defendant remove a bottle of nail polish remover from a shelf in the store and after looking around, place it into a brown paper bag in a shopping cart. He stated she closed the bag up, walked to the end of the aisle, picked up all of the items that were in the bottom of the cart, and concealed them insidé the paper bag. Doris further testified that he observed defendant pick up and close the paper bag and attempt to exit the store without going to any of the checkout lanes. Doris stated he stopped defendant when she was standing directly in front of the open exit door of the store.

Defendant testified that she had gone into the store for the purpose of taking some items, but when she arrived at the door to leave the store, she changed her mind because she was pregnant. She stated she was going to leave the bag in a shopping cart and had turned away from the door to do so, when she was stopped.

Defendant maintains that the only possible basis for the disputed instruction was section 16A—4 of the Criminal Code of 1961, which states:

“Presumptions. If any person:
(a) conceals upon his or her person or among his or her belongings, unpurchased merchandise displayed, held, stored or offered for sale in a retail mercantile establishment; and
(b) removes that merchandise beyond the last known station for receiving payments for. that merchandise in that retail mercantile establishment such person shall be presumed to have possessed, carried away or transferred such merchandise with the intention of retaining it or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise.” Ill. Rev. Stat. 1979, ch. 38, par. 16A—4.

Defendant asserts the foregoing section was not intended to create a presumption to be used by the trier of fact because: (1) the conclusive nature in which the presumption was stated would have made it invalid; and (2) the legislature deleted from the proposed bill relating to the offense of retail theft, a reference to a jury instruction on the presumption. Defendant maintains that rather than creating a presumption to be considered by the trier of fact, section 16A—4 was intended merely to create a presumption that would aid the State in establishing a sufficient case to be submitted to the trier of fact.

Citing the civil cases of Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, and McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708, defendant also argues that in this State, all evidentiary presumptions are deemed to be of the “bursting bubble” nature and become inoperative when evidence contrary to the fact to be presumed is presented. The fact to be presumed here was defendant’s mental state. She claims she introduced evidence contrary to the presumption when she testified she had decided to return the items in the bag before she was stopped.

Significantly, the instruction in question stated to the jury “you may presume” (emphasis added) while section 16A—4 uses the phrase “shall be presumed” (emphasis added). The State does not dispute that the instruction would have been a violation of defendant’s due process rights had it been phrased in the mandatory terms of section 16A—4 defining an irrebuttable presumption. (See Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450; County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) The State does not rely upon section 16A—4 as authority for the instruction, but rather contends that the instruction was permissible under Housby, as setting forth a logical permissible inference. Accordingly, we need not determine what the legislature intended in enacting section 16A—4.

In Sandstrom, the court held that a jury instruction in a criminal case involving the issue of intent, which stated that the law presumed a person intends the ordinary consequences of his voluntary acts, was violative of due process. The court there stated that a reasonable juror could have found the instruction to be mandatory, because the jury was not told that they had a choice or that they might infer the conclusion. The court stated that if the presumption was conclusive, the State would not be forced to prove beyond a reasonable doubt every element of the crime, as is constitutionally required. Even if the jury interpreted the instruction as a burden shifting presumption, it would be impermissible, as a State may not shift the burden of proof to a defendant by means of such a presumption. The court held the instruction given in the case to be violative of due process. .

In County Court, the Supreme Court considered a New York statute which provided that with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. The jury in the case was instructed on the presumption. The defendants claimed that it was violative of their constitutional rights for the State to rely on the presumption. In upholding the convictions, the court stated that inferences and presumptions are a staple of our adversary system of fact finding. In criminal cases, the ultimate test of any device’s constitutional validity in a given case remains that the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. The court stated:

“The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. [Citation.] In that situation the basic fact may constitute prima facie evidence of the elemental fact. [Citation.] When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. [Citations.] Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. [Citations.]” 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224-25.

Most recently, the Illinois supreme court in Housby considered an instruction given at a burglary trial which allowed the jury to infer the defendant had obtained possession of the property by burglary if they found that defendant had exclusive posséssion of recently stolen property and there was no reasonable explanation of his possession. The court applied the analysis set forth in County Court and stated that defendant’s due process rights were not infringed,upon by the inference if: (1) there was a rational connection between his, recent possession of property stolen in the burglary and his participation in the burglary; (2) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (3) there was evidence corroborating defendant’s guilt.

Under the evidence here, the instruction met the requirements of Housby, as: (1) there was a rational connection between her concealment and removal of merchandise beyond the last pay station and her presumed intent to steal the merchandise; (2) her intent to steal the merchandise was more likely than not to flow from her concealment and removal of the goods beyond the last pay station; and (3) there was evidence corroborating defendant’s guilt of retail theft. Although no data has been presented to this court as to the accuracy of the presumption here, the State suggests that “common sense and experience” would suggest that a person who conceals and carries merchandise beyond the last pay station in a retail store without paying for it generally intends to steal the goods.

In Housby and other criminal cases, permissive presumptions and inferences are treated as being one and the same thing. Thus the “bursting bubble” theory is not applicable. In Housby there was evidence contrary to the fact which the jury was permitted to presume or infer.

After Housby, Illinois Pattern Instructions, Criminal (2d ed. 1981), was approved by the supreme court and published. Instruction 13.21 concerning the inference arising from exclusive possession of recently stolen property was redrafted to incorporate the requirements of Housby. The Committee Note to the instruction states:

“The Committee recommends that no instruction be given on this subject, either in a theft case or elsewhere. The Committee believes that particular types of evidence should not be singled out, but should be left to the argument of counsel. Instruction 1.03 tells the jury that attorneys may argue reasonable inferences from the evidence.
The Committee realizes, however, that numerous Illinois decisions approve of instructions concerning the inference to be drawn from exclusive possession of recently stolen property. If the trial court determines that an instruction should be given on this matter, the Committee recommends the instruction set forth above. For the appropriate time to give this instruction examine People v. Housby, 84 Ill. 2d 415, 420 N.E.2d 151, 50 Ill. Dec. 834 (1981).
The judge should first determine as a matter of law whether the jury could find recent and exclusive possession.”

Although the inference here is at least as strong as the Housby inference, no similar history of instructing on the inference exists. In the light of the committee recommendation as to the Housby instruction, we disapprove of future use of the instruction given here. However, clearly, no constitutional right was violated by giving the instruction and under the overwhelming evidence of guilt, no reversible error occurred.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUVENTINO S. MUNOZ, Defendant-Appellant.
    Third District
    No. 81-287
    Opinion filed February 26, 1982.

      Darrell K. Seigler, of Twohey and Seigler Law Offices, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Juventino S. Munoz was indicted for unlawful possession of a controlled substance with the intent to deliver. After a jury trial, the circuit court of La Salle County entered judgment on a guilty verdict and sentenced defendant to 12 years in the Department of Corrections.

At 11:55 a.m. on July 14,1980, Lieutenant Thomas Templeton of the La Salle County sheriff’s office received a telephone call from a confidential informant informing him of certain facts which ultimately led to the conviction at bar. Following the call, Lieutenant Templeton and other officers proceeded to the intersection of Illinois Route 23 and Interstate 80 and waited on the eastbound entrance ramp to the interstate.

Shortly thereafter, a blue 1978 Oldsmobile Cutlass, bearing Texas license number SCM 468, was observed. As this was the vehicle which was the subject of the informant’s call, the officers followed it as it proceeded two to three miles east on the interstate. At this point, the automobile was pulled over and the driver, who had committed no traffic violation, stopped in an orderly fashion. Lieutenant Templeton requested identification and discovered defendant was the driver. When asked if he would allow the vehicle to be searched, defendant readily agreed, and further agreed to sign a written search waiver. When the officers searched the automobile, they discovered a package containing 250.1 grams of cocaine under the driver’s seat. No other contraband was found in the vehicle or the motel room where defendant and his family were staying. Additional facts will be set forth in our discussion of the issues to which they are germane.

The first of the seven issues presented for our review is whether defendant’s guilt was established beyond a reasonable doubt. From the moment the cocaine was discovered, defendant has denied being aware it was under the seat. He points to his voluntary consent to the searches of the vehicle and room, and to the fact that the automobile had been borrowed in Texas, as consonant with his hypothesis of innocence. We agree with defendant’s conclusion that his possession of the drug was merely constructive; however, proof of an accused’s exclusive control of a place where contraband is found is ordinarily sufficient proof of his possession of the contraband. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.) This rule is applicable to contraband found in an automobile in the exclusive possession of the driver even though someone else earlier had possession of the vehicle and could have placed the item therein. (People v. Davis (1965), 33 Ill. 2d 134, 210 N.E.2d 530.) We also agree with defendant’s conclusion that the only evidence of his intent to sell the cocaine was the erroneous testimony of Lieutenant Templeton that his billfold contained neither cash nor credit cards, a point to which we shall return, and the amount of the drug; however, it is a reasonable inference that possession of an amount of contraband in excess of any amount which could be viewed as for personal use is possessed with intent to deliver. (People v. Perine (1980), 82 Ill. App. 3d 610, 402 N.E.2d 847; People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46.) As both of the jury’s permissive inferences are allowable under the decisions of this Stater we find defendant’s guilt established beyond a reasonable doubt.

The second issue presented for our review is whether defendant was deprived of a fair trial and due process of law by reason of four occurrences. The first was the State’s failure to furnish defendant with a copy of the booking sheet which indicated that he had $55.29 on his person when he was arrested. Where, as here, a general request for exculpatory evidence is made, the rule is as follows:

“[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” (United States v. Agurs (1976), 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 355, 96 S. Ct. 2392, 2402.)

We do not find that the additional evidence creates a reasonable doubt about defendant’s guilt. As previously indicated, the jury was entitled to infer the intent to deliver from the amount of cocaine involved. The presence of a little over $55 on the person who possesses what the police valued as $80,000 to $100,000 of the drug does not justify a new trial.

The second occurrence was Lieutenant Templeton’s testimony that when he examined defendant’s wallet, it contained no money or credit cards. As there is nothing in the record that establishes that the lieutenant was aware the money was removed at an earlier point in time, we cannot agree that he perjured himself. The third occurrence was the State’s comment, during final argument, that the informant’s identity was not disclosed to protect him from defendant. As no objection to the comment was voiced, this issue has been waived.

The fourth occurrence alleged to deprive defendant of a fair trial and due process was that members of the State’s Attorney’s office eavesdropped on a conversation between defendant and a sheriff’s deputy. In the conversation, defendant told the deputy what his attorneys had told him about his trial and that he would not be taking the stand. Eavesdropping contemplates the use of a device (Ill. Rev. Stat. 1979, ch. 38, par. 14—2), and none was here used. Nothing in the record establishes that any of the overheard conversation was introduced into evidence, or otherwise used. The fact that defendant would not take the stand might be significant in another context, but defendant had two prior drug offense convictions and was only able to travel as a result of being free on a Federal appellate bond. At most, the State’s assumed suspicion that defendant would not testify for fear of impeachment was confirmed. We therefore find that defendant was not denied a fair trial or due process of law.

The third issue presented for our review is whether the trial court erred in allowing alleged hearsay testimony regarding the telephone conversation with the informant. As this testimony merely explained why the police followed defendant and searched the automobile, it did not constitute hearsay (People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661, appeal denied (1980), 81 Ill. 2d 597; People v. Sanders (1980), 80 Ill. App. 3d 809, 400 N.E.2d 468, appeal denied (1980), 81 Ill. 2d 586; People v. Daliege (1976), 40 Ill. App. 3d 706, 352 N.E.2d 247), and the court ruled appropriately.

The fourth issue is whether the trial court erred in refusing defendant’s jury instructions defining “intent” and “knowledge” according to their statutory definitions. As the given and refused instructions in this cause have not been proffered, we decline to address this issué. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170, cert. denied (1969), 395 U.S. 966, 23 L. Ed. 2d 752, 89 S. Ct. 2112.) The fifth issue, whether the classification of cocaine as a narcotic denied defendant his constitutional right to equal protection, has been decided contrary to his position in People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147. The sixth issue is whether the court erred in refusing to grant an evidentiary hearing on, and denying, defendant’s post-trial motion. As the court accepted the truth of the factual allegations of the motion, no hearing was necessary. The substantive bases of the denial have been previously addressed in this opinion.

The final issue presented for our review is whether the sentence imposed on defendant was an abuse of discretion. Defendant so characterizes it on the bases of its length and consecutiveness. The court considered both the nature and times of occurrence of defendant’s previous convictions. In March 1974, he was sentenced to five years’ probation by a Texas court for possession of cannabis. In March 1980, he was sentenced to a four-year term of imprisonment by the Federal District Court of Texas for conspiracy to possess with intent to deliver cannabis. In July 1980, while on an appellate bond, he committed the instant offense. The court further considered that the quantity of the drug involved, measured by its weight or value, was the type of offense the legislature deemed quite serious. Under these circumstances, we do not find the 12-year sentence an abuse of discretion. As for its consecutiveness, the court may impose a consecutive sentence if, considering various factors, such is necessary to protect the public from further criminal conduct. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(b).) As the basis for the decision is reflected in the record (see People v. Ferguson (1981), 99 Ill. App. 3d 779, 786, 425 N.E.2d 582, 586), we find no abuse of discretion in imposing a consecutive sentence.

Accordingly, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY ROBINSON, Defendant-Appellant.
    Third District
    Nos. 80-433, 80-407 cons.
    Opinion filed February 19, 1982.
    Modified opinion filed March 19, 1982.

      Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (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:

This appeal was brought by the defendant-petitioner, Rodney Robinson, from an order entered in the Circuit Court of Kankakee County, denying his petition for post-conviction relief. The petitioner previously pleaded guilty to an allegation of burglary; and, pursuant to plea negotiations, the circuit court sentenced him to a term of 5 years of imprisonment to be served concurrently with a previously entered sentence of not less than 3 and not more than 9 years’ imprisonment.

The only issue raised on appeal is whether comments made by the petitioner’s defense counsel concerning the petitioner’s parole eligibility constituted ineffective assistance of counsel. We affirm.

During the plea negotiations, the court had fully and properly advised the petitioner according to Supreme Court Rule 402 (84 Ill. 2d R. 402). Nevertheless, approximately 11 weeks after entering his guilty plea, the petitioner filed a post-conviction petition. The petition alleged that his guilty plea was unintelligent and involuntary because of the ineffective assistance of his privately retained counsel. Specifically, he asserted his defense counsel induced the petitioner to believe that the 5-year (determinate) sentence would not delay his parole eligibility on his prior 3- to 9-year (indeterminate) sentence.

At the evidentiary hearing, the State produced the testimony of the petitioner’s former defense counsel; and the petitioner testified in support of his petition. Each witness’ version of a discussion, which preceded the taking of the guilty plea, was consistent up to the point where the issue of parole eligibility was raised. According to counsel, he advised the petitioner that he would be eligible for parole on the indeterminate sentence after a specified period of time which counsel could not recall at the hearing. In this regard, counsel admitted showing to the petitioner a Department of Corrections schedule indicating when he would be eligible for parole on the indeterminate sentence. Although unable to remember what he said in regard to whether the petitioner would have a parole hearing, counsel did remember advising the petitioner that if he did receive a parole hearing, it was counsel’s opinion that the petitioner would not be paroled the first time. Counsel thought that due to the instant offense the parole board would continue the parole consideration until the petitioner served 2/2 years of the 5-year sentence, the minimum sentence required for that sentence. He also told the petitioner that if the parole board did parole him it would not be to the streets, but it would parole him to the balance of the 5-year sentence because it could not release the petitioner until he actually served the 2Já-year minimum. Counsel denied he led the petitioner to believe that he would be released when he was eligible for parole on the 3- to 9-year term regardless of how much time was left on his 5-year sentence. Counsel did tell the petitioner that accepting the 5-year term would be like not getting much time at all because the earliest that he could be paroled on the 3- to 9-year sentence was close to the 2/2-year minimum required on the 5-year term. If both sentences were looked at together, the petitioner would not in truth be getting much more time on the instant offense than he actually had to serve before possibly being considered for parole on the 3- to 9-year term. But counsel specifically denied telling the petitioner that it would be like serving no time at all. Counsel also denied advising the petitioner that, because of the subsequent conviction, the parole board could “max out” the petitioner, or deny parole on the indeterminate sentence until he served the maximum term.

According to the petitioner’s testimony, counsel informed him that the petitioner would probably max out on the 3- to 9-year sentence because of the instant conviction. Insofar as the maximum on the former sentence was surely more than the minimum 2& years he would have to serve on the 5-year sentence, it would be like getting no time at all. According to the petitioner, he would be getting out at about the same time on both sentences under this sentencing scheme. The petitioner also specifically admitted that when he went before the parole board the first time he thought that it would not release him on parole. However, the petitioner did expect to be paroled on the 3- to 9-year sentence before he had completed the 5-year sentence because at the time he pleaded guilty in the case at bar, he had already served 13 months on the former sentence. It was not until March 15, 1980, when the petitioner checked with the penitentiary records office, that he discovered he was not even eligible for a parole hearing on the indeterminate sentence until he had completed the 5-year determinate sentence. Following closing arguments, the court found that the trial court had properly admonished the petitioner, that counsel had effectively assisted the petitioner, and that the petitioner’s plea of guilty was entered knowingly and voluntarily.

On appeal, the petitioner contends that counsel’s own testimony demonstrated he failed to properly advise the petitioner of the consequences of his guilty plea. He argues the only conclusion which can be made from counsel’s comments to the petitioner was that he would be paroled prior to the completion of his determinate sentence and that the determinate sentence would not hinder his parole eligibility on the indeterminate sentence. In fact, as the petitioner correctly asserts, he must complete his determinate sentencé before becoming eligible for parole on the other sentence. Assuming he receives good time credit while serving the 5-year sentence, he would complete the determinate sentence, and thus be eligible for parole on the former sentence, in November 1981. On the other hand, without the second conviction, the petitioner would have become eligible for parole on the indeterminate sentence in October 1980, according to Department of Corrections Regulations 813 and 866. Therefore, relying upon People v. Owsley (1978), 66 Ill. App. 3d 234, 383 N.E.2d 271, the petitioner asserts that such misadvice constitutes ineffective assistance of counsel. We disagree.

In Owsley, the defendant alleged, in her motion to withdraw her guilty plea, that her guilty plea had been induced by her counsel’s misrepresentations concerning several freedom-related opportunities: parole eligibility, prison furloughs, and work release. She further alleged that after she had learned of the misrepresentations, her counsel advised her not to bring the issue to the attention of the trial court. Her motion, which was supported by two affidavits, was dismissed without a hearing. On appeal, this court reversed and remanded the cause for evidentiary hearing, holding that the defendant’s allegations, if proved, constituted ineffective assistance of counsel. The Owsley court declared that a defendant should not be misled by counsel on such an important consideration as parole eligibility and other freedom-related benefits. See also People v. Wills (1975), 61 Ill. 2d 105, 330 N.E,2d 505, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430.

The petitioner’s reliance upon Owsley is misplaced. At the outset, we emphasize that the factual setting upon which our review in Owsley was predicated is inapposite to the case at hand. In Owsley, the trial court dismissed without a hearing the defendant’s allegations of ineffective assistance of counsel. To the contrary, in the present case, the trial court heard all relevant evidence and legal arguments offered on the issue of ineffective assistance of counsel and thereafter resolved issues of law and fact, ultimately ruling against the petitioner. In addition, evidence of the type of purposeful misrepresentation and concealment of counsel’s actions, which prompted this court in Owsley to remand the cause for an evidentiary hearing, is lacking in the instant case. Furthermore, unlike the allegations of concrete and misleading declarations of the consequences of pleading guilty which were presented to this court in Owsley, the petitioner herein complains of what could be described as mere predictions which, if unfulfilled, do not give the petitioner a right to post-conviction relief. People v. Ring (1978), 59 Ill. App. 3d 852, 376 N.E.2d 363; People v. Willis (1977), 50 Ill. App. 3d 498, 365 N.E.2d 597.

Finally, we are not presented in the instant case with the inherent conflict situation, such as we were in Owsley, wherein counsel at the post-conviction proceeding was the same counsel who had allegedly afforded ineffective assistance at the defendant’s hearing on the guilty plea. Accordingly, we find that the trial court did not commit error in denying petitioner’s petition for post-conviction relief.

Petitioner also asked us to review separately the trial court’s ruling denying his motion to withdraw his plea of guilty to the burglary charge. The appeal was consolidated with the appeal of the trial court’s order denying petitioner post-conviction relief. The sole issue of both relates to whether petitioner’s plea was knowingly and voluntarily given. Our opinion herein disposes of both appeals.

For the foregoing reasons, we affirm the judgment of the Circuit Court of Kankakee County.

Affirmed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

specially concurring:

The issue raised in this case of ineffective assistance of counsel is at best peripheral. It is really a mere patina on the controversy. The real issue is whether defendant should be allowed to withdraw his guilty plea because of an alleged misapprehension concerning his release date from prison.

Allegedly, trial counsel failed to correctly inform defendant of his prison release date, or led him to believe his negotiated five-year sentence would not require further incarceration other than that which he was serving for a previous burglary conviction. Accordingly, defendant says he was not fully apprised of all the consequences of his guilty plea. He, therefore, concludes that his plea of guilty was involuntary and should be vacated.

Supreme Court Rule 402 (84 Ill. 2d R. 402) governs the acceptance of a plea, of guilty by a trial court. Certain admonitions must be given to a defendant before accepting his plea of guilty. These include: the nature of the charge; the maximum and minimum penalties prescribed by law as to the charged offenses, as well as possible sentencing enhancement in light of prior convictions; that if he pleads guilty he will not receive a trial of any type; that he has a right to plead not guilty; that his plea is voluntary; and, that factual basis exists for the plea. The Rule not only implements the Federal constitutional requirement but also exceeds it in the scope of its application. Ill. Ann. Stat., ch. 110A, par. 402 (Smith-Hurd Supp. 1981-1982).

Other than admonishing defendant of his mandatory parole period, nowhere in Rule 402 or in the comments on the Rule (Ill. Ann. Stat., ch. 110A, par. 402, Committee Comments, at 530 (Smith-Hurd Supp. 1981-1982) is it stated, or even suggested, that informing a defendant of parole eligibility, good-time credits, prison furloughs, or prison work-release programs are part of the required admonitions before accepting a defendant’s plea of guilty.

The transcript of proceedings in this cause clearly reflects that when defendant entered his guilty plea he was thoroughly admonished by the trial judge in accordance with Rule 402. Such warnings extend over 10 pages of the record and manifest an admirable and considered undertaking in view of their breadth and completeness.

In People v. McCoy (1979), 74 Ill. 2d 398, the defendant filed a post-conviction petition claiming his plea of guilty was not voluntary since the trial judge failed to warn him, in addition to the possible penitentiary sentence imposed, that he would also be required to serve three years on mandatory parole following his release from prison. The controlling factor in determining whether the plea was voluntary was not * * literal, compliance with the provisions of Rule 402 * * *” but what the defendant knew he was to receive in terms of punishment in exchange for his agreement to plead guilty. (People v. McCoy (1979), 74 Ill. 2d 398, 402.) In other words, there must be a meeting of the minds concerning the specific recommendation as to the sentence and compliance with that recommendation. The Illinois Supreme Court concluded the sentence imposed (one to three years) was substantially less than the maximum sentence of 20 years, and therefore found no violation of a constitutional right. Just as the admonition in McCoy was sufficient, so it was in the case at bar. Accord, Norman v. Elrod (1979), 76 Ill. 2d 426 (per curiam).

People v. Wills (1975), 61 Ill. 2d 105, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430, lends little support to the proposition the majority says it does. In Wills a guilty plea was held voluntary even though trial judge failed to admonish a defendant convicted of a felony that his sentence besides incarceration included a mandatory additional period of parole. The mandatory additional parole provision was held to be a statutory requirement. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005—8—1; Ill. Ann. Stat., ch. 110A, par. 402, Historical and Practice Notes, at 532 (SmithHurd Supp. 1981-1982).) Notwithstanding, a trial judge’s failure to admonish a defendant concerning such mandatory additional parole period, such is only a factor, not a single operative fact, in determining the voluntariness of a plea of guilty. People v. Wills (1975), 61 Ill. 2d 105, 111 (supplemental opinion on rehearing).

Nor does the second Owsley appeal which is cited (People v. Owsley (1978) , 66 Ill. App. 3d 234) support the majority’s reasoning, even if Owsley had been correctly decided. And it was not. As the trial judge in that case, I am quite familiar with it.

Pursuant to plea negotiations Deanna Owsley entered a guilty plea to the offense of murder. She was sentenced to the agreed 14 to 20 years in prison. Later she moved to withdraw her guilty plea. The motion was denied, an appeal was perfected, and the trial court’s ruling was sustained on appeal. This was the first appeal. (People v. Owsley (1977), 51 Ill. App. 3d 16.) Next, Mrs. Owsley filed a post-conviction petition arguing that her trial lawyer misinformed her about when she would be eligible for parole, work release, and weekend furloughs, thus rendering her plea of guilty involuntary. The People moved to dismiss the petition, indicating waiver of the issue of her trial lawyer’s incompetence, or, alternatively, the matter had already been decided and therefore was res judicata. This court reversed the trial judge’s dismissal of the post-conviction petition. (People v. Owsley (1978), 66 Ill. App. 3d 234, 239.) Again, the cloak of ineffective assistance of counsel allegedly had raised a constitutional question.

A post-conviction proceeding is a new proceeding for the purpose of evaluating constitutional issues of an original conviction not already adjudicated. If such issues were previously raised on a direct appeal of a conviction and decided, they cannot be decided anew in a post-conviction proceeding. Res judicata is a bar. Moreover, if the petitioner fails to assert an issue in the previous direct appeal which could have been raised, he waives the issue even if of constitutional magnitude. People v. Cross (1979), 77 Ill. 2d 396, 401.

In Owsley the record clearly shows that Deanna Owsley was aware of the alleged misinformation she received from her lawyer prior to filing a motion to vacate her plea of guilty. But she did not include either the alleged misinformation or this alleged incompetence of her trial counsel in her motion to withdraw that plea. And, when the motion to withdraw the guilty plea was disallowed and the ruling appealed with new appellate counsel appointed to represent her on appeal, she neglected to raise the issue on appeal. While she later argued that trial counsel could not be expected to argue his own incompetency, this argument would not apply to her separate and new appellate counsel. Thus, the issue was waived. When the post-conviction petition was filed after the appeal had been decided, the trial court was correct in dismissing it without a hearing on the basis of waiver alone. The trial court was further correct in dismissing the post-conviction petition on the basis that defendant was correctly admonished pursuant to Supreme Court Rule 402. If a trial judge is not held accountable to enquire into defendant’s understanding of her parole eligibility, how can misunderstanding of parole eligibility by a defendant be deemed to render her guilty plea involuntary? In short, it should not. Regrettably, this court ruled differendy in the second Owsley appeal. And in the instant case, the majority opinion is contrary to that Owsley opinion. Its attempt to distinguish Owsley is a failure. Since I disagree with the Owsley opinion, I concur with the result reached in the instant case. But I do not concur with the rationale which attempts the impossible, the distinguishing of Owsley. The crux of the matter is that the alleged misinformation concerned a subject upon which neither the trial court nor defense counsel had either a statutory or a constitutional duty to admonish a defendant. If a trial court must enquire of a defendant about the date defendant understands he will be released from prison, need it also enquire as to defendant’s understanding about the qualities of prison fare? Or about the amount of living space per prisoner in Stateville as opposed to Menard? Or about any other aspect of prison life? And is the court required to enquire into everything that was told to defendant by his or her counsel? Rule 402 does not require such inquiry. What the second Owsley appeal accomplished, in effect, was to modify, supplement and amend Supreme Court Rule 402. It is anathema to suggest that the appellate court has the power to amend the rules of our supreme court.

Rule 402 mandates clearly and precisely the obligation of the trial judge. Beyond that, further inquiry is not necessary unless a Rule 402 inquiry would naturally lead into further questioning based on the defendant’s responses to the questions stated by the court.

In order for a defendant to be entitled to post-conviction relief, he must show a “* * ° substantial denial of his rights under the constitution of the United States or of the State of Illinois * * (Ill. Rev. Stat. 1979, ch. 38, par. 122—1.) Here, as in Owsley, the trial judge, in no way, deviated from the mandates of Rule 402. The plea was intelligently and voluntarily made.

Thus, for the reasons given, I concur with the result reached by the majority but not with their rationale.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER L. COLVIN, Defendant-Appellant.
    Third District
    No. 81-346
    Opinion filed February 24, 1982.
    Rehearing denied March 25, 1982.
    Robert Agostinelli, Gary Hicks, and G. Joseph Weller, all of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People. ■
   JUSTICE HEIPLE

delivered the opinion of the court:

After a jury trial in the circuit court of Peoria County, defendant Lester L. Colvin was convicted of burglary. A seven-year sentence of imprisonment was ordered.

The evidence at trial revealed the following facts. At approximately 3:30 a.m. on December 9,1980, Peoria County deputy sheriff John Vallely received a radio message that a burglar alarm had sounded at Hollis Grade School. As Vallely approached the school he noticed an auto with a warm engine parked approximately 100 yards from the school. Further, investigation revealed that the auto was registered to Lester L. Colvin. Vallely waited 10 minutes for Officers Needham and Williams to arrive. Upon their arrival, Williams remained with the Colvin vehicle while Vallely and Needham drove to the school in their separate vehicles to check the building. Needham remained at the front of the school. Vallely drove around to the rear of the building where he observed a small hole in a window. This window was not broken, two hours earlier; during his regular rounds Vallely had checked the school building. Vallely then turned his headlights and spotlights on the rear of the school and saw the head of a white male move up and down inside the window. He notified the other officers of his observations by radio. Two minutes later Need-ham saw three white males running across the front of the school. Needham requested assistance and pursued them on foot.

When the three men toned the corner of the building, they stopped and reversed directions. They were now running back towards Needham who was in uniform. Needham drew his revolver and ordered them to halt. One of the three men attempted to open a locked door to the school building, and the other two individuals continued running. When they got closer to Needham, they stopped and placed their hands on the school building as directed. Lester L. Colvin was one of the two individuals.

The third individual submitted and as Needham frisked and handcuffed the three men, Vallely arrived to assist. Vallely asked the men, “How many more are inside the building?” One suspect replied, “One.” Colvin replied, “None.”

After the handcuffed men were placed in Vallely’s squad car, Need-ham noticed that the window going into the school kitchen had been pushed open. The screen had been removed. It was found inside the school when the officers searched the school looking for another possible suspect. Finding the school vacant, the officers returned to inspect the kitchen area. There they observed what appeared to be evidence of a burglary interrupted. Burglary tools were strewn on the floor. Refrigerator doors were open. The door of a large meat locker had been removed. Three large garbage cans were filled with frozen meat in various stages of thaw.

No evidence or testimony was presented by Colvin, who moved for a directed verdict of acquittal at the close of the State’s case. Colvin’s motion was denied. The jury found Colvin guilty of burglary. A sentencing hearing was conducted, and Colvin, who had a previous burglary conviction, received a sentence of seven years’ imprisonment.

On appeal, defendant Colvin initially claims that his response to Officer Vallely’s inquiry as to whether anyone was inside the school should have been suppressed because he was then in custody and had not been given his Miranda rights. We agree. It was error for the trial court to deny Colvin’s motion to suppress his response to the officer’s question..

The landmark case of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, set forth rules of police procedure applicable to “custodial interrogation.” Therein, the Supreme Court stated:

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.)

In the instant case, Officer Vallely’s question was posed when the three men had been handcuffed. From such actions on the part of the police, we believe it clear that the defendant Colvin and his companions were in custody. Vallely’s question was likely to evoke an incriminating response from the men. Thus, the failure of the police to comply with the Miranda safeguards prior to asking the question renders Colvin’s response inadmissible.

While the admission of Colvin’s response was error, in the setting of this particular case we consider it harmless error. According to the standard set forth in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, we believe that the error complained of did not contribute to the verdict obtained. The other competent evidence adduced at trial, recited earlier, amply supports Colvin’s guilt independent of his statement.

Defendant Colvin was not the only suspect to respond to the police officer’s inquiry as to whether anyone else was in the school building. Another suspect replied that one person remained in the building. Colvin argues that such response was hearsay and should have been excluded on that basis. We do not agree.

The statement of the other suspect was not hearsay because it was admissible for nonhearsay purposes. His response was not admitted to prove the truth of the matter asserted, that is, that one person remained in the building. It makes no difference whether the statement is true or false. (E. Cleary and M. Graham, Handbook of Illinois Evidence §801.6, at 402 (3d ed. 1979).) The statement is admissible to show merely that the suspect answered the question. From the fact that he answered the question, it may be inferred that he was inside the school building. As such, it is not offered to prove the truth of the statement, i.e., that one person remained in the school. Thus, it is not hearsay and was properly admitted into evidence at the trial.

Judgment of the circuit court of Peoria County is, therefore, affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: JUSTICE ALLOY

text:
    LAND OF LINCOLN SAVINGS AND LOAN, Plaintiff-Appellee, v. MICHIGAN AVENUE NATIONAL BANK OF CHICAGO, Trustee, et al., Defendants-Appellants.
    Third District
    Nos. 81-435, 81-276 cons.
    Opinion filed February 26, 1982.
    Rehearing denied March 23, 1982.

      Joseph M. Laraia, of Laraia and Kilander, Ltd., of Wheaton, and Harold I. Levine, Ltd., of Chicago, for appellants.
    Clarence K. Graves, of Graves & Lohrentz, of Elmhurst, and Jeffrey M. Weston and Mary Ellen Rosemeyer, both of Friedman, Weston, Sternberg & Rakich, of Chicago, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Individual defendants Joseph M. Laraia, Ronald Berns, and Vincent A. Solano, Jr., appeal from a portion of the summary judgment order against them in this mortgage foreclosure action by Land of Lincoln Savings and Loan (hereinafter Land of Lincoln). Land of Lincoln had filed a mortgage foreclosure complaint, requesting sale of the real property and a deficiency judgment against the individual defendants. They answered, denying any default on the loan and challenging the complaint as insufficient to support a deficiency award against them. Land of Lincoln thereafter filed its motion for summary judgment, supported by exhibits and affidavits, which was opposed by the defendants, who submitted affidavits in opposition. After hearing, the court entered summary judgment for Land of Lincoln. A sale of the real property was ordered and the defendants were found personally liable for any deficiency which might result from the sale. The property was sold, and a deficiency of $42,776.18 resulted. A deficiency judgment in that amount was entered against the individual defendants Laraia, Berns, and Solano. The defendants now appeal from the entry of the deficiency judgment and raise numerous issues. They argue (1) that there were questions of fact raised concerning an extension of the date for payment of the loan, and that, therefore, the finding of default, which was a basis for the deficiency judgment, was in error. While not challenging the default finding as it affects the foreclosure and sale, they do challenge it, and assign it as error, as it affects the deficiency judgment. They raise other issues as to (2) whether they were guarantors on the note, rather than comakers, as the trial court found, and whether the deficiency judgment was proper. They also raise issues on the pleadings, including (3) whether the complaint properly pleaded the mortgage and note so as to support the deficiency judgment, and (4) whether there was proper pleading of the assignment of the note and mortgage to Land of Lincoln.

The record reveals that the original mortgage loan on this real property, located in the village of Bolingbrook, was taken out in July 1975. The original mortgage agreement was between Michigan Avenue National Bank of Chicago, as trustee under a land trust, and American Home Savings and Loan Association. By reason of a 1978 merger, Land of Lincoln is the successor of American Home Savings and Loan. The original mortgage agreement specified a principal of $280,000, due and payable on August 1,1977, with monthly interest payments until that time. By loan modification agreement, the loan was extended to March 1,1978. Prior to that time, and during the period of extension, two acres of the original property were sold and the proceeds applied to the loan, reducing the principal balance due to $170,000.

On March 1, 1978, another note and mortgage agreement were executed covering the subject real estate. The document was a standard form land trustee’s note, secured by mortgage. The note was for a principal sum of $170,000, to be due and payable on May 31, 1979. Two installment interest payments, of $8,500 each, were provided for in the agreements, to be payable on November 1,1978, and on May 1,1979. The mortgagee was American Home Savings and Loan, predecessor to Land of Lincoln, and the mortgagor was Michigan Avenue National Bank of Chicago, as trustee under a trust agreement with the individual defendants as beneficiaries. In addition to execution by Michigan Avenue Bank, as trustee, the promissory note contained the following provision, typed onto the standard form below the officer for the trustee’s signature:

“For value received, the undersigned personally and individually acknowledge herewith the receipt of the principal sum of One Hundred Seventy Thousand ($170,000.00) paid to them as evidenced by the within Note appearing on the reverse side and that they herewith agree and promise to pay to American Home Savings and Loan Association and according to the terms and conditions set forth on the within note and, in the event of the default in the payment of any set terms of said note, that they shall be individually and personally liable, both jointly and severally, and that all rights accruing in a personal obligation may be involked [sic] against them.”

The individual defendants had executed the note under this provision, as “the undersigned.”

The note contains no provision with respect to any conditions precedent or subsequent which would affect or alter the due dates for payment set forth in the note. The defendants, in their pleadings and affidavits, sought to establish that the original agreement between the parties was that the loan would be extended for a one-year period, until May 31, 1980, if the defendants were unable to sell the property before May 31, 1979, the due date set forth in the note and references in the mortgage agreement.

Prior to, and at the time of the March 1, 1978, execution of the note and mortgage herein at issue, the defendants were attempting to obtain a rezoning of the property from commercial to multiple family residence zoning. The affidavits of defendants Laraia and Solano, attached to defendants’ response to motion for summary judgment, indicate that the change in zoning was suggested by plaintiff Land of Lincoln’s loan officer, Livio Valli. The affidavits of the defendants also state that prior to and at the time of the execution of the note and mortgage the same Livio Valli had agreed that if they were unable to sell the property before May 31, 1979, the due date, that he would extend the loan for an additional year. It is the position of the defense that the mortgage and note were executed based upon that parol agreement with respect to extension. As noted previously, the note and mortgage themselves are silent as to any such provision, clearly and unambiguously providing for a due date of May 31, 1979.

The affidavits of the defendants indicate as well that the extension agreement was repeated and reaffirmed subsequent to the execution of the note and mortgage on several occasions. It is asserted in the affidavits that the defendants obtained a change in zoning, from commercial to single family, for the property, and in doing so were relying upon the representations of Livio Valli with respect to any extension of the note.

The first installment of interest on the note became due and payable on November 1, 1978. It was paid on December 7, 1978. Defense affidavits indicate that sometime prior to December 4,1978, the parties reiterated the loan extension provision, in the event no sale was accomplished by stated due date of May 31,1979.

After that due date had passed, in June 1979, the defendants offered Land of Lincoln the second installment of interest, under the note, and requested that extension documents be executed by the parties to show an extension of one year. Land of Lincoln’s officer Livio Valli advised the defendants at that time that there would be no extension of the note, despite the tender of interest. The defendants then refused to tender the second installment until an extension agreement was executed, as had been agreed upon between the parties. Land of Lincoln thereafter filed the instant foreclosure complaint. The short form complaint filed by Land of Lincoln followed the form set forth in section 7(2) of the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23.6). The complaint alleged that Land of Lincoln was the successor to American Home Savings and Loan, and it alleged the existence and execution of the note and mortgage. The mortgage was fully described in the body of the complaint and both the mortgage and the note were attached to the complaint as exhibits. As provided in the statute, Land of Lincoln sought a foreclosure on the mortgage and a personal deficiency decree against the named individual defendants, who were alleged to be personally liable for such deficiency.

The defense position, in their answer and during summary judgment proceedings, was that the defendants had signed the note as guarantors and that no deficiency could be obtained against them, as guarantors, based upon the single-count foreclosure complaint filed by Land of Lincoln. The defendants further argued on the summary judgment question that there were issues of fact presented concerning the default, specifically whether the note had been extended for one year, as per the agreements set out in their affidavits. They ásserted that the plaintiff was estopped from enforcing the due date set forth, having agreed to an extension. The defense also challenged the pleadings, arguing that the complaint did not properly establish the assignment of the note and mortgage to Land of Lincoln.

The circuit court reviewed the entire record and heard the arguments of counsel on the summary judgment motion. Thereafter, it entered its order, granting the foreclosure, therein finding that the defendants had signed the note as comakers. Based on that finding, the court entered summary judgment against them for any deficiency which might result after sale of the real estate. The property was thereafter sold, and the amount realized was $189,000. The deficiency judgment later entered against the defendants was in the amount of $42,776.18. The defendants appeal from that portion of the court’s orders which granted a deficiency judgment against them. To the issues raised on appeal we now turn.

The first issue raised by the defendants is whether there was a genuine issue of fact on the question of default, specifically, whether the evidence in the record indicated that the parties agreed to an extension of the note until May 31,1980. The defendants argue there was a question of fact as to whether any default had occurred and they assert that summary judgment was therefore improper. Plaintiff Land of Lincoln, while maintaining that no issue of fact existed, initially argues that the issue of default has been waived by the defendants’ failure to appeal from the foreclosure portion of the judgment. We find no waiver. The defendants are entitled to appeal from the judgment against them or any part of the judgment. (Ill. Rev. Stat. 1979, ch. 110A, par. 303(c)(2).) In this case, the notices of appeal filed by them sought to appeal from that portion of the judgment which provided for a deficiency award against the defendants. No appeal was taken from the order of foreclosure and sale. The defendants specifically note in their brief that they are not contesting the foreclosure and sale of the property, only the deficiency judgments. In seeking to reverse the deficiency award, the defendants are permitted to advance any argument in support thereof which was made to the trial court and which finds a basis in the record. In this case, one of the arguments presented to the trial court throughout the proceedings was that there was no default on the note, as a result of the existence of the alleged extension agreement. That argument has been properly preserved for this appeal. That the argument was advanced in the trial court to prevent both the foreclosure and any deficiency award does not prohibit its use, solely as to the deficiency, merely because no appeal has been taken from the foreclosure. We perceive no practical difficulty if we reverse the deficiency judgment, based upon the issue of default. Should the trial court rule, upon remandment, that no default occurred, such finding would address only the question of the deficiency award, and it could in no way affect the foreclosure and sale. Matters as to the foreclosure and sale have been conclusively determined and settled, the defendants having taken no appeal within the time prescribed. We find that the defendants are permitted to advance any argument made to the trial court as a basis for reversing the deficiency judgment, from which they appeal. They have not waived the issue with respect to their default on the note and mortgage.

The defendants’ default argument is that there was a genuine issue of fact concerning whether Land of Lincoln had agreed to an extension of the loan from May 31, 1979, as stated in the note, to May 31, 1980, as alleged by the defendants to have been orally agreed to by Livio Valli. The defendants assert that the written note does not reflect the agreement of the parties at the time of execution and that their affidavits show that the true agreement was for an extension of the note for one year past the date stated on the face of the note. They further argue that there was also a subsequent modification of the note, extending it for the one-year period.

It is well established that in ruling on summary judgment motions the court must construe the pleadings, depositions and affidavits included in the record most strictly against the moving party and most liberally in favor of the opponent. (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 415 N.E.2d 1272; Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) In examining the record and specifically the defendants’ pleadings and affidavits, it is clear that there is considerable factual support for their claim that the original March 1,1978, agreement between the parties was that the note would be extended beyond May 31,1979, in the event the property was not sold by that time. The problem arises, however, due to the parol nature of that evidence. As noted, the note itself is unambiguous in its statement of the due date and contains no provision with respect to an extension. Under the circumstances, the parol evidence rule operates to prevent consideration of the evidence indicating an extension agreed to at the time the note was executed.

It is established under the parol evidence rule that evidence of prior or contemporaneous oral agreements is not admissible to vary or contradict the terms of a writing, otherwise unambiguous on its face. (Main Bank v. Baker (1980), 88 Ill. App. 3d 28, 33-34, 410 N.E.2d 681; Ill. Ann. Stat., ch. 26, par. 3—119, Uniform Commercial Code Comment 1, at 85, Illinois Code Comment 1, at 84 (Smith-Hurd, 1963).) It has also been noted that the parol evidence rule is not a rule of evidence, but rather a rule of substantive contract law. (Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 537, 407 N.E.2d 1102.) Parol evidence of prior or contemporaneous agreements is admissible, however, in certain circumstances, those being where a party alleges that there was mutual mistake, conditional delivery, a lack of consideration or fraud. (Davis v. Buchholz (1981), 101 Ill. App. 3d 388, 428 N.E.2d 198; Main Bank v. Baker (1980), 88 Ill. App. 3d 28, 33-34, 410 N.E.2d 681.) These are recognized exceptions to the parol evidence rule barring extrinsic evidence of the parties’ intentions at the time of execution. In the instant case, the defendants’ affidavits and pleadings contain statements asserting prior and contemporaneous oral agreements with respect to the due date on the note executed March 1, 1978. The defense is asserting that the agreement as embodied in the note and mortgage is not the agreement of the parties, but that the agreement was that an extensión would be granted if the defendants were unable to sell the property. Thus, the defendants are seeking to vary the unambiguous terms of the agreement through evidence of prior and contemporaneous oral agreements. This, the parol evidence rule does not permit. Further, there was no evidence brought forth indicating fraud, lack of consideration, conditional delivery or mutual mistake, nor were these affirmative defenses raised in the defense answer. The evidence of oral agreements at the time of the execution of the note and mortgage was properly not considered by the court in addressing the summary judgment motion by Land of Lincoln. Those agreements were merged in the written agreement of the parties, which expressed their intentions as of the date it was executed.

Evidence of a subsequent modification of an agreement, rather than evidence of prior or contemporaneous parol agreements, stands on a different basis. In the instant case, the defendants also assert that there was a subsequent modification of the agreement and that the modification was that the due date would be extended for a one-year period, if the property were not sold by May 31, 1979. Alternatively, they argue that there was a subsequent ratification of the contemporaneous oral agreement to extend. In their affidavits opposing the summary judgment motion, the individual defendants stated that they pursued and obtained the rezoning on the property in reliance upon the subsequent modification of the due date. They also state that the extension agreement was reiterated subsequent to the execution of the written documents. While there is some question, on the record, whether there was a subsequent modification or merely a subsequent recitation of the agreement reached at the time of execution, we must at this stage liberally construe the record in favor of the defendants when assessing the propriety of summary judgment action against them. When such construction is utilized, we find the record sufficient to raise a question of fact as to whether the parties did agree to a modification of the due date subsequent to the execution of the written agreements. The substance of the modification, as alleged in the pleadings and stated in the affidavits, was that the loan would be extended for a one-year period if the defendants could not sell the property. We would note, in this regard, that in two affidavits in the record, Livio Valli, the officer alleged to have entered into the subsequent modification agreement, has not denied that there was a subsequent agreement to extend.

The court was not prevented from considering the evidence of a subsequent modification by the parol evidence rule, for, as noted, the rule is applied to prior or contemporaneous parol evidence which would tend to alter or contradict the unambiguous terms of a written document. Parol evidence is admissible to establish a subsequent modification of a contract, and this rule has been applied to notes as well as other written contracts. (Pierce v. Hasbrouck (1868), 49 Ill. 23; Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 1022, 339 N.E.2d 529; 12 Am. Jur. 2d Bills and Notes §1245 (2d ed. 1964).) A previous rule of law, barring oral evidence of a subsequent modification of a written contract, had application to contracts under seal. The use of seals on written contracts was abolished in 1951 in Illinois (Ill. Rev. Stat. 1979, ch. 30, par. 153b), and the rules of construction applied to other written contracts were adopted for contracts under seal as well. Plaintiff Land of Lincoln argues that if even parol evidence is admissible to establish a subsequent modification, any such modification must be shown to have been supported by consideration and to have been for a definite time period. (Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 639, 417 N.E.2d 806.) Plaintiffs argue that the record shows neither requirement. We disagree. The defense affidavits make it clear that the extension was to be for one year, and this is admitted in Livio Valli’s second affidavit. As to the requirement of consideration, the defendants state that they proceeded with the rezoning in reliance upon the extension agreement. These statements, again giving the defense the benefit of a liberal construction, indicate that the defendants changed their position, with a definite and allegedly detrimental effect on the legal status of the property, as a result of, and in reliance upon, plaintiff officer’s agreement to modify the due date on the loan and extend it for a one-year period. Such a change in position to their detriment, with its modification of the legal status and thereby their legal rights concerning the property, is sufficient consideration. A change in position to one’s detriment, or a modification of a legal relation or status, bargained for or given in exchange for a promise, is consideration. (McAdams v. Scullin (1977), 53 Ill. App. 3d 374, 378-79, 368 N.E.2d 1036.) It is true that at this stage the record does not explicitly establish that the change in zoning was the bargained for consideration supporting the extension agreement. Such is, however, a permissible inference from the pleadings and affidavits and one which must be indulged in when considering the summary judgment motion against the defendants. Of course, no determination can be made of the ultimate result of this defense, for that depends upon the further factual development that will come after remandment. The court erred in entering summary judgment on any deficiency owed by defendants, for a genuine issue of material fact existed on the question of whether there was a default in the note and mortgage. The court erred in concluding, on the basis of the record, that there was a default. The parties ought to have been permitted to proceed to trial and to produce the evidence as to any subsequent modification. We reverse the deficiency judgment entered against the individual defendants and remand, for further proceedings. In the interests of judicial economy, we will nevertheless address the other issues raised by defendants, as they remain and will not be obviated by our remand.

The defendants assert that the court erred in concluding that they were comakers on the note and thereby liable for a deficiency judgment under its terms. They cite the following provision of the note in support thereof:

“This note is executed by the undersigned, not personally but as Trustee as aforesaid in the exercise of the power and authority conferred upon and vested in it as such Trustee, and is payable only out of the property specifically described in said Mortgage securing the payment hereof, by the enforcement of the provisions contained in said Mortgage. No personal liability shall be asserted or be enforcible against the undersigned or any person interested beneficially or otherwise in said property specifically described in said Mortgage given to- secure the payment hereof, or in the property or funds at any time subject to said trust agreement, because or in respect of this note or the making, issue or transfer thereof, all such liability, if any, being expressly waived by each taker and holder hereof, but nothing herein contained shall modify or discharge the personal liability expressly assumed by the guarantor hereof, if any, and each original and successive holder of this note accepts the same upon the express condition that no duty shall rest upon the undersigned to sequester the rents, issues and profits arising from the property described in said Mortgage, or the proceeds arising from the sale or other disposition thereof, but that in case of default in the payment of this note or of any installment hereof, the sole remedy of the holder hereof shall be by foreclosure of the said Mortgage given to secure the indebtedness evidenced by this note, in accordance with the terms and provisions in said Mortgáge set forth or by action to enforce the personal liability of the guarantor, if any, of the payment hereof, or both.”

The argument is that this provision prevents any personal liability for default from arising as to the defendants, as comakers. They argue that only foreclosure is possible as against the makers, and that a deficiency must be obtained from the guarantors only. The argument is not sound when the whole agreement is examined. The above provision refers only to the corporate trustee, as maker. The corporate trustee is the undersigned referred to in that clause. The defendants’ individual liability as makers is clearly stated in the typed-in provision on the note added below the signature of the corporate trustee’s officer. The added provision states:

“For value received, the undersigned personally and individually acknowledge herewith the receipt of the principal sum of One Hundred Seventy Thousand ($170,000.00) paid to them as evidenced by the within Note appearing on the reverse side and that they herewith agree and promise to pay to American Home Savings and Loan Association and according to the terms and conditions set forth on the within note and, in the event of the default in the payment of any set terms of said note, that they shall be individually and personally liable, both jointly and severally, and that all rights accruing in a personal obligation may be involked [sic] against them.” (Emphasis added.) .

It is clear that the court correctly found, on the basis of this added provision, that the undersigned individual defendants executed the note as comakers and agreed to be personally liable as such, in the event of default. We find no conflict between this provision and the previous one, as the latter has reference to the corporate trustee and a holder’s remedies as against the trustee. Even if some ambiguity could be claimed, the typewritten provision in the form note would control the printed term. (Ill. Rev. Stat. 1979, ch. 26, par. 3—118(b).) The individual defendants signed as comakers and were liable for any deficiency in the event of default.

Two other issues raised by the defendants need to be addressed, and both go towards their challenge to the pleadings. The defense argues that the plaintiff’s complaint fails to incorporate the note and mortgage by reference and, therefore, the complaint is inadequate, to support the deficiency judgment. The complaint, we note, follows exactly the statutory short form complaint set out in the foreclosure provisions. (Ill. Rev. Stat. 1979, ch. 95, par. 23.6.) The note and mortgage are referred to in the complaint and attached to it as exhibits. Section 7.2 of the Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23.6—2) states in pertinent part:

“The statements contained in a short form complaint shall, by virtue of this Act, be deemed and construed to include allegations as follows: * * 0 ; that the exhibits attached are true and correct copies of the mortgage and notes and are incorporated and made a part of the complaint by express reference; * *

As a perusal of the statute would have indicated, there was no deficiency in the incorporation of the note and mortgage into the.complaint.

The defendant also asserts that the complaint failed to allege the assignment of the note from American Home Savings and Loan Association to Land of Lincoln. Whilé it is true that the complaint did not allege any assignment, for there was no assignment, the complaint did allege that Land of Lincoln was the successor to American Home Savings and Loan Association, stating specifically that the latter is “now known” as Land of Lincoln. Furthermore, the record at summary judgment contains a certificate of merger between American Home Savings and Loan and Land of Lincoln. By statutory provision, as a result of the merger, “all of the rights, franchises, and interests of each of the merging associations in and to every kind of property, real, personal or mixed, shall vest automatically in the continuing association, without any deed or other transfer.” (Ill. Rev. Stat. 1979, ch. 32, par. 819(b).) The pleading was not deficient for failure to allege an assignment of the note.

In summary, we find that the pleadings were sufficient and that the court correctly determined that the individual defendants were makers. We find, however, that the court erred in entering summary judgment for the deficiency for the reason that a genuine question of fact existed with respect to whether there was a default on the note by the failure to pay the principal on May 31,1979. The deficiency judgment against the individual defendants is reversed on that basis, and the cause remanded for further proceedings. It is again noted that this reversal does not affect in any way the foreclosure decree and subsequent sale of the property thereunder. The reversal is of the deficiency judgment entered only, and the remandment will be for the purpose of a hearing to determine whether there was a subsequent modification of the agreement as to its due date, and thereby, whether defendants were in default at the time of the foreclosure action.

Reversed and remanded with directions.

BARRY, P. J., and SCOTT, J., concur.


author: JUSTICE MILLS

text:
    MINONK STATE BANK, Adm’r of the Estate of Agnes Grassman, Deceased, Plaintiff-Appellant, v. IDA GRASSMAN, Defendant-Appellee.—(BERNICE GERDES et al., Defendants.)
    Fourth District
    No. 17240
    Opinion filed March 3, 1982.
    Rehearing denied March 26, 1982.

      Westervelt, Johnson, Nicoll & Keller, of Peoria, and Riely & Riely, of Minonk (Jeffrey W. Jackson, Brian J. Meginnes, and James A. Riely, of counsel), for appellant.
    Mark J. McGrath, of Mackinaw, guardian ad litem, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

We lay to rest today an antiquated and obsolete legal fiction—the “strawman.”

Here is a question of first impression: Can a joint tenant unilaterally sever that joint tenancy by conveying her interest to herself as a tenant in common without the use of an intermediary?

Our answer is yes.

We reverse.

Plaintiff, the administrator of the estate of Agnes Grassman, appeals from a declaratory judgment order declaring defendant, Ida Grassman, sole surviving joint tenant of real property which, by reason of a 1938 deed, the deceased and defendant had owned in joint tenancy. The precise question before this court is whether the unilateral attempt by one joint tenant to terminate that tenancy by conveying her interest from herself as a joint tenant to herself as a tenant in common is effective to sever the joint tenancy.

Agnes (decedent) and Ida Grassman (defendant) were sisters. In 1938, Gustav Grassman executed a deed under which Agnes, Ida, and Frieda Grassman, a third sister, became owners in joint tenancy of the parcel of real estate. Frieda died in 1972, leaving Agnes and Ida as surviving joint tenants.

One week after the death of Frieda, defendant executed a deed conveying this parcel of property from herself as a joint tenant to herself as a tenant in common. The deed recited that this action was for the sole purpose of dissolving any and all rights of survivorship as between the parties to the deed executed by Gustav Grassman. It is undisputed that Agnes was unaware of what Ida had done.

On February 16, 1977, Agnes died. Her will, dated March 13, 1963, was admitted to probate with Minonk State Bank as administrator. The will disposes of all of Agnes’ personal property but makes no mention of any disposition of real property. Subsequent to admission of the will to probate, Minonk State Bank filed this declaratory judgment action requesting a declaration by the court that Ida and Agnes held the property in tenancy in common by reason of severance of the joint tenancy by Ida through execution of the 1972 deed. Defendant, who is now incompetent, argued through her guardian ad litem that the 1972 deed she executed was ineffective and did not operate to destroy the joint tenancy so that she is the sole owner of the property by virtue of her having survived Agnes.

Before discussing this question, which has not heretofore been decided in Illinois, a review of the common law theory of joint tenancy, as well as its modern adaptations seems appropriate since other jurisdictions which have decided this question have reached diametrically opposed results on exactly the same facts.

Joint tenancies existed as early as the 13th century. Born in the feudal relationships pervasive in that era, it became a favored form of estate in land because of the vital importance of the tenure, the preeminent characteristic of real property in the feudal ages in which land or tenements were held in subordination to some superior. (2 American Law of Property §6.1, at 3-4 (1952); Black’s Law Dictionary 1317 (5th ed. 1979).) It was in the interest of the lord that each feudal holding be a single feud continuing until the death of the survivor. (2 American Law of Property §6.1, at 3 (1952).) The rationale for the rule was given as follows:

“The common law favored title by joint tenancy, by reason of this very right of survivorship. Its policy was averse to the division of tenures, because it tended to multiply the feudal services, and weaken the efficacy of that connection.” 4 Kent’s Commentaries 361 (14th ed. 1896).

As a consequence, grantees took an estate as though they together constituted one person. Since all were seized as a fictitious entity, four classic unities developed which, albeit artificially, demonstrated their community of interest which required that individual interests be equal in all respects. (2 American Law of Property §6.1, at 4 (1952).) The common law unities were, of course: time, title, interest, and possession. In essence, the common law joint tenancy required that the several tenants have one and the same interests accruing by one and the same conveyance, commencing at the same time and held by one and the same undivided possession. Kane v. Johnson (1947), 397 Ill. 112, 73 N.E.2d 321.

Despite the demise of the feudal system, courts nevertheless continued to scrutinize joint tenancy questions by resort to a simple determination of whether the particular unities were present in a given situation. Though the philosophical concept supporting the application of the unities to a particular situation had become archaic, few seriously questioned the continued use of these mechanical rules even though the common law doctrine had lost its vitality. The unities took on a life unto themselves. Form triumphed over substance and the unities became “necessary and requisite” to the creation and continuance of a joint tenancy. See Klouda v. Pechousek (1953), 414 Ill. 75, 110 N.E.2d 258.

As one writer has aptly noted, however, “the requirement of the four unities necessarily arose as a result of the basic concept [of joint tenancy] rather than as a prerequisite to the creation of the estate.” (2 American Law of Property §6.1, at 5 (1952).) The unwillingness or inability of courts to recognize this distinction led inevitably to anomalous results. Rather than question the efficacy of the unities, other legal fictions such as the “strawman” transaction sprang into being to perpetuate a long dead feudal concept.

As a result, by 1827, the legislature had passed a statute reversing the common law presumption in favor of joint tenancies. Though joint tenancies were not abolished or forbidden, their creation now depended upon compliance with the statute. (Mette v. Feltgen (1894), 148 Ill. 357, 36 N.E. 81.) Likewise, passage of other legislation such as the “Married Woman’s Law” in 1861 (1861 Ill. Laws 143), made certain other aspects of the common law regarding tenancies by the entirety obsolete. At common law, a husband and wife were but one person. This formed the basis for the common law notion that a deed to husband and wife created in them a tenancy by the entirety which could not be severed. The basis for this rule ceased, however, with the adoption of the “Married Woman’s Law” which provided that conveyances to husband and wife created in them a tenancy in common unless the instrument expressly declared that the estate was a joint tenancy. Mittel v. Karl (1890), 133 Ill. 65, 24 N.E. 553; Lawler v. Byrne (1911), 252 Ill. 194, 96 N.E. 892.

Despite these legislative enactments, which did not specify that the unities need be observed with strict precision, courts uniformly and tenaciously relied upon them to determine whether a joint tenancy had been created irrespective of the express intent of the parties. Deslauriers v. Senesac (1928), 331 Ill. 437, 163 N.E. 327.

Deslauriers is the focal point for the litigation in this case. In Deslauriers the wife owned a parcel of property prior to the marriage. After the marriage she and her husband executed a deed by which they purported to transfer the property from her to themselves in joint tenancy. The wife died intestate, and the husband entered a contract to sell the property to third parties. Before the purchasers became entitled to a deed, the husband died. His will was admitted to probate, and the purchasers of the property indicated they were ready to pay the balance of the purchase price. However, they refused to accept the deed upon the advice of an attorney who doubted that a joint tenancy had been created. The husband’s executor filed suit against the heirs of the wife praying that the court decree that the deed created a joint tenancy and that as the surviving husband, he had been the sole owner of the property.

The supreme court, relying strictly upon common law principles, held that a person cannot convey or deliver to himself that which he already possesses. The unities required that for every transaction there be a grantor and a grantee. Hence, no joint tenancy was created by a deed from a wife to the husband and wife as joint tenants. Such a deed created only a tenancy in common.

Deslauriers was decided in 1928 and remained the law until 1953 when “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1953, ch. 76, par. 1(b)) was amended. Under the amendment, joint tenancies could be created “notwithstanding the fact that the grantor is or the grantors are also named as a grantee or as grantees in said instrument of grant or conveyance.” As one court noted, this amendment changed the common law with respect to the four unities by relaxing the statutory provision that an estate with all the effects of a common law joint tenancy could be created through a conveyance from a grantor directly to himself and another, without the intervention of a third party. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) The court in Frey also pointed out that courts should adopt a more liberal and practical view of these sorts of common transactions in light of the public policy change.

With these preliminary observations in mind, we turn to the instant appeal. Plaintiff argues that the legislative change in 1953 dispensing with the “strawman” requirement in the creation of joint tenancies should be applied with equal force to the rules governing severance of joint tenancies. Defendant argues that since the 1953 amendment applied strictly to creation of joint tenancies, it has no application to severance questions. Therefore, Deslauriers’ reliance upon common law principles is still controlling.

We cannot accept defendant’s contention that different rules should be applied to the creation and severance of joint tenancies in this situation. In the first instance, we note that adherence to a rule which would make it more difficult to destroy joint tenancies than to create them, runs contrary to the basic concept of joint tenancy, including that at common law. 2 American Law of Property §6.2 (1952).

At common law, severance of any one of the unities destroyed the joint tenancy. It is clear that the preeminent question was the intention of the parties either to enter or maintain the joint tenancy relationship. The unities, for better or worse, served to show that this intent was present when the estate was created. Likewise, the subsequent unilateral act of one joint tenant, with or without the knowledge or consent of the other joint tenants, severing the joint tenancy just as vividly demonstrated that the parties no longer intended to continue the relationship. The crucial point is that the nature of the grantor and grantee in the transaction severing the joint tenancy is immaterial to the question of intention. The intent to sever was the controlling issue, although the technical and largely ceremonial aspects of the “strawman” transaction were observed.

Illinois has recognized any number of ways in which joint tenancies can be severed: mortgaging an interest to a stranger (Lawler v. Byrne (1911), 252 Ill. 194, 96 N.E. 892); deeding the property to a stranger (Szymczak v. Szymczak (1923), 306 Ill. 541, 138 N.E. 218); a contract between the joint tenants to sever (Duncan v. Suhy (1941), 378 Ill. 104, 37 N.E.2d 826; In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 395 N.E.2d 1209); involuntary conveyance by a sheriff divesting one tenant of his estate following a judicial sale (Jackson v. Lacey (1951), 408 Ill. 530, 97 N.E.2d 839; In re Estate of Woodshank (1975), 27 Ill. App. 3d 444, 325 N.E.2d 686); conveyance of a remainder interest while reserving a life estate (Klouda v. Pechousek (1953), 414 Ill. 75, 110 N.E.2d 258); conveyance from one tenant to another tenant (Jackson v. O’Connell (1961), 23 Ill. 2d 52, 177 N.E.2d 194); executing a contract to convey the property (Naiburg v. Hendriksen (1939), 370 Ill. 502, 19 N.E.2d 348); transfer to a trustee (Flynn v. O’Dell (7th Cir. 1960), 281 F.2d 810). If one examines those cases, it is obvious that courts have been inclined to allow severance in any variety of ways once the intent to sever has been demonstrated. This observation all but militates a conclusion that severance should not be governed more strictly than creation of joint tenancies.

Only one other jurisdiction supports defendant’s position that the strict common law unities must be observed and a “strawman” transaction must be the intermediary through which a joint tenant can convey property to herself in tenancy in common. In Krause v. Crossley (1979), 202 Neb. 806, 277 N.W.2d 242, the Nebraska Supreme Court, after considering the common law requirements for joint tenancy, concluded that neither the common law nor Nebraska statutes indicated any intention to permit .severance by conveyance from one joint tenant to himself if he was both the grantor and the grantee. Citing Deslauriers, the court refused to allow a person to convey or deliver to himself that which he already possessed.

One other jurisdiction also adhered to this rationale for a time. In Clark v. Carter (1968), 265 Cal. App. 2d 291, 70 Cal. Rptr. 923, the California Court of Appeals also cited Deslauriers and held that a grantor could not make himself the grantee by conveying the estate to himself. That holding was predicated solely on common law principles that each transaction must have two parties.

Twelve years later, that decision was reviewed and reversed by the same appellate court in Riddle v. Harmon (1980), 102 Cal. App. 3d 524, 162 Cal. Rptr. 530. After noting that State legislation had amended the civil code to allow direct transfers of property in the creation of joint tenancies without the fiction of the “strawman,” the court concluded that there was little virtue in steadfastly adhering to cumbersome, futile legal requirements. Since there were any number of rituals available to unilaterally terminate a joint tenancy, common sense, as well as legal efficacy, dictated that a joint tenant should be able to accomplish directly what he or she could otherwise achieve indirectly by use of elaborate legal fictions. In view of the clear intention to sever (which is not disputed in this case), the California court discarded the “archaic” rule that one could not “enfeoff” himself. A similar result was reached in Hendrickson v. Minneapolis Federal Savings & Loan Association (1968), 281 Minn. 462, 161 N.W.2d 688.

We consider the reasoning of the court in Riddle to not only be persuasive but compelling. If an individual can grant to himself and another individual property in joint tenancy, there is no reason why the same party should not be able to sever the joint tenancy by conveying an estate to himself. The individual has done with one piece of paper what otherwise would have required two. Moreover, as the court noted in Riddle, acknowledging this ability is not an extension of new rights to the parties. Allowing one party to destroy the joint tenancy by executing a deed from himself to himself merely dispenses with an outmoted charade which is of dubious legal and practical significance. We hold that a joint tenant may unilaterally sever a joint tenancy without the use of an intermediary.

Finally, we note that in at least one Illinois case, the court appears to have tacitly approved the severance of a joint tenancy in which the same person acted as both grantor and grantee. In Klouda v. Pechousek (1953), 414 Ill. 75, 110 N.E.2d 258, the grantor owned property in joint tenancy with his wife. He deeded part of that property to his daughters, retaining a life estate, with remainder to his daughters.. The court stated that a conveyance by one joint tenant of a remainder interest, while reserving a life estate, severed the joint tenancy since the unity of interest was destroyed.

Conveyance of a life estate and reservation of a remainder violates the rule that one cannot grant to himself something which he already possesses. If a person reserves a life estate, he has not completely divested himself of ownership nor has the grantee been invested with complete title. For the foregoing reasons, the judgment of the Woodford County circuit court is reversed and cause is remanded.

Reversed and remanded for proceedings consistent with this opinion.

GREEN, P. J., and TRAPP, J., concur.


text:
      In re MARRIAGE OF ULETTA B. ALLEN, Petitioner-Appellant, and WILLIAM K. ALLEN, Respondent-Appellee.
    Third District
    No. 81-383
    Opinion filed February 26, 1982.
    Thomas R. Monahan, of Joliet, for appellant.
    Edward Kusta, of Bolingbrook, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Petitioner-appellant appeals from the trial court’s dismissal of her dissolution of marriage proceeding for want of prosecution. The facts relating to the dismissal are quite simple.

Prior to this dismissal, several separate continuances had been sought and obtained in this case from the trial court. Then, at a scheduled hearing of June 19,1981, counsel for petitioner-appellant appeared before the trial court and advised the trial judge that his client was out of the State and that the lawyers for both sides had agreed to continue the matter again for at least 60 days. The trial judge was not privy to this agreement, had no prior knowledge of it, and did not approve it. He ordered the case dismissed for want of prosecution.

In her brief with this court, appellant claims that the trial judge abused his discretion. She labels his conduct as arbitrary and capricious. Not surprisingly, appellee filed no responsive brief. What appellee did file was a one-paragraph letter which joined in the request for reversal and remand.

We find no abuse of discretion in this case and certainly do not find that the trial judge acted arbitrarily or capriciously. His dismissal of the proceeding was precisely what he should have done. Trial judges are not handmaidens of the lawyers. Lawyers cannot, on the hour of the hearing, present a continuance agreement to the judge as a fait accompli and then demand the judge’s acquiescence. Such conduct by counsel is to be condemned. The judge is a necessary party to the approval of a continuance. It is the judge’s responsibility to control his docket and see to the orderly movement of cases. If the judge assigned to hear the case were to be excluded from the scheduling process, chaos would result. The orderly administration of justice would be utterly defeated.

Accordingly, the order of the trial court dismissing this action for want of prosecution is affirmed.

Affirmed.

BARRY and ALLOY, JJ., concur.