*1 5—3.2(b)(1) necessary under section of the Unified Code. The 5— recidivism exception recognized by Apprendi applies Accordingly, here. 5—3.2(b)(1) Apprendi we find that does render section 5— Unified Here, presentence Code unconstitutional. report, generally considered a reliable source of sentencing, evidence at indicated that within prior history defendant’s criminal was a X felony Class for at- (murder) tempt 10-year that occurred period just within prior to his current X felony robbery. Class for armed Defendant has neither refuted the fact that such a conviction existed nor demonstrated that it does not fall under the criteria extended-term sentencing under the statute. The appropriately trial court relied upon presentence investigation report to conclude that defendant was eligible for an extended-term sentence and to sentence him accordingly.
III. CONCLUSION reasons, For the foregoing we affirm the trial court’s imposition of an extended-term sentence.
Affirmed. KNECHT, JJ.,
STEIGMANN and concur. (James r e STATE DOYLE, OF MARY Alleged ROSE Disabled Adult P. al., Petitioners-Appellees, et v. Rose Doyle, Respondent-
Appellant). Fourth District No. 4 — 04—1026 Argued Opinion October filed Rehearing November 2005. 2005. denied December 2005.
TURNER, J., specially concurring.
COOK, P.J., dissenting. (argued) Kasten, Springfield, Michael J. for Costello and Walter H. both of appellant. Shupenus, Brown, (argued) Elizabeth W Anderson M. and Robert both L.L.P., Hay Stephens, Springfield, appellees. & for opinion of McCULLOUGH delivered the the court: JUSTICE Doyle, appeals Sanga- of the respondent, Rose order appointing petitioner Doyle guardian mon circuit court James County Gary guardian petitioner and Eklund as estate of (Mrs. Mary Doyle Doyle). Rose affirm. We (1) following appeal: judgment raises the issues on guardians guardianship appointing temporaiy void because for past days hearing permanent guardian- was extended and the contrary jurisdictional ship days, not set within 30 which was to (2) the estate is requirements; appointment (3) effect; a valid was in the trial void because (4) report; ad litem’s erred when it failed strike the reopen it refused to her case court erred when allow (5) witness; Doyle call Mrs. as a the court erred when allowed testify petitioners properly after failed petitioners’ witnesses (6) Supreme interrogatory; Court Rule respondent’s answer testimony it allowed and business records into court erred when (7) foundation; its proper without a the court abused evidence petitioners guardians. its as discretion permanent temporary filed for On March 12, 2004, ap- the trial court Doyle. of Mrs. On March guardian of Mrs. petitioner Doyle temporary James as the pointed son-in-law, Gary Ecklund, Doyle’s Doyle’s person petitioner guard- appointed her estate. The court also temporary guardian 19, 2004, filed a Doyle. litem for Mrs. On March ian ad denied, temporary guardian- revoke the which was later petition, granted petitioners’ request to extend ship. May On the court guardianships to June 2004. temporary 2004, the days August June and the course five between Over guardianship. petitioners’ request evidence on trial court heard givers, testimony Doyle’s family, from Mrs. care The court heard from a acquaintances, as well as caseworker friends and Illinois, who investigator Senior and an from Services Central also allegations Doyle. abuse to Mrs. The court investigated the posthearing guard- report and a from prehearing report received guard- recommending petitioner appointed Eklund be ian ad litem either James petitioner and that ian of Mrs. estate Doyle’s person. of Mrs. appointed John *4 7, 2004, the trial court found September On ap- The court person. her own estate and incapable managing guardian of plenary permanent James pointed petitioner plenary permanent as the petitioner Eklund Doyle’s person
297 1, 2004, filed a of her On October motion estate. rehearing judgment. the court for vacate November appeal denied this motion. This followed. argues permanent guardian first the trial court’s
ship were petitioners’ temporary guardianships order is void because unlawfully days. 60 11a—4 of the past extended Section Probate (West 2004)) (Probate Act) (755 of 1975 la—4 states: 5/1 days “The temporary guardianship expire shall within 60 after the regularly appointed, whenever a is Except pending disposition appeal whichever occurs first. on adjudication disability, granted.” an no extension shall be If the extending petitioners’ court erred in temporary guardianships beyond days, question 60 becomes whether has on this effect the court’s ultimate guardianship determination. Rose Marie fails to provide any authority why guardian- the extension of the temporary ships guardianship makes the court’s ultimate decision void. Accord- (Official 341(e)(7) ing Supreme to Illinois Court Rule Reports Advance (October 17, 2001), 341(e)(7), Sheet 2001)), No. R. eff. October appellant’s brief shall contain: “Argument, which shall contain the appellant contentions of the therefor, and the reasons with citation of the authorities and the *** pages of the record on. relied Citation of numerous authorities in support of the same point argued is favored. Points not are brief, waived and shall not be raised the reply argument, in oral petition or on rehearing.” result,
As a argument. forfeited this argues guardianship next the trial court’s order is hearing void because the was not days held within filing guardianship petition. portion is statute at [sjection sue “Upon filing petition pursuant states: 11a— hearing the court shall place place set date and to take within 30 (West 2004). days.” 755 la—10 ILCS 5/1 primary “The of statutory rule construction is to ascertain and give legislature, inquiry ap effect to the intention of the propriately begins language with the of the statute.” v. People Woodard, 435, 443, If the language and unambiguous, statute clear we do not resort to Woodard, other of statutory aids construction. 175 Ill. 2d at language N.E.2d at 939. While this statute clear that days hearing on guardianship petition, conduct a 30-day requirement mandatory statute not clear on whether directory. *5 298 supreme ordinarily
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We stated that Depart mandatory directory provision Cooper does not exist. v. 474, 481, Services, & 234 Ill. 599 Family App. ment Children 3d legislature, It the depends N.E.2d 542 on the intent of by object the of the examining “which ascertained nature and any given consequences statute and the which would result from App. at 542. Cooper, construction.” Ill. 3d N.E.2d at “Ordinarily the specifies performance a statute which the time for directory only duty rights an official will considered where the be by injuriously to act within parties of the cannot be affected failure However, negative the time indicated. words, where such statute contains named, time denying the exercise the after the injuriously public provisions affect disregard where a its would directory mandatory. private rights, is not but interests Where, here, provide as a does not sanctions for failure statute requirement in in the statute comply provision dispute, with the the may being merely directory manda interpreted be rather than tory. If a the time for provision a statute states [Citation.] denying duty any language official without performance of an However, time, directory. if a it is performance specified after rights, it is manda period safeguard time someone’s provided duty tory, perform official after the time agency and the cannot its Cooper, at requirement passed.” 542. N.E.2d at any negative at not contain
The statute issue this case does consequences for failure language provide for sanctions or other days filing petition. hearing to conduct the within Further, mandatory a of this statute would interpretation we find Act, provide which is to purposes of the Probate contrary adversely would affect interests disabled adults and best guardian. of a adults in need mandatory given should be a respondent argues statute
While by guardian- Doyle’s rights are affected construction because Doyle’s rights were ship, any arguments she does make not held injuriously guardianship hearing fact the was affected filed. days guardianship petition within 30 after the was factors, in sec- 30-day requirement find the Based on the above we (West 2004)) tion 11a—10 Probate ILCS 5/lla —10 result, hearing directory mandatory. and not As guardianship trial court’s order is not void. argues court’s also trial Doyle’s for Mrs. estate is void because Mrs. executed giving respondent power document over Mrs. February acknowledge 1998. does she received Doyle revoking purportedly attorney. letter from Mrs. However, argues she that this letter was not effective because Mrs. incompetent signed argue when Petitioners she letter. *6 (Power Attorney that section of the Illinois Power of At of Act) (755 (West 2004)) torney a require person ILCS does not 45/2—5 to competent attorney. be to a of power revoke need not decide incompetent
We whether an individual can revoke power case, a of in this because we find the trial court implicitly respondent’s revoked attorney pursuant to section (755 (West 2004)). 2—10 of the Power of Attorney Act ILCS 45/2—10 According to section 2—10 of Attorney the Power of Act: by
“Upon petition person agent), interested (including the with persons such notice to interested as the court and a directs finding by the court that principal capacity the lacks the to control (a) agency: or revoke the if the court finds that agent the not act- ing for the principal benefit the in accordancewith the terms of agency or that the agent’s action or inaction has caused or threatens substantial harm the principal’s person to or by a manner not authorized or intended principal, court may guardian a person order of the principal’s or estate to exercise any powers of the under principal agency, including agency, to revoke the or may enter such other orders ap- without pointment of a guardian necessary as the to provide court deems (b) for the best interests of the or if the finds principal; court that agency requires may interpretation, court construe the agency may and the agent, instruct but the court not amend the agency. Absent directing guardian powers court order a to exercise the principal agency, power, under the will no a have duty[,] liability subject respect any property agency with any personal by agency.” or health care matters covered the (West2004). ILCS 45/2—10 petitioners
While a specific petition did file under section 10, they did file a petition seeking guardianship Doyle over Mrs. 2— knowledge persons all the interested in this case had that and Doyle’s asking guardians person were of Mrs. and petitioners hearings testimony where the court heard estate. After numerous trial variety from Mrs. reports from witnesses and received two litem, Doyle guardian ad the court found Mrs. in Article XIa the Probate Act la —1
as defined 5/1 2004)) (West through incapable managing her own 11a—23 and Implicitly, Doyle the court Mrs. lacked the person. estate and found attorney. The court also capacity to control revoke respondent’s mother turned into original found that devotion her granted powers Doyle abuse. The court then same given originally respondent. had stated: things litem’s] ad [the “There were some also said he put gently possible that I believe were as as when talks report Doyle life, Rose Marie has had in her [m]other’s about role says everyone I want here hear [the litem] ad —and one involved in this matter has minimized or has these words—no years loving care appreciate failed to of dedicated service and provided Doyle, but which Rose Marie words, simply in her own wore out. own Rose why loving is no reason Rose Marie can not continue to be There during years. positive remaining in her mother’s life She force strictly daughter. custody do now Care and should should not rest Rose Marie. management of financial matters now turn. That part, She has now done her and it is someone else’s fact, me, language. those words and that entire impressed impress me. document did obligation [Mary quality is to insure the best
My Rose] years. see visit with her remaining Being of life for her able to *7 that, of and in the family important part and friends should be an Mary [c]ourt[,] Rose of in the best interest of opinion son, James, [gjuardian of and Doyle [p]erson, her be the her [that] [e'jstate. son, Eklund, Gary [g]uardian of her time efforts Rose Although acknowledge^] and [c]ourt taking parents, in care of her it does of needs spent Marie turned to abuse. there came time when her devotion appear exists opinion [c]ourt’s that there inconsistencies It also this Doyle managed the funds and in which Rose Marie the manner Mary Doyle. place That took over number Rose dissipate the assets years, permitted and if to continue would she Doyle. my [that] further would Mary opinion It is Rose appear It not This concerns the does bankrupt [c]ourt. her estate. Doyle Mary primary that the best interest Rose was concern added.) (Emphasis Doyle Rose at this time.” powers given guardian to the of the estate are set in sec- forth (755 2004)). tion Act 11a—18 of Probate ILCS West 5/lla —18 powers respect attorney These are set forth with to a also (755 Attorney sections 3—3 and 3—4 of the Power of Act ILCS 45/ (West 2004)). expressly stating following While it was 3— section 2—10 (West (755 Attorney of the Power ILCS 45/2—10 2004)), the implicitly requirements court met the of section 2—10 and stripped authority gave of her Gary Doyle James Eklund. argues next the trial court erred when it failed to guardian report. brief, strike the In ad litem’s her initial (1) argument guardian based on the litem’s testify, ad failure to (2) (3) Doyle advise Mrs. of her rights, ask Mrs. position with regard appointment guardian. However, reply in her brief, respondent acknowledges rights. was advised of her addition, In guardian record clear that the ad litem did obtain Doyle’s position regard with guardian.
The issue is guardian whether the ad litem’s failure to testify 10(a) (755 pursuant to section of the Probate Act ILCS 11a— 5/lla— 10(a) (West 2004)) striking necessitates the court his reports. Accord- 10(a) (West ing to section 11a—10 2004)), “[t]he 5/lla — guardian ad litem appear shall at the hearing testify toas is- presented sues report.” However, in his or her the statute does not state guardian that a reports ad litem’s should be stricken if he or she testify. Further, does not provide Rose Marie did not this court with any authority or reasoning why as to ad failure litem’s testify addition, necessitated the trial striking reports. his respondent does not cite where in the record she asked the court to strike the reports during Further, the guardianship proceeding. it does appear respondent ever asked to have the testify ad litem before decision, the court issued its though even present ad every hearing litem was at where 341(e)(7) (Official taken. According to Rule Reports Advance Sheet (October 17, 2001), 341(e)(7), 2001), No. R. eff. October a court of review is entitled to clearly pertinent have defined issues authority cited and arguments presented coherent or the inadequately presented argument respondent’s argu- deemed forfeited. We find ment forfeited. argues next denying trial court erred in
request reopen her case and call Mrs. as a witness. A court’s *8 302 present his her case to party reopen
decision whether to allow to the court abused its additional evidence will be disturbed unless 894, 900, 573, Ford, 3d 488 N.E.2d People App. discretion. v. 139 Ill. (1985). Doyle’s attorney Doyle it clear that Mrs. did 577 made Further, the trial court was aware proceedings. not want attend pre ad litem’s testify of how Mrs. would based on allowing discretion in not hearing report. The court did not abuse its force Mrs. to come to court reopen her case and testify. and allowed argues the trial court should not have next testify petitioners properly failed to
petitioners’ witnesses to because pursu disclosures interrogatory, answer her which asked witness 213(f) (210 213(f)). Ill. 2d R. From Supreme ant to Rule Court technically comply appears record it did 201(k) (166 201(k)) Supreme Ill. 2d R. Court Supreme Court Rule 219) (166 asking petitioners’ R. bar Rule Ill. 2d before the court to 219 However, respondent complied with if were to find witnesses. even we 219) (166 201(k)) (166 201(k) Ill. R. in ask Ill. R. and 219 2d Rules 2d 213(f) 2d sanctions, Rule Ill. R. violated ing 213(f)) interroga respondent’s witness disclosure by failing to answer pursuant to Rule tory, respondent again argument forfeited this (October (Official 17, 341(e)(7) 2001), Reports Advance Sheet No. 2001). 341(e)(7), 1, R. eff. October supreme
Our court has stated: of a witness is determining proper “In whether the exclusion nondisclosure, following fac must consider the sanction for a court (2) (1) effect party; prejudicial surprise to the adverse tors: (4) (3) testimony; diligence testimony; the nature of the (5) testimony; objection to the party; timely of the adverse (6) The decision party calling faith of the witness. good the sound discretion impose or not sanctions lies within whether reversed absent an court, that decision will not be trial Ill. 2d Hospital, v. Sullivan Edward abuse of discretion.” (2004). 110, 806 N.E.2d six factors as to how these any argument provide failed to if result, the court abused As a we cannot determine in this case. apply barring witnesses. its discretion in not these arguments that the trial next makes several Rose Marie records into evidence and business erred it allowed when whether admit A court’s decision proper foundation. without only if the court abused its discretion. His evidence will disturbed Peters, A cott v. objection argument or her party proper preserve must make a his *9 Nash, Ill. admitting that the court erred in Casson v. 74 2d evidence. (1978). 171, 365, 164, specific objection only A 384 N.E.2d 368 305, ground Lewis, 335, preserves People v. Ill. 2d specified. 165 (1995). 72, Objections timely. 651 N.E.2d 86 must also be Hunter v. 458, Chicago Co., App. & North Western Ill. 3d Transportation 200 (1990). 472, 216, preserve 558 N.E.2d 225 her Respondent failed objection petitioner’s only foundation exhibit No. 3 because she objected that medical records are not in did admissible Illinois. She objection not raise a until foundation after court admitted the into exhibit evidence.
Respondent preserve argument also failed to her that Erin Tanner should not have been they allowed to read from her records because had never been admitted into petitioners evidence and because failed lay an adequate foundation that Tanner had memory. exhausted her
Respondent argues also allowing Craig court erred in Anderson notes, to read from respondent argues his which hearsay. contained objected Respondent once to Anderson reading from his notes and objection that was regard alleged hearsay, sustained. With respondent again objected once about a statement Anderson said respondent objection made to him. This was overruled. argue
does not question in testimony does not fall within of the hearsay exceptions, notably exception most for admissions by party opponent. result, respondent As argu- has forfeited this (Official 341(e)(7) pursuant ment to Rule Reports Advance Sheet No. (October 2001). 17, 2001), 341(e)(7), 21 1, R. eff. October
Finally, respondent argues the in appointing trial court erred petitioners Doyle guardians Doyle’s and Eklund as estate, respectively. The standard of for the review Schmidt, is abuse of In re Ill. App. discretion. 3d (1998). determining N.E.2d who be a shall person’s guardian, person’s personal preferences the disabled as who outweighed should his what is in the disabled person’s of Bania, best interest. In re Estate 36, Doyle’s regarding the court its
When announced decision in guardianship, specifically court stated that no one involved years loving case to appreciate minimized “failed of dedicated Doyle.” [respondent] provided service care which has for Mrs. However, it appeared respondent’s the court also stated devotion to eventually her mother turned into abuse. presented petitioners no evidence that are guardians.
unqualified only argument to serve as Her as their they However, is that do not live in Illinois. qualifications section (West 2004)) 11a—5 of the Probate la—5 does 5/1 residency requirement guardian. to act list Illinois as as decision, making Before its the trial court heard numerous wit- they testify nesses this case. Some witnesses testified believed Doyle. abusing Mrs. Other witnesses testified Mrs. relationship. had on the wit- a wonderful Based litem, reports ad nesses’ in Mrs. to act determined was best interest guardians. do find the trial court abused its discretion We this determination. making stated, affirm judgment. For the reasons we the trial court’s Affirmed. *10 TURNER, concurring: specially
JUSTICE majority opinion judg- the agree affirming I with the trial court’s separately that ment. I for the reasons follow. write First, opinion question concludes of whether an majority’s the the attorney need not be incompetent power individual can revoke a of an individual cannot do so. I would find that such decided. “ adjudged to be distracted and person ‘From the time a is effects, until, ever, if caring property for his he incapable of restored, legal he no to act for adjudged power has more to made, A or as if he were dead. contract release himself than ” significance.’ has no In re Estate receipt given, legal him Kutchins, 645-46, Ill. App. (1988), Lucas, quoting Bradshaw v. Ill. power to incompetent, act Once an individual deemed incompe- time legal standpoint ceases until such onself from a then, acts in the individual’s stead. tency agent Until removed. a incompetent individual to revoke illogical to allow an It would be to aims the existence of such a document attorney when power during incompetency. person his or protect that Therefore, cannot revoke incompetent I hold an individual would majority I with the attorney. Notwithstanding, agree power a power of respondent’s revoked implicitly the trial court opinion that (755 attorney pursuant Attorney to section 2—10 of the Power of (West 2004)). ILCS 45/2—10
Second, question I not agree do we need to address the of whether 3(b) (755 term “shall” section the Probate Act 11a— 3(b) (West 2004)) mandatory Here, directive. it is not the 5/1la— 3(b). is, instead, disabled adult to attempts who invoke section It 11a— respondent who does not the trial appointment take issue with court’s of guardian objects a appointment but rather such, I instead of her. As would find the failure 30- comply to with the 3(b) day provision notice of section was harmless error as to 11a— respondent’s to challenge petitioners. COOK, dissenting:
PRESIDING JUSTICE I respectfully I dissent. would reverse decision of the trial court, recognize validity attorney the continued granted by Doyle, proceedings. remand for further
Prior when a granted power attorney who had incompetent, became automatically revoked. The reasoning was only competent person grant that could of attorney or continue it in effect. Article II of the Attorney Power of Act, Attorney Durable Power of through Law ILCS 45/2—1 (West 2004)), change was enacted to rule. law recognizes important it is that “each individual has the right ap- point an agent to deal with property personal or make and health care (West 2004). decisions for the individual.” 755 ILCS That 45/2—1 right fully “cannot be effective unless principal may empower the agent throughout lifetime, to act principal’s during including (West 2004). periods of disability.” 755 ILCS The decision aof 45/2—1 competent principal appoint agent by simply cannot be overcome appointing person’s estate. special Absent a order under section “a will power, duty[,J have no 2— liability respect subject agency.” 755 ILCS (West 2004). 45/2—10
Before court may supersede a the principal’s decision appoint agent, petition an a given. must be filed and notice 755 ILCS 45/2—10 (West 2004). The court must then find that principal “the lacks the capacity to or agency” control revoke the agent either that “the is acting for the benefit of the principal” agent’s or “that the action or inaction has caused threatens harm principal’s substantial to the person or property in a by manner not authorized intended the (West 2004). principal.” 755 ILCS Only findings after those 45/2—10 may have been the a made court “order of principal’s the person any powers principal or estate to exercise under the agency” agency, or order the to revoke the or enter other necessary provide as the court best interests of orders deems the 2004). (West principal. the 755 ILCS 45/2—10 is Attorney whole idea of the Durable Power of Law that the competent appoint agent not be principal decision an should easily not have overcome. The fact that court would selected irrelevant; agent by principal important is is what selected what is best, not what the thinks is best. The principal thought court Attorney legislature would not have enacted the Durable Power of estate; if a Law the solution was the of of Power guardians appointed the estate could be before the Durable a Attorney suggestion guard- of enacted. The that whenever Law was existing power attorney is of is appointed any ian of an estate durable contrary spirit and the letter of Durable Power of revoked Attorney Law. it may appoint guardian
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Courts often deal with situations where cared aby living child community while other children live at a distance. day-to-day living Sometimes the stress of and contact causes elderly person prefer she children seldom sees over her hand, caretaker. On other sometimes the caretaker takes advantage relationship. language 10, however, of section 2— It is interesting. enough not revoke agency a durable that there is harm to principal’s property. To revoke there must be substantial harm to principal’s person or property “in a manner (West authorized intended 755 ILCS principal.” 45/2—10 2004). Sometimes the principal intends for the who provides child care to receive more than children at a An variety distance. infinite of fact possible. situations is It clear what the situation is here. The trial court must determine whether there is a setting basis for aside the Simply under section 2—10. appointing a guardian does not do so.