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People v. Mcelroy

JULY 2, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PAUL MCELROY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. HARRY D. STROUSE, JR., Judge, and L. ERIC CAREY, Judge, presiding. Affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Paul McElroy entered a plea of guilty to an information charging burglary. He appeals from the judgment of conviction entered on his plea and the resulting sentence of 3 to 15 years in the penitentiary.

Defendant claims that the record does not sustain a knowing plea; that the circumstances placed a duty upon the court to inquire into defendant's competence; and that the sentence is excessive.

From the record it appears that the defendant, with the assistant public defender, first appeared before the judge who arraigned him on December 27th, 1968, and after having been admonished fully, waived presentment to a grand jury and consented to the filing of an information. A plea of not guilty was entered. The public defender advised the court at this time that the defendant had a history at "several hospitals in the state." The matter was continued to give the defender the necessary time for investigation.

On February 3rd, 1969, upon defendant's motion, made before the motion judge, an order was entered for a competency hearing and two psychiatrists were appointed to examine the defendant.

On March 3rd, 1969, an order was entered reflecting that defendant had withdrawn his motion for a competency hearing and was withdrawing his plea of not guilty and pleading guilty. No judgment was entered on the plea, and the proceedings were continued to March 6th, 1969.

On March 6th, the defendant appeared before Judge L. Eric Carey, who had not presided over the previous court appearances of defendant. The public defender advised the court that the plea had not been accepted on the earlier appearance because defendant had a sore throat, a hernia, and chest pains.

The court then inquired of the public defender as to defendant's ability to plead and was advised that the defendant had that ability, and desired to change his plea to guilty. The court then inquired directly of the defendant at great length. He asked whether the defendant felt "sufficiently well in all regards, physically, mentally, nervously, in all directions," to enter a plea. When the defendant answered, "If you say so, yes, sir," the court pursued the matter, stating that this was a question which he wanted the defendant to answer. Defendant responded with a categorical "Yes." The court further pursued the matter, asking whether there was any question in the defendant's mind, and restated the inquiry. Defendant interrupted the court's question and the following colloquy ensued:

Mr. McElroy: "Physically able to plead guilty, yes, sir."

The Court: "And in all other directions?"

Mr. McElroy: "Mentally and emotionally I cannot say. I am not a doctor to say."

The Court: "I understand that."

Mr. McElroy: "Physically there is nothing wrong with me. At this time."

The Court: "The average citizen who appears here and is charged with an offense such as burglary, there is no doubt and he expresses no doubt that he is able to make up his mind and plead guilty or not guilty, and there is no question physically, mentally, emotionally, or anything else about him. Now, you have almost raised a doubt. You said physically you feel that you are sufficiently able to enter a plea. You have left open other areas. I do not mean to indicate that I don't believe you are able, emotionally, nervously, or some other direction, but do you ...


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