Appeal from the Circuit Court of Sangamon County; the Hon.
Joseph Koval, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged in the circuit court of Sangamon County with the offense of attempt (murder) in violation of sections 8-4 and 9-1(a)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1(a)(1)). A jury was impaneled and the trial commenced. At the conclusion of defendant's direct examination, he offered to withdraw his plea of not guilty and enter a plea of guilty but mentally ill in accordance with section 115-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115-2). After admonitions under Supreme Court Rule 402 (87 Ill.2d R. 402), the trial court accepted the plea and sentenced defendant to a term of imprisonment of 16 years. Within apt time defendant filed motions to withdraw the guilty plea and vacate the sentence, to stay execution of the sentence, and to reduce the sentence. A hearing was held on the motions, all of which were denied. Defendant appeals from the denial. We affirm.
The factual background, as developed by the evidence submitted prior to the plea, indicated that defendant had been divorced and was experiencing difficulties over the custody of his children. The custody had been awarded to his ex-wife, and he was of the opinion that the children were not being properly cared for. He had twice removed the children from their mother's home. After each occasion a hearing had been held, and defendant was ordered to return them to their mother. On the second occasion he had refused to tell the court the whereabouts of the children and was ordered to jail for contempt. Three days later he produced the children in open court and was purged of the contempt.
Defendant's ex-wife had traveled from Peoria to Springfield by bus to pick up the children. Upon his release from jail defendant procured a gun and went to the bus station in Springfield. His ex-wife testified that she was there and defendant started shooting at her. She received shots in the hand, the right side, the right arm, and the back of the head. Defendant testified that he had no recollection of what happened after first seeing his ex-wife.
On defendant's motion he had been examined by a psychiatrist and a psychologist prior to trial. By stipulation of the parties their reports were submitted to the trial court at the time of the plea, and upon them the court found that there was a factual basis for a finding that defendant was mentally ill at the time of the offense.
At the sentencing hearing defendant reiterated much of his concern over his children, stating that he feared for their lives at the time he was required to turn them over to their mother. He also maintained that in the future he would attempt to remedy the situation through legal means.
In mitigation the court found that it was possible defendant was acting under strong provocation at the time of the offense and that it was also possible that his children would suffer hardship if he were imprisoned. In aggravation the court found that defendant's conduct caused or threatened serious harm. The court also stated that defendant's prior criminal record was not substantial, but his history of criminal activity was substantial.
On appeal defendant raises two issues: (1) that his plea was not voluntary because he believed that he would be sent to the Department of Mental Health and Developmental Disabilities rather than to the Department of Corrections, and (2) that his sentence was an abuse of discretion.
• 1 Upon a plea of guilty but mentally ill, a trial court is required to impose any appropriate sentence for the offense which could have been imposed on a defendant convicted of the same offense without a finding of mental illness. It is then required to commit the offender to the Department of Corrections, which will make the determination whether to transfer him to the Department of Mental Health and Developmental Disabilities. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-6.) In our opinion the trial court complied with the statute. The pertinent part of the plea proceedings follows.
"THE COURT: Mr. Hennessey, would you step up here? (Defendant stands in front of the bench.)
THE COURT: Before determining whether or not to accept your plea, I need to further advise you that if you plead guilty but mentally ill, the Court may impose any sentence on you that's authorized by law which I have indicated to you for a Class X felony can be from anywhere from six years to thirty years. And if you are sentenced to imprisonment which would be required since you are not eligible for probation, you would be committed to the Department of Corrections. The Department of Corrections would conduct further examinations and inquiry concerning your mental condition and you could be transferred to the Department of Mental Health and Developmental Disabilities. You understand? You could be committed to the Department of Mental Health. You understand what I'm saying?
THE COURT: In other words, you would be sentenced, no question in this case that this sentence is a Class X felony, you would be sentenced to the penitentiary, the same as any guilty plea to this charge. When Department of Corrections receives you, they would conduct a further examination and ...