Appeal from the Circuit Court of Stephenson County; the Hon.
Dexter A. Knowlton, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
Following a plea of guilty to the offenses of murder and unlawful use of weapons, defendant was sentenced to concurrent terms of 60 and 5 years' imprisonment. This is a direct appeal from the denial of a motion to vacate the plea and sentences. No questions are raised concerning the pleadings.
On November 29, 1984, Daniel Nicklaus was charged by information with the offenses of murder and unlawful use of weapons. It was charged that on November 16, 1984, defendant shot and killed Joseph R. Mashaw and, having previously been convicted of a felony, was in possession of a 16-gauge shotgun. That same day, defendant's appointed counsel moved for the appointment of an expert to examine defendant as to his competency to stand trial and his mental state at the time of the alleged offenses. On December 3, 1984, Dr. Donald Pearson, a psychologist, was appointed to examine the defendant to determine his fitness to stand trial.
On February 22, 1985, defendant entered pleas of guilty to the charges of murder and unlawful use of a weapon. The court admonished defendant regarding the nature of these charges and the possible penalties, and he informed the court that his plea was not made due to any threats or promises. It was stipulated that on November 16, 1984, defendant went to the home of Joseph Mashaw carrying a shotgun. When Mashaw arrived a few minutes later, the defendant pointed a shotgun at him, called to him, and then fired point blank into his head. The defendant then told a police officer that he had decided to kill Mashaw because some years earlier Mashaw had "ratted" to the police concerning the defendant's burglary of a beer distributorship. Mashaw died as a result of the gunshot. It was further stipulated that defendant had been convicted of burglary in 1982. The trial court accepted the pleas of guilty and set sentencing for April 11, 1985.
The sentencing hearing began on April 18, 1985. The State called Dr. Donald Pearson, the court-appointed psychologist, as a witness in aggravation. The defense objected to Dr. Pearson being allowed to testify to any statements made by the defendant in the course of his competency examinations. The objection was overruled. Dr. Pearson testified that based on his examination of defendant he formed an opinion that the defendant's criminal conduct was likely to recur; defendant was a sociopathic personality with a slim likelihood of rehabilitation; that he had little regard for human life; and that he would be legal and protective to persons "closest to his value structure" and his personal needs.
On cross-examination Dr. Pearson stated that the opinions he expressed were based upon the court-ordered examination of the defendant, and he acknowledged that it was possible defendant could be rehabilitated.
A second witness in aggravation, Ann Fitzhenry, testified that she was a newspaper reporter who had received communications from a person purporting to be the defendant who claimed to have killed Joseph Mashaw for the purpose of revenge. He had stated that he would kill again if released from prison.
Several witnesses testified for the State that while defendant was incarcerated, he had made phone calls and had written letters to Ann Fitzhenry. Witnesses also related that defendant had drawn a picture of a person being shot and had laughed about it. He had also made statements that when he "broke out of Joliet * * * he would kill again."
The defense called witnesses on behalf of defendant. Bob Nicklaus, the defendant's brother, testified that the deceased, Joe Mashaw, and the defendant had been friends until Joe had told the police about the burglary of a beer warehouse. Defendant's mother, Roberta, testified to her hope that her son would get help, and her feeling that he could be rehabilitated. William Wolf, an officer with the Salvation Army, testified that he had counseled defendant in the Stephenson County jail and that the defendant had expressed remorse for what he had done. Defendant told Wolf that he would not kill again except in self-defense, but that this situation was something he had been forced into. Wolf expressed a belief that defendant could be rehabilitated.
On April 24, 1985, the trial court, after announcing its finding that the murder had been accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty, sentenced defendant to an extended term of 80 years' imprisonment for that offense. The court imposed a consecutive term of 10 years' imprisonment for the offense of unlawful use of weapons.
On May 15, 1985, the defendant filed a motion to withdraw the plea of guilty and vacate judgment. This motion alleged in part that the trial court had erred in imposing consecutive sentences and an extended term for unlawful use of weapons. It was also alleged that the court had erred in allowing the State to present testimony of Dr. Pearson in violation of the Illinois statutes concerning patient-therapist privilege. An amended motion to withdraw the plea and vacate judgment containing the same grounds was filed on July 12, 1985. After hearing arguments on the motions on July 23, 1985, the trial court resentenced defendant to a term of 60 years for murder and a concurrent term of 5 years for unlawful use of weapons.
Notice of appeal was filed on August 12, 1985.
Defendant argues that the use of the competency testimony by the court-appointed psychologist during his sentencing hearing was reversible error. He relies on section 104-14(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 104-14(a)), and Estelle v. Smith (1981), 451 U.S. 454, 68 L.Ed.2d 359, 101 S.Ct. 1866.
The State responds by first arguing that there is no case directly on point in Illinois which prohibits the use of such information at a sentencing hearing. They note that, in a sentencing hearing, the defendant must show an abuse of discretion or the sentence will not be altered on review. In any event, the statute should be inapplicable because it only applies to a hearing on the question of guilt and does not apply to sentencing hearings. The State next argues that the legislative intent of section 104-14(a) of the Code was only to preserve the rights of the defendant where the psychiatric ...