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10/31/89 the People of the State of v. Gary Daubman

October 31, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY DAUBMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

546 N.E.2d 1079, 190 Ill. App. 3d 684, 138 Ill. Dec. 24 1989.IL.1716

Appeal from the Circuit Court of Marion County; the Hon. Dennis Berkbigler, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH, P.J., and CHAPMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Defendant, Gary Daubman, was charged by indictment with murder, conspiracy to commit murder, and the unlawful use of firearms by a felon. On April 2, 1987, the defendant entered a negotiated plea of guilty to the count of murder, the remaining counts were dismissed and an agreed sentence of natural life imprisonment was imposed by the court. Subsequently, the defendant filed a motion to withdraw his guilty plea which was denied. The defendant now appeals the court's denial of his motion to withdraw his guilty plea.

The defendant raises two issues on appeal. The defendant first contends that the circuit court erred in failing to determine if the defendant's guilty plea was "understandingly" made and that the court erred in denying his motion to vacate the guilty plea when there was evidence that the defendant was not competent at the time of the plea. The defendant's second issue is that the circuit court erred in sustaining his counsel's objection to introduction of evidence of the defendant's psychiatric records as those records were not protected by a physician/patient privilege and as any confidentiality had been waived when the defendant waived the attorney/client privilege. Because of the nature of the defendant's issues, a statement of facts is not necessary at this juncture, but a Discussion of the pertinent facts will be set forth under the consideration of each issue.

In the defendant's first issue, he argues that it is "possible" that his guilty plea was not entered "understandingly" because of his "alleged mental illness." In conjunction with this issue, the defendant further states that the circuit court's inquiry was not adequate as to whether the defendant's guilty plea was voluntary and knowing, given the evidence before the court of the defendant's lack of mental capacity, and that the circuit court should have granted the defendant's motion to withdraw his guilty plea on that basis. In support of his argument, the defendant notes that the court was aware that a psychiatrist had examined the defendant; and in addition, that the court adopted the sentencing recommendation agreed to by the State's Attorney and defense counsel that the defendant be placed in the psychiatric unit at Menard Correctional Center. Our review of the record reveals that the circuit court did determine that the defendant's guilty plea was entered voluntarily, knowingly and understandingly and that the court did not abuse its discretion when it denied the defendant's motion to withdraw his guilty plea.

At the guilty plea hearing, the State set forth the terms of the plea agreement. The State's Attorney stated that the defendant had agreed to enter a plea of guilty to the offense of murder, and in exchange, the State would dismiss the other two charges of conspiracy to commit murder and the unlawful use of a firearm by a felon. Additionally, the State had agreed to forego seeking the death penalty, which the State believed could be imposed pursuant to section 9-1(b)(8) of the Criminal Code of 1961, as the facts would show that the murder was committed to prevent the victim from giving material assistance to the State in an investigation or from testifying in a proceeding against Doug and Tammy Fyke, drug dealers at whose behest the defendant shot the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(8).) The State recommended that the defendant be sentenced to natural life imprisonment, as the State believed the murder of the victim was accompanied by brutal and heinous behavior indicative of wanton cruelty. As part of the negotiated plea, the State and the court were to recommend that the defendant be housed in the psychiatric unit of Menard Correctional Center with the understanding by the defendant that the Department of Corrections may or may not consider this recommendation.

The State also advised the court that, although it was not part of the negotiated plea, the defendant had obtained letters of "no prosecution" from the State's Attorney of Macoupin County for an aggravated criminal sexual assault charge and from the State's Attorney of Madison County for a murder charge. The conditions of the "no prosecution" letters were that the State's Attorneys would not prosecute the defendant for those offenses if he pleaded guilty to murder in the instant case and was sentenced to a term of natural life imprisonment.

The defendant's counsel stated that the State's Attorney correctly stated the plea agreement. While the defendant denied that the murder was a contract killing, he did agree that the facts would show that the defendant was promised compensation. The defendant further disagreed that the murder was accompanied by brutal and heinous behavior or that the evidence would be sufficient to show that the murder was done to prevent the victim from testifying or participating in a prosecution of another. The defendant's counsel stated that the strategic decision behind accepting the plea agreement was to avoid the death penalty.

After hearing the plea agreement, the court inquired of the defendant whether he understood the agreement that was discussed, and the defendant responded that he understood. The defendant further agreed that the agreement was the agreement into which he had entered.

The court asked the State's Attorney for the stipulation of the defendant's prior criminal history. The State's Attorney advised the court that the defendant had been adjudicated delinquent in July of 1981 for an unlawful restraint charge and that the defendant had had a conviction for rape for which he had received a sentence of six years' imprisonment. At the time of the current offense, the defendant was on parole from the prior rape conviction. The court asked the defendant if he concurred in this statement of his criminal history and if the statement was accurate, and the defendant answered affirmatively.

The court accepted the defendant's written plea of guilty, and at that time, recited the charge of the bill of indictment for murder, i.e., that the defendant had, without lawful justification, shot Robert Alderson, Jr., in the head with a handgun thereby causing the death of the victim. When asked by the court if the defendant understood the charge, the defendant stated that he did, and he admitted that he had signed the written guilty plea.

The court proceeded to advise the defendant that the maximum penalty that could be imposed for the offense of murder was the death penalty and that the minimum penalty was 20 years' imprisonment. The court explained to the defendant that the State's Attorney had recommended that the defendant be sentenced to natural life imprisonment and that this sentence did not provide for the possibility of mandatory release. The court inquired as to whether the defendant understood the possible penalties and the recommended penalty, and the defendant responded that he understood.

The court further questioned the defendant as to whether he had been coerced into pleading guilty through threats or promises; as to whether the defendant was pleading guilty voluntarily and of his own free will; if the defendant was satisfied with his counsel's representation in this case; and if the defendant was satisfied with ...


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