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05/25/94 PEOPLE STATE ILLINOIS v. WYMOND THURMOND

May 25, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WYMOND THURMOND, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-2346. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication June 27, 1994.

Doyle, McLAREN, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, Wymond Thurmond, Jr., appeals the circuit court's order denying his motion to withdraw his guilty plea. On January 29, 1993, defendant entered a negotiated guilty plea to reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a) (now 720 ILCS 5/9-3(a) (West 1992))). Pursuant to the agreement, the court sentenced defendant to four years' imprisonment. Defendant moved to withdraw the plea, contending that defense counsel had located an expert witness who would testify that the decedent, rather than defendant, was at fault in the fatal accident which resulted in defendant's plea. The court denied the motion. On appeal, defendant contends that the court abused its discretion in denying the motion where defendant had a defense worthy of consideration based on facts which were unknown to him at the time he entered the plea.

On August 9, 1992, defendant was involved in an automobile accident in Lake Villa, Illinois. Defendant's car collided with a car driven by Michael Nichols, killing Nichols. Defendant was hospitalized after the accident and claims to have little recollection of it. A blood test performed on defendant at the hospital showed a blood-alcoholcontent of .19. It is undisputed that Nichols was also legally intoxicated at the time of the accident.

The grand jury indicted defendant for reckless homicide and driving with a revoked license. Defendant was released from the hospital and arraigned in October. He was represented by the public defender, who filed numerous pretrial motions.

During discovery, the State disclosed that Officer Philip Scarlette would testify as an accident reconstruction expert. Scarlette opined that defendant was responsible for the fatal accident. In response to the State's request, defendant disclosed Dan Pacheco and Oliver Elsner as potential expert witnesses in the field of accident reconstruction.

On December 21, 1992, the court denied defendant's motion to suppress the results of the blood-alcohol test. At that time, the matter had been set for trial on December 28, 1992. On that date, the State requested a day-to-day continuance because a witness was unavailable.

Defense counsel requested leave to withdraw or, in the alternative, a continuance to permit defendant to retain new counsel. The court denied both motions and defense counsel stated that he was ready for trial.

The next day, the State informed the court that its witness would not be available until January 8 and requested another continuance. Defense counsel noted his objection, but the court continued the cause to January 13, 1993.

On January 12, 1993, defendant appeared through newly retained counsel, Michael Norris. Norris requested a continuance until the March trial call to permit him to prepare for trial. Norris represented that if the court held him to trial on January 13, he would still represent defendant. The court, through Judge Starck, continued the cause to Judge Goshgarian's February 1 trial call.

On January 29, Norris appeared before Judge Goshgarian to request a further continuance. Norris stated that he had retained a new accident reconstruction expert, but that the witness needed more time to investigate the accident before rendering an opinion. The prosecutor informed the court that defendant's previous expert had agreed with Scarlette's opinion.

The court denied defendant's motion. Later that day the parties appeared before the court and presented a negotiated plea agreement. Defendant would plead guilty to reckless homicide in exchange for a maximum sentence of four years. In response to the court's queries, defendant stated that his plea was voluntary and that no one had made any promises or threats to persuade him to plead guilty. ...


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