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August 28, 1996


Appeal from the Circuit Court of Lake County. No. 94--CF--795. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication October 1, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Defendant, Richard L. Kagan, appeals from the judgment of the circuit court of Lake County which found him guilty of solicitation of murder for hire (720 ILCS 5/8--1.2(a) (West 1992)) and attempted first-degree murder (720 ILCS 5/9--1(a)(1) (West 1992)); and from his sentence of consecutive terms of 30 years' imprisonment for solicitation to commit murder for hire and 12 years' imprisonment for attempted first-degree murder. We affirm as modified.

Defendant raises two issues on appeal: (1) whether the trial court abused its discretion in denying his motion for a continuance of the trial date due to his physical condition; and (2) whether the trial court erred in sentencing defendant to consecutive sentences. We will discuss only those facts necessary for an understanding of the issues.

In April 1994, defendant was accused of paying $10,000 to Ronald Petkus, a reputed enforcer for the Hell's Henchmen motorcycle gang, to murder his wife, Margaret Kagan. Defendant and Margaret were engaged in a bitter divorce dispute at the time. Defendant was a criminal defense attorney who had previously represented Petkus. While Margaret was in Chicago meeting with defendant and his attorney with regard to their divorce, Petkus and Cragin, another Hell's Henchman, planted a bomb under Margaret's car at the Fort Sheridan Metra train station. When Margaret returned and started her car, the bomb exploded, setting the car afire. Margaret escaped from the burning car with only minor injuries. Defendant was arrested on April 28, 1994.

On July 21, 1994, the case proceeded to trial and the jury returned a guilty verdict against defendant. The trial court found that because of the danger that defendant posed to the community, and in particular to Margaret, the sentences were necessary to protect her and to protect the public from him. Thereafter, defendant was sentenced to consecutive terms of imprisonment of 30 years for solicitation of murder for hire and 12 years for attempted first-degree murder. Defendant timely appeals. We granted defendant's motion to file his reply brief instanter.

We now turn to defendant's first argument on appeal. He contends that the trial court denied him a fair trial when it refused to grant a continuance for trial because defendant's physical condition prevented him from assisting in the preparation of his defense before trial. The State responds that defendant is estopped from arguing that his physical health problems precluded him from assisting in his defense because he refused the State's offer of a furlough to attend to his medical needs. The State also argues that the evidence presented at trial refutes defendant's contention that he was physically unable to assist his attorney in his defense.

The record reflects that defendant filed several motions prior to trial. On May 13, 1994, defendant filed a motion to reduce bond. He stated that he had scheduled heart surgery prior to his arrest to remedy a cardiovascular condition and that, without the prescribed immediate surgery, death could result. Defendant argued that because of this medical condition he was unable to participate or assist in the preparation of his defense. Defendant alleged that, when he met with trial counsel to prepare for trial, the meeting had to be discontinued because the stress of the discussions brought on a seizure.

At the hearing on the motion to reduce bond, the State offered to agree to a request for a medical furlough. However, defense counsel declined the State's offer and stated that defendant was there to reduce bond. The court stated that "on the face of it," a furlough for an operation would be the solution to defendant's problem and, if defendant wanted to reduce the bond on other grounds, the court would hear testimony.

Defendant then testified that he suffered a ruptured aneurysm in his carotid artery in 1988 and also was diagnosed with angina pectoris. He stated that a special surgery at a medical center in Phoenix, Arizona, was necessary to remove blockage which was found in two of his arteries.

The trial court denied the reduction for bond "without prejudice to there being a possible furlough if that is justified on the basis of either a hearing that would indicate that there is some immediate necessity for [defendant] to have this operation or there being an agreement." Defendant never arranged a meeting to have his doctors contact the State's Attorney so that arrangements could be made for a furlough, as suggested by the State.

On June 1, 1994, defendant filed two more motions: a motion to expand bond and a motion for continuance. In defendant's motion to expand bond, he asked the court to allow him to travel to Arizona for the special cardiovascular surgery which he needed due to his deteriorating condition. Defendant argued that without surgery he had been and would continue to be unable to assist in the preparation of his trial. In defendant's motion for ...

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