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03/21/97 PEOPLE STATE ILLINOIS v. EMMITT SANDERS

March 21, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EMMITT SANDERS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 10th Judicial Circuit Peoria County, Illinois. No. 94--CF--493. Honorable Robert E. Manning, Judge, Presiding.

Released for Publication April 23, 1997.

Present - Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice Slater delivered the opinion of the court. Homer, J., concurs. Holdridge, J., specially concurring

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

The defendant, Emmitt Sanders, pled guilty to a charge of first degree murder (720 ILCS 5/9--1(a)(1) (West 1994)) in exchange for a sentencing cap of 45 years. Following a sentencing hearing, the trial court imposed the maximum term of 45 years' imprisonment. The defendant's motion to withdraw his guilty plea was denied. On appeal, the defendant contends that: (1) he was entitled to a fitness hearing because he was taking medication for asthma at the time of his guilty plea; and (2) his sentence was excessive. We affirm.

At the guilty plea hearing, the trial judge questioned the defendant about his understanding of the plea bargain agreement. The defendant indicated that he understood that pursuant to the agreement he could be sentenced to 45 years in prison. The judge also asked the defendant if he was taking any medication. The defendant answered that he had been prescribed an inhaler to use for his asthma. According to the defendant, the inhaler allowed him to breathe more easily but otherwise it did not "affect [him] really."

The defendant argues first on appeal that because he was taking medication for asthma, he was entitled to a hearing to determine whether he was fit to enter a plea of guilty.

The Illinois Supreme Court recently determined that the Code of Criminal Procedure of 1963 requires a fitness hearing only for those defendants who are taking psychotropic medication or other medication which would interfere with their ability to understand the nature and purpose of the criminal proceedings or to assist in their defense. People v. Britz, 174 Ill. 2d 163, 673 N.E.2d 300, 220 Ill. Dec. 388 (1996).

The defendant does not contend that the medication contained in his asthma inhaler interfered with his ability to understand the nature and purpose of the proceedings against him or to assist in his defense. Moreover, it is clear from the record on appeal that it did not. Therefore, we hold that the defendant was not entitled to a fitness hearing prior to the acceptance of his guilty plea and his sentencing.

Next, the defendant claims that his sentence was excessive. Initially, we note that this argument, standing alone, cannot withstand review. The Illinois Supreme Court recently ruled that a defendant who pleads guilty in exchange for a specific sentence must move to withdraw his guilty plea before challenging his sentence as excessive. People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332 (1996). The same rule applies when the defendant agrees to a sentencing cap. People v. Catron, 285 Ill. App. 3d 36, 674 N.E.2d 141, 220 Ill. Dec. 870 (1996). Thus, the defendant's argument that his sentence is excessive, as it is framed in his brief on appeal, is without merit.

However, after carefully reviewing the record, we find that the defendant did file in the trial court a motion to withdraw his guilty plea in which he claims that his sentence is excessive. Therefore, we will address the merits of this issue.

A defendant has no absolute right to withdraw a plea of guilty and bears the burden of proving that such a withdrawal is necessary to correct a manifest injustice. Evans, 174 Ill. 2d 320, 673 N.E.2d 244, 220 Ill. Dec. 332. The trial court's denial of a motion to withdraw guilty plea will not be disturbed absent an abuse of discretion. People v. Davis, 145 Ill. 2d 240, 582 N.E.2d 714, 164 Ill. Dec. 151 (1991).

It is clear from the record that the defendant knew when he entered his guilty plea that he could be sentenced to 45 years in prison. By agreeing to plead guilty in exchange for that sentencing cap, the defendant was in effect agreeing that a 45-year sentence was not manifestly unjust. See People v. Catron, 285 Ill. App. 3d 36, 674 N.E.2d 141, 220 Ill. Dec. 870, No. 4--95--0753, slip op. at 2 (December 6, 1996). Thus, the defendant's motion to withdraw his guilty plea based ...


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