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11/04/97 PEOPLE STATE ILLINOIS v. PERRIE GIBSON

November 4, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PERRIE GIBSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 95-CF-1623. Honorable Edward C. Ferguson, Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published November 4, 1997. Rehearing Denied November 4, 1997,

The Honorable Justice Goldenhersh delivered the opinion of the court. Welch and Maag, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Defendant, Perrie Gibson, entered an Alford plea in Madison County on January 29, 1996, to attempted first-degree murder based on his participation in the beating of another 15-year-old boy, which led to the victim's reduction to a permanent vegetative state. On April 11, 1996, defendant was sentenced to serve 16 years' imprisonment. His motion for the modification of his sentence was heard and denied on October 7, 1996, and his notice of appeal was filed in this court on October 21, 1996.

On appeal, defendant asserts that it is necessary to reverse his conviction and remand the cause for further proceedings because although it was known that he was taking psychotropic medication approximately a month prior to entering his plea, as well as five weeks after the plea, no hearing was held to determine whether he was fit to plead guilty, in violation of the version of section 104-21(a) of the Criminal Code of 1961 which was effective prior to December 13, 1995 (725 ILCS 5/104-21(a) (West 1992)). He takes this position because the version of the statute that was in effect at the time of his conviction and sentence (725 ILCS 5/104-21(a) (West 1995) (as amended by Public Act 89-428, effective December 13, 1995)) was declared unconstitutional in Johnson v. Edgar, 176 Ill. 2d 499, 522, 680 N.E.2d 1372, 224 Ill. Dec. 1 (1997), as violative of the single-subject rule.

The State contends that the version of the statute enacted in Public Act 89-689, section 90, effective December 31, 1996 (725 ILCS 5/104-21(a) (West 1996)), subsequent to defendant's conviction and sentencing, should be given retroactive application to defendant's case. In the alternative, it argues that a reversal of the conviction should not be automatically granted.

BACKGROUND

Because of the narrow issue involved on appeal, only the facts directly pertinent to the issue on appeal need be set forth. Defendant, a juvenile who had been certified to stand trial as an adult, was held in the Madison County Detention Center awaiting trial following his August 1, 1995, arrest for attempted first-degree murder. On December 29, 1995, defendant responded to a perceived lack of attention by the staff by punching his fist through the protective glass window in his room. The Anderson Hospital emergency department nursing documentation report contained in the presentence investigation report (PSI) prepared to assist in sentencing listed Sinequan as "home meds" for defendant. Little more than a month later, defendant entered his Alford plea on January 29, 1996.

The PSI, dated March 5, 1996, stated, "[Defendant] is taking Sinequan for anxiety according to detention home workers." Five weeks later, defendant was sentenced to 16 years' imprisonment. His motion for the modification of his sentence was denied.

Neither counsel, nor the State, nor the court, all of whom were aware via the PSI that defendant had taken Sinequan at the crucial period of plea and sentence, broached the subject of the possible need for a fitness hearing pursuant to section 104-21(a).

ARGUMENT(S)

The Mental Health and Developmental Disabilities Code defines "psychotropic medications" as "medication whose use for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavior management purposes is listed in AMA Drug Evaluations, latest edition, or Physician's Desk Reference, latest edition, or which are administered for any of these purposes." 405 ILCS 5/1-121.1 (West Supp. 1995). In Washington v. Harper, 494 U.S. 210, 214, 108 L. Ed. 2d 178, 193, 110 S. Ct. 1028, 1032 (1990), the Supreme Court described psychotropic drugs as "medications commonly used in treating mental disorders such as schizophrenia," the effect of which is "to alter the chemical balance in the brain, the desired result being that the medication will assist the patient in organizing his or her thought processes and regaining a rational mind."

The PSI indicates that defendant was using Sinequan. The Physician's Desk Reference lists the drug as a psychotherapeutic agent for the treatment of anxiety and depression. Physician's Desk Reference 2098 (7th ed. 1995). Clearly, Sinequan ...


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