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12/16/97 PEOPLE STATE ILLINOIS v. GARY KILPATRICK

December 16, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY KILPATRICK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois. No. 95--CF--193. Honorable Harry C. Bulkeley, Judge, Presiding.

Released for Publication January 21, 1998.

The Honorable Justice Slater delivered the opinion of the court. Homer and McCUSKEY, J.j., concur.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

Defendant Gary Kilpatrick pled guilty to attempted first degree murder and aggravated battery and was sentenced to concurrent 15- and 5-year prison terms. Defendant contends on appeal that the trial court erred when it failed to conduct a fitness hearing despite evidence that he was taking psychotropic drugs at the time of his plea and sentencing.

FACTS

On September 19, 1995, defendant entered the restroom of a poolhall in Abingdon, Illinois, and stabbed Jeffery Irwin in the back with a knife. Defendant cut Greg Schisler with the knife when Schisler tried to break up the altercation. Defendant also committed aggravated battery against the police officer who came to the scene. He was charged with attempted first degree murder, unlawful possession of a weapon by a felon and two counts of aggravated battery. On January 4, 1996, in exchange for defendant's plea of guilty to attempted murder and the count of aggravated battery against Greg Schisler, the State dismissed the remaining charges of unlawful possession of a weapon and aggravated battery against the police officer. On February 8, 1996, the court imposed concurrent prison terms of 15 years for attempted murder and 5 years for aggravated battery.

ANALYSIS

The issues presented for review are whether: (1) defendant was entitled to a fitness hearing based on his ingestion of psychotropic drugs at the time of his plea and sentencing and (2) the court's failure to conduct the hearing requires a new trial.

During the pendency of defendant's appeal, this court decided People v. Jamerson, 1997 Ill. App. LEXIS 742, No. 3--96--1020 (Ill. App. October 23, 1997), which involved similar facts and identical issues on appeal. In Jamerson, we determined that the original psychotropic drug statute applied and that defendant was entitled to a fitness hearing. The original statute provided as follows:

"A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." 725 ILCS 5/104--21(a) (West 1994).

The first amendment to this statute was found unconstitutional in Johnson v. Edgar, 176 Ill. 2d 499, 680 N.E.2d 1372, 224 Ill. Dec. 1 (1997), and will not be cited nor discussed here. The second amendment to the statute took effect on December 31, 1996, and provides as follows:

"A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications." 725 ILCS 5/104--21(a) (West 1996).

In light of the importance the legislature placed upon the right of an accused taking psychotropic medication to receive a fitness hearing under the original statute, and in accordance with binding precedent, we rejected in Jamerson, as we do here, the State's arguments that the second amendment to the statute was procedural. In this case, we reaffirm our ruling that the second amended statute effectuates a substantive change in the law and deprives defendant of the ...


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