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12/29/97 PEOPLE STATE ILLINOIS v. ABRAHAM P.

December 29, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ABRAHAM P. ABRAHAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 94--CF--727. Honorable Peter J. Dockery, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court. McLAREN and Colwell, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

The defendant, Abraham P. Abraham, pleaded guilty on September 16, 1994, to one count of armed violence (720 ILCS 5/33--A(2) (West 1994)). On February 14, 1995, the trial court sentenced him to serve 20 years in prison. The defendant subsequently filed motions to reconsider sentence and to withdraw his guilty plea. Following hearings on the respective motions, the trial court denied the motion to reconsider sentence on November 15, 1995, and it denied the motion to withdraw the guilty plea on February 15, 1996.

The record reveals that shortly after the September 16, 1994, guilty plea hearing the defendant's trial counsel, Wayne Brucar, left the public defender's office and Assistant Public Defender Jameson Kunz assumed the representation of the defendant. The cause proceeded to a sentencing hearing held on January 20, 1995. The defendant was sentenced to 20 years in prison on February 14, 1995. Around April 7, 1995, defense counsel Kunz obtained the defendant's psychological records from the Du Page County jail. Those records revealed that the defendant was taking psychotropic drugs at the time he pleaded guilty, a fact which was not previously known to the trial court. Thereafter, the trial court issued an order allowing the defendant to undergo a psychiatric examination.

Dr. Syed Ali, a licensed psychiatrist, examined the defendant on two separate occasions. His first written report stated with a reasonable degree of medical certainty that the defendant was insane at the time of the offense on April 4, 1994. Dr. Ali's second report, however, indicated that the defendant was presently fit to stand trial. Dr. Ali further stated in his report that he could not determine retroactively with a reasonable degree of medical certainty whether the defendant was fit on September 16, 1994, when he pleaded guilty.

On August 31, 1995, the trial court found the defendant fit for the proceedings on his postplea motions. The motion to reconsider sentence was heard before the motion to withdraw the guilty plea. At the hearing on the motion to reconsider sentence, Dr. Ali testified that the defendant suffered from the mental diseases of alcohol induced dementia, persecutory delusional disorder, and bipolar disorder. He opined with a reasonable degree of medical certainty that on April 4, 1994, the defendant could not conform his conduct to the requirements of the law and was unable to appreciate the criminality of his conduct. The trial court denied the defendant's motion to reconsider his sentence.

Thereafter, the cause proceeded to a hearing on the defendant's motion to withdraw his guilty plea. The defendant introduced his Du Page County medical records which revealed that during the period that included September 16, 1994, the date of the guilty plea hearing, the defendant was taking lithium carbonate, a psychotropic drug, as treatment for his depressive disorder.

At the hearing on the motion, attorney Wayne Brucar testified that sometime before the defendant pleaded guilty he asked Dr. Ali to see the defendant at the jail for the purpose of doing a fitness evaluation. According to Brucar, Ali saw the defendant and told Brucar that he did not believe that there was an issue regarding the defendant's fitness, so Brucar asked him not to prepare a report. Brucar further testified that the defendant understood the case and aided in the preparation of his defense. Brucar noted that he thought that he knew the defendant was taking psychotropic medication when he entered his plea but there was never a time when he had a bona fide doubt of the defendant's fitness.

Nick F. O'Riordan, a psychologist who saw the defendant at the jail, testified that the defendant was taking 25 m.g. of thorazine and 300 m.g. of lithium on September 16, 1994. On September 19, 1994, the defendant's medication was changed to 600 m.g. of lithium and the thorazine was discontinued. According to O'Riordan, he saw the defendant once in August 1994 and once in October 1994. Both times the defendant appeared to be rational and coherent when they spoke.

On February 15, 1996, the trial court denied the defendant's motion to withdraw his guilty plea. In so doing, the court found that the amended version of section 104--21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104--21(a) (West Supp. 1995)) applied to the case requiring that the defendant receive a fitness hearing only if there was a bona fide doubt of the defendant's fitness even though the defendant was taking psychotropic medication at the relevant times. The court then found that there was no bona fide doubt with respect to the defendant's fitness at the time of his guilty plea and sentencing.

On appeal, the defendant contends that at the time he entered his guilty plea on September 16, 1994, he was taking psychotropic medication and was therefore entitled to a fitness hearing before his guilty plea was accepted (see 725 ILCS 5/104--21(a) (West 1994); People v. Brandon, 162 Ill. 2d 450, 461, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994)). He further contends that his trial counsel was ineffective in failing to request a hearing and therefore his conviction should be vacated, his motion to withdraw his guilty plea should be granted and he should be allowed to plead anew. In response, the State asserts that automatic reversal is not required under the recent case of People v. Burgess, 176 Ill. 2d 289, 223 Ill. Dec. 624, 680 N.E.2d 357 (1997), if retrospective hearings reveal that the defendant suffered no impairment as a result of his ingestion of psychotropic drugs. The State also asserts that a subsequent amended version of the psychotropic drug statute, section 104--21(a) of the Code of Criminal Procedure of 1963, controls the present case and the defendant is not entitled to any relief.

We first address the State's contention that the amended version of section 104--21(a) applies to this case. At the time the defendant pleaded guilty to armed violence and was sentenced, section 104--21(a) provided in pertinent part:

"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." ...


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