People v. Abraham

No. 2--96--0186

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 94--CF--727
)
ABRAHAM P. ABRAHAM, ) Honorable
) Peter J. Dockery,
Defendant-Appellant. ) Judge, Presiding.
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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 (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 (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." (Emphasis
added.) 725 ILCS 5/104--21(a) (West 1994).
We note that section 104--21(a) was twice amended so as to remove
the automatic entitlement to a fitness hearing (see 725 ILCS 5/104-
-21(a) (West 1996)). However, the first of those amendments did
not become effective until December 13, 1995, after the defendant's
guilty plea was accepted and he was sentenced. In People v. McKay,
282 Ill. App. 3d 108, 115 (1996), this court found under similar
facts that the preamendment version applies. The McKay court found
that a defendant's entitlement to a fitness hearing accrues either
at the time he pleaded guilty or at the time of the sentencing
hearing if he was taking a psychotropic drug proximate to or during
either of those times. McKay, 282 Ill. App. 3d at 115.
Accordingly, we find that, since the amendment became effective
after the defendant pleaded guilty and was sentenced, the
preamendment version applies.
Under prior precedents of this court and the Illinois Supreme
Court, the defendant would automatically be entitled to have his
conviction vacated and the cause remanded for a fitness hearing;
then if the defendant was found fit, he would have an opportunity
to plead anew. See People v. Birdsall, 172 Ill. 2d 464 (1996);
People v. Gevas, 166 Ill. 2d 461 (1995); People v. Brandon, 162 Ill. 2d 450 (1994); McKay, 282 Ill. App. 3d at 114. Moreover, a
defense attorney is ineffective if he fails to point out to the
trial court that his client is entitled to a fitness hearing under
the preamendment statute because of his ingestion of psychotropic
medication. Brandon, 162 Ill. 2d at 458. However, in People v.
Burgess, 176 Ill. 2d 289 (1997), our supreme court held that a rule
of automatic reversal is not always appropriate. Burgess, 176 Ill. 2d at 303.
In Burgess, the supreme court granted the defendant's motion
to stay the normal briefing schedule and to remand the cause to the
circuit court for the " 'limited purpose of determining whether
defendant ingested psychotropic medication at or near the time of
his trial and sentencing.' " Burgess, 176 Ill. 2d at 298-99. At
the hearing on remand, the State presented medical evidence that
the drugs the defendant was taking would not have affected the
defendant's mental condition and would not have had any
psychotropic effect upon him while he was in court. The defendant
offered some contrary medical testimony from his own expert. In
rebuttal, the State introduced testimony from the defendant's trial
attorney indicating that the defendant always appeared alert and
coherent and was able to assist in his trial preparation. Based on
all of the testimony, the trial judge concluded that the drugs
taken by the defendant had no effect on his mental condition.
After remand, the supreme court decided that it would not
automatically assume that every psychotropic drug would render the
person taking it unfit for purposes of trial and sentencing.
Therefore, it concluded that retrospective hearings to consider the
possible effects of a drug on the defendant are sometimes proper.
Burgess, 176 Ill. 2d at 304. The supreme court then found that the
evidence in the case before it, including the prescribing doctor's
testimony, the judge's observations, and the defendant's own
testimony at trial, compelled the conclusion that the defendant was
suffering no impairment as a result of his ingestion of
psychotropic drugs during the time of his trial and sentencing
hearing. Burgess, 176 Ill. 2d at 304.
In the case before us, the State maintains that the defendant
was afforded the type of supplemental hearing afforded in Burgess
and that the record shows that the defendant suffered no impairment
as a result of his ingestion of psychotropic drugs. We agree that
the defendant was afforded the type of hearing allowed for in
Burgess. However, we disagree with the State that the record shows
that the defendant suffered no impairment as a result of the
medication. In that regard, we note that the trial court made no
specific ruling with respect to the effect of the psychotropic
drugs upon the defendant. More importantly, unlike in Burgess,
here the State did not introduce any medical evidence discussing
the drugs taken in relation to their psychological effects at the
dosages given.
In Burgess, the supreme court had the benefit of testimony
from two psychiatrists regarding the effects of the specific doses
of the drugs that the defendant was taking at the time of his trial
and sentencing. In contrast, the only medical expert to testify in
this case testified that he could not give an opinion as to the
defendant's fitness on September 16, 1994. Given the State's
failure to show within a reasonable degree of medical certainty
that the psychotropic drugs the defendant had been taking did not
impair his ability to participate in and understand his defense
prior to pleading guilty and sentencing, we find that the
defendant's conviction should be vacated and the cause remanded to
allow the defendant to plead anew.
For purposes of avoiding a double jeopardy issue, we find that
the factual basis for the defendant's guilty plea to armed violence
offered at the hearing would support his conviction of that offense
beyond a reasonable doubt. See People v. Sandham, 174 Ill. 2d 379,
390 (1996).
For the foregoing reasons, we vacate the defendant's
conviction of armed violence and remand the cause to the circuit
court of Du Page County for further proceedings to allow the
defendant to plead anew to the charge of armed violence.
Vacated and remanded.
McLAREN and COLWELL, JJ., concur.