People v. Gibson
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0716
Case Date: 11/04/1997
Rule 23 Order filed
October 7, 1997;
Motion to publish granted
November 5, 1997.
NO. 5-96-0716
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 95-CF-1623
)
PERRIE GIBSON, ) Honorable
) Edward C. Ferguson,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
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 (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).
DISCUSSION
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 is the type
of medication contemplated by section 104-21(a).
Prior to December 13, 1995, the version of section 104-21(a)
that was in effect (725 ILCS 5/104-21(a) (West 1994)) read as
follows:
"(a) A defendant who is receiving psychotropic drugs or
other medications under medical direction is entitled to a
hearing on the issue of his or her fitness while under
medication ***." 725 ILCS 5/104-21(a) (West 1994).
This version was found to mandate a new trial, without regard
to the actual condition of the defendant at the time of the
proceedings, if the defendant ingested psychotropic drugs during
the time immediately surrounding the trial and sentencing hearing.
See People v. Brandon, 162 Ill. 2d 450, 643 N.E.2d 712 (1994);
People v. Gevas, 166 Ill. 2d 461, 655 N.E.2d 894 (1995); People v.
Birdsall, 172 Ill. 2d 464, 670 N.E.2d 700 (1996); People v. Nitz,
173 Ill. 2d 151, 670 N.E.2d 672 (1996).
On December 13, 1995, Public Act 89-428 became effective. It
included the amendment of section 104-21(a). As amended, the
section read:
"(a) A defendant who is receiving psychotropic drugs
under medical direction is entitled to a hearing on the issue
of his or her fitness while under medication; however, no
hearing is required unless the court finds there is a bona
fide doubt of the defendant's fitness." 725 ILCS 5/104-21(a)
(West Supp. 1995).
Defendant's case was pending in the circuit court on the
effective date of the amendment, and thus the procedural nature of
the statute rendered it applicable to his case. See People v.
Nitz, 173 Ill. 2d 151, 162-63, 670 N.E.2d 672, 677 (1996).
However, on May 23, 1997, in Johnson v. Edgar, 176 Ill. 2d 499,
523, 680 N.E.2d 1372 (1997), our supreme court declared Public Act
89-428 unconstitutional and unenforceable as a violation of the
one-subject rule.
In Illinois, an unconstitutional statute is void ab initio.
People v. Zeisler, 162 Ill. App. 3d 578, 579, 515 N.E.2d 1297, 1298
(1987), aff'd, 125 Ill. 2d 42, 531 N.E.2d 24 (1988), citing People
v. Manuel, 94 Ill. 2d 242, 245-46, 446 N.E.2d 240, 241 (1983). In
People v. Gersch, 135 Ill. 2d 384, 553 N.E.2d 281 (1990), our
supreme court explained that when amendments to a statute were
found void ab initio, it is as if the amended statute never
existed. See People v. Pozdoll, 230 Ill. App. 3d 887, 893, 596
N.E.2d 164, 168 (1992).
Defendant argues that because the amendment effected in Public
Act 89-428 was void from its inception, the statute in effect prior
to its enactment should be applied to his case. He contends that
Public Act 89-689, section 90, effective December 31, 1996, should
not be applied retroactively to his case because his plea and
sentence preceded the effective date of the statute.
The State urges this court to find that Public Act 89-689,
section 90, effective December 31, 1996, should be given
retroactive application to defendant's case because it was pending
in this court on appeal at the time of the amendment. As of that
date, section 104-21(a) was amended to read:
"(a) 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).
The State cites Nitz, 173 Ill. 2d at 162-63, 670 N.E.2d at
676, for its characterization of section 104-21(a) as set forth in
Public Act 89-428 as a procedural rule which is amenable to
retrospective application. Although it was not necessary to the
decision, the court said, "we find it appropriate to note the rule
that amendatory acts which are procedural in nature have
retrospective operation for matters which are pending on the
effective date of the amendment or are subsequently filed."
(Emphasis in original.) Nitz, 173 Ill. 2d at 162, 670 N.E.2d at
677. The Nitz court did not give the amendment effective December
13, 1995, retrospective application to the defendant's case in that
instance because the amendment was not in effect at the time of
trial or direct appeal, but it became operative only during the
defendant's collateral attack on the judgment by way of a
postconviction petition. We note that defendant concedes in his
brief that Nitz stands for the proposition that section 104-21(a)
is a procedural statute, amendments to which apply to proceedings
pending on the effective date of an amendment.
The State argues that because defendant's appeal here was
pending when the amendment set out in Public Act 89-689, section
90, became effective on December 31, 1996, it should be applied
retroactively to defendant's case. It urges us to find that no
error transpired, despite the fact that defendant was not given a
fitness hearing, because of the mere fact of his ingestion of
psychotropic medication at or near the time of his plea and the
imposition of his sentence.
In the alternative, the State argues that even if we decline
to give Public Act 89-689, section 90, retrospective application,
even under the version of section 104-21(a) which was in effect
prior to December 13, 1995, it is not necessary to automatically
reverse defendant's conviction. It cites People v. Burgess, 176
Ill. 2d 289, 303, 680 N.E.2d 357, 363 (1997), for its position that
automatic reversal is not always appropriate and that "there will
be some circumstances in which it can be said that the use of
psychotropic medication did not affect the defendant's mental
functioning in such a way that relief would be appropriate."
Burgess, 176 Ill. 2d at 303, 680 N.E.2d at 363. In Burgess, the
defendant's trial began on March 10, 1995, and the capital
sentencing hearing concluded on March 21, 1995, before the
effective date of Public Act 89-428, which was later declared
unconstitutional. After the defendant submitted his initial
appellate brief, the reviewing court granted his motion to stay the
normal briefing schedule and remanded the case for a special
supplemental hearing to ascertain if he was given psychotropic
medication during the critical time period. The March 1996 hearing
produced extensive information about not only the defendant's
ingestion of psychotropic medication but the effect it had upon
him. Because the evidence was so complete, the supreme court found
that the record in toto compelled the conclusion that the defendant
was not impaired as a result of his psychotropic medication during
the time of trial and the sentencing hearing, and it declined to
reverse his conviction. Burgess, 176 Ill. 2d at 304, 680 N.E.2d at
364.
Because of the grounds for the supreme court's decision, it
found that it did not need to consider the State's argument that
the "recently amended version of the psychotropic drug statute,
section 104-21(a) of the Code of Criminal Procedure of 1963 (725
ILCS 5/104-21(a) (West Supp. 1995)) controls the present appeal and
that the defendant is not entitled to any relief under the new
provision." Burgess, 176 Ill. 2d at 305-06, 680 N.E.2d at 364. It
also noted that in Birdsall the court's footnote summarily stated
that the amended statute was not applicable to that case. See
Birdsall, 172 Ill. 2d 464, 475 n.1, 670 N.E.2d 700, 706 n.1 (1996).
In the case at bar, defendant's case was pending on direct
appeal on December 31, 1996, and thus, we believe that the Nitz
decision supports our conclusion that Public Act 89-689, section
90, should apply retroactively to this cause. However, that
conclusion does not mean that this court is required to disregard
the fact that defendant was ingesting psychotropic medication
during the crucial period of time in which he entered an Alford
plea and was sentenced. The amendment merely removes a presumption
of unfitness related to medication with mind-altering prescription
drugs that was formerly in place.
The record is replete with reports written by psychologists
and counselors about defendant's mental and emotional states, as
well as the various medications that were administered to him from
the time he was eight years old through the date of sentencing,
when he was 16. During the critical period of time in issue, he
was in the custody of the Madison County Detention Home, which
presumably would have records of any medications administered to
him still extant. Given the relatively short period of time since
defendant was sentenced on April 11, 1996, we believe that it is
feasible to remand this case to the circuit court of Madison County
for a hearing to explore the quantity of medication administered to
defendant and the impact of the Sinequan on his mental functioning.
Should the court determine that defendant's medication compromised
his ability to plead and be sentenced, it can vacate his Alford
plea and sentence and allow him to plead anew. Should the court
find that his mental status was not rendered doubtful due to the
medication, it can allow defendant's conviction and sentence to
stand.
Remanded with directions.
WELCH and MAAG, JJ., concur.
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