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People v. Bettice

DECEMBER 18, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH J. BETTICE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1976.

The defendant herein was indicted for murder of Walter Horton, Jr., known as Cesar. Upon the agreement of his counsel, the defendant and the State's Attorney, he entered a plea of guilty to an information charging the offense of voluntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, par. 9-2) and was sentenced to a term of 6 2/3-20 years to be served in the Illinois State Penitentiary.

On October 29, 1973, Cesar and the defendant exited a car in front of a tavern in Waukegan and went into the tavern. They were met by one George Ostendorf, an argument ensued and defendant was severely beaten up by Ostendorf. Defendant then went to his apartment and took his roommate's gun. His roommate attempted to persuade him not to take the gun but the defendant left with the weapon and went to the YMCA in Waukegan. He then walked up to a man sitting in a chair watching television, who was Cesar, struck him over the head with the gun, fired twice and killed him. The defendant then fled to the roof of the YMCA where he was arrested by the Waukegan police. The gun was recovered from a downspout located on the roof.

The first contention of the defendant is that the trial court erred in accepting a plea of guilty to the offense of voluntary manslaughter as there was no factual basis existing for the same, citing Supreme Court Rule 402(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(c)). Counsel contends that if the defendant is guilty of an offense it is not voluntary manslaughter.

On March 7, 1974, the defendant appeared in court with his counsel and the State's Attorney advised the court that the defendant had been indicted for the offense of murder and that he desired to enter a plea of guilty to the offense of voluntary manslaughter. The State's Attorney indicated to the court that he had prepared such an information charging him with voluntary manslaughter in that, in pertinent part,

"* * * he did knowingly shoot and kill Walter M. Horton, Jr., also known as Cesar, without lawful justification, while acting under a sudden and intense passion resulting from serious provocation by the said Walter M. Horton, Jr., also known as Cesar, contrary to the former statute in such case made and provided * * *."

The court then questioned the defendant at considerable length to determine the factual basis for his plea. The court further advised the defendant that the incarceration that would be imposed would be left entirely to the discretion of the court. Defendant took the stand and, under oath, admitted that he had struck the victim on the head with the gun and had shot him. The court then accepted the plea of guilty to the charge of voluntary manslaughter and the matter was referred to the probation department for presentence investigation. Probation was subsequently denied.

The gist of defendant's contention, that the court did not determine the factual basis for the plea under the provisions of Rule 402(c), is that the court did not determine that the defendant acted under sudden and intense passion resulting from serious provocation by the decedent.

• 1 This issue was raised in People v. Bell (1972), 4 Ill. App.3d 397, 280 N.E.2d 487, and in a companion case of People v. Love (1972), 6 Ill. App.3d 577, 286 N.E.2d 355. In these two cases, Bell and Love, together with two other defendants, were charged with the murder of one Hobart S. Hostetler committed during the course of an attempted robbery. They were all indicted for murder, and one of the defendants was sentenced to 30-60 years. A few days later the defendant Bell, as well as Love, waived indictment and entered pleas of guilty to an information charging them with voluntary manslaughter. In the Bell case, the defendant urged that the trial court, before accepting the plea, did not adequately inform the defendant of the nature of the crime of voluntary manslaughter. The court there held that Bell, together with Love and a third defendant Lynn, had received copies of the information and had indicated their desire to plead guilty to voluntary manslaughter. They had been arraigned on the murder charge. The information charged Bell, Lynn and Love with voluntary manslaughter:

"* * * in that they, pursuant to a plan to commit the offense of armed robbery, attempted to take money from the person of Hobart Hostetler by threatening the use of force with a gun, and did kill Hostetler during the attempt to commit armed robbery, * * * and that at the time of the killing they were acting under a sudden and intense passion, resulting from serious provocation by the individual killed." (4 Ill. App.3d 397, 400, 280 N.E.2d 487, 490.)

The court observed that the trial court found the pleas to be voluntary and accepted the pleas. The appellate court stated:

"In determining whether a defendant has been sufficiently admonished and comprehends the nature of the charges against him the `total record' must be considered. [Citation.] We have examined the `total record' here, and the context in which it was made, together with the postures of Bell and co-defendants at ...


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