APPEAL from the Circuit Court of McHenry County; the Hon.
JAMES H. COONEY, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
In a negotiated plea the defendants herein pled guilty to the charge of murder of their brother. Ernesto Alfaro was sentenced to a term of 14-20 years and Mario Alfaro was sentenced to a term of 14-25 years. The defendants filed separate but identical motions to withdraw their pleas of guilty, pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)). The trial court, after argument, without an evidentiary hearing, granted the State's Attorney's motion to dismiss defendants' motions to withdraw their pleas of guilty. Defendants appeal, seeking to have the cause remanded to the trial court for a hearing on the merits of the motions.
The issue presented is whether the trial court erred in dismissing the motions to withdraw defendants' guilty pleas without an evidentiary hearing.
Inasmuch as this was a negotiated plea of guilty with no evidence presented, we have only the State's Attorney's factual statement of what occurred, which was agreed to by defense counsel, and the statements of Cesareo and Octavio made in their presentence investigation which have been filed as a supplemental record by the defendants herein. On June 22, 1975, Mario S. Alfaro and his three brothers, Cesareo, Octavio and Ernesto, were picnicking in the Big Foot State Park in Wisconsin. They saw their brother, Rogelio, at the park in another vehicle. Rogelio made an obscene gesture at them as he passed their picnic site and Ernesto and Mario got in a car to follow Rogelio, with Octavio and Cesareo joining them in this vehicle. They then chased Rogelio from the Lake Geneva area to Hebron, Illinois. During the chase Ernesto put a gun out of the window of his car and pointed it at the victim's car, but did not shoot. When the four brothers either curbed or hit the motor vehicle of their brother Rogelio, in which Rogelio's wife, his brother-in-law and Rogelio's five children were also riding. Mario and Ernesto got out of their vehicle. Mario fired four shots from a .30-caliber rifle, one of which struck Rogelio in the back resulting in his death. The four brothers were indicted for murder. According to Cesareo's statement, he did not exit the vehicle until after the shooting and according to Octavio's statement he heard the shots being fired but did not see the shooting. The State's Attorney nolle prossed the murder indictment as to Cesareo and Octavio and an information was filed charging these two brothers with the separate offense of aggravated battery against another brother named Saul Alfaro. Pursuant to a negotiated plea, on November 13, 1975, Octavio and Cesareo were each sentenced to a period of 3 years' probation and fined $1000.
On the same day the defendants Ernesto and Mario Alfaro moved the court to withdraw their pleas of not guilty and enter negotiated pleas of guilty to the charge of murdering their brother Rogelio. They now seek to withdraw those pleas.
The basis for the identical motions for leave to withdraw the pleas of guilty is, first, that the defendants were coerced into agreeing to the negotiated plea because the State's Attorney of McHenry County indicated to the defendants that if they did not plead guilty their other two brothers would be prosecuted for murder, even though they were not, in fact, guilty of murder. The second argument presented in these motions is that the defendants were repeatedly and continuously badgered by their brothers and other family members to plead guilty so that the brothers Octavio and Cesareo might be given probation on a lesser charge. It is to be noted, however, that in the affidavits of Ernesto and Mario supporting the motions, they state that they were advised by their attorney that the State's Attorney would not allow the brothers Octavio and Cesareo to enter a plea of guilty to a separate charge of aggravated battery unless they entered a plea of guilty to the charge of murder. It can thus be seen that the affidavit indicates that the defendants' counsel purportedly advised them of this arrangement and not the State's Attorney, as contained in the motion to withdraw the pleas of guilty.
1 At the outset we recognize that the permission to withdraw a plea of guilty is discretionary with the trial court and is not a matter of right. We do not feel it necessary to cite authority for this as over five pages of cases so holding may be found in 10 Ill. Dig. Criminal Law § 274(2) (West 1976). Obviously the question resolves itself as to whether the court has abused that discretion in the case before it.
It is to be expressly noted that both defendants were present when the factual basis for the pleas was explained to the court and they agreed that the factual statement was correct. It is further to be noted that in their affidavits supporting the motions to withdraw their pleas of guilty the appellants now say they are innocent.
At this juncture it is important to examine a portion of the admonition which the trial court gave to Ernesto Alfaro in the presence of this brother Mario Alfaro and their respective privately retained counsel and we quote from the record, in pertinent part:
"Q. (By the court to Ernesto Alfaro) Other than the agreement by the State to recommend to this Court a sentence of 14 to 20 years, have any other promises been made to you to persuade you to plead guilty to this charge?
Q. Have you been threatened or menaced in any way by anyone to persuade you to plead guilty to this charge?
Q. Is there anything about the agreement in the cases of the other three brothers that is persuading you to plead guilty to this charge?
Q. Are there any family pressures that are persuading you to plead guilty?
Q. Why would you plead guilty to a crime you did not commit?
A. Because it's just as I said before, morally I don't feel that I'm guilty. But, before the law I ...