Appeal from the Circuit Court of Cook County. 95 CR 9691 Honorable William O. Maki, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Somebody once said: "When the play is cast in hell you cannot expect the actors to be angels." This case makes that point. It concerns a business debt, a million dollar life insurance policy, a luckless gambler, and a murder for hire scheme gone awry.
The issue we deal with is the guilty plea of the accused assailant, Rembert Hirsch (Hirsch). He contends the trial court erred in denying without a hearing his motion to vacate his plea of guilty to aggravated battery. We affirm the trial court.
Herbert Betancourt (Betancourt) owed a considerable amount of money to his business associate, Kenneth Blum (Blum). Under an agreement with Betancourt, Blum purchased a $1,000,000 policy on Betancourt's life.
Blum soon met Hirsch at a party and learned Hirsch had mounting gambling debts. Blum offered to pay Hirsch's debts if Hirsch would kill Betancourt. Overcoming his initial reluctance, Hirsch finally accepted Blum's overtures.
On the evening of January 14, 1995, Betancourt was walking to a fictitious business meeting arranged by Blum at a north side restaurant when Hirsch struck him from behind with a tire iron. Betancourt stumbled toward the street, and Hirsch continued his attack by landing crushing blows to Betancourt's face and head. A witness drove by Hirsch and Betancourt, honking her car horn and shining her headlights on the attack. During the attack, Hirsch's mask came off, and Betancourt and the witness saw his face. Hirsch fled. Betancourt received 40-50 stitches as a result of the attack.
The next day, January 15, Betancourt tape-recorded a conversation with Blum in which Blum confided Hirsch committed the attack. On February 16, 1995, Hirsch surrendered to the police. He was charged with attempt first-degree murder, aggravated battery, and armed violence.
On March 5, 1999, Hirsch, who was on bond, appeared in court for what his attorney, Steven Fritzshall (Fritzshall), understood was a status hearing on a possible guilty plea. Assistant State's Attorney Kevin Hughes (Hughes) disagreed, insisting the trial court had scheduled a sentencing hearing. The court said, "Based on those representations [about Hirsch's cooperation in Blum's case] what I said was you either want to set this for trial or have a plea of guilty. And that was my position." Hughes said Hirsch had agreed to plead guilty to three counts of aggravated battery. Hughes added, "The State will be making a [sentencing] recommendation. The defense will be making a recommendation--". Fritzshall balked: "That's the little glitch that I wanted to talk to [opposing] counsel about."
The court passed Hirsch's case. Fritzshall and Hughes returned with a written plea agreement, signed by Hirsch:
"IT IS AGREED that Rembert Hirsch will testify in all matters in which he is subpoenaed to do so regarding the Solicitation Murder For Hire [sic] of Herbert Betancourt. It is further agreed that Rembert Hirsch will plead guilty to [three counts of aggravated battery.]
That at the sentencing hearing of Rembert Hirsch the State will introduce any prior convictions of Rembert Hirsch. The State will recommend that Rembert Hirsch receive a five year sentence to be served in the Illinois Department of Corrections. This sentence recommendation is based upon Rembert Hirsch's truthful testimony and is not, by law, binding upon the [trial judge.]
The State will ask [the trial judge] to consider what risks to his personal safety Rembert Hirsch has placed himself in by giving his truthful testimony. The State and Rembert Hirsch agree that Rembert Hirsch may receive up to a thirty year sentence from [the trial judge] under [the attempt first- degree murder and armed violence counts.] [The trial judge] has sole discretion in determining what sentence Rembert Hirsch will receive. ...