{ "id": 411604, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REMBERT HIRSCH, Defendant-Appellant", "name_abbreviation": "People v. Hirsch", "decision_date": "2000-03-08", "docket_number": "No. 1 \u2014 99 \u2014 2378", "first_page": "174", "last_page": "181", "citations": [ { "type": "official", "cite": "312 Ill. App. 3d 174" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "616 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 456216 ], "year": 1997, "pin_cites": [ { "page": "578-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0574-01" ] } ], "analysis": { "cardinality": 827, "char_count": 16107, "ocr_confidence": 0.777, "pagerank": { "raw": 9.77991656237504e-08, "percentile": 0.5322250447806031 }, "sha256": "b70aa03eb5dd7dd65349be2f146e9b413864bc5694c96ededd91c539cc12ec43", "simhash": "1:b8af3fa6cbc1a066", "word_count": 2667 }, "last_updated": "2023-07-14T15:51:04.567640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REMBERT HIRSCH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nSomebody once said: \u201cWhen the play is cast in hell you cannot expect the actors to be angels.\u201d 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.\nThe 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.\nFACTS\nHerbert Betancourt (Betancourt) owed a considerable amount of money to his business associate, Kenneth Blum (Blum). Under an agreement with Betancourt, Blum purchased a $1 million policy on Betancourt\u2019s life.\nBlum soon met Hirsch at a party and learned Hirsch had mounting gambling debts. Blum offered to pay Hirsch\u2019s debts if Hirsch would kill Betancourt. Overcoming his initial reluctance, Hirsch finally accepted Blum\u2019s overtures.\nOn 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\u2019s 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\u2019s mask came off, and Betancourt and the witness saw his face. Hirsch fled. Betancourt received 40 to 50 stitches as a result of the attack.\nThe 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 attempted first-degree murder, aggravated battery, and armed violence.\nOn 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\u2019s Attorney Kevin Hughes (Hughes) disagreed, insisting the trial court had scheduled a sentencing hearing. The court said, \u201cBased on those representations [about Hirsch\u2019s cooperation in Blum\u2019s case] what I said was you either want to set this for trial or have a plea of guilty. And that was my position.\u201d Hughes said Hirsch had agreed to plead guilty to three counts of aggravated battery. Hughes added, \u201cThe State will be making a [sentencing] recommendation. The defense will be making a recommendation \u2014 .\u201d Fritzshall balked: \u201cThat\u2019s the little glitch that I wanted to talk to [opposing] counsel about.\u201d\nThe court passed Hirsch\u2019s case. Fritzshall and Hughes returned with a written plea agreement, signed by Hirsch:\n\u201cIT 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].\nThat 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\u2019s truthful testimony and is not, by law, binding upon the [trial judge.]\nThe 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 attempted first-degree murder and armed violence counts], [The trial judge] has sole discretion in determining what sentence Rembert Hirsch will receive. Rembert Hirsch also understands that if he fails to testify truthfully he will be charged and prosecuted for Peijury.\u201d\nThe trial court read this agreement into the record and asked Hirsch if he had signed it. Hirsch said he did.\nThe court proceeded with its plea colloquy. See 134 Ill. 2d R. 402(a). The court informed Hirsch he could receive a sentence of five years\u2019 imprisonment for each of the aggravated battery counts, and Hirsch said he understood his potential sentence. Hirsch signed a jury waiver after the court reviewed the constitutional rights he would relinquish with his guilty plea. The court asked Hirsch, \u201c[I]s anybody forcing you in any way in order to get you to plead guilty?\u201d Hirsch answered, \u201cNo.\u201d The court asked Hirsch, \u201cHas anybody threatened you in any way?\u201d Hirsch answered, \u201cNo.\u201d The court asked Hirsch if, other than the agreement to drop the attempted murder and armed violence charges, \u201c[H]ave any other promises been made to you in order to get you to plead guilty?\u201d Hirsch answered, \u201cNo, Your Honor.\u201d Hirsch agreed his guilty plea was free and voluntary.\nThe court accepted Hirsch\u2019s guilty plea to the three aggravated battery counts and granted the prosecution\u2019s motion to \u201cnolle pros\u201d the attempted first-degree murder and armed violence charges. The court sentenced him to four years\u2019 imprisonment.\nHirsch obtained a new attorney, and, on March 30, 1999, filed a \u201cMOTION TO VACATE GUILTY PLEA AND SENTENCE.\u201d In this motion, Hirsch contended Fritzshall told him he would receive probation or work release in return for his grand jury testimony against Blum. Hirsch further contended he learned on March 5, 1999, \u201cfor the first time,\u201d the prosecution would recommend a substantial prison term, not probation or work release, in return for his guilty plea. Hirsch added his attorney did not know sentencing would occur on March 5. In this motion, Hirsch never asked to proceed to trial.\nOn May 14, 1999, Hirsch filed a supplement to his motion to vacate. This supplement provided background on Hirsch\u2019s attack on Betancourt and included Hirsch\u2019s affidavit. In his affidavit, Hirsch said Fritzshall assured him he would receive probation or work release in return for his grand jury testimony against Blum. Hirsch said he then met with Hughes. According to Hirsch, Hughes said:\n\u201c[T]he agreement would be that in exchange for my truthful testimony, all charges would be dropped other than aggravated battery and that he might recommend a jail sentence, but I also might receive probation. I quickly took Mr. Fritzshall aside and reminded him that that was not the agreement as Fritzshall had described it to me. Fritzshall said \u2018this is all we will need to get a two year probation sentence because you have no background to speak of and you are cooperating with the State\u2019s Attorney \u2014 everything will be fine.\u2019 \u201d (Emphasis added.)\nHirsch said it was after that statement by Hughes that he began talking about his role in the attack on Betancourt. In subsequent conversations with Fritzshall, Hirsch said he was assured, \u201c \u2018don\u2019t worry about it, probation is a sure thing.\u2019 \u201d\nHirsch said he appeared for court on March 5, 1999, and learned sentencing would occur that day. According to Hirsch, Fritzshall said to him:\n\u201c[I]t might be necessary to offer the court some weekends in jail but that way I could still maintain my business career. I asked if he was worried and he said no and then I asked what was the problem with the deal with the State\u2019s Attorney and he said there was no problem \u2014 but weekends in jail should be offered as a sentencing option.\u201d\nHirsch said Fritzshall spoke with the Assistant State\u2019s Attorney and returned to speak with Hirsch:\n\u201cFritzshall informed me that the Assistant State\u2019s Attorney had changed the agreement and he will be asking the judge to give me five-years in prison. *** I asked how the agreement could be changed after I completed my part of it \u2014 I truthfully testified before the Cook County Grand Jury, I gave a complete truthful statement to the Cook County Prosecutor based on my probation agreement\u2014 how could the agreement now be changed. Mr. Fritzshall responded \u2018he can\u2019t do anything about Kevin going back on his deal because there was nothing in writing and the judge wants progress on this case today.\u2019 \u201d (Emphasis in original.)\nHirsch said Fritzshall then produced the written plea agreement\n\u201cand advised that I should sign the \u2018new agreement\u2019 because otherwise we will be on trial and the State will use the statements I gave them against me and Kenneth Blum will be testifying against me. *** I became very upset and Mr. Fritzshall told me \u2018keep it together! We still have a chance at two-years probation, or weekends in jail, but you must stay composed.\u2019 Thus I signed the agreement and pled guilty.\u201d\nHirsch said Fritzshall did not mention the earlier agreement during sentencing. This supplement to Hirsch\u2019s motion to vacate his guilty plea did not ask for a trial. It confined its request to obtaining a \u201csubstantially reduced sentence.\u201d\nOn June 3, 1999, the trial court summarily denied Hirsch\u2019s motion to vacate. This appeal followed.\nDECISION\nHirsch contends the trial court erred in denying his motion to vacate his guilty plea.\nA defendant has no absolute right to withdraw a guilty plea and bears the burden of demonstrating to the trial court the necessity of withdrawing his plea. People v. Chapple, 291 Ill. App. 3d 574, 578-79, 683 N.E.2d 1001 (1997). The denial of the defendant\u2019s motion to withdraw his guilty plea lies within the trial court\u2019s sound discretion. People v. Wilson, 295 Ill. App. 3d 228, 234, 692 N.E.2d 422 (1998). We will not disturb that decision absent an abuse of discretion. People v. Halawa, 291 Ill. App. 3d 373, 376, 683 N.E.2d 926 (1997).\nThe serious issues Hirsch presents on appeal are couched in terms of purported flaws in Fritzshall\u2019s representation. Hirsch contends Fritzshall misadvised and misled him about the admissibility of evidence at trial and misrepresented the consequences of a guilty plea. Hirsch also contends Fritzshall failed to assert Hirsch\u2019s reasonable understanding of his fulfilled plea agreement, which the prosecution allegedly breached. Hirsch finally contends Fritzshall failed to prepare adequately for the sentencing hearing and labored under a potential conflict of interest.\nThe United States Supreme Court has held \u201cthe two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.\u201d Hill v. Lockhart, 474 U.S. 52, 58, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370 (1985). Illinois courts agree. See People v. Jones, 144 Ill. 2d 242, 254, 579 N.E.2d 829 (1991); People v. Huante, 143 Ill. 2d 61, 67, 571 N.E.2d 736 (1991); People v. Brown, 309 Ill. App. 3d 599, 604 (1999).\nIn this context, the first, or performance, prong is the standard inquiry into attorney competence. Hill, 474 U.S. at 58, 88 L. Ed. 2d at 210, 106 S. Ct. at 370. The second, or prejudice prong, focuses on whether defense counsel\u2019s inadequate performance affected the outcome of the plea-bargaining process. Hill, 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370. \u201cIn other words, in order to satisfy the \u2018prejudice\u2019 requirement, the defendant must show that there is a reasonable probability that, but for counsel\u2019s errors, he would not have pleaded guilty and would have insisted on going to trial.\u201d Hill, 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370. The defendant must establish both attorney incompetence and prejudice in order to prevail on a Strickland claim. People v. Pugh, 157 Ill. 2d 1, 14, 623 N.E.2d 255 (1993).\nWe cannot ignore the trial court\u2019s meticulous Rule 402 admonitions or Hirsch\u2019s own sworn statement to the judge that he pleaded guilty freely and voluntarily. People v. Artale, 244 Ill. App. 3d 469, 475, 612 N.E.2d 910 (1993). \u201cThe trial court was entitled to evaluate defendant\u2019s current contentions in light of the contradictory record and conclude defendant would have pleaded guilty anyway because defendant believed it was in his best interests.\u201d People v. Bien, 277 Ill. App. 3d 744, 752, 661 N.E.2d 511 (1996).\nIt is apparent Hirsch asked to withdraw his guilty plea because he is in search of a more favorable sentence, \u201ca substantially reduced sentence.\u201d But \u201c[a] defendant should not be allowed to withdraw his plea when the real basis for his withdrawal is that he is dissatisfied with the length of his sentence.\u201d People v. Cunningham, 286 Ill. App. 3d 346, 350, 676 N.E.2d 998 (1997). At no time has Hirsch asked for a trial. Nor has he said he has a defense to the attempted first-degree murder charge.\nEven if we were to examine Fritzshall\u2019s performance and find it substandard, \u201c \u2018[a] guilty plea made in reliance on the incorrect advice of counsel as to the anticipated term of a sentence is still a voluntary plea.\u2019 \u201d People v. Radunz, 180 Ill. App. 3d 734, 742, 536 N.E.2d 189 (1989), quoting People v. Robinson, 157 Ill. App. 3d 622, 629, 510 N.E.2d 1050 (1987).\nIn this direct appeal, we are not required to take as true the assertions in Hirsch\u2019s affidavit. If we did, serious questions about his lawyer\u2019s competency would have been raised. The lawyer purportedly told Hirsch his statements to the prosecutor and to the grand jury could be used against him if he were to go to trial. That would be wrong advice. See 134 Ill. 2d R. 402(f); People v. Friedman, 79 Ill. 2d 341, 403 N.E.2d 229 (1980). We also would question the judgment of a lawyer allowing his client to make incriminating statements without a specific, written agreement with the prosecution.\nWe see no need to delve into the first prong of the Strickland test. It is the prejudice barrier that Hirsch cannot overcome. He received what he bargained for. He never denied guilt and, in fact, his new lawyer admitted guilt on his behalf during posttrial proceedings. This appeal really is a dressed-up motion to reduce sentence. The reality is that is all Hirsch asked for in the trial court and that is all he asks for in this court.\nAfter reviewing the record, we see no good reason to lower the sentence. Considering the sentence Hirsch could have received on the attempted first-degree murder charge, we believe justice was done in this case.\nIn addition to his ineffective assistance contentions, Hirsch claims the prosecution breached an oral plea agreement which guaranteed him probation.\nWhen a guilty plea and its attendant surrender of constitutional rights rest on a prosecution promise, such a promise must be fulfilled. See People v. Starks, 106 Ill. 2d 441, 452, 478 N.E.2d 350 (1985); People v. Gott, 43 Ill. App. 3d 137, 141, 356 N.E.2d 1102 (1976). If the prosecution breaches its promise, the defendant can withdraw his guilty plea and proceed to trial. People v. Thomas, 246 Ill. App. 3d 708, 718, 616 N.E.2d 695 (1993).\nHere, the only evidence of a prosecution promise comes from Hirsch\u2019s affidavit in which he said Hughes \u201cmight recommend a jail sentence, but I also might receive probation.\u201d (Emphasis added.) This comment does not constitute a promise to recommend probation. If anything, it is a promise to do exactly what the prosecution did at sentencing \u2014 recommend a jail sentence. Additionally, in his responses to the court\u2019s Rule 402 questions, Hirsch said he was not forced, threatened, or induced by promises, outside the March 5, 1999, written plea agreement, to plead guilty. Again, we cannot ignore Hirsch\u2019s own words.\nHirsch also contends Fritzshall was laboring under a conflict of interest because the lawyer was involved in a civil proceeding related to the murder solicitation. We lack a sufficiently developed record to investigate this issue.\nCONCLUSION\nThe trial court did not abuse its discretion in denying Hirsch\u2019s motion to vacate his guilty plea. We affirm.\nAffirmed.\nCAHILL, EJ., and CERDA, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Allan A. Ackerman, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and Vincent J. Pagano, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REMBERT HIRSCH, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 99 \u2014 2378\nOpinion filed March 8, 2000.\nAllan A. Ackerman, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, William L. Toffenetti, and Vincent J. Pagano, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0174-01", "first_page_order": 194, "last_page_order": 201 }