Kenny Smith, three times convicted in Burrito Express murder, says he was offered plea deal he won’t take because he’s innocent

Letters from a prisoner serving decades for the murder of a McHenry restaurateur reveal that attorneys have discussed a deal that could get him out of prison within the next five years.

Kenneth Smith, 44, of Park City, was tried and convicted three times of first-degree murder and attempted armed robbery in the 2001 murder of Raul Briseno, owner of Burrito Express. After each conviction, Smith was sentenced to 67 years in prison.

In March, a federal judge granted Smith’s third appeal, calling the state’s case against Smith “extremely thin” and his conviction a “miscarriage of justice” in her 70-page ruling. McHenry County prosecutors, who said they stand by their case against Smith, have the option to retry him for a fourth time or release him.

From prison, Smith wrote letters to a Northwest Herald reporter, that although it was not officially presented to him in writing, former McHenry County Assistant State’s Attorney Michael Combs had discussed with his attorneys that if he pleaded guilty to murder, he could be re-sentenced to 20 years in prison. (Combs has since been fired from the state’s attorney’s office on an unrelated matter.)

Smith said McHenry County State’s Attorney Patrick Kenneally also made a verbal offer that if he pleaded guilty he could be re-sentenced to 25 years.

Prosecutors and Smith’s defense attorneys declined to comment on whether an offer was discussed.

Either offer would get Smith released from prison far sooner than the roughly 47 years left on his sentence if he is retried and again convicted.

Smith wrote that he would turn down any offer that required him to plead guilty.

“Simply put, I would rather die in prison before accepting a plea to a crime that I or others charged did not commit,” Smith said in one of the letters.

Smith, currently housed at Lawrence Correctional Center in Sumner, has never wavered in his denial of the murder.

“I have maintained my innocence throughout this entire ordeal and have endured three trials with a possible fourth trial looming if the appellate courts do not intervene to prevent this unjust insanity committed against us, my family included, by the hands of the McHenry County State’s Attorney’s office,” he wrote. “When is enough, enough?”

The Illinois Attorney General has appealed Smith’s recent win. Oral arguments are set for 9:30 a.m. Nov. 12, at the Court of Appeals for the Seventh Circuit. Arguments will be heard by attorneys from the Attorney General’s Office and Smith’s attorneys from Jenner and Block of Chicago. Appearances will be by phone or Zoom.

At each trial, Smith’s attorneys and others have made statements implicating Russell “Rusty” Levand, of McHenry, as the shooter.

Levand, 37, was never charged in the Briseno murder, however, he has been convicted over the years on various drug, theft and burglary charges, according to McHenry County records.

Currently, Levand is being held in McHenry County jail on $250,000 bond on charges of drug-induced homicide, according to the jail website.

Smith was convicted along with three other defendants. Justin Houghtaling, 37, of Burlington, Wisconsin, pleaded guilty in 2001 to first-degree murder and was sentenced to 20 years in prison. Jennifer McMullan, of Round Lake, was convicted in 2002 of murder and attempted armed robbery, and sentenced to 25 years in prison. She currently is appealing her sentence. David Collett, 37, who at the time lived in Spring Grove, pleaded guilty to aggravated armed robbery in September 2001 and was sentenced to five years.

In his letters, Smith said “all leads and evidence supports that the DeCicco party committed this brutal crime.”

The DeCicco party is in reference to Levand as the alleged shooter; his girlfriend, who has since died, Susanne “Dallas” DeCicco, as the get-away driver; and her cousin Adam Hiland of Wonder Lake.

According to trial testimony, about 7:15 p.m. March 6, 2001, two masked men entered the restaurant in an attempted armed robbery. Briseno was shot after he and a co-worker chased the masked men out to the parking lot.

Rumors have swirled McHenry County for years over who committed the murder.

Members of the DeCicco group have made alleged confessions to friends, family and police: Levand allegedly made a confession to another jail inmate, according to trial testimony.

Additionally, DeCicco told friends, family members and police that it was Levand who pulled the trigger that night, the Northwest Herald has reported. As video from a police interview with the Illinois State Police shows DeCicco, clearly distraught, saying Levand was the shooter and Smith had nothing to do with it. However, according to court testimony, these statements also have been retracted.

In his letters, Smith said he and the others were at a friend’s house on Waukegan Road in McHenry that evening drinking and watching movies. He said they never went to the restaurant that night.

It was Houghtaling who told police they were there and Smith was the shooter.

However, defense attorneys argued at trial that physical evidence at the scene does not connect to Smith and the gun believed to have been used in the shooting has never been definitively matched to the fatal bullet recovered at the scene. Attorneys also argued that members of the so-called “DeCicco crew” knew details of the crime which were not known to the public at the time of their arrests, according to trial testimony.

Smith empathizes with the Briseno family and hopes they find closure and learn the truth of what happened that night. He said neither him nor anyone convicted in the murder knew the DeCicco group as they were younger and lived in McHenry.

“I believe my family, Raul Briseno’s family and the citizens of McHenry County have suffered for far too long,” he wrote.

Briseno’s family rejects Smith’s claims of innocence and each time they must endure another trial it is like “salt in the wounds,” his daughter Alexandra Strohmaier of Algonquin told the Northwest Herald in April.

Briseno, 34, was a self-made business man who came to the U.S. with his wife in 1987.

One of 11 siblings, Briseno went on to own three restaurants in Lake and McHenry counties, and help his brothers and sisters build their own restaurant businesses, family members said told the Northwest Herald.

Today, there are eight restaurants in the Lake and McHenry County area and Chicago owned by Raul Briseno Sr.'s siblings and inspired by their late brother.

His son, Raul Briseno Jr. of Schaumburg said his father was a "people person," a hardworking man who died with the calluses on his hands to prove it. He was a loving man who "carried himself well" and took care of everyone, including members of the Hispanic community.

Smith has a status hearing set in McHenry County courthouse for Dec. 2. Levand’s next court appearance is Thursday.