People v. Halawa

                                             THIRD DIVISION
                                             JULY 30, 1997
No. 1-96-3445

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from the
                                        )    Circuit Court of
          Plaintiff-Appellee,           )    Cook County.
                                        )
          v.                            )    No. 96 C2 20190 
                                        )
NEDAL HALAWA,                           )    Honorable
                                        )    Susan Ruscitti-
          Defendant-Appellant.          )    Grussel, 
                                        )    Judge Presiding.
     JUSTICE LEAVITT delivered the opinion of the court:
     On March 13, 1996, defendant, Nedal Halawa, age 17, pleaded
guilty to the charge of unlawful use of a weapon and was
sentenced to one year of probation.  On June 13, 1996, the trial
court denied defendant's motion to vacate his guilty plea. 
Defendant now contends that the trial court erred by denying that
motion.  We reverse and remand.
     In January, 1996, defendant's father called the Park Ridge
police department and said that he wanted to surrender a shotgun. 
He was instructed to bring the gun to the station.  Father and
son then brought the gun to the station.  Later that day, a
police officer telephoned the defendant's father.  The officer
said he wanted more information about the gun, but that no one
would be charged with a crime.  The next day, an officer called
again asking that the parties return to the station.  Defendant
went to the police station without his father who had another
commitment.  
     At the police station, defendant admitted that he possessed
the shotgun.  Officer Lawrence Sprandel then charged defendant
with unlawful use of a weapon, possession of a firearm without a
firearm owner's identification card, and possession of ammunition
without a firearm owner's identification card.  Defendant's
family retained their real estate attorney to counsel and
represent defendant.  On that attorney's advise, defendant
entered into a plea agreement with the prosecution.  In accord
with that agreement, defendant waived a preliminary hearing and
pleaded guilty to the charge of unlawful use of a weapon.  
Defendant's counsel filed no motions and there is no record
reflecting a tender of discovery. 
     Providing a factual basis for defendant's plea, the State
informed the court that if it were to proceed to trial, the
evidence would show that:
     "on January 9, 1996 the defendant knowingly possessed a
     gun, a double barrelled shotgun, sawed off shotgun with
     a barrel being less than 18 inches in length, and that
     on that same date, the defendant made an oral and
     written admission to Park Ridge Police officers as to
     the same."
In the course of defendant's plea, defendant's father interrupted
to advise the trial judge that an officer had taken defendant's
statement without an attorney present.  The trial judge then
briefly passed the matter to allow defendant's father and
defendant to consult with counsel.  Upon resumption of the
matter, the trial judge paused in giving the defendant his
admonishments after the father expressed concern with the
procedure then taking place.  The judge stated:
     "Sir, it's very important that you understand what the
     procedures are.  Whether or not there is a legal
     defense, whether or not there is [sic] any preliminary
     motions that should be filed, again, if you wish to
     speak further with your son's attorney?"
After defendant's father and defendant consulted with the
attorney, defendant informed the trial court that he freely and
voluntarily signed the document waiving his right to a jury
trial.  The trial court then sentenced defendant to one year of
probation for the felony offense.  The defendant had no prior
criminal record.  The State presented no evidence in aggravation. 
The record here gives us notice of the summary nature of the
proceeding.    
     On June 13, 1996, represented by new counsel, defendant
moved to vacate his guilty plea.  Defendant contended that his
earlier plea was involuntary and made with an inadequate
understanding of the nature and consequences of pleading guilty. 
He also contended that he was entrapped by the police, who
guaranteed him immunity from prosecution and then charged him
with possession of the gun.  This motion was denied.  
     Defendant now contends that the trial judge erred in denying
the motion because the evidence supported an entrapment defense
and because the ends of justice would be better served by
allowing a trial.  We will not disturb the trial court's decision
to deny a motion to withdraw a plea absent an abuse of
discretion.  People v. Davis, 145 Ill. 2d 240, 244 (1991).  The
trial court should allow the withdrawal of a plea where it
appears that the plea was based on a misapprehension of the facts
or law, that the defendant has a defense worthy of consideration,
or where the ends of justice would be better served by trial. 
Davis, 145 Ill. 2d  at 244, citing People v. Morreale, 412 Ill. 528, 531-32 (1952).
     Defendant first contends that he had an entrapment defense
worthy of consideration.  That defense requires that:
     "(1) the concept of committing the offense originated
     with the State, (2) which actively encouraged the
     defendant to commit the offense, (3) for the purpose of
     obtaining evidence for his prosecution, and (4) the
     defendant was not predisposed to commit the offense." 
     People v. Lozada, 211 Ill. App. 3d 817, 821 (1991).    
Defendant, who contends that the police induced him to return to
the station and give a statement that he owned the gun, has not
shown, and cannot establish that he had an entrapment defense
worthy of consideration.  He cannot show that the concept of
committing the offense of possessing the weapon originated with
the State where his father informed the police that he had a gun
he wished to surrender.  
     Defendant's contention that the ends of justice would have
been better served by a trial has more merit.  See People v.
Jameson, 387 Ill. 367 (1944).  He suggests that his original
counsel was ineffective and that his plea was neither voluntary
nor consensual.  Defense counsel was ineffective if his
performance was deficient and that deficiency prejudiced the
defendant.  Strickland v. Washington, 466 U.S. 668, 687, 82 L. Ed. 2d 864, 104 S. Ct. 2052 (1984).  
     In considering defendant's claim of ineffective assistance
of counsel under Strickland, we must examine the "fundamental
fairness of the proceeding and consider whether * * * the result
of the particular proceeding is unreliable because of a breakdown
in the adversarial process that our system counts on to produce
just results."  People v. Shelton, 281 Ill. App. 3d 1027, 1036-37
(1996), citing Strickland, 466 U.S.  at 696.  "At a minimum,
defense counsel must act as a true advocate for the accused,
subjecting the prosecutor's case to meaningful adversarial
testing."  Shelton, 281 Ill. App. 3d at 1037, citing United
States v. Cronic, 466 U.S. 648, 656, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984).  
     Our supreme court has recognized that "[u]nder exceptional
circumstances, the two-part Strickland test need not be
satisfied."  People v. Foster, 168 Ill. 2d 465, 481 (1995),
citing People v. Hattery, 109 Ill. 2d 449, 461 (1985).  "When
counsel 'entirely fails to subject the prosecution's case to
meaningful adversarial testing, then there has been a denial of
Sixth Amendment rights that makes the adversary process itself
presumptively unreliable.' "  Foster, 168 Ill. 2d  at 481, quoting
Cronic, 466 U.S.  at 659.  Prejudice is presumed in such
situations.  Foster, 168 Ill. 2d  at 481.            
     Reviewing the specific facts of this cause and the totality
of defense counsel's conduct (See People v. Nilsson, 230 Ill.
App. 3d 1051, 1055 (1992)), we find this to be an exceptional
case in which the defendant's counsel's performance amounted to
no representation at all.  Foster, 168 Ill. 2d  at 481.
Defendant's lawyer did not file a motion for discovery.  There is
no indication that the State ever tendered discovery to
defendant.  No motion to quash arrest and suppress the
defendant's statements was filed.  Recognizing that defense
counsel's decision whether to file a motion is a matter of trial
strategy to which we give great deference, we note here that no
motions were filed.  People v. Bryant, 128 Ill. 2d 448, 458
(1989).  The voluntariness of the defendant's statement to the
police was unchallenged by defendant's lawyer.  Counsel waived
his client's right to a probable cause determination.  There was
neither a preliminary hearing nor grand jury proceeding.  
     Notwithstanding the fact that the trial court admonished
defendant as to his rights before he plead guilty, when
considering the fundamental fairness of the proceeding, we find
that defense counsel's representation was deficient and
prejudiced defendant.  The record reveals the summary nature of
the proceeding below.  In light of that, we find that defendant's
counsel failed to subject the prosecution's case to meaningful
adversarial testing, and that defendant was thereby prejudiced. 
See Foster, 168 Ill. 2d  at 481; Hattery, 109 Ill. 2d  at 461. 
Defense counsel never tested the process which subjected
defendant to criminal jeopardy.  Counsel entirely abandoned
employment of any of the procedural safeguards to which defendant
was entitled.
     We weigh in our decision public policy concerns.  Public
policy favors safe storage and disposal of guns to "protect
society and potential victims of nonaccidental and accidental
deaths and injuries resulting from * * * weapons and ammunition." 
See Kromeich v. the City of Chicago, 258 Ill. App. 3d 606, 612
(1994) (discussing firearms registration ordinance).  Defendant's
father sought police involvement in discarding a dangerous
weapon.  Public policy favors this method of weapon disposal.    
     Accordingly, we reverse the judgment of the trial court
denying defendant's motion to vacate and remand this cause for
proceedings consistent with this order.    
     Reversed and remanded.            
     Gordon and Cahill, JJ. concur.