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07/30/97 PEOPLE STATE ILLINOIS v. NEDAL HALAWA

July 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NEDAL HALAWA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 96 C2 20190. Honorable Susan Ruscitti-Grussel, Judge Presiding.

Released for Publication September 11, 1997.

The Honorable Justice Leavitt delivered the opinion of the court. Gordon and Cahill, JJ. concur.

The opinion of the court was delivered by: Leavitt

The Honorable 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, 164 Ill. Dec. 151, 582 N.E.2d 714 (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 ...


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