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July 30, 1997


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 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, 107 N.E.2d 721 (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, 156 Ill. Dec. 261, 570 N.E.2d 737 (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, 56 N.E.2d 790 (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, 80 L. Ed. 2d 674, 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, 217 Ill. Dec. 473, 667 N.E.2d 562 (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 "under exceptional circumstances, the two-part Strickland test need not be satisfied." People v. Foster, 168 Ill. 2d 465, 481, 214 Ill. Dec. 244, 660 N.E.2d 951 (1995), citing People v. Hattery, 109 Ill. 2d 449, 461, 94 Ill. Dec. 514, 488 N.E.2d 513 (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, 172 Ill. Dec. 634, 595 N.E.2d 1304 (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, 132 Ill. Dec. 415, 539 N.E.2d 1221 (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, 196 Ill. Dec. 748, 630 N.E.2d 913 (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.


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