                                         2014 IL App (3d) 130583

                               Opinion filed December 8, 2014
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2014

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 13th Judicial Circuit,
                                                       )       Grundy County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-13-0583
            v.                                         )       Circuit No. 12-CM-959
                                                       )
     DANIEL HOLM,                                      )       Honorable
                                                       )       Robert C. Marsaglia,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Presiding Justice Lytton and Justice Holdridge concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant, Daniel Holm, was charged with wilful obstruction or interference with lawful

     taking of wild animals (hunter harassment) under section 2(a) of the Hunter and Fishermen

     Interference Prohibition Act (Act) (720 ILCS 125/2(a) (West 2010)). Daniel, appearing pro se,

     entered a plea of guilty. After pleading guilty, Daniel hired private counsel, who filed a motion

     to withdraw the guilty plea. Counsel argued that Daniel was not guilty of hunter harassment and

     had pled guilty under duress. After sentencing, counsel filed an amended motion to withdraw

     the guilty plea, raising additional arguments that section 2(a) of the Act was unconstitutional as a

     violation of procedural and substantive due process. The court denied the motion in a written
     order. Daniel appeals, arguing the trial court abused its discretion in denying his motion to

     withdraw his guilty plea. We reverse and remand.

¶2                                                 FACTS

¶3          In December 2012, Daniel and his father, Adam Holm, were arrested and charged under

     section 2(a) of the Act, which applies to a person who "[w]ilfully obstructs or interferes with the

     lawful taking of wildlife or aquatic life by another person with the specific intent to prevent that

     lawful taking." 720 ILCS 125/2(a) (West 2010). Daniel defended pro se. He reached a plea

     agreement with the State, under which he would plead guilty and sentencing would be capped at

     one year of conditional discharge.

¶4          Meanwhile Adam's case proceeded to a jury trial, where he, too, defended pro se. The

     jury found Adam guilty. On appeal, this court has reversed Adam's conviction, finding that the

     evidence was insufficient to convict because he met the statutory exemption for "tenants ***

     exercising their legal rights to the enjoyment of land." 720 ILCS 125/2 (West 2010); People v.

     Holm, 2014 IL App (3d) 130582.

¶5          At the guilty plea hearing in Daniel's case, the court admonished him under Illinois

     Supreme Court Rule 401(a) (eff. July 1, 1984), as to his waiver of counsel and under Illinois

     Supreme Court Rule 402 (eff. July 1, 2012), as to his plea. Noting the unusual circumstances of

     Daniel's case, the court requested a factual basis from the prosecutor:

            "And giving the factual basis, obviously, we're all aware the codefendant

            [Adam] went through a jury trial yesterday where the codefendant was on

            trial.

                [Daniel] testified at some length in that trial. So, obviously, I know

            some facts based on his sworn testimony of yesterday."


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¶6          The State recited a factual basis:

            "If the State were to call witnesses, the State would call Alexander Kerr,

            who would state that on or around December 2nd of 2012, while hunting

            property on or around 3000 North Winterbottom Road, the defendant

            interfered with Mr. Kerr's lawful taking of wild white tail deer, with the

            intent to drive and disturb white tail deer for the purpose of interfering

            with Mr. Kerr's lawful taking."

     Daniel agreed that if Kerr were called to testify, he would testify to the facts presented by the

     State. The court found Daniel's plea voluntary and the State's factual basis sufficient. It

     accepted Daniel's plea, scheduled a sentencing hearing, and ordered a presentence investigation.

¶7          Prior to sentencing, Daniel hired private counsel. The attorney filed a motion to

     withdraw the guilty plea, arguing that Daniel was not guilty of hunter harassment and that he

     pled guilty under duress to avoid jail time because he was supporting his grandmother and

     disabled brother. The court denied the motion. 1

¶8          The court held a joint hearing to sentence both Daniel and Adam. In relation to Daniel's

     sentencing, the court agreed to take judicial notice of the events testified to at Adam's jury trial.

     Those facts are explained in more detail in our opinion in Adam's case, Holm, 2014 IL App (3d)

     130582. Briefly, Daniel and Adam were living at Adam's mother's home in rural Grundy

     County. The Holm property shared a boundary line with land owned by Alexander Kerr's in-

     laws, where Kerr had hunted for at least 10 years. In December 2012, Kerr and conservation

            1
                The transcript of the hearing on Daniel's motion is not included in the record on appeal.

     It is unclear whether the court dismissed the motion as untimely—as it was filed prior to

     sentencing—or denied it on its merits.


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       officer Dave Wollgast attempted a hunt at the in-laws' property. While remaining at all times on

       the Holm property, Daniel and Adam interfered with the hunt by making noise in various ways.

       Wollgast arrested Daniel and Adam for hunter harassment.

¶9            The court in the present case considered the evidence in aggravation and mitigation and

       the Holms' history of harassment toward their neighbors and, in particular, toward the Kerrs.

       The court decried defendant's behavior, which

              "instead of just being really annoying and obnoxious became a criminal

              offense, because the irony of it [was] it had to do with hunting, although

              hunting really [was not] the issue here. *** But by interfering with the

              deer hunting on that day, it crossed into a criminal offense that didn't

              otherwise exist up until now."

¶ 10          The court sentenced Daniel to 12 months' conditional discharge and a $250 fine. In

       addition, the court ordered that Daniel not threaten, harass, or intimidate Kerr, Kerr's friends and

       family, surrounding land owners, or Deer Lake Dam Association members.

¶ 11          After sentencing, Daniel filed an amended motion to withdraw his guilty plea, adding

       additional arguments to those raised in his original motion. The amended motion argued that the

       Act violated procedural and substantive due process under the Illinois and United States

       Constitutions. The court denied the motion in a written order. Daniel appeals the denial of his

       motion to withdraw his guilty plea.

¶ 12                                               ANALYSIS

¶ 13          Daniel contends that his motion to withdraw should have been granted because the

       factual basis for the plea was insufficient and the hunter harassment statute is unconstitutional on

       multiple grounds.


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¶ 14           Leave to withdraw a plea of guilty is not granted as of right but only as required to

       correct a manifest injustice under the facts of the particular case. People v. Pullen, 192 Ill. 2d

       36, 39 (2000). The decision whether to grant leave to withdraw is left to the discretion of the

       trial court. Id. at 39-40. The trial court's decision will not be disturbed on appeal "unless it

       appears that the guilty plea was entered through a misapprehension of the facts or of the law, or

       that there is doubt of the guilt of the accused and the ends of justice would better be served by

       submitting the case to a trial." People v. Jamison, 197 Ill. 2d 135, 163 (2001). The trial court

       has a duty to ensure that the conduct of a defendant is sufficient to sustain the charge to which

       the defendant is pleading guilty. People v. Edmonds, 15 Ill. App. 3d 1073, 1079 (1973).

¶ 15           Considering the specific facts of this case, we find that Daniel should have been allowed

       to withdraw his guilty plea. We found in Adam's case that the conduct engaged in by Adam and

       Daniel was protected by the statutory exemption for tenants. Therefore, Daniel's conduct did not

       constitute hunter harassment. The facts presented at sentencing and those presented at Adam's

       jury trial, of which the trial court in the present case took judicial notice, establish that Daniel

       resided on the property where he allegedly committed hunter harassment. In the companion case

       of Holm, 2014 IL App (3d) 130582, this court established that the plain language of the hunter

       harassment statute exempts from its sweep the legal use of land by landowners and tenants.

¶ 16           First, Daniel was defending pro se; second, he pled guilty because he and his father, who

       had been convicted based on the same conduct, were the only persons in the household who

       generated income, and his grandmother and disabled brother would suffer if both breadwinners

       were incarcerated; third, after pleading guilty, Daniel hired private counsel, who moved to

       withdraw the plea, arguing that Daniel had committed no crime; and, most importantly, fourth,

       based upon the statutory language and our holding in Holm, 2014 IL App (3d) 130582, Daniel


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       pled guilty to a noncriminal act. We find that under the facts involved in the present case, the

       interests of justice demand that Daniel be allowed to withdraw his plea. A contrary decision

       would result in "manifest injustice." Pullen, 192 Ill. 2d at 39.

¶ 17          Because our finding is dispositive, we do not reach any constitutional issue that Daniel

       may have raised. See In re E.H., 224 Ill. 2d 172, 178 (2006) (cases should be resolved on

       nonconstitutional grounds when possible).

¶ 18          We remand for the trial court to allow Daniel leave to withdraw his guilty plea and to

       enter judgment in his favor.

¶ 19                                             CONCLUSION

¶ 20          The judgment of the circuit court of Grundy County is reversed. The cause is remanded

       for further proceedings consistent with this decision.

¶ 21          Reversed and remanded.




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