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                                Appellate Court                             Date: 2016.12.07
                                                                            08:47:41 -06'00'




                  People v. Dominguez, 2016 IL App (2d) 150872



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            JOSE A. DOMINGUEZ, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-15-0872



Filed              October 18, 2016



Decision Under     Appeal from the Circuit Court of McHenry County, No. 12-CF-230,
Review             13-CF-219; the Hon. Sharon L. Prather, Judge, presiding.



Judgment           Affirmed.



Counsel on         Francisco J. Botto, of Botto Gilbert Gehris Lancaster, P.C., of Crystal
Appeal             Lake, for appellant.

                   Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M.
                   Bauer and Marshall M. Stevens, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE BIRKETT delivered the judgment of the court, with
                   opinion.
                   Justice Burke concurred in the judgment and opinion.
                   Justice Hutchinson specially concurred, with opinion.
                                              OPINION

¶1       Defendant, Jose A. Dominguez, appeals from the denial of his petition for postconviction
     relief. He asserted that, prior to his guilty pleas in two cases, counsel had failed to adequately
     discuss the possible adverse immigration consequences of the pleas and that as a result, under
     Padilla v. Kentucky, 559 U.S. 356 (2010), counsel was ineffective. Defendant does not
     challenge the court’s ruling that his petition was too late as to the earlier of the two cases. We
     affirm the petition’s denial, holding that, under the branch of the Padilla standard that applies
     when “the law [was] not succinct and straightforward,” counsel here needed do no more than
     advise defendant that the pleas might “carry a risk of adverse immigration consequences.”
     Padilla, 559 U.S. at 369. We conclude that the record shows that defendant was adequately
     alerted to the possibility of adverse immigration consequences.

¶2                                        I. BACKGROUND
¶3       Defendant sought relief from the guilty pleas he entered in two cases, No. 12-CF-230 and
     No. 13-CF-219. The issues in the appeal arise primarily from the second case, in which a grand
     jury returned a four-count indictment against defendant.
¶4       The charges in that second case were one count of armed violence (720 ILCS 5/33A-2(a)
     (West 2012)) predicated on aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) (battery
     causing bodily harm on a public way, the weapon being a baseball bat—a category III
     weapon); two counts of aggravated battery (720 ILCS 5/12-3.05(a)(1), (c) (West 2012))
     (battery causing great bodily harm, battery on a public way); and one count of mob action (720
     ILCS 5/25-1(a)(1) (West 2012)) (knowing use of force or violence by two or more persons to
     inflict injury). The charges related to an incident that occurred on January 26, 2013, in which
     Patrick R. Heubner was the victim.
¶5       The first case, No. 12-CF-230, arose from a March 13, 2012, incident in which one person
     in a group of three threw a rock that went through a car window, striking an occupant of the
     car. In that incident, defendant was charged with four counts of mob action, one count of
     criminal damage to property under $300 (720 ILCS 5/21-1(a)(1), (d)(1)(B) (West 2012)), and
     one count of endangering the life of a child—a passenger in the car (720 ILCS 5/12C-5(a)
     (West 2012)).
¶6       Defendant had retained counsel—the same person—in both cases.
¶7       On December 3, 2012, defendant entered a guilty plea in case No. 12-CF-230 under a fully
     negotiated agreement; he pled guilty to criminal damage to property, with an agreed sentence
     of one year’s conditional discharge and a fine of $500. Defendant did not receive an
     admonition of possible immigration consequences in that case.
¶8       On June 13, 2013, after a conference under Illinois Supreme Court Rule 402 (eff. July 1,
     2012), defendant entered a guilty plea in case No. 13-CF-219. The State agreed to dismiss all
     counts except the first, armed violence. It further agreed not to petition to revoke defendant’s
     conditional discharge. The court told defendant that armed violence was “a Class 2 felony with
     a sentencing range of three to seven years ***, fines not to exceed $25,000, and two years
     mandatory supervised release,” and it further admonished him that there was no agreement
     about his sentence. According to the factual basis, defendant, while on a public way, struck



                                                 -2-
       Heubner with a baseball bat, causing him injury. Again, the court did not admonish defendant
       of the possibility of immigration consequences of his plea.
¶9         Defendant’s sentencing hearing took place on August 7, 2013. The State presented
       evidence of defendant’s affiliation with the Latin Kings: he wore gang colors, had been
       photographed making gang signs, and had gang-associated tattoos. The court noted that
       defendant had “one of the worst past histories that the Court has seen based upon the amount of
       arrests and contacts.” The court imposed two years’ intensive probation, 180 days in jail, 200
       hours of public-service work, and other conditions.
¶ 10       On January 29, 2015, defendant filed a petition for relief under the Post-Conviction
       Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). New retained counsel filed the petition
       for him; the petition largely duplicated an earlier petition for postjudgment relief that his
       immigration counsel had filed. Defendant stated that he was born in Mexico but that his
       parents had brought him to the United States when he was eight months old and he had not
       been to Mexico since. As a result of his armed-violence conviction, he was facing deportation.
       He asserted that, because his guilty-plea counsel had failed to advise him that the conviction
       would likely result in his deportation, counsel’s assistance had fallen below the effectiveness
       standard set out in Padilla.
¶ 11       The petition was ambiguous as to which of the two branches of the Padilla standard
       defendant was claiming applied to guilty-plea counsel. Padilla addresses how the first prong of
       the ineffective-assistance-of-counsel standard in Strickland v. Washington, 466 U.S. 668
       (1984), is applied to a case involving a noncitizen facing deportation as a result of a guilty plea.
       Under Strickland, a claim of ineffective assistance of counsel must satisfy two prongs. First,
       counsel’s representation must have fallen “below an objective standard of reasonableness.”
       Strickland, 466 U.S. at 688. Second, there must have existed “a reasonable probability that, but
       for counsel’s unprofessional errors, the result of the proceeding would have been different.”
       Strickland, 466 U.S. at 694. In Padilla, the Supreme Court held that, to provide effective
       assistance to a noncitizen defendant, defense counsel must satisfy a limited but positive duty to
       advise the defendant of the immigration consequences of a guilty plea. The specifics of the
       duty depend on how clear it is that the conviction will result in deportation. “When the law is
       not succinct and straightforward *** a criminal defense attorney need do no more than advise a
       noncitizen client that pending criminal charges may carry a risk of adverse immigration
       consequences.” Padilla, 559 U.S. at 369. However, “when the deportation consequence is
       truly clear ***, the duty to give correct advice is equally clear.” Padilla, 559 U.S. at 369. In
       Padilla, section 1227(a)(2)(B)(i) of title 8 of the United States Code (8 U.S.C.
       § 1227(a)(2)(B)(i) (2006)) explicitly made the defendant deportable as a result of his guilty
       plea, and thus defense counsel had an affirmative duty to correctly advise the defendant of that
       consequence. Padilla, 559 U.S. at 369-71. Defendant here asserted in his petition that counsel
       never warned him of the “possible deportation consequences of pleading guilty.” Instead,
       counsel told him that his plea in the armed-violence case would allow him to return home. He
       further asserted that “but for his counsel’s assurances he would be released after the criminal
       proceedings ended, [he] would not have pled guilty,” and he “maintain[ed] his innocence to
       both offenses.” He did not elaborate on his claim of innocence or his chances of success.
       Attached to the petition was a letter to the court from defendant. It stated that he entered the
       plea because he was told he would be able to go home on intensive probation and that, had he



                                                    -3-
       known that the conviction would make him deportable, he would have insisted on going to
       trial.
¶ 12        The State filed a response to the petition, asserting, based on guilty-plea counsel’s
       affidavit, that counsel had spoken to defendant about the deleterious immigration
       consequences of the conviction. Defense counsel averred that he knew that defendant “had an
       immigration hold” (elsewhere called an “ICE hold,” because such a hold is implemented at the
       request of Immigration and Customs Enforcement (ICE)) before the negotiated plea and was
       aware that there would be possible adverse immigration consequences of the plea. He “advised
       and warned [defendant] about the potential consequences and possible outcomes of a plea of
       guilty to *** Armed Violence.” Neither the response nor the affidavit specifically detailed
       what counsel had told defendant.
¶ 13        The matter went to an evidentiary hearing. Defendant testified that he was 21 years old and
       had been in the McHenry County jail for a year and nine months on an ICE hold. He was not a
       United States citizen but had arrived in the United States when he was eight months old. He
       had never been outside the United States since his arrival. At some time after his arrest in case
       No. 13-CF-219 but before his guilty plea, he “talked to a representative of ICE, [who] faxed
       [him] a paper saying [that he] had an ICE hold.” “[His] understanding was [that the hold] had
       to do with [his] immigration status.” The representative also asked him about his “affiliation,”
       meaning his gang affiliation. He was in custody in the McHenry County jail when his family
       retained guilty-plea counsel to represent him. In their first meeting, via video link, he and
       counsel discussed the charges and the ICE hold. Counsel told him “to not worry” about the
       hold, a discussion that took a few seconds in a conversation lasting about half an hour.
       Defendant described each meeting that he had had with counsel; no further discussion of
       immigration consequences took place until counsel spoke to him in a holding cell to tell him
       that counsel and the State had a possible plea agreement. By his understanding, the terms
       included intensive probation, finishing his GED, and participating in anger-management
       classes. At that time, defendant asked what was going to happen with his ICE hold if he entered
       the plea. Counsel told him “to not worry about it, everything’s going to be fine. I would be
       home.” Defendant further testified that he had told counsel that he was innocent but that
       counsel said that he did not believe him. No more meetings took place before defendant’s plea.
       On cross-examination, he estimated that counsel had told him three times not to worry about
       the ICE hold.
¶ 14        Immediately after defendant’s sentencing, his custody was “switched over to” ICE, and a
       deportation hearing was scheduled. Defendant lost at the hearing and was on his “second
       appeal.”
¶ 15        At no time did defendant testify that he was unaware that the conviction would make him
       deportable. Further, he did not testify to the position that he took in his letter to the court: that
       he entered the plea because he was told he would be able to go home on intensive probation
       and that, had he known that the conviction would make him deportable, he would have insisted
       on going to trial.
¶ 16        Defendant’s immigration attorney testified on his behalf. She said that a conviction of
       armed violence would make a person “eligible for mandatory deportation.” After his
       conviction, defendant could have waived his right to a hearing, and he would have been
       deported in about six weeks.


                                                     -4-
¶ 17       Guilty-plea counsel testified for the State. He said that, when he had a client in custody and
       on an ICE hold, he would “try to balance the situation of custody as opposed to facing ICE
       depending on what the charge is and depending on what the likelihood is of ICE maintaining
       their hold.” Asked, “Do you inform your clients that there could be negative or adverse
       consequences by entering a plea of guilty[?],” counsel answered, “I certainly try to.” Asked if
       he spoke to defendant about “potential Immigration consequences,” counsel said, “Yes.”
       Asked specifically if he advised defendant that there would be possible adverse immigration
       consequences of pleading guilty, counsel responded:
                    “Well, we had—[defendant] was between a rock and a hard place. The offer was
                for intense probation with time served. The alternative would be to go to trial on
                a—what would have been a mandatory for him because of his record and because of the
                gang activities.
                    And we discussed the probability of winning at trial as opposed to taking the plea.
                And I advised him that if he took the plea, he would at least be fighting ICE on
                probation as opposed to a person who is in the Department of Corrections.
                    He had zero kind of choices. It was not a good situation.”
¶ 18       Asked, “What specifically did you advise [defendant] on in regards to the adverse possible
       consequences of Immigration?” counsel responded, “I’m not sure so much as far as the
       adverse, but as a positive to pleading guilty and being on probation as opposed to going to trial.
       And my—My feeling was, as a somewhat experienced defense attorney, that they would have
       convicted him.” Counsel continued to describe what he thought would have happened if
       defendant had gone to trial, and he expressed hope that immigration reform might come to
       defendant’s aid. Asked if defendant understood what counsel told him, counsel said, “Yes.
       He’s a sharp kid.” Asked if he had ever told defendant not to worry about his immigration
       status, counsel responded: “No, I never said don’t worry about it. I said let’s take one thing at a
       time. First let’s see where we’re at with the case.” He said that “[i]t would have been several”
       times that he talked to defendant about immigration.
¶ 19       Counsel said that defendant had initially maintained his innocence in the armed-violence
       incident and that, initially, counsel thought that he could call witnesses who would support
       defendant’s claim. However, as discovery unfolded, he concluded that “we would not be able
       to get a not guilty verdict.” He said that he never would tell a client that he did not believe him;
       he would tell a client that “you try the facts.” He did not recall ever telling defendant not to
       worry—that he would be able to go home.
¶ 20       The State repeatedly tried to get counsel to say that he had advised defendant that he was at
       risk of deportation; counsel unequivocally testified that he had not:
                    “Q. *** You did know that [defendant] had an Immigration hold, correct?
                    A. Correct.
                    ***
                    Q. *** Specifically what did you tell him that that meant?
                    ***
                    Q. Did you explain to him what that meant or what the potential was?
                    ***
                    A. I don’t recall doing that. He seemed to know as much as I did about that.


                                                    -5-
                   What I told him was I was hoping with the view of the Administration—current
               Obama Administration was taking with the ICE, that his specific situation—that he
               would have a better handle on the ICE judge than he would have from Department of
               Corrections.
                                                    ***
                   Q. Did you generally speak to him about what an ICE hold meant in terms of
               proceeding forward with the case?
                   A. No, I did not.
                   Q. Are you aware that somebody with an ICE hold can be deported?
                   A. Yes.
                                                    ***
                   Q. And are you aware that people can be deported as a result of pleading guilty to
               any offense?
                   A. Yes, yes, correct.
                   Q. *** Did you advise [defendant] of that?
                   A. I had many illegals, from petty offenses to misdemeanors to felonies, and you
               have to balance where you’re at in the criminal law first is my advice and then worry
               about ICE later.
                   And it’s depending—That’s why I didn’t advise going to trial where I thought there
               would be a guilty finding because I thought it would be harder to face the ICE judge
               with a prison sentence as opposed to intense probation sentence that I thought he would
               be doing well on.
                   Q. Did you advise him that deportation was a possibility as a result of the plea?
                   A. I assumed he knew that. We didn’t discuss that, no.
                   Q. Did you discuss the possible deportation with him at any time?
                   A. I don’t think we ever mentioned the word deportation, but, I mean, just assumed
               that he was talking to me about it, he knew that was a consequence.” (Emphases
               added.)
¶ 21       During defendant’s cross-examination of counsel, counsel admitted that he had no
       independent recollection of what he said to defendant during their consultations. He agreed
       that defendant had denied being present during the incident that led to the armed-violence
       charge. Asked about his strategy, he said that his greatest concern was defendant “spending the
       least time in custody he could.” Asked if he told defendant that he would go home after he
       served the jail sentence to which he agreed, counsel said that he had told defendant only that he
       hoped that defendant would go home.
¶ 22       The court issued a decision denying defendant’s petition:
                   “The Court finds that Defendant’s testimony lacks credibility and is contradicted
               by the testimony of [counsel] and the Court record herein. ***
                   [Counsel] testified at hearing that he had known Defendant for an extended period
               of time. He testified that he was aware that Defendant had an ICE hold placed on him
               and that he had spoken with Defendant about it on several occasions. He denied that he
               ever told Defendant not to worry about it. [Counsel] testified that he felt that the
               Defendant was ‘between a rock and a hard place.’ [Counsel] was of the opinion, based

                                                   -6-
               upon his investigation and discovery in the case, that if Defendant went to trial, he
               would be convicted and if that happened, he was certain, based upon Defendant’s past
               problems and extensive criminal history, he would be sentenced to prison. He further
               testified that after having participated in a 402 Conference *** with the State and the
               Court, he advised Defendant that if he plead [sic] guilty, he would have a better chance
               of defending against the ICE hold while on probation, then [sic] if he was attempting to
               do so while in prison. [Counsel] further testified that while he advised Defendant it
               would not be in his best interest to go to trial, he was always willing to do so. However,
               the choice to do so or not was the Defendant’s to make. [Counsel] did not prohibit
               Defendant from proceeding to trial. Counsel gave strategic advice, Defendant listened
               to that advice, and Defendant chose to plead guilty.
                    The Court finds the testimony of [counsel] to be credible and his advice given to
               Defendant to be within the range of competence demanded of an attorney in criminal
               cases. A plea based on reasonable, competent advice is an intelligent plea, not open to
               attack on the grounds that counsel erred in his judgment. [Citations.] Going to trial in
               this case would not have spared Defendant of the effect of deportation if he were
               convicted, which was likely, and would also have subjected him to the possibility of a
               greater term of imprisonment, which was also likely. While Defendant made a bare
               assertion he was innocent, he offered no evidence as to a plausible defense that could
               have been raised at trial.”
¶ 23       The court also stated that counsel had testified that “Defendant was not a U.S. citizen, but
       had come to this country illegally at a very early age.” It ruled that defendant was no longer in
       custody on the criminal-damage-to-property conviction and that, as a result, the petition was
       too late to challenge that conviction.
¶ 24       Defendant filed a motion to reconsider, arguing that Padilla required counsel to tell
       defendant specifically that the plea would make him deportable. Defendant did not challenge
       the court’s finding that he was an illegal immigrant. The court denied the motion, and
       defendant timely appealed.

¶ 25                                           II. ANALYSIS
¶ 26       On appeal, defendant argues first that the court’s failure to admonish him, pursuant to
       section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West
       2012)), about the immigration consequences of his guilty plea was a basis for granting his
       petition. He further argues that guilty-plea counsel was ineffective because he failed to advise
       defendant pursuant to Padilla that his guilty plea would make his deportation all but inevitable:
       he argues that counsel could have easily learned that an armed-violence conviction usually
       results in mandatory deportation and that, once defendant entered his plea, “he did not have
       any chance” of avoiding deportation. (Emphasis in original.) Defendant does not challenge the
       court’s conclusion that the attack on the criminal-damage-to-property conviction came too
       late.
¶ 27       The State responds that, under the rule in People v. Guzman, 2015 IL 118749, ¶¶ 22-32, a
       court’s failure to give the “advisement” set out in section 113-8 does not result in a deprivation
       of constitutional rights so as to sustain a postconviction petition. As to the Padilla claim, the
       State argues that counsel’s testimony made clear that he discussed the immigration
       consequences of a guilty plea, that counsel’s advice was not demonstrably wrong, and that, in

                                                   -7-
       any event, defendant failed to demonstrate prejudice. It argues that here, and in contrast to the
       facts in Padilla, it was not clear that the conviction would subject defendant to mandatory
       deportation.
¶ 28       In his reply, defendant concedes that a failure to give section 113-8 admonishments is not
       an independent basis for reversal, but he argues that the lack of the admonishments makes the
       lack of proper advice more likely to be prejudicial. On the issue of which branch of the Padilla
       standard applies, defendant, citing section 1227(a)(2)(A), asserts, “A quick perusal of federal
       immigration law would have told [counsel] that [defendant’s] pleas would make him eligible
       for deportation under at least two categories—aggravated felonies, and crimes involving moral
       turpitude.”
¶ 29       We affirm the denial of the petition. As we noted above, Padilla sets out different standards
       for guilty-plea counsel representing a noncitizen, depending on whether deportation is a truly
       clear consequence of the plea. We hold that, here, “the law [was] not succinct and
       straightforward,” and therefore counsel “need[ed] do no more than advise a noncitizen client
       that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla,
       559 U.S. at 369. The ICE hold here alerted defendant to the general risk of adverse
       immigration consequences, leading defendant to raise the issue with counsel, who responded
       in a manner that acknowledged the risk.
¶ 30       The court here denied defendant’s petition at the third stage of postconviction proceedings,
       after an evidentiary hearing. In the third stage of proceedings, as in the second stage, the
       defendant has the burden of making a substantial showing of a constitutional violation. People
       v. Pendleton, 223 Ill. 2d 458, 473 (2006). When a court denies a postconviction petition after
       an evidentiary hearing that required the court to make findings of fact and credibility
       determinations, our review of the decision is for manifest error. People v. English, 2013 IL
       112890, ¶ 23. However, when the issues are purely ones of law and do not turn on special
       knowledge of the trial, our review is de novo. Pendleton, 223 Ill. 2d at 473.
¶ 31       The substantive issue here is whether counsel’s advice was what was required by Padilla.
       The parties dispute which of the two branches of the Padilla standard applies. Defendant
       asserts that armed violence is clearly both an aggravated felony and a crime involving moral
       turpitude such that it was truly clear that under section 1227(a)(2) defendant became
       deportable by virtue of his guilty plea. The State implies that the result is truly clear only when
       section 1227(a)(2) explicitly lists the offense at issue. Case law indicates that, where counsel
       can determine by limited research beyond the text of section 1227(a)(2) that an offense makes
       an alien deportable, the effect of the conviction remains truly clear. E.g., People v. Valdez,
       2015 IL App (3d) 120892, ¶ 22; State v. Gaitan, 37 A.3d 1089, 1113 (N.J. 2012). Defendant
       has not shown that the consequences were clear. Indeed, he has completely failed to explain the
       analysis that leads to his conclusion that deportation was a “truly clear” (Padilla, 559 U.S. at
       369) consequence of his plea.
¶ 32       A conviction of an “aggravated felony” makes an alien deportable. 8 U.S.C.
       § 1227(a)(2)(A)(iii) (2012). From section 1101(a)(43)(F) (8 U.S.C. § 1101(a)(43)(F) (2012)),
       we learn that an “aggravated felony” includes “a crime of violence (as defined [in another
       section] ***) for which the term of imprisonment at [sic] least one year.” From the cited
       section, we learn that a “crime of violence” includes “an offense that has as an element the use,
       attempted use, or threatened use of physical force against the person or property of another.”
       18 U.S.C. § 16(a) (2012). “Physical force” means “violent force,” so that armed violence

                                                    -8-
       predicated on aggravated battery is a crime of violence, but only when the predicate battery
       was battery causing bodily harm. (Emphasis in original and internal quotation marks omitted.)
       United States v. Fish, 758 F.3d 1, 9 (1st Cir. 2014) (an offense with elements satisfied by mere
       touching is not a violent crime). However, that does not address the requirement that the term
       of imprisonment be a year or more; it appears that the relevant term is the term actually
       imposed, not the statutorily available sentence. Valdez, 2015 IL App (3d) 120892, ¶ 18 (citing
       United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir. 2000)).
¶ 33       A crime involving moral turpitude (CIMT) can make an alien deportable if, among other
       things, it is an offense “for which a sentence of one year or longer may be imposed.” 8 U.S.C.
       § 1227(a)(2)(A)(i)(II) (2012). “Moral turpitude is a notoriously difficult phrase to define.”
       Valdez, 2015 IL App (3d) 120892, ¶ 21. According to a Board of Immigration Appeals
       discussion quoted as persuasive in Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014):
               “ ‘[A] finding of moral turpitude involves an assessment of both the state of mind and
               the level of harm required to complete the offense. Thus, intentional conduct resulting
               in a meaningful level of harm, which must be more than mere offensive touching, may
               be considered morally turpitudinous. However, as the level of conscious behavior
               decreases, i.e., from intentional to reckless conduct, more serious resulting harm is
               required in order to find that the crime involves moral turpitude. Moreover, where no
               conscious behavior is required, there can be no finding of moral turpitude, regardless of
               the resulting harm.’ ” Ceron, 747 F.3d at 783 (quoting In re Solon, 24 I. & N. Dec. 239,
               242 (B.I.A. 2007)).
       The offense is analyzed categorically; the analysis is of the statute defining the offense and not
       of the facts of the underlying conviction. Ceron, 747 F.3d at 780. We will not proceed further
       with this analysis; as should now be clear, it could not possibly be deemed straightforward.
       Moreover, neither party has explained how the analysis would proceed for an offense like
       armed violence, whose character changes greatly depending on the predicate offense. One
       logical result would make whether the offense is a CIMT turn on whether the predicate battery
       underlying the armed-violence conviction involved bodily harm, but that result is in no way
       obvious.
¶ 34       Based on these analyses, we conclude that the immigration consequences of defendant’s
       conviction were not truly clear. Thus, counsel’s only obligation under Padilla was to warn
       defendant of possible adverse immigration consequences. We deem counsel to have met that
       obligation. Defendant’s questions to counsel show that defendant was already aware of the
       possibility of deportation—he could scarcely have avoided such awareness, given the ICE
       hold. To satisfy his duty, then, counsel needed only to agree with defendant’s conclusion that
       deportation was a concern. Accepting as we must the trial court’s determinations of fact,
       counsel did this. The court found that counsel told defendant that he would have a better
       chance defending against “the ICE hold” while on probation than in prison. Although counsel
       would have more clearly met his obligation if he had discussed defending against deportation,
       he nevertheless acknowledged that defendant was facing significant immigration difficulties.
       Moreover, counsel’s desire to get a sentence of probation had a reasonable legal basis. The
       sentence actually imposed might have determined whether defendant was convicted of an
       aggravated felony. Given the complexity of the CIMT analysis, avoiding that clear basis for
       deportation was a reasonable consideration.


                                                   -9-
¶ 35       Because defendant failed to show that counsel’s representation fell below an objective
       standard of reasonableness under the applicable branch of the Padilla standard, defendant
       failed to meet his burden of proving that counsel was ineffective. The trial court thus did not err
       in denying his postconviction petition.

¶ 36                                       III. CONCLUSION
¶ 37       For the reasons stated, we affirm the denial of defendant’s postconviction petition. As part
       of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this
       appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 179
       (1978).

¶ 38      Affirmed.

¶ 39       JUSTICE HUTCHINSON, specially concurring.
¶ 40       I concur in the analysis and outcome of the majority opinion in this case. I write separately
       to remind the lawyers who choose to travel through these immigration minefields that state law
       and federal law are miles apart in both substance and procedure where immigration matters are
       concerned.
¶ 41       First and foremost, the lawyer must be familiar with the Illinois Rules of Professional
       Conduct of 2010. In particular, the Preamble states:
                     “As a representative of clients, a lawyer performs various functions. As advisor, a
                lawyer provides a client with an informed understanding of the client’s legal rights and
                obligations and explains their practical implications. *** As an evaluator, a lawyer acts
                by examining a client’s legal affairs and reporting about them to the client or to others.”
                Ill. R. Prof’l Conduct (2010) pmbl.
       Furthermore, Rule 1.1, which pertains to competence, requires that “[a] lawyer shall provide
       competent representation to a client. Competent representation requires the legal knowledge,
       skill, thoroughness and preparation reasonably necessary for the representation.” Ill. R. Prof’l
       Conduct (2010) R. 1.1 (eff. Jan. 1, 2010). The comment on legal knowledge and skill notes that
       “[i]n determining whether a lawyer employs the requisite knowledge and skill in a particular
       matter, relevant factors include the relative complexity and specialized nature of the matter, the
       lawyer’s general experience, [and] the lawyer’s training and experience in the field in
       question.” Ill. R. Prof’l Conduct (2010) R. 1.1, cmt. 1 (eff. Jan. 1, 2010).
¶ 42       Based upon the complexity of most immigration matters, attorneys not otherwise trained or
       knowledgeable in immigration law should beware. See, e.g., In re Winthrop, 219 Ill. 2d 526
       (2006). A criminal charge at the state level adds another layer to an immigration case, and the
       cases cited by the majority reveal issues in such cases that could well encourage nightmares
       during an otherwise peaceful sleep.
¶ 43       How can such cases be better handled by counsel and the courts? Consultation with an
       immigration attorney before the plea is entered is an excellent idea. A better practice might be
       to advise a client in writing (in the client’s primary language) that consultation with an
       immigration attorney is recommended and to likewise request a response from the immigration
       attorney in writing as well. At a minimum though, to meet their responsibilities as advisor,



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       evaluator, and advocate, attorneys should create complete profiles of those seeking their
       professional assistance.
¶ 44       As for the courts, while negotiated pleas are essential to the orderly administration of
       justice, finality of cases is just as essential. If there is any question about the defendant’s
       nationality, counsel should be asked during the presentation of the plea whether he or she has
       talked to the defendant about possible deportation as a result of the plea. An answer of “no”
       may delay the plea or even be a basis to set the matter for trial. However, if the answer is “yes,”
       a record has been made and subsequent proceedings might not be needed or might be
       minimized in scope.
¶ 45       This is not an issue that is likely to go away anytime soon. Solutions need to be explored to
       ensure the efficient and fair administration of justice in all cases.




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