                           ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




                       People v. Pena-Romero, 2012 IL App (4th) 110780




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MACARIO PENA-ROMERO, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0780


Filed                      December 14, 2012


Held                       On appeal from the denial of defendant’s motion to withdraw his guilty
(Note: This syllabus       plea to attempted murder, the appellate court rejected defendant’s
constitutes no part of     contentions that his guilty-plea counsel and his postplea counsel were
the opinion of the court   ineffective with regard to advice concerning the deportation
but has been prepared      consequences of his plea, and the fees and assessments imposed on
by the Reporter of         defendant were modified to comply with the law.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Coles County, No. 08-CF-183; the Hon.
Review                     James R. Glenn, Judge, presiding.



Judgment                   Affirmed in part as modified and vacated in part; cause remanded with
                           directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Nancy L. Vincent, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.



                           C. Steve Ferguson, State’s Attorney, of Charleston (Patrick Delfino,
                           Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Turner concurred in the
                           judgment and opinion.



                                             OPINION

¶1          Defendant, Macario Pena-Romero, appeals from the denial of his motion to withdraw his
        guilty plea. Defendant argues (1) he was denied effective assistance of guilty-plea counsel,
        (2) he was denied effective assistance of postplea counsel, (3) the circuit clerk lacked
        authority to assess the $5 anticrime fee, (4) he is entitled to credit against the $4.75 drug-
        court assessment, and (5) the $25 violent crime victims assistance (VCVA) assessment
        should be reduced to $4. We affirm in part as modified, vacate in part, and remand with
        directions.

¶2                                        I. BACKGROUND
¶3          On May 6, 2008, the State charged defendant with two counts of armed violence (720
        ILCS 5/33A-2(a) (West 2008)). The trial court appointed a public defender to represent
        defendant.
¶4          On February 17, 2009, the State charged defendant with one count of attempt (first
        degree murder) (720 ILCS 5/8-4(a), 9-1 (West 2008)). Defendant pleaded guilty in exchange
        for dismissal of the two armed violence charges and a sentencing cap of 20 years. An
        interpreter was present in the courtroom. The trial court admonished defendant that if he was
        not a citizen of the United States, the conviction could result in deportation, exclusion from
        admission to the United States, or denial of naturalization. See 725 ILCS 5/113-8 (West
        2008). The State’s factual basis indicated police officers went to a residence in Coles County
        to speak with Maria De La Cruz (Maria), who was holding a towel to her neck as it was
        bleeding. She told the officers that defendant argued with her, grabbed her from behind, and
        asked her if she knew what the children would do if both of them died that night. Defendant
        held a knife to her throat. Maria struggled with defendant and ran from the home. She was
        taken by ambulance to a hospital and treated.


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¶5          The police officers found defendant at home, having cut himself. An officer heard
       defendant say that his wife had to be punished. The trial court found defendant knowingly
       and voluntarily pleaded guilty to the charge.
¶6          On May 1, 2009, the trial court sentenced defendant to 15 years in prison with credit for
       360 days previously served.
¶7          On May 29, 2009, defendant filed a pro se motion for reduction of his sentence and a
       motion to withdraw his guilty plea and vacate the sentence. On June 1, 2009, the trial court
       appointed new counsel to represent defendant. On May 18, 2010, postplea counsel filed an
       amended motion to withdraw the guilty plea and vacate the sentence or reduce the sentence.
       In that motion, defendant alleged (1) he had a limited understanding of English, (2) guilty-
       plea counsel was ineffective for failing to consult with him with an interpreter present, (3)
       he did not understand the presentence investigation report (PSI), (4) he did not understand
       the court’s admonition concerning the immigration consequences of his guilty plea, and (5)
       guilty-plea counsel did not explain the immigration consequences of his plea. Defendant also
       alleged his sentence was excessive.
¶8          Following a hearing on July 30, 2010, the trial court denied defendant’s amended motion.
       In its written opinion and order, the court stated:
            “It is clear from the record, however, that the Defendant has resided in and has been
            employed in the United States since 2001. The Defendant appeared in Court 16 times
            between May 12, 2008 and May 01, 2009. Four times without an interpreter and 12 times
            with an interpreter. The Court had the opportunity to observe Mr. Pena-Romero and how
            he interacted with counsel, the interpreter and how he responded to questions by the
            Court. Mr. Goodwin with Coles County Court Services met with Mr. Pena-Romero and
            was able to communicate with him to prepare the Pre-sentence Investigation report. ***
            At the hearing on Defendant’s Amended Motion, when asked about being advised of
            deportation issues, the Defendant answered, ‘I did not have enough explanation about
            that.’ He did not specify what additional information he needed. If the Defendant now
            has an understanding of the immigration consequences, he has failed to advise the Court
            what he did not know at the time of his guilty plea. Defendant also failed to present
            testimony or evidence that if he knew of the immigration consequences at the time of the
            plea, that it would have changed his plea or that he was/or will be subject to immigration
            penalties. *** Likewise, Defendant has failed to present evidence that anything was
            wrong in the Pre-sentence investigation report.”
¶9          Defendant appealed. On appeal, this court vacated the trial court’s order and remanded
       for compliance with Illinois Supreme Court Rules 604(d) (eff. July 1, 2006) and 605(c) (eff.
       Oct. 1, 2001). People v. Romero, No. 4-10-0702 (Apr. 1, 2011) (unpublished summary order
       under Supreme Court Rule 23(c)(2)).
¶ 10        On remand, postplea counsel filed a new amended motion to withdraw his guilty plea and
       vacate his sentence or reduce the sentence, restating the claims from the previous amended
       motion. The parties adopted the evidence and argument previously submitted, and the trial
       court took judicial notice of the transcripts from the plea, sentencing, and hearing on the
       amended motion. The court denied the amended motion and this appeal followed.


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¶ 11                                        II. ANALYSIS
¶ 12       Defendant first argues his guilty-plea counsel was ineffective for failing to advise
       defendant of the deportation consequences of his plea. In support of his position, defendant
       argues the United States Supreme Court decision in Padilla v. Kentucky, 559 U.S. ___ , 130
       S. Ct. 1473 (2010), which held defense counsel must inform the client whether the plea
       carries a risk of deportation, changed the law regarding whether attorneys were obligated to
       advise their clients about collateral consequences. In other words, under Padilla, guilty-plea
       counsel was obligated to advise defendant about the collateral consequence of deportation,
       and her failure to do so rendered her ineffective.
¶ 13       This court reviews ineffective-assistance-of-counsel claims under the standard set forth
       in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93, 708
       N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a defendant must prove (1)
       his counsel’s performance failed to meet an objective standard of competence and (2)
       counsel’s deficient performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at
       93, 708 N.E.2d at 1163.
¶ 14       To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel
       made errors so serious and counsel’s performance was so deficient that counsel was not
       functioning as “counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI).
       (Internal quotation marks omitted.) Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the
       defendant must overcome the strong presumption the challenged action or inaction could
       have been the product of sound trial strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163.
       To satisfy the prejudice prong, the defendant must prove a reasonable probability exists that,
       but for counsel’s unprofessional errors, the proceedings’ result would have been different.
       Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163-64. The Strickland Court noted that, when a case
       is more easily decided on the ground of lack of sufficient prejudice rather than that counsel’s
       representation was constitutionally deficient, the court should do so. Strickland, 466 U.S. at
       697.
¶ 15       First, this court doubts the rule announced in Padilla has retroactive application. See,
       e.g., Chaidez v. United States, 655 F.3d 684, 694 (7th Cir. 2011) (Padilla announced a new
       constitutional rule and is therefore not retroactive); but see People v. Gutierrez, 2011 IL App
       (1st) 093449, ¶¶ 32-42, 954 N.E.2d 365 (holding Padilla applies retroactively, but decided
       prior to Chaidez). We need not reach this question, however, because defendant has failed
       to show prejudice from guilty-plea counsel’s alleged error.
¶ 16       To establish prejudice, defendant had to show a reasonable probability that, but for
       counsel’s errors, he would not have pled guilty and would have insisted on going to trial.
       People v. Rissley, 206 Ill. 2d 403, 457, 795 N.E.2d 174, 204 (2003). In articulating what is
       required, our supreme court has stated “[a] bare allegation that the defendant would have
       pleaded not guilty and insisted on a trial if counsel had not been deficient is not enough to
       establish prejudice.” People v. Hall, 217 Ill. 2d 324, 335, 841 N.E.2d 913, 920 (2005).
       Instead, the defendant’s claim must be accompanied by either a claim of innocence or the
       articulation of a plausible defense that could have been raised at trial. Hall, 217 Ill. 2d at 335-


                                                  -4-
       36, 841 N.E.2d at 920. The United States Supreme Court in Hill v. Lockhart, 474 U.S. 52
       (1985), explained:
               “In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry
           engaged in by courts reviewing ineffective-assistance challenges to convictions obtained
           through a trial. For example, where the alleged error of counsel is a failure to investigate
           or discover potentially exculpatory evidence, the determination whether the error
           ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will
           depend on the likelihood that discovery of the evidence would have led counsel to change
           his recommendation as to the plea. This assessment, in turn, will depend in large part on
           a prediction whether the evidence likely would have changed the outcome of a trial.
           Similarly, where the alleged error of counsel is a failure to advise the defendant of a
           potential affirmative defense to the crime charged, the resolution of the ‘prejudice’
           inquiry will depend largely on whether the affirmative defense likely would have
           succeeded at trial.” Hill, 474 U.S. at 59.
       Citing Hill, our supreme court has stated the question of whether counsel’s deficient
       representation caused the defendant to plead guilty depends in large part on predicting
       whether the defendant likely would have been successful at trial. Hall, 217 Ill. 2d at 336, 841
       N.E.2d at 921.
¶ 17       In this case, defendant did not make a claim of innocence or articulate a plausible
       defense; he simply rested on the bare allegation that he would have pled not guilty had he
       known of the deportation consequences of his plea. Contrary to defendant’s assertion that he
       did not know of the deportation consequences of his plea, the record is clear defendant was
       admonished by the trial court that the conviction could result in deportation, exclusion from
       admission to the United States, or denial of naturalization.
¶ 18       Even if we excused defendant’s failure to claim innocence or raise a plausible defense
       as Hall seems to require, defendant does not explain how his alleged ignorance of the
       deportation consequences factored into his decision to plead guilty. Or, stated differently, he
       does not explain why, had he known of that consequence, he would have pleaded not guilty
       and insisted on going to trial. While Padilla did not resolve the prejudice prong, it stated
       what was required for a defendant to show prejudice: “a petitioner must convince the court
       that a decision to reject the plea bargain would have been rational under the circumstances.”
       Padilla, 559 U.S. at ___ , 130 S. Ct. at 1485. It is hard to imagine how rejection of the plea
       offer in this case would have been rational. Going to trial 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. The evidence against
       defendant is overwhelming. Essentially, the prejudice defendant alleges is dissatisfaction
       about the effects of deportation, which would not have changed if he had gone to trial and
       been convicted.
¶ 19       Here, to establish prejudice, defendant offers nothing more than the bare assertion that
       he would not have pleaded guilty but would have insisted on going to trial. This is not
       sufficient, given Padilla’s admonition that prejudice requires a defendant to convince the
       court a decision to reject the plea bargain would have been rational under the circumstances.


                                                 -5-
¶ 20       Alternatively, defendant argues his postplea counsel was ineffective for failing to elicit
       testimony from defendant he would not have pleaded guilty had he been told of the
       deportation consequences of his plea. As we have pointed out, however, a defendant alleging
       ineffective assistance of counsel must still establish prejudice. The bare allegation that, but
       for the alleged error, a defendant would have insisted on trial, without something more, is
       not enough. Standing alone, such an allegation is subjective, self-serving, and insufficient
       to satisfy the Strickland requirement for prejudice. See Rissley, 206 Ill. 2d at 459-60, 795
       N.E.2d at 205. Defendant’s self-serving statements that, but for his counsel’s inadequate
       representation, he would have pleaded not guilty, unaccompanied by either a claim of
       innocence or the articulation of any plausible defense that he could have raised had he opted
       for a trial, is insufficient to demonstrate the required prejudice. Defendant does not now
       allege he is innocent, nor does he claim to have any plausible defense he could have raised
       had he chosen a trial. Defendant admitted cutting his wife’s neck while asking if she knew
       what their children would do if both of them died that night. Defendant has never repudiated
       his sworn admission. Given these facts, defendant has not established the prejudice required
       under Strickland.
¶ 21       Defendant next argues the circuit clerk lacked authority to assess the $5 anticrime fee.
       The State concedes the anticrime fee may not be imposed where the trial court imposes a
       sentence of imprisonment. See People v. Beler, 327 Ill. App. 3d 829, 837, 763 N.E.2d 925,
       931 (2002). We accept the State’s concession and vacate the anticrime fee.
¶ 22       Defendant next argues he is entitled to a $5-per-day credit for time served against his
       $4.75 drug-court fee. The drug-court fee is a fine, and defendant is entitled to a $5-per-day
       credit against this $4.75 fine. See People v. Sulton, 395 Ill. App. 3d 186, 193, 916 N.E.2d
       642, 647-48 (2009). The State concedes defendant is entitled to the $5-per-day credit for the
       360 days he spent in custody. Accordingly, we remand this case and direct the trial court to
       amend the judgment order to grant defendant a credit against the $4.75 drug-court fee.
¶ 23       Defendant next argues the $25 VCVA assessment should be reduced to $4, and the State
       concedes the fine should be reduced to $4.
¶ 24       Pursuant to section 10(c)(1) of the Violent Crime Victims Assistance Act, the $25 VCVA
       assessment defendant received is to be imposed only where the defendant is convicted of a
       qualifying felony and no other fine is imposed. See 725 ILCS 240/10(c)(1) (West 2008).
¶ 25       In this case, the $4.75 drug-court assessment is a fine because the record does not show
       it was sought to reimburse the State for any costs incurred in defendant’s prosecution. See
       People v. Paige, 378 Ill. App. 3d 95, 102, 880 N.E.2d 675, 682 (2007).
¶ 26       Where another fine is imposed, section 10(b) of the Violent Crime Victims Assistance
       Act requires “there shall be an additional penalty collected *** upon conviction *** of $4
       for each $40, or fraction thereof, of fine imposed.” 725 ILCS 240/10(b) (West 2008). In this
       case, the drug-court fine is $4.75. Accordingly, defendant’s VCVA assessment should be
       modified to $4 because the remaining fine totals less than $40. See 725 ILCS 240/10(b)
       (West 2008).




                                                -6-
¶ 27                                   III. CONCLUSION
¶ 28       For the reasons stated, we vacate the anticrime fee; we remand for the application of
       defendant’s available credit toward the $4.75 drug-court fee; and we remand for a reduction
       of the VCVA assessment to $4. We otherwise affirm the trial court’s judgment as modified.
       As part of our judgment, we award the State its $50 statutory assessment against defendant
       as costs of this appeal.

¶ 29      Affirmed in part as modified and vacated in part; cause remanded with directions.




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