                                        2015 IL 118749



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS



                                     (Docket No. 118749)

          THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JORGE A.
                            GUZMAN, Appellant.


                              Opinion filed November 19, 2015.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
     Theis concurred in the judgment and opinion.



                                           OPINION

¶1       In People v. Delvillar, 235 Ill. 2d 507 (2009), this court examined the impact of
     the failure to give a statutory admonishment on the potential immigration
     consequences of entering a guilty plea. We concluded that the admonishment was
     directory, not mandatory, and categorized the potential immigration consequences
     of the plea as collateral, not direct. Therefore, the failure to admonish did not affect
     the voluntariness of the plea, and defendants wishing to withdraw their pleas on
     that basis were required to demonstrate prejudice or a denial of justice. Delvillar,
     235 Ill. 2d at 519, 521-22. In this case, defendant argues that our decision in
     Delvillar must be overturned based on the United States Supreme Court’s later
     decision in Padilla v. Kentucky, 559 U.S. 356 (2010). We disagree and affirm the
     denial of defendant’s motion to withdraw his guilty plea.



¶2                                    I. BACKGROUND

¶3       In October 2008, seven firearms were stolen from a home in Will County. The
     following day, the local sheriff received a report of suspicious activity in Joliet and
     later found defendant and two other men in a garage, with five firearms from the
     burglary in plain sight. Defendant was indicted in the circuit court of Will County
     on a single count of aggravated possession of stolen firearms, a Class 1 felony (720
     ILCS 5/16-16.1(a)(1), (c)(1) (West 2008)), for possession of between two and five
     firearms with knowledge that they were stolen. Defendant was previously
     adjudicated delinquent for aggravated unlawful use of a weapon in 2003 and
     received probation. He faced a possible sentence of 4 to 15 years in prison on the
     2008 firearm charge. 730 ILCS 5/5-8-1(a)(4) (West 2008).

¶4        In February 2009, while represented by criminal defense counsel, defendant
     entered a fully negotiated guilty plea to the firearm charge. During the plea hearing,
     the trial court asked defendant whether he was a United States citizen, and, after
     initially stating he was, defendant quickly clarified that he was a permanent legal
     resident. The court did not admonish defendant about the potential impact of
     pleading guilty on his immigration status prior to accepting the plea pursuant to
     section 113-8 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-8 (West
     2008)). Defendant was given the minimum sentence of four years in prison and two
     years of mandatory supervised release, with a recommendation for impact
     incarceration.

¶5        Defendant filed a written motion to withdraw his plea in March 2009 and
     argued during the subsequent hearings that he did not enter the plea knowingly and
     intelligently because he was not admonished pursuant to section 113-8. The trial
     court directed the parties to supply additional research, and, at a subsequent
     hearing, defense counsel noted that this court had heard oral arguments a month
     earlier in a similar case, Delvillar, 235 Ill. 2d 507. Based on that representation, the
     trial court asked the parties whether they wished to wait for further guidance from
     this court or proceed to an immediate ruling. Defendant requested an immediate
     ruling, and the trial court denied his motion to withdraw the plea. Defendant then
     filed a direct appeal of the trial court’s ruling.
                                              -2-
¶6         During the pendency of defendant’s direct appeal, he filed a postconviction
       petition that was denied by the trial court at the second stage because no evidence
       showed he would have gone to trial if he had been properly admonished. Defendant
       appealed the postconviction ruling. He then sought leave to file an amended
       postconviction petition adding the claim that he would not have entered the plea if
       he had been informed of the potential immigration consequences. At the hearing on
       the amended postconviction petition, defense counsel stated that defendant was to
       be deported, and defendant was granted leave to withdraw his notice of appeal on
       the first postconviction petition and file an amended petition. No further
       proceedings took place in the circuit court.

¶7         Addressing defendant’s direct appeal, the appellate court reversed his
       conviction, concluding that his plea was not knowing and intelligent because
       defense counsel did not advise him of the possible immigration consequences.
       People v. Guzman, 2011 IL App (3d) 090464. The State then filed a petition for
       leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶8         In October 2012, this court granted the State’s petition for leave to appeal but,
       after briefing, issued a supervisory order remanding the cause. The supervisory
       order directed the appellate court to consider whether the absence of a statutory
       admonishment by the trial court about the potential immigration consequences of
       the guilty plea (725 ILCS 5/113-8 (West 2008)) permitted defendant to withdraw
       his plea in light of the United States Supreme Court’s decision in Padilla, 559 U.S.
       356. People v. Guzman, No. 113730 (Ill. Mar. 28, 2012).

¶9         On remand, the appellate court withdrew its original opinion, consolidated
       defendant’s direct appeal with his appeal from the denial of his postconviction
       petition, and requested supplemental briefing. The appellate court subsequently
       reversed the denial of defendant’s motion to withdraw his guilty plea in his direct
       appeal, remanding that cause for further proceedings, and dismissed defendant’s
       postconviction appeal. 2014 IL App (3d) 090464.

¶ 10       After allowing the State’s petition for rehearing, however, the appellate court
       withdrew its original opinion, with the majority issuing a revised opinion affirming
       the denial of defendant’s motion to withdraw his plea and reversing the denial of
       his postconviction petition, remanding for additional postconviction proceedings.
       2014 IL App (3d) 090464. Relying on Delvillar, the majority held in the direct
       appeal that the immigration consequences of a guilty plea were collateral

                                               -3-
       consequences that did not affect the voluntariness of the plea. 2014 IL App (3d)
       090464, ¶ 22 (citing Delvillar, 235 Ill. 2d at 521-22). Justice Holdridge dissented in
       part, asserting that the plea was constitutionally involuntary under Padilla because
       the trial court did not give the proper admonishment. He also cited the reasoning in
       People v. Peque, 3 N.E.3d 617 (N.Y. 2013). 2014 IL App (3d) 090464, ¶ 73
       (Holdridge, J., specially concurring in part and dissenting in part).

¶ 11       Defendant filed a petition for leave to appeal addressing only the appellate
       court’s decision on direct appeal to affirm the denial of his motion to withdraw his
       guilty plea. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R.
       315 (eff. Jan. 1, 2015).



¶ 12                                      II. ANALYSIS

¶ 13       Defendant asks this court to overrule its prior decision in Delvillar, 235 Ill. 2d
       507, in light of the United States Supreme Court’s decision in Padilla. He argues
       that, under Padilla, the absence of a statutory admonishment about the possible
       immigration consequences of a guilty plea (725 ILCS 5/113-8 (West 2008))
       renders the plea unconstitutionally involuntary. Because the issue presents a
       question of law, we review it de novo. In re Detention of Hardin, 238 Ill. 2d 33, 39
       (2010).

¶ 14      Section 113-8 of the Code states:

              “§ 113–8. Advisement concerning status as an alien.

              Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo
          contendere to a misdemeanor or felony offense, the court shall give the
          following advisement to the defendant in open court:

             ‘If you are not a citizen of the United States, you are hereby advised that
          conviction of the offense for which you have been charged may have the
          consequences of deportation, exclusion from admission to the United States, or
          denial of naturalization under the laws of the United States.’ ” 725 ILCS
          5/113-8 (West 2008).

¶ 15       This court previously considered whether a defendant could withdraw his guilty
       plea based on the trial court’s failure to give a section 113-8 admonishment in

                                                -4-
       Delvillar. After acknowledging that the admonishment “is mandatory in the sense
       that the circuit court does not have discretion in giving” it, we explained that the
       critical question was whether section 113-8 is mandatory or directory. Delvillar,
       235 Ill. 2d at 516. In making that determination, we noted that section 113-8 did not
       include any negative language if the admonition is not given, such as barring the
       acceptance of the plea, and that the right being protected was “not necessarily ***
       harmed in the absence of the admonishment.” Delvillar, 235 Ill. 2d at 517, 519. We
       concluded that section 113-8 was directory and the failure to comply with it was
       simply one factor to be considered in ruling on a defendant’s motion to withdraw a
       guilty plea. The ruling ultimately “rest[ed] in the sound discretion of the circuit
       court.” Delvillar, 235 Ill. 2d at 519. Because the right to withdraw a plea is not
       automatic, a defendant’s request for relief must demonstrate “a manifest injustice”
       under the unique facts of the case. Delvillar, 235 Ill. 2d at 520.

¶ 16       When inadequate admonishments are given, the question of whether due
       process was violated arises, and the answer turns on whether the plea was made
       voluntarily and intelligently. In resolving that question, the court examines only the
       direct consequences of the plea, not the collateral consequences. This court defined
       “[d]irect consequences” as “those consequences affecting the defendant’s sentence
       and other punishment that the circuit court may impose,” and “[c]ollateral
       consequences” as those “effects upon the defendant that the circuit court has no
       authority to impose.” Delvillar, 235 Ill. 2d at 520.

¶ 17       Because state courts do not control the immigration decisions of governmental
       agencies, we concluded that any possible immigration consequences of entering a
       guilty plea are collateral. “As such, the failure to admonish a defendant of potential
       immigration consequences does not affect the voluntariness of the plea” or violate
       due process. Delvillar, 235 Ill. 2d at 520-21.

¶ 18       Nonetheless, we noted that a plea may still be withdrawn in the absence of a
       constitutional violation if “real justice has been denied or if the defendant has been
       prejudiced by the inadequate admonishment,” with the defendant bearing the
       burden of making the requisite showing. Delvillar, 235 Ill. 2d at 522. In Delvillar,
       the defendant had both erroneously informed the trial judge he was a United States
       citizen and failed to demonstrate prejudice in either his motion to withdraw the plea
       or his supporting argument. Because the defendant failed to meet his burden of
       showing prejudice or a denial of real justice, we reversed the appellate court


                                               -5-
       judgment in his favor and reinstated the trial court’s denial of defendant’s motion to
       withdraw his plea. Delvillar, 235 Ill. 2d at 522-24.

¶ 19       The following year the United States Supreme Court decided Padilla, cited by
       defendant in the instant case. Defendant contends that the reasoning in Padilla
       requires us to overrule our decision in Delvillar. In Padilla, the defendant was a
       noncitizen charged with a drug crime that “made his deportation virtually
       mandatory.” Padilla, 559 U.S. at 359. Here, defendant argues his firearms
       conviction places him in a similarly precarious position. Unlike this case, however,
       the defendant in Padilla filed a postconviction petition alleging a sixth amendment
       violation based on the failure of his defense counsel to provide effective assistance
       by advising him of the possibility that he could be deported if he pled guilty. The
       Kentucky Supreme Court upheld the denial of the defendant’s postconviction
       petition, finding that immigration consequences were merely collateral. Padilla,
       559 U.S. at 359-60 (citing Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky.
       2008)).

¶ 20        Citing significant changes in immigration law making deportation a near
       certainty for many noncitizens convicted of drug or firearms crimes, the Supreme
       Court found “[d]eportation as a consequence of a criminal conviction is, because of
       its close connection to the criminal process, uniquely difficult to classify as either a
       direct or a collateral consequence.” Padilla, 559 U.S. at 366. The Court
       “conclude[d] that advice regarding deportation is not categorically removed from
       the ambit of the Sixth Amendment right to counsel” and, consequently, the
       standards for effective assistance of counsel expressed in Strickland v. Washington,
       466 U.S. 668 (1984), were applicable. Padilla, 559 U.S. at 366.

¶ 21       Although acknowledging that Padilla did not declare immigration
       consequences to be direct, defendant argues that they also cannot be considered
       collateral, contrary to our conclusion in Delvillar. In light of Padilla, defendant
       contends that the failure to give the section 113-8 admonishment renders any
       subsequent plea unconstitutionally involuntary. Because a valid plea must be
       knowing and intelligent (Boykin v. Alabama, 395 U.S. 238, 242 (1969)), defendant
       contends that Padilla mandates the conclusion that, in the absence of a section
       113-8 admonition, his due process rights were violated and his plea was not
       knowing and voluntary.



                                                -6-
¶ 22       Defendant admits that even after Padilla our appellate court has consistently
       continued to view immigration consequences as merely collateral (see 2014 IL App
       (3d) 090464, ¶ 66 (Holdridge, J., specially concurring in part and dissenting in part)
       (collecting cases)), but he maintains those cases were wrongly decided. Citing
       Justice Holdridge’s partial dissent in the appellate decision in this case, defendant
       claims that if deportation cannot be deemed a collateral consequence of a criminal
       conviction as a matter of law, logically, “this conclusion must be true for all
       purposes.” (Emphasis in original.) 2014 IL App (3d) 090464, ¶ 66 (Holdridge, J.,
       specially concurring in part and dissenting in part). In further support of his
       position, defendant cites the rationale in Peque, 3 N.E.3d at 633-35, decided by
       New York’s highest court. We reject that analysis.

¶ 23       Padilla involved a sixth amendment challenge alleging the defendant’s trial
       counsel provided ineffective assistance. In contrast, both Delvillar and the instant
       case involve fifth amendment due process claims. As we explained in People v.
       Patterson, 2014 IL 115102, ¶ 97, the analytical standards for evaluating challenges
       rooted in due process and other constitutional provisions vary widely.
       Consequently, “[a] ruling on a specific flavor of constitutional claim may not
       justify a similar ruling brought pursuant to another constitutional provision.
       [Citation.] In other words, a constitutional challenge raised under one theory cannot
       be supported by decisional law based purely on another provision. United States v.
       Lanier, 520 U.S. 259, 272 n.7 (1997).” Patterson, 2014 IL 115102, ¶ 97.

¶ 24       In addition, the Supreme Court’s concise statement in Padilla “that advice
       regarding deportation is not categorically removed from the ambit of the Sixth
       Amendment right to counsel” expresses an intent to restrict its conclusion to that
       constitutional predicate. Padilla, 559 U.S. at 366. Perhaps most tellingly, the
       Supreme Court recognized as much in Chaidez v. United States, decided three
       years after Padilla, when it stated while further explaining its decision in Padilla
       that “no decision of our own committed us to ‘appl[y] a distinction between direct
       and collateral consequences to define the scope’ of the right to counsel. [Citation.]
       And however apt that distinction might be in other contexts, it should not exempt
       from Sixth Amendment scrutiny a lawyer’s advice (or non-advice) about a plea’s
       deportation risk.” (Emphasis added.) Chaidez v. United States, 568 U.S. ___, ___,
       133 S. Ct. 1103, 1110 (2013) (quoting Padilla, 559 U.S. at 365). The Court again
       emphasized the sixth amendment context of Padilla by expressly stating that
       “[e]ven in Padilla [the Court] did not eschew the direct-collateral divide across the
       board.” Chaidez, 568 U.S. at ___, 133 S. Ct. at 1112. Accordingly, we reject as
                                               -7-
       overly broad defendant’s reading that Padilla created a new rule barring
       deportation from being considered a collateral consequence for any purpose.

¶ 25        Moreover, even defendant concedes, as he must, that Padilla did not announce
       a rule declaring immigration consequences, including the virtual certainty of
       deportation, to be the direct consequences of a criminal conviction—even within
       the limited context of the sixth amendment. In Illinois, the established rule is that
       trial courts must admonish defendants of only the direct consequences of a guilty
       plea. Delvillar, 235 Ill. 2d at 520. We explained in People v. Williams that a
       knowing and intelligent plea is premised on the defendant’s full awareness of only
       the direct consequences flowing from it, adopting the standard set forth by the
       Supreme Court in Brady v. United States, 397 U.S. 742, 755 (1970). People v.
       Williams, 188 Ill. 2d 365, 371 (1999). Consequently, a plea may be knowing and
       intelligent even if the defendant is unaware of its nondirect consequences
       (Williams, 188 Ill. 2d at 371) such as deportation (Delvillar, 235 Ill. 2d at 521).
       Thus, even if, as defendant claims, Padilla is applicable in the context of a fifth
       amendment due process challenge, it does not mandate a holding that the failure to
       give section 113-8 admonishments entitles defendants to withdraw their guilty
       pleas.

¶ 26       As long as the potential immigration consequences faced by the defendant are
       not deemed to be direct, that is, “affecting the defendant’s sentence and other
       punishment that the circuit court may impose,” our longstanding precedents do not
       bar the acceptance of a guilty plea in the absence of a section 113-8 admonishment.
       Delvillar, 235 Ill. 2d at 520. “Even in light of Padilla, we cannot say that
       deportation is a consequence that relates to the sentences imposed on the basis of
       that plea.” People v. Carrera, 239 Ill. 2d 241, 256 (2010). Since Padilla, we have
       also rejected the claim that the distinction between direct and collateral
       consequences no longer applies in cases involving fifth amendment challenges.
       People v. Hughes, 2012 IL 112817, ¶¶ 34-66. Consequently, we conclude that
       Padilla does not compel the reversal of our prior holding in Delvillar.

¶ 27       Our decision puts us in the company of the vast majority of courts nationwide
       that have rejected similar Padilla claims. Although not controlling in this court, the
       post-Padilla decisions of the federal courts of appeal and all but one high state
       court that have considered the issue are in agreement that trial courts are not
       constitutionally required to provide admonishments about immigration
       consequences before accepting defendants’ guilty pleas. See United States v.
                                               -8-
       Carrillo-Estrada, 564 F. App’x 385, 387 (10th Cir. 2014); United States v.
       Rodriguez-Penton, 547 F. App’x 738, 739-40 (6th Cir. 2013) (collecting cases and
       explaining that the sixth amendment imposes a higher burden on counsel to inform
       clients of the consequences of entering a guilty plea than the fifth amendment
       imposes on courts); United States v. Delgado-Ramos, 635 F.3d 1237, 1240-41 (9th
       Cir. 2011) (per curiam) (explaining that Padilla “sheds no light on the obligations”
       the trial court has under the fifth amendment); see also United States v. De La
       Cruz-Trejo, 518 F. App’x 286, 286-87 (5th Cir. 2013) (per curiam) (declining to
       decide whether Padilla overturned circuit precedent but holding that, at a
       minimum, trial courts do not commit plain error by failing to admonish); United
       States v. Youngs, 687 F.3d 56 (2d Cir. 2012) (recognizing in the context of civil
       commitments that Padilla did not undermine distinction between direct and
       collateral consequences in fifth amendment cases); United States v. Nicholson, 676
       F.3d 376, 381-82 & n.3 (4th Cir. 2012) (holding both that Padilla did not change
       the fifth amendment framework and that trial courts are not required to provide
       admonishments on the loss of federal benefits). See Smith v. State, 697 S.E.2d 177,
       183-84 (Ga. 2010) (explaining that the direct/collateral dichotomy still applies to
       fifth amendment, but not sixth amendment, and that defense counsel’s burden is
       greater than the trial court’s duty); State v. Ortiz, 44 A.3d 425, 429-31 (N.H. 2012);
       Stiger v. Commonwealth, 381 S.W.3d 230, 235 (Ky. 2012); State v. Davis, 9 N.E.3d
       1031, 1040 (Ohio 2014) (finding the issue forfeited but noting that “Padilla’s
       holding concerns what an attorney must advise a defendant before the defendant
       enters a plea of guilty [and not] what a trial court must advise a defendant before
       accepting a jury waiver”).

¶ 28       Even the single outlying decision cited by defendant, issued by New York’s
       highest court in Peque, rejected the automatic withdrawal of pleas entered without
       admonishments addressing potential immigration consequences. Peque, 3 N.E.3d
       at 622, 638. Contrary to defendant’s claim in the instant appeal that a due process
       violation is presumptively prejudicial, the majority in Peque required defendants to
       make a showing of prejudice before being able to withdraw their guilty pleas. In
       this case, defendant would find no relief if held to that standard.

¶ 29       Under defendant’s approach, any plea entered in the absence of a section 113-8
       admonishment would be deemed invalid and subject to withdrawal without any
       need for a showing of prejudice or denial of real justice. Without a need to
       demonstrate prejudice, an improperly admonished defendant would presumably be
       entitled to withdraw a plea even if fully informed by defense counsel about the
                                             -9-
       possible immigration consequences before entering the plea. The potential windfall
       to defendants who have suffered no prejudice or injustice without the lack of the
       statutory admonishment could be far-reaching. As the Supreme Court warned in
       Padilla, because pleas constitute “nearly 95% of all criminal convictions,” courts
       “must be especially careful about recognizing new grounds for attacking the
       validity of guilty pleas.” Padilla, 559 U.S. at 372.

¶ 30       This court acknowledged a similar need for caution in Delvillar, placing the
       burden of establishing prejudice or the denial of “real justice” on defendants who
       wish to withdraw their pleas in the absence of proper immigration admonishments.
       Delvillar, 235 Ill. 2d at 522. Even Padilla required defendants to establish a
       reasonable probability that they would not have pled guilty if they had been
       properly admonished. Padilla, 559 U.S. at 366, 374-75. We do not find defendant’s
       suggested approach sufficiently persuasive to overcome the fundamental principle
       of stare decisis and overturn our decision in Delvillar.

¶ 31        Shifting his focus, defendant next broadly asserts that if the failure to provide
       section 113-8 admonishments has no adverse consequences, trial courts will have
       little incentive to admonish even noncitizen defendants, who often face a serious
       risk of deportation. Accordingly, he asks that we construe the admonishment in
       section 113-8 to be mandatory as a matter of sound judicial policy. The State
       counters that defendant’s approach would give defense counsel a strong incentive
       to remain silent if a trial court fails to give the section 113-8 admonishment because
       the defendant would later be entitled to withdraw the plea without any showing of
       prejudice or injustice. In refuting the State’s contention, defendant notes that
       defense counsel must act in accordance with the professional duty of candor and
       may, at least arguably, violate Rule 3.3 of the Illinois Rules of Professional
       Conduct of 2010 by tacitly ignoring the trial court’s error (see Ill. R. Prof. Conduct
       (2010) R. 3.3 (eff. Jan. 1, 2010) (requiring attorneys to avoid conduct that
       undermines the integrity of the judicial process)).

¶ 32       Trial judges are under a similar duty to perform all the duties of their office in
       accordance with Canon 3 of the Code of Judicial Conduct (Ill. S. Ct. R. 63 (eff. July
       1, 2013)). We conclude it is unlikely that trial judges will knowingly fail to give
       section 113-8 admonishments to noncitizen defendants in the absence of a stronger
       incentive to comply with the law. We also decline to presume that trial judges will
       interpret our decision in this case as condoning the routine omission of
       admonishments enacted by our legislature. While our trial courts undoubtedly have
                                               - 10 -
       a statutory obligation to admonish noncitizen defendants properly, nothing in
       Padilla advances that obligation to the level of a constitutional mandate.

¶ 33       Noncitizen defendants need not be disheartened by our decision today,
       however, because our trial courts do not bear the sole burden of ensuring that
       defendants are properly admonished about the potential immigration consequences
       of entering a guilty plea. As Padilla made clear, to be constitutionally effective
       criminal defense counsel must “advise a noncitizen client that pending criminal
       charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S.
       at 369. Defense counsel is generally in a superior position than the trial court to
       make determinations about their clients’ citizenship and provide appropriate advice
       about potential immigration consequences. Libretti v. United States, 516 U.S. 29,
       50-51 (1995). As in Padilla, noncitizen defendants who do not receive that advice
       from criminal defense counsel may be entitled to relief based on counsel’s
       ineffective assistance if they can make the requisite showing of prejudice. Padilla,
       559 U.S. at 374.

¶ 34       Defendants who did not receive section 113-8 admonishments may also be
       entitled to withdraw their pleas if they have been denied “real justice” or have
       suffered prejudice. Delvillar, 235 Ill. 2d at 522. Before this court, however,
       defendant has not raised that argument or provided any evidence supporting a claim
       that he would not have pled guilty if he had been properly admonished.



¶ 35                                   III. CONCLUSION

¶ 36       For the reasons stated, we decline to overrule our decision in Delvillar in light
       of the Supreme Court’s ruling in Padilla and defendant’s arguments. We affirm the
       appellate court’s judgment upholding the denial on direct appeal of defendant’s
       motion to withdraw the guilty plea.



¶ 37      Appellate court judgment affirmed.




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