                                  Illinois Official Reports

                                          Appellate Court



                         People v. Guzman-Ruiz, 2014 IL App (3d) 120150



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      JOVITA GUZMAN-RUIZ, Defendant-Appellant.




District & No.               Third District
                             Docket No. 3-12-0150



Filed                        March 6, 2014



Held                         The denial of defendant’s postconviction petition alleging that her
(Note: This syllabus         counsel failed to advise her that she would be deported if she was
constitutes no part of the   convicted of unlawful possession with intent to deliver more than
opinion of the court but     2,000 grams but less than 5,000 grams of cannabis was reversed and
has been prepared by the     remanded for further proceedings, regardless of the fact that the trial
Reporter of Decisions        court provided admonishments about the possibility of deportation,
for the convenience of       since her counsel’s erroneous advice prejudiced her where she pled
the reader.)                 guilty and was sentenced to a short term, but was deported shortly
                             after her release from jail.




Decision Under               Appeal from the Circuit Court of Rock Island County, No.
Review                       09-CF-1097; the Hon. F. Michael Meersman, Judge, presiding.




Judgment                     Reversed and remanded.
     Counsel on               Santiago A. Durango (argued), of State Appellate Defender’s Office,
     Appeal                   of Ottawa, for appellant.

                              John L. McGehee, State’s Attorney, of Rock Island (Justin A. Nicolosi
                              (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                              counsel), for the People.




     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Justice O’Brien concurred in the judgment and opinion.
                              Justice Schmidt dissented, with opinion.




                                                OPINION

¶1         Defendant Jovita Guzman-Ruiz appeals from the denial of her petition for relief under the
       Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)) following a third-stage
       evidentiary hearing after the trial court found she was not prejudiced by counsel’s failure to
       inform her that deportation was likely following a guilty plea admitting she unlawfully
       possessed several pounds of cannabis. We reverse and remand the matter for further
       proceedings.

¶2                                                FACTS
¶3         On December 15, 2009, the State charged defendant by information with one count of
       unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2008)), a Class 1 felony. Count II
       alleged the offense of unlawful possession with intent to deliver more than 2,000 grams but not
       more than 5,000 grams of cannabis (720 ILCS 550/5(f) (West 2008)), also a Class 1 felony. On
       June 8, 2010, defendant entered into a fully negotiated guilty plea by pleading guilty to count II
       as charged for the unlawful possession of more than 2,000 grams but not more than 5,000
       grams of cannabis with intent to deliver.
¶4         The factual basis provided by the State to the court established that on December 14, 2009,
       defendant signed for, and accepted, a package addressed to Oscar Guzman, at her residence.
       Defendant did not open the package or examine the contents, but immediately placed the
       unopened package under a blanket in her garage. Upon execution of a search warrant, police
       discovered the hidden package in the garage and found it to contain 10 pounds of cannabis.
       After being informed of her Miranda rights, defendant admitted her cousin Oscar paid her
       $200 to accept his packages and then contact Oscar to pick up the packages from her home.
       According to the factual basis, defendant knew Oscar distributed cannabis. The trial court then
       accepted defendant’s guilty plea, entered judgment on count II, and dismissed count I.


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¶5       The court informed defendant, that pursuant to her plea of guilty to count II, she was
     sentenced to 180 days of incarceration and 30 months of probation. After admonishing
     defendant regarding her right to appeal, the following discussion took place:
                 “THE COURT: Now, I didn’t ask her before, but I probably should have. Is she
             a–Is she a United States citizen?
                 THE DEFENDANT: No.
                 THE INTERPRETER: No.
                 THE COURT: Okay. Then there’s one last thing I have to admonish you of.
             Because you are not a citizen, you need to understand that with this plea you’ve entered
             you may be subject to the consequences of deportation, exclusion from admission to
             the United States, or denial of naturalization under the laws of the United States.
                 Do you understand that?
                 (The defendant replies in Spanish.)
                 They haven’t placed a hold on you. They haven’t arrested you for ICE so chances
             are, if they haven’t already, they’re not going to. But, technically, obviously they can
             always pick you up and deport you solely on the basis of this conviction because you
             were not a naturalized citizen.
                 Okay. Does she have any questions?
                 (An off-the-record discussion was had.)
                 THE INTERPRETER: She’s–
                 MS. KAUZLARICH [Assistant State’s Attorney]: She’s a resident. She’s not a
             U.S. citizen.
                 THE INTERPRETER: She’s not a U.S.–
                 MS. KAUZLARICH: She’s not a U.S. citizen.
                 THE INTERPRETER: Yeah, she’s not a U.S. citizen, but she has–
                 THE COURT: Right. I’m supposed to read it if they’re not absolute citizens,
             because, you know, we have no idea what ICE is doing these days.
                 MR. JACKSON [defense counsel]: No. Every day is a different one.
                 THE COURT: Yes. So good luck, ma’am. Don’t be getting any packages that
             aren’t yours.”
¶6       Defendant completed her 180-day jail sentence and was deported shortly after her release
     from jail in late 2010. Defendant subsequently filed two separate motions requesting the court
     to set aside her guilty plea, which were denied by the court.
¶7       On September 23, 2011, defendant sought relief under the Post-Conviction Hearing Act
     asserting her trial counsel was ineffective for failing to advise defendant she would be deported
     following a conviction for unlawful possession with intent to deliver more than 2,000 grams
     but not more than 5,000 grams of cannabis. Since her attorney indicated deportation was a
     possibility, but “very unlikely,” in her case, defendant alleged she relied on this inaccurate
     advice when she accepted the fully negotiated plea agreement. At the time defendant filed her
     postconviction petition, she was being held in immigration detention out of state.
¶8       The court denied the State’s motion to dismiss defendant’s postconviction petition on
     November 16, 2011. Consequently, the court considered the merits of defendant’s
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       postconviction petition following a third-stage evidentiary hearing that took place on February
       17, 2012.
¶9          During the hearing, the court accepted defendant’s affidavit as her testimony, since she was
       unable to attend due to her deportation. Defendant’s affidavit averred that her attorney advised
       her to plead guilty and her “immigration status won’t be affected.” Defendant also alleged in
       her affidavit that her attorney “assured” her “immigration consequences would be very
       unlikely. He gave me the same piece of legal advice on several occasions, and not once did he
       warn me about deportation.”
¶ 10        Trial counsel testified that he advised defendant he “cannot guarantee what the
       government’s going to do if she’s convicted as a felon.” When asked if he told defendant she
       would not be deported, counsel stated “Absolutely not. I do a heavy Hispanic representation
       and I’ve been doing this for a long time since immigration came to town. That’s [sic] last thing
       I would tell anyone.” On cross-examination, counsel admitted he did not research the federal
       statutes to determine whether the crime to which defendant intended to plead guilty would
       affect her immigration status. In addition, when asked if he warned defendant she would be
       deported, counsel responded:
                “[Did I] tell her that she would be [deported]? I don’t say that. I say I can’t guarantee
                what they are going to do to you because that’s not my line of work and *** because I
                don’t know what they are going to do because you never know what the immigration
                people do. Some people you think would be deported immediately nothing happens to,
                and other people who do [sic] slightest thing other people they are out of here. There’s
                no rhyme or reason to it.”
¶ 11        At the close of testimony, the trial court noted “this case comes down to the fact that she
       received a huge break. She was looking at thirty years in prison based upon the evidence. And
       the evidence–this isn’t a case where the evidence is close.” The court continued, “She got
       probation. She got a h*** of a deal” and her attorney “did her a h*** of [a] favor, even though
       it didn’t turn out that way, to get her the plea deal she [sic] did.”
¶ 12        The court concluded that, even though it did not admonish defendant until after she
       accepted the plea agreement, “the bottom line is she was admonished.” The court stated it
       found defense counsel’s testimony to be truthful and that defendant knew it was a “roll of the
       dice” regarding whether she would be deported. Based on these findings, the court denied
       defendant’s petition for postconviction relief. Defendant appeals.

¶ 13                                           ANALYSIS
¶ 14       On appeal, defendant alleges her trial counsel was ineffective for failing to recognize, and
       then inform her, she would be deported following her guilty plea for a felony offense involving
       the unlawful possession of several pounds of cannabis. Consequently, defendant argues she
       was denied her constitutional right to effective assistance of counsel and claims the trial court
       improperly denied her postconviction petition after a third-stage evidentiary hearing.
¶ 15       The State responds the trial court’s denial of defendant’s postconviction petition was not
       manifestly erroneous for two reasons. First, the State argues trial counsel was not ineffective
       since he advised defendant she could potentially be deported. Second, the State claims
       defendant did not suffer any prejudice from counsel’s purported ineffective assistance.

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¶ 16       The Post-Conviction Hearing Act provides a remedy to a criminal defendant whose
       constitutional rights were substantially violated in his original trial or sentencing hearing. 725
       ILCS 5/122-1 et seq. (West 2008). The Act provides a three-stage process. 725 ILCS
       5/122-2.1(a) (West 2008). A third-stage hearing involves an evidentiary hearing on the merits
       of the petition. 725 ILCS 5/122-6 (West 2008). In this case, defendant’s postconviction
       petition reached the third stage, and the trial court was called upon to determine witness
       credibility, decide the weight to be given testimony and evidence, and resolve any evidentiary
       conflicts. People v. Carter, 2013 IL App (2d) 110703, ¶ 74. The trial court’s decision
       following the third-stage evidentiary hearing will not be reversed on review unless it is
       manifestly erroneous. Id.
¶ 17       To prevail on a claim of ineffective assistance of trial counsel, as defendant alleges in her
       postconviction petition, defendant must establish trial counsel’s performance was deficient
       and counsel’s unprofessional conduct caused prejudice to defendant. Strickland v.
       Washington, 466 U.S. 668, 687 (1984). The first prong of an analysis under Strickland requires
       defendant to show that trial counsel’s representation fell below an objective standard of
       reasonableness. Strickland, 466 U.S. at 687-88.
¶ 18       While before the trial court, in this case, defense counsel agreed he did not advise
       defendant she would be deported. He testified that he is an experienced attorney with a “heavy
       Hispanic” caseload, but he could never be certain of “what the immigration people do.”
       Specifically, defense counsel stated:
                “[Did I] tell her that she would be [deported]? I don’t say that. I say I can’t guarantee
                what they are going to do to you because that’s not my line of work and *** because I
                don’t know what they are going to do because you never know what the immigration
                people do.”
       Further, defense counsel testified he did not perform any legal research to determine whether
       defendant’s conviction would trigger deportation. We do not disagree with the trial court’s
       finding that counsel’s testimony, in this regard, was truthful.
¶ 19       However, we begin by examining the applicable federal statute and recent case law
       interpreting the statute to determine whether counsel’s advice was reasonable in this case.
       Section 1227(a)(2)(B)(i) of title 8, the applicable federal statute, addresses deportation
       consequences for a nonresident following a conviction related to the possession of a controlled
       substance. 8 U.S.C. § 1227(a)(2)(B)(i) (2006). The relevant provision applicable to this case
       provides:
                    “Any alien who at any time after admission has been convicted of a violation of (or
                a conspiracy or attempt to violate) any law or regulation of a State, the United States, or
                a foreign country relating to a controlled substance ***, other than a single offense
                involving possession for one’s own use of 30 grams or less of marijuana, is
                deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (2006).
¶ 20       In Padilla v. Kentucky, 559 U.S. 356 (2010), a decision issued by the United States
       Supreme Court only three months prior to this defendant’s plea of guilty, the Court considered
       this statute and determined that defense counsel has a duty to advise a noncitizen client that a
       conviction for possession of more than 30 grams of cannabis carries the “practically
       inevitable” collateral consequence of deportation. Padilla, 559 U.S. at 363-64. Thus, even if

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       defense counsel in this case did not research the applicable federal statute, the holding in that
       landmark decision should have been familiar to this attorney, who handles a “heavy Hispanic”
       caseload. Counsel should have known he was required to instruct defendant that due to the
       amount of cannabis she was willing to admit she possessed, subsequent deportation would be
       “presumptively mandatory.” Padilla, 559 U.S. at 368-69. Consequently, we conclude defense
       counsel’s representation fell below an objective standard of reasonableness when he failed to
       accurately inform defendant that, if she accepted the plea agreement, deportation would be
       imminent.
¶ 21       Yet, the trial court denied defendant’s postconviction petition primarily because the court
       itself provided separate admonishments regarding deportation to this defendant during her plea
       hearing. While ruling on defendant’s postconviction petition, the court noted that, based on its
       admonishments, defendant knew at the time of her plea, she was taking a “roll of the dice”
       regarding deportation, specifically noting that “the bottom line is she was admonished.”
¶ 22       We recognize that, in some cases, a trial court’s subsequent admonishments may
       counterbalance, and even correct, the deficient legal advice provided by defense counsel (see
       People v. Hall, 217 Ill. 2d 324, 340-41 (2005)), but we conclude this is not such a case. In
       addition to the statutorily suggested admonishments regarding deportation, the court further
       commented:
                “They haven’t placed a hold on you. They haven’t arrested you for ICE so chances are,
                if they haven’t already, they’re not going to.”
       The court then stated: “But, technically, obviously they can always pick you up and deport you
       solely on the basis of this conviction because you were not a naturalized citizen.” Based on the
       unique sequence of events in this case, we conclude the trial court’s admonishments did not
       overcome the ineffective assistance of defense counsel since the court minimized any concerns
       about the risk of deportation and, by doing so, reinforced counsel’s deficient advice.
¶ 23       Next, we consider whether the trial court’s finding that counsel’s advice did not prejudice
       defendant was also contrary to the manifest weight of the evidence. Strickland, 466 U.S. at
       687. An offender satisfies the prejudice prong by demonstrating she rationally could have
       rejected the agreement and gone to trial regardless of whether she could prove the existence of
       a valid defense. People v. Guzman, 2014 IL App (3d) 090464, ¶ 33.
¶ 24       In this case, defendant’s goal was to remain in the United States, not to avoid a conviction
       and lengthy sentence of incarceration. Thus, the court erred by focusing on whether defendant
       received a “h*** of a deal” because she received a lenient sentence. In fact, the Padilla Court
       emphasized that preserving a defendant’s right to remain in the United States for any
       additional length of time may be more important to a defendant than a potential lengthy period
       of incarceration following a conviction. Padilla, 559 U.S. at 368.
¶ 25       We acknowledge the decision in Padilla changed the landscape for practitioners
       representing noncitizen clients by requiring defense counsel to provide accurate information
       concerning collateral immigration consequences to their clients. In other words, prejudice
       from ineffective assistance of counsel arises when an accused pleads guilty without being fully
       informed by defense counsel that the guilty plea accelerates “presumptively mandatory”
       deportation. Since Padilla, a trial court should not determine whether the negotiated agreement
       resulted in a shorter sentence but, rather, whether defendant knew, based on the advice of

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       defense counsel, that admitting a particular offense would accelerate deportation proceedings.
       Due to the ineffective advice of trial counsel in this case, defendant could not have known she
       faced “presumptively mandatory” deportation by pleading guilty to count II, which could have
       been postponed by insisting on a trial on the merits.
¶ 26       In People v. Guzman, the accused alleged that, due to ineffective assistance of trial counsel,
       his guilty plea was not well-informed because counsel failed to advise him of any risk of
       deportation at the time he entered his guilty plea. Guzman, 2014 IL App (3d) 090464, ¶ 32.
       This court concluded, had defendant been aware of the risk of collateral consequences of
       deportation when he pled guilty, he could have made the rational decision to reject the plea
       agreement, rather than accept a plea of guilty that guaranteed his removal, resulting in
       prejudice. Id. ¶ 35.
¶ 27       Similarly, defendant’s affidavit alleges she would not have accepted the negotiated
       agreement if defense counsel had accurately advised her that a conviction for possession of
       more than 30 grams of cannabis guaranteed her removal. It is undisputed that defendant was, in
       fact, swiftly placed in immigration detention, after she completed her short 180-day jail
       sentence, but before she filed her postconviction petition. Defendant was subsequently
       deported.
¶ 28       Consequently, because defendant’s affidavit establishes she would not have elected to
       accelerate the process of deportation, we conclude the trial court’s finding that defendant did
       not suffer any prejudice, based on counsel’s ineffective advice, was contrary to the manifest
       weight of the evidence. For these reasons, we reverse the trial court’s denial of defendant’s
       postconviction petition and remand the matter to the trial court for further proceedings.

¶ 29                                         CONCLUSION
¶ 30       For the foregoing reasons, the judgment of the circuit court of Rock Island County denying
       defendant’s postconviction petition for relief is reversed.

¶ 31      Reversed and remanded.

¶ 32       JUSTICE SCHMIDT, dissenting.
¶ 33       Leaving aside complex federal immigration issues, this case is a relatively simple one.
       Defendant, in lieu of going to trial and facing a 30-year sentence, accepted a plea for 180 days’
       incarceration and 30 months’ probation. Defendant served 180 days and was subsequently
       deported. Defendant filed a petition for postconviction relief, alleging her guilty plea counsel
       was ineffective for failing to affirmatively inform her that she was subject to automatic
       deportation if she pled guilty to unlawful possession of cannabis with intent to deliver.
¶ 34       Ineffective assistance of counsel claims, including those arising from a guilty plea, are
       analyzed under the rubric set forth in Strickland v. Washington, 466 U.S. 668 (1984). In order
       to prevail on the claim, 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. Id. at 687; People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 35       Unlike the majority, I find defendant failed to prove her guilty plea counsel’s
       representation fell below an objective standard of competence. Counsel testified that he did not
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       advise defendant that she would not be deported. He stated only that he did not know what the
       immigration authorities would do, as that is not his line of work. This, however, does not
       warrant further discussion. Even assuming defendant’s counsel was constitutionally deficient,
       this case can be resolved on the prejudice prong alone. Both the United States Supreme Court
       and the Illinois Supreme Court have indicated that if it is easier to dispose of an ineffectiveness
       claim on the grounds of lack of sufficient prejudice, it is not necessary to first address whether
       defense counsel’s performance was deficient. Strickland, 466 U.S. at 697; People v. Albanese,
       104 Ill. 2d 504, 527 (1984).
¶ 36        To establish prejudice, defendant has to show a reasonable probability that, but for
       counsel’s errors, she would not have pled guilty and would have insisted on going to trial. See
       People v. Rissley, 206 Ill. 2d 403, 457 (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 (2005). “Rather, 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.” Id. at 335-36.
¶ 37        Here, defendant states only that she would not have pled guilty had she been correctly
       informed of the deportation consequences. Defendant failed to assert either innocence or a
       plausible defense in any of her postconviction pleadings, including her two untimely motions
       to withdraw her plea and the petition for postconviction relief itself. Like that of the trial court,
       my review of the record indicates that the evidence is not close–after being properly
       Mirandized, defendant admitted that she knew her cousin dealt cannabis, that her cousin paid
       her to accept packages, and that she had looked inside one of the packages before and
       concluded her cousin was probably shipping something illegal to her. These facts obviate both
       a claim of innocence and a plausible defense.
¶ 38        Overlooking the absence of either one of those requirements, defendant still failed to
       articulate how her alleged ignorance of the deportation consequences factored into her
       decision to plead guilty. In other words, she does not explain why, had she known of that
       consequence, she would have pleaded not guilty and insisted on going to trial.
¶ 39        In finding that defendant satisfied the prejudice prong of Strickland, the majority states,
       “[i]n this case, defendant’s goal was to remain in the United States, not to avoid a conviction
       and lengthy sentence of incarceration.” Supra ¶ 24. Says the defendant. The majority also goes
       on to state that since Padilla, 559 U.S. at 368-69, prejudice from ineffective assistance of
       counsel arises when an accused pleads guilty without being fully informed by defense counsel
       that the guilty plea accelerates “presumptively mandatory” deportation. Supra ¶ 20. Yet, the
       Padilla Court did not address whether the defendant proved he was prejudiced pursuant to
       Strickland’s second prong. That determination was left to Kentucky’s supreme court on
       remand. Padilla, 559 U.S. at 369. The majority misconstrues the holding of Padilla.
¶ 40        Admittedly, the Padilla Court emphasized that “[p]reserving the client’s right to remain in
       the United States may be more important to the client than any potential jail sentence.”
       (Internal quotation marks omitted.) Padilla, 559 U.S. at 368. However, Padilla also stated “a
       petitioner must convince the court that a decision to reject the plea bargain would have been
       rational under the circumstances.” Id. at 372 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480,
       486 (2000)). Here, defendant simply says it and the majority is convinced. I cannot imagine
                                                     -8-
       how rejection of the plea offer in this case would have been rational. Had defendant chosen to
       go to trial, she would not have been spared deportation once convicted, and would have also
       been subjected to a much longer prison sentence. The trial court correctly observed that
       defendant received a “hell of a deal”–defendant faced 30 years if she went to trial and was
       convicted, versus 6 months and 30 months’ probation pursuant to the plea.
¶ 41       No rational person, other than perhaps a disfavored relative of Kim Jong Un facing
       deportation to North Korea, would choose 30 years in the state penitentiary followed by
       deportation over the deal defendant took. Nonetheless, the majority simply accepts defendant’s
       statement as true: “defendant’s affidavit establishes she would not have elected to accelerate
       the process of deportation.” Supra ¶ 28. Well, I suppose that defendant would not “elect to
       accelerate the process of deportation.” But that is not what defendant “elected.” She “elected”
       to do 6 months before facing deportation over the possibility of 30 years before deportation.
       That is, she “elected” to avoid 29½ years in prison, the only rational choice she had under the
       circumstances.
¶ 42       The manifest weight of the evidence upon which the majority relies to reverse the trial
       court is defendant’s bare assertion contained in an affidavit. I, therefore, respectfully dissent. I
       would affirm the trial court.




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