                                                                   FOURTH DIVISION
                                                                   September 30, 2015

2015 IL App (1st) 142260

No. 1-14-2260

THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from the
                                                           )       Circuit Court of
       Plaintiff-Appellee,                                 )       Cook County.
                                                           )
       v.                                                  )       No. 10 CR 10878
                                                           )
JOAN LOPEZ,                                                )       Honorable
                                                           )       Maura Slattery-Boyle,
       Defendant-Appellant.                                )       Judge Presiding.

       JUSTICE HOWSE delivered the judgment of the court, with opinion.
       Presiding Justice McBride and Justice Ellis concurred in the judgment and opinion.

                                          OPINION

¶1     On August 4, 2010, defendant, Joan Lopez, pled guilty to possession of a controlled

substance. The circuit court of Cook County accepted the parties’ plea agreement and

sentenced defendant to “24 months’ 410 probation.” In April 2011 defendant filed a

document titled “Amended Motion to Withdraw Plea of Guilty.” The trial court treated

defendant’s pleading as a petition for postconviction relief and it was summarily dismissed.

This court reversed, finding defendant stated the gist of a constitutional claim counsel was

ineffective for failing to properly advise defendant of the immigration consequences of his

plea. On remand, the trial court granted the State’s motion to dismiss the petition.

¶2     For the following reasons, we reverse.

¶3                                    BACKGROUND

¶4     The factual basis for defendant’s guilty plea established that police arrested defendant

smoking a hand-rolled cigar that smelled of cannabis and seized a bag filled with a substance

determined to be cannabis from defendant’s waistband. The cigar contained 0.6 grams of
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cannabis and the bag contained 195.1 grams of cannabis. At defendant’s plea hearing, the

State advised the court that in exchange for defendant’s plea of guilty, the “State is offering

410 probation.” The trial court admonished defendant he was charged “with the offense of

possession of controlled substance” and that the offense was a Class 4 felony. The State asked

for “leave for an amendment not to the class, but the amount” of controlled substance alleged

in the information. The court allowed leave to amend.

¶5     The trial court admonished defendant as to his rights with regard to pleading guilty.

The following colloquy pertinent to this appeal occurred:

                     “THE COURT: Sir, are you a United States citizen?

                      THE DEFENDANT: No.

                      THE COURT: You’re not?

                      THE DEFENDANT: No.

                      THE COURT: Sir, do you understand--are you or are you--are

               you a United State’s citizen, yes or no?

                      THE DEFENDANT: No.

                      THE COURT: Okay. Do you understand, sir, that this felony

               conviction, while it is right now may affect your future status in this

               country? Sir, do you understand that?

                      THE DEFENDANT: Yes, [Y]our Honor.

                      MR. BENESH [Assistant Public Defender]: Your Honor, for the

               record, we did discuss that on the 15th of July.




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                       THE COURT: Is that correct? You had this discussion with

               Mr. Benesh about how this may affect your status in this country?

                       THE DEFENDANT: Yes.

                       THE COURT: Do you still wish to persist with your plea of

               guilty, knowing this may affect your status in the country?

                       THE DEFENDANT: Yes, [Y]our Honor.”

¶6     The trial court stated defendant “does understand this may impact his status in the

country from [sic] the future and he wishes to still plead guilty.” The court stated it would

accept the plea agreement, found defendant guilty, and sentenced him to “24 months 410

probation.” The record indicates that the court entered a conviction for possession with

intent to deliver more than 10 but less than 30 grams of cannabis in violation of section 5(c) of

the Cannabis Control Act (720 ILCS 550/5(c) (West 2010)). Defendant never completed his

probation because he was deported.

¶7     In April 2011 defendant filed a document titled “Amended Motion to Withdraw Plea

of Guilty.” Defendant brought the motion pursuant to section 122-1 of the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 (West 2010)); section 2-1401 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1401 (West 2010)); Illinois Supreme Rule 604(d) (eff. July 1,

2006) and Rule 402(a) (eff. July 1, 1997); and Padilla v. Kentucky, 559 U.S. 356 (2010). The

trial court, and the parties, treated the motion as a petition for postconviction relief.

Defendant’s petition sought to withdraw his guilty plea on the grounds he was not advised of

the nature of the charge he was pleading guilty to and his attorney did not inform him of the

consequences of his plea. Defendant specifically alleged, in pertinent part, as follows:


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               “2.    Defendant thought that he was pleading guilty to

                      possession of a controlled substance as this was the charge

                      admonished by this Honorable Court. [Citation.]

               3.     But the certified disposition of these proceedings show

                      [sic] that Defendant was convicted of manufacturing and

                      delivery. [Citation.]

               4.     Before Defendant’s plea of guilty in this matter, he was

                      not informed by his defense attorney of the immigration

                      consequences of this plea of guilty and Defendant was not

                      aware that he was pleading guilty to manufacturing and

                      delivery of cannabis. [Citation.]

               5.     Had Defendant known of the true nature of the charge

                      and the harsh immigration consequences that would arise

                      out of this plea he would not have pled guilty.

                                              ***

               8.     Defendant was prejudiced when he was not advised of the

                      true nature of the charge and when he pled guilty to

                      manufacturing and delivery.”

¶8     Defendant attached his own affidavit in support of the petition. Defendant averred

that prior to the hearing on his guilty plea (he did not state a date), his attorney informed him

the State had “two separate” plea agreement offers. The first offer was for defendant to plead




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guilty and receive “a stricter form” of probation that would be added to his criminal record.

Defendant then averred, in pertinent part, as follows:

                     “The second plea offer was for a more serious charge

              (Manufacture and Delivery of Cannabis) but the *** Public

              Defender misled me to believe I would get a less stringent form

              of Probation by pleading guilty to this charge, and the

              conviction would not be added to my criminal record, and that

              this conviction would not have adverse immigration

              consequences.” (Emphases omitted.)

¶9     The trial court held a hearing on defendant’s petition. The court found it had been

made clear to defendant when he pled guilty that a felony conviction would impact his

immigration status. The court also found the conviction was not for manufacture and

delivery, but both charges were Class 4 felonies with identical sentencing guidelines.

Defendant’s attorney asked whether the judgment could be amended to reflect that defendant

was convicted of possession of a controlled substance but the trial court refused. The court

dismissed defendant’s petition. Defendant filed a motion to reconsider. Defendant’s attorney

argued, in part, that defendant was not fully apprised of the nature of the charge to which he

pled guilty, where he was advised the charge was possession of a controlled substance but the

judgment states defendant was convicted of possession with intent to deliver. The trial court

denied defendant’s motion to reconsider the order dismissing the petition.

¶ 10   Defendant appealed, arguing, in pertinent part, his trial counsel was ineffective for

misadvising him of the immigration consequences of the guilty plea, the trial court failed to


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sufficiently admonish him of the nature of the charge as required by Rule 402(c), and his due

process rights were violated because he was never advised of the true charge. This court found

that the penal consequences of possession of a controlled substance and possession with intent

to deliver were the same in this case and the trial court was not required to admonish

defendant of collateral consequences, including the effect of the plea on defendant’s

immigration status. Therefore, this court found, the trial court substantially complied with

Rule 402 by informing defendant of the direct consequences of his plea and defendant was not

prejudiced by the court’s incomplete admonishments. Consequently, the court did not

violate defendant’s due process rights.

¶ 11   This court also found that accepting as true defendant’s allegation that his attorney

advised him that pleading guilty to a charge of manufacture and delivery of cannabis would

not have adverse immigration consequences, defendant sufficiently alleged a constitutional

deprivation to survive dismissal at the first stage of postconviction proceedings. This is

because under the Deportation of Aliens statute (8 U.S.C. § 1227(a)(2)(B)(i) (2006)), a

conviction for a violation of any offense relating to a controlled substance, “other than a

single offense involving possession *** of 30 grams or less of marijuana, is deportable.” This

court reversed the first-stage dismissal and remanded for further proceedings.

¶ 12   On remand, the State filed a motion to dismiss. In the State’s motion to dismiss it

stated that “defendant entered a plea of guilty to the amended charge of Delivery of Cannabis

of between 10-30 grams, which is also a Class 4 felony, and was sentenced to 24 months’ 410

probation pursuant to 720 ILCS 550/10.” Defendant filed a response to the State’s motion to




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dismiss and supported it with his own affidavit. In his affidavit in support of his response to

the State’s motion to dismiss, defendant averred, in pertinent part, as follows:

                      “On July 15, 2010, Cook County Public Defender Mr.

               Benesh, Mrs. De la Rosa, and I, Joan Ruben Lopez, had a

               discussion about a plea bargain offered by the state Prosecutor in

               exchange for a guilty plea. Mr. Benesh and Mrs. De la Rosa

               explained that for my plea of guilty to possession of cannabis, I

               would get a type of special probation that was less stringent for

               first time convicted felons. ***

                      Mr. Benesh and Mrs. De la Rosa advised me that this was

               the best plea bargain because it would not have adverse

               immigration consequences. They never advised me that it would

               cause me to be immediately deported from the United States of

               America and separated from my family. If they would have

               explained to me that by pleading guilty I would have been exiled

               from this country forever, I never would have pleaded guilty or

               rather would have ask [sic] for a modification to avoid getting

               automatically deported.” (Emphases omitted.)

¶ 13   The State argued that to plead prejudice so as to survive the second stage of

postconviction proceedings defendant was required to plead actual innocence or a plausible

defense and he failed to do so. The trial court stated that the court recalled asking defendant if

he had spoken with his attorney and defendant responded “Yes.” At the hearing on the


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State’s motion to dismiss, the court stated: “Then, I indicated as well that ‘do you understand

that you may be deported.’ He said he did understand that, and he said he wished to continue

with the plea of guilty.” The court granted the motion to dismiss the petition.

¶ 14   When defendant’s attorney asked about the standard at the second stage of

postconviction proceedings being that all well-pled allegations are taken as true to determine

whether they allege a constitutional violation, the court explained as follows: “I understand

that, but given what I have, I don’t even find that it’s well-pled. That’s what I’m finding here,

is that there’s no actual pleading, even if taken true, one that there is a constitutional

violation, and two that he’s prejudiced [sic] actual innocence under Strickland ineffectiveness.

He can’t even prove the two prongs.” When defense counsel argued defendant was

misadvised about the consequences of his guilty plea, the trial court found “that was a result

later on.”

¶ 15   Subsequently, the trial court denied defendant’s motion to reconsider the order

granting the State’s motion to dismiss. In ruling on the motion to reconsider, the court stated

that it found the deficiency in the allegations of prejudice to be significant. The court found

that the prejudice alleged was separation from defendant’s family after he was deported. The

court ruled: “my previous order to stand, based on the lack of showing of prejudice ***.”

Defense counsel argued that under Padilla, to show prejudice defendant had to demonstrate

that the decision to reject the plea would have been rational under the circumstances. The

court rejected that argument reasoning that the plea was negotiated with “a subsequent

deportation.”

¶ 16   This appeal followed.


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¶ 17                                      ANALYSIS

¶ 18   We review a judgment granting a motion to dismiss a petition for postconviction relief

at the second stage of postconviction proceedings de novo. People v. Garcia, 405 Ill. App. 3d

608, 614 (2010). At the second stage of postconviction proceedings, we must determine

whether the well-pled allegations in the complaint make a substantial showing of a violation

of defendant’s constitutional rights. People v. Flowers, 2015 IL App (1st) 113259. ¶ 31. Well-

pled allegations are those not positively rebutted by the record. Id. The “substantial

showing” that must be made is that the well-pled allegations, if proven at an evidentiary

hearing, would entitle defendant to relief. People v. Domagala, 2013 IL 113688, ¶ 35.

Defendant raised two claims: (1) defendant received ineffective assistance of counsel because

counsel failed to advise defendant of the immigration consequences of pleading guilty to

manufacture and delivery of cannabis, and (2) the trial court failed to advise defendant of the

nature of the charge to which he pled guilty, specifically manufacture and delivery of

cannabis.

¶ 19   This court has previously found that the trial court did not violate defendant’s

constitutional rights by failing to inform him of the nature of the charge. We found that

although the admonishments were “incomplete,” defendant was not prejudiced by them.

People v. Lopez, 2013 IL App (1st) 112017-U, ¶ 33. 1 We determined defendant was not




       1
               An order entered under Illinois Supreme Court Rule 23(b) (eff. Jan. 1, 2011)
       may not be cited by any party except to support law of the case. “The law of the case
       doctrine bars relitigation of an issue that has already been decided in the same case such
       that the resolution of an issue presented in a prior appeal is binding and will control
       upon remand in the circuit court and in a subsequent appeal before the appellate court.

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prejudiced by the trial court’s failure to properly admonish defendant that he was pleading

guilty to possession with intent to deliver and erroneously admonishing defendant he was

pleading guilty to simple possession because the penal consequences (of which defendant was

advised) for both offenses are the same, and the trial court was not required to admonish

defendant of the collateral consequences, such as immigration consequences, of his plea. Id.

(citing People v. Delvillar, 235 Ill. 2d 507, 521 (2009)).

¶ 20   Confining his argument to the issue of counsel’s deficient performance, on appeal

defendant argues the trial court employed an improper analysis to dismiss his postconviction

petition at the second stage of postconviction proceedings because the court failed to take the

well-pled allegations in the petition as true. Defendant argues those allegations are sufficient

to make a substantial showing of prejudice from counsel’s deficient performance in failing to

admonish him of the consequences of pleading guilty to manufacture and delivery of a

controlled substance, because it is rational defendant would have rejected the offer to plead

guilty to that offense had he known of its immigration consequences.

¶ 21   “A challenge to a guilty plea alleging ineffective assistance of counsel is subject to the

standard set forth in Strickland v. Washington, 466 U.S. 668 *** (1984).” People v. Hall, 217 Ill.

2d 324, 334-35 (2005).

               “[T]he sixth amendment guarantees a defendant the right to

               effective assistance of counsel at all critical stages of the criminal

               proceedings, which include the entry of a guilty plea. [Citation.]



       [Citation.]” (Internal quotation marks omitted.) Perik v. JPMorgan Chase Bank, N.A.,
       2015 IL App (1st) 132245, ¶ 30.

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               To establish a claim of ineffective assistance of counsel in the plea

               process, the defendant must show counsel’s performance was

               deficient and that the deficient performance resulted in prejudice.

               [Citations.] More specifically, a defendant must prove that

               counsel’s performance was objectively unreasonable under

               prevailing professional norms and that there is a reasonable

               probability that, but for counsel’s unprofessional errors, the

               result of the proceeding would have been different. [Citation.]”

               (Internal quotation marks omitted.) People v. Hughes, 2012 IL

               112817, ¶ 44.

¶ 22                                  I. Deficient Performance

¶ 23   The State argues defendant’s allegation trial counsel failed to inform him of the

consequences of his guilty plea are not well-pled because they are affirmatively rebutted by the

record. We find the allegation that trial counsel failed to advise defendant of the potential

effect of his plea on his status in this country is not rebutted by the record. At defendant’s

plea hearing, the trial court admonished defendant he would be pleading guilty to

“[p]ossession of a controlled substance allegedly occurring May 16th 2010” and asked the

State: “It is as charged, correct ***?” The State confirmed the charge was possession of a

controlled substance. After the court admonished defendant as to the potential sentences,

period of mandatory supervised release, and fines for a Class 4 felony, the State asked for

“leave for an amendment not to the class, but the amount” of controlled substance alleged in

the information. The court allowed leave to amend. Although the trial court admonished


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defendant he was charged and was pleading guilty to “the offense of possession of controlled

substance” the criminal disposition sheet in the record before this court reflects that defendant

was convicted of possession of 10 to 30 grams of cannabis with intent to deliver. In our

disposition of defendant’s appeal from the summary dismissal of his postconviction claims, we

noted that during the hearing prior to the summary dismissal, the “trial court also stated that

the conviction was not for manufacture and delivery.” Lopez, 2013 IL App (1st) 112017-U, ¶

10. There is nothing in the record to indicate when or how the charge was amended from

simple possession of a controlled substance to possession with intent to deliver. If, as the trial

court found, the guilty plea and conviction is not for manufacture and delivery, then there

was no reason for the court to refuse to correct the conviction. Ensuring that the trial court’s

judgment is accurately recorded has nothing to do with “ ‘immigration and how they

interpret our law.’ ” Id. “[A] court may *** correct the record to make it accurately reflect

the judgment that was in fact entered.” (Emphasis omitted.) People v. Latona, 184 Ill. 2d 260,

278 (1998). On remand, the trial court is directed to make any corrections to the record

needed to cause the record of defendant’s proceedings to accurately reflect the court’s

judgment accepting defendant’s guilty plea, including an accurate recordation of the offense to

which defendant pled guilty. If the charge was amended to possession with intent to deliver,

the trial court is directed to make a record of when and under what circumstances the charge

was amended, because this will aid us in our evaluation of counsel’s performance should this

matter return to this court.

¶ 24   Later in the plea hearing, the trial court asked defendant if he understood “this felony

conviction *** may affect your future status in this country.” Defendant’s attorney informed


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the court they had discussed the potential effect of defendant’s guilty plea—which the court

said was to simple possession—on defendant’s future status in this country. This court has

already found that there are “irregularities in the record regarding the amendment of the

information.” Lopez, 2013 IL App (1st) 112017-U, ¶ 33. Contrary to the State’s arguments on

appeal, we find there is nothing to rebut defendant’s allegation his attorney did not admonish

defendant of the consequences of pleading guilty to possession with intent to deliver where

the matter proceeded on the assumption defendant was pleading guilty to simple possession.

¶ 25   In his second affidavit defendant averred it was “explained that for my plea of guilty to

possession of cannabis” he would receive probation and his attorneys advised him this plea

“would not have adverse immigration consequences. They never advised me that it would

cause me to be immediately deported from the United States of America.” (Emphases

omitted.) The State agues the “record positively rebuts defendant’s claim of ineffective

assistance *** in his second affidavit” because the transcript of the plea proceedings reflects

defendant “was advised *** how the guilty plea might affect his status in this country.” The

record does not reflect that defendant was advised his guilty plea would result in his

deportation. At best, the record reflects that defendant and his attorney discussed how a plea

to possession of more than 10 but less than 30 grams of cannabis “may affect” defendant’s

status. The record does not reflect what defendant’s attorney told him that effect may be. It

is plausible defendant’s attorney told him the effect may be that defendant would not be

deported. See 8 U.S.C. § 1227(a)(2)(B)(i) (2006) (conviction for a violation of any offense

relating to a controlled substance, “other than a single offense involving possession *** of 30

grams or less of marijuana, is deportable”). Just because defendant was advised of something


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does not mean he was correctly advised. “Where the defendant is pleading guilty to a

possession charge which under section 1227 is clearly deportable *** counsel must tell his

client that deportation is inevitable as a result of the plea.” Lopez, 2013 IL App (1st) 112017-

U, ¶ 40. Whatever conversation defendant and his attorney had about what the effect of his

plea “may” be, the record does not disclose that defense counsel told defendant deportation

was inevitable and, therefore, does not positively rebut defendant’s assertion counsel did not

so advise him. See Padilla, 559 U.S. at 369 (“when the deportation consequence is truly clear,

as it was in this case, the duty to give correct advice is equally clear”).

¶ 26   The State also argues that defendant’s allegation during the second-stage proceeding as

to the nature of the misadvice he received in the plea process “contradicts the description of

that misadvise defendant offered during the first-stage proceeding.” That is, the State argues

defendant’s affidavits are conflicting. The “conflict” the State points out is that during the

plea hearing, defendant and his attorney agreed that on July 15, defendant and his attorney

discussed “the potential consequences of the guilty plea for defendant’s future immigration

status” but in the affidavit offered in the second-stage proceedings, defendant averred that his

attorneys “informed defendant that a guilty plea would not have adverse immigration

consequences.” During the plea hearing neither defendant nor his attorney told the trial court

what “potential consequences” they discussed, so there is no conflict with the affidavit stating

they discussed that the plea would have no adverse consequences. We will not assume that the

consequence defendant and his attorney did discuss was deportation or that deportation was

inevitable.




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¶ 27   The State also argues that the affidavit defendant filed in response to the State’s motion

to dismiss contradicts the affidavit defendant filed in support of the motion to withdraw

guilty plea, which contained defendant’s postconviction claims. Here, the contradiction

noted by the State is that in the initial affidavit defendant averred that “he relied on the

unnamed female Public Defender’s advice in accepting the guilty plea,” but in the subsequent

affidavit defendant averred he had a conversation with Mr. Benesh and Mrs. De la Rosa on

July 15, 2010, in which they advised him his plea would have no adverse immigration

consequences. We do not find this to be a material contradiction as to defendant’s claims. It

is immaterial who gave defendant the erroneous advice, and defendant mentions the presence

of both assistant public defenders in both affidavits.

¶ 28   The State argues the record reflects defendant was given advice “correctly by attorney

Benesh” because the “trial court inquired of defendant whether he understood that a guilty

plea may affect his future immigration status and defendant responded that he did,” and

because “counsel added that he and defendant had previously discussed the issue.” As this

court has already found, “the fact that the attorney discussed the consequences does not

resolve the issue of counsel’s effectiveness. Counsel is not only required to discuss the issue of

immigration with the defendant, but also to give accurate information.” Lopez, 2013 IL App

(1st) 112017-U, ¶ 39. Here, we do not know what information counsel gave defendant,

defendant has averred the information was that there would be no adverse consequences, and

the record does not positively rebut that averment.

¶ 29   This is true regardless of whether the conversation between defendant and his attorney

was based on a plea to possession with intent to deliver or simple possession. Thus, the


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contradiction in defendant’s first and second affidavit as to the nature of the offense to which

defendant would plead guilty is inapposite. In his initial affidavit, defendant averred that the

State offered a plea bargain to the more serious charge of possession with intent to deliver,

while in the second affidavit defendant averred the offer was for a plea to possession of

cannabis. But in both affidavits, defendant averred counsel advised him his plea would have

no adverse immigration consequences. The admissions on the record that defendant and his

attorney discussed that his plea “may” affect his immigration status, without more, does not

positively rebut those averments. 2 The record currently reflects a guilty plea to the offense of

possession with intent to deliver. Counsel’s advice, if proven, that pleading guilty would have

no adverse immigration consequences, was erroneous.

¶ 30   The State asks this court to “presume that the advice Mr. Benesh provided to

defendant was accurate.” This court does not presume facts. Yet throughout these

proceedings there has been a consistent presumption that just because possession with intent

to deliver is deportable, defendant’s attorney (who defendant alleges was ineffective) told him

that in their conversation. “There is no fact finding or credibility determination at this stage.

[Citation.] As a result, the State’s motion to dismiss raises solely the issue of whether the




2
       Defendant and his attorney told the trial court at the plea hearing that they had
discussed the fact his plea may affect his immigration status. This does not establish counsel
told defendant deportation was inevitable. It is equally plausible defendant’s attorney advised
him his guilty plea should not have adverse immigration consequences, but might depending
on the decision of immigration officials. “The trial court also stated that the conviction was
not for manufacture and delivery [but] that ‘if the Illinois INS or Immigration Central
Emergency [sic] or ICE interprets the Illinois statute one way or another, that’s their
determination based upon the reading of the facts or charging document.’ ” Lopez, 2013 IL
App (1st) 112017-U, ¶ 10.

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petition is sufficient as a matter of law.” People v. Minniefield, 2014 IL App (1st) 130535, ¶ 58.

The allegations in the petition are not positively rebutted by the record. If defendant’s

allegations counsel did not give him correct advice as to the consequences of his plea to

possession with intent to deliver are proven at an evidentiary hearing, and if defendant can

satisfy the prejudice prong of Strickland, defendant will be entitled to relief. Padilla, 559 U.S.

at 369.

¶ 31                                    II. Prejudice

¶ 32      The trial court denied defendant’s motion to reconsider based on its finding defendant

failed to plead prejudice. On appeal, the State argues defendant failed to adequately plead

prejudice because defendant did not allege he was actually innocent of the offense or articulate

a plausible defense. We hold that when plea counsel fails to advise a defendant of the succinct,

clear, and explicit immigration consequences of a guilty plea, an allegation of a plausible

defense or actual innocence is not indispensible to a finding of prejudice. In Hughes, our

supreme court reiterated that:

                 “[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. [Citation.] Rather, we have

                 found that a defendant must assert either a claim of actual

                 innocence or articulate a plausible defense that could have been

                 raised at trial. [Citation.] *** [W]e have noted that the question

                 will depend largely on predicting whether the defendant would




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                 have likely been successful at trial. [Citation.]” Hughes, 2012 IL

                 112817, ¶ 64 (citing Hall, 217 Ill. 2d at 335-36).

¶ 33      But, our supreme court went on to “recognize that there may be circumstances where

a defendant could prove that the deficient performance affected the outcome of the plea

process in other ways, [and] as with all applications of the second prong of the Strickland test,

the question whether a given defendant has made the requisite prejudice showing will turn on

the facts of a particular case.” Id. ¶ 65. The Hughes court cited Padilla, which held that “to

obtain relief on this type of claim, 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 372.

¶ 34      In Hughes, the defendant pled guilty to one count of aggravated criminal sexual abuse.

Hughes, 2012 IL 112817, ¶ 1. The Attorney General filed a petition to commit the defendant

as a sexually violent person under the Sexually Violent Persons Commitment Act (725 ILCS

207/1 et seq. (West 2006)). The next day, the defendant filed a motion to withdraw his guilty

plea, alleging that he was never advised by the court or his counsel of the possibility that the

State could file a sexually violent person petition as a result of the plea and, consequently, he

did not knowingly and voluntarily enter the plea. Hughes, 2012 IL 112817, ¶ 10. The court

held the trial court did not err in denying defendant’s motion to withdraw his plea. Id. ¶ 71.

The court held the defendant did not articulate any prejudice “beyond stating that had he

known of the possibility for civil commitment he would not have pled guilty because he

thought that it would resolve the matter.” Id. ¶ 66. We find Hughes distinguishable.




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¶ 35   First, although stated in connection with its finding counsel’s performance was not

deficient, we think it pertinent to the absence of a showing of prejudice in that case that the

“defendant was less than clear as to whether he had discussed the possibility of a sexually

violent person petition with counsel and the extent of that conversation and his knowledge

prior to the plea.” Id. ¶ 62. If the defendant had knowledge a sexually violent persons

commitment proceeding could result from his plea, then he certainly was not prejudiced by

counsel’s alleged failure to advise him of that possibility. See generally Roe v. Flores-Ortega,

528 U.S. 470, 484 (2000) (“counsel’s deficient performance must actually cause the forfeiture of

the defendant’s appeal”).

¶ 36   Further, although our supreme court found that “defense counsel has a minimal duty

to advise a defendant who pleads guilty to a triggering offense subject to the provision of the

Sexually Violent Persons Commitment Act [(SVPCA)] that he will be evaluated for and may

risk involuntary commitment” (Hughes, 2012 IL 112817, ¶ 60), the court noted that a

“conviction of a sexually violent offense does not serve as the sole predicate for imposing the

commitment under the [SVPCA] and requires a separate civil proceeding, where a defendant

will have an opportunity to contest its application to him.” Id. ¶ 50. Thus, in the context in

which Hughes was decided, the prejudice—i.e., civil commitment—to a defendant who is not

properly advised is less certain than the prejudice to a defendant who is not advised that his

guilty plea will inevitably lead to deportation. The former rightly requires a greater showing

by the defendant to establish prejudice from counsel’s deficient performance in failing, under




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limited circumstances, 3 to advise her client of the collateral consequences of a guilty plea than

the latter.

¶ 37    Despite the fact defendant in this case only alleged he would not have pled guilty had

he known of the immigration consequences of his plea, we find defendant’s allegations,

viewed as a whole, are sufficient if proved to demonstrate prejudice. In People v. Deltoro, 2015

IL App (3d) 130381, ¶ 4, the defendant, who had been a legal permanent resident of the

United States, filed a postconviction petition in which he alleged that both the trial court and

plea counsel failed to advise him of potential immigration consequences of his guilty plea.

Specifically, plea counsel failed to advise the defendant “he could lose his status as a legal

permanent resident and be deported.” Id. ¶ 16. The petition alleged it would have been

rational to reject the plea “because he had been legally living in the United States for over 35

years, all of his family and friends resided in the United States, and he no longer had any ties

to Mexico, the country of his birth.” Id. ¶ 6. The court found that it was at least arguable that

the defendant’s plea counsel’s performance was deficient. Id. ¶ 18. Turning to the prejudice

prong of the Strickland analysis, the court found that while “the apparent existence of a

plausible trial defense *** may make a defendant’s showing of prejudice stronger, it is not

required in order to show prejudice in cases involving counsel’s failure to advise a defendant as

to the immigration consequences of his guilty plea.” (Emphasis in original.) Id. ¶ 24. The



        3
                “[N]ot every failure of counsel to inform the defendant of applicable collateral
        consequences is a basis for withdrawing a plea of guilty. Requiring defense counsel to
        predict and explain all of the ways in which a client will be impacted by a conviction
        would not be reasonable. Rather, where the consequence is severe, certain, and
        sufficiently enmeshed in the criminal process the sixth amendment right to counsel
        may give rise to a basis for withdrawing a plea.” Hughes, 2012 IL 112817, ¶ 59.

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court found that when a defendant risks deportation, the defendant may suffer prejudice from

counsel’s failure to properly advise him or her “regardless of the strength of his case at trial.”

Id. The court concluded as follows:

               “As the Padilla Court recognized, preserving a noncitizen

               defendant's right to stay in the United States may be more

               important to the defendant than a potential sentence of

               imprisonment. [Citations.] A defendant who fears deportation

               more than he does imprisonment might rationally choose to risk

               a lengthier prison sentence in exchange for even a slight chance

               of prevailing at trial and thereby avoiding deportation.

               Counsel’s failure to advise his client of the risk of deportation

               prejudices the defendant by depriving him of that chance. Under

               such circumstances, it would be inappropriate and overly

               burdensome to require the defendant to show that he would

               have succeeded at trial in order to establish prejudice.” Id. ¶ 24.

¶ 38   We hold that, given the facts alleged in the petition and supporting materials, taken as

true, had he been properly advised of the consequences, defendant’s decision to reject the plea

bargain would have been rational under the circumstances. We note those circumstances

include the nature of the offense and defendant’s lack of criminal history as revealed at the

plea hearing. In defendant’s affidavit attached to his response to the State’s motion to dismiss,

defendant averred counsel “never advised me that [pleading guilty] would cause me to be

immediately deported from the United States of America and separated from my family. If


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they would have explained to me that by pleading guilty I would have been exiled from this

country forever, I never would have pleaded guilty or rather would have ask [sic] for a

modification to avoid getting automatically deported.” (Emphases in original.) On appeal,

defendant argues in his appellate brief he “came to the United States as a toddler and his entire

immediate family is in this country. Had he known the plea would ensure his deportation

*** and cause him to be separated from his family—he would have rejected the plea bargain.

And this decision would have been completely rational considering [his] family ties in the

United States—and his incentive to avoid deportation.”

¶ 39   We acknowledge the court’s decision in People v. Pena-Romero, 2012 IL App (4th)

110780, ¶ 17, finding the defendant in that case failed to satisfy the prejudice prong where the

defendant “did not make a claim of innocence or articulate a plausible defense.” We disagree

for the reasons stated herein. See also People v. Carranza-Lamas, 2015 IL App (2d) 140862, ¶

35 n.2 (deciding case based on first prong of Strickland and declining to resolve the potential

conflict between Pena-Romero and Deltoro). Regardless, Pena-Romero is distinguishable from

this case. First, unlike this case, in Pena-Romero, the defendant “was admonished by the trial

court that the conviction could result in deportation.” Pena-Romero, 2012 IL App (4th)

110780, ¶ 17. In this case, the trial court asked defendant if his attorney had discussed with

him how his plea may affect his status in this country. The record does not refute that

defendant’s attorney did not advise defendant that deportation was inevitable. Based on the

conviction currently on the record that outcome was clear and explicit and counsel had a duty

to so inform defendant. Second, the allegations in defendant’s petition distinguish this case

from Pena-Romero. There, the defendant did “not explain how his alleged ignorance of the


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deportation consequences factored into his decision to plead guilty.” Id. ¶ 18. In this case,

defendant has alleged the type of “family ties and bonds to the United States [that can] provide

a rational basis to reject a plea deal.” (Internal quotation marks omitted.) Deltoro, 2015 IL

App (1st) 130381, ¶ 23 (quoting People v. Guzman, 2014 IL App (3d) 090464, ¶ 35). It is

rational that under such circumstances, “[p]reserving the client’s right to remain in the United

States may be more important to the client than any potential jail sentence. [Citation.]”

(Internal quotation marks omitted.) Padilla, 559 U.S. at 368.

¶ 40   For these reasons as well, the court’s decision in People v. Gutierrez, 2011 IL App (1st)

093499, is distinguishable. There, the court held the defendant in that case could not establish

prejudice under the second prong of the Strickland analysis. Id. ¶ 45. The defendant had

argued he established cause and prejudice for failing to raise a claim of ineffective assistance of

counsel based on his attorney’s failure to inform him of the deportation consequences of his

guilty plea. Id. ¶ 13. In Gutierrez, however, the defendant specifically argued that “had he

been aware of those consequences, he would have insisted on going to trial because the evidence

against him was not overwhelming.” (Emphasis added.) Id. ¶ 15. The court found that the

evidence against the defendant was overwhelming and, therefore, the defendant could not

establish prejudice. Id. ¶ 45.

¶ 41   Unlike the defendant in Gutierrez, the claimed prejudice to defendant is not based on

the strength of the evidence. Rather, defendant here claims he was prejudiced because he

would rather have faced trial or entered a different plea rather than be deported, and, under

the circumstances, that decision would have been perfectly reasonable.       Therefore, defendant

has made a substantial showing of a constitutional violation. His allegations, if proven at an


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evidentiary hearing, would entitle him to relief. Accordingly, the trial court’s judgment

granting the State’s motion to dismiss is reversed, and the cause is remanded for third-stage

proceedings on the postconviction allegations.

¶ 42                                 CONCLUSION

¶ 43   For the foregoing reasons, the circuit court of Cook County is reversed, and the cause

is remanded with directions.

¶ 44   Reversed.




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