                          Illinois Official Reports

                                 Appellate Court



                  People v. Carranza-Lamas, 2015 IL App (2d) 140862



Appellate Court      THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption              JUVENTINO CARRANZA-LAMAS, Defendant-Appellant.



District & No.       Second District
                     Docket No. 2-14-0862



Filed                August 13, 2015



Decision Under       Appeal from the Circuit Court of McHenry County, No. 10-CF-26; the
Review               Hon. Gordon E. Graham, Judge, presiding.



Judgment             Affirmed.




Counsel on           Timothy R. Roellig, of Novelle & Roellig LLC, of Chicago, for
Appeal               appellant.

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



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


¶1       Defendant, Juventino Carranza-Lamas, appeals from the trial court’s denial of his
     postconviction petition after a third-stage evidentiary hearing. Defendant argues that the trial
     court should have determined that his trial counsel’s performance was constitutionally
     deficient under Padilla v. Kentucky, 559 U.S. 356 (2010), because counsel failed to advise
     him of the immigration consequences of his guilty plea. We conclude that defense counsel
     was not obligated to inform defendant of the specific consequences that pleading guilty to a
     drug crime and receiving first-offender probation would have on discretionary immigration
     relief. Therefore, we affirm.

¶2                                        I. BACKGROUND
¶3       On February 25, 2010, defendant was indicted on one count of unlawful possession of
     less than 15 grams of cocaine (720 ILCS 570/402(c) (West 2010)). The crime was alleged to
     have taken place on January 12, 2010.
¶4       On September 27, 2011, defendant entered a fully negotiated guilty plea to the charge, a
     Class 4 felony. Before the trial court accepted the plea, it stated: “I must advise you
     conviction of this offense may have the consequences of deportation, denial of naturalization
     or exclusion of admission to the United States if you are not a citizen of the United States.”
     Defendant stated that he still wished to plead guilty. He received two years of first-offender
     probation (720 ILCS 570/410 (West 2010)), with conditions as well as fines and costs. The
     State nol-prossed other, traffic-related charges.
¶5       After the trial court accepted the plea, defense attorney John Gaffney had the following
     exchange with the trial court:
                 “MR. GAFFNEY: Judge, if I can just clarify for the record, because he does have
             an immigration hearing pending.
                 THE COURT: Yes.
                 MR. GAFFNEY: Your Honor said a judgment of conviction enters. It is 1410
             [sic] probation.
                 THE COURT: It is. And I say that because the appeal time runs today.
                 MR. GAFFNEY: Certainly, Judge.
                 THE COURT: If he complies with the sentence, then there will be no conviction.
                 MR. GAFFNEY: Thank you, Judge. I wanted to clarify that for the record.
             Thank you, [Y]our Honor.”
¶6       Defendant’s probation was terminated on September 27, 2013. Three days before that, on
     September 24, 2013, defendant filed a petition under the Post-Conviction Hearing Act
     (Postconviction Act) (725 ILCS 5/122-1 et seq. (West 2012)), alleging ineffective assistance
     of counsel. Defendant alleged as follows, in pertinent part. Federal immigration officials had
     been seeking his deportation since 2009, before the incident in this case, based on his
     undocumented status. A sentence of probation under section 410 of the Illinois Controlled
     Substances Act (720 ILCS 570/410 (West 2010)) was considered to be a conviction under


                                                -2-
       federal immigration law. An immigration judge had ordered him deported on September 19,
       2013, and that ruling was on appeal. However, defendant’s immigration counsel had advised
       him that he would be able to reopen his deportation case and seek immigration relief if his
       “ ‘conviction’ ” in this case were vacated. Immigration counsel was confident that he could
       obtain a lawful permanent resident status for defendant if the conviction were vacated,
       because defendant’s fiancé, who was also the mother of his children, was a United States
       citizen. Prior to pleading guilty, defendant told Gaffney that he was not a United States
       citizen and did not wish to be deported. However, Gaffney rendered ineffective assistance by
       affirmatively misadvising defendant that a guilty plea and section 410 probation would not
       be a conviction for immigration purposes.
¶7         Defendant argued that, under Padilla, Gaffney had an obligation to correctly advise him
       as to his plea’s immigration consequences. Defendant argued that Gaffney’s deficient
       performance also caused prejudice, in that he would not have otherwise pleaded guilty but
       would instead have gone to trial. Defendant argued that he would have had a substantial
       likelihood of success at trial because (1) he was not the owner of the vehicle in which the
       drugs were found; (2) he had been driving the vehicle for just a few minutes before the traffic
       stop; (3) the drugs were hidden from view underneath a speaker box, behind the backrest of
       the truck’s bench seat; and (4) he denied having knowledge of the drugs to the police.
       Defendant maintained that, had Gaffney advised him of the clear immigration consequences,
       he would have made a rational decision to go to trial or, at a minimum, attempted to obtain a
       plea disposition that did not result in automatic deportation.
¶8         Defendant attached to the petition an affidavit of his fiancé, Daisy Cazares, who stated
       that the vehicle belonged to her; that she learned that defendant had been pulled over shortly
       after she allowed defendant to borrow the truck; that it would be difficult to get a hand
       through the crevice between the backrests; and that while seated a driver would not be able to
       reach behind to the speakers mounted on the back wall, which were about 12 to 18 inches
       below the top of the backrest.
¶9         Defendant also attached to the postconviction petition a letter from his immigration
       attorney.
¶ 10       On November 15, 2013, the trial court docketed the petition for second-stage
       proceedings. The State filed a motion to dismiss on December 2, 2013. It argued that
       defendant could not establish prejudice, because the trial court advised him that the
       conviction could result in deportation. Defendant responded that the trial court’s
       admonishment raised only the possibility of potential consequences triggered by a
       conviction, whereas Gaffney had told him that he could not be deported as a result of section
       410 probation because it was not a conviction. Therefore, according to defendant, the trial
       court’s admonishment did not negate the improper advice. The trial court denied the motion
       to dismiss on February 21, 2014.
¶ 11       A third-stage evidentiary hearing took place on April 17, June 12, and June 13, 2014. We
       summarize the testimony presented.
¶ 12       David Adkison, defendant’s immigration attorney, testified as follows. He began
       representing defendant in September 2012 in immigration court proceedings. Defendant was
       charged with being in the United States without permission, and deportation was sought.
       During the proceedings, defendant’s drug offense came to light. Adkison initially obtained a
       continuance in immigration court to allow defendant time to pursue postconviction relief, but

                                                  -3-
       the immigration court denied further requests for continuances. It ordered defendant
       removed, and he was appealing that judgment.
¶ 13       Even though defendant received section 410 probation, it was considered a conviction
       under federal law. There was a “waiver” available for possession of small amounts of
       marijuana, but not other drugs. Adkison was aware that defendant planned to marry Cazares,
       a United States citizen. If the drug conviction remained, defendant would have “no way of
       processing his residency,” even with a wife who was a citizen. If the conviction were vacated
       and defendant married Cazares, he would still have to go back to Mexico temporarily
       because he was in the United States without permission. Normally, a person would then have
       to wait 10 years before applying for a visa. However, an exception applied if the person was
       married to a United States citizen and there was “extreme hardship” on the spouse.
       Defendant could likely obtain this “waiver” and return sooner, because he had children and
       was involved in their lives and because he had likely been contributing financially to the
       household. Defendant could then obtain lawful permanent residency. Once defendant was
       married and the deportation case was reopened, the process could possibly be completed
       within one year. Any misdemeanor traffic convictions would not bar immigration relief.
¶ 14       Adkison agreed that defendant was involved in deportation proceedings based on his
       coming into the country illegally and that they had nothing to do with the drug charge.
       However, defendant would have other avenues for relief if he did not have the drug
       conviction. Adkison agreed that, if an illegal immigrant were convicted of a drug charge, it
       did not necessarily mean that that person would be deported, and it would be accurate advice
       to tell the person that he or she could be deported; although immigration officials were very
       likely to come after a person with a drug conviction, it was not a certainty.
¶ 15       Cazares provided the following testimony. At the time of the underlying offense, she and
       defendant were engaged and living together, and she was pregnant with his child. They had
       been in a relationship since 2008. On January 12, 2010, around 4:30 p.m., defendant had just
       arrived home and was watching Cazares’s children. He called and asked if he could borrow
       one of her vehicles to pick up his brother, who needed a ride. Defendant had previously
       gotten pulled over for driving without a license, and he had been put into the immigration
       court system as a result. Still, because defendant’s brother was stranded, Cazares said that he
       could take her truck. She had purchased that vehicle from someone about six months prior. It
       had bench seats and no back seats. There was a center armrest between the driver’s and
       passenger’s seats, and behind the seats were speaker boxes that could not be reached while
       seated.
¶ 16       Cazares testified that Gaffney was not fluent in Spanish, so she would translate during the
       meetings with defendant. Cazares told Gaffney about the immigration proceedings. She told
       him that they had previously consulted with immigration lawyers, who said that, if defendant
       pleaded guilty or had a conviction on his record, it would hurt his immigration status.
       Cazares said that they planned to marry and that the case could ruin their plans for their
       future together. Cazares further told Gaffney that she needed to stay in the United States to
       receive child support for her two older children. Gaffney said that, if defendant pleaded
       guilty and received section 410 probation, it would not be considered a conviction for
       immigration purposes. Defendant agreed to plead guilty based on this representation.
       Gaffney never informed them that defendant had the right to go to trial. When the subject of


                                                  -4-
       a trial came up, Gaffney said that he would speak with the State and see what kind of deal
       they could get.
¶ 17        Before defendant pleaded guilty, Cazares and defendant never spoke to an immigration
       attorney about the ramifications of section 410 probation. They hired Adkison after
       defendant’s arrest, but Cazares did not remember if it was before or after defendant pleaded
       guilty. By the time they mentioned the probation to Adkison, defendant had already pleaded
       guilty.
¶ 18        Defendant was the father of Cazares’s two younger children, who were three and
       one-and-one-half. Cazares agreed that she and defendant had been engaged for four years but
       had not set a wedding date. They were waiting because of the possibility that defendant
       would be deported; they would not be able to maintain their relationship if defendant had to
       live in Mexico. In the month before defendant was arrested, three of Cazares’s family
       members had borrowed her truck. It had also been at a repair shop for two weeks. Cazares
       was shown pictures of the interior of the vehicle and denied that there was any way for
       someone to have reached back between the seats. Cazares agreed that she never reported this
       information to the police.
¶ 19        Defendant testified as follows. Gaffney’s Spanish was not very clear, so Cazares would
       translate between them. Gaffney told him that, if he complied with all of the conditions of the
       section 410 probation, there would be no conviction or issues with immigration. At the time,
       Cazares was pregnant with his child, so it was important for defendant that the drug case not
       affect his immigration status. Defendant would not have pleaded guilty if Gaffney had told
       him either that the section 410 probation would result in his deportation or that it would mean
       that his eventual marriage to Cazares could not be used to get him a valid immigration status.
¶ 20        When defendant met with Gaffney, defendant said that the drugs were not his and that
       Cazares owned the truck. He had been driving for only two or three minutes before the police
       stopped him. The officer recognized him and said that he should not be driving. Defendant
       had previously been stopped for driving without a license, and it resulted in the immigration
       proceedings. The officer told defendant to get out of the truck. The officer asked if he could
       search the truck, and defendant agreed. Another officer arrived, and they had a dog enter the
       truck. The officers said that the dog found cocaine behind the seat. Defendant said that it was
       not his. Defendant testified that that area was not accessible from the driver’s seat. When
       defendant was stopped by the police, he bent down to grab proof of insurance that was inside
       the glove compartment.
¶ 21        Defendant did not know that he had a right to a trial, and Gaffney never spoke about it.
       Defendant did not recall the trial court advising him of the right. Defendant had spoken to
       two or three immigration attorneys about the consequences of a guilty plea, and they said that
       if he had a felony conviction he would not be able to fight the immigration case. Before
       pleading guilty, he did not speak to them about the consequences of section 410 probation.
¶ 22        We next summarize Gaffney’s testimony. Defendant retained him in January 2010.
       Gaffney was aware that defendant was in the United States illegally and had an immigration
       case pending. Defendant seemed uncertain whether to take the section 410 probation or go to
       trial and try to avoid the immigration consequences. Gaffney told defendant that the section
       410 probation would have immigration consequences. Gaffney testified:
                    “Generally what I told him was I said he needed to consult his immigration
                attorney. I told him I don’t do immigration. I know he had an immigration attorney,

                                                  -5-
               and I certainly don’t want to step on another attorney’s toes by giving him advice that
               may be contrary to what they’re giving their clients especially in the area that I don’t
               practice.
                   So while I told him I–you know, if you take any kind of felony plea, it’s going to
               have an effect on your immigration case, I always told him you need to talk to your
               immigration attorney about this.”
       Gaffney had the discussion with the trial court after the guilty plea1 because the trial court
       had stated that a conviction would enter and Gaffney wanted to make sure that the record
       reflected the terms and conditions of the section 410 probation. He did not know if the
       section 410 probation would affect immigration, but he wanted the record clarified because
       defendant needed to go back to his immigration attorney to deal with the guilty plea’s
       consequences. That is, Gaffney wanted the immigration attorney to have accurate
       information to work from.
¶ 23       Before the plea, Gaffney told defendant that even if there were not a judgment of
       conviction his guilty plea alone might affect his immigration status. He did not know whether
       he used the term “deportation” with defendant, but he recalled telling him that any kind of
       guilty plea to a felony, whether it involved section 410 probation or not, would have
       immigration consequences and that defendant needed to talk to his immigration attorney.
       Gaffney agreed that he did not speak to defendant specifically about the effect of a guilty
       plea on discretionary immigration relief.
¶ 24       Sergeant Ray Lanz of the Woodstock police department provided the following
       testimony. On January 12, 2010, he was a canine officer. He stopped the truck that defendant
       was driving, because it did not have a front license plate. After Lanz activated the police
       lights, the driver appeared to raise himself up, which could be consistent with retrieving
       something from a pocket, and leaned to the center of the cab. After pulling the vehicle over,
       Lanz recognized defendant because he had stopped him the prior week and arrested him for
       driving on a revoked license. During the present stop, defendant provided an insurance card.
       Lanz again arrested him for driving on a revoked license. Lanz had a dog check the inside of
       the truck, and the dog alerted to the odor of illegal narcotics in an area that was consistent
       with where defendant had been leaning. Lanz moved the driver’s seat forward and, at the
       front base of a speaker box behind the seat, he found a clear plastic bag with a white powder.
       There was enough space for the bag to fit between the seats, and a driver would have had
       access to that area. The bag was directly below the gap between the driver and passenger
       seats.
¶ 25       Lanz agreed that defendant’s leaning could have been consistent with retrieving proof of
       insurance from the glove box. When Lanz asked defendant why he was driving, defendant
       said that he was picking up his brother from Huntley. Lanz did not ask defendant for
       permission to search the vehicle. Records indicated that it belonged to Cazares.
¶ 26       The parties stipulated for purposes of the current hearing that the State police lab tested
       the white powder and determined that it was 0.5 grams of cocaine.
¶ 27       The trial court issued a memorandum ruling on July 2, 2014. It stated as follows, in
       relevant part. Defendant alleged that Gaffney’s performance was deficient in that he told

          1
           See supra ¶ 6.

                                                  -6-
       defendant that section 410 probation would not be a conviction for immigration purposes.
       Gaffney testified that the guilty plea’s immigration consequences were always part of his
       discussions with defendant, and he told defendant to speak to his immigration attorneys. Both
       defendant and Cazares testified that they had spoken to immigration attorneys while the case
       was ongoing. With the pending immigration matter, it was clear that defendant would have
       been worried about a conviction that would have affected his immigration status. Defendant
       testified that he never discussed a trial with Gaffney, but the case was set for a jury trial,
       defendant signed a waiver of a jury trial, and the case was rescheduled for a bench trial.
       Therefore, it “would seem implausible” that defendant did not discuss a trial with Gaffney.
       The trial court gave the required admonishments under section 113-8 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/113-8 (West 2010)). The effectiveness of such
       admonishments had been the subject of recent appellate court decisions, which had held that
       they might or might not be sufficient under the circumstances of a particular case. Defendant
       alleged that Gaffney’s wrong advice would not have been cured by the trial court’s
       admonishments.
¶ 28       The trial court continued as follows. The second prong of the test in Strickland v.
       Washington, 466 U.S. 668 (1984) for ineffective assistance of counsel required a showing of
       prejudice. Defendant needed to do more than just allege that he would not have pleaded
       guilty; he needed to articulate a plausible defense that could have been raised at trial.
       Defendant testified that he had no knowledge of the drugs. Lanz’s testimony was more
       believable as to defendant’s “presence in the automobile in which the officer had seen him
       one week earlier when he was arrested on a different charge.” Defendant’s claim that he was
       not the only person who had access to the truck, and Cazares’s statement that the area where
       the drugs were found was inaccessible, were “unavailing.” Lanz’s testimony established that
       the area where the drugs were found was consistent with the item being dropped between the
       seats. Defendant had not made the requisite showing of prejudice under the case’s facts.
¶ 29       The trial court stated that the deportation order was impacted by the conviction of
       possession of a controlled substance, but that the order’s basis was actually defendant’s
       illegal presence in the country. That the deportation order was not a direct result of the
       conviction distinguished this situation from many other cases. That is, the conviction
       impaired defendant’s ability to resolve his immigration issues but was not a cause of the
       immigration issues. As such, the trial court did not believe that Gaffney’s allegedly deficient
       performance resulted in prejudice to defendant. In addition, “the matters presented at the
       evidentiary hearing would establish that Defendant’s defense was not completely plausible.”
       The trial court denied the postconviction petition.
¶ 30       Defendant filed a motion to reconsider, which the trial court denied on August 20, 2014.
       Defendant timely appealed.

¶ 31                                         II. ANALYSIS
¶ 32       The Postconviction Act provides a means for people under criminal sentences to assert
       that their convictions resulted from substantial denials of their constitutional rights. People v.
       Smith, 2015 IL 116572, ¶ 9. The Postconviction Act creates a three-stage process for the
       adjudication of a postconviction petition. Id. At the first stage, the trial court independently
       determines, without input from the State, whether the petition is “frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). If the petition survives the first stage,

                                                   -7-
       it proceeds to the second stage, during which the trial court may appoint counsel to represent
       an indigent defendant, and counsel may file an amended petition. People v. Hommerson,
       2014 IL 115638, ¶ 8. The State, in turn, may file a motion to dismiss the petition. 725 ILCS
       5/122-5 (West 2012).
¶ 33        If the trial court does not dismiss the petition, it will conduct an evidentiary hearing on
       the merits of the petition during the third stage. 725 ILCS 5/122-6 (West 2012). During both
       the second and third stages of the proceeding, the defendant must make a substantial showing
       of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). We will not
       disturb the trial court’s decision after an evidentiary hearing that involved fact-finding and
       credibility determinations unless the decision is manifestly erroneous. People v. English,
       2013 IL 112890, ¶ 23. On the other hand, if the issues present pure questions of law and the
       trial judge does not have a special familiarity with the underlying case that affects the
       petition’s disposition, we will review de novo the trial court’s decision. Pendleton, 223 Ill. 2d
       at 473. Here, the trial court considered witness credibility in arriving at its decision, so we
       will review its decision for manifest error.
¶ 34        For a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged
       test set forth in Strickland, 466 U.S. 668. People v. Hodges, 234 Ill. 2d 1, 17 (2009). As to
       trial counsel, the defendant must first establish that, despite the strong presumption that
       counsel acted competently and that the challenged action was the product of sound trial
       strategy, counsel’s representation fell below an objective standard of reasonableness under
       prevailing professional norms such that he or she was not functioning as the counsel
       guaranteed by the sixth amendment. People v. Manning, 227 Ill. 2d 403, 416 (2008). Second,
       the defendant must establish prejudice by showing a reasonable probability that the
       proceeding would have resulted differently had counsel’s representation not been deficient.
       People v. Houston, 229 Ill. 2d 1, 11 (2008).
¶ 35        To demonstrate prejudice in the context of a guilty plea, the defendant must show a
       reasonable probability that, but for counsel’s errors, he would not have pleaded guilty but
       rather would have insisted on a trial. People v. Hughes, 2012 IL 112817, ¶ 63. The defendant
       may not simply allege that he would have insisted on going to trial but rather must either
       assert a claim of actual innocence or articulate a plausible defense that could have been
       raised at trial. Id. ¶ 64. “[T]he question will depend largely on predicting whether the
       defendant would have likely been successful at trial.” Id. In the specific context of an
       allegation that a defendant was not adequately advised of possible immigration
       consequences, the defendant must show that a decision to reject the plea would have been
       rational under the circumstances. People v. Guzman, 2014 IL App (3d) 090464, ¶ 33. In
       Guzman, the court stated that a defendant’s family ties and bonds in the United States
       provided a rational basis to reject a plea deal, because a defendant might be willing to risk a
       longer prison sentence for even a slight chance of prevailing at trial and thereby avoiding
       deportation. Id. ¶ 35.2

           2
            In People v. Pena-Romero, 2012 IL App (4th) 110780, ¶ 17, the court stated that to show prejudice
       under the second prong of Strickland a defendant with a Padilla claim would have to make a claim of
       actual innocence or articulate a plausible defense. The Guzman court did not require such a showing
       when it determined that ties to this country alone would create a rational basis to reject a plea deal.
       Guzman, 2014 IL App (3d) 090464, ¶ 35; see also People v. Deltoro, 2015 IL App (3d) 130381, ¶ 24

                                                      -8-
¶ 36        Defendant relies on Padilla, 559 U.S. 356, where the Supreme Court discussed a defense
       attorney’s obligations regarding advice on immigration consequences. In Padilla, the
       defendant was a lawful permanent resident who faced deportation after pleading guilty to
       transporting a large amount of marijuana. Id. at 359. In his postconviction petition, the
       defendant alleged that his counsel told him that his plea would not affect his immigration
       status, and he alleged that he would have insisted on going to trial if he had not received this
       incorrect advice. Id. The Supreme Court stated that changes in immigration law had
       dramatically raised the stakes of a criminal conviction of a noncitizen and that deportation is
       a significant part of the penalty that may be imposed on such defendants who plead guilty to
       certain crimes. Id. at 364. The Court stated that the “weight of prevailing professional norms
       supports the view that counsel must advise her client regarding the risk of deportation.” Id. at
       367. The Court stated that it had previously recognized that preserving the possibility of
       discretionary relief from deportation (under a statute subsequently repealed) would have been
       one of the main benefits that defendants sought in deciding whether to plead guilty or go to
       trial. Id. at 368.
¶ 37        The Court stated that the terms of the immigration statute applicable to the defendant’s
       situation succinctly, clearly, and explicitly set forth the removal consequences of the
       defendant’s conviction, which the defendant’s counsel could have easily determined by
       reading the statute’s text. Id. Specifically, the statute stated: “ ‘Any alien who at any time
       after admission has been convicted of a violation of *** any law or regulation *** 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.’ ” Id. (quoting 8 U.S.C. § 1227(a)(2)(B)(i)
       (2006)). The Court stated that, in addition to not relating the consequences of the plea, the
       attorney wrongly gave the defendant false assurance that the conviction would not result in
       deportation. Id. The Court stated that the attorney’s representation was clearly deficient
       because (1) the plea consequences could have been easily determined from reading the
       removal statute; (2) the deportation was presumptively mandatory; and (3) the attorney’s
       advice was incorrect. Id. at 369. The Court went on to say that immigration law could be
       complex and that there could be situations where the deportation consequences of a particular
       plea were uncertain or unclear. Id. The Court stated that in such situations, where the law is
       not succinct and straightforward, the duty of a defense attorney is more limited, and he “need
       do no more than advise a noncitizen client that pending criminal charges may carry a risk of
       adverse immigration consequences.” Id. The Court stated that in contrast, when deportation
       consequences were truly clear, defense counsel would have a duty to give correct advice. Id.
¶ 38        Defendant argues that the trial court seemed to credit Gaffney’s testimony that he always
       told defendant that any drug charge would have a consequence and that defendant should
       speak to his immigration attorney. Defendant maintains that, under Padilla, his drug
       conviction resulted in clear immigration consequences. Defendant cites a section of the
       United States Code stating that any alien who is convicted of, or who admits having
       committed, a violation of any law or regulation relating to a controlled substance is

       (“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.)). We
       do not resolve this potential conflict, because we ultimately decide this case based on Strickland’s first
       prong and we do not reach the question of prejudice.

                                                       -9-
       inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006).3 An exception applies if the crime was
       committed when the person was under 18 or the maximum punishment for the crime was one
       year imprisonment and the person was not sentenced to more than six months’ imprisonment.
       8 U.S.C. § 1182(a)(2)(A)(ii) (2006). Defendant also cites the definition of “conviction,” with
       respect to an alien, as:
               “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt
               has been withheld, where–
                       (i) a judge or jury has found the alien guilty or the alien has entered a plea of
                   guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
                   guilt, and
                       (ii) the judge has ordered some form of punishment, penalty, or restraint on
                   the alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A) (2006).
       Defendant argues that the Seventh Circuit interpreted this provision to apply to a plea of
       guilty and section 410 probation and concluded that the defendant had been “convicted”
       under the federal statute, even though an adjudication of guilt had been withheld. See Gill v.
       Ashcroft, 335 F.3d 574, 576 (7th Cir. 2003).
¶ 39        Defendant argues that, therefore, since at least 2003, immigration officials have
       interpreted section 410 probation to be a conviction that can result in both deportation and a
       denial of any available relief from deportation, and Gaffney had a duty to inform him of
       these consequences of pleading guilty. Defendant argues that, even if Gaffney told him that
       his section 410 probation would have negative immigration consequences, the admonishment
       was insufficient under Padilla. Defendant maintains also that it does not matter that Gaffney
       told defendant to discuss the consequences with his immigration attorney, because Gaffney
       himself had a duty to investigate and explain the consequences. Defendant notes that there is
       no evidence that he ever consulted with an immigration attorney about the plea’s
       consequences before entering into it.
¶ 40        The State simply argues that Gaffney satisfied the duty required of him under Padilla by
       telling defendant that the guilty plea would have immigration consequences.
¶ 41        We find People v. Guzman-Ruiz, 2014 IL App (3d) 120150, relevant to the question of
       attorney performance, as it provides a contrast to the case at bar. There, the defendant entered
       a negotiated guilty plea to unlawful possession of cannabis with intent to deliver. Id. ¶ 3. The
       defendant was a United States resident but not a citizen. Id. ¶ 5. The trial court admonished
       her that the plea could subject her to deportation and then stated:
                   “ ‘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.’ ” Id.
       The defendant was deported shortly after she completed her 180-day jail sentence. Id. ¶ 6.
¶ 42        The defendant filed a postconviction petition alleging that her trial counsel was
       ineffective for failing to advise her that she would be deported as a result of her conviction.
       She alleged that he stated that it was a possibility but “ ‘very unlikely,’ ” and she alleged that

          3
            Defendant actually cites “(INA) § 212(a)(2)(A)(i)(II).” This section is codified at 8 U.S.C.
       § 1182(a)(2)(A)(i)(II) (2006). See Sarmientos v. Holder, 742 F.3d 624, 626 n.3 (5th Cir. 2014).

                                                   - 10 -
       she relied on this inaccurate advice when she entered the fully negotiated plea agreement.
       Id. ¶ 7. The petition proceeded to a third-stage evidentiary hearing, at which the defendant’s
       affidavit was accepted in lieu of testimony. She stated that her attorney advised her that her
       immigration status would not be affected and that she should plead guilty, and he assured her
       that immigration consequences would be unlikely. She further stated that he never warned
       her about deportation (in contrast to her petition’s allegations). Id. ¶ 9. Trial counsel testified
       that he never said that defendant would not be deported. Rather, he advised her that he could
       not guarantee what the government would do if she were convicted of a felony. Counsel
       testified that he had represented many Hispanics and that in his experience there was “ ‘no
       rhyme or reason’ ” as to who ended up being deported and who did not. Id. ¶ 10. He admitted
       that he did not research federal statutes to determine whether the conviction would affect the
       defendant’s immigration status. The trial court stated that the defendant received a big break
       through the deal and that, even though it did not admonish her until after she accepted the
       plea agreement, she was admonished. Id. ¶ 12. The trial court also credited trial counsel’s
       testimony that the defendant knew that it was a “ ‘roll of the dice’ ” regarding whether she
       would be deported. Id. It therefore denied the postconviction petition.
¶ 43       On appeal, the appellate court stated that, under section 1227(a)(2)(B)(i) of Title 8 of the
       United States Code, anyone who has been convicted of a violation of law relating to a
       controlled substance, other than possession of 30 grams or less of marijuana for one’s own
       use, is deportable. Id. ¶ 19 (citing 8 U.S.C. § 1227(a)(2)(B)(i) (2006)). The court stated that,
       even if defense counsel had not researched this statute, as someone with many immigrant
       clients he should have been familiar with Padilla, in which the Supreme Court stated that a
       conviction of possession of more than 30 grams of cannabis made deportation almost
       inevitable. Id. ¶ 20. Therefore, the appellate court held that defense counsel’s representation
       was deficient because he failed to inform the defendant that if she accepted the plea
       agreement “deportation would be imminent.” Id. The court stated that, although a trial court’s
       subsequent admonishments could sometimes counterbalance or even correct deficient legal
       advice, that was not the situation before it, because the trial court minimized any concerns
       about the deportation risk, thereby reinforcing defense counsel’s deficient advice. Id. ¶ 22.
¶ 44       After considering the unique facts of defendant’s case, we conclude that the trial court
       did not err in denying the postconviction petition, because defendant failed to demonstrate
       that Gaffney’s performance was deficient.4 Unlike in Padilla and Guzman-Ruiz, defendant
       was not a legal resident of the United States but rather was here illegally. Thus, not only was
       he subject to deportation before the crime and guilty plea at issue here, he was actually
       already involved in immigration proceedings. As the trial court noted, the immigration court
       eventually ordered defendant deported based on his illegal presence in the United States and
       not because of his adjudication in this case. In other words, whereas the defendants in Padilla
       and Guzman-Ruiz were allegedly unaware that they could be deported, defendant here was
       already quite aware of the possibility of deportation based on his illegal presence, to the
       extent that he and Cazares were holding off getting married for years.


           4
             Although the trial court focused on the second prong of Strickland in denying defendant’s petition,
       we may affirm the trial court’s judgment on any basis supported by the record. People v. Dinelli, 217
       Ill. 2d 387, 403 (2005).

                                                      - 11 -
¶ 45        Thus, defendant’s claim in this case was that Gaffney affirmatively misadvised him that a
       guilty plea and section 410 probation would not be a conviction for immigration purposes.
       This was important to defendant because he hoped to obtain a waiver of his illegal status
       upon his marriage to Cazares, a United States citizen, which he could not obtain with a
       conviction. As defendant recognizes, the trial court apparently credited Gaffney’s testimony
       that he told defendant that his plea would have immigration consequences and that he should
       talk to his immigration attorney.
¶ 46        Defendant maintains that, even with this finding, Gaffney’s performance was deficient
       under Padilla. However, the Supreme Court held that the attorney there had a duty to advise
       his client about the removal consequences of his conviction because they could easily be
       determined from reading the statute’s text. Padilla, 559 U.S. at 368. The same statute was at
       issue in Guzman-Ruiz, 2014 IL App (3d) 120150, ¶ 12. The Supreme Court further stated that
       where “the law is not succinct and straightforward (as it is in many of the scenarios posited
       by Justice ALITO), a criminal defense attorney need do no more than advise a noncitizen
       client that pending criminal charges may carry a risk of adverse immigration consequences.”
       Padilla, 559 U.S. at 369. In his concurrence, Justice Alito stated that “it may be hard, in
       some cases, for defense counsel even to determine *** whether a particular state disposition
       will result in a ‘conviction’ for purposes of federal immigration law” (id. at 379-80 (Alito, J.,
       concurring in the judgment, joined by Roberts, C.J.)), and he specifically noted that a
       disposition that is not a conviction under state law, such as a deferred adjudication, might
       still be considered a conviction for immigration purposes (id. at 380 n.2). That is the situation
       here.
¶ 47        We acknowledge that researching the relevant statute (see 8 U.S.C. § 1101(a)(48)(A)
       (2006)) and federal case law interpreting that statute (see Gill, 335 F.3d at 576) leads to the
       conclusion that section 410 probation is considered a conviction for immigration purposes,
       but it is not as clear as the statute at issue in Padilla. Moreover, for defendant’s particular
       purposes, Gaffney would have then had to determine whether the conviction would restrict
       discretionary relief from a bar to admission after deportation even if defendant married a
       United States citizen, and the text of at least one statute relevant to that issue is even less
       clear on its face. See 8 U.S.C. § 1252(a)(2)(C) (2006).5 The ability or inability to apply for
       relief that a defendant might or might not receive in the future is not the type of clear and
       certain consequence spoken of in Padilla. In other words, we believe that the immigration
       scenario present here, involving discretionary relief and potential exceptions and/or waivers,
       is one in which “the law [was] not succinct and straightforward” (Padilla, 559 U.S. at 369),
       so Gaffney met his obligations by advising defendant that the guilty plea would have some
       sort of immigration consequences and that he should speak to an immigration attorney.
       Further, unlike in Guzman-Ruiz, here the trial court admonished defendant before accepting

           5
            That statute provides: “Notwithstanding any other provision of law (statutory or nonstatutory),
       including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of
       such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any
       final order of removal against an alien who is removable by reason of having committed a criminal
       offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense
       covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard
       to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.” 8 U.S.C.
       § 1252(a)(2)(C) (2006).

                                                       - 12 -
       his plea that he could be subject to deportation, denial of naturalization, or exclusion of
       admission to the United States if he was not a citizen. Therefore, defendant failed to make the
       requisite showing under Strickland’s first prong that Gaffney’s representation fell below an
       objective standard of reasonableness. We need not address whether the trial court’s ruling
       that defendant failed to satisfy Strickland’s prejudice prong was manifestly erroneous, as the
       failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People
       v. Balfour, 2015 IL App (1st) 122325, ¶ 34.

¶ 48                                     III. CONCLUSION
¶ 49      For the reasons stated, we affirm the judgment of the McHenry County circuit court
       denying defendant’s postconviction petition.

¶ 50      Affirmed.

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


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profiles of those seeking their professional assistance to meet their responsibilities as advisor,
evaluator, and advocate.




                                            - 14 -
