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                                Appellate Court                           Date: 2019.07.17
                                                                          14:17:13 -05'00'




                  People v. Ramirez, 2018 IL App (1st) 152125



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            OSCAR RAMIREZ, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-15-2125



Filed              August 27, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 15-CR-743; the
Review             Hon. Arthur F. Hill Jr., Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Patricia Mysza, and Daniel T. Mallon, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Mary P. Needham, and Kathryn A. Schierl, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              JUSTICE MIKVA delivered the judgment of the court, with opinion.
                   Presiding Justice Pierce and Justice Walker concurred in the judgment
                   and opinion.
                                              OPINION

¶1       Defendant Oscar Ramirez pled guilty to one count of aggravated unlawful use of a weapon
     (AUUW) and was sentenced to one year in prison. He filed a motion to withdraw his guilty
     plea and vacate the judgment because he was not told of the immigration consequences of that
     plea. The trial court denied Mr. Ramirez’s motion. We affirm the decision of the trial court.

¶2                                         I. BACKGROUND
¶3       On December 28, 2014, Chicago police officers observed Mr. Ramirez riding his bicycle
     on a sidewalk on 26th Street. They stopped him to issue a city ordinance violation and noticed
     a large bulge in his right pants pocket. The officers asked Mr. Ramirez whether he had any
     dangerous weapons on him, and Mr. Ramirez responded that he had a gun. The officers
     searched Mr. Ramirez, recovered a fully loaded .22-caliber revolver and a small amount of
     what appeared to be cannabis, and placed Mr. Ramirez in custody.
¶4       Mr. Ramirez was charged with six counts of AUUW, which is a felony. 720 ILCS
     5/24-1.6(d) (West 2014). A hearing was held, pursuant to Illinois Supreme Court Rule 402
     (eff. July 1, 2012), to discuss a guilty plea. At that hearing, Mr. Ramirez agreed to plead guilty
     to a single count of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)) in exchange
     for the one-year prison sentence proposed by the trial court. The court gave Mr. Ramirez
     sentencing admonishments, but did not mention any possible immigration consequences. The
     court accepted Mr. Ramirez’s plea and sentenced him to one year in prison.
¶5       Mr. Ramirez timely filed a motion to withdraw his guilty plea and vacate the judgment, on
     the basis that he was not told of the immigration consequences of his plea. At a preliminary
     hearing on the motion, the trial court acknowledged that it had not given Mr. Ramirez its usual
     admonishment regarding possible immigration consequences for noncitizens. The trial court
     pointed out that what it referred to as an “arrest report” in the court file stated that Mr.
     Ramirez’s place of birth was Illinois, and it was the court’s practice, when considering a guilty
     plea, to look at the place of birth on the defendant’s arrest report.
¶6       At the hearing on the motion to withdraw his guilty plea, Mr. Ramirez testified that he was
     born in Mexico, came to the United States as a 3-year-old child, and was not a United States
     citizen. He did not know that pleading guilty to AUUW would have adverse immigration
     consequences, i.e., that he would likely be deported as a result of the felony conviction.
     According to Mr. Ramirez, the public defender representing him during the plea never
     informed him of these consequences. Mr. Ramirez claimed that his public defender asked him
     whether he was a United States citizen and he told her that he was not. He also testified that he
     never told the police that he was born in Illinois. Mr. Ramirez asserted that if he had known
     that the plea would result in his deportation, he would not have pled guilty, and he thought he
     had a good chance of winning at trial. Mr. Ramirez acknowledged, at the hearing to withdraw
     his plea, that a pretrial motion to reduce his bond, filed by the public defender’s office, stated
     that he was a “life-long” resident of Cook County, but asserted that he had never told any
     attorney he was born in Illinois.
¶7       Mr. Ramirez’s former assistant public defender testified that, although she had filed the
     motion to reduce bond she did not author it, as such motions are routinely prepared by the bond
     court division of the public defender’s office. The assistant public defender also testified that,


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       as a part of discovery in Mr. Ramirez’s case, she had received a copy of a “Chicago Police
       Department criminal history report,” which reflected that Mr. Ramirez was born in Illinois.
       The assistant public defender testified that, based on the information in the motion to reduce
       bond and the criminal history report, she did not have any conversation with Mr. Ramirez
       regarding his immigration status. She never asked Mr. Ramirez if he was a United States
       citizen, and he never told her that he was not. She acknowledged that she had not gone through
       the criminal history report in detail with Mr. Ramirez.
¶8          The motion to reduce bond referenced in Mr. Ramirez’s motion to vacate his guilty plea is
       part of the record on appeal and states that Mr. Ramirez “represents that he is nineteen (19)
       years old, he is a lifelong resident of Cook County, and has lived at the same address for the
       last four years with his mother and sister.” The arrest report referenced by the trial court, which
       appears to be the same document as the criminal history report shown to Mr. Ramirez’s former
       counsel at the hearing on his motion to withdraw the guilty plea, does not appear to be in the
       record. No one from the bond division of the public defender’s office or from the Chicago
       Police Department testified as to where the information regarding Mr. Ramirez’s place of birth
       in the bond motion or the arrest report came from.
¶9          The trial court denied Mr. Ramirez’s motion to withdraw his guilty plea and vacate the
       judgment against him. Noting the conflicting testimony regarding whether Mr. Ramirez’s
       assigned assistant public defender asked him if he was a United States citizen, the trial court
       stated that it did not believe Mr. Ramirez’s testimony that such a conversation happened “at
       all.” The court concluded that, based on the information presented to her, the assistant public
       defender had no reason to ask Mr. Ramirez whether he was a citizen. The court stated it did not
       believe that Padilla v. Kentucky, 559 U.S. 356, 367 (2010), and its progeny place a
       “prophylactic duty” on a defense attorney to inquire as to a client’s immigration status.
¶ 10        The trial court subsequently denied Mr. Ramirez’s motion to reconsider, to which he had
       attached his Mexican birth certificate. The court recited the factual basis for the plea, noted the
       contradictory testimony regarding the conversation in which Mr. Ramirez claimed that he had
       told defense counsel that he was not a United States citizen and reiterated that Mr. Ramirez was
       not credible on this issue. The trial court did not reach the question of whether Mr. Ramirez
       was prejudiced in any way by the fact that he did not receive an immigration admonishment.

¶ 11                                         II. JURISDICTION
¶ 12        Mr. Ramirez’s motion to reconsider was denied on June 25, 2015, and Mr. Ramirez timely
       filed his notice of appeal that same day. This court has jurisdiction pursuant to article VI,
       section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court
       Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases
       (Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013)).

¶ 13                                           III. ANALYSIS
¶ 14        On appeal, Mr. Ramirez argues that the trial court erred in denying his motion to withdraw
       his guilty plea. His claim is that his trial counsel provided ineffective assistance of counsel by
       failing to inform him of the potential deportation consequences of his guilty plea, rendering the
       plea involuntary. Mr. Ramirez claims that had counsel properly advised him regarding the
       immigration consequences of such a plea—that it would result in his ineligibility to participate
       in the Deferred Action for Childhood Arrivals program (DACA), “his only path to legally

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       remaining in the United States”—he would not have pled guilty. Mr. Ramirez points out, and
       the State does not dispute, that DACA bars those with felony convictions from participation.
       See Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V.
       Aguilar et al. (June 15, 2012), https://www.dhs.gov/sites/default/files/publications/s1-
       exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (“Exercising
       Prosecutorial Discretion with Respect to Individuals Who Came to the United States as
       Children”). It is also undisputed that the trial court failed to admonish Mr. Ramirez regarding
       the possible immigration consequences of a guilty plea, which the court is required to do in all
       cases under section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
       5/113-8 (West 2014)).
¶ 15        A request to vacate a guilty plea based on an attorney’s failure to correctly advise a
       criminal defendant of the immigration consequences is analyzed under the two-part test
       established by the United States Supreme Court for claims of ineffective assistance of counsel
       in Strickland v. Washington, 466 U.S. 668 (1984). Padilla, 559 U.S. at 364-365. Under
       Strickland, a defendant must establish that (1) trial counsel’s performance was deficient in that
       it fell below an objective standard of reasonableness and (2) the defendant was prejudiced by
       trial counsel’s deficient performance, in that there is a reasonable probability that, but for the
       deficiency, the result of the proceedings would have been different. Strickland, 466 U.S. at
       687. Because a defendant must satisfy both prongs of the Strickland test to prevail on a claim
       of ineffective assistance of counsel, if we find that counsel’s performance was not deficient we
       need not reach the issue of prejudice. People v. Coleman, 183 Ill. 2d 366, 397-98 (1998).
¶ 16        We consider all of the circumstances to determine whether counsel was deficient, and our
       review of counsel’s performance “must be highly deferential.” Strickland, 466 U.S. at 688-89.
       A fair assessment requires us to eliminate the “distorting effects of hindsight, to reconstruct the
       circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
       perspective at the time.” Id. at 689. Additionally, “[t]he proper measure of attorney
       performance remains simply reasonableness under prevailing professional norms.” Id. at 688.
¶ 17        Mr. Ramirez argues that his public defender’s performance here was deficient because she
       failed to provide him with even a “general warning of the possibility of immigration
       consequences.” The Supreme Court in Padilla found that where counsel told his client that he
       did not have to worry about his immigration status because he had been in the country for so
       long (more than 40 years), when in fact the drug charges he pled guilty to made his deportation
       virtually mandatory, counsel’s performance was not “constitutionally competent.” Padilla,
       559 U.S. at 360. The Court noted that “[t]he weight of prevailing professional norms supports
       the view that counsel must advise her client regarding the risk of deportation.” Id. at 367.
¶ 18        In People v. Valdez, 2016 IL 119860, our supreme court applied Padilla in the context of a
       guilty plea to burglary, holding that the failure to inform the defendant, even in a general sense,
       that his plea “may have” immigration consequences also constituted deficient performance.
       Our supreme court distinguished between the situation in Padilla, where the immigration
       consequences of the plea to a drug crime were “succinct, clear, and explicit,” and the situation
       before the court in Valdez, where there was a possibility but not a certainty of deportation.
       (Internal quotation marks omitted.) Id. ¶ 20. There, because the immigration consequences
       were not spelled out by statute, counsel’s only obligation was to give the defendant a “general
       warning of the possibility of immigration consequences.” Id. ¶ 26.


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¶ 19        Our supreme court recognized in Valdez, 2016 IL 119660, ¶¶ 30-32, that this kind of
       general warning is also what is mandated by section 113-8 of the Code. That section provides:
                “Advisement concerning status as an alien.
                    Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere
                to a misdemeanor or felony offense, the court shall give the following advisement to
                the defendant in open court:
                    ‘If you are not a citizen of the United States, you are hereby advised that conviction
                of the offense for which you have been charged may have the consequences of
                deportation, exclusion from admission to the United States, or denial of naturalization
                under the laws of the United States.’ ” 725 ILCS 5/113-8 (West 2014).
¶ 20        We note that section 113-8 requires this admonition in all cases. And, when it is given, our
       supreme court has held that it serves to eliminate any prejudice from counsel’s failure to
       discuss immigration consequences with their clients in Valdez-type cases, where there is a
       possibility, but no clear certainty, of those consequences occurring. Valdez, 2016 IL 119860,
       ¶¶ 30-32. Therefore, adherence to the statute will often eliminate the kind of claim Mr.
       Ramirez makes in this case. But here it is undisputed that Mr. Ramirez received neither a
       specific nor a general warning about possible immigration consequences and that the trial court
       failed to follow the statutory mandate of section 113-8.
¶ 21        The State argues that trial counsel in both Valdez and Padilla knew their respective clients
       were not United States citizens. In Padilla, 559 U.S. at 359, the defendant had explicitly asked
       his counsel about immigration consequences, and in Valdez, defense counsel told the trial court
       that Immigrations and Customs Enforcement had a “hold” on his client (see People v. Valdez,
       2015 IL App (3d) 120892, ¶¶ 1, 3, rev’d, 2016 IL 119860).
¶ 22        Mr. Ramirez points to People v. Deltoro, 2015 IL App (3d) 130381, in which the Third
       District found that the Supreme Court’s analysis in Padilla applied in a postconviction petition
       that did not allege that counsel had any knowledge of the defendant’s immigration status. The
       Deltoro court noted that “Padilla does not expressly require a criminal defendant to take the
       initiative to inform his attorney of his immigration status in order to trigger the attorney’s duty
       to inform the client whether his plea carries a risk of deportation.” Id. ¶ 17. The Deltoro court
       recognized that such a requirement would “ ‘undermine’ ” the holding of Padilla by leading to
       the “ ‘absurd result’ ” that only defendants who understand that criminal convictions can
       impact immigration status will be warned of that possibility. Id. (quoting People v. Picca, 97
       A.D.3d 170, 179 (N.Y. App. Div. 2012)).
¶ 23        The State responds that in this case, defense counsel did not simply lack knowledge of Mr.
       Ramirez’s immigration status. Rather, there were actual documents (i.e., the motion to reduce
       bond and the arrest report) that said Mr. Ramirez was a “life-long resident of Cook County”
       and born in Illinois. We agree with the State. We accept the premise in Deltoro that a defendant
       should not necessarily be burdened to make his lawyer aware of his immigration status. But in
       cases such as this one, where there was objective documentation that would inform defense
       counsel that her client was a citizen of the United States, and no information to the contrary, we
       cannot say that counsel acted unreasonably in failing to advise her client of the possible
       immigration consequences of a guilty plea.
¶ 24        Mr. Ramirez points to cases in which courts have found that counsel’s reliance on police
       reports, or the failure to discuss the police reports with the defendant, was unreasonable


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       assistance. Campbell v. Reardon, 780 F.3d 752, 767 (7th Cir. 2015); People v. Smith, 268 Ill.
       App. 3d 574, 579 (1994). However, those cases are fact specific and not persuasive here. In
       Campbell, the lawyer failed to interview one of very few eyewitnesses based on a statement in
       a police report that “Christmas lights obscured her view of the beating and she did not know
       any of the men involved,” when in fact that witness would have testified that she knew the
       defendant and that he was not involved. In Smith, the defendant’s attorney subpoenaed police
       reports at the defendant’s request but then never shared them with the defendant, which the
       court found was a failure on the part of counsel to keep his client “informed of developments in
       the case.” Neither of these cases stands for the proposition that everything in a police report
       must be part of an attorney-client discussion. Moreover, the attorney in this case also relied on
       a document prepared by her own office that said that Mr. Ramirez was a “life-long” resident of
       Cook County. We simply cannot say that such reliance “fell below an objective standard of
       reasonableness” under Strickland, 466 U.S. at 687-88.
¶ 25       In short, Mr. Ramirez has not satisfied the first prong of the Strickland test. He has not
       shown that his counsel was deficient for failing to advise him of the possible immigration
       consequences before he pled guilty to a felony conviction. Therefore, we agree with the trial
       court that we do not need to consider whether he was prejudiced by counsel’s action, and we
       find no abuse of discretion in the trial court’s refusal to vacate Mr. Ramirez’s guilty plea.

¶ 26                                     IV. CONCLUSION
¶ 27      For the foregoing reasons, judgment of the trial court is affirmed.

¶ 28      Affirmed.




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