                                      2016 IL 119860



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS



                                   (Docket No. 119860)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           JOSUE VALDEZ, Appellee.


                             Opinion filed September 22, 2016.



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

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



                                        OPINION

¶1       Defendant, Josue Valdez, pleaded guilty to burglary in the circuit court of
     Bureau County and was sentenced to three years of probation. At the time of his
     plea, defendant was a citizen of the Dominican Republic and a resident alien of the
     United States based on his marriage to a United States citizen. During the plea
     hearing, the circuit court judge advised defendant that a burglary conviction “may
     have the consequences of deportation, exclusion from admission to the United
     States, or denial of naturalization under the laws of the United States.” Defendant
     indicated he understood the potential consequences of a burglary conviction on his
     immigration status and still wished to plead guilty.

¶2       Defendant later filed a motion to withdraw his guilty plea, alleging
     involuntariness and ineffective assistance of counsel. The circuit court denied
     defendant’s motion. On appeal, defendant argued his attorney never warned him of
     the immigration consequences of pleading guilty to burglary, in violation of
     Padilla v. Kentucky, 559 U.S. 356 (2010). The appellate court agreed that defense
     counsel was ineffective and reversed the circuit court’s judgment. 2015 IL App
     (3d) 120892, ¶¶ 23-24.

¶3       This court allowed the State’s petition for leave to appeal pursuant to Illinois
     Supreme Court Rule 315 (eff. July 1, 2013). For the reasons that follow, we reverse
     the judgment of the appellate court and affirm the judgment of the circuit court.


¶4                                    BACKGROUND

¶5      In 2012, defendant was charged with burglary (720 ILCS 5/19-1(a) (West
     2012)) for entering a building with the intent to commit a theft, after he allegedly
     took a ring and earrings from an unoccupied house in Sheffield, Illinois. The circuit
     court appointed a public defender and a Spanish-speaking interpreter for defendant.

¶6      At a pretrial hearing, the parties informed the court that they had reached a
     negotiated plea agreement. Under the agreement, defendant would plead guilty to
     burglary, a Class 2 felony. He would be sentenced to four months in the county jail,
     with credit for time served, followed by three years’ probation.

¶7       The State presented a factual basis for the plea, which stated that, if the cause
     were to proceed to trial, the State would present evidence that Keith Peterson
     discovered that his class ring and a pair of his wife’s earrings were missing from
     their house, which had sat uninhabited for a month. Further evidence would show
     that defendant was in possession of the ring and earrings and that defendant
     admitted to entering the Petersons’ house.

¶8      The court admonished defendant about the charge and potential penalties in
     accordance with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). The court




                                             -2-
       then admonished defendant, pursuant to section 113-8 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/113-8 (West 2012)), that a burglary conviction
       “may have the consequences of deportation, exclusion from admission to the
       United States, or denial of naturalization under the laws of the United States.”
       Defendant stated that he understood these admonishments and still wished to plead
       guilty. Later in the proceedings, the judge admonished defendant that pleading
       guilty to burglary meant he “could be deported from the country,” a decision that
       would be “up to the federal government.” Defendant again acknowledged that he
       understood the potential immigration consequences and wanted to go forward with
       his guilty plea. The court accepted defendant’s guilty plea and sentenced defendant
       as agreed to by the parties in the plea agreement.

¶9         Within 30 days of entering his plea, defendant filed a pro se motion to “open
       and vacate” his burglary conviction. The circuit court construed the motion as a
       motion to withdraw guilty plea and appointed new counsel for defendant.
       Defendant’s new counsel filed a second amended motion to withdraw guilty plea
       and vacate sentence. The motion alleged, in part, that defense counsel failed to
       inform defendant of the consequences of his plea on his resident alien status.

¶ 10       Following a hearing, the circuit court denied defendant’s motion to withdraw
       his plea. While the facts showed defense counsel never informed defendant that a
       burglary conviction might affect his immigration status, the court held any
       prejudice resulting from counsel’s deficiency was cured by the court’s own
       admonishments to defendant, i.e., that his burglary conviction “may have the
       consequences of deportation.”

¶ 11       A divided appellate court vacated the circuit court’s order and remanded for
       further proceedings. 2015 IL App (3d) 120892. The majority held that defense
       counsel provided ineffective assistance by failing to inform defendant of the
       immigration consequences of his plea. According to the majority, under Padilla v.
       Kentucky, 559 U.S. 356 (2010), counsel had a professional duty to inform
       defendant that deportation resulting from his burglary conviction was
       “presumptively mandatory” under federal law. 2015 IL App (3d) 120892, ¶¶ 22-24.
       Thus, counsel’s failure to inform defendant of any immigration consequences prior
       to pleading guilty fell below an objective standard of reasonableness. Id.
       Furthermore, the court held, defendant was prejudiced by counsel’s deficient




                                              -3-
       performance because he established a reasonable probability that he would have
       chosen to proceed to trial had he known he faced mandatory deportation. Id.
       ¶¶ 26-28.


¶ 12                                       ANALYSIS

¶ 13       At issue is whether defense counsel provided ineffective assistance when he
       failed to inform defendant, prior to pleading guilty, that a burglary conviction
       subjected him to mandatory deportation from the United States. In Padilla, the
       United States Supreme Court held that an attorney’s failure to correctly advise a
       defendant of the immigration consequences of a guilty plea is subject to the
       standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Padilla, 559
       U.S. at 366 (“[w]e conclude that advice regarding deportation is not categorically
       removed from the ambit of the Sixth Amendment right to counsel”).

¶ 14       Under the first prong of the two-part Strickland test, a defendant must
       demonstrate that counsel’s performance “fell below an objective standard of
       reasonableness.” Strickland, 466 U.S. at 688. To satisfy the second prong, a
       defendant must show that he was prejudiced as a result of counsel’s deficient
       performance. Id. at 687. A showing of prejudice requires proof of a reasonable
       probability that, but for counsel’s errors, the result of the proceedings would have
       been different. Id. at 694. Both parts of the Strickland test must be satisfied to
       succeed on a claim of ineffective assistance of counsel. People v. Flores, 153 Ill. 2d
       264, 283 (1992).


¶ 15                                 I. Deficient Performance

¶ 16       In order to determine whether defendant has satisfied the first Strickland prong,
       we must first establish what professional duties were owed to defendant by his
       counsel. Padilla holds that defense counsel has a duty to give correct advice to a
       defendant about immigration consequences before the defendant enters a plea.
       Padilla, 559 U.S. at 367 (“[t]he weight of prevailing professional norms supports
       the view that counsel must advise her client regarding the risk of deportation”).
       This holding applies to affirmative misadvice, as well as the failure to give any
       advice at all. Id. at 370 (“there is no relevant difference between an act of




                                               -4-
       commission and an act of omission in this context” (internal quotation marks
       omitted)). Thus, prior to defendant entering a guilty plea, “[i]t is quintessentially
       the duty of counsel to provide her client with available advice about an issue like
       deportation, and the failure to do so ‘clearly satisfies the first prong of the
       Strickland analysis.’ ” Id. at 371 (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985)
       (White, J., concurring in the judgment, joined by Stevens, J.)).

¶ 17       In Padilla, defense counsel advised defendant, prior to his entering a guilty plea
       for transporting a large quantity of marijuana, that he “did not have to worry about
       immigration status since he had been in the country so long.” (Internal quotation
       marks omitted.) Id. at 359. This advice was clearly incorrect, according to the
       Supreme Court. In fact, Padilla’s drug conviction subjected him to mandatory
       deportation from the country. On the face of section 1227 of the Immigration and
       Nationality Act, the terms were “succinct, clear, and explicit in defining the
       removal consequence for Padilla’s conviction.” Id. at 359, 368 (“ ‘Any alien who at
       any time after admission has been convicted of a violation of (or a conspiracy or
       attempt to violate) any law or regulation of a State, the United States, or a foreign
       country relating to a controlled substance ***, other than a single offense involving
       possession for one’s own use of 30 grams or less of marijuana, is deportable.’ ”
       (quoting 8 U.S.C. § 1227(a)(2)(B)(i) (2006))).

¶ 18      The Court concluded, therefore, that defendant sufficiently alleged a
       constitutional deficiency based on his attorney’s failure to provide accurate
       immigration advice. Id. at 368-69. In so holding, the Court observed:

          “Padilla’s counsel could have easily determined that his plea would make him
          eligible for deportation simply from reading the text of the statute, which
          addresses not some broad classification of crimes but specifically commands
          removal for all controlled substances convictions except for the most trivial of
          marijuana possession offenses. Instead, Padilla’s counsel provided him false
          assurance that his conviction would not result in his removal from this country.
          This is not a hard case in which to find deficiency: The consequences of
          Padilla’s plea could easily be determined from reading the removal statute, his
          deportation was presumptively mandatory, and his counsel’s advice was
          incorrect.” (Emphasis added.) Id.




                                               -5-
¶ 19       In response to concerns raised in the concurring opinion, the Court went on to
       address situations in which the law is not “succinct, clear, and explicit” in defining
       the immigration consequences of a particular crime (id. at 368):

              “Immigration law can be complex, and it is a legal specialty of its own.
          Some members of the bar who represent clients facing criminal charges, in
          either state or federal court or both, may not be well versed in it. There will,
          therefore, undoubtedly be numerous situations in which the deportation
          consequences of a particular plea are unclear or uncertain. The duty of the
          private practitioner in such cases is more limited. When the law is not succinct
          and straightforward ***, 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. But when the deportation consequence is
          truly clear, as it was in this case, the duty to give correct advice is equally
          clear.” (Emphasis added.) Id. at 369.

¶ 20       The case before us differs from Padilla, where the immigration consequences
       of the defendant’s conviction were held to be “succinct, clear, and explicit” based
       on express language in the Immigration and Nationality Act. Id. at 368. Here, it is
       not clear on the face of the immigration statute that defendant’s burglary conviction
       rendered him deportable. The Act does not identify burglary as a deportable
       offense. Instead, the Act sets forth general categories of offenses, including crimes
       involving moral turpitude (8 U.S.C. § 1227(a)(2)(A)(i) (2012)) and aggravated
       felonies (id. § 1227(a)(2)(A)(iii)), which may or may not include burglary.

¶ 21       The appellate court below held that defense counsel had a duty to research
       federal case law in order to determine whether defendant’s conviction fit into any
       of these general categories. According to the appellate court, “minimal research”
       would have revealed that “burglary predicated upon theft” is clearly considered a
       “crime involving moral turpitude” (CIMT) in immigration law. 2015 IL App (3d)
       120892, ¶ 22 (citing United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir.
       1999) (theft is a CIMT), In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1999)
       (including theft in a list of CIMTs), In re Frentescu, 18 I. & N. Dec. 244, 245 (BIA
       1982) (burglary with intent to commit theft is a CIMT), and In re De La Nues, 18




                                               -6-
       I. & N. Dec. 140, 145 (BIA 1981) (burglary and theft are CIMTs)). 1 Section
       1227(a)(2)(A)(i) of the Act states that an alien convicted of a crime involving moral
       turpitude, committed within five years of the date of admission to the United States,
       “is deportable.” 8 U.S.C. § 1227(a)(2)(A)(i) (2012). Based on this authority, the
       appellate court held defense counsel had a constitutional obligation to inform
       defendant that pleading guilty to burglary rendered his deportation “presumptively
       mandatory.” 2015 IL App (3d) 120892, ¶ 23 (citing Padilla, 559 U.S. at 369).

¶ 22       We disagree that the immigration consequences of defendant’s burglary
       conviction were “succinct, clear, and explicit.” Padilla strongly suggests that
       where a crime falls within a “broad classification” of offenses, such as crimes
       involving moral turpitude, the law is not “succinct and straightforward.” Padilla,
       559 U.S. at 368-69. 2 Consequently, where the face of the statute does not
       succinctly, clearly, and explicitly indicate that a conviction subjects a defendant to
       mandatory deportation, counsel need only advise a defendant that his plea “may”
       have immigration consequences. Id. Moreover, even if we read Padilla as requiring
       a minimal review of the case law, federal authorities do not clearly answer whether
       defendant’s burglary conviction, as defined by Illinois state law, is a crime
       involving moral turpitude.

¶ 23       First, there is no clear consensus in the federal courts about how to define a
       “crime involving moral turpitude.” Neither the Immigration and Nationality Act

           1
             The appellate court held defendant’s conviction did not qualify as an aggravated
       felony under the federal immigration statutes because defendant was sentenced to less than
       one year of imprisonment. See 8 U.S.C. § 1101(a)(43)(G) (2012) (defining an aggravated
       felony as, inter alia, a theft or burglary offense “for which the term of imprisonment [is] at
       least one year”). 2015 IL App (3d) 120892, ¶¶ 17-18.
           2
            In describing situations “in which the deportation consequences of a particular plea
       are unclear or uncertain,” the majority of the Court referred to “many of the scenarios
       posited by JUSTICE ALITO.” Padilla, 559 U.S. at 369. In his concurring opinion, Justice
       Alito discussed at length the difficulty and complexity involved in determining whether a
       crime is classified as a crime involving moral turpitude. Id. at 377-79 (Alito, J., concurring
       in the judgment, joined by Roberts, C.J.) (arguing that defense counsel has no affirmative
       obligation to advise a defendant about immigration consequences, only an obligation to
       correct erroneous advice).




                                                   -7-
       nor the Code of Federal Regulations defines the term, nor do they list examples of
       crimes in this category. See State v. Ortiz-Mondragon, 866 N.W.2d 717, 727 (Wis.
       2015) (citing Padilla, 559 U.S. at 361, and id. at 377-78 (Alito, J., concurring in the
       judgment, joined by Roberts, C.J.)). The term “moral turpitude” was intentionally
       left undefined by Congress and, thus, is open to interpretation by the Board of
       Immigration Appeals (Board) and the courts. Jordan v. De George, 341 U.S. 223,
       233-34 (1951) (Jackson, J., dissenting, joined by Black and Frankfurter, JJ.);
       Cabral v. Immigration & Naturalization Service, 15 F.3d 193, 194-95 (1st Cir.
       1994); see also Hernandez-Cruz v. Holder, 651 F.3d 1094, 1105 (9th Cir. 2011)
       (the Board must consider on a case-by-case basis which crimes involve moral
       turpitude).

¶ 24       Certain offenses are considered indisputably to be crimes involving moral
       turpitude, such as those entailing fraud or deceit (Marin-Rodriguez v. Holder, 710
       F.3d 734, 738 (7th Cir. 2013)) or those involving a certain degree of “baseness or
       depravity,” such as murder, rape, robbery, or kidnapping (internal quotation marks
       omitted) (Ruiz-Lopez v. Holder, 682 F.3d 513, 519 (6th Cir. 2012)). Burglary, by
       contrast, is not universally regarded as a CIMT in immigration law. The inquiry
       turns on multiple factors, including the elements of the burglary statute at issue. See
       Judulang v. Holder, 565 U.S. ___, ___, 132 S. Ct. 476, 485 (2011) (“minor
       burglar[ies]” are not CIMTs); Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106-09
       (9th Cir. 2011) (second-degree commercial burglary under California law is not a
       CIMT where the elements of the crime do not, on their face, require a theft);
       Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1019 (9th Cir. 2005) (acting as an
       accomplice to residential burglary, in violation of Washington law, is not a CIMT
       under categorical approach); but see In re Frentescu, 18 I. & N. Dec. 244, 245 (BIA
       1982) (burglary with intent to commit a theft is a CIMT).

¶ 25       Because the term “crime involving moral turpitude” has no settled meaning in
       immigration law, the Board and the courts use various methodologies to determine
       whether a crime should be classified as a CIMT. “[D]etermining whether a
       particular crime is *** a ‘crime involving moral turpitude [(CIMT)]’ is not an easy
       task.” Padilla, 559 U.S. at 378 (Alito, J., concurring in the judgment, joined by
       Roberts, C.J.). Currently, the federal circuit courts of appeals are split on which test
       is appropriate. Five circuits apply a two-step test consisting of a “categorical
       approach” and “modified categorical approach.” Ortiz-Mondragon, 866 N.W.2d at




                                                -8-
       728-29 & nn.11-12 (and cases cited therein). As of 2013, two other circuits,
       including the Seventh Circuit, applied a sequential three-step test, which allows
       analysis of evidence outside the record of conviction when the first two approaches
       do not yield a definitive answer. See id.; Marin-Rodriguez v. Holder, 710 F.3d 734,
       737-38 (7th Cir. 2013). 3

¶ 26       In light of the split of authority described above, we cannot agree that the
       immigration consequences of defendant’s conviction were “succinct, clear, and
       explicit,” so as to require a warning by counsel that deportation was presumptively
       mandatory. Unlike the straightforward application of the statute in Padilla,
       determining whether defendant’s burglary charge, as defined by Illinois state law,
       is a CIMT requires extensive research of federal case law. Even then, there is no
       clear answer. Under these circumstances, we hold that counsel was required to give
       defendant only a general warning of the possibility of immigration consequences.
       See Padilla, 559 U.S. at 369 (“When the law is not succinct and straightforward
       *** 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.”).

¶ 27       It is undisputed in this case that defendant received inadequate legal advice
       from counsel. The circuit court found that counsel gave defendant no advice about
       immigration consequences before entering his guilty plea. Thus, defendant has
       sufficiently alleged that his counsel’s performance was constitutionally deficient
       under the first Strickland prong. See id. at 366, 369-71.


¶ 28                                         II. Prejudice

¶ 29       Whether defendant is entitled to relief as a result of counsel’s deficient
       performance depends on whether he can demonstrate prejudice. In order to show

           3
            The three-step test has recently been called into question. In a 2015 opinion, the
       United States Attorney General acknowledged that several United States Supreme Court
       opinions had “cast doubt” on the three-step test and five circuit courts of appeals had
       explicitly rejected the test. In re Silva-Trevino, 26 I. & N. Dec. 550, 550, 552-53 (Att’y
       Gen. 2015) (vacating opinion in In re Silva-Trevino, 24 I. & N. Dec. 687 (Att’y Gen.
       2008), which had adopted the three-step test as a universal test for the entire Board of
       Immigration Appeals).




                                                 -9-
       prejudice, a defendant must demonstrate “a reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have been
       different.” Strickland, 466 U.S. at 694. To establish prejudice in the guilty plea
       context, “the defendant must show that there is a reasonable probability that, but for
       counsel’s errors, he would not have pleaded guilty and would have insisted on
       going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. Hughes, 2012 IL
       112817, ¶ 63. A conclusory allegation that a defendant would not have pleaded
       guilty and would have demanded a trial is insufficient to establish prejudice.
       Hughes, 2012 IL 112817, ¶ 64; People v. Hall, 217 Ill. 2d 324, 335 (2005). Rather,
       as the Supreme Court noted in Padilla, “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 (citing Roe v.
       Flores-Ortega, 528 U.S. 470, 480, 486 (2000)).

¶ 30       The State argues that any prejudice resulting from counsel’s failure to advise
       defendant was cured by the circuit court’s admonishments under section 113-8 of
       the Code of Criminal Procedure of 1963 (725 ILCS 5/113-8 (West 2012)). This
       statute requires a trial court to give the following advisement to the defendant in
       open court before accepting a guilty plea: “ ‘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.’ ” Id. In the proceedings below, after the circuit court gave the
       admonishments mandated by section 113-8, defendant acknowledged he
       understood them and stated that he wished to go forward with his plea. Therefore,
       the State argues, if counsel was only required to advise defendant that pleading
       guilty “may have” the consequence of deportation, defendant cannot show he was
       prejudiced, as he had already received adequate advisements by the circuit court.
       We agree.

¶ 31       It is well established that admonishments by the circuit court can cure prejudice
       to a defendant resulting from counsel’s incorrect advice. See People v. Ramirez,
       162 Ill. 2d 235, 242-43, 245 (1994) (where defendant was properly admonished by
       the circuit court, defendant could not show that he pled guilty in reliance on alleged
       misrepresentations by his attorney that he would receive probation); People v.
       Jones, 144 Ill. 2d 242, 263 (1991) (circuit court’s thorough questioning of




                                               - 10 -
       defendant as to whether he understood the consequences of his plea contradicted
       defendant’s claims that he pled guilty based on counsel’s promise that he would not
       receive a death sentence).

¶ 32       Defendant cannot now argue that his counsel’s failure to inform him of the
       immigration consequences of a guilty plea caused him to forgo a trial when the
       circuit court conveyed the same information to him and defendant still chose to
       plead guilty. See id. (“To accept the defendant’s claim would require us to
       characterize the court’s lengthy and exhaustive admonitions as merely a
       perfunctory or ritualistic formality; a characterization we are unwilling to make.”).
       Any prejudice suffered by defendant as a result of counsel’s failure was cured by
       the circuit court’s strict compliance with section 113-8 of the Code. Accordingly,
       defendant has failed to establish he was prejudiced under Strickland, and the circuit
       court did not abuse its discretion in denying defendant’s motion to withdraw his
       guilty plea.

¶ 33       As a final matter, defendant raises two issues questioning defense counsel’s
       competence for the first time in his brief to this court. First, he argues that he was
       prejudiced by his attorney’s failure to obtain a more favorable plea agreement.
       Defendant contends that counsel should have bargained with the State for a
       conviction on a lesser, “non-deportable” offense, such as criminal trespass to real
       property (720 ILCS 5/21-3 (West 2012)). Defendant’s second argument is that
       counsel failed to warn him that he could potentially be convicted of an aggravated
       felony subject to mandatory deportation (8 U.S.C. § 1227(a)(2)(A)(iii) (2012)) if
       his sentence of probation were revoked and if he were then resentenced to more
       than one year in prison. Both arguments are entirely speculative and unsupported
       by evidence in the record. As neither issue was raised in the circuit court, they are
       now forfeited. See People v. Cruz, 2013 IL 113399, ¶ 20 (“Generally, an issue not
       raised in the trial court is forfeited on appeal.”); People v. Hillier, 237 Ill. 2d 539,
       547-50 (2010) (defendant’s failure to make a record in the trial court forfeits the
       issue on appeal).




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¶ 34                                    CONCLUSION

¶ 35      For the foregoing reasons, the judgment of the appellate court is reversed. The
       judgment of the circuit court is affirmed.


¶ 36      Appellate court judgment reversed.

¶ 37      Circuit court judgment affirmed.




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