                                          2015 IL App (3d) 120892

                                 Opinion filed May 19, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 13th Judicial Circuit,
                                                       )       Bureau County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-12-0892
            v.                                         )       Circuit No. 12-CF-40
                                                       )
     JOSUE VALDEZ,                                     )       Honorable
                                                       )       Marc P. Bernabei,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

            PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justice Carter concurred in the judgment and opinion.
           Justice Holdridge specially concurred, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant, Josue Valdez, was a noncitizen who pled guilty to burglary predicated upon

     theft (720 ILCS 5/19-1(a) (West 2012)). He filed a timely motion to withdraw his guilty plea,

     claiming his counsel provided him ineffective assistance of counsel by failing to advise him that

     he would be deported as a result of his plea, in violation of the holding in Padilla v. Kentucky,

     559 U.S. 356 (2010). The trial court denied the motion, finding that counsel's advice was

     deficient but that defendant was not prejudiced because the court admonished defendant that his

     plea may have adverse immigration consequences. Defendant appeals. We conclude that the
     immigration consequences of defendant's plea were clear and that counsel failed to meet his duty

     to advise defendant of those consequences. Counsel's deficiencies prejudiced defendant, and that

     prejudice was not cured by the court's admonishments. Therefore, we vacate the judgment and

     remand for further proceedings.

¶2                                                 FACTS

¶3          Defendant—a noncitizen from the Dominican Republic married to a United States

     citizen—was charged with burglary (720 ILCS 5/19-1(a) (West 2012)) for entering a building

     with the intent to commit theft after he allegedly took a ring and earrings from a neighbor's

     unoccupied building. The trial court appointed counsel and an interpreter. At a pretrial hearing,

     counsel expressed his difficulty explaining to defendant that counsel represented him in his

     criminal matter only, not in his ongoing divorce. In addition, counsel stated:

                    "It appears that he is also—an [Immigrations and Customs Enforcement] hold on

                my client and he may have immigration issues as well, which I also do not represent

                him on.

                    So it appears to me that [defendant] has three different and distinct legal

                problems, and I'm trying to help my client to understand that I'm here on one of those

                three different legal problems. I don't think it's any secret that I'm not involved in the

                divorce in this matter. I don't represent him on immigration issues, other than to

                advise him—

                    THE COURT: Of a conviction.

                    COUNSEL: Yes."

     The court granted a recess for counsel to speak with defendant.




                                                      2
¶4          When the pretrial hearing came back on the record, the parties announced that they had

     reached a plea agreement, under which defendant would plead guilty to burglary—a Class 2

     felony—and receive a sentence of four months in the county jail, followed by three years'

     probation. The court admonished defendant about the charge and potential penalties in

     accordance with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012).

¶5          The court further admonished defendant in accordance with section 113-8 of the Code of

     Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2012)):

                    "THE COURT: If you were not a citizen of the United States, you are hereby

                advised that a conviction of the offense for which you have been charged, the

                burglary charge, may have the consequences of deportation, exclusion from

                admission to the United States, or denial of naturalization under the laws of the

                United States. Do you understand that?

                    THE DEFENDANT: Yes.

                    THE COURT: Are you completely satisfied with the way that [defense counsel]

                has represented you?

                    THE DEFENDANT: Yes.

                    THE COURT: Do you have any complaints to make about his work in this case?

                    THE DEFENDANT: No. Everything has been fine."

¶6          The State presented a factual basis, stating that, if the cause were to proceed to trial, the

     State would provide 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' building and taking the property.

                                                       3
¶7          When the court asked defendant whether anyone was forcing him to plead guilty,

     defendant responded:

                   " THE DEFENDANT: They used it against me, yes. They used it against me

               because they threatened me with deportation.

                   THE COURT: Who did?

                   THE DEFENDANT: The—my wife's dad and grandpa. And he pushed my wife

               so that she would do the same.

                                                   ***

                   THE COURT: Okay. I can't accept the guilty plea if you're being forced to do it.

               I can only accept a guilty plea if you want to do it.

                   THE DEFENDANT: I have to accept it.

                   THE COURT: Okay.

                   THE DEFENDANT: Because I don't have any possibility of winning the case

               since my wife is being forced here and her father to do certain things. She is the one

               who took me to that property to see some animals.

                   THE COURT: How are they making you plead guilty instead of pleading not

               guilty and having a trial?

                   THE DEFENDANT: Because you're telling me I have to—they're going to

               deport me to the Dominican Republic.

                   THE COURT: Who is telling you that? Who is telling you they're going to

               deport you?

                   THE DEFENDANT: Because I have—well, because I won't agree to the divorce.

               Two days is when I—when I got papers for a divorce.

                                                     4
    THE COURT: What does that have to do with whether or not you plead guilty or

not guilty to this charge of burglary?

    THE DEFENDANT: Because on the theft case, my wife knew that I never

touched anything belonging to anyone. Everything that I used, it's with the sweat of

my own body.

    THE COURT: Okay. Do you want to plead guilty to this charge or do you want

to have a trial where—

    THE DEFENDANT: I can't go to a trial because I don't have the money to pay an

attorney.

    THE COURT: You have a free lawyer. He doesn't cost you any money. He is

free.

    THE DEFENDANT: Yes, but—but the attorney is good and I feel very good and

I am very appreciative of everything he has done for me. But it's not the same to pay

an attorney that is going to look for all the information of what I need to win the case.

    THE COURT: Well, if anybody is forcing you to plead guilty today against your

will, then we have to stop right now and we'll just go to trial on the scheduled date of

August 27.

    THE DEFENDANT: No, I want to accept because—for myself. Because with

God, I will get through the problem and I'll leave it behind me.

    THE COURT: Okay. But I have to ask you again, then: Are you pleading guilty

because that's what you decided that you want to do, or are you doing it because you

feel like you're being forced against your will to do it?

    THE DEFENDANT: It's because I have decided to do it.

                                         5
    THE COURT: Okay. So let me ask you again: Is anybody forcing you to plead

guilty? Because you have a right to plead not guilty and to have a trial to decide

whether or not you're guilty. You're not required to plead guilty. You have a right to

do that and you have a right to make this deal, but you also have a right not to do it,

and I just want to know what you want to do.

    THE DEFENDANT: I want to have the opportunity to get out and go back into

my career, and a month ago I can come back and fight the case and pay an attorney.

Everything will be very different because that attorney would have all the information

that they need.

    THE COURT: Okay. Well, first of all, you have a very good attorney.

    Secondly, these proceedings today are done. There will be no guilty plea because

he is telling me he is being forced.

    THE DEFENDANT: No, no. I want—everything is fine. I don't want you to

stop.

    THE COURT: Well—

    THE DEFENDANT: I am guilty.

    THE COURT: You just told me that you wanted to get out so you could fight the

case. You're not going to be able to do that if you plead guilty. Once you plead

guilty, the case is over.

    THE DEFENDANT: Well, that's fine, then. I want the case to be over. I need to

move on.

    THE COURT: So do you want to keep going today with this deal?

    THE DEFENDANT: Yes.

                                       6
                    THE COURT: So is anybody forcing to you [sic] do it or are you doing it

                because you want to do it?

                    THE DEFENDANT: It's because I want to do it.

                    THE COURT: Are you being forced to do it?

                    THE DEFENDANT: I can't go back. I have to go forward. Everything has been

                correct.

                    THE COURT: I told you that if you're found guilty—and one way that you could

                be found guilty is if you plead guilty—I've told you that you could be deported from

                the country. That's not up to me. It's up to the federal government. And I don't know

                if they would do it or not, but only they can do it. Your wife can't do it as a result of

                this conviction, but you told me you understood that, if you plead guilty, they could

                deport you. Do you understand that?

                    THE DEFENDANT: Yes.

                    THE COURT: And you still want to go forward?

                    THE DEFENDANT: Yes, I want to go forward."

     The court accepted defendant's guilty plea and the terms of the plea agreement.

¶8          Within 30 days of entering his plea, defendant filed a pro se motion to "open and vacate"

     his conviction. The court treated that filing as a motion to withdraw defendant's guilty plea and

     appointed new counsel for defendant. Counsel filed an amended motion to withdraw the guilty

     plea, arguing that the guilty plea was involuntary due, in part, to the erroneous advice of counsel.

     In addition, defendant claimed that he was innocent of the charged conduct, alleging that he

     found the jewelry in a gas station parking lot and did not take it from the Petersons' building.

     Defendant argued that the police investigation reports would support defendant's claim that he

                                                      7
       found the jewelry rather than took it from the Petersons. In addition, defendant argued that

       counsel was ineffective for advising him to stipulate to an erroneous set of facts at the guilty plea

       hearing.

¶9            A hearing was held on the amended motion to withdraw defendant's guilty plea.

       Defendant testified that he never admitted to taking the jewelry from the Petersons' building but

       rather found the property in a gas station parking lot. The State introduced a police report of

       Bureau County Deputy Sheriff Eric Barnes. The report stated that defendant's wife, Jenny

       Valdez, had discovered defendant in possession of a class ring with Keith Peterson's name on it

       and a pair of earrings. Jenny told police that defendant stated that he found the jewelry in a gas

       station parking lot. Jenny told defendant to return the property to Peterson. Barnes investigated

       the theft, and defendant told Barnes that he found the property in a parking lot. Defendant told

       Barnes that he returned the ring to Peterson.

¶ 10          The court found that guilty plea counsel failed to inform defendant about the possibility

       of deportation: "[i]t never came up for discussion between the two of them based on the

       uncontradicted evidence here." As a result, the court concluded that counsel provided deficient

       performance under the first prong of Strickland. However, the court found that its own

       admonishments cured counsel's deficiency, and therefore defendant suffered no prejudice under

       Strickland. The trial court explained:

                  "It makes little sense to suggest that he wouldn't have pled guilty had [defense

                  counsel] told him about it when the court clearly and more than once told him about

                  it, and yet he insisted, after hearing it directly from the judge himself, that he wanted

                  to go forward. It would make little sense to suggest that in the face of what happened

                  at the guilty plea proceedings, to suggest that he wouldn't have pled guilty if his


                                                         8
                  lawyer would have told him the same thing that the judge told him not once but

                  twice."

       The court denied defendant's motion to withdraw his guilty plea. Defendant appeals.

¶ 11                                               ANALYSIS

¶ 12          Defendant appeals from the circuit court's denial of his motion to withdraw his guilty

       plea. A challenge to a guilty plea alleging ineffective assistance of counsel is subject to the

       standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hall, 217 Ill. 2d

       324 (2005). Under that familiar standard, defendant must establish: (1) that counsel's

       performance fell below an objective standard of reasonableness; and (2) a reasonable probability

       that the outcome of the proceedings would have been different absent counsel's errors.

       Strickland, 466 U.S. 668. Both prongs of Strickland involve mixed questions of fact and law that

       we review under a dual standard of review: the court's factual findings are reviewed against the

       manifest weight of the evidence, while the ultimate decision whether counsel was ineffective is

       reviewed de novo. People v. Coleman, 2015 IL App (4th) 131045, ¶¶ 61-67.

¶ 13                                         I. Deficient Performance

¶ 14          In Padilla, 559 U.S. 356, the Supreme Court of the United States unambiguously held

       that the sixth amendment right to effective assistance of counsel announced in Strickland, 466

       U.S. 668, extends to advice about the potential deportation risks that may accompany a criminal

       defendant's conviction. The Court held that "[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.' " Padilla, 559 U.S. at 371 (quoting

       Hill v. Lockhart, 474 U.S. 52, 62 (1985) (White, J., concurring, joined by Stevens, J.)).

¶ 15          Padilla established a two-tiered standard for determining counsel's duty to advise about


                                                         9
       immigration consequences. Where the immigration consequences of a defendant's plea are

       "unclear or uncertain," counsel need do no more than advise her client that the plea "may carry a

       risk of adverse immigration consequences." Padilla, 559 U.S. at 369. In contrast, where the

       immigration consequences of a particular plea are "succinct, clear, and explicit," counsel must

       advise the client of those specific consequences. Id. at 368.

¶ 16          A conviction for residential burglary predicated upon theft potentially exposed defendant

       to deportation under two subsections of section 1227 of the Immigration and Nationality Act

       (Act) (8 U.S.C. § 1227 (2012)). First, section 1227(a)(2)(A)(iii) provided that an alien convicted

       of an aggravated felony at any time after admission is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii)

       (2012). Second, section 1227(a)(2)(A)(i) stated that an alien convicted of a "crime involving

       moral turpitude" within five years of admission to the United States "is deportable." 8 U.S.C.

       § 1227(a)(2)(A)(i) (2012). We address those subsections in turn.

¶ 17                                         A. Aggravated Felony

¶ 18          The federal immigration statutes define an aggravated felony as, inter alia, a theft or

       burglary offense "for which the term of imprisonment [sic] at least one year." 8 U.S.C.

       § 1101(a)(43)(G) (2012). The term of imprisonment referenced in that subsection is the term

       actually imposed, not the statutorily available sentence. United States v. Guzman-Bera, 216 F.3d

       1019, 1021 (11th Cir. 2000). Here, defendant was sentenced to less than one year of

       imprisonment. Therefore, his conviction did not qualify as an aggravated felony.

¶ 19                                  B. Crime Involving Moral Turpitude

¶ 20          Section 1227(a)(2)(A)(i) of the Act makes an alien deportable who has been convicted of

       a "crime involving moral turpitude" (CIMT) within five years of admission to the United States.

       8 U.S.C. § 1227(a)(2)(A)(i) (2012). However, unlike the aggravated felony subsection, the


                                                       10
       statutory language of the CIMT subsection does not define a "crime involving moral turpitude."

       To determine whether defendant's conviction was a CIMT, we must consult federal case law.

¶ 21          Moral turpitude is a notoriously difficult phrase to define. See Jordan v. De George, 341

       U.S. 223, 239 (1951) (Jackson, J., dissenting). However, it is generally defined as "conduct

       which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the

       duties owed between persons or to society in general." In re Ajami, 22 I. & N. Dec. 949, 950

       (BIA) (1999) (per curiam).

¶ 22          Although determining whether a crime is a CIMT can be a difficult exercise, in the

       present case it was clear that a conviction for burglary predicated upon theft was a CIMT. The

       federal case law is in agreement that crimes involving theft are CIMTs. See, e.g., United States

       v. Esparza-Ponce, 193 F.3d 1133, 1336 (9th Cir. 1999) (theft is a CIMT); In re Lopez-Meza, 22

       I. & N. Dec. (BIA) 1188, 1193 (1999) (including theft in a list of CIMTs); In re Frentescu, 18 I.

       & N. Dec. (BIA) 244, 245 (1982) (superseded by statute on other grounds) (burglary with intent

       to commit theft is a CIMT); In re De La Nues, 18 I. & N. Dec. (BIA) 140, 145 (1981) (burglary

       and theft are CIMTs); but see Hernandez-Cruz v. Holder, 651 F.3d 1094, 1112 (9th Cir. 2011)

       (commercial burglary not necessarily a CIMT). Therefore, with minimal research beyond the

       text of the immigration statute, counsel could have determined with clarity that defendant's

       conviction made him deportable.

¶ 23          The State argues that the immigration consequences of a conviction are never clear when

       the text of the immigration statute itself does not explicitly declare a conviction deportable. See,

       e.g., State v. Ortiz-Mondragon, 2014 WI App 114, ¶¶ 12-13, 358 Wis. 2d 423, 856 N.W.2d

       339); Lopez-Penaloza v. State, 804 N.W.2d 537, 544-46 (Iowa Ct. App. 2011). The State

       correctly points out that in Padilla, counsel could have determined that the plea made the


                                                        11
       defendant deportable "simply from reading the text of the statute." Padilla, 559 U.S. at 368.

       Although the question whether residential burglary qualified as a CIMT was not apparent merely

       from reading the text of the statute, we conclude that the answer was nevertheless clear from a

       minimal investigation of the case law. Counsel therefore had a duty to advise defendant that, by

       pleading guilty, deportation was "presumptively mandatory." See id. at 369.

¶ 24          In the present case, counsel failed to meet his duty under Padilla. After a hearing on the

       motion to withdraw, the court found that counsel failed to give defendant any advice about the

       deportation consequences of his plea. Counsel's performance therefore fell well below the

       constitutional threshold. Counsel provided deficient performance under the first prong of

       Strickland.

¶ 25                                      II. Prejudice Under Strickland

¶ 26          To establish a viable claim of ineffective assistance of counsel, defendant must also show

       that he suffered prejudice as a result of his attorney's constitutionally deficient performance.

       Prejudice is defined as a reasonable probability that, but for counsel's errors, the result of the

       proceeding would have been different. Strickland, 466 U.S. at 694. In the context of a guilty

       plea, defendant must show that, but for counsel's errors, the defendant would not have pleaded

       guilty and would have insisted on going to trial. People v. Hughes, 2012 IL 112817, ¶ 63.

       Establishing prejudice requires more than a " 'bare allegation' " that defendant would have

       rejected the plea and proceeded to trial. Id. ¶ 64 (quoting Hall, 217 Ill. 2d at 335). Rather,

       defendant must assert either (1) a claim of actual innocence, or (2) a plausible defense that could

       have been raised at trial. Id. The question of prejudice depends in large part on predicting

       whether the defendant would have been successful at trial. Hall, 217 Ill. 2d at 336.

¶ 27          In the present case, defendant argues that he was unaware that deportation was a


                                                         12
       presumptively mandatory result of his guilty plea. According to defendant, had he known of

       those specific immigration consequences, he would have pled not guilty and proceeded to trial,

       in the hopes of avoiding deportation. Additionally, defendant argues that there was a reasonable

       probability that he would have succeeded at trial because he was actually innocent of the charge.

¶ 28           We agree that defendant has established a reasonable probability that, had he been

       advised that his guilty plea mandated deportation, he would have pled not guilty and proceeded

       to trial. In support of that finding, we note that in his motion to withdraw his guilty plea,

       defendant raised a claim of actual innocence, alleging that he found the jewelry rather than took

       it from the Petersons' building. In addition, during his plea colloquy, defendant's confused

       statements seemed to imply that he was pleading guilty in order to avoid deportation and that he

       felt forced into pleading guilty. Under these facts, we find that defendant established a

       reasonable probability that, had he known that deportation was "practically inevitable" (Padilla,

       559 U.S. at 364), he would have rejected the guilty plea and proceeded to trial.

¶ 29           The State argues that any prejudice that defendant might have suffered was cured by the

       court's admonishments under section 113-8 of the Code (725 ILCS 5/113-8 (West 2012)). That

       statute requires the court to recite the following warning to a defendant prior to 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.' " 725 ILCS 5/113-8 (West

                  2012).




                                                        13
       In the present case, the court admonished defendant under section 113-8 prior to accepting his

       guilty plea.

¶ 30           The State is correct that a trial court's admonishments can serve to cure the prejudice

       resulting from defense counsel's erroneous advice. See, e.g., People v. Ramirez, 162 Ill. 2d 235

       (1994); People v. Jones, 144 Ill. 2d 242 (1991). In the present case, however, the section 113-8

       admonishment did not cure counsel's deficiencies.

¶ 31           The section 113-8 admonishment mirrors the advice counsel is required to give under

       Padilla when the immigration consequences of the conviction are not clear. Padilla, 559 U.S. at

       369 (requiring counsel to advise that the conviction "may carry a risk of adverse consequences").

       If the deportation consequences of defendant's conviction had been unclear in the present case,

       the section 113-8 admonishment would likely have been sufficient to cure any prejudice.

¶ 32           However, where, as here, the consequences were "truly clear" (id.), counsel had a duty to

       advise of those specific consequences. The section 113-8 admonishments are generic to every

       guilty plea and, by definition, do not warn of the specific consequences of a particular

       conviction. Nor does section 113-8 warn against the definitive nature of those consequences. In

       defendant's case, deportation was presumptively mandatory; section 113-8 warns only that

       nebulous immigration consequences "may" occur. 725 ILCS 5/113-8 (West 2012). As a result,

       the court's section 113-8 admonishments were insufficient to cure the prejudice suffered by

       defendant.

¶ 33           Although in Padilla the Court was not tasked with determining whether the defendant

       suffered prejudice, the thrust of the opinion established that the failure of defense counsel to

       advise about immigration consequences can be prejudicial. In so doing, the Padilla Court

       declined to designate immigration consequences as either direct or collateral to a conviction:


                                                        14
       "The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim

       concerning the specific risk of deportation." Padilla, 559 U.S. at 366. Therefore, Illinois courts'

       continued reliance on the collateral versus direct distinction in other contexts does not preclude

       immigration consequences from being considered in the context of prejudice as it relates to

       ineffective assistance under the sixth amendment. Cf. People v. Carrera, 239 Ill. 2d 241 (2010)

       (holding that deportation is not a direct consequence of a guilty plea for purposes of the Post-

       Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012))). That is, whether Illinois

       courts continue to describe deportation as a direct or a collateral consequence is irrelevant to

       determining whether a defendant received effective assistance of counsel.

¶ 34           Defendant established that his plea was involuntary because he received ineffective

       assistance of counsel. As a result, the court erred by denying his motion to withdraw his guilty

       plea.

¶ 35           Lastly, the majority disavows the commentary contained in ¶¶ 43-44 of the special

       concurrence.

¶ 36                                             CONCLUSION

¶ 37           The judgment of the circuit court of Bureau County is vacated, and the cause is remanded

       for further proceedings.

¶ 38           Vacated and remanded.

¶ 39           JUSTICE HOLDRIDGE, specially concurring.

¶ 40           I agree with the majority's judgment and with its reasoning in almost all respects. I write

       separately because I disagree with two aspects of the majority's analysis. Citing People v.

       Hughes, 2012 IL 112817, ¶ 64 (which relied upon People v. Hall, 217 Ill. 2d 324, 335 (2005)),

       the majority states that, in order to establish that he was prejudiced by his counsel's failure to

                                                         15
       admonish him of the potential immigration consequences of his guilty plea, a defendant "must

       assert" either "a claim of actual innocence" or "a plausible defense that could have been raised at

       trial." Supra ¶ 26.

¶ 41          I disagree. While a claim of innocence or the apparent existence of a plausible trial

       defense may make a defendant's showing of prejudice stronger, neither is 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. Such a requirement makes sense in other contexts. For

       example, if a defendant claims that his counsel provided ineffective assistance by failing to

       discover exculpatory evidence or by failing to inform the defendant of a possible defense before

       inducing him to plead guilty (as in Hall), the prejudice to the defendant, if any, will depend on

       whether the presentation of the undiscovered evidence or the assertion of the affirmative defense

       at issue could have resulted in an acquittal at trial. See Hall, 217 Ill. 2d at 335-36; Hill, 474 U.S.

       at 59. However, that is not the case when counsel fails to advise a defendant of the risks of

       deportation, because the defendant may suffer prejudice in that instance regardless of the

       strength of his case at trial. As noted, to show prejudice in such cases, the defendant is only

       required to show that a decision to reject the plea bargain would have been "rational under the

       circumstances." Padilla, 559 U.S. at 372. A defendant facing potential deportation may show

       that his decision to reject a plea offer and go to trial would have been "rational" without showing

       that he would likely have succeeded at trial. See, e.g., Orocio, 645 F.3d at 643 (ruling that,

       under Padilla, a "rational" decision not to plead guilty "does not focus solely on whether a

       defendant would have been found guilty at trial"). As the Padilla Court recognized, preserving a

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

       than a potential sentence of imprisonment. Padilla, 559 U.S. at 368. See, e.g., Orocio, 645 F.3d


                                                        16
       at 645. A defendant who fears deportation more than he does imprisonment might rationally

       choose to risk a lengthier prison sentence in exchange for even a slight chance of prevailing at

       trial and thereby avoiding deportation. Counsel's failure to advise his client of the risk of

       deportation prejudices the defendant by depriving him of that chance. Under such

       circumstances, it would be inappropriate and overly burdensome to require the defendant to

       show that he would have succeeded at trial in order to establish prejudice. 1

¶ 42          In addition, the majority notes that "whether Illinois courts continue to describe

       deportation as a direct or a collateral consequence is irrelevant to determining whether a

       defendant received effective assistance of counsel." Supra ¶ 33. While I agree with that

       statement in the abstract, it appears to be based on an erroneous assumption that Illinois courts

       may continue to treat deportation as a "collateral consequence" after Padilla. As I explained in

       my separate opinion in People v. Guzman, 2014 IL App (3d) 090464, ¶¶ 64-72 (Holdridge, J.,

       specially concurring in part and dissenting in part), Padilla forecloses state courts from treating

       deportation as a collateral consequence.

¶ 43          One final point bears mentioning. As the majority correctly notes (supra ¶ 15), under

       Padilla, the scope of an attorney's obligations to warn his or her client of potential immigration

       consequences depends upon whether those immigration consequences are "succinct, clear, and

       explicit." Padilla, 559 U.S. at 368. If so, counsel must advise the client of those specific

       consequences. Id. If not, counsel is only required to advise his or her client that the guilty plea

       "may carry a risk of adverse immigration consequences." Id. at 369. I agree with the majority

              1
                  The First District of our Appellate Court has reached the opposite conclusion. See

       People v. Gutierrez, 2011 IL App (1st) 093499, ¶ 45. However, I find the Gutierrez court's

       analysis of this issue contrary to Padilla and I would therefore decline to follow Gutierrez.


                                                        17
       that a particular immigration consequence may be deemed "clear" and "explicit" even if it is not

       expressly prescribed by an immigration statute so long as it is clearly established by case law

       interpreting such a statute. However, we live in a time when the President and the Attorney

       General of the United States, by their statements and actions, have asserted that the executive

       branch's "enforcement discretion" includes the authority to decline to follow statutes and case

       law requiring deportation for entire classes of people. If this is true, (i.e., if the President and the

       Attorney General have the unbridled discretion to disregard immigration law as they see fit),

       then the immigration consequences flowing from a guilty plea will never be "clear" or "explicit,"

       even if they are clearly and explicitly mandated by immigration statutes or case law. Any

       conclusion based upon a review of the positive law will always be tentative, provisional, and

       subject to the whims of the executive branch. Thus, under Padilla, an attorney would arguably

       never be required to provide more than a general warning that a guilty plea "may carry a risk of

       adverse immigration consequences."

¶ 44           I raise this issue merely to note the ways in which the executive branch's recent assertions

       of expansive discretionary authority over deportations might impact an attorney's obligations

       under Padilla. I do not purport to resolve this issue today. However, we, as jurists, are bound to

       base our decisions on the written law. Therefore, because the relevant case law clearly

       establishes that the offense to which the defendant pled guilty in this case was a deportable

       "crime involving moral turpitude" under 8 U.S.C. § 1227(a)(2)(A)(i) (2012), I join the majority's

       conclusion that the immigration consequences at issue were clear.




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