                                     2014 IL App (3d) 090464

                          Opinion filed January 23, 2014
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                                        THIRD DISTRICT

                                            A.D., 2014

THE PEOPLE OF THE STATE             )     Appeal from the Circuit Court
OF ILLINOIS,                        )     of the 12th Judicial Circuit
                                    )     Will County, Illinois,
      Plaintiff-Appellee,           )
                                    )     Appeal Nos. 3-09-0464 & 3-10-0802
                                    )     Circuit No. 08-CF-2481
      v.                            )
                                    )
JORGE A. GUZMAN,                    )     The Honorable
                                    )     Richard C. Schoenstedt,
      Defendant-Appellant.          )     Judge, Presiding.
______________________________________________________________________________

      PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion.
      Justice Holdridge specially concurred, with opinion.
      Justice McDade dissented, with opinion.
______________________________________________________________________________

                                            OPINION

¶ 1    Defendant Jorge Guzman was indicted for the offense of aggravated possession of stolen

firearms (720 ILCS 5/16-16.1(a)(1) (West 2008)) and entered a negotiated guilty plea. On appeal,

defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because

he was not informed by the trial court or trial counsel of potential immigration consequences of his

conviction (No. 3-09-0464). He also appeals from the dismissal of his postconviction petition,

claiming that we should remand for further proceedings because postconviction counsel failed to
include allegations that defendant would not have pled guilty if he had been properly informed of

the immigration consequences (No. 3-10-0802). We reverse the order denying defendant's motion

to withdraw his plea and remand for further proceedings in appeal No. 3-09-0464. We dismiss

appeal No. 3-10-0802.

¶ 2                                      BACKGROUND

¶ 3    At the plea hearing, the State provided a factual basis in which it was shown that defendant

was in possession of stolen firearms. The trial court then asked defendant, "[I]s that what

happened?" Defendant responded, "[N]ot really." The court recessed to allow defendant to talk to

counsel. When the hearing continued, the court asked if defendant agreed to the provided factual

basis. Defendant said that he did and that he was mistaken in his earlier answer. The court accepted

defendant’s plea.

¶4     The case then proceeded directly to sentencing. Prior to rendering the sentence, the trial court

asked defendant if he was a United States citizen, and defendant stated that he was a resident.

Specifically, the following discussion took place:

               "THE COURT: Is he a U.S. citizen?

               DEFENDANT: Yes, sir.

               THE COURT: You are?

               DEFENDANT: I’m sorry. I’m a permanent legal resident."

¶ 5    The court sentenced defendant to four years’ imprisonment with the recommendation that

he be placed in the impact incarceration program.

¶6     On March 6, 2009, defendant filed a motion to withdraw his guilty plea. The written motion

contained no arguments in support of his request. At the hearing, counsel argued that defendant’s


                                                  2
guilty plea was involuntary because the trial court failed to admonish him under section 113-8 of the

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2008)) of the legal

immigration consequences he faced if he pled guilty:

               "MS. TISDALE [defense counsel]: *** [T]he language of 725 ILCS 5/113-A

       [sic], is that if you are not a citizen of the United state, [sic] you’re hereby advised

       that the -- that conviction of the offense for which you have been charged may have

       the consequences of deportation, exclusion from admission to the United States, your

       Honor. And that admonishment was not given to Mr. Guzman.

               Your Honor, it's your Honor's discretion as to whether he should be allowed

       to withdraw his plea of guilty or not. And seeing as though both of the cases that

       have been presented to your Honor, it isn't clear as to what the interpretation of that

       statute actually is. One case thinks it's instructionary, and another case thinks it's

       mandatory.

               I would ask that Mr. Guzman be allowed to withdraw his plea of guilty."

The court denied defendant’s motion after finding that the admonishments were directory, not

mandatory. Defendant filed a notice of appeal from that order on June 11, 2009 (No. 3-09-0464).

¶7     On appeal, defendant argued that the trial court erred in failing to inform him of the possible

immigration consequences of his guilty plea under section 113-8 of the Code of Criminal Procedure

of 1963 (Code) (725 ILCS 5/113-8 (West 2008)) and that trial counsel was ineffective for the failing

to inform him of those same consequences. On December 20, 2011, we reversed the trial court's

decision as to the constitutional argument and found that trial court's failure to inform defendant as

to the immigration consequences of his plea rendered his plea involuntary in light of Padilla v.


                                                  3
Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). People v. Guzman, 2011 IL App (3d) 090464

(withdrawn Nov. 27, 2012).

¶ 8    Meanwhile, on July 12, 2010, defendant, through private counsel, filed a petition to vacate

the judgment of conviction pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS

5/2-1401(a) (West 2010)). The petition alleged that neither the trial court nor trial counsel advised

defendant as to the potential deportation consequences of his plea and that removal proceedings

against defendant had been initiated as a result of his plea. The petition further alleged that an

attorney's failure to advise a client of the immigration consequences of a guilty plea constituted

ineffective assistance of counsel.

¶ 9    The trial court dismissed the petition, noting that claims of ineffective assistance of counsel

are not cognizable in section 2-1401 petitions.        The court granted counsel leave to file a

postconviction petition.

¶ 10   That same day, counsel filed a petition for postconviction relief alleging that (1) neither the

trial court nor trial counsel informed defendant of the immigration consequences of his plea, (2)

removal proceedings against defendant had begun as a result of the plea, (3) trial counsel's failure

to advise defendant of the immigration consequences constituted ineffective assistance, and (4)

defendant therefore did not enter his plea knowingly or voluntarily. The State filed a motion to

dismiss claiming, among other things, that the petition lacked the necessary evidentiary affidavits

in support of defendant's claims.

¶ 11   At the postconviction hearing, defense counsel presented the court with an affidavit from

defendant stating that the statements in the petition were true and accurate and that neither the trial

court nor defendant's attorney advised defendant that he might be deported if he pled guilty to the


                                                  4
felony charge.

¶ 12   On October 7, 2010, the court denied the petition, finding that there was no evidence in the

record that defendant would have gone to trial had he been informed of the potential immigration

consequences of his plea. Defendant filed a notice of appeal from that order on October 8, 2010 (No.

3-10-0802).

¶ 13   On March 28, 2012, the Illinois Supreme Court allowed the State's petition for leave to

appeal in case No. 3-09-0464. After receiving briefs from both parties, the supreme court remanded

the case to us and directed us to consider whether the trial court's failure to admonish defendant

pursuant to section 113-8 of the Code also should result in the defendant being allowed to withdraw

his guilty plea. People v. Guzman, No. 113730 (Oct. 12, 2012). In its supervisory order, the

supreme court stated that "[t]he appellate court may, in its discretion, choose to consolidate this

appeal on remand with the defendant's appeal of the dismissal of [his] postconviction petition,

currently pending in the Appellate Court as People v. Guzman, No. 3-10–802." On the supreme

court's advice, we consolidated appeal Nos. 3-09-0464 and 3-10-0802 and set a schedule for

supplemental briefing by the parties. We also entered a minute order withdrawing our original

opinion.

¶ 14   On appeal from case No. 3-09-0464, defendant now contends that (1) his motion to withdraw

his guilty plea should have been granted because the trial court failed to admonish him of the

possible immigration consequences of his guilty plea pursuant to section 113-8 of the Code, and (2)

his motion to withdraw should have been granted because trial counsel failed to inform him of the

potential effect of his conviction, as required under Padilla, 559 U.S. 356, 130 S. Ct. 1473. On

appeal from case No. 3-10-0802, defendant argues that postconviction counsel's assistance was


                                                 5
unreasonable because counsel failed to submit an appropriate affidavit from defendant, never argued

that there was a viable defense, failed to move to file a successive petition, and failed to withdraw

the notice of appeal filed on October 8, 2010, before submitting additional evidence.

¶ 15                                 APPEAL NO. 3-09-0464

¶ 16                       I. Failure to Admonish Under Section 113-8

¶ 17                                 A. Involuntary Guilty Plea

¶ 18   Defendant first argues that the trial court's failure to advise him in accordance with section

113-8 of the Code, concerning the potential effect of a guilty plea and conviction, renders his guilty

plea involuntary. A trial court's decision on a motion to withdraw a guilty plea is reviewed under

the abuse of discretion standard. People v. Pullen, 192 Ill. 2d 36, 39-40 (2000).

¶ 19   Section 113-8 provides:

                       "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 2008).

¶ 20   Here, the trial court found the above admonishments to be directory, as opposed to

mandatory. The supreme court addressed this question in People v. Delvillar, 235 Ill. 2d 507 (2009).

Specifically, the court stated that immigration consequences are collateral consequences. As such,


                                                  6
the failure to admonish a defendant of potential immigration consequences does not affect the

voluntariness of the plea. Delvillar, 235 Ill. 2d at 521-22.

¶ 21   At the hearing on defendant's motion, defendant's sole basis for requesting relief was

grounded in the incorrect belief that the section 113-8 admonishments were mandatory. Defense

counsel argued that the language of section 113-8 advised that a defendant should be admonished

as to the consequences of deportation. However, counsel acknowledged:

                         "Your Honor, it's your Honor's discretion as to whether he

                 should be allowed to withdraw his plea of guilty or not. And seeing

                 as though both of the cases that have been presented to your Honor,

                 it isn't clear as to what the interpretation of that statute actually is.

                 One case thinks it's instructionary, and another case thinks it’s

                 mandatory.

                         I would ask that Mr. Guzman be allowed to withdraw his plea

                 of guilty."

¶ 22   Under the circumstances, the trial court was simply left to decide whether the section 113-8

admonishments were mandatory.1 Because the trial court’s failure to admonish defendant of

potential immigration consequences does not by itself call into question the constitutional

voluntariness of the guilty plea (Delvillar, 235 Ill. 2d at 521-22), we will not disturb the court's

decision denying defendant's motion to withdraw his plea (Pullen, 192 Ill. 2d at 39-40).

¶ 23                                          B. Prejudice


       1
           Ultimately, the trial court correctly determined that the admonishments were merely

directory. See Delvillar, 235 Ill. 2d at 521-22.

                                                    7
¶ 24   Alternatively, defendant argues that we should reverse the trial court's denial of his motion

to withdraw his plea on the ground that he suffered prejudice as a result of the court's failure to

admonish him as to potential immigration consequences.

¶ 25   In Delvillar, the supreme court determined that a trial court's failure to admonish a defendant

pursuant to section 113-8 requires reversal where "real justice has been denied or if the defendant

has been prejudiced by the inadequate admonishment." Delvillar, 235 Ill. 2d at 522. The court noted

that a defendant could show prejudice by demonstrating that (1) he was subject to potential

immigration penalties, or (2) that he would have pleaded not guilty had he been admonished of those

potential consequences. Specifically, the court stated:

               "Again, it is defendant who must demonstrate that he has been prejudiced by

       the improper admonishment. [Citation.] In this case defendant has not done so. In

       his motion to withdraw his guilty plea and at argument on the motion, defendant

       failed to demonstrate that he was subject to any potential immigration penalties or

       that he would have pleaded not guilty had he been admonished of those potential

       consequences. After having answered 'yes' to the question whether he was a United

       States citizen in a previous hearing, defendant made no attempt to prove his resident

       alien status to the court in the subsequent hearing on his motion." Delvillar, 235 Ill.

       2d at 522.

¶ 26   The Delvillar case was pending before the supreme court at the time defendant's motion was

heard in the trial court. The record reveals, however, that defendant failed to show the trial court,

in his motion or argument, that any of those consequences discussed in Delvillar have been or will

be applied to him. For example, defendant's motion simply stated that "[d]efendant wishes to


                                                 8
withdraw his guilty plea." It fails to offer any basis why he should be allowed to do so. Nowhere

in the motion does defendant state that he was subject to potential immigration penalties or that he

would not have pled guilty if the court had properly admonished him of the immigration

consequences. In addition, hearings were held on May 21, 2009 and June 11, 2009. At no time

during those proceedings did defense counsel inform the trial court that defendant was actually

subject to any potential immigration penalties. Assessing the motion as presented to the trial court,

as we must do (People v. Smith, 253 Ill. App. 3d 948 (1993)), we find no abuse of discretion in the

trial court's denial of the motion to withdraw the plea.

¶ 27                        II. Ineffective Assistance of Trial Counsel

¶ 28   Next, defendant claims that his motion to withdraw should have been granted because trial

counsel’s failure to inform him of the potential effect of his conviction, as required under Padilla,

rendered his plea involuntary.

¶ 29   Claims of ineffective assistance of counsel arising from the plea bargaining process are

analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Jones,

144 Ill. 2d 242 (1991). To prevail under Strickland, a defendant must establish that his attorney's

performance was deficient and that he suffered prejudice as a result of counsel's unprofessional

conduct. Strickland, 466 U.S. at 687.

¶ 30   Whether to accept or reject a guilty plea offer is a decision only the defendant can make.

People v. Blommaert, 237 Ill. App. 3d 811 (1992). For this decision to be knowing and voluntary,

a criminal defense attorney is required to fully inform the defendant of the facts and law related to

the State's offer and must candidly advise the defendant concerning all aspects of the case, including

direct consequences of accepting or rejecting the offer. Blommaert, 237 Ill. App. 3d at 816-17. In


                                                  9
particular, defense counsel is obligated to inform his client of the maximum and minimum sentence

that can be imposed. Id. at 817.

¶ 31   Under the terms of federal immigration law, any alien who has been convicted of an

enumerated offense is deportable. Section 1227(a)(2)(C) of title 8 provides:

                 "Any alien who at any time after admission is convicted under any law of

       purchasing, selling, offering for sale, exchanging, using, owning, possessing, or

       carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange,

       use, own, possess, or carry, any weapon, part, or accessory which is a firearm or

       destructive device *** in violation of any law is deportable."               8 U.S.C.

       §1227(a)(2)(C) (2006).

Where deportation is a clear consequence, a criminal defense attorney is required to advise his or her

client that the pending charges may carry a risk of adverse immigration consequences. Padilla, 559

U.S. at 371, 130 S. Ct. at 1484. "It 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. (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985) (White, J.,

concurring in the judgment, joined by Stevens, J.)).2


       2
           In Chaidez v. United States, 568 U.S. __, 133 S. Ct. 1103, 1113 (2013), the United

States Supreme Court held that "defendants whose convictions became final prior to Padilla ***

cannot benefit from its holding." However, defendant's conviction is not yet final. "A state

conviction and sentence become final for purposes of retroactivity analysis when the availability

of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ

of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen,

                                                  10
¶ 32   Here, defendant asserts that counsel did not advise him that he risked deportation by pleading

guilty. The record supports that assertion. Nothing in the transcripts or pleadings demonstrates that

defense counsel advised defendant of any immigration consequences related to his guilty plea. Thus,

defendant has established the first prong of the analysis.

¶ 33   To establish the second prong, prejudice, defendant must demonstrate that but for his

counsel's error, there is a reasonable probability that he would not have pled guilty and would have

insisted on going to trial. Hill, 474 U.S. at 62; see generally Strickland, 466 U.S. at 694. Our review

requires a fact specific analysis that considers the weight of the evidence, the consequences of legal

options, and any circumstances that may affect a decision to enter a plea. Premo v. Moore, 562 U.S.

__, 131 S. Ct. 733 (2011). To obtain relief on such an ineffective assistance claim, a defendant must

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

Padilla, 559 U.S. at 372, 130 S. Ct. at 1485.

¶ 34   Defendant contends that he was unaware of the risk of deportation when he accepted the

State's plea offer and that it would have been reasonable under the circumstances for him to plead

not guilty. In support of his claim of reasonableness, he alleges that (1) his conviction at trial was

not certain because the evidence at the guilty plea hearing indicated that he was only found in the

presence of stolen firearms along with two other individuals, (2) he may have had a plausible

defense, and (3) he has family living in the United States.


510 U.S. 383, 390 (1994). Here, defendant's direct appeal is still pending before this court.

Padilla therefore retroactively applies to defendant. The holding in Chaidez does not bear on our

disposition.



                                                  11
¶ 35   These allegations sufficiently establish prejudice. Although a trial would still present the risk

of deportation, it would provide defendant the opportunity to contest the State's evidence. See

United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012) (prejudice found where, but for counsel's

error regarding deportation, defendant could have presented evidence at trial to remove crime from

class of mandatory deportation). Moreover, defendant's family ties and bonds to the United States

provide a rational basis to reject a plea deal. See Padilla, 559 U.S. at 368, 130 S. Ct. at 1483

(preserving client's right to remain in the United States may be more important to the client than any

potential jail sentence); State v. Sandoval, 249 P.3d 1015 (Wash. 2011) (finding prejudice to lawful

resident who was not informed of deportation consequences based on strong ties to the United

States). Thus, we conclude that defendant made the requisite showing of prejudice under the

Strickland test, and the trial court erred in dismissing his motion to vacate the guilty plea.

¶ 36                                  APPEAL NO. 3-10-0802

¶ 37   In his second appeal, defendant argues that postconviction counsel was ineffective by failing

to properly present his claim for ineffective assistance of trial counsel. Among other things,

defendant asserts that postconviction counsel failed to include allegations in the petition that

defendant would not have pled guilty if he had been properly informed of potential immigration

consequences. Because we have concluded that trial counsel was ineffective on direct appeal, the

issue presented in this appeal is moot. See Riveria v. City of Chicago Electoral Board, 2011 IL App

(1st) 110283, ¶ 15 ("[a] case is moot when it presents no actual controversy or when the legal issue

involved has ceased to exist"). Accordingly, we must dismiss the appeal. Id.

¶ 38                                      CONCLUSION

¶ 39   The order of the circuit court of Will County denying defendant’s motion to withdraw his


                                                  12
guilty plea is reversed, and the cause is remanded for further proceedings. Defendant's appeal from

the judgment of the circuit court denying his postconviction petition is dismissed.

¶ 40   No. 3-09-0464, Reversed and remanded.

¶ 41   No. 3-10-0802, Appeal dismissed.

¶ 42    JUSTICE HOLDRIDGE, specially concurring.

¶ 43   I agree with Presiding Justice Lytton that the trial court's order denying the defendant's

motion to withdraw his guilty plea should be reversed. However, I disagree with his analysis in

several respects. First, in my view, the trial court's failure to admonish the defendant regarding the

immigration consequences of his guilty plea rendered the defendant's plea involuntary, thereby

violating the defendant's constitutional rights. I would reverse the trial court's order, and the

defendant's conviction, on that basis. In addition, I believe that the defendant proved that his

postconviction counsel provided inadequate representation by failing to present necessary evidence

in support of the defendant's claim for ineffective assistance of trial counsel. Accordingly, if I were

not inclined to reverse the defendant's conviction for the foregoing reason, I would remand the case

for further second-stage postconviction proceedings. I address each of these issues in turn.

¶ 44             1. The Trial Court's Failure to Properly Admonish the Defendant

¶ 45   In his initial motion to withdraw his guilty plea, the defendant argued that his guilty plea was

involuntary because the trial court failed to admonish him of the potential immigration consequences

he faced if he pled guilty, as required by section 113-8 of the Code (725 ILCS 5/113-8 (West 2008)).

Citing our supreme court's ruling in People v. Delvillar, 235 Ill. 2d 507, 521-22 (2009), Presiding

Justice Lytton concludes that a trial court's failure to admonish a defendant of the potential

immigration consequences of his plea "does not by itself call into question the constitutional


                                                  13
voluntariness of the guilty plea." Supra ¶ 22. Our supreme court based this ruling on the following

two premises: (1) immigration consequences are "collateral consequences" (Delvillar, 235 Ill. 2d at

521; People v. Williams, 188 Ill. 2d 365, 372 (1999)); and (2) " 'the defendant's knowledge of the

collateral consequences of a guilty plea is not a prerequisite to the entry of a knowing and intelligent

guilty plea' " (Delvillar, 235 Ill. 2d at 521 (quoting Williams, 188 Ill. 2d at 371)). In my view, neither

proposition survives the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S.

356 (2010). In Padilla, the United States Supreme Court held that deportation was a "particularly

severe penalty" that has become "intimately related to the criminal process" because federal

immigration law has "enmeshed" criminal convictions and the penalty of deportation and "made

removal nearly an automatic result for a broad class of noncitizen offenders." Padilla, 559 U.S. at

365-66. Because of its close connection to the criminal process, the United States Supreme Court

ruled that deportation as a consequence of criminal conviction is "uniquely difficult to classify as

either a direct or a collateral consequence." Id.

¶ 46    The Illinois Supreme Court's conclusion that a trial court's failure to admonish a defendant

of the potential immigration consequences of his guilty plea does not call into question the

constitutional voluntariness of the plea is based entirely on the premise that immigration

consequences are "collateral" as a matter of law. Delvillar, 235 Ill. 2d at 521. That premise was

squarely rejected by the United States Supreme Court in Padilla (at least with respect to deportation).

In this case, the defendant faced deportation as a result of his guilty plea and subsequent conviction.3

Because of the unique nature of deportation and its close connection to the criminal process, the trial


        3
            See 8 U.S.C. § 1227(a)(2)(C) (2006) ("[a]ny alien who *** is convicted *** of

[possession of a firearm] *** in violation of any law is deportable").

                                                    14
court was required to admonish the defendant that he faced deportation as a result of his guilty plea

and subsequent conviction in order to ensure that the defendant's plea was knowing and voluntary.4

¶ 47       I recognize that the First District of our Appellate Court and courts in other jurisdictions

have rejected this conclusion. See, e.g., People v. Guiterrez, 2011 IL App (1st) 093499, ¶ 58

(applying Delvillar notwithstanding Padilla and stating that "[w]e do not read Padilla as rejecting

the distinction between direct and collateral consequences in determining whether a defendant's

guilty plea was knowingly and voluntarily entered"); State v. Ortiz, 44 A.3d 425, 431 (N.H. 2012)

(ruling that "Padilla does not speak to the due process obligations of a trial court accepting a guilty

plea," and upholding the traditional view that immigration consequences are collateral for that

purpose); see also Smith v. State, 697 S.E.2d 177, 183-85 (Ga. 2010); Steele v. State, 291 P.3d 466,

470 (Idaho Ct. App. 2012); United States v. Youngs, 687 F.3d 56, 61-63 (2d Cir. 2012); United


       4
            The dissent asserts that "it is only for our supreme court to determine whether Padilla

compels a change in Illinois law" and that, until our supreme court makes that determination,

"[w]e do not have the authority to overrule or ignore Delvillar," even assuming that my

interpretation of Padilla is correct. Infra, ¶ 64. I disagree. Our supreme court decided Delvillar

before the United States Supreme Court decided Padilla. The United States Supreme Court has

the final word on the meaning of the federal constitution's requirements. In my view, Delvillar

conflicts with Padilla, and Padilla controls. If our supreme court ultimately disagrees with my

interpretation of Padilla and reaffirms Delvillar's holding notwithstanding Padilla, then we

would be bound by that holding until the United States Supreme Court rules otherwise. People v.

Fountain, 2012 IL App (3d) 090558, ¶ 23 n.5. Until that happens, however, we are free to apply

Padilla as we understand it. See id.

                                                   15
States v. Nicholson, 676 F.3d 376, 381 n.3 (4th Cir. 2012); United States v. Delgado-Ramos, 635

F.3d 1237, 1240 (9th Cir. 2011). These courts correctly note that Padilla's holding addressed

counsel's obligations to provide effective assistance under the sixth amendment, not a trial court's

due process obligations to ensure the voluntariness of a guilty plea under the fifth amendment.

However, in reaching its holding, the Padilla Court addressed the nature of deportation per se and

its relation to a criminal conviction. The Court concluded, as a matter of law, that deportation could

not be characterized as a "collateral consequence" of a criminal conviction. Logic dictates that this

conclusion must be true for all purposes. Unlike the courts cited above, I find it incongruous and

inappropriate to characterize deportation as "collateral" for fifth amendment purposes but not for

sixth amendment purposes. Accordingly, I would hold that the trial court's failure to warn the

defendant that he faced a risk of deportation before accepting the defendant's guilty plea rendered

the plea involuntary and violated the fifth amendment.

¶ 48              2. Ineffective Assistance of Trial and Postconviction Counsel

¶ 49    If I were not inclined to reverse based upon the trial court's inadequate admonishments, I

would grant the alternative postconviction relief sought by the defendant in his supplemental briefs

on appeal. Specifically, I would find that the defendant's postconviction counsel rendered ineffective

assistance by failing to properly present the defendant's claim for ineffective assistance of trial

counsel, and I would remand for further second-stage postconviction proceedings on that issue.

¶ 50   As an initial matter, I believe that it would be helpful to clarify the legal standards governing

the defendant's underlying claim for ineffective assistance of trial counsel. In his postconviction

petition, the defendant argued that his trial counsel rendered ineffective assistance by failing to

advise him of the potential immigration consequences of his plea. As Presiding Justice Lytton


                                                  16
correctly notes, Padilla governs this claim. In Padilla, the United States Supreme Court held that,

where deportation is a clear consequence of pleading guilty (as here), counsel's failure to advise a

defendant of the potential immigration consequences of a guilty plea constitutes deficient

performance under prevailing professional norms. Padilla, 559 U.S. at 366. In other words, Padilla

holds that such a failure by counsel violates the first prong of the Strickland test as a matter of law.

Id. at 366. Thus, the defendant can prevail on his claim for ineffective assistance of counsel if he

can also satisfy the second prong of Strickland by demonstrating prejudice. Id.

¶ 51        To show prejudice in the plea context, a defendant "must show that there is a reasonable

probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would

have insisted on going to trial." (Internal quotation marks omitted.) Hughes, 2012 IL 112817, ¶ 63.

As the United States Supreme Court put it in Padilla, the defendant "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. In his supplemental brief on appeal, the defendant states that, in order to make this

showing, he "must assert either a claim of actual innocence or articulate a plausible defense that

could have been raised at trial." Hughes, 2012 IL 112817, ¶ 64; see also People v. Hall, 217 Ill. 2d

324, 335-36 (2005). I disagree.5

¶ 52    In my view, a defendant facing potential deportation may show that his decision to reject a

plea offer and go to trial would have been rational (which is all that Padilla requires) without

showing that he would likely have succeeded at trial. As the United States Supreme Court


        5
            This court is not bound by the defendant's erroneous statement of the law. People v.

Horrell, 235 Ill. 2d 235, 241 (2009) (a reviewing court is not bound by a party's concession); see

also People v. Martino, 2012 IL App (2d) 101244, ¶ 24.

                                                  17
recognized in Padilla, "[p]reserving the client's right to remain in the United States may be more

important to the client than any potential jail sentence." (Internal quotation marks omitted.) Padilla,

559 U.S. at 368. Accordingly, a defendant who fears deportation more than he fears a longer prison

sentence might rationally choose to go to trial even if his defense does not appear very likely to

succeed. See, e.g., United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011) ("For the alien

defendant most concerned with remaining in the United States, especially a legal permanent

resident, it is not at all unreasonable to go to trial and risk a ten-year sentence and guaranteed

removal, but with the chance of acquittal and the right to remain in the United States, instead of

pleading guilty to an offense that, while not an aggravated felony, carries 'presumptively mandatory'

removal consequences."). Such a defendant might be willing to risk a lengthier prison sentence in

exchange for even a slight chance of prevailing at trial and thereby avoiding deportation. Such a

defendant would be prejudiced by his attorney's failure to advise him of the risk of deportation

because: (1) he would not have pled guilty if he had known about the deportation risk; and (2) his

counsel's deficient performance deprived him of a chance to avoid deportation by prevailing at trial,

even if that chance was slim. 6 In other words, depending on the value that the defendant attaches to

remaining in the United States, a decision to reject a plea bargain and risk a lengthier sentence by going

to trial might be rational even if the defendant appears unlikely to prevail 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"). Under such circumstances, it




        6
            The defendant might also be deprived of the chance to spend additional time in the

United States (and outside of prison) while awaiting trial.

                                                   18
would be inappropriate and overly burdensome to require the defendant to assert either a claim of

actual innocence or a plausible defense that could have been raised at trial.7


       7
           In asserting that he was required either to raise a claim of actual innocence or to

articulate a plausible defense in order to show prejudice, the defendant cites language to that

effect in Hughes and Hall, two Illinois Supreme Court decisions. In imposing this requirement,

the Illinois Supreme Court cited the United States Supreme Court's decision in Hill v. Lockhart,

474 U.S. 52, 59 (1985). See Hall, 217 Ill. 2d at 335-36. However, Hill merely ruled that, in order

to establish Strickland prejudice in the plea context, a defendant must show that counsel's

constitutionally ineffective performance "affected the outcome of the plea process," i.e., that

there is "a reasonable probability that, but for counsel's errors, [the defendant] would not have

pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Hill Court

went on to note that, when trial counsel errs by failing to discover exculpatory evidence or by

failing to inform the defendant of a possible affirmative defense, the determination of whether

such errors prejudiced the defendant by inducing him to plead guilty will depend in large part on

whether the presentation of the evidence or the assertion of the defense likely would have

changed the outcome of a trial. Id. However, Hill did not hold or imply that the same

considerations should govern the analysis in a case like this, wherein the alleged error was

counsel's failure to advise the defendant of the potential immigration consequences of his plea.

       Such a holding would make no sense. Unlike the failure to discover exculpatory evidence

or to inform the defendant about an affirmative defense, the failure to advise a defendant

regarding immigration consequences has nothing to do with the strength of the defendant's case

at trial. A defendant alleging the latter type of error is not claiming that he pled guilty because

                                                  19
¶ 53     The dissent assumes that, in order to show prejudice, the defendant must present evidence

suggesting that he was actually deported. Infra ¶¶ 58-64, 66. Not so. As noted above, the defendant

is merely required to show that he would not have pleaded guilty had he known about the potential

immigration consequences and that it would have been rational for him to reject the plea deal and go

to trial. Padilla, 559 U.S. at 373; Hughes, 2012 IL 112817, ¶ 63. In other words, he need only show

a reasonable probability that trial counsel's failure to advise of him of the potential immigration

consequences of a guilty plea induced him to plead guilty. Hughes, 2012 IL 112817, ¶ 63. He does

not need to show, in addition, that he was actually deported. The prejudice occurs at the time the guilty

plea is entered based on false or incomplete information, not when a subsequent adverse immigration

consequence occurs.

¶ 54    Turning to the merits of the defendant's claim, it is clear that the defendant's postconviction

counsel failed to adequately present the defendant's claim for ineffective assistance of trial counsel.




his counsel's deficient representation caused him to believe that his case was weaker than it

actually was. Rather, he is claiming that he pled guilty because he was unaware of the

immigration consequences of such a plea. Thus, such a defendant is not required to show that he

would have succeeded at trial in order to establish prejudice. As the United States Supreme

Court recently noted in Padilla, the only question relevant to the prejudice inquiry in such cases

is whether it would have been rational for the defendant to reject the plea offer and go to trial in

an effort to avoid potential deportation. Padilla, 559 U.S. at 371-72. I recognize that the First

District of our Appellate Court has reached the opposite conclusion (see Gutierrez, 2011 IL App

(1st) 093499, ¶ 45), but I find the Gutierrez court's analysis of this issue contrary to Padilla and to

the principles discussed above.

                                                   20
When he filed the defendant's first postconviction petition, the defendant's postconviction counsel

failed to present any evidence suggesting that the defendant would not have pled guilty had he been

informed of the immigration consequences of the plea. The trial court dismissed the petition on that

basis. Counsel subsequently filed an amended postconviction petition with an affidavit signed by the

defendant stating that he would not have pled guilty had he been informed about the immigration

consequences, but the trial court struck the amended petition. The affidavit was not notarized and

counsel submitted the amended petition without filing a motion for leave to submit a successive

petition, as required by section 122-1(f) of the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-

1(f) (West 2010)). Counsel also failed to show cause for his failure to properly bring the claim in the

initial petition and prejudice resulting from that failure (see id.), and he failed to withdraw the notice

of appeal before filing the successive petition. According to the defendant's appellate counsel, the

defendant was deported approximately six weeks later. See id.

¶ 55    In my view, postconviction counsel's failure to timely submit any evidence of prejudice—a

required element of the defendant's claim for ineffective assistance of trial counsel—violated the

defendant's right to the reasonable assistance of postconviction counsel. See 725 ILCS 5/122-1 et seq.

(West 2010); People v. Suarez, 224 Ill. 2d 37, 42 (2007). Defendant's postconviction counsel failed

to make amendments to the petition necessary for an adequate presentation of the defendant's

contentions, as required by Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Accordingly, even

if I did not believe that the trial court's error required a reversal of the defendant's conviction, I would

reverse and remand for additional second-stage postconviction proceedings due to postconviction

counsel's inadequate representation. During those proceedings, the defendant would be allowed to

present evidence in support of his claims that: (1) he would not have pleaded guilty had he known




                                                    21
about the immigration consequences of his plea; and (2) it would have been rational under the

circumstances to reject the plea bargain and proceed to trial.

¶ 56     Presiding Justice Lytton declines to address the defendant's claim for ineffective assistance

of postconviction counsel because he concludes that the defendant proved his claim of ineffective

assistance of trial counsel, and he would reverse the trial court's order on that basis. Supra ¶ 37. I

disagree with this approach. In my view, the defendant failed to prove his claim for ineffective

assistance of trial counsel because his postconviction counsel presented no timely evidence of

prejudice (which amounted to ineffective assistance). The proper remedy for postconviction counsel's

inadequate representation would be to reverse the trial court's order and remand for further second-

stage postconviction proceedings so that the defendant may present such evidence. Nevertheless,

because I believe that we should reverse the trial court's order denying the defendant's motion to

withdraw his guilty plea due to the trial court's failure to properly admonish the defendant, we do not

need to remand for further postconviction proceedings.

¶ 57   JUSTICE McDADE, dissenting.

¶ 58   I dissent from the majority opinion reversing the trial court's denial of defendant's motion to

withdraw guilty plea.

¶ 59   After approximately three years of appellate litigation, there are presently three issues in this

case. The issues revolve around: (1) the circuit court's failure to admonish defendant of potential

immigration consequences, (2) trial counsel's alleged failure to inform defendant of potential

immigration consequences (ineffective assistance), and (3) postconviction counsel's alleged failure to

adequately support defendant's amended petition (unreasonable assistance). In the interest of clarity,

I will go through each issue and respond to each judge's respective finding.




                                                  22
¶ 60   The first issue is whether the circuit court's failure to admonish defendant in accordance with

section 113-8 of the Code, concerning the potential effect of a guilty plea and conviction, renders his

guilty plea involuntary. The author answers this question in the negative. Supra, ¶ 22. I agree.

¶ 61   The Delvillar court expressly held that immigration consequences are "collateral

consequences." Delvillar, 235 Ill. 2d at 521-22. Thus, reversal is only required when defendant

establishes he has been prejudiced by the inadequate admonishments. Delvillar, 235 Ill. 2d at 522.

Defendant, however, merely sought to withdraw his guilty plea on the sole ground that the 113-8

admonishments were mandatory. Specifically, defendant presented the circuit court with the following

argument:

                       "MS. TISDALE [defense counsel]: *** [T]he language of 725

               ILCS 5/113-A [sic], is that if you are not a citizen of the United state,

               [sic] you’re hereby advised that the -- that conviction of the offense for

               which you have been charged may have the consequences of

               deportation, exclusion from admission to the United States, your

               Honor. And that admonishment was not given to Mr. Guzman.

                       Your Honor, it's your Honor's discretion as to whether he

               should be allowed to withdraw his plea of guilty or not. And seeing as

               though both of the cases that have been presented to your Honor, it isn't

               clear as to what the interpretation of that statute actually is. One case

               thinks it's instructionary, and another case thinks it’s mandatory.

                       I would ask that Mr. Guzman be allowed to withdraw his plea

               of guilty."




                                                  23
¶ 62    Under the circumstances, the circuit court was simply left to decide whether the section 113-8

admonishments were mandatory.8 Defendant fell far short of meeting his burden to show the court that

he suffered prejudice as a result of its failure to admonish him. Because the court’s failure to admonish

defendant of potential immigration consequences does not by itself call into question the constitutional

voluntariness of his guilty plea (Delvillar, 235 Ill. 2d at 521-22), I would not disturb its decision

denying defendant's motion to withdraw guilty plea (Pullen, 192 Ill. 2d at 39-40).

¶ 63    While the special concurrence acknowledges the "collateral consequence" holding espoused

in Delvillar, it finds "[t]hat premise was squarely rejected by the United States Supreme Court in

Padilla (at least with respect to deportation)." Supra, ¶ 46. Thus, the special concurrence indicates

that the trial court's failure to admonish defendant rendered defendant's plea involuntary and therefore

invalid even absent a showing of prejudice. While the special concurrence's interpretation may be

correct, it is only for our supreme court to determine whether Padilla compels a change in Illinois law.

Until such a time, Delvillar remains the applicable law in Illinois. We do not have the authority to

overrule or ignore Delvillar, even assuming Justice Holdridge's interpretation is correct.

¶ 64    The second issue is whether defendant was deprived of effective assistance of counsel where

trial counsel allegedly failed to inform defendant of the potential immigration consequences associated

with pleading guilty. The author finds defendant established both deficient performance and prejudice.

Guzman, Supra, ¶¶ 30-35. The special concurrence disagrees, finding that "defendant failed to prove

his claim for ineffective assistance of trial counsel because his post conviction counsel presented no

timely evidence of prejudice." Supra,



        8
            Ultimately, the trial court correctly determined that the admonishments were merely

directory. See Delvillar, 235 Ill. 2d at 521-22.

                                                   24
¶ 56. I believe defendant has simply failed to establish prejudice.9

¶ 65    Initially, I note that postconviction counsel's involvement has no bearing on defendant's direct

appeal claim of ineffective assistance. Trial counsel cannot be deemed ineffective at trial due to some

error that subsequently takes place during post conviction proceedings.

¶ 66    Moving to the matter of prejudice with respect to the second issue, defendant's initial reply

brief stated that "he is now awaiting deportation pending the outcome of this appeal." Defendant

failed, however, to provide us with any evidence supporting this bald claim. Thus, similar to the

argument he tendered to the trial court, defendant's argument on appeal lacked any substantive

evidence of prejudice. This failure alone was sufficient to justify a finding of waiver. See People v.

Walker, 403 Ill. App. 3d 68, 79 (2010). In the interest of justice and equity, however, we ordered

defendant to brief us on "the status of any deportation proceedings" involving defendant.

¶ 67    Defendant subsequently filed a response stating: "On February 18, 2011, counsel spoke to Mr.

Guzman's immigration attorney, Ms. Beatriz Sandoval. Ms. Sandoval stated that Mr. Guzman was

deported late December 2010." Defendant did not attach any order or pleading verifying the above

claim or confirming the deportation was a result of this conviction. Thus, the question of whether

defendant has suffered prejudice as a result of the trial counsel's alleged failure to admonish him

remains unanswered. Moreover, because defendant's status does not fall squarely within the judicially

noticeable category of facts "capable of immediate and accurate demonstration by resort to easily

accessible sources of indisputable accuracy[]" (People v. Davis, 65 Ill. 2d 157, 165 (1976)), I reject

any application of the doctrine of judicial notice.



        9
            I do not discuss the performance prong of Strickland as I dispose of this issue on the

prejudice prong alone.

                                                   25
¶ 68    I also reject the conclusion that section 1227(a)(2)(C) of Title 8 commands removal

(deportation) a "clear consequence" if a defendant is convicted of one of the named offenses found in

section 1227(a)(2)(C). See Guzman, 2013 IL App (3rd) 090464 ¶ 26. Section 1227(a)(2)(C) merely

states that a defendant "is deportable" if convicted. 8 U.S.C. § 1227(a)(2)(C). It does not provide that

a defendant "shall be deported."

¶ 69    The author, however, does not rely solely upon section 1227(a)(2)(C) to establish prejudice.

He also asserts that the merits of the State's case against defendant were not certain, defendant may

have had a plausible defense, and defendant has family living in the United States. Supra, ¶ 34. None

of these beliefs, however, overcomes the fact that defendant has not conclusively established that he

has been deported or even been subject to any deportation proceedings based on this conviction. In

essence, the majority is providing a remedy prior to establishing whether an actual wrong (deportation)

has even occurred or is pending. The fact remains, if defendant is not deported or the United States

does not pursue any deportation action against defendant on the basis of this conviction, defendant

does not suffer any prejudice (immigration consequence) as a result of his plea.

¶ 70    I acknowledge appellate counsel's hearsay statement that she spoke with defendant's

immigration attorney, who informed her that defendant was deported in December 2010. The fact

remains that counsel's statement constitutes hearsay, and there is no documentation to confirm the

accuracy of either the recollection or the representation of the immigration attorney. Thus, I believe

it would be improper to simply accept this alleged fact as true. In coming to this conclusion, I note that

counsel has had two opportunities to provide this court with evidence, not hearsay, of "the status of

any deportation proceedings." Counsel has failed to do so on both occasions. Moreover, counsel

initially stated that defendant was awaiting deportation pending conclusion of this appeal. After




                                                   26
additional briefing, however, counsel stated that defendant had already been deported. Defendant's

status is simply unclear.

¶ 71    Had defendant been deported or been facing deportation proceedings, counsel could have

simply attached a copy of defendant's deportation order or, alternatively, any pending deportation

pleadings. Counsel chose not to do so. Instead, counsel, after being instructed otherwise, simply

provided us with a hearsay statement, one of which differed from her original report regarding

defendant's status. This does not establish prejudice. A showing of prejudice must encompass more

than a defendant's own subjective, self-serving testimony or statements. People v. Hale, 2013 IL

113140, ¶ 18.

¶ 72    Even if I were, however, to accept counsel's hearsay statement as affirmative evidence of

defendant’s alleged deportation, I note that counsel has failed to provide us with any evidence, or

statement for that matter, as to the specific grounds of defendant's alleged deportation. Was defendant

deported on the basis of his conviction of aggravated possession of stolen firearms, or was he deported

as a result of a different conviction? Was defendant deported due to failure to file a change of

address?10 See 8 U.S.C. § 1227(a)(3)(A). Was defendant deported due to alien smuggling conduct?11

See 8 U.S.C. § 1227(a)(1)(E)(i). Defendant would have us simply assume that he was deported as a

result of his conviction of aggravated possession of stolen firearms. There is simply no evidence in

the record to justify this assumption. Without such evidence, I cannot find that defendant has suffered

prejudice as a result of trial counsel's alleged failure to inform him of potential immigration

consequences. Thus, his ineffective assistance of trial counsel claim must fail.




       10
             A conviction is not required for this ground of deportation.
        11
             A conviction is not required to establish this ground of deportation.

                                                   27
¶ 73    The third and final issue in this case is whether post conviction counsel's representation was

unreasonable where counsel: (1) failed to submit, in the initial petition, an affidavit from defendant

stating that he would have insisted on going to trial had he been informed of the immigration

consequences of his plea, (2) never argued that there was a viable defense to the charge, (3) failed to

file a motion to file a successive petition, and (4) failed to withdraw the notice of appeal. The author

finds this issue moot due to his finding that trial counsel provided ineffective assistance. Supra, ¶ 37.

The special concurrence finds the proper remedy on this precise issue would be to remand for further

second-stage postconviction proceedings so that defendant may present evidence of trial counsel's

ineffectiveness. Supra, ¶ 56. He notes, however, that remand would not be necessary due to his belief

that Padilla alone requires reversal. Supra, ¶ 56. Much like the second issue, I believe defendant's

unreasonable assistance claim fails because defendant has not established prejudice.

¶ 74    Even if postconviction counsel carried out all the acts defendant now complains of, the

amended petition would still lack merit due to the fact it does not conclusively establish that defendant

has been deported or even been subject to any deportation proceedings based on this conviction. I do

not believe simply citing a random case number meets defendant's burden.12 Was the case ultimately

dismissed? If not, what is the standing of the case? Again, defendant is arguing the substantive merits

of his plea before he has even established whether he has suffered any injury (deportation) as a result

of his plea. While defendant does not complain of this on appeal, I note that neither a deportation court

order nor deportation pleadings were attached to defendant's amended postconviction petition. The

fact remains, after three years of appellate litigation, we still unfortunately do not have any affirmative




        12
             The claims in defendant's amended petition required a showing of prejudice.

                                                    28
evidence regarding defendant's status. Thus, I do not believe defendant's specific complaints with

regard to postconviction counsel establish unreasonable assistance.

¶ 75   For the foregoing reasons, I would affirm the trial court's order denying defendant's motion to

withdraw guilty plea.




                                                 29
