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                               Appellate Court                            this document
                                                                          Date: 2016.02.17 14:29:26
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                  People v. Unzueta, 2015 IL App (1st) 131306



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



District & No.    First District, Fifth Division
                  Docket No. 1-13-1306



Filed             November 25, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-6039; the
Review            Hon. Larry G. Axelrood, Judge, presiding.



                  Affirmed.
Judgment


Counsel on        Michael J. Pelletier, Patricia Mysza, and Arianne Stein, all of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Sari L. London, and Judy L. DeAngelis, Assistant State’s Attorneys,
                  of counsel), for the People.



Panel             JUSTICE PALMER delivered the judgment of the court, with
                  opinion.
                  Presiding Justice McBride and Justice Gordon concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Defendant Adrian Unzueta appeals from an order of the circuit court of Cook County
     granting the State’s motion to dismiss his petition for relief under the Post-Conviction
     Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contends that he made a
     substantial showing of a claim of ineffective assistance of counsel based on counsel’s failure
     to advise him of the deportation consequences of his guilty plea. For the following reasons,
     we affirm.

¶2                                        I. BACKGROUND
¶3       The record shows that defendant was charged with burglary and the possession of
     burglary tools in connection with an incident that occurred on March 16, 2010.
¶4       On July 6, 2010, following an Illinois Supreme Court Rule 402 (eff. July 1, 1997)
     conference, defendant pled guilty to burglary and was sentenced to three years’
     imprisonment, along with a two-year term of mandatory supervised release (MSR). During
     the plea hearing, the trial court admonished defendant, in pertinent part:
                 “THE COURT: If you are not a citizen of the United States, you are hereby
             advised a conviction for the offense for which you have been charged may have the
             consequence of deportation, exclusion from admission to the United States, or denial
             of naturalization under the laws of the United States. Do you understand that?
                 DEFENDANT: Yes.”
     The parties then stipulated to the following factual basis:
             “If this case were to go to trial, the evidence would show that on March 16, 2010, the
             defendant went into the premises of 2851 North Luna in Chicago, Illinois, which was
             a residence that was in foreclosure. Witnesses heard noise, even banging coming from
             there. They noticed the lockbox key was empty and there was no key in it anymore.
             They called police. The police had arrived, found defendant inside the premises.
             There was copper piping that was bundled up ready to be removed, and there were
             holes in the walls where the copper piping had been removed. The defendant admitted
             his participation in this burglary. He did not have authority to enter or remain in the
             premises or remove anything from the premises.”
¶5       Defendant did not move to withdraw his guilty plea or file a direct appeal, but on
     February 24, 2012, through private counsel, he filed a “Post-Conviction and 2-1401 Petition
     Filed Pursuant to Padilla v. Kentucky,” in which he alleged that his plea counsel was
     ineffective for failing to inform him of the deportation consequences of his guilty plea.
     Therein, he asserted, inter alia, that (1) he was intoxicated at the time of his arrest, (2) prior
     to pleading guilty in this case he had lived in the United States for 30 years and was a lawful
     permanent resident, (3) his daughter, as well as his entire extended family, reside in the
     United States, (4) his guilty plea in this case caused United States Immigration and Customs
     Enforcement (ICE) officials to initiate mandatory deportation proceedings against him and he
     is presently being held in the custody of ICE, and (5) at no time did plea counsel tell him that
     if he pled guilty to burglary that his lawful permanent residency would be revoked and he
     would be mandatorily deported from the United States.



                                                 -2-
¶6          In his petition, defendant further alleged that if he had been correctly advised regarding
       the deportation consequences of his plea, he would not have pled guilty and would have
       either elected to proceed to trial or attempted to secure a plea bargain to the lesser charge of
       trespass, which does not require mandatory deportation. In an affidavit in support of that
       petition, defendant averred that “no defense counsel ever advised me that my plea of guilty in
       this case would result in mandatory deportation for me. Had I been so advised, I definitely
       would not have pleaded guilty. I definitely would have elected to plead not guilty and go to
       trial.”
¶7          Defendant’s postconviction petition advanced to the second stage and the State filed a
       motion to dismiss the petition. Following a hearing held on that motion, the circuit court
       granted the State’s motion to dismiss. In doing so, the court stated, inter alia, that based on
       the facts and circumstances of this case, defendant’s decision to plead guilty was rational.
¶8          This appeal followed.

¶9                                              II. ANALYSIS
¶ 10       On appeal, defendant challenges the propriety of the circuit court’s dismissal. Defendant
       contends that he made a substantial showing that his plea counsel provided ineffective
       assistance by failing to advise him that his guilty plea to a charge of burglary would lead to
       mandatory deportation proceedings and that he suffered prejudice as a result. The State
       maintains that defendant has failed to make a substantial showing that he suffered prejudice
       due to counsel’s failure to so advise him.
¶ 11       At the second stage of postconviction proceedings, defendant bears the burden of making
       a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473
       (2006). A petition may be dismissed at this stage only where the allegations contained in the
       petition, liberally construed in light of the trial record, fail to make such a showing. People v.
       Hall, 217 Ill. 2d 324, 334 (2005). In making that determination, all well-pleaded facts in the
       petition and affidavits are taken as true; however, nonfactual assertions which amount to
       conclusions are insufficient to require a hearing. People v. Rissley, 206 Ill. 2d 403, 412
       (2003). Our review is de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
¶ 12       To establish a claim of ineffective assistance of counsel warranting further proceedings
       under the Act, defendant must show that counsel’s performance was deficient and that he
       suffered prejudice as a result, i.e., a reasonable probability that but for this deficient
       performance, the result of the proceedings would have been different. Strickland v.
       Washington, 466 U.S. 668, 687, 694 (1984). To succeed on a claim of ineffective assistance
       of counsel, both prongs of Strickland must be satisfied. People v. Flores, 153 Ill. 2d 264, 283
       (1992).
¶ 13       Generally, to establish prejudice in a case involving a guilty plea, defendant must show a
       reasonable probability that but for counsel’s errors, he would not have pled guilty and would
       have insisted on going to trial. Rissley, 206 Ill. 2d at 457. In Hall, our supreme court stated
       that bare allegations to that effect are insufficient to establish prejudice; rather a defendant’s
       claim must be accompanied by either a claim of innocence or the articulation of a plausible
       defense that could have been raised at trial. Hall, 217 Ill. 2d at 335-36. The court further
       found that the question of whether counsel’s deficient representation caused defendant to
       plead guilty depends in large part on predicting whether defendant likely would have been
       successful at trial. Id. at 336 (citing People v. Pugh, 157 Ill. 2d 1, 15 (1993)).

                                                   -3-
¶ 14       Over nine years after our supreme court’s decision in Hall, the United States Supreme
       Court issued its decision in Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla, the United
       States Supreme Court held that defense counsel must inform his client whether the client’s
       plea carries a risk of deportation and that the failure to do so constitutes deficient
       representation under Strickland’s first prong. Id. at 374. The Court stated that its holding
       applied to both cases of affirmative misadvice, as well as to instances where counsel failed to
       address the topic entirely. Id. at 370-71, 374. Notably, the Court expressly stated that it was
       not making a finding in relation to the prejudice prong of Strickland but, rather, was solely
       addressing the deficient performance prong. Id. at 369. Specifically, the Court stated,
       “[w]hether Padilla is entitled to relief on his claim will depend on whether he can satisfy
       Strickland’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in
       the first instance.” Id. Nevertheless, the Court then went on to address the concerns raised by
       the Solicitor General, the state of Kentucky and amici regarding the importance of protecting
       the finality of convictions obtained through guilty pleas. Id. at 371-72. In doing so, the Court
       noted that “[s]urmounting Strickland’s high bar is never an easy task” (id. at 371) and that
       “ ‘[a]ttorney errors … are as likely to be utterly harmless in a particular case as they are to be
       prejudicial’ ” (id. at 371-72 (quoting Strickland, 466 U.S. at 693)). Lastly, in this regard, and
       importantly here, the Court stated, “[m]oreover, to obtain relief on this type of claim, a
       petitioner must convince the court that a decision to reject the plea bargain would have been
       rational under the circumstances.” (Emphasis added.) Id. at 372.
¶ 15       According to defendant, the Padilla Court’s statement that a defendant would have to
       convince a court that a decision to reject a plea bargain would have been “rational under the
       circumstances” (id.) was essentially the announcement of a new prejudice standard to be
       applied in cases involving a counsel’s failure to advise a defendant of immigration
       consequences of his guilty plea. He thus maintains that his decision to forego a plea deal
       would have been rational due to his personal and family ties to the United States and because
       he could have tested the State’s case through cross-examination and presented his own
       evidence at trial, thereby affording him the opportunity to avoid certain conviction. This new
       standard, he maintains, supplants the long-standing prejudice standard set forth in Hall and
       Pugh, described supra ¶ 13, and thus relieves him of the obligation of showing that he was
       likely to succeed at trial.

¶ 16                 A. Padilla Violations and the Strickland Prejudice Requirement
¶ 17       Since the decision in Padilla, the various districts of this court have considered the
       question of what must be shown to establish prejudice under the second prong of Strickland
       when a Padilla violation has occurred. In People v. Gutierrez, 2011 IL App (1st) 093499,
       ¶¶ 7, 45-46, the First District of this court ruled that the defendant, in seeking leave to file a
       successive postconviction petition, failed to establish that he was prejudiced by his counsel’s
       failure to inform him of the possible immigration consequences of his guilty plea. There the
       defendant, who pled guilty to first degree murder, had claimed that the evidence against him
       was not overwhelming and that had he known that his guilty plea would subject him to
       deportation he would have gone to trial. Id. ¶¶ 3-4, 7. The appellate court, after evaluating the
       evidence, rejected that claim and found that in order to show prejudice the defendant was
       required to show that he would have succeeded at trial, and that contrary to his contentions,



                                                   -4-
       the evidence against him was overwhelming. Id. ¶ 45. There was no discussion of an
       alternative standard such as the standard proposed here by defendant.
¶ 18       The same result was reached by the Fourth District of our court in People v.
       Pena-Romero, 2012 IL App (4th) 110780. However, the court in Pena-Romero considered
       both the more restrictive prejudice standard set forth in Hall and Pugh as well as the more
       liberal “rational under the circumstances” standard espoused by the defendant. Id. ¶¶ 16-19.
       In Pena-Romero, the defendant had pled guilty to attempted first degree murder. Id. ¶ 4. His
       motion to withdraw his guilty plea was denied at a hearing on July 30, 2010, at which time
       the trial court found that the defendant had “resided in and has been employed in the United
       States since 2001.” Id. ¶ 8. On appeal, he contended he received ineffective assistance of
       guilty plea and postplea counsel. Id. ¶ 1.
¶ 19       First, referring to the prejudice standard set forth in Hall, the appellate court noted that
       the defendant did not make a claim of innocence or articulate a plausible defense; he simply
       rested on the bare allegation that he would have pled not guilty had he known of the
       deportation consequences of his plea. Id. ¶ 17. Ultimately, in rejecting the defendant’s claim
       of ineffective assistance of postplea counsel, the court stated:
                “As we have pointed out, however, a defendant alleging ineffective assistance of
                counsel must still establish prejudice. The bare allegation that, but for the alleged
                error, a defendant would have insisted on trial, without something more, is not
                enough. Standing alone, such an allegation is subjective, self-serving, and insufficient
                to satisfy the Strickland requirement for prejudice. [Citation.] Defendant’s
                self-serving statements that, but for his counsel’s inadequate representation, he would
                have pleaded not guilty, unaccompanied by either a claim of innocence or the
                articulation of any plausible defense that he could have raised had he opted for a trial,
                is insufficient to demonstrate the required prejudice. Defendant does not now allege
                he is innocent, nor does he claim to have any plausible defense he could have raised
                had he chosen a trial. Defendant admitted cutting his wife’s neck while asking if she
                knew what their children would do if both of them died that night. Defendant has
                never repudiated his sworn admission. Given these facts, defendant has not
                established the prejudice required under Strickland.” Id. ¶ 20.
¶ 20       Additionally, however, the Fourth District went further and considered whether the
       defendant’s claim could survive without a claim of innocence or a plausible defense.
                    “Even if we excused defendant’s failure to claim innocence or raise a plausible
                defense as Hall seems to require, defendant does not explain how his alleged
                ignorance of the deportation consequences factored into his decision to plead guilty.
                Or, stated differently, he does not explain why, had he known of that consequence, he
                would have pleaded not guilty and insisted on going to trial. While Padilla did not
                resolve the prejudice prong, it stated what was required for a defendant to show
                prejudice: ‘a petitioner must convince the court that a decision to reject the plea
                bargain would have been rational under the circumstances.’ Padilla, 559 U.S. at ___,
                130 S. Ct. at 1485. It is hard to imagine how rejection of the plea offer in this case
                would have been rational. Going to trial would not have spared defendant of the
                effect of deportation if he were convicted, which was likely, and would also have
                subjected him to the possibility of a greater term of imprisonment. The evidence
                against defendant is overwhelming. Essentially, the prejudice defendant alleges is

                                                   -5-
                dissatisfaction about the effects of deportation, which would not have changed if he
                had gone to trial and been convicted.” Id. ¶ 18.
¶ 21        More recently, the Third District chose a different path. In People v. Deltoro, 2015 IL
       App (3d) 130381, ¶ 3, the defendant had pled guilty to two counts of unlawful possession of
       a controlled substance with intent to deliver. He filed a petition for postconviction relief
       alleging that both plea counsel and the trial court failed to advise him of the potential
       immigration consequences of his guilty plea. Id. ¶ 4. The trial court summarily dismissed the
       petition. Id. ¶ 8. On appeal, the Third District found that the defendant had presented the gist
       of a constitutional claim for ineffective assistance of plea counsel, reversed the dismissal and
       remanded the matter for second-stage proceedings. Id. ¶ 10.
¶ 22        As to the second prong of Strickland, the defendant alleged that he suffered prejudice
       because (1) he would not have pled guilty had counsel advised him of the potential
       immigration consequences of his plea, and (2) there was a rational basis for him to reject the
       plea offer because all of his friends and family live in the United States and he was not guilty
       of the offenses charged. Id. ¶ 21. In reversing the dismissal of the petition, the Third District
       flatly rejected the concept that in order to satisfy the prejudice requirement a defendant must
       allege the existence of a plausible defense and that it was likely he would have succeeded at
       trial. Id. ¶ 24. Referring to the “rational under the circumstances” language of Padilla the
       court stated:
                    “A defendant is prejudiced in the plea context if there is a reasonable probability
                that absent trial counsel’s deficient performance, the defendant would have pled not
                guilty and would have insisted on going to trial. [Citations.] Where a defendant
                claims that counsel failed to advise him as to the immigration consequences of his
                plea, 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. A
                defendant facing potential deportation may show that his decision to reject a plea
                offer and go to trial is rational without showing that he would have likely succeeded
                at trial. See id. at 368 (‘We *** have previously recognized that “ ‘[p]reserving the
                client’s right to remain in the United States may be more important to the client than
                any potential jail sentence.’ ” ’ (quoting Immigration & Naturalization Service v. St.
                Cyr, 533 U.S. 289, 322 (2001), quoting 3 Crim. Def. Tech. (MB) §§ 60A.01,
                60A.02(2) (1999))). See also United States v. Orocio, 645 F.3d 630, 645 (3d Cir.
                2011).” Id. ¶ 22.
       The Deltoro court further stated that while the apparent existence of a plausible trial defense
       may make a defendant’s showing of prejudice stronger, it is not required in order to show
       prejudice. Id. ¶ 24. The court reasoned that while such a requirement makes sense in other
       contexts, such as the failure to inform the defendant of an affirmative defense as in Hall, it
       does not in this context. Id. That is because a defendant facing 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. Orocio, 645 F.3d at 643.1


           1
            Arguably, the Third District took this position earlier than in Deltoro. In People v. Guzman, 2014
       IL App (3d) 090464, ¶¶ 34-35, aff’d on other grounds, 2015 IL 118749, a similar result was reached but
       the Third District also noted that the defendant there alleged he had a plausible defense. However, the

                                                      -6-
¶ 23                          B. Advisement Concerning Status as an Alien
                   Pursuant to Section 113-8 of the Code of Criminal Procedure of 1963
¶ 24       The State takes the position that Padilla did not create a new prejudice standard, that
       Gutierrez was correctly decided and that Guzman2 as well as Deltoro were wrongly decided.
       It maintains that the standard remains, as set forth in Hall and Pugh, that in order to show
       prejudice the defendant must show that he was actually innocent or that he had a plausible
       defense and was likely to succeed at trial.
¶ 25       Additionally, the State maintains that this controversy aside, the defendant herein cannot
       show prejudice that resulted from his counsel’s failure to advise him of the immigration
       consequences of his guilty plea, as the trial court fully complied with the provisions of
       section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West
       2012)). As a result, the State contends that any prejudice defendant may have suffered by his
       counsel’s failure to advise him of the immigration consequences of his guilty plea was cured
       by the trial court. We find it unnecessary to reach the issue described above in part A as we
       agree with the State’s later contention that any prejudice that defendant may have suffered as
       a result of counsel’s failure was cured by the trial court’s strict adherence with the provisions
       of section 113-8 of the Code.
¶ 26       Among the many admonitions that the trial court is required to give to a defendant
       pleading guilty are those concerning the possibility of immigration consequences upon
       conviction. The statute provides as follows:
                   “Before the acceptance of a plea of guilty *** 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.’ ” Id.
¶ 27       As noted above, supra ¶ 4, the trial court fully complied with this provision by delivering
       this admonition. The trial court then inquired of the defendant, “Do you understand that?”
       The defendant responded, “Yes.”


       majority opinion also stated that the defendant’s family ties and bonds to the United States provided a
       rational basis to reject a plea deal. Id. ¶ 35. Further, Justice Holdridge in his special concurrence and
       partial dissent in Guzman clearly stated that he felt that 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. Id. ¶ 78 (Holdridge, J., specially concurring in part and dissenting in part). In
       that regard, he specifically stated that he disagreed with the First District’s holding in Gutierrez. Id.
       ¶ 80.
            2
              In Guzman, the Third District also wrestled with the question of whether the trial court’s failure to
       give admonishments pursuant to section 113-8 of the Code of Criminal Procedure of 1963 (725 ILCS
       5/113-8 (West 2008)) rendered the defendant’s guilty plea involuntary. Guzman, 2014 IL App (3d)
       090464, ¶¶ 19-25. Recently, the supreme court issued its opinion in Guzman, in which it affirmed the
       appellate court on this question and held that the failure to give these admonishments did not render the
       plea involuntary. People v. Guzman, 2015 IL 118749, ¶¶ 1, 36. The appellate court’s ruling on the issue
       of ineffective assistance of counsel, which is described above, was not challenged before the supreme
       court. Id. ¶¶ 6, 10-11.

                                                        -7-
¶ 28        This advisement has a double effect here. First, it cures any deficiency on counsel’s part.3
       Second, the record as a result belies the allegation that defendant would not have pled guilty
       had he been adequately advised by his attorney because he was so advised by the trial court.
       See Pena-Romero, 2012 IL App (4th) 110780, ¶ 17. Our courts have repeatedly rejected the
       claims of defendants challenging their guilty pleas as unknowing or involuntary in the face of
       adequate admonitions, finding that “[t]o accept defendant’s claim would require us to
       characterize the court’s lengthy and exhaustive admonitions as merely a perfunctory or
       ritualistic formality–a characterization we are unwilling to make.” People v. Fern, 240 Ill.
       App. 3d 1031, 1042 (1993) (citing People v. Jones, 144 Ill. 2d 242, 263 (1991)); see also
       People v. Hammonds, 210 Ill. App. 3d 854, 860 (1991).
¶ 29        Similarly, we are unwilling to find that the trial court’s faithful adherence to the statute’s
       requirements was a useless exercise. This advisement should be given its fully intended
       effect. We further note that this holding does not conflict with the holdings of Guzman and
       Deltoro as in those cases no immigration advisement was given by the trial court. In fact, no
       such advisement was given by the trial court in Gutierrez or even in Padilla. Only in
       Pena-Romero was the statutory advisement given, a factor that the court found supportive of
       its decision to deny the defendant relief.
¶ 30        In an effort to avoid the effect of this advisement, the defendant maintains that the
       statutory advisement is inadequate to stem the prejudice he suffered as it only informed him
       that he may suffer immigration consequences rather than being advised that he would suffer
       those consequences in a mandatory deportation situation. We find this argument
       unpersuasive. Defendant cites no authority for the proposition that there is a meaningful
       distinction in this context between being told that one may be deported versus being told that
       one would be deported. See People v. Ward, 215 Ill. 2d 317, 332 (2005) (“A point raised in a
       brief but not supported by citation to relevant authority” is forfeited.). In fact, Pena-Romero
       stands for just the opposite proposition. There Justice Pope, writing for the majority, noted
       that the record of the trial court’s compliance with section 113-8 of the Code belied the
       defendant’s claim that he was unaware of the deportation consequences of his plea.
       Pena-Romero, 2012 IL App (4th) 110780, ¶ 17. Further, in light of the claimed utmost
       importance to the defendant that he avoid deportation, the fact that he pled guilty while
       knowing the risk of deportation existed belies his assertion that his decision would have been
       different if he had been told that the risk was a certainty. At the very least, the advisement by
       the court that this risk existed put the defendant on notice that further inquiry was warranted
       if immigration consequences would have affected his decision to plead guilty. See In re J.T.,
       221 Ill. 2d 338, 347-48 (2006) (where admonitions that did not strictly comply with the rule
       were sufficient to place the respondent on notice of his rights).
¶ 31        As a result of all of the above, we find that the defendant has failed to make a substantial
       showing of a constitutional violation in that he has not shown that he was prejudiced by his


           3
            We note that a different result was reached in this court’s unpublished order in People v. Makal,
       2015 IL App (1st) 123292-U. However, Makal is distinguishable in that there, although the trial court
       gave admonitions pursuant to the statute, it was alleged that plea counsel misadvised the defendant as to
       the potential consequences of her guilty plea and as a result, the trial court’s admonishments did not
       cure the problem. Id. ¶ 6.

                                                       -8-
       counsel’s error. Therefore, the trial court did not err in granting the State’s motion to dismiss.

¶ 32                                      III. CONCLUSION
¶ 33      For the reasons stated, we affirm the trial court’s decision.

¶ 34      Affirmed.




                                                   -9-
