                              ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                             People v. Gutierrez, 2011 IL App (1st) 093499




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



District & No.                First District, Second Division
                              Docket No. 1–09–3499


Filed                         June 30, 2011


Held                          The trial court did not err in denying defendant’s request for leave to
(Note: This syllabus          file a successive postconviction petition alleging ineffective assistance
constitutes no part of the    of counsel in failing to inform him of the immigration consequences of
opinion of the court but      a guilty plea and that the trial court’s failure to inform him of the
has been prepared by the      immigration consequences of a guilty plea rendered his plea involuntary
Reporter of Decisions for     and unknowing, since the claims raised by defendant did not involve a
the convenience of the        constitutional right and were not cognizable in a postconviction
reader.)                      proceeding, and consequently, he could not establish prejudice under
                              the cause-and-prejudice test.


Decision Under                Appeal from the Circuit Court of Cook County, No. 05–CR–999201;
Review                        the Hon. Nicholas Ford, Judge, presiding.


Judgment                      Affirmed in part and vacated in part.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Robin Price Robertson, all
Appeal                      of State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg and
                            Mari Hatzenbuehle, Assistant State’s Attorneys, of counsel), for the
                            People.


Panel                       JUSTICE KARNEZIS delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Cunningham and Justice Harris concurred in the
                            judgment and opinion.



                                              OPINION

¶1          Defendant Lazaro Gutierrez appeals from the circuit court’s denial of his request for
        leave to file a successive postconviction petition. Here, defendant argues: (1) he established
        cause and prejudice with respect to his claims of ineffective assistance of counsel, where
        counsel failed to inform him of the possible immigration consequences of his plea; (2) he
        established cause and prejudice with respect to his claim that his plea was not knowingly or
        voluntarily entered because the trial court failed to inform him of the potential immigration
        consequences as required by statute; and (3) the $50 State’s Attorney fee was improperly
        imposed and should be vacated. For the following reasons, we affirm the judgment of the
        circuit court denying defendant leave to file his successive postconviction petition, but vacate
        the $50 State’s Attorney fee imposed.

¶2                                           BACKGROUND
¶3          Defendant was indicted with eight counts of first degree murder for his participation in
        the murder of Isidro Rodriguez on November 2, 2003. Prior to trial, defendant indicated that
        he wished to participate in a Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 1997)) conference. After
        the conference, defendant expressed a desire to enter a plea of guilty to one count of first
        degree murder. The trial court admonished defendant about the rights he would be
        relinquishing if he chose to plead guilty, including the right to a jury trial and the right to
        have his guilt proven beyond a reasonable doubt by the State. The court also explained
        defendant’s rights to confront witnesses, testify, and present a defense. Defendant stated that
        he understood. The court then went on to explain the possible penalties associated with
        pleading guilty to first degree murder and sought assurance from defendant that he was acting
        of his own accord and had not been unduly influenced in deciding to plead guilty. Defendant
        responded, “I understand everything.” The State then presented a factual basis for the plea.
                    “If called to testify, the State would present a family member of Isidro Rodriguez

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             who would indicate that Mr. Rodriguez was born on September 1st of 1957 and was
             in good health prior to November 2nd, 2003, prior to 3:45 a.m.
                  The State would present the testimony of Doctor Aldo Fusaro; that he performed
             the examination or autopsy on the body of Mr. Isidro Rodriguez. To a reasonable
             degree of medical certainty, he would indicate that the cause of death was four
             gunshot wounds and that the manner of death was homicide.
                  Your Honor, the State would further present the testimony of Assistant State’s
             Attorney Victoria Ciszek; that she interviewed the defendant who she would identify
             in open court, Mr. Lazaro Gutierrez, on April the 4th of the year 2005; that at that
             time, she subsequently took a videotaped statement from this defendant.
                  In that videotaped statement, in summary and not verbatim, this defendant
             indicated that he together with a co-defendant by the name of Rosendo Ruiz had
             decided to perform a robbery. He indicated that Mr. Ruiz was the person who had the
             gun. That further they located this victim and they located him at the address of this
             incident where the murder occurred, which is 6050 South Sawyer in Chicago,
             Illinois, on November 2nd of 2003, at 3:45 in the a.m.
                  This defendant indicated that his role was to be a lookout, and he was to look out
             for the police and the neighbors. This defendant in that videotaped statement
             indicated that it was his partner, Rosendo Ruiz, who exited the car and who
             subsequently shot the victim.
                  The State would further present the testimony of the eyewitness to this case. That
             eyewitness is a person by the name of Mr. Phillips. Mr. Phillips would indicate that
             he was the individual who left the car; that he would identify this defendant, Mr.
             Gutierrez, as the person he saw leave the car; that he subsequently heard shots and
             he looked out his window and he saw this defendant, Mr. Gutierrez, as the person
             who reentered the car with the gun in his hand.
                  Finally, Your Honor, the State would present the testimony of Detective
             O’Donovan with the Chicago Police Department. He would indicate that he was
             assigned to an unrelated case that occurred on November 6th of the year 2004 at 2154
             South Ashland. He would identify the defendant as the offender in that case.
                  He would further indicate that a gun was recovered as a result of that incident;
             that gun was subsequently sent to the Illinois State Police; that on that gun, first of
             all, was this defendant’s palm print; that further on that gun was the blood that
             subsequently the Illinois State Police performed a comparison and this defendant’s
             DNA or profile matched the DNA from the profile that was found on the gun.
                  Finally, that that gun was tested and that gun was found to be the murder weapon
             in this case.”
¶4       The court found a sufficient factual basis for the plea and entered a finding of guilty. The
     court sentenced defendant to 35 years’ imprisonment in accordance with the terms of the
     agreement reached in the Rule 402 conference. The remaining counts of the indictment were
     dismissed. The court informed defendant that in order to appeal his guilty plea or sentence,
     he must first seek permission to vacate the judgment and withdraw the plea of guilty within

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     30 days.
¶5       Defendant did not appeal his conviction or file a motion to withdraw his guilty plea. On
     April 19, 2007, defendant filed a pro se postconviction petition alleging that trial counsel
     failed to explain the case to him and lied to him so that he would accept the plea bargain. The
     court denied the petition as frivolous and patently without merit in a written order on June
     19, 2007. The court found defendant’s claims were belied by the record and noted that
     “petitioner’s own words indicate that his plea was entered knowingly and with a full
     understanding of each consequence *** and result therefrom.” The court then issued an order
     assessing court costs and fees in the amount of $155 for filing a frivolous petition, which
     included a $50 State’s Attorney fee pursuant to section 4–2002.1 of the Counties Code (55
     ILCS 5/4–2002.1 (West 2006)).
¶6       Defendant filed a “Motion for Leave to File a Late Notice of Appeal,” which was grated
     on October 23, 2007. Thereafter, the State Appellate Defender was granted leave to withdraw
     as counsel and this court affirmed the judgment of the circuit court on January 9, 2009.
     People v. Gutierrez, No. 1–07–2814 (2009) (unpublished order pursuant to Supreme Court
     Rule 23).
¶7       On June 30, 2009, defendant filed an “Application for Leave to File a Successive Petition
     for Post Conviction Relief.” In this application, defendant stated that he is a Mexican citizen
     living in the United States as a resident alien, and he included copies of his identification
     cards. He also attached a copy of the police report made following his arrest, which indicates
     that he was born in Mexico. In his application, defendant alleged his constitutional rights
     were violated because the arresting officers failed to contact the Mexican Consulate as
     mandated by the Vienna Convention and that trial counsel was ineffective for failing to raise
     this issue. In addition, defendant alleged that counsel was ineffective where he failed to
     notify defendant that his guilty plea would subject him to deportation. Defendant explained
     that had he been given this information, he would have gone to trial because the evidence
     against him was not overwhelming. In addition, defendant stated that the trial court violated
     his right to due process because it failed to inform him of the possible deportation
     consequences of his plea. Defendant alleged that this error precluded him from entering his
     plea knowingly and intelligently.
¶8       Defendant explained that he did not raise these issues in a previous postconviction
     petition because he “is uneducated, [and] he didn’t know that these issues existed at the time
     of his first postconviction.” Furthermore, defendant stated that his trial and appellate attorney
     failed to raise these issues. The trial court denied defendant leave to file finding that
     defendant failed to establish cause and prejudice as required by section 122–1(f) of the Code
     of Criminal Procedure of 1963 (725 ILCS 5/122–1(f) (West 2006)). Specifically, the court
     found that “[t]he factual assertions relied on by petitioner in the instant petition were
     available to him when he filed his initial petition. Petitioner fails to identify any objective
     factor which impeded his efforts to raise these claims in his previous petition.” The court
     added that defendant did not “identify any objective factor which impeded his efforts to raise
     these claims in his previous petition.” It is from this finding that defendant now appeals.



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¶9                                            ANALYSIS
¶ 10        The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2006)) allows
       a criminal defendant a procedure for determining whether he was convicted in substantial
       violation of his constitutional rights. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). To
       be entitled to relief under the Act, a defendant must establish a substantial violation of his
       constitutional rights in the proceedings that produced the conviction or sentence being
       challenged. People v. Jones, 211 Ill. 2d 140, 143-44 (2004).
¶ 11        The Act contemplates the filing of only one postconviction petition. People v. Evans, 186
       Ill. 2d 83, 89 (1999); 725 ILCS 5/122–1(f) (West 2006). Successive postconviction petitions
       are governed by section 122–1(f) of the Act, which provides:
                “Only one petition may be filed by a petitioner under this Article without leave of the
                court. Leave of court may be granted only if a petitioner demonstrates cause for his
                or her failure to bring the claim in his or her initial post-conviction proceedings and
                prejudice results from that failure.” 725 ILCS 5/122–1(f) (West 2006).
¶ 12        Leave to file successive postconviction petitions may be granted when a defendant has
       established cause and prejudice, or when fundamental fairness so requires. People v.
       Pitsonbarger, 205 Ill. 2d 444, 459 (2002); People v. Tidwell, 236 Ill. 2d 150, 161 (2010); 725
       ILCS 5/122–1(f) (West 2006). Pursuant to the cause-and-prejudice test, the petitioner must
       show good cause for failing to raise the claimed errors in a prior proceeding and actual
       prejudice resulting from the claimed errors. Pitsonbarger, 205 Ill. 2d at 460; 725 ILCS
       5/122–1(f) (West 2006). “Cause” is defined as “any objective factor, external to the defense,
       which impeded the petitioner’s ability to raise a specific claim at the initial postconviction
       proceeding.” Pitsonbarger, 205 Ill. 2d at 462; 725 ILCS 5/122–1(f) (West 2006). “Prejudice”
       is defined as an error so infectious to the proceedings that the resulting conviction violates
       due process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS 5/122–1(f) (West 2006). A defendant
       must establish cause and prejudice as to each individual claim asserted in a successive
       postconviction petition to escape dismissal under res judicata and waiver. Pitsonbarger, 205
       Ill. 2d at 463; 725 ILCS 5/122–1(f) (West 2006). A trial court may determine whether a
       defendant has established cause and prejudice by reviewing the “contents of the petition
       submitted.” Tidwell, 236 Ill. 2d at 162. We review the trial court’s denial of a motion to file
       a successive postconviction petition de novo. People v. LaPointe, 227 Ill. 2d 39, 43 (2007).
¶ 13        Defendant first claims that the trial court erred in denying his motion for leave to file a
       successive postconviction petition where he established cause and prejudice in arguing that
       he was unaware of possible deportation consequences and his attorney was ineffective for
       failing to inform him of such consequences. Defendant further states that had counsel
       informed him of the possibility of deportation, he would have proceeded to trial given that
       the evidence against him was not overwhelming.
¶ 14        As “cause” for his failure to raise this claim in an earlier proceeding, defendant argues
       that he was unaware at the time of his guilty plea that he could possibly face deportation
       proceedings. Defendant contends neither defense counsel nor the trial court informed him
       that by pleading guilty he could possibly face deportation. Although defendant does not
       provide the date on which he became aware that he could possibly face deportation as a result


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       of pleading guilty to first degree murder, taking defendant’s representations as true, we find
       that defendant has established cause for failing to raise this issue in a previous postconviction
       petition, especially where defendant’s first petition was pro se and denied at the first stage.
¶ 15        Defendant claims that he has established prejudice by demonstrating that his counsel was
       ineffective for failing to notify him of the deportation consequences stemming from his guilty
       plea. Defendant claims that had he been aware of those consequences, he would have insisted
       on going to trial because the evidence against him was not overwhelming.
¶ 16        Although it had not been decided at the time defendant filed his application for leave to
       file a successive postconviction petition, and had not been decided when the court issued its
       order denying defendant leave to file, defendant contends that the holding in Padilla v.
       Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010), supports his argument that counsel was
       ineffective and establishes actual prejudice in his case.
¶ 17        Before we discuss Padilla and its application here however, we must discuss defendant’s
       right to counsel under the sixth amendment and counsel’s obligations under Strickland v.
       Washington, 466 U.S. 668 (1984).
¶ 18        The law is clear that a defendant in any criminal case is constitutionally guaranteed
       effective assistance of counsel under the sixth amendment to the United States Constitution.
       U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland, 466 U.S. 668 (adopted
       by People v. Albanese, 104 Ill. 2d 504 (1984)). A determination as to whether counsel’s
       assistance is effective is governed by Strickland and is subject to de novo review. Strickland,
       466 U.S. at 698.
¶ 19        The Strickland Court set forth the two requirements that a defendant must show to prevail
       on an ineffective assistance claim: (1) counsel’s performance fell below an objective standard
       of reasonableness; and (2) counsel’s deficient performance prejudiced him. The burden is on
       the defendant to overcome the strong presumption that defense counsel rendered adequate
       assistance using reasonable professional judgment pursuant to sound trial strategy.
       Strickland, 466 U.S. at 689-90.
¶ 20        For a defendant to satisfy the prejudice requirement in the plea bargaining context, the
       defendant must show that there is a reasonable probability that, but for counsel’s errors, he
       would not have pleaded guilty and would have insisted on going to trial. People v. Pugh, 157
       Ill. 2d 1, 15 (1993) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “The record should
       demonstrate a ‘reasonable probability’ that but for the error, the defendant would have
       rejected the plea agreement.” Pugh, 157 Ill. 2d at 15. Whether the alleged error was
       prejudicial, depends largely on whether the defendant would have likely succeeded at trial.
       Pugh, 157 Ill. 2d at 15.
¶ 21        Defendant acknowledges that the controlling law at the time of his plea, and also at the
       time he made application for leave to file his successive postconviction petition at issue here,
       was that counsel was not ineffective for failing to advise his client regarding potential
       immigration consequences of a guilty plea, so long as the attorney did not affirmatively
       misadvise the client. People v. Huante, 143 Ill. 2d 61, 68-74 (1991). Citing People v.
       Bouzidi, 332 Ill. App. 3d 87 (2002), the circuit court relied on this principle as a basis for
       finding that defendant did not suffer prejudice under the cause-and-prejudice test. Defendant

                                                 -6-
       now contends that the circuit court’s reliance on Bouzidi as a basis for concluding he failed
       to establish prejudice is flawed, given the United States Supreme Court’s recent decision in
       Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010).
¶ 22       In Padilla, the defendant, a legal permanent resident of the United States for 40 years,
       pled guilty to distributing drugs and faced deportation proceedings. The defendant filed a
       postconviction petition alleging that trial counsel failed to advise him that he could be
       deported as a result of his plea and actually told him not to worry about deportation because
       he had lived in the country so long. Padilla, 559 U.S. at ___, 130 S. Ct. at 1478. Finding that
       defendant was not denied effective assistance of counsel, even if counsel’s deportation
       advice was erroneous, because deportation is a mere collateral consequence of a conviction,
       the Kentucky Supreme Court denied defendant postconviction relief. Padilla, 559 U.S. at
       ___, 130 S. Ct. at 1478.
¶ 23       The Supreme Court reversed, holding that defendant’s counsel had an obligation under
       the sixth amendment to advise defendant that the offense to which he was pleading guilty
       would subject him to automatic deportation. Padilla, 559 U.S. at ___, 130 S. Ct. at 1480-81.
       The Court noted that the Kentucky Supreme Court, as well as numerous other courts, have
       found that the failure of defense counsel to advise a defendant of possible deportation
       consequences was not cognizable as a claim of ineffective assistance of counsel because
       deportation has been viewed as a collateral, not a direct, consequence of a criminal
       conviction. Padilla, 559 U.S. at ___, 130 S. Ct. at 1480-81. The Court went on to explain
       that it had never applied a distinction between direct and collateral consequences to define
       the scope of constitutionally “ ‘reasonable professional assistance’ ” required under
       Strickland. Padilla, 559 U.S. at ___, 130 S. Ct. at 1481 (quoting Strickland, 466 U.S. at 689).
       Given the close connection between a criminal conviction and deportation, the Padilla Court
       concluded that deportation is “uniquely difficult to classify as either a direct or a collateral
       consequence” and therefore the “collateral versus direct distinction” is “ill-suited to
       evaluating a Strickland claim concerning the specific risk of deportation.” Padilla, 559 U.S.
       at ___, 130 S. Ct. at 1481-82. The Court did find however, that “Strickland applies to
       Padilla’s claim.” Padilla, 559 U.S. at ___, 130 S. Ct. at 1482.
¶ 24       Applying Strickland, the Padilla Court first set out to determine whether counsel’s
       representation fell below an objective standard of reasonableness. Padilla, 559 U.S. at ___,
       130 S. Ct. at 1482. “The first prong–constitutional deficiency–is necessarily linked to the
       practice and expectations of the legal community: ‘The proper measure of attorney
       performance remains simply reasonableness under prevailing professional norms.’ ” Padilla,
       559 U.S. at ___, 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at 688). Prevailing
       professional norms support the view that counsel must advise a client of possible deportation
       consequences. Because the immigration consequences for Padilla were clearly defined by
       federal law, Padilla’s counsel could have easily determined that his plea would make him
       eligible for deportation. Instead, Padilla’s counsel provided him incorrect advice that his plea
       would not result in removal form this country. Padilla, 559 U.S. at ___, 130 S. Ct. at 1483.
       The Padilla Court went on to hold that counsel’s performance was deficient under the first
       prong of Strickland. In doing so, the court noted other situations where the possible
       immigration consequences would not be so clearly defined and determined that “[w]hen the

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       law is not succinct and straightforward,” defense counsel is only required to inform “a
       noncitizen client that pending criminal charges may carry a risk of adverse immigration
       consequences.” Padilla, 559 U.S. at ___, 130 S. Ct. at 1483.
¶ 25       The State contends that Padilla is inapplicable to the facts of the instant case because
       Padilla cannot be applied retroactively, where the Court established a new rule of criminal
       procedure that does not fall within either of the Teague exceptions.
¶ 26       Teague v. Lane, 489 U.S. 288 (1989), governs the retroactive application of criminal
       laws. The determination as to whether retroactive application is warranted turns on whether
       a case announces a new rule or merely expands upon a preexisting rule. Teague, 489 U.S.
       at 299. Generally speaking, “a case announces a new rule if the result was not dictated by
       precedent existing at the time the defendant’s conviction became final.” (Emphasis omitted.)
       Teague, 489 U.S. at 301. A decision that applies an established general rule to a new set of
       facts is not a new rule. Teague, 489 U.S. at 309. In other words, where a decision “breaks
       new ground or imposes a new obligation on the States or the Federal Government,” or “if the
       result [is] not dictated by precedent existing at the time the defendant’s conviction became
       final,” a decision announces a new rule. (Emphasis omitted.) Teague, 489 U.S. at 301.
¶ 27       The Teague Court articulated two instances when new rules of criminal procedure should
       be applied retroactively to cases on collateral review: (1) it places certain kinds of primary,
       private individual conduct beyond the power of the criminal law-making power to proscribe;
       or (2) requires the observance of those procedures that are implicit in the concept of ordered
       liberty. Teague, 489 U.S. at 311.
¶ 28       The first Teague exception was fashioned by the court in Mackey v. United States, 401
       U.S. 667 (1971), and applies only to rules that decriminalize a class of conduct or prohibit
       a certain category of punishment for a class of defendants because of their status or offense.
       Saffle v. Parks, 494 U.S. 484, 495 (1990). This exception is inapplicable to the facts of the
       instant case.
¶ 29       The Supreme Court has limited the scope of the second exception to “watershed rules of
       criminal procedure” that “ ‘will properly alter our understanding of the bedrock procedural
       elements that must be found to vitiate the fairness of a particular conviction’ ” and “without
       which the likelihood of an accurate conviction is seriously diminished.” (Emphasis omitted.)
       Teague, 489 U.S. at 313 (quoting Mackey, 401 U.S. at 693). The Supreme Court has only
       once recognized a watershed rule of criminal procedure, in Gideon v. Wainwright, 372 U.S.
       335 (1963), when the Court held that a defendant has a constitutional right to be represented
       by counsel at all criminal trials in which a defendant is charged with a serious offense.
¶ 30       The Teague analysis was adopted by the Illinois Supreme Court in People v. Flowers,
       138 Ill. 2d 218, 238 (1990), and was applied to an action brought pursuant to the Act. In
       Flowers, the defendant was convicted of murder, armed robbery and armed violence. His
       conviction was affirmed on appeal. Thereafter, the defendant filed a postconviction petition
       that was denied without an evidentiary hearing. On appeal from the denial of his petition,
       defendant alleged that conflicting jury instructions, which required a jury to find him guilty
       of both murder and voluntary manslaughter, if it found him guilty of voluntary manslaughter,
       violated his right to due process. Defendant relied on our supreme court’s holding in People


                                                -8-
       v. Reddick, 123 Ill. 2d 184 (1988), in support of his argument.
¶ 31       In Reddick, the court had held that conflicting jury instructions which failed to state the
       appropriate burdens of proof were unconstitutional as the jury could not possibly convict the
       defendant of the lesser-included offense. Reddick, 123 Ill. 2d at 197. The jury instructions
       misallocated the appropriate burdens of proof by placing the responsibility of proving the
       mitigating circumstances that would reduce murder to manslaughter on the State. The
       appropriate jury instruction would have informed the jury that it was the State’s burden to
       disprove the mitigating circumstances. Reddick, 123 Ill. 2d at 197. Although the Flowers
       court recognized that Reddick announced a rule of constitutional dimension as it changed the
       law regarding the burden of proof and elements of he offense of voluntary manslaughter, it
       declined to apply the Reddick ruling retroactively under the second exception announced in
       Teague, as the Reddick decision did not constitute a watershed rule of criminal procedure.
       Flowers, 138 Ill. 2d at 239. Specifically, the Flowers court stated, “[t]his exception must be
       narrowly construed and we do not believe that the Reddick rule established such a component
       of basic due process so as to fall within it.” Flowers, 138 Ill. 2d at 242.
¶ 32       Defendant urges that Padilla did not announce a new rule of criminal procedure but
       merely applied the Strickland to a new factual scenario. The State argues that Padilla
       announced a new rule of criminal procedure, but it does not fall within either of the two
       Teague exceptions, and therefore is not retroactive.
¶ 33       Whether Padilla warrants retroactive application here, depends on whether Padilla
       announced a “new rule” or merely expands on a preexisting rule. Teague, 489 U.S. at 299.
       This is an issue of first impression in Illinois. If Padilla announced a new rule, it is
       retroactive to cases on collateral review only if it falls within one of the two exceptions
       articulated in Teague. Teague, 489 U.S. at 299-300. If Padilla did not announce a new rule
       of criminal procedure, it is applicable to cases that were final before Padilla was decided.
       People v. Moore, 177 Ill. 2d 421, 436 (1997). Based on our review of the facts of this case
       as well as Teague and other relevant case law, we are confident that only one result is
       possible here: the Padilla Court did not announce a new rule of criminal procedure.
¶ 34       Generally speaking, it is “often difficult” to determine whether a case announces a new
       rule. Teague, 489 U.S. at 301. This determination is particularly troublesome where the new
       decision is reached by an extension of the reasoning of prior cases. Butler v. McKellar, 494
       U.S. 407, 412-13 (1990). However, the task is to determine whether, at the time the
       defendant’s conviction became final, whether court’s considering defendant’s claim, “would
       have felt compelled by existing precedent to conclude that the rule *** was required by the
       Constitution.” Saffle, 494 U.S. at 488; People v. Morris, 236 Ill. 2d 345, 360 (2010).
       Nevertheless, this kind of analysis is unnecessary here.
¶ 35       Although not recognized in Illinois until recently, Teague not only provided instruction
       on the application of new rules on collateral review, but it also provided instruction on the
       announcement of new rules in cases on collateral review. See Morris, 236 Ill. 2d 345 (the
       portion of the Teague opinion discussing the announcement of new rules in cases on
       collateral review has not been applied or discussed in Illinois state courts). In Teague, the
       Supreme Court stated:


                                                -9-
                   “Were we to recognize the new rule urged by petitioner in this case, we would
               have to give petitioner the benefit of that new rule even though it would not be
               applied retroactively to other similarly situated. In the words of JUSTICE
               BRENNAN, such an inequitable result would be ‘an unavoidable consequence of the
               necessity that constitutional adjudications not stand as mere dicutm.’ [Citation.] ***
                   If there were no other way to avoid rendering advisory opinions, we might well
               agree that the inequitable treatment described above is ‘an insignificant cost for
               adherence to sound principles of decision-making.’ [Citation.] But there is a more
               principled way of dealing with the problem. We can simply refuse to announce a new
               rule in a given case unless the rule would be applied retroactively to the defendant
               in the case and to all others similarly situated. [Citation.] We therefore hold that,
               implicit in the retroactivity approach we adopt today, is the principle that habeas
               corpus cannot be used as a vehicle to create new constitutional rules of criminal
               procedure unless those rules would be applied retroactively to all defendants on
               collateral review through one of the two exceptions we have articulated.” (Emphasis
               omitted.) Teague, 489 U.S. at 315-16.
¶ 36       Prior to Teague, the Supreme Court would regularly announce new rules but not address
       the retroactivity of those rules until subsequent cases. Teague, 489 U.S. at 302-03. In cases
       following Teague, the Court has stated, “[u]nder Teague, new rules will not be applied or
       announced in cases on collateral review unless they fall into one of two exceptions.” Penry
       v. Lynaugh, 492 U.S. 302, 313 (1989); Butler, 494 U.S. at 412. Accordingly, Teague
       mandates that the issue of retroactivity should be decided as a threshold question before
       addressing a constitutional claim. Teague, 489 U.S. at 305.
¶ 37       The Padilla Court decided that the defendant was entitled to a hearing on his
       postconviction claim of ineffective assistance of counsel without any mention of retroactivity
       or Teague, either as a threshold matter or a mere consideration. The absence of this analysis
       alone, given Teague’s specific prohibition against announcing a new rule of criminal
       procedure in cases on collateral review unless that rule would apply to that defendant, and
       retroactively to other defendants similarly situated under one of the two exceptions, leads us
       to conclude that the Padilla Court did not intend to establish a new rule of criminal
       procedure.
¶ 38       Furthermore, the Padilla Court explicitly stated it was “evaluating a Strickland claim
       concerning the specific risk of deportation” and that “Strickland applies to Padilla’s claim.”
       Padilla, 559 U.S. at ___, 130 S. Ct. at 1482. The Court’s threshold consideration was
       whether Strickland could apply to issues of deportation. After finding defense counsel’s
       obligations to a defendant regarding deportation to fall within the sixth amendment right to
       counsel, the Padilla Court simply expanded Strickland to include counsel’s obligation to
       inform a defendant of possible deportation consequences. A decision that applies an
       established general rule (Strickland) to a new set of facts (deportation) is not a new rule.
       Teague, 489 U.S. at 309, 311.
¶ 39       Additional support for our conclusion comes from the Court’s acknowledgment, again
       without discussing Teague, that its holding would potentially undermine the finality of


                                               -10-
       convictions obtained through guilty pleas and its subsequent citation to Hill v. Lockhart, 474
       U.S. 52 (1985). In rejecting requests to limit its holding to affirmative misadvise, the Padilla
       Court stated, “[w]e confronted a similar ‘floodgates’ concern in Hill [citations], but
       nevertheless applied Strickland to a claim that counsel had failed to advise the client
       regarding his parole eligibility before he pleaded guilty.” Padilla, 559 U.S. at ___, 130 S. Ct.
       at 1484-85.
¶ 40       In Hill, the defendant filed a petition for habeas corpus based on ineffective assistance
       of counsel because counsel failed to advise him, that as a second offender, he was required
       to serve one-half of his sentence before becoming eligible for parole, which was denied. The
       United States Supreme Court granted certiori and held for the first time that the two-part
       Strickland test applied to challenges to guilty pleas based on claims of ineffective assistance
       of counsel. Applying Strickland, the Hill court found it unnecessary to reach the question of
       whether counsel’s performance was ineffective where the defendant failed to establish
       prejudice under the second prong of Strickland. Hill, 474 U.S. at 60.
¶ 41       The Padilla Court recognized that Hill expanded the holding in Strickland to encompass
       the defendant’s ineffective assistance of counsel claims pertaining to guilty pleas in the
       context of a habeas corpus proceeding. Hill did so without mentioning Teague or
       determining retroactivity. Similar to the Hill Court, the Padilla court also expanded the
       holding of Strickland without discussing Teague and recognized that its holding may allow
       new challenges to prior guilty pleas. However, the Padilla Court but sought to dispel those
       concerns.
                    “It seems unlikely that our decision today will have significant effect on those
                convictions already obtained as the result of plea bargains. For at least the past 15
                years, professional norms have generally imposed an obligation on counsel to provide
                advice on the deportation consequences of client’s plea.” Padilla, 559 U.S. at ___,
                130 S. Ct. at 1486.
¶ 42       An argument can certainly be made that Padilla represents a new rule of criminal
       procedure based on the Padilla Court’s recognition of the novelty of its holding. “[W]e now
       hold that counsel must inform her client whether his plea carries a risk of deportation.”
       Padilla, 559 U.S. at ___, 130 S. Ct. at 1488. The Court also noted, “[T]his Court has never
       held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice
       about [collateral consequences of a conviction].” Padilla, 559 U.S. at ___, 130 S. Ct. at 1488
       (Alito, J., concurring, joined by Roberts, C.J.). An argument can also be made that Padilla
       represents a new rule of criminal procedure based on its implication alone. Recently, in
       People v. Kabre, 905 N.Y.S.2d 887, 892-94 (N.Y. Crim. Ct. 2010), the court, in determining
       that Padilla would not apply retroactively, observed that the Padilla decision effectively
       changed the law in nine circuits and the majority of states. However, given the procedural
       posture of this case, as well as Teague’s mandate, we cannot find any support for a finding
       that Padilla established a new rule. Consequently, Padilla may be retroactively applied to
       the case at bar.
¶ 43       While Padilla operates to establish that counsel’s performance was unreasonable in this
       case, it does not operate to establish that defendant suffered prejudice with respect to the


                                                -11-
       second prong of Strickland. Padilla did not reach the determination of whether the defendant
       was prejudiced by counsel’s performance, and therefore entitled to relief, because it was not
       before the Court. “Whether 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.” Padilla, 559 U.S. at ___, 130 S. Ct. at 1483-84.
¶ 44       As previously discussed, in order to establish prejudice under the second prong of
       Strickland, the defendant must show that there is a reasonable probability that, but for
       counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
       Pugh, 157 Ill. 2d at 15. Whether the alleged error was prejudicial depends largely on whether
       it was likely that the defendant would have succeeded at trial. Pugh, 157 Ill. 2d at 15.
¶ 45       Defendant has not shown that he would have succeeded at trial and therefore cannot
       establish prejudice under the second prong of Strickland in this case. The evidence against
       defendant is overwhelming. The eyewitness, Mr. Phillips, saw defendant exit a car parked
       near 6050 South Sawyer on the night of November 2, 2003. Mr. Phillips heard gunshots and
       saw defendant return to the car with a gun in his hand. Defendant admitted in a videotaped
       statement that he and codefendant Rosendo Ruiz agreed to perform a robbery that evening
       and that Isidro Rodriguez was the intended victim. In his statement, defendant stated that he
       was the lookout and that it was Ruiz who actually shot the victim. In addition, a gun
       recovered in an unrelated case involving defendant as the offender contained defendant’s
       palm print and DNA. The gun was tested and found to be the murder weapon in this case.
¶ 46       As defendant cannot establish prejudice under the second prong of Strickland, he cannot
       demonstrate prejudice under the cause-and-prejudice test. Therefore, we find that the trial
       court properly denied his request for leave to file a successive postconviction petition with
       respect to the first issue raised.
¶ 47       Defendant also agues that the trial court erred when it failed to inform him of the possible
       deportation consequences of his guilty plea. Defendant claims that the trial court had a
       statutory obligation to inform him that he could possibly be deported as a result of his plea.
¶ 48       The statutory obligation that defendant speaks of is found in section 113–8 of the Code
       of Criminal Procedure of 1963:
                   “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 2006).
¶ 49       Because defendant raised this claim in a successive postconviction petition, he must
       establish cause and prejudice before he can be granted leave to file his successive petition.
       Pitsonbarger, 205 Ill. 2d at 459. That is, defendant must show good cause for failing to raise
       the claimed errors in a prior proceeding and actual prejudice resulting from the claimed
       errors. Pitsonbarger, 205 Ill. 2d at 460; 725 ILCS 5/122–1(f) (West 2006). A defendant must

                                                -12-
       establish cause and prejudice as to each individual claim asserted in a successive
       postconviction petition to escape dismissal under res judicata and waiver. Pitsonbarger, 205
       Ill. 2d at 463; 725 ILCS 5/122–1(f) (West 2006).
¶ 50        “Cause” is defined as “any objective factor, external to the defense, which impeded the
       petitioner’s ability to raise a specific claim at the initial postconviction proceeding.”
       Pitsonbarger, 205 Ill. 2d at 462; 725 ILCS 5/122–1(f) (West 2006). With respect to cause,
       defendant again claims that he was unaware of any deportation consequences of his plea until
       after he filed his first postconviction petition. Although section 113–8 was in effect at the
       time of defendant’s plea, a review of the record establishes that the trial court did not
       admonish defendant regarding the potential immigration consequences of his plea, as
       required by section 113–8. The trial court’s failure to inform defendant, in conjunction with
       his claim that defense counsel did not discuss possible immigration consequences with him,
       lends credence to claim that he was unaware of the deportation consequences at the time he
       filed his initial postconviction petition. This is especially true that given that defendant’s
       initial pro se petition was denied at the first stage and counsel on appeal withdrew.
¶ 51        However, whether defendant has established cause is irrelevant where he cannot establish
       the prejudice prong of the cause-and-prejudice test. To establish prejudice, defendant must
       show that the claim not raised in his initial postconviction petition so infected the trial that
       the resulting conviction violated due process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS
       5/122–1(f) (West 2006).
¶ 52        Defendant maintains that his due process rights were violated where, based on the trial
       court’s failure to admonish him in accordance with section 113–8, his plea was not
       knowingly entered. The State maintains that the trial court adhered to the regulations of
       Illinois Supreme Court Rule 402, which requires “[t]he court, by questioning the defendant
       personally in open court, shall confirm the terms of the plea agreement, or that there is no
       agreement, and shall determine whether any force or threats of any promises, apart from the
       plea agreement, were used to obtain the plea.” Furthermore, the State argues, our supreme
       court in People v. Delvillar, 235 Ill. 2d 507, 522 (2009), held that “the failure to admonish
       a defendant of potential immigration consequences does not rise to a constitutional
       violation.” Therefore, the trial court’s failure to admonish defendant regarding possible
       immigration consequences is not a constitutional violation and is consequently not
       cognizable under the Act. See People v. Brown, 169 Ill. 2d 94, 101 (1995) (the Act provides
       a remedy to criminal defendant who allege substantial violations of their constitutional rights
       occurred at trial).
¶ 53        Defendant recognizes the holding in Delvillar, but argues it was effectively overruled by
       Padilla. In Delvillar, the defendant who plead guilty to unlawful use of a weapon by a felon,
       later sought to withdraw his guilty plea, asserting that he did not knowingly or voluntarily
       waive his right to trial or comprehend the admonishments of the court. Specifically, the
       defendant sought to withdraw his guilty plea on the grounds that the circuit court failed to
       admonish him of the potential immigration consequences of his plea pursuant to section
       113–8 (725 ILCS 5/113–8 (West 2006)), despite the fact that the defendant represented to
       the court that he was a United States citizen. The circuit court denied his motion. The
       appellate court reversed and remanded for further proceedings. Delvillar, 235 Ill. 2d at 510-

                                                -13-
       11.
¶ 54        Our supreme court reversed the decision of the appellate court. In doing so, the court
       found that the admonishment to inform defendants of possible immigration consequences
       under section 113–8 is mandatory, under the mandatory or permissive dichotomy, in the
       sense that the circuit court does not have the discretion in giving the admonishment,
       regardless of whether a defendant has indicated that he or she acknowledges a lack of
       citizenship. Delvillar, 235 Ill. 2d at 516. The court found however, that the dispositive issue
       was whether section 113–8 was mandatory or directory. Delvillar, 235 Ill. 2d at 516.
¶ 55        In answering this question, the court presumed that the language issuing a procedural
       command to a government official indicates an intent that the statute is directory, but it
       recognized two conditions in which this presumption is overcome. Delvillar, 235 Ill. 2d at
       517 (citing People v. Robinson, 217 Ill. 2d 43, 58 (2005)). First, when there is negative
       language prohibiting further action in the case of noncompliance; and second, when the
       protected right generally would be injured under a directory reading. Delvillar, 235 Ill. 2d
       at 517 (citing Robinson, 217 Ill. 2d at 58). The court found that neither condition applied so
       that the admonishment was directory and failing to issue the admonishment would not
       automatically require the court to grant a motion to withdraw a guilty plea. Delvillar, 235 Ill.
       2d at 517-19. The failure to give the admonishment would be one factor to be considered by
       the court in ruling on a motion to withdraw a guilty plea. Delvillar, 235 Ill. 2d at 519.
¶ 56        The focus of a reviewing court in determining whether a trial court has abused its
       discretion in denying a motion to withdraw a guilty plea should be whether the guilty plea
       was “affirmatively shown to have been made voluntarily and intelligently.” Delvillar, 235
       Ill. 2d at 520. With respect to voluntariness, the court must inform a defendant of the direct
       consequences of his plea prior to accepting a guilty plea. Delvillar, 235 Ill. 2d at 520. Direct
       consequences of a plea are those that affect the defendant’s sentence and other punishment
       that the circuit court may impose. Delvillar, 235 Ill. 2d at 520 (citing People v. Williams, 188
       Ill. 2d 365, 372 (1999)). Conversely, collateral consequences are “effects upon the defendant
       that the circuit court has no authority to impose.” Delvillar, 235 Ill. 2d at 520 (citing
       Williams, 188 Ill. 2d at 372). Immigration consequences are collateral consequences and due
       process does not require that a defendant be informed of the collateral consequences of his
       plea. Delvillar, 235 Ill. 2d at 521. Consequently, the court found that failure to admonish a
       defendant of potential immigration consequences pursuant to section 113–8 does not affect
       the voluntariness of the plea.
                “In this case, because such consequences remain collateral, the failure to admonish
                defendant of such consequences does not call into question the constitutional
                voluntariness of his guilty plea.
                    *** [T]he failure to admonish a defendant of potential immigration consequences
                does not rise to a constitutional violation ***.” Delvillar, 235 Ill. 2d at 522.
¶ 57        Contrary to defendant’s argument, Padilla has no effect on our supreme court’s holding
       in Delvillar. The Padilla Court noticed recent changes in immigration law that make it “most
       difficult” to divorce the penalty from the conviction in the deportation context and discussed
       the “unique[ ] difficult[ies]” of characterizing immigration consequences as direct or


                                                -14-
       collateral. However, the Court noted that it had never applied a distinction between direct
       and collateral consequences in determining what constitutes reasonable assistance under
       Strickland and declined to do so in this case. Padilla, 559 U.S. at ___, 130 S. Ct. at 1476.
       The Court found the distinction between direct and collateral consequences “ill-suited to
       evaluating a Strickland claim concerning the specific risks of deportation.” Padilla, 559 U.S.
       at ___, 130 S. Ct. at 1476. The Court ultimately found that the decision as to whether counsel
       is constitutionally effective turns on whether counsel’s performance was “ ‘reasonable under
       prevailing professional norms.’ ” Padilla, 559 U.S. at ___, 130 S. Ct. at 1482 (quoting
       Strickland, 466 U.S. at 688).
¶ 58        Padilla’s holding is clear and concise. Failure to inform a defendant of the potential
       immigration consequences of his plea amounts to a deficient performance by counsel under
       the first prong of Strickland. We 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. The Court specifically rejected the use of a
       direct/collateral consequence analysis. There simply is no evidence to suggest that the
       Padilla Court intended to reclassify deportation as a direct consequence of a guilty plea.
       Accordingly, we find Delvillar remains dispositive of defendant’s claim.
¶ 59        Under Delvillar, the claim raised by defendant does not involve a constitutional right and
       is therefore not cognizable in a postconviction proceeding. Consequently, defendant cannot
       establish prejudice under the cause-and-prejudice test and the trial court properly denied
       defendant leave to file his successive postconviction petition.
¶ 60        Finally, defendant claims this court should vacate the $50 State’s Attorney fee assessed
       following the circuit court’s summary dismissal of his first postconviction petition because
       the State’s Attorney was not involved in the disposition of the petition as it was dismissed
       at the first stage of postconviction proceedings. The State argues against vacating the fee on
       the grounds that this court lacks jurisdiction to consider defendant’s claim because
       defendant’s appeal from his initial postconviction petition was dismissed on January 9, 2008.
¶ 61        Defendant was assessed the $50 fee pursuant to section 4–2002.1(a) of the Counties
       Code, which is entitled “State’s attorney fees in counties of 3,000,000 or more population,”
       and provides:
                     “(a) State’s attorneys shall be entitled to the following fees:
                                                  ***
                     For each day actually employed in the hearing of a case of habeas corpus in which
                the people are interested, $50.” 55 ILCS 5/4–2002.1(a) (West 2006).
¶ 62        Before determining whether the $50 fee was improperly imposed, we must address the
       State’s argument that defendant cannot raise this issue on appeal from the denial of leave to
       file a separate successive postconviction petition.
¶ 63        A sentence that does not conform to a statutory requirement is void. People v. Arna, 168
       Ill. 2d 107, 113 (1995). It is well established that a “void [judgment] may be attacked at any
       time *** either directly or collaterally.” People v. Thompson, 209 Ill. 2d 19, 27 (2004). An
       argument that a judgment is void is not subject to waiver. Thompson, 209 Ill. 2d at 27.
       However, the issue of voidness must be raised in the context of a proceeding that is properly

                                                -15-
       pending in the courts. People v. Flowers, 208 Ill. 2d 291, 308 (2003). “If a court lacks
       jurisdiction, it cannot confer any relief, even from prior judgments that are void.” Flowers,
       208 Ill. 2d at 308.
¶ 64       As we have proper jurisdiction over defendant’s appeal from the denial of leave to file
       his successive postconviction petition, we may consider defendant’s claim that the order
       imposing the $50 fee is void.
¶ 65       There is no dispute here that defendant’s initial postconviction petition was dismissed
       at the first stage. At the first stage, the trial court may dismiss, without any input from the
       State, the defendant’s postconviction petition as frivolous or patently without merit. People
       v. Boclair, 202 Ill. 2d 89, 99 (2002). Hence, because the State was not “employed” in the
       hearing of the case, the $50 fee was improperly imposed. Accordingly, we vacate the $50 fee.
¶ 66       Based on the foregoing, we affirm the judgment of the circuit court denying defendant
       leave to file a successive postconviction petition, but vacate the $50 State’s Attorney fee
       imposed.
¶ 67       Affirmed in part and vacated in part.




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