People v. Unzueta , 2017 IL App (1st) 131306-B ( 2017 )

Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity
of this document
Appellate Court Date: 2017.05.09
12:33:49 -05'00'
People v. Unzueta, 2017 IL App (1st) 131306-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ADRIAN UNZUETA, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-13-1306
Filed March 16, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-6039; the
Review Hon. Larry G. Axelrood, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Arianne Stein, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Sari London, and Marci Jacobs, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.*
Presiding Justice Gordon and Justice McBride concurred in the
judgment and opinion.
OPINION
¶1 Defendant Adrian Unzueta appealed 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 contended 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. In November 2015, our court affirmed the
trial court’s judgment, finding defendant failed to make a substantial showing of a
constitutional violation where he failed to demonstrate that he was prejudiced by counsel’s
performance. People v. Unzueta, 2015 IL App (1st) 131306, ¶¶ 31, 33.
¶2 Defendant filed a petition for leave to appeal with the Illinois Supreme Court. In November
2016, the supreme court denied defendant’s petition but also entered a supervisory order
directing us to vacate our judgment and consider the effect of its decision in People v. Valdez,
2016 IL 119860, “on the issue of whether defendant 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, and determine if a different result is warranted.”
¶3 In accordance with the supreme court’s directive, we vacated our earlier judgment. After
reconsidering this case in light of Valdez, we determine that a different result is not warranted.
Accordingly, we affirm.
¶4 I. BACKGROUND
¶5 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.
¶6 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
*
Justice Palmer authored the original opinion in this case, which has been adopted in significant
part in this decision. Following Justice Palmer’s retirement from the court, Justice Burke has been
substituted as the authoring judge.
-2-
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.”
¶7 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.
¶8 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.”
¶9 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.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 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.
¶ 13 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 that amount to
-3-
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).
¶ 14 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).
¶ 15 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)).
¶ 16 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.
¶ 17 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” 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
-4-
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
¶¶ 14-15, and thus relieves him of the obligation of showing that he was likely to succeed at
trial.
¶ 18 A. Padilla Violations and the Strickland Prejudice Requirement
¶ 19 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, the
evidence against him was overwhelming. Id. ¶ 45. There was no discussion of an alternative
standard such as the standard proposed here by defendant.
¶ 20 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.
¶ 21 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
-5-
sworn admission. Given these facts, defendant has not established the prejudice
required under Strickland.” Id. ¶ 20.
¶ 22 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 [372]. 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 dissatisfaction about the effects of deportation, which
would not have changed if he had gone to trial and been convicted.” Id. ¶ 18.
¶ 23 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.
¶ 24 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,
-6-
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
¶ 25 The supreme court’s recent decision in Valdez did not address the question of whether a
defendant must show actual innocence or a plausible defense to establish prejudice. The
Valdez court set forth the following case law governing the Strickland “prejudice” prong in the
context of guilty pleas:
“To establish prejudice in the guilty plea context, ‘the defendant must show that there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.’ Hill v. Lockhart, 474 U.S. 52, 59; People v.
Hughes, 2012 IL 112817, ¶ 63. A conclusory allegation that a defendant would not
have pleaded guilty and would have demanded a trial is insufficient to establish
prejudice. Hughes, 2012 IL 112817, ¶ 64; People v. Hall, 217 Ill. 2d 324, 335 (2005).
Rather, as the Supreme Court noted in Padilla, ‘to obtain relief on this type of claim, a
petitioner must convince the court that a decision to reject the plea bargain would have
been rational under the circumstances.’ Padilla, 559 U.S. at 372 (citing Roe v.
Flores-Ortega, 528 U.S. 470, 480, 486 (2000)).” Valdez, 2016 IL 119860, ¶ 29.
Ultimately, however, the Valdez court resolved the defendant’s ineffective assistance claim by
concluding that any prejudice he suffered was cured by the trial court’s statutory
admonishments regarding the potential immigration consequences of his conviction. Id. ¶ 32.
¶ 26 B. Advisement Concerning Status as an Alien
Pursuant to Section 113-8 of the Code of Criminal Procedure of 1963
¶ 27 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
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 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. In 2015, the supreme court issued its opinion in Guzman, in which it affirmed the
-7-
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.
¶ 28 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.
¶ 29 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.¶ 30 As noted above, supra ¶ 6, 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.”
¶ 31 This advisement has a double effect here. First, it cures any deficiency on counsel’s part.
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.
¶ 32 We are guided by the supreme court’s recent decision in Valdez. There, the supreme court
considered whether counsel provided ineffective assistance when he failed to inform the
defendant, before the defendant pled guilty to burglary, that a burglary conviction subjected
the defendant to mandatory deportation. Valdez, 2016 IL 119860, ¶ 13. The supreme court first
considered the “performance” prong of the Strickland test, reviewing Padilla to determine the
duties that counsel owed the defendant. Id. ¶ 16. The Valdez court quoted the Padilla court’s
statement that “ ‘[w]hen the law is not succinct and straightforward ***, a criminal defense
attorney need do no more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.’ ” (Emphasis omitted.) Id. ¶ 19 (quoting
Padilla, 559 U.S. at 369). The Valdez court concluded that the immigration consequences of
the defendant’s burglary charge were not “ ‘succinct, clear, and explicit,’ so as to require a
warning by counsel that deportation was presumptively mandatory.” Id. ¶ 26. Instead, 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.
-8-
supreme court stated, counsel was only required to provide “a general warning of the
possibility of immigration consequences.” Id. ¶ 26. Because counsel gave no advice to the
defendant regarding the immigration consequences of his conviction, the Valdez court
concluded the defendant had sufficiently alleged his counsel’s performance was deficient. Id.
¶ 27.
¶ 33 Accordingly, the supreme court turned to whether the defendant adequately demonstrated
prejudice. Id. ¶ 29. In this regard, the Valdez court agreed with the State that because counsel
was only required to advise the defendant that pleading guilty “may have” the consequence of
deportation, and because the circuit court advised the defendant under section 113-8 of the
Code that he may be deported, the circuit court’s admonishments cured any prejudice suffered
by the defendant. Id. ¶ 30. The supreme court stated as follows:
“Defendant cannot now argue that his counsel’s failure to inform him of the
immigration consequences of a guilty plea caused him to forgo a trial when the circuit
court conveyed the same information to him and defendant still chose to plead guilty.
See [People v. Jones, 144 Ill. 2d 242, 263 (1991)] (“To accept the defendant’s claim
would require us to characterize the court’s lengthy and exhaustive admonitions as
merely a perfunctory or ritualistic formality; a characterization we are unwilling to
make.”). Any prejudice suffered by defendant as a result of counsel’s failure was cured
by the circuit court’s strict compliance with section 113-8 of the Code. Accordingly,
defendant has failed to establish he was prejudiced under Strickland, and the circuit
court did not abuse its discretion in denying defendant’s motion to withdraw his guilty
plea.” Valdez, 2016 IL 119860, ¶ 32.
¶ 34 Similarly, here, we conclude that the trial court’s statutory admonishments cured any
prejudice defendant suffered as a result of counsel’s failure to advise him of the deportation
consequences of his conviction. Thus, defendant has failed to establish he was prejudiced by
counsel’s purportedly deficient performance.
¶ 35 In a supplemental brief that we allowed defendant to file, defendant argues that Valdez
supports the opposite conclusion, i.e., that the trial court’s admonishments were insufficient to
cure the prejudice he suffered.3 Defendant’s argument stems from his claim that while the
defendant’s immigration consequences in Valdez were not “succinct, clear, and explicit,” the
immigration consequences in his case were a certainty under federal immigration law.
According to defendant, Valdez suggests a court’s admonishments under section 113-8 of the
Code that there may be immigration consequences are insufficient to cure prejudice in a case
such as his where deportation is a certainty. Defendant bases his contention on the fact that
before the Valdez court addressed the curative effect of the circuit court’s admonishments, it
first analyzed whether the immigration consequences of the defendant’s conviction were clear.
Defendant argues that such an analysis would have been unnecessary if a court’s statutory
admonishments are sufficient to cure prejudice in cases in which a criminal conviction may
require deportation as well as cases in which a conviction certainly requires deportation.
¶ 36 We are not persuaded by defendant’s analysis of Valdez. 4 In determining defense
counsel’s duties in Valdez, the supreme court observed that the immigration consequences of
3
The State also filed a supplemental appellee brief, and defendant filed a supplemental reply brief.
4
Defendant’s contention hinges on his claim that his deportation was a certainty under immigration
law and that counsel was therefore required to inform him of the “dire and specific consequences of his
-9-
the defendant’s conviction were held to be “succinct, clear, and explicit” based on express
language in the Immigration and Nationality Act (Immigration Act) (8 U.S.C. §1227 (2006)).
Id. ¶ 20. The Valdez court found that, unlike the immigration consequences of the Padilla
defendant’s conviction, the immigration consequences of the defendant’s conviction were not
clear from the face of the Immigration Act. Id. The Immigration Act did not specifically
identify burglary as a deportable offense; instead, it set forth general categories of offenses,
including crimes involving moral turpitude and aggravated felonies, which may or may not
have included burglary. Id.¶ 37 The appellate court in Valdez held that counsel had a duty to research federal case law to
determine whether the defendant’s burglary conviction fell within one of these general
categories in the Immigration Act. Id. ¶ 21. The appellate court further found that, through
minimal research, counsel could have determined that “burglary predicated upon theft” was
considered a crime involving moral turpitude. Id.5 The appellate court thus held that counsel
had a duty to inform the defendant that his plea rendered his deportation “presumptively
mandatory.” Id.¶ 38 The supreme court disagreed that the immigration consequences of the defendant’s
burglary conviction were “succinct, clear, and explicit,” concluding that Padilla strongly
suggested that “where a crime falls within a ‘broad classification’ of offenses, such as crimes
involving moral turpitude, the law is not ‘succinct and straightforward.’ ” Id. ¶ 22 (quoting
Padilla, 559 U.S. at 368-69). The Valdez court stated that “where the face of the statute does
not succinctly, clearly, and explicitly indicate that a conviction subjects a defendant to
mandatory deportation, counsel need only advise a defendant that his plea ‘may’ have
immigration consequences.” Id. The supreme court further indicated that, even if Padilla
required counsel to undertake a minimal review of case law, federal authorities did not clearly
resolve whether the defendant’s burglary conviction was a “crime of moral turpitude.” Id. ¶ 22.
After setting forth those federal authorities, the supreme court stated as follows.
“In light of the split of authority described above, we cannot agree that the
immigration consequences of defendant’s conviction were ‘succinct, clear, and
explicit,’ so as to require a warning by counsel that deportation was presumptively
mandatory. Unlike the straightforward application of the statute in Padilla,
determining whether defendant’s burglary charge, as defined by Illinois state law, is a
[crime of moral turpitude] requires extensive research of federal case law. Even then,
there is no clear answer. Under these circumstances, we hold that counsel was required
to give defendant only a general warning of the possibility of immigration
consequences.” Id. ¶ 26.
plea” as opposed to simply informing him that his conviction may result in deportation. We need not
determine whether counsel was, in fact, required to advise defendant of the specific consequences of his
plea instead of merely advising defendant that he may be subject to deportation, because we conclude
that in either instance, the trial court’s admonishments were sufficient to cure any prejudice defendant
suffered.
5
The appellate court held the defendant’s conviction did not qualify as an aggravated felony under
the immigration laws because the defendant was sentenced to less than one year of imprisonment, and
the relevant statute defined an aggravated felony as, inter alia, a burglary offense for which the term of
imprisonment was at least one year (8 U.S.C. § 1101(a)(43)(G) (2012)). Valdez, 2016 IL 119860, ¶ 21
n.1.
- 10 -
¶ 39 The foregoing summation of the Valdez court’s decision shows that in analyzing the
immigration consequences of the defendant’s conviction, the Valdez court provided clarity to
courts, attorneys, and parties regarding the meaning of Padilla and defense counsel’s duties
where the immigration consequences of his client’s convictions are not clear from the face of
the Act or from case law. The supreme court also disagreed with the appellate court’s
resolution of the issue, which otherwise would have had precedential effect. Accordingly, we
reject defendant’s argument that the Valdez court’s examination of whether the defendant’s
deportation was a certainty necessarily means that a trial court’s admonishments under section
113-8 of the Code are only sufficient to cure prejudice in those instances in which the
deportation consequences of a defendant’s conviction are unclear. We decline to read such a
limitation into Valdez. We also reject defendant’s claim that Padilla supports such an
interpretation of Valdez, where the Padilla court did not resolve the prejudice prong of
Strickland.
¶ 40 Further, as we explained in our original opinion in this case, we find unpersuasive
defendant’s argument that the statutory advisement in this case was inadequate to stem the
prejudice he suffered because it only informed him that he may suffer immigration
consequences rather than being advised that he would suffer those consequences. 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).
¶ 41 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
counsel’s error. Therefore, the trial court did not err in granting the State’s motion to dismiss.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the trial court’s decision.
¶ 44 Affirmed.
- 11 -