Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The State appeals from the judgment of the circuit court of Cook County which granted the petition of Cesar Correa (petitioner) under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.) to vacate his guilty plea to narcotic charges and for a new trial. The trial court granted the petition because it determined that the petitioner's plea had been involuntarily entered as a result of ineffective assistance of counsel when his trial attorney erroneously represented to him that his conviction would not render him subject to deportation from the United States because his wife was a United States citizen. The State's appeal raises two issues: (1) whether the petitioner was entitled to relief under the Act even though his petition was filed after his release from prison on the charges and (2) whether the petitioner's trial attorney's erroneous representation was sufficient grounds to grant the post-conviction petition.
We conclude that the Act permits the relief sought and that the petitioner's trial counsel's erroneous advice constituted ineffective assistance of counsel which rendered his plea involuntary. Accordingly, we affirm the trial court's judgment granting the post-conviction relief sought.
On June 29, 1981, the petitioner, a non-United States citizen, pleaded guilty to three counts of delivery of a controlled substance (cocaine) and was sentenced to three concurrent terms of three years' incarceration in the Illinois State Penitentiary. He was released from prison on August 13, 1982, and shortly thereafter was informed by the United States Immigration and Naturalization Service that deportation proceedings would be instituted against him because of his Illinois drug convictions. On December 27, 1982, he filed a petition under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.), alleging that his guilty plea had not been voluntarily entered because his trial counsel had erroneously informed him that deportation proceedings could not be brought against him if he pleaded guilty to the drug charges.
The State first moved to dismiss the petition on the grounds that the Act permits relief only if the petition is filed while the defendant is imprisoned or serving a term of probation. After a hearing on this issue, the court denied the motion.
At the post-conviction hearing the petitioner's trial counsel, Cyrus Yonan, gave testimony which corroborated petitioner's claim that Yonan had told him a guilty plea could not lead to deportation proceedings. Specifically, Yonan testified that in a conference with his client regarding the propriety of pleading guilty, the petitioner asked what effect this would have on his status as an alien. Yonan initially responded that he "did not know what immigration would do in reference to his status." Yonan added, however, that he had represented "a lot of people who had been aliens, and none of them had been deported." The petitioner then told Yonan that his wife was a United States citizen. Yonan related that, "I then said to him, if your wife is an American citizen, then the plea of guilty would not affect your status. You probably would be picking up her status as an American citizen. And I felt at that time in point his position in the United States would not be jeopardized."
On cross-examination, Yonan maintained that he had so informed the petitioner:
"Q. Did you tell him definitively he wouldn't be deported?
A. I said don't worry about it. Nothing to worry about.
Q. Did you check the law?
Q. You said before you didn't know much about immigration?
A. When he told me his wife was an American citizen, I felt on that basis it ...