Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
In this appeal defendant asks this court to review the issue of whether he was denied the effective assistance of counsel, thereby rendering his guilty pleas involuntary, when counsel either erroneously advised him that his guilty pleas would not subject him to deportation or failed to advise him of the deportation consequences of his guilty pleas. The circuit court held that counsel need not advise a defendant of such a consequence. For reasons which follow, we reverse and remand.
Defendant, arrested on February 7, 1983, was subsequently indicted on three counts for delivery of a controlled substance to a government agent. (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1401(a), 1401(b)(2), 1401(c).) He was charged with having delivered 996.4 grams of heroin, 22.4 grams of cocaine, and 9.7 grams of cocaine on three separate occasions. Plea negotiations ensued in which defense trial counsel Salvatore Marzullo participated. On June 20, 1984, defendant pleaded guilty to the three counts before Judge Roger J. Kiley. The court admonished defendant about rights being waived, accepted his guilty pleas, and entered judgment on each conviction. Defendant told the court that his attorney had not said or done anything to influence his decision. After hearing argument in mitigation, the court sentenced defendant to concurrent terms of eight years on two of the counts and seven years on the remaining count. Defendant neither appealed his conviction nor filed a motion to vacate judgment and withdraw his guilty plea.
On March 5, 1985, the United States Immigration and Naturalization Service (INS) served defendant with a show cause and notice of hearing order concerning deportation. Defendant could be deported for drug law violations under provisions of the United States Code (8 U.S.C. § 1251(a)(11) (1982)). The order stated defendant had entered this country as an immigrant on January 13, 1983. Actually, defendant, a Mexican citizen, first entered the country illegally in 1975 by his own admission. He claimed a work permit at that time and obtained a valid green card in 1982 or 1983.
On April 22, 1985, defendant filed a pro se post-conviction relief petition (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) alleging denial of his right to the effective assistance of counsel because trial counsel informed him he could not be deported if he pleaded guilty and also failed to investigate defendant's claim of entrapment. Defendant attached his affidavit to the petition in which he asserted that trial counsel informed him his nine years' residency and his valid green card would prevent his deportation.
A supplemental petition was filed on December 3, 1985, prepared with the help of counsel and asserting failure to explain the deportation consequences of the guilty pleas, which constituted ineffective assistance. Another affidavit of defendant was attached. The State moved to dismiss both petitions alleging that no constitutional issues were raised. Evidentiary hearings were held on December 10, 1985, and January 28, 1986, at which the defense trial attorney and defendant testified.
Marzullo, testifying as a State witness, asserted that the subject of immigration never was raised in any of his 15 discussions with defendant and denied telling defendant that guilty pleas would not subject him to deportation because he had resided in the country for nine years and held a valid green card. Marzullo knew defendant was an alien from the start, knew defendant held a valid green card, and knew aliens could be deported for drug offenses. Marzullo himself never raised the subject of deportation. On the day of sentencing Marzullo merely informed defendant the judge would give him eight years if he pleaded guilty. Marzullo also testified he was unaware of the Correa case (People v. Correa (1984), 124 Ill. App.3d 668, 465 N.E.2d 507, aff'd (1985), 108 Ill.2d 541, 485 N.E.2d 307) on the date of the guilty plea. The plea came on June 20, 1984; the appellate decision in Correa was filed on May 3, 1984. Marzullo contended that, rather than worrying about immigration consequences, his client "was more concerned about how much time he was going to get. It would have been easy for him to go back to Mexico."
Defendant testified that he twice specifically raised the deportation question with trial counsel. The first time was on June 20, 1984, before pleading guilty, when Marzullo told him the State's Attorney agreed to an eight-year sentence but Marzullo would ask the judge for only six years. Defendant then asked Marzullo if he would be deported. Defendant testified this conversation took place in the bullpen right outside the court but other inmates could not hear because they talked quietly. Marzullo assured him that since he was married to an American citizen, had a green card, and had been in the United States for six years he could not be deported. Defendant stated he had also asked Marzullo about deportation while Judge R. Eugene Pincham still had charge of the case and was told by counsel not to worry about immigration. At that time Marzullo assured defendant he would be out of jail in 1 1/2 to 2 years and would not be deported. Defendant explained that he feared deportation because he did not want to leave his wife, who was an American citizen he married on November 18, 1981.
Defendant admitted he knew he could not break the law and he had been advised when he received his green card not to violate American laws. Defendant also admitted he had said nothing to Judge Kiley about his deportation fears, but insisted that had he known his guilty plea meant deportation, he would have taken the risk of going to trial. Defendant blamed his lawyer for failing to tell him that pleading guilty meant possible deportation. Finally, defendant stated he was satisfied being in jail until he received the immigration papers, which caused him to file his petition for post-conviction relief.
On March 25, 1986, Judge Francis J. Mahon denied the petition asserting, "I don't think that a lawyer has to advise the client of every consequence of his plea of guilty." Defendant appeals.
Defendant contends he was denied the effective assistance of counsel, making his guilty plea involuntary, either by trial counsel erroneously advising him that deportation could not result from his guilty pleas or by trial counsel failing to point out the deportation consequences of the guilty pleas, relying on People v. Correa (1985), 108 Ill.2d 541, 485 N.E.2d 307, and authorities cited therein. The State asserts that Marzullo's testimony demonstrates no misrepresentations were made to defendant concerning deportation and that case law does not require a finding of ineffective assistance of counsel for failing to volunteer information about deportation.
• 1, 2 A guilty plea is valid when made as a voluntary and intelligent choice by defendant. (Hill v. Lockhart (1985), 474 U.S. 52, 54, 88 L.Ed.2d 203, 208, 106 S.Ct. 366, 369; Brady v. United States (1970), 397 U.S. 742, 755-57, 25 L.Ed.2d 747, 760-61, 90 S.Ct. 1463, 1472-73.) When defendant enters a guilty plea after representation by counsel, the voluntariness of the plea reflects whether counsel's advice was within the expected range of competence of attorneys practicing criminal law. (Hill v. Lockhart (1985), 474 U.S. 52, 56, 88 L.Ed.2d 203, 208, 106 S.Ct. 366, 369; McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L.Ed.2d 763, 773, 90 S.Ct. 1441, 1449.) The Supreme Court applies the two-prong test of ineffectiveness of counsel provided by Strickland v. Washington (1984), 466 U.S. 668, 690, 694, 80 L.Ed.2d 674, 695, 698, 104 S.Ct. 2052, 2066, 2068, that there is a reasonable probability that but for counsel's unprofessional conduct, the result would have been different, with the difference that the prejudice prong is satisfied by showing a reasonable probability that but for counsel's errors, defendant would not have pleaded guilty. Hill v. Lockhart (1985), 474 U.S. 52, 57, 88 L.Ed.2d 203, 210, 106 S.Ct. 366, 370.
• 3 A defendant's guilty plea is rendered involuntary due to ineffective assistance of counsel when misrepresentations by counsel concerning deportation influenced defendant to plead guilty. (People v. Correa (1985), 108 Ill.2d 541, 553, 485 N.E.2d 307.) In Correa defendant pleaded guilty to three counts of delivery of a controlled substance. (108 Ill.2d 541, 544, 485 N.E.2d 307.) Unlike the case at bar, trial counsel there admitted at a post-conviction hearing that defendant had raised the question of his immigration status before pleading guilty and the attorney told him not to worry since his wife was an American citizen. (108 Ill.2d 541, 547-48, 485 N.E.2d 307.) The court concluded that deportation constituted a "drastic consequence" (108 Ill.2d 541, 550, 485 N.E.2d 307) and that defendant's reasonable reliance on erroneous advice below the range of competence expected of criminal law counsel justified finding ineffective assistance and an involuntary guilty plea. (108 Ill.2d 541, 549-53, 485 N.E.2d 307.) Defendant in Correa asserted he first learned his conviction justified deportation when the INS took him into custody. (108 Ill.2d 541, 544, 485 N.E.2d 307.) Although the Correa court stated it was unnecessary to consider the merely passive conduct of counsel in failing to raise deportation consequences of a guilty plea, it cited three cases from other jurisdictions that found such passivity questionable. (108 Ill.2d 541, 551, 485 N.E.2d 307, citing Commonwealth v. Wellington (1982), 305 Pa. Super. 24, 451 A.2d 223; People v. Wiedersperg ...