Appeal from the Circuit Court of Cook County. No. 98 MC 1 340611 Honorable Daniel Lynch, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
The defendant, Brahim Bouzidi, appeals from the granting of the State's motion to dismiss his petition for post-conviction relief. We affirm the decision of the circuit court.
On September 3, 1999, the defendant, who was represented by counsel, filed a petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). In his petition, the defendant alleged that he had been convicted of domestic battery and of violating an order of protection, based upon his plea of guilty to those charges, for which he had been sentenced to concurrent periods of conditional discharge, subject to several conditions. He further alleged that he was denied his constitutional right to the effective assistance of counsel because his attorney failed to advise him that a guilty plea would have an adverse effect on his immigration status.
In his affidavit in support of his petition, the defendant averred as follows:
Following his arrest for domestic battery, the defendant had retained attorney Frank Davenport to represent him. The defendant specifically informed Mr. Davenport that the defendant was:
"in the process of applying to the Immigration and Naturalization Service (INS) for his 'green card';
he arrived in the United States in approximately 1993;
his wife was born in the United States;
his INS 'green card' application was based on his marriage; it might 'be bad' for his INS application if he lost the criminal case, but he did not know exactly what effect the criminal case would have on his immigration status and/or his pending application for immigration benefits."
Despite this information, Mr. Davenport never questioned the defendant regarding his immigration status or requested any immigration documentation from the defendant. Mr. Davenport did not give the defendant any advice regarding his immigration status or about the effect a guilty plea would have on his immigration status or application for immigration benefits.
After appearing with the defendant on the first court date, Mr. Davenport advised the defendant that his case was being transferred to attorney Terry D. Slaw. However, the defendant was unable to keep his scheduled appointment with Mr. Slaw on January 4, 1999, because of his arrest for violating the order of protection.
On January 5, 1999, the defendant's next court date, Mr. Slaw met with the defendant, who was in custody. Mr. Slaw did not discuss the defendant's immigration status or give the defendant any immigration advice. *fn1 On that date, the defendant entered a plea of guilty to domestic battery and to ...