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People v. Pequeno

March 21, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCO A. PEQUENO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. Nos. 95-CF-927, 95-CF-1529, 96-CF-2143 Honorable Grant S. Wegner, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

Released for publication March 24, 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCO A. PEQUENO, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Kane County. Nos. 95-CF-927, 95-CF-1529, 96-CF-2143 Honorable Grant S. Wegner, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

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Following plea negotiations, defendant, Marco A. Pequeno, pleaded guilty to unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 1994)), aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1) (West 1994)), and domestic battery (720 ILCS 5/12--3.2(a) (2) (West 1996)). The trial court entered judgments of conviction and sentenced defendant to 30 months' probation. Defendant was deported as a result of the convictions. Thereafter, defendant filed a post-conviction petition to set aside his guilty pleas on grounds that his pleas were involuntary. Specifically, defendant alleged that his counsel was ineffective for failing to properly advise him that he would be deported as a result of his convictions. Defendant also alleged that the trial court erred in failing to admonish him that his guilty pleas could result in deportation. The circuit court denied the petition following an evidentiary hearing. It is from the order denying his post-conviction petition that defendant now appeals to this court. We affirm.

BACKGROUND

Defendant was born in Mexico and had resided in the United States as a lawful alien since 1970, when he was 11 years old. In 1995 and 1996, defendant was indicted for numerous offenses. In 1996, defendant entered into an agreement with the Kane County State's Attorney's office to work as an informant for the Aurora police department in the investigation and prosecution of narcotics cases. Defendant worked in this capacity for close to two years. In exchange for his cooperation, the State agreed to dismiss numerous charges, and defendant was to receive probation for the current offenses. Prior to the entry of his pleas, the trial court advised defendant of the consequences of his pleas in accordance with the requirements of Supreme Court Rule 402 (177 Ill. 2d R. 402). The trial court did not advise defendant that pleading guilty could result in deportation. On the "plea of guilty" form, next to an unmarked box is a statement that defendant understands that his plea of guilty could result in deportation if he is not a United States citizen. Defendant did not thereafter appeal his convictions or file a motion to withdraw his guilty pleas.

On January 31, 2000, defendant, pro se, filed a petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2000)), alleging that his counsel, Eduardo Gil, rendered ineffective assistance. In the petition, defendant asked to have his guilty pleas set aside, alleging that, because he had been denied the effective assistance of counsel, the pleas were involuntary. Defendant claimed that he would not have pleaded guilty had his attorney properly advised him of the immigration consequence of his guilty pleas. Defendant attached an affidavit stating the following:

"My attorney was aware of my immigration status in this country. I know this because I told him I was a non-citizen. I asked him if accepting the plea agreement would affect my immigration status. His response was that he did not know as he was not an immigration lawyer, and that I would have to check with one as he was a criminal defense attorney only. At no time did he tell me that my pleas of guilty to the charges would result in my automatic deportation."

On December 22, 2000, defendant, now through appointed counsel, filed an amended petition for post-conviction relief, in which he claimed that his counsel not only failed to advise him that he would be deported as a result of the convictions, but that counsel specifically advised defendant that he did not think the convictions would have any effect on defendant's immigration status.

The matter proceeded to an evidentiary hearing on June 27, 2001. Defendant testified that in March 1997 he spoke with attorney Gil about what effect his guilty pleas would have on his immigration status. Gil advised defendant that he did not know and that defendant would have to speak with an immigration attorney. Defendant stated that, prior to signing the guilty plea form, Gil advised defendant of the penal consequences of his guilty pleas and that he had to register as a sex offender. Gil also told defendant that, if he stayed out of trouble, he could go on with his life. According to defendant, when he asked Gil if he was sure, Gil responded, "I don't think that you are going to have any immigration problems with it." Defendant could recall only these two conversations concerning immigration. Defendant conceded that he never consulted with an immigration attorney and that Gil never actually told defendant that he would not be deported; he told defendant only that he did not think defendant would be deported.

Defendant further testified that he never saw an immigration lawyer because he "was more concerned with cooperating with the authorities and living up to the terms of [his] agreement." Defendant stated that he was not guilty of aggravated criminal sexual abuse and that he pleaded guilty to that charge only because he was facing the possibility of being sentenced to a significant amount of time in jail on all of the charges. He had no idea that pleading guilty to this offense would result in his deportation. Defendant ...


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