Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois, Circuit No. 08-CF-2481 The Honorable Richard C. Schoenstedt, Judge, Presiding.
The opinion of the court was delivered by: Justice Lytton
JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Justice McDade dissented, with opinion.
¶ 1 Defendant, Jorge Guzman, was indicted for the offense of aggravated possession of stolen firearms (720 ILCS 5/16-1(a)(1) West 2008) and entered a negotiated guilty plea. On appeal, defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because he was not informed of the potential immigration consequences of his conviction. We reverse and remand.
¶ 2 At the plea hearing, the State provided a factual basis in which it was shown that defendant was in possession of stolen firearms. The trial court then asked defendant, "[I]s that what happened?" Defendant responded, "[N]ot really." The court recessed to allow defendant to talk to counsel. When the hearing continued, the court asked if defendant agreed to the provided factual basis. Defendant said that he did and that he was mistaken in his earlier answer. The court accepted defendant's plea.
¶ 3 The case then proceeded directly to sentencing. Prior to rendering the sentence, the trial court asked defendant if he was a United States citizen, and defendant stated that he was a resident. Specifically, the following discussion took place:
"THE COURT: Is he a U.S. citizen?
DEFENDANT: I'm sorry. I'm a permanent legal resident."
¶ 4 The court sentenced defendant to four years' imprisonment with the recommendation that he be placed in the impact incarceration program.
¶ 5 On March 6, 2009, defendant filed a motion to withdraw his guilty plea. At the hearing, counsel argued that defendant's guilty plea was involuntary because the trial court failed to admonish him under section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2008)) of the legal immigration consequences he faced if he pled guilty:
"MS. TISDALE [defense counsel]: *** [T]he language of 725 ILCS 5/113-A [sic], is that if you are not a citizen of the United state, [sic] you're hereby advised that the -- that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, your Honor. And that admonishment was not given to Mr. Guzman.
I would ask that Mr. Guzman be allowed to withdraw his plea of guilty." The court denied defendant's motion, and this appeal followed.
¶ 6 In the pleadings on appeal, defendant stated that "he is now awaiting deportation pending the outcome of this appeal." In the interest of justice and judicial economy, we ordered defendant to brief us on "the status of any deportation proceedings" involving defendant.
¶ 7 On behalf of defendant, appellate counsel filed a response stating:
"On February 18, 2011, [appellate] counsel spoke to Mr. Guzman's immigration attorney, Ms. Beatriz Sandoval. Ms. Sandoval stated that Mr. Guzman was deported late December 2010."
¶ 8 The response further stated that defendant has family still living in the United States and ...