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.
Justice Holdridge specially concurred, with opinion. Justice McDade dissented, with opinion.
LYTTON, PRESIDING JUSTICE
¶ 1 Defendant Jorge Guzman was indicted for the offense of aggravated possession of stolen firearms (720 ILCS 5/16-16.1(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 by the trial court or trial counsel of potential immigration consequences of his conviction (No. 3-09-0464). He also appeals from the dismissal of his postconviction petition, claiming that we should remand for further proceedings because postconviction counsel failed to include allegations that defendant would not have pled guilty if he had been properly informed of the immigration consequences (No. 3-10-0802). We reverse the order denying defendant's motion to withdraw his plea and remand for further proceedings in appeal No. 3-09-0464. We dismiss appeal No. 3-10-0802.
¶ 2 BACKGROUND
¶ 3 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.
¶ 4 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: Yes, sir.
THE COURT: You are?
DEFENDANT: I'm sorry. I'm a permanent legal resident."
¶ 5 The court sentenced defendant to four years' imprisonment with the recommendation that he be placed in the impact incarceration program.
¶ 6 On March 6, 2009, defendant filed a motion to withdraw his guilty plea. The written motion contained no arguments in support of his request. 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.
Your Honor, it's your Honor's discretion as to whether he should be allowed to withdraw his plea of guilty or not. And seeing as though both of the cases that have been presented to your Honor, it isn't clear as to what the interpretation of that statute actually is. One case thinks it's instructionary, and another case thinks it's mandatory.
I would ask that Mr. Guzman be allowed to withdraw his plea of guilty." The court denied defendant's motion after finding that the admonishments were directory, not mandatory. Defendant filed a notice of appeal from that order on June 11, 2009 (No. 3-09-0464).
¶ 7 On appeal, defendant argued that the trial court erred in failing to inform him of the possible immigration consequences of his guilty plea under section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2008)) and that trial counsel was ineffective for the failing to inform him of those same consequences. On December 20, 2011, we reversed the trial court's decision as to the constitutional argument and found that trial court's failure to inform defendant as to the immigration consequences of his plea rendered his plea involuntary in light of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010). People v. Guzman, 2011 IL App (3d) 090464 (withdrawn Nov. 27, 2012).
¶ 8 Meanwhile, on July 12, 2010, defendant, through private counsel, filed a petition to vacate the judgment of conviction pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2010)). The petition alleged that neither the trial court nor trial counsel advised defendant as to the potential deportation consequences of his plea and that removal proceedings against defendant had been initiated as a result of his plea. The petition further alleged that an attorney's failure to advise a client of the immigration consequences of a guilty plea constituted ineffective assistance of counsel.
¶ 9 The trial court dismissed the petition, noting that claims of ineffective assistance of counsel are not cognizable in section 2-1401 petitions. The court granted counsel leave to file a postconviction petition.
¶ 10 That same day, counsel filed a petition for postconviction relief alleging that (1) neither the trial court nor trial counsel informed defendant of the immigration consequences of his plea, (2) removal proceedings against defendant had begun as a result of the plea, (3) trial counsel's failure to advise defendant of the immigration consequences constituted ineffective assistance, and (4) defendant therefore did not enter his plea knowingly or voluntarily. The State filed a motion to dismiss claiming, among other things, that the petition lacked the necessary evidentiary affidavits in support of defendant's claims.
¶ 11 At the postconviction hearing, defense counsel presented the court with an affidavit from defendant stating that the statements in the petition were true and accurate and that neither the trial court nor defendant's attorney advised defendant that he might be deported if he pled guilty to the felony charge.
¶ 12 On October 7, 2010, the court denied the petition, finding that there was no evidence in the record that defendant would have gone to trial had he been informed of the potential immigration consequences of his plea. Defendant filed a notice of appeal from that order on October 8, 2010 (No. 3-10-0802).
¶ 13 On March 28, 2012, the Illinois Supreme Court allowed the State's petition for leave to appeal in case No. 3-09-0464. After receiving briefs from both parties, the supreme court remanded the case to us and directed us to consider whether the trial court's failure to admonish defendant pursuant to section 113-8 of the Code also should result in the defendant being allowed to withdraw his guilty plea. People v. Guzman, No. 113730 (Oct. 12, 2012). In its supervisory order, the supreme court stated that "[t]he appellate court may, in its discretion, choose to consolidate this appeal on remand with the defendant's appeal of the dismissal of [his] postconviction petition, currently pending in the Appellate Court as People v. Guzman, No. 3-10–802." On the supreme court's advice, we consolidated appeal Nos. 3-09-0464 and 3-10-0802 and set a schedule for supplemental briefing by the parties. We also entered a minute order withdrawing our original opinion.
¶ 14 On appeal from case No. 3-09-0464, defendant now contends that (1) his motion to withdraw his guilty plea should have been granted because the trial court failed to admonish him of the possible immigration consequences of his guilty plea pursuant to section 113-8 of the Code, and (2) his motion to withdraw should have been granted because trial counsel failed to inform him of the potential effect of his conviction, as required under Padilla, 559 U.S. 356, 130 S.Ct. 1473. On appeal from case No. 3-10-0802, defendant argues that postconviction counsel's assistance was unreasonable because counsel failed to submit an appropriate affidavit from defendant, never argued that there was a viable defense, failed to move to file a successive petition, and failed to withdraw the notice of appeal filed on October 8, 2010, before submitting additional evidence.
¶ 15 APPEAL NO. 3-09-0464
¶ 16 I. Failure to Admonish Under Section 113-8
¶ 17 A. Involuntary Guilty Plea
¶ 18 Defendant first argues that the trial court's failure to advise him in accordance with section 113-8 of the Code, concerning the potential effect of a guilty plea and conviction, renders his guilty plea involuntary. A trial court's decision on a motion to withdraw a guilty plea is reviewed under ...