Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. Circuit No. 09-CF-1097. Honorable F. Michael Meersman, Judge Presiding.
Reversed and remanded.
The denial of defendant's postconviction petition alleging that her counsel failed to advise her that she would be deported if she was convicted of unlawful possession with intent to deliver more than 2,000 grams but less than 5,000 grams of cannabis was reversed and remanded for further proceedings, regardless of the fact that the trial court provided admonishments about the possibility of deportation, since her counsel's erroneous advice prejudiced her where she pled guilty and was sentenced to a short term, but was deported shortly after her release from jail.
Santiago A. Durango (argued), of State Appellate Defender's Office, of Ottawa, for appellant.
John L. McGehee, State's Attorney, of Rock Island (Justin A. Nicolosi (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justice O'Brien concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.
[¶1] Defendant Jovita Guzman-Ruiz appeals from the denial of her petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq . (West 2008)) following a third-stage evidentiary hearing after the trial court found she was not prejudiced by counsel's failure to inform her that deportation was likely following a guilty plea admitting she unlawfully possessed of several pounds of cannabis. We reverse and remand the matter for further proceedings.
[¶3] On December 15, 2009, the State charged defendant by information with one count of unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2008)), a Class 1 felony. Count II alleged the offense of unlawful possession with intent to deliver more than 2,000 grams but not more than 5,000 grams of cannabis (720 ILCS 550/5(f) (West 2008)), also a Class 1 felony. On June 8, 2010, defendant entered into a fully negotiated guilty plea by pleading guilty to count II as charged for the unlawful possession of more than 2,000 grams but not more than 5,000 grams of cannabis with intent to deliver.
[¶4] The factual basis provided by the State to the court established that on December 14, 2009, defendant signed for, and accepted, a package addressed to Oscar Guzman, at her residence. Defendant did not open the package or examine the contents, but immediately placed the unopened package under a blanket in her garage. Upon execution of a search warrant, police discovered the hidden package in the garage and found it to contain 10 pounds of cannabis. After being informed of her Miranda rights, defendant admitted her cousin Oscar paid her $200 to accept his packages and then contact Oscar to pick up the packages from her home. According to the factual basis, defendant knew Oscar distributed cannabis. The trial court then accepted defendant's guilty plea, entered judgment on count 2, and dismissed count 1.
[¶5] The court informed defendant, that pursuant to her plea of guilty to count 2, she was sentenced to 180 days of incarceration and 30 months of probation. After admonishing defendant regarding her right to appeal, the following discussion took place:
" THE COURT: Now, I didn't ask her before, but I probably should have. Is she a -- Is she a United States citizen?
THE DEFENDANT: No.
THE INTERPRETER: No.
THE COURT: Okay. Then there's one last thing I have to admonish you of. Because you are not a citizen, you need to understand that with this plea you've entered you may be subject to the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization under the laws of the United States.
Do you understand that?
(The defendant replies in Spanish.)
They haven't placed a hold on you. They haven't arrested you for ICE so chances are, if they haven't already, they're not going to. But, technically, obviously they can always pick you up and deport you solely on the basis of this conviction because you were not a naturalized citizen.
Okay. Does she have any questions?
(An off-the-record discussion ...