Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit Nos. 09-CF-23 and 09-CF-675. Honorable Edward A. Burmila, Jr., Judge, Presiding.
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion.
[¶1] The defendant, Jose O. Deltoro, filed a petition for postconviction relief in which he claims that his trial counsel was ineffective and the trial court erred in failing to advise him of potential immigration consequences of his guilty plea. The petition was summarily dismissed, and the defendant appeals. We reverse and remand for second-stage proceedings.
[¶3] On September 10, 2010, the defendant entered negotiated guilty pleas to two counts of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)), charged in separate cases under separate indictments, in exchange for two consecutive four-year terms of incarceration with two years' mandatory supervised release (MSR) on each sentence. The record indicates that the defendant was to be released from the Department of Corrections on MSR to federal immigration authorities on January 17, 2013.
[¶4] On March 25, 2013, the defendant filed a postconviction petition in both of his criminal cases, alleging that both plea counsel and the trial court failed to advise him of potential immigration consequences of his guilty plea. The petition alleged the following facts.
[¶5] The defendant was a legal permanent resident of the United States. The defendant was not advised by plea counsel that he could lose his status as a legal permanent resident and be deported from the United States as a consequence to pleading guilty to possession of a controlled substance with intent to deliver.
[¶6] The defendant would not have pled guilty if plea counsel had fully advised him as to the potential immigration consequences. It would have been rational for the defendant to reject the plea deal because he had been legally living in the United States for over 35 years, all of his family and friends resided in the United States, and he no longer had any ties to Mexico, the country of his birth. The defendant further alleged that he was not guilty of the offenses with which he was charged and that he disputed the version of events read into the record during his plea, but he accepted the plea bargain--which carried a relatively short prison sentence--so that he could rejoin his friends and family in the United States as soon as possible. Narcotics offenses involving the intent to deliver almost always lead to deportation.
[¶7] The trial court also failed to admonish the defendant of potential immigration consequences in violation of section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2008)). The defendant would not have pled guilty
if he had been admonished of the potential immigration consequences of his plea. Thus, his guilty pleas were not knowingly and intelligently ...