Modified Upon Denial of Rehearing August 19, 2015
Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois, Circuit No. 12-CF-40 Honorable Marc P. Bernabei, Judge, Presiding.
PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Holdridge dissented, with opinion.
McDADE PRESIDING JUSTICE
¶ 1 Defendant, Josue Valdez, was a noncitizen who pled guilty to burglary predicated upon theft (720 ILCS 5/19-1(a) (West 2012)). He filed a timely motion to withdraw his guilty plea, claiming his counsel provided him ineffective assistance of counsel by failing to advise him that he would be deported as a result of his plea, in violation of the holding in Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court denied the motion, finding that counsel's advice was deficient but that defendant was not prejudiced because the court admonished defendant that his plea may have adverse immigration consequences. Defendant appeals. We conclude that the immigration consequences of defendant's plea were clear and that counsel failed to meet his duty to advise defendant of those consequences. Counsel's deficiencies prejudiced defendant, and that prejudice was not cured by the court's admonishments. Therefore, we vacate the judgment and remand for further proceedings.
¶ 2 FACTS
¶ 3 Defendant-a noncitizen from the Dominican Republic married to a United States citizen-was charged with burglary (720 ILCS 5/19-1(a) (West 2012)) for entering a building with the intent to commit theft after he allegedly took a ring and earrings from a neighbor's unoccupied building. The trial court appointed counsel and an interpreter. At a pretrial hearing, counsel expressed his difficulty explaining to defendant that counsel represented him in his criminal matter only, not in his ongoing divorce. In addition, counsel stated:
"It appears that he is also-an [Immigrations and Customs Enforcement] hold on my client and he may have immigration issues as well, which I also do not represent him on.
So it appears to me that [defendant] has three different and distinct legal problems, and I'm trying to help my client to understand that I'm here on one of those three different legal problems. I don't think it's any secret that I'm not involved in the divorce in this matter. I don't represent him on immigration issues, other than to advise him-
THE COURT: Of a conviction.
The court granted a recess for counsel to speak with defendant.
¶ 4 When the pretrial hearing came back on the record, the parties announced that they had reached a plea agreement, under which defendant would plead guilty to burglary-a Class 2 felony-and receive a sentence of four months in the county jail, followed by three years' probation. The court admonished defendant about the charge and potential penalties in accordance with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012).
¶ 5 The court further admonished defendant in accordance with section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-8 (West 2012)):
"THE COURT: If you were not a citizen of the United States, you are hereby advised that a conviction of the offense for which you have been charged, the burglary charge, may have 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: Yes.
THE COURT: Are you completely satisfied with the way that [defense counsel] has represented you?
THE DEFENDANT: Yes.
THE COURT: Do you have any complaints to make about his work in this case?
THE DEFENDANT: No. Everything has been fine."
¶ 6 The State presented a factual basis, stating that, if the cause were to proceed to trial, the State would provide evidence that Keith Peterson discovered that his class ring and a pair of his wife's earrings were missing from their house, which had sat uninhabited for a month. Further evidence would show that defendant was in possession of the ring and earrings and that defendant admitted to entering the Petersons' building and taking the property.
¶ 7 When the court asked defendant whether anyone was forcing him to plead guilty, defendant responded:
" THE DEFENDANT: They used it against me, yes. They used it against me because they threatened me with deportation.
THE COURT: Who did?
THE DEFENDANT: The-my wife's dad and grandpa. And he pushed my wife so that she would do the same.
THE COURT: Okay. I can't accept the guilty plea if you're being forced to do it. I can only accept a guilty plea if you want to do it.
THE DEFENDANT: I have to accept it.
THE COURT: Okay.
THE DEFENDANT: Because I don't have any possibility of winning the case since my wife is being forced here and her father to do certain things. She is the one who took me to that property to see some animals.
THE COURT: How are they making you plead guilty instead of pleading not guilty and having a trial?
THE DEFENDANT: Because you're telling me I have to-they're going to deport me to ...