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People v. Dominguez

Court of Appeals of Illinois, Second District

October 18, 2016

JOSE A. DOMINGUEZ, Defendant-Appellant.

         Appeal from the Circuit Court of McHenry County Nos. 12-CF-230 13-CF-219 Honorable Sharon L. Prather, Judge, Presiding.

          Burke, Justice concurred in the judgment and opinion. Hutchinson, Justice specially concurred, with opinion.



         ¶ 1 Defendant, Jose A. Dominguez, appeals from the denial of his petition for postconviction relief. He asserted that, prior to his guilty pleas in two cases, counsel had failed to adequately discuss the possible adverse immigration consequences of the pleas and that as a result, under Padilla v. Kentucky, 559 U.S. 356 (2010), counsel was ineffective. Defendant does not challenge the court's ruling that his petition was too late as to the earlier of the two cases. We affirm the petition's denial, holding that, under the branch of the Padilla standard that applies when "the law [was] not succinct and straightforward, " counsel here needed do no more than advise defendant that the pleas might "carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369. We conclude that the record shows that defendant was adequately alerted to the possibility of adverse immigration consequences.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant sought relief from the guilty pleas he entered in two cases, No. 12-CF-230 and No. 13-CF-219. The issues in the appeal arise primarily from the second case, in which a grand jury returned a four-count indictment against defendant.

         ¶ 4 The charges in that second case were one count of armed violence (720 ILCS 5/33A-2(a) (West 2012)) predicated on aggravated battery (720 ILCS 5/12-3.05(c) (West 2012)) (battery causing bodily harm on a public way, the weapon being a baseball bat-a category III weapon); two counts of aggravated battery (720 ILCS 5/12-3.05(a)(1), (c) (West 2012)) (battery causing great bodily harm, battery on a public way); and one count of mob action (720 ILCS 5/25-1(a)(1) (West 2012)) (knowing use of force or violence by two or more persons to inflict injury). The charges related to an incident that occurred on January 26, 2013, in which Patrick R. Heubner was the victim.

         ¶ 5 The first case, No. 12-CF-230, arose from a March 13, 2012, incident in which one person in a group of three threw a rock that went through a car window, striking an occupant of the car. In that incident, defendant was charged with four counts of mob action, one count of criminal damage to property under $300 (720 ILCS 5/21-1(a)(1), (d)(1)(B) (West 2012)), and one count of endangering the life of a child-a passenger in the car (720 ILCS 5/12C-5(a) (West 2012)).

         ¶ 6 Defendant had retained counsel-the same person-in both cases.

         ¶ 7 On December 3, 2012, defendant entered a guilty plea in case No. 12-CF-230 under a fully negotiated agreement; he pled guilty to criminal damage to property, with an agreed sentence of one year's conditional discharge and a fine of $500. Defendant did not receive an admonition of possible immigration consequences in that case.

         ¶ 8 On June 13, 2013, after a conference under Illinois Supreme Court Rule 402 (eff. July 1, 2012), defendant entered a guilty plea in case No. 13-CF-219. The State agreed to dismiss all counts except the first, armed violence. It further agreed not to petition to revoke defendant's conditional discharge. The court told defendant that armed violence was "a Class 2 felony with a sentencing range of three to seven years ***, fines not to exceed $25, 000, and two years mandatory supervised release, " and it further admonished him that there was no agreement about his sentence. According to the factual basis, defendant, while on a public way, struck Heubner with a baseball bat, causing him injury. Again, the court did not admonish defendant of the possibility of immigration consequences of his plea.

         ¶ 9 Defendant's sentencing hearing took place on August 7, 2013. The State presented evidence of defendant's affiliation with the Latin Kings: he wore gang colors, had been photographed making gang signs, and had gang-associated tattoos. The court noted that defendant had "one of the worst past histories that the Court has seen based upon the amount of arrests and contacts." The court imposed two years' intensive probation, 180 days in jail, 200 hours of public-service work, and other conditions.

         ¶ 10 On January 29, 2015, defendant filed a petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). New retained counsel filed the petition for him; the petition largely duplicated an earlier petition for postjudgment relief that his immigration counsel had filed. Defendant stated that he was born in Mexico, but that his parents had brought him to the United States when he was eight months old and he had not been to Mexico since. As a result of his armed-violence conviction, he was facing deportation. He asserted that, because his guilty-plea counsel had failed to advise him that the conviction would likely result in his deportation, counsel's assistance had fallen below the effectiveness standard set out in Padilla.

         ¶ 11 The petition was ambiguous as to which of the two branches of the Padilla standard defendant was claiming applied to guilty-plea counsel. Padilla addresses how the first prong of the ineffective-assistance-of-counsel standard in Strickland v. Washington, 466 U.S. 668 (1984), is applied to a case involving a noncitizen facing deportation as a result of a guilty plea. Under Strickland, a claim of ineffective assistance of counsel must satisfy two prongs. First, counsel's representation must have fallen "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Second, there must have existed "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In Padilla, the Supreme Court held that, to provide effective assistance to a noncitizen defendant, defense counsel must satisfy a limited but positive duty to advise the defendant of the immigration consequences of a guilty plea. The specifics of the duty depend on how clear it is that the conviction will result in deportation. "When the law is not succinct and straightforward *** a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369. However, "when the deportation consequence is truly clear ***, the duty to give correct advice is equally clear." Padilla, 559 U.S. at 369. In Padilla, section 1227(a)(2)(B)(i) of title 8 of the United States Code (8 U.S.C. § 1227(a)(2)(B)(i) (2006)) explicitly made the defendant deportable as a result of his guilty plea, and thus defense counsel had an affirmative duty to correctly advise the defendant of that consequence. Padilla, 559 U.S. at 369-71. Defendant here asserted in his petition that counsel never warned him of the "possible deportation consequences of pleading guilty." Instead, counsel told him that his plea in the armed-violence case would allow him to return home. He further asserted that, "but for his counsel's assurances he would be released after the criminal proceedings ended, [he] would not have pled guilty, " and he "maintain[ed] his innocence to both offenses." He did not elaborate on his claim of innocence or his chances of success. Attached to the petition was a letter to the court from defendant. It stated that he entered the plea because he was told he would be able to go home on intensive probation and that, had he known that the conviction would make him deportable, he would have insisted on going to trial.

         ¶ 12 The State filed a response to the petition, asserting, based on guilty-plea counsel's affidavit, that counsel had spoken to defendant about the deleterious immigration consequences of the conviction. Defense counsel averred that he knew that defendant "had an immigration hold" (elsewhere called an "ICE hold, " because such a hold is implemented at the request of Immigration and Customs Enforcement (ICE)) before the negotiated plea and was aware that there would be possible adverse immigration consequences of the plea. He "advised and warned [defendant] about the potential consequences and possible outcomes of a plea of guilty to *** Armed Violence." Neither the response nor the affidavit specifically detailed what counsel had told defendant.

         ¶ 13 The matter went to an evidentiary hearing. Defendant testified that he was 21 years old and had been in the McHenry County jail for a year and nine months on an ICE hold. He was not a United States citizen but had arrived in the United States when he was eight months old. He had never been outside the United States since his arrival. At some time after his arrest in case No. 13-CF-219 but before his guilty plea, he "talked to a representative of ICE, [who] faxed [him] a paper saying [that he] had an ICE hold." "[His] understanding was [that the hold] had to do with [his] immigration status." The representative also asked him about his "affiliation, " meaning his gang affiliation. He was in custody in the McHenry County jail when his family retained guilty-plea counsel to represent him. In their first meeting, via video link, he and counsel discussed the charges and the ICE hold. Counsel told him "to not worry" about the hold, a discussion that took a few seconds in a conversation lasting about half an hour. Defendant described each meeting that he had had with counsel; no further discussion of immigration consequences took place until counsel spoke to him in a holding cell to tell him that counsel and the State had a possible plea agreement. By his understanding, the terms included intensive probation, finishing his GED, and participating in anger-management classes. At that time, defendant asked what was going to happen with his ICE hold if he entered the plea. Counsel told him "to not worry about it, everything's going to be fine. I would be home." Defendant further testified that he had told counsel that he was innocent but that counsel said that he did not believe him. No more meetings took place before defendant's plea. On cross-examination, he estimated that counsel had told him three times not to worry about the ICE hold.

         ¶ 14 Immediately after defendant's sentencing, his custody was "switched over to" ICE and a deportation hearing was scheduled. Defendant lost at the hearing and was on his "second appeal."

         ¶ 15 At no time did defendant testify that he was unaware that the conviction would make him deportable. Further, he did not testify to the position that he took in his letter to the court: that he entered the plea because he was told he would be able to go home on intensive probation and that, had he known that the conviction would make him deportable, he would have insisted on going to trial.

         ¶ 16 Defendant's immigration attorney testified on his behalf. She said that a conviction of armed violence would make a person "eligible for mandatory deportation." After his conviction, defendant could have waived his right to a hearing and he would have been deported in about six weeks.

         ¶ 17 Guilty-plea counsel testified for the State. He said that, when he had a client in custody and on an ICE hold, he would "try to balance the situation of custody as opposed to facing ICE depending on what the charge is and depending on what the likelihood is of ICE maintaining their hold." Asked, "Do you inform your clients that there could be negative or adverse consequences by entering a plea of guilty[?], " counsel answered, "I certainly try to." Asked if he spoke to defendant about "potential Immigration consequences, " counsel said, "Yes." Asked specifically if he advised defendant that there would be possible adverse immigration consequences of pleading guilty, counsel responded:

"Well, we had-[defendant] was between a rock and a hard place. The offer was for intense probation with time served. The alternative would be to go to trial on a- what would have been a mandatory for him because of his record and because of the gang activities.
And we discussed the probability of winning at trial as opposed to taking the plea. And I advised him that if he took the plea, he would at least be fighting ICE on probation as opposed to a person who is in the Department of Corrections.
He had zero kind of choices. It was not a good situation."

         ¶ 18 Asked, "What specifically did you advise [defendant] on in regards to the adverse possible consequences of Immigration?, " counsel responded, "I'm not sure so much as far as the adverse, but as a positive to pleading guilty and being on probation as opposed to going to trial. And my-My feeling was, as a somewhat experienced defense attorney, that they would have convicted him." Counsel continued to describe what he thought would have happened if defendant had gone to trial, and he expressed hope that immigration reform might come to defendant's aid. Asked if defendant understood what counsel told him, counsel said, "Yes. He's a sharp kid." Asked if he had ever told defendant not to worry about his immigration status, counsel responded: "No, I never said don't worry about it. I said let's ...

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