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People v. Unzueta

Court of Appeals of Illinois, First District, Fourth Division

March 16, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ADRIAN UNZUETA, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 10 CR 6039 Honorable Larry G. Axelrood, Judge Presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. [*] Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.

          OPINION

          BURKE JUSTICE

         ¶ 1 Defendant Adrian Unzueta appealed from an order of the circuit court of Cook County, granting the State's motion to dismiss his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contended that he made a substantial showing of a claim of ineffective assistance of counsel based on counsel's failure to advise him of the deportation consequences of his guilty plea. In November 2015, our court affirmed the trial court's judgment, finding defendant failed to make a substantial showing of a constitutional violation where he failed to demonstrate that he was prejudiced by counsel's performance. People v. Unzueta, 2015 IL App (1st) 131306, ¶¶ 31, 33.

         ¶ 2 Defendant filed a petition for leave to appeal with the Illinois Supreme Court. In November 2016, the supreme court denied defendant's petition but also entered a supervisory order directing us to vacate our judgment and consider the effect of its decision in People v. Valdez, 2016 IL 119860, "on the issue of whether defendant made a substantial showing of a claim of ineffective assistance of counsel based on counsel's failure to advise him of the deportation consequences of his guilty plea, and determine if a different result is warranted."

         ¶ 3 In accordance with the supreme court's directive, we vacated our earlier judgment. After reconsidering this case in light of Valdez, we determine that a different result is not warranted. Accordingly, we affirm.

         ¶ 4 I. BACKGROUND

         ¶ 5 The record shows that defendant was charged with burglary and the possession of burglary tools in connection with an incident that occurred on March 16, 2010.

         ¶ 6 On July 6, 2010, following an Illinois Supreme Court Rule 402 (eff. July 1, 1997) conference, defendant pled guilty to burglary and was sentenced to three years' imprisonment, along with a two-year term of mandatory supervised release (MSR). During the plea hearing, the trial court admonished defendant, in pertinent part:

"THE COURT: If you are not a citizen of the United States, you are hereby advised a conviction for the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States. Do you understand that?
DEFENDANT: Yes."

         The parties then stipulated to the following factual basis:

"If this case were to go to trial, the evidence would show that on March 16, 2010, the defendant went into the premises of 2851 North Luna in Chicago, Illinois, which was a residence that was in foreclosure. Witnesses heard noise, even banging coming from there. They noticed the lockbox key was empty and there was no key in it anymore. They called police. The police had arrived, found defendant inside the premises. There was copper piping that was bundled up ready to be removed, and there were holes in the walls where the copper piping had been removed. The defendant admitted his participation in this burglary. He did not have authority to enter or remain in the premises or remove anything from the premises."

         ¶ 7 Defendant did not move to withdraw his guilty plea or file a direct appeal, but on February 24, 2012, through private counsel, he filed a "Post-Conviction and 2-1401 Petition Filed Pursuant to Padilla v. Kentucky, " in which he alleged that his plea counsel was ineffective for failing to inform him of the deportation consequences of his guilty plea. Therein, he asserted, inter alia, that (1) he was intoxicated at the time of his arrest; (2) prior to pleading guilty in this case he had lived in the United States for 30 years and was a lawful permanent resident; (3) his daughter, as well as his entire extended family, reside in the United States; (4) his guilty plea in this case caused United States Immigration and Customs Enforcement (ICE) officials to initiate mandatory deportation proceedings against him and he is presently being held in the custody of ICE; and (5) at no time did plea counsel tell him that if he pled guilty to burglary that his lawful permanent residency would be revoked and he would be mandatorily deported from the United States.

         ¶ 8 In his petition, defendant further alleged that if he had been correctly advised regarding the deportation consequences of his plea, he would not have pled guilty and would have either elected to proceed to trial or attempted to secure a plea bargain to the lesser charge of trespass, which does not require mandatory deportation. In an affidavit in support of that petition, defendant averred that "no defense counsel ever advised me that my plea of guilty in this case would result in mandatory deportation for me. Had I been so advised, I definitely would not have pleaded guilty. I definitely would have elected to plead not guilty and go to trial."

         ¶ 9 Defendant's postconviction petition advanced to the second stage, and the State filed a motion to dismiss the petition. Following a hearing held on that motion, the circuit court granted the State's motion to dismiss. In doing so, the court stated, inter alia, that based on the facts and circumstances of this case, defendant's decision to plead guilty was rational.

         ¶ 10 This appeal followed.

         ¶ 11 II. ANALYSIS

         ¶ 12 On appeal, defendant challenges the propriety of the circuit court's dismissal. Defendant contends that he made a substantial showing that his plea counsel provided ineffective assistance by failing to advise him that his guilty plea to a charge of burglary would lead to mandatory deportation proceedings and that he suffered prejudice as a result. The State maintains that defendant has failed to make a substantial showing that he suffered prejudice due to counsel's failure to so advise him.

         ¶ 13 At the second stage of postconviction proceedings, defendant bears the burden of making a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill.2d 458, 473 (2006). A petition may be dismissed at this stage only where the allegations contained in the petition, liberally construed in light of the trial record, fail to make such a showing. People v. Hall, 217 Ill.2d 324, 334 (2005). In making that determination, all well-pleaded facts in the petition and affidavits are taken as true; however, nonfactual assertions that amount to conclusions are ...


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