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People v. Hoare

Court of Appeals of Illinois, Second District

January 17, 2018

ARTHUR G. HOARE, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County, No. 12-CF-3735 Honorable Daniel B. Shanes, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Spence concurred in the judgment and opinion.



         ¶ 1 Defendant, Arthur G. Hoare, appeals the summary dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He contends that the petition stated the gist of a meritorious claim that his trial counsel was ineffective for failing to advise him that, by pleading guilty to a drug-possession felony and accepting a sentence of first-offender probation, he would necessarily be subject to deportation. We reverse and remand.

         ¶ 2 Defendant entered a negotiated guilty plea to unlawful possession of cocaine (720 ILCS 570/402(c) (West 2012)) and was sentenced to 24 months' first-offender probation (720 ILCS 570/410(a) (West 2012)). Under "410 probation, " the court does not enter a judgment of conviction (id.) and further proceedings are delayed until the defendant completes his probation (720 ILCS 570/410(b) (West 2012)). If the defendant violates his probation, the trial court may enter a judgment on the original finding of guilt and proceed accordingly. 720 ILCS 570/410(e) (West 2012). If the defendant completes his probation successfully, he is discharged, the charges are dismissed (720 ILCS 570/410(f) (West 2012)), and the disposition is not considered a criminal conviction under Illinois law (720 ILCS 570/410(g) (West 2012)).

         ¶ 3 On June 10, 2013, the parties presented the plea agreement. The trial court noted that defendant was also pleading guilty to driving with a revoked license and would pay costs for that offense. The proceedings continued:

"THE COURT: For all of these, though, do you understand that for the drug case, this 410 probation as we're calling it, is a special kind of probation. A conviction is not being entered for Illinois law purposes today. If you successfully complete the probation, then there won't be a conviction for that. There will be on the traffic offense.
But regardless, these dispositions could result in the federal government trying to remove or deport you from the United States or prevent you from obtaining naturalized United States citizenship.
Nobody here, not the lawyers, not me, nobody, can make you any promises or representations as to what the federal government might do. Do you understand that? THE DEFENDANT: Yes, sir.
THE COURT: Mr. Grimes [(defendant's attorney)], have you and your client had an opportunity to look into the immigration consequences?
MR. GRIMES: Yes, Judge. We believe that this is an appropriate disposition taking that into account.
THE COURT: Okay. And you had a chance to speak with immigration?
MR. GRIMES: An attorney.
THE COURT: You spoke to an immigration attorney?
THE COURT: Okay. Is that correct, sir?

         ¶ 4 The court then heard the following factual basis for the plea. Officers would testify that they stopped defendant for driving with a revoked license. At the police station, he removed his hat; a white rock-like substance fell out. At a police crime laboratory, the substance tested positive for cocaine and weighed 0.88 grams. Defendant stipulated to the factual basis, which the court accepted. The court then admonished defendant of his appeal rights.

         ¶ 5 Defendant did not file a postjudgment motion or a direct appeal. On September 28, 2015, the trial court found that defendant had admitted to violating his probation. It extended his probation for 12 months and ordered him to serve 6 months' periodic imprisonment.

         ¶ 6 On March 17, 2016, defendant, through counsel, filed his petition under the Act. The petition alleged as follows. At all relevant times, defendant had been a citizen of Belize but not of the United States. On February 5, 2015, the Immigration and Naturalization Service (INS) notified him that he was charged with being subject to deportation under section 1227 (a)(2)(B)(i) of the Immigration and Nationality Act (Immigration Act) (8 U.S.C. § 1227(a)(2)(B)(i) (2012)), based on his guilty plea in this case. Section 1227(a)(2)(B)(i) states, "Any alien who at any time after admission has been convicted of a violation of *** any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ***, other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." Id. Under section 1101(a)(48)(A) of the Immigration Act (8 U.S.C. § 1101(a)(48)(A) (2012)), the plea was a "conviction" of violating a state or federal law relating to a controlled substance (see 21 U.S.C. § 802 (2012) (defining controlled substance)).

         ¶ 7 The petition alleged further that, in the summer of 2015, federal officials ordered defendant deported. On February 18, 2016, an immigration appeals court denied his appeal. However, immigration counsel had advised defendant's attorneys that defendant could reopen the immigration case were his conviction vacated. Defendant was married to a United States citizen and had children born here.

         ¶ 8 The petition claimed that defendant's trial counsel had been ineffective for failing to advise him that his guilty plea and 410 probation would result in his deportation even though there had been no conviction for state-law purposes. The petition argued first that counsel's performance had been objectively deficient. Under Padilla v. Kentucky, 559 U.S. 356 (2010), trial counsel must advise a defendant of the immigration consequences of a possible guilty plea. The obligation is most stringent when the consequences are clear: the attorney may not merely tell the client that there is a risk of adverse immigration results. Here, defendant's guilty plea was clearly a "conviction" under the Immigration Act, which, as pertinent here, defines that term as "a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where *** the alien has entered a plea of guilty *** and *** the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." 8 U.S.C. ยง 1101(a)(48)(A) (2012). Moreover, the Seventh Circuit had held that a ...

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