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)
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:
THE COURT: Mr. Grimes [(defendant's attorney)], have you
and your client had an opportunity to look into the
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
MR. GRIMES: An attorney.
THE COURT: You spoke to an immigration attorney?
MR. GRIMES: Yes.
THE COURT: Okay. Is that correct, sir?
THE DEFENDANT: Yes, 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. § 1101(a)(48)(A) (2012).
Moreover, the Seventh Circuit had held that a ...