Illinois Official Reports
Appellate Court
People v. Deltoro, 2015 IL App (3d) 130381
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOSE O. DELTORO, Defendant-Appellant.
District & No. Third District
Docket Nos. 3-13-0381, 3-13-0382 cons.
Filed April 22, 2015
Decision Under Appeal from the Circuit Court of Will County, Nos. 09-CF-23,
Review 09-CF-675; the Hon. Edward A. Burmila, Jr., Judge, presiding.
Judgment Reversed and remanded.
Counsel on Sean Conley, of State Appellate Defender’s Office, of Ottawa, for
Appeal appellant.
James Glasgow, State’s Attorney, of Joliet (Laura E. DeMichael, of
State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justices McDade and O’Brien concurred in the judgment and opinion.
OPINION
¶1 The defendant, Jose O. Deltoro, filed a petition for postconviction relief in which he claims
that his trial counsel was ineffective and the trial court erred in failing to advise him of
potential immigration consequences of his guilty plea. The petition was summarily dismissed,
and the defendant appeals. We reverse and remand for second-stage proceedings.
¶2 FACTS
¶3 On September 10, 2010, the defendant entered negotiated guilty pleas to two counts of
unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2)
(West 2008)), charged in separate cases under separate indictments, in exchange for two
consecutive four-year terms of incarceration with two years’ mandatory supervised release
(MSR) on each sentence. The record indicates that the defendant was to be released from the
Department of Corrections on MSR to federal immigration authorities on January 17, 2013.
¶4 On March 25, 2013, the defendant filed a postconviction petition in both of his criminal
cases, alleging that both plea counsel and the trial court failed to advise him of potential
immigration consequences of his guilty plea. The petition alleged the following facts.
¶5 The defendant was a legal permanent resident of the United States. The defendant was not
advised by plea counsel that he could lose his status as a legal permanent resident and be
deported from the United States as a consequence to pleading guilty to possession of a
controlled substance with intent to deliver.
¶6 The defendant would not have pled guilty if plea counsel had fully advised him as to the
potential immigration consequences. It would have been rational for the defendant to reject the
plea deal because he had been legally living in the United States for over 35 years, all of his
family and friends resided in the United States, and he no longer had any ties to Mexico, the
country of his birth. The defendant further alleged that he was not guilty of the offenses with
which he was charged and that he disputed the version of events read into the record during his
plea, but he accepted the plea bargain–which carried a relatively short prison sentence–so that
he could rejoin his friends and family in the United States as soon as possible. Narcotics
offenses involving the intent to deliver almost always lead to deportation.
¶7 The trial court also failed to admonish the defendant of potential immigration
consequences in violation of section 113-8 of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/113-8 (West 2008)). The defendant would not have pled guilty if he had been
admonished of the potential immigration consequences of his plea. Thus, his guilty pleas were
not knowingly and intelligently entered and therefore were involuntary.
¶8 The circuit court summarily dismissed the defendant’s petition. The court reasoned that the
defendant failed to provide any supporting documentation demonstrating that he advised his
plea counsel that he was not an American citizen or that plea counsel was otherwise aware of
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that fact “so as to trigger” plea counsel’s duty to advise him as to the immigration
consequences of his plea. Similarly, the trial court reasoned that the defendant failed to provide
any supporting documentation with his petition indicating that he ever advised the trial court
that he was not an American citizen “such as to trigger” the court’s duty to admonish the
defendant pursuant to section 113-8 of the Code.
¶9 ANALYSIS
¶ 10 On appeal, the defendant argues the trial court erred in summarily dismissing his
postconviction petition. Because we find that the defendant has presented the gist of a
constitutional claim for ineffective assistance of plea counsel, we reverse the trial court’s
judgment and remand the matter for second-stage proceedings.1
¶ 11 At the first stage, a circuit court may summarily dismiss a postconviction petition if the
court determines that the petition is “frivolous or is patently without merit.” 725 ILCS
5/122-2.1(a)(2) (West 2012). A petition is frivolous or patently without merit if it has no
“arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). The
petitioner faces a low threshold at the first stage of postconviction proceedings where “[t]he
allegations of the petition, taken as true and liberally construed, need only present the gist of a
constitutional claim.” People v. Brown, 236 Ill. 2d 175, 184 (2010). Our review of the trial
court’s summary dismissal of the defendant’s petition at the first stage of postconviction
proceedings is de novo. Hodges, 234 Ill. 2d at 9.
¶ 12 We review claims of ineffective assistance of counsel under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). At the first stage of postconviction
proceedings, a petition alleging ineffective assistance of counsel cannot be summarily
dismissed by the circuit court if “(i) it is arguable that counsel’s performance fell below an
objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.”
Hodges, 234 Ill. 2d at 17.
¶ 13 I. Deficient Performance of Counsel
¶ 14 The defendant argues that his plea counsel’s performance fell below an objective standard
of reasonableness because plea counsel failed to advise the defendant that he could face
deportation as a result of pleading guilty to possession of a controlled substance with intent to
deliver.
¶ 15 A criminal defendant receives constitutionally deficient assistance of counsel where
counsel fails to advise a defendant that his guilty plea carries a risk of deportation. Padilla v.
Kentucky, 559 U.S. 356, 374 (2010). “It is quintessentially the duty of counsel to provide her
client with available advice about an issue like deportation and the failure to do so ‘clearly
satisfies the first prong of the Strickland analysis.’ ” Id. at 371 (quoting Hill v. Lockhart, 474
U.S. 52, 62 (1985) (White, J., concurring, joined by Stevens, J.)). Federal immigration law
1
In light of our holding, we do not reach the defendant’s alternative claim that the trial court erred in
failing to admonish him of the potential immigration consequences of his plea. We note all claims
contained in a petition advance to the second stage of postconviction proceedings after a reversal of a
summary dismissal. People v. Rivera, 198 Ill. 2d 364, 371 (2001); People v. Munoz, 406 Ill. App. 3d
844, 855 (2010).
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commands removal for all controlled substances convictions except trivial marijuana
possession offenses. Id. at 368-69.
¶ 16 Here, the defendant’s postconviction petition alleged that his plea counsel failed to advise
him that he could lose his status as a legal permanent resident and be deported from the United
States if he pled guilty to possession of a controlled substance with intent to deliver. These
allegations, taken as true at the first stage of postconviction proceedings, are sufficient to
establish that plea counsel’s performance arguably fell below an objective standard of
reasonableness under Padilla.
¶ 17 The State argues that the defendant has failed to adequately establish that his plea counsel’s
performance was deficient because the petition did not allege that his plea counsel knew or
should have known that he was not a citizen of the United States. The parties have cited no
Illinois case law, and we are not aware of any, which addresses the issue of whether criminal
defendants must have informed their attorneys of their noncitizenship to succeed on ineffective
assistance of counsel claims under Padilla. Padilla does not expressly require a criminal
defendant to take the initiative to inform his attorney of his immigration status in order to
trigger the attorney’s duty to inform the client whether his plea carries a risk of deportation.
See Padilla, 559 U.S. at 374. In fact, New York courts have held that such a requirement would
undermine the holding of Padilla:
“[T]o require that defendants apprehend the relevance of their noncitizenship status,
and affirmatively provide this information to counsel, would undermine the protection
that the Padilla Court sought to provide to noncitizen defendants. Indeed, it would lead
to the absurd result that only defendants who understand that criminal convictions can
affect their immigration status would be advised of that fact.” People v. Picca, 947
N.Y.S.2d 120, 126 (N.Y. App. Div. 2012).
¶ 18 Thus, it is at least arguable that Padilla required the defendant’s plea counsel to ask the
defendant about his immigration status.
¶ 19 The State further argues that the defendant’s petition was deficient because it failed to
allege that plea counsel did not inquire about the defendant’s immigration status.
Consequently, the State argues, if the allegations in the petition are taken as true, it is possible
that plea counsel asked the defendant about his immigration status and the defendant lied to
plea counsel and said that he was a citizen of the United States. The contention that the
defendant may have affirmatively misrepresented his immigration status to plea counsel is
speculative and premature. Fact finding does not take place during first-stage postconviction
proceedings. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). At the first stage, the
petition’s facts are taken as true and the defendant need only present the gist of a constitutional
claim. Brown, 236 Ill. 2d at 184.
¶ 20 II. Prejudice
¶ 21 Turning to the second Strickland prong, the defendant contends that he suffered prejudice
because (1) he would not have pled guilty had counsel advised him of the potential
immigration consequences of his plea, and (2) there was a rational basis for him to reject the
plea offer because all of his friends and family live in the United States and he contends that he
was not guilty of the offenses charged.
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¶ 22 A defendant is prejudiced in the plea context if there is a reasonable probability that absent
trial counsel’s deficient performance, the defendant would have pled not guilty and would
have insisted on going to trial. People v. Hall, 217 Ill. 2d 324 (2005); see also Hill v. Lockhart,
474 U.S. 52, 59 (1985). Where a defendant claims that counsel failed to advise him as to the
immigration consequences of his plea, the defendant “must convince the court that a decision
to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S.
at 372. A defendant facing potential deportation may show that his decision to reject a plea
offer and go to trial is rational without showing that he would have likely succeeded at trial.
See id. at 368 (“We *** have previously recognized that ‘ “[p]reserving the client’s right to
remain in the United States may be more important to the client than any potential jail
sentence.” ’ ” (quoting Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 322
(2001), quoting 3 Crim. Def. Tech. (MB) §§ 60A.01, 60A.02(2) (1999))). See also United
States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011).
¶ 23 In People v. Guzman, 2014 IL App (3d) 090464, ¶ 34, we held that the defendant–who pled
guilty to aggravated possession of stolen firearms–sufficiently showed that he was prejudiced
by his attorney’s failure to advise him that his conviction carried a risk of deportation where
the defendant claimed: (1) he would not have pled guilty had he known of the immigration
consequences; and (2) it would have been rational for him to reject the plea deal and go to trial
because (i) his conviction at trial was not certain because evidence at his guilty plea hearing
indicated that he had a plausible defense; and (ii) he had family living in the United States. Id.
We reasoned:
“[The] defendant’s family ties and bonds to the United States provide a rational basis to
reject a plea deal. [Citations.] As a result, defendant might have been willing to risk a
lengthier prison sentence in exchange for even a slight chance of prevailing at trial and
thereby avoiding deportation. Counsel’s deficient performance deprived defendant of a
chance to avoid deportation if he had prevailed at trial.” Id. ¶ 35.
¶ 24 While the apparent existence of a plausible trial defense, as in Guzman, may make a
defendant’s showing of prejudice stronger, it is not required in order to show prejudice in cases
involving counsel’s failure to advise a defendant as to the immigration consequences of his
guilty plea. Such a requirement makes sense in other contexts. For example, if a defendant
claims that his counsel provided ineffective assistance by failing to discover exculpatory
evidence or by failing to inform the defendant of a possible affirmative defense before
inducing him to plead guilty, the prejudice to the defendant (if any) will depend on whether the
presentation of the undiscovered evidence or the assertion of the affirmative defense at issue
could have resulted in an acquittal at trial. See Hall, 217 Ill. 2d at 336; Hill, 474 U.S. at 59.
However, that is not the case when counsel fails to advise a defendant of the risks of
deportation, because the defendant may suffer prejudice in that instance regardless of the
strength of his case at trial. As noted, to show prejudice in such cases, the defendant is only
required to show that a decision to reject the plea bargain would have been “rational under the
circumstances.” Padilla, 559 U.S. at 372. A defendant facing potential deportation may show
that his decision to reject a plea offer and go to trial would have been “rational” without
showing that he would likely have succeeded at trial. See, e.g., Orocio, 645 F.3d at 643 (ruling
that, under Padilla, a “rational” decision not to plead guilty “does not focus solely on whether
a defendant would have been found guilty at trial”). As the Padilla Court recognized,
preserving a noncitizen defendant’s right to stay in the United States may be more important to
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the defendant than a potential sentence of imprisonment. Padilla, 559 U.S. at 368. See, e.g.,
Orocio, 645 F.3d at 645. A defendant who fears deportation more than he does imprisonment
might rationally choose to risk a lengthier prison sentence in exchange for even a slight chance
of prevailing at trial and thereby avoiding deportation. Counsel’s failure to advise his client of
the risk of deportation prejudices the defendant by depriving him of that chance. Under such
circumstances, it would be inappropriate and overly burdensome to require the defendant to
show that he would have succeeded at trial in order to establish prejudice.2
¶ 25 Here, the defendant’s allegations, taken as true, establish that he was arguably prejudiced
by his plea counsel’s deficient performance. The defendant alleged that he would not have pled
guilty if plea counsel had fully advised him of the potential immigration consequences of his
plea. Because the defendant pled guilty to an offense relating to a controlled substance, “his
deportation was presumptively mandatory.” Padilla, 559 U.S. at 368-69.
¶ 26 The defendant sufficiently alleged that it would have been rational for him to reject the plea
bargain had he known about the immigration consequences of his plea. The defendant alleged
that: (1) all of his friends and family reside in the United States, (2) he lacks any ties to Mexico,
and (3) he has resided in the United States for 35 years. Additionally, the defendant alleged that
he was not guilty of the charged offenses, and he disputed the version of facts given by the
State at his guilty plea hearing. These allegations provide a rational basis for the defendant to
reject the plea bargain. As the defendant’s guilty plea would result in almost-certain
deportation, the defendant may have rationally preferred to take his chances at trial.
¶ 27 Because the defendant’s petition adequately alleged that his plea counsel’s performance
was arguably deficient and that he was arguably prejudiced by counsel’s errors, we find he
presented the gist of an ineffective assistance of counsel claim. Consequently, the trial court
erred in summarily dismissing his postconviction petition at the first stage of proceedings.
¶ 28 CONCLUSION
¶ 29 The judgment of the circuit court of Will County is reversed and the cause is remanded for
second-stage postconviction proceedings.
¶ 30 Reversed and remanded.
2
We recognize that the First District of our Appellate Court has reached the opposite conclusion.
See People v. Gutierrez, 2011 IL App (1st) 093499, ¶ 45. However, we find the Gutierrez court’s
analysis of this issue contrary to Padilla. We therefore decline to follow Gutierrez.
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