People v. Guzman

2015 IL 118749

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 118749)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JORGE A.
GUZMAN, Appellant.

Opinion filed November 19, 2015.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.

OPINION

¶1 In People v. Delvillar, 235 Ill. 2d 507 (2009), this court examined the impact of
the failure to give a statutory admonishment on the potential immigration
consequences of entering a guilty plea. We concluded that the admonishment was
directory, not mandatory, and categorized the potential immigration consequences
of the plea as collateral, not direct. Therefore, the failure to admonish did not affect
the voluntariness of the plea, and defendants wishing to withdraw their pleas on
that basis were required to demonstrate prejudice or a denial of justice. Delvillar,
235 Ill. 2d at 519, 521-22. In this case, defendant argues that our decision in
Delvillar must be overturned based on the United States Supreme Court’s later
 decision in Padilla v. Kentucky, 559 U.S. 356 (2010). We disagree and affirm the
denial of defendant’s motion to withdraw his guilty plea.

¶2 I. BACKGROUND

¶3 In October 2008, seven firearms were stolen from a home in Will County. The
following day, the local sheriff received a report of suspicious activity in Joliet and
later found defendant and two other men in a garage, with five firearms from the
burglary in plain sight. Defendant was indicted in the circuit court of Will County
on a single count of aggravated possession of stolen firearms, a Class 1 felony (720
ILCS 5/16-16.1(a)(1), (c)(1) (West 2008)), for possession of between two and five
firearms with knowledge that they were stolen. Defendant was previously
adjudicated delinquent for aggravated unlawful use of a weapon in 2003 and
received probation. He faced a possible sentence of 4 to 15 years in prison on the
2008 firearm charge. 730 ILCS 5/5-8-1(a)(4) (West 2008).

¶4 In February 2009, while represented by criminal defense counsel, defendant
entered a fully negotiated guilty plea to the firearm charge. During the plea hearing,
the trial court asked defendant whether he was a United States citizen, and, after
initially stating he was, defendant quickly clarified that he was a permanent legal
resident. The court did not admonish defendant about the potential impact of
pleading guilty on his immigration status prior to accepting the plea pursuant to
section 113-8 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-8 (West
2008)). Defendant was given the minimum sentence of four years in prison and two
years of mandatory supervised release, with a recommendation for impact
incarceration.

¶5 Defendant filed a written motion to withdraw his plea in March 2009 and
argued during the subsequent hearings that he did not enter the plea knowingly and
intelligently because he was not admonished pursuant to section 113-8. The trial
court directed the parties to supply additional research, and, at a subsequent
hearing, defense counsel noted that this court had heard oral arguments a month
earlier in a similar case, Delvillar, 235 Ill. 2d 507. Based on that representation, the
trial court asked the parties whether they wished to wait for further guidance from
this court or proceed to an immediate ruling. Defendant requested an immediate
ruling, and the trial court denied his motion to withdraw the plea. Defendant then
filed a direct appeal of the trial court’s ruling.
-2-
¶6 During the pendency of defendant’s direct appeal, he filed a postconviction
petition that was denied by the trial court at the second stage because no evidence
showed he would have gone to trial if he had been properly admonished. Defendant
appealed the postconviction ruling. He then sought leave to file an amended
postconviction petition adding the claim that he would not have entered the plea if
he had been informed of the potential immigration consequences. At the hearing on
the amended postconviction petition, defense counsel stated that defendant was to
be deported, and defendant was granted leave to withdraw his notice of appeal on
the first postconviction petition and file an amended petition. No further
proceedings took place in the circuit court.

¶7 Addressing defendant’s direct appeal, the appellate court reversed his
conviction, concluding that his plea was not knowing and intelligent because
defense counsel did not advise him of the possible immigration consequences.
People v. Guzman, 2011 IL App (3d) 090464. The State then filed a petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶8 In October 2012, this court granted the State’s petition for leave to appeal but,
after briefing, issued a supervisory order remanding the cause. The supervisory
order directed the appellate court to consider whether the absence of a statutory
admonishment by the trial court about the potential immigration consequences of
the guilty plea (725 ILCS 5/113-8 (West 2008)) permitted defendant to withdraw
his plea in light of the United States Supreme Court’s decision in Padilla, 559 U.S.
356. People v. Guzman, No. 113730 (Ill. Mar. 28, 2012).

¶9 On remand, the appellate court withdrew its original opinion, consolidated
defendant’s direct appeal with his appeal from the denial of his postconviction
petition, and requested supplemental briefing. The appellate court subsequently
reversed the denial of defendant’s motion to withdraw his guilty plea in his direct
appeal, remanding that cause for further proceedings, and dismissed defendant’s
postconviction appeal. 2014 IL App (3d) 090464.

¶ 10 After allowing the State’s petition for rehearing, however, the appellate court
withdrew its original opinion, with the majority issuing a revised opinion affirming
the denial of defendant’s motion to withdraw his plea and reversing the denial of
his postconviction petition, remanding for additional postconviction proceedings.
2014 IL App (3d) 090464. Relying on Delvillar, the majority held in the direct
appeal that the immigration consequences of a guilty plea were collateral

-3-
 consequences that did not affect the voluntariness of the plea. 2014 IL App (3d)
090464, ¶ 22 (citing Delvillar, 235 Ill. 2d at 521-22). Justice Holdridge dissented in
part, asserting that the plea was constitutionally involuntary under Padilla because
the trial court did not give the proper admonishment. He also cited the reasoning in
People v. Peque, 3 N.E.3d 617 (N.Y. 2013). 2014 IL App (3d) 090464, ¶ 73
(Holdridge, J., specially concurring in part and dissenting in part).

¶ 11 Defendant filed a petition for leave to appeal addressing only the appellate
court’s decision on direct appeal to affirm the denial of his motion to withdraw his
guilty plea. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Jan. 1, 2015).

¶ 12 II. ANALYSIS

¶ 13 Defendant asks this court to overrule its prior decision in Delvillar, 235 Ill. 2d
507, in light of the United States Supreme Court’s decision in Padilla. He argues
that, under Padilla, the absence of a statutory admonishment about the possible
immigration consequences of a guilty plea (725 ILCS 5/113-8 (West 2008))
renders the plea unconstitutionally involuntary. Because the issue presents a
question of law, we review it de novo. In re Detention of Hardin, 238 Ill. 2d 33, 39
(2010).

¶ 14 Section 113-8 of the Code states:

“§ 113–8. Advisement concerning status as an alien.

Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo
contendere to a misdemeanor or felony offense, the court shall give the
following advisement to the defendant in open court:

‘If you are not a citizen of the United States, you are hereby advised that
conviction of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United States, or
denial of naturalization under the laws of the United States.’ ” 725 ILCS
5/113-8 (West 2008).

¶ 15 This court previously considered whether a defendant could withdraw his guilty
plea based on the trial court’s failure to give a section 113-8 admonishment in

-4-
 Delvillar. After acknowledging that the admonishment “is mandatory in the sense
that the circuit court does not have discretion in giving” it, we explained that the
critical question was whether section 113-8 is mandatory or directory. Delvillar,
235 Ill. 2d at 516. In making that determination, we noted that section 113-8 did not
include any negative language if the admonition is not given, such as barring the
acceptance of the plea, and that the right being protected was “not necessarily ***
harmed in the absence of the admonishment.” Delvillar, 235 Ill. 2d at 517, 519. We
concluded that section 113-8 was directory and the failure to comply with it was
simply one factor to be considered in ruling on a defendant’s motion to withdraw a
guilty plea. The ruling ultimately “rest[ed] in the sound discretion of the circuit
court.” Delvillar, 235 Ill. 2d at 519. Because the right to withdraw a plea is not
automatic, a defendant’s request for relief must demonstrate “a manifest injustice”
under the unique facts of the case. Delvillar, 235 Ill. 2d at 520.

¶ 16 When inadequate admonishments are given, the question of whether due
process was violated arises, and the answer turns on whether the plea was made
voluntarily and intelligently. In resolving that question, the court examines only the
direct consequences of the plea, not the collateral consequences. This court defined
“[d]irect consequences” as “those consequences affecting the defendant’s sentence
and other punishment that the circuit court may impose,” and “[c]ollateral
consequences” as those “effects upon the defendant that the circuit court has no
authority to impose.” Delvillar, 235 Ill. 2d at 520.

¶ 17 Because state courts do not control the immigration decisions of governmental
agencies, we concluded that any possible immigration consequences of entering a
guilty plea are collateral. “As such, the failure to admonish a defendant of potential
immigration consequences does not affect the voluntariness of the plea” or violate
due process. Delvillar, 235 Ill. 2d at 520-21.

¶ 18 Nonetheless, we noted that a plea may still be withdrawn in the absence of a
constitutional violation if “real justice has been denied or if the defendant has been
prejudiced by the inadequate admonishment,” with the defendant bearing the
burden of making the requisite showing. Delvillar, 235 Ill. 2d at 522. In Delvillar,
the defendant had both erroneously informed the trial judge he was a United States
citizen and failed to demonstrate prejudice in either his motion to withdraw the plea
or his supporting argument. Because the defendant failed to meet his burden of
showing prejudice or a denial of real justice, we reversed the appellate court

-5-
 judgment in his favor and reinstated the trial court’s denial of defendant’s motion to
withdraw his plea. Delvillar, 235 Ill. 2d at 522-24.

¶ 19 The following year the United States Supreme Court decided Padilla, cited by
defendant in the instant case. Defendant contends that the reasoning in Padilla
requires us to overrule our decision in Delvillar. In Padilla, the defendant was a
noncitizen charged with a drug crime that “made his deportation virtually
mandatory.” Padilla, 559 U.S. at 359. Here, defendant argues his firearms
conviction places him in a similarly precarious position. Unlike this case, however,
the defendant in Padilla filed a postconviction petition alleging a sixth amendment
violation based on the failure of his defense counsel to provide effective assistance
by advising him of the possibility that he could be deported if he pled guilty. The
Kentucky Supreme Court upheld the denial of the defendant’s postconviction
petition, finding that immigration consequences were merely collateral. Padilla,
559 U.S. at 359-60 (citing Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky.
2008)).

¶ 20 Citing significant changes in immigration law making deportation a near
certainty for many noncitizens convicted of drug or firearms crimes, the Supreme
Court found “[d]eportation as a consequence of a criminal conviction is, because of
its close connection to the criminal process, uniquely difficult to classify as either a
direct or a collateral consequence.” Padilla, 559 U.S. at 366. The Court
“conclude[d] that advice regarding deportation is not categorically removed from
the ambit of the Sixth Amendment right to counsel” and, consequently, the
standards for effective assistance of counsel expressed in Strickland v. Washington,
466 U.S. 668 (1984), were applicable. Padilla, 559 U.S. at 366.

¶ 21 Although acknowledging that Padilla did not declare immigration
consequences to be direct, defendant argues that they also cannot be considered
collateral, contrary to our conclusion in Delvillar. In light of Padilla, defendant
contends that the failure to give the section 113-8 admonishment renders any
subsequent plea unconstitutionally involuntary. Because a valid plea must be
knowing and intelligent (Boykin v. Alabama, 395 U.S. 238, 242 (1969)), defendant
contends that Padilla mandates the conclusion that, in the absence of a section
113-8 admonition, his due process rights were violated and his plea was not
knowing and voluntary.

-6-
¶ 22 Defendant admits that even after Padilla our appellate court has consistently
continued to view immigration consequences as merely collateral (see 2014 IL App
(3d) 090464, ¶ 66 (Holdridge, J., specially concurring in part and dissenting in part)
(collecting cases)), but he maintains those cases were wrongly decided. Citing
Justice Holdridge’s partial dissent in the appellate decision in this case, defendant
claims that if deportation cannot be deemed a collateral consequence of a criminal
conviction as a matter of law, logically, “this conclusion must be true for all
purposes.” (Emphasis in original.) 2014 IL App (3d) 090464, ¶ 66 (Holdridge, J.,
specially concurring in part and dissenting in part). In further support of his
position, defendant cites the rationale in Peque, 3 N.E.3d at 633-35, decided by
New York’s highest court. We reject that analysis.

¶ 23 Padilla involved a sixth amendment challenge alleging the defendant’s trial
counsel provided ineffective assistance. In contrast, both Delvillar and the instant
case involve fifth amendment due process claims. As we explained in People v.
Patterson, 2014 IL 115102, ¶ 97, the analytical standards for evaluating challenges
rooted in due process and other constitutional provisions vary widely.
Consequently, “[a] ruling on a specific flavor of constitutional claim may not
justify a similar ruling brought pursuant to another constitutional provision.
[Citation.] In other words, a constitutional challenge raised under one theory cannot
be supported by decisional law based purely on another provision. United States v.
Lanier, 520 U.S. 259, 272 n.7 (1997).” Patterson, 2014 IL 115102, ¶ 97.

¶ 24 In addition, the Supreme Court’s concise statement in Padilla “that advice
regarding deportation is not categorically removed from the ambit of the Sixth
Amendment right to counsel” expresses an intent to restrict its conclusion to that
constitutional predicate. Padilla, 559 U.S. at 366. Perhaps most tellingly, the
Supreme Court recognized as much in Chaidez v. United States, decided three
years after Padilla, when it stated while further explaining its decision in Padilla
that “no decision of our own committed us to ‘appl[y] a distinction between direct
and collateral consequences to define the scope’ of the right to counsel. [Citation.]
And however apt that distinction might be in other contexts, it should not exempt
from Sixth Amendment scrutiny a lawyer’s advice (or non-advice) about a plea’s
deportation risk.” (Emphasis added.) Chaidez v. United States, 568 U.S. ___, ___,
133 S. Ct. 1103, 1110 (2013) (quoting Padilla, 559 U.S. at 365). The Court again
emphasized the sixth amendment context of Padilla by expressly stating that
“[e]ven in Padilla [the Court] did not eschew the direct-collateral divide across the
board.” Chaidez, 568 U.S. at ___, 133 S. Ct. at 1112. Accordingly, we reject as
-7-
 overly broad defendant’s reading that Padilla created a new rule barring
deportation from being considered a collateral consequence for any purpose.

¶ 25 Moreover, even defendant concedes, as he must, that Padilla did not announce
a rule declaring immigration consequences, including the virtual certainty of
deportation, to be the direct consequences of a criminal conviction—even within
the limited context of the sixth amendment. In Illinois, the established rule is that
trial courts must admonish defendants of only the direct consequences of a guilty
plea. Delvillar, 235 Ill. 2d at 520. We explained in People v. Williams that a
knowing and intelligent plea is premised on the defendant’s full awareness of only
the direct consequences flowing from it, adopting the standard set forth by the
Supreme Court in Brady v. United States, 397 U.S. 742, 755 (1970). People v.
Williams, 188 Ill. 2d 365, 371 (1999). Consequently, a plea may be knowing and
intelligent even if the defendant is unaware of its nondirect consequences
(Williams, 188 Ill. 2d at 371) such as deportation (Delvillar, 235 Ill. 2d at 521).
Thus, even if, as defendant claims, Padilla is applicable in the context of a fifth
amendment due process challenge, it does not mandate a holding that the failure to
give section 113-8 admonishments entitles defendants to withdraw their guilty
pleas.

¶ 26 As long as the potential immigration consequences faced by the defendant are
not deemed to be direct, that is, “affecting the defendant’s sentence and other
punishment that the circuit court may impose,” our longstanding precedents do not
bar the acceptance of a guilty plea in the absence of a section 113-8 admonishment.
Delvillar, 235 Ill. 2d at 520. “Even in light of Padilla, we cannot say that
deportation is a consequence that relates to the sentences imposed on the basis of
that plea.” People v. Carrera, 239 Ill. 2d 241, 256 (2010). Since Padilla, we have
also rejected the claim that the distinction between direct and collateral
consequences no longer applies in cases involving fifth amendment challenges.
People v. Hughes, 2012 IL 112817, ¶¶ 34-66. Consequently, we conclude that
Padilla does not compel the reversal of our prior holding in Delvillar.

¶ 27 Our decision puts us in the company of the vast majority of courts nationwide
that have rejected similar Padilla claims. Although not controlling in this court, the
post-Padilla decisions of the federal courts of appeal and all but one high state
court that have considered the issue are in agreement that trial courts are not
constitutionally required to provide admonishments about immigration
consequences before accepting defendants’ guilty pleas. See United States v.
-8-
 Carrillo-Estrada, 564 F. App’x 385, 387 (10th Cir. 2014); United States v.
Rodriguez-Penton, 547 F. App’x 738, 739-40 (6th Cir. 2013) (collecting cases and
explaining that the sixth amendment imposes a higher burden on counsel to inform
clients of the consequences of entering a guilty plea than the fifth amendment
imposes on courts); United States v. Delgado-Ramos, 635 F.3d 1237, 1240-41 (9th
Cir. 2011) (per curiam) (explaining that Padilla “sheds no light on the obligations”
the trial court has under the fifth amendment); see also United States v. De La
Cruz-Trejo, 518 F. App’x 286, 286-87 (5th Cir. 2013) (per curiam) (declining to
decide whether Padilla overturned circuit precedent but holding that, at a
minimum, trial courts do not commit plain error by failing to admonish); United
States v. Youngs, 687 F.3d 56 (2d Cir. 2012) (recognizing in the context of civil
commitments that Padilla did not undermine distinction between direct and
collateral consequences in fifth amendment cases); United States v. Nicholson, 676
F.3d 376, 381-82 & n.3 (4th Cir. 2012) (holding both that Padilla did not change
the fifth amendment framework and that trial courts are not required to provide
admonishments on the loss of federal benefits). See Smith v. State, 697 S.E.2d 177,
183-84 (Ga. 2010) (explaining that the direct/collateral dichotomy still applies to
fifth amendment, but not sixth amendment, and that defense counsel’s burden is
greater than the trial court’s duty); State v. Ortiz, 44 A.3d 425, 429-31 (N.H. 2012);
Stiger v. Commonwealth, 381 S.W.3d 230, 235 (Ky. 2012); State v. Davis, 9 N.E.3d
1031, 1040 (Ohio 2014) (finding the issue forfeited but noting that “Padilla’s
holding concerns what an attorney must advise a defendant before the defendant
enters a plea of guilty [and not] what a trial court must advise a defendant before
accepting a jury waiver”).

¶ 28 Even the single outlying decision cited by defendant, issued by New York’s
highest court in Peque, rejected the automatic withdrawal of pleas entered without
admonishments addressing potential immigration consequences. Peque, 3 N.E.3d
at 622, 638. Contrary to defendant’s claim in the instant appeal that a due process
violation is presumptively prejudicial, the majority in Peque required defendants to
make a showing of prejudice before being able to withdraw their guilty pleas. In
this case, defendant would find no relief if held to that standard.

¶ 29 Under defendant’s approach, any plea entered in the absence of a section 113-8
admonishment would be deemed invalid and subject to withdrawal without any
need for a showing of prejudice or denial of real justice. Without a need to
demonstrate prejudice, an improperly admonished defendant would presumably be
entitled to withdraw a plea even if fully informed by defense counsel about the
-9-
 possible immigration consequences before entering the plea. The potential windfall
to defendants who have suffered no prejudice or injustice without the lack of the
statutory admonishment could be far-reaching. As the Supreme Court warned in
Padilla, because pleas constitute “nearly 95% of all criminal convictions,” courts
“must be especially careful about recognizing new grounds for attacking the
validity of guilty pleas.” Padilla, 559 U.S. at 372.

¶ 30 This court acknowledged a similar need for caution in Delvillar, placing the
burden of establishing prejudice or the denial of “real justice” on defendants who
wish to withdraw their pleas in the absence of proper immigration admonishments.
Delvillar, 235 Ill. 2d at 522. Even Padilla required defendants to establish a
reasonable probability that they would not have pled guilty if they had been
properly admonished. Padilla, 559 U.S. at 366, 374-75. We do not find defendant’s
suggested approach sufficiently persuasive to overcome the fundamental principle
of stare decisis and overturn our decision in Delvillar.

¶ 31 Shifting his focus, defendant next broadly asserts that if the failure to provide
section 113-8 admonishments has no adverse consequences, trial courts will have
little incentive to admonish even noncitizen defendants, who often face a serious
risk of deportation. Accordingly, he asks that we construe the admonishment in
section 113-8 to be mandatory as a matter of sound judicial policy. The State
counters that defendant’s approach would give defense counsel a strong incentive
to remain silent if a trial court fails to give the section 113-8 admonishment because
the defendant would later be entitled to withdraw the plea without any showing of
prejudice or injustice. In refuting the State’s contention, defendant notes that
defense counsel must act in accordance with the professional duty of candor and
may, at least arguably, violate Rule 3.3 of the Illinois Rules of Professional
Conduct of 2010 by tacitly ignoring the trial court’s error (see Ill. R. Prof. Conduct
(2010) R. 3.3 (eff. Jan. 1, 2010) (requiring attorneys to avoid conduct that
undermines the integrity of the judicial process)).

¶ 32 Trial judges are under a similar duty to perform all the duties of their office in
accordance with Canon 3 of the Code of Judicial Conduct (Ill. S. Ct. R. 63 (eff. July
1, 2013)). We conclude it is unlikely that trial judges will knowingly fail to give
section 113-8 admonishments to noncitizen defendants in the absence of a stronger
incentive to comply with the law. We also decline to presume that trial judges will
interpret our decision in this case as condoning the routine omission of
admonishments enacted by our legislature. While our trial courts undoubtedly have
- 10 -
 a statutory obligation to admonish noncitizen defendants properly, nothing in
Padilla advances that obligation to the level of a constitutional mandate.

¶ 33 Noncitizen defendants need not be disheartened by our decision today,
however, because our trial courts do not bear the sole burden of ensuring that
defendants are properly admonished about the potential immigration consequences
of entering a guilty plea. As Padilla made clear, to be constitutionally effective
criminal defense counsel must “advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S.
at 369. Defense counsel is generally in a superior position than the trial court to
make determinations about their clients’ citizenship and provide appropriate advice
about potential immigration consequences. Libretti v. United States, 516 U.S. 29,
50-51 (1995). As in Padilla, noncitizen defendants who do not receive that advice
from criminal defense counsel may be entitled to relief based on counsel’s
ineffective assistance if they can make the requisite showing of prejudice. Padilla,
559 U.S. at 374.

¶ 34 Defendants who did not receive section 113-8 admonishments may also be
entitled to withdraw their pleas if they have been denied “real justice” or have
suffered prejudice. Delvillar, 235 Ill. 2d at 522. Before this court, however,
defendant has not raised that argument or provided any evidence supporting a claim
that he would not have pled guilty if he had been properly admonished.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we decline to overrule our decision in Delvillar in light
of the Supreme Court’s ruling in Padilla and defendant’s arguments. We affirm the
appellate court’s judgment upholding the denial on direct appeal of defendant’s
motion to withdraw the guilty plea.

¶ 37 Appellate court judgment affirmed.

- 11 -