People v. Dorado

2020 IL App (2d) 190818
No. 2-19-0818
Opinion filed November 4, 2020
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-107
)
ERNESTO DORADO, ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Bridges concurred in the judgment and opinion.

OPINION

¶1 Defendant, Ernesto Dorado, appeals the trial court’s denial of his motion to withdraw his

guilty plea to unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2018)).

Pursuant to his plea agreement, he was sentenced to first-offender probation under section 410 of

the Illinois Controlled Substance Act (Act) (id. § 410 (f), (g)), which, upon successful completion,

results in the dismissal of the proceedings and is not considered a “conviction” “for purposes of

disqualification or disabilities imposed by law upon conviction of a crime” (id. § 410(g)).

Defendant now contends that his trial counsel was ineffective for failing to advise him of the effects

his plea would have on his immigration status. He also contends that he did not receive the benefit
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of the bargain in his plea negotiations when, despite the nature of first-offender probation under

state law, he was potentially subject to federal immigration consequences. We affirm.

¶2 I. BACKGROUND

¶3 In May 2019, defendant pleaded guilty to unlawful possession of a controlled substance in

exchange for first-offender probation and the dismissal of a traffic citation. The factual basis for

the plea was that, on March 7, 2018, defendant was stopped for speeding and officers found a pill

bottle containing hydrocodone in his vehicle. The pills were prescribed for defendant’s daughter,

and defendant indicated that he took the pills for pain without a prescription for them. Defendant

at that time was a legal permanent resident of the United States and had a pending application for

citizenship.

¶4 The trial court admonished defendant that, “[i]f you’re not a citizen of the United States,

you are hereby advised that conviction of the offense for which you’ve 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.” Defendant affirmed that he had talked to his

attorney about the case and possible defenses, that he was satisfied with his attorney’s

representation, and that the State made no promises that were left out of the agreement.

Defendant’s attorney told the court that he had spoken to multiple immigration attorneys about the

case and believed that defendant had been fully advised of the potential ramifications of his plea.

¶5 Defendant later moved to withdraw his plea, arguing that it was based on a false promise

by the State because, while the Act provided for the discharge of the conviction upon completion

of probation, the conviction would still stand under federal law, potentially resulting in adverse

immigration consequences. He also alleged ineffective assistance of counsel.

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¶6 At the hearing on the matter, defendant’s trial counsel, Derrick Schmidt, testified that

defendant told him that he was working with an immigration attorney and defendant gave Schmidt

permission to speak with that person. Schmidt spoke with the attorney about defendant’s status

and consulted with two other immigration attorneys. Based on information from those

consultations, Schmidt told defendant that, if he pleaded guilty, he was “deportable” and that “this

is going to be an INS problem.” Schmidt described the plea as “a very serious roadblock,” and told

defendant that he was “most likely going to be deported and that there would be proceedings.”

Schmidt went through the strengths and weakness of defendant’s options, and defendant advised

Schmidt that “he wanted to take the plea, that he would deal with the INS issues later.” Defendant

said that he wanted to get it over with and that there was the potential that he would marry his

girlfriend, who was a United States citizen. Schmidt did not further discuss with defendant the

potential effect of a marriage. Schmidt told defendant that he would be inadmissible to the United

States based on the plea but did not specifically advise him of the possibility of mandatory

detention during immigration proceedings. Schmidt was unsure if he specifically advised

defendant about his ability to naturalize. Schmidt also told defendant that one of the immigration

attorneys told Schmidt that there might be “some sort of *** temporary relief” available or that

defendant might be able to enter a plea without mentioning the controlled substance. Schmidt was

surprised that defendant wanted to take the plea. He said that he told defendant that he could have

more time to reach a decision on the matter.

¶7 Defendant testified that, before he pleaded guilty, evidence regarding the case was

requested in his pending citizenship application. He said that he had no understanding of what

would happen to his immigration status because of the plea and that he “didn’t think it was that

bad that it was going to affect that.” Defendant denied that Schmidt told him about the immigration

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consequences of his plea or that he could have more time to decide whether he wanted to take the

plea. He admitted that he told his immigration attorney about his arrest but said that the attorney

did not provide details about the impact a plea would have on his application.

¶8 Applying Najera-Rodriguez v. Barr, 926 F.3d 343 (7th Cir. 2019), the trial court found that

the conviction was not a conviction that, under federal law, would trigger removal from the United

States. Regarding other possible immigration consequences, the court noted that the fact that

defendant was sentenced to first-offender probation did not equate to a promise from the State

about any such consequences. Regarding ineffective assistance, aside from applying Najera-

Rodriguez, the court found that Schmidt consulted with immigration attorneys and adequately

advised defendant. The court denied the motion to withdraw the plea, and defendant appeals.

¶9 II. ANALYSIS

¶ 10 Defendant contends that trial counsel was ineffective for failing to inform him of the

immigration consequences of his plea. He contends that he is subject to mandatory removal based

on his conviction of a drug offense or by virtue of potentially being found to be a drug abuser or

addict (8 U.S.C. § 1227(a)(2)(B) (2012)) and that his counsel should have informed him that he

would, with absolute certainty, be deported.

¶ 11 A defendant has no absolute right to withdraw his or her guilty plea. People v. Baez, 241

Ill. 2d 44, 110 (2011). “Withdrawal is appropriate where the plea was entered through a

misapprehension of the facts or of the law or where there is doubt as to the guilt of the accused

and justice would be better served through a trial.” People v. Hughes, 2012 IL 112817, ¶ 32.

Likewise, a guilty plea must be voluntary and intelligent. People v. Blankley, 319 Ill. App. 3d 996,

1007 (2007). “One basis for the withdrawal of a guilty plea is where defense counsel gives the

defendant inadequate advice prior to entering the plea.” People v. Glover, 2017 IL App (4th)

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160586, ¶ 39. “ ‘A defendant may enter a guilty plea because of some erroneous advice by counsel,

but that fact alone does not destroy the voluntary nature of the plea ***.’ ” Id. (quoting People v.

Cunningham, 286 Ill. App. 3d 346, 349 (1997)). Rather, “ ‘it must be shown that defendant was

denied the effective assistance of counsel.’ ” Id. (quoting Cunningham, 286 Ill. App. 3d 346 at

349-50).

¶ 12 To establish that counsel was ineffective, a defendant must satisfy the two-prong test

articulated in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Valdez, 2016 IL

119860, ¶¶ 13-14. Counsel’s conduct is deficient under Strickland if counsel fails to ensure that

the defendant entered the plea voluntarily and intelligently. People v. Rissley, 206 Ill. 2d 403, 457

(2003). To establish prejudice, a defendant must show a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill

v. Lockhart, 474 U.S. 52, 59 (1985). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” (Internal quotation marks omitted.) People v. Manning,

227 Ill. 2d 403, 418 (2008). The defendant bears the burden of establishing both parts of the

Strickland test. People v. Jones, 219 Ill. App. 3d 301, 305 (1991).

¶ 13 In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court established

that one aspect of constitutionally effective representation requires defense counsel to advise

noncitizen defendants regarding the immigration consequences of a guilty plea, particularly the

risk of being removed from the United States. Id. at 373-74. Thus, to fulfill his or her duties in

advising a client during plea negotiations, counsel must inform the client that the plea carries a

risk of deportation. See id. In addition, before accepting a guilty plea from a noncitizen, the court

must inform the defendant that a conviction “ ‘may have the consequences of deportation,

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exclusion from admission to the United States, or denial of naturalization under the laws of the

United States.’ ” 725 ILCS 5/113-8 (West 2018).

¶ 14 Here, Schmidt consulted with multiple immigration attorneys and told defendant that the

plea would subject defendant to deportation, that he would be inadmissible to the United States,

and that there would be an “INS problem.” The court also told defendant that a conviction “may”

have the consequences of deportation, exclusion from admission to the United States, or denial of

naturalization. Meanwhile, Schmidt testified that defendant, who had also consulted with an

immigration attorney, assured Schmidt that he wanted to take the plea bargain and deal with the

immigration consequences later. Thus, the record supports the trial court’s finding that Schmidt

adequately advised defendant of the risk of deportation as a consequence of his plea and that

defendant knowingly decided to take the plea and address the resulting immigration consequences

later.

¶ 15 Defendant argues that the trial court’s use of the word “may” was insufficient and argues

that Schmidt should have told him with unequivocal and absolute certainty that he would be

deported, either as a result of his conviction or based on a potential finding of drug abuse or

addiction. But the record shows that Schmidt viewed the plea as a “a very serious roadblock” and

clearly told defendant that, if he pleaded guilty, he was “deportable,” was “most likely going to be

deported,” “there would be proceedings,” and “this is going to be an INS problem.” After such

admonitions, defendant could not have reasonably believed that deportation was not a consequence

of the plea.

¶ 16 Moreover, not only did Schmidt clearly tell defendant that, if he pleaded guilty, he was

“deportable” or most likely would be deported, there was no certainty that defendant would

actually be deported. Regarding removal as it relates to defendant’s conviction, we have previously

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held that counsel’s performance might be deficient when counsel fails to inform a defendant that

first-offender probation under section 410 will subject the defendant to mandatory removal. See

People v. Hoare, 2018 IL App (2d) 160727, ¶¶ 27, 30. However, in Najera-Rodriguez, the Seventh

Circuit recently held that convictions under section 402(c) of the Act are not convictions under

federal law that render a defendant removable. Najera-Rodriguez, 926 F.3d at 347, 356. Thus,

defendant was not subject to mandatory removal based on his conviction.

¶ 17 Defendant suggests that the trial court erred in failing to address whether Najera-Rodriguez

applied retroactively, but, at the time of the motion to withdraw the plea, no action had been taken

seeking defendant’s removal. Thus, retroactivity is not an issue. If a removal action were initiated,

Najera-Rodriguez would be the controlling law interpreting the Act for purposes of federal law.

See Brough v. United States, 454 F.2d 370, 372-73 (7th Cir. 1971) (finding no cases in which a

statutory interpretation “was denied retroactive application in a criminal conviction” and applying

a point of statutory interpretation retroactively). Defendant has not pointed to a case that would

hold otherwise nor has he made a cogent argument that the reasoning of Najera-Rodriguez would

not apply to him.

¶ 18 Defendant argues that removal based on a potential finding of drug abuse or addiction was

a possibility, and he also provides a list of additional potential immigration consequences that

counsel failed to address with him, such as discretionary removal based on poor moral character,

inability to post bond in removal proceedings, and delays in naturalization. But there were no

certainties that any of those consequences would occur. Padilla does not require counsel to

speculate about and advise a defendant of unclear immigration consequences that the defendant

might or might not encounter. See People v. Carranza-Lamas, 2015 IL App (2d) 140862, ¶ 47.

Immigration law is complex, and there are situations where the consequences of a plea are

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uncertain or unclear. In such a situation, where the law is not succinct and straightforward, the

duty of the defense attorney is more limited, and he or she need do no more than advise a noncitizen

client that pending criminal charges might carry the risk of adverse immigration consequences.

Padilla, 559 U.S. at 369. The Supreme Court in Padilla warned that, 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.” Id. at 372.

¶ 19 In any event, and as previously discussed, Schmidt communicated to defendant that

deportation was a risk of the plea. Beyond that, Padilla required only that Schmidt advise

defendant that there was a risk of adverse immigration consequences. Schmidt did that. Thus,

Schmidt adequately advised defendant of the clear and direct potential consequences of his plea.

The court also specifically admonished defendant of the clear potential consequences of the plea,

including the possibility of removal or the denial of naturalization. Accordingly, Schmidt’s

representation was not deficient, and the court properly determined that defendant did not

misapprehend the consequences of his plea.

¶ 20 Defendant next contends that he should be able to withdraw his plea because it was based

on an unfulfillable promise under the Act that he would not have a “conviction” “for purposes of

disqualifications or disabilities imposed by law upon conviction of a crime.” 720 ILCS 570/410(g)

(West 2018). He argues that, because under federal law the conviction could subject him to

deportation and other immigration consequences, he could not receive the benefit of his plea

bargain.

¶ 21 In People v. Whitfield, 217 Ill. 2d 177, 183-84 (2005), our supreme court explained that

“[w]hen seeking relief from a guilty plea, either directly or collaterally, there are two

separate, though closely related, constitutional challenges that may be made: (1) that the

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plea of guilty was not made voluntarily and with full knowledge of the consequences, and

(2) that defendant did not receive the benefit of the bargain he made with the State when

he pled guilty.”

The latter challenge is rooted in the holding of Santobello v. New York, 404 U.S. 257 (1971), that

the due process clause mandates that “when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Id. at 262. “The principal inquiry, in that respect, is whether the

defendant has received the benefit of his bargain.” People v. Donelson, 2013 IL 113603, ¶ 19.

¶ 22 Here, defendant was promised first-offender probation under the Act, and that is what he

received. Under the Act, the conviction would be discharged for purposes of state law, but the

legal effect of the conviction for immigration purposes was controlled by federal law. Thus, the

bargain that was struck between defendant and the State for probation under state law was separate

and distinct from any immigration consequences resulting from his conviction. See People v.

Greco, 2014 IL App (1st) 112582, ¶ 47. The State has no power to change or negotiate the

immigration consequences of defendant’s conviction. Id. The State did not, and could not, promise

that there would be no immigration consequences. Accordingly, the trial court correctly found that

there was no unfulfillable promise made by the State.

¶ 23 III. CONCLUSION

¶ 24 The trial court did not err when it denied defendant’s motion to withdraw his plea.

Accordingly, the judgment of the circuit court of Boone County is affirmed.

¶ 25 Affirmed.

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No. 2-19-0818

Cite as: People v. Dorado, 2020 IL App (2d) 190818

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 18-CF-107;
the Hon. C. Robert Tobin III, Judge, presiding.

Attorneys John W. Heiderscheidt, of Godoy Law Office, of Lombard, for
for appellant.
Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick
for Delfino, Edward R. Psenicka, and Mary Beth Burns, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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