dissenting:
The majority finds that the legislature’s use of the term “shall” in section 113 — 8 is directory and not mandatory because the statute imposes no penalty and because one of the bill’s sponsors referred to it as an “advisement.” As a result, the defendant was not entitled to withdraw his plea of guilty even though he was unaware that his guilty plea subjected him to deportation consequences, the very result section 113 — 8 was created to avoid.
The majority cites Senator Silverstein’s remark that the proposed statute was “advisement,” and the fact that the penalty had been removed from the bill to support its position. Black’s Law Dictionary defines “advisement” as “[c]areful consideration.” Black’s Law Dictionary 55 (7th ed. 1999). Despite removing the penalty from the bill, the fact that the legislature did not remove the word “shall” from the bill prior to its enactment strongly suggests that the legislature intended that courts alert defendants contemplating pleading guilty to give careful consideration to the immigration consequences.
As noted by the majority, in addition to the legislative history, we may also consider the purpose of the law and the evils it was intended to remedy. In this regard the remarks of Representative Delgado prior to the vote in the House of Representatives on Bill 43 are pertinent. He noted, “[u]nder current law, Illinois Courts are not required to inform a noncitizen defendant pleading guilty to a misdemeanor or felony that it may affect his or her INS status. An immigrant[’s] INS status can or may be affected in numerous, very complex ways by the entry of a guilty plea to a criminal charge.” 93d Ill. Gen. Assem., Proceedings, May 7, 2003, at 72-73 (statements of Representative Delgado).
Representative Delgado’s remarks illustrate the legislature’s awareness that, under Illinois law, defendants had no right to be advised of immigration consequences and that the gravity of these consequences required a change in the law. To construe the statute as directory rather than mandatory defeats the very purpose of the statute. As a practical matter, as construed by the majority, the enactment of section 113 — 8 effects no change in the law.
While ultimately the defendant may not have been entitled to the withdrawal of his guilty plea, the lack of the section 113 — 8 admonishment was a necessary factor to be considered by the trial court in its determination of the defendant’s motion. The majority’s decision ignores the purpose of the law and what it was intended to remedy and thwarts the legislative intent to change the state of Illinois law and advise defendants of the immigration consequences of a guilty plea.
I respectfully dissent.