People v. Dorado
| Decision Date | 04 November 2020 |
| Docket Number | No. 2-19-0818,2-19-0818 |
| Citation | 165 N.E.3d 563,2020 IL App (2d) 190818,444 Ill.Dec. 917 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ernesto DORADO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
John W. Heiderscheidt, of Godoy Law Office, of Lombard, for appellant.
Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, Edward R. Psenicka, and Mary Beth Burns, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 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 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.
¶ 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.
¶ 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 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.
¶ 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, 349 Ill.Dec. 165, 946 N.E.2d 359 (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, 368 Ill.Dec. 26, 983 N.E.2d 439. Likewise, a guilty plea must be voluntary and intelligent. People v. Blankley , 319 Ill. App. 3d 996, 1007, 254 Ill.Dec. 259, 747 N.E.2d 16 (2001). "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) 160586, ¶ 39, 416 Ill.Dec. 730, 85 N.E.3d 815. " ‘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, 222 Ill.Dec. 34, 676 N.E.2d 998 (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, 222 Ill.Dec. 34, 676 N.E.2d 998 ).
¶ 12 To establish that counsel was ineffective, a defendant must satisfy the two-prong test articulated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See People v. Valdez , 2016 IL 119860, ¶¶ 13-14, 409 Ill.Dec. 21, 67 N.E.3d 233. 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, 276 Ill.Dec. 821, 795 N.E.2d 174 (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, 106 S.Ct. 366, 88 L.Ed.2d 203 (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, 318 Ill.Dec. 261, 883 N.E.2d 492 (2008). The defendant bears the burden of establishing both parts of the Strickland test. People v. Jones , 219 Ill. App. 3d 301, 305, 162 Ill.Dec. 378, 579 N.E.2d 1192 (1991).
¶ 13 In Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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, 130 S.Ct. 1473. 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, exclusion from admission to the United States, or denial of naturalization...
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