People v. Greco

• Decision Date: 12 May 2014
• Docket Number: No. 1–11–2582.,1–11–2582.
• Citation: 12 N.E.3d 593
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Franchino GRECO, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

12 N.E.3d 593

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Franchino GRECO, Defendant–Appellant.

No. 1–11–2582.

Appellate Court of Illinois, First District, First Division.

May 12, 2014.

12 N.E.3d 595

Michael J. Pelletier, Alan D. Goldberg, and Brian E. Koch, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Amy M. Watroba, and Sheila O'Grady-Krajniak, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 On March 30, 2005, defendant Franchino Greco (Greco) pleaded guilty to criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2004)) predicated on the delivery of 15 to 100 grams of cocaine. On April 19, 2005, the circuit court of Cook County sentenced Greco to seven years' imprisonment. On July 24, 2008, Greco filed a petition to withdraw his guilty plea and vacate the judgment against him pursuant to section 122–1 of the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 (West 2008) ) and section 2–1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1401 (West 2008) ). On August 27, 2008, the trial court summarily dismissed Greco's postconviction petition. On appeal, this court reversed the trial court's summary dismissal of Greco's petition, and remanded the petition for second-stage proceedings. People v. Greco, No. 1–08–2457, 402 Ill.App.3d 1186, 376 Ill.Dec. 786, 1 N.E.3d 119 (Sept. 21, 2010) (unpublished order pursuant to Supreme Court Rule 23 ). On remand, the State filed a motion to dismiss Greco's postconviction petition. On August 18, 2011, the trial court granted the State's motion to dismiss Greco's postconviction petition. Greco now appeals the trial court's judgment which dismissed his postconviction petition at the second stage of proceedings.

¶ 2 On appeal, Greco argues that: (1) the trial court erred in dismissing his postconviction petition because he has made a substantial showing that defense counsel was ineffective for failing to advise him that his guilty plea to criminal drug conspiracy would make him eligible for deportation; (2) the trial court erred in dismissing his postconviction petition because he has made a substantial showing that his guilty plea was not knowing and intelligent due to the court's failure to admonish him that his guilty plea carried possible immigration consequences; and (3) his guilty plea is void and must be vacated because his sentence of seven years' imprisonment was less than the statutorily mandated minimum sentence of nine years' imprisonment. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 3 BACKGROUND

¶ 4 In 2001, Greco, along with 11 other codefendants, was charged by indictment with one count of criminal drug conspiracy. The criminal drug conspiracy count was predicated on several offenses of delivery of a controlled substance, including: delivery of 1 to 15 grams of cocaine; delivery of 15 to 100 grams of cocaine; and delivery of 100 to 400 grams of cocaine. Greco was also separately charged with two counts of delivery of a controlled substance for delivery of 1 to 15 grams of cocaine, and delivery of 100 to 400 grams of cocaine. On March 30, 2005 the circuit court of Cook County held a conference with the parties pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997). After the conference, defense counsel indicated that Greco

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was pleading guilty to “an amended count 1” for criminal drug conspiracy. The trial court admonished Greco that he was pleading guilty to criminal drug conspiracy along with his co-conspirators predicated on delivery of a controlled substance of 15 to 100 grams. The trial court admonished Greco that his offense of criminal drug conspiracy was punishable by 6 to 30 years' imprisonment and that if Greco pleaded guilty the court would sentence him to 7 years' imprisonment. Greco stated that he understood the plea deal, the nature of the offense with which he was being charged, the possible penalties for that offense, and that he was forfeiting his right to trial.

¶ 5 The factual basis for Greco's guilty plea was the State's proffer regarding the admission of co-conspirator statements, which was signed by Greco. The following facts were established by the document containing the co-conspirator statements. Between February 7, 2000, and March 7, 2001, Greco conspired with 11 co-conspirators to distribute cocaine. The co-conspirator statements described several drug transactions and deliveries that involved Greco. Many of the transactions involved unspecified amounts of cocaine. However, in one transaction, Greco approached the vehicle of one of his co-conspirators, Robert Horwitz (Horwitz), with a green object in his jacket pocket. Greco entered Horwitz's vehicle and the two men had a short conversation. Horwitz then placed a clear plastic bag on the dashboard of the vehicle and he and Greco continued to converse. Greco then exited Horwitz's vehicle, went back to his own vehicle, and both men drove away. Shortly thereafter, Horwitz was stopped by the police, and the police discovered 7.6 grams of suspect cocaine in his possession. In another transaction, one of Greco's co-conspirators, Adam Koltun (Koltun), met Greco at a café. Koltun exited the café and approached Greco's vehicle while Greco remained in the café. Koltun opened the passenger side of Greco's vehicle and removed a brown paper bag from the passenger seat. Koltun then walked over to his own vehicle, put the paper bag in the trunk, and then went back inside the café. Shortly thereafter, Koltun exited the café, entered his vehicle and drove away. Koltun was stopped by the police and the police recovered 123.5 grams of cocaine from the paper bag in Koltun's trunk.

¶ 6 On April 19, 2005, the trial court sentenced Greco to seven years' imprisonment for criminal drug conspiracy pursuant to the guilty plea. The trial court merged Greco's two remaining indictment counts for delivery of a controlled substance. Greco did not attempt to withdraw or in any way challenge his guilty plea within the statutorily required time.

¶ 7 On July 24, 2008, Greco filed a hybrid postconviction petition pursuant to section 122–1 of the Act and petition for relief from judgment pursuant to section 2–1401 of the Code. Greco acknowledged that the three-year limitation to file his postconviction petition under section 122–1 of the Act had expired on April 19, 2008, and that his petition was filed after the deadline. However, he argued that his late filing was not due to his culpable negligence. Greco was sentenced on April 19, 2005 and was released from the Illinois Department of Corrections (IDOC) on April 17, 2008. Greco alleged that one week before he was released from the IDOC on April 17, 2008, he was informed that the Department of Homeland Security was going to place him in its custody upon his release. He stated that immediately upon learning about his citizenship issues, he informed his family and asked them to find an attorney to assist him.

¶ 8 In his petition, Greco argued that defense counsel was ineffective for failing to advise him of the potential immigration

12 N.E.3d 597

consequences of his guilty plea. Greco stated that if he had known that his guilty plea would result in deportation, he would not have pleaded guilty. In support of his argument, Greco attached to his petition an affidavit executed by defense counsel which stated that counsel did not advise Greco of the potential immigration consequences of his guilty plea; and an affidavit executed by Greco which stated that he would not have pleaded guilty if he had known of the immigration consequences of his guilty plea. Greco also argued that the trial court violated section 113–8 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113–8 (West 2004) ), because when the court accepted his plea, the court failed to admonish him of the immigration consequences; and that the trial court violated the United States and Illinois Constitutions by failing to admonish him of the potential immigration consequences of his guilty plea.

¶ 9 Additionally, Greco stated that at the time his petition was filed he was 59 years old and had lived in the United States since 1962. He was a permanent resident of the United States but was deportable due to his criminal conviction. Greco had been married for over 30 years and had three children and four grandchildren. Upon his release, he intended to return to his home, where his wife and mother also resided. Further, Greco stated that he suffers from serious and life-threatening medical conditions, including cardiovascular disease and a cervical injury. He attached to his petition an affidavit from a doctor supporting his statements and detailing his medical condition.

¶ 10 On August 27, 2008, the trial court summarily dismissed Greco's postconviction petition at the first stage of proceedings. On appeal, this court reversed the trial court's judgment and remanded the matter for second-stage proceedings. On remand, on April 11, 2011, the State filed a motion to dismiss Greco's postconviction petition. On June 23, 2011, the trial court heard oral arguments on the State's motion to dismiss. On August 18, 2011,...