People v. Guerrero

• Decision Date: 07 September 2018
• Docket Number: Appeal No. 3-17-0786
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eloy GUERRERO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (3d) 170786

133 N.E.3d 1120

433 Ill.Dec. 840

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Eloy GUERRERO, Defendant-Appellant.

Appeal No. 3-17-0786

Appellate Court of Illinois, Third District.

Opinion filed September 7, 2018

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Defendant, Eloy Guerrero, appeals from the denial of his motion to withdraw guilty plea, arguing (1) his postplea counsel labored under a per se conflict of interest, (2) the circuit court erred in denying his motion to withdraw guilty plea where his plea counsel failed to inform defendant he was subject to mandatory deportation, and (3) he is entitled to $5-per-day credit towards his fines. We vacate and remand with directions.

¶ 2 FACTS

¶ 3 On August 20, 2012, defendant pled guilty to conspiracy to commit the offense of unlawful possession of more than 5000 grams of cannabis ( 720 ILCS 550/4(g) (West 2010); 720 ILCS 5/8-2 (West 2010) ) in exchange for a six-year sentencing cap and defendant's cooperation if called to testify. Defendant was represented by Daniel O'Brien, a Knox County alternate public defender. The court explained to defendant that the sentencing cap meant that the State would not ask for more than six years' imprisonment, but that the court could sentence defendant to probation or a period of incarceration, even a period of incarceration greater than six years. The court asked if defendant understood. Defendant stated, "I understand that but, I mean, can I think about this? I mean, I wonder if I can get—it wouldn't affect my immigration status?" The court stated:

"By pleading guilty here today, this could affect your immigration status. If you're here as—illegally or if you're a holder of a green card, there could be immigration consequences; but immigration is a federal matter. It's not a state matter. And while I could tell you that it's possible that any—that what you do here could lead to your deportation from the United States, I have no idea. * * * So I suppose that it could conceivably result in your deportation, but I don't know what will happen."

Defendant's plea counsel then stated, "I've explained it to him as best as I understand the situation with immigration law." Defendant asked if the sentence could be lower. The court stated that defendant could ask for probation, but that it would have to hear and consider the evidence in aggravation and mitigation before deciding on a sentence. Defendant said he understood. Defendant then stated:

"I wonder if it's possible to get—I mean, because—the way I see it is when after—even if I get probation, I might get in trouble with immigration. I'm legally [sic ]. I worked too hard to get [to] this point. And, I mean, I committed a mistake. I—I know this. I really—but I never intend to help these guys to sell or—."

The court asked defendant if he believed six years' imprisonment was excessive. Defendant said he did. The court explained to defendant that he would have an opportunity to tell the court he believed six years' imprisonment was excessive at the sentencing hearing; the court would consider defendant's education, record, work history, and any other evidence before deciding on a sentence; and defendant would not be sentenced on that day. Defendant conferred with his attorney, and then agreed to go forward with the plea.

¶ 4 As to the factual basis, the State said that agents of multiple federal and state agencies would testify that defendant was overheard, via wiretaps, agreeing to take possession of more than 5000 grams of cannabis that was to be delivered to Knox County, Illinois. There was an interception in excess of 5000 grams of cannabis by Illinois State Police that was to be delivered to defendant. Defendant agreed that he still wished to plead guilty. The court accepted the plea as knowingly and voluntarily made.

¶ 5 The case proceeded to a sentencing hearing. The State was represented by David Hansen on the first day of the sentencing hearing. The court sentenced defendant to three years' probation and 90 days in jail. Defendant was assessed a $1000 drug assessment, a $50 court fund fine, a $5 teen court fine, a $30 child advocacy center fine, a $5 drug court fine, a $10 State Police Operations Assistance Fund fine, a $10 probation operations fine, a $25 drug traffic prevention fund fine, and a $100 Trauma Center Fund fine.

¶ 6 On November 28, 2012, defendant, still represented by O'Brien, filed a motion to withdraw his guilty plea. The motion stated that the plea was "made in error" as defendant "felt pressured into pleading guilty although he didn't fully understand the consequences." The motion further stated that defendant's "attorney didn't properly explain the consequences that [defendant's] conviction would have on his immigration status." In an affidavit attached to the motion, defendant averred:

"I feel that I was pressured into pleading guilty in that I didn't understand the full consequences that my guilty plea would have on my immigration status.

I also feel that my attorney improperly advised me as to how my guilty plea and conviction could affect my status as an immigrant."

¶ 7 A hearing was held on the motion. Defendant testified that when he pled guilty, he was aware "that there could possibly be ramifications for [his] immigration status or ability to get * * * citizenship." Defendant stated that he "hear[d] about being deported" and went to see an immigration lawyer. The immigration lawyer told him that, even though he was sentenced to probation, he could still be deported, even if he followed the guidelines of his probation. Defendant stated he was surprised to hear that. Defendant said O'Brien had told him that he did not know what would happen to defendant's immigration status. However, O'Brien never told him that he would not be deported. Defendant said that, at that time, no immigration proceedings had been brought against him. O'Brien did try to have the charge amended based on defendant's immigration status so that defendant ultimately pled to a lower charge than the original charge.

¶ 8 O'Brien then stated:

"I don't actually feel like I erroneously advised [defendant] of the immigration consequences, but I do believe that he was left with an erroneous impression of the immigration consequences through some kind of miscommunication which was certainly in part because of my own lack of familiarity with immigration law.

I talked to an immigration attorney and I did research on my own but it just isn't really my area of expertise and * * * as [defendant] testified, I essentially said I didn't know what was going to happen in the end, whether he would get deported or wouldn't get deported. * * * I get the impression that, again, through a combination of my not fully understanding of the exact process by which immigration works and just the process of communicating all this back and forth with [defendant], I do believe that he * * * had a misapprehension of what the actual immigration consequences were of this plea."

¶ 9 The court denied the motion, noting:

"I don't think Mr. O'Brien is—has led you astray by telling you that there could be consequences and neither did I when we were talking about it in court. I told you that there could be immigration consequences but nobody knows what's going to happen. That's just a risk you have to take. And I think that you were fully aware that there's—there is a risk."

¶ 10 Defendant appealed, and this court summarily remanded the case for proper admonishments under Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). The court properly admonished defendant, and O'Brien filed another motion to withdraw guilty plea on defendant's behalf. The motion stated that defendant felt pressured into pleading guilty when he did not fully understand the consequences. The motion further stated that the plea was made in error because defendant "received ineffective assistance of counsel in that his attorney gave him erroneous advice and failed to properly advise him of the consequences of his guilty plea and that, but for this objectively unreasonable advice, he would not have pled guilty." The motion asserted that there was a doubt as to defendant's guilt and that he had a meritorious defense.

¶ 11 A hearing was held on the motion, during which David Hansen, now working for the public defender's office (see supra ¶ 5), represented defendant. No evidence was presented. The court then denied the motion, stating:

"The fact that you could be deported does not mean that the government would deport you. What you're entitled to be advised of is that there could be immigration consequences, and it could be deportation. And Mr. O'Brien said on the record that he told you about that, and I explained it on the record as well."

¶ 12 ANALYSIS

¶ 13 On appeal, defendant argues (1) his postplea counsel, David Hansen, labored under a per se conflict of interest where he appeared on behalf of the State at defendant's sentencing hearing, (2) the court erred in denying his motion to withdraw the guilty plea where plea counsel was ineffective for failing to affirmatively inform defendant that he was subject to mandatory deportation if he pled guilty to conspiracy to commit the offense of unlawful possession of more than 5000 grams of cannabis, and (3) he is entitled to $5-per-day credit towards his fines. We will consider each argument in turn.

¶ 14 I. Per Se Conflict

¶ 15 Defendant first contends that his postplea counsel labored under a per se conflict of interest, as he appeared for the State at defendant's sentencing hearing. The State confesses error. After reviewing the record, we accept the State's confession.

¶ 16 The right to effective assistance of counsel includes the right to conflict-free representation. People v. Hernandez , 231 Ill. 2d 134, 142, 324 Ill.Dec. 511, 896 N.E.2d 297 (2008). A per se conflict of interest exists "when defense counsel was a former prosecutor who had been...