People v. Guzman

• Decision Date: 11 December 2014
• Docket Number: Nos. 3–09–0464,3–10–0802.,s. 3–09–0464
• Citation: 24 N.E.3d 831
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee v. Jorge A. GUZMAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

24 N.E.3d 831

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Jorge A. GUZMAN, Defendant–Appellant.

Nos. 3–09–0464
3–10–0802.

Appellate Court of Illinois, Third District.

Dec. 11, 2014.

24 N.E.3d 833

Andrew J. Boyd, of State Appellate Defender's Office, of Ottawa, for appellant.

James Glasgow, State's Attorney, of Joliet (Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant Jorge Guzman was indicted for the offense of aggravated possession of stolen firearms (720 ILCS 5/16–16.1(a)(1) (West 2008)) and entered a negotiated guilty plea. On appeal, defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because he was not informed by the trial court or trial counsel of potential immigration consequences of his conviction (No. 3–09–0464). He also appeals from the dismissal of his postconviction petition, claiming that we should remand for further proceedings because postconviction counsel failed to include timely allegations that defendant would not have pled guilty if he had been properly informed of the immigration consequences (No. 3–10–0802). We affirm the order denying defendant's motion to withdraw his plea in appeal No. 3–09–0464. We reverse the order dismissing defendant's postconviction petition and remand for further second stage proceedings in appeal No. 3–10–0802.

¶ 2 At the plea hearing, the State provided a factual basis in which it was shown that defendant was in possession of stolen firearms. The trial court then asked defendant, “[I]s that what happened?” Defendant responded, “[N]ot really.” The court recessed to allow defendant to talk to counsel. When the hearing continued, the court asked if defendant agreed to the provided factual basis. Defendant said that he did and that he was mistaken in his earlier answer. The court accepted defendant's plea.

¶ 3 The case then proceeded directly to sentencing. Prior to rendering the sentence,

24 N.E.3d 834

the trial court asked defendant if he was a United States citizen, and defendant stated that he was a resident. Specifically, the following discussion took place:

“THE COURT: Is he a U.S. citizen?

DEFENDANT: Yes, sir.

THE COURT: You are?

DEFENDANT: I'm sorry. I'm a permanent legal resident.”

¶ 4 The court sentenced defendant to four years' imprisonment with the recommendation that he be placed in the impact incarceration program.

¶ 5 On March 6, 2009, defendant filed a motion to withdraw his guilty plea. The written motion contained no arguments in support of his request. At the hearing, counsel argued that defendant's guilty plea was involuntary because the trial court failed to admonish him under section 113–8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113–8 (West 2008) ) of the legal immigration consequences he faced if he pled guilty:

“MS. TISDALE [defense counsel]: * * * [T]he language of 725 ILCS 5/113–A [sic ], is that if you are not a citizen of the United state, [sic ] you're hereby advised that the—that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, your Honor. And that admonishment was not given to Mr. Guzman.

Your Honor, it's your Honor's discretion as to whether he should be allowed to withdraw his plea of guilty or not. And seeing as though both of the cases that have been presented to your Honor, it isn't clear as to what the interpretation of that statute actually is. One case thinks it's instructionary, and another case thinks it's mandatory.

I would ask that Mr. Guzman be allowed to withdraw his plea of guilty.”

The court denied defendant's motion after finding that the admonishments were directory, not mandatory. Defendant filed a notice of appeal from that order on June 11, 2009 (No. 3–090464).

¶ 6 On appeal, defendant argued that the trial court erred in failing to inform him of the possible immigration consequences of his guilty plea under section 113–8 of the (725 ILCS 5/113–8 (West 2008) ) and that trial counsel was ineffective for the failing to inform him of those same consequences. On December 20, 2011, we reversed the trial court's decision as to the constitutional argument and found that trial court's failure to inform defendant as to the immigration consequences of his plea rendered his plea involuntary in light of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). People v. Guzman, 2011 IL App (3d) 090464, 357 Ill.Dec. 281, 962 N.E.2d 1182 (withdrawn Nov. 27, 2012).

¶ 7 Meanwhile, on July 12, 2010, defendant, through private counsel, filed a petition to vacate the judgment of conviction pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401(a) (West 2010)). That petition alleged that neither the trial court nor trial counsel advised defendant as to the potential deportation consequences of his plea and that removal proceedings against defendant had been initiated as a result of his plea. The petition further claimed that trial counsel's failure to advise defendant of the immigration consequences of the guilty plea constituted ineffective assistance of counsel.

¶ 8 The trial court dismissed the petition, noting that claims of ineffective assistance of counsel are not cognizable in section 2–1401 petitions. The court granted

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counsel leave to file a postconviction petition.

¶ 9 That same day, counsel filed a petition for postconviction relief, alleging that (1) neither the trial court nor trial counsel informed defendant of the immigration consequences of his plea, (2) removal proceedings against defendant had begun as a result of the plea, (3) trial counsel's failure to advise defendant of the immigration consequences constituted ineffective assistance of trial counsel, and (4) defendant therefore did not enter his plea knowingly or voluntarily. The State filed a motion to dismiss claiming, among other things, that the petition lacked the necessary evidentiary affidavits in support of defendant's claims.

¶ 10 At the second stage hearing on October 7, 2010, defense counsel presented the court with an affidavit from defendant stating that the statements in the petition were true and accurate and that neither the trial court nor defendant's attorney advised defendant that he might be deported if he pled guilty to the felony charge. The trial court denied the petition, finding that there was no evidence in the record that defendant would have gone to trial had he been informed of the potential immigration consequences of his plea. Defendant filed a notice of appeal from that order on October 8, 2010 (No. 3–10–0802).

¶ 11 On October 21, 2010, defense counsel submitted an amended postconviction petition. The amended petition included another affidavit stating that if defendant had been informed of the immigration consequences of his plea, he would not have pled guilty. The affidavit was signed by defendant but was not notarized. No further proceedings were conducted by the trial court.

¶ 12 On March 28, 2012, the Illinois Supreme Court allowed the State's petition for leave to appeal in case No. 3–09–0464. People v. Guzman, No. 113730, 360 Ill.Dec. 6, 968 N.E.2d 85 (Mar. 28, 2012). In defendant's supreme court brief, he admitted that the record in case No. 3–09–0464 was silent as to whether trial counsel actually discussed the potential immigration consequences of a guilty plea with him. Defendant therefore stated that he would not pursue the ineffective assistance claim on direct appeal. However, defendant noted that he had filed a postconviction petition arguing that trial counsel was ineffective and that the matter was currently on appeal before the appellate court.

¶ 13 The supreme court remanded the case and directed us to consider whether the trial court's failure to admonish defendant pursuant to section 113–8 of the Code should result in the defendant being allowed to withdraw his guilty plea. People v. Guzman, No. 113730 (Ill. Oct. 17, 2012) (supervisory order). In its supervisory order, the court also stated that “[t]he appellate court may, in its discretion, choose to consolidate this appeal on remand with the defendant's appeal of the dismissal of [his] postconviction petition, currently pending in the Appellate Court as People v. Guzman, No. 3–10–0802.” On the supreme court's advice, we consolidated appeal Nos. 3–09–0464 and 3–10–0802 and set a schedule for supplemental briefing by the parties. We also entered a minute order withdrawing our original opinion.

¶ 14 On January 23, 2014, we issued an opinion granting defendant relief on direct appeal based on his ineffective assistance of trial counsel claim. We dismissed the appeal in No. 3–10–0802, concluding that the postconviction issue was moot. People v. Guzman, 2014 IL App (3d) 090464, ¶ 37, 388 Ill.Dec. 551, 24 N.E.3d 831 . Justice Holdridge...