People v. Huante

• Citation: 143 Ill.2d 61,571 N.E.2d 736,156 Ill.Dec. 756
• Decision Date: 18 April 1991
• Docket Number: No. 69918,69918
• Parties: , 156 Ill.Dec. 756 The PEOPLE of the State of Illinois, Appellant, v. Jose HUANTE, Appellee.
• Court: Supreme Court of Illinois

Page 736

571 N.E.2d 736

143 Ill.2d 61, 156 Ill.Dec. 756

The PEOPLE of the State of Illinois, Appellant, v. Jose HUANTE, Appellee.

No. 69918.

Supreme Court of Illinois.

April 18, 1991.

Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb and Stanislaus Gonsalves, Asst. State's Attys., of counsel), for the People.

Stephen M. Connolly, Chicago, for appellee.

Javier H. Rubinstein, of Mayer, Brown & Platt, Chicago (Roslyn C. Lieb and Susan R. Gzesh, of counsel), for amici curiae Chicago Lawyers' Committee for Civil Rights under Law, Inc., et al.

Chief Justice MILLER delivered the opinion of the court:

Defendant, Jose Huante, pleaded guilty to felony drug charges in the circuit court of Cook County. As a result of the convictions arising from his guilty plea, defendant, a United States resident with legal alien status, is now subject to deportation pursuant to Federal statute. Defendant filed a post-conviction petition seeking to have his guilty plea set aside on grounds that he received ineffective assistance of counsel. In his petition, defendant alleged that his plea was involuntary because his attorney failed to advise him that he would be deported as a result of his convictions. The trial court denied the petition, finding no affirmative misrepresentation of law regarding the deportation consequences. The appellate court, with one justice dissenting, reversed the circuit court's order and remanded the cause with directions to vacate defendant's guilty plea. (194 Ill.App.3d 159, 141 Ill.Dec. 109, 550 N.E.2d 1155.) We allowed the State's petition for leave to appeal (107 Ill.2d R. 315(a)) and now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Defendant was born in Mexico and had resided in the United States as a lawful alien for 13 years at the time of his arrest. He is deemed an "alien" because he is not a citizen of this country. (8 U.S.C. § 1101(a)(3) (1982).) Defendant was arrested on November 13, 1985, after he made three separate sales of cocaine to an undercover Chicago police officer. The total street value of the narcotics delivered by defendant was $6,450, making him eligible for sentencing as a Class X felon. See Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(2).

It appears from the evidence that during discussions between defendant and his attorney regarding plea negotiations and the consequences of pleading guilty, the attorney did not ask defendant about his citizenship, defendant did not disclose to the attorney his alien status, and the attorney was not otherwise aware of that status. The attorney did not at any time advise defendant that he would be subject to deportation as a result of his convictions.

Pursuant to a plea agreement, the State reduced one of the charges to a lesser charge, and defendant pleaded guilty to three counts of delivery of a controlled substance. Defendant was subsequently sentenced to a concurrent three-year term of imprisonment on each of the three counts. At the time the plea was taken, the trial judge advised defendant of the plea consequences in accordance with the requirements of Supreme Court Rule 402 (107 Ill.2d R. 402). Defendant did not thereafter appeal his convictions or file a motion to withdraw his guilty plea. Following his release from prison, defendant learned that the United States Immigration and Naturalization Service had lodged a detainer against him. Defendant is subject to deportation as a convicted felon pursuant to 8 U.S.C. § 1251(a)(11) (1982). There is no dispute here that defendant's convictions require his deportation under that provision.

Defendant began the present action on May 26, 1988, by filing in the circuit court of Cook County a petition pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.). In the petition, defendant asked to have his guilty plea set aside, alleging that because he had been denied the effective assistance of counsel, the plea was involuntary. Specifically, defendant claimed that he would not have pleaded guilty had his attorney first determined his alien status and advised him that he would be subject to deportation as a result of his convictions.

The trial court granted defendant an evidentiary hearing on the post-conviction petition. At the hearing, the presentence report prepared in the original case was admitted as evidence indicating that defendant was born in Mexico, had resided in the United States for 13 years, was employed as a general contractor, and was married and had two children. Defendant's trial attorney testified that at the time he advised defendant to plead guilty, he was aware that a drug conviction could result in deportation under Federal law. The attorney explained that he did not broach the subject of deportation with defendant at any time because he did not know that defendant was an alien or might have any immigration problems.

Defendant also testified at the hearing. He stated that at the time of his arrest he had a "green card," which authorized him to reside legally in the United States. Defendant testified that before pleading guilty, he was not advised by counsel that he would be deported as a result of the convictions arising from the plea. Defendant stated that he would not have entered the guilty plea had he known that he would face deportation as a consequence of the convictions.

The trial judge denied defendant's post-conviction petition. The judge distinguished the present case from People v. Correa (1985), 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, in which counsel was found to be ineffective for giving erroneous advice in response to the defendant's specific questions about deportation, and People v. Padilla (1986), 151 Ill.App.3d 297, 104 Ill.Dec. 522, 502 N.E.2d 1182, in which counsel was found to be ineffective because he knew that the defendant was an alien but failed to advise him of deportation consequences. The trial judge concluded that the attorney's representation of defendant was not ineffective because the attorney was unaware of defendant's alien status and did not affirmatively misrepresent the law.

Defendant appealed. With one justice dissenting, the appellate court reversed. (194 Ill.App.3d 159, 141 Ill.Dec. 109, 550 N.E.2d 1155.) The appellate court found that defendant's attorney knew or should have known that defendant was an alien, and the court found that the attorney's failure to advise defendant of the possible deportation consequences of his convictions constituted ineffective assistance of counsel. (194 Ill.App.3d at 162-63, 141 Ill.Dec. 109, 550 N.E.2d 1155.) The dissenting justice believed that, because the attorney was unaware of defendant's alien status, the attorney's conduct was not deficient. (194 Ill.App.3d at 167, 141 Ill.Dec. 109, 550 N.E.2d 1155 (DiVito, J., dissenting).) We allowed the State's petition for leave to appeal from the appellate court judgment. (107 Ill.2d R. 315(a).) A joint brief in support of the appellate court's decision has been filed by amici curiae, the Chicago Lawyers' Committee for Civil Rights Under Law, Inc., the Mexican American Legal Defense and Education Fund, and Travelers & Immigrants Aid of Chicago. See 107 Ill.2d R. 345.

Our analysis for determining whether defendant has been denied the effective assistance of counsel begins with the standard set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. (See People v. Albanese (1984), 104 Ill.2d 504, 526-27, 85 Ill.Dec. 441, 473 N.E.2d 1246 (adopting standard).) Although Strickland dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, the test announced in that case is applicable as well to challenges to guilty pleas alleging the ineffective assistance of counsel. (Hill v. Lockhart (1985), 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 209.) To show that he was deprived of the effective assistance of counsel, defendant must establish both that his attorney's performance was deficient, and that defendant suffered prejudice as a result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

We applied the Strickland standard in People v. Correa (1985), 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, which also involved an allegation of ineffective assistance of counsel in an attorney's representation of a defendant in entering a guilty plea. In Correa, the defendant's attorney, in response to his client's questions, incorrectly stated that the defendant would not be deported as a result of his convictions in that case. Noting that the defendant had specifically sought his attorney's advice on the potential immigration consequences of a conviction, this court found that the defendant had been denied the effective assistance of counsel. The court also noted that the case was "not one in which counsel simply failed to advise the defendant of the collateral consequence of deportation" (Correa, 108 Ill.2d at 550, 92 Ill.Dec. 496, 485 N.E.2d 307). The court expressly declined to consider the question raised here, whether "the passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea" constituted ineffective assistance of counsel (Correa, 108 Ill.2d at 551, 92 Ill.Dec. 496, 485 N.E.2d 307). In the present case, it is undisputed that the defendant and his attorney did not discuss the defendant's status as a legal alien, and that the attorney did not provide any misleading or incorrect advice with respect to the immigration consequences of a criminal conviction.

Our first inquiry under Strickland is whether counsel's performance was deficient, that is, whether it "fell below an objective standard of reasonableness." (Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693....