People v. Lopez
| Citation | 41 N.E.3d 664 |
| Decision Date | 30 September 2015 |
| Docket Number | No. 1–14–2260.,1–14–2260. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Joan LOPEZ, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Jacob S. Briskman, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Miles J. Keleher, and Margaret M. Smith, Assistant State's Attorneys, of counsel), for the People.
¶ 1 On August 4, 2010, defendant, Joan Lopez, pled guilty to possession of a controlled substance. The circuit court of Cook County accepted the parties' plea agreement and sentenced defendant to “24 months' 410 probation.” In April 2011 defendant filed a document titled “Amended Motion to Withdraw Plea of Guilty.” The trial court treated defendant's pleading as a petition for postconviction relief and it was summarily dismissed. This court reversed, finding defendant stated the gist of a constitutional claim counsel was ineffective for failing to properly advise defendant of the immigration consequences of his plea. On remand, the trial court granted the State's motion to dismiss the petition.
¶ 2 For the following reasons, we reverse.
¶ 4 The factual basis for defendant's guilty plea established that police arrested defendant smoking a hand-rolled cigar that smelled of cannabis and seized a bag filled with a substance determined to be cannabis from defendant's waistband. The cigar contained 0.6 grams of cannabis and the bag contained 195.1 grams of cannabis. At defendant's plea hearing, the State advised the court that in exchange for defendant's plea of guilty, the The trial court admonished defendant he was charged “with the offense of possession of controlled substance” and that the offense was a Class 4 felony. The State asked for “leave for an amendment not to the class, but the amount” of controlled substance alleged in the information. The court allowed leave to amend.
¶ 5 The trial court admonished defendant as to his rights with regard to pleading guilty. The following colloquy pertinent to this appeal occurred:
¶ 6 The trial court stated defendant “does understand this may impact his status in the country from [sic ] the future and he wishes to still plead guilty.” The court stated it would accept the plea agreement, found defendant guilty, and sentenced him to “24 months 410 probation.” The record indicates that the court entered a conviction for possession with intent to deliver more than 10 but less than 30 grams of cannabis in violation of section 5(c) of the Cannabis Control Act (720 ILCS 550/5(c) (West 2010)). Defendant never completed his probation because he was deported.
¶ 7 In April 2011 defendant filed a document titled “Amended Motion to Withdraw Plea of Guilty.” Defendant brought the motion pursuant to section 122–1 of the Post–Conviction Hearing Act (Act) (725 ILCS 5/ 122–1 (West 2010)); section 2–1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–1401 (West 2010) ); Illinois Supreme Rule 604(d) (eff. July 1, 2006) and Rule 402(a) (eff. July 1, 1997); and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The trial court, and the parties, treated the motion as a petition for postconviction relief. Defendant's petition sought to withdraw his guilty plea on the grounds he was not advised of the nature of the charge he was pleading guilty to and his attorney did not inform him of the consequences of his plea. Defendant specifically alleged, in pertinent part, as follows:
¶ 8 Defendant attached his own affidavit in support of the petition. Defendant averred that prior to the hearing on his guilty plea (he did not state a date), his attorney informed him the State had “two separate” plea agreement offers. The first offer was for defendant to plead guilty and receive “a stricter form” of probation that would be added to his criminal record. Defendant then averred, in pertinent part, as follows:
“The second plea offer was for a more serious charge (Manufacture and Delivery of Cannabis) but the * * * Public Defender misled me to believe I would get a less stringent form of Probation by pleading guilty to this charge, and the conviction would not be added to my criminal record, and that this conviction would not have adverse immigration consequences.” (Emphases omitted.)
¶ 9 The trial court held a hearing on defendant's petition. The court found it had been made clear to defendant when he pled guilty that a felony conviction would impact his immigration status. The court also found the conviction was not for manufacture and delivery, but both charges were Class 4 felonies with identical sentencing guidelines. Defendant's attorney asked whether the judgment could be amended to reflect that defendant was convicted of possession of a controlled substance but the trial court refused. The court dismissed defendant's petition. Defendant filed a motion to reconsider. Defendant's attorney argued, in part, that defendant was not fully apprised of the nature of the charge to which he pled guilty, where he was advised the charge was possession of a controlled substance but the judgment states defendant was convicted of possession with intent to deliver. The trial court denied defendant's motion to reconsider the order dismissing the petition.
¶ 10 Defendant appealed, arguing, in pertinent part, his trial counsel was ineffective for misadvising him of the immigration consequences of the guilty plea, the trial court failed to sufficiently admonish him of the nature of the charge as required by Rule 402(c), and his due process rights were violated because he was never advised of the true charge. This court found that the penal consequences of possession of a controlled substance and possession with intent to deliver were the same in this case and the trial court was not required to admonish defendant of collateral consequences, including the effect of the plea on defendant's immigration status. Therefore, this court found, the trial court substantially complied with Rule 402 by informing defendant of the direct consequences of his plea and defendant was not prejudiced by the court's incomplete admonishments. Consequently, the court did not violate defendant's due process rights.
¶ 11 This court also found that accepting as true defendant's allegation that his attorney advised him that pleading guilty to a charge of manufacture and delivery of cannabis would not have adverse immigration consequences, defendant sufficiently alleged a constitutional deprivation to survive dismissal at the first stage of postconviction proceedings. This is because under the Deportation of Aliens statute (8 U.S.C. § 1227(a)(2)(B)(i) (2006) ), a conviction for a violation of any offense relating to a controlled substance, “other than a single offense involving possession * * * of 30 grams or less of marijuana, is deportable.” This court reversed the first-stage dismissal and remanded for further proceedings.
¶ 12 On remand, the State filed a motion to dismiss. In the State's motion to dismiss it stated that “defendant entered a plea of guilty to the amended charge of Delivery of Cannabis of between 10–30 grams, which is also a Class 4 felony, and was sentenced to 24 months' 410 probation pursuant to 720 ILCS 550/10.” Defendant filed a response to the State's motion to dismiss and supported it with his own affidavit. In his affidavit in support of his response to the State's motion to dismiss, defendant averred, in pertinent part, as follows:
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