People v. Valdez

• Decision Date: 19 May 2015
• Docket Number: No. 3–12–0892.,3–12–0892.
• Citation: 37 N.E.3d 837
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Josue VALDEZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

37 N.E.3d 837

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Josue VALDEZ, Defendant–Appellant.

No. 3–12–0892.

Appellate Court of Illinois, Third District.

May 19, 2015.

Modified Upon Denial of Rehearing Aug. 19, 2015.

Santiago A. Durango (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

Geno J. Caffarini, State's Attorney, of Princeton (Laura E. DeMichael (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice McDADE

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Josue Valdez, was a noncitizen who pled guilty to burglary predicated upon theft (720 ILCS 5/19–1(a)

(West 2012)). He filed a timely motion to withdraw his guilty plea, claiming his counsel provided him ineffective assistance of counsel by failing to advise him that he would be deported as a result of his plea, in violation of the holding in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The trial court denied the motion, finding that counsel's advice was deficient but that defendant was not prejudiced because the court admonished defendant that his plea may have adverse immigration consequences. Defendant appeals. We conclude that the immigration consequences of defendant's plea were clear and that counsel failed to meet his duty to advise defendant of those consequences. Counsel's deficiencies prejudiced defendant, and that prejudice was not cured by the court's admonishments. Therefore, we vacate the judgment and remand for further proceedings.

¶ 2 FACTS

¶ 3 Defendant—a noncitizen from the Dominican Republic married to a United States citizen—was charged with burglary (720 ILCS 5/19–1(a)

(West 2012)) for entering a building with the intent to commit theft after he allegedly took a ring and earrings from a neighbor's unoccupied building. The trial court appointed counsel and an interpreter. At a pretrial hearing, counsel expressed his difficulty explaining to defendant that counsel represented him in his criminal matter only, not in his ongoing divorce. In addition, counsel stated:

“It appears that he is also—an [Immigrations and Customs Enforcement] hold on my client and he may have immigration issues as well, which I also do not represent him on.

So it appears to me that [defendant] has three different and distinct legal problems, and I'm trying to help my client to understand that I'm here on one of those three different legal problems. I don't think it's any secret that I'm not involved in the divorce in this matter. I don't represent him on immigration issues, other than to advise him—

THE COURT: Of a conviction.

COUNSEL: Yes.”

The court granted a recess for counsel to speak with defendant.

¶ 4 When the pretrial hearing came back on the record, the parties announced that they had reached a plea agreement, under which defendant would plead guilty to burglary—a Class 2 felony—and receive a sentence of four months in the county jail, followed by three years' probation. The court admonished defendant about the charge and potential penalties in accordance with Illinois Supreme Court Rule 402(a)

(eff. July 1, 2012).

¶ 5 The court further admonished defendant in accordance with section 113–8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113–8 (West 2012)

):

“THE COURT: If you were not a citizen of the United States, you are hereby advised that a conviction of the offense for which you have been charged, the burglary charge, may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Are you completely satisfied with the way that [defense counsel] has represented you?

THE DEFENDANT: Yes.

THE COURT: Do you have any complaints to make about his work in this case?

THE DEFENDANT: No. Everything has been fine.”

¶ 6 The State presented a factual basis, stating that, if the cause were to proceed to trial, the State would provide evidence that Keith Peterson discovered that his class ring and a pair of his wife's earrings were missing from their house, which had sat uninhabited for a month. Further evidence would show that defendant was in possession of the ring and earrings and that defendant admitted to entering the Petersons' building and taking the property.

¶ 7 When the court asked defendant whether anyone was forcing him to plead guilty, defendant responded:

“THE DEFENDANT: They used it against me, yes. They used it against me because they threatened me with deportation.

THE COURT: Who did?

THE DEFENDANT: The—my wife's dad and grandpa. And he pushed my wife so that she would do the same.

* * *

THE COURT: Okay. I can't accept the guilty plea if you're being forced to do it. I can only accept a guilty plea if you want to do it.

THE DEFENDANT: I have to accept it.

THE COURT: Okay.

THE DEFENDANT: Because I don't have any possibility of winning the case since my wife is being forced here and her father to do certain things. She is the one who took me to that property to see some animals.

THE COURT: How are they making you plead guilty instead of pleading not guilty and having a trial?

THE DEFENDANT: Because you're telling me I have to—they're going to deport me to the Dominican Republic.

THE COURT: Who is telling you that? Who is telling you they're going to deport you?

THE DEFENDANT: Because I have—well, because I won't agree to the divorce. Two days is when I—when I got papers for a divorce.

THE COURT: What does that have to do with whether or not you plead guilty or not guilty to this charge of burglary?

THE DEFENDANT: Because on the theft case, my wife knew that I never touched anything belonging to anyone. Everything that I used, it's with the sweat of my own body.

THE COURT: Okay. Do you want to plead guilty to this charge or do you want to have a trial where—

THE DEFENDANT: I can't go to a trial because I don't have the money to pay an attorney.

THE COURT: You have a free lawyer. He doesn't cost you any money. He is free.

THE DEFENDANT: Yes, but—but the attorney is good and I feel very good and I am very appreciative of everything he has done for me. But it's not the same to pay an attorney that is going to look for all the information of what I need to win the case.

THE COURT: Well, if anybody is forcing you to plead guilty today against your will, then we have to stop right now and we'll just go to trial on the scheduled date of August 27.

THE DEFENDANT: No, I want to accept because—for myself. Because with God, I will get through the problem and I'll leave it behind me.

THE COURT: Okay. But I have to ask you again, then: Are you pleading guilty because that's what you decided that you want to do, or are you doing it because you feel like you're being forced against your will to do it?

THE DEFENDANT: It's because I have decided to do it.

THE COURT: Okay. So let me ask you again: Is anybody forcing you to plead guilty? Because you have a right to plead not guilty and to have a trial to decide whether or not you're guilty. You're not required to plead guilty. You have a right to do that and you have a right to make this deal, but you also have a right not to do it, and I just want to know what you want to do.

THE DEFENDANT: I want to have the opportunity to get out and go back into my career, and a month ago I can come back and fight the case and pay an attorney. Everything will be very different because that attorney would have all the information that they need.

THE COURT: Okay. Well, first of all, you have a very good attorney.

Secondly, these proceedings today are done. There will be no guilty plea because he is telling me he is being forced.

THE DEFENDANT: No, no. I want—everything is fine. I don't want you to stop.

THE COURT: Well—

THE DEFENDANT: I am guilty.

THE COURT: You just told me that you wanted to get out so you could fight the case. You're not going to be able to do that if you plead guilty. Once you plead guilty, the case is over.

THE DEFENDANT: Well, that's fine, then. I want the case to be over. I need to move on.

THE COURT: So do you want to keep going today with this deal?

THE DEFENDANT: Yes.

THE COURT: So is anybody forcing to you [sic ] do it or are you doing it because you want to do it?

THE DEFENDANT: It's because I want to do it.

THE COURT: Are you being forced to do it?

THE DEFENDANT: I can't go back. I have to go forward. Everything has been correct.

THE COURT: I told you that if you're found guilty—and one way that you could be found guilty is if you plead guilty—I've told you that you could be deported from the country. That's not up to me. It's up to the federal government. And I don't know if they would do it or not, but only they can do it. Your wife can't do it as a result of this conviction, but you told me you understood that, if you plead guilty, they could deport you. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And you still want to go forward?

THE DEFENDANT: Yes, I want to go forward.”

The court accepted defendant's guilty plea and the terms of the plea agreement.

¶ 8 Within 30 days of entering his plea, defendant filed a pro se motion to “open and vacate” his conviction. The court treated that filing as a motion to withdraw defendant's guilty plea and appointed new counsel for defendant. Counsel filed an amended motion to withdraw the guilty plea, arguing that the guilty plea was involuntary due, in part, to the erroneous advice of counsel. In addition, defendant claimed that he was innocent of the charged conduct, alleging that he found the jewelry in a gas station parking lot and did not take it from the Petersons' building. Defendant argued that the police investigation reports would support defendant's claim that he found the jewelry rather than took it from the Petersons. In addition, defendant argued that counsel was ineffective for advising him to stipulate to an erroneous set of facts at the guilty plea hearing.

¶ 9 A hearing was held on the amended...