People v. Greco ( 2014 )

Illinois Official Reports
Appellate Court
People v. Greco, 2014 IL App (1st) 112582Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption FRANCHINO GRECO, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-11-2582
Filed May 12, 2014
Held The dismissal of defendant’s postconviction petition was upheld over
(Note: This syllabus his contentions that he made a substantial showing that his counsel
constitutes no part of the was ineffective in failing to advise him that his guilty plea made him
opinion of the court but eligible for deportation, that the plea was not knowing and intelligent
has been prepared by the in the absence of an admonishment by the trial court of the
Reporter of Decisions immigration consequences, and that his sentence was less than the
for the convenience of mandated minimum, since the new rule in Padilla that counsel must
the reader.) advise defendant of the possibility of deportation as a result of a guilty
plea did not retroactively apply to defendant’s case, the trial court,
pursuant to Delvillar, was not required to admonish defendant of the
immigration consequences of his guilty plea, and the new rule in
White that a court does not have the authority to impose a sentence that
does not conform to the statutory guidelines does not retroactively
apply to defendant’s case, and even if it did, defendant could not
complain about an error that was to his benefit.
Decision Under Appeal from the Circuit Court of Cook County, No. 01-CR-7223; the
Review Hon. Domencia A. Stephenson, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Brian E. Koch, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Amy M. Watroba, and Sheila O’Grady-Krajniak, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Connors and Justice Hoffman concurred in the
judgment and opinion.
OPINION
¶1 On March 30, 2005, defendant Franchino Greco (Greco) pleaded guilty to criminal drug
conspiracy (720 ILCS 570/405.1(a) (West 2004)) predicated on the delivery of 15 to 100
grams of cocaine. On April 19, 2005, the circuit court of Cook County sentenced Greco to
seven years’ imprisonment. On July 24, 2008, Greco filed a petition to withdraw his guilty
plea and vacate the judgment against him pursuant to section 122-1 of the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 (West 2008)) and section 2-1401 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). On August 27, 2008, the trial court
summarily dismissed Greco’s postconviction petition. On appeal, this court reversed the trial
court’s summary dismissal of Greco’s petition, and remanded the petition for second-stage
proceedings. People v. Greco, No. 1-08-2457 (Sept. 21, 2010) (unpublished order under
Supreme Court Rule 23). On remand, the State filed a motion to dismiss Greco’s
postconviction petition. On August 18, 2011, the trial court granted the State’s motion to
dismiss Greco’s postconviction petition. Greco now appeals the trial court’s judgment which
dismissed his postconviction petition at the second stage of proceedings.
¶2 On appeal, Greco argues that: (1) the trial court erred in dismissing his postconviction
petition because he has made a substantial showing that defense counsel was ineffective for
failing to advise him that his guilty plea to criminal drug conspiracy would make him eligible
for deportation; (2) the trial court erred in dismissing his postconviction petition because he
has made a substantial showing that his guilty plea was not knowing and intelligent due to
the court’s failure to admonish him that his guilty plea carried possible immigration
consequences; and (3) his guilty plea is void and must be vacated because his sentence of
seven years’ imprisonment was less than the statutorily mandated minimum sentence of nine
years’ imprisonment. For the following reasons, we affirm the judgment of the circuit court
of Cook County.
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¶3 BACKGROUND
¶4 In 2001, Greco, along with 11 other codefendants, was charged by indictment with one
count of criminal drug conspiracy. The criminal drug conspiracy count was predicated on
several offenses of delivery of a controlled substance, including: delivery of 1 to 15 grams of
cocaine; delivery of 15 to 100 grams of cocaine; and delivery of 100 to 400 grams of cocaine.
Greco was also separately charged with two counts of delivery of a controlled substance for
delivery of 1 to 15 grams of cocaine, and delivery of 100 to 400 grams of cocaine. On March
30, 2005 the circuit court of Cook County held a conference with the parties pursuant to
Illinois Supreme Court Rule 402 (eff. July 1, 1997). After the conference, defense counsel
indicated that Greco was pleading guilty to “an amended count 1” for criminal drug
conspiracy. The trial court admonished Greco that he was pleading guilty to criminal drug
conspiracy along with his co-conspirators predicated on delivery of a controlled substance of
15 to 100 grams. The trial court admonished Greco that his offense of criminal drug
conspiracy was punishable by 6 to 30 years’ imprisonment and that if Greco pleaded guilty
the court would sentence him to 7 years’ imprisonment. Greco stated that he understood the
plea deal, the nature of the offense with which he was being charged, the possible penalties
for that offense, and that he was forfeiting his right to trial.
¶5 The factual basis for Greco’s guilty plea was the State’s proffer regarding the admission
of co-conspirator statements, which was signed by Greco. The following facts were
established by the document containing the co-conspirator statements. Between February 7,
2000, and March 7, 2001, Greco conspired with 11 co-conspirators to distribute cocaine. The
co-conspirator statements described several drug transactions and deliveries that involved
Greco. Many of the transactions involved unspecified amounts of cocaine. However, in one
transaction, Greco approached the vehicle of one of his co-conspirators, Robert Horwitz
(Horwitz), with a green object in his jacket pocket. Greco entered Horwitz’s vehicle and the
two men had a short conversation. Horwitz then placed a clear plastic bag on the dashboard
of the vehicle and he and Greco continued to converse. Greco then exited Horwitz’s vehicle,
went back to his own vehicle, and both men drove away. Shortly thereafter, Horwitz was
stopped by the police, and the police discovered 7.6 grams of suspected cocaine in his
possession. In another transaction, one of Greco’s co-conspirators, Adam Koltun (Koltun),
met Greco at a café. Koltun exited the café and approached Greco’s vehicle while Greco
remained in the café. Koltun opened the passenger side of Greco’s vehicle and removed a
brown paper bag from the passenger seat. Koltun then walked over to his own vehicle, put
the paper bag in the trunk, and then went back inside the café. Shortly thereafter, Koltun
exited the café, entered his vehicle and drove away. Koltun was stopped by the police and the
police recovered 123.5 grams of cocaine from the paper bag in Koltun’s trunk.
¶6 On April 19, 2005, the trial court sentenced Greco to seven years’ imprisonment for
criminal drug conspiracy pursuant to the guilty plea. The trial court merged Greco’s two
remaining indictment counts for delivery of a controlled substance. Greco did not attempt to
withdraw or in any way challenge his guilty plea within the statutorily required time.
¶7 On July 24, 2008, Greco filed a hybrid postconviction petition pursuant to section 122-1
of the Act and petition for relief from judgment pursuant to section 2-1401 of the Code.
Greco acknowledged that the three-year limitation to file his postconviction petition under
section 122-1 of the Act had expired on April 19, 2008, and that his petition was filed after
the deadline. However, he argued that his late filing was not due to his culpable negligence.
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Greco was sentenced on April 19, 2005 and was released from the Illinois Department of
Corrections (IDOC) on April 17, 2008. Greco alleged that one week before he was released
from the IDOC on April 17, 2008, he was informed that the Department of Homeland
Security was going to place him in its custody upon his release. He stated that immediately
upon learning about his citizenship issues, he informed his family and asked them to find an
attorney to assist him.
¶8 In his petition, Greco argued that defense counsel was ineffective for failing to advise
him of the potential immigration consequences of his guilty plea. Greco stated that if he had
known that his guilty plea would result in deportation, he would not have pleaded guilty. In
support of his argument, Greco attached to his petition an affidavit executed by defense
counsel which stated that counsel did not advise Greco of the potential immigration
consequences of his guilty plea and an affidavit executed by Greco which stated that he
would not have pleaded guilty if he had known of the immigration consequences of his guilty
plea. Greco also argued that the trial court violated section 113-8 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/113-8 (West 2004)), because when the court accepted his
plea, the court failed to admonish him of the immigration consequences; and that the trial
court violated the United States and Illinois Constitutions by failing to admonish him of the
potential immigration consequences of his guilty plea.
¶9 Additionally, Greco stated that at the time his petition was filed he was 59 years old and
had lived in the United States since 1962. He was a permanent resident of the United States
but was deportable due to his criminal conviction. Greco had been married for over 30 years
and had three children and four grandchildren. Upon his release, he intended to return to his
home, where his wife and mother also resided. Further, Greco stated that he suffers from
serious and life-threatening medical conditions, including cardiovascular disease and a
cervical injury. He attached to his petition an affidavit from a doctor supporting his
statements and detailing his medical condition.
¶ 10 On August 27, 2008, the trial court summarily dismissed Greco’s postconviction petition
at the first stage of proceedings. On appeal, this court reversed the trial court’s judgment and
remanded the matter for second-stage proceedings. On remand, on April 11, 2011, the State
filed a motion to dismiss Greco’s postconviction petition. On June 23, 2011, the trial court
heard oral arguments on the State’s motion to dismiss. On August 18, 2011, the trial court
entered an order which dismissed Greco’s petition at the second stage of proceedings.
Initially, the trial court found that although Greco’s petition was untimely, the untimeliness
was not due to Greco’s culpable negligence and thus the court considered the arguments in
his petition. The trial court next found that Greco failed to establish that defense counsel was
ineffective for failing to advise him of the immigration consequences of his guilty plea. The
court reasoned that regardless of whether counsel’s performance was unreasonable, Greco
was not able to show that he was prejudiced by counsel’s performance. The court stated that
even though Greco claimed that he would not have pleaded guilty, Greco did not show that
he would have insisted on going to trial or that he would have likely succeeded at trial. Also,
the trial court rejected Greco’s argument that the court’s failure to admonish him of the
immigration consequences of his guilty plea violated Greco’s due process and equal
protection rights. The court reasoned that Illinois courts have held that arguments such as
Greco’s do not amount to a constitutional violation because deportation is merely a collateral
consequence and is not cognizable under the Act. Finally, the court found that Greco’s
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arguments were not proper for a section 2-1401 motion. Thus, the trial court dismissed
Greco’s petition at the second stage of proceedings.
¶ 11 Also on August 18, 2011, Greco filed a timely notice of appeal. Therefore, this court has
jurisdiction to consider Greco’s arguments on appeal pursuant to Illinois Supreme Court
Rules 651 (eff. Feb. 6, 2013) and 606 (eff. Feb. 6, 2013).
¶ 12 ANALYSIS
¶ 13 On appeal, we determine the following issues: (1) whether the trial court erred in
dismissing Greco’s postconviction petition because he has made a substantial showing that
defense counsel was ineffective for failing to advise him that his guilty plea would make him
eligible for deportation; (2) whether the trial court erred in dismissing Greco’s postconviction
petition because he has made a substantial showing that his guilty plea was not knowing and
intelligent due to the court’s failure to admonish him of possible immigration consequences;
and (3) whether Greco’s guilty plea is void and must be vacated because his sentence of
seven years’ imprisonment was less than the statutorily mandated minimum sentence of nine
years’ imprisonment.
¶ 14 We first determine whether the trial court erred in dismissing Greco’s postconviction
petition because he has made a substantial showing that defense counsel was ineffective for
failing to advise him that his guilty plea would make him eligible for deportation.
¶ 15 Greco argues that he has made a substantial showing that defense counsel was ineffective
for failing to advise him that his guilty plea would make him eligible for deportation based
on the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010).
Greco points out that the Padilla court held that counsel is deficient if counsel does not
inform his client that the client’s guilty plea carries a risk of deportation. Padilla, 559 U.S. at
373-74. Greco argues that this case is directly analogous to Padilla. Thus, Greco contends
that based on the Court’s holding in Padilla, defense counsel in this case was deficient for
failing to advise him of the possible immigration consequences of his guilty plea.
Additionally, Greco argues that he was prejudiced by defense counsel’s performance. Greco
points out that at the time his petition was filed, he was a lawful permanent resident in the
United States with very significant family ties within the United States. He also details his
numerous medical conditions, including cardiovascular disease and a cervical injury. Greco
alleges that he has no family, property, means of support, or known access to health care in
his native country of Italy. Greco asserts that these facts corroborate his claim that if he had
known that his guilty plea would result in deportation, he would not have pleaded guilty and
would have insisted on going to trial.
¶ 16 Greco acknowledges that Padilla was decided long after his conviction became final.
Thus, an issue arises of whether Padilla can be applied retroactively to Greco’s case. Greco
points out that the test for retroactivity used by Illinois courts was set forth in Teague v. Lane,
489 U.S. 288 (1989). In order to determine whether the rule in a later case applies
retroactively to a prior case on collateral review, this court must determine whether the rule
established in the later case is a new rule. If the rule is new, then it does not apply
retroactively to prior cases on collateral review unless the prior case falls under certain
narrow exceptions. Teague, 489 U.S. at 311-13. However, if the rule is not new, then it
applies to prior cases on collateral review. People v. Kizer, 318 Ill. App. 3d 238, 246 (2000).
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¶ 17 Greco further acknowledges that in Chaidez v. United States, 568 U.S. ___, ___, 133 S.
Ct. 1103, 1107-08 (2013), the United States Supreme Court held that Padilla established a
new rule of criminal procedure and, therefore, does not apply retroactively to cases in which
the defendant’s conviction was final before Padilla was decided. The Court in Chaidez
analyzed the rule established in Padilla using the Teague test for retroactivity. However,
Greco points out that in Danforth v. Minnesota, 552 U.S. 264, 281-82 (2008), the United
States Supreme Court held that state courts are not bound by Teague when determining
whether a rule applies retroactively in a state collateral proceeding. Therefore, Greco requests
that this court decline to follow the Supreme Court in Chaidez. Rather, Greco urges this court
to follow an Illinois Appellate Court case, People v. Gutierrez, 2011 IL App (1st) 093499,
which was decided prior to Chaidez. In Gutierrez, this court held that Padilla did not
announce a new rule and therefore could be applied retroactively. Gutierrez, 2011 IL App
(1st) 093499, ¶ 42. Greco contends that Gutierrez correctly found that Padilla simply applied
the common standard for ineffective assistance of counsel to a new set of facts involving
immigration consequences, and thus did not establish a new rule or change the law at all.
Accordingly, Greco requests that this court apply Padilla retroactively and find that defense
counsel in this case was ineffective for failing to advise Greco that his guilty plea would
make him eligible for deportation.
¶ 18 In response, the State argues that the trial court properly dismissed Greco’s petition
because Greco failed to make a substantial showing that defense counsel was ineffective. The
State points out that in order to show that counsel was ineffective, Greco must show that
counsel’s performance was deficient and that he was prejudiced by counsel’s performance.
Primarily, the State argues that Greco failed to show that defense counsel was deficient
because Padilla was decided after Greco’s conviction was final and cannot be applied
retroactively to this case. In support of its argument, the State relies on the Chaidez court’s
holding that Padilla established a new rule of law and cannot be applied retroactively. Thus,
the State contends that Greco must be able to show that counsel was deficient based on the
law at the time of his guilty plea. The State points out that prior to Padilla, Illinois courts
generally held that failure to advise a client of potential collateral consequences of a
conviction fell outside counsel’s constitutional requirements. As such, the State asserts that
Greco is unable to show that counsel was defective based on the law at the time his petition
was filed.
¶ 19 Additionally, the State argues that even if this court finds that defense counsel’s
performance was deficient in this case, Greco has still failed to substantially show that he
was prejudiced by counsel’s performance. The State points out that Greco argued that to
establish prejudice, he only had to show that, but for counsel’s errors, there is a reasonable
probability that he would not have pleaded guilty and would have insisted on going to trial.
However, the State argues that in order to establish prejudice, Greco must assert a claim of
actual innocence or articulate a plausible defense that could have been raised at trial. The
State argues that a bare allegation that Greco would have insisted on going to trial is not
enough to establish prejudice. The State claims that Greco’s petition lacks any claims of
actual innocence or any plausible defenses that could have been raised at trial. Thus, the State
argues that Greco failed to establish that he was prejudiced by defense counsel’s
performance. Accordingly, the State argues that Greco was unable to substantially show that
defense counsel was ineffective.
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¶ 20 The Act provides a method through which a defendant may challenge his conviction or
sentence for violation of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d
458, 471 (2006). “To be entitled to postconviction relief, a defendant must show that he has
suffered a substantial deprivation of his federal or state constitutional rights in the
proceedings that produced the conviction or sentence being challenged.” Id. In noncapital
cases, postconviction proceedings under the Act consist of three stages. Id. at 471-72. At the
first stage, the trial court must review the defendant’s petition within 90 days and may
dismiss the petition if it is frivolous or patently without merit. Id. at 472. At the second stage,
if the defendant is indigent, counsel may be appointed for the defendant. Id. The State then
has the option to answer the petition, or move to dismiss the petition. People v. Turner, 2012
IL App (2d) 100819, ¶ 19. “The trial court then determines whether the petition alleges a
‘substantial showing of a constitutional violation.’ ” Id. (quoting People v. Phyfiher, 361 Ill.
App. 3d 881, 883 (2005)). “If the allegations in the petition *** demonstrate a substantial
violation of a constitutional right, the petition proceeds to the third stage, at which point the
court conducts an evidentiary hearing.” Turner, 2012 IL App (2d) 100819, ¶ 20. When a
postconviction petition is dismissed at the second stage of proceedings without an evidentiary
hearing, we review the trial court’s dismissal under the de novo standard of review. Id. ¶ 21.
In this case, the trial court dismissed Greco’s petition at the second stage of proceedings
without conducting an evidentiary hearing. Thus, we review the trial court’s judgment using
the de novo standard.
¶ 21 In order to establish ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient to the extent that it fell below an objective standard of
reasonableness and that he suffered prejudice as a result of counsel’s performance. People v.
Brock, 2012 IL App (4th) 100945, ¶ 11 (citing Strickland v. Washington, 466 U.S. 668(1984)). The United States Supreme Court has held that this standard applies to ineffective
assistance claims arising out of counsel’s representation during the plea process. Hill v.
Lockhart, 474 U.S. 52, 57 (1985).
¶ 22 In this case, Greco relies on Padilla to support his argument that counsel was ineffective
for failing to advise him of the possibility of deportation as a result of his guilty plea. In
Padilla, the defendant was a native of Honduras and had been a lawful permanent resident of
the United States for over 40 years. Padilla, 559 U.S. at 359. The defendant pleaded guilty to
transporting a large amount of marijuana and subsequently faced deportation as a result of his
conviction. Id. In a postconviction petition, the defendant claimed that defense counsel was
ineffective because counsel failed to advise him of the deportation consequence prior to
entering his guilty plea and also told him that he did not need to worry about his citizenship
because he had been in the country for so long. Id. The defendant asserted that if he had not
received erroneous advice from counsel, he would have insisted on going to trial. Id.¶ 23 The Supreme Court noted that immigration law has evolved in that deportation is nearly
inevitable for noncitizens who are convicted of crimes. Id. at 360. The Court stated that the
consequence of deportation has made legal advice for noncitizens accused of crimes
extremely important. Id. at 364. Further, the Court stated that deportation is an integral part,
and sometimes the most important part, of the penalty imposed on noncitizen defendants who
plead guilty to crimes. Id. The Court noted that historically, in state courts, a defendant’s risk
of deportation was considered a collateral matter because it was not within the sentencing
authority of the state trial courts and many courts considered collateral consequences to be
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outside the scope of a defendant’s right to effective assistance of counsel under the sixth
amendment. Id. at 364-65. Thus, many state courts historically held that because deportation
was a collateral consequence, failure to advise a defendant of possible deportation
consequences was not cognizable as a claim for ineffective assistance of counsel. Id. at 365.
¶ 24 However, the Padilla Court disagreed with the historical construction of deportation as a
strictly collateral consequence. The Court stated that “[a]lthough removal proceedings are
civil in nature, [citation], deportation is nevertheless intimately related to the criminal
process.” Id. The Court concluded that because deportation as a consequence of a conviction
is so closely connected to the criminal process, it is uniquely difficult to classify as either a
direct or collateral consequence. Id. at 366. Thus, the Court held that the risk of deportation is
not to be evaluated using the collateral versus direct consequence distinction, and advice
regarding deportation is not categorically removed from the ambit of the right to effective
assistance of counsel. Id. Accordingly, the Court held that the defendant sufficiently alleged
that counsel’s performance was deficient for failing to correctly advise him of the possibility
of deportation as a result of his guilty plea. Id. at 366-69.
¶ 25 We agree with Greco that Padilla is analogous to this case. However, the resolution of
this issue depends on whether the rule established in Padilla can be applied retroactively to
this case. Illinois courts use the standard set forth in Teague to determine whether the rule in
a later case can be applied retroactively to a case in which the defendant’s conviction was
final before the later case was decided. See People v. Davis, 388 Ill. App. 3d 869, 879-80
(2009). As previously discussed, the court must determine if the rule established in the later
case is a new rule. If the rule is new, then it does not apply retroactively to prior cases on
collateral review unless the prior case falls under certain narrow exceptions. Teague, 489
U.S. at 311-13. If the rule is not new, then the rule is applied on collateral review. Kizer, 318
Ill. App. 3d at 246.
¶ 26 In Chaidez v. United States, 568 U.S. ___, 133 S. Ct. 1103 (2013), the United States
Supreme Court addressed whether the Padilla Court established a new rule when it held that
the sixth amendment requires defense counsel to advise the defendant of the risk of
deportation arising from a guilty plea. The Court explained that pursuant to Teague, a case
establishes a new rule when the rule breaks new ground or imposes a new obligation on the
government. Chaidez, 568 U.S. at ___, 133 S. Ct. at 1107. In other words, a new rule is
established when the result of the case is not dictated by precedent that existed when the
defendant’s conviction became final. Id. at ___, 133 S. Ct. at 1107. Conversely, a case does
not establish a new rule when it merely applies a general standard to a new and different set
of facts. Id. at ___, 133 S. Ct. at 1107. The Court noted that garden-variety applications of
the Strickland standard for ineffective assistance do not produce new rules and that the
Strickland standard provides guidance for resolving virtually all ineffective assistance claims.
Id. at ___, 133 S. Ct. at 1107-08.
¶ 27 Recognizing these principles, the Chaidez Court found that Padilla did more than merely
apply the general Strickland standard to a new factual situation. Id. at ___, 133 S. Ct. at 1108.
The Court noted that prior to Padilla, the state and lower federal courts “almost unanimously
concluded that the Sixth Amendment does not require attorneys to inform their clients of a
conviction’s collateral consequences, including deportation.” Id. at ___, 133 S. Ct. at 1109.
The Court found that Padilla considered the threshold question of whether deportation advice
was categorically removed from the scope of the sixth amendment because it was only a
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collateral consequence of a conviction, rather than a component of a criminal sentence. Id. at
___, 133 S. Ct. at 1108. The Chaidez Court stated that before asking how the Strickland test
applied, Padilla asked whether the Strickland test applied to cases involving deportation
advice–a question that was previously unsettled. Id. at ___, 133 S. Ct. at 1108. The Chaidez
Court concluded that Padilla announced a new rule in finding that the Strickland standard
applied to cases involving deportation advice. Id. at ___, 133 S. Ct. at 1108. Accordingly, the
Chaidez Court held that Padilla does not apply retroactively to cases where the defendant’s
conviction became final prior to Padilla. Id. at ___, 133 S. Ct. at 1113.
¶ 28 In this case, Greco urges this court to disregard the decision in Chaidez. Greco argues
that although Illinois uses the Teague test to determine if cases can be applied retroactively,
in Danforth v. Minnesota, 552 U.S. 264, 281-82 (2008), the United States Supreme Court
held that state courts are not bound by Teague when determining whether a rule applies
retroactively in a state collateral proceeding. Rather, Greco argues that this court should
follow the reasoning in People v. Gutierrez, 2011 IL App (1st) 093499, which held that
Padilla can be applied retroactively because it did not announce a new rule. Thus, relying on
Padilla, Greco contends that defense counsel was ineffective.
¶ 29 We disagree with Greco’s argument and we decline Greco’s invitation to reject Chaidez
and follow Gutierrez. Initially, we note that Gutierrez was decided prior to Chaidez. Further,
we see no reason to deviate from the well-reasoned decision in Chaidez. As the Supreme
Court in Chaidez recognized, Padilla refused to apply the typical distinction between
collateral and direct consequences when deciding whether counsel is required to advise a
defendant of the immigration implications of a guilty plea. In this narrow circumstance, the
Padilla Court found the collateral versus direct consequences distinction unsuitable. The
Chaidez Court concluded that Padilla resolved a previously unsettled question, thus Padilla
announced a new rule. We agree with the reasoning of the Chaidez Court. Therefore, we hold
that Padilla announced a new rule and cannot be retroactively applied to Greco’s case.
Accordingly, Greco is unable to make a substantial showing that defense counsel was
ineffective, and the trial court did not err in dismissing his postconviction petition based on
his ineffective assistance of counsel argument.
¶ 30 We next determine whether the trial court erred in dismissing Greco’s postconviction
petition because he has made a substantial showing that his guilty plea was not knowing and
intelligent due to the court’s failure to admonish him of possible immigration consequences.
¶ 31 Greco argues that the trial court erred by failing to admonish him of the possible
immigration consequences of his guilty plea as required by section 113-8 of the Code of
Criminal Procedure (Criminal Code) (725 ILCS 5/113-8 (West 2004)). Greco acknowledges
that Illinois courts have held that trial courts are not constitutionally required to advise
defendants of the possible immigration consequences resulting from guilty pleas because
immigration consequences are collateral as opposed to direct consequences. See People v.
Delvillar, 235 Ill. 2d 507, 520-21 (2009). However, Greco argues that those holdings have
been effectively overruled by Padilla and are no longer good law because Padilla eliminated
the distinction between direct and collateral consequences in relation to the immigration
consequences of a guilty plea. Greco contends that although the holding in Padilla addressed
only trial counsel’s requirements regarding deportation advice, and did not address the trial
court’s required admonishments, the reasoning of Padilla should apply equally to the trial
court’s admonishments. Greco argues that given the reasoning of Padilla, the severity of
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deportation, and the likelihood of deportation as a result of convictions such as his, it is no
longer reasonable to hold that deportation is a collateral consequence that is not
constitutionally required to be a part of the trial court’s admonishments to a defendant.
¶ 32 In response, the State argues that Illinois courts have long held that trial courts are not
constitutionally required to advise a defendant about potential immigration consequences.
Additionally, the State argues that Padilla eliminated the distinction between direct and
collateral consequences only in relation to counsel’s requirements under the sixth
amendment. The State asserts that the Padilla holding did not extend to the trial court’s
required admonishments of a defendant. Therefore, the State argues that the trial court did
not err in dismissing Greco’s postconviction petition based on his argument that his guilty
plea was not knowing and intelligent.
¶ 33 We agree with the State’s argument. Prior to Padilla, it was well established in Illinois
that although the trial court is required to admonish the defendant of the immigration
consequences of his guilty plea pursuant to section 113-8 of the Criminal Code, the statutory
provision is directory, not mandatory because no particular consequence flows from
noncompliance with the statute. Delvillar, 235 Ill. 2d at 514-15, 519. Thus, if the trial court
fails to properly admonish the defendant under section 113-8 of the Criminal Code, the court
is not automatically required to allow a motion to withdraw a guilty plea. Id. at 519. Further,
immigration consequences are classified as collateral consequences, and “[d]ue process does
not require that the defendant be informed of the collateral consequences of a guilty plea.”
Id. at 520-21. Thus, the failure to admonish the defendant of such consequences does not
affect the constitutional voluntariness of the defendant’s guilty plea. Id. at 521-22.
¶ 34 After Padilla, Illinois courts have continued to apply the principles employed in
Delvillar.1 In People v. Guzman, 2014 IL App (3d) 090464, ¶¶ 18-22, this court applied the
reasoning in Delvillar and held that the trial court did not err in failing to admonish the
defendant of the immigration consequences of his guilty plea pursuant to section 113-8 of the
Criminal Code. Although this court did not discuss Padilla in relation to the trial court’s
admonishment requirements, the court was certainly aware of the implications of Padilla
because the court reversed the judgment of the trial court based on defense counsel’s failure
to advise the defendant that he risked deportation by pleading guilty.2 Id. ¶¶ 28-39.
1
We note that in Gutierrez, this court specifically stated that the Padilla decision did not disturb our
supreme court’s holding in Delvillar. Gutierrez, 2011 IL App (1st) 093499, ¶ 57. However, Gutierrez
reached the opposite conclusion to the Supreme Court in Chaidez as to whether Padilla can be applied
retroactively. Id. ¶ 42. Additionally, our supreme court has disagreed with Gutierrez on other grounds.
See People v. Johnson, 2013 IL 114639, ¶ 13. Therefore, we look to other authority to support our
analysis.
2
We note that Guzman contained a special concurrence and a dissent. In the special concurrence,
Justice Holdridge stated that while he agreed that the trial court’s judgment must be reversed, he would
have reversed the judgment based on the trial court’s failure to admonish the defendant of the
immigration consequences of his guilty plea. Guzman, 2014 IL App (3d) 090464, ¶ 43 (Holdridge, J.,
specially concurring). Justice Holdridge stated that while this court and several other jurisdictions have
reached the opposite conclusion, he believed that Padilla rejected the holding in Delvillar. Id. ¶¶ 46-47.
Justice Holdridge reasoned that Padilla concluded that deportation could not be characterized as a
collateral consequence and stated, “I find it incongruous and inappropriate to characterize deportation
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¶ 35 Similarly, we find that the principles of Delvillar apply to this case. We do not agree with
Greco’s argument that Padilla overruled the decision in Delvillar. In Padilla, the Supreme
Court stated:
“Deportation as a consequence of a criminal conviction is, because of its close
connection to the criminal process, uniquely difficult to classify as either a direct or a
collateral consequence. The collateral versus direct distinction is thus ill suited to
evaluating a Strickland claim concerning the specific risk of deportation.” (Emphasis
added.) Padilla, 599 U.S. at 366.
Thus, the Padilla Court refused to apply the direct versus collateral consequence distinction
only in relation to counsel’s constitutional requirements under Strickland. The Court in no
way applied its holding to the constitutional requirements of the trial court. Although we
understand the reasoning of Greco’s argument, we do not read Padilla as overruling the
principles in Delvillar. The holding in Padilla was purposefully narrow, and we decline to
extend the Court’s holding beyond that narrow purpose. Because Delvillar has not been
overruled, we are bound by that decision and must follow it. Thus, even if we were to agree
with Greco’s argument, we are powerless to deviate from the decision of Delvillar. See
Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004). Therefore,
pursuant to Delvillar and its progeny, the trial court was not constitutionally required to
admonish Greco of the possible immigration consequences of his guilty plea. Because Greco
failed to present a claim of constitutional deprivation based on this issue, his argument is not
supported by the Act. See 725 ILCS 5/122-1(a)(1) (West 2008). Accordingly, we hold that
the trial court did not err in dismissing Greco’s postconviction petition based on the trial
court’s failure to admonish him pursuant to section 113-8 of the Criminal Code.
¶ 36 We next determine whether Greco’s guilty plea and sentence are void and must be
vacated because his sentence of seven years’ imprisonment was less than the statutorily
mandated minimum sentence of nine years’ imprisonment.
¶ 37 Greco argues that his plea and sentence are void and must be vacated because he was
sentenced to seven years’ imprisonment, which he claims is less than the statutorily
mandated minimum sentence of nine years’ imprisonment. In this case, Greco pleaded guilty
to criminal drug conspiracy. Greco was admonished that he was pleading guilty to criminal
drug conspiracy predicated on delivery of a controlled substance of 15 to 100 grams. Greco
points out that in the indictment, the charge of criminal drug conspiracy was predicated on
several offenses of delivery of a controlled substance, including: delivery of 1 to 15 grams of
cocaine; delivery of 15 to 100 grams of cocaine; and delivery of 100 to 400 grams of cocaine.
Greco claims that the indictment was not amended to eliminate any of the offenses on which
the criminal drug conspiracy charge was predicated. The factual basis for the guilty plea
as ‘collateral’ for fifth amendment purposes but not for sixth amendment purposes.” Id. ¶ 47. Thus,
Justice Holdridge stated that he would hold that the trial court’s failure to warn the defendant of the
immigration consequences of his guilty plea rendered the plea involuntary. Id. In the dissent, Justice
McDade disagreed with the outcome of the case for other reasons, but agreed with the authoring justice
that Delvillar remained good law and that the trial court’s failure to properly admonish the defendant
did not render his guilty plea involuntary. Id. ¶¶ 58-63 (McDade, J., dissenting). Justice McDade stated
that even assuming Justice Holdridge’s interpretation is correct, this court does not have the authority to
overrule Delvillar. Id. ¶ 63.
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shows that Greco was involved in a drug transaction in which 123.5 grams of cocaine were
recovered by police. Greco notes that 123.5 grams of cocaine falls within the range of the
charge of criminal drug conspiracy predicated on delivery of 100 to 400 grams of cocaine.
Delivery of 100 to 400 grams of cocaine is punishable by 9 to 40 years’ imprisonment. 720
ILCS 570/401(a)(2)(B) (West 2004). Greco argues that because the indictment was not
amended to eliminate the offense of delivery of 100 to 400 grams of cocaine, and the factual
basis for the guilty plea included an offense that falls within the range of 100 to 400 grams of
cocaine, then the trial court was statutorily required to sentence him within the range of 9 to
40 years’ imprisonment. Greco contends that his sentence of seven years’ imprisonment is
below the statutory minimum for criminal drug conspiracy predicated on delivery of 100 to
400 grams of cocaine. Thus, Greco argues that his guilty plea and sentence are void, and
requests that this court vacate his guilty plea and remand the matter to the trial court for
further proceedings.
¶ 38 In support of his argument, Greco relies on our supreme court’s ruling in People v. White,
2011 IL 109616. In White, the defendant pleaded guilty to first-degree murder and possession
of contraband while in a penal institution. White, 2011 IL 109616, ¶ 4. The trial court advised
the defendant that he was pleading guilty to first-degree murder, which had a sentencing
range of 20 to 60 years’ imprisonment. Id. ¶ 5. At the plea hearing, the factual basis for
first-degree murder showed that the defendant’s accomplice discharged a firearm during the
offense, which triggered a mandatory 15-year sentence enhancement for committing the
offense while armed with a firearm. Id. ¶¶ 6, 18. With the addition of the mandatory 15-year
sentence enhancement the defendant’s mandatory minimum sentence for first-degree murder
was 35 years’ imprisonment. Id. ¶ 19. However, the trial court only sentenced the defendant
to 28 years’ imprisonment for first-degree murder. Id. ¶ 7.
¶ 39 Our supreme court held that the defendant’s 28-year sentence was not valid and the
defendant’s plea agreement was void because the trial court failed to impose the mandatory
15-year sentence enhancement. Id. ¶¶ 29-31. The supreme court reasoned that the trial court
does not have the authority to impose a sentence that does not conform with statutory
guidelines, and the court exceeds its authority when it orders a sentence that is lesser or
greater than what the statute mandates. Id. ¶ 20. The supreme court noted that the parties
agreed and intended that the defendant serve a reduced murder charge without the 15-year
sentence enhancement. Id. ¶ 22. However, the court held that the parties’ intent does not
control because the court cannot give the sentence effect if it is not authorized by law. Id.
¶ 23. The supreme court stated that “the legislature took away any discretion the State and
the trial court had to fashion a sentence that does not include this mandatory enhancement.”
Id. ¶ 26. Thus, the supreme court remanded the matter to the trial court with instructions to
allow the defendant to withdraw his guilty plea and proceed to trial. Id. ¶ 31.
¶ 40 In a special concurrence, Justice Theis noted that the supreme court has repeatedly stated
that plea bargaining should be encouraged. Id. ¶ 37 (Theis, J., specially concurring). Justice
Theis stated that the parties could have negotiated to exclude the 15-year sentence
enhancement from the defendant’s sentence by “amending the indictment and presenting a
factual basis that referred to a dangerous weapon, rather than a firearm.” Id. ¶ 41. However,
the State did not amend the indictment and presented a factual basis that established that a
firearm was used in the commission of the offense. Id. ¶¶ 37-38. Thus, the 15-year sentence
enhancement applied. Id. ¶¶ 40-41.
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¶ 41 In this case, Greco argues that pursuant to White, his guilty plea and sentence are void.
Greco acknowledges that White was decided after his guilty plea became final, but he argues
that it applies to his case retroactively. In response, the State argues that White established a
new rule of law and does not apply retroactively to this case.
¶ 42 We note that there is a split of authority in our appellate court on the issue of whether
White applies retroactively. Multiple districts have held that White did not announce a new
rule because it was based on well-settled principles of Illinois law; thus, it applies
retroactively. People v. Smith, 2013 IL App (3d) 110738, ¶¶ 12-13; People v. Cortez, 2012 IL
App (1st) 102184, ¶ 16. On the other hand, the First District of our Appellate Court has
repeatedly held that White announced a new rule because it resolved a lack of clarity in the
law; thus, it does not apply retroactively. People v. Young, 2013 IL App (1st) 111733, ¶¶ 29,
32-33; People v. Avery, 2012 IL App (1st) 110298, ¶¶ 38-40.
¶ 43 We agree with the reasoning of Young and Avery and find that White does not apply
retroactively. We find Young to be particularly persuasive. In Young, the defendant pleaded
guilty to first-degree murder and attempted murder and was sentenced to 25 years’
imprisonment and 10 years’ imprisonment, respectively. Young, 2013 IL App (1st) 111733,
¶ 2. The defendant was admonished that the sentencing range for first-degree murder was 20
to 60 years’ imprisonment, and the sentencing range for attempted murder was 6 to 30 years’
imprisonment. Id. On appeal, the defendant argued that pursuant to White, his sentences and
guilty pleas were void because they did not include the mandatory firearm enhancement.
Id. ¶ 14.
¶ 44 This court held that although the defendant’s sentences were not valid under White
because they were below the statutory minimum, White announced a new rule and could not
be applied retroactively to the defendant’s case. Id. ¶¶ 19-24. This court reasoned that prior
to White, there was “confusion as to whether the State could negotiate pleas that did not
include the firearm enhancement for first degree murder, even where the use of a firearm is
noted in the factual basis for the pleas.” Id. ¶ 20 (citing Avery, 2012 IL App (1st) 110298,
¶ 39). This court held that White resolved that confusion and thus announced a new rule of
law. Young, 2013 IL App (1st) 111733, ¶ 29.
¶ 45 Further, this court found that even if White did not announce a new rule, the defendant’s
argument would fail because he is estopped from challenging his plea agreement when the
error was to his benefit. Id. ¶ 36. This court noted that “ ‘[a]lthough plea agreements exist in
the criminal justice structure, they are governed to some extent by contract law principles.’ ”
Id. ¶ 37 (quoting People v. Evans, 174 Ill. 2d 320, 326 (1996)). When a plea is based on the
promise or agreement of the State in any significant degree, so that it can be said to be part of
the inducement or consideration, the promise must be fulfilled. Id. In that respect, the principal
inquiry is whether the defendant received the benefit of his bargain. Id. Relying on those
principles, this court stated as follows:
“Here, defendant voluntarily pled guilty for the agreed-upon sentence of 35 years,
but now, nearly a decade after his plea was entered, he asserts that his sentence was
improper because he should have received a sentence with the firearm enhancement,
which would have subjected him to a minimum sentence of 76 years, with the 25-year
enhancement on both convictions. Defendant has received the benefit of his plea
agreement, a significantly lower sentence. The State benefitted from the plea
agreement by being spared the time and expense of trial. Defendant is now assuming
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a position contrary to his agreement in his guilty plea in order to receive a benefit by
withdrawing his guilty plea in hopes of obtaining a favorable result. Moreover, while
defendant has received the benefit of a lesser prison sentence, if he were permitted to
withdraw his plea at this stage, the State could be subjected to hardship on remand for
trial since over 13 years have elapsed from the date of the offenses. Unlike Donelson,
defendant’s negotiated sentence is unable to be reformed, but we conclude the
doctrine of estoppel should prohibit defendant from challenging a sentence after he
has already received the benefit of a more lenient sentence.” Id. ¶ 39.
¶ 46 We agree with the reasoning in Young. In White, the supreme court resolved confusion as
to the State’s ability to negotiate around a mandatory sentence enhancement in relation to
first-degree murder. Because the confusion was resolved and the State’s authority was clearly
defined, a new rule was established. Greco now attempts to selectively apply certain
principles in White to his case. Greco argues that this case is analogous to White, but then
claims that he is only relying on White for the long-standing principle that a sentence is void
if it does not conform with statutory requirements. However, Greco cannot have it both ways.
In White, the supreme court reached its holding because the factual basis presented to the
court established the facts that triggered the sentence enhancement and the indictment
included a charge that contained said sentence enhancement. See White, 2011 IL 109616,
¶¶ 29, 41. That is the aspect of White that created a new rule. Greco claims that the same
factual aspects are present in this case because he agreed to a lower offense and sentence, but
the factual basis and indictment established his conviction for a greater offense and sentence.
Because White established a new rule under this factual scenario, it cannot be retroactively
applied to Greco’s case.
¶ 47 Further, pursuant to Young, we find that Greco received the benefit of his bargain. The
factual basis in this case shows that Greco could have been convicted of numerous offenses,
including criminal drug conspiracy predicated on delivery of 100 to 400 grams of cocaine.
However, Greco agreed to plead guilty to criminal drug conspiracy predicated on delivery of
15 to 100 grams of cocaine with a lesser sentence of seven years’ imprisonment. In
exchange, the State was spared the time and expense of trial. Now that Greco has learned that
he is subject to deportation as a result of his conviction, he attempts to withdraw his guilty
plea because he did not receive a greater sentence. He is taking a position contrary to the
agreement in his guilty plea. It is unfortunate that Greco was unaware that he would be
subject to deportation as a result of his conviction. However, notwithstanding Greco’s
knowledge, the State would have had no power to change the immigration consequences of
Greco’s conviction. Greco was subject to deportation as a result of his conviction based on
federal law, which the State has no authority to negotiate. In other words, even if Greco and
the State agreed that he would plead guilty to criminal drug conspiracy predicated on
delivery of 100 to 400 grams of cocaine, and would be sentenced within the proper
sentencing range, Greco still would have been subject to deportation as a result of his
conviction. The bargain that was struck between Greco and the State was separate and
distinct from any immigration consequences resulting from Greco’s conviction. Further, the
State would be subject to considerable hardship on remand for trial as the events that led to
Greco’s conviction took place approximately 13 years ago. Thus, Greco received the benefit
of his bargain and is not able to withdraw his guilty plea. Accordingly, we hold that White
cannot be applied retroactively and Greco’s guilty plea and sentence are not void.
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¶ 48 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 49 Affirmed.
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