People v. Viquez , 2022 IL App (1st) 211431-U ( 2022 )

2022 IL App (1st) 211431-UNo. 1-21-1431
Order filed September 29, 2022
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 1680
)
RAFAEL VIQUEZ, ) Honorable
) Neera Walsh,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Lampkin and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition where he
lacked standing to file the petition because he had completed his sentence for the
conviction at issue.
¶2 Defendant Rafael Viquez appeals from the summary dismissal of his petition filed pursuant
to the Post-Conviction Hearing Act (Act), 725 ILCS 5/122-1 et seq. (West 2020). He contends his
petition stated at least the gist of a meritorious claim that his guilty plea resulted from trial counsel
misinforming him he would not face deportation for his conviction. The State responds that
No. 1-21-1431
defendant lacked standing to bring his petition under the Act because he had completed his
sentence before he filed it. We affirm.
¶3 Defendant was charged with multiple counts of delivery of a controlled substance and
possession of a controlled substance with intent to deliver (720 ILCS 570/401(a), (c) (West 2010)).
As charged, the alleged offenses were either Class X or Class 1 felonies.
¶4 In 2012, defendant entered a negotiated guilty plea to an amended charge of delivery of a
controlled substance as a Class 2 felony (720 ILCS 570/401(d) (West 2010)), in exchange for a
sentence of four years’ probation with 10 days’ community service, fines, and fees.
¶5 During the plea hearing, the court admonished defendant: “If you are not a citizen of the
United States, pleading guilty to the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United States, or denial of
naturalization under the laws of the United States.” Defendant stated he understood. Counsel told
the court that defendant “is not an American citizen, so, therefore, that is a real possibility for him.
He is aware of that, and we have discussed that, and he has hired an immigration lawyer with
whom I have also consulted.”
¶6 In February 2015, defendant’s motion for early termination of probation was granted, and
his probation terminated satisfactorily.
¶7 In September 2021, defendant filed his “motion,” or petition, for relief under the Act. He
sought in the petition to vacate his guilty plea as he “was not aware of the impact or the
consequences of the conviction.” He alleged trial counsel was ineffective for not properly advising
him of the immigration consequences of his plea. Defendant stated that he was “in the process of
adjusting into a legal permanent resident of the United States” when he pled guilty on trial
-2-
No. 1-21-1431
counsel’s advice. Counsel had told him he would not be deported or subject to deportation due to
his guilty plea. Counsel told him “that his conviction will not have any adverse ramification on his
immigration status.” Despite the trial court’s admonishments regarding immigration
consequences, defendant “felt free to plead guilty” based on counsel’s “catastrophically wrong”
advice. He claimed that, had he “been correctly advised by counsel that a guilty plea would result
in severe and harsh immigration consequences,” he would not have pled guilty.
¶8 On October 1, 2021, the circuit court summarily dismissed defendant’s petition. Accepting
defendant’s allegations as true, the court noted that he “made a sufficient showing that guilty plea
counsel acted unreasonably in incorrectly advising him that he would not be deported for pleading
guilty to delivery of a controlled substance,” as a conviction for the offense “is accompanied by
the risk of deportation.” However, the court found defendant was not even arguably prejudiced
because the trial court had informed him of the potential for deportation or other immigration
consequences from his guilty plea. Because defendant pled guilty after being informed of that
possibility, his claim – he would not have pled guilty if he knew the immigration consequences –
was refuted by the record. This appeal followed.
¶9 On appeal, defendant contends the circuit court erred in summarily dismissing his petition
because it stated at least the gist of a meritorious claim that his guilty plea resulted from trial
counsel misinforming him that he would not face deportation for his conviction.
¶ 10 The State responds that defendant lacked standing to bring his petition under the Act
because he had completed his sentence before he filed it. We agree with the State.
¶ 11 The Act provides a three-stage process for postconviction petitions. People v. Johnson,
2021 IL 125738, ¶ 24. At the first stage, within 90 days of filing, the circuit court shall dismiss the
-3-
No. 1-21-1431
petition if the circuit court determines it to be frivolous or patently without merit. 725 ILCS 5/122-
2.1(a)(2) (West 2020). If the court does not summarily dismiss the petition within 90 days, it
reaches the second stage and is docketed for further proceedings under the Act. Id. § 2.1(b);
Johnson, 2021 IL 125738, ¶ 27. The circuit court summarily dismissed defendant’s petition at the
first stage. The summary dismissal of a postconviction petition is reviewed de novo, with no
deference to the circuit court’s reasoning. Johnson, 2021 IL 125738, ¶¶ 22, 28.
¶ 12 Under the Act, a petition may be brought by a “person imprisoned in the penitentiary.” 725
ILCS 5/122-1(a) (West 2020). A petition under the Act may be summarily dismissed for lack of
standing if the defendant did not satisfy that requirement. People v. Johnson, 2021 IL 125738, ¶
50. Specifically, summary dismissal is proper if there is no arguable basis in fact or law that would
give the defendant standing to challenge his or her conviction. Id. ¶ 59.
¶ 13 Actual imprisonment is not required for standing under the Act, and persons serving
mandatory supervised release or probation have standing. Id. ¶ 62. However, standing arises only
from serving a sentence for the conviction attacked in the petition or one sentenced consecutively
to the challenged conviction. Id. ¶¶ 63-64. Standing arises from the direct consequences of a
conviction – the sentence imposed on the plea – and not from collateral consequences. Id. ¶ 67. A
collateral consequence is an effect on a defendant from an action the trial court did not have the
authority to impose, taken by an agency the trial court does not control. Id. ¶ 66.
¶ 14 As our supreme court explained in People v. Carrera, 239 Ill. 2d 241, 257 (2010), where,
as here, a defendant has successfully completed his sentence of probation, he has no standing to
seek relief under the Act even if faced with immigration consequences from the conviction. In
Carrera, a defendant who had completed his sentence for his conviction on a guilty plea brought
-4-
No. 1-21-1431
a petition under the Act challenging that conviction, arguing that he should not be barred from
relief under the Act because he faced deportation as a result of his guilty plea. Id. at 245. Our
supreme court held that facing deportation was not imprisonment for purposes of standing under
the Act. Id. at 253.
“Defendant’s detention by the [immigration authorities] is not imprisonment within the
meaning of the Act, however, because defendant has already served his Illinois sentence.
Given the fact that defendant had fully served his underlying sentence prior to filing his
postconviction petition, defendant’s liberty was not curtailed by the state in any way.” Id.¶ 15 The court found deportation was a collateral consequence of the guilty plea, as “we cannot
say that deportation is a consequence that relates to the sentences imposed on the basis of that
plea.” Id. at 256. “The current constraints on defendant’s liberty are imposed by the [immigration
authorities]. The constraints of defendant’s liberty due to his criminal conviction expired with
defendant’s successful completion of his probation, so that defendant is no longer eligible to seek
relief under the Act.” Id. at 257.
¶ 16 Here, the record establishes that defendant completed his sentence of probation
satisfactorily in 2015. Therefore, he had no standing in 2021 to bring a petition under the Act
challenging his conviction for delivery of a controlled substance. As it is not arguable that he had
standing under the Act to bring his 2021 petition, summary dismissal of that petition was proper.
Johnson, 2021 IL 125738, ¶ 72.
¶ 17 Accordingly, the judgment of the circuit court is affirmed.
¶ 18 Affirmed.
-5-