People v. Dorado

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Appellate Court Date: 2021.03.25
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People v. Dorado, 2020 IL App (2d) 190818Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ERNESTO DORADO, Defendant-Appellant.
District & No. Second District
No. 2-19-0818
Filed November 4, 2020
Decision Under Appeal from the Circuit Court of Boone County, No. 18-CF-107; the
Review Hon. C. Robert Tobin III, Judge, presiding.
Judgment Affirmed.
Counsel on John W. Heiderscheidt, of Godoy Law Office, of Lombard, for
Appeal appellant.
Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino,
Edward R. Psenicka, and Mary Beth Burns, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Justices Jorgensen and Bridges concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Ernesto Dorado, appeals the trial court’s denial of his motion to withdraw his
guilty plea to unlawful possession of a controlled substance (720 ILCS 570/402(c) (West
2018)). Pursuant to his plea agreement, he was sentenced to first-offender probation under
section 410 of the Illinois Controlled Substance Act (Act) (id. § 410 (f), (g)), which, upon
successful completion, results in the dismissal of the proceedings and is not considered a
“conviction” “for purposes of disqualification or disabilities imposed by law upon conviction
of a crime” (id. § 410(g)). Defendant now contends that his trial counsel was ineffective for
failing to advise him of the effects his plea would have on his immigration status. He also
contends that he did not receive the benefit of the bargain in his plea negotiations when, despite
the nature of first-offender probation under state law, he was potentially subject to federal
immigration consequences. We affirm.
¶2 I. BACKGROUND
¶3 In May 2019, defendant pleaded guilty to unlawful possession of a controlled substance in
exchange for first-offender probation and the dismissal of a traffic citation. The factual basis
for the plea was that, on March 7, 2018, defendant was stopped for speeding and officers found
a pill bottle containing hydrocodone in his vehicle. The pills were prescribed for defendant’s
daughter, and defendant indicated that he took the pills for pain without a prescription for them.
Defendant at that time was a legal permanent resident of the United States and had a pending
application for citizenship.
¶4 The trial court admonished defendant that, “[i]f you’re not a citizen of the United States,
you are hereby advised that conviction of the offense for which you’ve 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 affirmed that he had talked to
his attorney about the case and possible defenses, that he was satisfied with his attorney’s
representation, and that the State made no promises that were left out of the agreement.
Defendant’s attorney told the court that he had spoken to multiple immigration attorneys about
the case and believed that defendant had been fully advised of the potential ramifications of
his plea.
¶5 Defendant later moved to withdraw his plea, arguing that it was based on a false promise
by the State because, while the Act provided for the discharge of the conviction upon
completion of probation, the conviction would still stand under federal law, potentially
resulting in adverse immigration consequences. He also alleged ineffective assistance of
counsel.
¶6 At the hearing on the matter, defendant’s trial counsel, Derrick Schmidt, testified that
defendant told him that he was working with an immigration attorney and defendant gave
Schmidt permission to speak with that person. Schmidt spoke with the attorney about
defendant’s status and consulted with two other immigration attorneys. Based on information
from those consultations, Schmidt told defendant that, if he pleaded guilty, he was “deportable”
and that “this is going to be an INS problem.” Schmidt described the plea as “a very serious
roadblock,” and told defendant that he was “most likely going to be deported and that there
would be proceedings.” Schmidt went through the strengths and weakness of defendant’s
options, and defendant advised Schmidt that “he wanted to take the plea, that he would deal
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with the INS issues later.” Defendant said that he wanted to get it over with and that there was
the potential that he would marry his girlfriend, who was a United States citizen. Schmidt did
not further discuss with defendant the potential effect of a marriage. Schmidt told defendant
that he would be inadmissible to the United States based on the plea but did not specifically
advise him of the possibility of mandatory detention during immigration proceedings. Schmidt
was unsure if he specifically advised defendant about his ability to naturalize. Schmidt also
told defendant that one of the immigration attorneys told Schmidt that there might be “some
sort of *** temporary relief” available or that defendant might be able to enter a plea without
mentioning the controlled substance. Schmidt was surprised that defendant wanted to take the
plea. He said that he told defendant that he could have more time to reach a decision on the
matter.
¶7 Defendant testified that, before he pleaded guilty, evidence regarding the case was
requested in his pending citizenship application. He said that he had no understanding of what
would happen to his immigration status because of the plea and that he “didn’t think it was that
bad that it was going to affect that.” Defendant denied that Schmidt told him about the
immigration consequences of his plea or that he could have more time to decide whether he
wanted to take the plea. He admitted that he told his immigration attorney about his arrest but
said that the attorney did not provide details about the impact a plea would have on his
application.
¶8 Applying Najera-Rodriguez v. Barr, 926 F.3d 343 (7th Cir. 2019), the trial court found that
the conviction was not a conviction that, under federal law, would trigger removal from the
United States. Regarding other possible immigration consequences, the court noted that the
fact that defendant was sentenced to first-offender probation did not equate to a promise from
the State about any such consequences. Regarding ineffective assistance, aside from applying
Najera-Rodriguez, the court found that Schmidt consulted with immigration attorneys and
adequately advised defendant. The court denied the motion to withdraw the plea, and defendant
appeals.
¶9 II. ANALYSIS
¶ 10 Defendant contends that trial counsel was ineffective for failing to inform him of the
immigration consequences of his plea. He contends that he is subject to mandatory removal
based on his conviction of a drug offense or by virtue of potentially being found to be a drug
abuser or addict (8 U.S.C. § 1227(a)(2)(B) (2012)) and that his counsel should have informed
him that he would, with absolute certainty, be deported.
¶ 11 A defendant has no absolute right to withdraw his or her guilty plea. People v. Baez, 241
Ill. 2d 44, 110 (2011). “Withdrawal is appropriate where the plea was entered through a
misapprehension of the facts or of the law or where there is doubt as to the guilt of the accused
and justice would be better served through a trial.” People v. Hughes, 2012 IL 112817, ¶ 32.
Likewise, a guilty plea must be voluntary and intelligent. People v. Blankley, 319 Ill. App. 3d
996, 1007 (2007). “One basis for the withdrawal of a guilty plea is where defense counsel gives
the defendant inadequate advice prior to entering the plea.” People v. Glover, 2017 IL App
(4th) 160586, ¶ 39. “ ‘A defendant may enter a guilty plea because of some erroneous advice
by counsel, but that fact alone does not destroy the voluntary nature of the plea ***.’ ” Id.(quoting People v. Cunningham, 286 Ill. App. 3d 346, 349 (1997)). Rather, “ ‘it must be shown
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that defendant was denied the effective assistance of counsel.’ ” Id. (quoting Cunningham, 286
Ill. App. 3d at 349-50).
¶ 12 To establish that counsel was ineffective, a defendant must satisfy the two-prong test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Valdez, 2016 IL
119860, ¶¶ 13-14. Counsel’s conduct is deficient under Strickland if counsel fails to ensure
that the defendant entered the plea voluntarily and intelligently. People v. Rissley, 206 Ill. 2d
403, 457 (2003). To establish prejudice, a defendant must show a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) People
v. Manning, 227 Ill. 2d 403, 418 (2008). The defendant bears the burden of establishing both
parts of the Strickland test. People v. Jones, 219 Ill. App. 3d 301, 305 (1991).
¶ 13 In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court established
that one aspect of constitutionally effective representation requires defense counsel to advise
noncitizen defendants regarding the immigration consequences of a guilty plea, particularly
the risk of being removed from the United States. Id. at 373-74. Thus, to fulfill his or her duties
in advising a client during plea negotiations, counsel must inform the client that the plea carries
a risk of deportation. See id. In addition, before accepting a guilty plea from a noncitizen, the
court must inform the defendant that a conviction “ ‘may have the consequences of deportation,
exclusion from admission to the United States, or denial of naturalization under the laws of the
United States.’ ” 725 ILCS 5/113-8 (West 2018).
¶ 14 Here, Schmidt consulted with multiple immigration attorneys and told defendant that the
plea would subject defendant to deportation, that he would be inadmissible to the United States,
and that there would be an “INS problem.” The court also told defendant that a conviction
“may” have the consequences of deportation, exclusion from admission to the United States,
or denial of naturalization. Meanwhile, Schmidt testified that defendant, who had also
consulted with an immigration attorney, assured Schmidt that he wanted to take the plea
bargain and deal with the immigration consequences later. Thus, the record supports the trial
court’s finding that Schmidt adequately advised defendant of the risk of deportation as a
consequence of his plea and that defendant knowingly decided to take the plea and address the
resulting immigration consequences later.
¶ 15 Defendant argues that the trial court’s use of the word “may” was insufficient and argues
that Schmidt should have told him with unequivocal and absolute certainty that he would be
deported, either as a result of his conviction or based on a potential finding of drug abuse or
addiction. But the record shows that Schmidt viewed the plea as a “a very serious roadblock”
and clearly told defendant that, if he pleaded guilty, he was “deportable,” was “most likely
going to be deported,” “there would be proceedings,” and “this is going to be an INS problem.”
After such admonitions, defendant could not have reasonably believed that deportation was
not a consequence of the plea.
¶ 16 Moreover, not only did Schmidt clearly tell defendant that, if he pleaded guilty, he was
“deportable” or most likely would be deported, there was no certainty that defendant would
actually be deported. Regarding removal as it relates to defendant’s conviction, we have
previously held that counsel’s performance might be deficient when counsel fails to inform a
defendant that first-offender probation under section 410 will subject the defendant to
mandatory removal. See People v. Hoare, 2018 IL App (2d) 160727, ¶¶ 27, 30. However, in
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Najera-Rodriguez, the Seventh Circuit recently held that convictions under section 402(c) of
the Act are not convictions under federal law that render a defendant removable. Najera-
Rodriguez, 926 F.3d at 347, 356. Thus, defendant was not subject to mandatory removal based
on his conviction.
¶ 17 Defendant suggests that the trial court erred in failing to address whether Najera-Rodriguez
applied retroactively, but at the time of the motion to withdraw the plea, no action had been
taken seeking defendant’s removal. Thus, retroactivity is not an issue. If a removal action were
initiated, Najera-Rodriguez would be the controlling law interpreting the Act for purposes of
federal law. See Brough v. United States, 454 F.2d 370, 372-73 (7th Cir. 1971) (finding no
cases in which a statutory interpretation “was denied retroactive application in a criminal
conviction” and applying a point of statutory interpretation retroactively). Defendant has not
pointed to a case that would hold otherwise nor has he made a cogent argument that the
reasoning of Najera-Rodriguez would not apply to him.
¶ 18 Defendant argues that removal based on a potential finding of drug abuse or addiction was
a possibility, and he also provides a list of additional potential immigration consequences that
counsel failed to address with him, such as discretionary removal based on poor moral
character, inability to post bond in removal proceedings, and delays in naturalization. But there
were no certainties that any of those consequences would occur. Padilla does not require
counsel to speculate about and advise a defendant of unclear immigration consequences that
the defendant might or might not encounter. See People v. Carranza-Lamas, 2015 IL App (2d)
140862, ¶ 47. Immigration law is complex, and there are situations where the consequences of
a plea are uncertain or unclear. In such a situation, where the law is not succinct and
straightforward, the duty of the defense attorney is more limited, and he or she need do no
more than advise a noncitizen client that pending criminal charges might carry the risk of
adverse immigration consequences. Padilla, 559 U.S. at 369. The Supreme Court in Padilla
warned that, because pleas constitute “nearly 95% of all criminal convictions,” courts “must
be especially careful about recognizing new grounds for attacking the validity of guilty pleas.”
Id. at 372.
¶ 19 In any event, and as previously discussed, Schmidt communicated to defendant that
deportation was a risk of the plea. Beyond that, Padilla required only that Schmidt advise
defendant that there was a risk of adverse immigration consequences. Schmidt did that. Thus,
Schmidt adequately advised defendant of the clear and direct potential consequences of his
plea. The court also specifically admonished defendant of the clear potential consequences of
the plea, including the possibility of removal or the denial of naturalization. Accordingly,
Schmidt’s representation was not deficient, and the court properly determined that defendant
did not misapprehend the consequences of his plea.
¶ 20 Defendant next contends that he should be able to withdraw his plea because it was based
on an unfulfillable promise under the Act that he would not have a “conviction” “for purposes
of disqualifications or disabilities imposed by law upon conviction of a crime.” 720 ILCS
570/410(g) (West 2018). He argues that, because under federal law the conviction could
subject him to deportation and other immigration consequences, he could not receive the
benefit of his plea bargain.
¶ 21 In People v. Whitfield, 217 Ill. 2d 177, 183-84 (2005), our supreme court explained that
“[w]hen seeking relief from a guilty plea, either directly or collaterally, there are two
separate, though closely related, constitutional challenges that may be made: (1) that
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the plea of guilty was not made voluntarily and with full knowledge of the
consequences, and (2) that defendant did not receive the benefit of the bargain he made
with the State when he pled guilty.”
The latter challenge is rooted in the holding of Santobello v. New York, 404 U.S. 257 (1971),
that the due process clause mandates that “when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Id. at 262. “The principal inquiry, in that
respect, is whether the defendant has received the benefit of his bargain.” People v. Donelson,
2013 IL 113603, ¶ 19.
¶ 22 Here, defendant was promised first-offender probation under the Act, and that is what he
received. Under the Act, the conviction would be discharged for purposes of state law, but the
legal effect of the conviction for immigration purposes was controlled by federal law. Thus,
the bargain that was struck between defendant and the State for probation under state law was
separate and distinct from any immigration consequences resulting from his conviction. See
People v. Greco, 2014 IL App (1st) 112582, ¶ 47. The State has no power to change or
negotiate the immigration consequences of defendant’s conviction. Id. The State did not, and
could not, promise that there would be no immigration consequences. Accordingly, the trial
court correctly found that there was no unfulfillable promise made by the State.
¶ 23 III. CONCLUSION
¶ 24 The trial court did not err when it denied defendant’s motion to withdraw his plea.
Accordingly, the judgment of the circuit court of Boone County is affirmed.
¶ 25 Affirmed.
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