No. 2--01--0747

JUSTICE BYRNE delivered the opinion of the court:

Following plea negotiations, defendant, Marco A. Pequeno,pleaded guilty to unlawful possession of a controlled substancewith intent to deliver (720 ILCS 570/401(c)(2) (West 1994)),aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1) (West1994)), and domestic battery (720 ILCS 5/12--3.2(a) (2) (West1996)). The trial court entered judgments of conviction andsentenced defendant to 30 months' probation. Defendant wasdeported as a result of the convictions. Thereafter, defendantfiled a postconviction petition to set aside his guilty pleas ongrounds that his pleas were involuntary. Specifically, defendantalleged that his counsel was ineffective for failing to properlyadvise him that he would be deported as a result of hisconvictions. Defendant also alleged that the trial court erred infailing to admonish him that his guilty pleas could result indeportation. The circuit court denied the petition following anevidentiary hearing. It is from the order denying hispostconviction petition that defendant now appeals to this court. We affirm.

Defendant was born in Mexico and had resided in the UnitedStates as a lawful alien since 1970, when he was 11 years old. In1995 and 1996, defendant was indicted for numerous offenses. In1996, defendant entered into an agreement with the Kane CountyState's Attorney's office to work as an informant for the Aurorapolice department in the investigation and prosecution of narcoticscases. Defendant worked in this capacity for close to two years. In exchange for his cooperation, the State agreed to dismissnumerous charges, and defendant was to receive probation for thecurrent offenses. Prior to the entry of his pleas, the trial courtadvised defendant of the consequences of his pleas in accordancewith the requirements of Supreme Court Rule 402 (177 Ill. 2d R.402). The trial court did not advise defendant that pleadingguilty could result in deportation. On the "plea of guilty" form,next to an unmarked box is a statement that defendant understandsthat his plea of guilty could result in deportation if he is not aUnited States citizen. Defendant did not thereafter appeal hisconvictions or file a motion to withdraw his guilty pleas.

On January 31, 2000, defendant, pro se, filed a petition forpostconviction relief pursuant to the Post-Conviction Hearing Act(the Act) (725 ILCS 5/122--1 et seq. (West 2000)), alleging thathis counsel, Eduardo Gil, rendered ineffective assistance. In thepetition, defendant asked to have his guilty pleas set aside,alleging that, because he had been denied the effective assistanceof counsel, the pleas were involuntary. Defendant claimed that hewould not have pleaded guilty had his attorney properly advised himof the immigration consequence of his guilty pleas. Defendantattached an affidavit stating the following:

"My attorney was aware of my immigration status in thiscountry. I know this because I told him I was a non-citizen. I asked him if accepting the plea agreement would affect myimmigration status. His response was that he did not know ashe was not an immigration lawyer, and that I would have tocheck with one as he was a criminal defense attorney only. Atno time did he tell me that my pleas of guilty to the chargeswould result in my automatic deportation."

On December 22, 2000, defendant, now through appointedcounsel, filed an amended petition for postconviction relief, inwhich he claimed that his counsel not only failed to advise himthat he would be deported as a result of the convictions, but thatcounsel specifically advised defendant that he did not think theconvictions would have any effect on defendant's immigrationstatus.

The matter proceeded to an evidentiary hearing on June 27,2001. Defendant testified that in March 1997 he spoke withattorney Gil about what effect his guilty pleas would have on hisimmigration status. Gil advised defendant that he did not know andthat defendant would have to speak with an immigration attorney. Defendant stated that, prior to signing the guilty plea form, Giladvised defendant of the penal consequences of his guilty pleas andthat he had to register as a sex offender. Gil also told defendantthat, if he stayed out of trouble, he could go on with his life. According to defendant, when he asked Gil if he was sure, Gilresponded, "I don't think that you are going to have anyimmigration problems with it." Defendant could recall only thesetwo conversations concerning immigration. Defendant conceded thathe never consulted with an immigration attorney and that Gil neveractually told defendant that he would not be deported; he tolddefendant only that he did not think defendant would be deported.

Defendant further testified that he never saw an immigrationlawyer because he "was more concerned with cooperating with theauthorities and living up to the terms of [his] agreement." Defendant stated that he was not guilty of aggravated criminalsexual abuse and that he pleaded guilty to that charge onlybecause he was facing the possibility of being sentenced to asignificant amount of time in jail on all of the charges. He hadno idea that pleading guilty to this offense would result in hisdeportation. Defendant stated that, if he had known this, he wouldnot have pleaded guilty to any of the offenses and would haveinsisted on a jury trial.

Maribel Carde and Maria Pequeno testified that they talkedwith defense counsel after the pleas were entered and they learnedthat defendant was being deported. They both stated that counseltold them that he did not know that defendant would be deported.

Gil testified that he practices criminal law, not immigrationlaw. He did not recall having any conversation with defendantregarding the effect that a finding of guilty would have on hisimmigration status, and he did not recall defendant ever asking himwhat effect a guilty plea would have on his immigration status. Gil also could not remember any conversation with defendant wherehe told defendant that he was a criminal attorney and thatdefendant should consult an immigration attorney. Gil testifiedthat, on the day of defendant's pleas, he remembered discussing thepleas with defendant, particularly the judgments, sentences, andpotential prison time. However, he could not recall anyconversation regarding immigration.

The trial court denied defendant's postconviction petition.The judge first concluded that, based on People v. Huante, 143 Ill.2d 61 (1991), counsel did not render ineffective assistance becauseimmigration issues are collateral consequences and not directconsequences relating to the voluntariness of a plea. The trialcourt added that, because counsel advised defendant to consult animmigration attorney, counsel did not render ineffectiveassistance. Defendant timely appeals.

Defendant contends that he was denied the effective assistanceof counsel. Initially, defendant argues that his counsel'srepresentation was per se ineffective. Defendant points out thathis counsel is an experienced criminal defense attorney, 98% ofwhose clientele consists of Hispanics. Defendant asserts that,given his counsel's background and experience, his failure to knowand inform defendant of the risk of deportation amounted to per seineffective representation. We reject defendant's argument forseveral reasons.

First, an analysis for determining whether a defendant hasbeen denied the effective assistance of counsel must begin with thestandards set forth by Strickland v. Washington, 466 U.S. 668, 80L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland, thedefendant must establish both that his attorney's performance wasdeficient and that the defendant suffered prejudice as a result. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at2064; see also Hill v. Lockhart, 474 U.S. 52, 57, 88 L. Ed. 2d 203,209, 106 S. Ct. 366, 369-70 (1985); Huante, 143 Ill. 2d at 67-68(Strickland standard applicable to guilty pleas and postconvictionchallenges alleging ineffective assistance of counsel).

Second, to satisfy the deficient-performance prong ofStrickland, a counsel's performance is measured by an objectivestandard of competence under prevailing professional norms. Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693-94, 104 S. Ct. at2064-65; People v. Nunez, 325 Ill. App. 3d 35, 42 (2001). Oursupreme court in Huante pointed out that, in cases involving guiltypleas, the standard for reasonableness depends on whether theadvice was within the range of competence demanded of attorneys incriminal cases. Huante, 143 Ill. 2d at 68-69. Defendant'sargument focuses on the specific knowledge and skills of hisattorney rather than the objective standard of reasonablecompetence of criminal defense attorneys.

Third, "[i]n measuring the reasonableness of an attorney'sperformance under the Strickland test, courts have emphasized thedistinction between advising a defendant of the direct consequencesof a guilty plea and of consequences such as deportation that arisecollaterally from the plea." Huante, 143 Ill. 2d at 69. Thesupreme court in Huante saw no reason to part with this distinctionand held that, in measuring the reasonableness of an attorney'sperformance under the objective standard set forth in Strickland,an attorney has no duty to investigate and inform his client of thecollateral consequences of a criminal conviction. Huante, 143 Ill.2d at 71-72. We note that we are bound under principles of staredecisis to follow the supreme court's decision (see Wreglesworth v.Arctco, Inc., 316 Ill. App.3d 1023, 1030 (2000)). Accordingly, wecannot find that the failure to inform defendant of the immigrationconsequences of his guilty pleas was per se ineffective.

Defendant argues alternatively that his case is different from Huante. Defendant points out that in Huante the court dealt witha situation where trial counsel simply did not advise the defendantof the collateral consequence of his pleas. However, here,defendant specifically asked his attorney about the possibility ofdeportation on at least two occasions and he was given misleadingadvice that improperly assured him that his pleas would have nobearing on his immigration status. Because his pleas resulted from"misinformation from his attorney" and this was "one of the factorsunderpinning his decision to plead guilty," defendant contends hiscase is similar to People v. Correa, 108 Ill. 2d 541 (1985), inwhich the supreme court found that counsel rendered ineffectiveassistance to the defendant for incorrectly stating in response tohis client's questions that the defendant would not be deported asa result of his guilty pleas. Correa, 108 Ill. 2d at 550. Defendant also finds his case similar to United States v. El-Nobani, 145 F. Supp. 2d 906 (N.D. Ohio 2001), wherein the courtvacated the defendant's guilty plea because it resulted from themisleading statement that the defendant would not be deported afterpleading guilty. However, that decision was reversed in itsentirety. See El-Nobani v. United States, 287 F.3d 417, 420-22(6th Cir. 2002).

In Correa, the defendant, in considering a guilty plea, askedhis plea counsel what effect his plea would have on his status asan immigrant. Defense counsel replied that he was not sure, but,in his experience representing a number of aliens, none had beendeported. When the defendant told his counsel that his wife was anAmerican citizen, counsel responded that he did not think thedefendant had anything to worry about and, because he was marriedto an American citizen, he did not think that the defendant wouldbe deported. Correa, 108 Ill. 2d at 547-48. The defendant wassubsequently deported as a result of his guilty pleas. Thedefendant argued that he was denied the effective assistance ofcounsel because his attorney specifically misrepresented to him theeffect of his guilty pleas on his immigrant status. Correa, 108Ill. 2d at 544.

The supreme court was concerned with the advice rendered tothe defendant in response to the defendant's specific inquiry. Although the court considered part of counsel's response to thedefendant's inquiry to be equivocal, the statements made inresponse to learning that the defendant's wife was an Americancitizen were "positive and [could] only be interpreted as advice tothe effect that the defendant's pleas would have no collateraldeportation consequence." Correa, 108 Ill. 2d at 550. Thus, the"unequivocal, erroneous, and misleading representations that weremade to defendant in response to his specific inquiry" led thecourt to hold that the defendant's pleas of guilty were notintelligently and knowingly made. Correa, 108 Ill. 2d at 552-53.

Defendant asserts that in the present case defense counseltold him in response to his inquiry, "I don't think that you aregoing to have any immigration problems with it," and thismisrepresentation, like the misrepresentation in Correa, induceddefendant to plead guilty. It is unclear whether the trial courtfound defendant's testimony credible. However, even if counsel didmake this statement to defendant, we do not find that thisstatement amounts to the level of the unequivocal, erroneous, andmisleading representation made in Correa, in light of theunequivocal statement made to defendant to consult with animmigration attorney. In fact, counsel's suggestion that defendantcontact another attorney was tantamount to a warning not to rely onhis advice. Here, the circuit court concluded that defensecounsel's statements were not affirmative misrepresentations thatmisled defendant to plead guilty, and we do not find thedetermination of the circuit court manifestly erroneous. SeePeople v. Childress, 191 Ill. 2d 168, 174 (2000) (a circuit court'sdecision to deny a postconviction petition following an evidentiaryhearing will not be reversed unless that decision is manifestlyerroneous). Accordingly, defendant's petition for postconvictionrelief does not make the necessary showing of the first prong ofthe Strickland test, and we need not address the remaining prong. See Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at2069; People v. Eddmonds, 143 Ill. 2d 501, 511-12 (1991).

Defendant next contends that the trial court had a duty toadmonish defendant that he could be deported as a result of hisfelony plea. We disagree.

In concluding that an attorney has no duty to inform hisclient of the immigration consequences of a guilty plea, thesupreme court in Huante examined the rationale of Supreme CourtRule 402. Huante, 143 Ill. 2d at 70-71. Under Rule 402, to ensurethat a defendant enters his guilty plea knowingly, the trial judgemust advise the defendant of the nature of the charges, the minimumand maximum sentences prescribed by law, and the waiver of trialrights. To ensure that the defendant enters his guilty pleavoluntarily, the judge must determine in open court that the pleawas not obtained by coercion, threats, or promises apart from aplea agreement. Huante, 143 Ill. 2d at 70. "Rule 402 does notrequire, however, that a defendant be advised of the collateralconsequences of his plea." Huante, 143 Ill. 2d at 70. " 'Rule 402was designed to insure properly entered pleas of guilty, not toprovide for a recital of all the possible sentencing situationsthat might arise.' " Huante, 143 Ill. 2d at 71, quoting People v.Stewart, 101 Ill. 2d 470, 486 (1984).

The court noted that courts of review have generally agreedthat a defendant's awareness of collateral consequences is not aprerequisite to the entry of a knowing and voluntary plea ofguilty. The court further noted that, under Rule 11 of the FederalRules of Criminal Procedure (Fed. R. Crim. Proc. 11), federalcourts have also held that the validity of a guilty plea is notaffected by the failure of the court or counsel to inform adefendant of the myriad consequences that are collateral to afelony conviction. Huante, 143 Ill. 2d at 71; see, e.g., UnitedStates v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1537-38 (11th Cir. 1985). The court found that those decisions reflect "the proper concernsfor the sixth amendment guarantee of effective assistance ofcounsel, for the practical administration of criminal justice, andfor the integrity of the plea process." Huante, 143 Ill. 2d at 71. Based upon the foregoing, it is clear to us that the trial courthad no duty to admonish defendant of the collateral consequences ofhis guilty pleas.

Defendant does not dispute that a trial court is not obligatedto inform a defendant of the collateral consequences of his plea. Defendant insists that, because deportation was mandatory, it wasactually a direct consequence of his pleas and, therefore, thecourt was required to explain this to him before he pleaded guilty. Defendant asserts that, because his deportation was mandatory,Huante does not apply. However, the supreme court in Huante waswell aware that the defendant's convictions required hisdeportation under the relevant federal statute and, regardless,held that deportation is a collateral consequence of a plea ofguilty. Huante, 143 Ill. 2d at 65.

Defendant misapprehends the distinction between direct andcollateral consequences of a guilty plea. A direct consequence ofa plea, of which a defendant must be informed, " 'represents adefinite, immediate and largely automatic effect on the range ofthe defendant's punishment.' " People v. Williams, 188 Ill. 2d365, 372 (1999), quoting Cuthrell v. Director, PatuxentInstitution, 475 F.2d 1364, 1366 (4th Cir. 1973). In other words,the trial court is obligated "to ensure that a defendantunderstands [that] the direct consequences of his or her pleaencompasses only those consequences of the sentence that the trialjudge can impose." (Emphasis added.) Williams, 188 Ill. 2d at372. Conversely, a collateral consequence " 'is one that is notrelated to the length or nature of the sentence imposed on thebasis of the plea,' " and generally results from an "action takenby an agency that the trial court does not control." Williams, 188Ill. 2d at 372, quoting State v. McFadden, 884 P.2d 1303, 1304(Utah App. 1994). Such examples of collateral consequences includethe " ' "loss of public or private employment, effect onimmigration status, voting rights, possible auto licensesuspension, possible dishonorable discharge from the military, oranything else." ' (Emphasis added.) [Citation.]" Williams, 188Ill. 2d at 372. Therefore, regardless of whether defendant'sdeportation was a mandatory result of his guilty pleas, because ithad no bearing on his sentences or the nature of his punishment forthe commission of his crimes, it was a collateral matter, which thetrial court was not required to explain before it accepteddefendant's guilty pleas.

Defendant contends that knowledge of immigration consequencesis such an important part of the plea process that even the guiltyplea form includes a check box to ensure that the defendant hasbeen informed of and understands those consequences and has madehis plea knowingly and voluntarily. We agree with the State that,though the circuit court of Kane County chose to referencedeportation in the guilty plea form, this does not trump theoverriding consideration that the trial court had no constitutionalobligation to inform defendant of the potential immigrationproblems resulting from a plea.

For the foregoing reasons, the judgment of the circuit courtof Kane County is affirmed.

Affirmed.

McLAREN and O'MALLEY, JJ., concur.