Richard C. Schoenstedt
State law says judges have to tell non-citizen defendants their guilty pleas could result in deportation.
But even if they don’t, case law says immigrants can’t always take back their pleas if they find out the consequences later.
The Illinois Supreme Court is slated to rule in a case Thursday that deals with those issues, People v. Jorge A. Guzman, No. 118749, which presents a complex procedural history and a smorgasbord appellate decision.
It’s set to be handed down as state and national leaders are closely examining policies on who is allowed into the country — and how — in the wake of a Syrian refugee crisis and the run-up to the 2016 presidential election.
Section 113-8 of the Criminal Code says before accepting a plea of guilty, guilty but mentally ill or nolo contendere, the court “shall give the following in advisement to the defendant in open court:
“ ‘If you are not a citizen of the United States, you are hereby advised that conviction of 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.’ ”
Jorge A. Guzman was indicted for possession of stolen firearms and entered a negotiated guilty plea but filed a motion to withdraw it in March 2009. He argued at a hearing that it was involuntary because the trial judge in the case never told him about potential immigration consequences of being found guilty.
Twelfth Circuit Judge Richard C. Schoenstedt in that case denied the motion, finding that the law was directory rather than mandatory. Guzman appealed in June 2009 and later filed a separate post-conviction petition alleging ineffective counsel because his lawyer also failed to tell him about the consequences.
In late 2009, the state’s high court authored a decision in People v. Dellivar saying immigration consequences were “collateral” to the plea, and a failure to inform a defendant about them did not necessarily alter the legitimacy of the plea.
The court in that case said a failure to admonish could require a reversal if the defendant could show he or she was being subjected to immigration penalties or would have pleaded not guilty had he or she been told about a possible deportation.
Guzman’s case has gone through a number of steps on both issues — the motion to withdraw the plea and the ineffective counsel claims — since that decision.
The 3rd District Appellate Court in 2011 ruled he was prejudiced by not being told by the trial judge about the issue, but the Supreme Court in 2012 ordered a remand, telling the appellate court to look again at Guzman’s motion to withdraw his plea. The high court also advised the lower court to consolidate that case with one dealing with his ineffective lawyer claims.
The appellate court took another crack at the case in December 2014. In a 19-page opinion with one special concurrence and one partial concurrence, Justice Tom M. Lytton wrote Guzman did not show in his motion to withdraw that he was prejudiced by not being told about a possible deportation.
“For example, defendant’s motion simply stated that ‘[d]efendant wishes to withdraw his guilty plea.’ It fails to offer any basis why he should be allowed to do so,” Lytton wrote. “Nowhere in the motion does defendant state that he was subject to potential immigration penalties or that he would not have pled guilty if the court had properly admonished him of the immigration consequences.”
However, Lytton reversed the dismissal of Guzman’s other claim — that his post-conviction lawyer was ineffective in presenting his initial ineffective counsel claim.
Justice Mary W. McDade authored a three-page special concurrence largely backing Lytton’s approach.
But Justice William E. Holdridge wrote in his own, nine-page opinion that the trial court’s failure to tell Guzman about the possibility of deportation violated his Fifth Amendment rights.
He challenged the Illinois high court’s decision in the Dellivar case, saying it couldn’t survive a U.S. Supreme Court decision that came a year later, Padilla v. Kentucky, in 2010.
In that case, the nation’s highest court wrote that deportation was a “particularly severe” penalty that had become “intimately related to the criminal process” and “made removal nearly an automatic result for a broad class of non[-]citizen offenders.”
Although Dellivar ruled that the immigration consequences were “collateral” to the plea, Holdridge cited the Padilla decision as saying that deportations as a consequence of criminal convictions are “uniquely difficult to classify as either a direct or a collateral consequence.”
“The Illinois Supreme Court’s conclusion that a trial court’s failure to admonish a defendant of the potential immigration consequences of his guilty plea does not call into question the constitutional voluntariness if the plea is based entirely on the premise that immigration consequences are ‘collateral’ as a matter of law,” Holdridge wrote. “That premise was squarely rejected by the United States Supreme Court in Padilla (at least with respect to deportation).”
He agreed with the majority that the ineffective counsel claims should be re-examined.
Lindsay Beyer Payne, an assistant attorney general, represented the state in the case. The attorney general’s office declined to comment while the case is still pending.
Andrew J. Boyd, an assistant appellate defender, represented Guzman. Peter A. Carusona, deputy defender in the Office of the State Appellate Defender, could not be reached for comment.