People v. Unzueta, 2015 IL App (1st) 131306 (November 2015). Episode 111 (Duration: 6:43)
Possible immigration information from trial attorney brought up in the postconviction petition.
Defendant said his trial attorney never told him that he would be deported if plead to a burglary. Would have never plead if he knew. However, this was not a mistake to dismiss the petition at the second stage because any error that did occur was cured by the court's admonishments under 725 ILCS 5/113-8.
This record belies the allegation that defendant would not have pled guilty had he been adequately advised by his attorney because he was so advised by the trial court. This advisement should be given its fully intended effect.
Further, in light of the claimed utmost importance to the defendant that he avoid deportation, the fact that he pled guilty while knowing the risk of deportation existed belies his assertion that his decision would have been different if he had been told that the risk was a certainty.
At the very least, the advisement by the court that this risk existed put the defendant on notice that further inquiry was warranted if immigration consequences would have affected his decision to plead guilty.
podcast – interesting issue – what exactly is the standard for the second prong Strickland analysis – is it would not have plead or is it would have won the case?
Padilla v. Kentucky, 559 U.S. 356 (2010) established that trial counsel's failure to inform client on the risks of deportation is ineffective assistance of counsel. Notably, the Court expressly stated that it was not making a finding in relation to the prejudice prong of Strickland but, rather, was solely addressing the deficient performance prong.
The Court stated, “[m]oreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”
Defendant then claims he only needs to establish that he would not have plead guilty to meet the second prong, not necessarily establish that it was likely he would have succeeded at trial.
