{ "id": 8498212, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE HUANTE, Defendant-Appellant", "name_abbreviation": "People v. Huante", "decision_date": "1990-01-23", "docket_number": "No. 1 \u2014 88\u20142650", "first_page": "159", "last_page": "168", "citations": [ { "type": "official", "cite": "194 Ill. App. 3d 159" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "451 A.2d 223", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 200353 ], "opinion_index": 0, "case_paths": [ "/pa-super/305/0024-01" ] }, { "cite": "507 F.2d 461", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 130000 ], "year": 1982, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/f2d/507/0461-01" ] }, { "cite": "746 P.2d 523", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10402129 ], "opinion_index": 0, "case_paths": [ "/p2d/746/0523-01" ] }, { "cite": "116 F.2d 613", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1096779 ], "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/f2d/116/0613-01" ] }, { "cite": "463 F.2d 1305", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1344183 ], "year": 1940, "pin_cites": [ { "page": "1308" } ], "opinion_index": 0, "case_paths": [ "/f2d/463/1305-01" ] }, { "cite": "397 F.2d 211", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2145996 ], "year": 1972, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/f2d/397/0211-01" ] }, { "cite": "793 F.2d 449", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1587212 ], "year": 1968, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/f2d/793/0449-01" ] }, { "cite": "13 F.2d 630", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1305409 ], "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/f2d/13/0630-01" ] }, { "cite": "259 U.S. 276", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423344 ], "weight": 3, "pin_cites": [ { "page": "284" }, { "page": "943" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/us/259/0276-01" ] }, { "cite": "95 L. Ed. 886", "category": "reporters:federal", "reporter": "L. Ed.", "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "341 U.S. 223", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148002 ], "weight": 2, "pin_cites": [ { "page": "243" }, { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/us/341/0223-01" ] }, { "cite": "92 L. Ed. 433", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "333 U.S. 6", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156873 ], "weight": 4, "pin_cites": [ { "page": "10" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/us/333/0006-01" ] }, { "cite": "540 N.E.2d 1008", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639958 ], "weight": 3, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0718-01" ] }, { "cite": "474 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197970 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/474/0052-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1255-56" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "pin_cites": [ { "page": "526-27" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "pin_cites": [ { "page": "688" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "668" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "397 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058501 ], "weight": 3, "pin_cites": [ { "page": "771" }, { "page": "773" }, { "page": "1448-49" } ], "opinion_index": 0, "case_paths": [ "/us/397/0759-01" ] }, { "cite": "400 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12045986 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "31" }, { "page": "168" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/us/400/0025-01" ] }, { "cite": "502 N.E.2d 1182", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1186" } ], "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540055 ], "weight": 3, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0297-01" ] }, { "cite": "485 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "310" }, { "page": "309" }, { "page": "309" }, { "page": "311" }, { "page": "310" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129823 ], "weight": 9, "year": 1986, "pin_cites": [ { "page": "549" }, { "page": "547" }, { "page": "548" }, { "page": "550-51" }, { "page": "550" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0541-01" ] }, { "cite": "540 N.E.2d 1008", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "184 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639958 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/184/0718-01" ] }, { "cite": "474 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197970 ], "weight": 6, "pin_cites": [ { "page": "56" }, { "page": "208" }, { "page": "369" } ], "opinion_index": 1, "case_paths": [ "/us/474/0052-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "397 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058501 ], "weight": 3, "pin_cites": [ { "page": "771" }, { "page": "773" }, { "page": "1449" } ], "opinion_index": 1, "case_paths": [ "/us/397/0759-01" ] }, { "cite": "502 N.E.2d 1182", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "151 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540055 ], "weight": 3, "pin_cites": [ { "page": "303" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/151/0297-01" ] }, { "cite": "485 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "108 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129823 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/108/0541-01" ] } ], "analysis": { "cardinality": 940, "char_count": 21638, "ocr_confidence": 0.738, "pagerank": { "raw": 1.9151753242630258e-07, "percentile": 0.7322218399605537 }, "sha256": "47d30a2e1dbcc7791a62dcd320c08f791d4aa58a9cce5e1f9361d9729d1ceeb6", "simhash": "1:33b87c4437251c41", "word_count": 3626 }, "last_updated": "2023-07-14T21:36:32.853539+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTMAN, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE HUANTE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendant, Jose Huante, was arrested on November 13, 1985, after he had made three separate sales of cocaine to a Chicago police officer. Although the quantity of narcotics involved in this case made defendant eligible to be sentenced as a Class X felon, plea negotiations between defense counsel and the State led to the reduction of one of the charges to a Class 3, and defendant then pleaded guilty to three counts of delivery of a controlled substance. Defendant was sentenced to concurrent three-year terms of imprisonment on each plea, plus a one-year period of mandatory supervised release thereafter. Defendant did not appeal his conviction or file a motion to vacate the judgment and for leave to withdraw his pleas of guilty. On May 26, 1988, he filed a petition seeking relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 1 et seq.), alleging ineffective assistance of counsel on the ground that his attorney failed to inform or discuss with him that deportation could be a collateral consequence of his pleading guilty in light of his status as an alien and that his plea of guilty was therefore rendered involuntary. Folio-wing a hearing, the trial court denied defendant\u2019s post-conviction petition. He now appeals from that decision.\nUpon receiving defendant\u2019s guilty pleas, the trial judge admonished defendant as to the constitutional rights he was waiving thereby, and then entered judgment on each conviction. Nothing was entered in aggravation or mitigation; instead, both sides relied on their statements made in a pretrial conference. Although the trial judge did not ask defendant if defense counsel had said or done anything to influence his decision to plead guilty, defendant did tell the trial judge that no one had promised him anything or threatened him in any manner that would influence his decision.\nAt the evidentiary hearing held on defendant\u2019s post-conviction petition, attorney Michael D. Walsh, who represented defendant in his criminal proceeding, was asked by his present counsel, \u201c[Y]ou were aware that if he was Mexican and he did speak Spanish he could be an alien. Is that correct?\u201d And Walsh replied, \u201cAnything\u2019s possible.\u201d Walsh also stated that he was cognizant that \u201ccertain convictions could result in deportation,\u201d and that he had advised other clients that their status as aliens could be affected if they were convicted of a crime, but that he had never discussed the subject with defendant because he had not been informed nor had he been aware of defendant\u2019s status in this country.\nDefendant testified in his own behalf that he and Walsh had never discussed the consequences of a guilty plea upon his status as an alien and that he was unaware that he \u201ccould have problems with the Immigration and Naturalization Service\u201d (INS) as a result of such a plea. Defendant further stated that he would not have pleaded guilty if he had known of the consequences, and that he did not learn of any involvement in his case by the INS until he was released from prison and discovered that the immigration authorities had lodged a detainer against him. Although defendant had entered the United States illegally in 1973, he was a legal resident and the holder of a \u201cgreen card\u201d at the time that Walsh represented him. Defendant agreed with Walsh\u2019s testimony that they had never discussed his status in the United States and that he had never informed Walsh of his status or of the fact that he was born in Mexico.\nPresent counsel for defendant cited two cases in support of the granting of defendant\u2019s petition: People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, and People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182. After he had heard oral argument and had taken the matter under advisement, the trial judge denied the petition, stating that in both Correa and Padilla \u201cthe attorney was ineffective because he misrepresented the law,\u201d whereas \u201cin the case I have before me *** there was no misrepresentation of the law,\u201d and that both defendant and Walsh testified that defendant\u2019s status in the United States \u201cwas never discussed,\u201d that defendant \u201cnever asked about it,\u201d and \u201cnever told the attorney.\u201d\nA guilty plea is valid only when it is made as \u201ca voluntary and intelligent choice among the alternative courses of action open to the defendant.\u201d (North Carolina v. Alford (1970), 400 U.S. 25, 31, 27 L. Ed. 2d 162, 168, 91 S. Ct. 160, 164.) When a defendant enters a plea of guilty upon advice of counsel, the voluntariness and intelligence of the plea depends \u201con whether that advice was within the range of competence demanded of attorneys in criminal cases.\u201d McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1448-49.\nTo determine \u201cwhether the defendant\u2019s pleas, made in reli-anee on counsel\u2019s advice, were voluntary and intelligently and knowingly made depends on whether the defendant had effective assistance of counsel.\u201d (People v. Correa (1985), 108 Ill. 2d 541, 549, 485 N.E.2d 307, 310.) The United States Supreme Court has adopted a two-part test for this determination. First, the defendant must demonstrate that his \u201ccounsel\u2019s representation fell below an objective standard of reasonableness\u201d (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064), and second that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different\u201d (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Our supreme court has expressly adopted the two-component test of Strickland. (People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56.) The second prong of the Strickland test can be satisfied by a showing that but for counsel\u2019s unprofessional conduct, defendant would not have pleaded guilty but would have insisted upon going to trial, i.e., that defense counsel\u2019s conduct affected the outcome of the plea process. Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.\nOn appeal, defendant reasserts his reliance upon Correa and Padilla. (See also People v. Miranda (1989), 184 Ill. App. 3d 718, 540 N.E.2d 1008 (decided by the second district after the briefs in this case were filed).) But the State argues that here we are presented with an issue which did not arise in Correa or Padilla, for it is clear that although in each of those cases trial counsel had knowledge of ' the fact that their clients were aliens, they did not inform them of, or look into, the effect of a guilty plea and conviction on their alienage. Indeed, in Correa, the defendant asked his attorney what effect his guilty pleas would have on his status as an alien, and the attorney replied that although he did not know the answer to that question, \u201cIn my experience, I represent a lot of people who have been aliens, and none of them have been deported.\u201d (Correa, 108 Ill. 2d at 547, 485 N.E.2d at 309.) And when the defendant informed the attorney that his wife was an American citizen, the attorney erroneously told him, \u201cIf your wife is an American citizen, then a plea of guilty would not affect your status. You probably will be picking up her status as an American citizen.\u201d Correa, 108 Ill. 2d at 548, 485 N.E.2d at 309.\nIn Padilla, trial counsel \u201cby his own admissions, knew defendant was an alien, knew drug convictions could cause deportation, and took no action to inform his client before the guilty plea.\u201d (Padilla, 151 Ill. App. 3d at 303, 502 N.E.2d at 1186.) In Miranda, the issue, as stated by the court, was \u201cwhether defendant was denied his right to the effective assistance of counsel when his attorney, knowing that he was an alien in this country illegally, did not advise defendant as to, or even research the effect of a guilty plea and conviction on his immigration status,\u201d and the question was answered in the affirmative. Miranda, 184 Ill. App. 3d at 722, 549 N.E.2d at 1010.\nIn the case at bar, the parties are in accord that defendant\u2019s alien status was never discussed by Walsh with defendant prior to the entry of his pleas; defendant did not inform Walsh of it and Walsh did not inquire of his client. Nor did defendant inform Walsh that he was born in Mexico. The record also shows that present counsel for defendant stated to the judge at the post-conviction hearing that \u201cmy client speaks fairly good English.\u201d Nevertheless, counsel obtained permission from the court to have defendant\u2019s sister stand by at the hearing in the event she was needed to interpret for him; however, there was apparently no need for her services despite the fact that the questions asked of defendant by his attorney were replete with references to legal terms not commonly understood by laymen. Defendant appears to have answered those questions coherently and without any hesitation. It is also of record that defendant had been in the United States for 13 years at the time he pleaded guilty in his criminal case, that he was then a self-employed general contractor, that he had married in Chicago and was the father of two children, ages seven and five at the time, and that, according to the presen-tence investigation report, he was born in Mexico. Evidently, Walsh had occasion to use defendant\u2019s sister and sister-in-law to interpret some of his conversations with defendant prior to the entering of his pleas. Accordingly, the issue resolves itself into one of whether Walsh either knew or should have known that defendant was an alien who, under the circumstances, was susceptible to deportation.\nIn determining whether Walsh\u2019s representation of defendant \u201cfell below an objective standard of reasonableness,\u201d an examination of the relevant law is necessary:\n\u201cAny alien in the United States *** shall, upon the order of the Attorney General, be deported, who\u2014\n(11) is, or hereafter at any time after entry has been, *** convicted of a violation of, *** any law or regulation of a State, *** relating to a controlled substance [as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)].\u201d 8 U.S.C. 1251(a)(ll) (1988).\nDefendant, although a legal resident of the United States, is deemed an \u201calien\u201d because he is neither a citizen nor a national of this country. 8 U.S.C. 1101(a)(3) (1988).\nDeportation, although collateral, is, nevertheless, a drastic consequence. (Fong Haw Tan v. Phelan (1948), 333 U.S. 6, 92 L. Ed. 433, 68 S. Ct. 374; Correa, 108 Ill. 2d 541, 485 N.E.2d 307.) In most cases this collateral consequence is more severe than the penalty imposed by the court in response to the plea. (Correa, 108 Ill. 2d at 550-51, 485 N.E.2d at 311.) Indeed, deportation has been equated with a \u201clife sentence of exile\u201d (Jordan v. De Gorge (1951), 341 U.S. 223, 243, 95 L. Ed. 886, 898, 71 S. Ct. 703, 714, (Jackson, J., dissenting); accord Fong Haw Tan v. Phelan (1948), 333 U.S. 6, 10, 92 L. Ed. 433, 436, 68 S. Ct. 374, 376 (\u201cthe equivalent of banishment\u201d); Ng Fung Ho v. White (1922), 259 U.S. 276, 284, 66 L. Ed. 938, 943, 42 S. Ct. 492, 495 (may result in the \u201closs of both property and life; or of all that makes life worth living\u201d)). And in United States ex rel. Klonis v. Davis (2d Cir. 1926), 13 F.2d 630, 631, Judge Learned Hand referred to deportation as \u201ca cruel and barbarous result [which] would be a national reproach.\u201d\nThe harsh consequences of deportation may be averted, however, if the trial judge having jurisdiction over the alien defendant recommends to the Attorney General, at the time of first imposing judgment or passing sentence or within 30 days thereafter, that the defendant not be deported. (8 U.S.C. 1251(b) (1988).) And \u201cwhile section 1251(b) speaks in terms of the sentencing court\u2019s making a \u2018recommendation,\u2019 it is a recommendation that is binding on the Attorney General, for the section has consistently been interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation.\u201d Janvier v. United States (2d Cir. 1986), 793 F.2d 449, 452, citing Haller v. Esperdy (2d Cir. 1968), 397 F.2d 211, 213; Velez-Lozano v. Immigration & Naturalization Service (D.C. Cir. 1972), 463 F.2d 1305, 1308; United States ex rel. Santarelli v. Hughes (3d Cir. 1940), 116 F.2d 613, 616.\nIn view of these factors, our courts have concluded that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to the critical phases of such proceedings (Correa, 108 Ill. 2d 541, 485 N.E.2d 307; Miranda, 184 Ill. App. 3d 718, 540 N.E.2d 1008; Padilla, 151 Ill. App. 3d 297, 502 N.E.2d 1182); and the determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien. (People v. Pozo (Colo. 1987), 746 P.2d 523.) In the case at bar, although it is true that present counsel for defendant admitted that his client \u201cspeaks fairly good English\u201d; that no interpreter was needed at the post-conviction hearing (the record does not show whether one was utilized in the criminal case); that defendant had no difficulty in responding to his counsel\u2019s interrogation, however laden the questions may have been with legal terms; that defendant had been in the United States for 13 years at the time he entered the pleas at issue here; and that he was then a self-employed general contractor, it is also true that Walsh had on some occasions used defendant\u2019s sister and sister-in-law to interpret his conversations with him; that the presentence investigation report shows that defendant was born in Mexico; and that Walsh, in response to the query put to him at the post-conviction hearing, \u201cYou were aware that if he was Mexican and he did speak Spanish he could be an alien,\u201d replied, \u201cAnything\u2019s possible.\u201d Walsh also stated that he was aware that \u201ccertain convictions could result in deportation,\u201d and that he had advised other clients that their status as aliens could be affected if they were convicted of a criminal offense.\nOur supreme court has held that it is counsel\u2019s and not the court\u2019s responsibility to advise an accused of the collateral consequences of a plea of guilty (Correa, 108 Ill. 2d at 550, 485 N.E.2d at 310), and although Correa treats the issue of an attorney who admits knowing of his client\u2019s alienage and misleads him, which is also the case with Padilla and Miranda, and although the Correa court expressly stated that it was not ruling upon the merely passive conduct of counsel, the case at bar commands no different a result than the one reached there or in Padilla or in Miranda. Here, from all of the facts known to him at the time that his client pleaded guilty, Walsh evidently chose to guess that defendant was an American national, for that is the only reasonable characterization we can give it\u2014 a guess. And therein Walsh erred, for to guess without ascertaining the accuracy of his conclusion was to choose to remain ignorant. No matter: either to err or to be ignorant of so vital a fact under the circumstances of this case is to fail the first element of the Strickland test \u2014 \u201ccounsel\u2019s representation fell below an objective standard of reasonableness.\u201d (Strickland, 466 U.S. at 668, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) This is so especially because defense counsel had a duty \u201cto ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger.\u201d (Michel v. United States (2d Cir. 1974), 507 F.2d 461, 466; accord Commonwealth v. Wellington (Pa. Super. 1982), 305 Pa. Supp. 24, 451 A.2d 223.) Nor can there be any doubt that Walsh\u2019s conduct affected the outcome of the plea process, thus completing the Strickland requirement.\nAccordingly, we reverse the judgment of the circuit court and remand with directions to vacate defendant\u2019s guilty pleas and to grant him a new trial.\nReversed and remanded.\nHARTMAN, J., concurs.\nThe supreme court did, however, cite cases from three different States which held that even passive conduct of counsel may constitute ineffective assistance. Correa, 108 Ill. 2d at 551.", "type": "majority", "author": "JUSTICE SCARIANO" }, { "text": "PRESIDING JUSTICE DiVITO,\ndissenting:\nIn my judgment, neither Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, nor Illinois case law compels the conclusion reached by the majority. I do not believe the lawyer\u2019s conduct in this case fell below the objectively reasonable standard of professional conduct required by the sixth amendment, and I do not believe either People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, or People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182, applies where, as in this case, the lawyer is unaware of his client\u2019s alien status.\nThere is no doubt that the Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. (See Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.) The first part of the Strickland test applied to such challenges is \u201cwhether counsel\u2019s advice \u2018was within the range of competence demanded of attorneys in criminal cases.\u2019 \u201d (Hill v. Lockhart, 474 U.S. at 56, 88 L. Ed. 2d at 208, 106 S. Ct. at 369, quoting McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449.) Concerning the deportation consequences of a guilty plea, the Illinois Supreme Court has stated that \u201cunequivocal, erroneous, misleading representations *** made to [the] defendant in response to his specific inquiry\u201d fall outside the range of competence demanded by Strickland and the sixth amendment, but expressly declined to consider whether the same is true of \u201cthe passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea.\u201d People v. Correa, 108 Ill. 2d at 551-52.\nApplication of the rule in Correa to \u201cpassive conduct\u201d was first considered in People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182. In that case, the defendant challenged his guilty plea in a post-conviction hearing, alleging that his lawyer incorrectly assured him that no deportation consequences would result from pleading guilty. His lawyer denied that he had discussed the subject of deportation with his client. The trial court did not resolve this conflict in the evidence, and the court on appeal did not find the lawyer\u2019s denial relevant, holding that \u201cineffective assistance render[s] a guilty plea involuntary where counsel knows his client is an alien and does nothing to inform him of possible deportation consequences.\u201d (People v. Padilla, 151 Ill. App. 3d at 303.) In People v. Miranda (1989), 184 Ill. App. 3d 718, 540 N.E.2d 1008, the court agreed that a lawyer who knows his client is an alien, but does Hot inform him of the deportation consequences of a guilty plea, provides constitutionally ineffective assistance, even where the client never raised the subject of deportation with his lawyer.\nBecause the lawyer in Correa actually misrepresented to his client the deportation consequences of a guilty plea, both Padilla and Miranda represent an extension of the result reached in that case. The majority here would now extend Correa further by finding ineffective assistance even though the lawyer does not know his client is an alien. I do not believe, however, that a lawyer\u2019s conduct is outside the range of reasonable competence where the lawyer, who does not know his client is an alien, fails to advise him of the deportation consequences of a guilty plea. Such a result would impose on defense lawyers a duty, not mandated by the constitution, required by statute, or compelled by Correa, Padilla, or Miranda, to inquire into their clients\u2019 alien status. Indeed, if such inquiries are constitutionally required, then the duty should be imposed on the court as well as counsel to advise a defendant of the deportation consequences of a guilty plea, regardless of whether the defendant is known to be an alien. Although this might be a simple procedure to follow, I am not aware of any authority compelling such a practice.\nIf there are circumstances under which a lawyer could be charged with the knowledge that his client is an alien, such circumstances were certainly not present in this case. Defendant never discussed his alien status with his lawyer, had been in the United States for 13 years, was married in Chicago, had two children, was self-employed as a general contractor, and spoke \u201cfairly good\u201d English. The only facts cited by the majority remotely indicative of defendant\u2019s alien status and presumably known to defendant\u2019s lawyer are the entry in the presentence investigation report showing defendant was born in Mexico and the use of defendant\u2019s sister and sister-in-law as interpreters. On these facts, I simply do not believe defendant received constitutionally ineffective assistance because his lawyer failed to inform him of the deportation consequences of a guilty plea.\nFor the foregoing reasons, I would affirm the judgment of the circuit court.", "type": "dissent", "author": "PRESIDING JUSTICE DiVITO," } ], "attorneys": [ "Stephen M. Connolly, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and Nicholas Ford, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE HUANTE, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201488\u20142650\nOpinion filed January 23, 1990.\nStephen M. Connolly, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and Nicholas Ford, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0159-01", "first_page_order": 181, "last_page_order": 190 }