{ "id": 2582466, "name": "HECTOR MARIO VELEZ LOTERO, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellee", "name_abbreviation": "Lotero v. People", "decision_date": "1990-09-13", "docket_number": "No. 1-89-0201", "first_page": "160", "last_page": "164", "citations": [ { "type": "official", "cite": "203 Ill. App. 3d 160" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "26 A.L.R. Fed. 709", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": 0 }, { "cite": "544 F.2d 71", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1020848 ], "opinion_index": 0, "case_paths": [ "/f2d/544/0071-01" ] }, { "cite": "550 F.2d 1153", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 988896 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/550/1153-01" ] }, { "cite": "439 F.2d 1316", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 755541 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/439/1316-01" ] }, { "cite": "132 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "550 N.E.2d 1155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 159", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498212 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0159-01" ] }, { "cite": "502 N.E.2d 1182", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540055 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0297-01" ] }, { "cite": "540 N.E.2d 1008", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 718", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639958 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "722-23" }, { "page": "726-27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0718-01" ] }, { "cite": "201 Ill. App. 3d 492", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2593112 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0492-01" ] }, { "cite": "485 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "108 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3129823 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/108/0541-01" ] }, { "cite": "474 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197970 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/474/0052-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] } ], "analysis": { "cardinality": 481, "char_count": 10357, "ocr_confidence": 0.764, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3551861517795053 }, "sha256": "72cfeaf35ace668253817de03227aa1e78b2483d245f11dcf75dae15a7d395f1", "simhash": "1:a12c2cc5679f34af", "word_count": 1617 }, "last_updated": "2023-07-14T15:06:38.828019+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HECTOR MARIO VELEZ LOTERO, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE McMORROW\ndelivered the opinion of the court:\nThe instant appeal questions whether the petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1 et seq.) of Hector Lotero (hereinafter defendant), an alien, is sufficient to state a claim based on ineffective assistance of counsel with respect to his plea of guilty to a narcotics charge. The defendant\u2019s post-conviction petition and supporting affidavit indicated that the defendant\u2019s trial counsel informed the defendant that although the attorney was \u201cnot an immigration attorney,\u201d the attorney believed there would be no immigration consequences to defendant\u2019s plea of guilty because (1) the defendant was married to a United States citizen and had a United States child by that marriage, and (2) the defendant would receive an expungeable term of probation in exchange for the guilty plea. We conclude that such a post-conviction petition is sufficient to state a claim for ineffective assistance of counsel rendering defendant\u2019s plea of guilty involuntary. We reverse the trial court\u2019s dismissal of defendant\u2019s post-conviction petition and remand the matter for further proceedings consistent herewith.\nDefendant is a national of Columbia. In 1985, he pleaded guilty to possession of less than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56\u00bd, par. 1402(b)) and received two years\u2019 probation (hereinafter the section 410 probation). (Ill. Rev. Stat. 1985, ch. 56\u00bd, par. 1410.) Approximately 18 months later, the State petitioned to vacate defendant\u2019s section 410 probation on the ground that defendant had committed the offense of delivery of a controlled substance in 1986. (Ill. Rev. Stat. 1985, ch. 56\u00bd, par. 1401(a)(2).) A few months thereafter, defendant was arrested by agents of the United States Immigration and Naturalization Service (INS) and exclusion/deportation proceedings were instituted against him. It appears from the record that these INS proceedings were dismissed upon defendant\u2019s voluntary departure from the United States in 1989.\nIn October 1988, after defendant was arrested by the INS but before he voluntarily departed, defendant filed a petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1 et seq.) requesting that his 1985 guilty plea be vacated on the ground that it was involuntary because of ineffective assistance of counsel when the plea was entered. As ultimately amended, defendant asserted in the post-conviction petition that \u201cthe specific basis for his plea of guilty was in reliance on the advice of his attorney that there would be no potential immigration consequences, as to deportation.\u201d Defendant stated that he would not have pleaded guilty if he had been advised that he could be deported because of the guilty plea.\nIn support of his petition for post-conviction relief, defendant attached the affidavit of the attorney who had represented him at the 1985 narcotics proceedings culminating in defendant\u2019s guilty plea. Relative to the effect a guilty plea would have on defendant\u2019s immigration status, the attorney\u2019s affidavit stated, \u201cThat in response to [defendant\u2019s] questions over his status, I informed him that I was not an immigration attorney, but because he was married to an American citizen and had a son by her, who was an American citizen, and the plea in his case would be to Section 1410 probation, and expungeable, that it was my belief that such a plea would not have any consequences on his immigration status.\u201d\nThe trial court dismissed defendant\u2019s petition for post-conviction relief without an evidentiary hearing, and defendant appeals. A petition for post-conviction relief based on ineffective assistance of counsel must allege facts to show that the attorney\u2019s representation fell below an objective standard of competence, and that, to a degree of reasonable probability, the attorney\u2019s ineffective assistance affected the outcome of the proceeding. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Where a defendant contends that his attorney\u2019s ineffective assistance rendered his guilty plea involuntary, the defendant must show that his attorney\u2019s advice did not satisfy the objective standard of competence expected of attorneys in criminal cases, and that, to a degree of reasonable probability, defendant would not have entered his guilty plea if his attorney had given him competent advice. Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366; People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307.\nIn People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, the Illinois Supreme Court determined that an attorney\u2019s representation was ineffective where the attorney erroneously advised the alien defendant that there would be no deportation consequences to the defendant\u2019s plea of guilty to narcotics charges, because the defendant was married to a United States citizen and had a United States child by this marriage. The Illinois Supreme Court reasoned that it is the responsibility of the defendant\u2019s trial counsel to advise him of the collateral consequences of deportation where the defendant is an alien and is considering the entry of a guilty plea. Subsequent Illinois Appellate Court decisions have held that it is the responsibility of counsel to research and advise the alien defendant of the immigration consequences of a plea of guilty to a narcotics charge. People v. Maranovic (1990), 201 Ill. App. 3d 492; People v. Miranda (1989), 184 Ill. App. 3d 718, 722-23, 540 N.E.2d 1008; People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182; see also People v. Huante (1990), 194 Ill. App. 3d 159, 550 N.E.2d 1155, appeal allowed (1990), 132 Ill. 2d 550 (defendant\u2019s trial counsel has duty to inquire of defendant\u2019s immigration status where circumstances place counsel on notice that his client might be alien).\nAccording to the record, defendant\u2019s trial counsel in the case at bar advised defendant that although the attorney \u201cwas not an immigration attorney,\u201d the attorney believed that defendant would not be subject to deportation if he pleaded guilty to the narcotics charge, because (1) defendant is married to a United States citizen and has a United States citizen by this marriage, and (2) defendant would receive an ex-pungeable section 410 probation in exchange for his guilty plea. The defendant\u2019s attorney apparently undertook no research in spite of his admitted lack of knowledge or experience with respect to the questions posed by defendant. Under these circumstances, we conclude that the representation provided by defendant\u2019s trial counsel fell below the objective range of competence expected of attorneys in criminal matters.\nIn addition, we determine that defendant\u2019s post-conviction petition was sufficient to demonstrate that his attorney\u2019s legal advice affected the outcome of his guilty plea. Initially, we note that the advice given by defendant\u2019s attorney was erroneous. The first reason suggested by defendant\u2019s trial counsel, viz. defendant\u2019s marriage to and parentage of United States citizens, was no bar to defendant\u2019s potential deportation upon the entry of a guilty plea to a narcotics charge. See, e.g., People v. Correa, 108 Ill. 2d 541, 485 N.E.2d 307.\nIn addition, the defendant\u2019s trial counsel\u2019s reliance upon section 410 probation was in error. At the time defendant entered his guilty plea in 1985, there was conflicting precedent with respect to whether a sentence of probation for a narcotics conviction, expungeable if fully served without adverse incident, was sufficient to subject an alien to deportation prior to expiration of the term of probation. The greater weight of authority held that such a probationary conviction was sufficient to warrant the defendant\u2019s deportation. (See, e.g., Kolios v. Immigration & Naturalization Service (1st Cir. 1976), 532 E2d 786; Gonzalez de Lara v. United States (5th Cir. 1971), 439 F.2d 1316; Ocon-Perez v. Immigration & Naturalization Service (9th Cir. 1977), 550 F.2d 1153; contra Rehman v. Immigration & Naturalization Service (2d Cir. 1976), 544 F.2d 71; see generally Annot., 26 A.L.R. Fed. 709 (1976 & 1989 Supp.).) The advice of defendant\u2019s trial counsel that a section 410 probation would not carry any adverse deportation consequences was erroneous in light of this Federal precedent.\nDefendant\u2019s post-conviction petition alleges that he relied upon his trial counsel\u2019s erroneous advice when defendant chose to plead guilty rather than exercise his right to demand trial. Defendant asserts that he would not have pleaded guilty had he received adequate and competent legal advice regarding the immigration consequences of his guilty plea. As a result, we conclude that defendant\u2019s petition was sufficient to state a claim for ineffective assistance of counsel rendering involuntary his 1985 plea of guilty to the charge of possession of less than 30 grams of a controlled substance.\nWe do not believe that defendant\u2019s voluntary departure from the United States, during the pendency of his deportation proceedings and with the approval of the INS, renders moot defendant\u2019s post-conviction petition. There is nothing in the record to indicate that, if the defendant were to reenter the United States, the INS could not reopen deportation proceedings against him because of his 1985 plea of guilty to the narcotics charge resulting in his section 410 probation. Thus, the threat of potential deportation remains regardless of whether defendant stayed in this country or voluntarily departed from it. See People v. Miranda (1989), 184 Ill. App. 3d 718, 726-27, 540 N.E.2d 1008.\nFor these reasons, the order of the circuit court is reversed and the cause remanded for further proceedings consistent herewith.\nReversed and remanded.\nLINN AND JOHNSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McMORROW" } ], "attorneys": [ "Linda Kahn and John Lewis, both of O\u2019Keefe, Lewis & Bruno, P.C., of Skokie, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and T. Michael Leuer, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "HECTOR MARIO VELEZ LOTERO, Plaintiff-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u2014 89\u20140201\nOpinion filed September 13, 1990.\nLinda Kahn and John Lewis, both of O\u2019Keefe, Lewis & Bruno, P.C., of Skokie, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and T. Michael Leuer, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0160-01", "first_page_order": 182, "last_page_order": 186 }