{ "id": 4282424, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAIME DE LEON, Defendant-Appellant", "name_abbreviation": "People v. De Leon", "decision_date": "2009-01-15", "docket_number": "No. 2-07-0926", "first_page": "1035", "last_page": "1045", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 1035" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "777 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "807" } ], "opinion_index": 0 }, { "cite": "437 Mass. 809", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 734987 ], "year": 2002, "pin_cites": [ { "page": "813-16" } ], "opinion_index": 0, "case_paths": [ "/mass/437/0809-01" ] }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "560" }, { "page": "561" }, { "page": "562" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "839 A.2d 509", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9058281 ], "year": 2003, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/a2d/839/0509-01" ] }, { "cite": "217 Ill. 2d 43", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875175 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "53" }, { "page": "54" }, { "page": "54" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0043-01" ] }, { "cite": "381 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626899 ], "weight": 11, "year": 2008, "pin_cites": [ { "page": "295" }, { "page": "295" }, { "page": "295" }, { "page": "296" }, { "page": "296" }, { "page": "296" }, { "page": "296" }, { "page": "297", "parenthetical": "Hall, J., dissenting" }, { "page": "298", "parenthetical": "Hall, J., dissenting" }, { "page": "297", "parenthetical": "Hall, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/381/0292-01" ] }, { "cite": "383 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277638 ], "weight": 8, "year": 2008, "pin_cites": [ { "page": "82" }, { "page": "83" }, { "page": "84" }, { "page": "88-89" }, { "page": "87" }, { "page": "87" }, { "page": "87", "parenthetical": "emphasizing that the legislature had \"many opportunities *** to remove the word 'shall' and it declined to do so\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/383/0080-01" ] }, { "cite": "226 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610512 ], "year": 2007, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0169-01" ] }, { "cite": "209 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461402 ], "year": 2004, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0248-01" ] }, { "cite": "218 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735943 ], "year": 2006, "pin_cites": [ { "page": "381-82" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0375-01" ] }, { "cite": "89 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493996 ], "year": 1982, "pin_cites": [ { "page": "279-80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0273-01" ] }, { "cite": "155 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810474 ], "year": 1993, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0201-01" ] }, { "cite": "357 Ill. App. 3d 45", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136059 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "49" }, { "page": "50", "parenthetical": "because the defendant was unable to seek relief under the Post-Conviction Hearing Act - since he was not imprisoned and was not asserting a substantial denial of his constitutional rights - he could properly raise his claim under section 2 - 1401 of the Civil Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0045-01" ] }, { "cite": "226 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610490 ], "weight": 8, "year": 2007, "pin_cites": [ { "page": "7" }, { "page": "8" }, { "page": "7-8" }, { "page": "8" }, { "page": "8" }, { "page": "8" }, { "page": "8" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0001-01" ] } ], "analysis": { "cardinality": 892, "char_count": 26520, "ocr_confidence": 0.772, "pagerank": { "raw": 6.233605815818256e-08, "percentile": 0.38550973435130775 }, "sha256": "7081450b57c51e5c368088e25bb114955015b634aac48f17da75dbf80dd10c05", "simhash": "1:f5baf273350ed79c", "word_count": 4371 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAIME DE LEON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JORGENSEN\ndelivered the opinion of the court:\nDefendant, Jaime De Leon, pleaded guilty to domestic battery (720 ILCS 5/12 \u2014 3.2(a)(1) (West 2004)) and driving while his license was revoked (625 ILCS 5/6 \u2014 303(d) (West 2004)) and was sentenced to concurrent one-year terms of imprisonment. After serving his sentence, defendant filed a petition under section 2 \u2014 1401 of the Code of Civil Procedure (the Civil Code) (735 ILCS 5/2 \u2014 1401 (West 2006)), seeking to have his guilty pleas and convictions vacated based on the trial court\u2019s failure to inform him, under section 113 \u2014 8 of the Code of Criminal Procedure of 1963 (the Criminal Code) (725 ILCS 5/113 \u2014 8 (West 2006)), that his convictions could have \u201cthe consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.\u201d The trial court granted the State\u2019s motion to dismiss the petition, and defendant timely appealed. For the following reasons, we affirm.\nI. BACKGROUND\nOn January 12, 2004, defendant pleaded guilty in case No. 03\u2014 CM \u2014 7379 to misdemeanor domestic battery and was sentenced to one year of probation. On July 26, 2005, defendant pleaded guilty in case No. 05 \u2014 CF\u20141880 to domestic battery and driving while his license was revoked. The domestic-battery charge was enhanced to a felony based on defendant\u2019s prior conviction. See 720 ILCS 5/12 \u2014 3.2(b) (West 2004). Before the trial court accepted defendant\u2019s guilty pleas on July 26, 2005, the following exchange took place:\n\u201cTHE COURT: And is there an issue with regard to immigration?\n[DEFENSE COUNSEL]: Judge, [defendant] is a legal resident. I have discussed with him the fact that no one in this court can promise him what effect this may have on his immigration status.\nTHE COURT: [Defendant], did you go over that issue of your immigration with your attorney?\nTHE DEFENDANT: Yes.\nTHE COURT: And you understand, sir, that no one can make you any promises with regard to your status here based on these charges. Do you understand that?\nTHE DEFENDANT: Yes.\nTHE COURT: And knowing that, sir, do you still wish to plead guilty to these charges?\nTHE DEFENDANT: Yes.\u201d\nThe trial court then sentenced defendant to one year of imprisonment on each count, to be served concurrently.\nIn subsequent removal proceedings, on March 13, 2006, an immigration judge (IJ) found defendant removable from the United States and ineligible for any relief from removal. Defendant appealed to the Board of Immigration Appeals (BIA). On June 9, 2006, the BIA affirmed the IJ. Defendant appealed to the Seventh Circuit Court of Appeals, which has been holding the case in abeyance pending the outcome of this appeal.\nOn February 8, 2007, defendant filed a petition for relief from judgment in case No. 03 \u2014 CM\u20147379, under section 2 \u2014 1401 of the Civil Code. He argued that, when he pleaded guilty to misdemeanor domestic battery, the trial court failed to admonish him that his conviction could have \u201cthe consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States\u201d as required under section 113 \u2014 8 of the Criminal Code. Defendant asked the court to allow him to withdraw his plea and to vacate his conviction.\nAlso on February 8, 2007, defendant filed a petition for relief from judgment in case No. 05 \u2014 CF\u20141880, again under section 2 \u2014 1401 of the Civil Code. He argued that, when he pleaded guilty to domestic battery and driving while his license was revoked, although the trial court told him that \u201cno one can make you any promises with regard to your status here based on these charges,\u201d the trial court did not inform him that his convictions could have \u201cthe consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States\u201d as required under section 113 \u2014 8 of the Criminal Code. Defendant argued that he entered his guilty pleas \u201cunder a misapprehension of the law and therefore his plea was not informed, knowing, and voluntary.\u201d Defendant asked the court to allow him to withdraw his pleas and to vacate his convictions. Defendant attached to his petition the transcript of the plea hearing and the BIA decision. On May 11, 2007, defendant filed an affidavit in which he averred that, at the July 26, 2005, hearing, the court did not inform him of the consequences of his guilty pleas. He also filed an affidavit in which his current counsel averred that she had been advised by defendant\u2019s plea counsel that he \u201chad no independent memory of whether he informed [defendant] that his guilty plea could have the immigration consequences of deportation, exclusion from admission, or denial of naturalization.\u201d\nThe State moved to dismiss both petitions. The State argued that: (1) by pleading guilty, defendant waived any challenge to the court\u2019s failure to admonish him under section 113 \u2014 8 of the Criminal Code; (2) defendant was properly warned of possible immigration consequences; (3) the court substantially complied with section 113 \u2014 8 of the Criminal Code; (4) defendant\u2019s petitions were insufficient to warrant relief because they were supported by affidavits that were conclusory and composed of hearsay; and (5) the court had no duty to warn defendant of the possible immigration consequences of a guilty plea because they are collateral consequences.\nOn August 31, 2007, the trial court granted the State\u2019s motions to dismiss. As to case No. 03 \u2014 CM\u20147379, the trial court found that the petition was untimely because it was filed over three years after sentencing.\nAs to case No. 05 \u2014 CF\u20141880, the trial court found that: (1) at the time of the pleas, the court inquired as to defendant\u2019s immigration status, and defendant specifically stated that he had discussed the immigration issue with his attorney and that he understood that no one could make him any promises as to what effect his pleas might have on his immigration status; (2) the court properly admonished defendant of his rights and substantially complied with Supreme Court Rule 402 (177 Ill. 2d R. 402); (3) defendant\u2019s pleas were knowing and voluntary; (4) defendant\u2019s voluntary pleas waived any nonjurisdictional errors; and (5) deportation was a collateral consequence of the pleas, and the failure to advise of collateral consequences did not render the pleas involuntary. Defendant timely appealed.\nAlthough defendant filed a notice of appeal as to both case No. 03 \u2014 CM\u20147379 and case No. 05 \u2014 CF\u20141880, his brief makes clear that he is challenging the dismissal of his petition only in case No. 05\u2014 CF \u2014 1880. As to that dismissal, defendant argues that: (1) the trial court erred in concluding that it properly admonished defendant, because the substantial-compliance standard applies only to the admonishments required under Rule 402 and not to the advisements required under section 113 \u2014 8 of the Criminal Code; (2) even if the substantial-compliance standard applied, \u201cthe trial court\u2019s vague references at the plea hearing to the \u2018issue of immigration\u2019 and [defendant\u2019s] \u2018status\u2019 failed to substantially comply with [section 113 \u2014 8 of the Criminal Code]\u201d; and (3) the court erred in holding that, by entering a guilty plea, defendant waived his right to file a petition for relief from judgment.\nIn response, the State maintains that: (1) the trial court substantially complied with section 113 \u2014 8 of the Criminal Code and, thus, defendant\u2019s pleas were knowing and voluntary; (2) by pleading guilty, defendant waived any errors arising from the lack of admonishments; and (3) defendant\u2019s petition was insufficient because it was supported by affidavits that were conclusory and composed only of hearsay.\nII. ANALYSIS\nDefendant filed his petition for relief under section 2 \u2014 1401 of the Civil Code. Section 2 \u2014 1401 of the Civil Code is a comprehensive statutory procedure by which final orders and judgments may be challenged more than 30 days after their entry. People v. Vincent, 226 Ill. 2d 1, 7 (2007); People v. Mathis, 357 Ill. App. 3d 45, 49 (2005). It is a civil remedy that also extends to criminal cases. Vincent, 226 Ill. 2d at 8; see Mathis, 357 Ill. App. 3d at 50 (because the defendant was unable to seek relief under the Post-Conviction Hearing Act \u2014 since he was not imprisoned and was not asserting a substantial denial of his constitutional rights \u2014 he could properly raise his claim under section 2 \u2014 1401 of the Civil Code). \u201cRelief under section 2 \u2014 1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that would have precluded entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition.\u201d Vincent, 226 Ill. 2d at 7-8.\nA petition filed under section 2 \u2014 1401 must be filed in the same proceeding in which the order or judgment was entered, but it is not a continuation of the original action. 735 ILCS 5/2 \u2014 1401(b) (West 2006). The petition must be supported by affidavit or other appropriate showing as to matters not of record. 735 ILCS 5/2 \u2014 1401(b) (West 2006). In addition, the petition must be filed not later than two years after the entry of the order or judgment. 735 ILCS 5/2 \u2014 1401(c) (West 2006). Section 2 \u2014 1401 provides for an exception to the time limitation for legal disability or duress, or if the ground for relief is fraudulently concealed. 735 ILCS 5/2 \u2014 1401(c) (West 2006).\nOur supreme court \u201chas consistently held that proceedings under section 2 \u2014 1401 are subject to the usual rules of civil practice.\u201d Vincent, 226 Ill. 2d at 8. The court has noted that \u201c[sjection 2 \u2014 1401 petitions are essentially complaints inviting responsive pleadings.\u201d Vincent, 226 Ill. 2d at 8. As such, \u201c[t]he petition is subject to dismissal for want of legal or factual sufficiency.\u201d Vincent, 226 Ill. 2d at 8. \u201cThus, the petition may be dismissed upon a challenge that, even taking as true its allegations, it does not state a meritorious defense or diligence under section 2 \u2014 1401 case law. \u2018Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a cause of action or if, on its face, it shows that the petitioner is not entitled to relief.\u2019 \u201d Vincent, 226 Ill. 2d at 8, quoting Klein v. La Salle National Bank, 155 Ill. 2d 201, 205 (1993), citing Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279-80 (1982). \u201c[WJhen a court enters either a judgment on the pleadings or a dismissal in a section 2 \u2014 1401 proceeding, that order will be reviewed, on appeal, de novo.\u201d Vincent, 226 Ill. 2d at 18. Thus, here, we review the dismissal de novo.\nIn his petition, defendant contended that, because the trial court failed to properly admonish him under section 113 \u2014 8 of the Criminal Code, he should be allowed to withdraw his guilty pleas. Section 113 \u2014 8 of the Criminal Code provides:\n\u201cAdvisement concerning status as an alien.\nBefore the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:\n\u2018If 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.\u2019 \u201d 725 ILCS 5/113 \u2014 8 (West 2006).\nThe trial court, in dismissing defendant\u2019s petition, did not mention section 113 \u2014 8 of the Criminal Code. Rather, the court ruled that defendant was properly advised under Supreme Court Rule 402 and that defendant was also advised \u201cthat his plea could affect his status in this country.\u201d The court further noted that, \u201c[although deportation may have been the result of the plea, it was a collateral consequence.\u201d The court held that defendant\u2019s pleas were entered knowingly and voluntarily and thus implicitly ruled that its failure to admonish defendant under section 113 \u2014 8 of the Criminal Code did not entitle defendant to withdraw his pleas.\nThe question before us is whether a trial court\u2019s failure to admonish a defendant regarding immigration consequences under section 113 \u2014 8 of the Criminal Code entitles a defendant to withdraw his plea. This presents a question of statutory interpretation. In interpreting a statute, we adhere to the well-settled principles of statutory construction. Our primary objective is to determine and give effect to the intent of the legislature, the best indicator of which is the plain language of the statute. People v. McClure, 218 Ill. 2d 375, 381-82 (2006) . When the language used in the statute is clear and unambiguous, it must be applied as written without resort to other tools of statutory construction. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 255 (2004). However, \u201c[wjhere the meaning of a statute is unclear from a reading of its language, courts may look beyond the statutory language and consider the purpose of the law, the evils it was intended to remedy, and the legislative history of the statute.\u201d Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 181 (2007) .\nThere is a split of authority over whether a trial court\u2019s failure to admonish a defendant regarding immigration consequences under section 113 \u2014 8 of the Criminal Code entitles a defendant to withdraw his plea. See People v. DelVillar, 383 Ill. App. 3d 80 (2008); People v. Bilelegne, 381 Ill. App. 3d 292 (2008). In Bilelegne, the second division of the First District affirmed the trial court\u2019s denial of the defendant\u2019s motion to vacate his guilty plea, holding that section 113 \u2014 8 of the Criminal Code was directory. In reaching this holding, the court first turned to the language of the statute, which it acknowledged is \u201c[t]he best evidence of legislative intent.\u201d Bilelegne, 381 Ill. App. 3d at 295. The court noted that, although the legislature\u2019s use of the word \u201cshall\u201d generally indicates a mandatory reading, it \u201cdoes not control the outcome and is not determinative.\u201d Bilelegne, 381 Ill. App. 3d at 295. Citing People v. Robinson, 217 Ill. 2d 43, 53 (2005), the court further noted that, when the legislature prescribes a consequence for the failure to obey its provision, it is very strong evidence that the legislature intended a mandatory reading. Bilelegne, 381 Ill. App. 3d at 295. Section 113 \u2014 8 does not provide a consequence in the event a trial court fails to admonish a defendant of the immigration consequences of a guilty plea. As a result, the court found that the meaning of the word \u201c \u2018shall\u2019 \u201d was \u201cunclear,\u201d and it turned to the legislative history of section 113 \u2014 8 for further guidance. Bilelegne, 381 Ill. App. 3d at 296.\nThe Bilelegne court pointed out that, \u201c[a]s originally proposed by the Illinois General Assembly, section 113 \u2014 8 provided that, where the deportation admonishment was not given, the court was required to vacate the defendant\u2019s plea of guilty if the defendant demonstrated to the court\u2019s satisfaction that the guilty plea may have immigration consequences.\u201d Bilelegne, 381 Ill. App. 3d at 296. However, this portion of the original bill was deleted. At the third reading of the bill, Senator Silverstein, one of its sponsors, stated: \u201c \u2018We gutted the bill. *** [T]his will just be an advisement by the court.\u2019 \u201d (Emphasis in original.) Bilelegne, 381 Ill. App. 3d at 296, quoting 93d Ill. Gen. Assem., Senate Proceedings, March 19, 2003, at 4 (statements of Senator Silverstein). The court concluded that, based on the elimination of the penalty for noncompliance and the sponsor\u2019s statement that the admonishment was an \u201c \u2018advisement,\u2019 \u201d the legislature did not intend that the giving of the admonishment was mandatory. Bilelegne, 381 Ill. App. 3d at 296.\nOne justice dissented, looking to \u201cthe purpose of the law and the evils it was intended to remedy.\u201d Bilelegne, 381 Ill. App. 3d at 297 (Hall, J., dissenting). The dissent pointed to the remarks of Representative Delgado made prior to the vote in the House of Representatives. Representative Delgado stated that, \u201c \u2018[ujnder current law, Illinois Courts are not required to inform a noncitizen defendant pleading guilty to a misdemeanor or felony that it may affect his or her INS status. An immigrant[\u2019s] INS status can or may be affected in numerous, very complex ways by the entry of a guilty plea to a criminal charge.\u2019 \u201d Bilelegne, 381 Ill. App. 3d at 298 (Hall, J., dissenting), quoting 93d Ill. Gen. Assem., House Proceedings, May 7, 2003, at 72-73 (statements of Representative Delgado). According to the dissent, construing section 113 \u2014 8 of the Criminal Code as directory rather than mandatory defeats the very purpose of the statute.\nA few months later, the issue of whether the admonishment in section 113 \u2014 8 of the Criminal Code was mandatory or directory came before the third division of the First District in DelVillar. In that case, during the plea hearing, the judge asked the defendant if he was a United States citizen, and the defendant responded in the affirmative. DelVillar, 383 Ill. App. 3d at 82. As a result, the trial court did not give the section 113 \u2014 8 admonishment. Contrary to the defendant\u2019s claim, he was not a citizen, and he subsequently filed a motion to withdraw his plea based on the trial court\u2019s failure to admonish him under section 113 \u2014 8. The trial court denied the motion. DelVillar, 383 Ill. App. 3d at 83.\nOn review, the court agreed with the dissent in Bilelegne and concluded that the admonishment was mandatory. The court noted that \u201c[t]he best indication of legislative intent is the statutory language, given its plain and ordinary meaning.\u201d DelVillar, 383 Ill. App. 3d at 84. The court found irrelevant the fact that the defendant had lied to the trial court about his immigration status during the proceedings. The court held:\n\u201cThe plain language of section 113 \u2014 8 of the Code required the trial court to admonish the defendant concerning the potential immigration consequences of a guilty plea. We note that in the many iterations of the language of the bill which ultimately became section 113 \u2014 8, the legislators could have required trial judges to inquire of the defendant regarding immigration status before giving the admonishment. The legislators chose not to do so and enacted a statute which appears clearly mandatory on its face.\u201d DelVillar, 383 Ill. App. 3d at 88-89.\nThe court also noted the legislative history and stated: \u201cThere were many opportunities for the legislature to remove the word \u2018shall\u2019 and they declined to do so. Further, Representative Delgado made it clear that the legislation was being enacted to remedy an existing problem.\u201d DelVillar, 383 Ill. App. 3d at 87.\nWe disagree with DelVillar and conclude that the language in section 113 \u2014 8 is directory, not mandatory. First, according to DelVillar, if the court fails to admonish a defendant, any defendant, who pleads guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, under section 113 \u2014 8 of the Criminal Code, that defendant is entitled to withdraw his plea. See DelVillar, 383 Ill. App. 3d at 87 (\u201cIn looking at the plain language of the statute, there is no requirement that the admonishment is only to be given if the defendant indicates that he or she is not a United States citizen. We believe it is the type of plea which triggers the application of the statute, not the immigration status\u201d (emphasis in original)). Nothing in DelVillar limits its holding to noncitizens of the United States. Taken to its logical conclusion, DelVillar stands for the proposition that section 113 \u2014 8 can be a basis upon which any defendant, regardless of immigration status, can rely to withdraw a plea. We do not believe that the legislature intended such an absurd result. Indeed, even Representative Delgado\u2019s remarks, which reflect a concern with the effect of a plea upon the status of a noncitizen, do not suggest that all citizens be advised that a plea may have consequences for noncitizens.\nSecond, in concluding that the admonishment is mandatory, both the dissenting justice in Bilelegne and the court in DelVillar relied heavily on the legislature\u2019s use of the word \u201cshall.\u201d See Bilelegne, 381 Ill. App. 3d at 297 (Hall, J., dissenting) (\u201c[T]he fact that the legislature did not remove the word \u2018shall\u2019 from the bill prior to its enactment strongly suggests that the legislature intended that courts alert defendants contemplating pleading guilty to give careful consideration to the immigration consequences\u201d); DelVillar, 383 Ill. App. 3d at 87 (emphasizing that the legislature had \u201cmany opportunities *** to remove the word \u2018shall\u2019 and it declined to do so\u201d). However, as the supreme court noted in Robinson, where the issue is whether a statute is mandatory or directory (as opposed to mandatory or permissive), \u201cthe word \u2018shall\u2019 is not determinative.\u201d Robinson, 217 Ill. 2d at 54.\nMoreover, when assessing whether the admonishment is mandatory, we consider whether the legislature included a consequence for a failure to comply with the statutory provision. Robinson, 217 Ill. 2d at 54. If so, it is \u201cvery strong evidence\u201d that the legislature intended a mandatory reading. Robinson, 217 Ill. 2d at 54. Section 113 \u2014 8 does not contain any consequence for a failure to comply. When the bill that ultimately became section 113 \u2014 8 was first introduced, it contained the following additional subsection:\n\u201c(b) Upon the defendant\u2019s request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement described in subsection (a). If the defendant is arraigned on or after the effective date of this amendatory Act of the 93rd General Assembly and the court fails to advise the defendant as required by subsection (a) of this Section and the defendant shows that conviction of the offense to which the defendant pleaded guilty, guilty but mentally ill, or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States, the court, on the defendant\u2019s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty, guilty but mentally ill, or nolo contendere, and enter a plea of not guilty.\u201d 93d Ill. Gen. Assem., Senate Bill 43, 2003 Sess.\nAs noted above, this language was removed from the bill prior to its passage. Again, at the third reading of the bill, following removal of the above language, one of the bill\u2019s sponsors stated: \u201cWe gutted the bill. *** [Tjhis will just be an advisement by the court.\u201d 93d Ill. Gen. Assem., Senate Proceedings, March 19, 2003, at 4 (statements of Senator Silverstein). Certainly, had the legislature intended the statute to be more than \u201cjust an advisement,\u201d the language concerning the consequences of a failure to comply could have easily been left in the statute. See, e.g., Machado v. State, 839 A.2d 509, 513 (R.I. 2003) (defendant was statutorily entitled to withdraw his plea based on the trial court\u2019s failure to admonish defendant of the extent of immigration consequences before accepting the plea where the statute at issue specifically provided that \u201cif the court fails to so inform the defendant *** the defendant shall be entitled, upon a proper petition for post-conviction relief, to have the plea vacated\u201d). Including both the word \u201cshall\u201d and consequences for a failure to comply would have clearly set forth a legislative intent that section 113 \u2014 8 be mandatory. The legislature did not do that; to the contrary, the legislative history, particularly Senator Silverstein\u2019s unequivocal admonishment, clearly shows that the legislature was advised that the language it was voting on was merely advisory.\nFinally, we find relevant the fact that the legislature did not include words of negative limitation in the statute. See People v. Youngbey, 82 Ill. 2d 556, 560 (1980). In Youngbey, the issue before the court was whether criminal sentences, which were imposed in violation of a statutory command that the trial court consider a written presentence report prior to sentencing, should be vacated. The relevant portion of the statute provided: \u201c \u2018A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.\u2019 \u201d (Emphasis omitted.) Youngbey, 82 Ill. 2d at 561, citing Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 3\u20141. In finding the language mandatory, the court noted that the legislature \u201ccoupled\u201d the word \u201cshall\u201d with \u201cthe negative limitations of shall not be sentenced.\u201d (Emphasis in original.) Youngbey, 82 Ill. 2d at 562. Thus, the statute \u201cspecifically prohibited a judge from sentencing one convicted of a felony unless a written presentence investigation report was presented to and considered by the court. We cannot construe this requirement as other than mandatory. The action proscribed by the use of the negative \u2018not\u2019 renders this requirement much more plainly mandatory than if the requirement would simply have read \u2018the court shall consider a presentence report of investigation before sentencing.\u2019 \u201d Youngbey, 82 Ill. 2d at 562. Here, the legislature did not use words of negative limitation. It easily could have drafted the legislation to read: \u201cThe court shall not accept a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, unless the court gives the following advisement to the defendant ***.\u201d See, e.g., Commonwealth v. Hilaire, 437 Mass. 809, 813-16, 777 N.E.2d 804, 807 (2002). In such a case, the reading would be plainly mandatory.\nIn sum, we hold that section 113 \u2014 8 is directory and, thus, that the trial court did not err in dismissing defendant\u2019s petition under section 2 \u2014 1401.\nIII. CONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nZENOFF, P.J., and BOWMAN, J., concur.", "type": "majority", "author": "JUSTICE JORGENSEN" } ], "attorneys": [ "Nissa J. Imbrock, of Mayer Brown LLP, of Chicago, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Stephanie Hoit Lee, of Algonquin, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAIME DE LEON, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 07\u20140926\nOpinion filed January 15, 2009.\nNissa J. Imbrock, of Mayer Brown LLP, of Chicago, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Stephanie Hoit Lee, of Algonquin, for the People." }, "file_name": "1035-01", "first_page_order": 1051, "last_page_order": 1061 }