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110 Court's Requirement to Admonish on Immigration Consequences is Directory
People v. Guzman, 2015 IL 118749 (November 2015). Episode 110 (Duration: 5:58)
Failure of court to admonish defendant of immigration consequences does not necessarily lead to reversal.
Defendant was a lawful permanent resident and plead guilty to a gun charge without the court first admonishing him pursuant to 725 ILCS 5/113-8. Defendant's motion to withdraw his guilty plea was denied.
Padilla does not change the fact that in Illinois the required court admonishments are merel directory and not mandatory. See Episode 077 (DUI Discovery Violation Suppression of Evidence) and Episode 055 (Speeding Ticket Dismissed).
Thus, when inadequate admonishments are given, the question of whether due process was violated turns on whether the plea was made voluntarily and intelligently.
In that analysis only the direct consequences of the plea, not the collateral consequences matter. “Direct consequences” are “those consequences affecting the defendant’s sentence and other punishment that the circuit court may impose,” and “[c]ollateral consequences” are those “effects upon the defendant that the circuit court has no authority to impose.”
Padilla deals with claims of ineffective assistance of counsel in a situation where deportation was certain. Nonetheless, defendants who did not receive section 113-8 admonishments may also have been entitled to withdraw their pleas if they establish that they have been denied “real justice” or have suffered prejudice.
See also other immigration case this month (People v. Unzueta) and previous immigration admonishment cases.
Previous Immigration Admonishment Cases:
- People v. Guzman, 2014 IL App (3d) 090464 (December 2014) (defendant was prejudiced by counsel’s failure to inform him of clear immigration consequences)
- People v. Guzman-Ruiz, 2014 IL App (3d) 120150 (March 2014) (defense counsel said deportation was unlikely, the was erroneous and prejudiced the defendant)
- People v. La Pointe, 2015 IL App (2d) 130451 (March 2015) (Padilla does not apply retroactively so no ineffectiveness here even though defendant says they never told him he could get a life sentence)
- People v. Valdez, 2015 IL App (3d) 120892 (May 2015) (counsel’s failure to advise client of immigration consequences was not cured by the judge’s admonishments)
- People v. Carranza-Lamas, 2015 IL App (2d) 140862 (August 2015) (trial counsel not ineffective for telling his client he needed to consult an immigration attorney to determine how it would affect his immigration case)
- People v. Cowart, 2015 IL App (1st) 131073 (February 2015) (courts continue to go different ways with the issue of admonishing a defendant on sex registration at the time of a plea)
- People v. Lopez, 2015 IL App (1st) 142260 (September 2015) (trial counsel failed to advise defendant of the potential effect of his plea on his status in this country)
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By Samuel Partida, Jr.
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People v. Guzman, 2015 IL 118749 (November 2015). Episode 110 (Duration: 5:58)
Failure of court to admonish defendant of immigration consequences does not necessarily lead to reversal.
Defendant was a lawful permanent resident and plead guilty to a gun charge without the court first admonishing him pursuant to 725 ILCS 5/113-8. Defendant's motion to withdraw his guilty plea was denied.
Padilla does not change the fact that in Illinois the required court admonishments are merel directory and not mandatory. See Episode 077 (DUI Discovery Violation Suppression of Evidence) and Episode 055 (Speeding Ticket Dismissed).
Thus, when inadequate admonishments are given, the question of whether due process was violated turns on whether the plea was made voluntarily and intelligently.
In that analysis only the direct consequences of the plea, not the collateral consequences matter. “Direct consequences” are “those consequences affecting the defendant’s sentence and other punishment that the circuit court may impose,” and “[c]ollateral consequences” are those “effects upon the defendant that the circuit court has no authority to impose.”
Padilla deals with claims of ineffective assistance of counsel in a situation where deportation was certain. Nonetheless, defendants who did not receive section 113-8 admonishments may also have been entitled to withdraw their pleas if they establish that they have been denied “real justice” or have suffered prejudice.
See also other immigration case this month (People v. Unzueta) and previous immigration admonishment cases.
Previous Immigration Admonishment Cases:
- People v. Guzman, 2014 IL App (3d) 090464 (December 2014) (defendant was prejudiced by counsel’s failure to inform him of clear immigration consequences)
- People v. Guzman-Ruiz, 2014 IL App (3d) 120150 (March 2014) (defense counsel said deportation was unlikely, the was erroneous and prejudiced the defendant)
- People v. La Pointe, 2015 IL App (2d) 130451 (March 2015) (Padilla does not apply retroactively so no ineffectiveness here even though defendant says they never told him he could get a life sentence)
- People v. Valdez, 2015 IL App (3d) 120892 (May 2015) (counsel’s failure to advise client of immigration consequences was not cured by the judge’s admonishments)
- People v. Carranza-Lamas, 2015 IL App (2d) 140862 (August 2015) (trial counsel not ineffective for telling his client he needed to consult an immigration attorney to determine how it would affect his immigration case)
- People v. Cowart, 2015 IL App (1st) 131073 (February 2015) (courts continue to go different ways with the issue of admonishing a defendant on sex registration at the time of a plea)
- People v. Lopez, 2015 IL App (1st) 142260 (September 2015) (trial counsel failed to advise defendant of the potential effect of his plea on his status in this country)