Second District Illinois Appellate Court Reverses Denial of 1st Stage Post-conviction Petition That Claimed Ineffective Assistance Regarding Immigration Consequences.

This is a must read opinion for all criminal defense lawyers, and for that matter, all Illinois defendants who are not citizens of the United States who are charged with crimes.

In this case, the Defendant was a non-citizen from Beliz who was charged with possession of cocaine after a traffic stop. He plead guilty with a deferred judgment for first offender 410 probation.

While this is not a conviction for the purposes of Illinois state law, it still is a conviction for immigration purposes, and ICE began deportation proceedings. The defendant filed a Post-Conviction Petition alleging ineffective assistance of counsel based on defective advice regarding the immigration consequences of his plea. The trial court denied the defendant’s first stage post-conviction petition and the defendant appealed.

The appellate court, in a lengthy opinion, made it clear that criminal defense counsel has an obligation to read the federal Immigration Act to counsel the client on these consequences. Merely stating that “there may be adverse consequences” is not enough when the truth is that the guilty plea would subject the defendant to deportation under the law, a known consequence for which he would have no defense.

Again, a must read.

The case is People v. Hoare.

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