THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DODDS, Defendant-Appellant.
No. 1-12-2268
Appellate Court of Illinois, First District, Fourth Division
February 27, 2014
2014 IL App (1st) 122268
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Epstein concurred in the judgment and opinion.
Appellate Court
People v. Dodds, 2014 IL App (1st) 122268
Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DODDS, Defendant-Appellant.
District & No. First District, Fourth Division Docket No. 1-12-2268
Filed February 27, 2014
Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.) Defendant‘s guilty plea to one count of possession of child pornography and sentence to 18 months’ probation were vacated and the cause was remanded for further proceedings based on the ineffective assistance of his counsel, who incorrectly advised defendant that he would only have to register as a sex offender for 10 years, since defendant established that he would have gone to trial if he had been properly advised and he alleged in his petition under section 2-1401 of the Code of Civil Procedure that he would have raised the affirmative defense that he did not know the victim was under the age of 18; therefore, his plea was involuntary.
Decision Under Review Appeal from the Circuit Court of Cook County, No. 01-CR-02556; the Hon. Carol A. Kipperman, Judge, presiding.
Judgment Judgment vacated; reversed and remanded with instructions.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Anthony M. O‘Brien, Assistant State‘s Attorneys, of counsel), for the People.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Epstein concurred in the judgment and opinion.
OPINION
¶ 1 This is an appeal from the circuit court‘s order dismissing a petition to vacate judgment filed by the defendant, Paul Dodds, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (
¶ 2 The record before us is sparse and incomplete, revealing only the following facts and procedural history.2 In January 2001, the defendant was arrested and charged with four counts of possession of child pornography under section 11-20.1(a)(1) of the Criminal Code of 1961 (Criminal Code) (
¶ 3 On June 19, 2001, the defendant filed a motion to suppress evidence, arguing that the seizure of his business and residence computers was illegal because it was made under duress. The defendant alleged that on January 2, 2001, at approximately 4 p.m., he received a telephone call from the Westchester police department, informing him that there had been a break-in at his business–Vector Marketing, in Westmont. When the defendant arrived at the scene, he was met with five or six police officers who told him that there had been no break-in and that instead they were there to speak to him about an Internet AOL account registered to his business and allegations made that he was involved in child pornography. According to the defendant‘s motion to suppress, the officers had no search warrant and no exigent circumstances existed that would have justified their search of the premises without one. Instead, according to the motion to suppress, the officers coerced the defendant into signing a consent form to search. The defendant alleged that the officers threatened to tell his fiancée and his employees on the premises about the child pornography accusations if he did not sign the consent form. They told the defendant that if he wanted to “keep this private” he would sign the consent form. They also refused to permit the defendant to telephone his fiancée unless he signed the form. According to the motion to suppress, the defendant signed the form under duress. The motion, therefore, sought the suppression of all evidence obtained
¶ 4 The record before us further reveals that on July 20, 2001, the defendant appeared in court with his counsel, withdrew his motion to suppress and instead entered a negotiated guilty plea. The transcript of the plea hearing, which is before this court as an exhibit to another pleading, reveals that the State and the defendant agreed that the defendant would plead guilty to one count of child pornography in violation of section 11-20.1(a)(1)(i) of the Criminal Code (
“MR. KRUEGER [ASA]: Judge, I spoke to counsel, and he agreed that if the State were to produce evidence, that being witnesses, police officers, state‘s attorneys, and physical evidence in the case, the State would prove this case beyond a reasonable doubt; and it‘s in the court‘s jurisdiction to sentence the defendant.
MR. PIES [Defense counsel]: And I have so stipulated to that, Judge.”
¶ 5 The transcript further establishes that after the plea was entered, the court asked the prosecutor whether as a result of the crime he was pleading guilty to the defendant would be required to register as a sex offender. In response, the ASA stated that the defendant was obligated to register as a sex offender, and that he had to sign the Illinois Sex Offender Registration Act Notification Form (hereinafter, the SORA notification form), in order to acknowledge his duty to register. In response, defense counsel indicated that he had already “gone through this with his client” and that he had explained the SORA notification form to him. According to defense counsel, the defendant had “fully read and understood it.” The SORA notification form is part of the record before us and contains the signatures of both the defendant and the ASA. That form explicitly states that the defendant must register as a sex offender only for “10 years from conviction or release date.” The form nowhere speaks about mandatory registration for life.
“MR. PIES [Defense counsel]: Here‘s a copy for you, your Honor, of the Illinois Sex Offender Registration Act, which, in the middle ‘duties to register,’ [states] you are subject to register for 10 years from the date. And that is the agreement between the State and my client.
THE COURT: Well, that‘s what he‘s required to do. Not for life. You‘re saying that probation is saying he has to register for life? He doesn‘t. It‘s 10 years.
MR. PIES: Right.
THE COURT: That‘s fine. So, that takes care of that.
MR. PIES: Your Honor, I do not know that she‘s going to put in her reports, or this or that. So, if the Court is definitively stating yes, he reports for 10 years as opposed [to] for life, I don‘t want her marking down in her reports that he has to report for life and have it transferred to Du Page, or have them say he has to report for life and then years down the road we come back and God knows this case is so old we can‘t find it.
THE COURT: He has to report as filed by law. The law is a 10 year period. That‘s it.
MR. PIES: There‘s no dispute on that, your Honor. The only reason for this is to clarify the contradictory information given by the probation officer.
THE COURT: What does probation have to say? Do you know why they told him he has to report for life?
MR. CATALANO [probation officer]: No, your Honor. Did you report here?
MR. KRUEGER [ASA]: His probation is going to be transferred in 30 days to Du Page.
MR. CATALANO: The defendant‘s probation officer would be Kathy George, your Honor. I don‘t believe that she‘s here today. I‘m not sure. I just got here myself about 15 minutes ago.
THE COURT: He [the defendant] has to do what he‘s required to do under the law. That‘s it.
MR. CATALANO: Do you want to hold it on call and we can have the [probation] officer here one day next week?
THE COURT: It isn‘t necessary.
MR. PIES: That‘s the whole point. This is unnecessary. I just wanted it on the record that per the State, per you, per our agreement he reports for 10 years. That‘s all. I just wanted it somewhere on the record.
THE COURT: That‘s by operation of law. The probation order itself doesn‘t even say that. It doesn‘t have to. He was found guilty of child pornography. He has to do that by operation of law. And whatever the law says is what he has to do. Probation can‘t modify it.
MR. PIES: I know that, your Honor.
THE COURT: Well, I just put in on the record. That should be sufficient. Okay.”
¶ 7 Ten years after this hearing, in July 2011, the defendant was once again informed by the probation department that his registration obligations had not expired and that he would have to register as a sex offender for life. As a result, on January 12, 2012, with the aid of a new counsel, the defendant filed a petition to vacate his plea, conviction and sentence pursuant to section 2-1401 of the Code (
¶ 8 In his petition, the defendant, nevertheless, asserted that his conviction and sentence should be vacated because: (1) his sentence was void since the trial judge lacked the inherent power to make or enter a sentence that was not authorized by statute; and (2) his plea was involuntary because: (a) he was denied his constitutional right to effective representation when defense counsel misadvised him that if he pleaded guilty he would be required to register as a sex offender for only 10 years; and (b) he was denied the benefit of the plea bargain since his guilty plea was induced by false representations of defense counsel, the State‘s Attorney‘s office and the trial court.
¶ 9 On April 6, 2012, the State filed a motion to dismiss the defendant‘s section 2-1401 petition, arguing that: (1) the defendant failed to comply with the pleading requirements of section 2-1401 (
¶ 10 On June 1, 2012, the defendant filed a response to the State‘s motion to dismiss, explaining that he had exercised due diligence in bringing forth his claims and that he had failed to file his section 2-1401 petition within the statutory two-year limitations period (
¶ 11 In support of his reply, the defendant supplemented his original petition with two affidavits. The first was an affidavit from his newly retained counsel detailing how the defendant promptly retained his services in July 2011, immediately after he had learned that under the SORA (
¶ 12 On July 20, 2012, the trial court heard arguments on the State‘s motion to dismiss the defendant‘s section 2-1401 petition (
II. ANALYSIS
¶ 13 On appeal the defendant makes three contentions. He first argues that his conviction and sentence should be vacated as void, since the trial court lacked the authority to impose a sentence (i.e., the registration requirement) that was not permitted by statute (see
¶ 14 Second, on appeal the defendant asserts that his plea counsel‘s affirmative misadvice as to his sex offender registration duty amounted to ineffective assistance of counsel and rendered his guilty plea involuntary and unknowing. In addition, the defendant contends that he was denied the benefit of his plea agreement because his guilty plea was based upon misrepresentations of both the ASA and the trial court. According to the defendant both the State and the trial court persisted in improperly validating his counsel‘s misadvice, thereby depriving him of due process of law. We address each of the defendant‘s contentions in turn.
¶ 15 We begin by setting forth the well-established principles regarding section 2-1401 petitions. Section 2-1401 of the Code (
¶ 16 “In considering a section 2-1401 petition, the court must determine whether facts exist that were unknown to the court at the time of trial and would have prevented judgment against the defendant.” People v. Welch, 392 Ill. App. 3d 948, 952 (2009). To be entitled to relief under section 2-1401, a defendant must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003); see also Vincent, 226 Ill. 2d at 7-8 (“Relief under section 2-1401 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.“). People v. Mahaffey, 194 Ill. 2d 154, 181 (2000) (“A section 2-1401 petition for relief from a final judgment is the forum in a criminal case in which to correct all errors of fact occurring in the prosecution of a cause, unknown to petitioner and the court at the time judgment was entered, which, if then known, would have prevented its rendition.“). The petition must be supported by affidavit or other appropriate showing as to matters not of record. Vincent, 226 Ill. 2d at 6;
¶ 17 In addition, a section 2-1401 petition must be filed within two years after entry of the judgment being challenged.
¶ 18 We begin by addressing the defendant‘s ineffective assistance of counsel claim. The defendant asserts that his plea was not knowing or voluntary because his counsel misadvised him that the offense to which he was pleading guilty would require him only to register as a sex offender for 10 years.
¶ 19 Although before the circuit court the State originally challenged the defendant‘s ability to raise his ineffective assistance of counsel claim outside of the two-year statutory limitations period articulated in section 2-1401 (
¶ 20 Instead, on appeal, the State argues against the merits of the defendant‘s ineffective assistance of counsel claim. The State contends the defendant has failed in his burden to establish that counsel‘s misadvice as to the 10-year registration requirement prejudiced him so as to render his plea involuntary. For the reasons that follow, we disagree with the State.
¶ 21 It is well established that claims of ineffective assistance of counsel are resolved under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Lacy, 407 Ill. App. 3d 442, 456 (2011); see also People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland)). Under the two-prong test set forth in Strickland, a defendant must establish both: (1) that his attorney‘s actions fell below an objective standard of reasonableness; and (2) that the defendant was prejudiced by counsel‘s conduct. See Lacy, 407 Ill. App. 3d at 456; see also People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
¶ 23 In the present case, the defendant argues, and the State concedes, that plea counsel‘s misrepresentation to the defendant that under the SORA (
¶ 24 In that respect, we begin by noting that in Presley, 2012 IL App (2d) 100617, the Second District was faced with the same issue we are asked to address here, and strongly suggested that plea counsel performs deficiently whenever he or she affirmatively misleads a client as to the lifetime SORA registration requirements. Presley, 2012 IL App (2d) 100617, ¶ 29. In that case, the defendant was charged with two counts of aggravated criminal sexual abuse. Presley, 2012 IL App (2d) 100617, ¶ 3. The defendant pleaded guilty to one count of aggravated criminal sexual abuse. Presley, 2012 IL App (2d) 100617, ¶ 4. During the plea hearing the defendant was not apprised that by pleading guilty to the aforementioned crime he would be subject to lifetime registration as a sex offender under the SORA (
¶ 25 On appeal, in Presley, the Second District held that where a defendant is affirmatively misled by his counsel with respect to the collateral consequences of his sentence, such as sex offender registration, counsel is deficient for purposes of a Strickland analysis. Presley, 2012 IL App (2d) 100617, ¶ 29. The court declined to determine, however, whether counsel‘s
¶ 26 In coming to this conclusion, the court in Presley first noted that prior to Padilla our courts consistently held that for a plea to be deemed voluntary and intelligent, the defendant had to be “fully aware of the direct consequences of entering the plea,” but not also the collateral consequences. (Internal quotation marks omitted.) Presley, 2012 IL App (2d) 100617, ¶ 27. The court explained:
“Direct consequences of a plea are those consequences affecting the defendant‘s sentence and other punishment that the trial court may impose. [Citation.] On the other hand, a defendant‘s knowledge–or lack thereof–of the collateral consequences of a plea has no bearing on the validity of the plea. [Citation.] Collateral consequences are effects upon the defendant that the trial court has no authority to impose; they result from an action that might or might not be taken by an agency that the trial court does not control. [Citation.]” Presley, 2012 IL App (2d) 100617, ¶ 27.
Accordingly, in Presley, the Second District explained that prior to Padilla, in measuring the reasonableness of an attorney‘s performance under Strickland, Illinois courts emphasized the distinction between advising defendants of the direct consequence of a guilty plea and advising them of consequences that arise collaterally form the plea. Presley, 2012 IL App (2d) 100617, ¶ 28. Under these principles, lifetime registration for sex offenders under the SORA (
¶ 27 However, in Presley the Second District noted that even prior to Padilla, our courts drew a distinction between an attorney‘s failure to advise regarding collateral consequences and an attorney‘s affirmative misadvice about such consequences. Presley, 2012 IL App (2d) 100617, ¶ 29 (citing People v. Correa, 108 Ill. 2d 541, 553 (1985) (holding that an attorney‘s erroneous and misleading advice to the defendant on the collateral consequences of deportation invalidated the defendant‘s guilty plea), and People v. Young, 355 Ill. App. 3d 317, 323 (2005) (noting the distinction between the passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea and unequivocal, erroneous, misleading representations that counsel makes in response to the defendant‘s specific inquiries)). The court in Presley, however, held that in that case, the defendant had failed to establish that counsel had explicitly misadvised him regarding his SORA obligations. Presley, 2012 IL App (2d) 100617, ¶ 30.
¶ 28 The Presley court next explained that Padilla recently changed the rules with respect to counsel‘s duty to advise of collateral consequences. As Presley explained:
“[T]he Supreme Court recently held in Padilla that counsel must inform his or her client whether a plea carries a risk of deportation. [Citation.] Noting that deportation was often considered by lower courts to be a collateral consequence, the Court declined to apply a distinction between direct and collateral consequences in light of the unique nature of deportation. [Citation.] Equally important, the Court refused to
find that Strickland applied only to affirmative misadvise about whether the defendant‘s conviction would result in deportation. [Citation.] According to the Court, there was no relevant difference between an act of commission and an act of omission in this context.” Presley, 2012 IL App (2d) 100617, ¶ 31.
Although the Second District in Presley declined to decide that Padilla applied to all collateral consequences, including sex offender registration, it held that if Padilla did apply to SORA requirements, counsel would have been deficient regardless of whether he affirmatively mislead the defendant or failed to inform him of his SORA obligations. Presley, 2012 IL App (2d) 100617, ¶¶ 31-34.
¶ 29 Subsequent to Presley, our supreme court decided Hughes, 2012 IL 112817, affirmatively adopting the rationale in Padilla and applying it to a counsel‘s duty to advise a defendant of the possibility of involuntary commitment pursuant to the Illinois Sexually Violent Persons Commitment Act (SVPCA) (
¶ 30 Our supreme court disagreed and held that under Padilla, a counsel‘s failure to advise the defendant of the collateral consequence, i.e., the possibility that his plea would be used as a basis for the filing of a sexually violent person petition, rose to the level of ineffective performance of counsel. Hughes, 2012 IL 112817, ¶¶ 43-62.6
¶ 31 In coming to this conclusion, our supreme court first noted that prior to Padilla, most federal and state courts, including Illinois, held that the failure to advise a client of potential collateral consequences fell outside the gambit of the sixth amendment. Hughes, 2012 IL 112817, ¶ 45.
¶ 32 The court nevertheless recognized that courts across the country, as well as legal scholars, have recently emphasized: (1) the growing number of cases that are resolved by the plea process; (2) defense counsel‘s related and important duties in that process; and (3) the “potential problems inherent in a rigid categorical system of distinguishing between direct and collateral consequence” in the sixth amendment context. Hughes, 2012 IL 112817, ¶¶ 45-47 (explaining that in reality 94% of state convictions are resolved with a guilty plea
¶ 33 Our supreme court next examined Padilla. Hughes, 2012 IL 112817, ¶ 49. The court held that because of the “unique nature of deportation,” Padilla did not have to explicitly decide whether the distinction between collateral and direct consequences remains appropriate in the context of constitutionally effective representation under Strickland. Hughes, 2012 IL 112817, ¶ 49. Rather, according to our supreme court, Padilla held that “even though deportation is a civil consequence of a guilty plea, it should not be categorically eliminated from defense counsel‘s duties because it is a ‘particularly severe “penalty,“’ ‘intimately related to the criminal process,’ and ‘nearly an automatic result’ due to recent changes in immigration law, which have ‘enmeshed’ the conviction with the penalty of deportation.” Hughes, 2012 IL 112817, ¶ 49 (quoting Padilla, 559 U.S. at 365). Adopting the rationale of Padilla, our supreme court in Hughes held that “where the [allegedly collateral] consequence [of a sentence] is severe, certain, and sufficiently enmeshed in the criminal process the sixth amendment right to counsel may give rise to a basis for withdrawing [a guilty] plea.” Hughes, 2012 IL 112817, ¶ 59.
¶ 34 The court further held that under the particular circumstances of that case, the potential for involuntary commitment under the SVPCA constituted such consequences thereby obligating defense counsel at a minimum “to advise a defendant who pleads guilty to a triggering offense subject to the provision of the [SVPCA] that he will be evaluated for and may risk involuntary commitment after completing his prison term.” Hughes, 2012 IL 112817, ¶ 60. According to our supreme court, failure to advise of such consequences constitutes deficient performance. Hughes, 2012 IL 112817, ¶ 60.
¶ 35 Applying the principles articulated in Hughes and Presley to the cause at bar, we find that registration under the SORA (
¶ 36 In the present case, as the State itself concedes, far from failing to advise the defendant of his lifetime registration duty, defense counsel repeatedly told the defendant that his registration requirement would expire after 10 years. Accordingly, we find that the defendant has sufficiently met his burden in establishing the first prong of Strickland. Presley, 2012 IL App (2d) 100617, ¶ 29 (discussing counsel‘s affirmative misadvice regarding registration under the SORA); Young, 355 Ill. App. 3d 317, 323 (2005) (discussing counsel‘s affirmative misadvice regarding collateral consequences); see also Hughes, 2012 IL 112817, ¶ 60 (holding that defense counsel has a duty to advise a defendant who pleads guilty regarding collateral consequences of involuntary commitment as a sexually violent person, and that failure to do so may constitute ineffective assistance of counsel); accord People v. Guzman, 2014 IL App (3d) 090464 (holding that trial counsel‘s failure to advise his client of the “collateral risk” of deportation associated with his guilty plea was sufficient to establish the first prong of Strickland).
¶ 37 The State nevertheless asserts that even if the defendant has met the first prong of Strickland, he has failed in his burden to establish the second, prejudice, prong. For the reasons that follow, we disagree.
¶ 38 It is undisputed that to establish the prejudice prong of an ineffective assistance of counsel claim in a plea hearing context, a defendant must show that there is a reasonable probability that, absent counsel‘s errors, he would have pleaded not guilty and insisted on going to trial. People v. Hall, 217 Ill. 2d 324, 335 (2005) (citing People v. Rissley, 206 Ill. 2d 403, 457 (2003)); Hill v. Lockhart, 474 U.S. 52, 59 (1985).
¶ 40 The defendant acknowledges the holding in Hall, but nevertheless contends that in imposing the aforementioned requirement, the Illinois Supreme Court improperly relied on an overly broad reading of the United States Supreme Court‘s decision in Hill v. Lockhart, 474 U.S. 52, 59 (1985). See Hall, 217 Ill. 2d at 335-36. According to the defendant, Hill, upon which Hall relied, merely held that in order to establish prejudice in the plea context, a defendant had to show that counsel‘s constitutionally ineffective performance “affected the outcome of the plea process,” i.e., that there is “a reasonable probability that, but for counsel‘s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. The defendant contends that in Hill, the Court went on to note that, when trial counsel errs by failing to discover exculpatory evidence or by failing to inform the defendant of a possible affirmative defense, the determination of whether such errors prejudiced the defendant by inducing him to plead guilty “will depend in large part” on whether the presentation of the evidence or the assertion of the defense likely would have changed the outcome of a trial. Hill, 474 U.S. at 59. However, according to the defendant, Hill nowhere held that the same considerations should govern the analysis where the alleged error was counsel‘s failure to advise the defendant of the potential collateral consequence of his plea. Consequently, the defendant argues that Hall should not control this case and that, instead, we should find that, apart from the defendant‘s assertion in his affidavit that he would have proceeded to trial had he been informed that his SORA registration duty would extend to life, no separate showing of prejudice is necessary.
¶ 41 Very recently, the Third District of this appellate court decided People v. Guzman, 2014 IL App (3d) 090464, agreeing with the defendant‘s interpretation of Hill as it applies to the Strickland prejudice prong. In that case, the defendant contended, inter alia, that his counsel was ineffective for failing to advise him that he risked deportation by pleading guilty. Guzman, 2014 IL App (3d) 090464, ¶ 32. In discussing the prejudice prong of Strickland, the plurality court in Guzman bypassed Hall and without citing to it, explained:
“To establish the second prong, prejudice, defendant must demonstrated that but for his counsel‘s error, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 62; see generally Strickland, 466 U.S. at 694. Our review requires a fact specific analysis that considers the weight of the evidence, the consequences of legal options, and any circumstances that may affect a decision to enter a plea. [Citation.] To obtain relief on such an ineffective assistance claim, a defendant must show that ‘a decision to reject the plea bargain would have been rational under the circumstances.’ [Citation.]” Guzman, 2014 IL App (3d) 090464, ¶ 33.
“Such a holding would make no sense. Unlike the failure to discover exculpatory evidence or to inform the defendant about an affirmative defense, the failure to advise a defendant regarding immigration consequences has nothing to do with the strength of the defendant‘s case at trial. A defendant alleging the latter type of error is not claiming that he pled guilty because his counsel‘s deficient representation caused him to believe that his case was weaker than it actually was. Rather, he is claiming that he pled guilty because he was unaware of the immigration consequences of such a plea. Thus, such a defendant is not required to show that he would have succeeded at trial in order to establish prejudice. As the United States Supreme Court recently noted in Padilla, the only question relevant to the prejudice inquiry in such cases is whether it would have been rational for the defendant to reject the plea offer and go to trial in an effort to avoid potential deportation. [Citation.]” Guzman, 2014 IL App (3d) 090464, ¶ 52 n.7 (Holdridge, J., specially concurring).
According to Justice Holdridge:
“[T]he United States Supreme Court recognized in Padilla [that] ‘[p]reserving the client‘s right to remain in the United States may be more important to the client than any potential jail sentence.’ (Internal quotation marks omitted.) [Citation.] Accordingly, a defendant who fears deportation more than he fears a longer prison sentence might rationally choose to go to trial even if his defense does not appear very likely to succeed. [Citation.] Such a defendant might be willing to risk a lengthier prison sentence in exchange for even a slight chance of prevailing at trial and thereby avoiding deportation. Such a defendant would be prejudiced by his attorney‘s failure to advise him of the risk of deportation because: (1) he would not have pled guilty if he had known about the deportation risk; and (2) his counsel‘s deficient performance deprived him of a chance to avoid deportation by prevailing at trial, even if that chance was slim. In other words, depending on the value that the defendant attaches to remaining in the United States, a decision to reject a plea bargain and risk a lengthier sentence by going to trial might be rational even if the defendant appears unlikely to prevail at trial. [Citation.] Under such circumstances, it would be inappropriate and overly burdensome to require the defendant to assert either a claim of actual innocence or a plausible defense that could have been raised at trial.” Guzman, 2014 IL App (3d) 090464, ¶ 52 (Holdridge, J., specially concurring).
¶ 43 Although we are persuaded by Justice Holdridge‘s rationale, and believe that it would equally apply to a defendant faced with the prospect of lifetime registration as a sex offender pursuant to the SORA, we are bound by the dictates of our supreme court. See, e.g., People v. Martinez, 2011 IL App (2d) 100498, ¶ 45 (“we must follow the decisions of our supreme court over those of the appellate court“); Nelson v. Aurora Equipment Co., 391 Ill. App. 3d
¶ 44 Nevertheless, for the reasons that follow, we hold even under the State‘s interpretation of the Strickland prejudice prong (see Hall, 217 Ill. 2d at 335-36; Hughes, 2012 IL 112817, ¶ 64), the defendant has succeeded in establishing that but for counsel‘s errors he would have proceeded to trial. Contrary to the State‘s assertion, the defendant, here, did not make “a bare allegation” that had he been aware of the lifetime SORA registration duty he would have opted to go to trial. Instead, in his section 2-1401 petition (
¶ 45 Since counsel was ineffective in advising the defendant of the registration consequences of his guilty plea, we find that the plea was involuntarily entered and must now be vacated. Guzman, 2014 IL App (3d) 090464, ¶ 30 (for a defendant‘s decision to accept or reject a guilty plea to be “knowing and voluntary, a criminal defense attorney is required to fully inform the defendant of the facts and law related to the State‘s offer and must candidly advise the defendant concerning all aspects of the case“); Presley, 2012 IL App (2d) 100617, ¶ 27; see also Correa, 108 Ill. 2d at 549 (“It is *** apparent that the resolution of the question of whether the defendant‘s pleas, made in reliance on counsel‘s advice, were voluntary and intelligent and knowingly made depends on whether the defendant had ineffective assistance of counsel. If the defendant‘s pleas were made in reasonable reliance upon the advice or representation of his attorney, which advice or representation demonstrated incompetence, then it can be said that the defendant‘s pleas were not voluntary ***.“). We therefore vacate the defendant‘s plea and sentence and remand the case to the trial court for further proceedings.
III. CONCLUSION
¶ 46 For all of the reasons stated above, we vacate the defendant‘s plea, conviction and sentence and remand to the circuit court for further proceedings before a different trial judge. In doing so, however, we remind the parties that they were unable to obtain the record from
¶ 47 Judgment vacated; reversed and remanded with instructions.
JUSTICE FITZGERALD SMITH
APPELLATE COURT JUSTICE