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THIRD DIVISION

Date Filed: June 28, 2002

No. 1-00-2087

PRESIDING JUSTICE HALL delivered the opinion of the Court:

The defendant, Brahim Bouzidi, appeals from the granting ofthe State's motion to dismiss his petition for postconvictionrelief. We affirm the decision of the circuit court.

On September 3, 1999, the defendant, who was represented bycounsel, filed a petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)). In his petition, the defendant alleged that he had been convictedof domestic battery and of violating an order of protection,based upon his plea of guilty to those charges, for which he hadbeen sentenced to concurrent periods of conditional discharge,subject to several conditions. He further alleged that he wasdenied his constitutional right to the effective assistance ofcounsel because his attorney failed to advise him that a guiltyplea would have an adverse effect on his immigration status.

In his affidavit in support of his petition, the defendantaverred as follows:

Following his arrest for domestic battery, the defendant hadretained attorney Frank Davenport to represent him. Thedefendant specifically informed Mr. Davenport that the defendantwas:

"in the process of applying to the Immigration andNaturalization Service (INS) for his 'green card';

he was born in Morocco;

he arrived in the United States in approximately 1993;

his wife was born in the United States;

his INS 'green card' application was based on his marriage;

it might 'be bad' for his INS application if he lost thecriminal case, but he did not know exactly what effect thecriminal case would have on his immigration status and/orhis pending application for immigration benefits."

Despite this information, Mr. Davenport never questioned thedefendant regarding his immigration status or requested anyimmigration documentation from the defendant. Mr. Davenport didnot give the defendant any advice regarding his immigrationstatus or about the effect a guilty plea would have on hisimmigration status or application for immigration benefits.

After appearing with the defendant on the first court date,Mr. Davenport advised the defendant that his case was beingtransferred to attorney Terry D. Slaw. However, the defendantwas unable to keep his scheduled appointment with Mr. Slaw onJanuary 4, 1999, because of his arrest for violating the order ofprotection.

On January 5, 1999, the defendant's next court date, Mr.Slaw met with the defendant, who was in custody. Mr. Slaw didnot discuss the defendant's immigration status or give thedefendant any immigration advice.⁽¹⁾ On that date, the defendantentered a plea of guilty to domestic battery and to violating theorder of protection, and he was sentenced to conditionaldischarge.

Subsequently, the defendant consulted with an immigrationattorney and was advised that, based on his plea of guilty to thecharges in this case, his application for immigration benefitscould be denied, and he could be deported.

Finally, the defendant averred that he would not havepleaded guilty if he had been advised of the adverse consequencesto his immigration status and application for benefits.

On September 14, 1999, the State filed a motion to transferand dismiss the defendant's postconviction petition. On January6, 2000, after the State amended its motion, the circuit courtdenied the motion to dismiss and set the matter for anevidentiary hearing. On March 22, 2000, the circuit courtordered the State to file a response to the defendant's petition.

On April 7, 2000, the State again moved to dismiss thepetition, alleging that the defendant had failed to allegesufficient grounds for either an evidentiary hearing or forrelief under the Act.

On May 26, 2000, the circuit court heard arguments on boththe State's motion to dismiss and the defendant's postconvictionpetition. The circuit court granted the State's motion todismiss, but noted that it had addressed the merits of thepostconviction petition as well.

The defendant filed a timely notice of appeal.

The sole issue on appeal is whether the trial court erred indismissing the defendant's petition for postconviction relief.

The Act provides a mechanism by which those under criminalsentence in this state can assert that their convictions were theresult of a substantial denial of their rights under the UnitedStates Constitution or the Illinois Constitution or both. Peoplev. Coleman, 183 Ill. 2d 366, 378-79, 701 N.E.2d 1063, 1070-71(1998); 725 ILCS 5/122-1 (West 1998). The Act establishes athree-stage process for adjudicating a petition forpostconviction relief. People v. Smith, 326 Ill. App. 3d 831,839, 761 N.E.2d 306, 315 (2001). At the first stage of theproceedings and where the defendant has been sentenced to a termof imprisonment, the circuit court must determine, within 90 daysof the filing and docketing of the petition and without anyresponsive pleading by the State, whether the petition isfrivolous or is patently without merit. See Coleman, 183 Ill. 2dat 379, 701 N.E.2d at 1071; 725 ILCS 122-2.1(a)(2) (West 1998).

If the petition is not dismissed, it moves to the secondstage where the court must determine whether the petition and anyaccompanying documentation make a substantial showing of aconstitutional violation. Smith, 326 Ill. App. 3d at 856, 761N.E.2d at 327. At the second stage, the State may choose toanswer the petition or move to dismiss it. 725 ILCS 122-5 (West1998). If a substantial showing is made, then the petitionadvances to the third stage, where the circuit court conducts anevidentiary hearing. Smith, 326 Ill. App. 3d at 856, 761 N.E.2dat 327.

The circuit court's January 6, 2000, and March 22, 2000,orders, which set the case for an evidentiary hearing and orderedthe State to file a "response," presumably advanced the case tothe third stage.⁽²⁾ However, instead of filing an answer to thepetition, the State filed another motion to dismiss. While thecircuit court considered that the May 26, 2000, hearing was onboth the State's motion to dismiss and merits of the defendant'spetition, it was clearly not an evidentiary hearing. The partiespresented argument, but no witnesses testified and no evidencewas presented. However, the defendant did not object toproceeding on the State's motion to dismiss and did not arguethat the January 6, 2000, order entitled him to an evidentiaryhearing. See People v. Wren, 223 Ill. App. 3d 722, 729, 585N.E.2d 1216, 1221 (1992) (reviewing court was disinclined to saythat the circuit court erred in dismissing the defendant'spetition without an evidentiary hearing, where the defendantvoluntarily waived the opportunity to have such a hearingconducted).

Therefore, we will apply the rules applicable to the secondstage of a postconviction proceeding.

The standard of review applicable to both the first andsecond stages of a postconviction proceeding is de novo. SeeColeman, 183 Ill. 2d at 388, 701 N.E.2d at 1075 ("Due to theelimination of all factual issues at the dismissal stage of apost-conviction proceeding, the question is, essentially, a legalone, which requires the reviewing court to make its ownindependent assessment of the allegations").

A defendant is not entitled to an evidentiary hearing unlessthe allegations set forth in the petition, as supported by thetrial record or accompanying affidavits, make a substantialshowing of a constitutional violation. People v. West, 187 Ill.2d 418, 425, 719 N.E.2d 664, 670 (1999). In making thatdetermination, all well-pleaded facts in the petition andaffidavits are to be taken as true, but nonfactual andnonspecific assertions which merely amount to conclusions are notsufficient to require a hearing under the Act. West, 187 Ill. 2dat 425-26, 719 N.E.2d at 670. The dismissal of a postconvictionpetition is warranted only when the petition's allegations offact, which are to be liberally construed in favor of thepetitioner and in light of the original trial record, fail tomake a substantial showing of a constitutional violation. West,187 Ill. 2d at 426, 719 N.E.2d at 670.

Ineffective assistance of counsel claims are judged underthe now familiar standard set forth by the United States SupremeCourt in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d674, 104 S. Ct. 2052 (1984). Coleman, 183 Ill. 3d at 397, 701N.E.2d at 1079. To show that he was deprived of effectiveassistance of counsel, a defendant must establish both that hisattorney's performance was deficient and that defendant sufferedprejudice as a result. People v. Huante, 143 Ill. 2d 61, 68, 571N.E.2d 736, 739 (1991); Strickland, 466 U.S. at 687, 80 L. Ed. 2dat 693, 104 S. Ct. at 2064.

The court's first inquiry under Strickland, is whethercounsel's performance was deficient, that is whether it "'fellbelow an objective standard of reasonableness.'" Huante, 143 Ill.2d at 68, 571 N.E.2d at 740 quoting Strickland, 466 U.S. at 688,80 L. Ed. 2d at 693, 104 S. Ct. 2064. In cases involving guiltypleas, the standard for reasonableness "'depends *** not onwhether a court would retrospectively consider counsel's adviceto be right or wrong but whether that advice was within the rangeof competence demanded of attorneys in criminal cases.'" Huante,

143 Ill. 2d at 68-69, 571 N.E.2d at 740 quoting McMann v.Richardson, 397 U.S. 759, 770-71, 25 L. Ed. 2d 763, 773, 90 S.Ct. 1441, 1448-49 (1970); see also People v. Correa, 108 Ill. 2d541, 549, 485 N.E.2d 307, 310 (1991).

In People v. Huante, the defendant alleged that he hadreceived ineffective assistance of counsel because his defensecounsel failed to advise him that his plea of guilty to drugcharges would result in his deportation.⁽³⁾ Following anevidentiary hearing, the circuit court denied his postconvictionpetition, but the appellate court reversed, finding that sincedefense counsel knew or should have known that the defendant wasan alien, the attorney's failure to warn the defendant of thepossible deportation consequences of his convictions constitutedineffective assistance of counsel. Our supreme court reversedthe appellate court and upheld the circuit court's denial ofpostconviction relief to the defendant.

The supreme court determined that a defendant's awareness ofcollateral consequences, such as deportation, was not aprerequisite to the entry of a knowing and voluntary plea ofguilty. Huante, 143 Ill. 2d at 71, 571 N.E.2d at 741. Therefore, defense counsel's failure to advise the defendant ofthe collateral consequences of his guilty plea did not render hisperformance deficient under the first prong of the Stricklandtest, which disposed of the defendant's claim that his pleashould be vacated. Huante, 143 Ill. 2d at 72, 571 N.E.2d at 741;see Coleman, 183 Ill. 2d at 397, 701 N.E.2d at 1079 (both prongsof the Strickland test must be satisfied before a defendant canprevail on a claim of ineffective assistance of counsel).⁽⁴⁾

Finally, the supreme court noted its disapproval of Peoplev. Maranovic, 201 Ill. App. 3d 492, 559 N.E.2d 126 (1990), Peoplev. Miranda, 184 Ill. App. 3d 718, 540 N.E.2d 1008 (1989) andPeople v. Padilla, 151 Ill. App. 3d 297, 502 N.E.2d 1182 (1986)"to the extent that those decisions are inconsistent with ourpresent opinion." Huante, 143 Ill. 2d at 74, 571 N.E.2d at 742.

The defendant contends that the decision in Huante isconfined to its facts. He submits that the decisions inMaranovic, Miranda and Padilla remain good law based on thefactual differences between those cases and Huante. He furthersubmits that the supreme court recognized that fact by notoverruling those cases in their entirety. We disagree.

The decisions in those cases rested on the determinationthat defense counsel's failure to advise a defendant of thecollateral consequences of deportation upon a plea of guilty wasineffective assistance of counsel. See Maranovic, 201 Ill. App.3d at 494, 559 N.E.2d at 127-28 (failure to investigate potentialdeportation consequences constitutes ineffective assistance ofcounsel, if trial counsel had sufficient information to form areasonable belief that defendant was an alien); Miranda, 184 Ill.App. 3d at 727, 540 N.E.2d at 1014 (knowing that the defendantwas an illegal alien, the failure to discuss immigrationconsequences resulted in defense counsel's advice falling outsidethe range of competence demanded of defense attorneys in criminalcases); Padilla, 151 Ill. App. 3d at 303, 502 N.E.2d at 1186(overall trend in State courts favors finding ineffectiveassistance of counsel rendering a guilty plea involuntary wherecounsel knows his client is an alien and does nothing to informhim of possible consequences).

We note that Padilla, which was relied on in both Maranovicand Miranda, itself relied, in part, on the supreme court'sdecision in Correa. In Correa, our supreme court upheld thegranting of postconviction relief to a defendant who had pleadedguilty based upon erroneous and misleading advice of his defensecounsel. Noting that it is counsel's responsibility and not thatof the court to advise a defendant of the collateral consequencesof a plea of guilty, the court stated as follows:

"Our case is not one in which counsel simply failed toadvise the defendant of the collateral consequence ofdeportation. In our case the defendant specifically askedcounsel's advice on the question." Correa, 108 Ill. 2d at550, 485 N.E.2d at 311.

The court in Padilla noted that, while the Correa court didnot address the question of merely passive conduct on the part ofan attorney, the Correa court, nonetheless, cited cases fromother jurisdictions finding such passivity questionable. Padilla, 151 Ill. App. 3d at 301, 502 N.E.2d at 1184-85; seeCorrea, 108 Ill. 2d at 551, 485 N.E.2d at 311.⁽⁵⁾ In addition tothe decision in Correa, the Padilla court cited cases from otherjurisdictions to support its conclusion that the failure of adefense attorney to inform a defendant of the consequences of hisguilty plea, where defense counsel admitted that he knew that thedefendant was an alien and that drug convictions could result indeportation, constituted ineffective assistance of counsel.⁽⁶⁾

In Correa, defense counsel had given erroneous advice to thedefendant. Padilla extended the holding of Correa to cases inwhich defense counsel had failed to give advice as opposed togiving the wrong advice. The holding in Huante overrules theholding in Padilla and its progeny that the failure to volunteeradvice as to a collateral consequence of a guilty pleaconstitutes ineffective assistance of counsel.⁽⁷⁾

While the supreme court distinguished Correa in itsopinion in Huante, the court did not the cite Correa as one ofthe cases it now disapproved of in light of its decision inHuante. The failure of the supreme court to include Correa inits list of disapproved cases is troublesome because it suggeststhat the supreme court intended to draw a distinction between thefailure to give advice and the giving of erroneous advice, as wasthe case in Correa. Yet, under Huante, because deportation is acollateral consequence of a plea of guilty, it should make nodifference whether the advice was correct or not. See People v.Maury, 287 Ill. App. 3d 77, 83, 678 N.E.2d 30, 34 (1997) (thiscourt, citing Huante, held that the correctness of theinformation counsel provided regarding a collateral consequencewas irrelevant to whether the attorney performed reasonably byensuring that his client voluntarily and intelligently enteredhis guilty plea). In any event, since the case before us doesnot concern the giving of erroneous advice, we need not resolvethis particular puzzle.

In the present case, taking the allegations of the petitionand the defendant's affidavit as true, the defendant advised Mr.Davenport, his attorney, that he was an alien and was in theprocess of applying for immigration benefits and that he did notknow what effect a criminal case would have on his immigrationstatus or his application, though he suspected that it might benegative. However, the defendant never asked for, and Mr.Davenport never gave him advice about the effect his plea ofguilty would have on his immigration status. The defendant neverdiscussed his immigration situation with Mr. Slaw, the attorneywho actually appeared with him when he pleaded guilty.⁽⁸⁾ There isno allegation that Mr. Davenport provided erroneous informationto the defendant regarding his immigration situation.

Under the holding in Huante, Mr. Davenport was not requiredto volunteer information concerning the deportation consequencesof a criminal conviction. Further, in this case, unlike Correa,Mr. Davenport did not provide the defendant with any erroneousinformation regarding the effect of his guilty plea on hisimmigration status.

We conclude that the defendant has failed to make asubstantial showing that the conduct of his attorney, Mr.Davenport, in this case fell "'below an objective standard ofreasonableness.'" Huante, 143 Ill. 2d at 71-72, 571 N.E.2d at 741quoting Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S.Ct. at 2064. As the defendant failed to satisfy the first prongof the Strickland test, the circuit court correctly dismissed hispetition for postconviction relief.

The judgment of the circuit court of Cook County isaffirmed.

AFFIRMED

CERDA and SOUTH, JJ., concur.

1. According to the defendant's postconviction petition, inaddition to his own affidavit, the affidavit of attorney Terry D.Slaw was attached to the petition. However, Mr. Slaw's affidavitwas not then listed as an attachment to the postconvictionpetition, and it does not appear in the record on appeal.

2. Although the March 22, 2000, order refers to the Statefiling a "response," the order further provided that thedefendant "shall file a response to the People's Answer, if hechooses to do so."

3. In Huante, it was "undisputed that the defendant and hisattorney did not discuss the defendant's status as a legal alien,and that the attorney did not provide any misleading or incorrectadvice with respect to the immigration consequences of a criminalconviction." Huante, 143 Ill. 2d at 68, 571 N.E.2d at 740.

4. Nonetheless, the court went further and determined that thedefendant had failed to establish the prejudice prong of theStrickand test as well. The court noted the defendant's mere allegation that, had he been advised of the deportationconsequences of his guilty plea he would have gone to trial, was insufficient, in and of itself, to establish prejudice. Thecourt noted the strength of the prosecution's case against thedefendant and that the terms of the plea agreement were such thatthe defendant would have had reason to continue with his pleaagreement, even if he was aware of the deportation consequences. Therefore, the court concluded that the record did not demonstrate a "'reasonable probability' that advising defendantof the deportation consequences of a conviction would have ledhim to reject the terms of the plea agreement." Huante, 143 Ill.2d at 73, 571 N.E.2d at 742.

5. In one of those cases, Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982) was overruled in Commonwealth v.Frometa, 520 Pa. 552, 555 A.2d 92 (1989) (court declined to findthat an attorney who failed to advise a defendant of thedeportation consequences of a guilty plea provided ineffectiveassistance of counsel under Strickland).

6. In Padilla, the defendant testified that his defensecounsel assured him that he would not be deported if he pleadedguilty. Defense counsel denied ever discussing the subject ofdeportation. The circuit court made no comment as to thecredibility of the witnesses. The Padilla court stated that itneed not further address that issue in light of its dispositionof the case. Padilla, 151 Ill. App. 3d at 301, 502 N.E.2d at1185.

7. The defendant also relies on People v. Luna, 211 Ill. App.3d 390, 570 N.E.2d 404 (1991). Although not included in Huante'slist of disapproved cases, Luna relied on Maranovic, Miranda,Padilla and the appellate court decision in Huante (194 Ill. App.3d 159, 550 N.E.2d 1155 (1990), which was reversed by the supremecourt.

8. At the May 26, 2000, hearing on the State's motion todismiss, defendant's postconviction counsel agreed that it wasMr. Davenport's conduct which was at issue and not that of Mr.Slaw.