FIRST DIVISION MAY 12, 2014 1-11-2582

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 7223 ) FRANCHINO GRECO, ) Honorable ) Domencia A. Stephenson, Defendant-Appellant. ) Judge Presiding. JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.

OPINION

¶1 On March 30, 2005, defendant Franchino Greco (Greco) pleaded guilty to criminal drug

conspiracy (720 ILCS 570/405.1(a) (West 2004)) predicated on the delivery of 15 to 100 grams

of cocaine. On April 19, 2005, the circuit court of Cook County sentenced Greco to seven years'

imprisonment. On July 24, 2008, Greco filed a petition to withdraw his guilty plea and vacate

the judgment against him pursuant to section 122-1 of the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 (West 2008)) and section 2-1401 of the Code of Civil Procedure (Code) (735

ILCS 5/2-1401 (West 2008)). On August 27, 2008, the trial court summarily dismissed Greco's

postconviction petition. On appeal, this court reversed the trial court's summary dismissal of

Greco's petition, and remanded the petition for second-stage proceedings. People v. Greco, No.

1-08-2457 (Sept. 21, 2010) (unpublished order pursuant to Supreme Court Rule 23). On remand,

the State filed a motion to dismiss Greco's postconviction petition. On August 18, 2011, the trial

court granted the State's motion to dismiss Greco's postconviction petition. Greco now appeals 1-11-2582

the trial court's judgment which dismissed his postconviction petition at the second stage of

proceedings.

¶2 On appeal, Greco argues that: (1) the trial court erred in dismissing his postconviction

petition because he has made a substantial showing that defense counsel was ineffective for

failing to advise him that his guilty plea to criminal drug conspiracy would make him eligible for

deportation; (2) the trial court erred in dismissing his postconviction petition because he has

made a substantial showing that his guilty plea was not knowing and intelligent due to the court's

failure to admonish him that his guilty plea carried possible immigration consequences; and (3)

his guilty plea is void and must be vacated because his sentence of seven years' imprisonment

was less than the statutorily mandated minimum sentence of nine years' imprisonment. For the

following reasons, we affirm the judgment of the circuit court of Cook County.

¶3 BACKGROUND

¶4 In 2001, Greco, along with 11 other codefendants, was charged by indictment with one

count of criminal drug conspiracy. The criminal drug conspiracy count was predicated on

several offenses of delivery of a controlled substance, including: delivery of 1 to 15 grams of

cocaine; delivery of 15 to 100 grams of cocaine; and delivery of 100 to 400 grams of cocaine.

Greco was also separately charged with two counts of delivery of a controlled substance for

delivery of 1 to 15 grams of cocaine, and delivery of 100 to 400 grams of cocaine. On March 30,

2005 the circuit court of Cook County held a conference with the parties pursuant to Illinois

Supreme Court Rule 402 (eff. July 1, 1997). After the conference, defense counsel indicated that

Greco was pleading guilty to "an amended count 1" for criminal drug conspiracy. The trial court

admonished Greco that he was pleading guilty to criminal drug conspiracy along with his co-

conspirators predicated on delivery of a controlled substance of 15 to 100 grams. The trial court

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admonished Greco that his offense of criminal drug conspiracy was punishable by 6 to 30 years'

imprisonment and that if Greco pleaded guilty the court would sentence him to 7 years'

imprisonment. Greco stated that he understood the plea deal, the nature of the offense with

which he was being charged, the possible penalties for that offense, and that he was forfeiting his

right to trial.

¶5 The factual basis for Greco's guilty plea was the State's proffer regarding the admission

of co-conspirator statements, which was signed by Greco. The following facts were established

by the document containing the co-conspirator statements. Between February 7, 2000, and

March 7, 2001, Greco conspired with 11 co-conspirators to distribute cocaine. The co-

conspirator statements described several drug transactions and deliveries that involved Greco.

Many of the transactions involved unspecified amounts of cocaine. However, in one transaction,

Greco approached the vehicle of one of his co-conspirators, Robert Horwitz (Horwitz), with a

green object in his jacket pocket. Greco entered Horwitz's vehicle and the two men had a short

conversation. Horwitz then placed a clear plastic bag on the dashboard of the vehicle and he and

Greco continued to converse. Greco then exited Horwitz's vehicle, went back to his own vehicle,

and both men drove away. Shortly thereafter, Horwitz was stopped by the police, and the police

discovered 7.6 grams of suspect cocaine in his possession. In another transaction, one of Greco's

co-conspirators, Adam Koltun (Koltun), met Greco at a café. Koltun exited the café and

approached Greco's vehicle while Greco remained in the café. Koltun opened the passenger side

of Greco's vehicle and removed a brown paper bag from the passenger seat. Koltun then walked

over to his own vehicle, put the paper bag in the trunk, and then went back inside the café.

Shortly thereafter, Koltun exited the café, entered his vehicle and drove away. Koltun was

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stopped by the police and the police recovered 123.5 grams of cocaine from the paper bag in

Koltun's trunk.

¶6 On April 19, 2005, the trial court sentenced Greco to seven years' imprisonment for

criminal drug conspiracy pursuant to the guilty plea. The trial court merged Greco's two

remaining indictment counts for delivery of a controlled substance. Greco did not attempt to

withdraw or in any way challenge his guilty plea within the statutorily required time.

¶7 On July 24, 2008, Greco filed a hybrid postconviction petition pursuant to section 122-1

of the Act and petition for relief from judgment pursuant to section 2-1401 of the Code. Greco

acknowledged that the three-year limitation to file his postconviction petition under section 122-

1 of the Act had expired on April 19, 2008, and that his petition was filed after the deadline.

However, he argued that his late filing was not due to his culpable negligence. Greco was

sentenced on April 19, 2005 and was released from the Illinois Department of Corrections

(IDOC) on April 17, 2008. Greco alleged that one week before he was released from the IDOC

on April 17, 2008, he was informed that the Department of Homeland Security was going to

place him in its custody upon his release. He stated that immediately upon learning about his

citizenship issues, he informed his family and asked them to find an attorney to assist him.

¶8 In his petition, Greco argued that defense counsel was ineffective for failing to advise

him of the potential immigration consequences of his guilty plea. Greco stated that if he had

known that his guilty plea would result in deportation, he would not have pleaded guilty. In

support of his argument, Greco attached to his petition an affidavit executed by defense counsel

which stated that counsel did not advise Greco of the potential immigration consequences of his

guilty plea; and an affidavit executed by Greco which stated that he would not have pleaded

guilty if he had known of the immigration consequences of his guilty plea. Greco also argued

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that the trial court violated section 113-8 of the Code of Criminal Procedure of 1963 (725 ILCS

5/113-8 (West 2004)), because when the court accepted his plea, the court failed to admonish

him of the immigration consequences; and that the trial court violated the United States and

Illinois Constitutions by failing to admonish him of the potential immigration consequences of

his guilty plea.

¶9 Additionally, Greco stated that at the time his petition was filed he was 59 years old and

had lived in the United States since 1962. He was a permanent resident of the United States but

was deportable due to his criminal conviction. Greco had been married for over 30 years and

had three children and four grandchildren. Upon his release, he intended to return to his home,

where his wife and mother also resided. Further, Greco stated that he suffers from serious and

life-threatening medical conditions, including cardiovascular disease and a cervical injury. He

attached to his petition an affidavit from a doctor supporting his statements and detailing his

medical condition.

¶ 10 On August 27, 2008, the trial court summarily dismissed Greco's postconviction petition

at the first stage of proceedings. On appeal, this court reversed the trial court's judgment and

remanded the matter for second-stage proceedings. On remand, on April 11, 2011, the State

filed a motion to dismiss Greco's postconviction petition. On June 23, 2011, the trial court heard

oral arguments on the State's motion to dismiss. On August 18, 2011, the trial court entered an

order which dismissed Greco's petition at the second stage of proceedings. Initially, the trial

court found that although Greco's petition was untimely, the untimeliness was not due to Greco's

culpable negligence and thus the court considered the arguments in his petition. The trial court

next found that Greco failed to establish that defense counsel was ineffective for failing to advise

him of the immigration consequences of his guilty plea. The court reasoned that regardless of

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whether counsel's performance was unreasonable, Greco was not able to show that he was

prejudiced by counsel's performance. The court stated that even though Greco claimed that he

would not have pleaded guilty, Greco did not show that he would have insisted on going to trial

or that he would have likely succeeded at trial. Also, the trial court rejected Greco's argument

that the court's failure to admonish him of the immigration consequences of his guilty plea

violated Greco's due process and equal protection rights. The court reasoned that Illinois courts

have held that arguments such as Greco's do not amount to a constitutional violation because

deportation is merely a collateral consequence and is not cognizable under the Act. Finally, the

court found that Greco's arguments were not proper for a section 2-1401 motion. Thus, the trial

court dismissed Greco's petition at the second stage of proceedings.

¶ 11 Also on August 18, 2011, Greco filed a timely notice of appeal. Therefore, this court has

jurisdiction to consider Greco's arguments on appeal pursuant to Illinois Supreme Court Rules

651 (eff. Feb. 6, 2013) and 606 (eff. Feb. 6, 2013).

¶ 12 ANALYSIS

¶ 13 On appeal, we determine the following issues: (1) whether the trial court erred in

dismissing Greco's postconviction petition because he has made a substantial showing that

defense counsel was ineffective for failing to advise him that his guilty plea would make him

eligible for deportation; (2) whether the trial court erred in dismissing Greco's postconviction

petition because he has made a substantial showing that his guilty plea was not knowing and

intelligent due to the court's failure to admonish him of possible immigration consequences; and

(3) whether Greco's guilty plea is void and must be vacated because his sentence of seven years'

imprisonment was less than the statutorily mandated minimum sentence of nine years'

imprisonment.

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¶ 14 We first determine whether the trial court erred in dismissing Greco's postconviction

petition because he has made a substantial showing that defense counsel was ineffective for

failing to advise him that his guilty plea would make him eligible for deportation.

¶ 15 Greco argues that he has made a substantial showing that defense counsel was ineffective

for failing to advise him that his guilty plea would make him eligible for deportation based on

the United States Supreme Court's decision in Padilla v. Kentucky,

(2010). Greco

points out that the Padilla court held that counsel is deficient if counsel does not inform his

client that the client's guilty plea carries a risk of deportation. Padilla,

.

Greco argues that this case is directly analogous to Padilla. Thus, Greco contends that based on

the Court's holding in Padilla, defense counsel in this case was deficient for failing to advise him

of the possible immigration consequences of his guilty plea. Additionally, Greco argues that he

was prejudiced by defense counsel's performance. Greco points out that at the time his petition

was filed, he was a lawful permanent resident in the United States with very significant family

ties within the United States. He also details his numerous medical conditions, including

cardiovascular disease and a cervical injury. Greco alleges that he has no family, property,

means of support, or known access to health care in his native country of Italy. Greco asserts

that these facts corroborate his claim that if he had known that his guilty plea would result in

deportation, he would not have pleaded guilty and would have insisted on going to trial.

¶ 16 Greco acknowledges that Padilla was decided long after his conviction became final.

Thus, an issue arises of whether Padilla can be applied retroactively to Greco's case. Greco

points out that the test for retroactivity used by Illinois courts was set forth in Teague v. Lane,

(1989). In order to determine whether the rule in a later case applies retroactively

to a prior case on collateral review, this court must determine whether the rule established in the

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later case is a new rule. If the rule is new, then it does not apply retroactively to prior cases on

collateral review unless the prior case falls under certain narrow exceptions. Teague,

. However, if the rule is not new, then it applies to prior cases on collateral review.

People v. Kizer,

(2000).

¶ 17 Greco further acknowledges that in Chaidez v. United States, ___ U.S. ___,

(2013), the United States Supreme Court held that Padilla established a new rule

of criminal procedure and, therefore, does not apply retroactively to cases in which the

defendant's conviction was final before Padilla was decided. The Court in Chaidez analyzed the

rule established in Padilla using the Teague test for retroactivity. However, Greco points out

that in Danforth v. Minnesota,

(2008), the United States Supreme Court

held that state courts are not bound by Teague when determining whether a rule applies

retroactively in a state collateral proceeding. Therefore, Greco requests that this court decline to

follow the Supreme Court in Chaidez. Rather, Greco urges this court to follow an Illinois

Appellate Court case, People v. Gutierrez,

, which was decided prior

to Chaidez. In Gutierrez, this court held that Padilla did not announce a new rule and therefore

could be applied retroactively. Gutierrez,

. Greco contends that

Gutierrez correctly found that Padilla simply applied the common standard for ineffective

assistance of counsel to a new set of facts involving immigration consequences, and thus did not

establish a new rule or change the law at all. Accordingly, Greco requests that this court apply

Padilla retroactively and find that defense counsel in this case was ineffective for failing to

advise Greco that his guilty plea would make him eligible for deportation.

¶ 18 In response, the State argues that the trial court properly dismissed Greco's petition

because Greco failed to make a substantial showing that defense counsel was ineffective. The

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State points out that in order to show that counsel was ineffective, Greco must show that

counsel's performance was deficient and that he was prejudiced by counsel's performance.

Primarily, the State argues that Greco failed to show that defense counsel was deficient because

Padilla was decided after Greco's conviction was final and cannot be applied retroactively to this

case. In support of its argument, the State relies on the Chaidez court's holding that Padilla

established a new rule of law and cannot be applied retroactively. Thus, the State contends that

Greco must be able to show that counsel was deficient based on the law at the time of his guilty

plea. The State points out that prior to Padilla, Illinois courts generally held that failure to

advise a client of potential collateral consequences of a conviction fell outside counsel's

constitutional requirements. As such, the State asserts that Greco is unable to show that counsel

was defective based on the law at the time his petition was filed.

¶ 19 Additionally, the State argues that even if this court finds that defense counsel's

performance was deficient in this case, Greco has still failed to substantially show that he was

prejudiced by counsel's performance. The State points out that Greco argued that to establish

prejudice, he only had to show that, but for counsel's errors, there is a reasonable probability that

he would not have pleaded guilty and would have insisted on going to trial. However, the State

argues that in order to establish prejudice, Greco must assert a claim of actual innocence or

articulate a plausible defense that could have been raised at trial. The State argues that a bare

allegation that Greco would have insisted on going to trial is not enough to establish prejudice.

The State claims that Greco's petition lacks any claims of actual innocence or any plausible

defenses that could have been raised at trial. Thus, the State argues that Greco failed to establish

that he was prejudiced by defense counsel's performance. Accordingly, the State argues that

Greco was unable to substantially show that defense counsel was ineffective.

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¶ 20 The Act provides a method through which a defendant may challenge his conviction or

sentence for violation of federal or state constitutional rights. People v. Pendleton,

(2006). "To be entitled to postconviction relief, a defendant must show that he has

suffered a substantial deprivation of his federal or state constitutional rights in the proceedings

that produced the conviction or sentence being challenged."

In noncapital cases,

postconviction proceedings under the Act consist of three stages.

. At the first

stage, the trial court must review the defendant's petition within 90 days and may dismiss the

petition if it is frivolous or patently without merit.

. At the second stage, if the

defendant is indigent, counsel may be appointed for the defendant.

The State then has the

option to answer the petition, or move to dismiss the petition. People v. Turner,

. "The trial court then determines whether the petition alleges a 'substantial

showing of a constitutional violation.' "

(quoting People v. Phyfiher,

(2005)). "If the allegations in the petition *** demonstrate a substantial violation of a

constitutional right, the petition proceeds to the third stage, at which point the court conducts an

evidentiary hearing." Turner,

. When a postconviction petition is

dismissed at the second stage of proceedings without an evidentiary hearing, we review the trial

court's dismissal under the de novo standard of review. Id. ¶ 21. In this case, the trial court

dismissed Greco's petition at the second stage of proceedings without conducting an evidentiary

hearing. Thus, we review the trial court's judgment using the de novo standard.

¶ 21 In order to establish ineffective assistance of counsel, the defendant must show that

counsel's performance was deficient to the extent that it fell below an objective standard of

reasonableness; and that he suffered prejudice as a result of counsel's performance. People v.

Brock,

(citing Strickland v. Washington,

(1984)).

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The United States Supreme Court has held that this standard applies to ineffective assistance

claims arising out of counsel's representation during the plea process. Hill v. Lockhart,

(1985).

¶ 22 In this case, Greco relies on Padilla to support his argument that counsel was ineffective

for failing to advise him of the possibility of deportation as a result of his guilty plea. In Padilla,

the defendant was a native of Honduras and had been a lawful permanent resident of the United

States for over 40 years. Padilla,

. The defendant pleaded guilty to transporting

a large amount of marijuana and subsequently faced deportation as a result of his conviction.

In a postconviction petition, the defendant claimed that defense counsel was ineffective because

counsel failed to advise him of the deportation consequence prior to entering his guilty plea and

also told him that he did not need to worry about his citizenship because he had been in the

country for so long.

The defendant asserted that if he had not received erroneous advice

from counsel, he would have insisted on going to trial.

¶ 23 The Supreme Court noted that immigration law has evolved in that deportation is nearly

inevitable for noncitizens who are convicted of crimes.

. The Court stated that the

consequence of deportation has made legal advice for noncitizens accused of crimes extremely

important.

. Further, the Court stated that deportation is an integral part, and

sometimes the most important part, of the penalty imposed on noncitizen defendants who plead

guilty to crimes.

The Court noted that historically, in state courts, a defendant's risk of

deportation was considered a collateral matter because it was not within the sentencing authority

of the state trial courts and many courts considered collateral consequences to be outside the

scope of a defendant's right to effective assistance of counsel under the sixth amendment.

. Thus, many state courts historically held that because deportation was a collateral

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consequence, failure to advise a defendant of possible deportation consequences was not

cognizable as a claim for ineffective assistance of counsel.

.

¶ 24 However, the Padilla Court disagreed with the historical construction of deportation as a

strictly collateral consequence. The Court stated that "[a]lthough removal proceedings are civil

in nature, [citation], deportation is nevertheless intimately related to the criminal process."

The court concluded that because deportation as a consequence of a conviction is so closely

connected to the criminal process, it is uniquely difficult to classify as either a direct or collateral

consequence.

. Thus, the court held that the risk of deportation is not to be evaluated

using the collateral versus direct consequence distinction, and advice regarding deportation is not

categorically removed from the ambit of the right to effective assistance of counsel.

Accordingly, the Court held that the defendant sufficiently alleged that counsel's performance

was deficient for failing to correctly advise him of the possibility of deportation as a result of his

guilty plea.

.

¶ 25 We agree with Greco that Padilla is analogous to this case. However, the resolution of

this issue depends on whether the rule established in Padilla can be applied retroactively to this

case. Illinois courts use the standard set forth in Teague to determine whether the rule in a later

case can be applied retroactively to a case in which the defendant's conviction was final before

the later case was decided. See People v. Davis,

(2009). As

previously discussed, the court must determine if the rule established in the later case is a new

rule. If the rule is new, then it does not apply retroactively to prior cases on collateral review

unless the prior case falls under certain narrow exceptions. Teague,

. If the

rule is not new, then the rule is applied on collateral review. Kizer,

.

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¶ 26 In Chaidez v. United States,

(2013), the United States Supreme Court

addressed whether the Padilla Court established a new rule when it held that the sixth

amendment requires defense counsel to advise the defendant of the risk of deportation arising

from a guilty plea. The Court explained that pursuant to Teague, a case establishes a new rule

when the rule breaks new ground or imposes a new obligation on the government. Chaidez,

. In other words, a new rule is established when the result of the case is not

dictated by precedent that existed when the defendant's conviction became final.

Conversely,

a case does not establish a new rule when it merely applies a general standard to a new and

different set of facts.

The Court noted that garden-variety applications of the Strickland

standard for ineffective assistance do not produce new rules and that the Strickland standard

provides guidance for resolving virtually all ineffective assistance claims.

.

¶ 27 Recognizing these principles, the Chaidez Court found that Padilla did more than merely

apply the general Strickland standard to a new factual situation.

. The Court noted

that prior to Padilla, the state and lower federal courts "almost unanimously concluded that the

Sixth Amendment does not require attorneys to inform their clients of a conviction’s collateral

consequences, including deportation."

. The Court found that Padilla considered the

threshold question of whether deportation advice was categorically removed from the scope of

the Sixth Amendment because it was only a collateral consequence of a conviction, rather than a

component of a criminal sentence.

. The Chaidez Court stated that before asking how

the Strickland test applied, Padilla asked whether the Strickland test applied to cases involving

deportation advice—a question that was previously unsettled.

The Chaidez Court concluded

that Padilla announced a new rule in finding that the Strickland standard applied to cases

involving deportation advice.

Accordingly, the Chaidez Court held that Padilla does not

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apply retroactively to cases where the defendant’s conviction became final prior to Padilla.

.

¶ 28 In this case, Greco urges this court to disregard the decision in Chaidez. Greco argues

that although Illinois uses the Teague test to determine if cases can be applied retroactively, in

Danforth v. Minnesota,

(2008), the United States Supreme Court held that

state courts are not bound by Teague when determining whether a rule applies retroactively in a

state collateral proceeding. Rather, Greco argues that this court should follow the reasoning in

People v. Gutierrez,

, which held that Padilla can be applied

retroactively because it did not announce a new rule. Thus, relying on Padilla, Greco contends

that defense counsel was ineffective.

¶ 29 We disagree with Greco’s argument and we decline Greco’s invitation to reject Chaidez

and follow Gutierrez. Initially, we note that Gutierrez was decided prior to Chaidez. Further,

we see no reason to deviate from the well-reasoned decision in Chaidez. As the Supreme Court

in Chaidez recognized, Padilla refused to apply the typical distinction between collateral and

direct consequences when deciding whether counsel is required to advise a defendant of the

immigration implications of a guilty plea. In this narrow circumstance, the Padilla Court found

the collateral versus direct consequences distinction unsuitable. The Chaidez Court concluded

that Padilla resolved a previously unsettled question, thus Padilla announced a new rule. We

agree with the reasoning of the Chaidez Court. Therefore, we hold that Padilla announced a new

rule and cannot be retroactively applied to Greco’s case. Accordingly, Greco is unable to make a

substantial showing that defense counsel was ineffective, and the trial court did not err in

dismissing his postconviction petition based on his ineffective assistance of counsel argument.

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¶ 30 We next determine whether the trial court erred in dismissing Greco's postconviction

petition because he has made a substantial showing that his guilty plea was not knowing and

intelligent due to the court's failure to admonish him of possible immigration consequences.

¶ 31 Greco argues that the trial court erred by failing to admonish him of the possible

immigration consequences of his guilty plea as required by section 113-8 of the Code of

Criminal Procedure (Criminal Code) (725 ILCS 5/113-8 (West 2004)). Greco acknowledges that

Illinois courts have held that trial courts are not constitutionally required to advise defendants of

the possible immigration consequences resulting from guilty pleas because immigration

consequences are collateral as opposed to direct consequences. See People v. Delvillar,

(2009). However, Greco argues that those holdings have been effectively

overruled by Padilla and are no longer good law because Padilla eliminated the distinction

between direct and collateral consequences in relation to the immigration consequences of a

guilty plea. Greco contends that although the holding in Padilla addressed only trial counsel’s

requirements regarding deportation advice, and did not address the trial court’s required

admonishments, the reasoning of Padilla should apply equally to the trial court’s

admonishments. Greco argues that given the reasoning of Padilla, the severity of deportation,

and the likelihood of deportation as a result of convictions such as his, it is no longer reasonable

to hold that deportation is a collateral consequence that is not constitutionally required to be a

part of the trial court’s admonishments to a defendant.

¶ 32 In response, the State argues that Illinois courts have long held that trial courts are not

constitutionally required to advise a defendant about potential immigration consequences.

Additionally, the State argues that Padilla eliminated the distinction between direct and

collateral consequences only in relation to counsel’s requirements under the sixth amendment.

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The State asserts that the Padilla holding did not extend to the trial court’s required

admonishments of a defendant. Therefore, the State argues that the trial court did not err in

dismissing Greco’s postconviction petition based on his argument that his guilty plea was not

knowing and intelligent.

¶ 33 We agree with the State's argument. Prior to Padilla, it was well established in Illinois

that although the trial court is required to admonish the defendant of the immigration

consequences of his guilty plea pursuant to section 113-8 of the Criminal Code, the statutory

provision is directory, not mandatory because no particular consequence flows from

noncompliance with the statute. Delvillar,

. Thus, if the trial court

fails to properly admonish the defendant under section 113-8 of the Criminal Code, the court is

not automatically required to allow a motion to withdraw a guilty plea.

. Further,

immigration consequences are classified as collateral consequences, and "[d]ue process does not

require that the defendant be informed of the collateral consequences of a guilty plea."

. Thus, the failure to admonish the defendant of such consequences does not affect the

constitutional voluntariness of the defendant's guilty plea.

.

¶ 34 After Padilla, Illinois courts have continued to apply the principles employed in

Delvillar. 1 In People v. Guzman,

, ¶¶ 18-22, this court applied the

reasoning in Delvillar and held that the trial court did not err in failing to admonish the defendant

of the immigration consequences of his guilty plea pursuant to section 113-8 of the Criminal

Code. Although this court did not discuss Padilla in relation to the trial court's admonishment

requirements, the court was certainly aware of the implications of Padilla because the court

1 We note that in Gutierrez, this court specifically stated that the Padilla decision did not disturb our supreme court's holding in Delvillar. Gutierrez,

. However, Gutierrez reached the opposite conclusion to the Supreme Court in Chaidez as to whether Padilla can be applied retroactively, Id. ¶ 42. Additionally, our supreme court has disagreed with Gutierrez on other grounds. See People v. Johnson,

. Therefore, we look to other authority to support our analysis.

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reversed the judgment of the trial court based on defense counsel's failure to advise the defendant

that he risked deportation by pleading guilty. 2 Id. ¶¶ 28-39.

¶ 35 Similarly, we find that the principles of Delvillar apply to this case. We do not agree

with Greco's argument that Padilla overruled the decision in Delvillar. In Padilla, the Supreme

Court stated:

"Deportation as a consequence of a criminal conviction is, because of its close

connection to the criminal process, uniquely difficult to classify as either a direct or a

collateral consequence. The collateral versus direct distinction is thus ill suited to

evaluating a Strickland claim concerning the specific risk of deportation." (Emphasis

added.) Padilla, 599 U.S. at 366.

Thus, the Padilla Court refused to apply the direct versus collateral consequence distinction only

in relation to counsel's constitutional requirements under Strickland. The Court in no way

applied its holding to the constitutional requirements of the trial court. Although we understand

the reasoning of Greco's argument, we do not read Padilla as overruling the principles in

Delvillar. The holding in Padilla was purposefully narrow, and we decline to extend the Court's

holding beyond that narrow purpose. Because Delvillar has not been overruled, we are bound by

that decision and must follow it. Thus, even if we were to agree with Greco's argument, we are

2 We note that Guzman contained a special concurrence and a dissent. In the special concurrence, Justice Holdridge stated that while he agreed that the trial court's judgment must be reversed, he would have reversed the judgment based on the trial court's failure to admonish the defendant of the immigration consequences of his guilty plea. Guzman,

, ¶ 43 (Holdridge, J., specially concurring). Justice Holdridge stated that while this court and several other jurisdictions have reached the opposite conclusion, he believed that Padilla rejected the holding in Delvillar. Id. ¶¶ 46-47. Justice Holdridge reasoned that Padilla concluded that deportation could not be characterized as a collateral consequence, and stated "I find it incongruous and inappropriate to characterize deportation as 'collateral' for fifth amendment purposes but not for sixth amendment purposes." Id. ¶ 47. Thus, Justice Holdridge stated that he would hold that the trial court's failure to warn the defendant of the immigration consequences of his guilty plea rendered the plea involuntary. Id. In the dissent, Justice McDade disagreed with the outcome of the case for other reasons, but agreed with the authoring justice that Delvillar remained good law and that the trial court's failure to properly admonish the defendant did not render his guilty plea involuntary. Id. ¶¶ 58-63 (McDade, J., dissenting). Justice McDade stated that even assuming Justice Holdridge's interpretation is correct, this court does not have the authority to overrule Delvillar. Id. ¶ 63.

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powerless to deviate from the decision of Delvillar. See Mekertichian v. Mercedes-Benz U.S.A.,

L.L.C.,

(2004). Therefore, pursuant to Delvillar and its progeny, the

trial court was not constitutionally required to admonish Greco of the possible immigration

consequences of his guilty plea. Because Greco failed to present a claim of constitutional

deprivation based on this issue, his argument is not supported by the Act. See 725 ILCS 5/122-

1(a)(1) (West 2008). Accordingly, we hold that the trial court did not err in dismissing Greco's

postconviction petition based on the trial court's failure to admonish him pursuant to section 113-

8 of the Criminal Code.

¶ 36 We next determine whether Greco's guilty plea and sentence are void and must be

vacated because his sentence of seven years' imprisonment was less than the statutorily mandated

minimum sentence of nine years' imprisonment.

¶ 37 Greco argues that his plea and sentence are void and must be vacated because he was

sentenced to seven years' imprisonment, which he claims is less that the statutorily mandated

minimum sentence of nine years' imprisonment. In this case, Greco pleaded guilty to criminal

drug conspiracy. Greco was admonished that he was pleading guilty to criminal drug conspiracy

predicated on delivery of a controlled substance of 15 to 100 grams. Greco points out that in the

indictment, the charge of criminal drug conspiracy was predicated on several offenses of delivery

of a controlled substance, including: delivery of 1 to 15 grams of cocaine; delivery of 15 to 100

grams of cocaine; and delivery of 100 to 400 grams of cocaine. Greco claims that the indictment

was not amended to eliminate any of the offenses on which the criminal drug conspiracy charge

was predicated. The factual basis for the guilty plea shows that Greco was involved in a drug

transaction in which 123.5 grams of cocaine were recovered by police. Greco notes that 123.5

grams of cocaine falls within the range of the charge of criminal drug conspiracy predicated on

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delivery of 100 to 400 grams of cocaine. Delivery of 100 to 400 grams of cocaine is punishable

by 9 to 40 years' imprisonment. 720 ILCS 570/401(a)(2)(B) (West 2004). Greco argues that

because the indictment was not amended to eliminate the offense of delivery of 100 to 400 grams

of cocaine, and the factual basis for the guilty plea included an offense that falls within the range

of 100 to 400 grams of cocaine, then the trial court was statutorily required to sentence him

within the range of nine to forty years' imprisonment. Greco contends that his sentence of seven

years' imprisonment is below the statutory minimum for criminal drug conspiracy predicated on

delivery of 100 to 400 grams of cocaine. Thus, Greco argues that his guilty plea and sentence

are void, and requests that this court vacate his guilty plea and remand the matter to the trial

court for further proceedings.

¶ 38 In support of his argument, Greco relies on our supreme court's ruling in People v. White,

. In White, the defendant pleaded guilty to first-degree murder and possession of

contraband while in a penal institution. White,

. The trial court advised the

defendant that he was pleading guilty to first-degree murder, which had a sentencing range of 20

to 60 years' imprisonment. Id. ¶ 5. At the plea hearing, the factual basis for first-degree murder

showed that the defendant's accomplice discharged a firearm during the offense, which triggered

a mandatory 15-year sentence enhancement for committing the offense while armed with a

firearm. Id. ¶¶ 6, 18. With the addition of the mandatory 15-year sentence enhancement the

defendant’s mandatory minimum sentence for first-degree murder was 35 years’ imprisonment.

Id. ¶ 19. However, the trial court only sentenced the defendant to 28 years’ imprisonment for

first-degree murder. Id. ¶ 7.

¶ 39 Our supreme court held that the defendant’s 28-year sentence was not valid and the

defendant’s plea agreement was void because the trial court failed to impose the mandatory 15-

19 1-11-2582

year sentence enhancement. Id. ¶¶ 29-31. The supreme court reasoned that the trial court does

not have the authority to impose a sentence that does not conform with statutory guidelines, and

the court exceeds its authority when it orders a sentence that is lesser or greater than what the

statute mandates. Id. ¶ 20. The supreme court noted that the parties agreed and intended that the

defendant serve a reduced murder charge without the 15-year sentence enhancement. Id. ¶ 22.

However, the court held that the parties’ intent does not control because the court cannot give the

sentence effect if it is not authorized by law. Id. ¶ 23. The supreme court stated that "the

legislature took away any discretion the State and the trial court had to fashion a sentence that

does not include this mandatory enhancement." Id. ¶ 26. Thus, the supreme court remanded the

matter to the trial court with instructions to allow the defendant to withdraw his guilty plea and

proceed to trial. Id. ¶ 31.

¶ 40 In a special concurrence, Justice Theis noted that the supreme court has repeatedly stated

that plea bargaining should be encouraged. Id. ¶ 37 (Theis, J., specially concurring). Justice

Theis stated that the parties could have negotiated to exclude the 15-year sentence enhancement

from the defendant’s sentence by "amending the indictment and presenting a factual basis that

referred to a dangerous weapon, rather than a firearm." Id. ¶ 41. However, the State did not

amend the indictment and presented a factual basis that established that a firearm was used in the

commission of the offense. Id. ¶¶ 37-38. Thus, the 15-year sentence enhancement applied. Id.

¶¶ 40-41.

¶ 41 In this case, Greco argues that pursuant to White, his guilty plea and sentence are void.

Greco acknowledges that White was decided after his guilty plea became final, but argues that it

applies to his case retroactively. In response, the State argues that White established a new rule

of law and does not apply retroactively to this case.

20 1-11-2582

¶ 42 We note that there is a split of authority in our appellate court on the issue of whether

White applies retroactively. Multiple districts have held that White did not announce a new rule

because it was based on well-settled principles of Illinois law; thus it applies retroactively.

People v. Smith,

; People v. Cortez,

. On the other hand, the First District of our Appellate Court has repeatedly held

that White announced a new rule because it resolved a lack of clarity in the law; thus, it does not

apply retroactively. People v. Young,

; People v. Avery,

.

¶ 43 We agree with the reasoning of Young and Avery, and find that White does not apply

retroactively. We find Young to be particularly persuasive. In Young, the defendant pleaded

guilty to first-degree murder and attempted murder and was sentenced to 25 years’ imprisonment

and 10 years’ imprisonment, respectively. Young,

. The

defendant was admonished that the sentencing range for first-degree murder was 20 to 60 years’

imprisonment, and the sentencing range for attempted murder was 6 to 30 years’ imprisonment.

On appeal, the defendant argued that pursuant to White, his sentences and guilty pleas were

void because they did not include the mandatory firearm enhancement. Id. ¶ 14.

¶ 44 This court held that although the defendant’s sentences were not valid under White

because they were below the below the statutory minimum, White announced a new rule and

could not be applied retroactively to the defendant’s case. Id. ¶¶ 19-24. This court reasoned that

prior to White, there was "confusion as to whether the State could negotiate pleas that did not

include the firearm enhancement for first-degree murder, even where the use of a firearm is

noted in the factual basis for the pleas." Id. ¶ 20 (citing Avery,

).

21 1-11-2582

This court held that White resolved that confusion and thus announced a new rule of law. Young,

.

¶ 45 Further, this court found that even if White did not announce a new rule, the defendant's

argument would fail because he is estopped from challenging his plea agreement when the error

was to his benefit. Id. ¶ 36. This court noted that " '[a]lthough plea agreements exist in the

criminal justice structure, they are governed to some extent by contract law principles.' " Id. ¶ 37

(quoting People v. Evans,

(1996)). When a plea is based on the promise or

agreement of the State in any significant degree, so that it can be said to be part of the

inducement or consideration, the promise must be fulfilled.

In that respect, the principal

inquiry is whether the defendant received the benefit of his bargain.

Relying on those

principles, this court stated as follows:

"Here, defendant voluntarily pled guilty for the agreed -

upon sentence of 35 years, but now, nearly a decade after his plea

was entered, he asserts that his sentence was improper because he

should have received a sentence with the firearm enhancement,

which would have subjected him to a minimum sentence of 76

years, with the 25-year enhancement on both convictions.

Defendant has received the benefit of his plea agreement, a

significantly lower sentence. The State benefitted from the plea

agreement by being spared the time and expense of trial.

Defendant is now assuming a position contrary to his agreement in

his guilty plea in order to receive a benefit by withdrawing his

guilty plea in hopes of obtaining a favorable result. Moreover,

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while defendant has received the benefit of a lesser prison

sentence, if he were permitted to withdraw his plea at this stage,

the State could be subjected to hardship on remand for trial since

over 13 years have elapsed from the date of the offenses. Unlike

Donelson, defendant's negotiated sentence is unable to be

reformed, but we conclude the doctrine of estoppel should prohibit

defendant from challenging a sentence after he has already

received the benefit of a more lenient sentence." Id. ¶ 39.

¶ 46 We agree with the reasoning in Young. In White, the supreme court resolved confusion

as to the State's ability to negotiate around a mandatory sentence enhancement in relation to first-

degree murder. Because the confusion was resolved and the State's authority was clearly

defined, a new rule was established. Greco now attempts to selectively apply certain principles

in White to his case. Greco argues that this case is analogous to White, but then claims that he is

only relying on White for the long-standing principle that a sentence is void if it does not

conform with statutory requirements. However, Greco cannot have it both ways. In White, the

supreme court reached its holding because the factual basis presented to the court established the

facts that triggered the sentence enhancement and the indictment included a charge that

contained said sentence enhancement. See White,

. That is the aspect

of White that created a new rule. Greco claims that the same factual aspects are present in this

case because he agreed to a lower offense and sentence, but the factual basis and indictment

established his conviction for a greater offense and sentence. Because White established a new

rule under this factual scenario, it cannot be retroactively applied to Greco's case.

23 1-11-2582

¶ 47 Further, pursuant to Young, we find that Greco received the benefit of his bargain. The

factual basis in this case shows that Greco could have been convicted of numerous offenses,

including criminal drug conspiracy predicated on delivery of 100 to 400 grams of cocaine.

However, Greco agreed to plead guilty to criminal drug conspiracy predicated on delivery of 15

to 100 grams of cocaine with a lesser sentence of seven years' imprisonment. In exchange, the

State was spared the time and expense of trial. Now that Greco has learned that he is subject to

deportation as a result of his conviction, he attempts to withdraw his guilty plea because he did

not receive a greater sentence. He is taking a position contrary to the agreement in his guilty

plea. It is unfortunate that Greco was unaware that he would be subject to deportation as a result

of his conviction. However, notwithstanding Greco's knowledge, the State would have had no

power to change the immigration consequences of Greco's conviction. Greco was subject to

deportation as a result of his conviction based on federal law, which the State has no authority to

negotiate. In other words, even if Greco and the State agreed that he would plead guilty to

criminal drug conspiracy predicated on delivery of 100 to 400 grams of cocaine, and would be

sentenced within the proper sentencing range, Greco still would have been subject to deportation

as a result of his conviction. The bargain that was struck between Greco and the State was

separate and distinct from any immigration consequences resulting from Greco's conviction.

Further, the State would be subject to considerable hardship on remand for trial as the events that

lead to Greco's conviction took place approximately 13 years ago. Thus, Greco received the

benefit of his bargain and is not able to withdraw his guilty plea. Accordingly, we hold that

White cannot be applied retroactively and Greco's guilty plea and sentence are not void.

¶ 48 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 49 Affirmed.

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