2014 IL App (1st) 112582

FIRST DIVISION

MAY 12, 2014

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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1-08-2457 (Sept. 21, 2010) (unpublished order pursuant to Supreme Court Rule 23).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 
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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 coconspirators 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 coconspirator 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, 559 U.S. 356 (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, 559 U.S. at 373-74. 

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, 

489 U.S. 288 (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, 489 U.S. at 

311-13. However, if the rule is not new, then it applies to prior cases on collateral review. 

People v. Kizer, 318 Ill. App. 3d 238, 246 (2000).

¶ 17 Greco further acknowledges that in Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 

1103, 1107-08 (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, 552 U.S. 264, 281-82 (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, 2011 IL App (1st) 093499, 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, 2011 IL App (1st) 093499, ¶ 42. 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, 223 Ill. 2d 

458, 471 (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." Id. In noncapital cases, 

postconviction proceedings under the Act consist of three stages. Id. at 471-72. 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. Id. at 472. At the second stage, if the 

defendant is indigent, counsel may be appointed for the defendant. Id. The State then has the 

option to answer the petition, or move to dismiss the petition. People v. Turner, 2012 IL App 

(2d) 100819, ¶ 19. "The trial court then determines whether the petition alleges a 'substantial 

showing of a constitutional violation.' " Id. (quoting People v. Phyfiher, 361 Ill. App. 3d 881, 

883 (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, 2012 IL App (2d) 100819, ¶ 20. 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, 2012 IL App (4th) 100945, ¶ 11 (citing Strickland v. Washington, 466 U.S. 668 (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, 474 U.S. 

52, 57 (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, 559 U.S. at 359. The defendant pleaded guilty to transporting 

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

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. Id. The defendant asserted that if he had not received erroneous advice 

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

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

inevitable for noncitizens who are convicted of crimes. Id. at 360. The Court stated that the 

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

important. Id. at 364. 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. Id. 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. Id. at 

364-65. 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. Id. at 365. 

¶ 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." Id. 

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. Id. at 366. 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. Id. 

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. Id. at 366-69. 

¶ 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, 388 Ill. App. 3d 869, 879-80 (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, 489 U.S. at 311-13. If the 

rule is not new, then the rule is applied on collateral review. Kizer, 318 Ill. App. 3d at 246. 
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¶ 26 In Chaidez v. United States, 133 S. Ct. 1103 (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, 133 

S. Ct. at 1107. 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. Id. Conversely, 

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

different set of facts. Id. 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. Id. at 1107-08.

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

apply the general Strickland standard to a new factual situation. Id. at 1108. 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." Id. at 1109. 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. Id. at 1108. 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. Id. The Chaidez Court concluded 

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

involving deportation advice. Id. 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. Id. 

at 1113. 

¶ 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, 552 U.S. 264, 281-82 (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, 2011 IL App (1st) 093499, 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, 235 Ill. 

2d 507, 520-21 (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, 235 Ill. 2d at 514-15, 519. 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. Id. at 519. 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." Id. at 

520-21. Thus, the failure to admonish the defendant of such consequences does not affect the 

constitutional voluntariness of the defendant's guilty plea. Id. at 521-22. 

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

Delvillar.

1

 In People v. Guzman, 2014 IL App (3d) 090464, ¶¶ 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, 2011 IL App (1st) 093499, ¶ 57. 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, 2013 IL 

114639, ¶ 13. 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, 2014 IL App (3d) 090464, ¶ 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., 347 Ill. App. 3d 828, 836 (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, 

2011 IL 109616. In White, the defendant pleaded guilty to first-degree murder and possession of 

contraband while in a penal institution. White, 2011 IL 109616, ¶ 4. 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-
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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. 
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¶ 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, 2013 IL App (3d) 110738, ¶¶ 12-13; People v. Cortez, 2012 IL App (1st) 

102184, ¶ 16. 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, 2013 IL App (1st) 111733, ¶¶ 29, 32-33; People v. Avery, 

2012 IL App (1st) 110298, ¶¶ 38-40. 

¶ 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, 2013 IL App (1st) 111733, ¶ 2. 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. 

Id. 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, 2012 IL App (1st) 110298, ¶ 39). 
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This court held that White resolved that confusion and thus announced a new rule of law. Young,

2013 IL App (1st) 111733, ¶ 29.

¶ 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, 174 Ill. 2d 320, 326 (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. Id. In that respect, the principal 

inquiry is whether the defendant received the benefit of his bargain. Id. 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 firstdegree 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, 2011 IL 109616, ¶¶ 29, 41. 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. 
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¶ 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.