Illinois Official Reports 

Appellate Court

People v. Garcia-Rocha, 2017 IL App (3d) 140754

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JAIME GARCIA-ROCHA, Defendant-Appellant.

District & No. Third District

Docket No. 3-14-0754

Filed February 22, 2017

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 11-CF-1981; the 

Hon. Edward A. Burmila, Jr., Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier and Kerry J. Bryson, of State Appellate 

Defender’s Office, of Ottawa, for appellant.

James Glasgow, State’s Attorney, of Joliet (Justin A. Nicolosi, of 

State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People.

Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the 

court, with opinion.

Justice Wright concurred in the judgment and opinion.

Justice McDade concurred in part and dissented in part, with opinion.
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 OPINION 

¶ 1 The defendant, Jaime Garcia-Rocha, appeals the dismissal of his postconviction petition at 

the second stage of proceedings. The defendant argues that (1) his petition made a substantial 

showing that his due process rights were violated when the trial court failed to hold a proper 

fitness restoration hearing before accepting his guilty plea, (2) he received unreasonable 

assistance of postconviction counsel where postconviction counsel failed to adequately raise 

the issue concerning the fitness restoration showing, (3) his petition made a substantial 

showing that he received ineffective assistance of plea counsel where plea counsel failed to 

advise him that his guilty plea would result in presumptively mandatory deportation, and (4) he 

received unreasonable assistance of postconviction counsel regarding his ineffective 

assistance of plea counsel claim.

¶ 2 FACTS 

¶ 3 The defendant was charged with aggravated fleeing or attempting to elude a peace officer 

(625 ILCS 5/11-204.1(a)(4) (West 2010)). 

¶ 4 The trial court found that bona fide doubt existed as to the defendant’s fitness and 

appointed the county psychologist to determine the defendant’s fitness to stand trial.

¶ 5 A psychological report prepared by the county psychologist concluded that the defendant 

was mentally unfit to stand trial. Specifically, the report opined that the defendant lacked the 

ability to cooperate with his attorney, make reasoned decisions, or pay attention to court 

proceedings. The report stated that the defendant had issues with substance abuse and 

cognitive disruption and had a possible history of head injuries. The report opined that the 

defendant could be restored to fitness within one year with inpatient treatment. 

¶ 6 A fitness hearing was held. The parties stipulated that, if called to testify, the county 

psychologist would testify consistently with the facts, opinions, and conclusions in her report. 

The trial court entered an order finding that the defendant was unfit to stand trial and there was 

a probability that the defendant could be restored to fitness within a year with treatment. The 

trial court remanded the defendant to the Department of Human Services (DHS) on an 

inpatient basis. 

¶ 7 Approximately two months later, a fitness report signed by the defendant’s therapist and 

psychiatrist was filed. The report opined that the defendant was fit to stand trial with 

medication. 

¶ 8 At a subsequent hearing, defense counsel informed the court that the last report from DHS 

indicated that the defendant had been restored to fitness. The trial court then stated: 

“Show the Court is in receipt of the report from the [DHS]. Pursuant to their statutory 

duties, they report to the Court that he’s been restored to fitness and he is now ready to 

proceed with trial. Show that his custody is transferred. He is remanded to the custody 

of the Sheriff of Will County.”

¶ 9 Defense counsel then indicated that the parties had a proposed plea agreement to present to 

the court. The defendant agreed to plead guilty to aggravated fleeing or attempting to elude a 

peace officer in exchange for a sentence of 180 days in jail with credit for time served and 24 

months’ probation. The trial court questioned the defendant as follows regarding the 

medication he was taking: 
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“THE COURT: Are you taking any kind of drugs or medication that’s prescribed 

for you by a doctor other than what I have already been advised of? 

 THE DEFENDANT: Only the one giving it there. 

 THE COURT: Did you take that medication today? 

 THE DEFENDANT: I drink it in the afternoons. 

THE COURT: Okay. So the fact that you haven’t taken it yet, does that interfere in

any way with your ability to communicate with [defense counsel]? 

THE DEFENDANT: No.”

¶ 10 After admonishing the defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 

1997), the trial court asked the defendant how he pled. The defendant replied, “I plead guilty.” 

The following exchange then occurred: 

“THE COURT: Mr. Garcia, I have a question for you, are you an American citizen?

 THE DEFENDANT: No. 

 THE COURT: Do you understand that by pleading guilty you are putting at risk 

your ability to remain in the United States or ever become a citizen? Do you understand 

that? 

 THE DEFENDANT: Yes. 

 THE COURT: You want to go ahead with this anyway? 

THE DEFENDANT: Yes.”

¶ 11 The trial court then accepted the defendant’s plea and sentenced him to 180 days in jail 

with credit for 180 days served and 24 months’ probation pursuant to the plea agreement.

¶ 12 The defendant filed a postconviction petition through privately retained counsel. The 

petition stated: “The Defendant-Petitioner has suffered from mental and emotional disabilities. 

On February 7, 2012, the Court, based on a Psychological Evaluation from [the county 

psychologist], found that the Defendant-Petitioner was ‘unfit to stand trial, but may be restored 

to fitness within one year.’ ” The petition argued that the defendant did not fully understand the 

implications and consequences of his guilty plea, and the defendant would have insisted on 

going to trial had he understood. The petition alleged that after he pled guilty, the defendant 

was “turned over to Immigration and Customs Enforcement, of the US Department of 

Homeland Security, (ICE), which in turn commenced removal proceedings against him.” 

¶ 13 The petition argued that the defendant received ineffective assistance of plea counsel in 

that plea counsel did not properly advise the defendant as to the immigration consequences of 

his guilty plea pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The petition also argued 

that the defendant did not possess the requisite mental state at the time of the offense to be 

found guilty had the matter gone to trial. Documentation from the defendant’s removal 

proceedings was attached to the petition as an exhibit. The defendant filed an affidavit along 

with his petition swearing and affirming that the statements in the petition were true and 

correct. 

¶ 14 The trial court found that the defendant’s postconviction petition presented the gist of a 

constitutional claim and advanced the petition for second-stage proceedings. 
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¶ 15 The State filed a motion to dismiss the defendant’s postconviction petition.1 The motion 

argued that the defendant’s claim that he did not fully understand the implications and 

consequences of his plea was belied by the colloquy between the trial court and the defendant 

prior to the plea. The State argued that the defendant had not articulated a trial defense or made 

a claim of actual innocence regarding his claim of ineffective assistance of plea counsel. The 

State also noted that the trial court had admonished the defendant of the immigration 

consequences of his guilty plea. 

¶ 16 After hearing arguments, the trial court granted the State’s motion to dismiss. In delivering 

its ruling, the trial court reasoned as follows regarding the prior finding of unfitness: 

“The Court was aware of the fact that the defendant had at one time been found unfit, 

but the statute says that there’s three different sources by which the court can have that 

information brought to its attention, by defense counsel, by State or the court on its own 

motion. And the Court of course had the opportunity to observe the defendant 

throughout the entire proceeding. I asked him the questions about his medication, there 

was nothing that came to the Court’s attention that led me to believe even momentarily 

that the defendant was not fit to proceed or was acting under the duress of a mental 

disability.”

¶ 17 ANALYSIS 

¶ 18 I. Failure to Hold Fitness Restoration Hearing 

¶ 19 On appeal, the defendant argues that the trial court erred in dismissing his postconviction 

petition because he made a substantial showing that the trial court violated his due process 

rights by accepting his guilty plea without first conducting an adequate fitness restoration 

hearing. Specifically, the defendant contends that the trial court erred in merely accepting the 

DHS report that the defendant had been restored to fitness without conducting an independent 

analysis of the report or exercising any discretion in finding the defendant fit. 

¶ 20 We find that the defendant failed to raise this argument in his postconviction petition. 

While the petition referenced the trial court’s prior finding of unfitness, the petition made no 

assertion of a due process violation nor did it challenge the fitness restoration hearing or lack 

thereof. The petition merely alleged that the defendant “has suffered from mental and 

emotional disabilities” and was previously found unfit. These allegations do not even approach 

making a substantial showing that the defendant’s due process rights were violated when the 

trial court failed to hold a proper fitness restoration hearing. See People v. Domagala, 2013 IL 

113688, ¶¶ 33-35 (holding that at the second stage of postconviction proceedings, the burden is 

on the defendant to make a substantial showing of a constitutional violation). 

¶ 21 As the defendant did not raise the issue in his postconviction petition, he may not raise it 

for the first time on appeal from the dismissal of the petition. People v. Pendleton, 223 Ill. 2d 

458, 475 (2006). 

 

1The State’s motion is entitled “Motion to Dismiss Second Amended Post-Conviction Petition.” 

We note, however, that only one postconviction petition, which was filed April 4, 2014, appears in the 

record. The State’s motion only references the April 4 petition.
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¶ 22 II. Unreasonable Assistance of Postconviction Counsel—

 Fitness Restoration Hearing 

¶ 23 Having found that the issue of the trial court’s failure to hold a fitness restoration hearing 

cannot be raised for the first time on appeal, we now turn to the question of whether 

postconviction counsel’s failure to amend the petition to include said issue constitutes 

unreasonable assistance. 

¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) “provides 

a three-stage process for adjudicating [postconviction] petitions.” People v. Cotto, 2016 IL 

119006, ¶ 26. At the first stage, the trial court summarily dismisses the petition if it determines 

that the petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 

2014). If the petition survives the first stage, it advances to the second stage, at which time the 

trial court may appoint counsel for an indigent defendant. Cotto, 2016 IL 119006, ¶ 26; see 

also 725 ILCS 5/122-4 (West 2014). 

¶ 25 A defendant has no constitutional right to the assistance of counsel in postconviction 

proceedings. Cotto, 2016 IL 119006, ¶ 29. The Act guarantees “only a ‘reasonable’ level of 

assistance, which is less than that afforded by the federal or state constitutions.” Pendleton, 

223 Ill. 2d at 472 (quoting People v. Munson, 206 Ill. 2d 104, 137 (2002)). In Cotto, our 

supreme court held that “there is no difference between appointed and privately retained 

counsel in applying the reasonable level of assistance standard to postconviction proceedings. 

Both retained and appointed counsel must provide reasonable assistance to their clients after a 

petition is advanced from first-stage proceedings.” Cotto, 2016 IL 119006, ¶ 42.

¶ 26 It is unclear whether the defendant is arguing that his privately retained postconviction 

counsel was unreasonable for failing to raise the issue in his initial petition, failing to amend 

the petition at the second stage of proceedings to include the issue, or both. At one point in the 

defendant’s brief, the defendant argues that postconviction counsel “failed to make a claim that 

defendant *** had not been found restored to fitness at a proper restoration hearing.” At 

another point in the brief, the defendant argues that postconviction counsel “fail[ed] to 

properly amend defendant’s post-conviction petition to state a due process claim based upon 

the inadequate fitness restoration proceedings.”

¶ 27 Initially, we find that the defendant may not sustain a claim of unreasonable assistance of 

postconviction counsel based on postconviction counsel’s failure to include the issue in the 

initial petition. While the Cotto court recognized that “[b]oth retained and appointed counsel 

must provide reasonable assistance to their clients after a petition is advanced from first-stage 

proceedings” (id.), neither the legislature nor Illinois courts recognized any right to counsel at 

the first stage of postconviction proceedings. See 725 ILCS 5/122-2.1(a)(2), 122-4 (West 

2014); People v. Shipp, 2015 IL App (2d) 131309, ¶ 24 (“Neither statute nor case law provide 

for a freestanding right to reasonable assistance of counsel at first-stage postconviction 

proceedings.”); People v. Kegel, 392 Ill. App. 3d 538, 540-41 (2009).2 See also People v. 

Ligon, 239 Ill. 2d 94, 118 (2010) (“Accordingly, we conclude that defendant had no right to the 

appointment of counsel at the summary dismissal stage of his postconviction proceeding 

 

2We acknowledge that section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 2014)) provides for 

the appointment of counsel at the first stage of postconviction proceedings for petitioners who are under 

a sentence of death. However, the death penalty was abolished in Illinois effective July 1, 2011. 725 

ILCS 5/119-1 (West 2014). 
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***.”); People v. Greer, 212 Ill. 2d 192, 203 (2004) (“[T]he Act does not provide for 

appointment of counsel unless an indigent defendant’s petition survives the first stage of 

postconviction proceedings.”); People v. Pearson, 216 Ill. 2d 58, 70 (2005) (“The Act does not 

authorize appointment of counsel at the first stage of the proceedings for a petitioner who is not 

under a sentence of death.”); People v. Coulter, 352 Ill. App. 3d 151, 155 (2004) (“[A]t the first 

stage of postconviction proceedings, defendant is not entitled to the appointment of counsel to 

assist in the preparation of his petition ***.”).

¶ 28 Specifically, we note the holding in Kegel, 392 Ill. App. 3d at 540-41. In Kegel, the 

defendant’s postconviction petition, which was prepared by privately retained counsel, was 

summarily dismissed at the first stage of postconviction proceedings. Id. at 539. The Kegel 

defendant argued that his postconviction counsel provided unreasonable assistance for failing 

to assert a certain claim in the petition. Id. The defendant contended that an attorney retained to 

draft an initial postconviction petition should be held to the same reasonable assistance 

standard as an attorney appointed to represent a defendant at the second stage of proceedings. 

Id. The Kegel court rejected the defendant’s claim, reasoning that the defendant’s right to 

counsel never arose under the Act because the Act only guarantees a right to counsel if a 

petition proceeds to the second stage. Id. at 541. The court noted that to accept the defendant’s 

argument “would lead to disparate treatment among prisoners who are similarly situated 

except with regard to the means to obtain counsel.” Id.

¶ 29 In reaching our finding that the defendant had no right to the reasonable assistance of 

counsel at the first stage of proceedings, we acknowledge that the Cotto court noted: “This 

court has also required reasonable assistance from privately retained postconviction counsel at 

the first and second stage of postconviction proceedings.” Cotto, 2016 IL 119006, ¶ 32 (citing 

People v. Mitchell, 189 Ill. 2d 312, 358 (2000)). In Mitchell, unlike in the instant case, the 

defendant was sentenced to death. Mitchell, 189 Ill. 2d at 320. Petitioners sentenced to death 

had a statutory right to the assistance of appointed counsel at the first stage of postconviction 

proceedings. 725 ILCS 5/122-2.1(a)(1) (West 1992); see also People v. Brisbon, 164 Ill. 2d 

236, 243 (1995). Therefore, we find that any right to reasonable assistance of counsel that the 

Mitchell petitioner may have had at the first stage of proceedings does not apply to the 

defendant in the instant case, who had no statutory right to counsel at the first stage of 

proceedings. 725 ILCS 5/122-2.1(a)(2) (West 2014); Pearson, 216 Ill. 2d at 70 (“The Act does 

not authorize appointment of counsel at the first stage of the proceedings for a petitioner who is 

not under a sentence of death.”).

¶ 30 The dissent takes a contrary view, asserting that the application of the reasonable 

assistance standard at the first and second stages of proceedings in Mitchell is equally 

applicable in this case, where there is no statutory right to counsel at the first stage of 

proceedings. In so doing, the dissent “seeks to disengage the guarantee of reasonable 

assistance from the underlying right to counsel such that the former can exist independently of 

the latter.” Kegel, 392 Ill. App. 3d at 541. We find no support in the Act or the case law for 

such a position. 

¶ 31 We also reject the dissent’s comparison of the instant case to People v. Csaszar, 2013 IL 

App (1st) 100467. The dissent is correct that in both the instant case and in Csaszar, the 

defendants were represented by retained counsel during the first and second stages of 

postconviction proceedings and argued on appeal that retained counsel provided unreasonable 

assistance in failing to include certain issues in their petitions. See id. ¶¶ 11-15. However, the 
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holding in Csaszar, which was overruled in Cotto, 2016 IL 119006, ¶ 42, was that a 

postconviction petitioner who retains private counsel is not entitled to a reasonable level of 

assistance at all during any stage of postconviction proceedings. Csaszar, 2013 IL App (1st) 

100467, ¶ 25. Our holding, on the other hand, is that the right to reasonable assistance of 

counsel for postconviction petitioners who retain private counsel does not attach until the 

second stage of postconviction proceedings. 

¶ 32 We disagree with the dissent’s claim: “In overruling Csaszar, the supreme court made no 

distinction between the first and second stage challenges.” Infra ¶ 58. In fact, the Cotto court 

explicitly limited its holding to second-stage challenges twice in the same paragraph in which 

it overruled Csaszar: 

“Accordingly, we find that the appellate court in this case erred when it concluded 

that defendant was not entitled to reasonable assistance from his retained counsel at 

second-stage proceedings. We also overrule Csaszar for reaching the same erroneous 

conclusion. We hold that there is no difference between appointed and privately 

retained counsel in applying the reasonable level of assistance standard to 

postconviction proceedings. Both retained and appointed counsel must provide 

reasonable assistance to their clients after a petition is advanced from first-stage 

proceedings.” (Emphases added.) Cotto, 2016 IL 119006, ¶ 42.

¶ 33 Essentially, the Csaszar court held that postconviction petitioners who retain private 

counsel have fewer rights than petitioners who receive appointed counsel. The dissent would 

grant petitioners who retain private counsel more rights than those who file pro se initial 

petitions. Our holding is that all postconviction petitioners have the same right to 

counsel—namely, no right at the first stage and the right to reasonable assistance thereafter. 

Our position is consistent with the holding in Cotto. See id. (“[T]here is no difference between 

appointed and privately retained counsel in applying the reasonable level of assistance 

standard to postconviction proceedings.”).

¶ 34 Additionally, we disagree with the dissent’s conclusion that our holding would preclude a 

postconviction petitioner from attacking the quality of retained counsel’s representation in 

preparing an initial petition either before the Attorney Registration and Disciplinary 

Commission (ARDC) or in a lawsuit against the attorney. An attorney’s ethical obligation to 

competently represent his or her client is completely separate from a postconviction 

petitioner’s right to the reasonable assistance of counsel under the Act. Our holding is that a 

postconviction petitioner cannot maintain a claim of unreasonable assistance of postconviction 

counsel in the postconviction proceedings on the basis that retained counsel failed to include 

an issue in an initial postconviction petition. Nothing in our holding would prevent a 

postconviction petitioner from suing such an attorney for malpractice or from filing a 

complaint with the ARDC. 

¶ 35 Having found that the defendant’s postconviction counsel did not provide unreasonable 

assistance in failing to include the fitness restoration hearing issue in the petition at the first 

stage of proceedings, we also find that postconviction counsel did not render unreasonable 

assistance in failing to amend the petition at the second stage of proceedings. Specifically, we 

reject the defendant’s argument that the fitness restoration issue was obvious and, 

consequently, postconviction counsel acted unreasonably in failing to raise it. Generally, the 

right to reasonable assistance of postconviction counsel at the second stage of proceedings 

does not afford petitioners the right to have all “obvious” issues raised by counsel in an 
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amended petition. Rather, when counsel is appointed at the second stage of proceedings to 

represent a defendant who initially filed a pro se petition, counsel is required only to 

investigate and present the claims raised in the pro se petition. People v. Davis, 156 Ill. 2d 149, 

164 (1993). Our supreme court has held that appointed postconviction counsel does not render 

deficient assistance when he or she fails to raise issues the defendant did not raise in the initial 

pro se petition. Pendleton, 223 Ill. 2d at 476 (“While postconviction counsel may conduct a 

broader examination of the record [citation], and may raise additional issues if he or she so 

chooses, there is no obligation to do so.” (Emphasis in original.)).

¶ 36 We acknowledge that, unlike in the cases discussed above, the defendant in the instant case 

was represented by counsel at the first stage of proceedings. Nevertheless, based on the above 

authority, we find that the defendant did not received unreasonable assistance of 

postconviction counsel at the second stage of proceedings based on counsel’s failure to raise 

the fitness restoration issue in an amended petition. Were we to hold otherwise, we would be 

construing the right to reasonable assistance of postconviction counsel at the second stage of 

proceedings to afford greater rights to petitioners who were represented by counsel at the first 

stage than those who were unrepresented. Such a result is contrary to the holding in Cotto. See 

Cotto, 2016 IL 119006, ¶ 42 (“We hold that there is no difference between appointed and 

privately retained counsel in applying the reasonable level of assistance standard to 

postconviction proceedings.”).

¶ 37 III. Ineffective Assistance of Plea Counsel 

¶ 38 The defendant next argues that the trial court erred in dismissing his postconviction 

petition at the second stage of proceedings because he made a substantial showing that he 

received ineffective assistance of plea counsel where plea counsel failed to advise him that he 

faced presumptively mandatory deportation if he pled guilty. 

¶ 39 To establish that he received ineffective assistance of counsel, the defendant was required 

to show (1) plea counsel’s performance was deficient and (2) the defendant was prejudiced as a 

result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); see 

also Domagala, 2013 IL 113688, ¶ 36. Because the trial court advanced the defendant’s 

petition to the second stage of postconviction proceedings, the burden was on the defendant to 

make a substantial showing of a claim of ineffective assistance of plea counsel through the 

allegations in his petition, as well as any accompanying documentation. Domagala, 2013 IL 

113688, ¶¶ 33-35. At the second stage of proceedings, the petitioner’s allegations are taken as 

true unless they are affirmatively rebutted by the record. Id. ¶ 35. 

¶ 40 We find that the defendant’s claim of ineffective assistance of plea counsel is controlled by 

the United States Supreme Court’s decision in Padilla, 559 U.S. 356, and the Illinois Supreme 

Court’s recent decision in People v. Valdez, 2016 IL 119860. In Padilla, the Court held that 

criminal defense attorneys must inform their clients whether a guilty plea would carry a risk of 

deportation. Padilla, 559 U.S. at 374. The Court held that the Padilla defendant’s counsel had 

a duty to inform him that he faced mandatory removal where the defendant pled guilty to 

transporting a large amount of marijuana. Id. at 359, 368-69. The court reasoned: 

“[C]ounsel could have easily determined that [the defendant’s] plea would make him 

eligible for deportation simply from reading the text of the [immigration] statute, which 

addresses not some broad classification of crimes but specifically commands removal 
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for all controlled substances convictions except for the most trivial of marijuana 

possession offenses.” Id. at 368. 

¶ 41 The Court also held that “[w]hen the law is not succinct and straightforward ***, a criminal 

defense attorney need do no more than advise a noncitizen client that pending criminal charges 

may carry a risk of adverse immigration consequences.” Id. at 369. 

¶ 42 Our supreme court recently applied the holding of Padilla in its opinion in Valdez, 2016 IL 

119860, ¶ 22. The Valdez defendant pled guilty to burglary as part of a negotiated plea 

agreement. Id. ¶ 6. Before accepting the defendant’s plea, the trial court admonished the 

defendant, pursuant to section 113-8 of the Code of Criminal Procedure of 1963 (Code) (725 

ILCS 5/113-8 (West 2012)), that a burglary conviction “ ‘may have the consequences of 

deportation, exclusion from admission to the United States, or denial of naturalization under 

the laws of the United States.’ ” Valdez, 2016 IL 119860, ¶ 8 (quoting 725 ILCS 5/113-8 (West 

2012)). The defendant stated that he understood and still wanted to plead guilty. Id. The Valdez 

defendant then filed a motion to withdraw guilty plea, arguing that his plea counsel provided 

ineffective assistance by failing to inform him of the consequences his guilty plea would have 

on his resident alien status. Id. ¶ 9. 

¶ 43 The Valdez court held that under Padilla, plea counsel was only required to admonish the 

defendant that his guilty plea may have immigration consequences. Id. ¶ 22. The court 

reasoned that, unlike the drug offense in Padilla, the immigration consequences of an Illinois 

burglary conviction are not apparent on the face of the immigration statute. Id. ¶ 26. Rather, 

burglary was a deportable offense because it fell into the category of “crimes involving moral 

turpitude.” Id. ¶ 22. The Valdez court reasoned: 

“Padilla strongly suggests that where a crime falls within a ‘broad classification’ of 

offenses, such as crimes involving moral turpitude, the law is not ‘succinct and 

straightforward.’ [Citation.] Consequently, where the face of the statute does not 

succinctly, clearly, and explicitly indicate that a conviction subjects a defendant to 

mandatory deportation, counsel need only advise a defendant that his plea ‘may’ have 

immigration consequences.” Id. (quoting Padilla, 559 U.S. at 368-69). 

¶ 44 Additionally, the Valdez court held that “[a]ny prejudice suffered by [the] defendant as a 

result of counsel’s failure [to advise the defendant of the immigration consequences of his 

plea] was cured by the circuit court’s strict compliance with section 113-8 of the Code.” Id.

¶ 32. 

¶ 45 In the instant case, as in Valdez, the defendant pled guilty to a crime that was a deportable 

offense because it fell into the broad category of crimes involving moral turpitude under the 

immigration statute. See id. ¶ 22; see also 8 U.S.C. § 1227(a)(2)(A)(i) (2012). As noted by the 

Valdez court, the immigration statute lists “[c]rimes of moral turpitude” as a category of 

deportable offenses but does not define what kinds of offenses fall into this category. 8 U.S.C. 

§ 1227(a)(2)(A)(i) (2012); see also Valdez, 2016 IL 119860, ¶ 20. As the immigration 

consequences of a conviction for aggravated fleeing and eluding a peace officer are not 

apparent on the face of the immigration statute, we find that plea counsel was required only to 

warn the defendant “that his plea ‘may’ have immigration consequences.” Valdez, 2016 IL 

119860, ¶ 22 (quoting Padilla, 559 U.S. at 368-69). Thus, taking the allegations in the 

postconviction petition as true, plea counsel’s failure to advise the defendant that his plea may 

have immigration consequences constituted deficient performance. 
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¶ 46 However, like in Valdez, we find that the deficient performance of plea counsel was cured 

by the trial court’s admonishments to the defendant at the guilty plea hearing. The trial court 

advised the defendant: “[B]y pleading guilty you are putting at risk your ability to remain in the 

United States or ever become a citizen.” Although the wording of this admonishment was not 

strictly compliant with section 113-8 of the Code (725 ILCS 5/113-8 (West 2012)), we find 

that the admonishment was sufficient to advise the defendant that his plea “ ‘may’ have 

immigration consequences,” which is all that was required. Valdez, 2016 IL 119860, ¶ 22 

(quoting Padilla, 559 U.S. at 368-69). 

¶ 47 IV. Unreasonable Assistance of Postconviction Counsel—

 Failure to Adequately Allege Prejudice 

¶ 48 As we have found that the trial court’s admonishments cured any prejudice resulting from 

plea counsel’s deficient performance, we need not reach the defendant’s argument that his 

postconviction counsel failed to adequately allege and argue prejudice in the postconviction 

petition. 

¶ 49 CONCLUSION 

¶ 50 The judgment of the circuit court of Will County is affirmed. 

¶ 51 Affirmed. 

¶ 52 JUSTICE McDADE, concurring in part and dissenting in part. 

¶ 53 The majority has (1) declined to decide the defendant’s claim that the trial court erred in 

not conducting a fitness restoration hearing because he did not raise that issue in his 

postconviction petition; (2) found that his retained postconviction counsel had no obligation to 

provide reasonable assistance at the first stage of the proceedings and, further, did not provide 

unreasonable assistance in failing to amend the petition to include that issue; and (3) found no 

error in plea counsel’s failure to advise him that he faced presumptively mandatory deportation 

if he pled guilty. Because of the supreme court’s recent decision in People v. Valdez, 2016 IL 

119860, I concur with the disposition on the third issue and dissent as follows from the 

decision on the first and second. 

¶ 54 I believe the majority misreads and misapplies People v. Cotto, 2016 IL 119006. In that 

case, the supreme court said: 

“This court has also required reasonable assistance from privately retained 

postconviction counsel at the first and second stage of postconviction proceedings. See 

People v. Mitchell, 189 Ill. 2d 312, 358 (2000) (reviewing retained counsel’s 

performance under the reasonable assistance standard). Notably, this court has never 

held that the reasonable assistance standard is inapplicable to a postconviction 

defendant who retained private counsel or otherwise distinguished between appointed 

and retained counsel for purposes of that standard.” Id. ¶ 32. 

The majority has attempted to distinguish the supreme court’s reference to Mitchell by 

pointing out that the Act did authorize appointment of counsel at the first stage for persons 

convicted of capital murder. See supra ¶ 29. The supreme court itself made no such distinction 

in Cotto.
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¶ 55 The court also stated: 

“We hold that there is no difference between appointed and privately retained counsel 

in applying the reasonable level of assistance standard to postconviction proceedings. 

Both retained and appointed counsel must provide reasonable assistance to their clients 

after a petition is advanced from first-stage proceedings.” Cotto, 2016 IL 119006, ¶ 42. 

¶ 56 I suggest that the supreme court’s reference to first-stage proceedings in the last sentence 

of paragraph 42 is because that is the posture of the case the court had under consideration and 

does not imply any lessening of its earlier evaluation in Mitchell of the nature and reach of 

retained postconviction counsel’s obligations. As the Cotto court stated: 

“The primary issue in this appeal is whether postconviction petitioners who retain 

private counsel are entitled to a reasonable level of assistance, the same level of 

assistance guaranteed to pro se petitioners with appointed counsel after a petition 

advances from first-stage proceedings under the Post-Conviction Hearing Act

[citation].” (Emphasis added.) Id. ¶ 25. 

¶ 57 By contrast, the challenge in the instant case is to postconviction counsel’s failure to 

adequately raise the claimed shortcomings in his fitness restoration hearing in the initial 

petition. It seems to me that, in essence, when a prisoner retains counsel to prepare the initial 

postconviction petition, the first and second stages effectively merge and it is the job of 

retained counsel to both identify and raise those issues that could rise to the level of 

constitutional claims and to put them in proper form for the court’s consideration. 

Garcia-Rocha claims that his retained counsel did neither. 

¶ 58 Further, I draw support from the fact that the case of People v. Csaszar, 2013 IL App (1st) 

100467, which the court overruled in Cotto, stood in the same posture as our case—that is, the 

defendant hired private counsel to file his postconviction petition, and the petition was 

dismissed at the second stage. On appeal, Csaszar, who had drafted, but never filed, a 

preliminary postconviction petition, challenged his retained counsel’s failure to “further 

investigate[ ] the claim Csaszar made in his draft postconviction petition that the State 

tampered with the videotape of his conversation with Shaffer.” Id. ¶ 15. Thus, Csaszar’s 

appeal included a challenge to his retained counsel’s performance at both the first and second 

stages. In overruling Csaszar, the supreme court made no distinction between the first and 

second stage challenges. 

¶ 59 The majority, however, makes a legal finding that there is no duty on the part of retained 

counsel to provide reasonable assistance at the first stage. In additional support of this 

conclusion, the majority echoes the concern expressed by the court in People v. Kegel, 392 Ill. 

App. 3d 538, 541 (2009), that acceptance of the defendant’s argument “would lead to disparate 

treatment among prisoners who are similarly situated except with regard to the means to obtain 

counsel.” If the general assembly shared the concern expressed by the Kegel court and the 

majority in the instant case, it could easily have required, in all cases, that the initial 

postconviction petition be prepared and submitted pro se. It did not do that, leaving (1) a clear 

option for a prisoner who is financially able to retain counsel to prepare the original petition 

and (2) the very real possibility that in postconviction proceedings, as in numerous other 

situations throughout our criminal and civil courts, financially advantaged parties may (or may 

not) receive qualitatively higher levels of representation. 

¶ 60 Moreover, under the position espoused by the majority in the instant case, a complaint 

attacking the quality of representation in preparation of the initial petition raised by 
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Garcia-Rocha in this court (or in the ARDC) can be completely defeated by a defense that 

“even though the defendant hired me and is paying me, I am excused from any of my 

professional, ethical obligations because this is the first stage of a postconviction proceeding 

and no standards apply to me.” As I see it, this is wholly untenable and totally wrong. As the 

United States Supreme Court said in McCoy v. Court of Appeals of Wisconsin, District 1, 486 

U.S. 429, 438 (1988): 

“Every advocate has essentially the same professional responsibility whether he or she 

accepted a retainer from a paying client or an appointment from a court. The appellate 

lawyer must master the trial record, thoroughly research the law, and exercise 

judgment in identifying the arguments that may be advanced on appeal. In preparing 

and evaluating the case, and in advising the client as to the prospects for success, 

counsel must consistently serve the client’s interest to the best of his or her ability.” 

¶ 61 In light of the foregoing, I would find that Garcia-Rocha’s retained counsel had an 

obligation to provide reasonable assistance at the first stage and all stages of postconviction 

proceedings. I would also find that, because there is no evidence in the record that the trial 

court exercised independent discretion in finding the defendant fit to stand trial, retained 

counsel’s failure to include that issue in the initial postconviction petition constituted 

unreasonable assistance. For these reasons, I would find that this case should be remanded for 

further proceedings in accord with the Act.