Pleading Guilty in Illinois Courts: A New Judicial Admonition Rule

By Patrick M. Kinnally & Cindy G. Buys

November 2019

Due process requires that acceptance of a guilty plea be a "knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and the likely consequences."1 In light of this commandment, the Illinois legislature passed a law in 2004 requiring that state judges admonish defendants regarding the possible immigration consequences of a guilty plea prior to accepting that plea.2 Unfortunately, not all judges complied with this command. As a result, some foreign defendants accepted guilty pleas not knowing the consequence would be deportation. When they discovered the immigration consequences of the guilty plea, some attempted to vacate their plea on the grounds of lack of notice and take their chance at trial, but the Illinois courts refused to provide any remedy for the judiciary's failure to comply with the law. 

To correct this problem and ensure respect for the original legislative intent, the Illinois State Bar Association, through its International Immigration Section Council, drafted an amendment to the Judicial Admonition Statute relating to guilty pleas.3 The new law,,i which Governor Pritzker signed on August 16, 2019, states: 

Public Act 101-0409.

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 113-8 as follows:
(725 ILCS 5/113-8)

Sec. 113-8. Advisement concerning status as an alien.

(a) Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".

(b) If the defendant is arraigned on or after the effective date of this amendatory Act of the 101 st General Assembly, and the court fails to advise the defendant as required by subsection (a) of this Section, and the defendant shows that conviction of the offense to which the defendant pleaded guilty, guilty but mentally ill, or nolo contendere may have the consequence for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States, the court, upon the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty, guilty but mentally ill, or nolo contendere and enter a plea of not guilty.
The motion shall be filed within 2 years of the date of the defendant's conviction.5

This amended law takes effect on January 1, 2020. Under this amended law, foreign defendants will have up to two years to seek vacation of a guilty plea entered without judicial admonition of potential immigration consequences. This amended law will increase the likelihood that guilty pleas will be more fully informed.

Background

In January 2004, the Illinois General Assembly passed an amendment to the Illinois Criminal Statute which says: 

Before the acceptance of a plea of guilty, guilty but mentally ill, or no/o contendere to a misdemeanor or a felony offense, the court shall give the following advisementto the defendant in open court.

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States or denial of naturalization under the laws of the United States."6

Prior to that time, persons who were not U.S. citizens sometimes accepted guilty pleas without understanding that they could face removal from the United States in addition to the agreed upon criminal sanctions. The defendant was then unpleasantly surprised when, after having completed his criminal sentence, he was taken into immigration custody and placed in deportation proceedings. Many defendants claimed they would not have pied guilty if they had known it would mean almost certain deportation from the country, separating them from their families, jobs, and homes. For some time, members of the trial bar pushed for legislation to address this problem.7 The Illinois legislature finally responded in 2004 by requiring the judicial admonishment quoted above. As a result of this amendment to 725 ILCS 5/113-8, this warning is now posted on many courtroom walls or in hallways in circuit courts around the state.

Interpretation of 725 ILCS 5/113-8 by Illinois Courts

Despite the mandatory language of the statute, some trial judges were not giving this required admonition. Some judges may have thought the posting of the notice of this advisement in court rooms was sufficient. Other judges relied on written agreements in court orders signed by the accused. But this is not what the law said. Quite plainly, it directs: "the court shall give the following advisement to the defendant in open court."

That language denotes it must be given, and insists, much like the waiver of a jury trial, it be announced in open court when the accused is present.8

Moreover, the statute says the court "shall" give the advisement as to a "misdemeanor or felony offense" in "open court". Since this statutory requirement is mandatory, a cogent argument was made that such warning must be given orally by the trial court in open court. It does not suffice merely to have placards attached to courtroom walls which state such a caveat.

Lower courts in Illinois split on the issue of whether the failure to provide the admonishment would result in vacation of a guilty plea. One division of the First District Appellate Court held in Bile/gene that the trial court's failure to give the admonishment did not permit the defendant to vacate his guilty plea.9 But in People v. Del Vil/a1⯑ 10 another division vacated a plea where the admonishment was not announced in open court.

The Second District joined the Bile/gene majority opinion in concluding the language of the statute, even though it says the trial court "shall" give the admonishment, does not mean a trial judge has to do that.11 This ruling, respectfully, ignores the definite requirement of a statute in the guise of what the court decrees as statutory interpretation. The Leon court found that even though the legislature said a trial judge shall give the admonition, the word "shall" does not mean "must." And, because it did not, the imperative of giving the admonition was not mandatory, but only directory. 12

To reach this result, the Leon court noted there was no statement in the legislation which indicated that any consequence would ensue if the trial judge failed to obey the statute. It is true, as the Leon court observed, that whether a statute is mandatory or directory is a question of legislative intent. However, Leon failed to focus on what consequences flow from the failure to give the admonition. It seems quite obvious that the General Assembly was concerned that unknowing defendants, not judges, prosecutors, or defense attorneys, were entering into plea arguments - contracts with the government - that were not undertaken with full knowledge of the consequences of the deal they were making.13 The Leon tribunal ignored the fact that plea agreements are contracts that require the parties who enter into them to possess full knowledge of all the terms of such a pact.

In reversing the Appellate Court in Del Villar, the Illinois Supreme Court sided with the Leon court and effectively rendered the Illinois guilty plea admonishment statute toothless. 14 In that case, Leobardo Del Villar pleaded guilty to aggravated unlawful use of a weapon by a felon. Before doing so, the trial judge asked him whether he was entering into the plea agreement in return for a sentence recommendation, freely and voluntarily. He answered affirmatively. The trial court next asked, "Are you a citizen of the United States?" and Del Villar said, ''Yes." Sentencing was deferred until the end of November, when a term of four years imprisonment was to be imposed.

Two weeks later, Del Villar asked the trial court to vacate his plea stating he was a legal permanent resident alien, not a United States citizen, and the trial court failed to admonish him consistent with 725 ILCS
5/113-8. The trial court refused the request because Del Villar had lied to the court about his citizenship status. The Appellate Court reversed, stating the trial court was required by the statute to warn Del Villar based on the statute's plain and mandatory language. The Supreme Court disagreed and reinstated Del Villar's plea based on the guilty plea he sought to withdraw in the trial court. 

Understandably, the courts were concerned, as they should be, that Del Villar lied to the court. Yet, this
does not diminish the court's responsibility to comply with the statute and ensure the plea Del Villar was agreeing to was knowing and voluntary.

In reaching this result, the Illinois Supreme Court relied in part on a doctrine developed in Morris v. County

of Marin, 15 a decision of the California Supreme Court. Marin County had a rule which said to obtain a building permit, a contractor had to have a certificate of workers' compensation insurance. Marin County issued a permit to Guy Cahoon, a contractor, to perform construction work despite the fact that Cahoon never had the insurance. After work commenced, Cahoon's employee, Morris, was severely injured on the job. Morris sued Marin County for failure to fulfil its statutory obligation to require workers' compensation insurance and alleged that such failure proximately caused his uncompensated injuries.

Marin County claimed the statute requiring it to ensure Cahoon had the insurance was not a mandatory duty. The statute said:

Every county which requires the issuance of a permit as a condition precedent to construction ... shall require that each applicant for such permit have on file ... a certificate of insurance ... of workers' compensation insurance ... 

Marin County claimed this statutory command was directory, not mandatory, in nature because it did not provide any consequence if a contractor, like Cahoon, did not have insurance.

The Marin court agreed with the County's reasoning that the directory or mandatory designation does not refer to whether a particular statutory requirement is "permissible" or "obligatory", but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of abrogation of the governmental action upon which the procedural requirement relates.17 Although the Marin court acknowledged the interpretive dichotomy of mandatory/permissive and mandatory/directory, it rejected its application to the facts of the case before it and held that the County was at fault for failing to comply with the statutory command to require proof of insurance.

There are a number of problems with the Illinois court's reliance on Marin. First, it is very doubtful that members of the Illinois General Assembly were reading California jurisprudence as to how the statutes they enact should be interpreted at the time the admonition statute was drafted.

Second, Marin had nothing to do admonishing criminal defendants in Illinois trial courts or California tribunals. In addition, as Justice Freeman observed in his concurring opinion in Del Villar, the majority opinion's two-part test for determining when a statute is mandatory or directory is confusing to say the least.

The distinction between what constitutes a mandatory duty of a government actor as opposed to what constitutes the directory or mandatory legal doctrine in statutory interpretation seems not only clumsy, but more of a means to ascertain what is perceived as to be an acceptable legislative intent. The Del Villarcourt interpreted the legislature's failure to provide an express statutory consequence for noncompliance as a signal that the legislature believed the duty to be only directory, not mandatory, and that no particular consequence should therefore attach.18 The court also determined that no violation of a defendant's due process rights would result from the failure to give the admonishment in every case because some
defendants might still choose to plead guilty.19 Thus, no consequence should attach in any case. This is an extremely high bar and ignores the fact that at least some defendants' due process rights will be trampled.

Ultimately, the Illinois legislature disagreed with the Del Vi!larcourt as to the proper result and amended the statute as set forth above to clarify the appropriate consequence for failure to provide the judicial admonition.

Not the Same as the Lawyer's Duty

The court's duty to admonish a defendant regarding possible immigration consequences should not be confused with an attorney's independent constitutional obligation to render effective assistance of counsel to his/her client.20 The latter emanates from the defendant's right to the effective assistance of counsel inherent in the Sixth Amendment of the United States Constitution which requires an attorney to properly advise a client of the immigration consequences of entering a guilty plea. The debate about whether an attorney misadvising or omitting to instruct a client about the immigration consequences of his guilty plea had split various lower courts based on the view this conduct was collateral to the conviction subsequently entered on the plea.21 In short, many courts took the view that the conduct of the lawyer in advising the client was outside the sentencing authority of the state trial court and, therefore, the misadvise was immaterial. In Padilla v. Kentucky, the Supreme Court held that the failure to advise or the attorney's provision of affirmative misadvise regarding the immigration consequences relating to the guilty plea is, on its face, a violation of the Sixth Amendment right to effective assistance of counsel. As Justice Stevens stated:

It is our responsibility under the Constitution to ensure that no criminal defendant - whether citizen or not­is left to the "mercies of incompetent counsel." Richardson, 397 U.S. at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our long standing sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.22

The U.S. Supreme Court recently reaffirmed this holding in Jae Lee v. United States.23 Lee immigrated to the United States at age 13 in 1982. He was a lawful permanent resident. He never became a United States citizen. He was a successful restauranteur. Also, he allegedly sold illegal drugs. He was indicted for possessing contraband with intent to distribute. The government apparently had a formidable case.

Lee's criminal defense lawyer told him going to trial was very risky and if he pleaded guilty he would get a lighter sentence. Probably, this advice was accurate. Also, his attorney told Lee he would not be deported if he pleaded guilty. Lee accepted the plea agreement based on that guidance. He had no real defense to the indictment. The reason he did so was for a lighter sentence. He did not know that his agreement would result in mandatory deportation.

At his plea colloquy when the federal magistrate warned him that "a conviction could result in your being deported, and would that affect his decision to plead guilty, Lee's response was "yes". Persuaded by his lawyer he pied guilty anyway.

Thereafter, Lee sought to vacate his conviction on the basis that in accepting the plea his criminal defense counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment. The record showed Lee's attorney was errant in his advice. His lawyer admitted that truth at an evidentiary hearing.

In Strickland v. Washington,24 the Supreme Court held that to obtain relief because of ineffective counsel a criminal defendant must establish two propositions. First, that his/her attorney's performance fell below an objective standard of reasonableness. Next, that the attorney's inferior conduct created a reasonable probability that if the attorney had performed adequately, the consequence of the criminal proceeding would have been different. As to the latter, the touchstone is whether that inadequate performance resulted in prejudice.

The government conceded in Lee that his trial counsel's performance was deficient. A federal magistrate concluded Lee's plea should be set aside and his conviction vacated since Lee had received ineffective assistance of counsel. The government argued no prejudice could result because Lee's guilt was obvious: and concomitantly, no one would have decided to plead otherwise.

The district court disagreed, as did the Sixth Circuit Court of Appeals.25 Both concluded the evidence of Lee's guilt was compelling and he would have "almost certainly" been found guilty and received a longer sentence. Accordingly, Lee could not show he was prejudiced. The United States Supreme Court reversed.

The court observed Lee knew his ability to obtain an acquittal was remote and that his attorney's conduct had nothing to do with that. Notwithstanding, the court observed that his plea was based on the very fabric of the consequences of pleading guilty-namely, he would be deported. In short, the Supreme Court held that if Lee knew he would be deported by pleading guilty he would have gone to trial. The court concluded Lee demonstrated a reasonable probability that absent his counsel's errors he would not have pleaded guilty; and, that prejudice, the risk of deportation, was paramount in his guilty plea. The risk of deportation was an actual impairment.

Lee confirms the virtue of P.A. 101-0409 as to government actors. Developing legal rules through case-by­case application of those rules to specific facts is an important tool in our legal system. However, where we can achieve the identical corollary through legislation that achieves the same aim, that should be our goal. The responsibility for informing a criminal defendant of the consequences of a guilty plea should be a governmental function, not one based on what might be the "best" deal a criminal defense attorney thinks might be the preferable alternative to affect a client's liberty interest, where the client's plea culminates in certain deportation. Thankfully, we have now achieved that goal with P.A. 101-0409.
Foremost, a guilty plea is a contract with the accused and the prosecutor. Each should not only know, but promote, what that pact includes and what will be the aftermath of the deal they make, including deportation which, in the final rendition, becomes the judgment of the court.

The tension between making the best plea deal for a client that keeps him or her out of jail, but may have consequences with respect to deportation, is unmistakable. In our state criminal courts, the conflux of liberty interests and immigration consequences with respect to guilty pleas has never been more apparent than today. A heightened focus on immigration enforcement by federal and state regulators adds to this provoking brew. But let there be no mistake; criminal defendants, immigrant or citizen, have a Sixth Amendment right to the effective assistance of counsel.

Conclusion

Public Act 101-0409 clarifies that judicial admonition of all defendants, not just immigrants, in Illinois state courts regarding potential immigration consequences is mandatory, not optional. And, if it does not occur, the judicial and executive branches of our government run the risk the criminal prosecution in which a guilty plea occurs will be a nullity. The law now provides a consequence. "Shall" no longer denotes "may" or some subjective connotation. The General Assembly has now foreclosed a different interpretation. Most importantly, this law is not about a lawyer misadvising a client. It is about governmental actors making certain the accused knows the imm·1gration consequences of what his or her contract with the government entails. The best deal for a criminal defendant, regardless of what a lawyer thought was preferable, will now be one that the defendant understands and accepts. 

Patrick Kinnally concentrates on general and commercial litigation, immigration and citizenship, and administrative, environmental, and local government law. Pat, a current member and past Chair of the International and Immigration Law Section Council can be reached at Kinnally Flaherty Krentz Loran Hodge & Masur PC by phone at (630) 907-0909 or by email to pkinnally@kfkllaw.com.

Patrick M. Kinnally
Kinnally Flaherty Krentz Loran Hodge & Masur PC
27 74 Deerpath Road
Aurora, IL 60506-7945
Pkinna/ly@kfkllaw.com
Cindy Galway Buys is the Interim Dean and a Professor of Law at the Southern Illinois University (SIU) School of Law, where she teaches a variety of International and Immigration Law-related courses. In 2008, Dean Buys was a Fulbright Senior Specialist in Vilnius, Lithuania. In 20 7 5, she was a Visiting Professor at Bangor University in Wales.
Dean Buys is a member and past chair of the International and Immigration Law Section Council of the
/SBA, as well as being the Vice-Chair of the Women and the Law Committee of the !SBA. Dean Buys also has held leadership positions in the American Association of Law Schools, the American Bar Association, and the American Society of International Law. She is a member of the Illinois Advisory Commission to the U.S. Commission on Civil Rights. She also has served as a panelist for Chapter 7 9 disputes under NAFTA.

Prior to joining the SIU School of Law faculty in 2001, Dean Buys spent ten years in public and private practice in Washington, D. C Dean Buys has published a wide range of book chapters and articles on immigration and refugee law, U.S. foreign relations law, U.S. constitutional law, treaty law, international arbitration, economic sanctions, and other topics.

Dean Buys earned a B.A. in Political Science from the State University of New York at Albany in 1987; aj.D. and an M.A. in International Relations from Syracuse University in 1997; and an LLM in International Law from Georgetown University Law Center in 1999.

Cindy Buys, Professor
Southern Illinois University, School of Law
7 7 50 Douglas Drive, Mai/code 6804
Carbondale, Illinois 62907

1. Brady v. United States, 397 U.S. 742, 748 (1970).
2. 725 ILCS 5/113-8.
3. Id
4. P.A. 101-0409.
5. P.A. 93-373.
6. 725 ILCS 5/113-8 (emphasis added).
7. Moran and Kinnally, Aliens, Guilty Pleas and the Risk of Deportation: Time for Legislative Action, 89 111. Bar Journal 194-198(2001⯑
8. See, e.g., People v. Thornton, 363 I/I.App.3d 481 (2d Dist. 2006).
9. See, People v. Bilelgene, 381 III.App.3d 292(2008).
10i People v. Del Villa!⯑ 383 III.App.3d 80 (2008).
11ty People v. Leon, 387 !II.App.3d 1O35(2d Dist. 2009) [hereinafter Leon].
12i Id.
13. See People v. Reed, 177 lll.2d 389 (1997); People v. Youngbey, 82 lll.2d 556 (1980).
14ty People v. Del Villa,⯑ 235 Ill. 2d. 507(2009) [hereinafter Del Villaf'i,.
15ty Morris v. County of Marin, 559 P.2d 606 (Cal. 3d 1977) [hereinafter Marin},
16i Id. at 610.
17ty Id. at 611.
18ty Del Villar, 235 II1.2d at 515.
19ty Id. at 518.
20ty People v. Huante, 14311/. 2d 61 (1991) [hereinafter Huante]; Padilla v. Kentucky, 730 5.Ct. 1473, 1481
(2010).
21i Huante, supra note 20.
22ty Padilla, 130 S. Ct. at 1486.
23ty lee v. United States, 137 S. Ct. 1958(2017).
24ty Strickland v. Washington, 466 U.S. 668(1984).
25ty lee v. United States, 825 F.3d 311 (6th Circ. 2016).