Opinion
No. 1-11-3309
09-05-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PLACIDO ULTRERAS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 003000322
Honorable
Alfred L. Levinson,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices McBride and Taylor concurred in the judgment.
ORDER
¶ 1 Held: Denial of defendant's section 2-1401 petition affirmed. ¶ 2 Defendant Placido Ultreras appeals from the denial of his "petition/motion to withdraw guilty plea and vacate conviction" pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). He contends that the circuit court erred in basing its ruling on whether the judgment was void or voidable or whether defendant exercised due diligence in bringing the petition where the parties revested the circuit court with jurisdiction, thereby rendering these issues moot and leaving the merits of his claim as the only issue. ¶ 3 The record shows that on March 2, 2000, defendant pleaded guilty to domestic battery in exchange for the State's sentencing recommendation of one-year of reporting conditional discharge. Defendant was also ordered to undergo an alcohol evaluation and complete domestic violence counseling, and by agreement, an order of protection was entered for the victim. The court then admonished defendant of his rights to withdraw his plea and to appeal, and defendant indicated that he understood them. Defendant, however, did not file a post-plea motion or attempt to perfect an appeal from the judgment entered on his plea. ¶ 4 On June 1, 2011, eleven years after his plea was entered, defendant, through private counsel, filed the petition/motion at bar, alleging that his plea was not knowing, voluntary or intelligent due to the ineffective assistance of counsel that prejudiced him. He maintained that counsel misinformed him that because his case was a misdemeanor, his plea would not have any immigration consequences. ¶ 5 Defendant further alleged that the circuit court had jurisdiction over this matter pursuant to section 2-1401 of the Code, and/or because the judgment was void. He claimed that pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), counsel rendered ineffective assistance of counsel that violated his due process and sixth amendment rights. He maintained that if counsel had informed him of the deportation consequences of his plea, he would not have pleaded guilty especially since the victim did not appear in court on the day of the plea thus demonstrating a reluctance to appear as a witness in this case. He also claimed that he was not made aware of the immigration consequences "until more than two years after the entry of the judgment in the case" when federal immigration officials sought his deportation. ¶ 6 Defendant attached to his petition a copy of the notice to appear from the U.S. Department of Homeland Security for deportation proceedings against him. The notice is dated March 2, 2010. ¶ 7 Defendant also filed his own affidavit in which he averred that his counsel told him that he would not be deported based on his misdemeanor conviction. He further averred that the victim told him that she would not cooperate with any prosecution against him, and that he pleaded guilty only because he did not want to keep coming back to court. If he had known he would have been deported for pleading guilty, he would not have pleaded guilty. He further averred that he applied for citizenship and was denied due to the conviction in this case, and that deportation proceedings were then initiated against him. ¶ 8 The State responded that the circuit court lacked jurisdiction to hear the petition where judgment was entered in this case in March 2000. The State also asserted that the plea judgment was voidable, as opposed to void, because the court had jurisdiction over him when it entered that judgment. The State further asserted that "should this court find it has jurisdiction," counsel was not ineffective and complied with prevailing professional norms when in 2000 the law did not require defense attorneys to advise defendants of the collateral consequences of a guilty plea, and that defendant cannot thus meet the prejudice prong of the Strickland test. ¶ 9 Thereafter, on July 13, 2011, the State filed a motion to dismiss defendant's petition. In this motion, the State again asserted that the trial court lacked jurisdiction over defendant's petition because more than two years had elapsed since the entry of the judgment, and the judgment was not void. Argument was presented on the State's motion on September 13, 2011. At its conclusion, the court continued the case to allow counsel time to contact the attorney who represented defendant at the guilty plea proceeding. ¶ 10 On October 12, 2011, counsel filed an affidavit from the attorney, who represented defendant at the guilty plea proceeding, averring that he had no independent recollection concerning any immigration issues that were discussed with defendant prior to the plea and no notes regarding any conversations that he might have had with defendant. The court then found that defendant's own affidavit was a self-serving statement that his attorney had informed him that he would not have any immigration consequences for pleading guilty, that the issues of deportation did not come up in 2000 when defendant pleaded guilty, that Padilla was not retroactive, and thus, his attorney did nothing wrong. The court also found that defendant did not show any due diligence in filing his petition, the judgment was merely voidable, and defendant's only relief was to have filed a direct appeal which he did not do. ¶ 11 The court then entered a written order denying defendant's petition and documenting its findings that the judgment on the plea of guilty was merely voidable, and that defendant had failed to show due diligence in seeking section 2-1401 relief. The court further noted that Padilla was not retroactive, and that defendant failed to show that his attorney misadvised him as to the immigration consequences of his guilty plea. Defendant appealed. ¶ 12 In this court, defendant maintains that the circuit court erred in denying his petition based on whether the judgment was void or voidable or whether he exercised due diligence in bringing the petition since the parties revested the circuit court with jurisdiction and the only question was the merits of his claim. The State responds that the denial was proper where the petition was untimely, and defendant failed to provide an adequate basis to excuse that error. ¶ 13 The purpose of a section 2-1401 petition is to bring facts to the attention of the circuit court which, if known at the time of judgment, would have precluded its entry. People v. Haynes, 192 Ill. 2d 437, 463 (2000). To obtain relief, defendant must file a petition no later than two years after the entry of the order of judgment (735 ILCS 5/2-1401 (West 2008)), and set forth a meritorious defense or claim, due diligence in presenting that defense or claim to the circuit court, and due diligence in filing the petition (People v. Glowaki, 404 Ill. App. 3d 169, 171 (2010)). Absent an evidentiary hearing on a petition, we review the dismissal of a section 2-1401 petition de novo (People v. Vincent, 226 Ill. 2d 1, 14-15 (2007)), and may affirm the dismissal on any basis supported by the record, regardless of the reasoning or the grounds relied upon by the circuit court (People v. Harvey, 379 Ill. App. 3d 518, 521 (2008)). ¶ 14 In this case, defendant entered his plea on March 2, 2000, and made no attempt to challenge it in any way until he filed the section 2-1401 petition at bar more than nine years after the two-year limitations period expired. 735 ILCS 5/2-1401(c) (West 2010). Although section 2-1401 provides for an exception to the time limitation for legal disability, or duress or if the ground for relief is fraudulently concealed (735 ILCS 5/2-1401(c) (West 2010)), defendant did not set forth any of these exceptions in his petition. Instead, defendant asserted that his plea was involuntary, and thus void and exempt from the time limitations and pleading requirement of section 2-1401(f), citing Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002). In this court, he claims that the issues involving timeliness and due diligence were met because the parties revested the court with jurisdiction and only the merits of the claim should be addressed. ¶ 15 The revestment doctrine is a narrow rule under which litigants may revest a trial court with personal and subject matter jurisdiction, after the 30-day period following final judgment, if they actively participate in proceedings that are inconsistent with the merits of the prior judgment. People v. Bannister, 236 Ill. 2d 1, 10 (2009). Participating by arguing against a postplea motion is not inconsistent with the prior judgment and does not function to revest the trial court with jurisdiction. State v. Bailey, 2012 IL App (2d) 110209, ¶33. Here, the State objected on jurisdictional grounds, and the parties did not ignore the judgment, start to retry the case nor imply by their conduct that they consented to having the judgment set aside; rather, the proceedings were adversarial in nature and concerned whether the judgment should be set aside. People v. Miraglia, 323 Ill. App. 3d 199, 206 (2001). Under these circumstances, there was no revestment (Miraglia, 323 Ill. App. 3d at 206), and defendant failed to provide any reason to excuse the untimely filing of his petition. ¶ 16 As to defendant's substantive claim, defendant maintains on appeal that he received ineffective assistance of counsel when counsel misadvised him that he would not be deported for a misdemeanor offense, and that counsel's conduct prejudiced him as he would not have pleaded guilty had he known that he would be subject to deportation in light of his "defensible case." Defendant cites to Padilla in support of his claim that professional norms required counsel to provide him proper advice regarding immigration consequences of pleading guilty, and maintains that the rule announced in Padilla was long in place prior to when that decision was issued in 2010 and when he pleaded guilty in 2000. ¶ 17 We initially observe that the supreme court has long held that section 2-1401 proceedings are not an appropriate forum for ineffective assistance of counsel claims because they do not challenge the factual basis for the judgment in criminal cases. People v. Pinkonsly, 207 Ill. 2d 555, 567 (2003). Moreover, Padilla was decided on March 31, 2010, and defendant entered his plea 10 years before that. In Padilla, trial counsel's performance was found deficient where he misinformed defendant of the immigration consequences of pleading guilty. Padilla, 559 U.S. 356. In Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013), the Supreme Court held that its ruling in Padilla was a new rule and nonretroactive, and, therefore, cannot benefit those defendants whose convictions were final before the date of the decision in Padilla. Thus, Chaidez would preclude the application of Padilla in this case. People v. Reatherford, 345 Ill. App. 3d 327, 340 (2003); People v. Calvert, 326 Ill. App. 3d 414, 424 (2001). Accordingly, we conclude that defendant failed to set forth a basis for section 2-1401 relief, and we therefore affirm the order of the circuit court of Cook County denying his petition. ¶ 18 Affirmed.