NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). 2022 IL App (3d) 200512-U Order filed November 29, 2022 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2022 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0512 v. ) Circuit No. 12-CF-939 ) SHIVAN ZEYNALI, ) Honorable ) Daniel L. Kennedy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________ PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices Hettel and Peterson concurred in the judgment. ____________________________________________________________________________ ORDER ¶1 Held: Plea counsel and postplea counsel both failed to exercise due diligence in assisting defendant with his ineffective assistance of counsel claim. ¶2 Defendant, Shivan Zeynali, appeals from the Will County circuit court’s order dismissing defendant’s petition for relief from judgment. Defendant argues, among other things, that both plea counsel and the court failed to inform him of the immigration consequences of his plea, which involved mandatory deportation. We reverse and remand with directions. ¶3 I. BACKGROUND ¶4 On May 3, 2012, the State charged defendant with residential burglary. (720 ILCS 5/19- 3(a) (West 2012)). Defendant entered a plea of guilty on July 26, 2013, in exchange for a sentence of seven years’ imprisonment with a recommendation for admission into the impact incarceration program. Defendant was 20 years old at the time of his plea. ¶5 On August 22, 2013, defendant filed a motion to reconsider sentence which was allowed without objection. Defendant was resentenced, by agreement, to four years’ imprisonment followed by two years’ mandatory supervised release (MSR). ¶6 After defendant’s release from the Department of Corrections (DOC) in December 2014, he was detained by the Immigration and Customs Enforcement (ICE) agency, as a conviction for residential burglary subjected defendant to deportation. See 8 U.S.C. § 1227(2)(A)(iii) (2012) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); id. § 1101(a)(43)(G) (“The term ‘aggravated felony’ means *** a burglary offense for which the term of imprisonment [is] at least one year.”). ¶7 On January 14, 2015, plea counsel filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). The petition sought to vacate defendant’s guilty plea because defendant was not advised that he would be deported for a conviction for residential burglary. The petition stated that defendant escaped his birth country of Iraq at the age of five, had no family in Iraq, and no ties to Iraq. Defendant stated he would not have pled guilty had he been aware of the immigration consequences. Multiple attempts were made to have the petition heard but defendant’s appearance was unable to be secured due to his federal detention. The petition was stricken from the court’s docket without prejudice. 2 ¶8 New postplea counsel for defendant reinstated the petition in October 2020 …
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