THIRD DIVISION March 26, 2008
No. 1-07-0773
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from ) the Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 95 CR 12396 ) KRISHNAKUMAR RAJAGOPAL, ) Honorable ) Kevin M. Sheehan, Defendant-Appellant. ) Judge Presiding.
JUSTICE THEIS delivered the opinion of the court:
Pursuant to a guilty plea, defendant Krishnakumar Rajagopal was convicted in
1996 of felony theft. In 2004, he filed a petition for postconviction relief, in which he
alleged, inter alia, that his guilty plea was involuntary and that his trial counsel was
ineffective for failing to advise him that he would be deported as a result of his felony
conviction. The circuit court dismissed his petition on the merits, finding that the advice
given by trial counsel was adequate and defendant’s plea was voluntary. For the
following reasons, we affirm.
Defendant was charged with one count of felony theft (720 ILCS 5/16-1(a)(2)(A)
(West 2004)) and one count of deceptive practices (720 ILCS 5/17-1(B)(d) (West 2004))
arising out of an incident in which he stole the victim’s wallet, drafted and deposited a 1-07-0773
check drawn on the victim’s bank account, and made purchases with a credit card opened
in the victim’s name. After a Rule 402 conference (177 Ill. 2d R. 402(d)), defendant pled
guilty to theft and the State agreed not to prosecute him on the charge of deceptive
practices.
At sentencing, defendant was admonished by the court that “we make no
promises or representations concerning what immigration may or may not do” with
respect to defendant’s status as a noncitizen.1 The court also informed defendant that “I
don’t know what immigration will do with this case if it comes to their attention.”
Nevertheless, defendant confirmed that he wanted to proceed with the plea agreement
and the court sentenced him to 30 months’ probation and 15 days in the Sheriff’s
Community Work Program and ordered him to pay restitution. Defendant was also
advised that he had 30 days to file a motion to withdraw his guilty plea, but he did not do
so. Defendant’s probation was terminated successfully on August 13, 1996.
In October 2004, eight years after completing his sentence and eight months after
learning that the Department of Homeland Security (DHS) might deny his application for
permanent residency, defendant filed a petition for postconviction relief pursuant to
section 122-1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (West
2004)). In it, defendant alleged that his trial counsel was ineffective for “affirmatively
1 As of January 1, 2004, courts are required by statute to deliver the following admonishment to all defendants before accepting their guilty pleas: “ ‘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 consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.’ ” 725 ILCS 5/113-8 (West 2004).
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misadvis[ing defendant] of the immigration consequences” of pleading guilty to felony
theft and that his plea was therefore involuntary. Moreover, he alleged that he was
“misled by manifestly erroneous information *** received by way of the Court’s
admonishments.” (Emphasis in original.) As a result, he became excludable and
inadmissible as a permanent resident of the United States and was now subject to
deportation. Had he been properly advised of the effect of his felony conviction,
defendant claimed, he would have insisted on being tried and he would have prevailed
because the police violated the Vienna Convention by not informing the Indian consulate
of his arrest and because his inculpatory statements were coerced and would have been
suppressed.
Defendant attached two affidavits to his petition. In his affidavit, defendant
averred that his trial counsel reiterated the court’s allegedly erroneous admonishments
about the uncertain effect of his guilty plea on his immigration status, but nonetheless
advised him to accept the plea agreement. He was told by counsel that “it was not known
what the immigration authorities would or would not do to my immigration status
because of my plea.” Consequently, defendant believed that “the immigration authorities
may not do anything to affect my immigration status *** if I pled guilty to the felony
theft charge.” At the time defendant was interviewed by DHS in 2003 regarding his
pending application for citizenship, immigration officials were unaware of his felony
conviction and only learned of it through defendant’s disclosure during that interview.
In the second affidavit, defendant’s trial counsel acknowledged that he was aware
of defendant’s citizenship status and desire to become a permanent resident. He stated
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that he advised defendant that it was uncertain what the immigration authorities would do
if they learned of his conviction. He did not advise defendant that if he was convicted of
theft, he would be excluded from becoming a permanent resident, but “I now know that
this was an incorrect statement of the applicable law and that [defendant] was, *** and
still remains, excludable, or inadmissible to the United States as a permanent resident”
because of the conviction that resulted from his guilty plea. Counsel also, “in effect,
erroneously advised [defendant] that this conviction alone would not in itself determine
his immigration status.”
In response, the State moved to dismiss the petition, arguing that it was untimely
and that, on the merits, trial counsel’s representation was not objectively unreasonable.
During the hearing, the court sua sponte raised the issue of defendant’s standing to
pursue relief under the Act in light of the fact that he was no longer “incarcerated in the
penitentiary” as contemplated by the Act. However, the court ultimately dismissed the
petition on the merits, finding that trial counsel’s representation was not inadequate. The
court did not explicitly rule on the issues of timeliness or standing. Defendant then filed
this timely appeal.
On appeal, defendant argues that he made a substantial showing that his trial
counsel was ineffective for misstating the law regarding the effect of his plea on his
immigration status. In response, the State reasserts the arguments made below
concerning the timeliness and the merits of the petition. Moreover, the State now asserts
that defendant lacked standing to pursue his remedy under the Act because he was not
“incarcerated in the penitentiary” at the time he filed his petition. Defendant claims that
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the standing argument is forfeited because the State did not raise this issue in its motion
to dismiss the petition. We disagree.
An appellee “ ‘may urge any point in support of the judgment on appeal, even
though not directly ruled on by the trial court, so long as the factual basis for such point
was before the trial court.’ [Citation.]” Beahringer v. Page, 204 Ill. 2d 363, 370, 789
N.E.2d 1216, 1222 (2003). Moreover, it is well settled that we review the judgment of
the trial court, not its reasoning. City of Chicago v. Holland, 206 Ill. 2d 480, 491-92, 795
N.E.2d 240, 247 (2003). Accordingly, we may affirm the judgment below on any basis
supported by the record, even if that basis was rejected by the trial court. People v.
Davis, No. 2-05-1115, slip op. at 4 (January 17, 2008). Thus, the State’s argument was
properly raised here.
As to the issue of standing, the Act provides that “[a]ny person imprisoned in the
penitentiary may institute a proceeding” thereunder to collaterally attack his conviction.
725 ILCS 5/122-1(a) (West 2004). The Act was intended to provide relief to those
defendants whose “liberty is constrained by virtue of a criminal conviction” (People v.
Martin-Trigona, 111 Ill. 2d 295, 301, 489 N.E.2d 1356, 1358 (1986)) and where the
defendants are “ ‘subject to being confined’ [citation]” by the State (People v. Pack, 224
Ill. 2d 144, 150, 862 N.E.2d 938, 942 (2007)). This interpretation of the Act makes it
available not only to those defendants currently incarcerated in a correctional facility or
who were released while their timely filed petitions were pending, but also to those
released on appeal bond, those on mandatory supervised release, and those sentenced to
probation. People v. West, 145 Ill. 2d 517, 519, 584 N.E.2d 124, 125 (1991). In the past,
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when expanding the concept of “imprisoned” under the Act, the supreme court has relied
upon the notion that a defendant’s liberty is constrained when he is “ ‘always on a string,
and [the State] may pull the string whenever [it] please[s].’ [Citation.]” Martin-Trigona,
111 Ill. 2d at 300, 489 N.E.2d at 1358; accord Pack, 224 Ill. 2d at 150-51, 862 N.E.2d at
942-43.
Although the Act is to be liberally construed to afford defendants an opportunity
to assert deprivations of constitutional rights, the Act and its remedies are not available to
defendants who have completed their sentences and merely seek to purge their criminal
records. Pack, 224 Ill. 2d at 150, 862 N.E.2d at 942, citing Martin-Trigona, 111 Ill. 2d at
299, 489 N.E.2d at 1358. Only those defendants “ ‘whose liberty is actually restrained
are entitled to the protection afforded by the Act.’ ” Pack, 224 Ill. 2d at 150, 862 N.E.2d
at 942, quoting Martin-Trigona, 111 Ill. 2d at 299, 489 N.E.2d at 1358.
A defendant’s sentence defines the period during which he is encumbered by his
conviction. Martin-Trigona, 111 Ill. 2d at 301, 489 N.E.2d at 1359. Once his sentence is
completed, that conviction is no longer an encumbrance and defendant is “no longer in
need of the Act’s remedial procedures to secure his liberty.” Martin-Trigona, 111 Ill. 2d
at 301, 489 N.E.2d at 1359. Consequently, the Act is no longer available to him. Martin-
Trigona, 111 Ill. 2d at 301, 489 N.E.2d at 1359. For example, in West, the defendant was
imprisoned in another jurisdiction at the time he filed his petition challenging a prior
conviction that would be used to enhance his sentence. West, 145 Ill. 2d at 519, 584
N.E.2d at 125. However, he was not imprisoned for the crime he sought to challenge
under the Act. His challenge was treated as an attempt to expunge his record to avoid an
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enhanced sentence and he was prohibited from using the Act to achieve that end. West,
145 Ill. 2d at 519, 584 N.E.2d at 125; but see Pack, 224 Ill. 2d at 150, 862 N.E.2d at 942
(recognizing a limited exception to that rule where a defendant challenges one of his
consecutive sentences under the Act while actually serving the other, citing the rationale
of Garlotte v. Fordice, 515 U.S. 39, 132 L. Ed. 2d 36, 115 S. Ct. 1948 (1995)).
The precise question before us is whether the specter of deportation constitutes
“imprisonment” for purposes of filing a postconviction petition. Our supreme court has
not directly addressed that question. The Fourth District Appellate Court, relying on
People v. Huante, 143 Ill. 2d 61, 71, 571 N.E.2d 736, 741 (1991), recently held that
because deportation is a “collateral consequence” of a defendant’s conviction, it is not a
constraint on liberty sufficient to bring it within the Act. People v. Mrugalla, 371 Ill.
App. 3d 544, 547, 868 N.E.2d 303, 306 (2007). Although Huante recognized deportation
as a “collateral consequence” of a conviction, it was in the context of an attorney’s duty
to provide effective assistance. Huante, 143 Ill. 2d at 71, 571 N.E.2d at 741 (recognizing
that an attorney’s failure to inform a defendant of the collateral deportation consequences
of the guilty plea does not mitigate the voluntariness of that plea and thus does not render
the attorney’s representation ineffective).
Nevertheless, the court has defined and distinguished the essence of direct and
collateral consequences of guilty pleas. People v. Williams, 188 Ill. 2d 365, 372-73, 721
N.E.2d 539, 544 (1999). Collateral consequences are “ ‘not related to the length or
nature of the sentence imposed on the basis of the plea.’ [Citation.]” Williams, 188 Ill.
2d at 372, 721 N.E.2d at 544. Moreover, they “generally result[ ] from action taken by
7 1-07-0773
an agency that the trial court does not control. Williams, 188 Ill. 2d at 372, 721 N.E.2d at
544. In particular, “ ‘ “effect on immigration status” ’ ” is a collateral consequence of a
guilty plea. Williams, 188 Ill. 2d at 372, 721 N.E.2d at 544, quoting Cox v. State, 16
Kan. App. 2d 128, 130, 819 P.2d 1241, 1243 (1991), quoting State v. Heitzman, 209 N.J.
Super. 617, 622, 508 A.2d 1161, 1164 (1986). On the other hand, direct consequences
are “limited to the penal consequences of that plea, i.e., the consequences that relate to
the sentence imposed on the basis of [that] plea.” (Emphasis in original.) Williams, 188
Ill. 2d at 373, 721 N.E.2d at 544.
In light of this distinction, possible deportation cannot constitute “imprisonment”
under the Act. Only those defendants whose liberty is actually restrained by their
convictions are “imprisoned” for purposes of the Act, and their sentences define that
period of restraint. Pack, 224 Ill. 2d at 150, 862 N.E.2d at 942; Martin-Trigona, 111 Ill.
2d at 299, 489 N.E.2d at 1358. But collateral consequences are, by definition, unrelated
to the length or nature of the sentence. Williams, 188 Ill. 2d at 372, 721 N.E.2d at 544.
Thus, collateral consequences, imposed by agencies not under the control of the court,
cannot dictate defendants’ sentences or, by extension, the period of imprisonment for
purposes of the utilizing the Act. As a collateral consequence, deportation is not an
actual restraint on liberty to bring it within the definition of “imprisonment” under the
Act.
Additionally, we find cases interpreting federal habeas corpus statutes persuasive.
28 U.S.C. §§2254, 2255 (2000); see Pack, 224 Ill. 2d at 150, 862 N.E.2d at 942
(analogizing the Act and federal habeas statutes). Similar to the Act, section 2255
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permits defendants “in custody,” and also those on probation or otherwise presently
restrained by their convictions, to collaterally attack the judgments against them. Maleng
v. Cook, 490 U.S. 488, 491-92, 104 L. Ed. 2d 540, 544-45, 109 S. Ct. 1923, 1925-26
(1989). However, “once the sentence imposed for a conviction has completely expired,
the collateral consequences of that conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at
492, 104 L. Ed. 2d at 545, 109 S. Ct. at 1926. Like West, Maleng referred to the
possibility of an aggravated sentence as a collateral consequence of a conviction. And,
like Huante, the Seventh Circuit has explicitly stated that in the context of ineffective
assistance of counsel, “the possibility of deportation is a collateral consequence of a
guilty plea.” United States v. Montoya, 891 F.2d 1273, 1293 (7th Cir. 1989) (further
noting that the decision whether to institute deportation proceedings, or not, lies within
the sole discretion of the Attorney General of the United States).
Furthermore, citing the rationale of Maleng, the Fifth Circuit has held that
adverse collateral consequences of a conviction, specifically deportation, do not render
an individual “in custody” as contemplated by section 2255. United States v. Esogbue,
357 F.3d 532, 534 (5th Cir. 2004); cf. Ogunwomoju v. United States, 512 F.3d 69, 74-75
(2d Cir. 2008) (holding that the defendant was not “in custody” under the companion
section 2254 even though he was in DHS custody pending removal proceedings). Thus,
potential deportation as a result of a criminal conviction is a collateral consequence of a
conviction that has been deemed insufficient to bring a defendant under the parallel
federal habeas corpus statutory scheme.
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Here, defendant’s possible deportation, and to a greater extent his being
“excludable and ineligible” to become a permanent resident, are collateral consequences
of his conviction that do not render him “incarcerated in the penitentiary” as
contemplated by the Act. Thus, he has no standing to challenge his conviction by way of
a postconviction petition. Defendant successfully completed his probation in August
1996. More than eight years later, after learning that his felony conviction made him
ineligible for citizenship and subject to deportation, he attempted to challenge that
conviction under the Act. However, he cannot now seek to avoid deportation or any
other collateral consequence of his felony conviction by invoking the Act. See Mrugalla,
371 Ill. App. 3d at 547, 868 N.E.2d at 306. The constraints on his liberty owing to his
criminal conviction expired with the successful completion of his sentence and he is no
longer eligible to seek relief under the Act.
Defendant urges us to view this case in light of People v. Sak, 186 Ill. App. 3d
816, 542 N.E.2d 1155 (1989), in which we held that the defendant, threatened with
deportation as a result of his conviction, “was not precluded by the phrase ‘imprisoned in
a penitentiary’ from petitioning” under the Act, notwithstanding the fact that he had
completed his probation. However, our subsequent opinion in People v. Farias, 187 Ill.
App. 3d 879, 543 N.E.2d 886 (1989), rejected such an expansion of the Act. Rather,
Farias explicitly adopted the narrow interpretation prescribed by Martin-Trigona, which
“conclusively establishe[d] that a defendant must actually be deprived of his liberty as a
result of serving, as opposed to having served, a sentence of *** probation.” Farias, 187
Ill. App. 3d at 884, 543 N.E.2d at 889. Curiously, Sak did not address Martin-Trigona,
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which we find authoritative on this issue. Therefore, we decline to follow the holding in
Sak. Despite the directive to liberally construe the Act, its remedies are decidedly not
available to defendants who have completed their sentences.
For the foregoing reasons, we affirm the judgment of the circuit court dismissing
defendant’s postconviction petition. Having found that defendant had no standing under
the Act, we need not address the merits of the petition or whether it was timely filed.
Affirmed.
QUINN, P.J., and CUNNINGHAM, J., concur.
11 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ____________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
KRISHNAKUMAR RAJAGOPAL,
Defendant-Appellant. ____________________________________________________________
Appellate Court of Illinois First District, Third Division
Filed: March 26, 2008 ____________________________________________________________
JUSTICE THEIS delivered the opinion of the court.
Quinn, P.J., and Cunningham, J., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable Kevin M. Sheehan, Judge Presiding _________________________________________________________________
For DEFENDANT- William R. Quinlan APPELLANT Nicholas G. Grapsas Quinlan & Carroll, Ltd. 30 N. LaSalle St. Suite 2900 Chicago, IL 60602
For PLAINTIFF- Richard A. Devine, State’s Attorney APPELLEE James E. Fitzgerald, Assistant State’s Attorney Mary P. Needham, Assistant State’s Attorney William C. Swallow, Assistant State’s Attorney 300 Richard J. Daley Center Chicago, IL 60602