                          NO. 4-06-0555       Filed 2/20/07

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
KLAUS MRUGALLA,                        )    No. 99CF1469
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Thomas J. Difanis,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          In January 2000, defendant, Klaus Mrugalla, pleaded

guilty to unlawful possession with intent to deliver between 30

and 500 grams of cannabis (720 ILCS 550/5(d) (West 1998)), and

the trial court sentenced defendant to 24 months' probation.    In

May 2001, defendant successfully completed the conditions of his

probation and was discharged early.

          In November 2005, defendant was detained by the Depart-

ment of Homeland Security pending deportation proceedings.    In

January 2006, an immigration judge ordered defendant be deported.

          In May 2006, five years after his discharge from

probation, defendant filed a petition for postconviction relief

seeking to vacate the drug conviction, alleging (1) he received

ineffective assistance of counsel, (2) his guilty plea was not

intelligent and voluntary, and (3) he was denied due process.      In

May 2006, the trial court dismissed the petition as patently
without merit because defendant had served his sentence and was

not imprisoned as a result of the conviction.    In June 2006,

defendant filed a motion to reconsider, arguing he need not have

been imprisoned or be currently serving his sentence to be

eligible for postconviction relief.    In June 2006, the court

denied the motion to reconsider.    This appeal followed.   In July

2006, this court granted defendant's motion for accelerated

docket.

          On appeal, defendant argues the trial court erred in

dismissing his postconviction petition because he need not (1)

have been imprisoned or (2) currently be serving his sentence to

file a postconviction petition.    The State concedes defendant's

first point.   Because we disagree with defendant on the second

point, we affirm.

          The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1

through 122-8 (West 2004)) provides a proceeding may be insti-

tuted by any person "imprisoned in the penitentiary."    725 ILCS

5/122-1(a) (West 2004).   The Act is available "to all persons

whose liberty is constrained by virtue of a criminal conviction."

People v. Martin-Trigona, 111 Ill. 2d 295, 301, 489 N.E.2d 1356,

1359 (1986).   Defendant's criminal sentence defines the period he

is fettered by his conviction and upon completion of his sen-

tence, "he is no longer in need of the Act's remedial procedures

to secure his liberty."   Martin-Trigona, 111 Ill. 2d at 301, 489


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N.E.2d at 1359.   The Act is not available to "persons who had

served their sentences and who might wish to purge their records

of past convictions."   People v. Dale, 406 Ill. 238, 246, 92

N.E.2d 761, 766 (1950), abrogated on other grounds by People v.

Warr, 54 Ill. 2d 487, 491-92, 298 N.E.2d 164, 166-67 (1973).

          Defendant urges us to follow People v. Sak, 186 Ill.

App. 3d 816, 542 N.E.2d 1155 (1989), which held that the defen-

dant, an illegal alien facing deportation, was not precluded by

the phrase "imprisoned in the penitentiary" from seeking

postconviction relief even though he had completed his term of

probation prior to filing his petition.   Sak, 186 Ill. App. 3d at

819-20, 542 N.E.2d at 1157-58; see 725 ILCS 5/122-1 (West 2004).

          Defendant contends the statute can be interpreted to

cover those who have completed their sentence but still have the

threat of a serious deprivation of liberty.   Defendant argues he

is currently suffering from a deprivation of liberty, namely

detention and deportation, as a direct result of his prior

conviction.   The State argues defendant does not have standing to

file a postconviction petition because he does not fit within the

definition of "imprisoned in the penitentiary."   We agree with

the State.

          After the briefs were filed in this case but shortly

before oral arguments, the Supreme Court of Illinois released its

opinion in People v. Pack, No. 102253 (January 19, 2007), __ Ill.


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2d ___, ___ N.E.2d ___.   In Pack, the defendant received consecu-

tive sentences on two unrelated convictions.       Pack, slip op. at

2, __ Ill. 2d at ___, ___ N.E.2d at ___.      The defendant sought to

challenge his first conviction even though he had served his

sentence for that offense and was currently serving the second of

his consecutive sentences.    Pack, slip op. at 2, __ Ill. 2d at

___, ___ N.E.2d at ___.   The supreme court held "a prisoner

serving consecutive sentences is 'imprisoned' under any one of

them for purposes of [the Act]" and allowed defendant to proceed

with his postconviction petition.       Pack, slip op. at 7, __ Ill.

2d at ___, ___ N.E.2d at ___.    The court stressed the defendant's

liberty interest is the deciding factor to determining who is

"imprisoned" under the Act.     Pack, slip op. at 5, 8, ___ Ill. 2d

at ___, ___, ___ N.E.2d at ___, ___.

          While instructive, Pack is distinguishable because

defendant is not serving consecutive prison sentences imposed by

the State of Illinois.    The supreme court's opinion in People v.

West, 145 Ill. 2d 517, 584 N.E.2d 124 (1991), is analogous to

defendant's case.   In West, the defendant was convicted of

voluntary manslaughter in Illinois and served his sentence for

that offense.   West, 145 Ill. 2d at 518, 584 N.E.2d at 124.

Subsequently, the Illinois conviction was used as an aggravating

factor in sentencing defendant to death in Arizona for murder.

West, 145 Ill. 2d at 518, 584 N.E.2d at 124.      The defendant


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sought to attack his Illinois conviction pursuant to the Act to

undermine the sentencing procedure in Arizona.     West, 145 Ill. 2d

at 518, 584 N.E.2d at 124.    The supreme court held because the

defendant had served his sentence and mandatory-supervised-

release period when he filed for postconviction relief, he was

not "imprisoned in the penitentiary" as required by the Act and

did not fit within the judicially defined scope of the term

"imprisonment."   West, 145 Ill. 2d at 519, 584 N.E.2d at 125.

The court found defendant's incarceration in Arizona was not

imprisonment within the meaning of the language in the Act

because the person must be in prison for the offense he is

purporting to challenge.     West, 145 Ill. 2d at 519, 584 N.E.2d at

125; accord People v. Tostado, 362 Ill. App. 3d 949, 951-52, 841

N.E.2d 980, 982-83 (2005) (Fifth District) (proper to dismiss the

defendant's postconviction petition alleging counsel misinformed

or failed to inform him on the effect the convictions would have

on his immigration status, resulting in deportation, because the

petition was filed after the defendant completed probation);

People v. Farias, 187 Ill. App. 3d 879, 884-85, 543 N.E.2d 886,

889-90 (1989) (First District) (proper to dismiss the defendant's

postconviction petition alleging counsel failed to advise her of

the effect the conviction would have on her immigration status

because the petition was filed after the defendant completed her

sentence of probation); People v. Thurman, 334 Ill. App. 3d 286,


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288-89, 777 N.E.2d 971, 972-73 (2002) (Third District)

(postconviction relief not available when the underlying sentence

has already been fully served); People v. Collins, 161 Ill. App.

3d 285, 288, 514 N.E.2d 499, 501 (1987) (Fourth District)

(postconviction relief not available "to those whose sentence is

completed at the time they file their post[]conviction peti-

tion").

          Contrary to defendant's assertion, his liberty is not

currently being restrained by his Illinois conviction, the

offense he is purporting to challenge.   See West, 145 Ill. 2d at

519, 584 N.E.2d at 125.   Instead, defendant's detention and

deportation are the result of an adverse ruling in a federal

deportation proceeding.   Defendant's liberty is being curtailed

by the federal government, not by the State of Illinois.    Even if

the federal government instituted the deportation proceedings

based solely on defendant's Illinois conviction, as defendant

alleges, this does not transform the alleged deprivation of

liberty effected by the federal government into a deprivation

effected by the State of Illinois.

          Persons convicted of a felony face a myriad of collat-

eral consequences as a result of their conviction, such as loss

of the rights to vote and travel abroad freely and loss of civil

service employment.   People v. Haunte, 143 Ill. 2d 61, 71, 571

N.E.2d 736, 741 (1991).   Any effect defendant's Illinois criminal


                               - 6 -
conviction may have had on his immigration status is a collateral

effect and is just one of the innumerable residual effects

accompanying all felony convictions.     See Haunte, 143 Ill. 2d at

71, 571 N.E.2d at 741.    However, the supreme court has made it

clear the Act is not available to "persons who had served their

sentences and who might wish to purge their records of past

convictions."    Dale, 406 Ill. at 246, 92 N.E.2d at 766.   Like the

defendant in West, any deprivation of liberty defendant is

suffering is the result of proceedings in another jurisdiction

and his liberty is not currently being restrained by his Illinois

conviction.

            Defendant may not bring his petition for postconviction

relief because he did not file it while he was "imprisoned in the

penitentiary" as is required by the Act.    The trial court's

dismissal of the petition was proper.

            In addition, defendant's postconviction petition fails

to sufficiently allege he received ineffective assistance of

counsel.    To establish a claim of ineffective assistance of

counsel, defendant must prove (1) counsel's assistance was

deficient under prevailing professional norms and (2) the defi-

ciency prejudiced the defense.     Strickland v. Washington, 466

U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064

(1984).    Defendant alleged in his petition that his attorney

incorrectly informed him that the plea would not adversely affect


                                 - 7 -
his immigration status and that had he known the plea would

result in deportation, he would not have pleaded guilty.

            To establish prejudice, defendant must show a reason-

able probability existed that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to

trial.   People v. Rissley, 206 Ill. 2d 403, 457, 795 N.E.2d 174,

204 (2003).    Whether the error causing defendant to plead guilty

rather than to go to trial was prejudicial largely depends on

whether defendant likely would have succeeded at trial.    People

v. Pugh, 157 Ill. 2d 1, 15, 623 N.E.2d 255, 262 (1993).

            In this case, the record refutes the existence of any

plausible defense.    The record consistently states defendant

received in the mail, and that the officers seized, 168 grams of

marijuana, well over the 30 grams required for the offense.      The

officers seized various items from defendant's home showing

defendant's intent to deliver, including plastic bags, scales,

and guns.    The record indicates it is not likely that defendant

would have succeeded at trial.    As such, defendant faced the same

immigration consequences whether he pleaded guilty or went to

trial.   Because defendant's petition fails to allege facts

sufficient to show he was prejudiced by his trial counsel's

alleged deficient representation, he has failed to establish he

received ineffective assistance of counsel.

            For the reasons stated, we affirm the trial court's


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judgment.    As part of our judgment, we grant the State's request

that defendant be assessed $75 as costs of this appeal.

            Affirmed.

            APPLETON and TURNER, JJ., concur.




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