                                                                          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).

                                              2
1-07-0773

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

                                             3
1-07-0773

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

                                              4
1-07-0773

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,

                                              5
1-07-0773

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


                                              6
1-07-0773

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
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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


                                              8
1-07-0773

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.


                                              9
1-07-0773

       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,


                                                10
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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.
      ____________________________________________________________

                                    No. 1-07-0773

                             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
