                         Docket No. 102253.


                              IN THE
                      SUPREME COURT
                                 OF
                 THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES
                 L. PACK, Appellant.

                  Opinion filed January 19, 2007.



   JUSTICE BURKE delivered the judgment of the court, with
opinion.
   Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.



                              OPINION

    The Illinois Post-Conviction Hearing Act (Act) (725 ILCS
5/122–1 (West 2004)) requires a petitioner to be “imprisoned in the
penitentiary” before a postconviction petition may be filed. In the
instant case, defendant James L. Pack was serving the second of two
consecutive sentences when he attempted to file a postconviction
petition challenging the conviction which led to his first sentence. The
circuit court of Tazewell County dismissed his petition, finding that he
was not “imprisoned” as is required under section 122–1(a) of the
Act. The appellate court affirmed. No. 3–04–0948 (unpublished order
under Supreme Court Rule 23). We granted defendant’s petition for
leave to appeal. 210 Ill. 2d R. 315. For the reasons that follow, we
reverse the judgment of the appellate court.
                           BACKGROUND
    On April 19, 1991, defendant was sentenced to seven years’
imprisonment for his conviction of aggravated criminal sexual abuse
by a Tazewell County jury in case number 90–CF–116. On November
25, 1991, defendant was sentenced to 60 years’ imprisonment to be
served consecutively to his 7-year sentence after being found guilty of
aggravated criminal sexual assault by a different Tazewell County jury
in case number 90–CF–115. The cases, which were originally
scheduled for jury trials on the same date, were not related, and each
case involved a separate victim. The State stated at oral argument that
it pursued the sexual abuse case before the sexual assault case due to
witness availability. Both convictions and sentences were affirmed by
the appellate court in 1993. People v. Pack, 245 Ill. App. 3d 1113
(1993) (unpublished order under Supreme Court Rule 23) (table);
People v. Pack, 246 Ill. App. 3d 1117 (1993) (unpublished order
under Supreme Court Rule 23) (table).
    On February 20, 2004, defendant filed a postconviction petition
challenging his sexual abuse conviction. Defendant’s petition alleged
that two witnesses had been coerced by the assistant State’s Attorney
to lie at his sexual abuse trial. The State filed a motion to dismiss
defendant’s petition, arguing that defendant had already served the
seven-year sentence for his sexual abuse conviction and therefore was
not “imprisoned in the penitentiary” for that conviction as required by
section 122–1(a). The trial court agreed with the State and granted the
motion to dismiss.
     The appellate court affirmed, stating,
         “[W]e must treat defendant’s sentences individually and not as
         one sentence. The [mandatory supervised release] period for
         aggravated sexual abuse is a two-year period. 720 ILCS
         5/12–16 (West 2004). *** Seven years (with 145 days), plus
         two years from April 19, 1991, had long since run when
         defendant filed the postconviction petition. Defendant was no
         longer imprisoned in the penitentiary on that conviction. Only
         a person imprisoned in the penitentiary may file a
         postconviction petition. *** Since defendant was no longer
         imprisoned in the penitentiary for aggravated criminal sexual
         abuse in 90–CF–116, he is not entitled to postconviction
         relief.”

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   We granted defendant’s petition for leave to appeal. 210 Ill. 2d R.
315.

                               ANALYSIS
    At issue in this case is whether defendant, who was sentenced to
consecutive sentences of 7 and 60 years, respectively, qualifies as
“imprisoned” under section 122–1(a) when, after spending almost 13
years in the penitentiary, he challenged the conviction that resulted in
his 7-year sentence. Our review of the dismissal of a defendant’s
postconviction petition is de novo. People v. Edwards, 197 Ill. 2d 239,
247 (2001).
    We begin by examining section 122–1(a), which provides, in
pertinent part:
             “Any person imprisoned in the penitentiary may institute
         a proceeding under this Article if the person asserts that:
                 (1) in the proceedings which resulted in his or her
             conviction there was a substantial denial of his or her
             rights under the Constitution of the United States or of the
             State of Illinois or both[.]” 725 ILCS 5/122–1(a) (West
             2004).
The fundamental rule of statutory construction is to ascertain and give
effect to the legislature’s intent. People v. Wooddell, 219 Ill. 2d 166,
170 (2006). The best indication of legislative intent is the statutory
language, given its plain and ordinary meaning. Wooddell, 219 Ill. 2d
at 170-71.
    The plain language of the statute appears to support defendant’s
position because he was unquestionably a prisoner of the state at the
time he filed his petition. The State, however, argues that defendant’s
status as a state prisoner is of no moment because, for purposes of
section 122–1(a), he must be imprisoned for the conviction that he is
challenging. According to the State, the long-standing rule in Illinois
is that consecutive sentences must be treated as discrete and
individual. See People v. Wagener, 196 Ill. 2d 269, 286 (2001) (“It is
a settled rule in this state that sentences which run consecutively to
each other are not transmuted thereby into a single sentence”); People
v. Phelps, 211 Ill. 2d 1, 14 (2004) (consecutive sentences treated as
individual sentences for conviction enhancement purposes). The State

                                  -3-
contends that, by 2004, when defendant filed his petition challenging
his sexual abuse conviction, he had already served the 7-year sentence
for that conviction, and was incarcerated on his consecutive 60-year
sentence, which did not qualify him as “imprisoned” for purposes of
section 122–1(a).
     Defendant concedes that Illinois views consecutive sentences as
discrete, but urges this court to find that he was “imprisoned” for
purposes of section 122–1(a). In support of his argument, defendant
relies on Garlotte v. Fordice, 515 U.S. 39, 132 L. Ed. 2d 36, 115 S.
Ct. 1948 (1995). In Garlotte, the petitioner was imprisoned by
Mississippi state courts on a three-year sentence for a marijuana
conviction, followed consecutively by concurrent life sentences for a
murder conviction. Garlotte, 515 U.S. at 42, 132 L. Ed. 2d at 40, 115
S. Ct at 1950. After four years in a Mississippi prison, the petitioner
filed a petition for habeas corpus on his marijuana conviction in
federal district court. Garlotte, 515 U.S. at 42, 132 L. Ed. 2d at 41,
115 S. Ct. at 1950. The district court and court of appeals both
rejected the petition on jurisdictional grounds, finding that the
petitioner had served his three-year sentence, was not “in custody”
under that sentence when he filed the petition, and therefore did not
meet the requirements of section 2254(a) of the United States Code.
Garlotte, 515 U.S. at 43, 132 L. Ed. 2d at 41, 115 S. Ct. at 1950-51.
Section 2254(a) of the Code provides that a federal court “shall
entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. §2254(a) (2000).
     The Supreme Court reversed, basing its decision on its earlier
holding in Peyton v. Rowe, 391 U.S. 54, 20 L. Ed. 2d 426, 88 S. Ct.
1549 (1968). Garlotte, 515 U.S. at 47, 132 L. Ed. 2d at 43-44, 115
S. Ct. at 1952. In Peyton, the Court found that defendants
incarcerated under two consecutive sentences did not have to wait
until their first sentence had been served before filing a habeas corpus
petition against their second sentence. Peyton, 391 U.S. at 64-65, 20
L. Ed. 2d at 433, 88 S. Ct. at 1555. Specifically, Peyton stated, “a
prisoner serving consecutive sentences is ‘in custody’ under any one
of them for purposes of [the habeas statute].” Peyton, 391 U.S. at 67,
20 L. Ed. 2d at 435, 88 S. Ct. at 1556. The Court noted that, if

                                  -4-
successful, the petitioners would advance their release dates, which
was reason enough to permit them to file their petitions once they
satisfied the “in custody” element of the statute. Peyton, 391 U.S. at
66-67, 20 L. Ed. 2d at 434-35, 88 S. Ct. at 1556.
    The Garlotte Court compared the status of its petitioner to that of
the petitioners in Peyton and found that, since Peyton construed the
statutory term “in custody” to require that consecutive sentences be
viewed in the aggregate, there was no reason to adopt a different
construction “simply because the sentence imposed under the
challenged conviction lies in the past rather than in the future.”
Garlotte, 515 U.S. at 46, 132 L. Ed. 2d at 43, 115 S. Ct. at 1952. The
Court then found that the petitioner was “in custody,” and that his
habeas corpus petition could be filed because his release date would
be advanced by three years if his petition was successful. Garlotte,
515 U.S. at 47, 132 L. Ed. 2d at 43, 115 S. Ct. at 1952.
    The rationale expressed in Garlotte comports with our previous
interpretations of section 122–1(a). A review of the history of the Act
and our construction of the term “imprisoned” reveals that courts in
this state have always held a defendant’s liberty interest to be
paramount when construing the Act.
    The Illinois Post-Conviction Hearing Act was enacted in response
to Young v. Ragen, 337 U.S. 235, 93 L. Ed. 1333, 69 S. Ct. 1073
(1949), which held that prisoners must be given a statutory method by
which they can raise claims of denial of federal constitutional rights in
state courts. People v. Correa, 108 Ill. 2d 541, 545 (1985). The Act
was intended to “provide for judicial review in circumstances where
direct review, habeas corpus and coram nobis were unavailable.”
People v. Martin-Trigona, 111 Ill. 2d 295, 302 (1986). The Act
should be “liberally construed to afford a convicted person an
opportunity to present questions of deprivation of constitutional
rights.” Correa, 108 Ill. 2d at 546.
    Through the years, this court has emphasized the importance of a
person’s liberty interest in defining the class of convicted persons who
qualify as “imprisoned” under section122–1(a). For example, “[i]n
People v. Dale (1950), 406 Ill. 238, 246 [(overruled on other
grounds)], the court determined that the legislature intended by use of
the words ‘imprisoned in the penitentiary’ to prevent persons who
have completed their sentences from engaging the Act’s remedial

                                  -5-
machinery solely to purge their criminal records; only persons whose
liberty is actually restrained are entitled to the protection afforded by
the Act.” Martin-Trigona, 111 Ill. 2d at 299.
     In many cases, petitioners did not have to be actually in a prison,
but merely “subject to being confined” (Correa, 108 Ill. 2d at 546) by
the state to qualify as “imprisoned.” For instance, in Correa, we found
that persons who were on mandatory supervised release at the time
they filed their postconviction petitions qualified as “imprisoned”
because “the Department of Corrections shall ‘retain custody’ of all
persons placed on mandatory supervised release and ‘shall supervise’
such persons during their release.” Correa, 108 Ill. 2d at 546. In
People v. Placek, 43 Ill. App. 3d 818, the court found that persons
released on parole were still considered as “imprisoned” because they
had not fully served their sentences and “there may conceivably be
some consequences in the nature of control over [their] conduct in the
remaining parole period.” Placek, 43 Ill. App. 3d at 819-20. See also
People v. Montes, 90 Ill. App. 3d 355, 357 (1980) (petitioners
sentenced to probation may file postconviction petitions).
     Martin-Trigona also illustrates how a petitioner’s liberty interest
is paramount in determining whether he is “imprisoned.” In Martin-
Trigona, the petitioner was released on appeal bond when he filed his
petition for postconviction relief. Martin-Trigona, 111 Ill. 2d at 298.
We found that persons released on appeal bond are “ ‘always on a
string, and [the State] may pull the string whenever [it] please[s].’ ”
Martin-Trigona, 111 Ill. 2d at 300. Such a restraint on liberty was
found unacceptable when it was “imposed in violation of an
individual’s State or Federal constitutional rights.” Martin-Trigona,
111 Ill. 2d at 300. Accordingly, we held that “defendants who avoid
incarceration by posting an appeal bond are ‘imprisoned in the
penitentiary’ within the meaning of [section 122–1(a)].” Martin-
Trigona, 111 Ill. 2d at 300, citing Capler v. City of Greenville, 422
F.2d 299, 301 (5th Cir. 1970) (convicted persons released on an
appeal bond are “in custody” for purposes of federal habeas corpus).
      In each case mentioned above, we construed “imprisoned” for
purposes of section 122–1(a) to include petitioners whose liberty, in
some way or another, was curtailed to a degree by the state. In the
instant case, defendant’s liberty is certainly curtailed by the state due
to his status as a prisoner. Also, here, as in each of the cases

                                  -6-
mentioned above, defendant’s petition alleges a constitutional error,
which, if proven, will have an effect on his liberty. As defendant
correctly points out, the Department of Corrections treats consecutive
sentences in the aggregate1 and an invalidation of his first conviction
would advance his release date.
     Accordingly, pursuant to the reasoning of Garlotte, and in
accordance with our previous decisions, we now hold that a prisoner
serving consecutive sentences is “imprisoned” under any one of them
for purposes of section 122–1(a). Therefore, we conclude that
defendant was “imprisoned in the penitentiary” for purposes of section
122–1(a) when he filed his petition.2
     We note that the State relies on People v. West, 145 Ill. 2d 517
(1991), in support of its argument that defendant must be imprisoned
for the conviction he is challenging. In West, the defendant completed
and served a four-year sentence for voluntary manslaughter in Illinois.
West, 145 Ill. 2d at 518. Three years after his release from the Illinois
penitentiary, the defendant was sentenced to death in Arizona on a
separate murder charge, with the Illinois conviction used as an
aggravating factor in sentencing. West, 145 Ill. 2d at 518. Upon being
sentenced, the defendant attempted to file a postconviction petition in
Illinois challenging his manslaughter conviction with the intent of
purging it from his record. West, 145 Ill. 2d at 518. The defendant
hoped to void his Illinois conviction so that he would be able to argue
that Arizona improperly considered the Illinois conviction in
aggravation when he was sentenced to death. West, 145 Ill. 2d at 518.


      1
      “In determining the manner in which consecutive sentences of
imprisonment, one or more of which is for a felony, will be served, the
Department of Corrections shall treat the offender as though he had been
committed for a single term ***.” 730 ILCS 5/5–8–4(e) (West 2004).
     2
       At least one other jurisdiction has applied the rationale of Garlotte
when interpreting its own state postconviction relief statute. See Salaam v.
Warden, Nos. CV023581, CV023582 cons. (Conn. Super. December 15,
2003) (petitioner serving the second of two consecutive sentences may file
a postconviction petition challenging his first conviction). No state has
declined to apply Garlotte’s reasoning to its habeas or postconviction
statutes.

                                    -7-
The petition was dismissed, and this court affirmed, finding that the
defendant was not “imprisoned in the penitentiary” when he filed his
petition. West, 145 Ill. 2d at 519. Specifically, we held, “[t]he person
must be in prison for the offense he is purporting to challenge.” West,
145 Ill. 2d at 519.
    We find West to be distinguishable, both in fact and in substance,
from the instant case. The petitioner in West was not serving
consecutive sentences. Furthermore, as discussed above, a defendant’s
liberty interest is the deciding factor in determining who is
“imprisoned” for purposes of section 122–1(a). Thus, our holding in
West does not apply to defendant’s situation. Unlike defendant in the
instant case, who seeks to challenge his conviction for purposes of
advancing his release date, the petitioner in West sought to challenge
his conviction for purposes of purging his record. The fact that
defendant here is pursuing a liberty interest distinguishes his situation
from that of the petitioner in West. See also People v. Dale, 406 Ill.
238, 246 (1950) (postconviction remedy available only to “persons
actually being deprived of their liberty and not to persons who had
served their sentences and who might wish to purge their records of
past convictions”).
    Finally, we note that defendant presents the alternative argument
that the appellate court incorrectly held that the mandatory supervised
release period for his sexual abuse conviction had run before he filed
his petition. In light of our disposition here, we need not address this
argument.

                         CONCLUSION
   For the foregoing reasons, we reverse the judgments of the circuit
and appellate courts and remand to the circuit court for further
proceedings consistent with this opinion.

                                                  Judgments reversed;
                                                     cause remanded.




                                  -8-
