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
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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
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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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