People v. Rajagopal

• Citation: 381 Ill.App.3d 326,885 N.E.2d 1152
• Decision Date: 26 March 2008
• Docket Number: No. 1-07-0773.,1-07-0773.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Krishnakumar RAJAGOPAL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

885 N.E.2d 1152

381 Ill.App.3d 326

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.

March 26, 2008.

William R. Quinlan, Nicholas G. Grapsas, Quinlan & Carroll, Ltd., Chicago, IL, for Defendant-Appellant.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Mary P. Needham, William C. Swallow, Assistant State's Attorneys, Chicago, IL for Plaintiff-Appellee.

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 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 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 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 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, 273 Ill.Dec. 784, 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, 276 Ill.Dec. 887, 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, ____ Ill.App.3d ____, ____, ____ Ill.Dec. ____, ____ N.E.2d ____, ____, 2008 WL 191996, *2 (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, 95 Ill.Dec. 492, 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, 308 Ill.Dec. 735, 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, 164 Ill.Dec. 912, 584 N.E.2d 124, 125 (1991). In the past, 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, 95 Ill.Dec. 492, 489 N.E.2d at 1358; accord Pack, 224 Ill.2d at 150-51, 308 Ill.Dec. 735, 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, 308 Ill.Dec. 735, 862 N.E.2d at 942, citing Martin-Trigona, 111 Ill.2d at 299, 95 Ill.Dec. 492, 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, 308 Ill.Dec. 735, 862 N.E.2d at 942, quoting Martin-Trigona, 111 Ill.2d at 299, 95 Ill.Dec. 492, 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, 95 Ill.Dec. 492, 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, 95 Ill.Dec. 492, 489 N.E.2d at 1359. Consequently, the Act is no longer available to him. Martin-Trigona, 111 Ill.2d at 301, 95 Ill.Dec. 492, 489 N.E.2d at 1359. For example, in West, the...