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07/28/89 the People of the State of v. Kryzysztof Sak

July 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLANT

v.

KRYZYSZTOF SAK, PETITIONER-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

542 N.E.2d 1155, 186 Ill. App. 3d 816, 134 Ill. Dec. 648 1989.IL.1168

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

In this case we consider whether the language of the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122-1), permitting petitions thereunder by persons "imprisoned in the penitentiary," precludes a remedy to an individual who has completed his sentence prior to seeking post-conviction relief.

We conclude it does not and affirm the judgment of the circuit court.

Defendant, Kryzysztof Sak, is a Polish national who, in 1980, along with his wife, entered the United States on a tourist visa, overstayed its expiration, and became an illegal alien.

In April of 1984, Sak was charged with the theft of plywood from a commercial establishment. On May 4, 1984, Sak, who was represented by private counsel, pled guilty to the theft, was fined $70, and was sentenced to 18 months of probation. Sak took no further action with respect to the judgment, paid the fine, and completed probation. An order terminating probation was entered in the circuit court of Cook County on November 4, 1985.

Subsequently, based on the theft conviction, the Immigration and Naturalization Service instituted deportation proceedings against Sak.

In turn, Sak sought to vacate his guilty plea by petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1985, ch. 38, pars. 122-1 through 122-8). The petition alleged Sak's guilty plea was neither knowing nor intelligent nor made with effective assistance of counsel in violation of the fifth, sixth, and fourteenth amendments to the Federal Constitution. More specifically, Sak alleged that although he had informed his counsel, prior to pleading guilty, that he was an illegal alien, he was never advised his plea could result in deportation.

On February 19, 1987, the State made an oral motion to dismiss Sak's petition. Sak's written response was filed the same day. The circuit court reached no ruling that day. The record indicates the matter was again before the court on March 12, 1987, and was continued by agreement to April 7, 1987. On April 7, 1987, the circuit court, without ever having ruled on the motion, conducted an evidentiary hearing on the petition. Sak was the sole witness. Following that hearing, the circuit court granted Sak's petition and vacated his guilty plea. This appeal by the State followed.

Section 122--1 of the Act provides, in pertinent part:

"Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this ...


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