Appeal from the Circuit Court of Cook County. Honorable William T. O'Brien, Judge Presiding. No. 03 CR 3074
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Murphy and Steele concurred in the judgment and opinion.
¶ 1 Defendant Vladislav Vinokur appeals from the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2008)). On appeal, defendant contends that: (1) the trial court erred in dismissing his petition on the basis that he lacked standing; (2) it was improper for the trial court to consider whether he had standing at the first stage of post-conviction proceedings; and (3) his sentence was void and must be vacated. We find that defendant did not have standing to file his petition and therefore affirm the judgment of the trial court.
¶ 2 Defendant was born in Russia and became a permanent resident alien of the United States on December 18, 1989. On January 5, 2003, the police pulled defendant over, observed marijuana in the car, and arrested him.
¶ 3 On April 28, 2003, defendant pled guilty to one count of possession of cannabis with the intent to deliver in an amount between 30 and 500 grams. 720 ILCS 550/5(d) (West 2002). Defendant was sentenced to first-time offender probation and received 24 months of probation, 30 hours of community service, and 3 periodic drug tests, and he was ordered to pay $1,500 in probation fees under section 10 of the Cannabis Control Act (720 ILCS 550/10 (West 2002)). On April 15, 2005, the trial court terminated defendant's probation as having been successfully completed.
¶ 4 Subsequently, defendant learned that his guilty plea and sentence subjected him to deportation. On December 1, 2008, defendant filed a post-conviction petition alleging that his guilty plea was not knowing or voluntary because the trial court affirmatively misstated the immigration consequences of his plea. The trial court summarily dismissed defendant's petition on February 20, 2009, based on defendant's lack of standing. Defendant filed a timely notice of appeal on March 17, 2009.
¶ 5 On appeal, defendant first contends that he had standing to bring his claim under the Act. The State asserts that defendant had no standing to file a post-conviction petition because at the time he filed it, he was no longer " 'imprisoned in the penitentiary' " as required by the Act, relying on People v. Carrera, 239 Ill. 2d 241, 257 (2010). In response, defendant contends that Carrera does not apply because he is asserting a void sentence issue, which can be raised at any time. We agree with the State and for the following reasons find that defendant had no standing to file a post-conviction petition, that his petition was properly dismissed at the first stage of proceedings, and that we are therefore unable to reach the merits of his void sentence claim.
¶ 6 The Act states "[a]ny person imprisoned in the penitentiary may institute a proceeding under this Article." 725 ILCS 5/122-1(a) (West 2008). A defendant is "imprisoned in the penitentiary" for the purposes of the Act when his liberty is actually constrained by the State.
People v. Rajagopal, 381 Ill. App. 3d 326, 329-30 (2008). Therefore, when a defendant is no longer constrained by the State, he has no standing to file a petition for relief under the Act. Rajagopal, 381 Ill. App. 3d at 332. Generally, when a defendant has fully served his underlying sentence before filing a post-conviction petition, he no longer has standing to file a petition. Carrera, 239 Ill. 2d at 253. However, the definition of "imprisoned in the penitentiary" has been held to include the direct consequences of a guilty plea because they relate to the sentence imposed on the basis of the plea, while "collateral consequences are not related to the length or nature of the sentence." (Internal quotation marks omitted.) Rajagopal, 381 Ill. App. 3d at 331 (quoting People v. Williams, 188 Ill. 2d 365, 372 (1999)). The first stage dismissal of a post-conviction petition is reviewed de novo. People v. Brown, 236 Ill. 2d 175, 184 (2010).
¶ 7 In Carrera, the Illinois Supreme Court addressed the question of whether a defendant who faces deportation as a result of his guilty plea has standing to challenge his plea under the Act. Carrera, 239 Ill. 2d at 245. There, the defendant pled guilty to unlawful possession of a controlled substance and was sentenced to 24 months of probation. Carrera, 239 Ill. 2d at 243. More than a year after the defendant completed his probation, the Immigration and Naturalization Service (INS) took him into custody and instituted deportation proceedings against him. Id. The defendant filed a post-conviction petition in which he alleged that his guilty plea was not voluntary because he relied on his counsel's advice that there would be no immigration consequences as a result of his plea. Carrera, 239 Ill. 2d at 244. The trial court dismissed the defendant's petition on the State's motion and this court affirmed on appeal. Carrera, 239 Ill. 2d at 244-45. The supreme court found that deportation is a collateral consequence of a defendant's guilty plea and the constraint on the defendant's liberty as a result of the plea ended with the completion of his probation. Carrera, 239 Ill. 2d at 257. Therefore, the defendant was no longer imprisoned in the penitentiary for the purposes of the Act at the time he filed his petition and did not have standing to file a petition. Carrera, 239 Ill. 2d at 253.
¶ 8 Like the defendant in Carrera, here defendant found out he faced deportation after he had completed his probation. Defendant was not "imprisoned in the penitentiary" as required by the Act because he had fully served his underlying sentence prior to filing his petition and, therefore, had no standing to file a petition for post-conviction relief.
¶ 9 Defendant argues that his situation is distinguishable from Carrera because it was the trial court, not defense counsel, that misinformed him of the possible immigration consequences. However, the court in Carrera did not limit its holding to situations where a defendant's petition alleges ineffective assistance of counsel. Rather, the court found that the defendant was not " 'imprisoned in the penitentiary' " for the purposes of the Act because he "had fully served his sentence in the conviction he now seeks to challenge." Carrera, 239 Ill. 2d at 258. We see no reason to depart from this holding simply because defendant seeks to challenge his conviction on a different basis.
¶ 10 Defendant also argues that his case can be distinguished from Carrera because he will be left without a remedy if he cannot file a petition for post-conviction relief, relying on People v. Warr, 54 Ill. 2d 487 (1973). However, as the Carrera court noted, while the defendants in Warr never had a remedy to challenge their convictions based on a violation of their constitutional rights, defendant here could have filed a post-conviction petition while he was serving the sentence imposed on his conviction. Carrera, 239 Ill. 2d at 259. ...