No. 2--07--0629 Filed: 9-11-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF I LL INO IS, ) of Mc He nr y Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 98--CF--1187 ) DOMINI CK GIAMPAOLO, ) Honorab le ) Sharon L. Prather, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BURKE de

livered the opinio n of the c ourt: Defend ant, Dominick Giampa olo, appeals from orders of the circuit court of Mc Henry County dismissing one count of his two-count second amended postconviction petition at the second stage of postconviction proceedings and deny ing the other count followingan evi denti ary hearin g. Defendant

asserts that his second amended petition se ts forth a

substantia

l showing

that his constituti onal rig

hts were violated . We disag

ree, and, thus, we

affirm. On May 31, 2001, in McHenr y County , d efendant agreed to plea d guilty to two counts of criminal sexual assault of a family member , a Class 1 felony

(720 I LCS 5/1 2--13(a

)(3), ( b)(1) ( West 1998)), in exchange for the State's rec ommendation of a 10-ye ar sentence. After admonishing defendant and advising him of his rights, the trial court accepted the plea, finding that the plea was knowing ly and volunta rily entere d and supported by a factual basis. The trial court imposed the agreed-upon

10-year sentence and advised defendant of his appeal rights. The trial court never toldNo. 2--07--0629

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defendant that, after he served his prison sentence, he would have to fulfill two ye ars of mandatory supervised release (MSR). See 730 I LCS 5/5--8--1(d)(2) (West 1998). On Ju ne 4, 20 01 , d ef

en da nt pl ea de d g ui lt y in Ka ne Co un ty t o solicitat ion to commi

t aggravated

kidnaping (720 IL

CS 5/8--1(a), 10--2(a)(1) (West 1998)), a Class 1 felony
. In excha nge for his guilty plea, the pa

rties agreed that defenda

nt would serve aneight-y ear sentence. The trial court ordered that

defendant's 8-y

ear Kane County sentence a

nd 10-year

McHenry County sentence
we re to ru n c on se cu ti ve ly. Defend ant

neither filed a postjudgment motion nor pursued a direct appea l. Instead, o n September

12, 2006, defendant filed a second amended petition for postconviction relief. Defenda nt raisedtwo issues in his second amended petition. First, he argued that his 10-y ear McHenry

County sentence must be reduced to 8 y ears because the McHe

nry County trial judg e failed

to admonis h him about MSR (count I). Second, he claimed that three of his trial attorney s were ineffective (count I I). Sp ec if ic al ly, defendan t contended that his attorney s were ineffective for failing to (1) prepare for hearin gs on various pretrial motions; (2) interview and subpoena witnesses; (3) object to or c orrect allegedly false statements that the State made; (4) object to or correc t allegedly

false statements of the law that t

he trial c ourt made ; (5) object to rulings on va rious pre trial mo tions ; (6) object to allegedly biased statements the trial court made; (7) object to alleged judicial misconduct; and (8) advise defendant that

he could file an interlocutory appeal from thedenial of

his motion to

substitute judges. Defendant also asserted that one of his atto

rney s threate

ned to ca use troub le for hisfamily if defendant did not

accept the S tate's offer and plead guilty in McHenry County

in return for a 10- year sentence. Defendant alleg ed that, but for these errors, he "MAY no t h av e p le ad [e d] gu il ty. " (Emphasis in original.)No. 2--07--0629

1 Alth ough the tran script wa s admitted into evidence, no onetestified whether defendant was advisedabout

MSR during

the Kane County plea pro ceeding s, and a complete copy of the transcript -3- Appro ximately

two months l ater, de

fendant filed a su

pplement to his sec ond ame nde d petition. In this pleading, defe ndant contended

that his attorneys also wer e ineffective for

failing to (1) investigate the victim's sexual history ; (2) file a motion to dismiss the indictment; (3) file a motio n to suppress the State's DNA evidence or sec ure an expert to rebut such evidence; (4) investig atethe victim's criminal background; and (5) a dvise defendant that he coul d file interlocutory appealsfrom all denied motions. As in the second amended petition, defendant

claimed that, but for these errors, he "MAY

not have plead[ed] guilty." (Emphasis in original.) The State moved to dismiss, contending that defendant's ineffective a ssistance claims were barred by waiver. At the subsequent hearing, the State c onceded that defendant was not advised about MSR when he pleaded guilty in McHenry County . However, the State a rgued that the trial court 's incomple

te admoni shments did not pre judice de fendant
. The trial court found that defendant made a substantial showing of a constitutional violation as to count I, and, thus, it set that cause for stage-three

proceedings. As to count I I, the trial court determined tha t defendant failed

to make a substantial showing

of a cons titutional

violation. Thus, the

court g ranted t he State' s motio n to dismiss def

endant' s ineffective as sistance claims. At the stage-three hearing

on count I, two witnesses testified for the State. Katherine Nielsen stated that she was working as an official cour t reporter for Kane County on June 4, 2001. On that da y, she took steno gr aphic not es of wha

t transpir ed in cour

t when defendant

pleaded guilty to solicitation to commit aggravated kidnaping. From these notes, Nielsen prepar eda transcript. The transcr ipt was a v erbatim r

endering of he

r notes. 1No. 2--07--0629

is not inclu ded in the

record on appea l. -4- Ona Welch testified that, as an assistant chief records officer f or the Illinois Department of Corrections (IDOC), she

determ ines w hen a d efenda nt's term of MSR starts. Whe

n a defe ndant is givenconsecutive sentences from two different counties, the prison sentences are a dded together

to form one term of incar ceratio n. In

this way, a de

fendant does not serve one term of imprisonment before starting the other consecu tive term
. In defend ant's case, with which Welch was familiar, defendant was sentenced to consecutive sentenc es on two Cl ass 1 fel onies. A Cl ass 1 fel ony carrie s an MSR

term of two years. Alth ough defendant was sentenced

to two Class 1 felonies, the maximum amount of MSR that he would serve is two y ears, not four. Welch explain ed that, when a defendant receivesconsecutive sentences, he must complete only one MSR ter

m, and the

IDO C determines an MSR p eriod ba sed on th e most serious class of crime of which the defendant wa s convicted. The trial court denied count I of de fendant's second

amended petition, f

inding th at, because defendant was serv ing con secutive

sentenc es (and t

hus only one term of MSR

), defe ndant fa iled to establish that he wa s prejudi ced whe n th e trial court in M cHenry County failed to admonish h

im about MSR. On appeal, defendant

argue s that the t

rial cou rt erre d when it

dismissed count II

and denied count I of h is second amended petition. S pecific ally , defend ant claim s th at he made a substantial showing that ( 1) the McHenry County trial court's f

ailure to advise him about MSR warranted a red uction in his 10-year pr ison sentence and (2) his trial attorney s were ineffective. We con side r each argument in turn.No. 2--07--0629

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The first issue we consider is whether t he dis missal of defendant's ineffective assistanc e claims (count II

) was proper. The

Post-Conviction Hear

ing Act (725 I LCS 5/122--1 et seq. (West 2006)) create s a three -stage processfor the a

djudicat ion of post

convicti on peti tion s and per mits a defendant to mount a c ollatera

l attack on his convi ction and sentenc e based on vio lations of his constitutional rights. People v. Erickson , 183 Ill. 2d 213, 222 (19 98). If a peti tion surviv es firststage review, it proceeds to the second stage , at which an indigen t defend ant is enti

tled to appointed counsel, the petiti on may be amend

ed, and th e State may ans wer or move to dismiss the petition. People v. Gaultney ,174 Ill. 2d 410, 418 (1996) . At the second sta ge, a defendant must make a "substantial showing" of a constitutional violation. People v. Addison , 371 Ill. App. 3d 941, 946-47 (2007). Here, at the second stage, the trial court dismissed de fe nd an t' s c la im s t ha t h is tr ia l a tt or ne ys
were ineffective. A second-stage dismissal is reviewed de novo
. People v. Adams , 373 Ill. App. 3d 991, 993 (2007). Ge ne ra ll y, a defendant who alleges that his counsel was ineffe ctive must establish that (1) his attorney' s performance fell below an objective sta ndard of

reasona bleness a nd (2) the

re is a
reasona ble probability that, but for counsel' s unprofessional errors, the result of the pr oceeding
w oul d have been different. People v. Wendt , 283 Ill. App. 3d 947, 951 (1996). However , if a defendant fails to a

llege t hat he wa s prejudi ced, the second p rong of the test , a court need not consider whether the attorney 's performance fell below a n objective standard of re aso nablene ss. Wendt , 283 Ill. App. 3d

at 951. In g

uilty plea pro ceeding s, a defe

ndant wa s prejudi ced if he could establish a reaso nable pr

obabilit y that, but for counsel's unprofessional errors, he would not have pleaded guilty and would ha

ve, instead, insisted on proceeding with a trial. People v. Rissley , 206 Ill. 2d 403, 457 (2003).No. 2--07--0629

-6-

Here, defendant failed to plead in his second amended petition that he was prejudiced by

his lawyers' actions. At no point in his second amended petition did defe ndant con tend that he would not have pleaded guilty

and would have insisted on proceeding with a tria

l if not for hi s attorne

ys'
errors . Rather, at best, defendant clai med that, but for his attorneys' errors, he might

not have pleaded guilty . Furthe

r, defe ndant fa iled to sup

port his claims with the requisite details and
e vidence. For examp le, although def endant na med witne sses whom h

is attorne ys should hav e interviewed

and subpo enaed a

nd he indic ated tha

t those wit ness es cou ld hav e impe ached t he vic tim's te st im on y, he did not allege what those witnesses would have stated and how their sta tements w ould have impeached the victim. Without th ese so rts of detai ls, defe

ndant' s broad a

llegat ions that h

is at to rn eys were ineffective were conclusory a

nd unsupported . See Rissley , 206 Ill. 2 d at 459; see also People v. Lester , 261 Ill. App. 3d 1075, 1078 (1994) (affidavits of potential witnesses are required for claim that counsel was ineffective for not calling them). Thus, we determine that defendant failed to make a su

bstantial showing of ineff ective a ssistance

of counse

l. We now con sider whe

ther the McHenr y County trial cou rt's fa ilure to a dmonish defendant about MSR during his guilty plea pr ocee dings warrants a 2-year reduction in defendant's 10-y ear prison sentence (count I) . If, at t he second stage of postconviction proceedings, the defendant present s a "sub stan tial showing" of a constitutional violation, the petition proceeds to stage three, at which an evidenti ary hea ring is held. Addison , 371 Ill . App. 3d at 9 46-47 . As in secon d-sta ge procee dings, a defendant

whose petition has advanced to stage three bears the burden of

makin g a substantial showing that his constitutional rights were violated. People v . Davis , 377 Ill. App. 3d 735, 744 (2007). Here, the trial court denied count I of defendant's second amende d petition after
a stage-three evidentiary

hearing. When fact-finding and credibility deter

minations are involved, weNo. 2--07--0629

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review the denial of a petition follo wing an evidentiary hearing under a manifest-er ror standard. Davis , 377 Ill. App. 3d at 744. However, if the issue rai se d presents a pure question of law, our review is de novo
. Davis , 377 Ill. App. 3d at 744. Here, our review i s de novo , as the rele vant facts are undisputed and the issue concerns a question of law. In resolving whether defendant has made a substantia

l showing that his constituti onal rig hts
were violated when the trial court in McHenry County failed to advise him about MSR, we find People v. Whitfield , 217 Ill. 2d 177 (2005), instructive. I n Whitfield , the defendant petitioned for post convi ction relief, arguing that, b ecause the trial court fa iled to ad monish him a

bout MSR, his prison sentenc e must be reduc ed by the applica ble MSR period. Whitfield , 217 Ill. 2d at 181-82. In resolvin g that is sue, our s upreme c ourt obse rved tha t, when a defendant enters a guilty plea as part of an agreement that provides for a specific term of imprisonment, the trial court must admonish the defendant that, pursuant to section 5--8--1(d) of the Unified Code of Correct ions (Code ) (730 I

LCS 5/5--8- -1(d) (

West 2006) ), the pr

ison term will be followed by a term of MSR. Whitfield , 217 I

ll. 2d at 190. I

f the tria l court fa ils to admon

ish the defe

ndant, MSR cannot be considered part of the defend ant's bargain with the State, and the imposition of a term of MSR amounts to "a un ilateral modification and breach

of the plea agreement by

the State, inconsistent with constitutional concerns of fundamental fairness." Whitfield , 217 Ill. 2d at 190. The supreme court a ssertedthat, altho ugh the defenda

nt is entitled t

o the bene fit of his b argain, the law

does not pe

rmit the term of MSR to be stricken from the defendant's sentence. Whitfield , 21 7 Il l. 2d at 20 2- 03 . A cc or di ng ly, the cour t held that the appropriate remedy , which approximates the defendant's barg ain with the State, is to reduce the defendant's prison term by a period equal in length to the MSR term. Whitfield , 217 Ill. 2d at 180, 203. Thus, in Whitfield , where the defe ndant ple aded guilty

in exchange for a 25-y

ear prisonNo. 2--07--0629

2 In those two page s, the trial court stated: "The o rigin al char

ges tha t you have is [ sic ] attempte d agg ravate d kidnaping, Class 1 F elony. Carries a penite ntiary sentenc e betwe en 4 to 15 y ears, 15 to 30 extend

ed term. -8- termand was not told that he would also haveto serve a 3-year term of MSR, the court reduced the prison term by 3 y

ears so that the sum of the prison term and the MSR term equa led 25 y ears. Whitfield , 217 Ill. 2d at 205. In so doing, the court recognized that the defe ndant's sentence should be reduced because he established that the trial court's incomplete admonishments prejudiced him. Whitfield , 217 Ill. 2d at 201. That is, "[the d]efendant was prejudiced by the omitted admonition because he received a
more onerous sentence than the one he was t old he woul d receive." Whitfield , 217 Ill. 2d at 201. Here, the State co ncedes that defendant was not admonished about MSR in McHenry Coun ty . Thus, at first blush, it appears that, under Whi tfie ld , defendant would be entitled to a 2-y ear reduction in his 10-year pr ison sentence for criminal sexual assault of a family member. However, unlike in Whitfield , defendant has not established that he was prejudiced by the tri al court 's incomple te admoni shments. In address ing pre

judice, w e first ob serve th at nothing in the recor d reveals that the procee dings resul ting i n defen dant's eight- ye ar sente nce in Ka ne County

were imp roper. T hus, we presume that defendant was advised that, after serving his eight-y ear prison sentence, he would have to serve two ye ars of MSR. See Foutch v. O'Bryant , 99 Ill. 2d 389, 392 (1984) ("[a]ny doubts which may arise from the incompleteness of th e record will be resolved aga inst the appellant"). That presumption, we note, is supported by de fendant, who attached to his reply brief two pages of the transcript fr om th e K an e C ou nt y g ui lty p lea proc eeding s. 2 The fact that def endant w as prope

rlyNo. 2--07--0629

Period of manda

tory supervis ed rele ase , used to be called p arole, o f two y

ears. F ine up to [$]25,000. And you have

a so--solicitation to commit aggravated kidnaping , Class 1 F

elony with the same penalties." This admonishmentwas sufficient to comply with Whitfield . See People v. Borst , 372 I

ll. App. 3d 331, 332, 334 (2007).

3 Section 5--8-- 4(e)(2 ) states t hat "the [MSR ] term shal l be as provided in paragraph (e) of Section 5--8--1 of this Code for the most serious of the offenses involved." 730 I LCS 5/5--8--4(e)(2) (West 2006 ). Howev er, par agrap h (e) of section 5 --8--1 is not rele vant, in th at it

applies o nly

to a def endant who has a previous and unexpired sentence in a fede ral prison or the prison of anothe r state. We believe the General Assembly intended section 5--8--4(e)(2) to refe r to paragraph (d) of section 5--8--1. The apparent ty pographical error

was introduced in the 1979 compiled statute book, and we w ish to aler

t the Gene

ral Asse mbly to it. -9- admonished in Kane Co

unty is impo rtant in th is cas e, beca use de fendan t's 8-year sentence in Kane County was to run

consecu tively with his 10-year sen

tence in McHenr y County . As defe

ndant cou ld
serve only one term of MSR after serving his consecutive sentences (730 IL CS 5/5--8- -4(e)( 2) (West 1998)), and as both of defendant 's sente nces we re for Cl ass 1 fel onies, defendant was subject to only
one two-year

term of MSR (730 IL

CS 5/5--8--1(d)(2) (West 1998)). 3 Ac co rd in gl y, defendant, who received a total sentence of

18 y ears in p

rison plus2 ye ars of MSR, would have received t

hat same sentence even if t

he trial c ourt in Mc Henry Co u nty had prop erly

advised d

efenda nt about MSR
. Thus, defendant's sentence was no more onerous than the one he was told he would receive. Becau se defendant failed to establish that the trial court's incomplete admonishments prejudiced him, we findNo. 2--07--0629

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that defendant failed to make

a substantial showing that his constitutional rights were violated when the trial court in M cHenry

County failed to admonish h

im about MSR. For these reasons, the judgment of the c ircuit court of McHenry County is affirmed. Affirmed. O'MALL EY and JORGENSEN, JJ., concur.