2020 IL App (2d) 190372-U 

No. 2-19-0372 

Order filed December 22, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of DuPage County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 08-CF-1861 

) 

GRANT W. GAMBAIANI, ) Honorable 

) Brian F. Telander, 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE HUTCHINSON delivered the judgment of the court. 

Justices Jorgensen and Schostok concurred in the judgment. 

ORDER

¶ 1 Held: Defendant failed to demonstrate manifest error in the trial court’s denial of his 

postconviction ineffective-assistance-of-counsel claim. 

¶ 2 Following a third-stage evidentiary hearing, the trial court denied defendant Grant W. 

Gambaiani’s request for postconviction relief on the grounds that his counsel was ineffective when 

advising him of the State’s plea offer. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Following an outcry statement by 10-year-old D.G., and a criminal investigation, on July 

29, 2008, a grand jury charged defendant (D.G.’s 24-year old cousin) with four counts of predatory 
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criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)), one count aggravated 

criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2008)), and one count of child 

pornography (manufacture) (720 ILCS 5/11-20.1(a)(1)(vii) (West 2008)). All of the offenses 

involved defendant’s sexual acts with D.G. 

¶ 5 In July 2009, defendant received a plea offer whereby he would plead guilty to a single 

Class 1 non-probationable offense with a sentence of 4 to 15 years to be served with day-for-day 

credit; in exchange, the State would drop the remaining charges. Defendant discussed the offer 

with his attorneys, Kevin Halvorson and Elliot Samuels, and his father, John; then, defendant 

rejected the offer. During this time, the police had defendant’s computer in their possession and, 

on September 10, 2009, the State charged defendant by information with 15 additional counts of 

possessing child pornography (depicted child is under 18 years old) (720 ILCS 5/11-20.1-(A)7 

(West 2008)) and 3 counts of aggravated child pornography (possessing photographs of children 

under the age of 13 years (720 ILCS 5/11-20.3-(A)6 (West 2008)) for images found on defendant’s 

computer. 

¶ 6 The case proceeded to a first jury trial on May 5, 2010. Prior to trial, the State nol-prossed 

one of the child pornography (possession) charges. At trial, the evidence showed that defendant 

would show D.G. child pornography, that defendant had repeatedly sexually assaulted D.G. and 

that defendant possessed numerous images of child pornography. After trial, the jury found 

defendant guilty of each of the remaining charges, and the trial court sentenced defendant to an 

aggregate 43 years’ imprisonment. 

¶ 7 On appeal, Halvorson and Samuels continued to represent defendant. We reversed due to 

a discovery violation by the State, but also held that double jeopardy did not bar a retrial. See 

People v. Gambaiani, 2012 IL App (2d) 101246-U. On remand, the State offered defendant a 25-
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year sentence, but defendant rejected that offer as well. Defendant then fired Halvorson and 

Samuels, and hired attorney Stephen Brundage. Following a retrial, defendant was convicted on 

all counts except for one of the predatory criminal sexual assault charges and sentenced to an 

aggregate 34 years’ imprisonment. Due to “truth in sentencing,” (730 ILCS 5/3-6-3 (West 2008)), 

defendant was required to serve 85% of his sentence for the assault charges.

¶ 8 On direct appeal, we affirmed defendant’s convictions for predatory criminal sexual assault 

and manufacture of child pornography, but we reversed defendant’s convictions for possession of 

child pornography and aggravated possession of child pornography due to a jury-instruction error 

affecting the possession offenses. See People v. Gambaiani, 2016 IL App (2d) 140124-U. Our 

disposition did not affect defendant’s aggregate sentence because each of the 18 possession 

offenses received five years each, were concurrent to his sentence for manufacturing child 

pornography, for which he received a six-year sentence. Subsequently, the Illinois Supreme Court 

denied defendant leave to appeal. People v. Gambaiani, No. 121343 (Mar. 29, 2017). 

¶ 9 In December 2017, defendant filed a petition for postconviction relief. In sum, the petition 

alleged that defendant’s initial attorneys—Halvorson and Samuels—instilled in him an 

expectation that he would receive an offer or a sentence of probation. According to defendant, 

“[a]t no point” during his consideration of the State’s offer did his attorneys explain his maximum 

sentencing exposure, which caused him to reject the State’s offer of a blind plea to a nonprobationable Class 1 offense. In his affidavit, defendant stated that attorney Samuels told him 

when they first met in July 2009, that defendant likely would not serve any prison time. Defendant 

stated that he rejected the State’s original offer in 2009 because, in his own words: “I intuitively 

believed that if I went to trial and was convicted, I would likely not be given a lengthy sentence 

since the victim’s family did not want me to serve any prison time. And I certainly did not believe 
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I would receive a sentence longer than 15 years based on the statements made to me by Mr. 

Samuels.” Accordingly, defendant alleged that his attorneys’ advice led him to reject the State’s 

offer, specifically because he did not fully understand mandatory consecutive sentencing for sex 

offenses. See generally 730 ILCS 5/5-8-4(a)(ii) (West 2008).

¶ 10 The petition was advanced to the second stage and the State filed a motion to dismiss. The 

trial court denied the State’s motion, and the petition advanced to a third stage evidentiary hearing

(see 725 ILCS 5/122-6 (West 2012)). Attorney Samuels testified that he was hired by defendant’s 

father after defendant was arrested in July 2008. After defendant posted bond, Samuels met with 

defendant privately to discuss the case. At the time, Samuels only knew that defendant had been 

arrested on sexual abuse allegations involving his young male cousin, and defendant told Samuels 

that the whole thing was a big misunderstanding; that he had only wrestled playfully with D.G. 

and that nothing sexual had occurred. Based upon defendant’s information, Samuels told defendant 

and John that Samuels did believed defendant would likely receive probation and would not have 

to worry about jail time. Later, when Samuels read through the State’s discovery, he learned that 

the evidence was far more stark than defendant had led him to believe. Samuels then brought in 

attorney Halvorson to assist with the defense.

¶ 11 In July 2009, Samuels and Halvorson submitted a mitigation proposal to the State urging 

that defendant be offered a plea to a probationable Class 1 offense, to be served with day-for-day 

credit. The State rejected the proposal and, on July 16, 2009, informed the attorneys that it would 

only consider a Class 1 sentence that included prison time. That day, Halvorson and Samuels met 

with defendant at one of their law offices. John was also in attendance on speaker phone. During 

the conversation, Samuels did not recall discussing defendant’s full sentencing exposure, but he 

did recall Halvorson saying that if defendant was found guilty of only the charged Class X 
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offenses, his sentence would be at a minimum of 24 years at 85%–far greater than the maximum 

sentence on the State’s offer (15 years at 50%). Samuels stated that defendant rejected the deal 

because he was determined not to serve any prison time. Samuels told defendant that no jury would 

acquit him once they saw the cache of child pornography. 

¶ 12 Halvorson testified that he explained defendant’s sentencing exposure—including 

minimums, maximums, and possible consecutive sentencing—when they first met. During the July 

16, 2009, meeting, to discuss the State’s offer, Halvorson recalled explaining to defendant that if 

he were convicted on any two Class X offenses, his minimum sentence—two six-year terms, 

served at 85% (or 10.2 years)—would still be more than the maximum 15-year, day-for-day 

sentence (7.5 years) he would serve on a blind plea to a Class 1 felony. Both attorneys testified 

that they recommended the offer; however, defendant balked and refused to accept it. Defendant 

was insistent on probation. 

¶ 13 Halvorson testified that defendant was “adamant” that he would not accept an offer that 

included jail time. John, over the phone, told Halvorson and Samuels to reject the offer but to 

continue to negotiate with the State. John had stated that, in his experience in the banking and real 

estate sectors, he believed it was likely the State would make another offer. Halvorson explained 

to John that this was not like a real estate negotiation and that in his experience, as a prosecutor 

and a defense attorney, no additional offer would be forthcoming. 

¶ 14 In December 2009, Halvorson dictated a memo to the case file regarding the attorneys’ 

July 16, 2009, discussion of the plea offer with defendant. The memo stated in part that defendant 

was advised to accept the State’s offer, and further that, even if he somehow pled guilty to a nonprobationable offense “he would likely receive * * * an IDOC sentence * * *.” The memo noted 

that “[defendant] and John Gambaiani were advised that 4-15 at 50% was a good offer in this case 
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given the nature of the charges and the strength of the State[’]s case.” The memo further stated 

that:

“[Defendant] was also again advised that he was charged with 4 Class X [f]elonies that 

carry 6-30 years each at 85%. He was advised that they could be served consecutively and 

that if he were to be found guilty of 2 [C]lass X felonies and if they were to be served 

consecutively that he would be serving 12 years at 85% which would be greater than the 

maximum that he could serve on a Class 1 at 50%.” 

Nevertheless, the memo described defendant’s rejection of the offer. Samuels concurred that the 

memo was an accurate recitation of these events.

¶ 15 Defendant’s father, John, testified that he advised defendant against accepting the State’s 

offer because it was “ingrained in [his] mind” that defendant would receive probation. Defendant 

told his father that he was “not supposed to do any jail time * * *.” 

¶ 16 Defendant testified that when he first met Samuels, he said defendant would not do any jail 

time in this case. Defendant believed he was a strong candidate for probation because he had no 

prior criminal history, and the victim’s family (which was also defendant’s family) wanted him to 

receive treatment and not necessarily incarceration. Relevant to the July 2009 plea offer, defendant 

stated that neither Halvorson nor Samuels ever explained the sentencing ranges or consecutive 

sentencing to him. He also testified that neither attorney suggested he accept the plea. According 

to defendant, Halvorson and Samuels told defendant that it was a good offer, but never explained 

why. Defendant rejected the offer because he “fully expected to receive an offer that involved 

some form of probation.” Defendant stated that he had only learned about consecutive sentencing 

after he was sentenced following his first trial. After his case was remanded, defendant claimed 

that he would have accepted a 20-year plea offer but would not accept the State’s 25-year offer.
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¶ 17 After hearing the evidence, the trial court denied defendant’s petition. The trial court stated 

that it found Halvorson and Samuels were credible and had, in fact, explained defendant’s 

sentencing exposure and mandatory consecutive sentencing to defendant. Conversely, the trial 

court stated that it simply did not find defendant’s testimony credible, particularly on the point that 

defendant said Halvorson and Samuels did not advise him regarding his sentencing exposure: 

“You have two extremely experienced lawyers in the criminal field that, frankly, 

have both spent their whole [careers] in the criminal field and nothing else, who have 

testified before me credibly that the defendant was only interested in getting probation and 

was totally unreceptive completely [sic] to any disposition that involved the penitentiary. 

That is not a hard sell to me. I think that is a common fact when a person is arrested. 

I don’t think it’s improper to draw on my twelve years as a prosecutor and my twenty-two 

years as a criminal defense lawyer while I try to assess what is reasonable and what I 

believe.

* * * 

I mean, when you have a client facing mandatory consecutive [sentences], you have 

to tell him that this is what is going to happen if you lose. And Halvorson said that. 

* * * 

What is more believable, unfortunately, and I feel bad for the defendant, frankly, is 

that because he wanted probation and probably because he was afraid of jail, he rejected 

an offer that he probably should have taken. And when he didn’t take it and went to trial, 

he ended up getting sentenced [to 43 years]. 

And then he testified, and I heard him, that even after the case got reversed and it 

came back the two defense lawyers, the same ones, were still representing him. And that 
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kind of makes me wonder why you would keep the same lawyers if it’s really true that you 

were never told [about consecutive sentencing].” 

The court then reiterated that it found Halvorson and Samuels credible and that it found defendant 

not credible. Defendant timely appealed. 

¶ 18 II. ANALYSIS

¶ 19 Defendant’s primary contention on appeal is that the trial court’s ruling was manifestly 

erroneous and that his attorneys were ineffective. As this appeal follows from an evidentiary 

hearing, we defer to the trial court’s factual findings and may reverse only if the judgment is 

manifestly erroneous. See People v. Morgan, 212 Ill. 2d 148, 155 (2004). We will only find “ 

‘manifest error’ ” if the trial court’s error, and the defendant’s right to postconviction relief, “is 

clearly evident, plain, and indisputable” from the record. People v. Ruiz, 177 Ill. 2d 368, 384-85 

(1997). 

¶ 20 Criminal defendants are entitled to effective assistance of counsel during plea 

negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 147-48 

(2012). This includes the right to effective assistance of counsel when deciding whether to reject 

a plea bargain offered by the State. People v. Curry, 178 Ill. 2d 509, 518 (1997), abrogated on 

other grounds by People v. Hale, 2013 IL 113140, ¶ 20. A violation of the right to effective 

assistance during plea negotiations is not cured by a subsequent fair trial. Id., ¶ 17; People v. 

Williams, 2016 IL App (4th) 140502, ¶ 33. Claims of ineffective assistance related to the pleabargaining process are subject to the two-part test outlined in Strickland v. Washington, 466 U.S. 

668 (1984). Hale, 2013 IL 113140, ¶ 15. This means that a defendant must show that (1) “his 

attorney’s assistance was objectively unreasonable under prevailing professional norms” and (2) 

“there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the 
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proceeding would have been different.’ ” Curry, 178 Ill. 2d at 519 (quoting Strickland, 466 U.S. 

at 694). 

¶ 21 We turn first to the issue of attorney performance, bearing in mind that we may dispose of 

an ineffective assistance of counsel claim on either performance or prejudice grounds. See 

Strickland, 466 U.S. at 697. For purposes of Strickland’s first prong, “a criminal defense attorney 

has the obligation to inform his or her client about the maximum and minimum sentences that can 

be imposed for the offenses with which the defendant is charged.” Curry, 178 Ill. 2d at 528; see 

also Williams, 2016 IL App (4th) 140502, ¶ 33 (a criminal defendant has a “constitutional right to 

be reasonably informed with respect to the direct consequences of accepting or rejecting a guiltyplea offer from the State”). 

¶ 22 Defendant points out that in the pre-trial memo Halvorson that dictated, Halvorson stated 

that defendant “could” receive consecutive sentencing for at least some of his sex offenses. 

Defendant neglects to consider that the memo was drafted months before his first trial commenced, 

and thus there was the hypothetical possibility that defendant might not be convicted of multiple 

sex acts, or that it could be argued that multiple sex acts fell under the one act/one crime rule. See, 

e.g., Hale, 2013 IL 113140, ¶ 12. At any rate, we need not parse the memo for hidden meanings. 

As the trial court noted, based on Halvorson’s and Samuels’ testimony, the court made a factual

finding that attorneys Halvorson and Samuels did inform defendant regarding his sentencing 

exposure and consecutive sentencing, as well as the favorability of the State’s pre-trial offer. 

Again, the court stated that its determination came from Halvorson’s and Samuel’s testimony, 

which the court found credible. There is simply no basis in the record for overturning the trial 

court’s credibility finding, as all defendant can point to is his own “subjective self-serving 

testimony” (see Hale, 2013 IL 113140, ¶ 18) that his attorneys failed to provide him with such 
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advice. That is simply insufficient to meet the high burden of demonstrating manifest error. See 

Ruiz, 177 Ill. 2d at 384-85. 

¶ 23 Toward the end of his brief, defendant also assails the trial court’s findings because the 

trial court judge referenced his own personal experiences as an attorney handling serious felony 

cases. Although this issue was not preserved for review, nevertheless, we have carefully examined 

the record and found that the court’s statement was not injudicious and did not exceed the bounds 

of fair comment. It is axiomatic that “[a] trial judge does not operate in a bubble; she may take into 

account her own life and experiences in ruling on the evidence.” People v. Thomas, 377 Ill. App. 

3d 950, 963 (2007). As the United States Supreme Court has noted, “[a]ny sentencing decision 

calls for the exercise of judgment. It is neither possible nor desirable for a person to whom the 

state entrusts an important judgment to decide in a vacuum, as if he had no experiences.” Barclay 

v. Florida, 463 U.S. 939, 950 (1983). In any case, we determine that defendant has failed to meet 

his burden to prove deficient performance. 

¶ 24 We also further find that defendant has failed to prove prejudice. To show prejudice in this 

type of situation, a defendant must demonstrate a reasonable probability that (1) he would have 

accepted the earlier plea offer had he received effective assistance; and (2) the plea would have 

been entered without the prosecution canceling it or the trial court refusing to accept it, if they had 

the authority to exercise that discretion under state law. Frye, 566 U.S. at 147-48 ; Hale, 2013 IL 

113140, ¶¶ 19-20. This showing of prejudice must encompass more than a defendant’s own 

subjective, self-serving testimony; rather, there must be independent, objective confirmation that 

defendant’s rejection of the proffered plea was based upon counsel’s erroneous advice, and not on 

other considerations. Hale, 2013 IL 113140, ¶ 19. 

¶ 25 We agree with the trial court that the record shows defendant rejected the State’s Class 1 
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offer because he was adamant that he should receive probation and not a penitentiary sentence. 

Thus, defendant could not have been prejudiced by his attorneys’ advice as his decision was not 

based on their advice but on “other considerations.” Id. Even without consecutive sentencing, 

defendant faced a possible 30-year sentence if he were convicted of a single Class X offense. 

Moreover, given the four Class X offenses as well as the numerous additional charges for child 

pornography and the possibility of discretionary consecutive sentencing, it is not hyperbolic to 

state that defendant was willing to risk going to prison for hundreds of years. In sum, even if we 

accept defendant’s allegations as true, defendant was willing to risk an unsurvivable prison 

sentence, and reject an offer of only 4 to 15 years, all in the hope of being acquitted or sentenced 

to probation. We agree with the trial court that defendant’s decision was entirely his choice. See, 

e.g., People v. Walker, 2018 IL App (1st) 160509, ¶ 34 (defendant’s rejection of plea offer was his 

own decision, regardless of firearm enhancements, and not based on advice of counsel). 

Accordingly, defendant was not prejudiced based on his attorneys’ advice. 

¶ 26 Before concluding, we note that as part of the prejudice analysis, “ ‘[d]efendants must also 

demonstrate a reasonable probability that the plea would have been entered without the prosecution 

canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion 

under state law.’ ” (Emphasis omitted.) Hale, 2013 IL 113140, ¶ 19 (quoting Frye, 566 U.S. at 

147). At no time in his postconviction petition or at the evidentiary hearing did defendant address 

this issue. Thus, while it is arguable defendant’s petition could have failed on that basis alone, in 

any case, it may be said that defendant’s postconviction review has received more process than 

was due. 

¶ 27 III. CONCLUSION
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¶ 28 For the reasons stated, we affirm the trial court’s judgment denying defendant’s 

postconviction petition. 

¶ 29 Affirmed.