                                                                      FIRST DIVISION
                                                                      March 31, 2008




No. 1-06-0032

THE PEOPLE OF THE STATE OF ILLINOIS,                  )       Appeal from the
                                                      )       Circuit Court of
       Plaintiff-Appellee,                            )       Cook County.
                                                      )
       v.                                             )       No. 99 CR 22151
                                                      )
ERIC MARSHALL,                                        )       The Honorable
                                                      )       Joseph G. Kazmierski,
       Defendant-Appellant.                           )       Judge Presiding.



       PRESIDING JUSTICE CAHILL delivered the opinion of the court:

       Defendant Eric Marshall appeals the dismissal of his petition under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). In 2000, defendant pled guilty to

one count of armed violence in exchange for a seven-year prison sentence. His conviction and

sentence were affirmed on direct appeal. People v. Marshall, No. 1-00-3698 (November 12,

2002) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).

       In 2003, defendant filed a petition under the Act, claiming he did not receive the "benefit

of his bargain" when a three-year term of mandatory supervised release was added to the seven-

year prison term he had accepted in a plea agreement. See 730 ILCS 5/5-8-1(d)(1) (West 2000)

(in general, every sentence for a Class X felony must include a sentence of three years' mandatory

supervised release in addition to a prison term). Defendant's petition survived the first stage of
1-06-0032


postconviction proceedings. 725 ILCS 5/122- 2.1(a)(2) (West 2002). It was dismissed at the

second stage on the State's motion. 725 ILCS 5/122- 2.1(b) et seq. (West 2002). Defendant

appeals. We affirm but vacate the $90 fee assessed to defendant under section 22-105 of the

Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2004)) (frivolous lawsuits filed by

prisoners).

       Defendant was arrested in 1999 after police found a loaded gun under the car he was

driving and 15 packets of cocaine on his person. Marshall, slip op. at 2. In pretrial proceedings

on March 8, 2000, Leonard Schultz, defendant’s retained counsel, requested a plea conference

under Supreme Court Rule 402 (177 Ill. 2d R. 402). The trial judge asked defendant: "[Do you]

want me to have the [plea] conference with your attorney?" Defendant answered, "Yes." After

the conference, Schultz said: "I have communicated the results of the conference. My client

would like an opportunity to think about the offer made by the State." The matter was continued

until April 19, 2000, when the following took place:

               "MR. SCHULTZ: [The court] yesterday [on April 18, 2000] graciously

       offered seven years in return for a plea. I believe [defendant] is ready to do that at

       this time.

               I am asking him now to execute the appropriate waivers in light of his

       decision.

               Is that right?

               [DEFENDANT]: I want a continuance.

               MR. SCHULTZ: Judge, my client just said to me he wanted a

                                                 2
1-06-0032


      continuance.

             For what reason, exactly?

             [DEFENDANT]: To think.

             MR. SCHULTZ: ***

             Judge, my client is asking the Court to have a couple more days or a day

      *** to consider his decision.

             THE COURT: I'm setting the matter for trial.

             MR. SCHULTZ: Okay, Judge.

             THE COURT: Nobody will force Mr. Marshall to do anything. But I've

      given him a lot of time to think of what he wants to do in this matter.

             So, if you don't want to do it today we will set it down for trial. That's the

      way the matter will be disposed of.

             Pick a date, Mr. Schultz.

             [DEFENDANT]: All right. Go ahead.

             MR. SCHULTZ: *** My client has just indicated that it's his desire and a

      very wise choice to take advantage of the offer that the Court has given him.

                                              ***

             THE COURT: Mr. Marshall, there was a conference about your case the

      other day and we continued it.

             Have you had a chance to talk to your attorney about that conference and

      what we talked about in the conference?

                                                3
1-06-0032


               [DEFENDANT]: Yes.

               THE COURT: ***

               I have before me a charge of armed violence.

               How do you plead–guilty or not guilty?

               [DEFENDANT]: Guilty.

               THE COURT: This is what is called a Class X felony. Now the sentence

      on this charge *** goes from a period in the penitentiary from 6 years up to 30

      years.

               You could be fined or you could get a penitentiary sentence and have to

      serve a period of three years['] mandatory supervised release, which is like parole,

      when you get out of the penitentiary.

               Those are the different types of sentences and the range of sentences you

      can get for this charge.

               ***

               Do you understand that?

               [DEFENDANT]: Yes.

               THE COURT: When you plead guilty you give up your right to any type

      of trial, either jury or bench.

                                                 ***

               THE COURT: By signing this piece of paper that means you don't want a

      jury trial in the matter; is that right?

                                                  4
1-06-0032


             [DEFENDANT]: Yes.

             THE COURT: ***

             [When you plead guilty you] also give up your right *** to bring in your

      own witnesses to testify for you ***.

             When you plead guilty you give up all those rights.

             Do you understand that?

             [DEFENDANT]: Yes.

                                              ***

             THE COURT: [O]ther than what I told you I would sentence you to in the

      conference I had with your attorney and the State's Attorney[,] has anyone

      promised you anything else, has anybody forced you to plead guilty today?

             [DEFENDANT]: No.

             THE COURT: Find the plea of guilty is knowingly and voluntarily given

      and accepted. Finding of guilty. Judgment on the finding.

                                              ***

             THE COURT: [A]nything you want to say before I impose sentence? ***

             [DEFENDANT]: No.

             THE COURT. Okay. Based [on] the facts of the case, also your prior

      history of criminal behavior *** I'm going to sentence you *** to a term of seven

      years [with the] Illinois Department of Corrections."

      On May 11, 2000, defendant moved to vacate his plea, claiming trial counsel: (1) failed to

                                               5
1-06-0032


contact exculpatory witnesses; (2) "became lazy" when counsel failed to obtain an additional

$10,000 from defendant's family; and (3) coerced defendant by threatening a 25-year sentence

unless he pled guilty. The trial court appointed Colleen Koch, assistant Public Defender, as

postplea counsel. At proceedings on July 25, 2000, Koch said: "I have spoken with [defendant]

extensively. I spoke with one of his witnesses right now." The witness was defendant's girlfriend

Crystal Baggett. Koch also filed a certificate under Supreme Court Rule 604(d) (210 Ill. 2d R.

604(d)), stating she had consulted with defendant to determine his contentions of error as to the

plea, examined the trial court record and made amendments to defendant's motion. Koch moved

to admit the affidavits of Donnell Black and Laron Smith, who stated defendant had been arrested

while merely sitting in a parked car. The judge allowed these documents entered in the case file

but found they were not true affidavits as they were not notarized or in proper form.

       At the hearing on defendant's motion to vacate the plea, defendant said Schultz failed to

investigate or call his exculpatory witnesses and coerced him by saying the judge would not

believe the witnesses. Defendant said he had wanted a continuance, but "it seemed like I couldn't

get one.” Defendant said he thought accepting seven years was “playing it safe,” but he had

second thoughts after a discussion with Baggett. Defendant admitted on cross-examination that

he was not forced to accept the plea and he could have had a trial. Defendant admitted the

transcript of the plea hearing was correct where it showed that the judge said: "You could be

fined or you could get a penitentiary sentence and have to serve a period of three years[']

mandatory supervised release ***." (Emphasis added.)

       Schultz also testified. He said the Rule 402 conference happened over a period of time,

                                                 6
1-06-0032


beginning on March 8, 2000, and continuing on April 18 and 19, 2000. Schultz said he discussed

the results with defendant in detail at each juncture. Schultz denied telling defendant the police

would be believed over defendant's witnesses. He denied telling defendant the witnesses refused

to testify. Schultz admitted he did not subpoena the witnesses.

        The trial court denied defendant’s motion to vacate his plea, finding it was knowing and

voluntary. The court found defendant had not suffered ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

        Defendant argued on direct appeal: (1) the factual basis for the charge of armed violence

was inadequate; (2) defense counsel was ineffective for failing to argue an insufficient factual

basis; and (3) the consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466, 147 L.

Ed. 2d 435, 120 S. Ct. 2348 (2000). Marshall, slip op. at 1. As noted, we affirmed. Marshall,

slip op. at 4.

        Defendant filed a pro se postconviction petition on April 17, 2003, claiming violations of

his rights under the fifth, sixth and fourteenth amendments to the United States Constitution. He

argued that postplea counsel: (1) failed to challenge the factual basis for the plea; (2) failed to

investigate; and (3) had a conflict of interest. He argued that appellate counsel was ineffective for

failing to argue: (1) the police lacked probable cause; (2) he was not advised of his rights under

Miranda; (3) the evidence was insufficient to support a conviction of armed violence; and (4) the

prosecution withheld evidence favorable to him. Defendant later filed pro se supplements to this

petition, adding claims of constitutional violations: (1) three years of mandatory supervised

release exceeded the terms of his plea agreement; and (2) he was not properly admonished under

                                                   7
1-06-0032


Supreme Court Rule 402 (177 Ill. 2d R. 402) before the trial court accepted his guilty plea.

       The trial court granted defendant's motion to appoint postconviction counsel. Defendant

then moved to proceed pro se, claiming appointed counsel had declined to argue the grounds

defendant wanted. Counsel later filed a certificate under Supreme Court Rule 651(c) (134 Ill. 2d

R. 651(c)), stating counsel had consulted with defendant and ensured that defendant's pro se

petition adequately presented his contentions. Counsel attached defendant's 23-page pro se

addendum and witness affidavits. Baggett stated in her affidavit that Schultz told her his fee for a

trial would be $10,000. She said Schultz told defendant that the judge would find him guilty. She

said Schultz pressured defendant, who was "tired, hopeless and confused," to accept the plea. In

a second affidavit, Baggett said she told postplea counsel that trial counsel had failed to call

defendant's exculpatory witness. Baggett said she was present and ready to testify at the hearing

on defendant's motion to withdraw his plea but postplea counsel did not call her. The affidavits of

Lisa Jordan and Gyrone Addison stated that on August 29, 1999, they saw defendant sitting

inside a parked car when police officers approached and arrested him.

       On November 14, 2005, the State moved to dismiss defendant's postconviction petition

and supplements. On December 15, 2006, defendant moved pro se to dismiss the motion. In

addition to his earlier claims, defendant argued his constitutional rights were violated by

improprieties in the laboratory analysis of the cocaine allegedly recovered from his person.

        The trial court granted the State's motion to dismiss, finding defendant's claims were

rebutted by the record and he had failed to state substantial violations of his constitutional rights.

The court imposed a postconviction filing fee of $90.

                                                   8
1-06-0032


       Defendant claims on appeal that his petition should have survived the State's motion,

arguing: (1) his claims of ineffective assistance of appellate and postplea counsel warranted an

evidentiary hearing because: (a) the record showed appellate counsel was ineffective for failing to

challenge the voluntariness of the guilty plea, and (b) postplea counsel was ineffective for failing

to call Baggett to attest to trial counsel's coercion; (2) the three-year term of mandatory

supervised release was not part of his plea agreement; and (3) the imposition of the $90 fee must

be vacated because: (a) it lacks statutory authority, (b) section 22-105 of the Code of Civil

Procedure (Code) (735 ILCS 5/22-105 (West 2004)), which imposes an assessment of court costs

and fees for frivolous lawsuits, does not apply here because the court never deemed his petition

"frivolous," and (c) section 22-105 of the Code (735 ILCS 5/22-105 (West 2004)) violates his

state and federal constitutional rights: (i) by targeting "prisoners" to the exclusion of other

indigent petitioners in violation of the equal protection clause; and (ii) by subjecting indigent

petitioners to pecuniary punishment for exercising a State-granted postconviction remedy in

violation of the due process right of meaningful access to the courts.

       “The [Post-Conviction Hearing] Act provides a three-stage process for the adjudication of

post-conviction petitions.” People v. Boclair, 202 Ill. 2d 89, 99, 789 N.E.2d 734 (2002). The

trial court first determines whether the postconviction petition is “frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2000). If it is, the court will dismiss the petition in a

written order. 725 ILCS 5/122-2.1(a)(2) (West 2000). If the petition is not dismissed, it

proceeds to the second stage, where the trial court may appoint counsel for an indigent defendant.

725 ILCS 5/122-4 (West 2000); Boclair, 202 Ill. 2d at 99. The State then has the option of

                                                   9
1-06-0032


moving to dismiss the petition. 725 ILCS 5/122-5 (West 2000); Boclair, 202 Ill. 2d at 99. If the

State does not file a motion to dismiss or if the trial court denies the State's motion, the matter

proceeds to the third stage where the court may order the petitioner brought before the court for

an evidentiary hearing on the merits. 725 ILCS 5/122-6 (West 2000); Boclair, 202 Ill. 2d at 99.

        A petition will be dismissed at the second stage of the proceedings where "the allegations

in the petition, liberally construed in light of the trial record, fail to make a substantial showing of

a constitutional violation.” People v. Hall, 217 Ill. 2d 324, 334, 841 N.E.2d 913 (2005). We

review de novo the dismissal of a postconviction petition without an evidentiary hearing. Hall,

217 Ill. 2d at 334.

        Defendant first claims his petition should not have been dismissed because appellate

counsel rendered ineffective assistance in failing to argue his plea was involuntary and coerced by

trial counsel. The State argues these claims are barred by the principle of res judicata because

defendant has merely rephrased the issues resolved on direct appeal, citing People v. Emerson,

153 Ill. 2d 100, 106-07, 606 N.E.2d 1123 (1992), and People v. Williams, 186 Ill. 2d 55, 62, 708

N.E.2d 1152 (1999).

        "Because a proceeding brought under the Act is a collateral attack on a judgment of

conviction, all issues actually decided on direct appeal are res judicata, and all issues which could

have been raised in the original proceeding, but were not, are waived." People v. Mahaffey, 194

Ill. 2d 154, 170, 742 N.E.2d 251 (2000). But the doctrine of res judicata is relaxed under certain

circumstances such as when the alleged waiver stems from the ineffective assistance of appellate

counsel. Mahaffey, 194 Ill. 2d at 171.

                                                   10
1-06-0032


        Here, defendant alleges ineffective assistance of appellate counsel. On direct appeal, we

rejected defendant's claim that trial counsel was ineffective for failing to challenge the factual basis

for the charge of armed violence. But appellate counsel did not challenge the voluntariness of

defendant's plea and this court made no ruling on the issue.

        Claims of ineffective assistance of appellate counsel are reviewed under the two-pronged

test established in Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at

2064, 2068, and People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988). Appellate counsel

renders ineffective assistance where: (1) counsel's failure to raise an issue on appeal was

objectively unreasonable; and (2) counsel's decision caused prejudice to the defendant. People v.

Jones, 219 Ill. 2d 1, 23, 845 N.E.2d 598 (2006). Appellate counsel need not present every

conceivable issue or nonmeritorious issues. Jones, 219 Ill. 2d at 23. We review the underlying

merits of a defendant's claim to ascertain whether he was prejudiced by appellate counsel's failure

to raise an issue. Jones, 219 Ill. 2d at 23.

        Here, defendant claims there was merit to his claim that his plea was involuntary. Due

process requires a guilty plea to be entered voluntarily and knowingly by the defendant. People v.

Kidd, 129 Ill. 2d 432, 443, 544 N.E.2d 704 (1989), citing Boykin v. Alabama, 395 U.S. 238, 23

L. Ed. 2d 274, 89 S. Ct. 1709 (1969). A trial court cannot accept a guilty plea unless it

substantially complies with Boykin and its codification in Supreme Court Rule 402 (177 Ill. 2d R.

402). Kidd, 129 Ill. 2d at 443. Rule 402(a) requires substantial compliance by the trial court in

admonishing a defendant on: (1) the nature of the charge; (2) the minimum and maximum

sentences; (3) the right to plead not guilty; and (4) the waiver of his right to trial. 177 Ill. 2d R.

                                                   11
1-06-0032


402(a). The trial court must determine whether the plea is voluntary before accepting it. 177 Ill.

2d R. 402(b). To do so, the trial judge must state the terms of the plea agreement and the

defendant must confirm the terms in open court. 177 Ill. 2d R. 402(b). "Where the trial record

refutes [a] defendant's assertions that his plea was not knowingly and voluntarily entered, courts

may properly dismiss or deny a defendant's [postconviction] petition.” People v. Fern, 240 Ill.

App. 3d 1031, 1041, 607 N.E.2d 951 (1993).

       Here, the transcript of the plea proceedings shows the trial court gave the admonishments

required by Rule 402(a) (177 Ill. 2d R. 402(a)). The trial judge told defendant the charge of

armed violence was considered a Class X felony with a minimum sentence of 6 years and a

maximum sentence of 30 years. The judge said defendant "could get a penitentiary sentence and

have to serve three years['] mandatory supervised release." The judge offered defendant the

opportunity to plead not guilty and informed him of the rights he would be relinquishing by

pleading guilty, including the right to call witnesses in his behalf. Defendant answered

affirmatively the judge's questions of whether he understood the admonishments. Defendant

answered "no" when asked if anyone had forced him to plead guilty. The trial court found the

guilty plea to be "knowingly and voluntarily given and accepted." This record contradicts

defendant's contention that the plea was involuntary.

       The transcript of the postplea proceedings shows defendant admitted he was told he could

be sentenced to mandatory supervised release in addition to a penitentiary sentence and a $90 fee.

There is no merit to defendant's claim that his plea was involuntary. Appellate counsel was not

obligated to plead a nonmeritorious issue and defendant suffered no prejudice from counsel's

                                                12
1-06-0032


failure to do so. See Jones, 219 Ill. 2d at 23.

       Defendant relies on People v. Davis, 145 Ill. 2d 240, 244, 582 N.E.2d 714 (1991), to

argue appellate counsel was ineffective for failing to argue that trial counsel misrepresented the

agreement terms when he did not mention the possibility of mandatory supervised release. In

Davis, the defendant's reason for accepting an "open" plea agreement was to enable him to enter a

drug treatment program instead of incarceration. Davis, 145 Ill. 2d at 245. Three days before

sentencing, an employee of the drug treatment program informed the defendant he would not be

eligible. Davis, 145 Ill. 2d at 245. Neither the prosecution nor the defense told the trial judge

that the defendant's qualification for the treatment program was part of the plea agreement.

Davis, 145 Ill. 2d at 246. The trial court imposed a 10-year prison sentence. Davis, 145 Ill. 2d at

243. Our supreme court determined that the defendant's misapprehension about drug treatment,

when considered with other errors, justified reversal of the trial court’s denial of defendant’s

motion to withdraw his guilty plea. Davis, 145 Ill. 2d at 251.

       Here, defendant does not argue and the record does not show that defendant accepted the

plea agreement with the understanding that mandatory supervised release would be waived. The

trial court told defendant that a three-year period of mandatory supervised release would

accompany a penitentiary sentence. Defendant said he understood the types of sentences he could

receive. Defendant admitted at the hearing on his postplea motion that he knew mandatory

supervised release went with a penitentiary sentence. The errors in Davis are not present here.

       Defendant next argues that postplea counsel was ineffective for failing to call Baggett,

who would have stated that trial counsel coerced defendant's plea. Defendant argues he informed

                                                  13
1-06-0032


postplea counsel of Baggett's availability, but counsel failed to call her despite Baggett's presence

in the courtroom. Defendant argues Baggett made three affidavits, all of which showed trial

counsel coerced defendant to accept the plea and disregarded his witnesses.

       The State argues the record refutes defendant’s claim that postplea counsel was

ineffective, based on counsel's certificate under Rule 604(d) (210 Ill. 2d R. 604(d)). In it counsel

stated she spoke with defendant extensively, knew of his witnesses and had talked to one witness,

presumably Baggett, in court. Postplea counsel also filed an amended motion to vacate the plea,

presenting defendant’s claims of coercion in his 23-page pro se addendum to his petition.

       A defendant is entitled to the assistance of counsel in preparing and presenting a motion to

withdraw his guilty plea. People v. Janes, 158 Ill. 2d 27, 35, 630 N.E.2d 790 (1994). Supreme

Court Rule 604(d) establishes the duties of counsel in assisting a defendant in a motion to

withdraw a guilty plea and in protecting the defendant's due process rights (210 Ill. 2d R. 604(d)).

Janes, 158 Ill. 2d at 35. As to defendant's claim that postplea counsel should have called his

witnesses, we note that “[t]he decision whether to call particular witnesses is a matter of trial

strategy and *** will not ordinarily support an ineffective-assistance-of-counsel claim.” People v.

Patterson, 217 Ill. 2d 407, 442, 841 N.E.2d 889 (2005).

       Here, the certificate filed by postplea counsel and the transcript of the hearing on the

motion to withdraw the plea support the conclusion that counsel complied with Rule 604(d) (210

Ill. 2d R. 604(d)). Counsel's decision not to call Baggett was not objectively unreasonable. See

Jones, 219 Ill. 2d at 23. Counsel had seen Baggett's unsigned and improperly formatted affidavits

and had spoken to her in court. Counsel may have concluded that Baggett would not have been

                                                 14
 1-06-0032


 persuasive because of her close relationship with defendant, or that her statements were

 insufficient to overcome the evidence in the record or that cross-examination would have been

 damaging. Postplea counsel did not render ineffective assistance in her strategic decision not to

 call Baggett as a witness. See Patterson, 217 Ill. 2d at 442.

        Defendant cites People v. Brown, 336 Ill. App. 3d 711, 720, 784 N.E.2d 296 (2002),

where this court concluded that a postconviction petition was improperly dismissed at the first

stage because counsel was ineffective in failing to call the defendant and witnesses who had

corroborated the defendant's alibi in their affidavits. The defendant argued that without those

errors, he would have “sufficiently raised the gist of a constitutional claim.” Brown, 336 Ill. App.

3d at 720-21. This court said, “We can think of no strategic reason why defense counsel would

refuse to present this exculpatory evidence of which he was aware, or prevent petitioner from

testifying in his own defense, especially in light of the fact that this case was one of an

uncorroborated defense.” Brown, 336 Ill. App. 3d at 720. Defendant also cites People v. Tate,

305 Ill. App. 3d 607, 612, 712 N.E.2d 826 (1999), where this court reversed the dismissal of a

postconviction petition after finding that defense counsel failed to call a witness whose testimony

would have supported an otherwise uncorroborated defense. Tate, 305 Ill. App. 3d at 612.

Defendant also cites People v. Makiel, 358 Ill. App. 3d 102, 109, 830 N.E.2d 731 (2005), where

this court reversed the dismissal of the defendant's postconviction petition and remanded the

matter for an evidentiary hearing. We determined that defense counsel's failure to investigate and

subpoena a witness, whose unrebutted affidavit impeached the testimony of the prosecution's main

witness, satisfied the prejudice prong of Strickland. Makiel, 358 Ill. App. 3d at 109.

                                                   15
 1-06-0032


       These opinions are not controlling here. All three arose from counsel's failure to call

witnesses who the defendants claimed had direct knowledge of an alibi or other uncorroborated

defense. Here, the only direct knowledge attributed to Baggett is her contention that Schultz told

her it would cost $10,000 to take the case to trial. This statement alone does not establish that

either trial counsel, postplea counsel or appellate counsel rendered ineffective assistance in failing

to call Baggett to testify about Schultz's conduct. All other material in her "affidavit" pertains

merely to her observations of defendant. She could not have testified to the circumstances of the

plea because she was not present in the plea discussions between defendant and Schultz and she

could not have direct knowledge of defendant's interactions with counsel.

       We next consider whether the court erred in dismissing defendant's petition despite his

claims that the three-year term of mandatory supervised release was not part of his plea agreement.

Defendant argues this claim is supported by the record, which shows the trial court never advised

him before he pled guilty that he would have to serve a term of mandatory supervised release.

Defendant relies on People v. Whitfield, 217 Ill. 2d 177, 840 N.E.2d 658 (2005), to argue his

prison sentence must be reduced by three years to offset the three-year term of supervised release,

giving him the benefit of his bargain—a seven-year sentence. Our supreme court in Whitfield

found a substantial violation of the defendant's constitutional rights where the record showed the

"defendant's guilty plea was induced by the promise of a specific sentence, which he did not

receive." Whitfield, 217 Ill. 2d at 201-02.

       The State maintains the transcript here clearly shows defendant was admonished as

required under Rule 402 (177 Ill. 2d R. 402). The State points to the court's admonishment: “You

                                                  16
1-06-0032


could be fined or you could get a penitentiary sentence and have to serve a period of three years

mandatory supervised release.” The State claims this clearly shows the imposition of a penitentiary

sentence carried with it three years of mandatory supervised release. The State argues neither Rule

402 nor Whitfield requires that mandatory supervised release be mentioned at a precise moment in

time. The State argues only substantial compliance with Rule 402 is required, citing People v.

Fuller, 205 Ill. 2d 308, 323, 793 N.E.2d 526 (2002).

       In Whitfield, the defendant contended that "his constitutional right to due process and

fundamental fairness was violated because he pled guilty in exchange for a specific sentence, but

received a different, more onerous sentence than the one he agreed to." Whitfield, 217 Ill. 2d at

188-89. The supreme court agreed. Whitfield, 217 Ill. 2d at 189. It fashioned a remedy based on

its review of state and federal law that would accord "considerable" deference to the bargain the

defendant believed he had struck. Whitfield, 217 Ill. 2d at 205. The court concluded "the

appropriate remedy is to modify defendant's [25-year] sentence to a term of 22 years of

imprisonment, to be followed by the mandatory 3-year term of supervised release." Whitfield, 217

Ill. 2d at 205. Defendant here claims the same error and seeks the same remedy as in Whitfield.

       We believe Whitfield is distinguishable. There, the court never mentioned a 3-year

mandatory supervised release requirement to the defendant who pled guilty in exchange for a 25-

year sentence. Whitfield, 217 Ill. 2d at 186. Here, the three-year term was mentioned to

defendant and he said he understood.

       We find a better analogy in People v. Jarrett, 372 Ill. App. 3d 344, 352, 867 N.E.2d 1173

(2007), where the circumstances were similar to those here. In Jarrett, the transcript of the plea

                                                 17
1-06-0032


hearing showed the trial judge told the defendant he "was charged with a Class X felony that 'has a

possible sentence of from 6 to 30.' " Jarrett, 372 Ill. App. 3d at 345. The judge also said:

" 'There's what's called mandatory supervised release, what we used to call parole, up to 3

years.' " (Emphasis in original.) Jarrett, 372 Ill. App. 3d at 345-46. When the judge asked the

defendant if he understood the penalties, the defendant said "yes." Jarrett, 372 Ill. App. 3d at 346.

The written sentencing judgment reflected the term of mandatory supervised release. Jarrett, 372

Ill. App. 3d at 352. The defendant later argued in a postconviction petition he was not informed

that a 3-year term of mandatory supervised release would be added to his agreed-on 10-year cap.

Jarrett, 372 Ill. App. 3d at 348. On appeal, this court found the admonishment given by the court

to be accurate and in compliance with the statutory requirement. Jarrett, 372 Ill. App. 3d 352.

" ' [T]he burden is on the defendant to establish that the circumstances existing at the time of the

plea, judged by objective standards, justified the mistaken impression.' ” Jarrett, 372 Ill. App. 3d at

352, quoting Davis, 145 Ill. 2d at 244. The court distinguished Whitfield: "we decline the

invitation to expand Whitfield, which only applies where the judge failed to entirely mention MSR

before taking the plea and failed to include it in the judgment of sentence." (Emphasis added.)

Jarrett, 372 Ill. App. 3d at 352. Here, although the judge did not mention mandatory supervised

release at sentencing or in the written sentencing judgment, he did advise defendant of the

requirement before accepting the plea. This met the statutory requirement.

       We also join with the court in Jarrett in emphasizing that "the trial court's admonishment

could have been improved by explicitly stating that MSR was in addition to any sentence he

received." Jarrett, 372 Ill. App. 3d at 352. The better practice would incorporate the mandatory

                                                  18
 1-06-0032


supervised release admonition when the specific sentencing is announced. The written sentencing

judgment also should include the term of mandatory supervised release. Jarrett, 372 Ill. App. 3d at

352.

          Defendant's final claim is the circuit court's assessment of a $90 fee must be vacated. He

first argues that the fee should not be assessed because section 22-105 of the Code does not

provide for it (735 ILCS 5/22-105 (West 2000)). He also maintains that the fee must be vacated

because the trial court neither dismissed his petition at the first stage of postconviction proceedings

as frivolous nor explicitly found his petition to be frivolous in the second stage where it was

dismissed on the State’s motion.

          Section 22-105(a) of the Code provides that when a prisoner files a petition under the Act

that a court specifically finds to be frivolous, the prisoner is responsible for filing fees and actual

court costs. 735 ILCS 5/22-105(a) (West 2000). A "frivolous" pleading is defined under section

105(b) of the Code as a pleading that "lacks an arguable basis either in law or in fact" or contains

"allegations *** [that] do not have evidentiary support." 735 ILCS 5/22-105(b)(1), (b)(4) (West

2006). The purpose of the statute is to discourage frivolous petitions and reduce their impact on

the efficiency of our judicial system. People v. Gale, 376 Ill. App. 3d 344, 360, 876 N.E.2d 171

(2007).

          Here, the trial court concluded: “many of the facts that are listed in all of the various

pleadings that the defendant has filed are contradicted by the record itself, both with the plea and

other matters that were before this court.” But the trial court did not find the petition to be

frivolous under section 22-105 and so it erred in imposing the $90 fee.

                                                     19
1-06-0032


     The judgment of the circuit court is affirmed and the $90 fee is vacated.

     Affirmed in part and vacated in part.

     WOLFSON and GARCIA, JJ., concurring.




                                              20
