                             NO. 4-06-0422     Filed 4/13/07

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellee,           )    Circuit Court of
          v.                            )    Champaign County
WILLIAM O. HOLT,                        )    No. 03CF25
          Defendant-Appellant.          )
                                        )    Honorable
                                        )    Thomas J. Difanis,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          Defendant, William O. Holt, pleaded guilty to burglary,

and the trial court sentenced him as a Class X offender due to

his prior record.   The court sentenced Holt to 13 years' impris-

onment and 3 years' mandatory supervised release (MSR).    Holt did

not file a direct appeal.    In a petition for postconviction

relief, Holt alleged that he only agreed to the 13-year sentence

in the plea agreement and that the addition of the MSR term

constituted an unfair breach of the plea agreement and violated

his due-process rights.   The trial court dismissed the

postconviction petition at the first stage as frivolous and

patently without merit.   We affirm.

                             I. BACKGROUND

          In compliance with Supreme Court Rule 402(a)(2) (177

Ill. 2d R. 402(a)), which requires the court to inform a defen-

dant of the maximum and minimum sentences proscribed by law for
the crime charged, the following exchange took place at the

guilty-plea proceedings:

                 "THE COURT:   Now this is a Class 2 fel-

          ony.   The normal penalty range is not less

          than three, nor more than seven years in

          prison.

                 If you have two Class 2 or greater con-

          victions since the amended criminal code went

          into effect in 1977, then this becomes a

          Class X offense, which calls for a mandatory

          minimum sentence of 6 years, with a maximum

          sentence fixed at 30 years.      If you are sent

          to prison, there [is] a period of mandatory

          supervised release of one-three years.      And

          the maximum fine could be up to $25,000.

                 Do you understand those would be the

          maximum penalties for this offense?

                 HOLT:   Yes, sir."   (Emphasis added.)

The trial court proceeded to admonish Holt that by pleading

guilty he would waive certain constitutional rights.        Then, as

required by Rule 402(b) (177 Ill. 2d R. 402(b)), the court asked

the State to explain the terms of the plea agreement in open

court:

                 "THE STATE:   Your Honor, in exchange for


                                 - 2 -
            the [d]efendant's offer to plead guilty to

            the charge of burglary, the Class 2 felony,

            as set forth in count I, the State has agreed

            to recommend a commitment to the Illinois

            Department of Corrections for a period of 13

            years, with the [d]efendant receiving credit

            for 247 days.

                 Additionally, the State will dismiss

            2003-CF-1068 and 2003-CF-1942. ***

                 THE COURT:   Mr. Holt, you heard what

            [the State's Attorney] said.   Is that your

            agreement?

                 HOLT:   Yes sir."   (Emphasis added.)

The State's recitation of the plea agreement did not mention the

MSR term.    The trial court sentenced Holt to 13 years but the

sentencing order made no reference to the 3-year MSR term.     Holt

did not file a direct appeal.

            Holt filed a petition for postconviction relief,

alleging that the State violated the terms of the plea agreement

by adding a three-year MSR term to his sentence and requested the

trial court to reduce his prison sentence by the length of his

MSR term.    Defendant categorized his plea agreement as fully

negotiated.    The trial court dismissed the petition, noting that

Holt had been clearly admonished at hearing that there would be a


                                 - 3 -
three-year MSR attached to any prison term under the Class X

sentencing scheme.   Accordingly, the trial court found Holt's

postconviction petition to be "intentionally deceptive" as well

as frivolous and without merit.    This appeal followed.

                             II. ANALYSIS

          We review first-stage postconviction dismissals by

determining whether the allegations contained in the petition are

frivolous or patently without merit.    725 ILCS 5/122-2.1 (West

2004).   A petition is frivolous or patently without merit if the

allegations contained therein, taken as true and liberally

construed in favor of the petitioner, fail to present the "gist"

of a constitutional claim.    People v. Edwards, 197 Ill. 2d 239,

244, 757 N.E.2d 442, 445 (2001).    The "gist" standard is a low

threshold; the petitioner need only set forth a limited amount of

detail, need not set forth the claim in its entirety, and need

not include citation to legal authority.    Edwards, 197 Ill. 2d at

244, 757 N.E.2d at 445.   The standard of review for the first-

stage dismissal of a postconviction petition is de novo.     People

v. Collins, 202 Ill. 2d 59, 66, 782 N.E.2d 195, 198 (2002).

          Holt cites People v. Whitfield, 217 Ill. 2d 177, 840

N.E.2d 658 (2005), as the sole authority in support of his

argument that his due-process rights were violated.    Holt argues

that because he pleaded guilty for a specific sentence (i.e., 13

years), the addition of the MSR term resulted in a sentence "more


                                - 4 -
onerous than the one defendant agreed to at the time of the

hearing."   Whitfield, 217 Ill. 2d at 195, 840 N.E.2d at 669.

            A defendant's due-process rights may be violated where

the defendant did not receive the "benefit of the bargain" of his

plea agreement with the State.     Whitfield, 217 Ill. 2d at 186,

840 N.E.2d at 664.   The defendant in Whitfield argued that the

trial court was required under Rule 402 to admonish him on the

record of the statutorily required MSR term.     Whitfield, 217 Ill.

2d at 186, 840 N.E.2d at 664-65.    The defendant argued that

because the court failed to admonish the defendant of the statu-

torily required MSR term, the defendant's plea agreement included

only the stated prison sentence and not the additional MSR term.

Whitfield, 217 Ill. 2d at 186, 840 N.E.2d at 665.    The court held

that the defendant did not receive the benefit of the bargain

because the addition of the MSR term resulted in a more onerous

sentence than the one agreed to at the hearing.     Whitfield, 217

Ill. 2d at 195, 840 N.E.2d at 669.

            Whitfield is distinguishable from the instant case.     In

Whitfield, there was no mention of the MSR term during the

entirety of the plea proceedings.    The defendant was not aware of

the consequences of his plea.    See Whitfield, 217 Ill. 2d at 200-

01, 840 N.E.2d at 672-73.   Implicit in the Whitfield court's

reasoning is that had the defendant been aware of the MSR term

that the court was statutorily required to attach to his prison


                                 - 5 -
sentence, then the defendant's due-process rights would not have

been violated.   See Whitfield, 217 Ill. 2d at 200-01, 840 N.E.2d

at 672-73.   Here, the trial court admonished Holt of the follow-

ing: "if you are sent to prison, there [is] a period of mandatory

supervised release of one-three years."   Holt stated that he

understood this.   Accordingly, Holt was aware that any prison

sentence would carry with it a three-year MSR term.   Holt re-

ceived the benefit of his bargain with the State.

          Holt argues that it was not enough for the trial court

to admonish him of the statutorily required MSR term and that the

State should have explicitly mentioned the MSR term when it

recited the plea agreement in open court.   Holt cites Justice

Thomas's specially concurring opinion, which states that the

purpose of the open-court statement and personal confirmation of

the terms of the plea agreement is to reduce what is typically an

oral understanding to a matter of record.   Whitfield, 217 Ill. 2d

at 209, 840 N.E.2d at 677 (Thomas, C.J., specially concurring).

Justice Thomas states that "[t]his is analogous to a contract

setting where the parties' oral negotiations are reduced to a

written contract, with all previous understandings merging into

the written contract."   Whitfield, 217 Ill. 2d at 209, 840 N.E.2d

at 677 (Thomas, C.J., specially concurring).

          We first note that concurring opinions, while persua-

sive, are not binding authority.   People v. Patterson, 276 Ill.


                               - 6 -
App. 3d 107, 108, 658 N.E.2d 505, 506 (1995).    More important, we

do not read Justice Thomas's statements to mean that Rule 402(b),

which states that plea agreements must be read in open court, now

requires strict compliance.    Other courts have held that only

substantial compliance with Rule 402(b) is required.     People v.

Mehmedoski, 207 Ill. App. 3d 275, 280, 565 N.E.2d 735, 739

(1990).   Here, the record indicates that Holt was aware that the

three-year MSR term would be attached to any prison sentence.

The State's failure to restate this requirement during its

recitation of the plea agreement did not violate Holt's due-

process rights.

          We note that Whitfield may also be distinguishable on

another ground.     Whitfield specifically distinguished itself from

situations where, as here, the State agrees to recommend a

certain sentence.     Whitfield, 217 Ill. 2d at 191, 840 N.E.2d at

667, citing People v. McCoy, 74 Ill. 2d 398, 403, 385 N.E.2d 696,

699 (1979).   Where the State only promises to recommend a sen-

tence and the total sentence imposed, including subsequent parole

periods, is substantially less than the maximum sentence autho-

rized by law, the court's failure to admonish defendant of the

subsequent parole period is not of a "constitutional dimension."

Whitfield, 217 Ill. 2d at 191, 840 N.E.2d at 667.    Also, where

the State only promises to recommend a certain sentence, the

defendant does receive the benefit of the bargain he made with


                                 - 7 -
the State.    Whitfield, 217 Ill. 2d at 191, 840 N.E.2d at 667.

Here, though defendant categorized his plea agreement as "fully

negotiated" and ratified by the trial court, we note that the

State categorized Holt's plea as "open."     Indeed, the State did

only agree to "recommend" a sentence of 13 years' imprisonment.

Moreover, applying the McCoy factors, Holt's 13-year sentence

plus 3-year MSR term was substantially less than the 30-year

maximum sentence authorized by law, and, unlike both McCoy and

Whitfield, the trial court did in fact admonish Holt as to the

MSR.

            We find Holt's petition to be frivolous and patently

without merit.

                           III. CONCLUSION

            For the foregoing reasons, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $50 against Holt as costs of this appeal.

            Affirmed.

            McCULLOUGH and KNECHT, JJ., concur.




                                - 8 -
