{ "id": 3627840, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC MARSHALL, Defendant-Appellant", "name_abbreviation": "People v. Marshall", "decision_date": "2008-03-31", "docket_number": "No. 1\u201406\u20140032", "first_page": "724", "last_page": "737", "citations": [ { "type": "official", "cite": "381 Ill. App. 3d 724" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "876 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. 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ERIC MARSHALL, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CAHILL\ndelivered the opinion of the court:\nDefendant Eric Marshall appeals the dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 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 People v. Marshall, No. 1 \u2014 00\u20143698 (November 12, 2002) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).\nIn 2003, defendant filed a petition under the Act, claiming he did not receive the benefit of his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 \u2014 8\u20141(d)(1) (West 2000) (in general, every sentence for a Class X felony must include a sentence of three years\u2019 mandatory supervised release in addition to a prison term). Defendant\u2019s petition survived the first stage of postconviction proceedings. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002). It was dismissed at the second stage on the State\u2019s motion. 725 ILCS 5/122 \u2014 2.1(b) et seq. (West 2002). Defendant appeals. We affirm but vacate the $90 fee assessed to defendant under section 22 \u2014 105 of the Code of Civil Procedure (Code) (735 ILCS 5/22 \u2014 105 (West 2004)) (frivolous lawsuits filed by prisoners).\nDefendant 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\u2019s retained counsel, requested a plea conference under Supreme Court Rule 402 (177 Ill. 2d R. 402). The trial judge asked defendant: \u201c[Do you] want me to have the [plea] conference with your attorney?\u201d Defendant answered, \u201cYes.\u201d After the conference, Schultz said: \u201cI have communicated the results of the conference. My client would like an opportunity to think about the offer made by the State.\u201d The matter was continued until April 19, 2000, when the following took place:\n\u201cMR. 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.\nI am asking him now to execute the appropriate waivers in light of his decision.\nIs that right?\n[DEFENDANT]: I want a continuance.\nMR. SCHULTZ: Judge, my client just said to me he wanted a continuance.\nFor what reason, exactly?\n[DEFENDANT]: To think.\nMR. SCHULTZ: ***\nJudge, my client is asking the Court to have a couple more days or a day *** to consider his decision.\nTHE COURT: I\u2019m setting the matter for trial.\nMR. SCHULTZ: Okay, Judge.\nTHE COURT: Nobody will force Mr. Marshall to do anything. But I\u2019ve given him a lot of time to think of what he wants to do in this matter.\nSo, if you don\u2019t want to do it today we will set it down for trial. That\u2019s the way the matter will be disposed of.\nPick a date, Mr. Schultz.\n[DEFENDANT]: All right. Go ahead.\nMR. SCHULTZ: *** My client has just indicated that it\u2019s his desire and a very wise choice to take advantage of the offer that the Court has given him.\n$ $ $\nTHE COURT: Mr. Marshall, there was a conference about your case the other day and we continued it.\nHave you had a chance to talk to your attorney about that conference and what we talked about in the conference?\n[DEFENDANT]: Yes.\nTHE COURT: ***\nI have before me a charge of armed violence.\nHow do you plead \u2014 guilty or not guilty?\n[DEFENDANT]: Guilty.\nTHE 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.\nYou could be fined or you could get a penitentiary sentence and have to serve a period of three yearsf] mandatory supervised release, which is like parole, when you get out of the penitentiary.\nThose are the different types of sentences and the range of sentences you can get for this charge.\nDo you understand that?\n[DEFENDANT]: Yes.\nTHE COURT: When you plead guilty you give up your right to any type of trial, either jury or bench.\nTHE COURT: By signing this piece of paper that means you don\u2019t want a jury trial in the matter; is that right?\n[DEFENDANT]: Yes.\nTHE COURT: ***\n[When you plead guilty you] also give up your right *** to bring in your own witnesses to testify for you ***.\nWhen you plead guilty you give up all those rights.\nDo you understand that?\n[DEFENDANT]: Yes.\n\u00edj\u00ed ij<\nTHE COURT: [0]ther than what I told you I would sentence you to in the conference I had with your attorney and the State\u2019s Attorneyt,] has anyone promised you anything else, has anybody forced you to plead guilty today?\n[DEFENDANT]: No.\nTHE COURT: Find the plea of guilty is knowingly and voluntarily given and accepted. Finding of guilty. Judgment on the finding.\niji :ji ^\nTHE COURT: [A]nything you want to say before I impose sentence? ***\n[DEFENDANT]: No.\nTHE COURT: Okay. Based [on] the facts of the case, also your prior history of criminal behavior *** I\u2019m going to sentence you *** to a term of seven years [with the] Illinois Department of Corrections.\u201d\nOn May 11, 2000, defendant moved to vacate his plea, claiming trial counsel: (1) failed to contact exculpatory witnesses; (2) \u201cbecame lazy\u201d when counsel failed to obtain an additional $10,000 from defendant\u2019s 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: \u201cI have spoken with [defendant] extensively. I spoke with one of his witnesses right now.\u201d The witness was defendant\u2019s 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\u2019s 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.\nAt the hearing on defendant\u2019s 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 \u201cit seemed like I couldn\u2019t get one.\u201d Defendant said he thought accepting seven years was \u201cplaying it safe,\u201d 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: \u201cYou could be fined or you could get a penitentiary sentence and have to serve a period of three yearsf\u2019] mandatory supervised release ***.\u201d (Emphasis added.)\nSchultz also testified. He said the Rule 402 conference happened over a period of time, 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\u2019s witnesses. He denied telling defendant the witnesses refused to testify. Schultz admitted he did not subpoena the witnesses.\nThe trial court denied defendant\u2019s 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).\nDefendant 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.\nDefendant 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 post-plea 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 Supreme Court Rule 402 (177 Ill. 2d R. 402) before the trial court accepted his guilty plea.\nThe trial court granted defendant\u2019s 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\u2019s pro se petition adequately presented his contentions. Counsel attached defendant\u2019s 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 \u201ctired, hopeless and confused,\u201d to accept the plea. In a second affidavit, Baggett said she told postplea counsel that trial counsel had failed to call defendant\u2019s exculpatory witness. Baggett said she was present and ready to testify at the hearing on defendant\u2019s 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.\nOn November 14, 2005, the State moved to dismiss defendant\u2019s 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.\nThe trial court granted the State\u2019s motion to dismiss, finding defendant\u2019s 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.\nDefendant claims on appeal that his petition should have survived the State\u2019s 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) post-plea counsel was ineffective for failing to call Baggett to attest to trial counsel\u2019s 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 \u2014 105 of the Code of Civil Procedure (Code) (735 ILCS 5/22 \u2014 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 \u201cfrivolous,\u201d and (c) section 22 \u2014 105 of the Code (735 ILCS 5/22 \u2014 105 (West 2004)) violates his state and federal constitutional rights: (i) by targeting \u201cprisoners\u201d 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.\n\u201cThe [Post-Conviction Hearing] Act provides a three-stage process for the adjudication of post-conviction petitions.\u201d People v. Boclair, 202 Ill. 2d 89, 99, 789 N.E.2d 734 (2002). The trial court first determines whether the postconviction petition is \u201cfrivolous or is patently without merit.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2000). If it is, the court will dismiss the petition in a written order. 725 ILCS 5/122 \u2014 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 \u2014 4 (West 2000); Boclair, 202 Ill. 2d at 99. The State then has the option of moving to dismiss the petition. 725 ILCS 5/122 \u2014 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\u2019s 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 \u2014 6 (West 2000); Boclair, 202 Ill. 2d at 99.\nA petition will be dismissed at the second stage of the proceedings where \u201cthe allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation.\u201d 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.\nDefendant 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).\n\u201cBecause 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.\u201d 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.\nHere, defendant alleges ineffective assistance of appellate counsel. On direct appeal, we rejected defendant\u2019s 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\u2019s plea and this court made no ruling on the issue.\nClaims 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\u2019s failure to raise an issue on appeal was objectively unreasonable; and (2) counsel\u2019s 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\u2019s claim to ascertain whether he was prejudiced by appellate counsel\u2019s failure to raise an issue. Jones, 219 Ill. 2d at 23.\nHere, 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. 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). \u201cWhere the trial record refutes [a] defendant\u2019s assertions that his plea was not knowingly and voluntarily entered, courts may properly dismiss or deny a defendant\u2019s [postconviction] petition.\u201d People v. Fern, 240 Ill. App. 3d 1031, 1041, 607 N.E.2d 951 (1993).\nHere, 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 \u201ccould get a penitentiary sentence and have to serve three years[\u2019] mandatory supervised release.\u201d 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\u2019s questions of whether he understood the admonishments. Defendant answered \u201cno 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\u2019s contention that the plea was involuntary.\nThe 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\u2019s claim that his plea was involuntary. Appellate counsel was not obligated to plead a nonmeritorious issue and defendant suffered no prejudice from counsel\u2019s failure to do so. See Jones, 219 Ill. 2d at 23.\nDefendant 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\u2019s reason for accepting an \u201copen\u201d 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\u2019s 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\u2019s misapprehension about drug treatment, when considered with other errors, justified reversal of the trial court\u2019s denial of defendant\u2019s motion to withdraw his guilty plea. Davis, 145 Ill. 2d at 251.\nHere, 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.\nDefendant next argues that postplea counsel was ineffective for failing to call Baggett, who would have stated that trial counsel coerced defendant\u2019s plea. Defendant argues he informed postplea counsel of Baggett\u2019s availability, but counsel failed to call her despite Baggett\u2019s 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.\nThe State argues the record refutes defendant\u2019s claim that post-plea counsel was ineffective, based on counsel\u2019s 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\u2019s claims of coercion in his 23-page pro se addendum to his petition.\nA 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\u2019s due process rights (210 Ill. 2d R. 604(d)). Janes, 158 Ill. 2d at 35. As to defendant\u2019s claim that postplea counsel should have called his witnesses, we note that \u201c[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.\u201d People v. Patterson, 217 Ill. 2d 407, 442, 841 N.E.2d 889 (2005).\nHere, 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\u2019s decision not to call Baggett was not objectively unreasonable. See Jones, 219 Ill. 2d at 23. Counsel had seen Baggett\u2019s unsigned and improperly formatted affidavits and had spoken to her in court. Counsel may have concluded that Baggett would not have been 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.\nDefendant 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\u2019s alibi in their affidavits. The defendant argued that without those errors, he would have \u201csufficiently raised the gist of a constitutional claim.\u201d Brown, 336 Ill. App. 3d at 720-21. This court said, \u201cWe 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.\u201d 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\u2019s postconviction petition and remanded the matter for an evidentiary hearing. We determined that defense counsel\u2019s failure to investigate and subpoena a witness, whose unrebutted affidavit impeached the testimony of the prosecution\u2019s main witness, satisfied the prejudice prong of Strickland. Makiel, 358 Ill. App. 3d at 109.\nThese opinions are not controlling here. All three arose from counsel\u2019s 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\u2019s conduct. All other material in her \u201caffidavit\u201d 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\u2019s interactions with counsel.\nWe next consider whether the court erred in dismissing defendant\u2019s 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 \u2014 a seven-year sentence. Our supreme court in Whitfield found a substantial violation of the defendant\u2019s constitutional rights where the record showed the \u201cdefendant\u2019s guilty plea was induced by the promise of a specific sentence, which he did not receive.\u201d Whitfield, 217 Ill. 2d at 201-02.\nThe 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\u2019s admonishment: \u201cYou could be fined or you could get a penitentiary sentence and have to serve a period of three years mandatory supervised release.\u201d 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).\nIn Whitfield, the defendant contended that \u201chis 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.\u201d 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 \u201cconsiderable\u201d deference to the bargain the defendant believed he had struck. Whitfield, 217 Ill. 2d at 205. The court concluded \u201cthe appropriate remedy is to modify defendant\u2019s [25-year] sentence to a term of 22 years of imprisonment, to be followed by the mandatory 3-year term of supervised release.\u201d Whitfield, 217 Ill. 2d at 205. Defendant here claims the same error and seeks the same remedy as in Whitfield.\nWe 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.\nWe 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 hearing showed the trial judge told the defendant he \u201cwas charged with a Class X felony that \u2018has a possible sentence of from 6 to 30.\u2019 \u201d Jarrett, 372 Ill. App. 3d at 345. The judge also said: \u201c \u2018There\u2019s what\u2019s called mandatory supervised release, what we used to call parole, up to 3 years.\u2019 \u201d (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 \u201cyes.\u201d 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 at 352. \u201c \u2018[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.\u2019 \u201d Jarrett, 372 Ill. App. 3d at 352, quoting Davis, 145 Ill. 2d at 244. The court distinguished Whitfield: \u201cwe 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.\u201d (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.\nWe also join with the court in Jarrett in emphasizing that \u201cthe trial court\u2019s admonishment could have been improved by explicitly stating that MSR was in addition to any sentence he received.\u201d Jarrett, 372 Ill. App. 3d at 352. The better practice would incorporate the mandatory 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.\nDefendant\u2019s final claim is the circuit court\u2019s assessment of a $90 fee must be vacated. He first argues that the fee should not be assessed because section 22 \u2014 105 of the Code does not provide for it (735 ILCS 5/22 \u2014 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\u2019s motion.\nSection 22 \u2014 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 \u2014 105(a) (West 2000). A \u201cfrivolous\u201d pleading is defined under section 22 \u2014 105(b) of the Code as a pleading that \u201clacks an arguable basis either in law or in fact\u201d or contains \u201callegations *** [that] do not have evidentiary support.\u201d 735 ILCS 5/22 \u2014 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).\nHere, the trial court concluded: \u201cmany 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.\u201d But the trial court did not find the petition to be frivolous under section 22 \u2014 105 and so it erred in imposing the $90 fee.\nThe judgment of the circuit court is affirmed and the $90 fee is vacated.\nAffirmed in part and vacated in part.\nWOLFSON and GARCIA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE CAHILL" } ], "attorneys": [ "Michael J. Pelletier and Emily S. Wood, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michelle Katz, and Daniel Griffin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC MARSHALL, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20140032\nOpinion filed March 31, 2008.\nMichael J. Pelletier and Emily S. Wood, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michelle Katz, and Daniel Griffin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0724-01", "first_page_order": 740, "last_page_order": 753 }