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THIRD DIVISION
March 24, 2004

JUSTICE KARNEZIS delivered the opinion of the court:

Following a bench trial, defendant Johnny Garner was convicted of aggravatedcriminal sexual abuse (720 ILCS 5/12-16(d) (West 2002)) and was sentenced to fiveyears' imprisonment. On appeal, defendant contends he received ineffectiveassistance of trial counsel and the trial court failed to admonish him in accordance withSupreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 605(a), eff. October 1, 2001). We affirm.

BACKGROUND

Defendant was charged with aggravated criminal sexual abuse for having sexualencounters with S.P., who was 13 years old at the time of the first encounter inSeptember 2001 and 14 years old at the time of the last encounter. Defendantadmitted having sexual encounters with S.P., but asserted, in his defense, that hereasonably believed S.P. was 17 years of age or older. 720 ILCS 5/12-17(b) (West2002).

S.P. testified that she was born September 21, 1987, and that in September2001, she attended Hope Elementary School. She knew defendant because he was afriend of her uncle who lived with her family. Defendant would visit their home almostevery day. On one particular visit in August 2001, defendant asked S.P. how old shewas. S.P. told him she was 15 years old and a freshman at Collins high school,although she was really 13 years old. Defendant told her that when school started sheshould give him a call.

In early September 2001, S.P. called defendant and they arranged to meet thenext day at the park across from S.P.'s school at 8:30 a.m. Defendant met S.P. at thepark and picked her up in his car. He drove her to a soccer field and then to a motelwhere he registered and obtained a key. Inside the room, defendant told S.P. toundress but she refused. Defendant then undressed her. He touched her breasts withhis hands and his mouth. He also touched her vagina and put his penis in her vagina. After they had sex defendant drove her back to the park.

S.P. saw defendant again about a week later when she was walking to the store. Defendant told her to meet him at the park the following morning. The next morningdefendant drove her to the same soccer field but drove S.P. back to the park and toldher to wait for him there after he received a telephone call from his mother. Defendanttold S.P. that he did not want his mother to see her in the car with him.

When defendant returned about 30 minutes later, he drove S.P. to the samemotel. In the motel room, defendant placed his mouth and hands on her breasts andtouched her vagina. He also put his penis in her vagina. He then took her back to thepark.

On September 21, S.P.'s fourteenth birthday, S.P. saw defendant while walkingdown the street. Defendant asked her if she was going to her cousin's party thefollowing evening. S.P. told defendant that kids were not allowed at the party and thatshe was going to her aunt's house instead.

S.P. called defendant from her aunt's house the following evening. They agreedto meet at the corner store. S.P. walked to the store with her sister and cousin. Defendant drove S.P. to the same motel and got a room. They had vaginal and analsex. Afterwards, defendant noticed several messages on his cellular phone from S.P.'suncle and one from S.P.'s cousin. Defendant drove S.P. back to her aunt's housewithout returning the motel key. Defendant told S.P. that if anyone were to ask herwhere he was, she was to say that she did not know. Defendant dropped her offseveral blocks from her aunt's house. S.P. went home with her grandmother, her auntand her sister.

The police came after they arrived home because S.P.'s uncle had reported hermissing. S.P. then told the police, her grandmother and her aunt that she had beenwith defendant at a motel and that they had sex. After S.P. identified the motel, shewas taken to Mt. Sinai Hospital, where doctors found vaginal and anal tears consistentwith penetration.

Defendant testified that he first met S.P. in the park in the summer of 2001. Shewould walk up to him while he was playing ball and "talk and flirt." Defendant statedthat S.P. called him during the summer of 2001 and asked him to meet her. He did notknow how she obtained his telephone number. When they met, S.P. told him that shewas a senior at Collins high school and that she was 18 years of age. Defendanttestified that S.P. was wearing jeans, a shirt, rings, makeup and that her hair was"done." Defendant did not suspect, based on S.P.'s appearance, voice or demeanorthat she was under the age of 18.

S.P. initiated contact again about two weeks later and again two weeks afterthat. She suggested that they get together. Both times defendant picked her up acrossthe street from Collins high school. S.P. wore "tight top[s]", makeup, rings andearrings. Both times they went to a motel and had sex. Defendant had no reason tobelieve S.P. was not 18 years old.

S.P. called defendant on September 21 and told defendant to pick her up on thecorner. They went to a motel and had sex. Afterwards S.P. asked defendant to dropher off two blocks from her house.

Defendant stated that he knew Robert Carroll, S.P.'s uncle, from theneighborhood and knew the two were related. However, he and Robert were notfriends, they only played basketball together. Defendant testified that he did not have asocial relationship with the Carrolls and would only visit their home when Robert calledhim to play ball. Defendant testified that he had been in Robert's home twice and hadwaited on the front porch several times.

After hearing the foregoing testimony, the trial court found defendant guilty ofaggravated criminal sexual abuse and sentenced him to five years' imprisonment. It isfrom this judgment that defendant now appeals.

ANALYSIS

Defendant first argues that he was denied his right to effective assistance ofcounsel when defense counsel failed to lay the proper foundation for impeachmenttestimony.

To prevail on a claim of ineffective assistance of counsel, a defendant mustsatisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A defendant must show that: (1) trialcounsel's representation fell below an objective standard of reasonableness, and (2) areasonable probability exists that, but for counsel's errors, the result of the trial wouldhave been different. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at2064; People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1254 (1984).

Under the first prong of the Strickland test, defendant must overcome a "strongpresumption that counsel's conduct falls within the wide range of reasonableprofessional assistance; that is, the defendant must overcome the presumption that,under the circumstances, the challenged action 'might be considered sound trialstrategy.' " Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065,quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164(1955). A defendant satisfies the second prong of Strickland if he can show that thetrier of fact would not have found him guilty beyond a reasonable doubt had counselnot erred. People v. Caballero, 126 Ill. 2d 248, 260, 533 N.E.2d 1089, 1091 (1989). Where the defendant fails to prove prejudice, the reviewing court need not determinewhether counsel's performance constituted less than reasonable assistance. Strickland,466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Flores, 153 Ill. 2d264, 283-84, 606 N.E.2d 1078, 1087 (1992).

Defendant claims that the testimony of Lakisha Cotton would have supported hisdefense that he reasonably believed S.P. was 17 at the time the sexual encountersoccurred. Specifically, defendant claims that Ms. Cotton would have testified that S.P.told her that she told defendant that she was 18. During his case in chief, defendantcalled Lakisha Cotton and the following colloquy occurred.

MR. PIET [Defense Attorney]: Did [S.P.] tell you that she told

anyone that she was 18 years of age?

MR. DRISCOLL [Assistant State's Attorney]: Objection

MR. PIET: I'm sorry. That she told Johnny Garner that she was 16

years of age?

THE COURT: Sustained.

MR. PIET: No further questions of this witness."

Defendant asserts that Ms. Cotton's testimony was crucial to his defense andthat the court's exclusion of her testimony was due to counsel's failure to lay a properfoundation. We disagree.

Although defense counsel initially posed the question to Ms. Cotton asking "18years of age" he apologized and corrected the age to "16 years." There is no evidencein the record before us that would allow us to conclude that Ms. Cotton would havetestified that S.P. told her that she told defendant that she was 18 years old. Wecannot assume that this would be Ms. Cotton's testimony based on defendant'sargument alone.

Even if Ms. Cotton would have testified that S.P. told her that she was 16 at thetime of the sexual encounters, as suggested by defense counsel, her testimony wouldnot have supported defendant's defense because at 16 years of age S.P. would havebeen unable to consent to sex. 720 ILCS /12-16(d) (West 2002). For theaforementioned reasons, we find that defendant suffered no prejudice in this case andtherefore did not receive ineffective assistance of counsel.

Defendant next claims he was not properly admonished pursuant to SupremeCourt Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R.605(a), eff. October 1, 2001), and this cause should be remanded to the trial court forproper admonishments. Defendant argues that although the trial court did properlyadmonish him of his right to appeal his conviction, the court did not give sufficientadmonishments with respect to his right to file a motion to reconsider his sentence. Specifically, defendant argues that the admonishment given by the trial court wasinadequate because the court never informed defendant that any sentencing issue notincluded in his written motion to reconsider sentence would be waived.

This issue concerns compliance with a supreme court rule and therefore ourreview is de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384, 788 N.E.2d 1169, 1173(2003).

Supreme Court Rule 605(a)(3) requires that, when imposing sentence,

the trial court admonish defendant as follows:

"(3) At the time of imposing sentence or modifying the conditions of thesentence, the trial court shall also advise the defendant as follows:

A. that the right to appeal the judgment of conviction, excluding thesentence imposed or modified, will be preserved only if a notice of appealis filed in the trial court within thirty (30) days from the date on whichsentence is imposed;

B. that prior to taking an appeal, if the defendant seeks tochallenge the correctness of the sentence, or any aspect of thesentencing hearing, the defendant must file in the trial court within 30days of the date on which sentence is imposed a written motion asking tohave the trial court reconsider the sentence imposed, or consider anychallenges to the sentencing hearing, setting forth in the motion all issuesor claims of error regarding the sentence imposed or the sentencinghearing;

C. that any issue or claim of error regarding the sentence imposedor any aspect of the sentencing hearing not raised in the written motionshall be deemed waived; and

D. that in order to preserve the right to appeal following thedisposition of the motion to reconsider sentence, or any challengesregarding the sentencing hearing, the defendant must file a notice ofappeal in the trial court within 30 days from the entry of the orderdisposing of the defendant's motion to reconsider sentence or orderdisposing of any challenges to the sentencing hearing." Official ReportsAdvance Sheet No. 21 (October 17, 2001), R. 605(a)(3), eff. October 1,2001.

Here, the trial court gave defendant the following admonishment aftersentencing:

"You have 30 days to appeal the findings and sentence of this

court. That motion must be made in writing setting forth the reasons why.

If you did not have money for a lawyer, one will be provided free of charge

to assist you and a transcript will be provided free of charge. Motion must

be preceded or first you must make a motion to reconsider the sentencing.

Should that motion be denied you have 30 days to appeal and that motion

must be made in writing setting forth the reasons why.

If you do not have the money for a lawyer one will be provided free

of charge to assist you and a transcript will be provided free of charge."

Defense counsel then submitted a motion for modification and reduction of sentencewhich was denied by the trial court. Afterwards, the trial court admonished defendantas follows:

"You have 30 days to appeal the sentence. That motion must be

made in writing setting forth the reasons why. If you do not have the

money for a lawyer one will be provided free of charge to assist you and a

transcript will be provided free of charge."

Defendant claims that People v. Mazar, 333 Ill. App. 3d 244, 775 N.E.2d 135(2002), supports his position that the court's failure to admonish him of the risk ofwaiver requires remand. In Mazar, the pro se defendant argued that the trial court'sfailure to admonish him of the need to file a motion to reconsider his sentence topreserve sentencing errors for appeal denied his right to due process. Subsequent tothe defendant's sentencing, the supreme court amended Rule 605(a) to require thatcriminal defendants be admonished of the need to file a motion attacking their sentenceto preserve any sentencing challenges for appeal. Mazar, 333 Ill. App. 3d at 259, 775N.E.2d at 147-48. Although at the time of sentencing the trial court had no obligation toadmonish the defendant to file a motion to reconsider his sentence, this court, findingthat fundamental fairness so required, remanded the defendant's cause to the trialcourt for admonishments pursuant to the amended version of Rule 605(a) and to allowthe defendant to file a motion to reconsider his sentence. Mazar, 333 Ill. App. 3d at259, 775 N.E.2d at 147-48.

We find defendant's reliance on Mazar to be misplaced. Mazar was concernedwith defendant's right to have the benefit of the admonishments as included in theamended version of Rule 605(a). Mazar, 333 Ill. App. 3d at 259, 775 N.E.2d at 147-48.

In the case at bar, defendant was sentenced subsequent to the amendment ofRule 605(a) and therefore had the benefit of the admonishments. In addition, therecord reflects that defendant did file a posttrial motion entitled "[m]otion formodification and/or reduction of sentence" wherein he alleged: (1) the trial court erredin imposing the five-year sentence; (2) the trial court improperly considered factors inaggravation; (3) the trial court failed to consider factors in mitigation; (4) the trial courtabused its discretion in imposing sentence; and (5) the trial court erred in imposingsentences of more that the minimum terms allowed for each count. That motion wasdenied.

In People v. Glenn, No. 2-02-0491 (February 4, 2004), the defendant argued thathe was not properly admonished as to how to preserve sentencing issues inaccordance with Rule 605(a) and requested remand for proper admonishments and tofile a motion to reconsider his sentence. Glenn, slip. op at 9. The State conceded thatthe defendant was not properly admonished but argued that defendant suffered noprejudice, that his sentence was proper and remand would be a waste of judicialresources. Glenn, slip. op at 12. The court held that Rule 605(a) required strictcompliance and remanded to the trial court for proper admonishments and to give thedefendant an opportunity to file a motion to reconsider. Glenn, slip. op at 12.

Here, the State concedes that the trial court failed to admonish defendant aboutthe risk of waiver but argues that Rule 605(a) does not require strict compliance andfailure to admonish a defendant as required by a Supreme Court rule does notnecessarily establish grounds for remand. See People v. Davis, 145 Ill. 2d 240, 250,582 N.E.2d 714, 719 (1991). Rather, the State argues, whether reversal and remand isnecessary depends "on whether real justice has been denied or whether defendant hasbeen prejudiced by the inadequate admonishment." (Emphasis added.) Davis, 145 Ill.2d at 250, 582 N.E.2d at 719, citing People v. Dudley, 58 Ill. 2d 57, 60-61, 316 N.E.2d773, 774 (1974).

In support, the State cites People v. Williams, 344 Ill. App. 3d 334, 800 N.E.2d168 (2003). In Williams, the defendant argued on appeal that the trial court failed toadmonish him of his appeal right pursuant to Supreme Court Rule 605(a) andrequested remand for proper admonishments. This court rejected defendant'sargument finding that the defendant was not denied real justice by the lack of the trialcourt's admonishments regarding the steps required to challenge his sentence onappeal because the defendant did not challenge his sentence on appeal. Williams, 344 Ill. App. 3d at 339, 800 N.E.2d at 172. Likewise, this court found that the defendantwas not prejudiced by the trial court's failure to properly admonish him of all the stepsnecessary to challenge his sentence on appeal. "Since defendant raised no challengeto his sentence in this appeal, his ability to raise a sentencing issue on appeal was notcompromised or limited by the actions of the trial court." Williams, 344 Ill. App. 3d at339, 800 N.E.2d at 172.

We find the facts of this case more similar to those in Williams than Glenn. Similar to the defendant in Williams, defendant here does not raise any issuespertaining to his sentence that he wishes to bring but cannot because the trial courtfailed to properly admonish him. The trial court did admonish defendant of the need toattack his sentence in a posttrial motion, yet did not inform defendant that issues notraised in that motion would be waived for purposes of appeal. As previously discussed,defendant did file a motion to reconsider his sentence, which was denied. Defendantdoes not raise any specific issues before this court that he was precluded from raisingas a result of the trial court's incomplete admonishments.

Rule 605(a) does not require strict compliance in this case. Rather, inaccordance with the holding in Williams, we find that defendant was not denied realjustice nor was he prejudiced as a result of the trial court's incomplete admonishments. Williams, 344 Ill. App. 3d at 339, 800 N.E.2d at 172. To require a remand in the instantcase would "elevate form over substance without serving the ends of real justice." Williams, 344 Ill. App. 3d at 339, 800 N.E.2d at 172.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

HOFFMAN, P.J., and SOUTH, J., concur.