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No. 2--02--1161

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Defendant, Dominick Giampaolo, was convicted of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2000)) and sentenced to 10 years' imprisonment. Approximately one year later, hefiled a "Motion for Trial Transcripts and Common Law Records." Defendant averred that he couldnot afford the trial transcripts and common-law record and that without them, he would be unableto present any claims relating to a denial of his constitutional rights. The trial court denied themotion, ruling that defendant had not filed a petition for relief under the Post-Conviction Hearing Act(the Act) (725 ILCS 5/122--1 et seq. (West 2002)). Defendant then filed a motion to reconsider thedenial of his motion and a second motion for free transcripts. Defendant argued that he would beunable to file a postconviction petition without access to the transcripts and the record. The courtdenied the motions, again ruling that defendant had not filed a postconviction petition. Defendantappeals. We affirm.

Under the Act, a trial court that does not dismiss a postconviction petition at the initial reviewstage "may order that the petitioner be permitted to proceed as a poor person and order a transcriptof the proceedings delivered to petitioner in accordance with Rule of the Supreme Court." 725 ILCS5/122--4 (West 2002). Here, defendant has not yet filed a postconviction petition. Accordingly, heis not entitled to a free transcript under the Act. However, defendant argues that the denial of a freetranscript denies him due process and equal protection. See U.S. Const., amend. XIV. Because thesearguments challenge the constitutionality of the Act, our review is de novo. People v. Moss, 206 Ill.2d 503, 519-20 (2003).

Defendant first argues that the trial court violated his due process rights by denying him a freetranscript. He contends that it would be unfair to require him to recall constitutional violations inproceedings that occurred several years ago. Although defendant's argument has some surfaceappeal, it nevertheless fails. In People v. Bonilla, 170 Ill. App. 3d 26 (1988), the petitioner arguedthat the denial of free transcripts was a due process violation because without a transcript, he wouldhave to rely on faded memory in preparing a postconviction petition. The court held that the denialof a free transcript prior to the filing of the petition was not a due process violation. The courtreasoned that the Act provides a petitioner with access to the courts and an opportunity to raiseconstitutional violations. Bonilla, 170 Ill. App. 3d at 34. Moreover, the standard required of apetitioner is minimal: he or she must present only the gist of a constitutional claim. Bonilla, 170 Ill.App. 3d at 34; see People v. Boclair, 202 Ill. 2d 89, 99 (2002). Once a petitioner does so, he or sheis entitled to a free transcript. We agree with the Bonilla court and hold that the trial court's denialof a free transcript did not violate defendant's due process rights.

Defendant next contends that court violated his equal protection rights by denying him a freetranscript. He argues that the Act treats similar groups of inmates differently in that inmates withsufficient funds may purchase transcripts prior to filing a petition while indigent inmates may notobtain a transcript until filing a petition that raises a meritorious claim. This argument was rejectedin People v. Jones, 168 Ill. App. 3d 925 (1988). There, the court held that the Act does not treatindigent and nonindigent inmates differently based on financial status because "all post-convictionpetitioners must meet the threshold requirement before their petitions will be considered further." Jones, 168 Ill. App. 3d at 932; see also Bonilla, 170 Ill. App. 3d at 34. We agree and hold that thecourt's denial of a free transcript was not an equal protection violation.

We also note that there is an even more fundamental problem with defendant's request. Evenif we were to find constitutional error, he has failed to show that he has been prejudiced by the trialcourt's refusal to provide him with a free transcript. Specifically, he has alleged no factsdemonstrating that he would be able to raise a constitutional claim but for the denial of the transcript. His mere speculation is insufficient. Therefore, we must affirm the trial court's ruling.

Finally, defendant argues that the trial court erred in allowing McHenry County AssistantPublic Defender Richard Behof to represent him at the hearing on his first motion for free transcripts. The transcript of the hearing reflects that though Mr. Behof was present at the hearing, hisparticipation was limited to informing the court that defendant was in prison. There is no indicationthat Mr. Behof represented defendant at the hearing. Accordingly, defendant's claim fails.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

BOWMAN and GILLERAN JOHNSON, JJ., concur.