of sixty and ten years respectively to be served consecutively fischer did not seek to withdraw its play although he did file a motion to reduce the sentence which the trial court in which he sought leave to file a third question for post conviction relief the trial court duly reviewed this creating as well this time subject to the cause and prejudice requirements codified in the post conviction hearing act the trial court then issued two murders in the first order the trial court explaining efficient or had not satisfied either the cause or the prejudice requirements under the act and consequently denied petitioner leave to file a third petition for us conviction relief in the second order the trial court applied section twenty two one of five of the code of civil procedure through its opinion then in violation of the applicable supreme court ruled governing petitions for rehearing three sixty seven d the appellate court effectively reversed itself vacated the trial court's cessna fees and costs under the statute without permitting the people with an opportunity to answer the petition issue before the court now and is simply whether or not that statute section twenty two one o five does indeed authorize a trial court to assess fees and costs money prisoner detention or files a frivolous pleading that seeks to file in this case a pleading was filed i think that there are different definitions of filed and that's really one of the things that distinguishes the point from this case i'm not sure position we would that's the position we're reviewing it says in fact it even uses the word purports which means it doesn't even need to really be clear what exactly it's trying to do as long as it attempts to do that to fall the allegations of the petition or look at both of those i don't think that i mean i think that's part of the motion but it also involves the allegations that sort of depends on how it's filed it how it's put together by the individual petitioner but in any event it's filed and such a document clearly falls within the purview of the statute based on the statutes plain language in plain language and the court makes a specific finding that the pleading motion rather filing which purports to be a legal document filed by the problem by the prisoner is frivolous the prisoner is responsible for the full payment of filing fees and actual court co and that the court made two findings in fact that the pleading was frivolous it would also with actually the larger goals of the statute which are to compensate the courts for the time they necessarily must expand in reviewing any such pleading not even just post conviction pleadings but all pleadings that's why the statues drafted so broadly and in  manifest by the express language of the statute construction by reading into it an exception consequently conic leave to file his petition does the trial court could not assess fees and cost under section twenty two dash one of five because no success with conviction petition was filed for the statute says fi week leading motion or other as justice thomas indicated earlier he did file a motion correct but again reading there the plain language of the statute does indicate it's a pleading motion or other filing that purports to be a legal document in a case seeking post conviction relief thus there is something significant in the inclusion of the language in a case seeking post conviction relief take out that take out that language if you were to remove the phrase in a case then arguably in this situation such a motion for leave to file a successor petition would be brought under the ambit of the what this act is clearly designed to to to deter is abuse of filers and so it's within the title itself it says frivolous lawsuits filed by persons and then what we're looking for is a frivolous document filed in a case seeking post conviction relief so through reading the reading the statute in its entirety you see that what you need itself is you need there there needs to be first a case seeking post conviction relief and the only way in order to be brought within the ambit of the post conviction hearing act if you've already filed a previous post addiction petition is to file a motion for leave under section one twenty well i believe i've lived on a on a on as my my financial answer would be that under the reading of the acts i don't believe that fees should leave would it would then be that under your rationale the fish would only be assessed in the first post conviction petition that was frivolous which doesn't require a motion because that is a case certainly  also a case that immediately proceeded look point to barry what what's required is first the petitioner is required to demonstrate cause and prejudice in order to be allowed leave to file once that leave  allowed then it does go to the first stage review which is the frivolous frivolous review and it would be once leaders granted if somebody is able to demonstrate cause and prejudice if that's excessive petition is then determined to be frivolous it w within the the ambit of the act but it is it would be based on the act as as it reads currently there is no there is no allowance for fees until you are within the post convention hearing act and what you tried well the question was i mean you're saying then the only time that it would be determined that it's frivolous would be after it's filed court except to review for the f if the court when courts are reviewing section one twenty two guys want to have motion for leave it's a very discreet it's a very discreet discreet question and it's a very high standard that they're trying to meet and they're they're looking to see if this petition itself with the merits of any claims contentions or arguments that oppose conviction petition as excessive petition contains they are only reviewing this motion to determine if cause and prejudice were met and so that's the only question that's before court when a motion seeking leave is filed but if if the alley or if the allegation that you've met causing agents is without any merit at all isn't that frivolous case at that point there is no case we have only asked the court's permission to start a case such a motion as the as the statute currently reads is not is not punishable under the court system this is this is the this is your case you can post conviction relief so i believe my concerns will be that it's outside of any previous proceedings that occurred your so there is no separate case absurd results that if if a defendant was successful and finally in this excess of post conviction petition and then files a frivolous motion he can be assessed with costs but if so if a defendant  i believe that this actually isn't creating an absurd result that that that the way that the the acts these two acts obviously need to be read together be the post conviction hearing action and any attempt to impose fees under you know they are separate action where your simply trying to be brought within the post conviction hearing act it's a very high standard to try to demonstrate cause and prejudice and so is it is a it's a very discreet that the the language demonstrates that the act itself is intending to punish frivolous lawsuits and the act is the illing with frivolous documents in cases seeking post conviction relief and currently as the point as the point makes very clear there is no post conviction case and still leave this granite and i think this is created a for the lower courts of a very clear line that when you're dealing with a you know when you're dealing with hearings again i stress that you know that the courts are not required to to actually look at the merits of those which petitions are only looking at whether or not causing prejudice has been that and so it is a very it's a discreet question that the court is think that's the sort of answer some of your concerns about as justice thomas was asking the the absurd results where if if this motion if this motion itself were deemed frivolous so the court would not be able to take action on it if that were to be the case in this case we clearly do not have a frivolous pleading that was filed in court conic seven years after after his trial received a affidavit from a state's primary witness the trial recanted his entire trial testimony in that situation the idea that he in seeking to challenge his conviction this would be an abuse of filing when he's received the witness recantations i think strains credibility this is you know the two bases that the court utilized and  from from this witness who's recanted his his testimony the idea that this would not say that this lacks evidence for is for when it when he when he does have that with his motion strains credibility and the other point is that whether or eliminate pestiferous litigants wow while he might not have of matt and while he might not have demonstrated cause and prejudice in order to be able to to enter into the post conviction hearing act certainly by seeking and prejudice and so at that point he would have been brought within the post conviction hearing act clearly the plain language of this act would allow for the imposition of fines or fees and filing costs so good your argument is based on th almost primarily on whether or not this is the case at the time that the motions whether there is a lawsuit whether there is a case and suit comes from the a systems from the body from the body of the act and as the point makes clear there is no what this case potentially could allow this court to do would be to clarify the proceedings of of of the post conviction hearing act particularly in light of the point which i think makes very clear  that the first stage is to file a motion seeking leave to follow up post conviction petition and it's once that motion is granted then there it needs to be a separate document which would then be the post conviction hearing protection whether you file that concomitantly with your your motion for leave that you know would i guess would be up to the individual petitioner but if it needs to be cleared if this is a separate document and the trial courts are not to look at the court is not being required to look at anything in that petition like trial court is only looking to whether or not that motion that that filing does make an effort to or does actually demonstrate cause of villages without his docket very correct right there's another attorney on the allows i mean this is this is a part of the act is that you're able to file successive petitions and there is no limitation on the number of petitions one can file but there is a high burden that has a line is is  is causing prejudice motion failed and it was denied whatever it is whatever we're going to call it was denied he could he could file the same document over and over again without ever being subject to the is a little bit of sir i don't believe that it is absurd because this is a situation where the court the petitioner is permitted to file as many successive titian's as possible or a as necessary  and in that situation there the only way to to be able to file his conviction its mission is to meet this is high standard and so it's obviously if the same claim is being raised and a subsequent attempt seeking leave of the court that's even less resource that that court is going to need to to utilize in order to review that see that it's the same effort to demonstrate prejudice which he believes does not rise to the level and deny deny leave at that point and i don't think that this is again when the legislature was attempting to to introduce this when they were putting this in the play what they were concerned with would be the that's the first litigants and what we have here corey connick is not cory connick has received a witness recantation and the idea that that we would seek to punish this attempt to to to to to work within the post conviction hearing act by punish for attempting to demonstrate cause and prejudice where the trial court felt that it didn't rise to the very high level that was necessary i believe would would not be fair under this case your under your interpretation of the case and the only thing that should come to this court is part of the record would be the motion the denial and anything after that correct the however the order that was entered by the circuit court reviewing that that that motion is not to look and see to the sum and substance of any other documents and part of that record there just looking at the at the limited question presented in that motion seeking we have to see if it if it meets caus holdings thank you i just want to clarify i don't believe i was clear in answering just as commoners question about the cause and prejudiced review which also is responsive to some of the things that counsel just stated specifically because in determine whether causing prejudice has been satisfied the court does in fact have to look at the record because the court has to sherman whether the allegations could have been raised earlier and what exactly prevented those allegations from being raised in a timely fashion and that's just cause prejudice would require that the court determine whether or not those allegations were likely to  context of the overall case in a certain respect it is actually a firm more cumbersome analysis that involves a court expanding more of its time and it doesn't involve looking back at the entire case if we must use that word of this particular or a particular on petitioner who files a request seeking leave to file a subsequent of his conviction petition argument with respect to the merits i guess are the fact that he didn't satisfy cause and prejudice was as noted not argued on appeal and there this trial and the alleged rigged and what would or would not have happened had the witness not testified in a certain way during the mistrial anything that occurred in that  trial is irrelevant at this point in a legal sense and the trial court properly recognized and explained this because he entered a voluntary guilty plea ten years ago and  also finally fisher's cases discussing the point and the point none of those cases have anything to do with the statute issue here statute has actually every published case excuse me has found it applies to post conviction petitions and two of them specifically address excessive post convention protections and affirm the most recent case actually found actually addressed the point as well and still found not still and still is and recognized the distinction between the point and its understanding of the post conviction hearing act and filing and cases within those confines and the overarching intent of the legislature as manifest in it