this is the first day of our january term first based on our fall of the docket on tuesday january eleventh two thousand and eleven and one thirty am is agenda number one case number one zero eight one zero nine people versus the legislature did not say that every petition should be dismissed at the first stage should be fine the legislature chose to require a specific finding a frivolous under section twenty two trash one o five and did not reference the post conviction hearing and when defining that standard under twenty two deshawn this suggests that the legislature intended on creating separate focus on the interpretational issues as the constitutional issues are dependent upon how this or interprets the two sections of that section twenty two dash one of five involves a separate standard than the tax is supported by several things one of them the legislature late of intent of section twenty two that when debating that whether to enact that section the legislature made it clear that good faith bylines such as out those areas would not be just they were specifically what if the petitioner found something he believes has merit but is ultimately unsuccessful and the answer to that was that they shouldn't be deterred and found those things because that's not what this is meant to deter this was meant to deter such frivolous filings as  things involving peanut butter or someone repeatedly clogging up the court with repeated violence that there's a difference between the two sections is also supported by the statutory language and indeed by decisions significant that the first district appellate court felt that there was some difference in the standards enough that it decided that the fisa shouldn't be imposed even though it was proper to dismiss the petition it's also supported by the statutory language of the two sections there is some difference there section twenty two dash one of five requires a specific finding that a document is frivolous and it goes on t reference the detail definition of what it means by the term frivolous also what's wrong with the practical effect of why you shouldn't to stare truth work together i mean in other words if a petition is frivolous under section one twenty two it is by definition frivolous under section twenty two instead of carving out a different definition for frivolous in practical implications are that it creates a dichotomy between what we're saying with the act with the first stage standard of the act which this court you know elucidated hodge's very detail that petitioner is not expected to know the law is given one chance to present their claims and at the same time then we're saying with section twenty two that's one of five you're basically encouraging the opposite you're saying why you're given all this leeway and you've got one chance to file but you might be punished for that and so if you if you're reading it to standards as being the same then you're creating a tension such a way that that is a proper legal document and this section twenty two just one of five where you where you're really trying to discourage any type so so you're really taking away the one shot that the legislature has time you need to present these claims because you've only got one shot otherwise you've got to satisfy causing prejudice and the the standards that were applied on and further proceedings so you need to get your claims and you need to present them fully in this first petition otherwise you waived but then at the same time you might be punished for that if you don't do it in such a way that you satisfy the first stage of the pleading  requirements and if you look at the statutory language that the legislature chose to define frivolous specifically for her section twenty five and then if if you notice that under the act doesn't say if your petition is dismissed as being frivolous or petty without merit the petitioner should be fined it says the petitioner should be fined if the judge makes a specific finding that the petition frivolous and then across references section twenty two just one of five so the legislature was carefully parsing their words and not saying that every first page petition is dismissed should be fine i mean that would have been a very easy thing for them to say and they they didn't do that and i think that's for obvious reason that it creates this this tension between the act and the intent of section twenty two does one  under the state's position if the two standards are the exactly same if privileges or pattni without merit means the exact same thing as frivolous then happily without merit position construction avoid the constitutional issues in this case well it gives the judge discretion and it it doesn't it's not in an imposition of the fees and fines on every first time file so it doesn't prohibit access to the to the courts this the legislature granted one time filing under the  so the due process argument that the petitioner is denied access to the court is no longer there and the equal protection argument is no longer there as well because you're not necessarily imposing this this punishment  for someone filing under their statutory granted right to file a p c so if the judge isn't required to impose these these fines  the constitutional issues no longer really apply it's only the mandatory nature of the state's position and the lower courts position that implicates the rights of due process and if you look at the legislative intent behind these two statutes it's clear that the legislature didn't intend that every procedure petition to be filed if the petition or if their petition was dismissed if you look at the the purposes of the two sections section twenty three does one of five he's concerned with preventing frivolous violence whereas the act is really more about a pleading requirement whether it's sufficient that we should appoint counsel to further develop these claims and if you look at the purposes of the two statutes you recognize that section twenty two just one of five he can't rationally serve its purpose in this instance because if it's meant to deter a first stage filer this court has repeatedly said that we can expect someone like a closer time pro se petitioner to understand the legal concepts involved and his petition was dismissed for purposes of race to take out and wave which the score is also said are inherently legal determinations so we're saying someone like a closer is not expected to know the law they can't really understand the legal implications of race  and yet if it's dismissed for purposes of a student gotten waiver we're going to punish them for that that's not rational it doesn't deter it can't rationally deter someone like i was there who if you look at his petition  know he says trying to get further review of these claims he he thinks well what if the judge was wrong it wasn't raised on direct appeal maybe i should have another judge look at this so he raises them in a p c that's really his only avenue also if you interpret section twenty two dash one of five in the state's way where every petitioner is this fine the creates the tension and i discuss this a little bit earlier but the active takes that you get one chance so include everything trying to get it all in and do it in a time timely manner where section twenty two does one of five and  d that again that this is not a rational way of looking at the way the two statutes interact so that the results of the the state's position as illustrated by this case  just don't don't make sense the first time finally raising issues not addressed by twenty counts on direct appeal it was dismissed on for legal reasons procedur that it it's totally outrageous or it lacks any substance whatsoever so are you seeing counsel that we you need to feel we need to read into this  work its intended purpose unless there is some sort of mental element of either the filing was in that they or the filing was knowingly done knowing that they had zero chance of winning because you can't deter is something that's done unwittingly you can't be terry someone from filing their first p c unless they know that the claims that are standard for summary dismissal is a separate determination in the standard under section twenty two that's one of five of whether fines and fees should be imposed and that's what we're saying we're saying that even if the the statute in question section twenty two one of five uses the word frivolous in hodges this court specifically invoked that definition of frivolous employed in  when a petition is nearly dismissed as prevalent well pavley without merit that it was frivolous within the meaning of twenty two one of five i'm not really sure what how you would fashion distinct definitions for frivolous that you know if it's frivolous under one but not the other exactly how low lower than the standard set forth in high just and player which i would also reference because blair discusses comes so that this comes under the broader rubric of section twenty two one of five and that's why it doesn't go into saying and we specifically mean defendant specific petition here we mean all these kinds of pleadings collateral this case the court would issue an order a separate order and say and the court also finds that it's frivolous and therefore because someone filed something a frivolous plaiting in the court looked at it and determined that it was frivolous he has to pay for the filing fee yeah  avenues of relief but the definition and twenty if you want to five which is the specific that's what would have to be in the finding for frivolous would have to be which yes in campuses the meaning of frivolous under the post convention hearing act under ho s supreme court was unable to find a rational basis for that statute and among other things pointed out that one of the problems with the statute issue in reality was that basically it was if the petitioner loses fees and it didn't distinguish between frivolous and nearly losing our statute here first of all has a rational basis which is to compensate the courts and also  expenses required by these by frivolous pleadings and also to discourage them and that was the legislative purpose as found by this court conic additionally in that case the co something of the distinction between a pleading that is frivolous and one that is ultimately unsuccessful and didn't believe that it was fair to punish punish for just to make them pay fees for things that were ultimately unsuccessful as opposed to merely frivolous our statute here doesn't suffer from that a firm date has a clear legislative intent behind it and moreover it distinguishes so that if if defendants petition had gone to the third stage and he lost after an evidentiary hearing it would not have been frivolous presumably but it was dismissed at the first stage here and the court specifically found in a separate order that it was frivolous now that word i'm clear because i am concerned about the two fourteen when he's yours so so i'm not sure what you're saying here so if two fourteen zero one is there's a motion to dismiss as there's no first stage because there's a motion to dismiss court grants the motion to dismiss are you saying that there could be some cases in which that the court could find it was frivolous and some cases where the court would say it's unsuccessful but not frivolous i assume that sorry is that answer your question help pleading places on the court and the system to have to review it doesn't prevent the person from filing it but it helps to caution them and warn them i believe is the language supports that he is about the consequences of it you have a right to file it but you don't have a right to file something frivolous and no court has ever found anyone has a right to file frivolous pleading and when one files a position for post conviction relief well one may not be charged with having to understand you know the vast the body of then section twenty two one of five would require because it's frivolous that fees be imposed just the filing fee and the court costs not the other expenses which time etc that are created by the statute i think but when someone finds something which should be at least responsible and then they get to specifically invoke it it's not like you just follow the piece of paper before to be considered under the postcondition hearing act a petition about specifically getting state this is the relief i see and yes they don't have to psychosis or anything but they have to state the gist of something or provide notice i guess of their claims want to look at it from another perspective and if they fail to do that and that's ultimately what i think is being suggested here either that you have a right to a frivolous plea to file a frivolous pleading because we expect so little of you that you know we'll let it slide on the first conviction sh so it's not necessarily that there isn't some overlap there definitely is but the language that is use i legislature could have easily adopted this court's previous foldings the definitions involved for defining what the first stage p c dismissal standard is but they didn't do that they they chose to define find that it's not going to discourage them because they don't know what race judicata and waiver are they don't understand that it's not you get a one time free filing of a frivolous petition it's you get to file your p c so that the court can determine whether it should be advance beyond the first stage so it's not like we're saying go ahead and file something completely out of the  that no i think it gives the court discretion it gives the the trial judge discretion to determine whether this filing was something that was done was just lee was done for improper purpose was done knowing that it was totally off the wall and was something that we really want to discourage or whether this petition was filing something in good faith and even though his claims should in advance be on the first stage for purposes of like i said either legal still not feel like this was the kind of petition that that warrants the imposition you know the punitive sanctions so but isn't that available under the statute as the statute says that written now isn't that aren't those possibilities but think yes it is i don't think under the state's position that it is and i don't think in this this instance that the judge was right in determining that fine should be imposed when when he was dismissing the judge's order says nothing about the claims being outrageous or you know frivolous it says these are barred by waiver in race judicata so the judge wasn't making a finding of frivolousness in his written  but in this instance it wouldn't be proper if you're dismissing soley for basis of waiving race judicata legal determinations that if it was proper in this instance then it really doesn't affect the the ends that section twenty two just by it was really meant meant that because it is expecting more of a not sure if from the briefs that you're claiming that the that threshold requirement was met fine enough for all of us are you asking us to reexamine that as well and you're challenging the the whole issue of whether or not they can even impose these fees but before you get there you have to have a finding of frivolousness don't you for purposes of section twenty two that yes i do not believe that we're not challenging that his nothing to do with the merits of the underlying claim whether they were legally or factually deficient to warrant some sort of consideration it was that they were considered the trial in b they were away because they weren't raised on a great deal and everything was based entirely on the record so it just findings really had nothing to do with the frivolousness of the claims that it was that they were procedur so with that unless this court has any other questions