## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Johns on , 2012 IL App (1st) 111378

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. OMAR J OHNSON, De fenda nt-Appellant.

District & N o. First District, Second D ivision Docke t No. 1-11-1378

Filed J une 19, 2012

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) The co s t s and fee s imposed on defe ndant for the frivolous filing of a petition under section 2-1401 of the Code of Civil Procedure seeking relief from his criminal convictions wer e upheld on appea l, including the provision for the deduction of those fe es from defe ndant’s prisoner

acc ount.

Dec ision Under Review Appea l from the Circuit Court of Cook County , No. 97-CR-25 8 3 7 ; the Hon. Carol A. Kippe rman, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er , Anne E. Carlson, and Miriam Sierig , all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney , of Chicag o (Alan J

. Spellberg , J ohn E. Nowak, and Marg are t M. Smit h, As s istant State’s Attorney s, of counsel), f

or the People.

Panel PRES IDI NG J USTI CE QUI

NN delivere d the judgme nt of the court, with opinion. J ustices Cunningham and Har ris concur red in the judgme nt and opinion.

OP INION

¶ 1 After unsucce ssful eff orts to overturn the sentenc es for his criminal convictions on direc t appea l and via a postconviction col l at eral attack, defe ndant filed a motion for relief from judgme nt pursuant to section 2-1402 of the Cod e o f Civil Procedur e. 735 I L CS 5/2-1401 (West 2008). Finding the merits of defe ndant’s motion frivolous, the circ uit court dismiss ed the motion and order ed $155 in costs and fee s assessed ag ainst th e defe ndant pursuant to section 22-105 of the Code of Civil Procedur e. 735 I L CS 5/22-105 (West 2008). Def endant’ s appea l does not take issue with the court’s substantive finding reg arding the frivolous nature of the merits of his petition. It challeng es only the court’s authority to a ssess costs and fee s ag ainst him for eng ag ing in the f rivolity

. ¶ 2 For the rea sons stated below, we aff irm both the amount of fee s and costs assessed a nd the method of c ollection.

¶ 3 BA CKGROUND ¶ 4 On M ar ch 10, 1999, the defe ndant was found guilty by a jury of first degree murder,

arme d robber

y , ag g ravated kidnaping , ag g ravated vehicular hijacking and conce alment of a homicide. Def

endant rec eived natura l life for the m u rd er , 60 year s’ imprisonment for the robber y , kidnaping and hijacking convictions and 10 year s’ imprisonment for conce aling the homicide. Def

endant appea led the sentenc es he rece ived, and afte r much litigation, they wer e ultimately

aff irmed in 2004. ¶ 5 In 2005, defe ndant filed a postconviction p et i t i o n

. T h e t ri al court found his petition p atently without merit and dismiss ed it as frivolous. Def endant appea led. Defen d an t ’s assig ned attorney from the State Appellate Def ender ’s offi ce filed a motion to withdraw pursuant to Pennsylv ania v. Finley , 481 U.S. 551 (1987). This court allowed the motion and aff irmed the c ircuit court’ s judgme nt on October 19, 2006. ¶ 6 More than two year s later, on Dec ember 26, 2008 , defe ndant filed a petition for r elief from judgme nt pursuant to section 2-1401. The trial court summarily dismiss ed the petition

-2-without requiring a response fr o m the State. On appea l, the parties stipulated that the

dismiss al was in err or. This court issued a s u m m ary order rema nding the case for further proce eding s. After further litigation and at the sug g estion of the State, defe ndant was allowed to voluntarily dismiss his orig inal section 2-1401 petition and file a new one. The trial court g rante d the State’s motion to dismiss defe n d an t ’s n ew section 2-1401 petition. The court specific ally found the petition was untimely filed and the merits of defe ndant’s new petition

wer e frivolous. T h e court assessed fee s and costs ag ainst the defe ndant totaling $155 as follows: $90 for filing costs of the section 2-1401 petition; $50 for the State’s Attorney ’s fee in defe nding ag ainst the petition; and $15 in mailing fee s. All amounts wer e to be deducte d from the defe ndant’s prisoner trust acc ount maintained b y t h e I llinois Depa rtment of Correc tions (I DOC). ¶ 7 Def

endant appea ls both the court’s assessment of the $90 filing fee and the $50 State’s Attorney fee , but not the $15 mailing fee s ag ainst him. He also challeng es I DOC’s authority to deduct the $90 f

ee f rom his prisoner a ccount.

¶ 8 ANALYSI S ¶ 9 Def

endant conce des for purposes of this appea l that his section 2-1401 petition was both untimely and frivolous as he does not appea l the circ uit court’s ruling s on those issues. This

was not the first time this defe ndant’s pleading s wer e found to be frivolous. Eng ag ing in such frivolity has cause d the State to spend money in defe nse of his petition and the court sy stem to spend money proce ssing and ruling on his petition. The $155 ass es s ed ag ainst the defe ndant was nowhere close to the a ctual amounts expended. ¶ 10 Def

endant rel i es on the wording of section 22-105(a ) of the Code of Civil Procedur e, which makes a prisoner who fil es frivolous pleading s “re sponsible fo r the full pay ment of filin g fe es and court costs” but then allows I DOC to only collect “cour t costs.” 735 I L CS 5 /22-105(a) (West 2008). Fur ther, defe ndant argues that the trial court did not have t h e authority to assess a $90 filing fee beca use no filing fee was re quired by the cour t when he filed hi s section 2-1401 petition. Additionally , he argues ag ainst the imposit ion of the $50 State’s Attorney

fee for ha

ving to de fend his frivolous pleading

. ¶ 11 In Okumura v. Nisei Bowlium, Inc. , 43 I ll. App. 3d 753, 755 (1976), the court observe d that a section 2-1401 petition is considere d a pleading in a new civil cause of action and, as such, must be filed just a s a complaint is f iled. The purpose of allowing the circ uit c ourt to assess fees and c osts under sec tion 22-105 is to decre ase the number of frivolous petitions filed by inmates. People v. Conick, 232 I ll. 2d 132, 141 (2008). Her e, costs and fee s are only assessed ag ainst the inmate af ter the f iling is found to be frivolous. There fore , no financ ial burden is p l ac ed on the i nmate prior to a finding of frivolity

. In fac t, the s tatute t he circuit court relied on in assessing fee s and costs specific ally provides that no inmate is prohibited from fili ng any pleading based o n an i n ab ility to pay

. 735 I L CS 5/22-105(a) (West 2008); People v. Carter , 377 I ll. App. 3d 91, 102 (2007); People v. Gale , 376 I ll. App. 3d 344, 361 (20 0 7 ). The defe ndant’s argument, there fore , fails. The $90 filing fee was appropriately assessed for the filing of this section 2-1401 petition afte r the court’s finding that the petition was frivolous.

-3-¶ 12 Def en d an t ar gues that the circ uit court err ed in allowing I DOC to deduct his prisoner

acc ount for the filing fee beca use the statute only allows “any court costs ” t o b e d educte d from his acc ount. The argument g oes that beca use filing fee s are not court costs, IDOC could not deduct the filing fee

. This court has previously reje cte d t h i s argume nt and we find no
rea sons to deviate from t his court’s ruling in People v. Smith , 3 8 3 I ll. App. 3d 1078, 1097 (2008), which held that the $90 filing fee is consistent with the leg islature’s broad use of the term “any court costs” to inc lude filingfee s. In fac t, the supreme c ourt has agree d with the interpre tation that a cost includes filing fee s beca use a cost compensates for serv i ce s as distinguished fr om a fine, which is punishment for a criminal conviction. People v . Smith , 383 I ll. App. 3d 1078, 1094 (2008) (citing People v. Jones , 223 I ll. 2d 569, 581-82 (2006))

. Defen d ant provides us with no new arguments. See also People v. Coleman , 2011 I L App (1st) 091005, ¶ 48; People v. Dixon , 409 I ll. App. 3d 915 (2011). We find that the filing fee in this case can be deducted from the defendant’s prisoner ac count pursuant to sec tion 22- 105(a)

. ¶ 13 Finally , defe ndant argues that the court impr o p er l y re l i ed on section 4-2002.1 of the Counties Code (55 I L CS 5/4-2002.1 (West 2010)), when it assessed a $50 fee to the State’s Attorney ’s office for defe nding this frivolous section 2-1401 petition beca use, althoug h the statute g ener ally allows the fee for habeas corpus case s, it does not specific ally mention a section 2-1401 petitio n f

o r relief from judgme nt. The statute, in pertinent part, states: “State’s attorney s shall be entitled to the following fee s: *** For eac h day actua lly employed in the hearing of a case of habea s corpus in which the people are int er es t ed , $ 5 0

. ” 55 I L CS 5/4- 2002.1(a) (West 2010). Ag ain, we find that the statute ref ers to habeas corpus proce eding s g enerically and is meant to encompa ss frivolous section 2-1401 petitions for re lief from judgme nt. In his reply brief, the defe ndant relies upon People v. Gutierrez , 2011 I L App (1st) 093499, involving a succe ssive postconviction petition, which held that when the State had not been called upon to defe nd aga inst a postjudgment petition that was summarily dismiss ed, no fee was war rante d. In this case , the assistant State’s Attorney actively defe nded the State’s position on the defe ndant’s petition, made numerous court appea ranc es and filed

a six -page written response

. J ust as the term, ref err ed to above, “any court costs” is used g enerically , the $50 State’s Attorney fee applies to all collater al proce ed i n g s and the term

“ habeas corpus ” when identifying what proce eding s the State may rec over a fee for is used g enerically , as well. J ust as the Smith court found the statutory languag e of section 22-105(a ) to be very broad and “shows the leg islature’s intention to include all ty pes of pro se filings b y p risoners seeking postconviction relief ” ( People v. Smith , 383 I ll. App. 3d 1078 , 1 0 9 2 (2008)) , we find the $50 State’s Attorney fee to be statutorily authorized. The l egis lative history for a ssessing the se ty

pes of f ees a nd costs clea

rly indicates the statutes wer e mea nt to deter frivolous filings, which impedes acc ess to the cou rt s by those with meritorious claims. People v . Jarrett , 399 I ll. App. 3d 715, 729 (2010). ¶ 14 Acc ording ly , we aff irm the order of the circ uit c ourt which assessed defe ndant $155 in costs and fee s for a frivolous filing and IDOC’s abil ity to deduct those fee s from the defe ndant’s prisoner

acc ount.

¶ 15 Affir

med.

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