ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

OMAR JOHNSON, Defendant-Appellant.

 District & No. First District, Second Division

Docket No. 1-11-1378

Filed June 19, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The costs and fees imposed on defendant for the frivolous filing of a

petition under section 2-1401 of the Code of Civil Procedure seeking

relief from his criminal convictions were upheld on appeal, including the

provision for the deduction of those fees from defendant’s prisoner

account.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 97-CR-25837; the

Hon. Carol A. Kipperman, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Anne E. Carlson, and Miriam Sierig, all of State

Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, John

E. Nowak, and Margaret M. Smith, Assistant State’s Attorneys, of

counsel), for the People.

Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with

opinion.

Justices Cunningham and Harris concurred in the judgment and opinion.

OPINION

¶ 1 After unsuccessful efforts to overturn the sentences for his criminal convictions on direct

appeal and via a postconviction collateral attack, defendant filed a motion for relief from

judgment pursuant to section 2-1402 of the Code of Civil Procedure. 735 ILCS 5/2-1401

(West 2008). Finding the merits of defendant’s motion frivolous, the circuit court dismissed

the motion and ordered $155 in costs and fees assessed against the defendant pursuant to

section 22-105 of the Code of Civil Procedure. 735 ILCS 5/22-105 (West 2008). Defendant’s

appeal does not take issue with the court’s substantive finding regarding the frivolous nature

of the merits of his petition. It challenges only the court’s authority to assess costs and fees

against him for engaging in the frivolity.

¶ 2 For the reasons stated below, we affirm both the amount of fees and costs assessed and

the method of collection.

¶ 3 BACKGROUND

¶ 4 On March 10, 1999, the defendant was found guilty by a jury of first degree murder,

armed robbery, aggravated kidnaping, aggravated vehicular hijacking and concealment of a

homicide. Defendant received natural life for the murder, 60 years’ imprisonment for the

robbery, kidnaping and hijacking convictions and 10 years’ imprisonment for concealing the

homicide. Defendant appealed the sentences he received, and after much litigation, theywere

ultimately affirmed in 2004.

¶ 5 In 2005, defendant filed a postconviction petition. The trial court found his petition

patently without merit and dismissed it as frivolous. Defendant appealed. Defendant’s

assigned attorney from the State Appellate Defender’s office filed a motion to withdraw

pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). This court allowed the motion and

affirmed the circuit court’s judgment on October 19, 2006.

¶ 6 More than two years later, on December 26, 2008, defendant filed a petition for relief

from judgment pursuant to section 2-1401. The trial court summarily dismissed the petition

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without requiring a response from the State. On appeal, the parties stipulated that the

dismissal was in error. This court issued a summary order remanding the case for further

proceedings. Afterfurtherlitigation and at the suggestion of the State, defendant was allowed

to voluntarily dismiss his original section 2-1401 petition and file a new one. The trial court

granted the State’s motion to dismiss defendant’s new section 2-1401 petition. The court

specifically found the petition was untimely filed and the merits of defendant’s new petition

were frivolous. The court assessed fees and costs against the defendant totaling $155 as

follows: $90 for filing costs of the section 2-1401 petition; $50 for the State’s Attorney’s fee

in defending against the petition; and $15 in mailing fees. All amounts were to be deducted

from the defendant’s prisoner trust account maintained by the Illinois Department of

Corrections (IDOC).

¶ 7 Defendant appeals both the court’s assessment of the $90 filing fee and the $50 State’s

Attorney fee, but not the $15 mailing fees against him. He also challenges IDOC’s authority

to deduct the $90 fee from his prisoner account.

¶ 8 ANALYSIS

¶ 9 Defendant concedes for purposes of this appeal that his section 2-1401 petition was both

untimely and frivolous as he does not appeal the circuit court’s rulings on those issues. This

was not the first time this defendant’s pleadings were found to be frivolous. Engaging in such

frivolity has caused the State to spend money in defense of his petition and the court system

to spend money processing and ruling on his petition. The $155 assessed against the

defendant was nowhere close to the actual amounts expended.

¶ 10 Defendant relies on the wording of section 22-105(a) of the Code of Civil Procedure,

which makes a prisoner who files frivolous pleadings “responsible for the full payment of

filing fees and court costs” but then allows IDOC to only collect “court costs.” 735 ILCS

5/22-105(a) (West 2008). Further, defendant argues that the trial court did not have the

authority to assess a $90 filing fee because no filing fee was required by the court when he

filed his section 2-1401 petition. Additionally, he argues against the imposition of the $50

State’s Attorney fee for having to defend his frivolous pleading.

¶ 11 In Okumura v. Nisei Bowlium, Inc., 43 Ill. App. 3d 753, 755 (1976), the court observed

that a section 2-1401 petition is considered a pleading in a new civil cause of action and, as

such, must be filed just as a complaint is filed. The purpose of allowing the circuit court to

assess fees and costs under section 22-105 is to decrease the number of frivolous petitions

filed by inmates. People v. Conick, 232 Ill. 2d 132, 141 (2008). Here, costs and fees are only

assessed against the inmate after the filing is found to be frivolous. Therefore, no financial

burden is placed on the inmate prior to a finding of frivolity. In fact, the statute the circuit

court relied on in assessing fees and costs specifically provides that no inmate is prohibited

from filing any pleading based on an inability to pay. 735 ILCS 5/22-105(a) (West 2008);

People v. Carter, 377 Ill. App. 3d 91, 102 (2007); People v. Gale, 376 Ill. App. 3d 344, 361

(2007). The defendant’s argument, therefore, fails. The $90 filing fee was appropriately

assessed for the filing of this section 2-1401 petition after the court’s finding that the petition

was frivolous.

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¶ 12 Defendant argues that the circuit court erred in allowing IDOC to deduct his prisoner

account for the filing fee because the statute only allows “any court costs” to be deducted

from his account. The argument goes that because filing fees are not court costs, IDOC could

not deduct the filing fee. This court has previously rejected this argument and we find no

reasons to deviate from this court’s ruling in People v. Smith, 383 Ill. App. 3d 1078, 1097

(2008), which held that the $90 filing fee is consistent with the legislature’s broad use of the

term “any court costs” to include filing fees. In fact, the supreme court has agreed with the

interpretation that a cost includes filing fees because a cost compensates for services as

distinguished from a fine, which is punishment for a criminal conviction. People v. Smith,

383 Ill. App. 3d 1078, 1094 (2008) (citing People v. Jones, 223 Ill. 2d 569, 581-82 (2006)).

Defendant provides us with no new arguments. See also People v. Coleman, 2011 IL App

(1st) 091005, ¶ 48; People v. Dixon, 409 Ill. App. 3d 915 (2011). We find that the filing fee

in this case can be deducted from the defendant’s prisoner account pursuant to section 22-

105(a).

¶ 13 Finally, defendant argues that the court improperly relied on section 4-2002.1 of the

Counties Code (55 ILCS 5/4-2002.1 (West 2010)), when it assessed a $50 fee to the State’s

Attorney’s office for defending this frivolous section 2-1401 petition because, although the

statute generally allows the fee for habeas corpus cases, it does not specifically mention a

section 2-1401 petition forrelieffrom judgment. The statute, in pertinent part, states: “State’s

attorneys shall be entitled to the following fees: *** For each day actually employed in the

hearing of a case of habeas corpus in which the people are interested, $50.” 55 ILCS 5/4-

2002.1(a) (West 2010). Again, we find that the statute refers to habeas corpus proceedings

generically and is meant to encompass frivolous section 2-1401 petitions for relief from

judgment. In his reply brief, the defendant relies upon People v. Gutierrez, 2011 ILApp (1st)

093499, involving a successive postconviction petition, which held that when the State had

not been called upon to defend against a postjudgment petition that was summarily

dismissed, no feewas warranted. In this case, the assistant State’s Attorneyactivelydefended

the State’s position on the defendant’s petition, made numerous court appearances and filed

a six-page written response. Just as the term, referred to above, “any court costs” is used

generically, the $50 State’s Attorney fee applies to all collateral proceedings and the term

“habeas corpus” when identifying what proceedings the State may recover a fee for is used

generically, as well. Just as the Smith court found the statutory language of section 22-105(a)

to be very broad and “shows the legislature’s intention to include all types of pro se filings

by prisoners seeking postconviction relief” (People v. Smith, 383 Ill. App. 3d 1078, 1092

(2008)), we find the $50 State’s Attorney fee to be statutorily authorized. The legislative

history for assessing these types of fees and costs clearly indicates the statutes were meant

to deter frivolous filings, which impedes access to the courts by those with meritorious

claims. People v. Jarrett, 399 Ill. App. 3d 715, 729 (2010).

¶ 14 Accordingly, we affirm the order of the circuit court which assessed defendant $155 in

costs and fees for a frivolous filing and IDOC’s ability to deduct those fees from the

defendant’s prisoner account.

¶ 15 Affirmed.

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