NO. 4-00-0237

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

		v.

RICKEY E. GRIFFIN,

          Defendant-Appellant.	)

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)

)

)

)

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)	Appeal from

Circuit Court of

McLean County

No. 98CF1061

Honorable

Donald D. Bernardi,

Judge Presiding.

_________________________________________________________________

		PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

		In July 1999, defendant, Rickey E. Griffin, pleaded

guilty to driving while his license was revoked (DWR) (subsequent

offense felony) (625 ILCS 5/6-303(d) (West 1998)), and the trial

court sentenced him to six years in prison.  The court also

ordered him to pay a $200 reimbursement fee for the services of

the public defender pursuant to section 113-3.1 of the Code of

Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/113-3.1

(West 1998)).

		In December 1999, defendant filed a document entitled

"petition for relief from judgment," which the trial court

treated as a postconviction petition under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 1998)). 

The court subsequently dismissed defendant's petition, finding

that it was frivolous and patently without merit.  725 ILCS 5/122-2.1(2) (West 1998).  

		Defendant appeals, arguing only that the trial court erred by ordering him to pay the $200 reimbursement fee without

first conducting a hearing to determine his ability to pay.  We

affirm.

	I. BACKGROUND

		In October 1998, defendant was indicted on the DWR

charge, and the trial court appointed the public defender to

represent him.  The court also then entered an "initial reim

bursement order for court-appointed counsel," requiring defendant

to pay an initial sum of $200 in $20 monthly installments. 

Defendant posted a cash bond and secured his release from cus

tody.  In February 1999, defendant made a $20 payment pursuant to

the reimbursement order.  

		In July 1999, defendant pleaded guilty to DWR and to

two other unrelated charges in exchange for the State's dismiss

ing three other unrelated charges.  The trial court sentenced

defendant to six years in prison pursuant to the plea agreement

and deducted the remaining $180 defendant owed pursuant to the

reimbursement order from defendant's cash bond.

		In December 1999, defendant filed his postconviction

petition, alleging that the DWR charge to which he pleaded

guilty, a Class 4 felony, was unconstitutionally enhanced by

Public Act 88-680 (Pub. Act 88-680, art. 20, §20-900, eff.

January 1, 1995 (1994 Ill. Laws 2750, 2771-72)).  Specifically,

defendant contended that Public Act 88-680 violated the single-

subject rule of the 1970 Illinois Constitution (Ill. Const. 1970,

art. IV, §8(d)).  That act contained a provision amending section 6-303(d) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS

5/6-303(d) (West Supp. 1993)) by providing that a person con

victed of a second or subsequent DWR commits a Class 4 felony if

the original revocation or suspension was for a statutory summary

suspension.  See Pub. Act 88-680, art. 20, §20-900, eff. January

1, 1995 (1994 Ill. Laws 2772)).  In People v. Cervantes, 189 Ill. 2d 80, 98, 723 N.E.2d 265, 274 (1999), the supreme court voided

Public Act 88-680, also known as the "Safe Neighborhoods Law." 

		In January 2000, the trial court dismissed defendant's

petition, noting that defendant was charged and convicted under

an enhancement provision of section 6-303(d) of the Vehicle Code

that existed prior to the enactment of Public Act 88-680.  See

625 ILCS 5/6-303(d) (West Supp. 1993), (making a second or subse

quent DWR conviction a Class 4 felony if the original revocation

or suspension was for a violation of section 11-401 or 11-501 of

the Vehicle Code (625 ILCS 5/11-401 (West 1992); 625 ILCS 5/11-

501 (West Supp. 1993)))).  The court therefore determined that

defendant had not suffered an increase in penalty pursuant to an

unconstitutional statute.  

		In February 2000, defendant filed a petition to recon

sider.  In neither defendant's initial postconviction petition

nor in his petition to reconsider did he challenge the $200

reimbursement order.  The trial court later denied the petition

to reconsider, and this appeal followed.     

	II. ANALYSIS

		Defendant's sole argument on appeal is that the trial court erred by entering the $200 reimbursement order without

first conducting a hearing to determine his ability to pay.  725

ILCS 5/113-3.1(a) (West 1998); see People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997).  In response, the State

contends that defendant has forfeited any issue concerning the

reimbursement order by not raising the matter until this appeal

from the court's denial of his postconviction petition.  We agree

with the State.

		In People v. Haynes, 192 Ill. 2d 437, 464, 737 N.E.2d 169, 184 (2000), the supreme court discussed proceedings under

the Act as follows:

			"The [Act] provides a mechanism by which

criminal defendants can assert that their

convictions were the result of a substantial

denial of their rights under the United

States Constitution, the Illinois Constitu

tion, or both.  See 725 ILCS 5/122-1 (West

1994).  An action for post-conviction relief

is a collateral proceeding, not an appeal

from the underlying conviction and sentence. 

[Citations.]  In order to be entitled to

post-conviction relief, a defendant must establish a substantial deprivation of fed eral or state constitutional rights in the proceedings that produced the judgment being challenged."  (Emphasis added.)  

		Nothing in Love changes established precedent regarding the Act.  Love involved a defendant who raised the appropriate ness of her reimbursement order on direct appeal, and the supreme

court concluded that the trial court proceedings did not comply

with the statutory requirements of section 113-3.1 of the Proce

dural Code (725 ILCS 5/113-3.1 (West 1998)).  Love, 177 Ill. 2d at 563, 687 N.E.2d at 38.  The supreme court held that section

113-3.1 of the Procedural Code required the trial court to (1) 

conduct a hearing into a defendant's financial circumstances, and

(2) find an ability to pay before the court ordered the defendant

to pay reimbursement for appointed counsel.  Love, 177 Ill. 2d at 563, 687 N.E.2d at 38.  Although the supreme court indicated that

the legislature may have included this provision in the statute

because of constitutional concerns (Love, 177 Ill. 2d at 558-59, 687 N.E.2d at 36), the court did not state that a trial court's

failure to comply with the procedural requirements of section

113-3.1 of the Procedural Code constituted a violation of either

the Illinois Constitution or the United States Constitution.

		This latter point is significant because, as the

supreme court pointed out in Haynes, the Act exists to permit defendants to file postconviction petitions to establish "a

substantial deprivation of federal or state constitutional

rights."  Haynes, 192 Ill. 2d at 464, 737 N.E.2d at 184.  A trial court's failure to comply with the provisions of section 113-3.1

of the Procedural Code violates Illinois statutory law but does not constitute any "deprivation of federal or state constitu tional rights," much less a "substantial" one.

		Further, Haynes also explained that a defendant must not only establish a substantial deprivation of federal or state

constitutional rights, but that the deprivation occurred "in the

proceedings that produced the judgment being challenged." 

Haynes, 192 Ill. 2d at 464, 737 N.E.2d at 184.  The judgment being challenged, within the contemplation of the Act, is the

judgment of conviction or sentence by means of which the defen

dant stands convicted and is either imprisoned or sitting on

death row.  Simply put, $200 reimbursement orders, like the one

at issue in this case, are not cognizable under the Act because

they are the result of ancillary proceedings. 

		Although not necessary to our resolution of this case,

we note an additional infirmity in defendant's appeal.  Defendant

purports to raise the constitutionality of the $200 reimbursement

order for the first time in his appeal from the trial court's

dismissal of his postconviction petition.  Defendant does not

cite, nor are we aware of, any case in which the Act has been

construed as permitting a defendant to raise on appeal from the

dismissal of a postconviction petition an issue he never raised

in that petition.  This court will not be the first to so hold.

	III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.

		Affirmed.

		MYERSCOUGH and KNECHT, JJ., concur.