FIFTH DI VISI ON October 12, 2007

No. 1-06-0210

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee,

v. GERAL D CARTER, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorab le James Michael Obbish, Judge Presi ding.

JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: Defendant Gerald Carter cha llenges the trial court’s order assessing $90 in costs and fees pursuant to section 22-105 of the Code of Civil Procedure (735 I LCS 5/22-105 (West 2004)) upon dismissing defendant’s successive post-conviction petition as frivolous. On appeal he argues as follows: (1) there is no filing f ee for post-conviction petitions authorized by statute; (2) assessment of costs and fees pursuant to section 22-105 (735 I LCS 5/22-105 (West 2004)) violates equal protection and due process; and (3) his mittimus should be correcte d to reflect seven da ys c redit. F or the fo llowing r easons, we affir

m. BACKGROUND Defend ant was c onvicted

after a jury trial of p ossession

of a cont rolled su bstance with intent to de liver and was sen tenced t o an extend

ed term o f 15 y

ears in the Ill inois state1-06-0210

2

penitentiary. On dire ct appeal defendant arg ued that he was not proven guilty beyond a reasonable doubt because the State’s witness was impea ched, his testimony was unbelieva ble and there was no evidence of intent to deliver. He a lso argued the trial court erred in a dmitting testimony of an anony

mous call to police, testimony about ga ng activity a

nd by not allowing cross-examination regarding g ang activity . We affirmed. People v. Carter , No. 1-99-1228 (2000) (unpublished order under Supreme Court Rule 23). On July 16, 2001, defendant filed a pro se post-conviction petition alleging ineffective assistance of counsel both at trial and on direct appeal. On A ugust 20, 2001, the trial court summarily dismissed defendant’s post-c onviction petition. In addressing the alleg ations of ineffe ctive as sistance

of trial c ounsel, th e trial c ourt indic ated tha t defend ant “fa iled to est ablish the requ isite showing of e ither de ficient p erforma nce or sufficien

t prejudic e.” The

trial cou rt also found that due to a lack of support for defendant’s unde rlying c laim, he could not prevail on a claim of ineffective assistance of appellate counsel. The trial court further held that, with the exception of defe ndant’s c laim of ine ffectiv e assista nce of a ppellate counsel, all other

claims were barred by

the doctrines of

res judicata and waiver. We granted defe ndant’s motion to file a late notic e of appe al. The sole i ssue def

endant r aised on a ppeal of the dismiss al of hispro se post-conviction petition w as wheth er both tr ial couns el and ap

pellate c ounsel we

re inef fective for fail ing to challen ge the S tate’s us e of a nonexistent conviction f or posses sion of a s tolen motor vehicle in aggravat ion at defend ant’s sente ncing h earing.1-06-0210

3

On Octobe

r 17, 2003 , we aff

irmed the trial cou rt’s dismis sal of de fendant ’s petition in People v. Carter , No. 1-02 -025 4 (20 03) ( unpub lishe d order under S upre me Cou rt Rul e 23) . We concluded that “even absent the mistaken possession of a stolen motor vehicle c onviction, defendant was nonetheless eligible to be sentenc ed as a Class X offender, which meant that he could properly be

sentenced to a term of not more than 30 y ears.” Carter , slip op. at 6. On December 6, 2005, defendant filed the c onsecutive pro se petition which is the subject of the instant appeal. He alleged var ious constitutional violations, including the State’s improper use of the possession of a stolen motor vehicle conviction in sentencing, denia l of his right to a jury trial, improper e

nhance ment of se

ntence, ineffe ctive as sistance of counse l for fai ling to present a motion for directed verdict or a notice of appeal, and ineffective assistance of counsel for failing to investigate a jury polling error. The trial court on Dece mber 13, 2005, dismissed the consecutive petition as frivolous. The court concluded that the alleg ations were either waived

or res judic ata and defendant had not satisfied the “cause- and-prejudice test.” In a separa te order the trial court as sessed $9 0 in “fee s and act ual cour t costs”a gainst defenda nt upon fin

ding the consecu tive petit ion frivo lous. The

order r eads as f ollows: “This matter having come to be heard for assessment of court costs and fees pursuant 735 I LCS 5/22-105 (West 2004), the court having denied the successive petition for post-c onviction relief i n Novembe

r 2005, up on a findi

ng that i t was enti rely frivolou s in that:1-06-0210

4 1. it lacked an arguable basis in law or in fa ct; and 2. the cla ims, defe nses, and other le gal con

tentions therein are not warranted by

existing law or by a nonfr ivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law. IT IS THEREFORE ORDERED that petitioner be assessed the following filing fees and a ctual court costs in the amount of $90.00 for filing a petition to vacate, modify, or reconsi der fina

l judgme nt pursua nt to 705 I

LCS 105 /27.2(a)

(West 2004). In satisfaction of this assessment, the I llinois Department of Corrections shall collect a first time pay ment of 50% of the average monthly

balance of petitioner’s trust fund account for the past six months. Thereafter, 50% of all deposits into petitioner’s account shall be withheld until the assessment costs are collected in full.” Defendant challenges the a ssessment of $90 in fees and court costs. He arg ues there is no filing f ee for p ost-conv

iction petitions aut

horized by

statute. F

urther, he conte

nds that th e statute relied upon by the tria

l court in assessing the $90 fee violated defenda nt’s due process and equal protection rights because it improperly restricts defendant’s reasonable ac cess to the courts and unfairly applies to prisoner s in violation of both the United States and Illinois Constitutions. U.S. Const., amend. XIV; I ll. Const. 1970, art. I, §2. We address each ar gument in turn.1-06-0210

5 ANAL YSIS I. $9 0.00 Fee

Authorize d By

Statute In the instant case, the cour t after finding defendant’s succe ssive post-conviction petition frivolous assessed a $90 filing fee pursuant to section 22-105 of the Code of Civil Procedure, which provides that the prisoner is “responsible for the full pay ment of filing fees and actual court costs.” 735 IL CS 5/22-105 (West 2004). In conjunction with section 22-105, the court

asses sed agai nst d efenda nt “fi ling fe es and actual court costs in th e amou nt of $ 90 for fili ng a petition to

vacate , modify, or rec onsider f inal judg ment purs uant to 705 IL CS105/27.2( a) (West 2004).” Defendant argues he should not have been assessed a $90 filing fee be cause section 22- 105 does not “spec ify

the cost o f filing

a post-c onviction

petition, n

or does that section crossreference any

other statutory section where such information can be found.” He f urther argues that section 27.2(a) is inapplicable because the “c ourt lacked the authority to assess the $90 filing fee pursuant to section 27.2(a) of the Clerks of Courts Act, which outlines the f ees in counties with population over 3,000,000.” In support of that contention, def endant argues that section 27.2(a) only a

pplies to civil cases and as such cannot be relied upon in the context of the instant post-con viction pe tition to au

thorize the

assessme nt of the $ 90 filing

fee. We a

ddress defendant’s challenge to section 22-105 and section 27.2(a).

A. Trial Court Correctly A pplied Section 22-105 Pursuant t

o section 22-105 (7 35 IL

CS 22-105( a) (West 2 004)), if a trial c ourt make s a specific finding that the pleading, motion or other pape r filed by a pr

isoner is frivolous, the prisoner is responsible for the full pay ment of filing fees and actual court costs. Section 22-105,1-06-0210

6

entitled “Frivolous lawsuits filed by pr isoners,” states in subsection (a), in relevant part, as follows: “(a) If a prisoner *** files a pleading, motion, or other filing w hich purp orts to be

a lega l documen

t in a cas e seekin

g postconviction relief under Article 122 of the Code of Criminal Procedure of 1963, *** and the Court makes a specific f inding that the pleading, motion, or other filing which purports to be a leg al document filed by the priso ner is fr

ivolous, th e prisone

r is responsible for the full pay ment of filing fees and actual court costs.” 735 IL CS 5/22-105(a) (West 2004). Section 22-105(b) indicates that a pleading, motion or paper is fr ivolous if it satisfies any or all of the follo wing: “(1) la cks an ar guable basis either in law

or in fact; (2) it is being presented for any improper purpose, such as to harass or to cause unnecessary delay or ne edless increase in the cost of litigation; (3) the c laims, def

enses, a nd other l egal c ontention s therein are not warranted by

existing law or by a nonfr ivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (4) the allegations and other factua l contentions do not have evidenti ary

support or , if spec ifically so identif

ied, are not likely

to1-06-0210

7 have evidentiary

support after a reasonable opportunity for further investigation or discovery ; or (5) the denials of factual contentions are not war ranted on the evide nce, or i f specif

ically so identif

ied, are not reas onably based on a lack of information or belief.” 735 I LCS 5/22-105(b) (West 2004). In addressing de fendant’s challenge to section 22-105, we find People v

. Gale , No. 1-06- 0038 (September 7, 2007), and People v. Hunter , No.1-06-0367 (September 21, 2007), instructive. The instant case challenges the fe e assessed against defendant a fter the court found a

success ive post- convicti on to be fr ivolous, w

hile Gale and Hunter addressed a similar argument in the context of an original post-conviction petition. For purposes of our analy sis, however, the statu s of the pet

ition as ei ther orig inal or suc cess ive is

not si gnif

ican t. I n either fa

ctua l con text the well r easoned principle s articul ated in

Gale and Hunter are applicable. Relying on

Gale , we reje ct defe

ndant’s a rgumen t that a fi ling fe e is not sta tutorily authorized because section 22-105 does not “specify the cost of filing a post-conviction petition.” We adopt th e analy

sis artic ulated in Gale as follow s: “While sec

tion 22-10 5(a) ma

y no t refer

in exact words to prisoners filing ‘ post[-]conv iction petitions,’ i

t unmistaka

bly states that a fee will apply to a prisoner’s pleading, motion or other filing ‘seeking post[-]conviction relief under Article 122 of the Code o f Criminal

Procedu re.’ 735 IL CS 5/22-105 (a) (Wes t 2004). That the fee will apply to post[-]conviction petitions, then,1-06-0210

8 cannot be any clea rer, as the se petitio ns ar

e ‘se eking pos t[- ]conviction relief’ and are brought under our Post-Conviction Hearing Act (725 I

LCS 5/122-1 et seq. (West 2004)). Such a finding is in line with section 21 of our Court of Claims Act *** specifically a

uthorizing our trial courts to impose fees when a prisoner’s petition is found to be frivolous. See 705 ILCS 505/21 (West 2004).” Gale , slip op. at 17-18. In rejecting

defendant’s additional argument that a filing fee is not statutorily authorized because section 22-105 does not “cross-ref erence any

other statutory section where such information can be found,” we rely on the following well-reasoned principles of Hunter : “We acknowledge that section 22-105 of the Code doe s not refer ence or cross-r efere nce a sta tute spec ifically

providing

the cost of filing a post[-]conviction p etition. I t appears that this i s becaus e there is no initial filing fee for a post[-]conviction petition. Section 22-105 assesses fees only after a legal document in a post[-] conviction proceeding is found to be frivolous. Once a court has made that determination, it must look elsewhere in determining the costs to be assessed the prisoner, depending on the ty pe of legal document filed. When possible, this court should construe a statute so that it is not rendered meaningless. SeePeople v. Maggette , 195 I ll. 2d 336, 3 50 (2001) . There fore, c ontrary to defenda nt’s arg ument, the

lack of s pecific fee amo unts or cr oss-1-06-0210

9 references to specific fe e statutes in section 22-105 does not render the section meaningless or invalid.” Hunter , slip op. at 12. Relying on Gale

and Hunter , we conclude the trial court correctly applied section 22-105. 735 I LCS 5/2 2-105 (We st 2004). We further note, the fact tha t section 2 2-105 de lineates a specific method for collecting fees f rom prisoners provides additional support for our conclusion that section 22-105 was properly applied in the instant case. Section 22-105 not only a uthorizes fees to be assessed against prisoners who f ile frivolous petitions but provides a method for collecti ng fee s from pri soners a s follows:

“On filin g the ac tion or pr oceedin g the co urt shall a ssess and, when funds exist, collect as a partial pay ment of any cour

t costs requi red by law a first time payment o f 50% o f the av erage monthly balance of the pr isoner’ s trust fun

d accou nt for the past 6 months. Thereafter 50% of all deposits into the prisoner’s individual account under [s]ections 3-4-3 and 3-12-5 of the Unified Code of Corrections [730 IL CS 5/3-4-3, 3-12-5] administered by the Illinois Department of Corrections shall be withheld until the actual court costs are collected in full. The De partment of Corrections shall forward any moneys withheld to the court of jurisdiction. If a prisoner is relea sed before the full costs are collected, the Department of Corrections shall forwa rd the amount of costs collected through the date of re lease.” 735 ILCS 5/22-105 (West 2004).1-06-0210

10

The language of sec

tion 22-105 demonstrates the legislative intent to provide the mechan ism b y which th e asses sed fee s are t o be co llect ed from priso ners. The sp ecifi c langu age of the sta tute unde rmines de fendant ’s arg

ument tha t the cour t lacked statutory authority to assess the $90 filing fee. Accordingly , for the reasons previously discussed, we conclude the trial correctly applied section 22-105. 735 IL CS 5/22-105 (West 2004).

B. Trial Court Correctly

Applied Section 27.2(a) Defendant further arg

ues that the $90 fee was not valid because the trial cour t relied on section 27.2(a) of the Clerks of Courts Act (705 I LCS 105/27.2(a) (West 2004)), which he contends applies to

civil, cr iminal, pr obate, a nd other proceed

ings, bu t, howeve r, “nowh ere in section 27.2a is a fee specified for filing a post-conviction petition.” Defendant further contends that section 27.2a fees cannot apply to post-conviction petitions because such petitions are “not the same as a petition to vacate or modify any final judg

ment or order of court.” Section 27.2a applies to circuit court fees in counties of 3 million or more. I t provides that a mini

mum fee o f $75 and

a maximum fe e of $90 is to be cha rged b y those who f

ile “[p]etition[s ] to vacate

or modify

any final judg

ment or or

der of c ourt, exce

pt a petiti on to

mo di fy, te rm in at e, or en fo rc e a ju dg me nt or or de r f or ch il d o r s po us al su pp or t o r t o m od if y, suspend, or terminate an order for withholding, if filed la ter than 30 days a

fter the entry

of the judgment or order.” 705 I LCS 105/27.2a(g)(2) (West 2004). The circ uit court, in exercis ing its a uthority to assess filing f ees and c osts pursu

ant to section 22-105, relied on section 27.2a of the Clerks of Courts Act to determine the f ee to be

assesse d. We are

mindful tha

t statutes address ing the s ame subje ct will be consider ed with1-06-0210

11

reference to each other

to give them harmonious effect under the doctr ine of in pari mate

ria

. Hunter , slip op. at 12-13, citing People v . McCarty , 223 Ill. 2d 109, 133 (2006). While sect

ion 27.2(a

) applie s to petitions to vaca te or modif

y f inal judg ments, the

issue in the in stant

case is whe ther sect ion 27 .2(a

) app lies t o suc cess ive p ost-c onviction p etiti ons. W e note the Post-Conviction Hearing Act (Act) (725 I LCS 5/122-1 et seq

. (West 2000)) provides collateral relief from prior final judgme nts. “A post[-]conviction petition seeks to modify or vacate a final judgment in the sense that it inquires into issues that relate to and a ffect a sentence or conviction of a final judgment that were not, or could not have been, determined on direct appeal.” Hunter , slip op. at 13, citing People v. Barrow , 19 5 Ill . 2d 506 , 51 9 (2 001 ). In Gale , we recognized that section 27.2a(g )2 indicated that “it applies to petitions to vacate or modify ‘any fina l judgment or order of court.’ 705 I LCS 105/27.2a(g)(2) (West 2004).” Gale , slip op. at 18. The purpose of a post-conviction petition, whether original or suc cessive, is to modify or vacate a final judgment, and as such se ction 27.2a fees are applicable. Gale , slip op. at 19 (“[p]ost-c onviction

petitions a

ct prec isely

as vehic les for prisoner s who are seeking to vacat e and/or modify the final judg ments of conviction and/or sentence entered in their ca uses. [Citations.]”). Accordingly, we r eject defendant’s argume

nt that section 27.2a(g)(2) does not apply to post-c onviction

petitions. For the reasons previously discussed, we conclude there is more than ample statutory support pursuant to section 22-105 of the Civil Code of Procedure together with sec tion 27.21 of the Clerks of Courts Act for the trial court to assess $90 in fees and cour t costs against defendant upon findi

ng his suc cessive

post-con viction pe tition frivolous. II . $90 Fee Is Constitutional1-06-0210

12

Defendant argues that “be cause section 22-105 violates the Equal Protection and Due Process c lauses of

both the U

nited State s and I llinois Cons titutions, t he asses sment ord

er aga inst Carter must be vacated.” See U.S. Const., amend. XI V; Ill. Const. 1970 art. I, §2. D efendant further contends that “se ction 22- 105, which should be subjecte d to strict

scrutiny analy sis, fails to withstand even rational basis review.” Whether a statute is constitutional is reviewed under a de novo standard. People v. Jones , 223 Ill. 2d 569, 596 (2006). Statutes are presumed c onstitutional, and we must construe the statute so as to uphold its constitutionality and validity

. Jones , 223 I ll. 2d at 59 5. The pa rty chall enging t he con stit utio nalit y of the st atute has th e burd en of cl early demo nstra ting a constitutional violation. People v. Malchow , 193 Ill. 2d 413, 418 (2000). The strict scrutiny test applies if the court finds that the statute affects either a fundamental right or discriminates aga inst a suspect class. People v . Shephar d , 152 Ill. 2d 489, 500 (1992). To survive strict scrutiny , the means employed by the legislature must be necessary to achie ve a comp elling s tate inte rest, an d the statu

te must be n

arrowly tailored to accom plish this goa l, i.e. , the legislature must employ the least restrictive means consistent with the attainment of the intended goal. Gale , sli p op. a t 21, citi ng People v. Cornelius , 213 Ill. 2d 178, 204 (2004) (and cases cited therein). The rational basis test requires a rational relationship to a legitimate state interest if the statute does not affect a fundamental right or suspect class. Jones , 223 I ll. 2d at 56 9 (and ca ses cited therein ); People v. Reed

, 148 Ill. 2d 1, 7 (1992). Neither indigent defendants nor prisoners c omprise suspect classifications. People v. Botruff , 212 Ill. 2d 166, 176-77 (2004) (suspect classific ations include race, national origin, sex or illegitimacy; in ca ses not involving these, rational basis test is to be used). As to defendant’s1-06-0210

13

fundame ntal rig hts, while there is a fundame ntal rig ht to acc ess to the

courts, t here is n ot a fundamental right to such access without expense. Crocker v. Finley , 99 Ill. 2d 444, 454-55 (1984). Accordin

gly , we reje ct defe

ndant’s c ontention

that we should use th e strict s crutiny test in addressing his challenge to the constitutionality of section 22-105. Rather, we will apply the rational basis test in addressing his due process and equal pr otection arguments. A. Due Pr

ocess Defendant argues that section 22-105 “unfairly subjec ts indigent petitioners to pecuniary punishment for attempting to exercise a state-gra nted post-conviction remedy , in violation of a prisoner’s due process right of meaning ful access to the court.” We are mindful that meaning ful access to the court requires that litigants have a “reasonably

adequate opportunity to pr esent claimed violations of fundamental constitutional rights to the courts.” Bounds v. Smith , 430 U.S. 817, 825, 52 L. Ed. 2d 72, 81, 97 S. Ct. 1491, 1494 (1977). Howeve r, while t here is a fundame ntal rig ht to acc ess to the

courts ( Bounds v. Smith , 430 U.S. at 821, 52 L. Ed. 2d at 78, 97 S. Ct. at 1494; Tedder v. Fairman , 92 Ill. 2d 216, 222 (1982)), the const itution doe s not gua

rantee citizens th e right

to litiga te without expense, and fees can be imposed if related to the operation and maintenance of the c ourts. Crocker v. Finley , 99 Ill. 2d 444, 454- 55 (1984) . As noted inGale , this princ iple has b een rea ffirmed in variou s cases, including assessing costs against indige nt defendants upon appeal. Gale , slip op. at 22, citing People v . Nicholls , 71 Ill. 2d 166 (1978) (cash bail bond ca n be applied to appointed counsel fees ev en when d

efenda nt is indig ent); People v. Maxon , 318 Ill. App. 3d 1209 (2001) (fees charg es by

clerks o f the cou

rt for re producti on of cou

rt reco rds do not v

iolate a l itigants constituti onal rig

ht to acc ess the c ourts); Lee v. Pucinski , 267 Ill. App. 3d 489, 494 (1994)1-06-0210

14

(mandat ory $1 fee c harge d for disp

ute reso lution fund does not v iolate constitutiona

l right to

access the cour ts); Wenger v. Finley , 185 Ill. App. 3d 907, 915 (1989) (upholding the constituti onality

of reta ining the 10% bond f

ee to cov er cour

t costs an d relate d fees) ; Schlib v. Kuebel , 46 I ll. 2d 538 ( 1970) (up holding j ury

demand f

ee); Fried v. Danaher , 46 Ill. 2d 475 (1970). Defendant, rely

ing on Smith v. B ennett , 365 U.S. 7 08, 709, 6 L . Ed. 2d 39, 40, 81 S. Ct. 895, 896 ( 1961), a

rgues t hat inabi lity

to pay a filing fee ca nnot limit a

defendant’s postconvicti on right . We reje cted a si milar ar gument i n Hunter and concluded that no financial consideration is interposed which denies a prisoner’s acc ess to the courts by applica tion of section 2 2-105. We n

oted as f ollows: “Defendant fails to recognize that section 22-105 assesses court costs and filing fees after a filed le gal document is found to be frivolous, but not before the actual filing. Bec ause no financial consider ation is ‘i nterpose d’ betwe en a pris oner and his acce ss to the courts, his due process argument under Smith must fail.” Hunter , slip op. at 14. We noted in

Hunter that “although the right of acce ss to the courts may be funda mental [citations], section 22-105 does not operate in a manner that affects a prisoner ’s access to the courts. The fees and costs are assesse d only after a legal document is found to be frivolous. The statute, a t most, only

impinge s on a pris oner’s r ight to f ile frivo lous leg al docume nts without

cost with the court.” Hunter , slip op. a t 16. We fol low the we ll-reas oned prin ciples a rticulat ed in Hunter and, applying

the rational basis test, reject defendant’s constitutional challeng e under1-06-0210

15

Smith v. B ennett , becau se indig ent priso ners ar e not a sus

pect cla ss (

People v . Bonilla , 170 I ll. App. 3d 26 , 34 (1988 )), and n o financ ial consid

eration is interpo sed betw een a pr isoner a nd his

access to the cou

rts ( Hunter , slip op. at 14)). Defendant, rely

ing on People v. Greer , 212 Ill. 2d 192, 208 (2004), further ar gues that althoug h “secti on 22-105 purports to recou p court f ees and c osts, the ma

nner in w hich this is accomp lish ed reve als th at, in reali ty, ‘the l egisla ture s ought to pen aliz e a defen dant f or fil ing a frivolou s petition. ’ ” We re jected the same a

rgumen t in Hunter as follow s: “Howev er, the ‘ penalty ’ a defe ndant is a ssessed i s specific ally

comprise d of the ‘ filing f ees and a ctual co urt costs’ due to any

frivolou s petition a

defenda nt might f ile. 735 I LCS 5/22-105(a) (West 2004). It is an attempt by the court to defray

the costs of d isposing of frivo lous petiti ons while s imultaneo usly discouraging frivolous petitions. SeePeople v. Anderson , 352 I ll. App. 3d 934, 946 (2004); see also Crocker v. Finley , 99 Ill. 2d 444, 454 (1984) (holding that court filing fees may be imposed for purposes relating to the operation and maintenance of the courts). Accordingly , we find no due process violation in section 22-105 requiring prisoners to pay filing fees and actual court costs for filing frivolous petitions.” Hunter , slip op. at 14-15. When we a

pply the rational basis

test unde r a due pr ocess analy sis, as lon

g as the statute has a rational relationship to a legitimate state interest, the statute must be upheld. People v. Williams , 358 Ill. App. 3d 363, 366-67 (2005). We ag ree with the conclusion reached in Gale1-06-0210

16

that sec tion 22-10 5 is rationally designe d to make prisoner s respons ible for f ees and c osts associa ted with f rivolous f ilings: “Our legislature has made clea r, by its enactment of va

rious statutory provisions, that, while it is willing to offer ce rtain types of further relief t o prisone rs bey ond their trials an d appea ls, it is concerned with the number of frivolous petitions’ that may be filed seeking such relief which, in turn, impacts the eff iciency of our courts and the effectiveness of our administrative proc ess.” Gale , slip op. at 23 (and cases cited therein). Contrary to defe

ndant’s contention, the statute does not unfairly subject “indigent petitioners to pecuniary

punishment for attempting to exercise a state-gra nted post-conviction remedy in violation of a pr isoner’s due process right of meaning ful access to the court.” Rather, section 22-105 specifically delineate a prisoner’s responsibility when filing a pleading, motion or other document, as noted in People v . Gale as follow s: “[S]ection 22-105 informs all prisoners, regardless of wealth, that they may not file a frivolous petition; it then outlines exactly what ‘frivolous’ means so they can guard aga

inst such a determination (see 735 IL CS 5/122-105(b) (West 2004)); and finally, it specifie s that payment of fe es and costs charged when a petition is held to be frivolous is to be collected from that prisoner only ‘when funds exist,’ only in the amount corresponding to his prison trust fund

accoun t, and only

until the f

ees are collecte d in full (7 35 IL

CS1-06-0210

17 5/22-105(a) (West 2004) (setting out the pay ment scheme based on prison trust fund account)). In f act, on this last point, section 22- 105(a) specifically

states that ‘[n]othing in this Section prohibits an applica nt from fi ling an a

ction or proceed

ing if th e applic ant is unable to pay the cour t costs.’ 7 35 IL

CS 5/22-105 (a) (Wes t 2004).” (Emphasis omitted.) Gale , slip. op. at 23-24. Section 22-105 does not present a “pecuniary punishment” violating a prisoner’s due process right of meaningful ac cess to the court. “Rather, it simply c harges fees and costs to the prison trust fund accounts of all prisoners regar dless of financial status and only if these funds exist, but ultimately never prohibits them from exercising their post[-]conviction relief rig hts.” Gale , slip op. a

t 24. For the rea sons prev

iously discusse d, section 22-105 d oes not vio late substantive due process because it is rationally related to our state’s interest in maintaining the efficie ncy and admin

istration of our le gal sy

stem. In addressing a

challenge to procedural due pr ocess, we take into consideration the statute’ s specif

ic proce dures an

d whethe r the stat ute provi des an “ ‘ opportuni ty to be hear d “at a

mean ingf ul tim e and

in a me aningfu

l manner.”

’ [Cita tion. ]” People v. R.G. , 131 Ill. 2d 328, 353-54 (1 989); People v. Porter , 122 Ill. 2d 64, 73 (1988) (holding the Post-Conviction Hearing Act’s provision permitting courts to dismiss petitions that are frivolous does not violate due process because the lower pleading standar ds for ind igent pr isoners provide th em a hea ring wit h meaningful time and in a meaningful manner ). To successfully

challenge section 22-105 for violation o f proce dural due process , defend

ant would have to de

monstrate that the st

atute deprived him of a protected liberty or property inter

est. People v. Logan , 302 Ill. App. 3d 319,1-06-0210

18

332 (1998).

We agree that imposition of a fee for an ina rticulate claim which was, however, not frivolous would in fact violate the right of meaningful a ccess to the court. However, in the instant ca se, the f

ee was im posed for frivolou s claims br

ought in t he context of a succ essive po stconviction petition. Pursuant to the “cause and prejudice” test, the defe ndant must show “cause” for failing to raise the issue in a prior proce eding and actual “prejudice” resulting from the claimed error. Jones , 211 I ll. 2d at 14 9; People v. Pitsonbarger , 205 Ill. 2d 444, 457-59 (2002) (“cause and prejudice” test manda tory for succ essive post-conviction petitions for relief). We are mindful that a defendant who fails to include an issue in his original or amende d post-conviction petition ma

y r aise the issue in a success ive petiti on if he sa tisfies th e requir

ements of the “ca use and prejudice” test with respect to each c laim presented. Jones , 211 Ill. 2d at 148-49. However, in the instant case, not only wer e the allegations in defendant’s petition either waive d or res judicata , defendant made no attempt to recognize, addre ss or satisfy the “c ause and prejudice” test, which is a prerequisite for successive post-conviction relief

. People v. Jones , 211 Ill. 2d 140, 148-49 (2004). The rec ord ref

lects the experienced tria

l judge f ollowed the provisi ons of thePostConviction Hearing Act (Act), toge ther with sections 22-105 of the Civil Code of Procedure and 27.2a of the Clerks of Court Act in properly finding the successive petition frivolous. Based on the Act and those provisions, the trial judge provided in writing that def endant’s petition satisfied the specific criteria under section 22-105, which r endered defendant’s successive pe tition frivolous.1-06-0210

19

The Act provides a procedural mecha nism by which a criminal def endant can allege a substantial denial of constitutional rights in the proceedings which resulted in c onviction. 725 IL CS 5/122-1 (

West 2000) . Under t

he Act the

petitione r is give n an oppor

tunity to be hea rd at a meaningful time and in a meaningful manner . See In re Phil lip C. , 364 Ill. App. 3d 822, 831 (2006) ( statute sa

tisfies pr ocedura l due proc ess by

providing

opportuni

ty to be hear d at a meaningful time and in a meaningful manner ). Under the language

of the Act, the legislature demonstrated its intent to protect the courts from burdensome and frivolous litigation as provided by s ection 12 2-4 in re levant pa rt as foll ows: “A petitioner who is a prisoner *** who files a pleading *** tha t purports to be a legal document seeking post-conviction relief *** against the State *** in which the court makes a specific finding that the pleading *** is frivolous shall not proceed as a poor person and shall be liable for the full pay ment of filing fees and actual court costs ***.” 725 IL CS 5/122-4 (West 2000). As noted in

Gale , similar to t

he above provision

which disc ourag es frivo lous postconviction pleading and litigation, the legislature ha s discouraged frivolous petitions by prisoners for habeas corpus , mandamus and section 2-1401 relief. Gale , slip op. at 23, citing People v. Anderson , 352 Ill. App. 3d 934, 946 (2004); 735 I LCS 5/22-105 (West 2002) (allowing for assessment of filing fee s and court costs against prisoners for frivolous pleading s); 730 IL CS 5/3-6-3(d) (West 2002) (allowing revocation of prisoner’s good-time credits for filing frivolous pleadings); Mason v. Snyder , 332 I ll. App. 3d 834, 845 ( 2002); Helm v. Washington , 308 Ill. App. 3d 255, 259 (1999).1-06-0210

20

In the instant case, defe

ndant had his opportunity for trial, for appeal, for filing his initial post-con viction pe tition, for appeal o f the dismi ssal of tha t petition, for filin

g a suc cessive

postconviction petition and for appeal of the dismissal of that successive petition. The rec ord reflects defendant had more than an a dequate opportunity to be he ard at a meaningful time and in a mean ingful manner. I

n no way did the as sessment o f the $90 f ee curt ail or limit

his opportunity to be heard a

t a meaningful time and in a meaningful manne r. Defendant has not demonstrated what more process is “due.” See Phillip C. , 364 Ill. App. 3d at 832 (and cases cited therein). Section 22 -105 req

uires a d efenda nt to pay fees onl y if the funds exist in his pr

ison trust fund. The record reflects that section 22-105 does not present a “pecuniary punishment” for indigen t petitione

rs attemp ting to exercise a state-g ranted p ost-conv

iction re medy . “Rathe

r, it simply charg es fees and costs to the prison trust fund accounts of all prisoners re gardless of financial status and only if the se funds exist, but ultimately never prohibits them from exercising their post[-]conviction relief rights.” Gale , slip op. at 24. For the reasons previously discussed, we find no substantive or procedural due process violation. B. Equal Protection Defendant argues that by

“targeting ‘prisoners’ to the e xclusion of other indigent petitione rs, sect ion 22-105 violates t

he equa l protec tion clau se.” De fendant contends “there is no compel ling re ason or r ational b asis for d

eterrin g only prisoners from fil ing fri

volous post

conviction petitions.” Based on the principles previously recognized, we apply

the rational basis test in addre ssing de fendant ’s equal protect ion arg ument. We conclude the statute at issue has a ra tional re lationship

to a leg itimate Sta

te objec tive. As w e recog nized in Hunter , a1-06-0210

21

prisoner is free to file whatever leg al documents he so chooses without being assessed an initial filing fee. Hunter , slip op. a t 16. We re

jected th is same eq

ual prote ction cha

llenge inHunter as follows:

“Section

22-105 a ssesses f

iling fe es and co sts if the d ocuments being filed are later found to be fr ivolous. Therefore, we find that the asse ssments be ar a ra

tional re lationship

to the State ’s legi

timate interest in discouraging frivolous claims and compensa ting the courts f or the expe

nses of pr ocessing and dispos ing of su

ch claims

. See [ People v. Anderson , 352 Ill. App. 3d 934, 946 (2004)]; see also [ Crocker v. Finley , 9 9 Il l. 2d 44 4, 45 4 ( 19 84 )] . A cc or di ng ly, we find that fees and costs imposed under section 22-105 do not violate the equal protection clause.” Hunter , slip. op. at 16-17. The Illinois Post-Conviction Hearing Act, tog ether with sections 22-105 and 27.2a(g), does not de

prive ind igent pr isoners o f pursuin

g a mer itorious po st-convi ction cla im; rathe r, all petitions are reviewed for merit before proceeding to the stage re quiring the receipt of proof and appointment of counsel. 725 IL CS 5/122-1 (West 2000). Section 27.2a(g) as applied to section 22-105 provides for court costs when a prisoner files a f rivolous post-conviction petition. Indig ent, as w ell as non

indigen t, petitioners are

equally subject to

applica tion of the

PostConviction Hearing Act. I n People v. Jones , 168 Ill. App. 3d 925, 932 (1988), this court expressly found the

Act did no t violate t

he equa l protec tion clau se of the

Constitution

because the thre shold req

uiremen t that all p etitioners demonstr ate a me ritorious claim app lied equa

lly t o1-06-0210

22

both indigent and nonindigent petitioners. Section 22-105 provides a mechanism by which a prisoner can be billed for court costs through his prison ac count on an incremental basis after the court enters a written finding indicating the pr isoner’s pleading was in fact “fr ivolous” as defined in subsection (b) of 22-105. In a pply ing the r ational b asis test u

nder an e qual prot

ection a naly sis, we no te that, w

hile this principle requires the government to treat similarly situated individuals in a similar fashion, it does not prevent the government from drawing distinctions between different categorie s of people in enacting legislation. Gale , slip op. at 24, citing People v. Coleman , 111 Ill. 2d 87, 95 (1986). The statute at issue must only have a rational basis for distinguishing the categ ory of people to which it applies from the category of people to which it does not apply. People v . R.L. , 158 Ill. 2d 432, 443 (1994), citing People v . Shephar d , 152 Ill. 2d 489, 500 (1992). Defendant contends that “[t]hough the State’s interest in deterring frivolous lawsuits may be compe lling, th ere is no compellin

g reas on for ac

ting to de ter only prisoners

from exercising their post-conviction rights, without also deterring probationers a nd persons on mandatory supervis ed rele ase.” We

rely on the we ll-reas oned and logica l principl es artic

ulated in Gale to reject d efenda nt’s arg ument and

conclude as follow s: “However, defendant’s asser tion that this violates equal protection be ca us e i t d oe s n ot ap pl y to pr ob at io ne rs an d * ** [m an da to rysupervised releasees] is incorrect. I t is true that probationers and [mandatory-supervised] rele asees, along with those released on appeal bond a nd th ose rel eased f rom in carcera tion after f

ilin g a post[-]conv

iction petition, and

of cours e prisone

rs, all ma y a vail1-06-0210

23 themselves of post[-]conviction relief. See People v . We st , 145 I ll. 2d 517, 518-19 (1991) (though Post-Conviction Hearing Act states that relief may

be sought by those

‘imprisoned in the penitentiary,’ our case law has indicated that imprisonment is not prerequisite). Yet, whil e post[-]conviction r elief do es not bel ong exclu sively to prisoners, our ver

y experienc e has dem

onstrate d to us that

it is, overwhelmingly , prisoners who are filing post[-]conviction petitions r

ather th an any

other ca tegory of people . It st

ands to reason, then, tha

t the incid

ence of frivolou s petitions

is consider ably higher among prisoner s, as they are mor e likely to file petitions as a whole. This, coupled with the legislature’s concer n with the sheer number of petitions that may be filed under the various statutory provisions allowing f or post[-]conviction relief as we discu ssed ear

lier, cle arly

present s a more than reas onable ba sis for distinguishing between prisoners, to which section 22-105 applies, and others seeking similar relief such as pr obationers and releasees, to which it does not.” Gale , slip op. at 25-26. Defendant further arg

ues that “section 22-105, which imposes a costs penalty without regar d to the num

ber of pr evious pos t-conviction filing s, can ha rdly be consid

ered na rrowly tailored.” We are mindful that the legislature must employ the least restrictive means to achieve a compelling state interest if a fundamental rig ht or suspect classification is involved. People v. Cornelius , 213 Ill. 2d 178, 204 (2004). However, a s previously noted, the statute in the instant1-06-0210

24

case involves neither a fundamental right nor a suspect classification; accordingly , it is not subject to a strict s crutiny

analy sis, which would re quire a d

emonstra tion that th e statute

is narrowly ta

ilored to achieve a compelling state interest. Gale , slip op. at 26 (“section 22-105, which does not involve a suspect classification or a fundamental rig ht, is not subject to a strict scrutiny analy

sis which would require a review of whether it is narr owly tailored but, rathe

r, a rationa l basis analy sis which r

equires only that the me ans the st

atute emp loy s are ra

tionally related to its purpo se”). We

reject d efenda nt’s arg ument tha t section 2 2-105 ne ed be na rrowly tailored to achie ve a comp elling s tate inte rest. Moreover, in the instant case, the fees and cour t costs were imposed on a successive petition. The fee is properly assessed when imposed after the court finds the post-conviction petition f rivolous b ecause

it bears a rationa l relationship to the

State’s le gitimate

interest in reducing frivolous successive post-conviction claims by prisoners and compensating courts for underta king the expense of

resolvin g such f rivolous c laims. For the re asons pre viously discussed, we reject defendant’s ar gument that section 22-105 violates equal protection. III. Mittimus Corrected The record reflects the defe ndant is entitled to seven additional days of pr etrial credit. We order the clerk of the circuit court to corr ect defendant’s mittimus to reflect a total credit of 353 days’ time consider

ed served, time actually

served. CONCLUSIO

N The enactment of section 22-105 demonstrates the legislature’s concern about the number of pleadings, motions and other filings that could be filed seeking post-conviction relief. Gale , slip op. at 26. Section 22-105 does not distinguish between those who have filed one or more1-06-0210

25

than one post-conviction petition, and regardless of how many such petitions are filed, each and every pe tition is always first reviewe d to determine whether it is frivolous. Gale , slip op. at 26. In the instant case, the trial cour t determined defendant’s successive post-conviction petition was frivolou s. Upon fi

nding the petition f rivolous, the trial

court wa s authori zed by

statute to assess $90 in fee s and cost s for def endant’ s frivolou s succes sive post- convicti on petition pursuant to section 2 2-105(a

) (735 I LCS 5/1 22-105(a

) (West 200 4)) and s ection 27 .2a(g )(2) (7 05 IL CS 105/27.2a(g)(2) (West 2004)). This assessment did not violate defenda nt’s constitutional due process or equal protection rights. For the reasons previously discussed, we affirm the judgment of the trial court a ssessing $90 in fee s and cou

rt costs a gainst d efenda nt upon fin

ding de fendant ’s succe ssive post

convicti on petition

frivolou s. Affirmed; mittimus corrected consistent with the above opinion. FITZG ERALD SMITH, P.J., and GALLAGH ER, J., concur.