FIFTH DIVISION

September 21, 2007

No. 1-06-0367

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 03 CR 2718

)

SOLOMON HUNTER, ) Honorable

) Vincent M. Gaughan,

Defendant-Appellant. ) Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court:

Defendant Solomon Hunter appeals from an order of the trial

court summarily dismissing his pro se petition for relief under

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2004)). On appeal, defendant contends that: (1) his

petition alleged the gist of constitutional claims that his right

of confrontation was violated and that his trial counsel was

ineffective; and (2) he was improperly assessed fees and costs

after his pro se petition was dismissed upon a finding of

frivolousness.

Following a bench trial, defendant was found guilty of

possession of a controlled substance with intent to deliver and

sentenced to 16 years' imprisonment. Because the proceedings of

the trial are fully set out in our order on direct appeal (People
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v. Hunter, No. 1-03-2250 (2005) (unpublished order under Supreme

Court Rule 23)), we restate only those facts necessary to

understand defendant's current appeal.

At around 6:40 p.m. on January 7, 2003, Officer Spain was

conducting narcotics surveillance on the 2700 block of West

Lexington Street in Chicago. Defendant was standing in the

middle of the block on the south side of the street when an

individual approached defendant. After the two spoke, defendant

accepted money from the individual and relocated to a vacant lot

approximately 10 to 12 feet from the sidewalk. He picked up a

strip of tape and removed a "small shiny item" from it. 

Defendant returned to the individual that had given him money and

gave the item to him. Officer Spain observed two similar

transactions, but did not stop any of the alleged buyers. After

observing the third transaction, Spain contacted Officers Town

and Chin to detain defendant. Town recovered a strip of tape

from the vacant lot and discovered five tinfoil packets attached

to it. He then gave the strip of tape to Spain. Officer Spain

inventoried the packets, heat sealed the inventory package, and

sent it to the crime lab for testing. When asked if he

inventoried the items "under Inventory Number 10080323," Spain

replied, "[y]es, that's correct."
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The parties stipulated that if called to testify, Penny

Evans would first testify that she was an expert in forensic

chemistry. She would also testify:

"[S]he received the items inventoried under

Inventory Number 10080232 in a heat sealed

condition. Chain of custody was proper at

all times.

Upon receiving the inventory envelope

she opened it. Inside it was five tin foil

packets. She weighed the contents of the tin

foil packets. The total weight was .6 grams. 

She then separated out of the tin foil

packets the contents of [sic] that weighed .1

grams for ascertaining the presence of a

controlled substance. She would testify

within a reasonable degree of scientific

certainty that it tested positive for

[h]eroin."

Defendant did not object or show any signs of dissent when the

stipulation was made.

The trial court found defendant guilty of possession of a

controlled substance with intent to deliver. Prior to

sentencing, defendant argued in a pro se motion for a new trial

that his defense counsel was ineffective. The trial court denied
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defendant's motion and sentenced him as a Class X offender to 16

years' imprisonment.

Defendant appealed his convictions and we affirmed the

judgment on appeal. Hunter, slip op. at 14-15. Defendant

argued, inter alia, that the State failed to establish a reliable

chain of custody. However, this court rejected defendant's

argument, finding that the stipulation established that the chain

of custody was sufficient and that the stipulated evidence

sufficiently matched Officer Spain's testimony concerning the

evidence. Hunter, slip op. at 9-10. Furthermore, this court

found that the discrepancy in the record regarding the inventory

numbers between the stipulation and Spain's testimony did not

break the chain of custody. Hunter, slip op. at 10.

On November 3, 2005, defendant filed a pro se postconviction

petition alleging that he was denied his right to due process and

his trial counsel was ineffective for: (1) entering into a

stipulation with the State without first seeking input from

defendant or discussing the matter with him; (2) stipulating to

the chain of custody and failing to raise the issue of the

discrepancy of inventory numbers at trial, in a motion for a

directed finding, closing argument or posttrial motion; (3)

failing to object to the foundation for the chemist's testimony

at trial; (4) failing to call a witness, Rhonda Marks, who was
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willing to give favorable testimony at trial on defendant's

behalf; and (5) refusing to file a motion to quash his arrest.

On December 2, 2005, the trial court reviewed the petition

and determined that it was frivolous and patently without merit. 

Among its findings, the trial court found that defendant had not

stated any facts as to how he was prejudiced by the stipulation

to the chain of custody and trial counsel's failure to object to

the foundation of the chemist's testimony. Therefore, his

defense counsel was not ineffective under Strickland v.

Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.

2052, 2064 (1984). Furthermore, the trial court found that

defense counsel's actions were a matter of trial strategy and

would therefore be left undisturbed.

The trial court also entered a second order assessing

defendant $90 in fees and costs, finding that his petition was

frivolous in that: "1. it lacks an arguable basis in law or in

fact; and 2. the claims, defenses, and other legal contentions

therein are not warranted by existing law or by a nonfrivolous

argument for the extension, modification, or reversal of existing

law or the establishment of new law." 

Defendant timely appeals and first contends that his

petition was improperly dismissed because it stated the gist of a

constitutional claim. 
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Defendant argues that because his defense counsel stipulated

to the forensic chemist's testimony and the chain of custody for

the seized narcotics without discussing it with him, his

constitutional right of confrontation was violated. He also

argues that he was denied effective assistance of counsel because

defense counsel decided to enter into the stipulation without

contesting any of the evidence.

At the first stage of postconviction proceedings under the

Act, a petition may be dismissed if the trial court determines

the defendant's petition is frivolous or is patently without

merit. People v. Edwards, 197 Ill. 2d 239, 244 (2001). A

petition is frivolous or patently without merit only if the

allegations in the petition, taken as true and liberally

construed, fail to present the gist of a constitutional claim. 

Edwards, 197 Ill. 2d at 244. Our review of a summary dismissal

is de novo. Edwards, 197 Ill. 2d at 247.

Although there is a presumption against the waiver of

constitutional rights, the right of confrontation may be waived. 

People v. Campbell, 208 Ill. 2d 203, 211 (2003). Defense counsel

may waive a defendant's sixth amendment right of confrontation by

stipulating to the admission of evidence when the decision is a

matter of trial tactics or strategy as long as the defendant does

not object. People v. Scott, 355 Ill. App. 3d 741, 744 (2005).
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To establish ineffective assistance of counsel, a defendant

must show both (1) that counsel's representation fell below an

objective standard of reasonableness and (2) that the substandard

representation prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.

2052, 2064 (1984). Demonstrating prejudice under the second

prong requires a showing that there is a reasonable probability

that, but for counsel's alleged error, the result of the

proceeding would have been different. Strickland, 466 U.S. at

694, 80 L. Ed. 2 at 698, 104 S. Ct. at 2068; People v. Vasquez,

368 Ill. App. 3d 241, 255 (2006). The decision of whether to

object to trial testimony is generally a matter of trial

strategy. People v. Evans, 209 Ill. 2d 194, 221 (2004).

Defendant first argues that his defense counsel never

discussed the decision to stipulate to evidence with him and,

therefore, he was denied his constitutional right of

confrontation. We note that defendant's brief argues both that

defense counsel did not seek input from him regarding the

stipulation and also that there was an off-the-record

disagreement with the decision. However, defendant's

postconviction petition only alleges that defense counsel

"entered into stipulations with the State without first seeking

'any' input from [defendant], or discussing the matter whatsoever

with him." Any issue or claim of substantial denial of
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constitutional rights not raised in the original postconviction

petition is deemed waived. See 725 ILCS 5/122-3 (West 2004);

People v. Jones, 211 Ill. 2d 140, 144-45 (2004). Accordingly, we

will only address the allegations raised in defendant's

postconviction petition.

Defendant must be admonished about a stipulation and must

personally agree to it only when the stipulation includes a

statement that the evidence is sufficient to convict the

defendant or where the State's entire case is to be presented by

stipulation. People v. Phillips, 217 Ill. 2d 270, 288 (2005). 

The stipulation in defendant's case did not contain any such

statements and only went to the nature of the recovered items and

the chain of custody. Furthermore, because defendant's theory at

trial was that he was improperly arrested and never possessed the

controlled substances, the decision not to contest the

stipulation was one of trial strategy and belonged to defense

counsel. See Scott, 355 Ill. App. 3d at 744-45. Therefore, the

record does not need to show that defense counsel discussed the

stipulation with defendant or that defendant explicitly waived

his right of confrontation. See People v. Foerster, 359 Ill.

App. 3d 198, 200 (2005). 

Defendant also argues that the cases the State relies on,

notably Phillips and Campbell, involved direct appeals and did

not involve a postconviction proceeding where the defendant
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alleged he affirmatively objected to the stipulation. However,

as stated before, defendant did not allege that he objected to

defense counsel's decision to enter into the stipulation, but

only that the decision was never discussed with him. Therefore,

defendant's argument is without a factual basis and we will not

consider it.

Defendant next argues he was denied effective assistance of

counsel because defense counsel stipulated to the forensic

chemist's testimony. However, defendant's theory at trial was

that he was improperly arrested and never possessed the

controlled substances. There was no reason to address the

characteristics of the controlled substances and to do so would

have been inconsistent with the defense strategy. See Scott, 355

Ill. App. 3d at 745 (finding that defense counsel properly

stipulated to the nature of the controlled substances as a matter

of trial strategy where defendant claimed he never participated

in a drug transaction). Therefore, trial counsel's performance

did not fall below an objective standard of reasonableness.

Furthermore, defendant's claims regarding this claim lack

any allegation that relates to prejudice. Although he argues

that counsel was ineffective for stipulating, he fails to show

how the result of the proceeding would have been any different

had his counsel decided to contest the stipulation. Defendant's
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argument that defense counsel was ineffective for stipulating to

the forensic chemist's testimony is without merit.

Defendant's next argument that his defense counsel was

ineffective for failing to challenge the chain of custody based

upon a discrepancy in the inventory numbers is equally without

merit. Officer Spain testified that he inventoried the substance

he recovered under number 10080323, whereas the stipulation

referred to inventory number 10080232. However, not only did the

parties stipulate that the chain of custody was proper at all

times, Spain's testimony describing the substance sufficiently

matched the testimony the parties stipulated to. Officer Spain

testified he recovered a strip of tape with five tinfoil packets

containing suspected heroin and inventoried the "narcotics" in a

heat-sealed condition. The stipulation provided that forensic

chemist Evens received inventory in a heat-sealed condition and

found five tinfoil packets, the contents of which tested positive

for heroin. Therefore, trial counsel's performance did not fall

below an objective standard of reasonableness when he failed to

object to the discrepancy in inventory numbers. Although the

stipulation did not mention a strip of tape, Spain's testimony

did not explicitly indicate he inventoried the strip of tape. 

Therefore, contesting the lack of language in the stipulation

concerning a strip of tape would most likely not have altered the

outcome of the case. None of these discrepancies are sufficient
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to establish any significant doubt that the items stipulated to

by the parties and testified to by Spain were not the same. 

Under the facts of this case, and considering defendant's theory

at trial, defense counsel was not ineffective for entering into

the stipulation.

Accordingly, we find that the trial court properly dismissed

defendant's pro se postconviction petition as frivolous and

patently without merit.

Defendant next contends that he should not have been

assessed a $90 filing fee because there is no statutory filing

fee for postconviction petitions. He argues that section 22-105

of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West

2004)) fails to specify the cost of filing a postconviction

petition or cross-reference any other statutory provision

providing such information and, therefore, section 27.2a(g)(2) of

the Clerks of Courts Act (Clerks Act) (705 ILCS 105/27.2a(g)(2)

(West 2004)) is inapplicable. Section 27.2a(g)(2) provides a fee

as follows:

"[p]etition to vacate or modify any final

judgment or order of court, except a petition

to modify, terminate, or enforce a judgment

or order for child or spousal support or to

modify, suspend, or terminate an order for

withholding, if filed later than 30 days
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after the entry of the judgment or order, a

minimum of $75 and a maximum of $90." 705

ILCS 105/27.2a(g)(2) (West 2004).

We acknowledge that section 22-105 of the Code does not

reference or cross-reference a statute specifically providing the

cost of filing a postconviction petition. It appears that this

is because there is no initial filing fee for a postconviction

petition. Section 22-105 assesses fees only after a legal

document in a postconviction 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 type of legal document filed. When possible, this court

should construe a statute so that it is not rendered meaningless.

See People v. Maggette, 195 Ill. 2d 336, 350 (2001). Therefore,

contrary to defendant's argument, the lack of specific fee

amounts or cross-references to specific fee statutes in section

22-105 does not render the section meaningless or invalid.

Under the doctrine of in pari materia, two statutes dealing

with the same subject will be considered with reference to one

another in order to give them harmonious effect. People v.

McCarty, 223 Ill. 2d 109, 133 (2006). Section 22-105 of the Code

authorizes the assessment of filing fees and costs for a

frivolous postconviction pleading. The circuit court, in

exercising that authority and in following the doctrine of in
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pari materia, went to section 27.2a of the Clerks Act, the

circuit court's filing fees statute, to determine the fee to be

assessed.

Section 27.2a(g)(2) of the Clerks Act applies to petitions

seeking to modify or vacate a final judgment. A postconviction

petition seeks to modify or vacate a final judgment in the sense

that it inquires into issues that relate to and affect a sentence

or conviction of a final judgment that were not, or could not

have been, determined on direct appeal. See People v. Barrow,

195 Ill. 2d 506, 519 (2001). Accordingly, under the

authorization of section 22-105 of the Code, the circuit court

properly subjected defendant's petition to the fees outlined

under section 27.2a(g)(2) of the Clerks Act.

Defendant finally contends that the fees and costs he was

assessed must be vacated because section 22-105 of the Code (735

ILCS 5/22-105 (West 2004)) violates his state and federal

constitutional rights to due process and equal protection under

the law.

Statutes are presumed constitutional, and a court must

construe a statute so as to affirm its constitutionality if

reasonably possible. People v. Dinelli, 217 Ill. 2d 387, 397

(2005). In order to defeat this presumption, the party

challenging the validity of a statute has the burden of clearly

establishing a constitutional violation. People v. Jones, 223
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Ill. 2d 569, 596 (2006). "Because constitutionality is a pure

question of law, our standard of review is de novo." Jones, 223

Ill. 2d at 596. 

Defendant argues that section 22-105 violates a prisoner's

due process right of meaningful access to the courts by unfairly

subjecting him to pecuniary punishment for attempting to exercise

a State-granted postconviction remedy. He first argues that "to

interpose any financial consideration between an indigent

prisoner of the State and his exercise of a state right to sue

for his liberty is to deny that prisoner the equal protection of

the laws." Smith v. Bennett, 365 U.S. 708, 709, 6 L. Ed. 2d 39,

40, 81 S. Ct. 895, 896 (1961). However, no financial

consideration is "interposed" denying a prisoner's access to the

courts. Defendant fails to recognize that section 22-105

assesses court costs and filing fees after a filed legal document

is found to be frivolous, but not before the actual filing. 

Because no financial consideration is "interposed" between a

prisoner and his access to the courts, his due process argument

under Smith must fail.

Defendant further argues the filing fee is a penalty and is

not for the purpose of recouping court fees and costs. See

People v. Greer, 212 Ill. 2d 192, 208 (2004). However, the

"penalty" a defendant is assessed is specifically comprised of

the "filing fees and actual court costs" due to any frivolous
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petition a defendant might file. 735 ILCS 5/22-105(a) (West

2004). It is an attempt by the court to defray the costs of

disposing of frivolous petitions while simultaneously

discouraging frivolous petitions. See People v. Anderson, 352

Ill. 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.

Defendant finally argues that section 22-105 violates the

equal protection clause of the fourteenth amendment by targeting

"prisoners" to the exclusion of other indigent petitioners. This

court must conduct a two-step analysis in evaluating equal

protection challenges to the constitutionality of a legislative

classification. People v. Vernon, 276 Ill. App. 3d 386, 389

(1995). "[W]e must determine whether the statute in question

affects either a fundamental right or discriminates against a

suspect class." Vernon, 276 Ill. App. 3d at 389. If so, we must

apply a "strict scrutiny" test, which upholds legislation only if

it is narrowly tailored to serve a compelling interest. People

v. Laughlin, 293 Ill. App. 3d 194, 197-98 (1997). Otherwise, we

subject the statute to a more lenient "rational basis" review,

which only requires that the statutory classification "be
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rationally related to a legitimate state goal." Laughlin, 293 at

198.

First, this court has held that indigent prisoners are not a

suspect class. People v. Bonilla, 170 Ill. App. 3d 26, 34

(1988); People v. Garvin, 152 Ill. App. 3d 438, 444 (1987). 

Second, although the right of access to the courts may be

fundamental (Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72,

78, 97 S. Ct. 1491, 1494 (1977); Tedder v. Fairman, 92 Ill. 2d

216, 222 (1982)), section 22-105 does not operate in a manner

that affects a prisoner's access to the courts. The fees and

costs are assessed only after a legal document is found to be

frivolous. The statute, at most, only impinges on a prisoner's

right to file frivolous legal documents without cost with the

court. Because no fundamental right is at issue, we will subject

the statute to a rational basis review.

As explained above, a prisoner is free to file whatever

legal documents he wishes to without being assessed an initial

filing fee. Section 22-105 assesses filing fees and costs if the

documents being filed are later found to be frivolous. 

Therefore, we find that the assessments bear a rational

relationship to the State's legitimate interest in discouraging

frivolous claims and compensating the courts for the expenses of

processing and disposing of such claims. See Anderson, 352 Ill.

App. 3d at 946; see also Crocker, 99 Ill. 2d at 454. 
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Accordingly, we find that fees and costs imposed under section

22-105 do not violate the equal protection clause.

We note that these exact arguments were considered and

rejected in People v. Gale, No. 1-06-0038 (September 7, 2007). 

We agree with the reasoning in Gale and find that the filing fees

here were properly imposed.

For the foregoing reasons, we affirm the judgment of the

circuit court of Cook County.

Affirmed.

FITZGERALD SMITH, P.J., and O'MARA FROSSARD, J., concur.