                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                               People v. Johnson, 2013 IL 114639




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. OMAR
Court:                     JOHNSON, Appellant.



Docket No.                 114639


Filed                      September 19, 2013


Held                       The Counties Code provision awarding state’s attorneys $50 for each day
(Note: This syllabus       employed in the hearing of a case of habeas corpus does not use that term
constitutes no part of     in the generic sense so as to apply to other collateral proceedings—fee
the opinion of the court   imposed on offender for seeking section 2-1401 relief from judgment
but has been prepared      vacated.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Carol A.
                           Kipperman, Judge, presiding.



Judgment                   Judgments reversed in part.
                           Cause remanded with directions.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and Yasaman Hannah Navai, Assistant Appellate Defender, of
                         the Office of the State Appellate Defender, of Chicago, for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                         State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Annette
                         Collins and Christine Cook, Assistant State’s Attorneys, of counsel), for
                         the People.


Justices                 JUSTICE FREEMAN delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,
                         and Theis concurred in the judgment and opinion.



                                            OPINION

¶1        This case concerns whether section 4-2002.1(a) of the Counties Code (55 ILCS 5/4-
      2002.1(a) (West 2008)), which permits State’s Attorneys to collect a $50 fee “[f]or each day
      actually employed in the hearing of a case of habeas corpus,” also permits State’s Attorneys
      to collect such a fee when they participate in the hearing of a petition for relief from
      judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
      (West 2008)). The circuit court of Cook County assessed the fee, and the appellate court
      affirmed. 2012 IL App (1st) 111378. This court allowed Johnson’s petition for leave to
      appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we reverse, in part,
      the judgments of the circuit and appellate courts and remand this cause to the circuit court
      with directions that it vacate the $50 State’s Attorney fee.

¶2                                   I. BACKGROUND
¶3       Petitioner Omar Johnson was convicted of first degree murder, armed robbery,
      aggravated vehicular hijacking, aggravated kidnapping and concealment of a homicidal
      death. He was sentenced to a term of natural life for murder; 60 years’ imprisonment for
      armed robbery, aggravated vehicular hijacking and aggravated kidnapping; and 10 years’
      imprisonment for concealment of a homicidal death. The appellate court affirmed Johnson’s
      convictions and sentences on appeal, as well as the circuit court’s dismissal of his subsequent
      postconviction petition (725 ILCS 5/122-1 et seq. (West 2004)).
¶4       Johnson filed a section 2-1401 petition in 2008, which the circuit court erroneously
      dismissed, and the appellate court remanded the cause to the circuit court for further
      proceedings. Subsequently, the State filed a motion to dismiss the petition. At a hearing in
      2010, Johnson withdrew his original petition and filed an amended petition. The State filed
      a motion to dismiss the amended petition and requested that Johnson be assessed filing fees

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       and court costs for filing a frivolous petition, as provided for in section 22-105(a) of the
       Code of Civil Procedure (735 ILCS 5/22-105(a) (West 2010)). That section permits a court
       to assess filing fees and court costs against an inmate who files a petition that the court
       determines is frivolous. 735 ILCS 5/22-105(a) (West 2010). The circuit court granted the
       State’s motion to dismiss and assessed numerous fees and costs against Johnson, including
       the $50 State’s Attorney fee at issue here, pursuant to section 4-2002.1(a). Johnson now
       appeals to this court, challenging only the imposition of the $50 State’s Attorney fee.

¶5                                         II. ANALYSIS
¶6         The sole issue before us is whether the $50 State’s Attorney fee in section 4-2002.1(a)
       of the Counties Code applies to Johnson’s section 2-1401 petition. Johnson contends that the
       fee was not statutorily authorized since section 4-2002.1(a) does not mention a section 2-
       1401 petition for relief from judgment.
¶7         The State responds that the fee should apply to all collateral proceedings in which the
       State is employed in the hearing of a case. The State argues there is little reason to
       differentiate between collecting a fee when the State’s Attorney is employed “in the hearing
       of a case of habeas corpus” or in the hearing of a section 2-1401 petition or postconviction
       petition.
¶8         To answer the question presented on appeal, we must construe section 4-2002.1(a) of the
       Counties Code, which provides in relevant part:
                   “(a) 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).
¶9         Our primary objective in construing a statute is to ascertain and give effect to the intent
       of the legislature, bearing in mind that the best evidence of such intent is the statutory
       language, given its plain and ordinary meaning. Nowak v. City of Country Club Hills, 2011
       IL 111838, ¶ 11. Where the statutory language is clear and unambiguous, we will apply the
       statute as written. Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184-85 (1999).
       When statutory terms are undefined, we presume the legislature intended the terms to have
       their popularly understood meaning. People v. Smith, 236 Ill. 2d 162, 167 (2010). Moreover,
       if a term has a settled legal meaning, the courts will normally infer that the legislature
       intended to incorporate the established meaning. Id. We review questions of statutory
       construction de novo. Ries v. City of Chicago, 242 Ill. 2d 205, 216 (2011).
¶ 10       The appellate court agreed with the circuit court that the $50 State’s Attorney fee should
       apply to Johnson’s section 2-1401 petition. The court held that the statute referred to habeas
       corpus proceedings “generically” and was meant to encompass a section 2-1401 petition.
       2012 IL App (1st) 111378, ¶ 13. The court further held that the statute applied to all
       collateral proceedings since the legislative intent was to deter frivolous filings. 2012 IL App
       (1st) 111378, ¶ 13.
¶ 11       We disagree with the appellate court’s interpretation. As stated above, section 4-


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       2002.1(a) of the Counties Code allows State’s Attorneys to collect a fee “[f]or each day
       actually employed in the hearing of a case of habeas corpus in which the people are
       interested.” Since the term “habeas corpus” is not defined in the Counties Code, we will
       presume the legislature intended the term to have its popularly understood or settled legal
       meaning. The term “habeas corpus,” which is Latin for “that you have the body,” refers to
       a “writ employed to bring a person before a court, most frequently to ensure that the party’s
       imprisonment or detention is not illegal.” Black’s Law Dictionary 715 (7th ed. 1999). There
       are numerous types of writs of habeas corpus (e.g., habeas corpus ad deliberandum et
       recipiendum (“[a] writ used to remove a person for trial from one county to the county where
       the person allegedly committed the offense”); habeas corpus ad faciendum et recipiendum
       (“[a] writ used in civil cases to remove the case, and also the body of the defendant, from an
       inferior court to a superior court”); habeas corpus ad prosequendum (“[a] writ used in
       criminal cases to bring before a court a prisoner to be tried on charges other than those for
       which the prisoner is currently being confined”); habeas corpus ad respondendum (“[a] writ
       used in civil cases to remove a person from one court’s custody into that of another court,
       in which the person may then be sued”); habeas corpus ad subjiciendum (“[a] writ directed
       to someone detaining another person and commanding that the detainee be brought to
       court”); and habeas corpus ad testificandum (“[a] writ used in civil and criminal cases to
       bring a prisoner to court to testify”)). Id.
¶ 12       Giving the term “habeas corpus” in section 4-2002.1(a) of the Counties Code its plain
       and ordinary meaning, we conclude that it only applies to the various types of habeas corpus
       proceedings. We reject the State’s contentions that the fee should apply “generically” to all
       collateral proceedings, as the appellate court concluded. 2012 IL App (1st) 111378, ¶ 13. The
       statutory provision that allows imposition of the $50 fee first appeared in the statute in a
       1907 amendment, and has remained unchanged, despite the creation of additional collateral
       proceedings such as a section 2-1401 petition and a postconviction petition.1 The legislature
       could have amended the statute to include additional collateral proceedings, but it never did.
       We will not read words or meanings into a statute when the legislature has chosen not to
       include them. See Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 154-55 (1997).
       Therefore, any remedy lies with the legislature, not the courts, if the legislature may be so
       inclined. See Williams v. Manchester, 228 Ill. 2d 404, 427 (2008).
¶ 13       Further, we are not persuaded by the appellate court’s opinion in People v. Gutierrez,
       2011 IL App (1st) 093499, to which both parties cite. In Gutierrez, the appellate court
       vacated the $50 State’s Attorney fee that was assessed to the defendant following the
       summary dismissal of his postconviction petition. Id. ¶ 65. The court reasoned that since the
       defendant’s postconviction petition was dismissed at the first stage, which occurred without
       any input from the State, the State had not been “employed” in the hearing of the case, and


               1
                The statutory provision that preceded a section 2-1401 petition was enacted in 1872 when
       the General Assembly abolished the writ of error coram nobis. People v. Touhy, 397 Ill. 19, 23
       (1947). The legislature enacted the Post-Conviction Hearing Act in 1949. Ill. Rev. Stat. 1949, ch.
       38, ¶¶ 826-832. Additionally, the above definitions of the various types of writs of habeas corpus
       are substantially the same as they were in 1907.

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       therefore was not permitted to recover the fee. Id. ¶ 65. However, the appellate court did not
       first consider whether the fee should apply to a postconviction proceeding. To the extent the
       appellate court in Gutierrez assumed the fee could apply to a postconviction petition, we
       disagree with that assumption. As stated above, we hold the fee only applies to habeas
       corpus proceedings. Accordingly, we remand this cause to the circuit court with directions
       that it vacate the $50 State’s Attorney fee assessed against Johnson and correct the mittimus.

¶ 14                                    III. CONCLUSION
¶ 15       For the foregoing reasons, the judgments of the circuit and appellate courts are reversed
       in part. The cause is remanded to the circuit court with directions that it vacate the $50
       State’s Attorney fee and correct the mittimus.

¶ 16      Judgments reversed in part.
¶ 17      Cause remanded with directions.




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