                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    OMAR JOHNSON, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-11-1378


Filed                      June 19, 2012


Held                       The costs and fees imposed on defendant for the frivolous filing of a
(Note: This syllabus       petition under section 2-1401 of the Code of Civil Procedure seeking
constitutes no part of     relief from his criminal convictions were upheld on appeal, including the
the opinion of the court   provision for the deduction of those fees from defendant’s prisoner
but has been prepared      account.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 97-CR-25837; the
Review                     Hon. Carol A. Kipperman, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Anne E. Carlson, and Miriam Sierig, all of State
Appeal                     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, they were
        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. After further litigation 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 for relief from 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 IL App (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 fee was warranted. In this case, the assistant State’s Attorney actively defended
       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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