                                                                                    SIXTH DIVISION
                                                                                    April 29, 2011




No. 1-09-1812


THE PEOPLE OF THE STATE OF ILLINOIS,                     )       Appeal from the
                                                         )       Circuit Court of
                Plaintiff-Appellee,                      )       Cook County.
                                                         )
        v.                                               )       No. 02 CR 26186
                                                         )
CLINTON DIXON,                                           )       The Honorable
                                                         )       Nicholas R. Ford,
                Defendant-Appellant.                     )       Judge Presiding.

        PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.
        Justices Cahill and McBride concurred in the judgment and opinion.

                                               OPINION

        Defendant Clinton Dixon appeals from the trial court's first-stage dismissal of his

postconviction petition, which he contends states the gist of two constitutional claims to warrant

second-stage consideration: (1) his right to a fair trial was violated by the participation of an

alternate juror in jury deliberations that ended with verdicts of guilty for first degree murder,

home invasion, residential burglary, and armed robbery; and (2) appellate counsel rendered

ineffective assistance on direct appeal for failing to raise trial counsel's failure to exercise a

peremptory challenge against a prospective juror with two arrests about 20 years prior to the date

of trial, which the prospective juror failed to acknowledge during voir dire. On the record before

us, the jury's guilty verdicts are not subject to attack under a constitutional fair trial claim when

the record rebuts the allegation that the alternate juror participated in the jury's deliberations; nor
No. 1-09-1812

can the defendant make a showing that he was prejudiced by appellate counsel's failure to raise on

direct appeal the failure of trial counsel to exercise a peremptory challenge to excuse the eventual

jury foreperson because the record is barren of any evidence of juror bias. Accordingly, the

defendant's postconviction petition warranted dismissal as the asserted claims were patently

without merit. As the petition was properly dismissed, the circuit court acted within its discretion

to impose fees and costs. We affirm.

                                          BACKGROUND

       On direct appeal, we addressed the defendant's convictions for the June 13, 2002, first

degree murder, home invasion, and armed robbery (the trial court merged the residential burglary

conviction with the home invasion conviction) of James Knight. People v. Dixon, 382 Ill. App.

3d 233, 887 N.E.2d 577 (2008). In that appeal, the defendant challenged the circuit court's

refusal to strike for cause a juror that responded during the State's voir dire and on the

prospective juror questionnaire that he had never been arrested. During the sidebar to discuss the

State's information that the prospective juror had in fact been arrested for battery in 1982 and

1985, the trial court denied defense counsel's request that the prospective juror be excused for

cause. Dixon, 382 Ill. App. 3d at 236. Defense counsel did not exercise a peremptory challenge

to strike the prospective juror because he believed the trial court's rule against "back-striking"

precluded him from doing so. Id. at 241. After the trial court denied the request to excuse for

cause, the State accepted the panel as constituted. Id. at 236. The prospective juror that defense

counsel sought to remove for cause became the foreperson of the jury. Id.

       The defendant alleges in his postconviction petition that appellate counsel was ineffective


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No. 1-09-1812

for failing to raise, on direct appeal, defense counsel's failure to exercise a peremptory challenge

against that prospective juror. As to his second claim on appeal, the defendant asserts in his main

brief, "the record plainly shows that an alternate juror deliberated along with the 12 actual jurors."

          At the defendant's jury trial in September 2004, the evidence overwhelmingly pointed to

the defendant's guilt. The jury heard the defendant's oral confession to the investigating detectives

following his arrest and viewed the videotape of his confession taken the following day, each of

which detailed how the defendant broke into Mr. Knight's home, stabbed Mr. Knight, and stole

various items that he exchanged for money to buy drugs. "There were few differences between

the defendant's videotaped statement and his oral statement. The only difference of note was that

in his videotaped confession, the defendant, for the first time, mentioned that he was 'dope sick'

during his statements to the police." Dixon, 382 Ill. App. 3d at 237. The jury also heard

Detective Rotkovich testify that the defendant assisted the officers in recovering the knife the

defendant admitted using to repeatedly stab Mr. Knight. The medical examiner testified that the

recovered knife was consistent with Mr. Knight's stab wounds. The jury also heard from the

defendant's companion, who testified he observed blood on the defendant's hand when the

defendant emerged from Mr. Knight's home.

          Before the jury retired to begin its deliberations, the judge addressed the two alternate

jurors:

                         "I'm gonna ask at this time that our alternates, Mr.

                 Delbridge and Mr. Saucedo, if you'll step out of the jury box in the

                 back. If you have any items of property in the jury room, you're


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No. 1-09-1812

                free to go back and get them. So just step out of the back there,

                come right around the front, the well of the court. Right this way.

                You have anything in the jury room, bring it out and have a seat

                here."

The record reflects that after the alternates stepped out of the jury box, the trial judge continued

preparations for jury deliberations: "While they're doing that, I'll ask the clerk to swear the

deputies who had been attending to the jury deliberations." Though the record suggests that the

alternate jurors were directed to "have a seat" apart from the jury, the record does not reflect

where the alternates were seated and whether the alternates remained seated in the court room

after the jury was escorted to the jury room to begin deliberations. At 2:05 p.m., the jury

indicated it reached a verdict. After the verdict forms were tendered by the foreperson to the

court, defense counsel asked that the jury be polled, which the trial court directed the clerk to do.

After the clerk polled the foreperson as the twelfth juror, the transcript reveals the following

exchange between the clerk and alternate juror Julio Saucedo.

                         "THE CLERK: Julio, last name S-a-u-c-e-d-o, was this

                your verdict and - -

                         MR. SAUCEDO: Yes."

After Mr. Saucedo's response, the trial judge directed the record to "reflect the jury has been

polled" and entered judgment on the verdict. No one objected to Mr. Saucedo being polled.

       Defense counsel's motion for a new trial raised the trial court's refusal to strike the

eventual foreperson for cause. Defense counsel faulted the State for failing to disclose the


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No. 1-09-1812

prospective juror's "prior arrests until after he had been accepted by the defense as a juror."

Dixon, 382 Ill. App. 3d at 237. The new trial motion did not raise as an issue the possible

participation in jury deliberations by the alternate juror that was polled. The trial court denied

defense counsel's posttrial motion and the defendant's pro se motion raising claims of ineffective

assistance of trial counsel unrelated to the issues now before us.

        On March 23, 2009, the defendant filed the instant postconviction petition. He argued his

trial counsel was ineffective for a plethora of reasons, among them, the failure to exercise a

peremptory challenge against the eventual jury foreperson. He also contended his appellate

counsel was ineffective for a handful of reasons, including the failure to argue his right to a fair

trial was violated by the alleged participation of an alternate juror in the jury's deliberations. In

dismissing the postconviction petition, the trial court ruled that veracity and capacity for

objectivity were not called into question by the foreperson's failure to recall his arrests 20 years or

so prior to being questioned as a prospective juror. Because no showing of bias was made, the

participation of that juror in the guilty verdicts did not prejudice the defendant. The court

rejected the defendant's fair trial claim because no showing was made that the alternate juror

actually deliberated. The court dismissed the petition in its entirety and assessed the defendant

court costs and fees pursuant to section 22-105 of the Code of Civil Procedure. 735 ILCS 5/22-

105 (West 2008). This timely appeal followed.

                                             ANALYSIS

        The defendant advances three arguments: (1) he stated the "gist" of a claim that his

appellate counsel was ineffective for failing to argue the participation of an alternate juror in jury


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No. 1-09-1812

deliberations deprived him of the right to a fair trial; (2) trial counsel was ineffective for failing to

exercise one of two remaining peremptory challenges to excuse the eventual foreperson from the

jury, which means counsel on direct appeal was ineffective for neglecting to advance this

argument; and (3) the statutory provision that authorizes the assessment of court costs and filing

fees when a postconviction petition is dismissed as frivolous violates his constitutional rights to

due process and equal protection.

        "The [Post-Conviction Hearing] Act provides a method by which persons under criminal

sentence in this state can assert that their convictions were the result of a substantial denial of

their rights under the United States Constitution or the Illinois Constitution or both." People v.

Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d 1204 (2009). Our review of the circuit court's dismissal of

the defendant's petition is de novo. Id. A petition is subject to dismissal at the first stage only if it

is " 'frivolous or is patently without merit.' " Id. at 10 (quoting 725 ILCS 5/122-2.1(a)(2) (West

2006)). A petition is frivolous or patently without merit "if the petition has no arguable basis

either in law or in fact." Hodges, 234 Ill. 2d at 12. "A petition [that] lacks an arguable basis

either in law or in fact is one [that] is based on an indisputably meritless legal theory or a fanciful

factual allegation." Id. at 16. Under Hodges, when a postconviction defendant asserts a

constitutional claim of ineffective assistance of counsel, we ask whether "(i) it is arguable that

counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that

the defendant was prejudiced." Id. at 17.

                                             Alternate Juror

        The defendant contends his appellate counsel was ineffective for failing to argue on direct


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No. 1-09-1812

appeal that he was deprived of a fair trial when an alternate juror, Mr. Saucedo, according to the

defendant, "deliberated with the jury." The State counters the defendant's claim that the alternate

juror deliberated is contradicted by the record.

        To support his constitutional claim, the defendant principally relies upon People v.

Babbington, 286 Ill. App. 3d 724, 676 N.E.2d 1326 (1997). In Babbington, we held that the

undeniable participation by a thirteenth juror in jury deliberations constituted plain error that

caused substantial prejudice to the defendant. Id. at 733-34 (citing United States v. Olano, 507

U.S. 725 (1993)). The alternate juror "deliberated with the jury, stayed overnight in the hotel

with the sequestered jurors, signed the verdict forms the next day, and responded when the jury

was polled." Babbington, 286 Ill. App. 3d at 731. We made clear that the prejudice to a

defendant by the presence of alternate jurors during deliberations "would only affect defendant's

substantial rights if prejudicial impact were shown." Id. at 734 (discussing Olano). We

contrasted the involvement of the alternate juror in Babbington with the claim that alternate jurors

were present during jury deliberations in Olano, where the Supreme Court "found that defendant

made no showing that the alternate jurors either participated in the jury's verdict or chilled

deliberations by regular jurors." Id. at 734. In Babbington, "[t]he change in jurors occurred

without the knowledge or consent of defendant," which was certainly prejudicial. Id. at 733.

        In the case before us, the defendant repeatedly asserts "that alternative juror Julio Saucedo

deliberated with the jury." Of course, as made clear by our holding in Babbington, without a

showing that the alternate juror participated in jury deliberations, no constitutional fair trial claim

is made. Id. at 733-34 (citing Olano, 507 U.S. 725). The defendant contends that because Mr.


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No. 1-09-1812

Saucedo responded "when the clerk called his name as part of the polling," he has made a

sufficient factual showing that 13 jurors deliberated in the guilty verdicts. He asserts this factual

claim is not rebutted by the record (People v. Coleman, 183 Ill. 2d 366, 380-81, 701 N.E.2d 1063

(1998)), nor is his factual claim "fantastic or delusional" (Hodges, 234 Ill. 2d at 17). We disagree

with his first assertion.

        We find the four verdict forms present in the record bearing the signatures of the 12 jurors

comprising the jury rebut the defendant's claim, which he characterizes as "factual," that Mr.

Saucedo participated in jury deliberations. The defendant's repeated claim that Mr. Saucedo

deliberated with the jury is at best an inference he draws from the indisputable fact that the clerk

called out Mr. Saucedo's name after having polled 12 jurors. However, we are provided with no

authority to support the defendant's assertion that Mr. Saucedo's affirmative response that the

verdict announced was his verdict as well can be equated with actual participation in the jury's

deliberations. In the absence of clear authority to the contrary, we reject the defendant's claim

that an inference based on a partial polling by the trial court's clerk is sufficient to state a "gist" of

a constitutional violation when the record fails to otherwise support his claim of participation by

the alternate juror.

        As the quoted section of the transcript of the polling demonstrates, the clerk did not

complete the question posed to each of the 12 jurors comprising the jury when addressing Mr.

Saucedo. To each of the 12, the clerk asked: "Was this your verdict and is this your verdict

now?" With Mr. Saucedo, the clerk only completed part of the query: "[W]as this your verdict

and - -." The clerk never asked the full question, suggesting the clerk realized one too many


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No. 1-09-1812

names had been polled. Without the full question being asked, Mr. Saucedo admittedly answered,

"Yes." His answer may just as well reflect his agreement with the jury's verdict triggered solely

because he was asked and not because he deliberated with the jury.

       It is undeniable that had the clerk conducted the polling of the jury from any one of the

four verdict forms signed by the jury, Mr. Saucedo's name would not have been mentioned.

Without the mistaken polling of Mr. Saucedo by the clerk, the issue of deliberation by an alternate

juror would not be before us because the defendant offers nothing else to support this claim. In

light of the record before us, we decline to read Mr. Saucedo's affirmative answer as manifesting

that he deliberated with the jury when no showing is made that he actually “participated in the

jury's verdicts or chilled deliberations by regular jurors." Babbington, 286 Ill. App. 3d at 734. In

other words, we hold that the four jury verdicts, bearing the signatures of only the 12 jurors that

were directed by the trial judge to retire to the jury room and deliberate, positively rebut the

defendant's claim that Mr. Saucedo participated in the jury deliberations. Stated differently, the

defendant makes no factual showing of a constitutional fair trial claim based on participation in

the deliberations by an alternative juror. See Hodges, 234 Ill. 2d at 9 (the petition must " 'clearly

set forth the respects in which petitioner's constitutional rights were violated.' ") (quoting 725

ILCS 5/122-2 (West 2006))).

       The record also contains express directions from the trial court to the jury that it retire to

the jury room to begin its deliberations. Nothing in the record indicates the jury did not comply.

" '[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular

language of the trial court's instructions in a criminal case and strive to understand, make sense of,


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No. 1-09-1812

and follow the instructions given them.' " Olano, 507 U.S. at 740 (quoting Francis v. Franklin,

471 U.S. 307, 324 n.9 (1985)). As we discussed in Babbington, a federal court found no

constitutional error when the defendant failed to object when the alternates "were permitted to

retire with the jury, but were instructed *** not to participate in the deliberations." Babbington,

286 Ill. App. 3d at 734 (citing United States v. Ottersberg, 76 F.3d 137 (7th Cir. 1996)).

        Likewise here, nothing in the record supports the defendant's implicit claim that the trial

court's instructions before the jury was sent to deliberate were contravened. See Babbington, 286

Ill. App. 3d at 733 ("If the alternative juror Smith deliberated instead of regular juror Nunn, this

arrangement probably resulted from a collusion between Smith and Nunn."). The record also

demonstrates that the trial judge separated the alternate jurors from the jury before the jury retired

to deliberate, apparently having the two alternates take a seat apart from the jury after they

retrieved any personal belongings from the jury room. "[If] [y]ou have anything in the jury room,

bring it out here and have a seat here."

        To further support our ruling, we note that had the defendant raised this claim on direct

appeal (the failure of which he contends makes out his ineffective assistance claim for

postconviction purposes), we do not hesitate to state that this claim would have been rejected

based on the record before us. We would not have found plain error, as we did in Babbington,

when the record fails to demonstrate that Mr. Saucedo actually deliberated with the jury. In other

words, there is no "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding [on direct appeal] would have been different." People v. Manning, No.

109029, slip op. at 6 (Ill. Feb. 3, 2011).


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No. 1-09-1812

       "[I]t is [not] arguable that the defendant was prejudiced" by appellate counsel's failure to

argue that Mr. Saucedo actually participated with the jury on direct appeal. Hodges, 234 Ill. 2d at

17.

                                       Peremptory Challenge

       The defendant premises his next contention on trial counsel's failure to use one of his

remaining peremptory challenges to excuse the prospective juror that became the jury's

foreperson. We note this claim is not unlike his contention on direct appeal that the trial court

erred in denying defense counsel's request to remove the eventual foreperson for cause. Dixon,

382 Ill. App. 3d at 235. Taking note of the similarity to the issue raised on direct appeal, the

State contends this issue is foreclosed by res judicata or the defendant forfeited this argument

because nothing prevented the defendant from advancing it on direct appeal.

       "Generally, the recasting in constitutional terms of an issue decided on direct appeal is

barred by res judicata." People v. Cabrera, 402 Ill. App. 3d 440, 445, 932 N.E.2d 528 (2010) ("a

petitioner cannot obtain relief by 'rephrasing previously addressed issues in constitutional terms' in

his petition" (citing People v. Flores, 153 Ill. 2d 264, 277-78, 606 N.E.2d 1078 (1992), quoting

People v. Gaines, 105 Ill. 2d 79, 90, 473 N.E.2d 868 (1984))). Nonetheless, "[i]t is well

established that 'the doctrine of waiver does not bar review of an issue when the waiver arises

from ineffective assistance of appellate counsel.' " People v. Moore, 177 Ill. 2d 421, 428, 686

N.E.2d 587 (1997) (quoting People v. Foster, 168 Ill. 2d 465, 474, 660 N.E.2d 951 (1995)).

"We, therefore, must determine whether petitioner's underlying ineffective assistance of trial

counsel claim would have been successful if raised on direct appeal." People v. Childress, 191 Ill.


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No. 1-09-1812

2d 168, 175, 730 N.E.2d 32 (2000).

           Specifically, in the instant case we inquire whether it is reasonably probable that a jury

would have returned not guilty verdicts had counsel excused the eventual foreperson from service

on the jury. Inversely stated, we consider whether the defendant was prejudiced by the presence

of the foreperson on the jury. See People v. Bowman, 325 Ill. App. 3d 411, 426, 758 N.E.2d

408 (2001) ("It would be a bad idea to allow defendants to accept a questionable juror, proceed

to trial, then, when things turn out badly, claim entitlement to reversal because that juror voted to

convict.").

           The defendant asserts a variety of grounds to support that this claim warrants

consideration in a second-stage proceeding. He contends this claim sets forth an arguable factual

basis and an arguable legal basis that defense counsel was ineffective because the eventual

foreperson "showed indications that he was not impartial." The defendant, however, makes little

effort to reveal to us the "indications that he was not impartial." Our review of the record reveals

no such indications; we summarily reject the defendant's contention that a prospective juror's

failure to disclose 20-year old arrests during voir dire equates with an indication that the

prospective juror was presumptively biased. See People v. Metcalfe, 202 Ill. 2d 544, 549, 562-

63, 782 N.E.2d 263 (2002) (where the prospective juror indicated that a perpetrator of a crime

against her " ‘got off because of a technicality,’ " the record contained "absolutely no evidence

that [the prospective juror's] bias against the system was directed at defendant" as opposed to the

State.).

           In Metcalfe, this court granted the defendant a new trial where the trial court failed to sua


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No. 1-09-1812

sponte excuse a prospective juror that indicated "she was unable to be fair and impartial" under a

plain error analysis. People v. Metcalfe, 326 Ill. App. 3d 1008, 1014, 762 N.E.2d 1099 (2001),

rev'd, 202 Ill. 2d 544. In reversing, our supreme court held "a trial court does not have a [sua

sponte] duty to do so." Metcalfe, 202 Ill. 2d at 557. The court further rejected the defendant's

alternative contention that defense counsel was ineffective for not exercising a peremptory

challenge to remove the prospective juror because "the defendant suffered no prejudice from the

alleged error." Id. at 562. We draw the same conclusion in this case.

       The evidence of the defendant's guilt of all charges was overwhelming: the defendant gave

both an oral and videotaped confession; he led the investigating officers to the probable murder

weapon; and the defendant's companion saw the defendant emerge from the victim's home with

blood on his hand. We find no reasonably probability that had the foreman not been part of the

jury, the defendant would have been acquitted of some of the charges. There is also nothing in

the record to indicate a bias on the part of the eventual foreperson based on his failure to disclose

20-year old arrests for battery when he stated he could remain objective even though one of his

sons was incarcerated at the time of trial. See Manning, slip op. at 13 (intimating juror's prior

"encounters with law enforcement officers in connection with his two speeding tickets" would

mitigate against potential anti-defendant bias). The defendant's convictions were driven by the

overwhelming evidence that he committed each of the offenses.

       We conclude the defendant cannot demonstrate his counsel's actions prejudiced him.

Accordingly, we need not determine whether counsel's actions were objectively unreasonable,

though we note the likelihood that counsel's actions were reasonable. See Manning, slip op. at 2-


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No. 1-09-1812

3, 12-14 (counsel for sex offender defendant not objectively unreasonable in declining to

challenge juror that stated sex offenders should be "locked up for life" and that he could not be

fair in judging the defendant's guilt).

        We conclude the defendant's ineffective assistance claim against trial counsel is unfounded,

which necessarily means his claim against appellate counsel is without merit.

                                            Fees and Costs

        Finally, the defendant contends the trial court erroneously assessed $105 in filing fees and

court costs pursuant to section 22-105 of the Code of Civil Procedure, which provides:

                "If a prisoner *** files a pleading *** in a case seeking

                post-conviction relief under Article 122 of the Code of Criminal

                Procedure *** and the Court makes a specific finding that the

                pleading *** is frivolous, the prisoner is responsible for the full

                payment of filing fees and actual court costs." 735 ILCS 5/22-105

                (West 2008).

        The defendant first argues section 22-105 violates his constitutional rights to due process

and equal protection. That same argument was recently rejected by our supreme court in People

v. Alcozer, No. 108109, slip op. at 14-15 (Ill. Mar. 24, 2011), which forecloses this claim before

us.

        In the alternative, the defendant contends that only $15 of the $105 assessed against the

defendant is subject to collection "from Dixon's account." The defendant asserts that section 22-

105 limits collection from a prisoner's trust fund to only "court costs." 735 ILCS 5/22-105(a)


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No. 1-09-1812

(West 2008) ("On filing the action or proceeding the court shall assess and *** collect *** court

costs required by law."). According to the defendant, the term "court costs" does not apply to the

$90 filing fee assessed against the defendant, which therefore precludes the Department of

Corrections from removing "that amount from his account."

       The State counters that the defendant cites no authority for this contention, which makes

the claim subject to forfeiture. See People v. Ward, 215 Ill. 2d 317, 332, 830 N.E.2d 556 (2005).

Even if not forfeited, the State asserts the claim has no merit because the precise claim was

rejected in People v. Smith, 383 Ill. App. 3d 1078, 1094-95, 892 N.E.2d 55 (2008).

       In his reply brief, the defendant contends the plain reading of the statutory provision that

provides for the Illinois Department of Corrections to collect a court ordered assessment from a

prisoner's account is limited to "partial payment of any court costs." The defendant argues that

"filing fees" are distinct from "court costs" and if "the legislature intended for trust accounts to be

docked for 'filing fees,' it would have so stated." The defendant acknowledges that Smith is

directly on point and contrary to the position he takes before us. He contends Smith was

"wrongly decided."

       We reject the State's contention that forfeiture applies to this issue. The defendant

adequately raised the issue in his main brief and properly relied on the plain language of the

controlling provision for his contention on appeal. We are unpersuaded, however, that Smith was

wrongly decided. We agree with Smith that "court costs" is merely a shorthand expression for all

expenditures connected with the filing of pleadings in court, including filing fees. We find no

error in the circuit court's order assessing the defendant $105 to be collected from the defendant's


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No. 1-09-1812

account with the Illinois Department of Corrections.1

                                           CONCLUSION

       The outcome in the defendant's direct appeal would not have changed had appellate


       1
           The State contends Alcozer stands for the proposition that a first-stage dismissal of a

postconviction petition necessarily requires the imposition of fees and costs under section 22-105.

We acknowledge Alcozer held "a postconviction petition summarily dismissed pursuant to section

122–2.1 of the Post-Conviction Hearing Act [citation] as frivolous or patently without merit is

subject to imposition of fees and costs under section 22–105 of the Code of Civil Procedure

[citation], as a frivolous lawsuit filed by a prisoner." (Emphasis added.) Alcozer, slip op. at 14.

It does not necessarily follow, however, that Alcozer compels the circuit court to ipso facto

impose section 22-105 fees should the circuit court summarily dismiss the petition. Our supreme

court construed section 22-105 "to ascertain and give effect to the legislature's intent." Alcozer,

slip op. at 4. The legislature defined a frivolous filing by a prisoner as one that "meets any or all

of the following criteria." 735 ILCS 5/22-105(b) (West 2008). Subsection (1) of section 22-105

states that a pleading is frivolous if "it lacks an arguable basis either in law or in fact." 735 ILCS

5/22-105(b)(1) (West 2008). If such a ruling compelled the imposition of fees and costs, there

would be no need for subsections (2) through (5) of section 22-105(b) that follow. It is possible

that a circuit court could determine that an exception listed in subsections (3) and (4) applies to

warrant a favorable exercise of discretion in not assessing fees. See Schuringa v. City of

Chicago, 30 Ill. 2d 504, 519, 198 N.E.2d 326 (1964) (assessment and apportionment of fees and

costs are discretionary).

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No. 1-09-1812

counsel argued, as plain error, that an alternate juror participated in deliberations; had we

considered such a claim on direct appeal we would have rejected it as unsupported by the record.

Thus, the defendant's postconviction claim that fault lies with appellate counsel fails because no

prejudice can be shown from the alleged error. Nor was defendant's trial counsel ineffective for

failing to exercise a peremptory challenge against the eventual jury foreperson when nothing in the

record suggests that the juror was biased. Because no showing of bias can be made, appellate

counsel was not ineffective for failing to raise on direct appeal a claim of ineffective assistance of

trial counsel premised on his failure to exercise a peremptory challenge against the eventual

foreperson of the jury. Finally, the circuit court properly assessed the defendant $105 for filing a

postconviction petition patently without merit.

       Affirmed.




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