                                2013 IL 114639

                             IN THE
                        SUPREME COURT
                               OF
                      THE STATE OF ILLINOIS


                      (Docket No. 114639)
     THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. OMAR
                     JOHNSON, Appellant.

                      Opinion filed September 19, 2013.

        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 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.


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¶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 4-2002.1(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

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       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,




           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.

                                          -4-
       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
       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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