Appeal from Circuit Court of McLean County No. 98CF1061 Honorable Donald D. Bernardi, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
In July 1999, defendant, Rickey E. Griffin, pleaded guilty to driving while his license was revoked (DWR) (subsequent offense felony) (625 ILCS 5/6-303(d) (West 1998)), and the trial court sentenced him to six years in prison. The court also ordered him to pay a $200 reimbursement fee for the services of the public defender pursuant to section 113-3.1 of the Code of Criminal Procedure of 1963 (Procedural Code) (725 ILCS 5/113-3.1 (West 1998)).
In December 1999, defendant filed a document entitled "petition for relief from judgment," which the trial court treated as a post-conviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 1998)). The court subsequently dismissed defendant's petition, finding that it was frivolous and patently without merit. 725 ILCS 5/122-2.1(2) (West 1998).
Defendant appeals, arguing only that the trial court erred by ordering him to pay the $200 reimbursement fee without first conducting a hearing to determine his ability to pay. We affirm.
In October 1998, defendant was indicted on the DWR charge, and the trial court appointed the public defender to represent him. The court also then entered an "initial reimbursement order for court-appointed counsel," requiring defendant to pay an initial sum of $200 in $20 monthly installments. Defendant posted a cash bond and secured his release from custody. In February 1999, defendant made a $20 payment pursuant to the reimbursement order.
In July 1999, defendant pleaded guilty to DWR and to two other unrelated charges in exchange for the State's dismissing three other unrelated charges. The trial court sentenced defendant to six years in prison pursuant to the plea agreement and deducted the remaining $180 defendant owed pursuant to the reimbursement order from defendant's cash bond.
In December 1999, defendant filed his post-conviction petition, alleging that the DWR charge to which he pleaded guilty, a Class 4 felony, was unconstitutionally enhanced by Public Act 88-680 (Pub. Act 88-680, art. 20, §20-900, eff. January 1, 1995 (1994 Ill. Laws 2750, 2771-72)). Specifically, defendant contended that Public Act 88-680 violated the single-subject rule of the 1970 Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). That act contained a provision amending section 6-303(d) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/6-303(d) (West Supp. 1993)) by providing that a person convicted of a second or subsequent DWR commits a Class 4 felony if the original revocation or suspension was for a statutory summary suspension. See Pub. Act 88-680, art. 20, §20-900, eff. January 1, 1995 (1994 Ill. Laws 2772)). In People v. Cervantes, 189 Ill. 2d 80, 98, 723 N.E.2d 265, 274 (1999), the supreme court voided Public Act 88-680, also known as the "Safe Neighborhoods Law."
In January 2000, the trial court dismissed defendant's petition, noting that defendant was charged and convicted under an enhancement provision of section 6-303(d) of the Vehicle Code that existed prior to the enactment of Public Act 88-680. See 625 ILCS 5/6-303(d) (West Supp. 1993) (making a second or subsequent DWR conviction a Class 4 felony if the original revocation or suspension was for a violation of section 11-401 or 11-501 of the Vehicle Code (625 ILCS 5/11-401 (West 1992); 625 ILCS 5/11-501 (West Supp. 1993))). The court therefore determined that defendant had not suffered an increase in penalty pursuant to an unconstitutional statute.
In February 2000, defendant filed a petition to reconsider. In neither defendant's initial post-conviction petition nor in his petition to reconsider did he challenge the $200 reimbursement order. The trial court later denied the petition to reconsider, and this appeal followed.
Defendant's sole argument on appeal is that the trial court erred by entering the $200 reimbursement order without first conducting a hearing to determine his ability to pay. 725 ILCS 5/113-3.1(a) (West 1998); see People v. Love, 177 Ill. 2d 550, 563, 687 N.E.2d 32, 38 (1997). In response, the State contends that defendant has forfeited any issue concerning the reimbursement order by not raising the matter until this appeal from the court's denial of his post-conviction petition. We agree with the State.
"The [Act] provides a mechanism by which criminal defendants can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122-1 (West 1994). An action for post-conviction relief is a collateral proceeding, not an appeal from the underlying conviction and sentence. [Citations.] In order to be entitled to post-conviction relief, a defendant must establish a substantial ...