Appeal from the Circuit Court of Cook County Honorable James Michael Obbish, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Defendant Gerald Carter challenges the trial court's order assessing $90 in costs and fees pursuant to section 22-105 of the Code of Civil Procedure (735 ILCS 5/22-105 (West 2004)) upon dismissing defendant's successive post-conviction petition as frivolous. On appeal he argues as follows: (1) there is no filing fee for post-conviction petitions authorized by statute; (2) assessment of costs and fees pursuant to section 22-105 (735 ILCS 5/22-105 (West 2004)) violates equal protection and due process; and (3) his mittimus should be corrected to reflect seven days credit. For the following reasons, we affirm.
Defendant was convicted after a jury trial of possession of a controlled substance with intent to deliver and was sentenced to an extended term of 15 years in the Illinois state penitentiary. On direct appeal defendant argued that he was not proven guilty beyond a reasonable doubt because the State's witness was impeached, his testimony was unbelievable and there was no evidence of intent to deliver. He also argued the trial court erred in admitting testimony of an anonymous call to police, testimony about gang activity and by not allowing cross-examination regarding gang activity. We affirmed. People v. Carter, No. 1-99-1228 (2000) (unpublished order under Supreme Court Rule 23).
On July 16, 2001, defendant filed a pro se post-conviction petition alleging ineffective assistance of counsel both at trial and on direct appeal. On August 20, 2001, the trial court summarily dismissed defendant's post-conviction petition. In addressing the allegations of ineffective assistance of trial counsel, the trial court indicated that defendant "failed to establish the requisite showing of either deficient performance or sufficient prejudice." The trial court also found that due to a lack of support for defendant's underlying claim, he could not prevail on a claim of ineffective assistance of appellate counsel. The trial court further held that, with the exception of defendant's claim of ineffective assistance of appellate counsel, all other claims were barred by the doctrines of res judicata and waiver. We granted defendant's motion to file a late notice of appeal.
The sole issue defendant raised on appeal of the dismissal of his pro se post-conviction petition was whether both trial counsel and appellate counsel were ineffective for failing to challenge the State's use of a nonexistent conviction for possession of a stolen motor vehicle in aggravation at defendant's sentencing hearing.
On October 17, 2003, we affirmed the trial court's dismissal of defendant's petition in People v. Carter, No. 1-02-0254 (2003) (unpublished order under Supreme Court Rule 23). We concluded that "even absent the mistaken possession of a stolen motor vehicle conviction, defendant was nonetheless eligible to be sentenced as a Class X offender, which meant that he could properly be sentenced to a term of not more than 30 years." Carter, slip op. at 6.
On December 6, 2005, defendant filed the consecutive pro se petition which is the subject of the instant appeal. He alleged various constitutional violations, including the State's improper use of the possession of a stolen motor vehicle conviction in sentencing, denial of his right to a jury trial, improper enhancement of sentence, ineffective assistance of counsel for failing to present a motion for directed verdict or a notice of appeal, and ineffective assistance of counsel for failing to investigate a jury polling error. The trial court on December 13, 2005, dismissed the consecutive petition as frivolous. The court concluded that the allegations were either waived or res judicata and defendant had not satisfied the "cause-and-prejudice test."
In a separate order the trial court assessed $90 in "fees and actual court costs"against defendant upon finding the consecutive petition frivolous. The order reads as follows:
"This matter having come to be heard for assessment of court costs and fees pursuant 735 ILCS 5/22-105 (West 2004), the court having denied the successive petition for post-conviction relief in November 2005, upon a finding that it was entirely frivolous in that:
1. it lacked an arguable basis in law or in fact; and
2. the claims, defenses, and other legal contentions therein are not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law.
IT IS THEREFORE ORDERED that petitioner be assessed the following filing fees and actual court costs in the amount of $90.00 for filing a petition to vacate, modify, or reconsider final judgment pursuant to 705 ILCS 105/27.2(a) (West 2004). In satisfaction of this assessment, the Illinois Department of Corrections shall collect a first time payment of 50% of the average monthly balance of petitioner's trust fund account for the past six months. Thereafter, 50% of all deposits into petitioner's account shall be withheld until the assessment costs are collected in full."
Defendant challenges the assessment of $90 in fees and court costs. He argues there is no filing fee for post-conviction petitions authorized by statute. Further, he contends that the statute relied upon by the trial court in assessing the $90 fee violated defendant's due process and equal protection rights because it improperly restricts defendant's reasonable access to the courts and unfairly applies to prisoners in violation of both the United States and Illinois Constitutions.
U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2. We address each argument in turn.
I. $90.00 Fee Authorized By Statute
In the instant case, the court after finding defendant's successive post-conviction petition frivolous assessed a $90 filing fee pursuant to section 22-105 of the Code of Civil Procedure, which provides that the prisoner is "responsible for the full payment of filing fees and actual court costs." 735 ILCS 5/22-105 (West 2004). In conjunction with section 22-105, the court assessed against defendant "filing fees and actual court costs in the amount of $90 for filing a petition to vacate, modify, or reconsider final judgment pursuant to 705 ILCS105/27.2(a) (West 2004)."
Defendant argues he should not have been assessed a $90 filing fee because section 22-105 does not "specify the cost of filing a post-conviction petition, nor does that section cross-reference any other statutory section where such information can be found." He further argues that section 27.2(a) is inapplicable because the "court lacked the authority to assess the $90 filing fee pursuant to section 27.2(a) of the Clerks of Courts Act, which outlines the fees in counties with population over 3,000,000." In support of that contention, defendant argues that section 27.2(a) only applies to civil cases and as such cannot be relied upon in the context of the instant post-conviction petition to authorize the assessment of the $90 filing fee. We address defendant's challenge to section 22-105 and section 27.2(a).
A. Trial Court Correctly Applied Section 22-105
Pursuant to section 22-105 (735 ILCS 22-105(a) (West 2004)), if a trial court makes a specific finding that the pleading, motion or other paper filed by a prisoner is frivolous, the prisoner is responsible for the full payment of filing fees and actual court costs. Section 22-105, entitled "Frivolous lawsuits filed by prisoners," states in subsection (a), in relevant part, as follows:
"(a) If a prisoner *** files a pleading, motion, or other filing which purports to be a legal document in a case seeking post-conviction relief under Article 122 of the Code of Criminal Procedure of 1963, *** and the Court makes a specific finding that the pleading, motion, or other filing which purports to be a legal document filed by the prisoner is frivolous, the prisoner is responsible for the full payment of filing fees and actual court costs." 735 ILCS 5/22-105(a) (West 2004).
Section 22-105(b) indicates that a pleading, motion or paper is frivolous if it satisfies any or all of the following:
"(1) lacks an arguable basis either in law or in fact;
(2) it is being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(3) the claims, defenses, and other legal contentions therein are not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of ...