The opinion of the court was delivered by: Chief Justice Kilbride
CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
At issue in this appeal is the constitutionality of section 22--105 of the Code of Civil Procedure (Code) (735 ILCS 5/22--105 (West 2006)), providing for imposition of fees and costs upon summary dismissal of a post-conviction petition summarily dismissed as frivolous or patently without merit pursuant to section 122--2.1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--2.1 (West 2006)). Petitioner, Isaac Alcozer, contends that section 22--105 violates his rights to due process and equal protection.
Upon summarily dismissing Alcozer's pro se petition for post-conviction relief, the circuit court of Cook County imposed fees and costs. Alcozer appealed only the order imposing fees and costs. The appellate court affirmed, but modified the costs and fees. No. 1--07--2092 (unpublished order under Supreme Court Rule 23). We allowed Alcozer's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). We affirm the judgment of the appellate court.
Alcozer was convicted of first degree murder following a bench trial and sentenced to 25 years of imprisonment on the murder charge, with an additional 25 years for personally discharging the firearm that caused the victim's death. The appellate court affirmed Alcozer's conviction and sentence on direct appeal. People v. Alcozer, No. 1--04--0806 (2005) (unpublished order under Supreme Court Rule 23).
On April 19, 2007, Alcozer filed a pro se post-conviction petition. In his pro se post-conviction petition, Alcozer presented two arguments: (1) that he was illegally arrested and his pretrial motion to quash arrest should have been granted; and (2) that he received ineffective assistance of trial counsel because counsel failed to continue challenging the legality of his arrest.
On June 21, 2007, the trial court summarily dismissed Alcozer's pro se post-conviction petition, finding that Alcozer failed to raise the claims on direct appeal and that res judicata prevented consideration of Alcozer's post-conviction claims. The trial court's order concluded that "the issues raised and presented by [Alcozer] are frivolous and patently without merit." In addition to dismissing Alcozer's petition, the trial court ordered that Alcozer pay a total of $359 in costs and fees, pursuant to section 22--105 of the Code (735 ILCS 5/22--105 (West 2006)). The order imposing fees and costs found:
"[Alcozer's petition for post-conviction relief] was entirely frivolous in that: 1. it lacks 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 new law."
On appeal, Alcozer challenged the assessment of costs and fees, as well as their constitutionality. The appellate court affirmed the trial court's imposition of costs and fees, but adjusted the total due to $105. No. 1--07--2092 (unpublished order under Supreme Court Rule 23.)
In this appeal, Alcozer argues that section 22--105 of the Code violates the due process and equal protection clauses of the United States and Illinois constitutions. He contends that section 22--105 is unconstitutional as applied to him and other prisoners who file initial petitions for post-conviction relief because it is a pecuniary punishment that "acts as a financial interposition between an indigent petitioner and his right to the courts." In the alternative, Alcozer submits that this court need not consider his constitutional argument if section 22--105 is construed as not requiring the imposition of a monetary penalty every time an indigent prisoner's pro se post-conviction petition is summarily dismissed.
The State argues that section 22--105 is constitutional because it is rationally designed to serve a legitimate government purpose, "to discourage prisoners from filing frivolous pleadings and recoup some of the systemic costs generated by the filing of such pleadings." The State contends that Alcozer forfeited his alternative argument by not specifically raising the issue in his petition for leave to appeal or before the appellate court. See People v. McCarty, 223 Ill. 2d 109, 122 (2006) (the failure to raise an issue in a petition for leave to appeal results in the forfeiture of that issue); People v. Robinson, 223 Ill. 2d 165, 174-75 (2006) (dismissing appeal where the only claim the defendant argued in his brief was not raised in his petition for leave to appeal or before the appellate court).
Alcozer responds to the State's forfeiture argument that his petition for leave to appeal properly raised the issue by arguing that:
"[I]n People v. Brown, No. 106243 (petition for leave to appeal allowed, March 29, 2008), this Court will decide whether 'frivolous' means the same in section 22--105(b)(1) of the Code of Civil Procedure and section 122--2.1 of the Post-Conviction Hearing Act."
Alcozer states that his petition for leave to appeal asked this court to hold his case in abeyance for resolution of Brown, as it may be dispositive of the issues raised in Alcozer's case. Ultimately, this court declined to consider the construction of section 22--105 in Brown because the fees and costs were vacated and, thus, construction of section 22--105 was no longer an issue. See People v. Brown, 236 Ill. 2d 175, 182 (2010).
We reject the State's argument that Alcozer has forfeited this argument by failing to raise it in his petition for leave to appeal. There is no question that a determination of whether "frivolous" means the same in section 22--105(b)(1) of the Code and section 122--2.1 of the Post-Conviction Hearing Act was raised in Alcozer's petition for leave to appeal. Additionally, even "[w]hen an issue is not specifically mentioned in a party's petition for leave to appeal, but it is 'inextricably intertwined' with other matters properly before the court, review is appropriate." People v. Becker, 239 Ill. 2d 215, 239 (2010) (quoting People v. McKown, 236 Ill. 2d 278, 310 (2010)). Further, it is clear that the constitutional issues raised by Alcozer depend upon construction of section 22--105. It is well settled that courts should avoid constitutional questions when a case may be decided on other grounds. Beahringer v. Page, 204 Ill. 2d 363, 370 (2003).
Interpretation of section 22--105 is inextricably intertwined with the constitutional issues presented in this appeal and, accordingly, review is appropriate. People v. McKown, 236 Ill. 2d 278, 310 (2010). Moreover, Alcozer's argument requires interpretation of the statute directly related to his constitutional challenge, and we find that this issue has not been forfeited. See McCarty, 223 Ill. 2d at 123 (an ...