FIFTH DIVISION September 21, 2007
No. 1-06-0367
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 2718 ) SOLOMON HUNTER, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
Defendant Solomon Hunter appeals from an order of the trial
court summarily dismissing his pro se petition for relief under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2004)). On appeal, defendant contends that: (1) his
petition alleged the gist of constitutional claims that his right
of confrontation was violated and that his trial counsel was
ineffective; and (2) he was improperly assessed fees and costs
after his pro se petition was dismissed upon a finding of
frivolousness.
Following a bench trial, defendant was found guilty of
possession of a controlled substance with intent to deliver and
sentenced to 16 years' imprisonment. Because the proceedings of
the trial are fully set out in our order on direct appeal (People 1-06-0367
v. Hunter, No. 1-03-2250 (2005) (unpublished order under Supreme
Court Rule 23)), we restate only those facts necessary to
understand defendant's current appeal.
At around 6:40 p.m. on January 7, 2003, Officer Spain was
conducting narcotics surveillance on the 2700 block of West
Lexington Street in Chicago. Defendant was standing in the
middle of the block on the south side of the street when an individual approached defendant. After the two spoke, defendant
accepted money from the individual and relocated to a vacant lot
approximately 10 to 12 feet from the sidewalk. He picked up a
strip of tape and removed a "small shiny item" from it.
Defendant returned to the individual that had given him money and
gave the item to him. Officer Spain observed two similar
transactions, but did not stop any of the alleged buyers. After
observing the third transaction, Spain contacted Officers Town
and Chin to detain defendant. Town recovered a strip of tape
from the vacant lot and discovered five tinfoil packets attached
to it. He then gave the strip of tape to Spain. Officer Spain
inventoried the packets, heat sealed the inventory package, and
sent it to the crime lab for testing. When asked if he
inventoried the items "under Inventory Number 10080323," Spain
replied, "[y]es, that's correct."
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The parties stipulated that if called to testify, Penny
Evans would first testify that she was an expert in forensic
chemistry. She would also testify:
"[S]he received the items inventoried under
Inventory Number 10080232 in a heat sealed
condition. Chain of custody was proper at
all times. Upon receiving the inventory envelope
she opened it. Inside it was five tin foil
packets. She weighed the contents of the tin
foil packets. The total weight was .6 grams.
She then separated out of the tin foil
packets the contents of [sic] that weighed .1
grams for ascertaining the presence of a
controlled substance. She would testify
within a reasonable degree of scientific
certainty that it tested positive for
[h]eroin."
Defendant did not object or show any signs of dissent when the
stipulation was made.
The trial court found defendant guilty of possession of a
controlled substance with intent to deliver. Prior to
sentencing, defendant argued in a pro se motion for a new trial
that his defense counsel was ineffective. The trial court denied
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defendant's motion and sentenced him as a Class X offender to 16
years' imprisonment.
Defendant appealed his convictions and we affirmed the
judgment on appeal. Hunter, slip op. at 14-15. Defendant
argued, inter alia, that the State failed to establish a reliable
chain of custody. However, this court rejected defendant's
argument, finding that the stipulation established that the chain of custody was sufficient and that the stipulated evidence
sufficiently matched Officer Spain's testimony concerning the
evidence. Hunter, slip op. at 9-10. Furthermore, this court
found that the discrepancy in the record regarding the inventory
numbers between the stipulation and Spain's testimony did not
break the chain of custody. Hunter, slip op. at 10.
On November 3, 2005, defendant filed a pro se postconviction
petition alleging that he was denied his right to due process and
his trial counsel was ineffective for: (1) entering into a
stipulation with the State without first seeking input from
defendant or discussing the matter with him; (2) stipulating to
the chain of custody and failing to raise the issue of the
discrepancy of inventory numbers at trial, in a motion for a
directed finding, closing argument or posttrial motion; (3)
failing to object to the foundation for the chemist's testimony
at trial; (4) failing to call a witness, Rhonda Marks, who was
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willing to give favorable testimony at trial on defendant's
behalf; and (5) refusing to file a motion to quash his arrest.
On December 2, 2005, the trial court reviewed the petition
and determined that it was frivolous and patently without merit.
Among its findings, the trial court found that defendant had not
stated any facts as to how he was prejudiced by the stipulation
to the chain of custody and trial counsel's failure to object to the foundation of the chemist's testimony. Therefore, his
defense counsel was not ineffective under Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.
2052, 2064 (1984). Furthermore, the trial court found that
defense counsel's actions were a matter of trial strategy and
would therefore be left undisturbed.
The trial court also entered a second order assessing
defendant $90 in fees and costs, finding that his petition was
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 nonfrivolous
argument for the extension, modification, or reversal of existing
law or the establishment of new law."
Defendant timely appeals and first contends that his
petition was improperly dismissed because it stated the gist of a
constitutional claim.
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Defendant argues that because his defense counsel stipulated
to the forensic chemist's testimony and the chain of custody for
the seized narcotics without discussing it with him, his
constitutional right of confrontation was violated. He also
argues that he was denied effective assistance of counsel because
defense counsel decided to enter into the stipulation without
contesting any of the evidence. At the first stage of postconviction proceedings under the
Act, a petition may be dismissed if the trial court determines
the defendant's petition is frivolous or is patently without
merit. People v. Edwards, 197 Ill. 2d 239, 244 (2001). A
petition is frivolous or patently without merit only if the
allegations in the petition, taken as true and liberally
construed, fail to present the gist of a constitutional claim.
Edwards, 197 Ill. 2d at 244. Our review of a summary dismissal
is de novo. Edwards, 197 Ill. 2d at 247.
Although there is a presumption against the waiver of
constitutional rights, the right of confrontation may be waived.
People v. Campbell, 208 Ill. 2d 203, 211 (2003). Defense counsel
may waive a defendant's sixth amendment right of confrontation by
stipulating to the admission of evidence when the decision is a
matter of trial tactics or strategy as long as the defendant does
not object. People v. Scott, 355 Ill. App. 3d 741, 744 (2005).
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To establish ineffective assistance of counsel, a defendant
must show both (1) that counsel's representation fell below an
objective standard of reasonableness and (2) that the substandard
representation prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.
2052, 2064 (1984). Demonstrating prejudice under the second
prong requires a showing that there is a reasonable probability that, but for counsel's alleged error, the result of the
proceeding would have been different. Strickland, 466 U.S. at
694, 80 L. Ed. 2 at 698, 104 S. Ct. at 2068; People v. Vasquez,
368 Ill. App. 3d 241, 255 (2006). The decision of whether to
object to trial testimony is generally a matter of trial
strategy. People v. Evans, 209 Ill. 2d 194, 221 (2004).
Defendant first argues that his defense counsel never
discussed the decision to stipulate to evidence with him and,
therefore, he was denied his constitutional right of
confrontation. We note that defendant's brief argues both that
defense counsel did not seek input from him regarding the
stipulation and also that there was an off-the-record
disagreement with the decision. However, defendant's
postconviction petition only alleges that defense counsel
"entered into stipulations with the State without first seeking
'any' input from [defendant], or discussing the matter whatsoever
with him." Any issue or claim of substantial denial of
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constitutional rights not raised in the original postconviction
petition is deemed waived. See 725 ILCS 5/122-3 (West 2004);
People v. Jones, 211 Ill. 2d 140, 144-45 (2004). Accordingly, we
will only address the allegations raised in defendant's
postconviction petition.
Defendant must be admonished about a stipulation and must
personally agree to it only when the stipulation includes a statement that the evidence is sufficient to convict the
defendant or where the State's entire case is to be presented by
stipulation. People v. Phillips, 217 Ill. 2d 270, 288 (2005).
The stipulation in defendant's case did not contain any such
statements and only went to the nature of the recovered items and
the chain of custody. Furthermore, because defendant's theory at
trial was that he was improperly arrested and never possessed the
controlled substances, the decision not to contest the
stipulation was one of trial strategy and belonged to defense
counsel. See Scott, 355 Ill. App. 3d at 744-45. Therefore, the
record does not need to show that defense counsel discussed the
stipulation with defendant or that defendant explicitly waived
his right of confrontation. See People v. Foerster, 359 Ill.
App. 3d 198, 200 (2005).
Defendant also argues that the cases the State relies on,
notably Phillips and Campbell, involved direct appeals and did
not involve a postconviction proceeding where the defendant
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alleged he affirmatively objected to the stipulation. However,
as stated before, defendant did not allege that he objected to
defense counsel's decision to enter into the stipulation, but
only that the decision was never discussed with him. Therefore,
defendant's argument is without a factual basis and we will not
consider it.
Defendant next argues he was denied effective assistance of counsel because defense counsel stipulated to the forensic
chemist's testimony. However, defendant's theory at trial was
that he was improperly arrested and never possessed the
controlled substances. There was no reason to address the
characteristics of the controlled substances and to do so would
have been inconsistent with the defense strategy. See Scott, 355
Ill. App. 3d at 745 (finding that defense counsel properly
stipulated to the nature of the controlled substances as a matter
of trial strategy where defendant claimed he never participated
in a drug transaction). Therefore, trial counsel's performance
did not fall below an objective standard of reasonableness.
Furthermore, defendant's claims regarding this claim lack
any allegation that relates to prejudice. Although he argues
that counsel was ineffective for stipulating, he fails to show
how the result of the proceeding would have been any different
had his counsel decided to contest the stipulation. Defendant's
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argument that defense counsel was ineffective for stipulating to
the forensic chemist's testimony is without merit.
Defendant's next argument that his defense counsel was
ineffective for failing to challenge the chain of custody based
upon a discrepancy in the inventory numbers is equally without
merit. Officer Spain testified that he inventoried the substance
he recovered under number 10080323, whereas the stipulation referred to inventory number 10080232. However, not only did the
parties stipulate that the chain of custody was proper at all
times, Spain's testimony describing the substance sufficiently
matched the testimony the parties stipulated to. Officer Spain
testified he recovered a strip of tape with five tinfoil packets
containing suspected heroin and inventoried the "narcotics" in a
heat-sealed condition. The stipulation provided that forensic
chemist Evens received inventory in a heat-sealed condition and
found five tinfoil packets, the contents of which tested positive
for heroin. Therefore, trial counsel's performance did not fall
below an objective standard of reasonableness when he failed to
object to the discrepancy in inventory numbers. Although the
stipulation did not mention a strip of tape, Spain's testimony
did not explicitly indicate he inventoried the strip of tape.
Therefore, contesting the lack of language in the stipulation
concerning a strip of tape would most likely not have altered the
outcome of the case. None of these discrepancies are sufficient
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to establish any significant doubt that the items stipulated to
by the parties and testified to by Spain were not the same.
Under the facts of this case, and considering defendant's theory
at trial, defense counsel was not ineffective for entering into
the stipulation.
Accordingly, we find that the trial court properly dismissed
defendant's pro se postconviction petition as frivolous and patently without merit.
Defendant next contends that he should not have been
assessed a $90 filing fee because there is no statutory filing
fee for postconviction petitions. He argues that section 22-105
of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West
2004)) fails to specify the cost of filing a postconviction
petition or cross-reference any other statutory provision
providing such information and, therefore, section 27.2a(g)(2) of
the Clerks of Courts Act (Clerks Act) (705 ILCS 105/27.2a(g)(2)
(West 2004)) is inapplicable. Section 27.2a(g)(2) provides a fee
as follows:
"[p]etition to vacate or modify any final
judgment or order of court, except a petition
to modify, terminate, or enforce a judgment
or order for child or spousal support or to
modify, suspend, or terminate an order for
withholding, if filed later than 30 days
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after the entry of the judgment or order, a
minimum of $75 and a maximum of $90." 705
ILCS 105/27.2a(g)(2) (West 2004).
We acknowledge that section 22-105 of the Code does not
reference or cross-reference a statute specifically providing the
cost of filing a postconviction petition. It appears that this
is because there is no initial filing fee for a postconviction petition. Section 22-105 assesses fees only after a legal
document in a postconviction proceeding is found to be frivolous.
Once a court has made that determination, it must look elsewhere
in determining the costs to be assessed the prisoner, depending
on the type of legal document filed. When possible, this court
should construe a statute so that it is not rendered meaningless.
See People v. Maggette, 195 Ill. 2d 336, 350 (2001). Therefore,
contrary to defendant's argument, the lack of specific fee
amounts or cross-references to specific fee statutes in section
22-105 does not render the section meaningless or invalid.
Under the doctrine of in pari materia, two statutes dealing
with the same subject will be considered with reference to one
another in order to give them harmonious effect. People v.
McCarty, 223 Ill. 2d 109, 133 (2006). Section 22-105 of the Code
authorizes the assessment of filing fees and costs for a
frivolous postconviction pleading. The circuit court, in
exercising that authority and in following the doctrine of in
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pari materia, went to section 27.2a of the Clerks Act, the
circuit court's filing fees statute, to determine the fee to be
assessed.
Section 27.2a(g)(2) of the Clerks Act applies to petitions
seeking to modify or vacate a final judgment. A postconviction
petition seeks to modify or vacate a final judgment in the sense
that it inquires into issues that relate to and affect a sentence or conviction of a final judgment that were not, or could not
have been, determined on direct appeal. See People v. Barrow,
195 Ill. 2d 506, 519 (2001). Accordingly, under the
authorization of section 22-105 of the Code, the circuit court
properly subjected defendant's petition to the fees outlined
under section 27.2a(g)(2) of the Clerks Act.
Defendant finally contends that the fees and costs he was
assessed must be vacated because section 22-105 of the Code (735
ILCS 5/22-105 (West 2004)) violates his state and federal
constitutional rights to due process and equal protection under
the law.
Statutes are presumed constitutional, and a court must
construe a statute so as to affirm its constitutionality if
reasonably possible. People v. Dinelli, 217 Ill. 2d 387, 397
(2005). In order to defeat this presumption, the party
challenging the validity of a statute has the burden of clearly
establishing a constitutional violation. People v. Jones, 223
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Ill. 2d 569, 596 (2006). "Because constitutionality is a pure
question of law, our standard of review is de novo." Jones, 223
Ill. 2d at 596.
Defendant argues that section 22-105 violates a prisoner's
due process right of meaningful access to the courts by unfairly
subjecting him to pecuniary punishment for attempting to exercise
a State-granted postconviction remedy. He first argues that "to interpose any financial consideration between an indigent
prisoner of the State and his exercise of a state right to sue
for his liberty is to deny that prisoner the equal protection of
the laws." Smith v. Bennett, 365 U.S. 708, 709, 6 L. Ed. 2d 39,
40, 81 S. Ct. 895, 896 (1961). However, no financial
consideration is "interposed" denying a prisoner's access to the
courts. Defendant fails to recognize that section 22-105
assesses court costs and filing fees after a filed legal document
is found to be frivolous, but not before the actual filing.
Because no financial consideration is "interposed" between a
prisoner and his access to the courts, his due process argument
under Smith must fail.
Defendant further argues the filing fee is a penalty and is
not for the purpose of recouping court fees and costs. See
People v. Greer, 212 Ill. 2d 192, 208 (2004). However, the
"penalty" a defendant is assessed is specifically comprised of
the "filing fees and actual court costs" due to any frivolous
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petition a defendant might file. 735 ILCS 5/22-105(a) (West
2004). It is an attempt by the court to defray the costs of
disposing of frivolous petitions while simultaneously
discouraging frivolous petitions. See People v. Anderson, 352
Ill. App. 3d 934, 946 (2004); see also Crocker v. Finley, 99 Ill.
2d 444, 454 (1984) (holding that court filing fees may be imposed
for purposes relating to the operation and maintenance of the courts). Accordingly, we find no due process violation in section
22-105 requiring prisoners to pay filing fees and actual court
costs for filing frivolous petitions.
Defendant finally argues that section 22-105 violates the
equal protection clause of the fourteenth amendment by targeting
"prisoners" to the exclusion of other indigent petitioners. This
court must conduct a two-step analysis in evaluating equal
protection challenges to the constitutionality of a legislative
classification. People v. Vernon, 276 Ill. App. 3d 386, 389
(1995). "[W]e must determine whether the statute in question
affects either a fundamental right or discriminates against a
suspect class." Vernon, 276 Ill. App. 3d at 389. If so, we must
apply a "strict scrutiny" test, which upholds legislation only if
it is narrowly tailored to serve a compelling interest. People
v. Laughlin, 293 Ill. App. 3d 194, 197-98 (1997). Otherwise, we
subject the statute to a more lenient "rational basis" review,
which only requires that the statutory classification "be
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rationally related to a legitimate state goal." Laughlin, 293 at
198.
First, this court has held that indigent prisoners are not a
suspect class. People v. Bonilla, 170 Ill. App. 3d 26, 34
(1988); People v. Garvin, 152 Ill. App. 3d 438, 444 (1987).
Second, although the right of access to the courts may be
fundamental (Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 78, 97 S. Ct. 1491, 1494 (1977); Tedder v. Fairman, 92 Ill. 2d
216, 222 (1982)), section 22-105 does not operate in a manner
that affects a prisoner's access to the courts. The fees and
costs are assessed only after a legal document is found to be
frivolous. The statute, at most, only impinges on a prisoner's
right to file frivolous legal documents without cost with the
court. Because no fundamental right is at issue, we will subject
the statute to a rational basis review.
As explained above, a prisoner is free to file whatever
legal documents he wishes to without being assessed an initial
filing fee. Section 22-105 assesses filing fees and costs if the
documents being filed are later found to be frivolous.
Therefore, we find that the assessments bear a rational
relationship to the State's legitimate interest in discouraging
frivolous claims and compensating the courts for the expenses of
processing and disposing of such claims. See Anderson, 352 Ill.
App. 3d at 946; see also Crocker, 99 Ill. 2d at 454.
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Accordingly, we find that fees and costs imposed under section
22-105 do not violate the equal protection clause.
We note that these exact arguments were considered and
rejected in People v. Gale, No. 1-06-0038 (September 7, 2007).
We agree with the reasoning in Gale and find that the filing fees
here were properly imposed.
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
Affirmed.
FITZGERALD SMITH, P.J., and O'MARA FROSSARD, J., concur.
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