People v. Shaw

Filed 11/26/08 NO. 4-06-0734

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
CAMERON L. SHAW, ) No. 04CF821
Defendant-Appellant. )
) Honorable
) Theodore E. Paine,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In October 2004, a jury convicted defendant, Cameron L.

Shaw, of two counts of armed robbery (720 ILCS 5/18-2 (West

2004)). The trial court later sentenced him to 10 years in

prison on each count, with those sentences to run consecutively.

In July 2006, defendant pro se filed an amended peti-

tion for postconviction relief under the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006)). In

August 2006, the trial court dismissed defendant's amended

petition, finding that it was frivolous and patently without

merit. In so finding, the court directed the circuit clerk to

mail a copy of its written order to defendant's prison warden so

that a hearing could be conducted, pursuant to section 3-6-3(d)

of the Unified Code of Corrections (Code) (730 ILCS 5/3-6-3(d)

(West 2006)), to determine whether some of defendant's good-

conduct credit should be revoked because he filed a frivolous
pleading. The Department of Corrections (DOC) later revoked 180

days of defendant's good-conduct credit.

Defendant appeals, arguing that (1) the trial court

erred by dismissing his amended petition for postconviction

relief because it stated the gist of a constitutional claim; (2)

the circuit clerk was not authorized to assess a fine against

him; (3) pursuant to Public Act 95-0585 (Pub. Act 95-0585, eff.

June 1, 2008 (2007 Ill. Legis. Serv. 5538-5542) (amending 730

ILCS 5/3-6-3(d)(2) (West 2006))), defendant's petition was not

cognizable under section 3-6-3(d) of the Code; and (4) section 3-

6-3(d) of the Code is unconstitutional. We affirm and remand

with directions.

I. BACKGROUND

In July 2004, the State charged defendant with two

counts of armed robbery (720 ILCS 5/18-2 (West 2004)), alleging

that while armed with a nine-millimeter handgun, he took currency

from employees of Huck's Convenience Store and Family Dollar by

threatening the imminent use of force.

A summary of the evidence from defendant's September

and October 2004 jury trial, which included testimony, in perti-

nent part, from (1) Decatur police detective Shane Brandel and

(2) defendant, showed the following.

Brandel testified that in July 2004, he conducted a

videotaped interview with defendant. (The jury viewed the

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video.) During the interview, defendant admitted that he robbed

Huck's after Brandel showed him photographs taken from the

store's video-surveillance system. Although defendant initially

denied committing the Family Dollar robbery, he later provided

Brandel a written statement in which he admitted that he robbed

both Huck's and Family Dollar.

Brandel acknowledged that during the interview, he (1)

told defendant that he heard that defendant stole $5,000 from the

Federal Bureau of Investigation (FBI) and (2) asked defendant,

"Don't you think [the FBI would] get upset about that kind of

thing?" Brandel stated that he might have heard about the theft

from FBI Special Agent Jeff Warren.

On re-direct examination, the following colloquy

occurred:

"[PROSECUTOR]: Detective Brandel, ***

[the] photographs from the Huck's armed rob-

bery, they were given to the television sta-

tion for broadcast?

[BRANDEL]: Yes.

[PROSECUTOR]: After the broadcast of

these photos, did you hear from anyone giving

you an indication as to the identity?

[BRANDEL]: Yes.

[PROSECUTOR]: Who was that?

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 [BRANDEL]: FBI special agent Jeff War-

ren.

[PROSECUTOR]: So, the first involvement

Jeff Warren had was when he recognized the

photo on [television] and called and told you

who it was?

[BRANDEL]: Yes.

[PROSECUTOR]: Did [Warren] have any

other involvement in this?

[BRANDEL]: No."

Defendant testified that he had a 1995 federal convic-

tion for criminal drug conspiracy. While on parole from that

conviction, defendant became a FBI confidential informant.

Defendant explained that during one assignment, his FBI handler

gave him $10,000 to purchase drugs. When the drug dealer failed

to appear, defendant returned only $5,000 to his handler.

Although defendant was not prosecuted, he stated that the FBI

"had not forgotten."

Defendant also testified that although he did not

commit the Family Dollar robbery, he admitted that he did only

after Brandel mentioned the FBI because he did not want to be

imprisoned in the federal penitentiary again. However, defendant

admitted that Brandel did not suggest that he would have to go

back to federal prison. Defendant also stated that he lied about

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committing the Huck's robbery.

The jury later convicted defendant on both counts, and

the trial court sentenced him as previously stated.

Defendant appealed, and this court affirmed. People v.

Shaw, No. 4-04-1066 (April 6, 2006) (unpublished order under

Supreme Court Rule 23).

In July 2006, defendant pro se filed an amended peti-

tion for postconviction relief under the Act. In August 2006,

the trial court dismissed defendant's petition, finding that it

was frivolous and patently without merit. In its written order,

the court directed the circuit clerk to mail a copy of its order

to defendant's prison warden "so [that] a hearing [could] be

conducted pursuant to 730 ILCS 5/3[-]6-3(d) to determine whether

up to 180 days of [defendant's] good-conduct credit should be

revoked." 730 ILCS 5/3-6-3(d) (West 2006). Following a hearing,

the prisoner review board found defendant guilty of violating

offense No. 212--frivolous lawsuit (20 Ill. Adm. Code §504 app.

A, No. 212, added at 27 Ill. Reg. 6214, 6295, eff. May 1, 2003).

DOC later revoked 180 days of defendant's good-conduct credit.

This appeal followed.

II. ANALYSIS

A. The Trial Court's First-Stage Dismissal of Defendant’s
Amended Petition for Postconviction Relief

1. Proceedings Under the Act

A defendant may proceed under the Act by alleging that

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"in the proceedings which resulted in his or her conviction there

was a substantial denial of his or her rights under the Constitu-

tion of the United States or of the State of Illinois or both."

725 ILCS 5/122-1(a)(1) (West 2006). A petition brought under the

Act is a collateral proceeding that permits inquiry only into

constitutional issues that the defendant did not raise and could

not have raised on direct appeal. People v. Blair, 215 Ill. 2d

427, 447, 831 N.E.2d 604, 617 (2005). In noncapital cases, the

Act establishes a three-stage process for adjudicating a

postconviction petition. 725 ILCS 5/122-1 through 122-8 (West

2006); People v. Jones, 213 Ill. 2d 498, 503, 821 N.E.2d 1093,

1096 (2004).

At the first stage, the trial court determines, without

input from the State, whether the petition is frivolous or

patently without merit. 725 ILCS 5/122-2.1 (West 2006). To

avoid dismissal at the first stage, the petition need only state

the gist of a constitutional claim for relief. People v. Patton,

315 Ill. App. 3d 968, 972, 735 N.E.2d 185, 189 (2000). To set

forth the "gist" of a constitutional claim, the petition need not

be detailed or set forth the claim in its entirety. People v.

Williams, 364 Ill. App. 3d 1017, 1022, 848 N.E.2d 254, 258

(2006). In considering the petition at the first stage, the

trial court may examine (1) the court file of the proceeding in

which the petitioner was convicted and (2) any action taken by

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the appellate court. The court should examine those records to

determine whether the allegations in the petition are positively

rebutted by the record. Williams, 364 Ill. App. 3d at 1022-23,

848 N.E.2d at 258.

The trial court may also dismiss claims that are (1)

barred by res judicata or (2) forfeited because the defendant

could have but did not raise them in an earlier proceeding.

Blair, 215 Ill. 2d at 444-45, 831 N.E.2d at 615-16. We review de

novo a first-stage dismissal of a petition under the Act. People

v. Little, 335 Ill. App. 3d 1046, 1051, 782 N.E.2d 957, 962

(2003).

2. Defendant's Claim That His Postconviction Petition
Stated the Gist of a Constitutional Claim

Defendant first argues that the trial court erred by

dismissing his amended petition for postconviction relief because

it contained the gist of a constitutional claim. Specifically,

defendant contends (1) a violation of his right to confront

witnesses against him guaranteed under both the United States and

Illinois Constitutions (U.S. Const., amend. VI; Ill. Const. 1970,

art. I, §2) and (2) ineffective assistance of appellate counsel

because his counsel failed to raise the confrontational clause

issue. We disagree.

"A defendant is guaranteed the right to confront the

witnesses against him by the confrontation clauses of both the

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United States and Illinois Constitutions." People v. Jura, 352

Ill. App. 3d 1080, 1084-85, 817 N.E.2d 968, 973 (2004). "Hearsay

evidence, an out-of-court statement offered to prove the truth of

the matter asserted, is generally inadmissible unless an excep-

tion applies." People v. Sullivan, 366 Ill. App. 3d 770, 779,

853 N.E.2d 754, 763 (2006). The reason for excluding hearsay is

the lack of an opportunity to cross-examine the declarant. Jura,

352 Ill. App. 3d at 1085, 817 N.E.2d at 973-74. Thus,

"'[t]estimony by a third party as to statements made by another

nontestifying party identifying an accused as the perpetrator of

a crime constitutes hearsay testimony and is inadmissible.'"

People v. Yancy, 368 Ill. App. 3d 381, 385, 858 N.E.2d 454, 457

(2005), quoting People v. Lopez, 152 Ill. App. 3d 667, 672, 504

N.E.2d 862, 866 (1987).

Defendant bases his argument that his amended petition

for postconviction relief stated the gist of a constitutional

claim on the following assertion: Brandel's testimony that Warren

identified him as the armed robber from the Huck's surveillance

photographs (1) was inadmissible hearsay and (2) violated his

right to confront Warren about his identification because Warren

did not testify at trial.

Our review of the record reveals that Brandel's testi-

mony concerned, in part, a telephone call that Brandel received

from Warren in which Warren stated that he recognized the armed

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robber from the Huck's surveillance photographs that were broad-

cast on television. However, contrary to defendant's assertion,

Brandel did not testify that Warren identified defendant as the

armed robber, either by name or otherwise. Indeed, the record

shows that Brandel did not testify to any specific statements

Warren made during the telephone call.

Moreover, even if we were to accept defendant's asser-

tion that Brandel's testimony concerning his telephone conversa-

tion with Warren was inadmissible hearsay, which we do not, the

admission of hearsay evidence is harmless error if no reasonable

probability exists that the verdict would have been different had

the hearsay been excluded. People v. Gonzalez, 379 Ill. App. 3d

941, 955, 884 N.E.2d 228, 240 (2008). Here, the evidence against

defendant was overwhelming. The jury (1) saw and heard defen-

dant's videotaped confession, (2) considered defendant's written

statement in which he admitted that he robbed both businesses,

and (3) was able to judge defendant's credibility when he testi-

fied in his own defense.

Because Brandel's statements about his telephone

conversation with Warren did not include any testimony regarding

the identity of the armed robber, Brandel's statements neither

constituted inadmissible hearsay nor violated defendant

confrontation-clause right. In addition, defendant's appellate

counsel could not have been ineffective for failing to raise a

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nonexistent confrontational-clause issue. Thus, defendant's

amended petition for postconviction relief failed to state the

gist of a constitutional violation and was properly dismissed by

the trial court as frivolous and patently without merit.

B. Defendant’s Claim That the Circuit Clerk Improperly
Imposed a Violent Crime Victims Assistance Act Fine

Defendant also argues that because the court clerk was

not authorized to impose a $25 fine under section 10(c)(1) of the

Violent Crime Victims Assistance Act (Violent Crime Act) (725

ILCS 240/10(c)(1) (West 2004)), the fine should be vacated. The

State responds that even if the circuit clerk improperly imposed

the fine, this court should remand with directions that the trial

court impose the mandatory fine. We agree with the State.

Sections 10(c)(1) and 10(c)(2) of the Violent Crime Act

provide as follows:

"When *** no other fine is imposed, the

following penalty shall be collected by the

[c]ircuit [c]ourt [c]lerk:

(1) $25, for any crime of

violence as defined in subsection

(c) of [s]ection 2 of the Crimes

Victims Compensation Act [(740 ILCS

45/2(c) (West 2004))]; and

(2) $20, for any other felony

or misdemeanor, excluding any con-

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 servation offense." 725 ILCS

240/10(c)(1), (c)(2) (West 2004).

In People v. Swank, 344 Ill. App. 3d 738, 800 N.E.2d

864 (2003), this court defined the proper role of judicial and

nonjudicial members in imposing statutory fines as follows:

"The imposition of a fine is a judicial

act. 'The clerk of the court is a nonjudi-

cial member of the court and, as such, has no

power to impose sentences or levy fines.'

[Citation.] Instead, the circuit clerk has

authority only to collect judicially imposed

fines. [Citation.]" Swank, 344 Ill. App. 3d

at 747-48, 800 N.E.2d at 871.

We first note that defendant (1) did not raise on

direct appeal or in his amended petition for postconviction

relief the claim he now seeks this court to address and (2) does

not present a constitutional question cognizable under the Act.

However, just as a void order can be attacked at any time and in

any court either directly or collaterally (People v. Thompson,

209 Ill. 2d 19, 27, 805 N.E.2d 1200, 1205 (2004)), this court

will address the merits of defendant's argument.

The record in this case shows that (1) the trial court

did not impose any fine and (2) no evidence exists that the

circuit clerk imposed a fine. However, the State concedes that

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the circuit clerk imposed a $25 fine pursuant to section 10(c)(1)

of the Violent Crime Act (725 ILCS 240/10(c)(1) (West 2004)).

Because our legislature has mandated that the trial

court--as opposed to the circuit clerk--shall impose a Violent

Crime Act fine when no other fine is assessed, we are bound to

(1) vacate the circuit clerk’s improper imposition of the fine

and (2) remand for the proper imposition of the fine by the

court. See People v. Allen, 371 Ill. App. 3d 279, 285, 868

N.E.2d 297, 302-03 (2006) (where this court vacated fines improp-

erly imposed by the circuit clerk and remanded for the proper

imposition by the trial court).

However, as the State correctly notes, armed robbery is

not included in section 2 of the Crime Victims Compensation Act

(740 ILCS 45/2(c) (West 2004)). Therefore, the proper amount of

the fine is $20 pursuant to section 10(c)(2) of the Violent Crime

Act (725 ILCS 240/10(c)(2) (West 2004)). Thus, because the

imposition of the fine is a judicial function beyond the author-

ity of the circuit clerk, we vacate the $25 fine improperly

imposed by the circuit clerk and remand for imposition of the

proper fine by the trial court.

C. Defendant's Claim That Section 3-6-3(d) of the Code Does
Not Apply to His Amended Petition for Postconviction Relief

Defendant next argues that section 3-6-3(d) of the Code

(730 ILCS 5/3-6-3(d) (West 2006)) does not apply to his amended

petition for postconviction relief. Specifically, defendant

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contends that Public Act 95-0585, which amended section 3-6-

3(d)(2) to exclude a defendant's first postconviction petition

from the definition of "lawsuit," applies to his case. There-

fore, defendant asserts that his 180 days of good-conduct credit

should be restored because he did not file "a frivolous lawsuit"

as defined by section 3-6-3(d)(2) of the Code. We disagree.

At the time (1) the trial court found defendant's

amended petition for postconviction relief was frivolous and (2)

DOC revoked defendant's good-conduct credit, sections 3-6-3(d)

and 3-6-3(d)(2) of the Code provided as follows:

"If a lawsuit is filed by a prisoner ***

and the [trial] court makes a specific find-

ing that a pleading, motion, or other paper

filed by the prisoner is frivolous, the [DOC]

shall conduct a hearing to revoke up to 180

days of good[-]conduct credit by bringing

charges against the prisoner sought to be

deprived of the good[-]conduct credits before

the [p]risoner [r]eview [b]oard ***.

For purposes of this subsection (d):

* * *

(2) 'Lawsuit' means a petition

for post[]conviction relief under

[a]rticle 122 of the Code ***."

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 730 ILCS 5/3-6-3(d)(2) (West 2006).

However, effective June 1, 2008, while defendant's appeal was

pending before this court, the legislature amended section 3-6-

3(d)(2) to exclude a defendant's initial postconviction petition

from the definition of lawsuit as follows:

"(2) 'Lawsuit' means *** a second or

subsequent petition for post[]conviction

relief under [a]rticle 122 of the Code ***

whether filed with or without leave of court

***." Pub. Act 95-0585, eff. June 1, 2008

(Ill. Legis. Serv. 5538-42) (amending 730

ILCS 5/3-6-3(d)(2) (West 2006)).

Because Public Act 95-0585 was not effective prior to defendant’s

appeal to this court, we must determine if the amendment to

section 3-6-3(d)(2) applies retroactively.

In People ex rel. Madigan v. Petco Petroleum Corp., 363

Ill. App. 3d 613, 620, 841 N.E.2d 1065, 1071 (2006), citing

People v. Atkins, 217 Ill 2d 66, 71-73, 838 N.E.2d 943, 946-48

(2005), this court discussed whether legislative amendments are

retroactive as follows:

"The [supreme] court held that when the leg-

islature has not indicated whether an amend-

ment should be applied retroactively, in

accordance with section 4 of the Statute on

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 Statutes (5 ILCS 70/4 (West 2004)), proce-

dural changes to statutes may be applied

retroactively, while substantive changes may

not. [Citation.]"

The Atkins court also explained the difference between substan-

tive and procedural amendments as follows:

"'In general, procedural law is "'[t]hat

which prescribes the method of enforcing

rights or obtaining redress for their inva-

sion; machinery for carrying on a suit.'"

[Citation.] Substantive law, in contrast,

establishes the rights whose invasion may be

redressed through a particular procedure.

More specifically, procedure embraces "plead-

ing, evidence[,] and practice. Practice

means those legal rules which direct the

course of proceedings to bring parties into

court and the course of the court after they

are brought in." [Citation.]'" Atkins, 217

Ill. 2d at 72, 838 N.E.2d at 947, quoting

Rivard v. Chicago Fire Fighters Union, Local

No. 2, 122 Ill. 2d 303, 310-11, 522 N.E.2d

1195, 1199 (1988).

In this case, the legislature's amendments to section

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3-6-3(d)(2) involve substantive changes. Specifically, the

legislature restricted the scope of the statute by eliminating a

defendant's initial frivolous pleading, rather than altering the

method for enforcing rights or the machinery for the progression

of a suit once it has commenced. See Atkins, 217 Ill. 2d at 72,

838 N.E.2d at 947 ("Substantive amendments include those that

alter the scope or the elements of a crime"). Therefore, we

conclude that (1) the legislature's amendment to section 3-6-

3(d)(2) of the Code does not apply retroactively in this case and

(2) section 3-6-3(d) before the 2008 amendment does apply to

defendant's amended postconviction petition.

D. Defendant's Claim That Section 3-6-3(d)
of the Code Is Unconstitutional

Last, defendant argues that section 3-6-3(d) of the

Code is unconstitutional. Specifically, defendant contends that

section 3-6-3(d) violates the due-process and equal-protection

clauses of the United States and Illinois Constitutions (U.S.

Const., amend. XIV; Ill. Const. 1970, art. I, §2) and chills the

right of access to the courts. We address defendant’s conten-

tions in turn.

1. The Standard of Review

The constitutionality of a statute is a question of

law, which we review de novo. People v. McCarty, 223 Ill. 2d

109, 135, 858 N.E.2d 15, 32 (2006). All statues carry a strong

presumption of constitutionality. People v. Johnson, 225 Ill. 2d

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573, 584, 870 N.E.2d 415, 421 (2007). The burden of rebutting

the presumption is on the party challenging the statute to

demonstrate a clear constitutional violation. General Motors

Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill.

2d 1, 24, 862 N.E.2d 209, 225 (2007). This court has a duty to

construe a statute as constitutional. People v. Jones, 223 Ill.

2d 569, 595-96, 861 N.E.2d 967, 983 (2006).

2. Defendant’s Claim That Section 3-6-3(d) Violates
Due-Process and Equal-Protection Guarantees

a. Challenges to the Constitutionality of a Statute

"When a statute is challenged as unconstitutional under

due process or equal protection, our analysis is essentially the

same." People v. Gale, 376 Ill. App. 3d 344, 359, 876 N.E.2d

171, 185 (2007). If the statute involves a fundamental right or

a suspect classification, we employ a strict-scrutiny analysis in

which we examine whether the statute is (1) necessary to achieve

a compelling state interest and (2) narrowly tailored to accom-

plish that interest. Gale, 376 Ill. App. 3d at 359, 876 N.E.2d

at 186; see People v. Cornelius, 213 Ill. 2d 178, 204, 821 N.E.2d

288, 304 (2004) (For a statute to "survive strict scrutiny, ***

the legislature must employ the least restrictive means consis-

tent with the attainment of the intended goal").

However, when a statute does not affect a fundamental

constitutional right or a suspect classification, the test for

determining whether the statute is constitutional is the

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rational-basis test. Wauconda Fire Protection District v.

Stonewall Orchards, LLP, 214 Ill. 2d 417, 434, 828 N.E.2d 216,

226 (2005). Under this analysis, the challenged statute must

simply bear a rational relationship to the purpose the legisla-

ture intended to achieve by enacting the law. In re J.W., 204

Ill. 2d 50, 67, 787 N.E.2d 747, 757 (2003). We need not be

concerned with the wisdom of the statute or even if it is the

best means to achieve its goal but only with whether any sort of

conceivable basis exists for finding the statute rationally

related to a legitimate state interest. Gale, 376 Ill. App. 3d

at 359, 876 N.E.2d at 186.

b. Defendant’s Claim That Section 3-6-3(d)
Violated His Due-Process Rights

Defendant contends that section 3-6-3(d) of the Code is

unconstitutional because it violates the due-process guarantees

of the United States and Illinois Constitutions. We disagree.

"Illinois inmates have a statutory right to receive

good-conduct credits, and thus[,] they have a liberty interest

entitling them to procedural safeguards under the due-process

clause of the fourteenth amendment." Lucas v. Taylor, 349 Ill.

App. 3d 995, 1000, 812 N.E.2d 72, 76 (2004). Therefore, "'some

kind of hearing is required at some time before a person is

finally deprived' of his constitutionally protected liberty

interest." Lucas, 349 Ill. App. 3d at 1003, 812 N.E.2d at 79,

quoting Wolff v. McDonnell, 418 U.S. 539, 557-58, 41 L. Ed. 2d

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935, 952, 94 S. Ct. 2963, 2975 (1974); see also Ford v. Walker,

377 Ill. App. 3d 1120, 1125, 888 N.E.2d 123, 127 (2007) (due

process during prison disciplinary proceedings requires that an

inmate be given (1) 24-hour advance notice of the hearing, (2)

the opportunity to call witnesses and present evidence consistent

with institutional safety and correctional goals, and (3) a

written statement of the evidence the fact finder relied upon to

support finding of guilt); Lucas, 349 Ill. App. 3d at 1000-03,

812 N.E.2d at 76-79 (summarizing the procedural steps before an

inmate's good-conduct credit can be revoked). Further, the

hearing on a defendant's due-process claims should be conducted

by the decision-making body empowered to perform the judicial

function involved. Rodriguez v. Illinois Prisoner Review Board,

376 Ill. App. 3d 429, 436, 876 N.E.2d 659, 666 (2007).

Defendant’s assertion that section 3-6-3(d) punishes

him by depriving him of liberty for six months for seeking

redress of his grievances in good faith (1) misconstrues (a) the

effect of the trial court’s findings under section 3-6-3(d) of

the Code and (b) the due-process rights afforded inmates deprived

of their good-conduct credit and (2) is improperly directed to

this court.

In People v. Shevock, 353 Ill. App. 3d 361, 366, 818

N.E.2d 921, 926 (2004), this court, in rejecting the defendant's

argument that the trial court denied him due process because it

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informed DOC of its frivolous finding without first giving him

the opportunity to contest the court's finding, stated the

following:

"With regard to defendant's due-process

claim, the 'judicial function involved' was

the finding that he had violated offense No.

212 (20 Ill. Adm. Code §504[] app. A, No. 212

(2003) (see 27 Ill. Reg. 6241, 6295, eff. May

[1,] 2003) and the resulting punishment of

revocation of 180 days' good-conduct credit.

That finding and punishment were not part of

the judgment in this case. The trial court's

summary dismissal of the postconviction peti-

tion served merely as the basis of a 'charge'

before DOC, the tribunal empowered to find

defendant guilty or not guilty of the DOC-

defined offense of 'frivolous pleading' (20

Ill. Adm. Code §504[] app. A, No. 212 (2003)

(see 27 Ill. Reg. 6241, 6295, eff. May 1,

2003)). If the hearing before DOC failed to

satisfy due process, defendant should have

administratively challenged that decision or

brought an appropriate action against DOC."

In this case, as in Shevock, the plain language of

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section 3-6-3(d) of the Code does not deprive defendant of any

liberty interest but, instead, merely directs the procedure that

must take place after a trial court finds a defendant's

postconviction petition is frivolous under the Act. Specifi-

cally, DOC is required to hold a hearing to determine if defen-

dant violated offense No. 212--frivolous lawsuit (20 Ill. Adm.

Code §504 app. A, No. 212, added at 27 Ill. Reg. 6214, 6295, eff.

May 1, 2003)--before DOC can revoke any good-conduct credit (730

ILCS 5/3-6-3(d) (West 2006)). Thus, any due-process violation

claims should be addressed to DOC because it is the administra-

tive agency empowered to deprive an inmate of his good-conduct

credit. Moreover, because the record does not show that defen-

dant exhausted his administrative remedies in pursuing his due-

process claims, this issue is not properly before this court.

See Ford, 377 Ill. App. 3d at 1124, 888 N.E.2d at 126-27 ("A

party aggrieved by an administrative decision cannot seek judi-

cial review unless he has first pursued all available administra-

tive remedies").

c. Defendant’s Claim That Section 3-6-3(d)
Violated His Equal-Protection Rights

Defendant contends that section 3-6-3(d) of the Code is

unconstitutional because it violates the equal-protection clauses

of the United States and Illinois Constitutions. We disagree.

Equal protection requires that the government "treat

similarly situated individuals in a similar fashion." People v.

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Carter, 377 Ill. App. 3d 91, 105, 877 N.E.2d 446, 459 (2007).

When analyzing legislation under equal protection, the level of

scrutiny depends on the type of legislative classification at

issue. People v. Botruff, 212 Ill. 2d 166, 176, 817 N.E.2d 463,

469 (2004). For purposes of equal-protection analysis, "[n]eith-

er indigent defendants nor prisoners comprise suspect classifica-

tions." Carter, 377 Ill. App. 3d at 99, 877 N.E.2d at 455; see

Botruff, 212 Ill. 2d at 176-77, 817 N.E.2d at 469 (suspect

classifications include race, national origin, gender, or ille-

gitimacy; in cases not involving these classifications, the

rational-basis test is to be used). The government may enact

legislation that draws distinctions between different categories,

but any such differentiation must be rationally related to the

legislation's purpose. People v. Mobley, 383 Ill. App. 3d 89,

93, 890 N.E.2d 673, 677 (2008). If the court finds any set of

facts that justify the legislature's differing classifications,

the statute will not be construed as violating the equal-protec-

tion clause of the constitution. Wauconda Fire Protection

District, 214 Ill. 2d at 434, 828 N.E.2d at 226.

Contrary to defendant's assertion that the operation of

section 3-6-3(d) of the Code furthers no valid governmental

interest, the State has a legitimate interest in ensuring that

its courts are not overburdened with frivolous litigation. By

enacting various statutory provisions, the legislature has made

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clear that, while it is willing to offer certain types of relief

to inmates beyond their trials and appeals, it is "concerned with

the number of frivolous petitions that may be filed seeking such

relief which, in turn, impacts the efficiency of our courts and

the effectiveness of our administrative process." Gale, 376 Ill.

App. 3d at 360, 876 N.E.2d at 187; see Tubwell v. Anderson, 776

So. 2d 654, 660 (Miss. 2000) (where the Supreme Court of Missis-

sippi rejected a defendant's claim that the statute that deprived

him of good-conduct credit for filing a frivolous claim violated

the equal-protection clause of the United States Constitution

because it was directed toward inmates). Thus, because (1)

prisoners are not considered a suspect classification for equal-

protection purposes and (2) the challenged statute bears a

rational relationship to the purpose the legislature intended to

achieve, section 3-6-3(d) of the Code does not violate defen-

dant's equal-protection rights.

3. Defendant’s Claim That Section 3-6-3(d) Chills
the Right of Access to the Courts

Defendant contends that section 3-6-3(d) of the Code is

unconstitutional because it "chills" the right of access to the

courts by punishing court filings that are made in good faith and

in an orderly way. We disagree.

"The constitutional right of access to the courts

requires only that inmates be assisted in preparing and filing

meaningful legal papers by providing them with adequate law

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libraries or assistance from persons trained in [the] law." Helm

v. Washington, 308 Ill. App. 3d 255, 260, 720 N.E.2d 326, 329

(1999). To establish a violation of the right to access to the

courts, an inmate must prove that he suffered an actual injury,

defined as prejudice to existing or impending litigation. Hadley

v. Snyder, 335 Ill. App. 3d 347, 354, 780 N.E.2d 316, 323 (2002);

see Murillo v. Page, 294 Ill. App. 3d 860, 866, 690 N.E.2d 1033,

1039 (1998) (an inmate must allege that the prison authorities'

conduct disrupted or delayed his pending or contemplated litiga-

tion in asserting a violation of his right to access the courts).

In support of his contention, defendant relies on the

United States Supreme Court's holding in Johnson v. Avery, 393

U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969). However, Avery

does not offer defendant any support. In Avery, 393 U.S. at 490,

21 L. Ed. 2d at 724, 89 S. Ct. at 751, the Supreme Court invali-

dated a Tennessee prison regulation that barred inmates from

assisting other inmates in preparing postconviction petitions.

In this case, defendant does not assert that (1) he was

deprived of legal assistance, (2) prison officials disrupted or

delayed his ability to file a claim, or (3) he suffered prejudice

to existing or impending litigation.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment and remand with directions that the trial court impose

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the proper Violent Crime Act fine.

Affirmed and remanded with directions.

KNECHT and COOK, JJ., concur.

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