{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TUCKER, Defendant (The Department of Corrections, Defendant-Appellant)",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TUCKER, Defendant (The Department of Corrections, Defendant-Appellant)."
    ],
    "opinions": [
      {
        "text": "JUSTICE WOMBACHER\ndelivered the opinion of the court:\nThe Department of Corrections (the Department) appeals from a trial court order directing it to pay the fees of an attorney appointed to represent the defendant, Robert Tucker, in his post-conviction petition. The defendant\u2019s petition arose out of his conviction for murdering a fellow inmate while incarcerated in the Department\u2019s Stateville Correctional Center. After the trial court dismissed the petition, appointed counsel filed a claim for $436.80 in attorney fees. The court ordered the County of Will to advance the fees to counsel and further ordered the Department to reimburse the county in full.\nThe Department acknowledges that under section 3 \u2014 6\u20145 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003\u2014 6 \u2014 5), it is liable for the expenses of prosecuting inmates who commit crimes while incarcerated in any of the Department\u2019s facilities. (See People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24, 219 N.E.2d 337.) It argues on appeal, however, that the expense of an attorney appointed to represent an indigent defendant in a post-conviction proceeding is not an expense of prosecution and the Department therefore is not liable for it.\nSection 3 \u2014 6\u20145 of the Code of Corrections provides in pertinent part:\n\u201cWhen any person is charged with committing an offense while confined by the [Department of Corrections], *** [t]he expense of prosecution shall be paid by the Department.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 1003-6-5.\nThe Department contends that the Criminal Code of 1961\u2019s definition of \u201cprosecution\u201d shows that the legislature did not intend to include post-conviction proceedings in \u201cexpenses of prosecution.\u201d Section 2 \u2014 16 of the Criminal Code provides:\n\u201c \u2018Prosecution\u2019 means all legal proceedings by which a person\u2019s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 2 \u2014 16.)\nThe Department focuses on the word \u201cliability,\u201d arguing that post-conviction proceedings do not determine a person\u2019s liability for a charged offense. Rather, they are new proceedings limited to a consideration of constitutional claims. (People v. Vail (1970), 46 Ill. 2d 589, 264 N.E.2d 201.) The Department also notes that in a post-conviction proceeding the defendant initiates the proceeding, not the State. Further, states the Department, the United States Supreme Court has held that post-conviction relief is not part of the criminal proceeding itself and is in fact considered to be civil in nature. Pennsylvania v. Finley (1987), 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990.\nWe find the Department\u2019s position unpersuasive. While post-conviction proceedings are often termed \u201ccivil in nature,\u201d in fact they do not fall strictly into the category of civil or criminal. (People v. Wilson (1967), 37 Ill. 2d 617, 230 N.E.2d 194.) In these proceedings, the defendant attacks the constitutionality of the underlying conviction (People v. Derengowski (1970), 44 Ill. 2d 476, 256 N.E.2d 455) and asks the trial court to enter a modifying order, including rearraignment, retrial, custody, bail or discharge. (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 6.) The State\u2019s Attorney is actively involved in working to affirm the defendant\u2019s conviction. The defendant need not have exhausted his right of direct appeal before filing a post-conviction petition. People v. Edsall (1981), 94 Ill. App. 3d 469, 418 N.E.2d 943.\nA post-conviction petition arises out of and is inextricably tied to the conviction. In fact, but for the underlying prosecution, there would be no post-conviction proceeding. The Kansas Supreme Court has pointed out the artificiality of distinguishing between the criminal case and the post-conviction attack. In Stahl v. Board of County Com missioners (1967), 198 Kan. 623, 426 P.2d 134, an attorney was appointed to represent an indigent prisoner on a post-conviction attack. A Kansas statute provided that the county was to pay the costs of defending indigent persons charged with crimes. The Kansas Supreme Court found that although the post-conviction proceeding was provided for in the civil code and was technically a civil proceeding, functionally, it was part of the total review process of the criminal cause from which the proceeding arose. Accordingly, the court ruled that the county should pay the costs of appointed counsel.\nExamination of the instant statute in light of the overall legislative purpose supports the conclusion that the expenses of post-conviction proceedings are the Department\u2019s responsibility. Section 3 \u2014 6\u2014 5 is part of a larger statutory scheme to relieve counties of the financial burden of having State institutions located in them. For example, in counties in which State mental health institutions are located, the legislature provides additional funding for an assistant State\u2019s Attorney to help handle the increased work load. (Ill. Rev. Stat. 1987, ch. 53, par. 7(c).) Similar provisions are made for counties with State correctional institutions (Ill. Rev. Stat. 1987, ch. 53, par. 7(e)), and for coimties with State senior institutions of higher education (Ill. Rev. Stat. 1987, ch. 53, par. 7(f)). Nothing in section 3 \u2014 6\u20145 indicates that the legislature singled out the expenses of post-conviction proceedings and inexplicably determined that the counties should bear them.\nWe conclude that the legislature intended to include post-conviction petitions as an \u201cexpense of prosecution.\u201d We therefore affirm the order of the trial court assessing the post-conviction attorney fees to the Department.\nThe judgment of the circuit court of Will County is affirmed.\nAffirmed.\nSTOUDER, P.J., and BARRY, J., concur.",
        "type": "majority",
        "author": "JUSTICE WOMBACHER"
      }
    ],
    "attorneys": [
      "Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Michele I. Lavin and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for appellant.",
      "Edward F. Masters, State\u2019s Attorney, of Joliet (Terry A. Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TUCKER, Defendant (The Department of Corrections, Defendant-Appellant).\nThird District\nNo. 3-88-0111\nOpinion filed January 24, 1989.\nNeil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Michele I. Lavin and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for appellant.\nEdward F. Masters, State\u2019s Attorney, of Joliet (Terry A. Mertel, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0838-01",
  "first_page_order": 860,
  "last_page_order": 863
}