ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Williams, 2011 IL App (3d) 100142
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DERRICK D. WILLIAMS, Defendant-Appellant.
District & No. Third District
Docket No. 3-10-0142
Filed December 1, 2011
Held Although defendant could raise a claim for monetary credit for his
(Note: This syllabus presentence incarceration on an appeal from the denial of his
constitutes no part of postconviction, he could not apply his presentence credit against the $200
the opinion of the court DNA analysis fee, since the credit may not be levied against a fee, only
but has been prepared a fine.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Warren County, No. 06–CF–100; the
Review Hon. David L. Vancil, Judge, presiding.
Judgment Affirmed.
Counsel on Jacqueline L. Bullard, of State Appellate Defender’s Office, of
Appeal Springfield, for appellant.
Albert G. Algren, State’s Attorney, of Monmouth (Terry A. Mertel and
Dawn D. Duffy, both of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justice Holdridge specially concurred, with opinion.
Justice Wright dissented, with opinion.
OPINION
¶1 The defendant, Derrick D. Williams, was sentenced to concurrent prison terms of 35
years for attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)), 15 years
for home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), and 6 years for armed robbery
(720 ILCS 5/18-2(a)(2) (West 2006)). The defendant appeals the dismissal of his successive
postconviction petition. He argues that the trial court erred when it did not apply his $5-per-
day custody credit toward his $200 deoxyribonucleic acid (DNA) analysis. 730 ILCS 5/5-4-
3(j) (West 2006). We affirm.
¶2 Following the defendant’s convictions, he was ordered to pay a $200 DNA analysis fee.
The defendant was in custody from July 22, 2006, until he was sentenced on November 9,
2006. After sentencing, the defendant filed a direct appeal. While the defendant’s direct
appeal was pending, he filed a postconviction petition. The trial court dismissed the
defendant’s postconviction petition. Thereafter, we issued our order on the defendant’s direct
appeal. People v. Williams, No. 3-06-0838 (2008) (unpublished order under Supreme Court
Rule 23).
¶3 On November 2, 2009, the defendant filed a successive postconviction petition without
leave of the court. The court denied the petition, and the defendant appealed.
¶4 On appeal, the defendant argues that the trial court should have applied his $5-per-day
credit toward his $200 DNA assessment.
¶5 The State argues that we should not grant the defendant’s request because he failed to
seek leave of the court to file a successive postconviction petition and he does not meet the
cause and prejudice requirements. Further, the State urges us to adopt the reasoning in People
v. Tolliver, 363 Ill. App. 3d 94 (2006), which held that the $200 DNA analysis fee is not a
fine and therefore is not compensable by the presentencing credit.
¶6 A defendant is allowed $5 for each day he is incarcerated but does not supply bail before
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sentencing. 725 ILCS 5/110-14 (West 2006). “[A] claim for per diem monetary credit
conferred by section 110-14 of the Code of Criminal Procedure of 1963 is a statutory right
[citation] and is not cognizable under the Post-Conviction Hearing Act.” People v.
Caballero, 228 Ill. 2d 79, 87 (2008). However, section 110-14 does not specify the time
frame or procedural stage during which an application for credit can be made. Granting the
credit on the appeal of a postconviction petition is “ ‘a simple ministerial act that will
promote judicial economy by ending any further proceedings over the matter.’ ” People v.
Woodard, 175 Ill. 2d 435, 456-57 (1997) (quoting People v. Scott, 277 Ill. App. 3d 565, 566
(1996)). Therefore, defendant may raise his claim for monetary credit on the appeal of his
postconviction petition because the basis for granting the relief is clear and available from
the record. See Caballero, 228 Ill. 2d 79.
¶7 Next, we look to whether the DNA assessment was a fee or a fine, as the credit may be
levied against a fine but not a fee. 725 ILCS 5/110-14 (West 2006). A fine “ ‘is a part of the
punishment for a conviction, whereas a “fee” or “cost” seeks to recoup expenses incurred by
the State *** in prosecuting the defendant.’ ” People v. Long, 398 Ill. App. 3d 1028, 1032
(2010) (quoting People v. Jones, 223 Ill. 2d 569, 582 (2006)). Our supreme court explained
in People v. Marshall, 242 Ill. 2d 285, 296 (2011), that the DNA analysis fee “is intended
to cover the costs of the DNA analysis.” From Marshall, the Second District reasoned that
the DNA analysis fee is not imposed on a defendant as punishment, but is used to “cover the
costs incurred in collecting and testing a DNA sample that is taken from a defendant
convicted of a qualifying offense.” People v. Guadarrama, 2011 IL App (2d) 100072, ¶ 13.
We agree with the Second District that the DNA analysis fee is better characterized as a fee
and not a fine. Thus, we find that the defendant could not apply his presentencing credit to
satisfy his $200 DNA analysis fee.
¶8 The judgment of the circuit court of Warren County is affirmed.
¶9 Affirmed.
¶ 10 JUSTICE HOLDRIDGE, specially concurring:
¶ 11 I agree with the majority’s judgment and analysis. I write separately to further clarify why
I believe the $200 DNA analysis assessment required by section 5-4-3(j) of the Unified Code
of Corrections (Code) is a fee rather than a fine. 730 ILCS 5/5-4-3(j) (West 2006). First, it
is labeled a “fee” in the statute. Id. Although the supreme court has ruled that the label used
by the legislature is not necessarily controlling (People v. Graves, 235 Ill. 2d 244, 250
(2009)), it has noted that the legislature’s label is “strong evidence” of whether a particular
charge is a fee or a fine. (Internal quotation marks omitted.) Id. Thus, where the “actual
attributes” of the charge do not suggest that the legislature’s label is mistaken, I believe we
should assume that the legislature meant what it said. (Internal quotation marks omitted.) See
id.
¶ 12 Here, nothing about the DNA analysis assessment suggests that it is a fine. As the
majority notes, a fine is punitive, whereas a fee is compensatory. See supra ¶ 7; see also
Graves, 235 Ill. 2d at 250. Thus, a charge is a fee if it “seeks to compensate the state for any
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costs incurred as the result of prosecuting the defendant.” (Emphasis added.) Id. The DNA
analysis charge is a “cost incurred as the result of” the defendant’s prosecution and
conviction. Every person convicted of certain qualifying offenses is required to submit
specimens of blood, saliva, or tissue for DNA analysis. 730 ILCS 5/5-4-3(a)(1) (West 2006).
The statute does not require all citizens to submit DNA for analysis. Rather, only those
charged with and convicted of qualifying offenses must do so. Thus, the cost of analyzing
and cataloguing the defendant’s DNA in this case was incurred as a result of this prosecution
and conviction. See, e.g., People v. Anthony, 408 Ill. App. 3d 799, 809 (2011) (holding that
the DNA analysis charge is a fee rather than a fine because it “reimburses the State for the
expense of operating a system under which this defendant’s DNA profile was required to be
processed and analyzed as a result and collateral consequence of this prosecution and
conviction”).
¶ 13 In People v. Long, 398 Ill. App. 3d 1028 (2010), our appellate court held that the DNA
analysis assessment is a fine. However, in my view, Long is not persuasive. Long ruled that
the DNA assessment is not a fee because section 5-4-3(k)(3) provides that money from the
DNA analysis assessment may be used “to form, maintain, and improve a DNA database of
Illinois criminals” and because that section “contains no language indicating the DNA-
analysis assessment is to be used to pay for the analysis of the specimen of the particular
defendant required to submit a specimen.” Long, 398 Ill. App. 3d at 1034. However, the fact
that the legislature allows the funds collected through the imposition of the DNA analysis
fee to be used to finance the entire DNA database (rather than merely to fund the cost of
analyzing the defendant’s DNA) does not change the compensatory nature of the fee. As
noted above, the fee “reimburses the State for the expense of operating a system under which
this defendant’s DNA profile was required to be processed and analyzed as a result *** of
this prosecution and conviction.” Anthony, 408 Ill. App. 3d at 809. Those expenses were
incurred as the result of the defendant’s conviction and the convictions of all others who
were convicted of qualifying offenses. Moreover, even if the State is overcharging convicted
felons for the cost of analyzing their DNA, that fact would not change the nature of the fee.
¶ 14 In any event, as the majority notes, the supreme court’s recent decision in People v.
Marshall, 242 Ill. 2d 285, 296 (2011), has resolved this issue. In Marshall, the supreme court
stated that the DNA analysis assessment is intended to cover the costs of analyzing a
defendant’s DNA and held that a trial court may order a defendant to submit a DNA sample
and pay the $200 assessment “only where [the] defendant is not currently registered in the
DNA database.” Id. at 296, 303. Although Marshall did not explicitly decide whether the
DNA assessment is a fine or a fee, the supreme court’s reasoning in Marshall compels the
conclusion that it is a compensatory fee rather than a punitive sanction. Thus, in my view,
Long is no longer good law. See People v. Stuckey, 2011 IL App (1st) 092535, ¶ 36
(declining to follow Long in light of Marshall).
¶ 15 JUSTICE WRIGHT, dissenting:
¶ 16 In this case, defendant did not request leave of the court to file his successive
postconviction petition, despite the fact that a defendant is required to do so. 725 ILCS
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5/122-1(f) (West 2008); People v. LaPointe, 227 Ill. 2d 39, 42 (2007). Even if the court had
granted defendant leave to file this successive postconviction petition, the record reveals that
the issues raised in that postconviction petition related to claims of ineffective assistance of
counsel and did not challenge the amount of monetary credit defendant received toward court
ordered fines, including the DNA analysis fee.
¶ 17 This issue was not included in defendant’s successive postconviction petition and was
not addressed by the trial court when dismissing that petition. Therefore, this court should
not consider whether defendant is entitled to receive monetary credit toward his DNA
analysis fee as the issue has been waived. See People v. Jones, 213 Ill. 2d 498, 508 (2004).
I would affirm the trial court’s decision.
¶ 18 For these reasons, I respectfully dissent.
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