People v. Unander

NO. 4-09-0411 Filed 9/28/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ANTOINE T. UNANDER, ) No. 08CF948
Defendant-Appellant. )
) Honorable
) Heidi N. Ladd,
) Judge Presiding.
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING

JUSTICE POPE delivered the opinion of the court:

In October 2008, defendant, Antoine T. Unander, pleaded

guilty to residential burglary (720 ILCS 5/19-3 (West 2008)). In

January 2009, the trial court sentenced defendant to 15 years’

imprisonment with 236 days’ sentence credit and ordered him to

pay all fines, fees, and costs.

Defendant appeals, arguing (1) the trial court erred in

failing to apply defendant’s presentence credit toward his $5

drug-court fee, (2) the $200 deoxyribonucleic-acid (DNA)

assessment was improper, (3) the $10 Arrestee’s Medical Costs

Fund assessment was improper, and (4) the $20 Violent Crime

Victims Assistance Fund assessment (VCVA) should be reduced to

$4. We affirm as modified and remand with directions.

I. BACKGROUND

On May 20, 2008, the State charged defendant by

information with residential burglary.

On October 29, 2008, defendant pleaded guilty to
residential burglary. In exchange for defendant’s plea, the

State agreed not to charge him with additional conduct contained

in the police reports and to cap its sentencing recommendation at

15 years’ imprisonment.

On January 9, 2009, the trial court sentenced defendant

to 15 years’ imprisonment, with 236 days’ sentence credit. The

court also ordered the following:

"[Defendant] is to pay all fines, fees,

and costs as authorized by statute. He is to

receive a credit of any fine that is to be

imposed for time served although I don’t

believe there is any here. If he has not

already done so, he must submit a specimen of

blood, saliva, or tissue to the Illinois

Department of State Police in accordance with

the statute for DNA sampling and then he

would be required to pay a $200 genetic[-]

marker[-]grouping[-]analysis fee."

The supplement to the record contains a certified copy

of defendant’s fines, fees, and costs and shows, inter alia, a

$200 DNA assessment, a $5 drug-court fee, a $10 Arrestee’s

Medical Costs Fund fee, and a $20 VCVA fee.

On January 16, 2009, defendant pro se filed a motion to

reconsider sentence.

On May 19, 2009, defendant’s trial counsel filed an

amended motion to reconsider sentence, which the trial court

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denied.

This appeal followed.

II. ANALYSIS

On appeal, defendant argues (1) the trial court erred

in omitting time-served credit against defendant’s $5 drug-court

fee, (2) the $200 DNA-analysis fee was improper where it had

already been assessed in three of his prior cases, (3) the $10

Arrestee’s Medical Costs Fund assessment was improper where no

medical costs were incurred as a result of defendant’s arrest,

and (4) once the $200 DNA-analysis fee is vacated, the $20 VCVA

assessment should be reduced to $4.

A. $5-Per-Day Credit

Defendant argues, and the State concedes, defendant

should receive monetary credit for time spent in custody against

the $5 drug-court fee imposed by the trial court pursuant to

section 5-1101(f)(2) of the Counties Code (55 ILCS 5/5-1101(f)(2)

(West 2008)).

Section 110-14(a) of the Code of Criminal Procedure of

1963 (Procedure Code) provides the following:

"Any person incarcerated on a bailable

offense who does not supply bail and against

whom a fine is levied on conviction of such

offense shall be allowed a credit of $5 for

each day so incarcerated upon application of

the defendant." 725 ILCS 5/110-14(a) (West

2008).

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 In this case, it is undisputed defendant was

incarcerated 236 days on a bailable offense. As a result,

defendant has $1,180 in available credit against fines. The

State concedes the $5 drug-court "fee" is actually a fine because

the record does not show it was sought to reimburse the State for

any cost incurred as a result of prosecuting defendant. We

accept the State’s concession and agree.

The central characteristic separating a fee from a fine

is how the attributes of the charge are to be used. See People

v. Paige, 378 Ill. App. 3d 95, 102, 880 N.E.2d 675, 682 (2007).

"[A] 'charge is a fee if and only if it is intended to reimburse

the state for some cost incurred in [the] defendant’s prosecu-

tion. [Citations.]'" Paige, 378 Ill. App. 3d at 102, 880 N.E.2d

at 682, quoting People v. Jones, 223 Ill. 2d 569, 600, 861 N.E.2d

967, 986 (2006). The revenue from the charges imposed under

section 5-1101(f)(2) are intended to be used "for the operation

and administration of the drug court" (55 ILCS 5/5-1101(f) (West

2008)) and not to reimburse the State for costs incurred as a

result of prosecuting defendant, who was not transferred to drug

court. As a result, the $5 assessment is a fine. Because the

assessment is a fine, defendant is entitled to apply his $1,180

available credit toward that assessment.

B. Analysis Fee

Defendant argues the $200 DNA-analysis fee (730 ILCS

5/5-4-3(j) (West 2008)) was improper because it had already been

assessed in three of his prior cases. The State argues each time

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a defendant is convicted of a felony he must pay the $200 assess-

ment even where he has previously surrendered a DNA sample.

During defendant’s January 2009 sentencing hearing, the

trial court ordered the following:

"If [defendant] has not already done so, he

must submit a specimen of blood, saliva, or

tissue to the Illinois Department of State

Police in accordance with the statute for DNA

sampling and then he would be required to pay

a $200 genetic[-]marker[-]grouping[-]analysis

fee." (Emphasis added.)

Defendant contends his presentence investigation report

(PSI) shows he has previously been ordered to submit a DNA sample

and to pay the $200 analysis fee in connection with three prior

and unrelated felony cases.

In People v. Evangelista, 393 Ill. App. 3d 395, 912

N.E.2d 1242 (2009), the Second District found the $200 DNA-

analysis fee was improper where the defendant had already pro-

vided a DNA sample in conjunction with one of his prior convic-

tions. Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at 1246.

The court reasoned "the obvious purpose of the statute is to

collect from a convicted defendant a DNA profile to be stored in

a database." Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at

1246. "Once a defendant has submitted a DNA sample, requiring

additional samples would serve no purpose." Evangelista, 393

Ill. App. 3d at 399, 912 N.E.2d at 1246. As a result, the court

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vacated the assessment. Evangelista, 393 Ill. App. 3d at 402,

912 N.E.2d at 1248.

In this case, the trial court ordered defendant to

submit a sample and to pay the fee in the event he had not

already done so. Defendant’s PSI shows he has previously been

ordered to do so. The State argues Evangelista is distinguish-

able from this case because the evidence clearly established the

defendant there had previously provided a DNA sample. See

Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at 1246. We

note the State’s brief was filed on May 26, 2010. Thereafter,

defendant moved to supplement the record with evidence showing he

submitted a DNA sample for analysis on October 10, 2003, in

connection with a prior conviction. On June 9, 2010, we allowed

defendant’s motion.

Section 5-4-3 of the Unified Code of Corrections

(Unified Code) mandates all felons submit a DNA sample for

profiling and entry into a computer database. See 730 ILCS 5/5-

4-3 (West 2008). "Any person required *** to submit [a DNA

sample] for analysis and categorization into genetic marker

grouping *** shall pay an analysis fee of $200." 730 ILCS 5/5-4-

3(j) (West 2008).

The statute requires an analysis fee in association

with the collection of a DNA sample. 730 ILCS 5/5-4-3(j) (West

2008). It mandates any person required to submit a DNA sample

for analysis shall pay an analysis fee of $200. 730 ILCS 5/5-4-

3(j) (West 2008). If no analysis is to take place--because no

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sample was ordered to be provided--then there can be no analysis

fee.

We note the First District in People v. Grayer, No. 1-

09-0021, slip op. at 7 (August 24, 2010), ___ Ill. App. 3d ___,

___, ___ N.E.2d ___, ___, recently held the $200 DNA-analysis fee

may be assessed upon any felony conviction regardless of whether

it was previously assessed. The Grayer court reasoned a person

convicted of a subsequent felony is just as much a convicted

felon and thus just as required to submit a DNA sample as a

person convicted for the first time. Grayer, slip op. at 6, ___

Ill. App. 3d at ___, ___ N.E.2d at ___; see People v. Marshall,

402 Ill. App. 3d 1080, 1083, 931 N.E.2d 1271, 1273 (Third Dis-

trict) ("[n]owhere in the statute did the legislature provide

that a convicted felon should be excused from the statute’s

mandates if his DNA is already in the database").

However, we find the instant case distinguishable.

Here, the trial court stated if defendant had not already done

so, he was to submit a DNA specimen and pay the $200 DNA-analysis

fee. Because defendant had already done so, the court was not

requiring him to submit a specimen or pay the fee. Because he

was not required to submit the specimen, he was not required to

pay the fee. Considering the plain language of the statute, the

Second District’s reasoning in Evangelista, and the trial court’s

conditional order of the DNA-analysis fee, we see no reason for

the imposition of the DNA-analysis fee in this case. Accord-

ingly, we vacate the $200 DNA-analysis fee.

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 C. Arrestee’s Medical Charge

Defendant argues the trial court should not have

imposed upon him a $10 Arrestee’s Medical Costs Fund assessment.

Specifically, defendant contends the fee’s imposition was im-

proper because the record does not show he suffered any injury

during his arrest or that the county incurred any medical ex-

penses while he was in jail. As a result, defendant maintains

the $10 fee should be vacated.

The State argues all defendants convicted of criminal

violations are required to pay the fee, even where the defendant

did not suffer an injury or receive any medical services.

Section 17 of the County Jail Act (Act) (730 ILCS

125/17 (West 2006)) provides, in part, the following:

"The county shall be entitled to a $10

fee for each conviction or order of supervi-

sion for a criminal violation, other than a

petty offense or business offense. The fee

shall be taxed as costs to be collected from

the defendant, if possible, upon conviction

or entry of an order of supervision. The fee

shall not be considered a part of the fine

for purposes of any reduction in the fine.

All such fees collected shall be depos-

ited by the county in a fund to be estab-

lished and known as the Arrestee’s Medical

Costs Fund [(Fund)]. Moneys in the Fund

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 shall be used solely for reimbursement of

costs for medical expenses relating to the

arrestee while he or she is in the custody of

the sheriff and administration of the Fund."

Defendant argues the plain language of the statute

contemplates imposition of the fee against only those defendants

who were injured in the course of their arrest and incurred

expenses for medical treatment. However, the statute’s plain

language does not place conditions on the county’s right to the

fee. See Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d at

1247. Instead, section 17 of the Act contains an unqualified

statement the county is entitled to $10 for each conviction other

than a conviction for a petty offense or business offense. See

Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d at 1246-47. The

plain language of the statute does not indicate the collection of

the fee is dependent upon the Fund’s actual use for defendant’s

medical care. Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d

at 1247. As a result, the county is entitled to $10 for each

conviction and not just for each conviction of a defendant for

whom the county has purchased medical treatment. Evangelista,

393 Ill. App. 3d at 400, 912 N.E.2d at 1247; see also People v.

Jones, 397 Ill. App. 3d 651, 662, 921 N.E.2d 768, 776 (2009)

(sixth division of the First District holding the plain language

of the statute does not place any restrictions on a county’s

right to the $10 fee); but cf. People v. Cleveland, 393 Ill. App.

3d 700, 714, 913 N.E.2d 646, 658 (2009) (first division of the

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First District vacating the $10 fee because the evidence did not

show the defendant underwent medical treatment for injuries

suffered during his arrest).

In addition, we note in Public Act 95-842, effective

August 15, 2008, the legislature amended section 17 of the Act.

Pub. Act 95-842, §5, eff. August 15, 2008 (2008 Ill. Laws 1450,

1450) (amending 730 ILCS 125/17 (West 2006)). The amended

version of the Act provides the following:

"All such fees collected shall be depos-

ited by the county in a fund to be estab-

lished and known as the County Jail Medical

Costs Fund [(Fund)]. Moneys in the Fund

shall be used solely for reimbursement to the

county of costs for medical expenses and

administration of the Fund." 730 ILCS 125/17

(West 2008).

The amended version replaces "reimbursement of costs for medical

expenses relating to the arrestee while he or she is in the

custody of the sheriff" with "reimbursement to the county of

costs for medical expenses." Pub. Act 95-842, §5, eff. August

15, 2008 (2008 Ill. Laws 1450, 1451). In addition the amendment

changes the title of the fund from the "Arrestee’s Medical Costs

Fund" to the "County Jail Medical Costs Fund." Pub. Act 95-842,

§5, eff. August 15, 2008 (2008 Ill. Laws 1450, 1451).

While we recognize the preamended version of the Act

applies in this case (defendant’s offense occurred May 7, 2008,

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prior to the amendment’s August 15, 2008, effective date), the

amendment makes clear the legislature’s intention that the fee be

collected regardless of whether a defendant incurs any injury.

Moreover, the amended language reinforces the reasoning in

Evangelista, which was decided under the preamended verison.

Accordingly, the trial court did not err in assessing defendant

the $10 Arrestee’s Medical Costs Fund fee.

Alternatively, defendant argues the $10 assessment is a

fine and not a fee and as such should be offset by his $5-per-day

credit under section 110-14(a) of the Procedure Code. See 725

ILCS 5/110-14(a) (West 2008).

However, whether the $10 assessment is a fine or fee

makes no difference in this case because section 17 of the Act

explicitly provides "[t]he fee shall not be considered a part of

the fine for purposes of any reduction in the fine." 730 ILCS

125/17 (West 2008). Thus, defendant is not entitled to apply his

$1,180 available credit against this particular fee. See People

v. Elcock, 396 Ill. App. 3d 524, 540 n.2, 919 N.E.2d 984, 996 n.2

(2009) (Second District: "We note that the arrestee’s medical

costs fee is not covered by presentencing custody credit"); see

also People v. Winford, 383 Ill. App. 3d 1, 7, 889 N.E.2d 1181,

1186 (2008) (First District, finding presentencing credit may not

be used toward a $5 fee imposed under section 5-9-1.1(c) of the

Unified Code (730 ILCS 5/5-9-1.1(c) (West 2004)) because that

section specifies the $5 fee "'shall not be considered a part of

the fine for purposes of any reduction in the fine for time

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served either before or after sentencing'"), quoting 730 ILCS

5/5-9-1.1(c) (West 2004).

D. $20 VCVA Assessment

Defendant argues the $20 VCVA fine should be reduced to

$4. The State concedes remand is necessary. However, the State

argues we should remand for the imposition of a $24 VCVA fine.

Pursuant to section 10(c)(2) of the Violent Crime

Victims Assistance Act, the $20 VCVA assessment defendant re-

ceived is to be imposed only where the defendant is convicted of

a qualifying felony--in this case, residential burglary--and no

other fine is imposed. See 725 ILCS 240/10(c)(2) (West 2008).

In this case, we have vacated the $200 DNA-analysis

fee, leaving in place the $5 drug-court and $10 Arrestee’s

Medical Costs Fund assessments. As stated, the $5 drug-court

assessment is a fine because the record does not show it was

sought to reimburse the State for any costs incurred in defen-

dant’s prosecution. See Paige, 378 Ill. App. 3d at 102, 880

N.E.2d at 682.

Where another fine is imposed, section 10(b) of the

Procedure Code requires "there shall be an additional penalty

collected *** upon conviction *** of $4 for each $40, or fraction

thereof, of fine imposed." 725 ILCS 240/10(b) (West 2008). In

this case, the drug-court fine is $5. Accordingly, defendant’s

VCVA assessment should be modified to $4 because the remaining

fine totals less than $40. See 725 ILCS 240/10(b) (West 2008).

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 III. CONCLUSION

For the reasons stated, we vacate the $200 DNA-analysis

fee and the $20 VCVA fine. We remand for the application of

defendant’s $1,180 available credit toward the $5 drug-court fee

and a reduction of the VCVA assessment to $4. We otherwise

affirm the trial court's judgment. Because the State success-

fully defended a portion of the criminal judgment, we grant the

State its $50 statutory assessment against defendant as costs of

this appeal. See People v. Smith, 133 Ill. App. 3d 613, 620, 479

N.E.2d 328, 333 (1985), citing People v. Nicholls, 71 Ill. 2d

166, 178, 374 N.E.2d 194, 199 (1978).

Affirmed as modified; cause remanded with directions.

McCULLOUGH, J., concurs.

MYERSCOUGH, P.J., specially concurs in part and dis-

sents in part.

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 PRESIDING JUSTICE MYERSCOUGH, specially concurring in

part and dissenting in part:

I respectfully specially concur in part and dissent in

part. The $200 DNA-analysis fee is mandatory and should not have

been made conditional by the trial court. I concur in the rest

of the disposition but would, in keeping with Grayer, No. 1-09-

0021, ___ Ill. App. 3d ___, ___ N.E.2d ___, assess the $200 DNA-

analysis fee and require the additional testing.

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