People v. Long

NO. 4-08-0914 Filed: 2-4-10
Modified: 3-23-10
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
SHATEZ L. LONG, ) No. 08CF1101
Defendant-Appellant. )
) Honorable
) Heidi Ladd,
) Judge Presiding.
_________________________________________________________________

MODIFIED UPON DENIAL OF REHEARING

JUSTICE TURNER delivered the opinion of the court:

In June 2008, the State charged defendant, Shatez L.

Long, by information with one count of aggravated battery (720

ILCS 5/12-4(b)(18) (West Supp. 2007) (as amended by Pub. Act

95-429, §5, eff. January 1, 2008 (2007 Ill. Legis. Serv. 4880,

4883 (West)))) and one count of unlawful possession of a con-

trolled substance (720 ILCS 570/402(c) (West 2008)). Pursuant to

a plea agreement, defendant pleaded guilty to aggravated battery.

At a November 2008 sentencing hearing, the trial court sentenced

defendant to nine years' imprisonment and dismissed the unlawful-

possession-of-a-controlled-substance charge. Defendant filed a

motion to reconsider his sentence, which the court denied.

Defendant appeals, contending the trial court erred by

(1) failing to award him credit under section 110-14(a) of the

Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS

5/110-14(a) (West 2008)) against his drug-court assessment and

(2) assessing a $20 fine under section 10(c) of the Violent Crime
Victims Assistance Act (Victims Assistance Act) (725 ILCS

240/10(c) (West 2008)). We affirm as modified and remand with

directions.

I. BACKGROUND

The aggravated-battery charge alleged that, on June 16,

2008, defendant knowingly made contact of an insulting or provok-

ing nature with a police officer, in that defendant struck the

officer's body with his fist and knew his victim was a police

officer. Defendant and the State entered into a plea agreement,

under which defendant would plead guilty to aggravated battery

and the State would seek dismissal of the unlawful-possession-of-

a-controlled-substance charge. The agreement was open as to

sentencing. On September 30, 2008, the trial court held a

hearing and accepted the plea agreement.

On November 10, 2008, the trial court held a sentencing

hearing. The verbatim transcript of that hearing states the

court sentenced defendant to 9 years' imprisonment and gave him

credit for 148 days served. The court ordered defendant to

submit a specimen to the Illinois State Police as required by

statute, if he had not already done so. See 730 ILCS 5/5-4-3

(West 2008). The court also required defendant to "pay all

fines, fees, and costs as authorized by statute and a $200

genetic[-]marker[-]grouping[-]analysis fee." The written sen-

tencing judgment did not mention (1) the imposition of any fines

or fees or (2) an award of monetary credit for time served. The

docket entry for the November 10, 2008, sentencing hearing stated

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the court ordered defendant to pay $200 in court costs and a $200

genetic-marker-grouping-analysis fee. The entry also indicated

defendant was entitled to a $740 credit toward all fees and fines

for his time spent in custody.

Defendant filed a motion to reconsider his sentence,

and defense counsel filed a certificate in compliance with

Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). On December

1, 2008, the trial court denied defendant's motion. Two days

later, defendant filed a notice of appeal in compliance with

Rules 604(d) and 606 (210 Ill. 2d Rs. 604(d), 606). Thus, this

court has jurisdiction under those rules.

On appeal, defendant filed a motion to supplement the

record with a computer printout, which this court granted. The

printout indicates defendant was required to make the following

payments: (1) $5 for document storage, (2) $5 for automation,

(3) a $100 circuit-clerk fee, (4) $25 for court security, (5) $10

for arrestee's medical care, (6) a $50 court-finance fee, (7) $30

for the State's Attorney, (8) $20 for a victim's fund (no fine),

(9) $200 for a state offender deoxyribonucleic acid (DNA) assess-

ment (hereinafter DNA-analysis assessment), and (10) $5 for a

drug-court program.

II. ANALYSIS

A. Drug-Court Assessment

Defendant first contends the trial court erred by not

granting him credit under section 110-14(a) of the Procedure Code

(725 ILCS 5/110-14(a) (West 2008)) against his $5 drug-court

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assessment because the assessment constitutes a fine and not a

fee. We note the monetary credit provided by section 110-14(a)

offsets only fines, not fees. People v. Sulton, 395 Ill. App. 3d

186, 189, 916 N.E.2d 642, 644 (2009). The State concedes defen-

dant is entitled to the credit. "Whether a defendant received

proper credit against his fine is a question of law that we

review de novo." Sulton, 395 Ill. App. 3d at 189, 916 N.E.2d at

644.

This court recently addressed whether a $10 drug-court

assessment imposed upon a defendant by the trial court pursuant

to section 5-1101(d-5) of the Counties Code (55 ILCS 5/5-1101(d-

5) (West 2006)) was a fine or a fee. Sulton, 395 Ill. App. 3d at

191, 916 N.E.2d at 646-47. Section 5-1101(d-5) permitted "trial

courts to impose '[a] $10 fee to be paid by the defendant on a

judgment of guilty or a grant of supervision under [s]ection

5-9-1 of the Unified Code of Corrections to be placed in the

county general fund and used to finance the county

mental[-]health court, the county drug court, or both.'" Sulton,

395 Ill. App. 3d at 191, 916 N.E.2d at 646, quoting 55 ILCS 5/5-

1101(d-5) (West 2006). We noted the relevant inquiry was whether

the drug-court assessment was "'intended to reimburse the [S]tate

for some cost incurred in [the] defendant's prosecution.'"

Sulton, 395 Ill. App. 3d at 192, 916 N.E.2d at 647, quoting

People v. Jones, 223 Ill. 2d 569, 600, 861 N.E.2d 967, 986

(2006). There, we concluded the assessment was a fine as it was

not related to such costs because (1) the record did not indicate

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the trial court considered the defendant's eligibility for

drug-court programs during defendant's guilty-plea or sentencing

hearings and (2) the court sentenced defendant to seven years'

imprisonment as opposed to community-based treatment. Sulton,

395 Ill. App. 3d at 193, 916 N.E.2d at 647-48.

In this case, the drug-court assessment appears to have

been imposed under section 5-1101(f) of the Counties Code (55

ILCS 5/5-1101(f) (West 2008)). That section allows counties with

drug courts to adopt a mandatory fee of up to $5 to be paid by a

defendant on a guilty judgment for, inter alia, a felony. 55

ILCS 5/5-1101(f)(2) (West 2008). The assessments collected by

the circuit court clerk under that section must be deposited into

an account specifically for the drug court's operation and

administration, less 5%, which the clerk retains to defray the

costs of collection and disbursement of the assessment. 55 ILCS

5/5-1101(f) (West 2008).

At defendant's September 2008 plea hearing, the trial

court indicated drug court was not an issue in defendant's case

because defendant was not eligible for probation due to a prior

conviction. Thus, as in Sulton, the $5 drug-court assessment did

not reimburse the State for costs incurred in defendant's prose-

cution. Accordingly, we conclude defendant's $5 drug-court

assessment is a fine for which he should receive a $5-per-day

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

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

The record suggests the trial court did not consider

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the drug-court assessment a fine, and thus we remand the cause to

that court for an amended sentencing judgment reflecting a credit

under section 110-14(a) against the $5 drug-court assessment.

B. Victims Assistance Act

Defendant further argues that, since the drug-court

assessment is a fine, the trial court erred by imposing a $20

fine under section 10(c) of the Victims Assistance Act (725 ILCS

240/10(c) (West 2008)), which requires the trial court to impose

a certain fine when it has not ordered any other fines. However,

defendant does recognize he is subject to a fine under section

10(b) of the Victims Assistance Act (725 ILCS 240/10(b) (West

2008)), which requires an additional fine of $4 for every $40 of

other fines, or fraction thereof, imposed. He contends his only

fine is the $5 drug-court assessment, and thus his proper Victims

Assistance Act fine is $4. The State agrees the Victims Assis-

tance Act fine should be determined under section 10(b) but

contends defendant's $200 DNA-analysis assessment required by

section 5-4-3(j) of the Unified Code of Corrections (Unified

Code) (730 ILCS 5/5-4-3(j) (West 2008)) is also a fine for

purposes of calculating the Victims Assistance Act fine. Accord-

ing to the State, defendant's Victims Assistance Act fine should

be $24. Defendant disagrees the $200 DNA-analysis assessment is

a fine. The issue of whether an assessment is a fine or a fee

presents a question of law, and thus we review it de novo. See

People v. Hall, 198 Ill. 2d 173, 177, 760 N.E.2d 971, 973 (2001)

(noting the review of a legal question is de novo).

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 Our supreme court has explained the difference between

a "fine" and a "fee" as follows:

"Broadly speaking, a 'fine' is a part of the

punishment for a conviction, whereas a 'fee'

or 'cost' seeks to recoup expenses incurred

by the State--to 'compensat[e]' the State for

some expenditure incurred in prosecuting the

defendant." Jones, 223 Ill. 2d at 582, 861

N.E.2d at 975.

Moreover, the Jones court noted "the label attached by the

legislature is not necessarily definitive." Jones, 223 Ill. 2d

at 599, 861 N.E.2d at 985.

Section 5-4-3(a) of the Unified Code (730 ILCS 5/5-4-

3(a) (West 2008)) requires anyone convicted of a felony to submit

blood, saliva, or tissue specimens to the Illinois State Police.

If a defendant must submit a specimen under section 5-4-3(a), the

trial court must impose "an analysis fee" of $200. 730 ILCS 5/5-

4-3(j) (West 2008). Section 5-4-3(k)(1) of the Unified Code (730

ILCS 5/5-4-3(k)(1) (West 2008)) establishes a State Offender DNA

Identification System Fund (Fund), "a special fund in the State

Treasury." Section 5-4-3(k)(2) (730 ILCS 5/5-4-3(k)(2) (West

2008)) requires circuit court clerks to deposit the analysis fee

(DNA-analysis assessment) into the Fund, less $10 from each

collected fee to offset administrative costs in carrying out the

section's mandate. Moreover, section 5-4-3(k)(3) provides the

Fund is for the exclusive use of the state's crime laboratories

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for costs, such as, but not limited to, those incurred in (1)

providing analysis and genetic-marker categorization; (2) main-

taining genetic-marker groupings; (3) purchasing and maintaining

equipment for use in performing analyses; (4) continuing research

and development of new techniques for analysis and genetic-marker

categorization; and (5) continuing education, training, and

professional development of forensic scientists. 730 ILCS 5/5-4-

3(k)(3)(A) through (k)(3)(E) (West 2008).

The State argues the DNA-analysis assessment is a fine

because the statute's language indicates the legislature's intent

to assess the charge against anyone required by law to submit a

specimen, not just those who actually do submit a specimen. The

State also notes the funds can be used for maintenance, research,

and training, and thus the charge is not intended to cover the

cost of analyzing and categorizing submitted samples. Defendant

disagrees, contending his prosecution was the impetus for the

sample submission that the state police were required to analyze

and categorize into genetic-marker groupings. According to

defendant, the $200 fee is intended to recoup the costs associ-

ated with analyzing and categorizing his DNA and is just another

cost of maintaining the criminal-justice system, like document

storage and courtroom maintenance.

While the issue of whether the DNA-analysis assessment

is a fine or a fee is a matter of first impression, Illinois

courts have addressed other issues related to section 5-4-3 of

the Unified Code (730 ILCS 5/5-4-3 (West 2008)). In analyzing

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the constitutionality of section 5-4-3, the First District found

the section's purpose was "to create a database of the genetic

identities of recidivist criminal offenders." People v. Burdine,

362 Ill. App. 3d 19, 30, 839 N.E.2d 573, 582 (2005). In address-

ing the same issue, our supreme court has noted "the main purpose

of DNA sampling is to absolve innocents, identify the guilty,

deter recidivism by identifying those at a high risk of

reoffending, or bring closure to victims." People v. Garvin, 219

Ill. 2d 104, 121-22, 847 N.E.2d 82, 92 (2006). When DNA has been

collected from a crime scene, the database established by section

5-4-3 "may be useful in delineating the relevant pool of suspects

by either identifying a particular individual or, equally impor-

tant, excluding a potential suspect from consideration." Garvin,

219 Ill. 2d at 120, 847 N.E.2d at 91.

Moreover, this court has addressed the propriety of a

DNA-collection fee imposed in addition to the $200 DNA-analysis

assessment mandated by section 5-4-3(j) of the Unified Code (730

ILCS 5/5-4-3(j) (West 2002) (as amended by Pub. Act 92-829, §5,

eff. August 22, 2002 (2002 Ill. Legis. Serv. 2775, 2778

(West)))). People v. Hunter, 358 Ill. App. 3d 1085, 1094-97, 831

N.E.2d 1192, 1198-1201 (2005). In rejecting the argument the

collection fee was a cost of prosecution under section 124A-5 of

the Procedure Code (725 ILCS 5/124A-5 (West 2002)), we noted "the

cost of collecting DNA is not a 'cost of prosecution,' as it was

incurred only after the prosecution and conviction occurred."

Hunter, 358 Ill. App. 3d at 1096, 831 N.E.2d at 1201.

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 As stated earlier, the relevant inquiry in determining

whether an assessment is a "fine" or a "fee" is whether it was

"'intended to reimburse the [S]tate for some cost incurred in

[the] defendant's prosecution.'" Sulton, 395 Ill. App. 3d at

192, 916 N.E.2d at 647, quoting Jones, 223 Ill. 2d at 600, 861

N.E.2d at 986. Most of the $200 assessment mandated by section

5-4-3(j) goes to the state crime laboratories. See 730 ILCS 5/5-

4-3(k)(2), (k)(3) (West 2008). Section 5-4-3(k)(3) (730 ILCS

5/5-4-3(k)(3) (West 2008)) does not limit the state crime labora-

tories' use of the money. Moreover, the enumerated possible uses

of the money from the DNA-analysis assessment indicate the money

is to be used to form, maintain, and improve a DNA database of

Illinois criminals. See 730 ILCS 5/5-4-3(k)(3)(A) through

(k)(3)(E) (West 2008). Thus, contrary to defendant's argument,

section 5-4-3(k) 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. See

730 ILCS 5/5-4-3(k)(3) (West 2008). Moreover, the record con-

tains no evidence the database created by section 5-4-3 was used

in the prosecution of defendant in this case. See Garvin, 219

Ill. 2d at 121-22, 847 N.E.2d at 92 (listing the purposes of DNA

sampling). Additionally, as with the DNA-collection fee in

Hunter, any costs incurred by the State in relation to defen-

dant's DNA specimen were incurred after his prosecution, convic-

tion, and sentence. Based on the aforementioned reasons, we find

the DNA-analysis assessment required by section 5-4-3(j) of the

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Unified Code (730 ILCS 5/5-4-3(j) (West 2008)) is not related to

defendant's prosecution and thus is a fine.

Since the $200 assessment is a fine, defendant's fines

total $205. Thus, under section 10(b) of the Victims Assistance

Act, defendant's Victims Assistance Act fine is $24. Accord-

ingly, on remand, the trial court should amend its sentencing

judgment to reflect a $24 Victims Assistance Act fine.

In his petition for rehearing, defendant requests for

the first time a credit under section 110-14(a) of the Procedure

Code (725 ILCS 5/110-14(a) (West 2008)) against his $200 DNA-

analysis assessment. The State concedes defendant can raise his

request in a petition for rehearing, and we agree. See People v.

Caballero, 228 Ill. 2d 79, 88, 885 N.E.2d 1044, 1049 (2008)

(holding a statutory claim under section 110-14 "may be raised at

any time and at any stage of court proceedings" and an "appellate

court may, in the 'interests of an orderly administration of

justice,' grant the relief requested"). The State also concedes

defendant is entitled to the credit. Section 5-4-3 of the

Unified Code (730 ILCS 5/5-4-3 (West 2008)) does not contain a

provision expressly disallowing a credit under section 110-14,

and thus we agree with the State defendant is entitled to the

credit. Thus, on remand, the trial court should also amend the

sentencing judgment to reflect a credit under section 110-14(a)

against the $200 DNA-analysis assessment.

III. CONCLUSION

For the reasons stated, we affirm as modified and

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remand this cause to the trial court for issuance of an amended

sentencing judgment to reflect (1) the application of defendant's

monetary credit to the $5 drug-court assessment and the $200 DNA-

analysis assessment and (2) the imposition of a $24 fine under

the Victims Assistance Act. As part of our judgment, we award

the State its $50 statutory assessment against defendant as costs

of this appeal. See People v. Williams, 235 Ill. 2d 286, 297,

920 N.E.2d 1060, 1066 (2009) (holding that, "because defendant

remained a convicted defendant following the appellate court's

resolution of his appeal, the court properly allowed the State's

fee request").

Affirmed as modified; cause remanded with directions.

MYERSCOUGH, P.J., and KNECHT, J., concur.

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