People v. Fort

SECOND DIVISION
May 29, 2007

No. 1-04-1937

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
Odell Fort, ) Honorable
) William G. Lacy,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

The trial judge convicted defendant, Odell Fort, of

possession of a controlled substance and sentenced him to 30

months’ imprisonment. Defendant does not challenge the

conviction or the sentence. He does raise issues concerning

other orders that flowed from the conviction.

Defendant contends: (1) it was error to impose a $500

assessment without first determining whether he had the ability

to pay it; (2) he was entitled to a credit against the assessment

based on the days he spent in custody before sentencing; (3) the

statute mandating a $5 fee for deposit in the Spinal Cord Injury

Paralysis Cure Research Trust Fund is unconstitutional; and (4)

the compulsory extraction of his blood and perpetual storage of

his DNA violate his fourth amendment right to be free from

unreasonable searches and seizures.
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We agree defendant is entitled to the credit against the

assessment. We reject his other contentions.

FACTS

Since defendant does not challenge his conviction there is

no need to go into facts that led to it. Suffice it to say a

police officer saw him throw six baggies into a garbage can and

the baggies were found to contain crack cocaine.

At the sentencing hearing, after reviewing the presentence

investigation report and hearing arguments of counsel, the trial

court sentenced defendant to 30 months’ imprisonment. The court

noted defendant spent 37 days in custody before the conviction,

but did not credit those days against the assessment.

A form in the record lists the "fines, fees, assessments,

penalties, and reimbursements" imposed by the court on defendant.

They total $1,224. The following boxes are marked on the form:

"Costs and Fees

Felony Complaint Filed-Clerk*** $190

Felony Complaint Conviction-

State’s Attorney*** $60

Preliminary Hearing- State’s

Attorney*** $20

***

State DNA ID System*** $200

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Violent Crime Victim Assistance*** $20

Criminal/Traffic Conviction

Surcharge-Additional Penalty*** $4

Automation-Clerk*** $5

Document Storage-Clerk*** $5

Court Services-Sheriff*** $15

***

Controlled Substance/ Cannabis/ Hypodermic Needles

Offenses

***

Assessment Controlled Substance*** $500

***

Crime Lab Drug Analysis-Northern*** $100

Trauma Fund*** $100

Trauma Fund Spinal Cord*** $5

***

TOTAL*** $1224"

DECISION

I. The Drug Assessment

Defendant was ordered to pay the $500 assessment pursuant to

section 411.2(a)(3) of the Illinois Controlled Substances Act

(Act). 720 ILCS 570/411.2(a)(3) (West 2002). He makes two

claims concerning the assessment.

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First, he contends the assessment really is a fine and

should not have been imposed without a finding of his ability to

pay it as required by section 5-9-1(d) of the Unified Code of

Corrections (Code) (730 ILCS 5/5-9-1(d) (West 2002)). Section 5-

9-1(d) provides:

“In determining the amount and method of

payment of a fine, *** the court shall

consider:

(1) The financial resources and

future ability of the offender to

pay the fine.” 730 ILCS 5/5-9-1(d)

(West 2002).

Second, he contends section 110-14 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/110-14 (West 2002)) entitles

him to a $185 credit against the drug assessment because of the

37 days he spent in presentence incarceration. Section 110-14

provides:

“(a) 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 (West

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2002).

To resolve the issues raised by defendant we first must

determine whether the legislature intended the assessment to be a

fine, that is, a pecuniary punishment imposed as part of a

sentence, or something else, like a fee or court cost, which is a

charge taxed by a court, compensatory in nature. People v.

Elizalde, 344 Ill. App. 3d 678, 682, 800 N.E.2d 339 (2003);

People v. Littlejohn, 338 Ill. App. 3d 281, 283, 788 N.E.2d 339

(2003). If it is a fine, defendant is entitled to the $185

setoff.

Contrary to the State’s contention, the credit issue was not

forfeited by defendant’s failure to raise it at sentencing or in

a post-sentencing motion. The normal rules of forfeiture do not

apply to a sentence credit request. A defendant has the right to

raise it for the first time on appeal. People v. Woodward, 175

Ill. 2d 435, 457, 677 N.E.2d 935 (1997).

That brings us to the tricky thicket of statutory

interpretation. First and foremost, we must ascertain and give

purpose to the legislature’s intent. People v. Ward, 215 Ill. 2d

317, 324, 830 N.E.2d 556 (2005). We first look to the language

of the statute we are attempting to construe. Castaneda v.

Illinois Human Rights Comm’n, 132 Ill. 2d 304, 318, 547 N.E.2d

437 (1989). The best indication of legislative intent is the

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“plain and ordinary meaning of the language used.” Littlejohn,

338 Ill. App. 3d at 284. We are permitted “to turn to a

dictionary when determining the meaning of an otherwise undefined

word or phrase.” People v. Skillom, No. 1-04-0627, slip op. at

12, (October 21, 2005), citing Ward, 215 Ill. 2d at 325.

There are times when courts cannot determine the meaning of

a statute by examining its plain language or when the statute is

capable of being understood by reasonably well-informed persons

in two or more different senses, thus creating statutory

ambiguity. People v. Purcell, 201 Ill. 2d 542, 549, 778 N.E.2d

695 (2002). Where ambiguity is present, we are allowed to

resolve the statute’s ambiguity by considering its legislative

history and debates, and by examining the statute’s purposes and

underlying policies. Advincula v. United Blood Services, 176

Ill. 2d 1, 19, 678 N.E.2d 1009 (1997).

The word that commands our attention is “assessment,” as

used in section 411.2. Section 411.2(a) provides: “Every person

convicted of a violation of this Act [Illinois Controlled

Substances Act], *** shall be assessed for each offense a sum

fixed at: **** (4) $500 for a class 3 or class 4 felony.” 720

ILCS 570/411.2(a) (West 2002).

Section 411.2 makes no reference to the sentence credit

provisions of section 110-14. Nor does it contain any

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requirement that the trial judge consider a defendant’s ability

to pay the assessment. It does contain provisions for defendants

to reduce or suspend payment of the assessment by entering

community service (subsection (e)) or entering an approved

substance abuse intervention or treatment program (subsection

(f)). 720 ILCS 570/411.2(e), (f) (West 2002). The assessments

collected are used for alcohol and drug treatment and care

programs, State and Cook County.

The State, pointing to the wording and placement of section

411.2, contends the assessment is something other than a fine,

making incarceration credits and inquiries into ability to pay

inapplicable.

Several courts from other appellate districts have decided

the credit issue. They represent a shutout against the State.

No reported decision supports the State’s position. We summarize

the relevant decisions:

(1) Second Appellate District: People v. Rodriguez, 276 Ill.

App. 3d 33, 41, 657 N.E.2d 699 (1995) (A defendant is entitled to

a $5-a-day credit for each day incarcerated on a bailable offense

when he does not supply bail, “and this credit is applicable to a

statutory drug offense assessment.”); People v. Otero, 263 Ill.

App. 3d 282, 288, 635 N.E.2d 1073 (1994) ($5 per day credit may

be applied against either the $2,000 statutory assessment or the

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street value fine, but not both);

(2) Third Appellate District: Littlejohn, 338 Ill. App. 3d

at 284 (“Pursuant to section 110-14, the defendant should be

awarded a credit of $1,360 against his drug assessment fines, his

street-value fines, the trauma center fine and the crime stoppers

fine.”); People v. Gathing, 334 Ill. App. 3d 617, 620, 778 N.E.2d

215 (2002) (The mandatory drug assessment “is in the nature of a

fine and is properly offset by the presentence credit created by

section 110-14 of the Code.”); People v. Reed, 255 Ill. App. 3d

949, 951, 627 N.E.2d 729 (1994) (The $5-a-day credit for each day

incarcerated on a bailable offense when defendant did not supply

bail is applicable to a street value fine “and to a statutory

drug offense assessment.”); People v. Brown, 242 Ill. App. 3d

465, 466, 610 N.E.2d 776 (1993) (Defendant’s “$5-per-day credit

for pretrial incarceration which is allowed by section 110-14

should have been used to offset his $500 assessment.”);

(3) Fifth Appellate District: People v. Haycraft, 349 Ill.

App. 3d 416, 430, 811 N.E.2d 747 (2004) (The $5-per-day credit

“may be applied against either the statutory assessment or the

street value fine, but not both.”).

The First and Fourth appellate districts have not yet spoken

on the sentence credit issue. Defendant relies primarily on

Gathing. The state contends Gathing and all the other cases

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cited above were wrongly decided.

Admittedly, the cases do not contain in-depth analysis of

legislative intent. Gathing relies on two points. The first is

Black’s Law Dictionary definitions of “assessment”--“[i]mposition

of something, such as a tax or fine, according to an established

rate”–-and “fine”–-“[a] pecuniary criminal punishment or civil

penalty payable to the public treasury.” Gathing, 334 Ill. App.

3d at 620, citing Black’s Law Dictionary 111 and 647 (7th ed.

1999). The second point relied on in Gathing is that payment of

the assessment is to a special treatment fund “within the State

Treasury.” Gathing, 334 Ill. App. 3d at 620.

Brown supplies another reason for holding the credit

applies: “Had the legislature clearly intended to exclude section

411.2 from such credits, the legislature could have specifically

made such an exclusion.” Brown, 242 Ill. App. 3d at 466.

We would add that the legislature has demonstrated it knows

how to make the $5-per-day credit inapplicable to a special fund.

It did so in 1985 when it amended the Violent Crime Victims

Assistance Act to provide fines imposed for certain listed

offenses are “not subjected to the provisions of section 110-14

of the Code of Criminal Procedure of 1963***” (Ill. Rev. Stat.

1985, ch. 70, par. 510(b)). See People v. Hare, 119 Ill. 2d 441,

449-50, 519 N.E.2d 879 (1988).

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We decline the State’s invitation to reject the consistent

line of appellate decisions that allow the sentence credit

against the drug assessment.

We are instructed:

“one district of the State appellate court is

not always bound to follow the decisions of

other districts, although there may be

compelling reasons to do so when dealing with

similar facts or circumstances. [Citation.]

Otherwise, such decisions have only

persuasive value for the appellate court.”

In re May 1991 Will County Grand Jury, 152

Ill. 2d 381, 398, 604 N.E.2d 929 (1992).

We are persuaded.

A strong case can be made that section 411.2 is ambiguous on

the question of fine versus fee. It is in a section separate

from the fines provision for convictions under the Controlled

Substances Act (720 ILCS 570/411.1 (West 2002)). Section 411.2

does not use the word “fine,” and subsection (b) reads: “The

assessment under this section is in addition to and not in lieu

of any fines, restitution costs, forfeitures or other assessments

authorized or required by law.” (Emphasis added.) 720 ILCS

570/411.2(b) (West 2002). Still, in subsection (f) the statute

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refers to the assessment as a “penalty” (“The court shall not

reduce the penalty under this subsection unless ***”) and

concludes: “Nothing in this section shall be deemed to affect or

suspend any other fines, restitution costs, forfeitures or

assessments imposed under this or any other Act.” (Emphasis

added.) 720 ILCS 570/411.2(f) (West 2002).

Assuming the existence of ambiguity, we believe there are

two sound reasons for adopting the results reached by the

appellate court decisions.

First, we take note of the Senate debate on July 18, 1991.

Referring to the proposed section 411.2, Senator Cullerton asked:

“I’m just curious, though, if–-does this reallocate money which

is now being sent somewhere, or does it purport to increase the

fines for people who are charged with drug offenses?” (Emphasis

added.) Senator Barkhausen, a sponsor of the bill, answered:

“Yes, it’s an increase. It’s a new fine;

although, we had amended the bill a second

time through, and I believe the provisions

are here again–-I was just looking for them–-

to give the court some discretion to require

community service work for those who can’t

pay fines. But this is new money. It’s not

a reallocation of any old money.” (Emphasis

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added.) 87th Gen. Assem., Senate

Proceedings, July 18, 1991, at 186-87.

When we construe a statute, “it is instructive to consider

relevant statements by legislatures concerning the nature and

effect of the proposed law.” Sulser v. Country Mutual Insurance

Co., 147 Ill. 2d 548, 555, 591 N.E.2d 427 (1992). Nothing in the

Senate debates indicates an intent that the drug assessment was

to be anything other than a species of fine.

The second reason for following the appellate decisions has

to do with a well-established rule of legislative construction.

Our supreme court has held: “*** when the legislature amends a

statute, but leaves unchanged portions which have been judicially

construed, the unchanged position will retain the construction

given prior to the amendment.” People v. Agnew, 105 Ill. 2d 275,

280, 473 N.E.2d 1319 (1985).

Section 411.2 was amended in 1994, 1995, and 1997. None of

the amendments referred to the credit against assessment issue.

Brown was decided in 1993, Reed in 1994, Otero in 1994, and

Rodriguez in 1995. The legislature is presumed to know how

courts have interpreted a statute and may amend the statute if it

intended a different construction. Illinois Department of Labor

v. Tri State Tours, Inc., 342 Ill. App. 3d 842, 847, 795 N.E.2d

990 (2003). We assume the legislature saw no need to change the

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results reached in the appellate decisions.

We conclude defendant was entitled to a credit of $185

against the $500 assessment. Although we agree the assessment is

a kind of fine, we see no need to remand for an inquiry into

defendant’s ability to pay it. The assessment is mandatory. The

legislature provided for ways to eliminate or reduce it.

Defendants convicted of drug offenses are given the opportunity

to improve their lives and the lives of others (subsections (e)

and (f)). That is the statutory plan set out in section 411.2

and it tells us why the legislature placed it in its own section,

separate from traditional fines.

II. Spinal Cord Research Fund Fee

Defendant contends his due process rights were violated by

the trial court’s imposition of a $5 fee for deposit into the

Spinal Cord Injury Paralysis Cure Research Trust Fund (Spinal

Cord Fund). 730 ILCS 5/5-9-1.1(c) (West 2002). Defendant

contends collecting a $5 Spinal Cord Fund fee from a person

convicted of a drug-related offense is an arbitrary and

unreasonable exercise of the State’s police power. See People v.

Wick, 107 Ill. 2d 62, 63, 481 N.E.2d 676 (1985). He says the

statute bears no rational relationship to the public interest

intended to be protected.

Our supreme court recently upheld the constitutionality of

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the statutory provision imposing a fee earmarked for the Spinal

Cord Fund in People v. Jones, 223 Ill. 2d 569, 605-06, 861 N.E.2d

967 (2006). The court held the $5 charge may properly be viewed

as a criminal penalty, and “it is well established that the

legislature has broad authority to determine the nature and

extent of criminal penalties.” Jones, 223 Ill. 2d at 602.

Accordingly, we reject defendant’s argument and affirm the

trial court’s assessment of the $5 fee for the Spinal Cord Fund.

III. DNA

Defendant contends the compulsory extraction and perpetual

storage of his DNA violate his fourth amendment right to be free

from unreasonable searches and seizures under the federal and

state constitutions. U.S. Const., amend. IV; Ill. Const. 1970,

art. I, § 6. Section 5-4-3 of the Unified Code of Corrections

mandates DNA sampling from any person convicted or found guilty

"of any offense classified as a felony under Illinois law." 730

ILCS 5/5-4-3(a) (West 2002).

This court repeatedly has addressed this issue and rejected

defendant’s position. See People v. Redmond, 357 Ill. App. 3d

256, 264, 828 N.E.2d 1206 (2005); People v. Foster, 354 Ill. App.

3d 564, 571, 821 N.E.2d 733, 740 (2004); People v. Butler, 354

Ill. App. 3d 57, 68-69, 819 N.E.2d 1133 (2004); People v.

Edwards, 353 Ill. App. 3d 475, 486, 818 N.E.2d 814 (2004); People

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v. Peppers, 352 Ill. App. 3d 1002, 1007-08, 817 N.E.2d 1152

(2004); People v. Ramos, 353 Ill. App. 3d 133, 154, 817 N.E.2d

1110 (2004); People v. Hall, 352 Ill. App. 3d 537, 549-50, 816

N.E.2d 703 (2004); People v. Garvin, 349 Ill. App. 3d 845, 856

(2004), appeal allowed, 212 Ill. 2d 541, 824 N.E.2d 287 (Nov. 24,

2004). Every state and federal court that has addressed the

constitutionality of a similar DNA statute has upheld the

statute. Peppers, 352 Ill. App. 3d at 1004-05, citing Green v.

Burge, 354 F.3d 675, 679 (7th Cir. 2004), and Garvin, 349 Ill.

App. 3d at 854.

We find, consistent with virtually unanimous authority, that

section 5-4-3 is constitutional and defendant’s constitutional

rights were not violated by the order to extract his DNA.

CONCLUSION

For the reasons stated, we amend the Costs and Fees order to

reflect a credit of $185 against the $500 “Assessment Controlled

Substance,” and we affirm the $5 fee for the Spinal Cord Fund.

We affirm the trial court’s order that blood be extracted from

the defendant for storage of his DNA.

Affirmed as modified.

GARCIA, and HALL, JJ., concur.

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