FIRST DIVISION
December 3, 2010
No. 1-09-1461
THE PEOPLE OF THE STATE ) Appeal from the
OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No.08 CR 21720
)
)
KEITH RIGSBY, ) Honorable
) John T. Doody, Jr.,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HALL delivered the opinion of the court:
Following a jury trial, defendant Keith Rigsby was found
guilty of possession of a controlled substance (cocaine) with
intent to deliver. Defendant was sentenced as a Class X offender
to seven years' imprisonment. He was also required to submit a
sample of his DNA (deoxyribonucleic acid) for forensic analysis
and indexing and ordered to pay a $200 DNA analysis fee pursuant
to section 5-4-3(j) of the Unified Code of Corrections (730 ILCS
5/5-4-3(j) (West 2008)).
Section 5-4-3 of the statute provides that any person
convicted or found guilty of any offense classified as a felony
under Illinois law must submit specimens of blood, saliva, or
tissue to the Illinois Department of State Police for DNA
analysis and pay an analysis fee of $200. 730 ILCS 5/5-4-3(a),
(j) (West 2008). One of the purposes behind the statute is to
No. 1-09-1461
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 (2005); see also People v. Evangelista, 393 Ill.
App. 3d 395, 399, 912 N.E.2d 1242 (2009) ("obvious purpose of the
statute is to collect from a convicted defendant a DNA profile to
be stored in a database").
Defendant was previously convicted of drug-related felonies
that required him to provide DNA samples and to pay corresponding
analysis fees in cases Nos. 04 CR 25513 and 05 CR 2936. He
argues on appeal that the trial court erred in requiring him to
submit additional DNA samples and in ordering him to pay
additional DNA analysis fees in connection with his present
conviction. Defendant contends that the statute should not be
read to require submission of multiple and duplicative DNA
samples and payment of additional analysis fees from an offender
who has already submitted DNA samples pursuant to a prior
conviction and has paid a corresponding analysis fee. We agree.
Section 5-4-3 of the statute is silent and says nothing
about requiring offenders to provide additional DNA samples upon
every qualifying conviction or requiring payment of additional
DNA analysis fees from an offender who has already complied with
the statutory requirements and has samples of his DNA on file in
the police database. The legislature's silence on these issues
creates an ambiguity in the statute that permits us to look
beyond its text to resolve the ambiguity. See People v. Bomar,
-2-
No. 1-09-1461
Nos. 3-08-0985, 3-08-0986, slip op. at 21 (October 15, 2010)
(McDade, J., concurring in part and dissenting in part); see,
e.g., Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 401, 808
N.E.2d 957 (2004).
In Illinois, DNA is collected from qualifying offenders by
detention facilities or by certain designated state, local, or
private agencies. 730 ILCS 5/5-4-3(d-5), (d-6) (West 2008).
Under section 1285.30 of Title 20 of the Administrative Code,
which is the implementing regulation for section 5-4-3 of the
statute, facilities and agencies responsible for collecting DNA
samples are designated based on the statutory presumption that
the qualifying offender has not previously had a sample taken or
collected: "If the qualifying offender has not previously had a
sample taken" and is serving a term of incarceration in a
facility under the control of the county sheriff or is being
transferred to another state to serve the sentence, the
designated agency is the sheriff's office; "[i]f the qualifying
offender has not previously had a sample taken" and is
transferred to a facility under the control of the Department of
Corrections to serve a term of incarceration, the designated
agency is the Department of Corrections; "[i]f the qualifying
offender has not previously had a sample taken" and is
transferred to a facility under the control of the Department of
Juvenile Justice to serve a term of incarceration, the designated
agency is the Department of Juvenile Justice; "[i]f the
-3-
No. 1-09-1461
qualifying offender has not previously had a sample collected"
and is transferred to the Department of Corrections to be
institutionalized as a sexually dangerous person or
institutionalized as a person found guilty but mentally ill of a
sexual offense or an attempted sexual offense, the designated
agency is the Department of Corrections; "[i]f the qualifying
offender has not previously had a sample collected" and is
ordered committed as a sexually violent person, the designated
agency is the Department of Human Services; and "[i]f the
qualifying offender has not previously had a sample collected"
and is serving a sentence but not physically incarcerated, the
designated agency is the supervising agency such as a probation
office. (Emphasis added.) 20 Ill. Adm. Code §§1285.30(c)(1)
through (c)(6), amended at 31 Ill. Reg. 9249, 9254-55, eff. June
12, 2007.
In light of the italicized statutory language quoted above,
it is reasonable to assume that, in practice, a designated
facility or agency charged with administering the statute would
not interpret it to require submission of multiple and
duplicative DNA samples from an offender who has already
submitted samples pursuant to a prior conviction. See Bomar, slip
op. at 21 (McDade, J., concurring in part and dissenting in
part); see also Evangelista, 393 Ill. App. 3d at 399 ("Once a
defendant has submitted a DNA sample, requiring additional
samples would serve no purpose").
-4-
No. 1-09-1461
A one-time submission into the police DNA database is
sufficient to satisfy the purpose of the statute in creating a
database of the genetic identities of recidivist criminal
offenders, because once an offender's DNA data is stored in the
database, it remains there unless and until the offender's
conviction is reversed based on a finding of actual innocence or
he is pardoned based on a finding of actual innocence. 730 ILCS
5/5-4-3(f-1) (West 2008).
Moreover, since the analysis fee is intended to cover the
costs of the DNA analysis, and only one analysis is necessary per
qualifying offender, then by extension only one analysis fee is
necessary as well. See Bomar, slip op. at 21-22 (McDade, J.,
concurring in part and dissenting in part); People v. Willis, 402
Ill. App. 3d 47, 61, 934 N.E.2d 487 (2010). Notably, when the
legislature has intended for a fee to be imposed on a per-
conviction basis rather than a per-defendant basis, it has said
so. See, e.g., 730 ILCS 125/17 (West 2008) ("The county shall be
entitled to a $10 fee for each conviction or order of supervision
for a criminal violation ***").
We do not believe the analysis set forth in People v.
Marshall, 402 Ill. App. 3d 1080, 931 N.E.2d 1271 (2010), dictates
a different result. In Marshall, the reviewing court determined
that if an offender was required to submit only one DNA sample, a
scenario could occur in which the offender could wind up not
having any DNA sample on file. Marshall, 402 Ill. App. 3d at
-5-
No. 1-09-1461
1083.
The Marshall court reasoned that a possible sequence of
events could occur in which: the offender was convicted of a
qualifying offense and a sample of his DNA was collected; the
offender was then convicted of a second qualifying offense, but
this time, no DNA sample was collected because a sample was
already on file; the offender's first conviction is reversed and
his DNA sample is expunged pursuant to section 5-4-3(f-1) (730
ILCS 5/5-4-3(f-1) (West 2008)), resulting in the offender having
no DNA sample on file even though he has a valid conviction for a
qualifying offense. Marshall, 402 Ill. App. 3d at 1083.
We do not read the statute as providing such a loophole. We
interpret the statute as requiring that a single DNA sample
remain in the database for each person convicted of a qualifying
offense. This means that if an offender's previous sample was
expunged for whatever reason, a subsequent conviction would
naturally require a new sample be taken and this would be
sufficient for maintenance of the DNA database.
We also reject the notion mentioned in People v. Grayer, No.
1-09-0021, slip op. at 1-2 (August 24, 2010), that the desire to
have fresh samples of DNA justifies requiring the submission of
multiple and duplicative samples from an offender who has already
satisfied the statute by submitting DNA samples pursuant to a
prior conviction. Samples of DNA can remain viable for thousands
of years if maintained under appropriate conditions. See P. Tracy
-6-
No. 1-09-1461
& V. Morgan, Big Brother and his Science Kit: DNA Databases for
21st Century Crime Control?, 90 J. Crim. L. & Criminology 635,
673 n.105 (2000).
Finally, we reject the State's suggestion that a defendant
who has been assessed a DNA analysis fee must first show that he
actually paid the fee before he can challenge the fee on appeal.
In enacting the statute, the legislature did not require payment
of the DNA analysis fee as a prerequisite to challenging the fee.
See Grayer, slip op. at 1-2.
We also reject the State's argument that the defendant
forfeited this issue by failing to raise it in a postsentencing
motion. Defendant's contention on appeal is that the trial court
exceeded its statutory authority in ordering him to pay the DNA
analysis fee and that therefore the order is void. A challenge
to an alleged void order is not subject to forfeiture. People v.
Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445 (1995).
Accordingly, for the reasons set forth above, we vacate that
portion of the trial court's order requiring defendant to submit
additional DNA samples and requiring him to pay the $200 DNA
analysis fee. We affirm defendant's conviction in all other
respects.
Affirmed in part and vacated in part.
PATTI, J., concurs.
JUSTICE LAMPKIN, dissenting:
I respectfully dissent. I would follow this court’s earlier
-7-
No. 1-09-1461
decisions in Marshall, 402 Ill. App. 3d 1080, Grayer, People v.
Hubbard, No. 1-09-0346 (September 17, 2010), and Bomar, and
affirm the trial court’s order requiring defendant to submit an
additional DNA sample and pay the DNA analysis fee.
I agree with the analysis in Marshall, Grayer, Hubbard, and
Bomar, which held that the trial court was authorized by statute
to require the defendant to submit a DNA sample and pay the
analysis fee, even though the defendant was ordered to do so
previously as a result of an earlier qualifying conviction.
These cases determined that (1) the submission of a qualifying
defendant’s DNA and assessment of the fee was mandatory under the
language of the statute; (2) our legislature was keenly aware of
recidivism and did not expressly create any exception for
successive qualifying convictions; and (3) the collection of
additional DNA samples is neither absurd nor unjust nor
significantly inconvenient where it is reasonable to have fresh
samples and the ability to subject new samples to new methods of
collection, analysis, and categorization. Grayer, slip op. at 7-
8; Hubbard, slip op. at 4-5.
Defendant’s reliance on Evangelista, 393 Ill. App. 3d at
399, to support his appeal is misplaced, because the Evangelista
court vacated the analysis fee based merely upon the parties’
agreement that the taking of a DNA sample and assessment of the
analysis fee in an earlier case barred a new assessment of the
analysis fee. Also unavailing to defendant’s position are
-8-
No. 1-09-1461
Willis, 402 Ill. App. 3d 47, and People v. Unander, No. 4-09-0411
(September 28, 2010), as modified on denial of rehearing (October
26, 2010). The Willis court followed Evangelista without
acknowledging that Evangelista never analyzed the merits of this
issue but, rather, merely accepted a concession of error. See
Grayer, slip op. at 6-7. Furthermore, in Unander, the reviewing
court vacated the analysis fee based primarily upon the trial
court’s conditional order that the defendant submit a sample and
fee in the event he had not already done so. Unander, slip op.
at 8. The case before us does not involve a conditional order.
In Marshall, 402 Ill. App. 3d at 1083, Grayer, slip op. at
7, Hubbard, slip op. at 4, and Bomar, slip op. at 16, this court
noted that although the statute does not expressly require a fee
for every felony conviction, it does not limit the taking of DNA
samples or the assessment of the analysis fee to a single
instance. Here, the majority contends that the statute is
ambiguous and the language of our administrative code leads to
the reasonable assumption that the designated agency charged with
administering the statute probably does not collect additional
DNA samples from previously convicted defendants. I, however, do
not find persuasive the majority’s reliance upon the inference it
draws from the administrative code.
The section of the Administrative Code cited by the majority
discusses the duty of a designated agency, i.e., the county
sheriff, Department of Corrections, Department of Juvenile
-9-
No. 1-09-1461
Justice, Department of Human Services, or probation office, to
collect the defendant’s DNA sample when he is in or transferred
to a facility under that agency’s control, if a sample has not
been collected from the defendant previously. See 20 Ill. Adm.
Code §1285.30(c), amended at 31 Ill. Reg. 9249, 9253, eff. June
12, 2007. That section, however, does not serve to support the
inference drawn by the majority because, like the statute in
dispute, there is no reference to initial or subsequent
convictions. Without such clarification, the cited section may
simply refer to the situation where a defendant convicted of a
qualifying offense is transferred among the various agencies
during the course of serving his sentence based upon that
particular conviction.
Furthermore, the inference the majority seeks to draw from
section 1285.30(c) is challenged by section 1285.70, which
addresses the expungement of records. Specifically, section
1285.70 provides that the genetic marker grouping will be removed
from the local, state, and national offender databases after
receipt of a final court order requiring expungement “[i]n the
event the disposition or conviction upon which a sample
collection was based has been reversed based on actual innocence
or that a pardon has been granted based on actual innocence.”
(Emphasis added.) 20 Ill. Adm. Code §1285.70, amended at 31 Ill.
Reg. 9249, 9258, eff. June 12, 2007. This quoted language
indicates an expectation that the databases will contain multiple
-10-
No. 1-09-1461
records based on multiple DNA samples where a defendant has
successive qualifying convictions.
I do not believe that the submission of an additional DNA
sample upon a defendant’s subsequent conviction of a qualifying
offense serves no purpose or is superfluous. As discussed in
Marshall, the statutory provision for the expungement of records
and destruction of DNA samples upon the reversal of a conviction
or a pardon could result, under the majority’s interpretation of
the statute, in a scenario where a defendant’s DNA is not on file
despite his valid conviction of a qualifying offense. Marshall,
402 Ill. App. 3d at 1083. Specifically, under the majority’s
interpretation of the statute, it is possible that a defendant
who is no longer in custody and has multiple convictions of
qualifying offenses, could receive a pardon of his initial
conviction. A danger exists then that his DNA, which was
collected based upon his initial conviction, could be destroyed
despite the existence of his subsequent and still valid
convictions.
Although the majority dismisses the possibility that its
interpretation of the statute creates such a “loophole,” the
majority cites to no statutory provision or agency procedure or
rule that ensures against such a mishap. Notably, section
1285.70 of Title 20 of the Illinois Administrative Code contains
no provision or warning to check for a defendant’s multiple
convictions before his record is deleted from the databases and
-11-
No. 1-09-1461
his DNA material is destroyed as a result of expungement. 20
Ill. Adm. Code §1285.70, amended at 31 Ill. Reg. 9249, 9258, eff.
June 12, 2007.
Finally, because I would find that the statute authorized
the trial court to order defendant to submit a DNA sample and pay
the analysis fee, the trial court’s order is not void and the
procedural default by defendant should be honored on appeal.
-12-