concurring in part and dissenting in part:
The majority has found that the evidence is sufficient to prove defendant’s guilt beyond a reasonable doubt (405 Ill. App. 3d at 146), that defendant’s claim of ineffective assistance of trial counsel “must be remanded to the trial court so that the trial judge can conduct a preliminary investigation” (405 Ill. App. 3d at 148), and that the trial court’s finding that defendant violated his probation by committing the offense of aggravated battery with a firearm is not against the manifest weight of the evidence (405 Ill. App. 3d at 148). I concur in those portions of the majority’s judgment. The majority has also found that the trial court properly required defendant to provide a DNA sample and to pay the analysis fee as a consequence of convictions in both cause Nos. 06—CF—370 and 07— CF—475. 405 Ill. App. 3d at 150.
I agree with the majority that it would be error to require defendant to submit two samples and to pay two fees as a consequence of the conviction and subsequent violation of probation in cause No. 06 — CF—370. 405 Ill. App. 3d at 149-50. I concur in that portion of the majority’s judgment with regard to the submission of DNA samples and the payment of analysis fees in cause No. 06 — CF—370.
I believe that requiring defendant to submit and pay an analysis fee for multiple DNA samples for his convictions in cause Nos. 06— CF — 370 and 07 — CF—475 is neither supported by logic or required by law. In People v. Marshall, 402 Ill. App. 3d 1080, 1083, 931 N.E.2d 1271, 1273 (2010), we found that “[njowhere 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, despite defendant’s assertion that the language in the statute ‘indicates that a person’s DNA should be collected only once.’ ” Marshall, 402 Ill. App. 3d at 1083, 931 N.E.2d at 1273. On those grounds, we declined to follow the holding in People v. Evangelista, 393 Ill. App. 3d 395, 399, 912 N.E.2d 1242, 1246 (2009), which found “that once ‘a defendant has submitted a DNA sample, requiring additional samples would serve no purpose.’ [Citation.]” Marshall, 402 Ill. App. 3d at 1083, 931 N.E.2d at 1273, quoting Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at 1246.
While I recognize that the current version of the statute enacted by the legislature does not limit the production of a DNA sample to an offender’s first felony conviction (405 Ill. App. 3d at 150), the current version of the statute also does not oblige the trial court to order offenders with multiple convictions to provide additional DNA samples upon every conviction. The relevant portion of the statute reads as follows:
“Any person convicted or found guilty *** of any offense classified as a felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of State Police in accordance with the provisions of this Section ***.” 730 ILCS 5/5 — 4—3(a) (West 2006).
Although the majority does not state it explicitly, what it actually holds is that the statute requires defendants with a DNA sample on file to submit a duplicate DNA sample and to pay another analysis fee upon every subsequent conviction for a qualifying offense. None of the provisions of the statute require the submission of superfluous DNA samples. See 730 ILCS 5/5 — 4—3 (West 2006). Thus, I disagree with the grounds of decision in Marshall and the majority’s reasoning here, that the statute “does not relieve the court of the obligation to order offenders with multiple convictions *** to provide DNA samples upon [each] conviction.” (Emphases added.) 405 Ill. App. 3d at 150. The statute does not relieve the trial court of that obligation because that obligation does not exist. The defendant is not excused from that mandate by only being required to submit one DNA sample because no mandate requiring duplicative samples exists in the statute. See Marshall, 402 Ill. App. 3d at 1083, 931 N.E.2d at 1273.
Moreover, I believe that the holding in Marshall and the majority’s judgment in the case at bar contradict the intent of the legislature. ‘ ‘ [A]dministrative rules interpreting an act or ordinance are given substantial deference as an informed source of guidance as to legislative intent ***.” National Pride of Chicago, Inc. v. City of Chicago, 206 Ill. App. 3d 1090, 1101, 562 N.E.2d 563, 570 (1990). Section (h) of the statute provides:
“The Illinois Department of State Police may promulgate rules for the form and manner of the collection of blood, saliva, or tissue samples and other procedures for the operation of this Act. The provisions of the Administrative Review Law shall apply to all actions taken under the rules so promulgated.” 730 ILCS 5/5 — 4— 3(h) (West 2006).
The statute is silent with regard to qualifying offenders who already have a DNA sample on file. The legislature’s silence on that question creates an ambiguity in the statute that permits this court to look to extrinsic aids of construction. See Gekas v. Williamson, 393 Ill. App. 3d 573, 587, 912 N.E.2d 347, 359 (2009) (under the canon of construction of expressio unius est exclusio alterius, “[t]he force of the inference from silence depends on whether, under the circumstances, some further expression would have been expected”). In this case, the best aid is the interpretation of the statute by the agency charged with its enforcement.
“ ‘It is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute.’ [Citation.] An agency’s interpretation expresses an informed opinion on legislative intent, based upon expertise and experience.” Sartwell v. Board of Trustees of Teachers’ Retirement System, 403 Ill. App. 3d 719, 728 (2010).
The statute provides that “[a]gencies designated by the Illinois Department of State Police and the Illinois Department of State Police may contract with third parties to provide for the collection or analysis of DNA, or both, of an offender’s blood, saliva, and tissue samples.” 730 ILCS 5/5 — 4—3(d—6) (West 2006). Section 1285.30(c) of Title 20 of the Administrative Code provides, in part, as follows:
“If 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 Department of Corrections is the designated agency and is responsible for the collection of the sample from the offender before his/her release on parole, or mandatory supervised release or final discharge or, in the event the offender is sentenced to death or natural life, at any time.” 20 Ill. Adm. Code §1285.30(c)(2), amended at 31 Ill. Reg. 9249, 9254, eff. June 12, 2007.
Further, section 1285.30(g) provides that “[t]he designated agency is responsible for ensuring that the offender is eligible for collection under the statute.”
Unless “the qualifying offender for any reason is not under the control or supervision of any agency listed in subsections (c)(1) through (c)(6)” (20 Ill. Adm. Code §1285.30(c)(7), amended at 31 Ill. Reg. 9249, 9255, eff. June 12, 2007), every provision of the Code identifying the “designated agency” that is “responsible for the collection of the sample from the offender” and for “ensuring that the offender is eligible for collection under the statute” qualifies its designation by requiring that the offender “has not previously had a sample taken” before it identifies the agency. See 20 Ill. Adm. Code §§1285.30(c)(1) through (c)(6), amended at 31 Ill. Reg. 9249, 9254-55, eff. June 12, 2007.
It is clear that if the offender is under the control of a “designated agency” and has previously had a sample taken, there is no “designated agency responsible for sample collection,” 20 Ill. Adm. Code §1285.30(c), amended at 31 Ill. Reg. 9249, 9254-55, eff. June 12, 2007. It is reasonable to assume that in practice, no additional sample will be collected by any agency under those circumstances. Therefore, it also stands to reason that the agency charged with administering the statute does not believe that the legislature intended the statute to require duplicate DNA samples to be on file or to mandate the collection of duplicate analysis fees, under any circumstances.
I find nothing that leads me to conclude that the statute requires a duplicate DNA sample from an offender with a sample already on file. I would reject this court’s earlier decision in Marshall, grant defendant’s petition for rehearing on this question, and reverse the trial court’s order requiring defendant to submit multiple DNA samples and to pay multiple DNA analysis fees. Accordingly, I respectfully dissent.