dissenting:
I respectfully dissent. I would follow this court’s earlier decisions in Marshall, 402 Ill. App. 3d 1080, Grayer, People v. Hubbard, 404 Ill. App. 3d 100 (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 quahfying 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, 403 Ill. App. 3d at 801-02; Hubbard, 404 Ill. App. 3d at 103.
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 Willis, 402 Ill. App. 3d 47, and People v. Unander, 404 Ill. App. 3d 884 (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, 403 Ill. App. 3d at 801. 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, 404 Ill. App. 3d at 888. The case before us does not involve a conditional order.
In Marshall, 402 Ill. App. 3d at 1083, Grayer, 403 Ill. App. 3d at 801, Hubbard, 404 Ill. App. 3d at 102, and Bomar, 404 Ill. App. 3d at 151-52, 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 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 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 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.