People v. Jones ( 2006 )

FIFTH DIVISION
June 23, 2006
No. 1-05-0020
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
LARRY JONES, ) Honorable
) Rickey Jones,
Defendant-Appellant. ) Judge Presiding.
JUSTICE O=MARA FROSSARD delivered the opinion of the court:
Following a bench trial, defendant Larry Jones was convicted of possession of a
controlled substance and sentenced to five years= imprisonment. The trial court also
ordered defendant to pay $1,224. On appeal, defendant does not challenge his
conviction or sentence, but raises three contentions concerning the order to pay $1,224:
(1) that he was denied due process when he was ordered to pay a $5 fee for deposit in
the Spinal Cord Injury Paralysis Cure Research Trust Fund; (2) that the trial court
improperly imposed a $20 fine for deposit in the Violent Crime Victims Assistance Fund;
and (3) that he is entitled to apply a $5-per-day credit for incarceration on a bailable
offense to the $100 Trauma Center Fund charge, the $500 controlled substance
assessment, and the $4 traffic and criminal conviction surcharge. Defendant also
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contends that the extraction of his blood and perpetual storing of his DNA profile
pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West
2004)) violates his fourth amendment right to be free from unreasonable searches and
seizures.
BACKGROUND
At trial, Officer Brian Kinnane testified that on the evening of February 20, 2004,
he and his partner, Officer Frank Sarabia, conducted a narcotics surveillance operation
near 2101 South Christiana, Chicago, where defendant was standing on the sidewalk.
On three separate occasions during the surveillance operation, Officer Kinnane
observed an unknown man engage defendant in a brief conversation and hand
defendant money. After these conversations, defendant would walk across the street to
an abandoned vehicle, retrieve a small black box from under the driver=s side wheel
well, take a small item from the box, walk back across the street, and give the item to
the unknown man. After three such transactions, the officers broke their surveillance
and approached defendant. Officer Kinnane detained defendant while Officer Sarabia
recovered the black box.
Officer Sarabia testified that the black box contained six Ziploc bags of what he
believed to be crack cocaine. The parties stipulated that Monica Kinslow, a forensic
chemist with the Illinois State Crime Lab, would have testified that the six plastic bags
weighed .8 grams total, and that the one bag she analyzed tested positive for the
presence of cocaine.
The trial court found defendant guilty of possession of a controlled substance,
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sentenced defendant to five years in prison, and ordered defendant to pay $1,224 in
Acosts and fees.@ The costs and fees included the following amounts: (1) $5 designated
ATrauma Fund Spinal Cord@; (2) $20 designated AViolent Crime Victim Assistance@; (3)
$100 designated ATrauma Fund@; (4) $500 designated AAssessment Controlled
Substance@; and (5) $4 designated ACriminal/Traffic Conviction Surcharge.@ The trial
court also ordered defendant to submit a blood sample for DNA analysis. Defendant
was incarcerated for 265 days prior to being convicted.
ANALYSIS
On appeal, defendant challenges the various fines and fees imposed against him
and contends that the extraction of his blood and perpetual storing of his DNA profile
violates his fourth amendment right to be free from unreasonable searches and
seizures. We review the constitutionality of statutes de novo. People v. Dinelli, 217 Ill.
2d 387, 397 (2005).
I. Spinal Cord Fund Fee
Defendant contends that he was denied due process when he was ordered to
pay a $5 fee for deposit in the Spinal Cord Injury Paralysis Cure Research Trust Fund
(Spinal Cord Fund) pursuant to section 5-9-1.1 of the Unified Code of Corrections (730
ILCS 5/5-9-1.1 (West 2004)). Defendant argues that there is no reasonable relationship
between his conviction for possession of a controlled substance and the public interest
in funding spinal cord research.
Section 5-9-1.1 provides, in relevant part, as follows:
A(a) When a person has been adjudged guilty of a
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drug related offense involving possession or delivery of
cannabis or possession or delivery of a controlled substance
as defined in the Cannabis Control Act, as amended, or the
Illinois Controlled Substances Act, as amended, in addition
to any other penalty imposed, a fine shall be levied by the
court at not less than the full street value of the cannabis or
controlled substances seized.
***
(c) In addition to any penalty imposed under
subsection (a) of this Section, a fee of $5 shall be assessed
by the court, the proceeds of which shall be collected by the
Circuit Clerk and remitted to the State Treasurer under
Section 27.6 of the Clerks of Courts Act for deposit into the
Spinal Cord Injury Paralysis Cure Research Trust Fund.
This additional fee of $5 shall not be considered a part of the
fine for purposes of any reduction in the fine for time served
either before or after sentencing.@ 730 ILCS 5/5-9-1.1 (c)
(West 2004).
This court has twice found section 5-9-1.1(c) unconstitutional as it applies to
defendants convicted of possession of a controlled substance. People v. Rodriguez,
362 Ill. App. 3d 44, 54 (2005), pet. for leave to appeal pending, No. 101725; People v.
Fort, 362 Ill. App. 3d 1, 10 (2005), pet. for leave to appeal pending, No. 101806; see
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also People v. McNeal, No. 1-04-2047, slip op. at 11 (March 31, 2006) (finding section
5-9-1.1(c) unconstitutional as applied to defendant convicted of possession with intent
to deliver), pet. for leave to appeal pending, No. 102593.
In both Rodriguez and Fort, the defendants contended that imposition of the $5
Spinal Cord Fund fee violated their due process rights. Rodriguez, 362 Ill. App. 3d at
47, 48; Fort, 362 Ill. App. 3d at 1-2, 8. In Rodriguez, we agreed with the defendant,
explaining as follows:
AWhile driving under the influence of a controlled substance
arguably bears a rational relationship to spinal cord
research, we cannot say that the simple possession of a
controlled substance, an offense that does not involve or
require the use of a motor vehicle, is reasonably related to
spinal cord research. Furthermore, the parties have not
called to our attention any other statutes that impose a fee
earmarked for the Spinal Cord Injury Research Fund upon
defendants whose crimes did not involve motor vehicles.
Accordingly, we find the relationship between possession of
a controlled substance and the Spinal Cord Injury Research
Fund simply too attenuated to survive defendant=s due
process challenge.@ Rodriguez, 362 Ill. App. 3d at 54.
We came to the same conclusion in Fort, finding that there was Ano reason to depart
from the holding in Rodriguez.@ Fort, 362 Ill. App. 3d at 10.
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As in Rodriguez and Fort, the defendant in the instant case was convicted of
possession of a controlled substance and ordered to pay a $5 Spinal Cord Fund fee.
Accordingly, Rodriguez and Fort are directly on point. We agree with the Fort court that
there is no reason to depart from the holding of Rodriguez, and find that defendant=s
due process rights were violated by the order requiring him to pay a $5 Spinal Cord
Fund fee. Accordingly, the $5 Spinal Cord Fund fee is stricken from the Costs and Fees
order.
II. Credit for Incarceration on a Bailable Offense
Defendant contends that under section 110-14 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/110-14 (West 2004)), he is entitled to apply a $5-per-day credit for
incarceration on a bailable offense to the $100 Trauma Center Fund charge, the $500
controlled substance assessment, and the $4 traffic and criminal conviction surcharge.
The State asserts that the $5 credit is applicable only to Afines,@ that the charges
identified by defendant were not Afines,@ and that therefore, the credit should not apply.
Section 110-14 provides in relevant part as follows:
AAny 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 2004).
AThe plain language of this statute indicates that the credit applies only to >fines=
that are imposed pursuant to a conviction, not to any other court costs or fees.@ People
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v. Tolliver, 363 Ill. App. 3d 94, 96 (2006). In the instant case, it is undisputed that
defendant spent 265 days in custody prior to sentencing. Under section 110-14, he
may apply a $5-per-day credit for each of the 265 days to any Afines@ assessed upon
conviction. In order to determine whether the credit applies to any of the charges
identified by defendant, we must determine whether the respective charges are Afines.@
A Afine@ is a pecuniary punishment imposed as part of a criminal sentence. Tolliver, 363
Ill. App. 3d at 96-97, quoting People v. Bishop, 354 Ill. App. 3d 549, 562 (2004). In
contrast, a Afee@ is a charge for labor or services that is compensatory in nature.
Tolliver, 363 Ill. App. 3d at 97, quoting Bishop, 354 Ill. App. 3d at 562.
A. Trauma Center Fund
Pursuant to section 5-9-1.1(b) of the Unified Code of Corrections, defendant was
ordered to pay $100 to the Trauma Center Fund. 730 ILCS 5/5-9-1.1(b) (West 2004).
Section 5-9-1.1(b) provides as follows:
A(b) In addition to any penalty imposed under
subsection (a) of this Section [for drug related offenses], a
fine of $100 shall be levied by the court, the proceeds of
which shall be collected by the Circuit Clerk and remitted to
the State Treasurer under Section 27.6 of the Clerks of
Courts Act for deposit into the Trauma Center Fund for
distribution as provided under Section 3.225 of the
Emergency Medical Services (EMS) Systems Act.@ 730
ILCS 5/5-9-1.1(b) (West 2004).
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Section 27.6 of the Clerks of Courts Act, which is specifically referenced in section 5-9-
1.1(b), above, provides, in relevant part, as follows:
A(c) In addition to any other fines and court costs
assessed by the courts, any person convicted for a violation
of Sections 24-1.1, 24-1.2, or 24-1.5 of the Criminal Code of
1961 or a person sentenced for a violation of the Cannabis
Control Act or the Controlled Substance Act shall pay an
additional fee of $100 to the clerk of the circuit court. This
amount, less 2 1/2% that shall be used to defray
administrative costs incurred by the clerk, shall be remitted
by the clerk to the Treasurer within 60 days after receipt for
deposit into the Trauma Center Fund. This additional fee of
$100 shall not be considered a part of the fine for purposes
of any reduction in the fine for time served either before or
after sentencing.@ 705 ILCS 105/27.6(c) (West 2002).
We are mindful that the plain language of section 5-9-1.1(b) refers to the $100
charge as a Afine.@ The charge has been treated as a fine for purposes of the $5-per-
day credit in People v. Littlejohn, 338 Ill. App. 3d 281, 284 (2003) (APursuant to section
110-14, the defendant should be awarded a credit *** against *** the trauma center
fine@), and in People v. Joseph, 176 Ill. App. 3d 636, 642 (1988) (AThe language of
section 5-9-1.1 is clear and unambiguous and does not indicate an intent to exclude
fines imposed under this section from the $5-a-day credit allowed under section 110-
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14@). We further note that a non-precedential, unpublished decision finding the charge
to be a fine has been accepted for review by our Supreme Court. See People v. Jones,
No. 1-04-3117, slip op. at 9-10 (2005) (unpublished order under Supreme Court Rule
23) (AWe find defendant is entitled to a setoff against his trauma fund fine@), pet. for
leave to appeal allowed, No. 101996.
Nevertheless, we conclude that defendant is not entitled to any credit toward the
$100 he was ordered to pay to the Trauma Center Fund. We make this finding in
accordance with People v. Squire, No. 1-04-2387, slip op. at 6-8 (May 5, 2006). In
Squire, we examined the language of section 5-9-1.1(b) in conjunction with the related
language of section 27.6(c) of the Clerks of Courts Act, emphasizing the express
language of section 27.6(c) that the A[Trauma Center Fund] fee of $100 shall not be
considered a part of the fine for purposes of any reduction in the fine for time served
either before or after sentencing.@ 705 ILCS 105/27.6(c) (West 2002), quoted in Squire,
slip op. at 7. Reading the two sections together, we determined in Squire that payments
to the Trauma Center Fund may not be offset by the $5-per-day credit for time served
provided in section 110-14. Squire, slip op. at 7-8. We agree with the Squire court=s
approach of reading sections 5-9-1.1(b) and 27.6(c) together, as it is axiomatic that
statutes related to the same subject matter are to be read in conjunction. People v.
Cherry Valley Public Library District, 356 Ill. App. 3d 893, 897 (2005). Consistent with
our decision in Squire, we reject defendant=s contention that he is entitled to apply a $5
per day credit to the $100 Trauma Center Fund charge. See also People v. Tolliver,
363 Ill. App. 3d 94, 96 (2006) (defendant acknowledged that the $100 charge for the
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Trauma Center Fund cannot be reduced by $5 per day).
B. Controlled Substance Assessment
Pursuant to section 411.2 of the Illinois Controlled Substances Act, defendant
was ordered to pay a $500 controlled substance assessment. 720 ILCS 570/411.2
(West 2004). Section 411.2(a) provides as follows:
A(a) Every person convicted of a violation of this Act,
and every person placed on probation, conditional discharge,
supervision or probation under Section 410 of this 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 2004).
In prior cases involving this issue, we have repeatedly and consistently
determined that controlled substance assessments imposed pursuant to section 411.2
are fines for which defendants are entitled to apply the $5-per-day credit. See, e.g.,
People v. Youngblood, No. 2-04-0987 (May 17, 2006); McNeal, slip op. at 9; Fort, 362
Ill. App. 3d at 5-6; People v. Haycraft, 349 Ill. App. 3d 416, 430 (2004); Littlejohn, 338 Ill.
App. 3d at 284; People v. Gathing, 334 Ill. App. 3d 617, 620 (2002); People v.
Rodriguez, 276 Ill. App. 3d 33, 41 (1995); People v. Otero, 263 Ill. App. 3d 282, 287
(1994); People v. Reed, 255 Ill. App. 3d 949, 951 (1994); People v. Brown, 242 Ill. App.
3d 465, 466 (1993). We decline to depart from this line of cases. Accordingly, we find
that a $5-per-day credit may be applied to defendant=s $500 controlled substance
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assessment. Defendant=s credit is limited to $500 because the amount of the credit
may not exceed the amount of the fine imposed. 725 ILCS 5/110-14 (West 2004).
C. Traffic and Criminal Conviction Surcharge
Pursuant to section 5-9-1(c-9) of the Unified Code of Corrections, defendant was
ordered to pay $4 to the Traffic and Criminal Conviction Surcharge Fund. 730 ILCS 5/5-
9-1(c-9) (West 2004). Section 5-9-1(c-9) provides as follows:
A(c-9) There shall be added to every fine imposed in
sentencing for a criminal or traffic offense *** an additional
penalty of $4 imposed.@ 730 ILCS 5/5-9-1(c-9) (West 2004).
The applicability of the $5-per-day credit to the traffic and criminal conviction
surcharge set out in section 5-9-1(c-9) was addressed in People v. Jamison, No. 1-04-
2219, slip op. at 4-7 (April 12, 2006). In Jamison, we noted that in order to resolve the
issue of whether the $5 credit would apply, it was necessary to determine whether the
legislature intended the penalty to be treated as a fine, or whether the legislature
intended the penalty to be treated as something else, such as a fee or court cost.
Jamison, slip op. at 5. Quoting Black=s Law Dictionary, we noted that a Apenalty@ is
defined as a A >[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment
or fine.= @ Jamison, slip op. at 5, quoting Black=s Law Dictionary 1153 (7th ed. 1999).
We concluded that because there is no indication the legislature intended to depart from
the plain meaning of the statute, the Aadditional penalty@ provided for in section 5-9-1(c-
9) is a pecuniary punishment in the nature of a fine. Jamison, slip op. at 7.
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Accordingly, consistent with Jamison, we hold that pursuant to section 110-14,
defendant may apply the $5-per-day credit to the $4 traffic and criminal conviction
surcharge. However, his credit is limited to $4 because the amount of the credit may
not exceed the amount of the fine. 725 ILCS 5/110-14 (West 2004).
III. Violent Crime Victims Assistance Fund
Defendant contends that $20 for the Violent Crime Victims Assistance Fund was
erroneously assessed to him because the penalty may be applied only where Ano other
fine is imposed.@ The $20 penalty was assessed pursuant to section 10(c)(2) of the
Violent Crime Victims Assistance Act, which provides as follows:
A(c) When any person is convicted in Illinois on or
after August 28, 1986, of an offense listed below, or placed
on supervision for such an offense on or after September 18,
1986, and no other fine is imposed, the following penalty
shall be collected by the Circuit Clerk:
***
(2) $20, for any other felony or
misdemeanor, excluding any conservative
offense.@ 725 ILCS 240/10(c)(2) (West 2004).
Defendant is correct that under the plain language of the statute, the $20 penalty
may be ordered only if Ano other fine is imposed.@ 725 ILCS 240/10(c) (West 2004).
We have already determined that two other fines were imposed upon defendant in this
case: (1) the $500 controlled substances assessment and (2) the $4 traffic and criminal
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conviction surcharge. Therefore, the trial court acted improperly when it imposed a $20
Violent Crime Victims Assistance Fund penalty in this case. We strike the penalty from
the order.
IV. Constitutionality of DNA Statute
Finally, defendant contends that the extraction of his blood and perpetual storing
of his DNA profile pursuant to section 5-4-3 of the Unified Code of Corrections (730
ILCS 5/5-4-3 (West 2004)) violates his fourth amendment right to be free from
unreasonable searches and seizures.
Recently, the Illinois Supreme Court affirmed the constitutionality of the statute
authorizing extraction and storing of DNA in People v. Garvin, 219 Ill. 2d 104 (2006).
The supreme court held that the statute=s purpose B to Aabsolve innocents, identify the
guilty, deter recidivism by identifying those at a high risk of reoffending, or bring closure
to victims@ B Ademonstrate[s] a special need beyond ordinary law enforcement.@ Garvin,
219 Ill. 2d at 122. In Garvin, the defendant also argued that the State=s interest in the
blood sample and DNA did not outweigh his privacy interest, Aeven in light of his felony
conviction.@ Garvin, 219 Ill. 2d at 123. The supreme court noted that a convicted
felon=s privacy rights are Asubstantially reduced due to his status as a convicted felon.@
Garvin, 219 Ill. 2d at 124. The supreme court found Athe State=s interest in effective
crime investigations and prevention, as advanced by section 5-4-3, outweighs
defendant=s privacy interest as a convicted felon.@ Garvin, 219 Ill. 2d at 125. In
conclusion, the supreme court rejected defendant=s constitutional challenge as follows:
AWe also hold that the DNA sampling and database mandated by section 5-4-3 is
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constitutional both as applied in defendant=s case and on its face.@ Garvin, 219 Ill. 2d at
125.
Therefore, based on Garvin, we uphold section 5-4-3 as constitutional on its face
and as applied to defendant. The order of the circuit court regarding the extraction and
storing of defendant=s DNA is affirmed.
CONCLUSION
For the reasons explained above we: (1) strike from the order the $5 Spinal Cord
Fund fee; (2) amend the costs and fees order to reflect a credit of $504 for the $500
controlled substance assessment and the $4 traffic and criminal conviction surcharge;
and (3) strike from the order the $20 Violent Crime Victims Assistance Fund penalty.
The sentencing order shall be modified to reflect this credit.
We affirm the trial court=s order that the $5-per-day credit may not be applied to
the $100 Trauma Center Fund penalty, and affirm the trial court=s order regarding the
extraction and storing of defendant=s DNA.
Affirmed as modified.
GALLAGHER, P.J., concurs.
NEVILLE, J., concurs in part and dissents in part.
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JUSTICE NEVILLE, concurring in part and dissenting in part:
I respectfully dissent because I believe the majority erred when it affirmed the
trial court=s order directing the defendant to pay $100 to the Trauma Center Fund,
pursuant to section 5-9-1.1(b) of the Unified Code of Corrections (Code). 730 ILCS 5/5-
9-1.1(b) (West 2004). I concur with the court=s holding in People v. Joseph, 176 Ill. App.
3d 636, 642 (1988), where the Joseph court reviewed section 5-9-1.1(b) of the Code
and made the following statement:
AThe language of section 5-9-1.1 is clear and unambiguous
and does not indicate an intent to exclude fines imposed
under this section from the $5-a-day credit allowed under
section 110-14. (See People v. Hare (1988), 119 Ill. 2d 441,
519 N.E.2d 879.) In Hare, our supreme court addressed and
rejected a similar argument with respect to a fine imposed
under sections 1 through 11 of the Violent Crime Victims
Assistance Act (Ill. Rev. Stat., 1984 Supp., ch. 70, pars. 501
through 511), prior to its amendment expressly excluding the
$5-a-day credit allowed pursuant to section 110-14. Any
attempt to deny a defendant this credit, mandated by section
110-14, must be accomplished by the legislature. See
People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.@
Joseph, 176 Ill. App. 3d at 642.
I believe that had the legislature intended to exclude section 5-9-1.1(b) from such
credits, it would have specifically made such an exclusion. Therefore, while I dissent
because I believe that we should follow Joseph and hold that the defendant is entitled to
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a setoff against his trauma fund fine (Joseph, 176 Ill. App. 3d at 642), I concur in the
remainder of the opinion.
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