People v. Unander

NO. 4-09-0411 Filed 9/28/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ANTOINE T. UNANDER, ) No. 08CF948
Defendant-Appellant. )
) Honorable
) Heidi N. Ladd,
) Judge Presiding.
_________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE POPE delivered the opinion of the court:
In October 2008, defendant, Antoine T. Unander, pleaded
guilty to residential burglary (720 ILCS 5/19-3 (West 2008)). In
January 2009, the trial court sentenced defendant to 15 years’
imprisonment with 236 days’ sentence credit and ordered him to
pay all fines, fees, and costs.
Defendant appeals, arguing (1) the trial court erred in
failing to apply defendant’s presentence credit toward his $5
drug-court fee, (2) the $200 deoxyribonucleic-acid (DNA)
assessment was improper, (3) the $10 Arrestee’s Medical Costs
Fund assessment was improper, and (4) the $20 Violent Crime
Victims Assistance Fund assessment (VCVA) should be reduced to
$4. We affirm as modified and remand with directions.
I. BACKGROUND
On May 20, 2008, the State charged defendant by
information with residential burglary.
On October 29, 2008, defendant pleaded guilty to
residential burglary. In exchange for defendant’s plea, the
State agreed not to charge him with additional conduct contained
in the police reports and to cap its sentencing recommendation at
15 years’ imprisonment.
On January 9, 2009, the trial court sentenced defendant
to 15 years’ imprisonment, with 236 days’ sentence credit. The
court also ordered the following:
"[Defendant] is to pay all fines, fees,
and costs as authorized by statute. He is to
receive a credit of any fine that is to be
imposed for time served although I don’t
believe there is any here. If he has not
already done so, he must submit a specimen of
blood, saliva, or tissue to the Illinois
Department of State Police in accordance with
the statute for DNA sampling and then he
would be required to pay a $200 genetic[-]
marker[-]grouping[-]analysis fee."
The supplement to the record contains a certified copy
of defendant’s fines, fees, and costs and shows, inter alia, a
$200 DNA assessment, a $5 drug-court fee, a $10 Arrestee’s
Medical Costs Fund fee, and a $20 VCVA fee.
On January 16, 2009, defendant pro se filed a motion to
reconsider sentence.
On May 19, 2009, defendant’s trial counsel filed an
amended motion to reconsider sentence, which the trial court
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denied.
This appeal followed.
II. ANALYSIS
On appeal, defendant argues (1) the trial court erred
in omitting time-served credit against defendant’s $5 drug-court
fee, (2) the $200 DNA-analysis fee was improper where it had
already been assessed in three of his prior cases, (3) the $10
Arrestee’s Medical Costs Fund assessment was improper where no
medical costs were incurred as a result of defendant’s arrest,
and (4) once the $200 DNA-analysis fee is vacated, the $20 VCVA
assessment should be reduced to $4.
A. $5-Per-Day Credit
Defendant argues, and the State concedes, defendant
should receive monetary credit for time spent in custody against
the $5 drug-court fee imposed by the trial court pursuant to
section 5-1101(f)(2) of the Counties Code (55 ILCS 5/5-1101(f)(2)
(West 2008)).
Section 110-14(a) of the Code of Criminal Procedure of
1963 (Procedure Code) provides the following:
"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(a) (West
2008).
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In this case, it is undisputed defendant was
incarcerated 236 days on a bailable offense. As a result,
defendant has $1,180 in available credit against fines. The
State concedes the $5 drug-court "fee" is actually a fine because
the record does not show it was sought to reimburse the State for
any cost incurred as a result of prosecuting defendant. We
accept the State’s concession and agree.
The central characteristic separating a fee from a fine
is how the attributes of the charge are to be used. See People
v. Paige, 378 Ill. App. 3d 95, 102, 880 N.E.2d 675, 682 (2007).
"[A] 'charge is a fee if and only if it is intended to reimburse
the state for some cost incurred in [the] defendant’s prosecu-
tion. [Citations.]'" Paige, 378 Ill. App. 3d at 102, 880 N.E.2d
at 682, quoting People v. Jones, 223 Ill. 2d 569, 600, 861 N.E.2d
967, 986 (2006). The revenue from the charges imposed under
section 5-1101(f)(2) are intended to be used "for the operation
and administration of the drug court" (55 ILCS 5/5-1101(f) (West
2008)) and not to reimburse the State for costs incurred as a
result of prosecuting defendant, who was not transferred to drug
court. As a result, the $5 assessment is a fine. Because the
assessment is a fine, defendant is entitled to apply his $1,180
available credit toward that assessment.
B. Analysis Fee
Defendant argues the $200 DNA-analysis fee (730 ILCS
5/5-4-3(j) (West 2008)) was improper because it had already been
assessed in three of his prior cases. The State argues each time
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a defendant is convicted of a felony he must pay the $200 assess-
ment even where he has previously surrendered a DNA sample.
During defendant’s January 2009 sentencing hearing, the
trial court ordered the following:
"If [defendant] has not already done so, he
must submit a specimen of blood, saliva, or
tissue to the Illinois Department of State
Police in accordance with the statute for DNA
sampling and then he would be required to pay
a $200 genetic[-]marker[-]grouping[-]analysis
fee." (Emphasis added.)
Defendant contends his presentence investigation report
(PSI) shows he has previously been ordered to submit a DNA sample
and to pay the $200 analysis fee in connection with three prior
and unrelated felony cases.
In People v. Evangelista, 393 Ill. App. 3d 395, 912
N.E.2d 1242 (2009), the Second District found the $200 DNA-
analysis fee was improper where the defendant had already pro-
vided a DNA sample in conjunction with one of his prior convic-
tions. Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at 1246.
The court reasoned "the obvious purpose of the statute is to
collect from a convicted defendant a DNA profile to be stored in
a database." Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at
1246. "Once a defendant has submitted a DNA sample, requiring
additional samples would serve no purpose." Evangelista, 393
Ill. App. 3d at 399, 912 N.E.2d at 1246. As a result, the court
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vacated the assessment. Evangelista, 393 Ill. App. 3d at 402,
912 N.E.2d at 1248.
In this case, the trial court ordered defendant to
submit a sample and to pay the fee in the event he had not
already done so. Defendant’s PSI shows he has previously been
ordered to do so. The State argues Evangelista is distinguish-
able from this case because the evidence clearly established the
defendant there had previously provided a DNA sample. See
Evangelista, 393 Ill. App. 3d at 399, 912 N.E.2d at 1246. We
note the State’s brief was filed on May 26, 2010. Thereafter,
defendant moved to supplement the record with evidence showing he
submitted a DNA sample for analysis on October 10, 2003, in
connection with a prior conviction. On June 9, 2010, we allowed
defendant’s motion.
Section 5-4-3 of the Unified Code of Corrections
(Unified Code) mandates all felons submit a DNA sample for
profiling and entry into a computer database. See 730 ILCS 5/5-
4-3 (West 2008). "Any person required *** to submit [a DNA
sample] for analysis and categorization into genetic marker
grouping *** shall pay an analysis fee of $200." 730 ILCS 5/5-4-
3(j) (West 2008).
The statute requires an analysis fee in association
with the collection of a DNA sample. 730 ILCS 5/5-4-3(j) (West
2008). It mandates any person required to submit a DNA sample
for analysis shall pay an analysis fee of $200. 730 ILCS 5/5-4-
3(j) (West 2008). If no analysis is to take place--because no
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sample was ordered to be provided--then there can be no analysis
fee.
We note the First District in People v. Grayer, No. 1-
09-0021, slip op. at 7 (August 24, 2010), ___ Ill. App. 3d ___,
___, ___ N.E.2d ___, ___, recently held the $200 DNA-analysis fee
may be assessed upon any felony conviction regardless of whether
it was previously assessed. The Grayer court reasoned a person
convicted of a subsequent felony is just as much a convicted
felon and thus just as required to submit a DNA sample as a
person convicted for the first time. Grayer, slip op. at 6, ___
Ill. App. 3d at ___, ___ N.E.2d at ___; see People v. Marshall,
402 Ill. App. 3d 1080, 1083, 931 N.E.2d 1271, 1273 (Third Dis-
trict) ("[n]owhere 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").
However, we find the instant case distinguishable.
Here, the trial court stated if defendant had not already done
so, he was to submit a DNA specimen and pay the $200 DNA-analysis
fee. Because defendant had already done so, the court was not
requiring him to submit a specimen or pay the fee. Because he
was not required to submit the specimen, he was not required to
pay the fee. Considering the plain language of the statute, the
Second District’s reasoning in Evangelista, and the trial court’s
conditional order of the DNA-analysis fee, we see no reason for
the imposition of the DNA-analysis fee in this case. Accord-
ingly, we vacate the $200 DNA-analysis fee.
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C. Arrestee’s Medical Charge
Defendant argues the trial court should not have
imposed upon him a $10 Arrestee’s Medical Costs Fund assessment.
Specifically, defendant contends the fee’s imposition was im-
proper because the record does not show he suffered any injury
during his arrest or that the county incurred any medical ex-
penses while he was in jail. As a result, defendant maintains
the $10 fee should be vacated.
The State argues all defendants convicted of criminal
violations are required to pay the fee, even where the defendant
did not suffer an injury or receive any medical services.
Section 17 of the County Jail Act (Act) (730 ILCS
125/17 (West 2006)) provides, in part, the following:
"The county shall be entitled to a $10
fee for each conviction or order of supervi-
sion for a criminal violation, other than a
petty offense or business offense. The fee
shall be taxed as costs to be collected from
the defendant, if possible, upon conviction
or entry of an order of supervision. The fee
shall not be considered a part of the fine
for purposes of any reduction in the fine.
All such fees collected shall be depos-
ited by the county in a fund to be estab-
lished and known as the Arrestee’s Medical
Costs Fund [(Fund)]. Moneys in the Fund
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shall be used solely for reimbursement of
costs for medical expenses relating to the
arrestee while he or she is in the custody of
the sheriff and administration of the Fund."
Defendant argues the plain language of the statute
contemplates imposition of the fee against only those defendants
who were injured in the course of their arrest and incurred
expenses for medical treatment. However, the statute’s plain
language does not place conditions on the county’s right to the
fee. See Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d at
1247. Instead, section 17 of the Act contains an unqualified
statement the county is entitled to $10 for each conviction other
than a conviction for a petty offense or business offense. See
Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d at 1246-47. The
plain language of the statute does not indicate the collection of
the fee is dependent upon the Fund’s actual use for defendant’s
medical care. Evangelista, 393 Ill. App. 3d at 400, 912 N.E.2d
at 1247. As a result, the county is entitled to $10 for each
conviction and not just for each conviction of a defendant for
whom the county has purchased medical treatment. Evangelista,
393 Ill. App. 3d at 400, 912 N.E.2d at 1247; see also People v.
Jones, 397 Ill. App. 3d 651, 662, 921 N.E.2d 768, 776 (2009)
(sixth division of the First District holding the plain language
of the statute does not place any restrictions on a county’s
right to the $10 fee); but cf. People v. Cleveland, 393 Ill. App.
3d 700, 714, 913 N.E.2d 646, 658 (2009) (first division of the
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First District vacating the $10 fee because the evidence did not
show the defendant underwent medical treatment for injuries
suffered during his arrest).
In addition, we note in Public Act 95-842, effective
August 15, 2008, the legislature amended section 17 of the Act.
Pub. Act 95-842, §5, eff. August 15, 2008 (2008 Ill. Laws 1450,
1450) (amending 730 ILCS 125/17 (West 2006)). The amended
version of the Act provides the following:
"All such fees collected shall be depos-
ited by the county in a fund to be estab-
lished and known as the County Jail Medical
Costs Fund [(Fund)]. Moneys in the Fund
shall be used solely for reimbursement to the
county of costs for medical expenses and
administration of the Fund." 730 ILCS 125/17
(West 2008).
The amended version replaces "reimbursement of costs for medical
expenses relating to the arrestee while he or she is in the
custody of the sheriff" with "reimbursement to the county of
costs for medical expenses." Pub. Act 95-842, §5, eff. August
15, 2008 (2008 Ill. Laws 1450, 1451). In addition the amendment
changes the title of the fund from the "Arrestee’s Medical Costs
Fund" to the "County Jail Medical Costs Fund." Pub. Act 95-842,
§5, eff. August 15, 2008 (2008 Ill. Laws 1450, 1451).
While we recognize the preamended version of the Act
applies in this case (defendant’s offense occurred May 7, 2008,
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prior to the amendment’s August 15, 2008, effective date), the
amendment makes clear the legislature’s intention that the fee be
collected regardless of whether a defendant incurs any injury.
Moreover, the amended language reinforces the reasoning in
Evangelista, which was decided under the preamended verison.
Accordingly, the trial court did not err in assessing defendant
the $10 Arrestee’s Medical Costs Fund fee.
Alternatively, defendant argues the $10 assessment is a
fine and not a fee and as such should be offset by his $5-per-day
credit under section 110-14(a) of the Procedure Code. See 725
ILCS 5/110-14(a) (West 2008).
However, whether the $10 assessment is a fine or fee
makes no difference in this case because section 17 of the Act
explicitly provides "[t]he fee shall not be considered a part of
the fine for purposes of any reduction in the fine." 730 ILCS
125/17 (West 2008). Thus, defendant is not entitled to apply his
$1,180 available credit against this particular fee. See People
v. Elcock, 396 Ill. App. 3d 524, 540 n.2, 919 N.E.2d 984, 996 n.2
(2009) (Second District: "We note that the arrestee’s medical
costs fee is not covered by presentencing custody credit"); see
also People v. Winford, 383 Ill. App. 3d 1, 7, 889 N.E.2d 1181,
1186 (2008) (First District, finding presentencing credit may not
be used toward a $5 fee imposed under section 5-9-1.1(c) of the
Unified Code (730 ILCS 5/5-9-1.1(c) (West 2004)) because that
section specifies the $5 fee "'shall not be considered a part of
the fine for purposes of any reduction in the fine for time
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served either before or after sentencing'"), quoting 730 ILCS
5/5-9-1.1(c) (West 2004).
D. $20 VCVA Assessment
Defendant argues the $20 VCVA fine should be reduced to
$4. The State concedes remand is necessary. However, the State
argues we should remand for the imposition of a $24 VCVA fine.
Pursuant to section 10(c)(2) of the Violent Crime
Victims Assistance Act, the $20 VCVA assessment defendant re-
ceived is to be imposed only where the defendant is convicted of
a qualifying felony--in this case, residential burglary--and no
other fine is imposed. See 725 ILCS 240/10(c)(2) (West 2008).
In this case, we have vacated the $200 DNA-analysis
fee, leaving in place the $5 drug-court and $10 Arrestee’s
Medical Costs Fund assessments. As stated, the $5 drug-court
assessment is a fine because the record does not show it was
sought to reimburse the State for any costs incurred in defen-
dant’s prosecution. See Paige, 378 Ill. App. 3d at 102, 880
N.E.2d at 682.
Where another fine is imposed, section 10(b) of the
Procedure Code requires "there shall be an additional penalty
collected *** upon conviction *** of $4 for each $40, or fraction
thereof, of fine imposed." 725 ILCS 240/10(b) (West 2008). In
this case, the drug-court fine is $5. Accordingly, defendant’s
VCVA assessment should be modified to $4 because the remaining
fine totals less than $40. See 725 ILCS 240/10(b) (West 2008).
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III. CONCLUSION
For the reasons stated, we vacate the $200 DNA-analysis
fee and the $20 VCVA fine. We remand for the application of
defendant’s $1,180 available credit toward the $5 drug-court fee
and a reduction of the VCVA assessment to $4. We otherwise
affirm the trial court's judgment. Because the State success-
fully defended a portion of the criminal judgment, we grant the
State its $50 statutory assessment against defendant as costs of
this appeal. See People v. Smith, 133 Ill. App. 3d 613, 620, 479
N.E.2d 328, 333 (1985), citing People v. Nicholls, 71 Ill. 2d
166, 178, 374 N.E.2d 194, 199 (1978).
Affirmed as modified; cause remanded with directions.
McCULLOUGH, J., concurs.
MYERSCOUGH, P.J., specially concurs in part and dis-
sents in part.
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PRESIDING JUSTICE MYERSCOUGH, specially concurring in
part and dissenting in part:
I respectfully specially concur in part and dissent in
part. The $200 DNA-analysis fee is mandatory and should not have
been made conditional by the trial court. I concur in the rest
of the disposition but would, in keeping with Grayer, No. 1-09-
0021, ___ Ill. App. 3d ___, ___ N.E.2d ___, assess the $200 DNA-
analysis fee and require the additional testing.
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