## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . William s , 2011 IL App (3d) 100142

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DERRI CK D. WI L L IAMS, Defe ndant-Appe llant.

District & N o. Third District Docke t No. 3-10-0142

Filed Dec ember 1, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Although defe ndant could rai s e a claim for monetary cre dit for his prese ntence incar cer ation on an appea l from t h e denial of his postconviction, he could not apply his prese ntence cre dit ag ainst the $200 DNA a naly sis fee, since t he credit may not be levied ag ainst a fe e, only a fine

.

Dec ision Under Review Appea l from the Circuit Court of Warren County
, No. 06–CF–1 00; the Hon. David L . Vanc il, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l J acque line L

. Bullard, of State Appellate Def ender ’s Offic e, of Springf ield, for a ppellant.

Albert G

. Algren, St ate’ s Attorney
, of Monm outh (Ter ry A. M erte l and Dawn D. Duffy
, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE LYTTON de livered thejudgme nt of the cour t, with opinion.
J ustice Holdridg e spec ially concur red, w ith opinion.
J ustice Wright dissented, w ith opinion.

OP INION

¶ 1 The defe ndant, Der rick D. Wil liams, was sentenc ed to concur rent pri s o n t er m s of 35
year s for attempted first degree murder (720 I L CS 5/8-4(a)
, 9-1(a )(1) (West 2006)), 15 year s for home inv as i o n (7 2 0 I L CS 5/12-11(a) (2) (West 2006)), and 6 year s for arme d robber y (720 I L CS 5/18-2(a) (2) (West 2006)). The defe ndant appea ls the dismiss al of his succe ssive postconviction petition. He argues that the trial court err ed when it did not apply his $5-per

day custody cre dit toward his $200 deoxy ribonucleic acid (DNA ) analysis. 730 I L CS 5/5-4- 3(j) (West 2006). We af

firm. ¶ 2 Following the defe ndant’s convictions, he was order ed to pay a $200 DNA analysis fee. The defenda

nt was in custody

from Jul y

22, 2006, until he was sentenc ed on November 9, 2006. After sentenc ing, the defe ndant filed a direct ap peal. Whil e the defe ndant’s direc t appea l was pending
, he filed a postconviction p et i t i on. The trial court dismiss ed the defe ndant’s postc o n

v ic ti o n p e tition. There afte r, we issued our order on the defe ndant’s direc t appea l. People v. W

illiams
, No. 3-06-0838 (2008) (unpublished order under Supreme Court Rule 23). ¶ 3 On November 2, 2009, the defe ndant filed a succe ssive postconviction petition without leave of the c ourt. The c ourt denied thepetition, and the def endant a ppeale d. ¶ 4 On appeal, the def endant a rgues that the trial c ourt should have applied hi s $5-per -day

cre dit toward his $200 DNA a ssessment. ¶ 5 The State argues that we should n o t grant the defe ndant’s reque st beca use he failed to seek leave of the court to file a succe ssive postconviction petition and he does not meet the

cause and prejudice require ments. Fur ther, the State urg es us to adopt the rea soning in People v. Tolliver , 363 I ll. App. 3d 94 (2006), which held t hat t he $200 DNA analy sis fee is not a fine a nd there fore is not compensable by the pre sentenc ing c redit. ¶ 6 A defe ndant is allowed $5 for eac h day he is incar cerated but does not supply bail befor e

-2-sentenc ing. 725 I L CS 5/110-14 (West 2 0 0 6 ). “[ A] claim for per diem monetary cre dit

confe rre d by

section 110-14 of the Code of Criminal Proc edure of 1963 is a statutory right [citation] and is not cogni z ab l e u n d er the Post-Convi ction Hea ring Act.” People v. Caballero
, 228 I ll. 2d 79, 87 (2008)

. However, section 110-14 does not specify the time frame or proce dural stag e during which an application for cre dit can be made. Gra nting the

cre dit on the appea l of a p o s t co n viction petition is “ ‘a simple minist eria l act that will promote j udicial economy by ending any further proce eding s over the matter.’ ” People v. W oodard
, 175 I ll. 2d 435, 456-57 (1997) (quoting People v. Scott
, 277 I ll. App. 3d 565, 566 (1996))

. There fore
, d ef

en dant m ay raise his claim for monetary cre dit on the appeal of his postconviction petition because the basis for granting the relief i s clea r and a vailable f rom the re cord. See Caballero , 228 I ll. 2d 79. ¶ 7 Next, we look to whether the DNA assessment was a fee or a fine, as the cre dit may be levied ag ainst a fine but not a fee

. 725 I L CS 5/110-14 (West 2006). A fine “ ‘is a part of the punishment for a conviction, wher eas a “fe e” or “cost” seeks to rec oup expenses incurre d by the State *** in prosec uting the defe ndant.’ ” People v. Long
, 398 I ll. App. 3d 1028, 1032 (2010) (quoting People v. Jones
, 223 I ll. 2d 569, 582 (2006))

. Our supreme court explained i n People v. Marshall
, 242 I ll. 2d 285, 296 (2011), that the DNA analy sis fee “is inte n d ed to c over the costs of the DNA a naly sis.” Fr om Marshall , the Second District rea soned that the DNA analy sis fee is not imposed on a defe ndant as punishment, but is used to “cove r the

co sts incurre d in collecting and testing a DNA sample that is taken from a defe n d an t convicted of a qualifying offe nse.” People v. Guadarrama
, 2011 I L App (2d) 100072, ¶ 13. We agree with the Second District that the DNA analy sis fee is better char acte rized as a fee and not a f

ine. Thus, we find that the defe ndant could not a pply his presente ncingcre dit to satisfy his $200 DNA ana ly sis fee. ¶ 8 The judgment of the c ircuit court of Warren County

is affirme d.

¶ 9 Affir

med.

¶ 10 J USTI CE HOL DRI DGE, spec ially concur ring : ¶ 11 I agree with the majority ’s judgme nt and analy sis. I write separ ately to further clarify why I believe the $200 DNA analy sis assessment require d by section 5-4-3( j) of the Unified Code of Corre ctions (Code) is a f ee r ather than a fine. 730 I L CS 5/ 5-4-3( j) (West 2006). Fir st, it is labeled a “fe e” in the statute. Id. Although the supreme court has ruled that the label used by the leg islature is not nece ssarily controll i n g (P eo p le v. Grave

s , 235 I ll. 2d 244, 250 (2009))
, it ha s noted that the leg islature’s label is “strong evidenc e” of whether a particula r charg e is a fee or a fine. (I nterna l qu o t at i o n m arks omitted.) Id. Thus, wher e the “ac tual attributes” of the charg e do not sug g est that the leg islature’s label is mistaken, I believe we should assume that the leg islature meant what it said. (Interna l quotation marks omitted.) See id. ¶ 12 Her e, nothing about the DN A an al y s i s as s es sment sug g ests that it is a fine. As the majority notes, a fine i s p u nitive, wher eas a fee is compensa tory

. See supra ¶ 7; see also Grave s , 235 I ll. 2d at 250. Thus, a charg e is a fee if it “see ks to compensate the state for any

-3-costs incurred as the result of prosec uting the defe ndant.” (Emphasis added.) Id. The DNA

analy sis charge i s a “cost incurre d as the result of” the defe ndant’s prosec ution and convi cti on. Every person convicted of cer tain qualifying offe nses is require d to submit specimens of blood, saliva, or tissue for DNA analy sis. 730 I L CS 5/5-4-3(a)(1) (West 2006). The statute does not require all citizens t o s ubmit DNA for analysis. Rather, only those charg ed with and convicted of qualifying offense s mu s t do so. Thus, the cost of analy zing and cata loguing the defe ndant’s DNA in this case was incurre d as a result of this prosec ution and conviction. See, e.g. , People v. Anthony
, 408 I ll. App. 3d 799, 809 (2011) (holding that the DNA a

naly sis charg e is a fee rather than a fine beca use it “re imburses the State for the expense of operating a sy stem under which this defe ndant’s DNA profile was require d to be proce ssed and analy

zed as a result and collater al consequ en ce of this prosec ution and conviction”)

. ¶ 13 In People v. Long
, 398 I ll. App. 3d 1028 (2010), our appellate court held that the DNA analy sis assessment is a fine. Howeve r, in my view, Long is not persua sive. Long ruled that the DNA assessment is not a fee beca use section 5-4-3( k)(3) provides that money from the DNA analy sis assessment may be used “to form, maintain, and improve a DNA databa se of I llinois criminals” and beca use that section “conta ins no languag e i n d i ca t ing the DNAanaly sis assessment is to be used to pay for the analy sis of the specimen o f t h e particula r defe ndant require d to submit a specimen.” Long
, 398 I ll. App. 3d at 1034. Howeve r, the fac t that the l eg islature allows the funds collecte d through the i mpositi on of the DN A an al y s is fee to be used to financ e the entire DNA databa se (rather than m er el y t o fu nd the cost of analy zing the def

en d an t’s DNA) does not chang e the compensatory nature of the fee

. As noted above, the fee “re imburses the State for the expense of opera ting a sy stem under which this defenda

nt’s DNA pr ofile wa s require d to be proc essed a nd analy zed as a result *** of this prosec ut i on and conviction.” Anthony
, 408 I ll. App. 3d at 809. Those expenses wer e incurre d as the result of the defe ndant’s conviction and the convicti o ns of all others who

wer e convicted of qualify

ing offe nses. Moreove r, even if the State is overc harg ing convicted felons for the cost of analy zing their DNA, that fac t would not chang e the nature of the fee

. ¶ 14 I n an y ev en t , as t h e majority notes, the supreme court’s rec ent decision in People v

. Marshall
, 242 I ll. 2d 285, 296 (2011), has resolved this issue. In Marshall
, the supreme court

s t at ed t h at the DNA analy sis assessment is intended to cover the costs of analy zin g a defe ndant’s DNA and held that a trial court may order a defe ndant to submit a DNA sample and pay the $200 assessment “only wher e [ the] defe ndant i s not curre ntly reg istered in the DNA databa se.” Id. at 296, 303. Although Marshall did n o t ex p l i ci t ly decide whether the DNA a ssessment is a fine or a fe e, the supre me cour

t’s rea soning in Marshall compels t he conclusion t hat i t is a compensatory fee rathe r than a punitive sanction. Thus, in my view, Long is no longe r g ood law. See People v. Stucke y , 2011 I L Ap p (1 s t ) 0 9 2 535, ¶ 36 (dec lining to follow Long in light of Marshall).

¶ 15 J USTI CE WR I GHT, dissenting : ¶ 16 I n t h i s ca s e, d efe ndant did not reque st leave of the court to fi l e h i s s u cc es s i v e postconviction petition, despite the fac t that a defen d an t i s require d to do so. 725 I L CS

-4-5/122-1(f) (West 2008); People v. LaPointe
, 227 I ll. 2d 39, 42 (2007). Even if the court had

grante d defe ndant leave to file this succe ssive postconviction petition, the rec ord reve als that the issues raised in that postconviction petition related to claims of ineffe ctive assistance of counsel and did not challeng e the amount of monetary cre dit defe ndant rec eived toward court order ed fine s, including the DNA a naly sis fee. ¶ 17 This issue was n ot included in defe ndant’s successive postconviction petition and wa s not addre ssed by the t rial court when dism issing that petiti on. There fore , this court should not consi d er wh ether defe ndant is entitled to rec eive monetary cre dit toward his DNA analy sis fee as the issue has been waived. See People v. Jones
, 213 I ll. 2d 498, 508 (2004). Iwould aff

irm the trial cour

t’s decision. ¶ 18 For

these re asons, I

respe ctfully

dissent.

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