No. 2-08-0993 Filed: 9-16-10 Corrected: 10-5-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Ka ne Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 06--CF--676 ) J. D. CLARK, ) Honorab le ) Allen M. Anderson, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : After a bench tr ial, def endant, J.D . Clark, was convic ted of Cla ss X felony driving under the influence of alcohol (DUI ), based on having s ix or more pr ior convi ctions of

DUI (625 I LCS 5/11--501(c--16) (West 2006)), and transporting open alcohol in a motor vehicle, a pett y of fense (625 IL CS 5/11--502(a) (West 2006)). Onthe DUI offense , he was sentenced to 80 months in prison and charged a $200 DNA ana lysis fee (see

730 IL CS 5/5- -4--3(j) (Wes t 2006)). On appea l, defendant argue s that (1)Public Act 94--114 , which r aised a s ixthor subseq

uent DUI from a Cla ss 2 felony to a Class X

felony (Pub. Act 94--114, §5, eff. January

1, 2006), was implic itly

repealed by other acts and , thus, his DUI conviction must be reduced a nd the cause remanded for resent encin g; and (2) he must rece ive a cr

edit, ag ainst the D

NA analy sis fee, of $5 for each day spent in custody before sente ncing.No. 2--08--0993

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The State disputes defendant's first claim of error and conf esses er ror on the second c laim. The State also requests a State's Attorney fee per section 4--2002(a) of the CountiesCode (55 I LCS 5/4--2002(a) (West 2008)). In reply , defendant conten ds that the st at ut or y fe e d oe s n ot ap pl y, because this appeal was defended not by the Kane County

State's Attorney

but by the Office

of the State's Attorney s Appellate Prosecutor (SAAP). We hold that(1) under our opinion in People v. Maldonado , No. 2--08--0471 (June 7, 2010), defend ant's DUI

convicti on must be r

educed to a Class 1 felony

and the c ause must

be remanded for resent encin g; (2) defendant is entitled to the monetary credit for time served, with the result that his DNAanaly

sis fee is wholly satisfie d; and (3)

the Kane County State's Atto rn ey is entitled to the statu tory fee. T herefo re, we a ffirm as mod ified and rem and th e cause for res enten cing. Defend ant's first claim of error was resolved in Maldonado , in which we held that Public Act 94--114 conflicted irreconcilably with Public A ct 94--1 16 (Pub. Act 94--116, §5, eff. January 1, 2006), which mad

e a fifth or subse quent D UI a Class 1 felony (see 625 ILCS 5/11--501(c--1)(4) (West 2006)). U

nder the rule of lenity (see Peoplev. Hillenbrand , 121 Ill. 2d 537, 560 (1988)), we resolved the conflict in favor of the lesser penalty

. Maldonado , slip op. at 10. We do the same here. Inurging affirmance , the State raises arguments that we rejected in Maldonado . As we are still unpersuaded

by t hese ar guments , and out o f respe ct for the principle of stare de cisis (see People

v. Williams , 235 Ill. 2d 286, 294-95 (2009)), we follow Mal donado . We af firm d efenda nt's convi ction of DUI but reduce it to a Clas s 1 fel ony and rem and fo r resen tenci ng. We hold next that defendant is entitled to a credit, against any fines, of $5 per each

day that he was in custody before sentenc ing. See

725 ILCS 5/1 10--14( a) (West 2006). Defendant was in present encing custod y for 80 day s, and his sole fine is the $200 DNA analy sis fee (see People v.No. 2--08--0993

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Long , 398 I ll. App. 3d

1028, 1033 -34 (2010 ) (DNA a naly sis fee is a fine for

sentenc ing-cr

edit purposes)). Because thetotal cre dit may not excee d the amou

nt of the f ine (725 I LCS 5/110--14(a) (West 2006)), we modify

the judg ment by awardin g a cre dit of $200, o ffsettin

g the DN A analy sis fee. Fi na ll y, we turn to the State 's requ

est that we awar

d a State 's Attorney fe e under section 4--2002(a) of the Counties Code, which reads, as per tinent here: "(a) State's attorney

s shall be entitled to the following fees ***: * * * For each case of appeal take

n from his county or

from the county to which a change of venue is taken to his county

to the Supr

eme or Ap

pellate C ourt when prosecuted

or d efended by h

im , $50." (Emphasis added.) 55 ILCS 5/4--2002(a) (West 2008). Defendant

contends that section 4--2 002(a) d oes not ap ply . He note s that, in

this appe al, a SAAP attorney, not the State' s Attorney or a me mber of his office, filed the appearanc e and submittedthe brief for the State. Therefore, he reasons, the appeal was prosecuted or de fended not by the State's Attorney

but by SAAP. As defendant notes, whether section 4--2002(a) applies to an appeal in which the State is r eprese nted by SAAP is the issue in a

case pe nding be fore the

supreme court. See People v. Kitch , 392 Ill. App. 3d 108 (2009), appeal allowed , 233 Ill. 2d 581 (2010). There appears to be n o case l aw dir ectly add ressi ng defen dant's contention. However, as he acknowl edges , in People v. Agnew , 105 I ll. 2d 275 ( 1985), a pply ing a sub stantiall

y similar statutory provision, the supre

me court grante d th e State' s Atto rney a f ee for defending an appe al in which SAAP appear

ed for the Sta

te. As defendant points out, the issue of whether section 4--2002(a)No. 2--08--0993

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applies to appeals handled by SAAP was notraised in Agnew . There fore, w e do not tr eat Agnew

as binding authority. We donote, however, that although the defenda nt did not raise the issue, the supreme court could have done so sua sponte , such as by re quiring the parties to brief it. T hus , Agnew stron gly suggest s, th ough it does not hold, that the employment of SAAP does not defeat the State's Attorney 's rig ht to compe

nsation f or defe nding a n appea l. Inany event, regar

dless of the effect of Agnew , we believe that the State's Attorney is entitled to the fee . We re ly on sect ion 4 .01 of the S tate's At to rn eys Appellate Prosecutor's Act (the Act) ( 725 IL CS 210/4.01 (West 2008)), which reads, as pertinent here:

"The Office and

all attorneys employ

ed thereby may repres ent the Pe ople of the State of Illinois on appe al in all

cases w hich ema nate fr om a count

y containing less than 3,000,000 inhabitants, when requested to do so and at the direction of the State's

Attorney , otherwise responsible for prosecuting the appeal , and may, with the advic e and co nsent of the Stat e's Attorney prepar e, file a nd arg ue such a ppellate briefs in the I llinois App ellate Court *** ." (Emphases added.) This language unambiguously states that, although S AAP may repr esent the State on an appeal, it does so at the pleasure of the State's Attorney and at his direction. The State's Attorney retains control not only over whe ther SAAP files an appearance and a brief, but also over how SAAP carries out its task. Thus, the S tate's Attorney' s employment of SAAP as an agent under his control does not change the fact that the appea l is being "prose cuted or

defende d by " (55 I

LCS 5/4--2002(a) (West 2008)) the State's Attorney . If statutory languag e is un ambigu ous, we must enforce it as written. Henrich v. Liberty ville High School , 186 Ill. 2d 381, 391 (1998). Unless and until theNo. 2--08--0993

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supreme court holds otherwise, we shall adhere to the plain command of section 4--2002(a) of the Counties Code, which the Act does not change. Moreover, even wh en SAA P repr esent s the S tate o n appe al, it is ul tima tely the S tate's Attorney who pays for the

rep resentat ion. Section 9 of the Act establishes a fund to be used exclusive ly

for SAAP's expenses; the fund is made up of con tributions from the c ounties. 7 25 IL CS 210/9 (West 2008). Thus, reimbursingthe State's Attorney for defending an appeal

in which SAAP appears follows logically f rom requiring the county , which empl oys the State 's Attor

ney , to contribu te to funding SAAP. Ordering a defenda nt to pay $50 to the State' s Attorney results in essentia lly the same cost-shif ting fr om the cou

nty to the de fendan t, regar dless of whet her th e Stat e's Attorney himself or SAAP files the appearance and the brief . We see no logic in abrogating the operation of section 4--2002(a) of the Counties Code merely because SAAP is involved. For the foregoing reasons, we grant the State's Attorney a $50 fee under section 4--2002(a) of the Counties Code. Insum, we affirm defendant's conviction of DU I but specify

that it is a Class 1 felony under subsection(c--1)(4) of section 11 of the Illinois Vehicle Code (625 I LCS 5/11--501(c--1)(4)(West 2006)) and n ot s ubsection (c--1 6) (625 I LCS 5/1 1--501( c--16)(West 2006 )). We af firm his convictionof transporting open liquor in a motor vehicle. We modi fy the judgment by a warding defenda nt a cre dit equal

to his DNA a

naly sis fee. We remand the cau se for r esenten cing on Class 1 fe lo ny DU I. The judgment of the circuit court of Kane County is affirmed

as modified, and the c ause is remand ed for r esent encin g. Affirme d as modif

ied and r emanded with dire ctions.No. 2--08--0993

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HUTCHINSON and JORGENSEN, JJ., concur.