                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Guadarrama, 2011 IL App (2d) 100072




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      BRAULIO B. GUADARRAMA, Defendant-Appellant.



District & No.               Second District
                             Docket Nos. 2-10-0072, 2-10-0255 cons.


Filed                        August 12, 2011


Held                         The DNA analysis fee is a fee, not a fine, and it is not subject to the credit
(Note: This syllabus         for time defendant spent in custody prior to sentencing.
constitutes no part of
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under               Appeal from the Circuit Court of Lake County, No. 05-CF-4306; the
Review                       Hon. Daniel B. Shanes, Judge, presiding.



Judgment                     Affirmed as modified.
Counsel on                 Thomas A. Lilien and Mark G. Levine, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                           and Gary M. Klinger, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), and Constance Augsburger, of Mt. Morris, for the
                           People.


Panel                      JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Zenoff concurred in the judgment and opinion.




                                             OPINION

¶1          The issue disputed in this appeal is whether a deoxyribonucleic acid (DNA) analysis
        “fee” (730 ILCS 5/5-4-3(j) (West 2008)) is a fee or a fine for purposes of awarding
        defendant, Braulio B. Guadarrama, monetary credit for the time he served in custody prior
        to sentencing. For the reasons that follow, we determine that a DNA analysis fee is a fee, not
        a fine, and, thus, it is not subject to the credit.
¶2          The facts relevant to resolving this appeal are as follows. On November 4, 2005,
        defendant was arrested for unlawful possession of a controlled substance with the intent to
        deliver (720 ILCS 570/401(c)(2) (West 2004)). He remained in custody until April 13, 2006,
        when his family posted bond.
¶3          Defendant pleaded guilty to the offense and was sentenced to 48 months of intensive
        supervision. Defendant subsequently violated the terms of his intensive supervision, and the
        State petitioned to revoke it. Defendant was taken into custody on September 19, 2009, he
        admitted to violating the terms of his supervision, and he was sentenced to four years’
        imprisonment. As part of his sentence, the trial court and the circuit clerk imposed various
        assessments, including a Crime Stoppers fine ($500), a DNA analysis fee ($200), a mental
        health court fine ($10), a fine for the street value of the drugs seized ($200), and a Trauma
        Center Fund fine ($100). This timely appeal followed.
¶4          Although defendant never challenged in the trial court the various assessments imposed,
        he contends in this appeal that he is entitled to a $5-per-day credit against these assessments
        for each of the 194 days he was in custody before sentencing. In making this argument,
        defendant notes that the circuit clerk imposed the mental health court fine and the Trauma
        Center Fund fine and that the clerk lacked the authority to impose these fines. See People v.
        Graves, 235 Ill. 2d 244, 255 (2009); People v. Jones, 223 Ill. 2d 569, 595 (2006).
        Nevertheless, pursuant to these same authorities, defendant claims that this court may vacate
        those fines, reimpose them because they are mandatory, and then offset them by the amount

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       of monetary credit due defendant.
¶5          The State agrees that defendant served 194 days in custody before sentencing, that
       defendant is entitled to a credit of $5 for each day so served, and that this court may vacate
       and reimpose the mental health court fine and the Trauma Center Fund fine. However, the
       State claims that, while defendant is entitled to the credit for the Crime Stoppers fine, the
       mental health court fine, the street-value fine, and the Trauma Center Fund fine, defendant
       is not entitled to any monetary credit for the DNA analysis fee, as a DNA analysis fee is a
       fee and not a fine.1
¶6          Before considering whether a DNA analysis fee is a fee or a fine, we note that, even
       though defendant did not raise his monetary-credit issue in the trial court, we may consider
       it now. People v. Woodard, 175 Ill. 2d 435, 457 (1997). Because whether a DNA analysis
       fee is a fee or a fine presents solely a question of law, our review is de novo. See People v.
       Carter, 392 Ill. App. 3d 520, 523 (2009).
¶7          Turning to the substance of defendant’s appeal, we observe that defendant’s argument
       is premised on section 110-14(a) of the Code of Criminal Procedure of 1963 (Code) (725
       ILCS 5/110-14(a) (West 2008)). That section provides:
            “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. However, in no case shall the
            amount so allowed or credited exceed the amount of the fine.” 725 ILCS 5/110-14(a)
            (West 2008).
¶8          By its clear language, section 110-14(a) of the Code applies only to fines, not fees. See
       Jones, 223 Ill. 2d at 580. What is less certain is whether a particular charge imposed against
       a defendant constitutes a fine or a fee.
¶9          In People v. White, 333 Ill. App. 3d 777, 781 (2002), this court determined that “[a] ‘fine’
       is a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal
       offense.” In contrast, a “ ‘fee’ ” is a “charge” that is “taxed by a court[,] such as a filing fee,
       jury fee, courthouse fee, or reporter fee.” Id. “Unlike a fine, which is punitive in nature, a
       cost [or fee] does not punish a defendant in addition to the sentence he received, but instead
       is a collateral consequence of the defendant’s conviction that is compensatory in nature.”Id.
       “A ‘fee’ is a charge for labor or services, especially professional services.” Id.
¶ 10        Based on White, the question with which we are left is whether a DNA analysis fee is a


               1
                 We agree with the parties that a Crime Stoppers fine, a mental health court fine, a fine
       for the street value of the drugs seized, and a Trauma Center Fund fine are all fines that are
       subject to the monetary credit. See Graves, 235 Ill. 2d at 255 (mental health court fine is subject
       to the monetary credit); People v. Caballero, 228 Ill. 2d 79, 82, 90 (2008) (street-value fine is
       subject to the monetary credit); People v. Chambers, 391 Ill. App. 3d 467, 469 (2009) (Trauma
       Center Fund fine is subject to the monetary credit); People v. Dowding, 388 Ill. App. 3d 936, 948
       (2009) (Crime Stoppers fine is subject to the monetary credit). Moreover, we agree that the
       mental health court fine and the Trauma Center Fund fine must be vacated and reimposed. See
       Graves, 235 Ill. 2d at 255; Jones, 223 Ill. 2d at 595.

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       “pecuniary punishment” imposed as part of a defendant’s sentence or a “collateral
       consequence” of a defendant’s conviction that is imposed as a reimbursement for services.
       We determine that it falls within the latter category.
¶ 11       Although courts, including this one, have concluded that a DNA analysis fee is a fine,
       our supreme court has intimated that a DNA analysis fee is really a fee. Specifically, in
       People v. Long, 398 Ill. App. 3d 1028, 1033-34 (2010), the Fourth District found that a DNA
       analysis fee is truly a fine. Without analysis, we followed Long in People v. Clark, 404 Ill.
       App. 3d 141, 143 (2010), and People v. Mingo, 403 Ill. App. 3d 968, 973 (2010). All of these
       decisions preceded People v. Marshall, 242 Ill. 2d 285 (2011), wherein our supreme court
       shed light on whether a DNA analysis fee is a fee or a fine.
¶ 12       In Marshall, the issue presented to the court was whether a defendant who, because of
       a prior conviction, had previously submitted a sample of his DNA for testing and paid a
       corresponding DNA analysis fee could nevertheless be required, on subsequent convictions,
       to submit subsequent samples and pay subsequent DNA analysis fees. Id. at 287-88. The
       court answered that question in the negative, and, in so doing, shed light on whether a DNA
       analysis fee is a fee or a fine. Id. at 297-98. For instance, the court noted that “the primary
       purpose of the [statute addressing who is required to submit a DNA sample] is the creation
       of a criminal DNA database of the genetic identities of recidivist offenders.” Id. at 291. The
       DNA analysis fee “ ‘is intended to cover the costs of the DNA analysis.’ ” Id. at 296 (quoting
       People v. Rigsby, 405 Ill. App. 3d 916, 919 (2010)). Thus, the DNA analysis fee is “paid only
       when the actual extraction, analysis and filing of a qualified offender’s DNA occurs.” Id. at
       297.
¶ 13       Based on Marshall, it is clear that a DNA analysis fee is not imposed on a defendant as
       any type of punishment. Rather, the fee is used to cover the costs incurred in collecting and
       testing a DNA sample that is taken from a defendant convicted of a qualifying offense. Thus,
       the DNA analysis fee is truly a fee, and, because it is not a fine, defendant cannot offset it by
       any credit for the time he served in custody before sentencing.
¶ 14       For these reasons, the judgment of the circuit court of Lake County is affirmed as
       modified to reflect the satisfaction of defendant’s Crime Stoppers fine, mental health court
       fine, street-value fine, and Trauma Center Fund fine.

¶ 15       Affirmed as modified.




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