                                          2016 IL App (3d) 140554

                              Opinion filed September 27, 2016
     _____________________________________________________________________________

                                                    IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2016

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 14th Judicial Circuit,
                                                       )      Rock Island County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )      Appeal No. 3-14-0554
            v. 	                                       )      Circuit No. 13-CF-835

                                                       )

     CALVIN J. McCRAY,                                 )      Honorable

                                                       )      F. Michael Meersman,
            Defendant-Appellant.                       )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Carter and Holdridge concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                    OPINION

¶1          Defendant, Calvin J. McCray, argues on appeal that his $250 DNA analysis fee and his

     $2000 drug assessment should be vacated. We vacate both assessments. Pursuant to the State’s

     confession of error, we remand the matter with directions for the trial court to apply a

     presentence incarceration credit against defendant’s fines and modify the judgment order to

     conform with the trial court’s oral pronouncement that defendant was guilty of the lesser-

     included offense of unlawful possession of heroin rather than the charged offense of unlawful

     possession of heroin with intent to deliver.
¶2                                                FACTS

¶3          Defendant was charged with unlawful possession of heroin with intent to deliver (720

     ILCS 570/401(a)(1)(A) (West 2012)) and unlawful possession of cannabis with intent to deliver

     (720 ILCS 550/5(d) (West 2012)). A bench trial was held.

¶4          Following the trial, the court found defendant guilty of unlawful possession of cannabis

     with intent to deliver. With regard to the charge of unlawful possession of heroin with intent to

     deliver, the trial court found defendant guilty of the lesser-included offense of unlawful

     possession of heroin (720 ILCS 570/402(a)(1)(A) (West 2012)). The trial court reasoned: “I

     don’t think for one minute you were going to sell it.”

¶5          A presentence investigation report was prepared. The report showed defendant had

     several prior felony convictions, including a 2006 conviction from Cook County for unlawful

     delivery of a controlled substance. One of the State’s trial exhibits included documentation

     showing that defendant was ordered to pay a DNA analysis fee in the 2006 Cook County case.

¶6          On July 2, 2014, the trial court sentenced defendant to six years’ imprisonment on each

     count. The trial court also stated, “[A]ll the moneys owed are reduced to judgment. I don’t show

     anything else in here he owes any other money on anything, but any money in this county is all

     reduced to judgment.” The docket sheet indicated that the trial court ordered “costs to be reduced

     to judgment.” Defendant filed a notice of appeal on July 8, 2014, and filed an amended notice of

     appeal on July 16, 2014.

¶7          On July 17, 2014, the trial court filed a written judgment which stated that defendant was

     convicted of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West

     2012)) and unlawful possession of heroin with intent to deliver (720 ILCS 570/401(a)(1)(A)

     (West 2012)). The written judgment also ordered:


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                      “[S]pecimens of the defendant’s blood, saliva, or other tissue, as directed by the

                      Illinois State Police, shall be collected within 45 days at a place and time

                      designated by the Illinois State Police for genetic marker analysis pursuant to 730

                      ILCS 5/5-4-3(b) (unless a DNA specimen has been previously provided). The

                      defendant shall pay an analysis fee of $250.00, unless the defendant has

                      previously provided DNA.”

¶8            The trial court also ordered that defendant pay a drug assessment in the amount of $2000

       and the costs of prosecution. A document bearing the seal of the circuit clerk stated that a

       judgment was entered against defendant in the amount of $2912.

¶9                                                ANALYSIS

¶ 10          On appeal, defendant argues that (1) the judgment order should be corrected to conform

       to the trial court’s oral pronouncement that defendant was guilty of the lesser-included offense of

       unlawful possession of heroin, (2) defendant should receive a $5-per-day presentence

       incarceration credit against all applicable fines, (3) the $250 DNA analysis fee should be

       vacated, and (4) the $2000 drug assessment ordered in the trial court’s written judgment order

       should be vacated.

¶ 11                                          I. Conceded Issues

¶ 12                                   A. Correction of Judgment Order

¶ 13          Defendant argues that the judgment order should be corrected to conform to the trial

       court’s oral pronouncement that defendant was guilty of the lesser-included offense of unlawful

       possession of heroin rather than the charged offense of unlawful possession of heroin with intent

       to deliver. The State concedes that the judgment order should be corrected in this manner. After

       considering defendant’s argument and reviewing the record, we accept the State’s concession of


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       error. Therefore, we remand this matter to the trial court with directions to correct the judgment

       order to reflect the court’s oral pronouncement that defendant was guilty of the lesser-included

       offense of unlawful possession of heroin (720 ILCS 570/402(a)(1)(A) (West 2012)).

¶ 14                                  B. Presentence Incarceration Credit

¶ 15          Defendant also argues that he is entitled to a $5-per-day credit against applicable fines for

       the 290 days he spent in custody prior to sentencing, or $1450. The State concedes that defendant

       is entitled to such a credit. After considering defendant’s arguments and reviewing the record, we

       accept the State’s concession of error. Therefore, we find defendant is entitled to a presentence

       incarceration credit in the amount of $1450, and we remand for application of the credit.

¶ 16                                         II. DNA Analysis Fee

¶ 17          Defendant also contends that the DNA analysis fee should be vacated because defendant

       was previously ordered to pay a DNA fee. Section 5-4-3 of the Unified Code of Corrections

       (Code) (730 ILCS 5/5-4-3 (West 2012)), provides that defendants convicted of felonies must

       submit DNA specimens and pay a DNA analysis fee in the amount of $250 upon conviction. In

       People v. Marshall, 242 Ill. 2d 285, 303 (2011), our supreme court held that section 5-4-3 of the

       Code “authorizes a trial court to order the taking, analysis and indexing of a qualifying

       offender’s DNA, and the payment of the analysis fee only where that defendant is not currently

       registered in the DNA database.”

¶ 18          Here, the record showed that a DNA analysis fee had been assessed against defendant

       following a felony conviction in a prior case. Accordingly, we find that the DNA analysis fee

       imposed in this case was unauthorized under our supreme court’s holding in Marshall. Id.; see

       also People v. Warren, 2016 IL App (4th) 120721-B, ¶¶ 151-53. Therefore, we vacate the DNA

       analysis fee.


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¶ 19           In reaching our finding, we reject the State’s contention that the propriety of the analysis

       fee in the instant case is contingent upon whether defendant actually paid the DNA analysis fee

       when he was ordered to do so in his prior case. Even if defendant has not yet paid the analysis

       fee in his prior case, he still owes it.

¶ 20           We also reject the State’s argument that defendant’s claim is barred by our supreme

       court’s ruling in People v. Castleberry, 2015 IL 116916, ¶ 19, abolishing the void sentence rule.

       The DNA analysis fee is a fee rather than a fine. People v. Guadarrama, 2011 IL App (2d)

       100072, ¶ 13. Therefore, it is not part of the criminal sentence but rather is a collateral

       consequence of conviction. People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006) (“[A] ‘fee’ is a

       charge for labor or services, and is a collateral consequence of the conviction which is not

       punitive, but instead, compensatory in nature.”). Because the DNA analysis fee was not a part of

       the sentence and therefore never subject to the void sentence rule, the abolition of the void

       sentence rule in Castleberry has no effect on the fee.

¶ 21                                         III. $2000 Drug Assessment

¶ 22           Defendant argues that the written judgment order modified defendant’s sentence by

       adding a $2000 drug assessment. Defendant contends that the written order was void because it

       was entered without jurisdiction after defendant filed the notice of appeal.

¶ 23           “When the notice of appeal is filed, the appellate court’s jurisdiction attaches instanter,

       and the cause is beyond the jurisdiction of the trial court.” People v. Bounds, 182 Ill. 2d 1, 3

       (1998). After the filing of the notice of appeal, “the trial court may not enter an order that would

       modify the order or judgment being appealed or have the effect of interfering with the appellate

       court’s review of it.” People v. Kolzow, 332 Ill. App. 3d 457, 459 (2002).




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¶ 24          At the outset, we hold that the written order itself was not void. The entry of a written

       judgment order is a “ministerial act” that is “merely evidence of the sentence.” People v. Bender,

       226 Ill. App. 3d 940, 942 (1992). It is the oral pronouncement of sentence that is “the judicial act

       which comprises the judgment of the court.” Id. The trial court had jurisdiction to complete the

       ministerial act of filing a written judgment order even though a notice of appeal had been filed.

       See People v. Glenn, 25 Ill. 2d 82, 85 (1962) (“Although a court may lose jurisdiction of a case,

       it does not lose jurisdiction over its own records, and the fact that an appeal has been taken does

       not deprive the lower court of the power to correct its record.”).

¶ 25          While the trial court had jurisdiction to enter a written judgment order reflecting the

       pronounced sentence, it did not have jurisdiction to modify its pronouncement after the filing of

       defendant’s notice of appeal. See Kolzow, 332 Ill. App. 3d at 459. Here, defendant filed his

       notice of appeal on July 8, 2014. This filing divested the trial court of jurisdiction, except to

       perform ministerial functions—such as the entry of a written order reflecting the previously

       pronounced sentence. The fatal jurisdictional flaw with regard to the $2000 drug assessment—

       which was entered on July 17, 2014—is that it was not imposed or even referenced during the

       trial court’s oral pronouncement. Stated another way, the trial court did not impose fines

       generally or a drug assessment specifically during its oral pronouncement. Instead the trial court

       ordered only “costs.” The drug assessment is a fine, not a cost. See People v. Jones, 223 Ill. 2d

       569, 588 (2006). “ ‘A “fine” is a pecuniary punishment imposed as part of a sentence on a person

       convicted of a criminal offense.’ ” Id. at 581 (quoting People v. White, 333 Ill. App. 3d 777, 781

       (2002), quoting People v. Despenza, 318 Ill. App. 3d 1155, 1157 (2001)). Accordingly, the trial

       court’s imposition of the $2000 drug assessment fine after the filing of the notice of appeal

       constitutes an improper modification of defendant’s sentence.


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¶ 26                                             CONCLUSION

¶ 27          The $250 DNA analysis fee and the $2000 drug assessment are vacated. We remand the

       matter to the trial court with directions to correct the judgment order to reflect that defendant was

       convicted of the lesser-included offense of unlawful possession of heroin (720 ILCS

       570/402(a)(1)(A) (West 2012)) and apply the presentence incarceration credit, which totals

       $1450, against any applicable fines.

¶ 28          Vacated in part.

¶ 29          Cause remanded with directions.




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