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                               Appellate Court                             Date: 2016.12.05
                                                                           10:26:54 -06'00'




                  People v. McCray, 2016 IL App (3d) 140554



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CALVIN J. McCRAY, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0554


Filed             September 27, 2016



Decision Under    Appeal from the Circuit Court of Rock Island County, No. 13-CF-835;
Review            the Hon. F. Michael Meersman, Judge, presiding.



Judgment          Vacated in part.
                  Cause remanded with directions.



Counsel on        Michael J. Pelletier and Editha Rosario-Moore, both of State
Appeal            Appellate Defender’s Office, for appellant.

                  John L. McGehee, State’s Attorney, of Rock Island (Dawn D. Duffy,
                  of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             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:
              “[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.




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¶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 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.
¶ 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

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       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).
¶ 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) and citing 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.


                                                    -4-
¶ 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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