                                                    SIXTH DIVISION
                                                 December 10, 2010




No. 1-09-2840


THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
     Plaintiff-Appellee,                 )    Cook County.
                                         )
          v.                             )    No. 08 CR 17933
                                         )
EMMERITT ADAIR,                          )    The Honorable
                                         )    Arthur F. Hill, Jr.,
     Defendant-Appellant.                )    Judge Presiding.


     PRESIDING JUSTICE GARCIA delivered the opinion of the court.

     Following a jury trial, the defendant was convicted of two

counts of possession of a controlled substance and sentenced to

seven years' imprisonment.   The defendant contends the evidence

was insufficient to prove he possessed at least 15 but less than

200 pills of methylenedioxymethamphetamine (MDMA or ecstacy) and

at least 5 but less than 15 grams of methamphetamine, where the

forensic chemist commingled each pill and powder before testing

for the presence of each controlled substance.   The defendant

also challenges the imposition of certain fees and fines,

contending some should be offset by the daily $5 presentencing

custody credit he earned.

     We reduce the defendant's convictions to the lowest class

for each offense; the State failed to prove the essential

elements of quantity of MDMA pills and weight of methamphetamine

because the testing method employed by the chemist rendered her
No. 1-09-2840

quantity and weight findings speculative.   We affirm the

imposition of the $200 DNA analysis fee and the $25 court

services fee, but vacate the $5 court system fee.    Based on his

days in presentencing custody, the defendant is entitled to

$1,970 credit against all fines (but not fees) imposed.     We

remand for a new sentencing hearing.

                            BACKGROUND

     The defendant was arrested with a bag containing suspected

narcotics in the form of 24 pills and some loose powder according

to the arresting officer.   The defendant was indicted on two

counts: one count of possession with intent to deliver more than

15 but less than 200 pills of MDMA, and one count of possession

with intent to deliver at least 5 but less than 15 grams of a

substance containing methamphetamine, based on the crime lab

results.   A jury found the defendant not guilty of intent to

deliver, but guilty of possession of each controlled substance in

the quantity and weight charged in the indictment.   He was

sentenced to seven years’ imprisonment.

     Chicago police officer Thomas Krob testified that on August

29, 2008, at approximately 10:30 p.m., while on patrol in a

marked squad car with his partner, Officer Phil Schulter, he

observed a 1991 blue Buick Regal being driven on Roosevelt Road

in Chicago without headlights.   The officers conducted a traffic

stop of the vehicle at a gas station located at Roosevelt and

Independence.   Officer Krob approached the driver<s side of the


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No. 1-09-2840

Buick.   The defendant was behind the steering wheel.   When

Officer Krob asked the defendant for his driver<s license and

insurance, he replied he had neither.    The defendant was told to

exit the vehicle.    When he exited, Officer Krob observed a clear

plastic bag containing multicolored pills fall to the ground from

the defendant<s lap.    Officer Krob recovered the bag and handed

it to his partner.     The defendant was taken into custody for the

traffic offenses.    Officer Krob testified that after being

advised of his Miranda rights, the defendant admitted he paid

$175 for 25 pills near the 5400 block of West Congress.    The

defendant told Officer Krob he planned to host a house party with

the pills in Palos Heights.

     Officer Schulter inventoried the bag of pills under

inventory number 11415252; the bag was sealed and sent to the

forensic services division of the Illinois State Police.    Officer

Schulter testified he never took the pills out of the bag, but

manipulated the pills in the bag to count them.    He testified he

counted 24 pills and observed a small amount of powder.

     In a motion in limine, defense counsel challenged the

forensic evidence regarding the pills.    According to the motion,

the State sought to introduce, as evidence of the controlled

substances, the weight and quantity of untested pills as well as

those tested.   Defense counsel argued that to link untested pills

to tested pills, all pills had to be homogeneous.    The pills,

however, were of different colors, bearing different markings.


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No. 1-09-2840

The court denied defense counsel's motion.

     Amanda Shanbaum, a forensic scientist with the Illinois

State Police, testified as an expert witness that she analyzed

the pills and powder recovered from the defendant for the

presence of a controlled substance.   She received a knotted

plastic bag with inventory number 11415252.    She cut the bag open

and placed the contents on a clean plastic weigh dish.    She

observed 21 pills, 3 pill fragments, and some powder.    Ms.

Shanbaum testified that the bag contained red and orange powder

and pills and fragments of five different colors: three yellow

pills with a "win" imprint; four lavender pills with a logo of a

dancing man; six orange pills with a "win" imprint and two orange

pills shaped like the Superman logo; four red pills with an

unclear imprint, two red pills shaped like the Superman logo and

a red pill chunk; and two chunks of green pills with a red crust.

     Ms. Shanbaum testified that all of the pills were soft and

crumbled when touched.   She testified that as they crumbled,

powder from all of the pills mixed together.   She explained that

all of the pills were touching each other and that they were all

covered in powder.   Ms. Shanbaum testified the pills, pill

fragments, and powder collectively weighed 6.3 grams.    She

completed a crime lab discrepancy form because the bag contained

21 pills and 3 pill fragments, rather than 24 pills as listed on

the inventory sheet.

     Ms. Shanbaum testified she performed four preliminary tests


                                 4
No. 1-09-2840

on the contents of the bag to confirm the presence of a narcotic.

The first three tests indicated the presence of a hallucinogen

and the final test indicated the presence of methamphetamine.

Ms. Shanbaum testified that her next step was to create a

"representative sample" of the contents of the bag upon which to

perform conclusive tests.   To get a representative sample, Ms.

Shanbaum poked each pill with a glass tip and added the resulting

powder to a gathering dish, along with some of the powder from

the bag.   Ms. Shanbaum testified she believed she tested each

pill because a portion of each pill was crumbled into the

representative sample mix from which she took the smaller testing

sample.    She testified she was not able to distinguish the powder

of one pill from the powder of any other.

     Ms. Shanbaum next performed a gas chromatography flame

ionization detection test on the representative test sample,

which indicated the presence of methamphetamine and MDMA.    She

then performed the gas chromatography mass spectrometry test,

which confirmed that both methamphetamine and MDMA were present

in the representative test sample.    Based on the results of these

tests, Ms. Shanbaum opined that the 21 pills, 3 pill fragments,

and powder weighed 6.3 grams and contained MDMA and

methamphetamine.

     Following Ms. Shanbaum<s testimony, the State rested.

Defense counsel moved for a directed finding, contending

insufficient proof of the charged offenses was offered on the

                                  5
No. 1-09-2840

respective element of weight and quantity.    Specifically, counsel

argued the State failed to prove the defendant possessed 15 or

more pills of MDMA because it was unknown how many pills actually

contained MDMA given that the tests were performed on the

representative sample, which contained powder from the various

nonhomogeneous pills.    Counsel further argued there was

insufficient evidence of intent to deliver.    The motion was

denied.

     The jury found the defendant not guilty of possession with

intent, but guilty of straight possession of at least 15 but less

than 200 pills of MDMA, and of at least 5 but less than 15 grams

of methamphetamine.

     In the motion for a new trial, the defense counsel

challenged the trial court's ruling on his motion in limine.

Defense counsel argued Ms. Shanbaum improperly mixed the pills

into one representative sample.    Defense counsel contended that

Ms. Shanbaum should have tested each of the different types of

pills independently to determine whether each identifiable group

contained MDMA and methamphetamine.    Defense counsel also argued

it was error, based on the faulty representative sample, to allow

Ms. Shanbaum to testify that the total weight of the bag’s

contents of 6.3 grams supported the weight element on the

methamphetamine count.    The trial court denied the motion.

     The defendant was sentenced to concurrent seven-year prison


                                  6
No. 1-09-2840

terms on the two counts.    In addition, the court imposed a

monetary penalty of $1,660, which included a $200 DNA analysis

fee (730 ILCS 5/5-4-3 (West 2008)), a $25 court services fee (55

ILCS 5/5-1103 (West 2008)), and a $5 court system charge (55 ILCS

5/5-1101(a) (West 2008)).    The defendant timely appeals his

convictions and the imposition of these monetary penalties.

                              ANALYSIS

                    Sufficiency of the Evidence

     The defendant does not challenge the sufficiency of the

evidence establishing that he unlawfully possessed pills and

powder containing two controlled substances, MDMA and

methamphetamine.   However, the defendant contends the State

failed to prove that he possessed at least 15 pills containing

MDMA and at least 5 grams of methamphetamine, where the forensic

chemist commingled the nonhomogeneous pills before testing for

each controlled substance.    The defendant contends that based on

the insufficiency of the evidence of the quantity and weight of

the two controlled substances, his convictions must be reduced to

lesser offenses, citing People v. Clinton, 397 Ill. App. 3d 215,

922 N.E.2d 1118 (2009).

     In a challenge to the sufficiency of evidence, a reviewing

court will not substitute its judgment for that of the trier of

fact or reverse a conviction if any rational trier of fact could

have reached the same conclusion based on the evidence viewed in


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No. 1-09-2840

the light most favorable to the prosecution.     People v. Ortiz,

196 Ill. 2d 236, 259, 752 N.E.2d 410 (2001).    While great

deference is accorded to the findings of a trier of fact, a

criminal conviction cannot stand if the evidence is so improbable

or unsatisfactory as to give rise to reasonable doubt regarding

an essential element of the offense the defendant has been found

guilty of committing.     Clinton, 397 Ill. App. 3d at 222.

       To convict on the charge of unlawful possession of a
controlled substance, the State must prove beyond a reasonable

doubt that the substance recovered contains a controlled

substance.     People v. Hagberg, 192 Ill. 2d 29, 34, 733 N.E.2d

1271 (2000).    The charging instrument dictates when the quantity

or weight of the controlled substance underlying the charged

offense is an essential element to be proved beyond a reasonable

doubt.    "When a defendant is charged with possession of a

specific amount of an illegal drug with intent to deliver and

there is a lesser included offense of possession of a smaller

amount, then the weight of the seized drug is an essential
element of the crime and must be proved beyond a reasonable

doubt."    People v. Jones, 174 Ill. 2d 427, 428-29, 675 N.E.2d 99

(1996).

       A forensic chemist is generally not required to test all of

the suspected narcotic substance to opine that the recovered

substance as a whole contains narcotics.     Jones, 174 Ill. 2d at

429.    "[R]andom testing is permissible when the seized samples

                                   8
No. 1-09-2840

are sufficiently homogeneous so that one may infer beyond a

reasonable doubt that the untested samples contain the same

substance as those that are conclusively tested."     Jones, 174

Ill. 2d at 429.

       In Jones, our supreme court answered whether the weight

element was proved beyond a reasonable doubt when the weight of

three packets, not tested for the presence of the controlled

substance, was added to the weight of the two tested packets.
Jones, 174 Ill. 2d at 430.    The substance in each of the seized

packets was unquestionably similar in appearance.     Jones, 174

Ill. 2d at 429 (each of the five packets contained a white rocky

substance).    Nonetheless, the supreme court held that the chemist

was required to "test a sufficient number of packets to prove

beyond a reasonable doubt that defendant possessed one gram or

more of cocaine."    Jones, 174 Ill. 2d at 430.   In other words,

though a sample of each of the two packets tested positive for

cocaine to support an inference beyond a reasonable doubt that

each of the two packets as a whole contained cocaine, the
inference could not be drawn that the three untested packets

contained cocaine to permit the weight of the untested three

packets to be added to the weight of the tested packets to meet

the weight element of the charged offense.    Jones, 174 Ill. 2d at

430.

       In so ruling, the Jones court contrasted the recovered

packets with a recovered substance that is sufficiently

                                  9
No. 1-09-2840

homogeneous: "the five packets [in this case] containing loose

substances cannot be equated with identically marked and stamped

tablets, pills, or capsules."    Jones, 174 Ill. 2d at 430.   The

court discussed People v. Kaludis, 146 Ill. App. 3d 888, 891-92,

497 N.E.2d 360 (1986), to reinforce this point.   In Kaludis "a

forensic chemist visually examined 100 tablets and determined

that they had identical marking, lettering characteristics,

bevelling, and scoring," which permitted the testing of three

tablets to conclusively establish the presence of a controlled

substance in all 100 tablets.    Jones, 174 Ill. 2d at 429.   Thus,

a positive test of a random sample gives rise to an inference

that all of the recovered pills or tablets contain the controlled

substance only when the pills or tablets are sufficiently

homogeneous.    By the same token, when the seized samples are not

sufficiently homogeneous, testing must be done on each distinct

sample.   "[W]hen such samples are not sufficiently homogeneous, a

portion from each container or sample must be tested in order to

determine the contents of each container or sample."    Jones, 174

Ill. 2d at 429.   This requirement means that each container or

sample must be tested independently to conclusively determine

that the contents of that container or sample contains a

controlled substance.

     The charges here stemmed from the defendant's possession of

a bag of powder and pills of various colors with different

markings.   In testing these pills for the presence of an illegal

                                 10
No. 1-09-2840

substance, the forensic chemist placed all of the pills and

powder into a weigh dish and found the seized substance weighed

6.3 grams.    The chemist then crumbled portions of each individual

pill and fragment into a representative sample dish, which also

contained a portion of the loose powder.     From this

representative sample, a smaller sample was tested for the

presence of each controlled substance.     The representative sample

tested positive for the presence of MDMA and methamphetamine.

Based on this testing method, the chemist opined that at least 15

pills contained MDMA and at least 5 grams of the seized substance

contained methamphetamine.

     It is evident that the pills in the bag seized from the

defendant were not identically marked, stamped, or even of the

same color.   On the contrary, the chemist testified that the 21

pills and 3 pill fragments were of five different colors: three

yellow pills; four lavender pills; eight orange pills; six red

pills; and two green pill chunks.     Based on the visible

appearance of the pills, there is no credible contention that the
pills were sufficiently homogeneous to permit random sampling.

Jones, 174 Ill. 2d at 429 ("random testing is permissible when

the seized samples are sufficiently homogeneous").

     The chemist here, however, did not rely on random sampling

to test for the controlled substances in this case.      The chemist

testified that she believed she tested all 21 pills and 3 pill

fragments for the presence of the controlled substances by adding

                                 11
No. 1-09-2840

powder from each into the representative sample dish, along with

some of the loose powder in the bag.

     The defendant argues that based on test results on the

single representative sample for testing purposes, the chemist's

opinion that at least 15 pills contained MDMA is speculative.

Relying on the same reasoning, the defendant contends that the

cumulative weight of the bag's contents is insufficient evidence

to prove beyond a reasonable doubt that a sufficient number of
pills in the recovered bag contained methamphetamine to meet the

five-gram threshold.   We agree.

     According to the defendant's statement, he purchased 25

pills the night of his arrest.     According to the inventory sheet

he completed, the officer was able to observe only 24 pills,

along with a small amount of powder.    By the time the chemist

received the inventoried bag, she observed 21 pills, 3 pill

fragments, and some powder.   The chemist described the pills as

crumbling easily when touched.

     In accordance with Jones and Clinton, the chemist here was

required to test the seized pills by a method that would produce

an evidentiary finding as to the number of pills that contained

each controlled substance to meet the quantity and weight

elements of the charged offenses beyond a reasonable doubt.

Jones, 174 Ill. 2d at 429 ("when such samples are not

sufficiently homogeneous, a portion from each container or sample


                                   12
No. 1-09-2840

must be tested in order to determine the contents of each

container or sample"); Clinton, 397 Ill. App. 3d at 223 (chemist

improperly "combined six packets of suspected heroin before

determining whether each of the packets did, in fact, contain

heroin").    While the chemist testified that in her experience,

MDMA and methamphetamine were often found in the same pill, she

did not testify that she found both controlled substances in any

one pill in this case.    Rather, the chemist testified that she

believed she properly tested all 21 pills and 3 fragments for the

presence of the controlled substances in a single

"representative" sample.    The chemist was mistaken in her

reasoning.    Clinton, 397 Ill. App. 3d at 222 (the chemist erred

in combining the contents of packets before testing each for the

presence of heroin).

     The representative sample the chemist used to test for the

presence of each controlled substance was over-inclusive.     To

illustrate the fault in the sampling method, the State cannot

tell us whether all orange pills contained both MDMA and
methamphetamine.    The same, of course, can be said of each of the

other four colors of pills and fragments.

     We need not be chemists to deduce that had all eight orange

pills contained both MDMA and methamphetamine, the powder from

each orange pill added to the representative sample would cause

the test sample to test positive for both MDMA and

methamphetamine, even if all the other pills contained inert

                                 13
No. 1-09-2840

substances.    See Clinton, 397 Ill. App. 3d at 223 (we "cannot

speculate that each of the packets [commingled into a single

sample for testing] contained heroin").    This result explains the

rule in Jones: When distinct samples are seized, a representative

sample of each distinct sample must be tested to conclusively

determine the chemical composition of that sample.     Jones, 174

Ill. 2d at 429 ("a portion from each *** [nonhomogeneous] sample

must be tested in order to determine the contents of each ***

sample").    Given the five colors of pills in this case, at the

very least each color grouping of pills had to be treated as a

separate sample and tested independently for the presence of each

controlled substance.    Jones, 174 Ill. 2d at 429; Clinton, 397

Ill. App. 3d at 222.

     Though it may be true that MDMA and methamphetamine were

present in all five of the different colored pills, as our

supreme court recognized, the ease with which such a conclusion

can be drawn is no substitute for "a finding *** based on [the]

evidence."    Jones, 174 Ill. 2d at 430.   Without evidence that all
the pills had a similar chemical composition, a single

representative sample cannot give rise to a finding that all the

nonhomogeneous pills in this case contained both substances.

Such a finding is based on nothing more than guess, speculation,

and conjecture.    Jones, 174 Ill. 2d at 430.

     Recognizing that the pills could not be treated as if they

were sufficiently homogeneous, the State contends that the

                                 14
No. 1-09-2840

defendant, by possessing the pills in a single bag, "commingled"

the pills to permit the chemist to rely on a single

representative sample for testing purposes.     The State notes it

was the defendant, "not the police, [that] dumped all of the

narcotics together into one bag."      (Emphasis in original.)

Premised on this indisputable observation, the State claims the

hypothetical in People v. Coleman, 391 Ill. App. 3d 963, 971, 909

N.E.2d 952 (2009), dictates the outcome here rather than the

reasoning in Jones and Clinton.    In Coleman, the court noted that

had the defendant "dumped" 900 grams of baking soda into a bag

containing 15 grams of a substance containing cocaine, "the two

substances would become one substance" so that the defendant

would be chargeable with 915 grams of a substance containing

cocaine.   Coleman, 391 Ill. App. 3d at 972-73.

     The State's comparison of the multicolored pills in this

case to the Coleman example of cocaine and baking soda does not

hold up.   Cocaine and baking soda have appearances that are

visually indistinguishable; the pills in this case were different
to the naked eye.   Each color grouping of pills required

independent testing to conclusively establish the chemical

composition of those pills no less so than packets containing a

similar white rocky substance must be separately tested to

establish that each contains cocaine.      Jones, 174 Ill. 2d at 429

(a sufficient number of packets containing a white rocky

substance were required to be tested).

                                  15
No. 1-09-2840

     There is no authority for the State's contention that its

burden to demonstrate the number of pills that contained MDMA and

to prove the weight of the pills that contained methamphetamine

was lifted simply because the defendant "dumped" 24 or 25 pills

into a single bag.    See Jones, 174 Ill. 2d at 430 (with the

untested packets in its possession, the State was in the best

position to answer whether those packets "contained cocaine or

mere look-alike substances").    That the State's claim is

disingenuous can be further demonstrated by a Coleman-like

example: Had the defendant, before he was arrested, placed

similarly colored pills into separate bags, the prosecution would

not have treated the contents of the five bags as separate

offenses if all the pills had independently tested positive for

both MDMA and methamphetamine.    We add, nor should it.

     Nor does the State's use of "commingled" fit the common

understanding of the word.    Commingling is the combining of

different substances such that the original substances can no

longer be distinguished, much as in the example in Coleman
regarding cocaine and baking powder.     Coleman, 391 Ill. App. 3d

at 972-73 (when dumped together, baking soda and cocaine "become

one substance").     To support its "commingling" contention, the

State observes in its brief "that all of the pills were covered

in a red powder," according to the testimony of the chemist.    The

State argues that all of the pills "having upon them" this red

powder (quoting 720 ILCS 570/402(a)(7.5)(A) (West 2006)), "the

                                  16
No. 1-09-2840

red powder on the pills also qualifies defendant for conviction

for the possession of the full weight of the pills."

     If that was the State's theory, all it needed to do was to

have the chemist test this "red powder" to confirm that it

contained both MDMA and methamphetamine.    Because it did not do

so, we decline the State's invitation to speculate that the "red

powder" was a controlled substance.

     Finally, commingling did occur here.    The chemist testified

that the powder she took from each of the pills and fragments to

add to the representative sample was indistinguishable from the

powder already in the mix.   The commingling of distinct pills was

done by the chemist, not the defendant.

     We reject the State's claim that the defendant "commingled"

the pills to permit a single representative sample for testing

purposes.

     In this case, the single sampling method used by the chemist

does not support an evidentiary finding beyond a reasonable doubt
that each of the pills and fragments the defendant possessed

contained the two controlled substances.    The representative

sample created by the chemist by mixing powder from each of the

21 pills, 3 fragments, and powder cannot give rise to a credible

finding that at least 15 pills contained MDMA or that at least 5

grams of the 6.3 grams of the seized samples contained

methamphetamine as charged in the indictment.    Pursuant to


                                17
No. 1-09-2840

Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), we

reduce the defendant's convictions to the lowest class for each

offense.   See 720 ILCS 570/402(c) (West 2008) (possession of less

than 15 MDMA pills is a Class 4 felony); 720 ILCS 646/60(b)(1)

(West 2008) (possession of less than five grams of

methamphetamine is a Class 3 felony).

                        Monetary Penalties

     The defendant next contends the trial court improperly

assessed certain fees, and the fines imposed should be offset by

his presentencing custody credit.    Whether fines and fees are

properly imposed raises a question of statutory interpretation,

subject to de novo review.   In re Estate of Dierkes, 191 Ill. 2d

326, 330, 730 N.E.2d 1101, 1103 (2000).

                       $200 DNA Analysis Fee

     The defendant contends the trial court erred in assessing

the $200 DNA analysis fee (730 ILCS 5/5-4-3 (West 2008)) because

he was assessed this same fee in a prior conviction.

     Section 5-4-3(j) of the Unified Code of Corrections mandates

that following a qualifying felony conviction, a $200 DNA

analysis fee be assessed against a defendant.     730 ILCS 5/5-4-

3(j) (West 2008).   The DNA "fees *** collected by the clerk of

the court [are] forwarded to the State Offender DNA

Identification System Fund for deposit."     730 ILCS 5/5-4-3(k)(2)

(West 2008).

                                18
No. 1-09-2840

     The defendant argues that because his DNA is already on file

with the Illinois State Police, he should not be subject to the

DNA analysis fee, relying on our recent decision in People v.

Evangelista, 393 Ill. App. 3d 395, 399, 912 N.E.2d 1242 (2009)

(vacating the DNA fee imposed on a defendant with a prior

conviction because once "a defendant has submitted a DNA sample,

requiring additional samples would serve no purpose").

     The State responds that there is nothing in the record to
support the defendant<s claim that he was previously assessed the

$200 analysis fee or that he actually paid it.   The State urges

that any doubts arising from the record's incompleteness be

resolved against the defendant, citing People v. Lopez, 229 Ill.

2d 322, 344, 892 N.E.2d 1047 (2008).

     We prefer to address the defendant's claim directly.   There

are decisions in this district contrary to the holding in

Evangelista.    See People v. Hubbard, No. 1-09-0346, slip op. at

3-5 (September 17, 2010); People v. Grayer, No. 1-09-0021, slip

op. at 7 (August 24, 2010); People v. Marshall, 402 Ill. App. 3d

1080, 931 N.E.2d 1271 (2010).   In disagreeing with Evangelista,

these decisions note that the statute does not expressly require

a fee for every felony conviction, but the statute also does not

expressly preclude multiple DNA fees following a conviction in

separate cases.   See, e.g., Grayer, slip op. at 6 ("nothing in

the statutory language limits the taking of DNA samples or the

assessment of the analysis fee to a single instance").

                                 19
No. 1-09-2840

     We add to the observations in the decisions upholding

multiple DNA fees that the collected fees may be used to cover a

variety of costs incurred by the State crime laboratory beyond

"analysis and categorization into genetic marker grouping."      730

ILCS 5/5-4-3(j) (West 2008).    One such example is that the fees

may be used to cover "Costs incurred in the purchase and

maintenance of equipment for the use in performing analysis."

730 ILCS 5/5-4-3(k)(3)(C) (West 2008).    Because the fund into

which the DNA analysis fee is deposited is available to cover a

variety of costs, we cannot agree that multiple fee assessments

"would serve no purpose" as the court suggested in Evangelista,

393 Ill. App. 3d at 399.

     The DNA fee was properly assessed against the defendant,

even if his assertion is correct that this is the second time he

has been charged this fee.

                        $25 Court Services Fee

     The defendant contends the trial court erred in assessing

the $25 court services fee.    55 ILCS 5/5-1103 (West 2008).
Section 5-1103 of the Counties Code expressly provides that the

purpose of this fee is to defray "court security expenses

incurred by the sheriff in providing court services."    55 ILCS

5/5-1103 (West 2008).    The section provides that in criminal

cases, and cases involving ordinance, traffic, and conservation

violations, the court services fee will be assessed upon a

finding of guilt.   The fee is also assessed when dispositions

                                  20
No. 1-09-2840

short of a judgment are entered, including supervision and

probation without entry of a judgment.   By its express language,

the court services fee applies as well to all civil litigants.

"Such fee shall be paid in civil cases by each party at the time

the filing of the first pleading, paper or other appearance."      55

ILCS 5/5-1103 (West 2008).

     Our primary goal in construing a statute is to ascertain and

give effect to the intent of the legislature.   MidAmerica Bank,

FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565, 905 N.E.2d

839 (2009).   The intent of the legislature is best determined

from the language of the statute itself, read as a whole and

given its plain and ordinary meaning.    People v. Santiago, 236

Ill. 2d 417, 428, 925 N.E.2d 1122 (2010).   We will not depart

from the plain language of a statute by reading into it

exceptions, limitations, or conditions that conflict with the

legislature's expressed intent.    People v. Martinez, 184 Ill. 2d

547, 550, 705 N.E.2d 65 (1998).

     Based on the encompassing language of the statute and its

clear purpose of defraying court security expenses, we are

unpersuaded that the failure to list the offenses the defendant

committed means he cannot be required to defray the expenses

incurred by the sheriff for his court proceedings.   We reject the

defendant's reading of the statute as authorizing a court

services fee only for a conviction involving the single section

of the Criminal Code of 1961 listed, section 5/12-4.3 (aggravated


                                  21
No. 1-09-2840

battery of a child).    The limited application of section 5-1103

in criminal proceedings the defendant advocates is inconsistent

with the legislature's clear intent, expressed in the plain

language of the statute, in enacting such a fee.

     The court services fee was properly assessed following the

defendant's convictions.

                         $5 Court System Fee

     The State concedes that the imposition of the $5 court

system fee (55 ILCS 5/5-1101(a) (West 2008)) was improper because

this provision applies only upon conviction "for violation of the

Illinois Vehicle Code" or "similar provisions contained in county

or municipal ordinances."    We agree.   The court system fee is

vacated.

                     Presentencing Custody Credit

     The defendant correctly asserts that he is entitled to a $5-

per-day credit for each day spent in custody before he was

sentenced.   725 ILCS 5/110-14 (West 2008).    The mittimus shows

the defendant received credit for 394 days spent in presentence

custody, entitling him to a credit of $1,970.       Whether that

credit can offset a monetary penalty turns on whether the penalty

constitutes a fine or a fee.    725 ILCS 5/110-14(a) (West 2008);

People v. Jones, 223 Ill. 2d 569, 580, 861 N.E.2d 967 (2006).       By

their plain language, the DNA analysis fee and the court services

fee are not fines.    They cannot be offset by the custody credit

earned by the defendant.    See People v. Tolliver, 363 Ill. App.


                                  22
No. 1-09-2840

3d 94, 97, 842 N.E.2d 1173 (2006), citing 725 ILCS 5/110-14 (West

2002).   Because we reduced the defendant<s convictions to

straight possession, however, we vacate the $1,000 assessment

levied under the Illinois Controlled Substances Act (720 ILCS

570/411.2 (West 2008)).   An assessment may be imposed on remand

consistent with the reduced convictions.

     The defendant is entitled to have his presentencing custody

credit of $1,970 offset the fines imposed.

                              CONCLUSION

     The State failed to prove the defendant guilty of possession

of 15 or more but less than 200 pills of MDMA, and guilty of

possession of 5 or more but less than 15 grams of

methamphetamine, where the forensic chemist commingled the

nonhomogeneous pills before testing them, rendering her quantity

and weight findings speculative.       We reduce the defendant's

conviction of unlawful possession of MDMA pills to a Class 4

felony and his conviction of unlawful possession of

methamphetamine to a Class 3 felony.       We remand for a new

sentencing hearing on the lesser offenses.

     We affirm the imposition of the $200 DNA analysis fee and

the $25 court services fee.    We vacate the $5 court system fee

and the $1,000 controlled substances assessment.       The defendant

is entitled to a credit of $1,970 for the time spent in

presentencing custody against all fines imposed.

     Vacated in part and affirmed in part; cause remanded with


                                  23
No. 1-09-2840

directions.

     CAHILL, and MCBRIDE, JJ., concur




                               24
No. 1-09-2840

        REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

           THE PEOPLE OF THE STATE OF ILLINOIS,

                 Plaintiff-Appellee,

                 v.

           EMMERITT ADAIR,

                 Defendant-Appellant.

________________________________________________________________

                                No. 1-09-2840

                        Appellate Court of Illinois
                      First District, Sixth Division

                     Filed: December 10, 2010
_________________________________________________________________

  PRESIDING JUSTICE GARCIA delivered the opinion of the court.

                      CAHILL and MCBRIDE, JJ., concur.
      _________________________________________________________________

                  Appeal from the Circuit Court of Cook County
                    Honorable Arthur F. Hill, Judge Presiding
      _________________________________________________________________

For DEFENDANT-          Daniel T. Mallon, Assistant Appellate Defender
APPELLANT               MICHAEL J. PELLETIER, State Appellate Defender
                        Office of the State Appellate Defender
                        203 North LaSalle Street, 24th Floor
                        Chicago, Illinois 60601

For PLAINTIFF-          ANITA ALVAREZ, State’s Attorney
APPELLEE                Alan J. Spellberg,
                        Marie Quinlivan Czech,
                        Mary Beth Kinnerk,
                        County of Cook
                        Room 309 - Richard J. Daily Center
                        Chicago, Illinois 60602


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