                                                                FIFTH DIVISION
                                                                June 23, 2006




No. 1-05-0020


THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the
                                                            )   Circuit Court of
              Plaintiff-Appellee,                           )   Cook County
                                                            )
       v.                                                   )
                                                            )
LARRY JONES,                                                )   Honorable
                                                            )   Rickey Jones,
              Defendant-Appellant.                          )   Judge Presiding.


       JUSTICE O=MARA FROSSARD delivered the opinion of the court:

       Following a bench trial, defendant Larry Jones was convicted of possession of a

controlled substance and sentenced to five years= imprisonment. The trial court also

ordered defendant to pay $1,224. On appeal, defendant does not challenge his

conviction or sentence, but raises three contentions concerning the order to pay $1,224:

(1) that he was denied due process when he was ordered to pay a $5 fee for deposit in

the Spinal Cord Injury Paralysis Cure Research Trust Fund; (2) that the trial court

improperly imposed a $20 fine for deposit in the Violent Crime Victims Assistance Fund;

and (3) that he is entitled to apply a $5-per-day credit for incarceration on a bailable

offense to the $100 Trauma Center Fund charge, the $500 controlled substance

assessment, and the $4 traffic and criminal conviction surcharge. Defendant also
1-05-0020

contends that the extraction of his blood and perpetual storing of his DNA profile

pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West

2004)) violates his fourth amendment right to be free from unreasonable searches and

seizures.

                                     BACKGROUND

       At trial, Officer Brian Kinnane testified that on the evening of February 20, 2004,

he and his partner, Officer Frank Sarabia, conducted a narcotics surveillance operation

near 2101 South Christiana, Chicago, where defendant was standing on the sidewalk.

On three separate occasions during the surveillance operation, Officer Kinnane

observed an unknown man engage defendant in a brief conversation and hand

defendant money. After these conversations, defendant would walk across the street to

an abandoned vehicle, retrieve a small black box from under the driver=s side wheel

well, take a small item from the box, walk back across the street, and give the item to

the unknown man. After three such transactions, the officers broke their surveillance

and approached defendant. Officer Kinnane detained defendant while Officer Sarabia

recovered the black box.

       Officer Sarabia testified that the black box contained six Ziploc bags of what he

believed to be crack cocaine. The parties stipulated that Monica Kinslow, a forensic

chemist with the Illinois State Crime Lab, would have testified that the six plastic bags

weighed .8 grams total, and that the one bag she analyzed tested positive for the

presence of cocaine.

       The trial court found defendant guilty of possession of a controlled substance,

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sentenced defendant to five years in prison, and ordered defendant to pay $1,224 in

Acosts and fees.@ The costs and fees included the following amounts: (1) $5 designated

ATrauma Fund Spinal Cord@; (2) $20 designated AViolent Crime Victim Assistance@; (3)

$100 designated ATrauma Fund@; (4) $500 designated AAssessment Controlled

Substance@; and (5) $4 designated ACriminal/Traffic Conviction Surcharge.@ The trial

court also ordered defendant to submit a blood sample for DNA analysis. Defendant

was incarcerated for 265 days prior to being convicted.

                                         ANALYSIS

       On appeal, defendant challenges the various fines and fees imposed against him

and contends that the extraction of his blood and perpetual storing of his DNA profile

violates his fourth amendment right to be free from unreasonable searches and

seizures. We review the constitutionality of statutes de novo. People v. Dinelli, 217 Ill.

2d 387, 397 (2005).

                                   I. Spinal Cord Fund Fee

       Defendant contends that he was denied due process when he was ordered to

pay a $5 fee for deposit in the Spinal Cord Injury Paralysis Cure Research Trust Fund

(Spinal Cord Fund) pursuant to section 5-9-1.1 of the Unified Code of Corrections (730

ILCS 5/5-9-1.1 (West 2004)). Defendant argues that there is no reasonable relationship

between his conviction for possession of a controlled substance and the public interest

in funding spinal cord research.

       Section 5-9-1.1 provides, in relevant part, as follows:

                      A(a) When a person has been adjudged guilty of a

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             drug related offense involving possession or delivery of

             cannabis or possession or delivery of a controlled substance

             as defined in the Cannabis Control Act, as amended, or the

             Illinois Controlled Substances Act, as amended, in addition

             to any other penalty imposed, a fine shall be levied by the

             court at not less than the full street value of the cannabis or

             controlled substances seized.

                    ***

                    (c) In addition to any penalty imposed under

             subsection (a) of this Section, a fee of $5 shall be assessed

             by the court, the proceeds of which shall be collected by the

             Circuit Clerk and remitted to the State Treasurer under

             Section 27.6 of the Clerks of Courts Act for deposit into the

             Spinal Cord Injury Paralysis Cure Research Trust Fund.

             This additional fee of $5 shall not be considered a part of the

             fine for purposes of any reduction in the fine for time served

             either before or after sentencing.@ 730 ILCS 5/5-9-1.1 (c)

             (West 2004).

      This court has twice found section 5-9-1.1(c) unconstitutional as it applies to

defendants convicted of possession of a controlled substance. People v. Rodriguez,

362 Ill. App. 3d 44, 54 (2005), pet. for leave to appeal pending, No. 101725; People v.

Fort, 362 Ill. App. 3d 1, 10 (2005), pet. for leave to appeal pending, No. 101806; see

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also People v. McNeal, No. 1-04-2047, slip op. at 11 (March 31, 2006) (finding section

5-9-1.1(c) unconstitutional as applied to defendant convicted of possession with intent

to deliver), pet. for leave to appeal pending, No. 102593.

       In both Rodriguez and Fort, the defendants contended that imposition of the $5

Spinal Cord Fund fee violated their due process rights. Rodriguez, 362 Ill. App. 3d at

47, 48; Fort, 362 Ill. App. 3d at 1-2, 8. In Rodriguez, we agreed with the defendant,

explaining as follows:

              AWhile driving under the influence of a controlled substance

              arguably bears a rational relationship to spinal cord

              research, we cannot say that the simple possession of a

              controlled substance, an offense that does not involve or

              require the use of a motor vehicle, is reasonably related to

              spinal cord research. Furthermore, the parties have not

              called to our attention any other statutes that impose a fee

              earmarked for the Spinal Cord Injury Research Fund upon

              defendants whose crimes did not involve motor vehicles.

              Accordingly, we find the relationship between possession of

              a controlled substance and the Spinal Cord Injury Research

              Fund simply too attenuated to survive defendant=s due

              process challenge.@ Rodriguez, 362 Ill. App. 3d at 54.

We came to the same conclusion in Fort, finding that there was Ano reason to depart

from the holding in Rodriguez.@ Fort, 362 Ill. App. 3d at 10.

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         As in Rodriguez and Fort, the defendant in the instant case was convicted of

possession of a controlled substance and ordered to pay a $5 Spinal Cord Fund fee.

Accordingly, Rodriguez and Fort are directly on point. We agree with the Fort court that

there is no reason to depart from the holding of Rodriguez, and find that defendant=s

due process rights were violated by the order requiring him to pay a $5 Spinal Cord

Fund fee. Accordingly, the $5 Spinal Cord Fund fee is stricken from the Costs and Fees

order.

                       II. Credit for Incarceration on a Bailable Offense

         Defendant contends that under section 110-14 of the Code of Criminal Procedure

of 1963 (725 ILCS 5/110-14 (West 2004)), he is entitled to apply a $5-per-day credit for

incarceration on a bailable offense to the $100 Trauma Center Fund charge, the $500

controlled substance assessment, and the $4 traffic and criminal conviction surcharge.

The State asserts that the $5 credit is applicable only to Afines,@ that the charges

identified by defendant were not Afines,@ and that therefore, the credit should not apply.

         Section 110-14 provides in relevant part as follows:

                       AAny 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.@

                725 ILCS 5/110-14 (West 2004).

         AThe plain language of this statute indicates that the credit applies only to >fines=

that are imposed pursuant to a conviction, not to any other court costs or fees.@ People



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v. Tolliver, 363 Ill. App. 3d 94, 96 (2006). In the instant case, it is undisputed that

defendant spent 265 days in custody prior to sentencing. Under section 110-14, he

may apply a $5-per-day credit for each of the 265 days to any Afines@ assessed upon

conviction. In order to determine whether the credit applies to any of the charges

identified by defendant, we must determine whether the respective charges are Afines.@

A Afine@ is a pecuniary punishment imposed as part of a criminal sentence. Tolliver, 363

Ill. App. 3d at 96-97, quoting People v. Bishop, 354 Ill. App. 3d 549, 562 (2004). In

contrast, a Afee@ is a charge for labor or services that is compensatory in nature.

Tolliver, 363 Ill. App. 3d at 97, quoting Bishop, 354 Ill. App. 3d at 562.

                                  A. Trauma Center Fund

       Pursuant to section 5-9-1.1(b) of the Unified Code of Corrections, defendant was

ordered to pay $100 to the Trauma Center Fund. 730 ILCS 5/5-9-1.1(b) (West 2004).

Section 5-9-1.1(b) provides as follows:

                     A(b) In addition to any penalty imposed under

              subsection (a) of this Section [for drug related offenses], a

              fine of $100 shall be levied by the court, the proceeds of

              which shall be collected by the Circuit Clerk and remitted to

              the State Treasurer under Section 27.6 of the Clerks of

              Courts Act for deposit into the Trauma Center Fund for

              distribution as provided under Section 3.225 of the

              Emergency Medical Services (EMS) Systems Act.@ 730

              ILCS 5/5-9-1.1(b) (West 2004).



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Section 27.6 of the Clerks of Courts Act, which is specifically referenced in section 5-9-

1.1(b), above, provides, in relevant part, as follows:

                     A(c) In addition to any other fines and court costs

              assessed by the courts, any person convicted for a violation

              of Sections 24-1.1, 24-1.2, or 24-1.5 of the Criminal Code of

              1961 or a person sentenced for a violation of the Cannabis

              Control Act or the Controlled Substance Act shall pay an

              additional fee of $100 to the clerk of the circuit court. This

              amount, less 2 1/2% that shall be used to defray

              administrative costs incurred by the clerk, shall be remitted

              by the clerk to the Treasurer within 60 days after receipt for

              deposit into the Trauma Center Fund. This additional fee of

              $100 shall not be considered a part of the fine for purposes

              of any reduction in the fine for time served either before or

              after sentencing.@ 705 ILCS 105/27.6(c) (West 2002).

       We are mindful that the plain language of section 5-9-1.1(b) refers to the $100

charge as a Afine.@ The charge has been treated as a fine for purposes of the $5-per-

day credit in People v. Littlejohn, 338 Ill. App. 3d 281, 284 (2003) (APursuant to section

110-14, the defendant should be awarded a credit *** against *** the trauma center

fine@), and in People v. Joseph, 176 Ill. App. 3d 636, 642 (1988) (AThe language of

section 5-9-1.1 is clear and unambiguous and does not indicate an intent to exclude

fines imposed under this section from the $5-a-day credit allowed under section 110-



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14@). We further note that a non-precedential, unpublished decision finding the charge

to be a fine has been accepted for review by our Supreme Court. See People v. Jones,

No. 1-04-3117, slip op. at 9-10 (2005) (unpublished order under Supreme Court Rule

23) (AWe find defendant is entitled to a setoff against his trauma fund fine@), pet. for

leave to appeal allowed, No. 101996.

       Nevertheless, we conclude that defendant is not entitled to any credit toward the

$100 he was ordered to pay to the Trauma Center Fund. We make this finding in

accordance with People v. Squire, No. 1-04-2387, slip op. at 6-8 (May 5, 2006). In

Squire, we examined the language of section 5-9-1.1(b) in conjunction with the related

language of section 27.6(c) of the Clerks of Courts Act, emphasizing the express

language of section 27.6(c) that the A[Trauma Center Fund] fee of $100 shall not be

considered a part of the fine for purposes of any reduction in the fine for time served

either before or after sentencing.@ 705 ILCS 105/27.6(c) (West 2002), quoted in Squire,

slip op. at 7. Reading the two sections together, we determined in Squire that payments

to the Trauma Center Fund may not be offset by the $5-per-day credit for time served

provided in section 110-14. Squire, slip op. at 7-8. We agree with the Squire court=s

approach of reading sections 5-9-1.1(b) and 27.6(c) together, as it is axiomatic that

statutes related to the same subject matter are to be read in conjunction. People v.

Cherry Valley Public Library District, 356 Ill. App. 3d 893, 897 (2005). Consistent with

our decision in Squire, we reject defendant=s contention that he is entitled to apply a $5

per day credit to the $100 Trauma Center Fund charge. See also People v. Tolliver,

363 Ill. App. 3d 94, 96 (2006) (defendant acknowledged that the $100 charge for the



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Trauma Center Fund cannot be reduced by $5 per day).

                           B. Controlled Substance Assessment

       Pursuant to section 411.2 of the Illinois Controlled Substances Act, defendant

was ordered to pay a $500 controlled substance assessment. 720 ILCS 570/411.2

(West 2004). Section 411.2(a) provides as follows:

                     A(a) Every person convicted of a violation of this Act,

              and every person placed on probation, conditional discharge,

              supervision or probation under Section 410 of this Act, shall

              be assessed for each offense a sum fixed at:

                                             ***

                             (4) $500 for a Class 3 or Class 4

                     felony[.]@ 720 ILCS 570/411.2(a) (West 2004).

       In prior cases involving this issue, we have repeatedly and consistently

determined that controlled substance assessments imposed pursuant to section 411.2

are fines for which defendants are entitled to apply the $5-per-day credit. See, e.g.,

People v. Youngblood, No. 2-04-0987 (May 17, 2006); McNeal, slip op. at 9; Fort, 362

Ill. App. 3d at 5-6; People v. Haycraft, 349 Ill. App. 3d 416, 430 (2004); Littlejohn, 338 Ill.

App. 3d at 284; People v. Gathing, 334 Ill. App. 3d 617, 620 (2002); People v.

Rodriguez, 276 Ill. App. 3d 33, 41 (1995); People v. Otero, 263 Ill. App. 3d 282, 287

(1994); People v. Reed, 255 Ill. App. 3d 949, 951 (1994); People v. Brown, 242 Ill. App.

3d 465, 466 (1993). We decline to depart from this line of cases. Accordingly, we find

that a $5-per-day credit may be applied to defendant=s $500 controlled substance



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assessment. Defendant=s credit is limited to $500 because the amount of the credit

may not exceed the amount of the fine imposed. 725 ILCS 5/110-14 (West 2004).

                      C. Traffic and Criminal Conviction Surcharge

       Pursuant to section 5-9-1(c-9) of the Unified Code of Corrections, defendant was

ordered to pay $4 to the Traffic and Criminal Conviction Surcharge Fund. 730 ILCS 5/5-

9-1(c-9) (West 2004). Section 5-9-1(c-9) provides as follows:

                     A(c-9) There shall be added to every fine imposed in

              sentencing for a criminal or traffic offense *** an additional

              penalty of $4 imposed.@ 730 ILCS 5/5-9-1(c-9) (West 2004).



       The applicability of the $5-per-day credit to the traffic and criminal conviction

surcharge set out in section 5-9-1(c-9) was addressed in People v. Jamison, No. 1-04-

2219, slip op. at 4-7 (April 12, 2006). In Jamison, we noted that in order to resolve the

issue of whether the $5 credit would apply, it was necessary to determine whether the

legislature intended the penalty to be treated as a fine, or whether the legislature

intended the penalty to be treated as something else, such as a fee or court cost.

Jamison, slip op. at 5. Quoting Black=s Law Dictionary, we noted that a Apenalty@ is

defined as a A >[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment

or fine.= @ Jamison, slip op. at 5, quoting Black=s Law Dictionary 1153 (7th ed. 1999).

We concluded that because there is no indication the legislature intended to depart from

the plain meaning of the statute, the Aadditional penalty@ provided for in section 5-9-1(c-

9) is a pecuniary punishment in the nature of a fine. Jamison, slip op. at 7.



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      Accordingly, consistent with Jamison, we hold that pursuant to section 110-14,

defendant may apply the $5-per-day credit to the $4 traffic and criminal conviction

surcharge. However, his credit is limited to $4 because the amount of the credit may

not exceed the amount of the fine. 725 ILCS 5/110-14 (West 2004).

                       III. Violent Crime Victims Assistance Fund

      Defendant contends that $20 for the Violent Crime Victims Assistance Fund was

erroneously assessed to him because the penalty may be applied only where Ano other

fine is imposed.@ The $20 penalty was assessed pursuant to section 10(c)(2) of the

Violent Crime Victims Assistance Act, which provides as follows:

                    A(c) When any person is convicted in Illinois on or

             after August 28, 1986, of an offense listed below, or placed

             on supervision for such an offense on or after September 18,

             1986, and no other fine is imposed, the following penalty

             shall be collected by the Circuit Clerk:

                           ***

                           (2) $20, for any other felony or

                    misdemeanor, excluding any conservative

                    offense.@ 725 ILCS 240/10(c)(2) (West 2004).

      Defendant is correct that under the plain language of the statute, the $20 penalty

may be ordered only if Ano other fine is imposed.@ 725 ILCS 240/10(c) (West 2004).

We have already determined that two other fines were imposed upon defendant in this

case: (1) the $500 controlled substances assessment and (2) the $4 traffic and criminal



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conviction surcharge. Therefore, the trial court acted improperly when it imposed a $20

Violent Crime Victims Assistance Fund penalty in this case. We strike the penalty from

the order.

                            IV. Constitutionality of DNA Statute

       Finally, defendant contends that the extraction of his blood and perpetual storing

of his DNA profile pursuant to section 5-4-3 of the Unified Code of Corrections (730

ILCS 5/5-4-3 (West 2004)) violates his fourth amendment right to be free from

unreasonable searches and seizures.

       Recently, the Illinois Supreme Court affirmed the constitutionality of the statute

authorizing extraction and storing of DNA in People v. Garvin, 219 Ill. 2d 104 (2006).

The supreme court held that the statute=s purpose B to Aabsolve innocents, identify the

guilty, deter recidivism by identifying those at a high risk of reoffending, or bring closure

to victims@ B Ademonstrate[s] a special need beyond ordinary law enforcement.@ Garvin,

219 Ill. 2d at 122. In Garvin, the defendant also argued that the State=s interest in the

blood sample and DNA did not outweigh his privacy interest, Aeven in light of his felony

conviction.@ Garvin, 219 Ill. 2d at 123. The supreme court noted that a convicted

felon=s privacy rights are Asubstantially reduced due to his status as a convicted felon.@

Garvin, 219 Ill. 2d at 124. The supreme court found Athe State=s interest in effective

crime investigations and prevention, as advanced by section 5-4-3, outweighs

defendant=s privacy interest as a convicted felon.@ Garvin, 219 Ill. 2d at 125. In

conclusion, the supreme court rejected defendant=s constitutional challenge as follows:

AWe also hold that the DNA sampling and database mandated by section 5-4-3 is



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constitutional both as applied in defendant=s case and on its face.@ Garvin, 219 Ill. 2d at

125.

       Therefore, based on Garvin, we uphold section 5-4-3 as constitutional on its face

and as applied to defendant. The order of the circuit court regarding the extraction and

storing of defendant=s DNA is affirmed.

                                       CONCLUSION

       For the reasons explained above we: (1) strike from the order the $5 Spinal Cord

Fund fee; (2) amend the costs and fees order to reflect a credit of $504 for the $500

controlled substance assessment and the $4 traffic and criminal conviction surcharge;

and (3) strike from the order the $20 Violent Crime Victims Assistance Fund penalty.

The sentencing order shall be modified to reflect this credit.

       We affirm the trial court=s order that the $5-per-day credit may not be applied to

the $100 Trauma Center Fund penalty, and affirm the trial court=s order regarding the

extraction and storing of defendant=s DNA.

       Affirmed as modified.

       GALLAGHER, P.J., concurs.

       NEVILLE, J., concurs in part and dissents in part.




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      JUSTICE NEVILLE, concurring in part and dissenting in part:

      I respectfully dissent because I believe the majority erred when it affirmed the

trial court=s order directing the defendant to pay $100 to the Trauma Center Fund,

pursuant to section 5-9-1.1(b) of the Unified Code of Corrections (Code). 730 ILCS 5/5-

9-1.1(b) (West 2004). I concur with the court=s holding in People v. Joseph, 176 Ill. App.

3d 636, 642 (1988), where the Joseph court reviewed section 5-9-1.1(b) of the Code

and made the following statement:

             AThe language of section 5-9-1.1 is clear and unambiguous

             and does not indicate an intent to exclude fines imposed

             under this section from the $5-a-day credit allowed under

             section 110-14. (See People v. Hare (1988), 119 Ill. 2d 441,

             519 N.E.2d 879.) In Hare, our supreme court addressed and

             rejected a similar argument with respect to a fine imposed

             under sections 1 through 11 of the Violent Crime Victims

             Assistance Act (Ill. Rev. Stat., 1984 Supp., ch. 70, pars. 501

             through 511), prior to its amendment expressly excluding the

             $5-a-day credit allowed pursuant to section 110-14. Any

             attempt to deny a defendant this credit, mandated by section

             110-14, must be accomplished by the legislature. See

             People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.@

             Joseph, 176 Ill. App. 3d at 642.

I believe that had the legislature intended to exclude section 5-9-1.1(b) from such

credits, it would have specifically made such an exclusion. Therefore, while I dissent

because I believe that we should follow Joseph and hold that the defendant is entitled to
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a setoff against his trauma fund fine (Joseph, 176 Ill. App. 3d at 642), I concur in the

remainder of the opinion.




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