                                                                            SIXTH DIVISION
                                                                         SEPTEMBER 17, 2010




No. 1-09-0346


THE PEOPLE OF THE STATE OF ILLINOIS,                        )       Appeal from the
                                                            )       Circuit Court of
                        Plaintiff-Appellee,                 )       Cook County.
                                                            )
v.                                                          )       No. 08 CR 12832
                                                            )
FRANK HUBBARD,                                              )       Honorable
                                                            )       Charles P. Burns,
                        Defendant-Appellant.                )       Judge Presiding.


        JUSTICE ROBERT E. GORDON delivered the opinion of the court:

        Following a bench trial, defendant Frank Hubbard was convicted of possession of a

controlled substance (less than 15 grams of heroin) and sentenced to 18 months’ imprisonment

with fines and fees.

        On appeal, he claims, first, that his $200 fee for DNA analysis was improper because he

provided a DNA sample and was assessed the analysis fee following a prior felony conviction or

disposition. 730 ILCS 5/5-4-3(j) (West 2008). He claims, second, that his $10 fee for the

Arrestee’s Medical Costs Fund (730 ILCS 125/17 (West 2006)) was erroneously assessed

because there was no evidence that he was injured, or that the county incurred medical expenses

for him, while he was in the custody of the county.

        For the reasons discussed below, we find both claims unpersuasive.

                                         BACKGROUND

        Since neither claim concerns the facts of his underlying conviction, we will dispense with

a recitation of those facts.
No. 1-09-0346

       The trial court initially assessed fees and fines in the amount of $1,165, including a $200

DNA analysis charge, pursuant to section 5-4-3(j) of the Unified Code of Corrections (730 ILCS

5/5-4-3(j) (West 2008)), and a $10 charge for the Arrestee’s Medical Costs Fund, pursuant to

section 17 of the County Jail Act (730 ILCS 125/17 (West 2006)). The trial court subtracted the

$5-per-day presentence incarceration credit for 69 days from the total of fines, reducing the total

fines, fees and costs defendant owed to $820.

       On appeal, defendant did not challenge his conviction or sentence, but raised claims that

the trial court improperly assessed a $200 DNA analysis charge and a $10 Arrestee’s Medical
Costs Fund charge. In the appellate brief filed by the State Appellate Defender on defendant’s

behalf, defendant stated:

                “Hubbard, however, was previously convicted of other felonies in

                1998 and 2005, and thus, he already submitted a DNA sample and

                paid the $200 DNA analysis fee. [Citation.] Because Hubbard

                already submitted a DNA sample for analysis, it was improper for

                the court to impose another fee on him for a duplicate procedure.”

However, the record was devoid of evidence showing that defendant previously paid a DNA

analysis charge. Thus, on July 6, 2010, the appellate court ordered the State Appellate Defender

to supplement the record with the pertinent portions of defendant’s prior conviction record which

would substantiate the claim made in defendant’s appellate brief.

       On August 18, 2010, defendant supplemented the record with two volumes, which

contained: (1) an order concerning fines and fees, entered May 31, 2005, showing that

defendant was ordered to pay a $200 DNA analysis fee, “no later than 60 days prior to the

termination of probation”; and (2) a report from the Illinois State Police’s DNA Indexing

Laboratory which showed that a DNA sample was collected from defendant on June 21, 2005.




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         These two documents confirmed that a DNA analysis fee was previously assessed against

defendant and that a DNA sample was previously obtained from defendant. However, these

documents did not show whether defendant actually paid the assessed fee.

                                           ANALYSIS

                                       1. DNA Analysis Fee

         As noted above, the record on appeal shows that defendant was assessed the analysis fee

both in the instant case and in an earlier felony case and that his DNA sample was taken pursuant

to the earlier case.
         Section 5-4-3 of the Unified Code of Corrections provides that any person convicted or

found guilty of a felony must submit DNA samples to the Department of State Police and pay an

analysis fee of $200. 730 ILCS 5/5-4-3(a), (j) (West 2008). Defendant claims that, because he

provided DNA samples and was assessed the analysis fee under a prior conviction, he has

satisfied the requirements of the statute. In other words, he argues that section 5-4-3 requires

only one submission of DNA samples and one assessment of the analysis fee, so that the current

$200 analysis fee is improperly duplicative.

         The State responds that nothing in the record demonstrates that defendant previously paid

the analysis fee. There is a difference between assessment and actual payment. The State notes

that defendant has the burden of providing this court with a sufficiently complete record to

support his claim of error and any doubts arising from the record’s incompleteness must be

resolved against him. People v. Hunt, 234 Ill. 2d 49, 58 (2009). However, while the record does

not show whether defendant has paid the analysis fee, the issue presented by defendant is, as

stated above, whether the fee may be assessed more than once. Because the record is clear that

defendant was assessed the DNA analysis fee at least twice, we shall consider the merits of his

claim.




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       Section 5-4-3(a) provides that "[a]ny person *** convicted or found guilty of any offense

classified as a felony under Illinois law *** shall, regardless of the sentence or disposition

imposed, be required to submit specimens of blood, saliva, or tissue to the Illinois Department of

State Police in accordance with the provisions of this Section." 730 ILCS 5/5-4-3(a) (West

2008). Section 5-4-3(j) then provides that "[a]ny person required by subsection (a) to submit

specimens of blood, saliva, or tissue to the Illinois Department of State Police for analysis and

categorization into genetic marker grouping, in addition to any other disposition, penalty, or fine

imposed, shall pay an analysis fee of $200." 730 ILCS 5/5-4-3(j) (West 2008).
       We have recently considered and rejected claims substantially identical to those raised by

defendant. People v. Grayer, No. 1-09-0021, slip op. at 7 (August 24, 2010); People v. Marshall,

No. 3-08-0825, slip op. at 7 (July 8, 2010). In Grayer and Marshall, we noted that the statute

does not expressly require a fee for every felony conviction, but also that "nothing in the statutory

language limits the taking of DNA samples or the assessment of the analysis fee to a single

instance." Grayer, slip op. at 6; see also Marshall, slip op. at 6.

       We observed in Grayer:

                       "A cursory examination of the Criminal Code reveals that

                our legislature is keenly aware of recidivism, with several offenses

                aggravated by prior convictions. Despite this awareness and

                willingness to manifest it in statutes, the legislature did not address

                the issue of successive qualifying convictions in section 5-4-3,

                either by expressly authorizing or expressly excepting the taking of

                a second DNA sample or assessment of a second analysis fee upon

                a second qualifying conviction." Grayer, slip op. at 6.

       We found that this statutory language links assessment of the fee to the defendant’s

obligation to provide a DNA sample, but rejected the argument that additional DNA samples


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No. 1-09-0346

would serve no purpose. Grayer, slip op. at 6, citing People v. Willis, No. 1-08-2609, slip op. at

22-23 (May 21, 2010), and People v. Evangelista, 393 Ill. App. 3d 395, 399 (2009). We found

no absurdity, injustice, or significant inconvenience in collecting a new DNA sample whenever a

defendant is newly convicted of a qualifying offense. Grayer, slip op. at 6-7. We envisioned at

least two reasons for doing so: to have fresh samples, and to be able to subject new samples to

new methods of collecting, analyzing, and categorizing DNA samples. Grayer, slip op. at 7.

       We see no reason to depart from our holdings in Marshall and Grayer; and thus we hold

that the DNA analysis fee may be assessed upon any qualifying conviction or disposition,
whether or not it was previously assessed. Accordingly, this second fee was properly assessed

upon defendant.

                                 2. Arrestee’s Medical Costs Fund

       Second, defendant claims that his $10 fee for the Arrestee’s Medical Costs Fund (730

ILCS 125/17 (West 2006)) was improperly assessed because there is no indication that he was

injured, or incurred medical expenses for the county, while in custody.

       At the time of defendant’s offense in June 2008, the relevant statute provided:

                "When medical or hospital services are required by any person held

                in custody, the county *** shall be entitled to obtain

                reimbursement from the Arrestee's Medical Costs Fund to the

                extent moneys are available from the Fund. To the extent that the

                person is reasonably able to pay for that care, including

                reimbursement from any insurance program or from other medical

                benefit programs available to the person, he or she shall reimburse

                the county.

                       The county shall be entitled to a $10 fee for each conviction

                or order of supervision for a criminal violation, other than a petty


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No. 1-09-0346

                offense or business offense. The fee shall be taxed as costs to be

                collected from the defendant, if possible, upon conviction or entry

                of an order of supervision. The fee shall not be considered a part

                of the fine for purposes of any reduction in the fine.

                       All such fees collected shall be deposited by the county in a

                fund to be established and known as the Arrestee's Medical Costs

                Fund. Moneys in the Fund shall be used solely for reimbursement

                of costs for medical expenses relating to the arrestee while he or
                she is in the custody of the sheriff and administration of the Fund.

                       *** For the purposes of this Section, 'medical expenses

                relating to the arrestee' means only those expenses incurred for

                medical care or treatment provided to an arrestee on account of an

                injury suffered by the arrestee during the course of his or her arrest

                unless such injury is self-inflicted; the term does not include any

                expenses incurred for medical care or treatment provided to an

                arrestee on account of a health condition of the arrestee which

                existed prior to the time of his or her arrest." (730 ILCS 125/17

                (West 2006).

       Defendant notes that this court has held that this fee may not be assessed where "[n]o

evidence in the record suggests that [the] defendant underwent any medical treatment for an

injury suffered during his arrest." People v. Cleveland, 393 Ill. App. 3d 700, 714 (2009).

       In Cleveland, the first division vacated a $10 charge for the Arrestee’s Medical Costs

Fund, on the ground that the defendant in that case had not undergone any medical treatment

while in custody and that the charge should be applied only to costs for medical expenses “




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No. 1-09-0346

‘relating to the arrestee.’ ” Cleveland, 393 Ill. App. 3d at 714, quoting 730 ILCS 125/17 (West

2006).

         Cleveland was decided on August 3, 2009, and was authored by the same author as this

present opinion. Over a month later, on September 11, 2009, the Second District released for

publication People v. Evangelista, 393 Ill. App. 3d 395 (2009). In Evangelista, Justice Schostok

persuasively wrote that the charge was to be collected from every defendant, in order to create a

fund to pay for medical expenses for all arrestees who required medical care while in custody.

Evangelista, 393 Ill. App. 3d at 400, quoting 730 ILCS 125/17 (West 2006) (the $10 charge
“ ‘shall *** be collected from the defendant’ ”).

         The collection of this $10 charge is authorized and discussed in two paragraphs of section

17 of the County Jail Act. 730 ILCS 125/17 (West 2006). The first of these two paragraphs

states unequivocally that “[t]he county shall be entitled to a $10 fee for each conviction.” 730

ILCS 125/17 (West 2006). The only exception is if the conviction is for “a petty offense or

business offense.” 730 ILCS 125/17 (West 2006). This paragraph does not provide an exception

for defendants who had no need of medical care. Thus, the mandatory and unequivocal language

of this first paragraph shows that the county is entitled to the $10 charge, whether or not a

particular defendant required medical services.

         Although the first paragraph is crystal clear, the Evangelista court noted that the second

paragraph is “potentially confusing.” Evangelista, 393 Ill. App. 3d at 400. A line in the second

paragraph states: “Moneys in the Fund shall be used solely for reimbursement of costs for

medical expenses relating to the arrestee while he or she is in the custody of the sheriff and

administration of the Fund.” 730 ILCS 125/17 (West 2006). The Evangelista court found this

line to be “potentially confusing” because “it could be read to allow expending the funds

received only for the particular arrestee in question.” Evangelista, 393 Ill. App. 3d at 400.




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No. 1-09-0346

        The Evangelista court rejected this potential interpretation, finding that the first paragraph

governed when the charge should be collected, while the second paragraph governed how the

collected moneys should be spent. Evangelista, 393 Ill. App. 3d at 400, citing 730 ILCS 125/17

(West 2006). Thus the Evangelista court found the language of the first paragraph to be

controlling of the issue before it, and this author now agrees. See also People v. Elcock, 396 Ill.

App. 3d 524, 539-40 (2d Dist. 2009) (reaffirming its holding in Evangelista and observing that

the statutory scheme “requires all convicted defendants to contribute to the fund”).

        The Evangelista court offered an additional reason for rejecting this potential
interpretation. It interpreted “the singular ‘arrestee’ to apply to ‘arrestees’ in general,” and thus it

transformed a singular word into a plural one. Evangelista, 393 Ill. App. 3d at 400, citing 5 ILCS

70/1.03 (West 2006) (“Words importing the singular number may extend and be applied to

several persons or things”).

        However, there is no need to struggle to turn a singular word into a plural one, when the

second paragraph goes on to direct that the moneys may also be used for “administration of the

Fund.” 730 ILCS 125/17 (West 2006). The second paragraph provides that the moneys could be

used either for “medical expenses relating to the arrestee” or for “administration of the Fund.”

730 ILCS 125/17 (West 2006).

        On December 24, 2009, the sixth division decided People v. Jones, which was authored

by the same author as both Cleveland and this present opinion. People v. Jones, 397 Ill. App. 3d

651, 661-63 (2009), pet. for leave to appeal pending, No. 109874. In Jones, the sixth division

adopted the ruling by the Second District in Evangelista. Jones, 397 Ill. App. 3d at 663. We

disagreed only with the Evangelista court’s transformation of the singular “arrestee” into a plural,

as explained above, but we reached the same ultimate conclusion as the Second District. Jones,

397 Ill. App. 3d at 663.




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       For the reasons stated in Jones, we conclude that the fee was properly assessed upon

defendant’s conviction, regardless of whether he was injured or treated while in custody.




                                        CONCLUSION

       Accordingly, the judgment of the circuit court is affirmed.

       Affirmed.

       CAHILL and J. GORDON, JJ., concur.




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