                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Williams, 2011 IL App (3d) 100142




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DERRICK D. WILLIAMS, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0142


Filed                      December 1, 2011


Held                       Although defendant could raise a claim for monetary credit for his
(Note: This syllabus       presentence incarceration on an appeal from the denial of his
constitutes no part of     postconviction, he could not apply his presentence credit against the $200
the opinion of the court   DNA analysis fee, since the credit may not be levied against a fee, only
but has been prepared      a fine.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Warren County, No. 06–CF–100; the
Review                     Hon. David L. Vancil, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Jacqueline L. Bullard, of State Appellate Defender’s Office, of
Appeal                     Springfield, for appellant.

                           Albert G. Algren, State’s Attorney, of Monmouth (Terry A. Mertel and
                           Dawn D. Duffy, both of State’s Attorneys Appellate Prosecutor’s Office,
                           of counsel), for the People.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Justice Holdridge specially concurred, with opinion.
                           Justice Wright dissented, with opinion.




                                             OPINION

¶1          The defendant, Derrick D. Williams, was sentenced to concurrent prison terms of 35
        years for attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)), 15 years
        for home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), and 6 years for armed robbery
        (720 ILCS 5/18-2(a)(2) (West 2006)). The defendant appeals the dismissal of his successive
        postconviction petition. He argues that the trial court erred when it did not apply his $5-per-
        day custody credit toward his $200 deoxyribonucleic acid (DNA) analysis. 730 ILCS 5/5-4-
        3(j) (West 2006). We affirm.
¶2          Following the defendant’s convictions, he was ordered to pay a $200 DNA analysis fee.
        The defendant was in custody from July 22, 2006, until he was sentenced on November 9,
        2006. After sentencing, the defendant filed a direct appeal. While the defendant’s direct
        appeal was pending, he filed a postconviction petition. The trial court dismissed the
        defendant’s postconviction petition. Thereafter, we issued our order on the defendant’s direct
        appeal. People v. Williams, No. 3-06-0838 (2008) (unpublished order under Supreme Court
        Rule 23).
¶3          On November 2, 2009, the defendant filed a successive postconviction petition without
        leave of the court. The court denied the petition, and the defendant appealed.
¶4          On appeal, the defendant argues that the trial court should have applied his $5-per-day
        credit toward his $200 DNA assessment.
¶5          The State argues that we should not grant the defendant’s request because he failed to
        seek leave of the court to file a successive postconviction petition and he does not meet the
        cause and prejudice requirements. Further, the State urges us to adopt the reasoning in People
        v. Tolliver, 363 Ill. App. 3d 94 (2006), which held that the $200 DNA analysis fee is not a
        fine and therefore is not compensable by the presentencing credit.
¶6          A defendant is allowed $5 for each day he is incarcerated but does not supply bail before

                                                 -2-
       sentencing. 725 ILCS 5/110-14 (West 2006). “[A] claim for per diem monetary credit
       conferred by section 110-14 of the Code of Criminal Procedure of 1963 is a statutory right
       [citation] and is not cognizable under the Post-Conviction Hearing Act.” People v.
       Caballero, 228 Ill. 2d 79, 87 (2008). However, section 110-14 does not specify the time
       frame or procedural stage during which an application for credit can be made. Granting the
       credit on the appeal of a postconviction petition is “ ‘a simple ministerial act that will
       promote judicial economy by ending any further proceedings over the matter.’ ” People v.
       Woodard, 175 Ill. 2d 435, 456-57 (1997) (quoting People v. Scott, 277 Ill. App. 3d 565, 566
       (1996)). Therefore, defendant may raise his claim for monetary credit on the appeal of his
       postconviction petition because the basis for granting the relief is clear and available from
       the record. See Caballero, 228 Ill. 2d 79.
¶7         Next, we look to whether the DNA assessment was a fee or a fine, as the credit may be
       levied against a fine but not a fee. 725 ILCS 5/110-14 (West 2006). A fine “ ‘is a part of the
       punishment for a conviction, whereas a “fee” or “cost” seeks to recoup expenses incurred by
       the State *** in prosecuting the defendant.’ ” People v. Long, 398 Ill. App. 3d 1028, 1032
       (2010) (quoting People v. Jones, 223 Ill. 2d 569, 582 (2006)). Our supreme court explained
       in People v. Marshall, 242 Ill. 2d 285, 296 (2011), that the DNA analysis fee “is intended
       to cover the costs of the DNA analysis.” From Marshall, the Second District reasoned that
       the DNA analysis fee is not imposed on a defendant as punishment, but is used to “cover the
       costs incurred in collecting and testing a DNA sample that is taken from a defendant
       convicted of a qualifying offense.” People v. Guadarrama, 2011 IL App (2d) 100072, ¶ 13.
       We agree with the Second District that the DNA analysis fee is better characterized as a fee
       and not a fine. Thus, we find that the defendant could not apply his presentencing credit to
       satisfy his $200 DNA analysis fee.
¶8         The judgment of the circuit court of Warren County is affirmed.

¶9         Affirmed.

¶ 10        JUSTICE HOLDRIDGE, specially concurring:
¶ 11        I agree with the majority’s judgment and analysis. I write separately to further clarify why
       I believe the $200 DNA analysis assessment required by section 5-4-3(j) of the Unified Code
       of Corrections (Code) is a fee rather than a fine. 730 ILCS 5/5-4-3(j) (West 2006). First, it
       is labeled a “fee” in the statute. Id. Although the supreme court has ruled that the label used
       by the legislature is not necessarily controlling (People v. Graves, 235 Ill. 2d 244, 250
       (2009)), it has noted that the legislature’s label is “strong evidence” of whether a particular
       charge is a fee or a fine. (Internal quotation marks omitted.) Id. Thus, where the “actual
       attributes” of the charge do not suggest that the legislature’s label is mistaken, I believe we
       should assume that the legislature meant what it said. (Internal quotation marks omitted.) See
       id.
¶ 12        Here, nothing about the DNA analysis assessment suggests that it is a fine. As the
       majority notes, a fine is punitive, whereas a fee is compensatory. See supra ¶ 7; see also
       Graves, 235 Ill. 2d at 250. Thus, a charge is a fee if it “seeks to compensate the state for any

                                                 -3-
       costs incurred as the result of prosecuting the defendant.” (Emphasis added.) Id. The DNA
       analysis charge is a “cost incurred as the result of” the defendant’s prosecution and
       conviction. Every person convicted of certain qualifying offenses is required to submit
       specimens of blood, saliva, or tissue for DNA analysis. 730 ILCS 5/5-4-3(a)(1) (West 2006).
       The statute does not require all citizens to submit DNA for analysis. Rather, only those
       charged with and convicted of qualifying offenses must do so. Thus, the cost of analyzing
       and cataloguing the defendant’s DNA in this case was incurred as a result of this prosecution
       and conviction. See, e.g., People v. Anthony, 408 Ill. App. 3d 799, 809 (2011) (holding that
       the DNA analysis charge is a fee rather than a fine because it “reimburses the State for the
       expense of operating a system under which this defendant’s DNA profile was required to be
       processed and analyzed as a result and collateral consequence of this prosecution and
       conviction”).
¶ 13        In People v. Long, 398 Ill. App. 3d 1028 (2010), our appellate court held that the DNA
       analysis assessment is a fine. However, in my view, Long is not persuasive. Long ruled that
       the DNA assessment is not a fee because section 5-4-3(k)(3) provides that money from the
       DNA analysis assessment may be used “to form, maintain, and improve a DNA database of
       Illinois criminals” and because that section “contains no language indicating the DNA-
       analysis assessment is to be used to pay for the analysis of the specimen of the particular
       defendant required to submit a specimen.” Long, 398 Ill. App. 3d at 1034. However, the fact
       that the legislature allows the funds collected through the imposition of the DNA analysis
       fee to be used to finance the entire DNA database (rather than merely to fund the cost of
       analyzing the defendant’s DNA) does not change the compensatory nature of the fee. As
       noted above, the fee “reimburses the State for the expense of operating a system under which
       this defendant’s DNA profile was required to be processed and analyzed as a result *** of
       this prosecution and conviction.” Anthony, 408 Ill. App. 3d at 809. Those expenses were
       incurred as the result of the defendant’s conviction and the convictions of all others who
       were convicted of qualifying offenses. Moreover, even if the State is overcharging convicted
       felons for the cost of analyzing their DNA, that fact would not change the nature of the fee.
¶ 14        In any event, as the majority notes, the supreme court’s recent decision in People v.
       Marshall, 242 Ill. 2d 285, 296 (2011), has resolved this issue. In Marshall, the supreme court
       stated that the DNA analysis assessment is intended to cover the costs of analyzing a
       defendant’s DNA and held that a trial court may order a defendant to submit a DNA sample
       and pay the $200 assessment “only where [the] defendant is not currently registered in the
       DNA database.” Id. at 296, 303. Although Marshall did not explicitly decide whether the
       DNA assessment is a fine or a fee, the supreme court’s reasoning in Marshall compels the
       conclusion that it is a compensatory fee rather than a punitive sanction. Thus, in my view,
       Long is no longer good law. See People v. Stuckey, 2011 IL App (1st) 092535, ¶ 36
       (declining to follow Long in light of Marshall).

¶ 15      JUSTICE WRIGHT, dissenting:
¶ 16      In this case, defendant did not request leave of the court to file his successive
       postconviction petition, despite the fact that a defendant is required to do so. 725 ILCS


                                                -4-
       5/122-1(f) (West 2008); People v. LaPointe, 227 Ill. 2d 39, 42 (2007). Even if the court had
       granted defendant leave to file this successive postconviction petition, the record reveals that
       the issues raised in that postconviction petition related to claims of ineffective assistance of
       counsel and did not challenge the amount of monetary credit defendant received toward court
       ordered fines, including the DNA analysis fee.
¶ 17       This issue was not included in defendant’s successive postconviction petition and was
       not addressed by the trial court when dismissing that petition. Therefore, this court should
       not consider whether defendant is entitled to receive monetary credit toward his DNA
       analysis fee as the issue has been waived. See People v. Jones, 213 Ill. 2d 498, 508 (2004).
       I would affirm the trial court’s decision.
¶ 18       For these reasons, I respectfully dissent.




                                                 -5-
