                                          2016 IL App (3d) 140877

                               Opinion filed December 8, 2016
     _____________________________________________________________________________

                                                  IN THE

                                      APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2016

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 12th Judicial Circuit,
                                                       )      Will County, Illinois,
             Plaintiff-Appellee,                       )
                                                       )      Appeal No. 3-14-0877
             v.                                        )      Circuit No. 10-CF-2009
                                                       )
     MATTHEW RAMONES,                                  )      Honorable
                                                       )      Daniel J. Rozak,
             Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices McDade and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant entered a guilty plea to the offense of aggravated domestic battery.

     Accordingly, the trial court sentenced defendant to four years of imprisonment on November 2,

     2010. Four years later, on August 25, 2014, defendant filed a pro se petition for relief from

     judgment. The State filed a motion to dismiss which the trial court granted. Defendant appeals

     the dismissal of his petition.

¶2                                                FACTS

¶3          Matthew Ramones (defendant) pleaded guilty to aggravated domestic battery (720 ILCS

     5/12-3.2(a)(2) (West 2010)). On November 2, 2010, the trial court sentenced defendant to four
     years of imprisonment and ordered defendant to pay costs. The record contains a “4th Revised

     Criminal Cost Sheet” (Cost Sheet) dated November 2, 2010.

¶4          The Cost Sheet contains a $50 “court systems fee” and a $200 “DNA analysis fee,” along

     with other financial charges that have not been contested in this appeal.

¶5          The record reveals defendant did not file a posttrial motion or bring any monetary

     concerns to the trial court’s attention after sentencing. In the trial court, defendant did not make

     any application requesting the $5 per diem credit to offset fines. Similarly, after the sentencing

     order was entered, defendant did not raise a timely challenge to any of the amounts reflected in

     the Cost Sheet.

¶6          Four years later, on August 25, 2014, defendant filed a pro se petition for relief from

     judgment (petition) pursuant to the Code of Civil Procedure but did not contest any monetary

     issues in the petition. 735 ILCS 5/2-1401(f) (West 2014). Defendant’s petition was limited to due

     process violations affecting his conviction.

¶7          The State filed a combined motion to dismiss defendant’s petition pursuant to sections 2-

     103, 2-615, and 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-301, 2-615, 2-

     619(a)(5) (West 2014)), and Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The State’s

     combined motion sought dismissal on the grounds that defendant’s petition was untimely,

     service was improper, and the petition failed to state a cause of action. The trial court granted the

     State’s motion to dismiss on September 30, 2014, on jurisdictional grounds, citing lack of proper

     service. Defendant appeals.

¶8                                               ANALYSIS

¶9          In this appeal, defendant does not challenge the trial court’s 2014 decision dismissing

     defendant’s petition. Hence, the trial court’s unchallenged dismissal of the petition must stand.




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¶ 10            However, defendant uses the opportunity presented by this appeal to make his first

       request for the application of the $5 per diem credit to offset his $50 court systems fine. 1 The

       State does not oppose the requested $5 per diem credit to apply to the court systems fine.

¶ 11            In addition, also for the first time on appeal, defendant raises a challenge to the

       successive DNA analysis fee included in the 2010 Cost Sheet. Defendant asserts he previously

       submitted to a DNA analysis and should not be compelled to pay a successive DNA analysis fee.

       The State claims defendant has forfeited any error with respect to the duplicate DNA analysis fee

       and opposes revestment, which would allow this court to consider the procedurally forfeited

       issue.

¶ 12            In People v. Buffkin, 2016 IL App (2d) 140792, the court considered the same two issues,

       together with defendant’s request for revestment. Recognizing the insightful analysis set forth in

       Buffkin, we apply the same rationale to defendant’s request for a $5 per diem credit. However,

       before we address the first issue related to the $5 per diem credit, several observations are in

       order.

¶ 13            First, the $5 per diem credit is not automatic. The applicable statute states that the

       defendant “shall be allowed a credit of $5 for each day so incarcerated upon application of the

       defendant.” (Emphasis added.) 725 ILCS 5/110-14(a) (West 2014). Hence, a trial court has no

       obligation to grant the monetary credit sua sponte in the event defense counsel fails to request

       application of the credit to offset fines. However, once defendant makes an application for the $5

       per diem credit to apply, then the trial court “shall” allow the requested credit. In addition, the

       statute provides that the credit applies to reduce fines rather than court costs.

                1
                Defendant does not request the per diem credit to be applied to any other amounts included in the
       Cost Sheet. Further, we recognize that the Cost Sheet at issue in this case references a court systems “fee”
       and not a court systems “fine.” However, this assessment is considered a “fine,” and we will refer to it as
       such. People v. Smith, 2013 IL App (2d) 120691, ¶¶ 18-20. We note, for purposes of this appeal,
       defendant does not challenge the court systems fine on the basis that it was added by the circuit clerk.


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¶ 14          In the case at bar, defense counsel did not request the $5 per diem credit at any point in

       time when before the trial court. This fact is not earth-shattering because the trial court

       announced the imposition of costs only. As stated above, the credit cannot be applied to reduce

       court costs.

¶ 15          However, at this point in time, defendant has now made an application to this court

       requesting to receive the $5 per diem credit to offset fines reflected in the original Cost Sheet.

       The State concedes defendant is now entitled to receive this credit to offset the $50 court systems

       fine. The State’s concession is supported by the holding in Buffkin, which recognizes there is “no

       impediment” to granting the credit defendant requests for the first time when before a reviewing

       court. Buffkin, 2016 IL App (2d) 140792, ¶ 4. Consequently, we agree defendant is entitled to

       receive the $5 per diem credit to satisfy the $50 court systems fine.

¶ 16          Next, we turn to the second issue in this appeal that pertains to a successive DNA

       analysis fee. It is interesting to note that when the successive DNA analysis fee was imposed in

       this case in 2010, the sentencing judge did not have the benefit of the decision in People v.

       Marshall, 242 Ill. 2d 285 (2011). It is likely that defense counsel did not object to the successive

       DNA analysis fee in 2010 because this issue was not settled by existing case law. For purposes

       of this appeal, neither party addresses the issue of whether Marshall applies retroactively and we

       will not undertake that analysis sua sponte.

¶ 17          Nonetheless, the court in Buffkin also had an opportunity to consider the defendant’s

       untimely objection to a successive DNA analysis fee under similar circumstances. In Buffkin, the

       Second District held that the imposition of a successive DNA analysis fee did not create a void

       judgment subject to challenge at any time. See generally, Buffkin, 2016 IL App (2d) 140792,

       ¶¶ 9-10. Since the original sentence in Buffkin was not void, the Second District reasoned that




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       forfeiture would apply unless the State agreed to allow the reviewing court to consider the issue

       based on the revestment doctrine. Id. ¶¶ 10-11. In Buffkin, the State agreed to allow revestment

       and the court granted the relief requested. Id. ¶ 11. Here, the State takes a different stance and

       opposes revestment.

¶ 18          Applying the rationale of Buffkin, we hold that the imposition of a successive DNA

       analysis fee did not result in a void sentence in the case at bar. We also recognize defendant did

       not preserve this issue in the trial court and forfeiture applies. Since the State opposes

       revestment, procedural forfeiture controls the outcome of this issue.

¶ 19                                             CONCLUSION

¶ 20          We remand the cause for the circuit court of Will County to apply a $50 credit to satisfy

       defendant’s $50 court systems fine. Defendant’s request for this court to direct the trial court to

       vacate the DNA analysis fee is denied based on procedural default.

¶ 21          The judgment of the circuit court of Will County is remanded with directions.

¶ 22          Remanded with directions.




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