                            No. 3--08--0825

Filed July 8, 2010
                                IN THE
                     APPELLATE COURT OF ILLINOIS
                            THIRD DISTRICT
                              A.D., 2010

THE PEOPLE OF THE STATE OF      )        Appeal from the Circuit Court
ILLINOIS,                       )        of the 10th Judicial Circuit,
                                )        Peoria County, Illinois
     Plaintiff-Appellee,        )
                                )
           v.                   )        No.   07--CF--678
                                )
EARL LEE MARSHALL,              )
                                )        Honorable Michael E. Brandt,
     Defendant-Appellant.       )        Judge, Presiding.


        JUSTICE SCHMIDT delivered the opinion of the court:


     Defendant, Earl Lee Marshall, pled guilty to first degree
murder.   The circuit court of Peoria County sentenced him to 33
years’ imprisonment and ordered him to pay a DNA analysis fee of
$200.   This is defendant’s direct appeal in which he claims the
order directing him to pay the $200 DNA fee should be vacated as
the court was without authority to order him to submit a sample
or pay the fee as his DNA was already on file.
                                 FACTS
     During the pendency of the case in the trial court, the
State moved for an order directing defendant "to produce the
buccal standard" for the purpose of DNA comparison analysis.       A
hearing was held in which defense counsel informed the court that
defendant’s DNA was already on file with the Combined DNA Index
System (CODIS).   The State reiterated its request for a buccal
sample and the court granted the State’s motion.
     Thereafter, defendant pled guilty to the charge of first
degree murder in exchange for a sentence cap of 33 years’ impris-
onment.   Following a sentencing hearing, the trial court ulti-
mately sentenced defendant to that term of imprisonment and noted
that there "is the judgment for costs and mandatory assessments
of DNA fee and testing."   The trial court’s written sentencing
order directed defendant to pay the $200 DNA assessment fee.
     The day after the sentencing hearing, defendant filed a
motion to withdraw guilty plea and a motion to reconsider sen-
tence.    The motion to withdraw his guilty plea alleged he was not
properly advised of his rights and did not knowingly and volun-
tarily plead guilty.   Later that same day, defendant filed an
amended motion to reconsider that alleged his sentence was
excessive as it was "the equivalent of a life sentence for the
Defendant," the court erred in refusing to consider the mental
history of the deceased and the court erred in refusing to admit
defendant's exhibit.
     Before a hearing could take place on defendant's motions, he
filed a supplemental motion to withdraw his guilty plea, alleging
he admitted killing the victim "out of fear of reprisal against

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him or his family" by the actual killer.      A hearing on defen-
dant's motions took place on October 9, 2008.      The trial court
denied the motions.     Defendant appeals.
                              ANALYSIS
       The sole issue raised on appeal by defendant is whether the
trial court properly ordered him to pay the $200 DNA analysis
fee.    Defendant argues that he can only be compelled to submit
one DNA sample for the purpose of the database maintained by the
Illinois State Police.    The record reflects that defendant was
previously incarcerated in the Department of Corrections in
January of 2002 until November of 2002.      He then returned to
prison as a parole violator in August 2003.      On October 16, 2003,
defendant was discharged from mandatory supervised release.
       Section 5--4--3 of the Unified Code of Corrections (Unified
Code) mandates that any person discharged from mandatory super-
vised release after August 22, 2002, submit a DNA sample prior to
his or her final discharge or release.    730 ILCS 5/5--4--3 (West
2008).    As such, defendant argues there is evidence in the record
to support his attorney's argument to the court that his DNA was
already on file with the Illinois State Police at the time he was
ordered to provide a sample in this matter and, therefore, the
trial court was without authority to order him to pay the $200
fee associated with the DNA processing.      Defendant claims People
v. Evangelista, 393 Ill. App. 3d 395, 912 N.E.2d 1242 (2009),

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supports his contention.
     The State responds by arguing that Evangelista was wrongly
decided.    The State notes that it wrongly confessed error in
Evangelista (Evangelista, 393 Ill. App. 3d at 399) leading the
court to incorrectly decide the issue "based on no authority
whatsoever."
     Moreover, the State claims defendant has waived this issue.
Defendant failed to raise the issue in his motion to reconsider
his sentence.    Defendant acknowledges that generally a defendant
forfeits on appeal any sentencing issues that he did not raise in
the circuit court.    People v. Reed, 177 Ill. 2d 389, 686 N.E.2d
584 (1997).    Defendant claims, however, that the trial court was
without statutory authorization to levy the $200 fee against him
and, as such, its order doing so is void and can be attacked at
any time.    A sentence not authorized by statute is void and can
be attacked at any time.    People v. Harris, 319 Ill. App. 3d 534,
745 N.E.2d 717 (2001).    However, as explained below, we find that
section 5--4--3 of the Unified Code did authorize the trial court
to order defendant to pay the $200 fee.    As such, the court's
order is not void, and we must honor defendant's procedural
default.    People v. Hillier, No. 108846 (June 4, 2010).
     The issue raised by defendant is one of statutory interpre-
tation, which is subject to de novo review.    County of Du Page v.
Illinois Labor Relations Board, 231 Ill. 2d 593, 900 N.E.2d 1095

                                  4
(2008).   When interpreting a statute, our primary objective is to
give effect to the intent of the legislature.    County of Du Page,
231 Ill. 2d at 603-04.   The most reliable indicator of such
intent is the language of the statute itself, which is to be
given its plain and ordinary meaning.   County of Du Page, 231
Ill. 2d at 604.
     Section 5--4--3 of the Unified Code (730 ILCS 5/5--4--3
(West 2008)) states that any person convicted of a qualifying
offense is required to submit specimens of blood, saliva, or
tissue to the Illinois State Police and "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).   Defendant does not
dispute that first degree murder is a qualifying offense as
contemplated by section 5--4--3 of the Unified Code.   730 ILCS
5/5--4--3(a)(1)(West 2008).   Moreover, defendant acknowledges
that subsection (j) uses mandatory language in noting that a
defendant "shall" pay the fee.   Defendant notes that in "light of
these statutory requirements, it is understandable that the
circuit court would think to order Marshall to submit a DNA
specimen and pay the $200 analysis fee."
     Nevertheless, defendant submits the court was without
authority to order the fee, as doing so after defendant's DNA was
already on file is outside the intent of the statute and would
"serve no purpose."   We disagree.

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     Nowhere in the statute did the legislature provide that a
convicted felon should be excused from the statute's mandates if
his DNA is already in the database, despite defendant's assertion
that the language in the statute "indicates that a person's DNA
should be collected only once."       Acknowledging that it found "no
case directly on point," the Evangelista court went on to find
that once "a defendant has submitted a DNA sample, requiring
additional samples would serve no purpose."       Evangelista, 393
Ill. App. 3d at 399.   The State did not contest the issue in
Evangelista and the court came to this conclusion in one para-
graph of analysis without discussing any language contained
within the statute.    Evangelista, 393 Ill. App. 3d at 399.     A
review of the language of the statute itself contradicts both
defendant's and the Evangelista court's conclusions.
     A subsection of the statute provides for the expungement of
collected DNA from the database in instances of the reversal of a
conviction or a pardon based upon successful claims of actual
innocence.   730 ILCS 5/5--4--3(f-1) (West 2008).     Taking defen-
dant's argument to its logical conclusion, defendant's interpre-
tation of the statute would allow the following sequence of
events to occur: (1) defendant is convicted of a qualifying
offense; (2) DNA sample is collected; (3) same defendant is
convicted of a second qualifying offense but no DNA is allowed to
be collected or fee assessed as DNA is already on file; (4)

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defendant's first conviction is reversed; (5) DNA sample is
expunged pursuant to section 5--4--3(f-1) (730 ILCS 5/5--4--3(f-
1) (West 2008)); and, therefore, (6) defendant's DNA is not on
file although he has a valid conviction for a qualifying offense.
We do not believe this was the legislature's intent.
     The legislature chose the phrase "shall pay an analysis fee
of $200" without consideration as to whether or not an offender's
DNA was already on file.   730 ILCS 5/5--4--3(j)(West 2008).
Considering this language and the fact that the legislature put
in place a process to expunge DNA from the database, we cannot
agree with defendant's reading of the statute that a court lacks
the authority to order a defendant to give DNA and pay the $200
analysis fee more than once.    We decline to follow Evangelista to
the extent it holds otherwise.   We note that Evangelista did not
find the order at issue void.    In Evangelista, unlike here, there
was no forfeiture issue.   The State conceded error and the court
agreed.   Here, we find the issue forfeited.
                            CONCLUSION
     For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
     Affirmed.
     HOLDRIDGE, P.J., and O'BRIEN, J., concur.




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