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.
2 No. 1-09-0346
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.
3 No. 1-09-0346
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
Free access — add to your briefcase to read the full text and ask questions with AI
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.
2 No. 1-09-0346
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.
3 No. 1-09-0346
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
4 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
5 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 “
6 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.
7 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.
8 No. 1-09-0346
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.