People v. Hubbard

935 N.E.2d 687, 404 Ill. App. 3d 100, 343 Ill. Dec. 679, 2010 Ill. App. LEXIS 997
Appellate Court of Illinois·Decided September 17, 2010·No. 1-09-0346·Published·Cited by 13 cases

Opinion

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.

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.

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

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.

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, 403 Ill. App. 3d 797, 801-02 (2010); People v. Marshall, 402 Ill. App. 3d 1080, 1083 (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, 403 Ill. App. 3d at 801; see also Marshall, 402 Ill. App. 3d at 1083.

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, 403 Ill. App. 3d at 801.

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People v. Hubbard, 935 N.E.2d 687, 404 Ill. App. 3d 100, 343 Ill. Dec. 679, 2010 Ill. App. LEXIS 997 (Ill. Ct. App. 2010).

935 N.E.2d 687 (People v. Hubbard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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