People v. Rigsby

Opinion

FIRST DIVISION December 3, 2010

No. 1-09-1461

THE PEOPLE OF THE STATE ) Appeal from the OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) No.08 CR 21720 ) ) KEITH RIGSBY, ) Honorable ) John T. Doody, Jr., Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE HALL delivered the opinion of the court:

Following a jury trial, defendant Keith Rigsby was found

guilty of possession of a controlled substance (cocaine) with

intent to deliver. Defendant was sentenced as a Class X offender

to seven years' imprisonment. He was also required to submit a

sample of his DNA (deoxyribonucleic acid) for forensic analysis

and indexing and ordered to pay a $200 DNA analysis fee pursuant

to section 5-4-3(j) of the Unified Code of Corrections (730 ILCS

5/5-4-3(j) (West 2008)).

Section 5-4-3 of the statute provides that any person

convicted or found guilty of any offense classified as a felony

under Illinois law must submit specimens of blood, saliva, or

tissue to the Illinois Department of State Police for DNA

analysis and pay an analysis fee of $200. 730 ILCS 5/5-4-3(a),

(j) (West 2008). One of the purposes behind the statute is to No. 1-09-1461

create a database of the genetic identities of recidivist

criminal offenders. People v. Burdine, 362 Ill. App. 3d 19, 30,

839 N.E.2d 573 (2005); see also People v. Evangelista, 393 Ill.

App. 3d 395, 399, 912 N.E.2d 1242 (2009) ("obvious purpose of the

statute is to collect from a convicted defendant a DNA profile to

be stored in a database").

Defendant was previously convicted of drug-related felonies

that required him to provide DNA samples and to pay corresponding

analysis fees in cases Nos. 04 CR 25513 and 05 CR 2936. He

argues on appeal that the trial court erred in requiring him to

submit additional DNA samples and in ordering him to pay

additional DNA analysis fees in connection with his present

conviction. Defendant contends that the statute should not be

read to require submission of multiple and duplicative DNA

samples and payment of additional analysis fees from an offender

who has already submitted DNA samples pursuant to a prior

conviction and has paid a corresponding analysis fee. We agree.

Section 5-4-3 of the statute is silent and says nothing

about requiring offenders to provide additional DNA samples upon

every qualifying conviction or requiring payment of additional

DNA analysis fees from an offender who has already complied with

the statutory requirements and has samples of his DNA on file in

the police database. The legislature's silence on these issues

creates an ambiguity in the statute that permits us to look

beyond its text to resolve the ambiguity. See People v. Bomar,

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Nos. 3-08-0985, 3-08-0986, slip op. at 21 (October 15, 2010)

(McDade, J., concurring in part and dissenting in part); see,

e.g., Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 401, 808

N.E.2d 957 (2004).

In Illinois, DNA is collected from qualifying offenders by

detention facilities or by certain designated state, local, or

private agencies. 730 ILCS 5/5-4-3(d-5), (d-6) (West 2008).

Under section 1285.30 of Title 20 of the Administrative Code,

which is the implementing regulation for section 5-4-3 of the

statute, facilities and agencies responsible for collecting DNA

samples are designated based on the statutory presumption that

the qualifying offender has not previously had a sample taken or

collected: "If the qualifying offender has not previously had a

sample taken" and is serving a term of incarceration in a

facility under the control of the county sheriff or is being

transferred to another state to serve the sentence, the

designated agency is the sheriff's office; "[i]f the qualifying

offender has not previously had a sample taken" and is

transferred to a facility under the control of the Department of

Corrections to serve a term of incarceration, the designated

agency is the Department of Corrections; "[i]f the qualifying

transferred to a facility under the control of the Department of

Juvenile Justice to serve a term of incarceration, the designated

agency is the Department of Juvenile Justice; "[i]f the

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qualifying offender has not previously had a sample collected"

and is transferred to the Department of Corrections to be

institutionalized as a sexually dangerous person or

institutionalized as a person found guilty but mentally ill of a

sexual offense or an attempted sexual offense, the designated

agency is the Department of Corrections; "[i]f the qualifying

offender has not previously had a sample collected" and is

ordered committed as a sexually violent person, the designated

agency is the Department of Human Services; and "[i]f the

qualifying offender has not previously had a sample collected"

and is serving a sentence but not physically incarcerated, the

designated agency is the supervising agency such as a probation

office. (Emphasis added.) 20 Ill. Adm. Code §§1285.30(c)(1)

through (c)(6), amended at 31 Ill. Reg. 9249, 9254-55, eff. June

12, 2007.

In light of the italicized statutory language quoted above,

it is reasonable to assume that, in practice, a designated

facility or agency charged with administering the statute would

not interpret it to require submission of multiple and

duplicative DNA samples from an offender who has already

submitted samples pursuant to a prior conviction. See Bomar, slip

op. at 21 (McDade, J., concurring in part and dissenting in

part); see also Evangelista, 393 Ill. App. 3d at 399 ("Once a

defendant has submitted a DNA sample, requiring additional

samples would serve no purpose").

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A one-time submission into the police DNA database is

sufficient to satisfy the purpose of the statute in creating a

database of the genetic identities of recidivist criminal

offenders, because once an offender's DNA data is stored in the

database, it remains there unless and until the offender's

conviction is reversed based on a finding of actual innocence or

he is pardoned based on a finding of actual innocence. 730 ILCS

5/5-4-3(f-1) (West 2008).

Moreover, since the analysis fee is intended to cover the

costs of the DNA analysis, and only one analysis is necessary per

qualifying offender, then by extension only one analysis fee is

necessary as well. See Bomar, slip op. at 21-22 (McDade, J.,

concurring in part and dissenting in part); People v. Willis, 402

Ill. App. 3d 47, 61, 934 N.E.2d 487 (2010). Notably, when the

legislature has intended for a fee to be imposed on a per-

conviction basis rather than a per-defendant basis, it has said

so. See, e.g., 730 ILCS 125/17 (West 2008) ("The county shall be

entitled to a $10 fee for each conviction or order of supervision

for a criminal violation ***").

We do not believe the analysis set forth in People v.

Marshall, 402 Ill. App. 3d 1080, 931 N.E.2d 1271 (2010), dictates

a different result. In Marshall, the reviewing court determined

that if an offender was required to submit only one DNA sample, a

scenario could occur in which the offender could wind up not

having any DNA sample on file. Marshall, 402 Ill. App. 3d at

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1083.

The Marshall court reasoned that a possible sequence of

events could occur in which: the offender was convicted of a

qualifying offense and a sample of his DNA was collected; the

offender was then convicted of a second qualifying offense, but

this time, no DNA sample was collected because a sample was

already on file; the offender's first conviction is reversed and

his DNA sample is expunged pursuant to section 5-4-3(f-1) (730

ILCS 5/5-4-3(f-1) (West 2008)), resulting in the offender having

no DNA sample on file even though he has a valid conviction for a

qualifying offense. Marshall, 402 Ill. App. 3d at 1083.

We do not read the statute as providing such a loophole. We

interpret the statute as requiring that a single DNA sample

remain in the database for each person convicted of a qualifying

offense. This means that if an offender's previous sample was

expunged for whatever reason, a subsequent conviction would

naturally require a new sample be taken and this would be

sufficient for maintenance of the DNA database.

We also reject the notion mentioned in People v. Grayer, No.

1-09-0021, slip op. at 1-2 (August 24, 2010), that the desire to

have fresh samples of DNA justifies requiring the submission of

multiple and duplicative samples from an offender who has already

satisfied the statute by submitting DNA samples pursuant to a

prior conviction. Samples of DNA can remain viable for thousands

of years if maintained under appropriate conditions. See P. Tracy

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& V. Morgan, Big Brother and his Science Kit: DNA Databases for

21st Century Crime Control?, 90 J. Crim. L. & Criminology 635,

673 n.105 (2000).

Finally, we reject the State's suggestion that a defendant

who has been assessed a DNA analysis fee must first show that he

actually paid the fee before he can challenge the fee on appeal.

In enacting the statute, the legislature did not require payment

of the DNA analysis fee as a prerequisite to challenging the fee.

See Grayer, slip op. at 1-2.

We also reject the State's argument that the defendant

forfeited this issue by failing to raise it in a postsentencing

motion. Defendant's contention on appeal is that the trial court

exceeded its statutory authority in ordering him to pay the DNA

analysis fee and that therefore the order is void. A challenge

to an alleged void order is not subject to forfeiture. People v.

Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445 (1995).

Accordingly, for the reasons set forth above, we vacate that

portion of the trial court's order requiring defendant to submit

additional DNA samples and requiring him to pay the $200 DNA

analysis fee. We affirm defendant's conviction in all other

respects.

Affirmed in part and vacated in part.

PATTI, J., concurs.

JUSTICE LAMPKIN, dissenting:

I respectfully dissent. I would follow this court’s earlier

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decisions in Marshall, 402 Ill. App. 3d 1080, Grayer, People v.

Hubbard, No. 1-09-0346 (September 17, 2010), and Bomar, and

affirm the trial court’s order requiring defendant to submit an

additional DNA sample and pay the DNA analysis fee.

I agree with the analysis in Marshall, Grayer, Hubbard, and

Bomar, which held that the trial court was authorized by statute

to require the defendant to submit a DNA sample and pay the

analysis fee, even though the defendant was ordered to do so

previously as a result of an earlier qualifying conviction.

These cases determined that (1) the submission of a qualifying

defendant’s DNA and assessment of the fee was mandatory under the

language of the statute; (2) our legislature was keenly aware of

recidivism and did not expressly create any exception for

successive qualifying convictions; and (3) the collection of

additional DNA samples is neither absurd nor unjust nor

significantly inconvenient where it is reasonable to have fresh

samples and the ability to subject new samples to new methods of

collection, analysis, and categorization. Grayer, slip op. at 7-

8; Hubbard, slip op. at 4-5.

Defendant’s reliance on Evangelista, 393 Ill. App. 3d at

399, to support his appeal is misplaced, because the Evangelista

court vacated the analysis fee based merely upon the parties’

agreement that the taking of a DNA sample and assessment of the

analysis fee in an earlier case barred a new assessment of the

analysis fee. Also unavailing to defendant’s position are

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Willis, 402 Ill. App. 3d 47, and People v. Unander, No. 4-09-0411

(September 28, 2010), as modified on denial of rehearing (October

26, 2010). The Willis court followed Evangelista without

acknowledging that Evangelista never analyzed the merits of this

issue but, rather, merely accepted a concession of error. See

Grayer, slip op. at 6-7. Furthermore, in Unander, the reviewing

court vacated the analysis fee based primarily upon the trial

court’s conditional order that the defendant submit a sample and

fee in the event he had not already done so. Unander, slip op.

at 8. The case before us does not involve a conditional order.

In Marshall, 402 Ill. App. 3d at 1083, Grayer, slip op. at

7, Hubbard, slip op. at 4, and Bomar, slip op. at 16, this court

noted that although the statute does not expressly require a fee

for every felony conviction, it does not limit the taking of DNA

samples or the assessment of the analysis fee to a single

instance. Here, the majority contends that the statute is

ambiguous and the language of our administrative code leads to

the reasonable assumption that the designated agency charged with

administering the statute probably does not collect additional

DNA samples from previously convicted defendants. I, however, do

not find persuasive the majority’s reliance upon the inference it

draws from the administrative code.

The section of the Administrative Code cited by the majority

discusses the duty of a designated agency, i.e., the county

sheriff, Department of Corrections, Department of Juvenile

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Justice, Department of Human Services, or probation office, to

collect the defendant’s DNA sample when he is in or transferred

to a facility under that agency’s control, if a sample has not

been collected from the defendant previously. See 20 Ill. Adm.

Code §1285.30(c), amended at 31 Ill. Reg. 9249, 9253, eff. June

12, 2007. That section, however, does not serve to support the

inference drawn by the majority because, like the statute in

dispute, there is no reference to initial or subsequent

convictions. Without such clarification, the cited section may

simply refer to the situation where a defendant convicted of a

qualifying offense is transferred among the various agencies

during the course of serving his sentence based upon that

particular conviction.

Furthermore, the inference the majority seeks to draw from

section 1285.30(c) is challenged by section 1285.70, which

addresses the expungement of records. Specifically, section

1285.70 provides that the genetic marker grouping will be removed

from the local, state, and national offender databases after

receipt of a final court order requiring expungement “[i]n the

event the disposition or conviction upon which a sample

collection was based has been reversed based on actual innocence

or that a pardon has been granted based on actual innocence.”

(Emphasis added.) 20 Ill. Adm. Code §1285.70, amended at 31 Ill.

Reg. 9249, 9258, eff. June 12, 2007. This quoted language

indicates an expectation that the databases will contain multiple

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records based on multiple DNA samples where a defendant has

successive qualifying convictions.

I do not believe that the submission of an additional DNA

sample upon a defendant’s subsequent conviction of a qualifying

offense serves no purpose or is superfluous. As discussed in

Marshall, the statutory provision for the expungement of records

and destruction of DNA samples upon the reversal of a conviction

or a pardon could result, under the majority’s interpretation of

the statute, in a scenario where a defendant’s DNA is not on file

despite his valid conviction of a qualifying offense. Marshall,

402 Ill. App. 3d at 1083. Specifically, under the majority’s

interpretation of the statute, it is possible that a defendant

who is no longer in custody and has multiple convictions of

qualifying offenses, could receive a pardon of his initial

conviction. A danger exists then that his DNA, which was

collected based upon his initial conviction, could be destroyed

despite the existence of his subsequent and still valid

convictions.

Although the majority dismisses the possibility that its

interpretation of the statute creates such a “loophole,” the

majority cites to no statutory provision or agency procedure or

rule that ensures against such a mishap. Notably, section

1285.70 of Title 20 of the Illinois Administrative Code contains

no provision or warning to check for a defendant’s multiple

convictions before his record is deleted from the databases and

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his DNA material is destroyed as a result of expungement. 20

Ill. Adm. Code §1285.70, amended at 31 Ill. Reg. 9249, 9258, eff.

June 12, 2007.

Finally, because I would find that the statute authorized

the trial court to order defendant to submit a DNA sample and pay

the analysis fee, the trial court’s order is not void and the

procedural default by defendant should be honored on appeal.

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