People v. McCray
64 N.E.3d 750
Ill. App. Ct.2016Background
- Calvin J. McCray was tried by bench on charges of possession of heroin with intent to deliver and possession of cannabis with intent to deliver; the court convicted him of cannabis with intent to deliver and the lesser-included offense of simple possession of heroin.
- A presentence investigation showed prior felony convictions, including a 2006 Cook County conviction where a DNA analysis fee had been previously ordered.
- At sentencing the court imposed six-year prison terms on each count, stated that "costs" were reduced to judgment, and the docket reflected costs reduced to judgment; defendant filed a timely notice of appeal shortly thereafter.
- Nine days after the notice of appeal, the trial court’s written judgment was filed and it (1) recited the more serious heroin-with-intent-to-deliver offense, (2) ordered a $250 DNA analysis fee, (3) imposed a $2,000 drug assessment, and (4) reflected a total judgment amount.
- On appeal McCray challenged the written judgment’s accuracy, sought $5/day presentence incarceration credit against fines, and asked vacation of the $250 DNA fee and the $2,000 drug assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written judgment must be corrected to reflect conviction for the lesser-included heroin possession offense | State concedes the written judgment should be corrected to match the oral pronouncement | Written judgment erroneously reflects possession with intent to deliver rather than simple possession | Remanded with directions to correct the judgment to show unlawful possession of heroin (lesser-included) |
| Whether defendant is entitled to $5/day presentence incarceration credit against fines for 290 days ($1,450) | State concedes credit applies | Credit should be applied to applicable fines | Remanded to apply $1,450 presentence incarceration credit against applicable fines |
| Whether the $250 DNA analysis fee may be imposed though defendant had been previously assessed such a fee in an earlier felony case | State argued fee proper unless previously paid | Fee should be vacated because defendant already had a prior felony DNA assessment and Marshall bars duplicate assessment | DNA fee vacated (duplicate fee unauthorized under People v. Marshall) |
| Whether the $2,000 drug assessment in the written judgment is void because it was added after defendant filed his notice of appeal | State defended written entry as ministerial or proper | Assessment is a fine that was not orally imposed and was entered after notice of appeal, thus unauthorized | $2,000 drug assessment vacated as an improper post-appeal modification of sentence |
Key Cases Cited
- People v. Marshall, 242 Ill. 2d 285 (Ill. 2011) (duplicate DNA analysis fees may not be imposed when defendant already registered in DNA database)
- People v. Jones, 223 Ill. 2d 569 (Ill. 2006) (distinguishing fines from costs; fines are punitive monetary punishments part of sentence)
- People v. Bounds, 182 Ill. 2d 1 (Ill. 1998) (filing a notice of appeal vests jurisdiction in appellate court and limits trial court authority)
- People v. Bender, 226 Ill. App. 3d 940 (Ill. App. 1992) (oral pronouncement of sentence is the court's judicial act; written entry is a ministerial record)