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People v. McCray

Court of Appeals of Illinois, Third District

September 27, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CALVIN J. McCRAY, Defendant-Appellant.

         Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, Circuit No. 13-CF-835, Honorable F. Michael Meersman, Judge, Presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and Holdridge concurred in the judgment and opinion.

          OPINION

          McDADE Justice

         ¶ 1 Defendant, Calvin J. McCray, argues on appeal that his $250 DNA analysis fee and his $2000 drug assessment should be vacated. We vacate both assessments. Pursuant to the State's confession of error, we remand the matter with directions for the trial court to apply a presentence incarceration credit against defendant's fines and modify the judgment order to conform with the trial court's oral pronouncement that defendant was guilty of the lesser-included offense of unlawful possession of heroin rather than the charged offense of unlawful possession of heroin with intent to deliver.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with unlawful possession of heroin with intent to deliver (720 ILCS 570/401(a)(1)(A) (West 2012)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2012)). A bench trial was held.

         ¶ 4 Following the trial, the court found defendant guilty of unlawful possession of cannabis with intent to deliver. With regard to the charge of unlawful possession of heroin with intent to deliver, the trial court found defendant guilty of the lesser-included offense of unlawful possession of heroin (720 ILCS 570/402(a)(1)(A) (West 2012)). The trial court reasoned: "I don't think for one minute you were going to sell it."

         ¶ 5 A presentence investigation report was prepared. The report showed defendant had several prior felony convictions, including a 2006 conviction from Cook County for unlawful delivery of a controlled substance. One of the State's trial exhibits included documentation showing that defendant was ordered to pay a DNA analysis fee in the 2006 Cook County case.

         ¶ 6 On July 2, 2014, the trial court sentenced defendant to six years' imprisonment on each count. The trial court also stated, "[A]ll the moneys owed are reduced to judgment. I don't show anything else in here he owes any other money on anything, but any money in this county is all reduced to judgment." The docket sheet indicated that the trial court ordered "costs to be reduced to judgment." Defendant filed a notice of appeal on July 8, 2014, and filed an amended notice of appeal on July 16, 2014.

         ¶ 7 On July 17, 2014, the trial court filed a written judgment which stated that defendant was convicted of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2012)) and unlawful possession of heroin with intent to deliver (720 ILCS 570/401(a)(1)(A) (West 2012)). The written judgment also ordered:

"[S]pecimens of the defendant's blood, saliva, or other tissue, as directed by the Illinois State Police, shall be collected within 45 days at a place and time designated by the Illinois State Police for genetic marker analysis pursuant to 730 ILCS 5/5-4-3(b) (unless a DNA specimen has been previously provided). The defendant shall pay an analysis fee of $250.00, unless the defendant has previously provided DNA."

         ¶ 8 The trial court also ordered that defendant pay a drug assessment in the amount of $2000 and the costs of prosecution. A document bearing the seal of the circuit clerk stated that a judgment was entered against defendant in the amount of $2912.

         ¶ 9 ANALYSIS

         ¶ 10 On appeal, defendant argues that (1) the judgment order should be corrected to conform to the trial court's oral pronouncement that defendant was guilty of the lesser-included offense of unlawful possession of heroin, (2) defendant should receive a $5-per-day presentence incarceration credit against all applicable fines, (3) the $250 DNA analysis fee should be vacated, ...


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