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03/08/88 the People of the State of v. Miguel Carrasquilla

March 8, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MIGUEL CARRASQUILLA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

522 N.E.2d 139, 167 Ill. App. 3d 1069, 118 Ill. Dec. 684 1988.IL.313

Date Filed: March 8, 1988; As Amended October 6, 1988.

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Durkin, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Defendant, Miguel Carrasquilla, appeals a conviction for possession of a controlled substance with intent to deliver and the imposition of a fine in the amount of $22,500. The following issues are raised on appeal: (1) whether the trial court erred in assessing a fine against defendant in the amount of $22,500 where the fine was satisfied by the seizure of a bail deposit paid by defendant's family and defendant lacked financial resources to pay the fine; (2) whether the State failed to prove defendant guilty beyond a reasonable doubt; (3) whether certain remarks and conduct of the trial court directed toward defendant and his counsel constituted reversible error; and (4) whether section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1), establishing a fine based on "street value" of drugs, is unconstitutionally vague.

At trial, Officer Richard Lopardo testified that on June 25, 1985, he placed the building located at 830 North California Avenue under surveillance between 8 and 9 p.m. He was accompanied by four other officers. At about 11:55 p.m., he executed a search warrant for the second-floor apartment in the building. Defendant opened the door. His wife, Gladys Carrasquilla, was present along with their three children. After conducting a search, Officer Lopardo seized three bags of cocaine which were discovered in a suitcase in the rear bedroom closet of the apartment. After discovering the bags and field testing the substance, the officer continued the search and found two additional bags of cocaine in a kitchen cabinet. The combined weight of the cocaine totalled 3,888.61 grams.

The defendant testified that on June 25, 1985, he left his home between 3 and 3:30 in the afternoon to drive his sister-in-law to the corner of California and Division, where she made a phone call. Defendant admitted that he had a phone in his apartment. After she made the phone call, he drove her home and then drove to Arlington Heights, where he delivered a station wagon he had repaired. He testified that he arrived in Arlington Heights at 4:30 p.m. He and the owner of the station wagon then went to a liquor store where they purchased some alcohol. While at the liquor store, defendant saw a friend, Juan Garibay. Defendant returned to his home between 11 and 11:30 p.m. He stated that he did not know there were narcotics in the apartment.

Defendant's wife corroborated his testimony with respect to the time he left the apartment and the time he returned. She testified that at 6 p.m. that night, a man named Armando Lizbaro came over and asked to leave a suitcase in the apartment. She stated that his request was not unusual and that she put the suitcase in her bedroom so that it would not be in the way of the children.

Defendant was found guilty. At the sentencing hearing, the State indicated that the value of the cocaine was approximately $400,000. The trial court fined defendant $22,500, which was to be taken from the bail deposit. Defense counsel objected as the bond was not defendant's money but money provided by members of defendant's family.

Defense counsel introduced a motion to reduce the fine and maintained that the court had failed to hold a hearing to determine defendant's financial resources as required by section 5-9-1 (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1). The trial Judge stated that the bond originally had been $2,500,000 until he reduced it to $22,500. The court then held a hearing to determine defendant's ability to pay the fine. At the hearing, Officer Claude Posilovich testified for the State regarding the street value of the cocaine. He stated that one gram of cocaine sells for $100 to $110. On that basis the estimated the value of the cocaine in issue here to be approximately $400,000. Following testimony of defendant and his parents regarding the source of the bond money, the trial court affirmed the $22,500 fine. Defendant now appeals.

Defendant's first contention is that the trial court improperly imposed the $22,500 fine under section 5-9-1 (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1). That section provides in pertinent part:

"Sec. 5 -- 9 -- 1. Authorized fines.

(a) An offender may be sentenced to pay a fine which shall not ...


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