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09/20/89 the People of the State of v. James Lusietto

September 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

JAMES LUSIETTO, APPELLANT



SUPREME COURT OF ILLINOIS

544 N.E.2d 785, 131 Ill. 2d 51, 136 Ill. Dec. 99 1989.IL.1452

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. Fred P. Wagner, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE RYAN took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Following a plea of guilty in the circuit court of La Salle County to a charge of unlawful delivery of a controlled substance, cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)), the defendant, James Lusietto, was sentenced to 11 years' imprisonment and was fined $8,290 (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1). The defendant appealed, contending that the fine mandated by statute was improperly calculated. The appellate court, with one Judge Dissenting, basically affirmed imposition of the fine as determined by the trial court. (167 Ill. App. 3d 251.) We granted the defendant's petition for leave to appeal (107 Ill. 2d R. 315).

On December 6, 1985, the defendant went to the home of a man, who unknown to him was a police informant, to conduct a drug sale. While being covertly monitored by electronic surveillance equipment, the defendant produced 2.5 ounces of cocaine for sale to the informant. There was no evidence that a sale price had been agreed upon when the defendant was arrested.

As stated, the trial court accepted the defendant's plea of guilty, sentenced him to 11 years' imprisonment and imposed a mandatory street value fine of $8,290 (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1). In calculating the street value of the drugs seized, the court relied on testimony of the arresting narcotics officer that cocaine is typically sold to the user by the gram and that the usual price paid for a gram is $100. Police testimony showed that the amount of cocaine seized at the informant's home was 2.5 ounces, or 69.5 grams. There had been an earlier sale by the defendant to the informer, and it could be inferred from the terms of that sale that resale of these drugs by the informer, and not use by him, was contemplated. He himself was to be a supplier and not a user at the street level. An additional one-half ounce, or 13.4 grams, was seized at the defendant's home in a search following the arrest. The trial court calculated the street value of the 82.9 grams to be $8,290, the fine imposed.

On appeal to the appellate court, the defendant challenged the trial court's basis for determining street value, saying that the calculation should have been based on the evidence of the price the defendant was to pay for the cocaine, $1,900 per ounce. The defendant did not testify at trial, but the investigating officer testified that, while in custody, the defendant stated that he was to pay his supplier $1,900 per ounce for the cocaine. The defendant also argued that the trial court exceeded its sentencing authority when it ordered him to pay an additional amount as a fine based on the one-half ounce of cocaine found at his residence and for which he was separately charged and had pleaded guilty. Too, the defendant argued that his fine should be reduced so as to reflect a $5-a-day credit for his pretrial incarceration. Ill. Rev. Stat. 1987, ch. 38, par. 110-14.

The appellate court approved the trial court's calculation of street value on the agent's testimony, rather than on the price to be paid by the defendant to his supplier. The appellate court also correctly modified the amount of the fine, holding that the cocaine seized from the defendant's home should not have been included in the calculation of the fine since it was the subject of a separate prosecution. The appellate court stated, too, that the defendant was entitled to a $105 credit to reflect his pretrial incarceration.

The issue on this review is whether, for the purpose of determining the mandatory fine under section 5 -- 9 -- 1.1 of the Unified Code of Corrections, the street value of the drugs seized was, on the evidence, properly determined through the testimony of an experienced narcotics officer to be $100 per gram. In other terms, was street value to be based on the usual price paid by the user-consumer, as established by the testifying officer, or was it to be based, as the defendant argues, on the price to be paid by the defendant to his supplier for the drugs?

Section 5 -- 9 -- 1.1 provides for a mandatory fine in drug-related offenses:

"When a person has been adJudged guilty of a drug related offense involving . . . possession or delivery of a controlled substance . . . a fine shall be levied by the court at not less than the full street value of the . . . controlled substances seized.

'Street value' shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the . . . controlled ...


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