Appeal from the Circuit Court of Lake County. No. 92-CF-1619. Honorable Christopher C. Starck, Judge, Presiding.
Released for Publication July 19, 1994.
Doyle, Colwell, PECCARELLI
The opinion of the court was delivered by: Doyle
JUSTICE DOYLE delivered the opinion of the court:
After a bench trial in the circuit court of Lake County, defendant, Miguel A. Otero, Jr., was found guilty of one count each of the possession of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c) (West 1992))) and the possession of less than 15 grams of a substance containing cocaine with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2) (now 720 ILCS 570/401(c)(2) (West 1992))). The trial court entered judgment on the latter conviction only.
The court sentenced defendant to five years' imprisonment and imposed a $200 street-value fine (Ill. Rev. Stat. 1991, ch. 38, par. 1005-9-1.1 (now 730 ILCS 5/5-9-1.1 (West 1992))), a $50 laboratory fee (Ill. Rev. Stat. 1991, ch. 38, par. 1005-9-1.4(b) (now 730 ILCS 5/5-9-1.4(b) (West 1992))), and a $2,000 statutory assessment (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1411.2(a)(2) (now 720 ILCS 570/411.2(a)(2) (West 1992))). On appeal, defendant argues that (1) the street-value fine must be vacated because there was no evidence regarding the street value of the cocaine that the arresting officers seized from him; and (2) he is entitled to a $10 credit against his fines for the two days he was incarcerated before posting bond.
The evidence at trial revealed that Waukegan police officers arrested defendant after receiving an anonymous tip that a person matching defendant's description was selling drugs in a particular area and after observing defendant engage in three suspicioustransactions in that same area. The officers searched defendant and found nine "bindles," i.e., small, folded, paper squares, containing a white powdery substance. Laboratory tests revealed that the substance contained cocaine. The State admitted into evidence a report from the Northern Illinois Crime Laboratory. This report stated that the cocaine seized from defendant weighed 1.34 grams.
At the sentencing hearing the assistant State's Attorney "summarized" the trial evidence. She stated that the cocaine seized from defendant weighed 1.34 grams. She also stated that she believed there was testimony that the street value of this cocaine was approximately $200. The trial court accepted these representations and imposed a $200 street-value fine. The State concedes that the assistant State's Attorney's statement was incorrect and that there was no evidence regarding the street value of the cocaine.
Defendant argues that, because there was no evidence regarding the street value of the cocaine, the cause must be remanded for a new hearing so that the trial court may hear such evidence. Defendant did not object to the amount of the fine at the time the trial court imposed it and did not raise this issue in his motion to reconsider the sentence. Because defendant raised no objection in the trial court to the amount of the street-value fine, he has waived this issue on appeal. See People v. Brown (1993), 242 Ill. App. 3d 465, 467, 182 Ill. Dec. 907, 610 N.E.2d 776.
Defendant urges us to address this issue under the plain-error doctrine. Defendant correctly notes that there is a more compelling rationale for reviewing the street-value fine here than there was in Brown. In Brown, the defendant claimed only that the street-value fine was excessive. Here, by contrast, defendant claims that the trial court may not impose a street-value fine when there is no evidentiary basis for the fine, and that the trial court based its determination upon misinformation supplied by the State.
The prosecuting attorney incorrectly stated there was testimony at trial that the street value of the cocaine was approximately $200. Therefore, the fine is based on potentially inaccurate information. It is well settled that the due process clause prohibits a court from basing a sentence on inaccurate information. ( United States v. Tucker (1972), 404 U.S. 443, 447, 30 L. Ed. 2d 592, 596, 92 S. Ct. 589, 592.) Because the alleged error implicates the substantial rights of defendant and potentially deprived him of a fair sentencing hearing on the fine issue, we choose to address this issue pursuant to the plain-error doctrine. 134 Ill. 2d R. 615(a); People v. Hampton (1992), 149 Ill. 2d 71, 100, 171 Ill. Dec. 439, 594 N.E.2d 291.
The statutory provision at issue reads:
"When a person has been adJudged guilty of a drug relatedoffense involving possession or delivery of * * * a controlled substance as defined in * * * the Illinois Controlled Substances Act, * * * in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substance 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 substance seized." Ill. Rev. ...