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07/14/94 PEOPLE STATE ILLINOIS v. ANTHONY F.

July 14, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF,
v.
ANTHONY F. PROVENZANO, DEFENDANT-APPELLEE (THE DEPARTMENT OF REVENUE, APPELLANT).



Appeal from the Circuit Court of Kane County. No. 91-CF-515. Honorable Ronald B. Mehling, Judge, Presiding.

The Name of this Case has been Corrected July 27, 1994. Released for Publication August 15, 1994.

Geiger, Woodward, Quetsch

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

Based on a negotiated guilty plea, the trial court entered a judgment convicting the defendant, Anthony Provenzano, of unlawful possession with intent to deliver cannabis (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(e) (now 720 ILCS 550/5(e) (West 1992))). The Department of Revenue (the Department), which was allowed to file a special and limited appearance when the defendant sought to specifically enforce his plea agreement with the State, appeals from the court's order that the Department release and dismiss a tax lien against the defendant. The Department argues that although the State's plea agreement with the defendant contemplated that release, the trial court lacked jurisdiction to order release of the lien. We vacate and remand.

The basic facts in this case are undisputed. In March 1991, the defendant was arrested when he sold 20 pounds of cannabis to undercover police. Subsequent searches turned up two cannabis "bricks" in the defendant's vehicle and an additional 100 pounds of cannabis plus $21,680 in his garage. The Department notified the defendant that, pursuant to the Cannabis and Controlled Substances Tax Act (the Act) (35 ILCS 520/1 et seq. (West 1992)), it had assessed him over $1.3 million in taxes and placed a lien for that amount on his personal and real property.

On March 12, the State's Attorney submitted a draft plea agreement to the defendant. It provided that the prosecutor would recommend a minimal sentence if the defendant would cooperate with the authorities, surrender his attorney's license, forfeit the money seized from him, and plead guilty. On March 21, the defendant's attorney sent the prosecutor a new draft agreement. That draft added a provision that the prosecutor agreed "that any and all forfeiture proceedings and liens placed against the personal and/or business or property accounts of [the defendant] by the Department * * * will be released and dismissed * * * [but that] should [the defendant] not fully cooperate and/or participate in the above referenced investigations, said forfeiture and liens will then be reinstated." The State admits it agreed to the defendant's proposal.

On March 27, the defendant was debriefed in furtherance of the plea agreement. On April 24, the Department partially satisfied its lien when it levied against the defendant's business account for $2,530.83. The defendant moved for specific enforcement of the plea agreement. In his supporting memorandum, the defendant claimed, and the State has not denied, that he also "was asked to arrange and participate in other narcotics transactions, to testify in grand jury proceedings regarding those transactions, and to testify at trial about other individuals involved in those transactions."

In its response to the defendant's motion, the State acknowledged the agreement and the defendant's cooperation. However, the State also noted that, despite its good faith in entering the agreement and its attempts in good faith to obtain a waiver of the Illinois tax lien, the Department had refused to release its lien. In Conclusion, citing People v. Navarroli (1988), 121 Ill. 2d 516, 118 Ill. Dec. 414, 521 N.E.2d 891, the State asserted that the defendant was not entitled to specific performance of the plea agreement where he had not pleaded guilty in reliance upon it and where there had been no violation of his constitutional rights.

The Department filed a special and limited appearance to challenge the court's authority to order it to release its lien. At the Conclusion of the November 25 hearing on the defendant's motion for specific performance, the court found that the defendant relied to his detriment on the plea agreement, giving up substantial constitutional rights, for example, by waiving his right to an attorney, by giving a full statement, by participating in additional illegal substance transactions, and by testifying in court. The court also found that the State's Attorney, being an agency and the attorney for the State, had the actual or apparent authority to bind the Department. The court granted the defendant's motion for enforcement.

On December 8, 1992, the defendant entered his guilty plea and the court sentenced him in accordance with the plea agreement. By a separate December 8 written order, the court ordered the Department to release its lien, to return the funds already levied upon, and to cease and desist from further enforcement conflicting with the plea agreement. The Department brought this appeal.

On appeal, the Department argues that only courts sitting in administrative review, which the trial court was not, have the authority to overrule the Department's executive decisions including the tax lien decision now at issue. It also argues that even if the court had jurisdiction to enforce the plea agreement, the defendant was not entitled to enforcement. According to the latter argument, the Department contends that although the defendant cooperated with the State in reliance on the agreement, he did not plead guilty in reliance upon it and his cooperation with the State did not implicate his constitutional rights.

The State is not participating in this appeal. The defendant argues first that the State's repudiation of its undisputed plea agreement constitutes a denial of due process which can be remedied only by specific performance of the agreement. In his second argument, the defendant challenges the Department's arguments (1) that because this is not an action in administrative review, the court lacked subject-matter jurisdiction to overrule the Department's executivedecision on the tax lien; and (2) that the State's Attorney lacked the power or apparent authority to bind the Department on the matter of the tax lien. The defendant concludes with an unsupported alternative request: that we dismiss the indictment, finding that the Department's refusal to specifically comply with the plea agreement and release the lien deprives him of due process.

The Act, under which the Department's imposition of liens in this case was completed, sets a tax rate per gram or dosage unit of cannabis or controlled substance (35 ILCS 520/9 (West 1992)) and provides that no dealer may possess any covered substance without evidence that the tax has been paid (35 ILCS 520/5 (West 1992)). It also provides that one who violates the Act is guilty of a Class 4 ...


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