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The People of the State of Illinois v. Joseph L. Nelson

April 10, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH L. NELSON,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 09-CF-2965 Honorable Sarah-Marie Jones, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Wright and Justice McDade concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Joseph L. Nelson, pled guilty to unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)) and was sentenced to probation. The sentencing order included a $600 street value fine. Defendant appeals his sentence, arguing that the trial court committed plain error when it assessed a street value fine without a sufficient evidentiary basis. We remand the cause to the trial court for a proper determination of the street value fine.

¶ 2 FACTS

¶ 3 Defendant was charged with unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)). Thereafter, the parties reached a plea agreement under which defendant agreed to plead guilty if the State reduced the charge from a Class 1 to a Class 2 felony. There was no agreement as to defendant's sentence. The trial court accepted the plea deal.

¶ 4 The cause proceeded to a sentencing hearing. During the hearing, the trial court asked the prosecutor, "Do you have a street value fine order *** ready?" The prosecutor responded, "I would have to--I am going to add that up." A few moments later the prosecutor told the court, "I have a street value fine of $600." Defendant did not respond to the State's value, and no evidence was presented to support it. Defendant was sentenced to 48 months of probation and ordered to pay a $600 street value fine. Defendant appeals.

¶ 5 ANALYSIS

¶ 6 Defendant argues that the trial court erred when it assessed a $600 street value fine without taking evidence of the actual street value of the drugs. Initially, we note that defendant failed to object to the fine or raise the issue in a posttrial motion. Therefore, the issue cannot be considered unless the plain error doctrine applies. Ill. S. Ct. R. 615(a). The plain error doctrine bypasses forfeiture principles and allows a reviewing court to consider unpreserved error when:

(1) the evidence is close, regardless of the seriousness of the error; or (2) the error is serious, regardless of the closeness of the evidence. People v. Adams, 2012 IL 111168.

¶ 7 In People v. Lewis, 234 Ill. 2d 32 (2009), the Illinois Supreme Court expressly held the plain error doctrine applies when a trial court imposes a street value fine without a proper evidentiary basis of the value of the controlled substance. The Lewis court noted that an evidentiary basis may be provided by testimony at sentencing, a stipulation to the current value, or reliable evidence presented at a previous stage of the proceedings. Id. Under Lewis, if we find the absence of a proper evidentiary basis, we must conclude that the plain error doctrine applies and remand the cause for a new calculation of the street value fine. Id.

¶ 8 In this case, it is undisputed that the circuit court did not hear any evidence regarding the street value; however, the State contends that a proper evidentiary basis was established when it asserted that the street value was $600 and defendant remained silent. The State claims that such silence by defendant amounted to a stipulation by silence.

ΒΆ 9 In People v. Blankenship, 406 Ill. App. 3d 578 (2010), the Second District of the Appellate Court concluded that the defendant had stipulated by silence when the trial court asked both parties for their input on the street value fine, and defendant remained silent after the State offered its opinion. While we note that this case is distinguishable in that the trial court here asked only the State for its opinion, we disagree with Blankenship'sultimate ...


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