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People v. Nelson

Court of Appeals of Illinois, Third District

April 10, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSEPH L. NELSON, Defendant-Appellant.

Held [*]

Defendant’s conviction and sentence for unlawful possession of a controlled substance with intent to deliver were upheld, but the trial court’s imposition of a street value fine without hearing evidence of the street value of the substance involved was reversed and the cause was remanded, notwithstanding the State’s contention that defendant remained silent when the State asserted that the street value was $600, since defendant’s silence prior to the entry of a judgment of conviction did not amount to a stipulation to the street value.

Appeal from the Circuit Court of Will County, No. 09-CF-2965; the Hon. Sarah-Marie Jones, Judge, presiding.

Fletcher P. Hamill, of State Appellate Defender's Office, of Elgin, for appellant.

James Glasgow, State's Attorney, of Joliet (Terry A. Mertel and Dawn D. Duffy, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

OPINION

CARTER, JUSTICE

¶ 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 ...


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