People v. Galmore

Opinion

Filed 4/30/08 NO. 4-07-0073

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County IVRAN GALMORE, ) No. 04CF1516 Defendant-Appellant. ) ) Honorable ) Arnold F. Blockman, ) Judge Presiding. ______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In December 2006, a jury found defendant, Ivran

Galmore, guilty of the offense of unlawful possession with intent

to deliver a controlled substance. In January 2007, the trial

court sentenced defendant to 19 years in prison and imposed a

mandatory street-value fine of $10,000.

On appeal, defendant argues the trial court erred in

ordering him to pay a $10,000 street-value fine. We vacate and

remand with directions.

I. BACKGROUND

In September 2004, a grand jury indicted defendant on

one count of unlawful possession with intent to deliver a con-

trolled substance (720 ILCS 570/401(a)(2)(A) (West 2004)),

alleging he knowingly and unlawfully possessed with the intent to

deliver 15 grams or more but less than 100 grams of a substance

containing cocaine. Defendant pleaded not guilty.

In December 2006, defendant's jury trial commenced. University of Illinois police sergeant Aaron Fredrick testified

he was on patrol on August 15, 2004, at approximately 1:40 a.m.

when he observed the driver of a silver Pontiac disobey a stop

sign. Fredrick stopped the vehicle and spoke with defendant, who

stated he did not have his wallet or driver's license on him.

When defendant reached to obtain a rental agreement, Fredrick

moved closer to the window and smelled the odor of unburnt

cannabis. Sergeant Fredrick returned to his car to check the

status of defendant's driver's license and called for a canine

unit. The canine officer arrived and walked his dog Roxy around

the car. He later advised Fredrick that Roxy alerted on the car.

Sergeant Fredrick testified he returned to the vehicle

and asked defendant and the passenger to exit. Defendant did not

comply, rolled up his window, and "took off at a high rate of

speed." Fredrick returned to his vehicle and caught up to

defendant's stopped vehicle. Defendant opened the door and "took

off running." Fredrick observed defendant carrying a "black

case" that "looked like a wallet." Defendant jumped a fence but

dropped the case. As defendant stopped to look for the case,

Fredrick caught up to him. Thinking defendant dropped his wallet

and not wanting to get into a physical confrontation, Fredrick

attempted to stall and make conversation with him. Defendant

found the case and took off running before getting stuck between

a fence and a ramp. Fredrick gave defendant a burst of pepper

spray. Defendant then disappeared into a courtyard.

As Fredrick continued into the courtyard, defendant ran

- 2 - at him and struck him. Fredrick pepper sprayed defendant again

and saw "something fly up into the air." Defendant took off and

disappeared. Fredrick found him hiding underneath the front

porch of a residence. After Fredrick threatened to release the

dog, defendant crawled out from under the porch and was taken

into custody.

Fredrick did not find any contraband on defendant's

person and did not see the case under the porch. Officers

retraced the path of the foot pursuit and found a black compact

disc (CD) case containing suspected crack cocaine. Fredrick

recovered 50 individual rocks of crack cocaine. He testified

crack cocaine is typically consumed in $20 rocks. Based on his

training and experience, the rocks were packaged for sale.

University of Illinois police officer Douglas Beckman

testified his dog Roxy alerted to the black CD case. Beckman

opened up the case and found a package with a large amount of

crack cocaine. He stated the crack cocaine appeared to be

packaged for sale and from his experience the Baggies sell for

$20 to $30 a piece.

Hope Erwin-Sipes, a forensic scientist with the Illi-

nois State Police, testified she conducted tests on a chunky

substance in two of the State's exhibits. Exhibit No. 1 con-

tained 22 plastic bags containing a chunky substance weighing

54.7 grams. Her test of 13.9 grams of the substance indicated

the presence of cocaine base. Exhibit No. 2 contained 28 bags of

a chunky substance weighing 29.1 grams. Her test of 10.6 grams

- 3 - of the substance also indicated the presence of cocaine base.

Defendant testified on his own behalf. He stated he

fled because he had a previous conviction for driving while

intoxicated and did not want to go to jail. He testified none of

the packages of cocaine belonged to him.

Following closing arguments, the jury found defendant

guilty. Thereafter, defendant filed a motion for a new trial or,

in the alternative, a judgment notwithstanding the verdict, which

the trial court denied.

In January 2007, the trial court sentenced defendant to

19 years in prison. The court also imposed a $3,000 mandatory

assessment and a crime-lab fee of $100. When the court asked the

prosecutor the value of the mandatory street-value fine, the

following exchange occurred:

"MS. CARLSON: Judge, we would recommend

$10,000.

THE COURT: Okay. Now is that discretion-

ary with the court?

MS. CARLSON: Judge, it is for the court

to take the sum and multiply it by $10 per

[one-tenth] of [a] gram. That was fast and

probably inaccurate math on my part that frank-

ly benefitted the defendant at 83 grams--83.8

grams times $10 per [one-tenth] of a gram.

THE COURT: All right. Ten[-]thousand[-]

dollar mandatory street[-]value fine."

- 4 - This appeal followed.

II. ANALYSIS

Defendant argues the trial court erred in ordering him

to pay a $10,000 street-value fine, claiming no evidence sup-

ported that amount. We agree.

Initially, the State argues defendant has forfeited his

argument on appeal because he failed to object at the sentencing

hearing and did not raise the issue in a postsentencing motion.

By failing to object at the sentencing hearing or preserve his

claim in his postsentencing motion, defendant has forfeited this

argument on appeal. See People v. Beard, 356 Ill. App. 3d 236,

241, 825 N.E.2d 353, 359 (2005); see also People v. Hestand, 362

Ill. App. 3d 272, 279, 838 N.E.2d 318, 324 (2005) (a defendant

must object at trial and raise the issue in a posttrial motion to

preserve the issue for review on appeal).

Defendant, however, asks this court to consider this

issue pursuant to the plain-error rule.

"'"[B]efore an appellate court can cor-

rect an error not raised at trial, there must

be (1) 'error,' (2) that is 'plain,' and (3)

that 'affect[s] substantial rights.'" [Cita-

tion.] "If all three conditions are met, an

appellate court may then exercise its discre-

tion to notice a forfeited error, but only if

(4) the error seriously affect[s] the fair-

ness, integrity, or public reputation of

- 5 - judicial proceedings."'" People v. Crespo,

203 Ill. 2d 335, 348, 788 N.E.2d 1117, 1124

(2001), quoting United States v. Cotton, 535

U.S. 625, 631, 152 L. Ed. 2d 860, 868, 122 S.

Ct. 1781, 1785 (2002), quoting Johnson v.

United States, 520 U.S. 461, 467, 137 L. Ed.

2d 718, 727, 117 S. Ct. 1544, 1549 (1997).

See also People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 909-

10 (1995) ("Plain error marked by 'fundamental [un]fairness'

occurs only in situations which 'reveal breakdowns in the adver-

sary system,' as distinguished from 'typical trial mistakes.'

[Citation.]").

Here, the street-value fine showed a gross disparity

with the officers' testimony as to the amount and street-value of

the recovered contraband. Further, the trial court accepted the

State's formula that bore no relation to the sworn testimony. As

this situation reveals "a breakdown in the adversary system," we

will review the issue. We note other courts have applied the

plain-error rule in cases involving the propriety of the trial

court's imposition of a street-value fine. See People v. Gonza-

lez, 316 Ill. App. 3d 354, 364, 736 N.E.2d 157, 165 (2000)

(plain-error exception applies to the issue of the correct amount

of street-value fine); People v. Otero, 263 Ill. App. 3d 282,

284, 635 N.E.2d 1073, 1075 (1994).

We also note this court recently held the imposition of

a street-value fine without evidence did not constitute plain

- 6 - error. See People v. Lewis, 379 Ill. App. 3d 336, 338, 883

N.E.2d 759, 760 (2008). However, that case involved a stipulated

bench trial and the imposition of a $100 fine. The street-value

evidence in the jury trial in this case came nowhere near the

amount of the fine. Further, the amount advocated by the prose-

cutor found no support in the evidence. The amount of the fine

here cannot simply be brushed aside as a typical trial mistake,

and we find Lewis distinguishable such that consideration of the

street-value fine imposed is appropriate under the plain-error

doctrine.

Section 5-9-1.1(a) of the Unified Code of Corrections

provides, in part, as follows:

"When a person has been adjudged guilty

of a drug[-]related offense involving posses-

sion or delivery of cannabis or 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 cannabis or

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 cannabis or controlled

substance seized." 730 ILCS 5/5-9-1.1(a)

- 7 - (West 2006).

The trial court's determination of the amount of the street-value

fine must be based on "some concrete evidentiary basis." People

v. Spencer, 347 Ill. App. 3d 483, 488, 807 N.E.2d 1228, 1232

(2004).

In the case sub judice, the only testimony from law-

enforcement personnel indicated the 50 rocks of crack cocaine

would have sold on the street for $20 to $30 each. Thus, the

State's evidence would only have supported a street-value fine

between $1,000 and $1,500. At the sentencing hearing, the

prosecutor claimed the fine was determined by multiplying $10 per

tenth of a gram. The State offered no support for this method of

determining the amount of the street-value fine. Moreover, with

83.8 grams recovered in this case, the fine would only amount to

$8,380.

Here, the $10,000 street-value fine was not supported

by the evidence. "[E]ven if the court may impose a fine greater

than the actual value of the illegal substance, the legislature

nevertheless intended for the sentencing court to have some

concrete evidentiary basis for the fine." Otero, 263 Ill. App.

3d at 287, 635 N.E.2d at 1076. Although a court may adopt

"reliable evidence from the trial testimony as a basis for

determining value" (Otero, 263 Ill. App. 3d at 287, 635 N.E.2d at

1076), it is unclear how the trial court determined the street-

value fine in this case other than accepting the State's $10,000

figure. Accordingly, we must vacate the $10,000 street-value

- 8 - fine and remand the cause for a hearing to determine the appro-

priate amount to impose.

III. CONCLUSION

For the reasons stated, we vacate the trial court's

street-value fine and remand with directions.

Vacated and remanded with directions.

KNECHT, J., concurs.

MYERSCOUGH, J., dissents.

- 9 - JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. Defendant has forfeited his

objection to the street-value fine, and imposition of the street-

value fine does not constitute plain error. This court, includ-

ing a member of the majority and this dissenter, has previously

so held. Lewis, 379 Ill. App. 3d 336, 883 N.E.2d 760.

At sentencing, defendant did not object to the street-

value fine recommended by the assistant State's Attorney. Nor

did defendant raise any objection in a posttrial motion as

directed by section 5-8-1(c) of the Unified Code of Corrections:

"A defendant's challenge to the correctness

of a sentence or to any aspect of the sen-

tencing hearing shall be made by a written

motion filed within 30 days following the

imposition of sentence." 730 ILCS 5/5-8-1(c)

(West 2006).

See People v. Montgomery, 373 Ill. App. 3d 1104, 872 N.E.2d 403

(2007); People v. Reed, 177 Ill. 2d 389, 686 N.E.2d 584 (1997);

People v. Jolly, 374 Ill. App. 3d 499, 872 N.E.2d 397 (2007);

People v. Brown, 242 Ill. App. 3d 465, 610 N.E.2d 776 (1993);

People v. Sinnott, 226 Ill. App. 3d 923, 590 N.E.2d 502 (1992).

A full-blown evidentiary hearing about street value is

not required in every case. People v. Otero, 263 Ill. App. 3d

282, 287, 635 N.E.2d 1073, 1076 (1994). The parties may in fact

stipulate to the street value. Otero, 263 Ill. App. 3d at 287,

635 N.E.2d at 1076. In effect, that is what happened here. The

- 10 - assistant State's Attorney set forth a per-gram value and a

formula for calculation, $10 per one-tenth of a gram times 83.8

grams. Defendant did not object.

Moreover, the assistant State's Attorney is the sworn

officer of the court and, "'"when they address the judge solemnly

upon a matter before the court, their declarations are virtually

made under oath."'" Holloway v. Arkansas, 435 U.S. 475, 486, 55

L. Ed. 2d 426, 435, 98 S. Ct. 1173, 1179 (1978), quoting State v.

Brazile, 226 La. 254, 266, 75 So. 2d 856, 860-61 (1954). Fur-

ther, an assistant State's Attorney is "law enforcement person-

nel" upon whom the court relies for substantial information and

who has taken an oath of office to "support the constitution of

the United States and the constitution of the state of Illinois"

and to "faithfully discharge the duties of the office of attorney

and counselor at law to the best of [his] ability." 705 ILCS

205/4 (West 2006).

More important, no plain error occurred here. The

trial court is not limited to imposing only the street-value fine

but must impose no less than the full street-value fine. Any

amount in excess would be reviewed on appeal for an abuse of

discretion, clearly, not plain-error review. Additionally, the

statute specifically states street value shall be determined by

"such testimony as may be required by the court." 730 ILCS 5/5-

9-1.1(a) (West 2006). Certainly, this issue is a discretionary

one for the court and not plain error, especially here, where had

defendant raised this issue in the trial court, the trial court

- 11 - could have addressed defendant's objection.

"In People v. Allen, 222 Ill. 2d 340, 353,

856 N.E.2d 349, 356 (2006), the supreme court

explained as follows: '[t]he plain-error

doctrine is not "'a general saving clause

preserving for review all errors affecting

substantial rights whether or not they have

been brought to the attention of the trial

court.'" [Citations.] Instead, it is a nar-

row and limited exception to the general rule

of forfeiture.'" People v. Montgomery, 373

Ill. App. 3d at 1123, 872 N.E.2d at 419.

Finally, valuation evidence was presented here, both at

trial and through the assistant State's Attorney at sentencing,

and based upon the court's experience presiding over cases, $10

per one-tenth of a gram of cocaine was an acceptable valuation.

The fact the officer testified cocaine is typically consumed in

$20 rocks is not necessarily contradictory of that valuation.

Presumably, the trial court saw the crack cocaine and decided to

accept the assistant State's Attorney's valuation.

For these reasons, I disagree with the majority and

would affirm the trial court.

- 12 -