No. 3--07--0185 _________________________________________________________________ Filed January 8, 2009 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05--CF--2605 ) KEVIN G. WATKINS, ) Honorable ) Richard C. Schoenstedt, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE CARTER delivered the opinion of the court: _________________________________________________________________
A jury convicted the defendant, Kevin G. Watkins, of
unlawful delivery of a controlled substance within 1,000 feet of
a church. 720 ILCS 570/407(b)(2) (West 2004). The court
sentenced him to a nine-year term of imprisonment, followed by a
three-year term of mandatory supervised release (MSR). The court
also assessed, inter alia, a $100 street value fine. 730 ILCS
5/5--9--1.1(a) (West 2004). The defendant appealed, arguing that
his: (1) MSR term should be reduced from three years to two years
because he committed a Class 1 felony; and (2) street value fine
should be reduced from $100 to $20. We reduce the defendant's
street value fine to $20, but otherwise affirm.
FACTS The defendant was charged by indictment with unlawful
delivery of a controlled substance within 1,000 feet of a church,
a Class 1 felony. 720 ILCS 570/407(b)(2) (West 2004). The
defendant's jury trial occurred in September 2006. Joliet police
officer Tizoc Landeros testified that on November 9, 2005, he was
working as an undercover narcotics agent. After asking an
individual about purchasing drugs, the defendant pulled up in a
van, exited it, and asked Landeros what he wanted. Landeros told
the defendant he wanted to purchase a "$20 rock," meaning $20
worth of cocaine. The defendant instructed Landeros to walk down
the street. Landeros did, while the defendant entered a house.
The defendant then emerged and asked Landeros to walk with him.
The defendant asked for the $20. Landeros gave the defendant a
$20 bill, and the defendant gave him a clear plastic bag
containing an off-white, rock-like substance.
A forensic scientist testified that he weighed and tested
the rock-like substance the defendant sold to Landeros. He
determined that the substance weighed 0.1 grams and was cocaine.
The defendant did not present evidence on his behalf.
The jury found the defendant guilty as charged. A
sentencing hearing occurred on December 5, 2006. Although the
jury had convicted the defendant of a Class 1 felony, he faced
sentencing as a Class X offender because he had been convicted of
two other Class 1 or Class 2 felonies. See 730 ILCS 5/5--5--
2 3(c)(8) (West 2004). Specifically, the defendant was previously
convicted of residential burglary in 1998, a Class 1 felony, and
possession of a stolen motor vehicle in 2001, a Class 2 felony.
Thus, the court sentenced him to a nine-year term of imprisonment
followed by a three-year term of MSR.
The defendant filed a motion to reconsider his sentence,
which the court denied. The defendant appealed.
ANALYSIS
I. MSR
The defendant first argues that his term of MSR should be
that of a Class 1 felony, i.e., two years, instead of the three-
year term that accompanies a Class X felony, because he was
convicted of a Class 1 felony in the case at bar.
Section 5--5--3(c)(8) of the Unified Code of Corrections
(Code) provides that when a defendant is convicted of a Class 1
or Class 2 felony, and has been convicted of a Class 2 or greater
felony twice before, the defendant is to be sentenced as a Class
X offender. 730 ILCS 5/5--5--3(c)(8) (West 2004). The MSR term
that attaches to a Class X sentence, "as though written therein a
term in addition to the term of imprisonment[,]" is three years.
730 ILCS 5/5--8--1(d) (West 2004).
Other districts of the Appellate Court that have considered
this issue have held that, "it is clear that the gravity of
conduct offensive to the public safety and welfare, authorizing
3 Class X sentencing, justifiably requires" a longer period of
watch after release from prison than a violation of a less
serious nature. People v. Anderson, 272 Ill. App. 3d 537, 541,
650 N.E.2d 648, 651 (1995); see also People v. Smart, 311 Ill.
App. 3d 415, 417, 723 N.E.2d 1246, 1248 (2000). As the Anderson
court observed, when an individual commits three felonies in a
period of a few years, he demonstrates the wisdom of a lengthier
MSR term than one who is not a recidivist offender. Anderson,
272 Ill. App. 3d 537, 650 N.E.2d 648. Therefore, when section 5-
-5--3(c)(8) provides that a repeat felon is to be sentenced as a
Class X offender, "it necessarily means that [the offender] must
receive an enhanced term of imprisonment and an enhanced term of
[MSR]." Smart, 311 Ill. App. 3d at 417-18, 723 N.E.2d at 1248.
We agree with the reasoning of the First and Fourth
Districts of the Appellate Court. In our view, it makes little
sense for a Class 1 offender to be eligible for an enhanced term
of imprisonment as a Class X offender but ineligible for an
enhanced MSR term. See Smart, 311 Ill. App. 3d 415, 723 N.E.2d
1246. We find that the trial court correctly imposed a three-
year term of MSR.
II. Street Value Fine
The defendant next argues that his mandatory street value
fine should be reduced from $100 to $20.
Initially, we note that the defendant waived this issue on
4 appeal because he did not object to the fine at the sentencing
hearing or in a motion to reconsider his sentence. However, we
will review this issue under the plain error doctrine because the
alleged error implicates the substantial rights of the defendant.
See People v. Otero, 263 Ill. App. 3d 282, 635 N.E.2d 1073 (1994)
(stating that a street value fine should be reviewed for plain
error because the defendant's substantial rights are implicated
where the fine lacked an evidentiary basis).
Under section 5--9--1.1(a) of the Code, when a person has
been found guilty of a drug related offense involving delivery of
a controlled substance, a trial court must impose, in addition to
any other penalties, a fine not less than the full street value
of controlled substance seized. 730 ILCS 5/5--9--1.1(a) (West
2004). "Street value" is determined by the trial 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
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No. 3--07--0185 _________________________________________________________________ Filed January 8, 2009 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05--CF--2605 ) KEVIN G. WATKINS, ) Honorable ) Richard C. Schoenstedt, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE CARTER delivered the opinion of the court: _________________________________________________________________
A jury convicted the defendant, Kevin G. Watkins, of
unlawful delivery of a controlled substance within 1,000 feet of
a church. 720 ILCS 570/407(b)(2) (West 2004). The court
sentenced him to a nine-year term of imprisonment, followed by a
three-year term of mandatory supervised release (MSR). The court
also assessed, inter alia, a $100 street value fine. 730 ILCS
5/5--9--1.1(a) (West 2004). The defendant appealed, arguing that
his: (1) MSR term should be reduced from three years to two years
because he committed a Class 1 felony; and (2) street value fine
should be reduced from $100 to $20. We reduce the defendant's
street value fine to $20, but otherwise affirm.
FACTS The defendant was charged by indictment with unlawful
delivery of a controlled substance within 1,000 feet of a church,
a Class 1 felony. 720 ILCS 570/407(b)(2) (West 2004). The
defendant's jury trial occurred in September 2006. Joliet police
officer Tizoc Landeros testified that on November 9, 2005, he was
working as an undercover narcotics agent. After asking an
individual about purchasing drugs, the defendant pulled up in a
van, exited it, and asked Landeros what he wanted. Landeros told
the defendant he wanted to purchase a "$20 rock," meaning $20
worth of cocaine. The defendant instructed Landeros to walk down
the street. Landeros did, while the defendant entered a house.
The defendant then emerged and asked Landeros to walk with him.
The defendant asked for the $20. Landeros gave the defendant a
$20 bill, and the defendant gave him a clear plastic bag
containing an off-white, rock-like substance.
A forensic scientist testified that he weighed and tested
the rock-like substance the defendant sold to Landeros. He
determined that the substance weighed 0.1 grams and was cocaine.
The defendant did not present evidence on his behalf.
The jury found the defendant guilty as charged. A
sentencing hearing occurred on December 5, 2006. Although the
jury had convicted the defendant of a Class 1 felony, he faced
sentencing as a Class X offender because he had been convicted of
two other Class 1 or Class 2 felonies. See 730 ILCS 5/5--5--
2 3(c)(8) (West 2004). Specifically, the defendant was previously
convicted of residential burglary in 1998, a Class 1 felony, and
possession of a stolen motor vehicle in 2001, a Class 2 felony.
Thus, the court sentenced him to a nine-year term of imprisonment
followed by a three-year term of MSR.
The defendant filed a motion to reconsider his sentence,
which the court denied. The defendant appealed.
ANALYSIS
I. MSR
The defendant first argues that his term of MSR should be
that of a Class 1 felony, i.e., two years, instead of the three-
year term that accompanies a Class X felony, because he was
convicted of a Class 1 felony in the case at bar.
Section 5--5--3(c)(8) of the Unified Code of Corrections
(Code) provides that when a defendant is convicted of a Class 1
or Class 2 felony, and has been convicted of a Class 2 or greater
felony twice before, the defendant is to be sentenced as a Class
X offender. 730 ILCS 5/5--5--3(c)(8) (West 2004). The MSR term
that attaches to a Class X sentence, "as though written therein a
term in addition to the term of imprisonment[,]" is three years.
730 ILCS 5/5--8--1(d) (West 2004).
Other districts of the Appellate Court that have considered
this issue have held that, "it is clear that the gravity of
conduct offensive to the public safety and welfare, authorizing
3 Class X sentencing, justifiably requires" a longer period of
watch after release from prison than a violation of a less
serious nature. People v. Anderson, 272 Ill. App. 3d 537, 541,
650 N.E.2d 648, 651 (1995); see also People v. Smart, 311 Ill.
App. 3d 415, 417, 723 N.E.2d 1246, 1248 (2000). As the Anderson
court observed, when an individual commits three felonies in a
period of a few years, he demonstrates the wisdom of a lengthier
MSR term than one who is not a recidivist offender. Anderson,
272 Ill. App. 3d 537, 650 N.E.2d 648. Therefore, when section 5-
-5--3(c)(8) provides that a repeat felon is to be sentenced as a
Class X offender, "it necessarily means that [the offender] must
receive an enhanced term of imprisonment and an enhanced term of
[MSR]." Smart, 311 Ill. App. 3d at 417-18, 723 N.E.2d at 1248.
We agree with the reasoning of the First and Fourth
Districts of the Appellate Court. In our view, it makes little
sense for a Class 1 offender to be eligible for an enhanced term
of imprisonment as a Class X offender but ineligible for an
enhanced MSR term. See Smart, 311 Ill. App. 3d 415, 723 N.E.2d
1246. We find that the trial court correctly imposed a three-
year term of MSR.
II. Street Value Fine
The defendant next argues that his mandatory street value
fine should be reduced from $100 to $20.
Initially, we note that the defendant waived this issue on
4 appeal because he did not object to the fine at the sentencing
hearing or in a motion to reconsider his sentence. However, we
will review this issue under the plain error doctrine because the
alleged error implicates the substantial rights of the defendant.
See People v. Otero, 263 Ill. App. 3d 282, 635 N.E.2d 1073 (1994)
(stating that a street value fine should be reviewed for plain
error because the defendant's substantial rights are implicated
where the fine lacked an evidentiary basis).
Under section 5--9--1.1(a) of the Code, when a person has
been found guilty of a drug related offense involving delivery of
a controlled substance, a trial court must impose, in addition to
any other penalties, a fine not less than the full street value
of controlled substance seized. 730 ILCS 5/5--9--1.1(a) (West
2004). "Street value" is determined by the trial 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 [trial] court as to the current street value of the ***
controlled substance seized." 730 ILCS 5/5--9--1.1(a) (West
2004). The amount of evidence necessary to establish the street
value of a given drug varies from case to case, but in all cases
a trial court must have a concrete evidentiary basis for the fine
imposed. People v. Reed, 376 Ill. App. 3d 121, 875 N.E.2d 167
(2007).
In the instant case, the record shows that the only evidence
5 relating to the street value of the cocaine came from Landeros,
who purchased the cocaine rock from the defendant for $20. Thus,
the $100 fine lacks a concrete evidentiary basis. Because it is
not clear what further testimony would be required to establish
the street value of the cocaine sold by the defendant, we find
that the best evidence of the value of the cocaine rock in this
case is the price agreed to by Landeros and the defendant. Thus,
we modify the $100 street value fine imposed by the trial court
to the sum of $20.
CONCLUSION
The decision of the circuit court of Will County is affirmed
in part and modified in part.
Affirmed in part and modified in part.
O’BRIEN, P. J. and WRIGHT, J. concurring.