People v. Garcia , 217 Ill. App. 3d 350 ( 1991 )

577 N.E.2d 183 (1991) 217 Ill. App. 3d 350 160 Ill. Dec. 307

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Carlos GARCIA, Jr., Defendant-Appellant.

No. 2-90-0035.

Appellate Court of Illinois, Second District.

August 9, 1991.

G. Joseph Weller, Deputy Defender, Kathleen J. Hamill, Office of the State Appellate Defender, Elgin, for Carlos Garcia, Jr.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Steven Della Rose, Dolton, for the People.

Justice GEIGER delivered the opinion of the court:

The defendant, Carlos Garcia, Jr., was convicted of unlawful delivery of a controlled substance (Ill.Rev.Stat.1989, ch. 56½, pars. 1401(a)(2), 1401.1). He was sentenced to a 10-year term of imprisonment and an $8,500 fine. On appeal, he argues that there is insufficient evidence to support the $8,500 fine, that he is entitled to $5-per-day credit for his time in jail awaiting trial, and that his 10-year sentence is excessive. We affirm, as modified.

In his first argument, the defendant relies upon several cases based on section 5-9-1.1 of the Unified Code of Corrections, under which he was sentenced. That section provides that when a person has been convicted of certain drug offenses, "in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized." (Emphasis added.) (Ill.Rev.Stat.1989, ch. 38, par. 1005-9-1.1.) The defendant argues on appeal that his $8,500 fine should be reduced to $4,200, the amount the undercover police officer here agreed to pay for the substance which contained cocaine. He argues that there was no evidence to support the court's apparent use of a $100-per-gram "street value" for the cocaine when it calculated the fine.

The State argues that the plain language of section 5-9-1.1 mandates only a minimum fine, a fine "not less than the full street value." According to the State, the trial court was entitled to impose a fine greater than the relevant street value and there was no error in its imposition of such a fine.

A number of appellate and supreme court cases have addressed the propriety of particular "street value" fines under section 5-9-1.1. The various other appellate districts have suggested, if not explicitly held, that section 5-9-1.1 provides for a mandatory fine equal to the demonstrated street value of the substance at issue. (See People v. Carrasquilla (1st Dist.1988), 167 Ill.App.3d 1069, 1080, 118 Ill. Dec. 684, 522 N.E.2d 139; People v. Beavers (3d Dist.1986), 141 Ill.App.3d 790, 796, 96 Ill. Dec. 392, 491 N.E.2d 438; People v. Taliferro (4th Dist.1988), 166 Ill.App.3d 861, 866, 117 Ill. Dec. 696, 520 N.E.2d 1047; People v. Morse (5th Dist.1989), 185 Ill.App.3d 503, 509-10, 133 Ill. Dec. 657, 541 N.E.2d 868.) In the second district, however, we have followed the reasoning urged here by the State, holding that section 5-9-1.1 mandates only a minimum "street value" fine. People v. Pehrson (1989), 190 Ill.App.3d 928, 933, 138 Ill. Dec. 446, 547 N.E.2d 613.

This court's view in Pehrson is consistent with the plain language of section 5-9-1.1. (In re Estate of Smecicki (1985), 106 Ill. 2d 111, 120, 87 Ill. Dec. 511, 477 N.E.2d 488.) It also is consistent with our supreme court's comments on the statute. (People v. Lusietto (1989), 131 Ill. 2d 51, 56, 136 Ill. Dec. 99, 544 N.E.2d 785.) We find no reason to divert from our decision in Pehrson. Under that case, we find no error in the court's fine here. It is not less than the lowest "street value" evidenced, and we find that it complies with the mandate of section 5-9-1.1.

The defendant's second argument on appeal is that he is entitled to a $115 credit against his fine for the 23 days that he served in jail awaiting trial. The State concedes that the defendant is entitled to the $5-per-day credit provided under section 110-14 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1989, ch. 38, par. 110-14). With reference to People v. Hare (1988), 119 Ill. 2d 441, 116 Ill. Dec. 664, 519 N.E.2d 879, we agree and modify the defendant's sentence accordingly.

The defendant's third argument on appeal is that he was erroneously sentenced to a 10-year term of imprisonment for his offense; that offense is subject to a sentence between 9 and 40 years (Ill.Rev. Stat.1989, ch. 56½, par. 1401(a)(2)(B)). The defendant argues that he is entitled to the minimum sentence. He emphasizes that he is educated and has been working at his chosen profession, that he has no prior record, and that the evidence showed he participated only minimally in the offense. The defendant also argues that the sentencing court erroneously considered in aggravation the amount of cocaine involved here and his refusal to admit guilt.

Sentencing is a matter for the trial court's discretion; we will not disturb a sentencing decision absent an abuse of that discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 11 Ill. Dec. 274, 368 N.E.2d 882.

The record here shows that the trial court judge recognized substantial factors mitigating the defendant's sentence. The court specifically named the defendant's absence of a prior record, his educational achievement, and his apparent lesser role in the offense. However, the court also expressed its conclusion that the defendant had been actively involved in the offense and that the defendant was untruthful both before the jury and in his statement for the probation report.

We find no abuse of discretion in the court's sentence to a term of imprisonment only one year more than the minimum within the statutory 32-year sentencing range. The court could properly rely in aggravation upon the fact that the offense involved an amount of cocaine greater than the minimum amount covered by the statute. (See People v. Saldivar (1986), 113 Ill. 2d 256, 269-71, 100 Ill. Dec. 776, 497 N.E.2d 1138.) Further, we find no error in the court's consideration of the defendant's attitude and truthfulness in connection with his denial of guilt. (See People v. Ward (1986), 113 Ill. 2d 516, 528, 101 Ill. Dec. 834, 499 N.E.2d 422; People v. McBounds (1989), 182 Ill.App.3d 1002, 1018, 130 Ill. Dec. 14, 536 N.E.2d 1225.) The record shows that the court thoroughly considered all relevant factors, including those in mitigation. (People v. La Pointe (1981), 88 Ill. 2d 482, 493, 59 Ill. Dec. 59, 431 N.E.2d 344.) Based on the foregoing, we modify the judgment of the circuit court of Du Page County to grant the defendant $115 credit against his fine. We affirm, then, the judgment as modified.

Affirmed as modified.

INGLIS and BOWMAN, JJ., concur.