People v. Lewis

NO. 4-06-0820 Filed 3/3/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
TERRY L. LEWIS, ) No. 05CF53
Defendant-Appellant. )
) Honorable
) William O. Mays,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
Following a June 2006 stipulated bench trial, the trial
court convicted defendant, Terry L. Lewis, of possession of a
controlled substance (less than 15 grams of a substance contain-
ing methamphetamine) (720 ILCS 570/402(c) (West 2004)). In
September 2006, the court sentenced defendant to 24 months'
"nonjudgment probation," subject to various conditions, including
that he pay a $100 street-value fine.
Defendant appeals, arguing only that the trial court
committed plain error by imposing a street-value fine without
considering any evidence regarding the value of the drugs in
question. We disagree and affirm.
I. BACKGROUND
In February 2005, the State charged defendant with
possession of a controlled substance (less than five grams of a
substance containing methamphetamine) with intent to deliver (720
ILCS 570/401(d) (West 2004)) and possession of a controlled
substance (less than 15 grams of a substance containing metham-
phetamine) (720 ILCS 570/402(c) (West 2004)). In July 2005,
defendant filed a motion to suppress evidence, alleging various
violations of his constitutional rights. Following an October
2005 hearing, the trial court later denied defendant's motion.
Following a June 2006 stipulated bench trial, the trial
court found defendant guilty of possession of a controlled
substance.
In September 2006, the trial court sentenced defendant
to 24 months' "nonjudgment probation," subject to various condi-
tions, including that he pay a street-value fine of $100.
This appeal followed.
II. DEFENDANT'S CLAIM THAT IMPOSITION OF THE STREET-VALUE
FINE WAS PLAIN ERROR BECAUSE THE TRIAL COURT HAD NO
EVIDENCE AS TO THE VALUE OF THE DRUGS IN QUESTION
Defendant argues that the trial court erred by imposing
a street-value fine of $100 because the State "failed to provide
any information, much less testimony from law[-]enforcement
officers, that the value of the drugs in question was $100."
Defendant points out that section 5-9-1.1(a) of the Unified Code
of Corrections provides that for purposes of determining a fine,
"street value" shall be determined by the court "on the basis of
testimony of law[-]enforcement personnel and the defendant as to
the amount [of controlled substances] seized." 730 ILCS 5/5-9-
1.1(a) (West 2004).
Defendant concedes that he failed to object to the fine
at sentencing, but he nonetheless argues that this court should
consider his claim under the plain-error exception to the forfei-
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ture rule. Defendant asserts that Illinois courts have univer-
sally concluded that the failure to support a street-value fine
with any evidentiary basis constitutes plain error. In support
of this assertion, he cites the following cases: People v.
Spencer, 347 Ill. App. 3d 483, 488, 807 N.E.2d 1228, 1232 (2004),
citing People v. Gonzalez, 316 Ill. App. 3d 354, 364, 736 N.E.2d
157, 165 (2000); People v. Simpson, 272 Ill. App. 3d 63, 66, 650
N.E.2d 265, 267 (1995); People v. Otero, 263 Ill. App. 3d 282,
284, 635 N.E.2d 1073, 1075 (1994). Although we agree with
defendant that the record does not contain a basis for the $100
street-value fine, we disagree with his assertion that this
sentencing error constitutes plain error.
In People v. Montgomery, 373 Ill. App. 3d 1104, 872
N.E.2d 403 (2007), this court recently addressed similar argu-
ments regarding sentencing errors. Because we reaffirm what we
wrote in Montgomery, and because it fully applies to the case
before us, we quote it as follows:
"In People v. Rathbone, 345 Ill. App. 3d
305, 308-10, 802 N.E.2d 333, 336-37 (2003),
this court deemed a defendant's sentencing
argument on appeal forfeited, pointing out
that section 5-8-1(c) of the Unified Code
required a defendant's challenge to any as-
pect of sentencing to be made by a written
motion filed within 30 days of the imposition
of sentence. 730 ILCS 5/5-8-1(c) (West
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2004). We also noted that the Supreme Court
of Illinois, in People v. Reed, 177 Ill. 2d
389, 394, 686 N.E.2d 584, 586 (1997), held
that the language of section 5-8-1(c) is
mandatory. Citing section 5-8-1(c) and Reed,
this court concluded in Rathbone that the
defendant had forfeited the sentencing argu-
ment he raised on appeal, and we explained as
follows:
'In so concluding, we note
that defendant's claim is precisely
the type of claim the forfeiture
rule is intended to bar from review
when not first considered by the
trial court. Had defendant raised
this issue in the trial court, that
court could have answered the claim
by either (1) acknowledging its
mistake and correcting the
sentence, or (2) explaining that
the court did not improperly sen-
tence defendant ***. If the court
did not change the sentence, then a
record would have been made on the
matter now before us, avoiding the
need for this court to speculate as
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to the basis for the trial court's
sentence.' Rathbone, 345 Ill. App.
3d at 310, 802 N.E.2d at 337.
The rationale and holding of
Rathbone are equally applicable in this case.
Defendant's failure to raise this issue in
the trial court was in violation of section
5-8-1(c) of the Unified Code and denied that
court the opportunity to correct or clarify
its ruling. Accordingly, defendant has for-
feited his truth-in-sentencing argument.
On a final note, we rejected the defen-
dant's request in Rathbone to apply the
plain-error doctrine, and we do likewise
here. 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 af-
fecting substantial rights whether or not
they have been brought to the attention of
the trial court.'" [Citations.] Instead, it
is a narrow and limited exception to the
general rule of forfeiture.' Further, as we
noted in Rathbone,
'our supreme court has
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"consistently emphasized the lim-
ited nature of the plain[-]error
exception." People v. Easley, 148
Ill. 2d 281, 337, 592 N.E.2d 1036,
1061 (1992). Plain error exists
only when the essential fairness of
a trial has been undermined, and
this "occurs only in situations
which 'reveal breakdowns in the
adversary system,' as distinguished
from 'typical trial mistakes.'"
People v. Keene, 169 Ill. 2d 1, 17,
660 N.E.2d 901, 909-10 (1995) [ci-
tation].' Rathbone, 345 Ill. App.
3d at 311, 802 N.E.2d at 338-39."
Montgomery, 373 Ill. App. 3d at
1123-24, 872 N.E.2d at 419-20.
We acknowledge that the cases defendant cites stand for
the propositions he asserts (including this court's decision in
Simpson), but we decline to follow those cases because they do
not comport with section 5-8-1(c) of the Unified Code or with
Reed, in which our supreme court applied that section. Prior to
August 1993, a defendant's failure to object to an alleged error
in sentencing did not result in forfeiture for appeal purposes
because the statute was framed in permissive, rather than manda-
tory, terms. However, effective August 11, 1993, the legislature
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amended section 5-8-1(c) to require a defendant's challenge to
the correctness of a sentence "or to any aspect of the sentencing
hearing" to be made by a written motion filed within 30 days
following the imposition of sentence (Pub. Act 88-311, §15, eff.
August 11, 1993 (1993 Ill. Laws 2604, 2615) (amending 730 ILCS
5/5-8-1(c) (West 1994))).
Subsequent to this statutory revision, the supreme
court in Reed held that the language of section 5-8-1(c) is
mandatory, explaining that "the policy considerations supporting
the requirement of a written post[]trial motion to preserve trial
error are equally applicable in the context of sentencing."
Reed, 177 Ill. 2d at 394, 686 N.E.2d at 586. The supreme court
also added the following justification for the new legislative
mandate:
"Requiring a written post[]sentencing motion
will allow the trial court the opportunity to
review a defendant's contention of sentencing
error and save the delay and expense inherent
in appeal if they are meritorious. Such a
motion also focuses the attention of the
trial court upon a defendant's alleged errors
and gives the appellate court the benefit of
the trial court's reasoned judgment on those
issues. We therefore agree with the appel-
late court that the plain language now con-
tained in section 5-8-1(c) shows a clear
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legislative intent to make a post[]sentencing
motion the functional equivalent of a
post[]trial motion for purposes of preserving
issues for appeal." Reed 177 Ill. 2d at 394,
686 N.E.2d at 586.
In Rathbone, we rejected the defendant's argument that
the trial court abused its discretion by sentencing him for
violating the terms of his probation rather than for residential
burglary. As in this case, the defendant in Rathbone argued that
we should review his claim as plain error even though he for-
feited the issue by failing to raise it in his postsentencing
motion. We rejected that argument because it was not consistent
with the rule of law set forth in Reed or its underlying princi-
ples. Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338. We
further explained our conclusion in Rathbone as follows:
"If all matters related to a 'misapplication
of law' at sentencing affect a defendant's
fundamental right to liberty and are thus
reviewable as plain error, then the plain[-]
error exception essentially swallows the
forfeiture rule, rendering meaningless the
requirement contained in section 5-8-1(c) of
the Unified Code and enforced by the supreme
court in Reed." (Emphasis in original.)
Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d
at 338.
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In rejecting defendant's argument here, we note that it
is considerably weaker than were the arguments before this court
in Rathbone and Montgomery. In those cases, the defendants
contended that the trial court errors at sentencing perhaps
resulted in an increase in their prison sentences. In contrast,
defendant here complains about the imposition of a $100 fine. If
the plain-error rule applied to a sentencing sanction as minimal
as a $100 fine, then surely nothing would be left of the require-
ment the legislature imposed by its amendment in August 1993 to
section 5-8-1(c) or the decision of the Supreme Court of Illinois
in Reed to give meaning to that amendment.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As a part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
MYERSCOUGH and KNECHT, JJ., concur.
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