People v. Bond

NO. 4-09-0511 Filed 11/1/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
JONAS D. BOND, ) No. 04CF1424
Defendant-Appellant. )
) Honorable
) Theodore E. Paine,
) Judge Presiding.
_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In February 2005, a jury convicted defendant, Jonas D.

Bond (born July 16, 1987), of possession of a controlled

substance with intent to deliver (cocaine) (720 ILCS

570/401(c)(2) (West 2004)) (count I) and possession of a

controlled substance (cocaine) (720 ILCS 570/402(c) (West 2004))

(count II). In April 2005, the trial court sentenced him to 10

years’ imprisonment and imposed a $220 street-value fine.

Defendant appeals, arguing (1) he was denied effective

assistance of counsel, (2) the evidence was insufficient to prove

him guilty of possession with intent to deliver beyond a

reasonable doubt, and (3) the trial court erred in imposing a

$220 street-value fine. We affirm as modified and remand with

directions.

I. BACKGROUND

Prior to the start of trial, defendant filed a motion
in limine to exclude the State’s use of defendant’s juvenile

adjudications for impeachment purposes. Defendant sought to

exclude the following adjudications: robbery, a Class 2 felony;

possession of firearms, a Class 4 felony; and retail theft with a

prior robbery conviction, a Class 4 felony. The trial court

granted defendant’s motion with respect to the firearm-possession

adjudication, but denied it as to the other adjudications.

During defendant’s February 2005 trial, Decatur police

officer Thomas Pratt testified he arrested defendant on November

22, 2004, after defendant ran from a vehicle Pratt had pulled

over. Defendant testified he ran because he was scared. During

a search of defendant, Pratt found a piece of white paper

containing five small white rock-like items wrapped in a clear

plastic bag. The bag contained 1.3 grams of cocaine. According

to defendant’s testimony, at the time of his arrest, he did not

know it was crack or cocaine but he did know it was some kind of

drug. Defendant explained that when he got into the vehicle, the

driver asked him to hold the drugs as a favor for him because the

driver was on parole. Defendant testified he had no intention of

selling the drugs and was simply holding them for the driver

until defendant got home. Defendant testified he was just around

the corner from his home when police stopped the vehicle.

While defendant’s trial counsel questioned him

regarding various facts during direct examination, defendant’s

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counsel did not ask him if he had any prior delinquency

adjudications. The State also did not raise the question of

defendant’s juvenile adjudications during its cross-examination.

Following the State’s cross-examination, the trial court asked

defense counsel if he had any "redirect," whereupon counsel

requested leave to "open up [his] direct examination." The State

showed no objection and the court granted counsel’s request.

During the reopened direct examination, the following colloquy

took place:

"[MR. ELLISON (defendant’s attorney):]

[Y]ou got in trouble as a juvenile in your

past, is that correct?

[DEFENDANT:] Yes.

[MR. ELLISON:] And you had--you were put

on eighteen months[’] probation for a robbery

in March of [20]03, is that correct?

[DEFENDANT:] Yes, sir, it is.

[MR. ELLISON:] And then in January of

[20]04, as a juvenile you got three more

years[’] probation for retail theft, is that

correct?

[DEFENDANT:] Yes.

[MR. ELLISON:] And those both happened

in juvenile case [No.] 02-JD-275, is that

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 correct?

[DEFENDANT:] Yes.

[MR. ELLISON:] No other questions."

In February 2005, a jury convicted defendant of

possession of a controlled substance with intent to deliver

(count I) and possession of a controlled substance (count II).

In April 2005, the trial court sentenced defendant to

10 years’ imprisonment on count I and imposed a $220 street-value

fine. Defendant did not appeal his conviction or sentence.

However, in July 2008, defendant filed a pro se

petition for postconviction relief, arguing his trial counsel

provided ineffective assistance of counsel by failing to timely

file an appeal despite defendant’s request.

On April 8, 2009, the trial court granted defendant’s

petition and allowed him to file a late notice of appeal.

On April 14, 2009, defendant filed a notice of appeal.

On April 27, 2009, defendant filed an amended notice of appeal.

On April 28, 2009, defendant filed a pro se motion to

reduce sentence.

On May 5, 2009, the trial court struck both notices of

appeal and set the motion to reconsider sentence for hearing.

Following a July 10, 2009, hearing, the trial court

denied defendant’s motion to reconsider sentence, appointed the

appellate defender to represent defendant, and directed the clerk

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of the court to file a notice of appeal on defendant’s behalf,

which the clerk did on July 10, 2009.

This appeal followed.

II. ANALYSIS

A. Jurisdiction

While the parties do not address this court’s

jurisdiction, we have an independent duty to ascertain our

jurisdiction before considering the merits of an appeal. See

People v. Haldorson, 395 Ill. App. 3d 980, 981, 918 N.E.2d 1280,

1281 (2009).

In July 2008, defendant filed a petition for

postconviction relief, arguing ineffective assistance of counsel

where his trial counsel failed to file an appeal. Defendant

contended his counsel would have argued (1) defendant’s juvenile

adjudications should not have been admitted because they were

prejudicial and (2) juvenile convictions are not usually

admissible against a criminal defendant.

The docket entry shows arguments were had on

defendant’s petition on April 9, 2009, after which the trial

court took the matter under advisement. However, no transcript

of that hearing appears in the record.

According to an April 9, 2009, docket entry, the trial

court made the following findings:

"1) The case the [c]ourt referred to at

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 the conclusion of oral arguments on the

[a]mended [p]ost[c]onviction [p]etition in

this case is People v. Ross, 229 Ill. 2d

255[, 891 N.E.2d 865 (2008)].

2) Based upon that case, the [c]ourt

concludes that the appropriate remedy

available to the [c]ourt in this case is to

allow [p]etitioner leave to file a late

notice of appeal without analysis of

likelihood of success on appeal."

In Ross, the defendant’s trial counsel did not file an

appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The

defendant filed a pro se petition for postconviction relief two

years later, arguing his trial counsel was ineffective for

failing to file a timely notice of appeal and that the item

involved in his conviction was not a dangerous weapon. Ross, 229

Ill. 2d at 259, 891 N.E.2d at 868. The trial court found defense

counsel was ineffective for failing to file a notice of appeal.

Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The court reasoned

the proper remedy was to allow the defendant to file a late

notice of appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.

In the defendant’s direct appeal, he argued the State

had failed to prove the pellet gun at issue was a dangerous

weapon. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The State

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argued the appellate court did not have jurisdiction because the

notice of appeal was untimely under Supreme Court Rule 606 (210

Ill. 2d R. 606). Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.

The appellate court allowed the appeal, finding the trial court’s

grant of leave to file a notice of appeal was a proper remedy

under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through

122-8 (West 2004)). Ross, 229 Ill. 2d at 259-60, 891 N.E.2d at

869.

The supreme court considered the issue of what relief a

postconviction court may order to remedy defense counsel’s

failure to file a notice of appeal. The court concluded "that

when a postconviction petitioner demonstrates that defense

counsel was ineffective for failing to file a notice of appeal,

the trial court may allow the petitioner leave to file a late

notice of appeal." (Emphasis added.) Ross, 229 Ill. 2d at 271,

891 N.E.2d at 876. The court reasoned section 122-6 of the Post-

Conviction Hearing Act (725 ILCS 5/122-6 (West 2004)) "is

flexible enough to include leave to file a late notice of appeal

among the remedies available to a trial court in a postconviction

proceeding." Ross, 229 Ill. 2d at 271, 891 N.E.2d at 875-76.

In this case, defendant’s trial counsel did not appeal

defendant’s conviction or sentence. Defendant filed a pro se

petition for postconviction relief, arguing his trial counsel

provided ineffective assistance of counsel by failing to timely

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file an appeal despite defendant’s request. Like the petitioner

in Ross, defendant successfully demonstrated to the trial court

his trial counsel was ineffective for failing to file a notice of

appeal. Like the trial court in Ross, the court here allowed

defendant leave to file a late notice of appeal. Following the

supreme court’s reasoning in Ross, we find we have jurisdiction

to hear defendant’s appeal.

Turning to the merits, defendant argues his trial

counsel was ineffective for eliciting inadmissible impeachment

testimony from him regarding his two prior juvenile

adjudications. Specifically, defendant contends although the

State did not introduce the evidence when it cross-examined him,

his trial counsel "inexplicably introduced the juvenile

adjudications for robbery and retail theft." Defendant maintains

the introduction of this inadmissible evidence prejudiced him.

We initially note defendant’s counsel does not

challenge the correctness of the trial court’s ruling on

defendant’s motion in limine allowing the introduction of the

juvenile adjudications. Instead, defendant argues his trial

counsel was ineffective for introducing the adjudications during

trial because they were inadmissible. The State argues the

court’s ruling allowing the impeachment of the accused with a

juvenile adjudication was correct and therefore counsel was not

ineffective.

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 Defendant argues the State failed to cross-examine him

about his juvenile adjudications and it was inexplicable for

defense counsel to reopen his direct examination for the purpose

of disclosing these adjudications. However, it would have been

improper for the State to cross-examine defendant with respect to

his prior adjudications. If it was proper to introduce such

evidence, the State was limited to introducing certified copies

of the adjudications in its rebuttal case. See M. Graham, Cleary

& Graham's Handbook of Illinois Evidence §609.6, at 456-57 (9th

ed. 2009) (when the witness is the accused, convictions are

provable only by public record on rebuttal and may not be brought

out on cross-examination).

Thus one issue is whether, within the confines of the

trial court’s ruling denying defendant’s motion in limine,

defense counsel’s performance was deficient for introducing the

adjudications before the State could introduce certified copies

of them in rebuttal.

B. Ineffective-Assistance Claim

To establish defendant’s trial counsel provided

ineffective assistance, defendant must show (1) his counsel's

performance was inadequate "in that it fell below an objective

standard of reasonableness" and (2) there is a reasonable

probability the outcome of the trial would have been different

absent his counsel's deficient performance. People v. Moore, 189

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Ill. 2d 521, 535, 727 N.E.2d 348, 355-56 (2000), citing

Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d

674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984).

The State argues that by introducing evidence of

defendant’s prior adjudications on direct examination, defense

counsel was able to avoid the adverse impact that would have

arisen had the prosecutor introduced certified copies of the

adjudications. We agree with the State.

In this case, once the trial court denied defendant’s

motion, defense counsel essentially did the best he could to

represent defendant within the confines of the trial court’s

ruling. As a matter of trial strategy and given the court’s

ruling on the motion in limine, counsel likely introduced the

adjudications in an attempt to reduce the impact of the State’s

introduction of certified copies of the adjudications, which the

State indicated it intended to do.

With respect to whether counsel was ineffective for

trying to soften the blow by preempting the State with respect to

disclosure of defendant’s adjudications, we find guidance in the

supreme court’s decision in People v. Spates, 77 Ill. 2d 193, 395

N.E.2d 563 (1979). There, the court stated the following:

"[A] party waives the right to raise as error

action taken by the court at the instance of

that party; it is quite another matter when,

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 after an exclusionary motion is denied, the

party himself raises a matter so as to lessen

its impact, when the party knows that if he

does not raise it, the opponent will. *** In

the second instance the aim is consistent:

once the motion to exclude the matter is

denied, the party must try to limit the

effect the matter will have on the trier of

fact. He has not waived the issue by raising

it; he has merely tried to ensure that it

does the least damage to his witness’

credibility." (Emphasis added.) Spates, 77

Ill. 2d at 199-200, 395 N.E.2d at 566.

Given the trial court’s ruling on defendant’s motion in

limine, we cannot say it was unreasonable for defendant’s trial

counsel to introduce defendant’s prior adjudications to reduce

their prejudicial effect on defendant’s credibility prior to the

State’s introduction of certified copies of those adjudications

in rebuttal. See People v. DeHoyos, 64 Ill. 2d 128, 131, 355

N.E.2d 19, 21 (1976) (the defendant need not allow information

damaging to his credibility to be first established by the

State).

C. Motion In Limine

An underlying issue in this case, however, is whether

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the trial court erred in denying defendant’s motion in limine.

We recognize the supreme court’s recent decision in People v.

Givens, 237 Ill. 2d 311, 325, ___ N.E.2d ___(2010) (finding the

appellate court should not have raised and addressed an issue not

raised and addressed by the parties where the issue was not an

obvious error). However, this case is distinguishable from

Givens in that the parties in this case have briefed but not

appropriately framed the issue. Defendant has framed the issue

in terms of trial counsel’s ineffective assistance but argues

defendant’s adjudications were inadmissible under the rules of

evidence. The State has briefed the issue of the correctness of

the trial court’s ruling on the motion in limine. We note both

parties appear to be treating this appeal as a postconviction

proceeding, rather than as a direct appeal, which it is.

This court has recently considered this issue in People

v. Coleman, 399 Ill. App. 3d 1150, 1156, 927 N.E.2d 304, 308-09

(2010) (Fourth District), and found a defendant’s juvenile

adjudications are not normally admissible when the defendant

testifies. Like the defendant in Coleman, defendant in this case

cites People v. Kerns, 229 Ill. App. 3d 938, 941, 595 N.E.2d 207,

208-09 (1992), and argues Federal Rule of Evidence 609(d) (Fed.

R. Evid. 609(d)), adopted by our supreme court pursuant to People

v. Montgomery, 47 Ill. 2d 510, 517, 268 N.E.2d 695, 699 (1971),

prohibits the admission of juvenile adjudications for impeachment

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when the witness is the accused. The State argues a testifying

defendant may be impeached with his juvenile record where the

trial court adheres to the same rules governing the use of adult

convictions for impeachment purposes pursuant to section 5-

150(1)(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS

405/5-150(1)(c) (West 2004)).

Federal Rule of Evidence 609(d), as adopted in

Montgomery in 1971, provided the following:

" 'Evidence of juvenile adjudications is

generally not admissible under this rule.

The judge may, however, allow evidence of a

juvenile adjudication of a witness other than

the accused if conviction of the offense

would be admissible to attack the credibility

of an adult and the judge is satisfied that

admission in evidence is necessary for a fair

determination of the issue of guilt or

innocence.' " (Emphasis added.) Montgomery,

47 Ill. 2d at 517, 268 N.E.2d at 699, quoting

51 F.R.D. 391 (1971) (setting forth Rule

609).

In Kerns, 229 Ill. App. 3d at 941, 595 N.E.2d at 208-

09, this court held the admissibility of a juvenile adjudication

is governed by Rule 609(d) as adopted in Montgomery. At the time

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Kerns was decided, the predecessor to section 5-150(1)(c) of the

Act purported to allow the admission of adjudications of

witnesses and did not specifically include defendants. See

Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at 208 (there is no

discretion to admit evidence of juvenile adjudications when the

witness is the accused). The version of section 5-150(1)(c) of

the Act then in effect (Ill. Rev. Stat. 1989, ch. 37, par. 801-

10(1)(c)) provided:

"'(1) Evidence and adjudications in

proceedings under this Act shall be

admissible:

* * *

(c) in proceedings under this Act or in

criminal proceedings in which anyone who has

been adjudicated delinquent under [s]ection

5-3 is to be a witness, and then only for

purposes of impeachment and pursuant to the

rules of evidence for criminal trials[.]'"

(Emphases added.) Kerns, 229 Ill. App. 3d at

940, 595 N.E.2d at 208.

The version of section 5-150(1)(c) of the Act in effect

at the time of defendant’s trial provides:

"(1) Evidence and adjudications in

proceedings under this Act shall be

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 admissible:

* * *

(c) in proceedings under this Act or in

criminal proceedings in which anyone who has

been adjudicated delinquent under [s]ection

5-105 is to be a witness including the minor

or defendant if he or she testifies, and then

only for purposes of impeachment and pursuant

to the rules of evidence for criminal

trials[.]" (Emphases added.) 705 ILCS

405/5-150(1)(c) (West 2004).

While the most recent version of the statute purports

to allow impeachment of the accused with juvenile adjudications,

under either version of the Act, a juvenile adjudication may only

be used "pursuant to the rules of evidence for criminal trials."

(Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 801-

10(1)(c); 705 ILCS 405/5-150(1)(c) (West 2004).

Under article II, section 1, of the Illinois

Constitution, the legislative, executive, and judicial branches

of government are separate and "[n]o branch shall exercise powers

properly belonging to another." Ill. Const. 1970, art. II, §1.

"If a power is considered to be judicial in character, the

legislature is prohibited from exercising it." People v.

Williams, 143 Ill. 2d 477, 482, 577 N.E.2d 762, 764 (1991). The

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supreme court has "sought to reconcile most conflicts between

rules of the judiciary and legislative enactments." Williams,

143 Ill. 2d at 483, 577 N.E.2d at 764. However, a judicial rule

will prevail over a statute that directly and irreconcilably

conflicts with that rule on a matter within the court’s

authority. People v. Walker, 119 Ill. 2d 465, 475, 519 N.E.2d

890, 893 (1988).

In Kerns, this court disavowed People v. McClendon, 146

Ill. App. 3d 1004, 1011, 497 N.E.2d 849, 853 (1986), a prior

Fourth District decision, which had held a previous version of

section 5-150(1)(c) supplanted Rule 609(d). In Kerns, we found

the statute did not override Rule 609(d) as adopted by our

supreme court in Montgomery. Kerns, 229 Ill. App. 3d at 940-41,

595 N.E.2d at 208-09. More recently we have stated "the statute

and the rule, as adopted by our supreme court in Montgomery, can

be reconciled when the statutory language ’pursuant to the rules

of evidence for criminal trials’ is considered." Coleman, 399

Ill. App. 3d at 1155, 927 N.E.2d at 308. Thus, "the legislature

has said a defendant who chooses to testify may be impeached with

a juvenile adjudication but has conditioned the use of such

impeachment on the rules of evidence for criminal trials."

Coleman, 399 Ill. App. 3d at 1155, 927 N.E.2d at 308.

Accordingly, the statute does not override the rules of evidence

for criminal trials. Instead, the statute is limited by the

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rules of evidence. By interpreting the statute in this manner,

we are able to avoid a separation-of-powers issue.

As stated, Rule 609 was adopted by the supreme court as

a rule of evidence for use by the trial courts. Montgomery, 47

Ill. 2d at 519, 268 N.E.2d at 700. "Rule 609 does not permit

impeachment of a defendant with a juvenile adjudication."

Coleman, 399 Ill. App. 3d at 1156, 927 N.E.2d at 308. As a

result, criminal defendants who choose to testify ordinarily may

not be impeached by their prior juvenile adjudications. Coleman,

399 Ill. App. 3d at 1156, 927 N.E.2d at 308-09; Kerns, 229 Ill.

App. 3d at 941, 595 N.E.2d at 208-09; but see People v. Harris,

231 Ill. 2d 582, 591, 901 N.E.2d 367, 372 (2008) (allowing

impeachment on cross-examination where the defendant's testimony

concerning his prior criminal history was misleading). Our

analysis is supported by the recently adopted Illinois evidence

rules on the use of criminal convictions to impeach witnesses.

Rule 609(d) provides the following:

"(d) Juvenile Adjudications. Evidence

of juvenile adjudications is generally not

admissible under this rule. The court may,

however, allow evidence of a juvenile

adjudication of a witness other than the

accused if conviction of the offense would be

admissible to attack the credibility of an

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 adult and the court is satisfied that

admission in evidence is necessary for a fair

determination of the issue of guilt or

innocence." (Emphasis added.) Ill. R. Evid.

609(d), adopted September 27, 2010, eff.

January 1, 2011.

Thus, the newly adopted rules of evidence include the

long-standing rule announced by the supreme court in Montgomery

and applied by our trial courts for decades. The committee

comments to Rule 609(d) note Rule 609(d) is not intended to

resolve any issue concerning the effect of section 5-150(1)(c) of

the Act. See Ill. R. Evid. 609(d), adopted September 27, 2010,

eff. January 1, 2011, Committee Comments, at 22. In other words,

the courts must determine the impact of any conflict between

section 5-150(1)(c) and Rule 609(d). Further, the initial

committee commentary to the rules states "the Illinois Rules of

Evidence are not intended to abrogate or supercede any current

statutory rules of evidence." Ill. R. Evid., adopted September

27, 2010, eff. January 1, 2011, Committee Commentary, at 1.

However, the committee comments to Rule 101 state the following:

"[A] statutory rule of evidence is effective

unless in conflict with an Illinois Supreme

Court rule or decision. There is no current

statutory rule of evidence that is in

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 conflict with a rule contained in the

Illinois Rules of Evidence, with the possible

exception of [section 5-150(1)(c) of the

Act]." (Emphasis added.) Ill. R. Evid. 101,

adopted September 27, 2010, eff. January 1,

2011, Committee Comments, at 10.

Where a statute conflicts with a rule of evidence or supreme

court decision adopting a rule of evidence, courts are to follow

the rule or decision. See Ill. R. Evid. 101, adopted September

27, 2010, eff. January 1, 2011, Committee Comments, at 10.

In sum, our supreme court adopted Rule 609 in

Montgomery. Rule 609(d) gives the court discretion to admit

evidence of juvenile adjudications to impeach a witness, but

there is no such discretion when the witness is the accused in a

criminal case. Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at

208; Coleman, 399 Ill. App. 3d at 1154-55, 927 N.E.2d at 308.

We note the Second District Appellate Court’s recent

decision in People v. Villa, No. 2-08-0918, slip op. at 11 (June

30, 2010), ___ Ill. App. 3d ___, ___, 932 N.E.2d 90, 96-97,

appeal allowed, No. 110777 (September 29, 2010), 237 Ill. 2d ___,

___ N.E.2d ___, ___, finds section 5-150(1)(c) of the Act permits

the introduction of a defendant’s juvenile adjudications for

impeachment purposes, despite the contrary language in

Montgomery. The court in Villa opined that our reconciliation of

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section 5-150(1)(c) and Montgomery in Coleman was in error.

Villa, slip op. at 10, ___ Ill. App. 3d at ___, 932 N.E.2d at 97.

Instead, the Second District interpreted section 5-150(1)(c) to

have supplanted the rule of evidence the supreme court adopted in

Montgomery. Villa, slip op. at 12, ___ Ill. App. 3d at ___, 932

N.E.2d at 97. We disagree with the Second District’s

interpretation and the analysis upon which it is based.

In our opinion, the analysis in Villa is erroneously

predicated upon the power of the legislature to modify the

Montgomery rule. The Second District reasoned "the legislature

acts within its power when its amends a statute to alter a rule

of evidence announced in a judicial decision." Villa, slip op.

at 12, ___ Ill. App. 3d at ___, 932 N.E.2d at 98. While we agree

the legislature is free to adopt rules of evidence, where our

supreme court has adopted a contrary rule, the court’s rule is to

be followed. See People v. Joseph, 113 Ill. 2d 36, 45, 495

N.E.2d 501, 506 (1986) (stating "if a statute conflicts with a

rule of this court adopted pursuant to constitutional authority,

the rule will prevail"); see also Ill. R. Evid. 101, adopted

September 27, 2010, eff. January 1, 2011 ("[a] statutory rule of

evidence is effective unless in conflict with a rule or a

decision of the Illinois Supreme Court").

In Montgomery, our supreme court adopted proposed

Federal Rule of Evidence 609 and took the further step of telling

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trial courts to follow this rule. Montgomery, 47 Ill. 2d at 519,

268 N.E.2d at 700. The Second District reasoned that a rule has

to be promulgated and adopted formally to have constitutional

effect. Villa, slip op. at 11, ___ Ill. App. 3d at ___, 932

N.E.2d at 98. However, our supreme court is vested with

supervisory authority over the entire court system. Joseph, 113

Ill. 2d at 47, 495 N.E.2d at 507, citing Ill. Const. 1970, art.

VI, §16 ("administrative and supervisory authority over all

courts is vested in the Supreme Court and shall be exercised ***

in accordance with its rules"). Where our supreme court has

specifically directed the trial courts to follow a particular

rule, the legislature is not free to direct the trial courts

otherwise.

The Second District further stated in Villa "the

legislature acts within its power when it amends a statute to

alter a rule of evidence announced in a judicial decision."

Villa, slip op. at 12, ___ Ill. App. 3d at ___, 932 N.E.2d at 98.

We disagree. Supreme Court Rule 3(a)(2), allows the supreme

court to depart from its ordinary rule-making procedures and

adopt a rule by order of the court. Official Reports Advance

Sheet No. 7 (April 7, 2010) R. 3(a)(2), eff. March 22, 2010.

("[t]he [s]upreme [c]ourt reserves the prerogative of departing

from the procedures of this rule. An order of the [s]upreme

[c]ourt adopting any rule or amendment shall constitute an order

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modifying these [rule-making] procedures"). We note Rule 3(a)(2)

was originally adopted in 1994 as Rule 3(b). See 166 Ill. 2d R.

3(b). The version of section 5-150(1)(c) in effect at the time

of defendant’s trial became effective in 1999. See 705 ILCS

405/5-150(1)(c) (West 2000).

In addition, our decision in Coleman relied upon Kerns,

which adopted the reasoning of People v. Massie, 137 Ill. App. 3d

723, 731, 484 N.E.2d 1213, 1218 (1985) (Second District finding

error in the admission of juvenile adjudications to impeach the

defendant and reasoning "an interpretation of the statute to

allow a prior adjudication of delinquency to be used for

impeachment against a defendant who takes the stand in a criminal

proceeding would be contrary to the decision in Montgomery which

adopted the proposed Federal Rule 609"). However, the court in

Villa does not mention or distinguish our decision in Kerns and

we see no reason to abandon it.

The Second District, while viewing our interpretation

or "reconciliation" as rendering the legislation meaningless,

interprets the phrase "pursuant to the rules of criminal

evidence" as merely incorporating the balancing test of

Montgomery (prejudice versus probative value). Villa, slip op.

at 10, ___ Ill. App. 3d at ___, 932 N.E.2d at 97. However, the

Second District itself in Massie stated as follows:

"[S]ection 2-10 [of the Act (Ill. Rev. Stat.

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 1983, ch. 37, par. 702-10)] provides that the

use of such a prior adjudication is ’pursuant

to the rules of evidence for criminal

trials.’ The Montgomery decision, in

adopting proposed Federal Rule 609 in its

entirety, established the rule of evidence

for use of prior convictions and juvenile

adjudications. Accordingly, pursuant to this

authority, the admission into evidence of the

accused’s prior adjudications of delinquency

in proceedings under the [Act] was error."

(Emphasis added.) Massie, 137 Ill. App. 3d

at 731, 484 N.E.2d at 1218-19.

Thus, in Massie, the Second District had previously interpreted

the language "pursuant to the rules of evidence for criminal

trials" in the very same manner we interpreted this language in

Coleman and in the case before us today.

Lastly, we note the Second District in Villa states the

statute governing impeachment was viewed as subordinate to

Montgomery only in the sense that the adjudication would have to

satisfy the Montgomery factors before it could be used against

the testifying witness. Villa, slip op. at 9, ___ Ill. App. 3d

at ___, 932 N.E.2d at 97. The Second District cites People v.

Newborn, 379 Ill. App. 3d 240, 248, 883 N.E.2d 603, 609 (2008),

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as authority for this proposition. Villa, slip op. at 9-10, ___

Ill. App. 3d at ___, 932 N.E.2d at 97. Newborn, however, did not

raise, discuss, or consider the limiting language of section 5-

150(1)(c), i.e., "pursuant to the rules of evidence for criminal

trials." Instead, Newborn focused its analysis on the factors

trial courts should consider in determining whether proposed

impeachment evidence of a witness (not the accused) should be

admitted. See Newborn, 379 Ill. App. 3d at 248, 883 N.E.2d at

609. Thus, we are left unpersuaded by the Second District’s

analysis in this regard.

In this case, defendant took the stand and testified.

At no point did defendant offer any misleading testimony

regarding his prior criminal history. Thus, Rule 609, adopted as

a rule of evidence in Montgomery, prohibited his impeachment with

his juvenile adjudications. Additionally, section 5-150(1)(c)

restricts impeachment of a defendant with a juvenile adjudication

by requiring it be done only pursuant to the rules of evidence

for criminal trials. As just stated, the rules of evidence for

criminal trials as expressed in Montgomery prohibited defendant’s

impeachment with juvenile adjudications. Accordingly, the trial

court should have excluded defendant’s adjudications pursuant to

defendant’s motion in limine.

D. Prejudicial Effect of Error

The trial court erred in the denial of defendant’s

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motion in limine. The court should have allowed the motion so

long as defendant did not offer misleading testimony regarding

his criminal history. However, considering the sufficiency of

the evidence in this case, we find the court’s error harmless.

Defendant testified and admitted he possessed the

cocaine. Thus, the only issue was his intent to deliver the

drugs. Direct evidence of the intent to deliver a controlled

substance is rare and the intent must usually be proved by

circumstantial evidence. People v. Robinson, 167 Ill. 2d 397,

408, 657 N.E.2d 1020, 1026 (1995). However, in this case,

defendant testified the drugs were not for his personal use. In

fact, defendant admitted when he got into the vehicle, the driver

asked him to hold the drugs as a favor for him because the driver

was on parole. Defendant testified he had no intention of

selling the drugs or using them and admitted he was just holding

them for the driver until defendant got home. In other words,

defendant admitted he possessed the drugs with the intent to

deliver them back to the driver.

Based on this evidence, we find the trial court’s error

denying defendant’s motion in limine harmless and did not

contribute to defendant’s conviction as the evidence against him

was overwhelming. See People v. Garvin, 349 Ill. App. 3d 845,

851, 812 N.E.2d 773, 779 (2004) ("[a]n error is harmless where

the reviewing court is satisfied beyond reasonable doubt that the

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error did not contribute to the defendant’s conviction").

E. Street-Value Fine

Defendant argues the trial court committed plain error

when it imposed a $220 street-value fine based on its belief the

cocaine weighed 2.2 grams. Specifically, defendant contends the

fine was erroneous where the evidence indicated defendant only

possessed 1.3 grams of cocaine having a $130 street value.

The State concedes clear and obvious error occurred when

the trial court based the street-value fine on the mistaken belief

defendant had possessed 2.2 grams of cocaine. However, the State

argues defendant waived this issue on appeal because he did not

object to the fine at the sentencing hearing or in a motion to

reconsider his sentence. We review this issue under the plain-

error doctrine. See People v. Lewis, 234 Ill. 2d 32, 34, 912

N.E.2d 1220, 1222 (2009) ("imposition of [a] street-value fine

without a sufficient evidentiary basis is reviewable as plain

error").

Under the plain-error doctrine, this court reviews

whether (1) the evidence is closely balanced or (2) the error is

"so substantial that it affected the fundamental fairness of the

proceeding, and remedying the error is necessary to preserve the

integrity of the judicial process." People v. Hall, 194 Ill. 2d

305, 335, 743 N.E.2d 521, 539 (2000). Here, defendant does not

argue the evidence was closely balanced. Instead, defendant

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contends the imposition of the fine affects the integrity of the

judicial process.

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

(Code) provides when a person has been found guilty of a drug-

related offense, a trial court must impose, in addition to other

penalties, a fine not less than the full street value of the

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 court

as to the current street value of the *** controlled substance

seized." 730 ILCS 5/5-9-1.1(a) (West 2004). "Although the amount

of evidence necessary to adequately establish the street value of

a given drug varies from case to case, the trial court must have a

concrete, evidentiary basis for the fine imposed." People v.

Reed, 376 Ill. App. 3d 121, 129, 875 N.E.2d 167, 175 (2007).

In this case, the street-value fine imposed was not

supported by the evidence. The record shows the cocaine defendant

possessed weighed 1.3 grams. During trial, Detective David Daily

testified the street value of the cocaine on November 22, 2004,

the day of the offense, was "[a]pproximately $130." However,

during sentencing, the trial court imposed a $220 street-value

fine and noted, "Yes. As I recall, the evidence indicated 2.2

grams." As a result, the court erroneously assessed defendant $90

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more than the evidence showed was the value of the drugs seized.

Although trial testimony established the specific value of the

drugs as of the date of the offense, the fine the trial court

fashioned bore no relation to that testimony. See People v.

Galmore, 382 Ill. App. 3d 531, 536, 889 N.E.2d 238, 242-43 (2008)

(holding a $10,000 fine was plain error where testimony indicated

the seized drugs had a street value of $1,000 to $1,500).

Accordingly, we vacate the $220 street-value fine and remand the

cause for the imposition of a fine in the appropriate amount.

III. CONCLUSION

For the reasons stated, we vacate the $220 street-value

fine and remand with directions to impose a $130 street-value

fine. We otherwise affirm the trial court's judgment. Because

the State successfully defended a portion of the criminal

judgment, we grant the State its $50 statutory assessment against

defendant as costs of this appeal. See People v. Smith, 133 Ill.

App. 3d 613, 620, 479 N.E.2d 328, 333 (1985), citing People v.

Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194, 199 (1978).

Affirmed as modified; cause remanded with directions.

McCULLOUGH, J., concurs.

TURNER, J., specially concurs.

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 JUSTICE TURNER, specially concurring:

I agree with the majority the trial court's judgment

should be affirmed as modified and remanded for the imposition of

an appropriate fine. As the majority notes, the evidence against

defendant was overwhelming. See slip op. at 23-24. However,

because of the overwhelming evidence against defendant, I find

unnecessary the majority's discussion on whether defendant's

juvenile adjudications were admissible for impeachment purposes.

Thus, I take no part in any of the majority's analysis on that

issue.

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