People v. Galmore

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, including 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 sentencing 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 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). Further, an assistant State’s Attorney is “law[-]enforcement personnel” 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 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 narrow 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.