                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Devine, 2012 IL App (4th) 101028




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DONALD LEE DEVINE, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-1028


Filed                      September 6, 2012
Rehearing denied           October 15, 2012


Held                       Defendant’s case was remanded for the imposition of the street-value fine
(Note: This syllabus       set forth in section 5-9-1.1(a) of the Unified Code of Corrections as
constitutes no part of     ordered by the trial court in sentencing defendant for unlawful possession
the opinion of the court   of a controlled substance, even though the prosecutor did not ask for that
but has been prepared      fine because only cocaine residue was at issue, since the fine is
by the Reporter of         mandatory and the statute does not provide a de minimis exception.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 09-CF-307; the
Review                     Hon. Charles G. Reynard, Judge, presiding.



Judgment                   Affirmed in part as modified and vacated in part; cause remanded with
                           directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Martin J. Ryan, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Perry L. Miller, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE McCULLOUGH delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Turner and Justice Knecht concurred in the judgment
                           and opinion.


                                              OPINION

¶1          On August 25, 2010, the trial court found defendant, Donald Lee Devine, guilty of
        unlawful possession of a controlled substance, following a stipulated bench trial. On
        November 24, 2010, the court sentenced defendant to 54 months in prison and “the
        mandatory financial consequences.”
¶2          On appeal, defendant argues (1) the trial court erred in imposing a $100 Trauma Center
        Fund fine, (2) the trial court erred in imposing a $25 Drug Traffic Prevention Fund
        assessment, and (3) the circuit clerk did not have authority to use remaining bond monies to
        satisfy an unpaid child support obligation. We affirm in part as modified, vacate in part, and
        remand with directions.
¶3          On April 15, 2009, a grand jury indicted defendant with a single count of unlawful
        possession of a controlled substance (720 ILCS 570/402(c) (West 2008)) based on an
        incident of April 7, 2009. On May 12, 2009, defendant posted a $2,000 cash bond. After a
        stipulated bench trial on August 25, 2010, the trial court found defendant guilty of possessing
        less than 0.1 grams of cocaine residue. On November 24, 2010, the court denied defendant’s
        motion for a judgment of acquittal or a new trial and sentenced defendant to 54 months in
        prison. The prosecutor stated that he was not asking for a street-value fine because the
        amount of cocaine at issue was only residue. The court imposed “the mandatory financial
        consequences.”
¶4          This appeal followed.
¶5          Defendant argues the trial court lacked statutory authority to impose a $100 Trauma
        Center Fund fine and $25 Drug Traffic Prevention Fund assessment where no street-value
        fine was imposed. The State argues this issue is forfeited because defendant failed to file a
        posttrial motion setting forth his allegations of error. Defendant asks this court to review the
        issue as a matter of plain error.
¶6          The plain-error doctrine permits a reviewing court to consider unpreserved error under
        the following two scenarios:

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           “(1) a clear or obvious error occurred and the evidence is so closely balanced that the
           error alone threatened to tip the scales of justice against the defendant, regardless of the
           seriousness of the error, or (2) a clear or obvious error occurred and that error is so
           serious that it affected the fairness of the defendant’s trial and challenged the integrity
           of the judicial process, regardless of the closeness of the evidence.” People v. Sargent,
           239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058 (2010).
       Under both prongs of the plain-error analysis, the burden of persuasion remains with the
       defendant. People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227 (2009). As the first
       step in the analysis, we must determine whether any error occurred at all. People v.
       Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010).
¶7         Section 5-9-1.1(a) of the Unified Code of Corrections (Unified Code) provides, in part,
       as follows:
           “When a person has been adjudged guilty of a drug[-]related offense involving
           possession or delivery of cannabis or possession or delivery of a controlled substance,
           *** a fine shall be levied by the court at not less than the full street value of the cannabis
           or controlled substances seized.
               ‘Street value’ shall be determined by the 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 cannabis or controlled
           substance seized.” 730 ILCS 5/5-9-1.1(a) (West 2008).
       The trial court’s determination of the amount of the street-value fine must be based on “some
       concrete evidentiary basis.” People v. Spencer, 347 Ill. App. 3d 483, 488, 807 N.E.2d 1228,
       1232 (2004).
¶8         The trial court in this case failed to assess a street-value fine against defendant. Section
       5-9-1.1(a) provides in no uncertain terms that a person convicted of possessing or delivering
       cannabis or a controlled substance shall be assessed a fine not less than the street value of
       the contraband seized. The plain language of the statute provides no basis for the imposition
       of a de minimis exception. See, e.g., People v. Blankenship, 406 Ill. App. 3d 578, 596-98,
       943 N.E.2d 1111, 1126-27 (2010) ($10 street-value fine where the defendant possessed 0.83
       grams of cocaine; stipulation by silence); People v. Bond, 405 Ill. App. 3d 499, 513, 942
       N.E.2d 585, 597 (2010) (defendant possessed 1.3 grams of cocaine having a $130 street
       value). Defendant was convicted of unlawful possession of a controlled substance.
       Accordingly, application of section 5-9-1.1(a) requires the imposition of a street-value fine.
¶9         We remand this case to the circuit court of McLean County with the direction that the
       court impose the statutory street-value fine mandated by section 5-9-1.1(a) of the Unified
       Code. Given our decision on this issue, we need not address defendant’s remaining
       arguments. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (This court may “enter any
       judgment and make any order that ought to have been given or made, and make any other and
       further orders and grant any relief *** that the case may require.”).
¶ 10       Alternatively, defendant argues the $25 Drug Traffic Prevention Fund assessment
       pursuant to section 5-9-1.1(d) of the Unified Code (730 ILCS 5/5-9-1.1(d) (West 2010)) took
       effect on January 1, 2010, after the date of his offense. Accordingly, defendant argues the

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       trial court improperly imposed the $25 assessment pursuant to that statute. The State agrees.
       The imposition of a fine that does not become effective until after a defendant commits an
       offense violates ex post facto principles. People v. Dalton, 406 Ill. App. 3d 158, 163, 941
       N.E.2d 428, 435 (2010). Accordingly, we vacate the $25 Drug Traffic Prevention Fund
       assessment.
¶ 11        Defendant next argues the circuit clerk did not have authority to use remaining bond
       monies to satisfy an unpaid child support obligation. Specifically, he argues neither section
       110-7(f) of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS
       5/110-7(f) (West 2008)) nor the Eleventh Judicial Circuit Court rules provide authority
       allowing the circuit clerk to use remaining bond monies to satisfy an unpaid child support
       obligation. Defendant does not argue the bail bond slip did not provide him notice indicating
       his remaining balance would be used to satisfy any unpaid child support obligation but only
       that the circuit clerk lacked authority to apply his remaining balance to an unpaid child
       support obligation.
¶ 12        As above, defendant failed to file a posttrial motion setting forth his allegations of error
       and asks this court to review the issue as a matter of plain error. Defendant bears the burden
       of persuasion. Sargent, 239 Ill. 2d at 190, 940 N.E.2d at 1059. First, we must determine
       whether any error occurred at all. Thompson, 238 Ill. 2d at 613, 939 N.E.2d at 413.
¶ 13        On May 12, 2009, defendant posted a $2,000 cash bond. A copy of the front side of the
       bail bond slip was filed on May 13, 2009. Defendant’s signature appears under the following
       language:
            “CERTIFICATE OF DEFENDANT. I, the Defendant, do hereby state that I know and
            understand the terms and conditions of this appearance bond as shown on the front and
            reverse of this form. I understand further that if at any time prior to the final disposition
            of the charge(s), I escape or am released on bond and fail to appear in Court when
            required, I thereby waive my right to confront witnesses against me; the trial or
            sentencing can proceed in my absence; I forfeit the security posted; judgment will be
            entered against me in the full amount of this bond, plus costs; a warrant may be issued
            in which additional bond may be required to be posted. I understand and accept the terms
            and conditions set forth above and on the reverse side of this appearance bond.”
¶ 14        At page A-9 of the appendix to its brief, the State includes a copy of the reverse side of
       the appearance bond executed on the day of defendant’s release on bond, stating in pertinent
       part:
                                     “APPLICATION OF BOND.
                When the person charged (the Defendant) has been discharged from all obligations
            in the case, the bond posted shall be distributed by the Circuit Clerk as follows:
                ***
                B. When a 10% bond has been posted, then 90% of the bond posted shall be
            disbursed by the Clerk to satisfy any and all financial obligations in the court file in
            which the bond was posted as outlined in 725 ILCS 5/110-7, unless otherwise ordered
            by the Court. The remaining 10% of the bond, but not less than $5.00, shall be retained
            as court costs. Pursuant to Administrative Order 2004-6, any remaining balance shall be

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           first used to satisfy any child support obligations of the same defendant incurred in a
           different case, if any, with any remaining balance transferred to satisfy the fines, fees,
           court costs, restitution, public defender fees or other financial obligations of the same
           defendant in different cases. Any remaining balance shall be refunded to the Defendant
           or the Surety, unless the Court orders the refund be directed to some other person, entity
           or file.”
       A notation at the bottom right-hand corner of the copy of the reverse side of the bond slip
       states “Revised: December 2008.”
¶ 15       In a notice filed on November 24, 2010, the circuit clerk advised defendant that the
       balance of his bond monies ($1,148) was sent “to [the] State Disbursement Unit for back
       child support.”
¶ 16       Defendant is correct that the State’s brief at page 18 fails to cite the appendix to the
       State’s brief in support of the State’s argument that the reverse side of the bond slip advised
       defendant how the bond would be applied. The State’s failure to cite to the appendix to its
       brief does not limit this court’s authority on review. “[T]he rule of waiver is a limitation on
       the parties and not on the courts, and a reviewing court may ignore the waiver rule in order
       to achieve a just result.” (Internal quotation marks omitted.) People v. Hoskins, 101 Ill. 2d
       209, 219, 461 N.E.2d 941, 946 (1984).
¶ 17       Defendant’s signature on the bond slip certified his understanding and acceptance of the
       terms and conditions set forth on the reverse side of the bond slip. The bond slip advised
       defendant that a remaining balance would be used to satisfy any child support obligation.
       Defendant owed $45,671.67 in back child support.
¶ 18       Defendant argues section 110-7(f) of the Criminal Procedure Code (725 ILCS 5/110-7(f)
       (West 2008)) does not provide authority for the use of bail bond to satisfy an unpaid child
       support obligation. Questions of statutory interpretation are reviewed de novo. People v.
       Williams, 239 Ill. 2d 503, 506, 942 N.E.2d 1257, 1260 (2011). In construing a statute, the
       fundamental rule is to ascertain and give effect to the legislature’s intent. People v.
       Zimmerman, 239 Ill. 2d 491, 497, 942 N.E.2d 1228, 1232 (2010). The most reliable indicator
       of that intent is the statutory language itself, which must be given its plain and ordinary
       meaning. Zimmerman, 239 Ill. 2d at 497, 942 N.E.2d at 1232.
¶ 19       Section 110-7(f) states in relevant part:
           “When the conditions of the bail bond have been performed and the accused has been
           discharged from all obligations in the cause the clerk of the court shall return to the
           accused ***, unless the court orders otherwise, 90% of the sum which had been
           deposited and shall retain as bail bond costs 10% of the amount deposited. *** Bail bond
           deposited by or on behalf of a defendant in one case may be used, in the court’s
           discretion, to satisfy financial obligations of that same defendant incurred in a different
           case due to a fine, court costs, restitution or fees of the defendant’s attorney of record.
           In counties with a population of 3,000,000 or more, the court shall not order bail bond
           deposited by or on behalf of a defendant in one case to be used to satisfy financial
           obligations of that same defendant in a different case until the bail bond is first used to
           satisfy court costs and attorney’s fees in the case in which the bail bond has been

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           deposited and any other unpaid child support obligations are satisfied. In counties with
           a population of less than 3,000,000, the court shall not order bail bond deposited by or
           on behalf of a defendant in one case to be used to satisfy financial obligations of that
           same defendant in a different case until the bail bond is first used to satisfy court costs
           in the case in which the bail bond has been deposited.” 725 ILCS 5/110-7(f) (West 2008).
¶ 20       Defendant argues section 110-7(f) authorizes the use of bond monies to satisfy only a
       fine, court costs, restitution, or attorney fees accrued in a different case, and not unpaid child
       support obligations. We disagree. Section 110-7(f) requires the circuit clerk to return to the
       accused bail bond monies “unless the court orders otherwise.” 725 ILCS 5/110-7(f) (West
       2008). Although a court may order a defendant’s bail bond deposited in one case to satisfy
       financial obligations of that same defendant incurred in a different case due to a fine, court
       costs, restitution or attorney fees, it is wholly within the court’s discretion. The only
       limitation upon the trial court’s authority to order bail bond deposited by a defendant in one
       case to be used to satisfy financial obligations of that same defendant in a different case is,
       in counties with a population of 3 million or more, a court must first use the bail bond to
       satisfy court costs and attorney fees in the case in which the bail bond has been deposited and
       any other unpaid child support obligations. In counties with a population of less than 3
       million the court must first use the bail bond to satisfy court costs in the case in which the
       bail bond has been deposited. A court may then exercise its discretion in using any remaining
       bail bond, including to satisfy unpaid child support obligations.
¶ 21       Here, the bail bond slip provided defendant notice indicating the circuit clerk would use
       his bail bond to satisfy all financial obligations in the instant matter. Further, any remaining
       balance would be used to satisfy any child support obligations. Defendant’s signature on the
       bond slip certified his understanding and acceptance of the terms and conditions set forth on
       the reverse side of the bond slip. Contrary to defendant’s arguments, section 110-7(f)
       provides authority for the use of bail bond to satisfy any unpaid child support obligation.
¶ 22       Defendant argues our finding of authority in section 110-7(f) will nullify section 110-7(g)
       of the Criminal Procedure Code (725 ILCS 5/110-7(g) (West 2008)). Section 110-7(g)
       concerns only a defendant who does not comply with the conditions of the bail bond and the
       court enters an order declaring the bail to be forfeited. In contrast, section 110-7(f) presumes
       the conditions of the bail bond have been performed.
¶ 23       Given our finding of authority in section 110-7(f) for the use of bail bond to satisfy any
       unpaid child support obligation, we find it unnecessary to discuss the copies of various pages
       of the Eleventh Judicial Circuit Court rules appended to the parties’ briefs.
¶ 24       For the reasons stated, we remand with the direction that the circuit court impose the
       statutory street-value fine mandated by section 5-9-1.1(a) of the Unified Code; we vacate the
       $25 Drug Traffic Prevention Fund assessment; and we otherwise affirm the trial court’s
       judgment as modified. We remand for issuance of an amended sentencing judgment so
       reflecting. As part of our judgment, we award the State its $50 statutory assessment against
       defendant as costs of this appeal.

¶ 25       Affirmed in part as modified and vacated in part; cause remanded with directions.

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