                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Nelson, 2013 IL App (3d) 110581




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOSEPH L. NELSON, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0581


Filed                      April 10, 2013


Held                       Defendant’s conviction and sentence for unlawful possession of a
(Note: This syllabus       controlled substance with intent to deliver were upheld, but the trial
constitutes no part of     court’s imposition of a street value fine without hearing evidence of the
the opinion of the court   street value of the substance involved was reversed and the cause was
but has been prepared      remanded, notwithstanding the State’s contention that defendant
by the Reporter of         remained silent when the State asserted that the street value was $600,
Decisions for the          since defendant’s silence prior to the entry of a judgment of conviction
convenience of the         did not amount to a stipulation to the street value.
reader.)


Decision Under             Appeal from the Circuit Court of Will County, No. 09-CF-2965; the Hon.
Review                     Sarah-Marie Jones, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                 Fletcher P. Hamill, of State Appellate Defender’s Office, of Elgin, for
Appeal                     appellant.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Dawn D.
                           Duffy, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                           Presiding Justice Wright and Justice McDade concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, Joseph L. Nelson, pled guilty to unlawful possession of a controlled substance
        with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)) and was sentenced to probation.
        The sentencing order included a $600 street value fine. Defendant appeals his sentence,
        arguing that the trial court committed plain error when it assessed a street value fine without
        a sufficient evidentiary basis. We remand the cause to the trial court for a proper
        determination of the street value fine.

¶2                                             FACTS
¶3          Defendant was charged with unlawful possession of a controlled substance with intent
        to deliver (720 ILCS 570/401(c)(2) (West 2008)). Thereafter, the parties reached a plea
        agreement under which defendant agreed to plead guilty if the State reduced the charge from
        a Class 1 to a Class 2 felony. There was no agreement as to defendant’s sentence. The trial
        court accepted the plea deal.
¶4          The cause proceeded to a sentencing hearing. During the hearing, the trial court asked the
        prosecutor, “Do you have a street value fine order *** ready?” The prosecutor responded,
        “I would have to–I am going to add that up.” A few moments later the prosecutor told the
        court, “I have a street value fine of $600.” Defendant did not respond to the State’s value,
        and no evidence was presented to support it. Defendant was sentenced to 48 months of
        probation and ordered to pay a $600 street value fine. Defendant appeals.

¶5                                           ANALYSIS
¶6          Defendant argues that the trial court erred when it assessed a $600 street value fine
        without taking evidence of the actual street value of the drugs. Initially, we note that
        defendant failed to object to the fine or raise the issue in a posttrial motion. Therefore, the

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       issue cannot be considered unless the plain error doctrine applies. Ill. S. Ct. R. 615(a). The
       plain error doctrine bypasses forfeiture principles and allows a reviewing court to consider
       unpreserved error when: (1) the evidence is close, regardless of the seriousness of the error;
       or (2) the error is serious, regardless of the closeness of the evidence. People v. Adams, 2012
       IL 111168.
¶7         In People v. Lewis, 234 Ill. 2d 32 (2009), the Illinois Supreme Court expressly held the
       plain error doctrine applies when a trial court imposes a street value fine without a proper
       evidentiary basis of the value of the controlled substance. The Lewis court noted that an
       evidentiary basis may be provided by testimony at sentencing, a stipulation to the current
       value, or reliable evidence presented at a previous stage of the proceedings. Id. Under Lewis,
       if we find the absence of a proper evidentiary basis, we must conclude that the plain error
       doctrine applies and remand the cause for a new calculation of the street value fine. Id.
¶8         In this case, it is undisputed that the circuit court did not hear any evidence regarding the
       street value; however, the State contends that a proper evidentiary basis was established
       when it asserted that the street value was $600 and defendant remained silent. The State
       claims that such silence by defendant amounted to a stipulation by silence.
¶9         In People v. Blankenship, 406 Ill. App. 3d 578 (2010), the Second District of the
       Appellate Court concluded that the defendant had stipulated by silence when the trial court
       asked both parties for their input on the street value fine, and defendant remained silent after
       the State offered its opinion. While we note that this case is distinguishable in that the trial
       court here asked only the State for its opinion, we disagree with Blankenship’s ultimate
       conclusion that a defendant’s silence, when the State offers an opinion on the street value,
       can amount to a stipulation.
¶ 10       We find support for our decision in Mitchell v. United States, 526 U.S. 314 (1999). In
       Mitchell, the United States Supreme Court held that a sentencing court imposes an
       impermissible burden on the exercise of a defendant’s constitutional right against self-
       incrimination when it draws adverse inferences from a defendant’s silence while determining
       facts relating to circumstances and details of the crime charged. Id. The Court stated “there
       can be little doubt that the rule prohibiting an inference of guilt from a defendant’s rightful
       silence has become an essential feature of our legal tradition.” Id. at 330. The Court held that
       incrimination is not complete until a sentence has been fixed and the judgment of conviction
       has become final. Id. Therefore, a defendant maintains his fifth amendment right against self-
       incrimination throughout a sentencing hearing, and the court is prohibited from drawing an
       adverse inference from a defendant’s silence regarding the circumstances and details of the
       crime charged. Id. Cases following Mitchell have expressed a limitation on defendant’s right
       to silence at a sentencing hearing; however, a defendant’s right to silence regarding the
       circumstances and details of the crime charged remains intact. See State v. Blunt, 71 P.3d 657
       (Wash. Ct. App. 2003).
¶ 11       The facts of Mitchell are instructive to the present case. There, the defendant pled guilty
       to drug charges. At the sentencing hearing, the State produced evidence regarding the
       quantity of drugs the defendant had possessed. The defendant remained silent and offered no
       evidence. The trial court ruled that as a consequence of the defendant’s guilty plea, she had


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       waived her right to silence with regard to her crime’s details. It therefore used the
       defendant’s silence as a factor in relying on the State’s evidence. In reversing the lower
       court’s decision, the Supreme Court noted that the quantity of drugs possessed by the
       defendant was a detail of the crime charged and that, in using the defendant’s silence as a
       factor in determining a stiffer penalty, the trial court drew an impermissible adverse inference
       from her silence.
¶ 12       Similarly, defendant here was silent with regard to the details of his crime. See 730 ILCS
       5/5-9-1.1(a) (West 2008) (street value fine is determined by the amount seized and the
       current street value of the controlled substance seized). Because those details would result
       in a fine against defendant, they adversely affected him–similar to the longer sentence in
       Mitchell. If we were to construe defendant’s silence as a stipulation, we would be drawing
       the same sort of adverse inference condemned in Mitchell. Therefore, we hold that until the
       judgment of conviction against defendant became final, his silence on matters relating to the
       street value of the drugs could not be construed as a stipulation to the amount.
¶ 13       We further note that finding a stipulation in this case would violate the established law
       of stipulations. A stipulation is an agreement between parties or their attorneys with respect
       to an issue before the court. People v. Woods, 214 Ill. 2d 455 (2005). Similar to a contract,
       a stipulation is interpreted according to the parties’ intent. People v. One 1999 Lexus, VIN
       JT8BH68X2X0018305, 367 Ill. App. 3d 687 (2006). Therefore, to be enforceable, a
       stipulation must be clear, certain, and definite in its material provisions. West v. H.P.H., Inc.,
       231 Ill. App. 3d 1 (1992). Further, it is essential that the stipulation be assented to by the
       parties or those representing them. Village of Schaumburg v. Franberg, 99 Ill. App. 3d 1
       (1981). We can only find a stipulation where it is clear that both parties intended to stipulate
       to a fact. Woods, 214 Ill. 2d 455.
¶ 14       Importantly, in this case the only evidence of intent to stipulate that the State can point
       to is defendant’s silence. Without more, we cannot infer that defendant meant to be bound
       to the State’s opinion regarding the street value fine. To hold otherwise would run afoul of
       the general law of stipulations.
¶ 15       Here, the trial court heard no evidence of the proper street value, and, as we have
       determined, defendant’s silence cannot constitute a stipulation. Therefore, we must conclude
       that the court erred when it assessed a $600 street value fine against defendant. See Lewis,
       234 Ill. 2d 32. The cause is remanded for a proper determination of the street value fine. The
       remainder of defendant’s conviction and sentence is affirmed.

¶ 16                                    CONCLUSION
¶ 17      The judgment of the circuit court of Will County is affirmed in part and reversed in part,
       and the cause is remanded for further proceedings.

¶ 18       Affirmed in part and reversed in part; cause remanded.




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