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                                Appellate Court                            Date: 2019.03.26
                                                                           15:38:22 -05'00'




                  People v. Rodriguez, 2018 IL App (3d) 160440



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             RAMIRO RODRIGUEZ III, Defendant-Appellant.



District & No.      Third District
                    Docket No. 3-16-0440



Filed               November 14, 2018



Decision Under      Appeal from the Circuit Court of Will County, No. 15-CF-581; the
Review              Hon. David M. Carlson, Judge, presiding.



Judgment            Vacated and remanded with directions.


Counsel on          James E. Chadd, Peter A. Carusona, and James Wozniak, of State
Appeal              Appellate Defender’s Office, of Ottawa, for appellant.

                    James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
                    J. Robinson, and Gary F. Gnidovec, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                    Justice Holdridge concurred in the judgment and opinion.
                    Justice Schmidt dissented, with opinion.
                                               OPINION

¶1       Defendant, Ramiro Rodriguez III, pled guilty to unlawful possession of a controlled
     substance with intent to deliver. On appeal, he argues the circuit court erroneously imposed a
     $1000 street value fine as part of his sentence. We vacate the fine and remand for an
     evidentiary hearing on the street value of the controlled substance.

¶2                                            FACTS
¶3       On November 12, 2015, defendant pled guilty to unlawful possession of a controlled
     substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2014)). As a factual basis,
     the State averred that officers executing a search warrant found defendant in possession of
     more than “one gram but less than 15 grams of cocaine.” The circuit court sentenced
     defendant to a term of nine years’ imprisonment. In a corresponding written order, the court
     also imposed a number of monetary assessments. These assessments included a $1000
     “Street Value Fine.”

¶4                                             ANALYSIS
¶5       On appeal, defendant contends the imposition of the street value fine was error and
     should be vacated because no evidence was introduced regarding the street value of the
     cocaine he possessed. The State concedes that the record contains no evidence concerning the
     street value of the cocaine and agrees the assessment should be vacated.1 The State argues,
     however, that this court should remand the matter for an evidentiary hearing and reimposition
     of the fine.
¶6       Section 5-9-1.1(a) of the Unified Code of Corrections (Code) (730 ILCS 5/5-9-1.1(a)
     (West 2014)) provides that a fine of not less than the street value of any seized controlled
     substance shall be imposed where a person is convicted under the Illinois Controlled
     Substances Act (720 ILCS 570/410 (West 2014)). The same section of the Code explains that
                  “ ‘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)
     The imposition of a street value fine without any evidentiary basis on the record requires a
     reviewing court to vacate that street value fine. People v. Lewis, 234 Ill. 2d 32, 49 (2009).
     We therefore accept the State’s concession and vacate defendant’s street value fine.
¶7       Next, the State correctly points out that, in Lewis, our supreme court not only vacated the
     fine but remanded the matter for an evidentiary hearing and imposition of a new fine. See id.
     Defendant notes that Lewis was decided prior to People v. Castleberry, 2015 IL 116916.
     Citing both Castleberry and this court’s decision in People v. Wade, 2016 IL App (3d)
     150417, ¶¶ 11-13, defendant argues that a reviewing court may not properly remand for the
     imposition of vacated but mandatory fines.
¶8       Wade has no bearing on this case for two reasons. First, the fines at issue in Wade were
     imposed by the circuit clerk, not the trial judge. Wade, 2016 IL App (3d) 150417, ¶ 5. Here,

        1
         The State also concedes that the issue is reviewable.

                                                   -2-
       the street value fine was not imposed by the clerk but was properly ordered by the trial court.
       There is no disputing the judge in this case had both the necessary jurisdiction and proper
       statutory authority to impose a street value fine. Following the abolition of the void sentence
       rule, the fine imposed by the judge, but erroneously calculated by the court, is not void like
       the fines imposed by the clerk in Wade, but merely voidable. See Castleberry, 2015 IL
       116916, ¶ 11.
¶9          Second, our supreme court’s holding in People v. Vara, 2018 IL 121823, ¶ 23, decided
       after Wade, changed the landscape by holding our reviewing court lacks jurisdiction to even
       review clerical errors as our court did in Wade. Following the holding in Vara, it is
       questionable whether Wade is of any precedential value at this time.
¶ 10        In any event, the street value fine in this case was explicitly ordered by the trial court and
       authorized by statute. The trial court’s error was linked to the court’s arbitrary methodology
       for selecting the value of the contraband on the street without a prior evidentiary hearing
       supporting the amount assessed by the court.
¶ 11        The dissent argues remand in this case is not appropriate. However, many courts have
       adopted an approach of remanding erroneously calculated street value fines to the trial court
       with directions for the trial court to conduct an evidentiary hearing on the correct amount for
       the street value. The courts consistently adopting the approach since 1991 include (1) our
       supreme court, (2) this reviewing court, and (3) every other district of the appellate court.
       Lewis, 234 Ill. 2d at 49; People v Nelson, 2013 IL App (3d) 110581, ¶ 7; People v. Tyson,
       221 Ill. App. 3d 256, 259 (3d Dist. 1991); People v. Gonzalez, 316 Ill. App. 3d 354, 366 (1st
       Dist. 2000); People v. Otero, 263 Ill. App. 3d 282, 287 (2d Dist. 1994); People v. Spencer,
       347 Ill. App. 3d 483, 488, 492 (5th Dist. 2004); see also People v. Watkins, 387 Ill. App. 3d
       764, 767 (3d Dist. 2009) (modifying street value fine on appeal based on evidence adduced at
       trial).
¶ 12        For the reason stated below, we are not willing to adopt a universal approach to set aside
       a street value fine without remand, as the dissent suggests. Such an approach would eliminate
       a valuable source of direct funding for law enforcement agencies and local government that
       is not dependent on the state budget. The street value fine bypasses the state’s budgetary
       process and is distributed directly by the circuit clerk to local law enforcement agencies and
       county government. For example, at least 87½% of the proceeds from a street value fine
       remain local. Significantly, at least 50% of the street value fine is distributed directly to the
       local law enforcement agency or agencies that took part in the seizure. 730 ILCS
       5/5-9-1.2(b), (c) (West 2014). Similarly, 12½% of the fine proceeds are deposited in the
       state’s Youth Drug Abuse Prevention Fund. Id. § 5-9-1.2(a). Finally, any amounts remaining
       after these two allocations will be deposited into the county’s general fund. Id. § 5-9-1.2(b).
¶ 13        Accordingly, based on longstanding precedent originating in our supreme court, we
       vacate the street value fine as incorrectly calculated by the circuit court and remand the
       matter for an evidentiary hearing on the correct street value for the seized narcotics in this
       case and impose a street value fine not exceeding the original $1000 fine.

¶ 14                                      CONCLUSION
¶ 15      The judgment of the circuit court of Will County is vacated, and the matter is remanded
       with directions.


                                                    -3-
¶ 16       Vacated and remanded with directions.

¶ 17        JUSTICE SCHMIDT, dissenting:
¶ 18        We should simply vacate the street value fine and move on to the next case. See Ill. S. Ct.
       R. 615(b)(1), (b)(4) (eff. Jan. 1, 1967). Because there are myriad reasons to not remand the
       case, I respectfully dissent.
¶ 19        The double jeopardy clause prevents a defendant from being retried after a reviewing
       court has found the evidence against him insufficient to sustain a criminal conviction. E.g.,
       Tibbs v. Florida, 457 U.S. 31, 41 (1982). Agreed, the double jeopardy clause generally does
       not apply at sentencing. People v. Levin, 157 Ill. 2d 138, 144 (1993).
¶ 20        We have the discretion not to remand the case, and with the principles underlying the
       double jeopardy clause in mind, remand here seems offensive to legal sensibilities. The Code
       requires the State to prove the precise amount of a controlled substance seized as well as the
       street value of that amount before the street value fine may be imposed. 730 ILCS
       5/5-9-1.1(a) (West 2014). The State addressed the court on two relevant occasions, once in
       delivering the factual basis for defendant’s plea, then again 17 days later at sentencing.
       Neither time did the State offer any of the requisite evidence for the imposition of a street
       value fine. The majority insists that we should remand the matter so that the State may try
       again—or, more accurately, try for the first time. Such a result would be intolerable in the
       trial context; the majority offers no reason why remanding for a second chance here is any
       more palatable. It is not the duty of the appellate court to rescue the prosecution from its own
       errors.
¶ 21        Imagine, if you will, a fine-only case where, on appeal, the only argument was that at trial
       the State failed to prove one or more elements necessary for imposition of the fine. The
       appellate court agrees. Remand to give the State another chance to introduce sufficient
       evidence? No! Not even in the Twilight Zone. While this case is technically different, it
       seems close enough to consider the same principles.
¶ 22        To further illustrate the irrationality of this result, consider the street value fine from the
       perspective of the circuit court. The court presumably knew that defendant would be eligible
       for a street value fine, yet it had not received any evidence regarding the value of the
       controlled substance seized. Surely, the proper course of action in such a situation is to
       simply not impose the street value fine, for lack of any evidentiary basis to do so. Instead, the
       court here, in the majority’s words, arbitrarily selected a figure of $1000 for the street value
       fine. Supra ¶ 10. While the majority seems to condemn this tactic, remand for an evidentiary
       hearing and reimposition of the fine actually serves to reinforce it. A court in this situation
       might as well make up a number for the street value fine; the worst that can happen,
       apparently, is that the case gets remanded and a new fine imposed.
¶ 23        Not only does remanding in this situation push the circuit court to impose an arbitrarily
       calculated fine, it encourages the court to set that arbitrary number quite high. As the
       majority has held here, the court on remand is limited to setting the new street value fine at
       an amount less than or equal to $1000, so that defendant does not incur a larger sentence
       following remand.2 Supra ¶ 13. Thus, the court choosing a number out of thin air in the

           2
            I am not sure if that is correct, but it matters not to the main thrust of my analysis. If the majority is
       correct and if the actual street value exceeds $1000, then the majority is telling the trial court to violate

                                                         -4-
       absence of actual evidence should aim high, so as to not be constrained in the case of a
       remand.
¶ 24       Not least among the practical reasons for not remanding this or similar cases is the
       logistical reality that a remand creates. After a remand, sheriff’s deputies or corrections
       officers will be tasked with transporting defendant from Sheridan Correctional Center to the
       Will County courthouse, then back to Sheridan Correctional Center. In between, defendant
       will sit through a presumably uncontested evidentiary hearing to determine a fine that is
       unlikely to ever be paid. Defendant’s journey, of course, will be funded by the taxpayers.
       Furthermore, deputies/corrections officers will continue to transport all types of felons across
       the state to similar hearings. Each such journey provides the convicted felon the opportunity
       to attempt an escape, or worse. If these deputies/corrections officers are to put their lives on
       the line to transport convicted criminals, the least we can ask is that there be a good reason
       for it. Saving the State from its own mistakes for the remote possibility of collecting a
       modest fine is not a good reason.
¶ 25       I recognize that on similar facts, the supreme court in Lewis, 234 Ill. 2d 32, vacated the
       street value fine and remanded to the trial court for a new hearing. That was in 2009. A lot
       has changed since then, the courts’ budgets not being the least. The cost of remand will no
       doubt greatly exceed any benefit to the State. It may be time to rethink Lewis. There seems to
       be no reason to give the State a second chance to prove the elements necessary for imposition
       of a street value fine. This is not a case where the trial court “miscalculated” the street value
       fine. Rather, the court assessed the fine in the total absence of any evidence. For these
       reasons, I believe a remand constitutes an abuse of this court’s discretion.




       the law by setting the street value fine below that amount required by statute. Do we have the authority
       to tell the circuit court to ignore the law?

                                                      -5-
