*1 unambiguous They terms. contend negate policy’s the effect of trial court could leave policy interpretation adopted by coverage Kays contemplated they receiving them without the were based on Because anti- premiums paid. the risks undertaken and the stacking provisions have been determined not violative of the state’s Il public policy, argument unavailing. the Cannons’ is Grzeszczak v. Co., linois Farmers Insurance 168 Ill. 2d
(1995) (antistacking provisions public policy do not contravene the Illinois). Moreover, claims, contrary to the are not left Cannons’ without compensation Abigail’s injuries Stephanie for and neither nor Felicity, lawsuit, if negligent underlying found in the is left uncovered as coverage provided up limit. We hold that the trial court did in granting summary judgment Progres not err in favor of sive. reasons,
For the foregoing judgment of the circuit court of County La Salle is affirmed.
Affirmed. HOLDRIDGE, JJ.,
LYTTON and concur. ILLINOIS, THE PEOPLE Plaintiff-Appellee, OF THE STATE OF v. IVRAN GALMORE, Defendant-Appellant.
Fourth District No. 4 — 07—0073
Opinion April filed J.,
MYERSCOUGH, dissenting. *2 Appellate Morgan, of State Defender’s Gary and Colleen both R. Peterson Office, appellant. Springfield, for (Norbert Goetten, J. Bi- Rietz, Attorney, J. Robert of Urbana
Julia derman, Ewick, Attorneys Appellate Prosecutor’s all of State’s and Thomas R. Office, counsel), People. for the the of the court: opinion TURNER delivered
JUSTICE defendant, Galmore, guilty Ivran a found In December intent to deliver a controlled possession with of the offense of unlawful defendant to 19 court sentenced January In the trial substance. fine of mandatory street-value years prison imposed in and a ordering in him court erred argues the trial appeal, On defendant remand with direc- fine. vacate and a We pay to tions.
I. BACKGROUND one count defendant on grand jury a indicted September In controlled substance to deliver a with intent possession of unlawful 570/401(a)(2)(A) (West (720 knowingly and 2004)), alleging he ILCS grams or more but intent to deliver 15 with the unlawfully possessed Defendant containing cocaine. of a substance less than 100 guilty. pleaded University jury trial commenced. defendant’s December on patrol he was on Fredrick testified sergeant Aaron police
of Illinois the when he observed 1:40 a.m. approximately August stopped Fredrick stop sign. a disobey driver of a silver Pontiac have his wal- defendant, he did not who stated spoke with vehicle and obtain a reached to him. defendant license on When let or driver’s smelled to the window and moved closer agreement, Fredrick rental his car to returned to Sergeant Fredrick cannabis. odor of unburnt for a canine and called driver’s license of defendant’s status check the dog Roxy around walked his arrived and canine officer unit. The the car. Roxy alerted on advised Fredrick car. He later asked the vehicle and returned to testified he Fredrick Sergeant rolled comply, did not to exit. Defendant passenger defendant and Fredrick speed.” rate of high window, “took off at his and up returned to his vehicle and to caught up stopped defendant’s vehicle. Defendant opened running.” the door and “took off Fredrick observed carrying defendant a “black case” that “looked like a wallet.” jumped Defendant a fence but dropped stopped case. As defendant case, caught look for the Fredrick toup Thinking him. defendant dropped his wanting get physical wallet and not into a confronta- tion, Fredrick attempted to stall and make with conversation him. Defendant running found the case and took off before getting stuck between a fence and a ramp. gave Fredrick defendant a burst of pep- per spray. Defendant then disappeared courtyard. into a
As Fredrick continued courtyard, into the defendant ran at him and struck pepper him. Fredrick sprayed again defendant and saw “something fly up into the air.” Defendant disappeared. took off and Fredrick hiding found him porch underneath the front of a residence. After Fredrick threatened dog, to release the defendant crawled out from under the porch and was taken into custody.
Fredrick did not find any contraband on person defendant’s did not see the case under the porch. Officers retraced path (CD) pursuit foot and found compact a black disc containing case suspected crack cocaine. Fredrick recovered 50 individual rocks of crack cocaine. He testified crack typically cocaine is consumed rocks. Based training on his experience, packaged rocks were for sale.
University of Illinois police officer Douglas Beckman testified his dog Roxy alerted to the black opened up CD case. Beckman the case and found a package with a large amount of crack cocaine. He stated the crack appeared cocaine packaged to be for sale experi- and from his Baggies ence the sell apiece. for to $20 $30
Hope Erwin-Sipes, Police, a forensic scientist with the Illinois State testified she conducted tests on chunky a substance in two of the State’s exhibits. Exhibit 1 plastic No. contained 22 bags containing a chunky substance weighing grams. 54.7 Her test grams of 13.9 substance presence indicated the of cocaine base. 2 Exhibit No. bags contained 28 of a chunky weighing substance 29.1 grams. Her test grams of 10.6 of the substance presence also indicated the of cocaine base.
Defendant testified on his own behalf. He stated he fled because he had a previous driving conviction for while intoxicated and did not want to go jail. to He testified none of the packages belonged of cocaine to him.
Following closing arguments, the guilty. found defendant Thereafter, defendant filed or, a motion for a new trial in the alterna- tive, a judgment verdict, notwithstanding the which the trial court denied.
534 years 19 defendant to 2007, trial court sentenced January the $3,000 mandatory assessment a imposed The court also prison. in the value prosecutor court asked the fee of a crime-lab When $100. occurred: fine, following exchange mandatory street-value of recommend Judge, we would “MS. CARLSON: discretionary with the court? is that Okay.Now THE COURT: the sum and the court to take Judge, it is for MS. CARLSON: fast and gram. That was [a] multiply per [one-tenth] it frankly benefitted my part that math on probably inaccurate a [one-tenth] of grams times 83 defendant at gram. —83.8 mandatory right. Ten[-]thousand[-]dollar All THE COURT: fine.” street[-]value appeal
This followed.
II. ANALYSIS him to ordering pay court erred argues the trial Defendant supported that amount. fine, no evidence claiming agree. We on argument forfeited his argues defendant
Initially, State hearing and did sentencing object at the he failed to appeal because object at By failing to motion. postsentencing in a raise the issue mo postsentencing in his his claim hearing preserve or sentencing People v. appeal. on See argument tion, forfeited this defendant has (2005); 353, see also Beard, Ill. 318, 324 272, 279, 838 N.E.2d Hestand, post- in a (2005) (a raise the issue at trial and object must defendant appeal). review on the issue for preserve trial motion pursu- issue consider this Defendant, however, this court to asks rule. the plain-error ant to “ ‘ not raised at an error court can correct appellate an “[B]efore (3) (2) (1) that ‘af ‘error,’ ‘plain,’ that is trial, must be there ” are “If three conditions all rights.’ [Citation.] substantial fect[s] notice a its discretion may then exercise met, appellate an (4) the fair seriously affect[s] error error, only if but forfeited ness, ’ ” judicial proceedings.” reputation integrity, public or (2001), 1117, 348, 335, N.E.2d Ill. 2d Crespo, 152 L. Ed. Cotton, 535 U.S. United States quoting v. United Johnson quoting 122 S. Ct. 718, 727, 117 S. Ct. L. Ed. 2d States, 520 U.S. *4 (1997). 901, 909-10 1, 17, 660 N.E.2d Keene, 2d 169 Ill. v. See also only occurs (1995) (“Plain [un]fairness’ ‘fundamental by marked error as adversary system,’ in the ‘reveal breakdowns which in situations [Citation.]”). mistakes.’ trial ‘typical from distinguished Here, disparity the street-value fine with the offic gross showed a ers’ testimony as to the amount and street value of the recovered Further, accepted contraband. the trial court the State’s formula that testimony. bore no relation to the sworn reveals As this situation “a adversary system,” breakdown we will review the issue. We note other applied plain-error involving courts have rule in cases the propriety of the trial court’s of imposition a street-value fine. See People Gonzalez, 354, 364, v. App. 316 Ill. 736 N.E.2d (2000) (plain-error exception applies issue the correct amount fine); Otero, of street-value (1994).
N.E.2d We also note this recently imposition held the of a street- value fine plain without evidence did not constitute error. See People (2008). Lewis, 379 Ill. App. 3d 883 N.E.2d However, that case involved stipulated imposi bench trial and the tion of a fine. The $100 street-value evidence in the trial in this case came Further, nowhere near the amount of the fine. the amount by prosecutor advocated support found no in the evidence. The amount of the fine here simply cannot be brushed aside as a typical mistake, trial and we find Lewis distinguishable such that consider ation of the street-value fine imposed appropriate plain- under the error doctrine. 9—1.1(a)
Section provides, Unified Code of Corrections 5— in part, as follows: person
“When a adjudged guilty drug[-]related been of a of- fense involving possession delivery or possession of cannabis or or *** delivery substance, of a by controlled a fine shall be levied court at not less than the full street value of the cannabis or controlled substances seized.
’Street value’ shall be determined the court on the basis of testimony law[-]enforcement personnel and the defendant as to the amount testimony may required by seized and such be court as to the current street value of the cannabis or controlled 9—1.1(a)(West2006). substance seized.” 730 ILCS 5/5— The trial court’s determination of the amount of the street-value fine must be based on “some evidentiary People Spencer, concrete basis.” (2004). only the case sub judice, testimony from law-enforcement personnel indicated the 50 rocks of crack cocaine have sold on would Thus, the street for only each. the State’s evidence would $30 supported have a street-value fine between At the sentencing hearing, prosecutor claimed the fine was determined by multiplying gram. tenth of a The State offered no support
536 the street-value fíne. determining the amount of for this method case, only the fine would Moreover, recovered in this with 83.8 amount to by the
Here, $10,000 supported street-value fine was not than the may impose greater a fine “[E]ven evidence. if the court substance, nevertheless legislature illegal actual value of the evidentiary have some concrete sentencing intended for the court to 287, at 1076. Otero, 263 Ill. 3d at 635 N.E.2d App. for the fine.” basis testimony evidence from the trial Although may adopt a court “reliable 287, (Otero, at 635 App. value” 263 Ill. 3d determining a basis for the street- 1076), the trial court determined N.E.2d at it is unclear how $10,000 figure. the State’s accepting in this case other than value fine fine and remand street-value Accordingly, we must vacate amount appropriate hearing the cause for a to determine impose.
III. CONCLUSION fine stated, trial court’s street-value we vacate the For the reasons remand with directions. and remanded with directions. Vacated KNECHT, J., concurs. MYERSCOUGH, dissenting:
JUSTICE objection his Defendant has forfeited respectfully I dissent. fine does not fine, the street-value imposition majority court, a member of the including This plain error. constitute 336, Lewis, App. 379 Ill. 3d dissenter, so held. previously and this 883 N.E.2d fine the street-value object did not sentencing, defendant
At Attorney. Nor did defendant State’s by the assistant recommended 5—8— by section motion as directed posttrial in a any objection raise 1(c) of Corrections: of the Unified Code any or to of a sentence to the correctness challenge
“A defendant’s
motion
by a written
hearing shall be made
sentencing
aspect of the
of sentence.” 730
imposition
days following
filed within 30
2006).
(West
8—1(c)
ILCS 5/5—
1104,
403
872 N.E.2d
App. 3d
373 Ill.
People Montgomery,
v.
See
(1997); People v.
389,
Reed,
686 N.E.2d
(2007);
177 Ill. 2d
People v.
Brown,
(2007);
N.E.2d 397
3d
App.
374 Ill.
Jolly,
Sinnott, 226 Ill.
(1993); People v.
610 N.E.2d
App.
242 Ill.
(1992).
923,
A full-blown
every
Otero,
282, 287,
case.
(1994).
parties may
The
in fact
to the street
stipulate
Otero,
effect,
value.
before the their virtually declarations are made under oath.” Arkansas, Holloway 426, 435, 435 U.S. 55 L. Ed. 2d 98 S. Brazile, Ct. quoting State v. 226 La. (1954). Further,
So. 2d 860-61 Attorney an assistant State’s personnel” “law[-]enforcement upon whom the court relies for *6 substantial information and who has “sup- taken an oath of office to port the constitution of the United States and the constitution of the state of Illinois” and to “faithfully discharge the duties office of attorney and counselor at ability.” law to the best of [his] 705 ILCS (West 2006). 205/4
More important, no plain error occurred here. The trial court is not limited to imposing only the street-value fine but impose must no less than the full street-value fine. Any amount in excess would be reviewed on appeal discretion, for an abuse of clearly, plain-error review. Additionally, the specifically statute states street value shall be determined “such testimony may be required by the court.” 730 9—1.1(a) (West 2006). ILCS Certainly, this issue is a discretion 5/5 — ary one for the plain error, here, court and not especially where had defendant raised this court, issue in the trial the trial court could have addressed objection. defendant’s People Allen,
“In supreme explained plain-error ‘[t]he as follows: doctrine “ is not general saving ‘a preserving clause for review all errors af fecting rights substantial whether brought or not have been ” the attention of the Instead, trial court.’ [Citations.] it is a nar ” row exception and limited general rule of forfeiture.’ Montgomery, 3d at 872 N.E.2dat 419. Finally, presented here, valuation evidence was both at trial and through the assistant Attorney sentencing, upon State’s and based the court’s experience presiding cases, over per one-tenth of a gram of cocaine an acceptable was valuation. The fact the officer testi- fied typically cocaine is necessarily consumed in rocks is not contradictory of Presumably, that valuation. the trial court saw the crack cocaine and accept decided to the assistant Attorney’s valuation. and would affirm reasons, disagree majority I with the
For these the trial court. Involuntary P., Subject to Authorized Found re DENETRA a Person (The Illinois, Petitioner-Appellee, v. Denetra People of the State
Treatment
P.,Respondent-Appellant). No. 4 — 07—0372 Fourth District 7,May Opinion filed