{ "id": 4289310, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNETTE L. McCREARY, Defendant-Appellant", "name_abbreviation": "People v. McCreary", "decision_date": "2009-08-04", "docket_number": "No. 2-07-1047", "first_page": "402", "last_page": "409", "citations": [ { "type": "official", "cite": "393 Ill. App. 3d 402" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "234 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623855 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "46" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0032-01" ] }, { "cite": "313 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186560 ], "year": 2000, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0117-01" ] }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "year": 1997, "pin_cites": [ { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "166 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5073839 ], "year": 1988, "pin_cites": [ { "page": "862, 866" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0861-01" ] }, { "cite": "263 Ill. App. 3d 282", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5368773 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "284" }, { "page": "284" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0282-01" ] }, { "cite": "315 Ill. App. 3d 1100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980693 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1107", "parenthetical": "when issue raised does not require reviewing court to defer to trial court's reasoning, appellate court reviews issue de novo" }, { "page": "1107" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/1100-01" ] }, { "cite": "229 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615113 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "593" }, { "page": "602", "parenthetical": "\"[a]bsent reversible error, there can be no plain error\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0584-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "year": 2007, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "190" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "357 Ill. App. 3d 884", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136746 ], "weight": 10, "year": 2005, "pin_cites": [ { "page": "885" }, { "page": "885" }, { "page": "885" }, { "page": "885" }, { "page": "885-86" }, { "page": "886" }, { "page": "886" }, { "page": "886" }, { "page": "886" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0884-01" ] } ], "analysis": { "cardinality": 699, "char_count": 15499, "ocr_confidence": 0.769, "pagerank": { "raw": 7.380968944999629e-08, "percentile": 0.4422151638956557 }, "sha256": "08df44ee0e23a9de779200b1ce498ce68d008745081edc8ca1b3cfa2d4b069f1", "simhash": "1:ea0a5e806a6b5f65", "word_count": 2581 }, "last_updated": "2023-07-14T17:16:56.365944+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNETTE L. McCREARY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nIn this appeal, defendant, Lynette L. McCreary, takes issue with her street-value fine, her monetary sentencing credit, and her days of sentencing credit. We affirm as modified.\nDefendant was indicted for unlawful possession of a controlled substance with the intent to deliver within 1,000 feet of a school (720 ILCS 570/407(b)(1) (West 2004)) and driving while her driving privileges were revoked (625 ILCS 5/6 \u2014 303(a), (d) (West 2004)). Although both offenses were committed on January 21, 2005, the \u201cMittimus [for] Failure to Give Bail,\u201d which commanded the sheriff of Du Page County to take defendant into custody, is dated January 22, 2005. On February 3, 2005, defendant posted bond.\nDefendant entered an open plea of guilty to both charges on June 2, 2006. The factual basis for defendant\u2019s plea revealed that the police went to defendant\u2019s apartment on January 21, 2005, at 8:30 a.m. to execute a search warrant. Once at the apartment complex, the police saw defendant, whose driving privileges had been revoked, driving away. Defendant was stopped, and, subsequently, her apartment was searched. The police found 15 grams of cocaine and drug paraphernalia in defendant\u2019s home. Defendant was then questioned at 9:20 a.m. After she was advised of her Miranda rights, she advised the police that every week she buys one ounce of cocaine for $700. She then splits that one ounce into smaller bags and sells each bag for $20, $40, or $100. Defendant told the police that, by doing so, she makes a $500 profit. Defendant\u2019s interview with the police ended at 10:32 a.m. The trial court accepted defendant\u2019s guilty plea, finding it knowingly and voluntarily entered and supported by a factual basis.\nAt the sentencing hearing, the officer who interviewed defendant testified about defendant\u2019s drug-selling business. Specifically, defendant told the officer that she had five or six customers to whom she sold cocaine. Defendant indicated that she would buy one ounce of cocaine for $700, sell it in smaller quantities, and make a $500 profit. The officer further intimated that defendant was arrested on January 21, 2005, following the interview.\nDuring closing arguments, the State claimed that defendant was entitled to 13 days of sentencing credit and that the court should impose a $1,500 street-value fine. Defense counsel did not object. The trial court convicted defendant of both offenses; sentenced her to 12 years\u2019 imprisonment on the drug charge; ordered defendant to pay a $1,500 street-value fine; gave her 13 days of credit for time served; and ordered that she receive \u201c$5 credit per day for 13 days already actually served,\u201d which is a monetary credit of $65.\nAlthough defendant moved to reconsider, she did not take issue with her street-value fine, her monetary credit for days served, or her days of sentencing credit. The trial court denied the motion, defendant appealed, and this court remanded the cause for counsel to file a certificate in compliance with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). People v. McCreary, No. 2 \u2014 06\u20140873 (2007) (unpublished order under Supreme Court Rule 23). Although defendant\u2019s counsel filed the proper certificate, a new attorney subsequently appeared on defendant\u2019s behalf and filed a new motion to reconsider. Like in the previously filed motion to reconsider, defendant did not challenge her street-value fine, her monetary credit for days served, or her days of sentencing credit. The trial court denied the motion, and this timely appeal followed.\nOn appeal, defendant challenges her $1,500 street-value fine, her monetary credit for time served, and the 13 days of sentencing credit she received. We first consider whether the imposition of the street-value fine was proper.\nThe State argues that defendant has forfeited the street-value fine issues she raises on appeal, because defendant neither objected to the imposition of the fine at sentencing nor raised the issue in her motion to reconsider her sentence. In making this argument, the State cites People v. Jolly, 357 Ill. App. 3d 884 (2005). In Jolly, the defendant agreed to plead guilty to delivery of a controlled substance, in exchange for the State\u2019s dismissing the other count brought against him. Jolly, 357 Ill. App. 3d at 885. No agreement was made as to the sentence the trial court could impose. Jolly, 357 Ill. App. 3d at 885. The trial court sentenced the defendant to 10 years\u2019 imprisonment and imposed a $100 street-value fine. Jolly, 357 Ill. App. 3d at 885. The defendant subsequently filed various postplea motions; however, he never argued in any of these motions that his street-value fine was improper. Jolly, 357 Ill. App. 3d at 885. Rather, the defendant challenged his street-value fine for the first time on appeal. Jolly, 357 Ill. App. 3d at 885-86.\nThe Appellate Court, Fourth District, concluded that, because the defendant pleaded guilty to the offense that resulted in the imposition of a street-value fine, Rule 604(d) applied. Jolly, 357 Ill. App. 3d at 886. Thus, as the defendant failed to take issue with the street-value fine in the trial court, he forfeited his right to challenge the street-value fine on appeal. Jolly, 357 Ill. App. 3d at 886. In determining that the issue was forfeited, the court refused to follow those cases that addressed, under the plain-error rule, unpreserved claims that a street-value fine was improper. Jolly, 357 Ill. App. 3d at 886. The Jolly court found those cases distinguishable, because they involved street-value fines that were imposed following trials, and, thus, Rule 604(d) had no application. Jolly, 357 Ill. App. 3d at 886.\nWe see a fatal flaw with Jolly in that Jolly suggests that, if a defendant pleads guilty, the plain-error rule does not allow a reviewing court to consider unpreserved arguments raised on appeal. We see no reason why, when it comes to reviewing an unpreserved claim that a street-value fine was improperly imposed, a defendant who pleaded guilty should be treated any differently than a defendant who was found guilty following a trial.\nA defendant who is found guilty following a trial and who fails to preserve an issue he raises on appeal may nevertheless have his claim addressed on appeal if the issue he raises amounts to plain error. People v. Enoch, 122 Ill. 2d 176, 190 (1988). Our supreme court reached this conclusion in Enoch after examining Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). That rule provides that plain errors or defects affecting substantial rights may be reviewed on appeal even when those errors were not brought to the attention of the trial court. 134 Ill. 2d R. 615(a). Nowhere in Rule 615(a) does it indicate that it does not apply to defendants who plead guilty, and we will not so limit the rule. Thus, we consider whether imposition of the $1,500 street-value fine amounted to plain error.\nUnpreserved errors may be considered under the plain-error rule \u201cwhen (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\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). In determining whether the plain-error rule applies, we consider the substance of the defendant\u2019s argument to determine whether error occurred at all. People v. Naylor, 229 Ill. 2d 584, 593 (2008).\nDefendant advances two arguments as to why the street-value fine is improper. She claims that (1) there is no evidentiary basis for any street-value fine; and (2) even if there is some basis to support a fine, the amount should be much less than $1,500. Because defendant\u2019s arguments do not require us to consider the trial court\u2019s reasoning behind imposing the street-value fine, our review is de novo. Chicago Title & Trust v. Village of Inverness, 315 Ill. App. 3d 1100, 1107 (2000) (when issue raised does not require reviewing court to defer to trial court\u2019s reasoning, appellate court reviews issue de novo).\nIn addressing these arguments, we examine section 5 \u2014 9\u2014 1.1(a) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 9\u20141.1(a) (West 2006)), which provides:\n\u201cWhen 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 *** as defined in the Cannabis Control Act [or] the Illinois Controlled Substances Act *** in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.\n\u2018Street value\u2019 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.\u201d\nFirst, we consider whether there was evidentiary support for the imposition of a street-value fine. In resolving that issue, we find instructive People v. Otero, 263 Ill. App. 3d 282 (1994). In Otero, the record contained no evidence of the street value of the cocaine upon which the defendant\u2019s conviction was based. However, the prosecutor incorrectly stated that there was testimony that the street value was $200. Based on that incorrect statement, the trial court imposed a $200 street-value fine. Although the defendant had not properly preserved the error, this court chose to address it under the plain-error rule, reasoning that the fine was \u201cbased on potentially inaccurate information.\u201d Otero, 263 Ill. App. 3d at 284. Observing that \u201cthe due process clause prohibits a court from basing a sentence on inaccurate information,\u201d we concluded that \u201cthe alleged error implicates the substantial rights of defendant and potentially deprived him of a fair sentencing hearing on the fine issue.\u201d Otero, 263 Ill. App. 3d at 284.\nHere, evidence presented at the guilty plea proceeding and at the sentencing hearing revealed that defendant would buy an ounce of cocaine for $700, that she would divide the cocaine into smaller amounts, and that she would sell the cocaine for a $500 profit. At the guilty plea proceeding, it was further revealed that the police found 15 grams of cocaine in defendant\u2019s apartment and that defendant would divide the ounce of cocaine she bought weekly into bags she would sell for $20, $40, and $100 each. Because the price at which a defendant sells drugs is sufficient to establish the street value of the drugs (see People v. Taliferro, 166 Ill. App. 3d 861, 862, 866 (1988)), we cannot conclude that there was no evidentiary support for a street-value fine.\nDefendant also argues, however, that the street-value f\u00edne was erroneous because there was no evidence to establish that the drugs were worth $1,500. As the evidence disclosed, defendant made $1,200 from selling one ounce of cocaine. When the police searched defendant\u2019s apartment, they found 15 grams of cocaine, which is equal to 0.529109 ounces. Given that there are 28.3495231 grams in one ounce, each gram of the cocaine was worth approximately $42.33. Thus, the 15 grams found in defendant\u2019s apartment had a value of $634.95. Nevertheless, imposition of a $1,500 street-value fine was proper, as it was more than the value of the drugs seized. As this court noted in Otero:\n\u201cWe have repeatedly held that, because the statute requires only that the court impose a fine \u2018not less than the full street value\u2019 of the controlled substance seized, it mandates only a minimum street-value fine. [Citations.] Therefore, as long as-the trial court imposes a fine that is not less than the lowest street value evidenced, it has complied with the statute\u2019s mandate.\u201d (Emphasis in original.) Otero, 263 Ill. App. 3d at 285.\nConsequently, imposing a street-value fine of $1,500, which was more than the drugs were worth, was not error, let alone plain error. See Naylor, 229 Ill. 2d at 602 (\u201c[a]bsent reversible error, there can be no plain error\u201d).\nHaving determined that imposition of a $1,500 street-value fine was proper, we next consider whether defendant is entitled to an additional day of credit and, thus, an additional $5 of credit against her fine. Even though defendant failed to take issue -with these credits in the trial court, we may consider the arguments on appeal. See People v. Woodard, 175 Ill. 2d 435, 456-57 (1997). We review de novo whether defendant is entitled to an additional day of credit and whether she should receive an extra $5 credit toward her fine, as, like the street-value fine arguments defendant raised, neither issue requires us to defer to the trial court\u2019s reasoning. Chicago Title & Trust, 315 Ill. App. 3d at 1107.\nA defendant is entitled to credit against his sentence for each day or part of a day spent in jail prior to the imposition of sentence. 730 ILCS 5/5 \u2014 8\u20147(b) (West 2006); People v. Whitmore, 313 Ill. App. 3d 117, 120 (2000). Section 110 \u2014 14(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110 \u2014 14(a) (West 2006)) provides, in pertinent part, that \u201c[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant.\u201d\nThe State concedes that defendant is entitled to the credit she claims, i.e., both an additional day of sentencing credit and a credit of an additional $5 toward her fine. The record supports the conclusion that defendant was in custody for 14 days, from January 21, 2005, to February 3, 2005. Accordingly, pursuant to our powers under Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we modify the mittimus to reflect a credit of $70 toward defendant\u2019s fine and 14 days of credit for the time defendant served in custody before she was sentenced.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Du Page County as modified to reflect a $70 credit and 14 days of credit for time served.\nAffirmed as modified.\nHUTCHINSON and JORGENSEN, JJ., concur.\nRecently, in People v. Lewis, 234 Ill. 2d 32, 46 (2009), the supreme court determined that the trial court erred in imposing a $100 street-value fine where it had no evidentiary basis for the current street value of the controlled substances involved. The court stated that the 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. Lewis, 234 Ill. 2d at 45. The court went on to apply the plain-error doctrine and remanded the cause for imposition of a new fine based on evidence of the street value of the controlled substance.", "type": "majority", "author": "JUSTICE BOWMAN" } ], "attorneys": [ "Thomas A. Lilien and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State\u2019s Attorney, and Lawrence M. Bauer and Barry W Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNETTE L. McCREARY, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 07\u20141047\nOpinion filed August 4, 2009.\nThomas A. Lilien and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State\u2019s Attorney, and Lawrence M. Bauer and Barry W Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0402-01", "first_page_order": 418, "last_page_order": 425 }