Find Legal Information

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

The defendant, Robert H. Spencer, was convicted of one count of unlawfulmanufacture of a controlled substance (720 ILCS 570/401(a)(6.5)(B) (West 2000)). The trialcourt sentenced him to 12 years in prison and imposed a $3,000 drug assessment, a $200street value fine, a $100 trauma fine, and a $100 crime lab fee. On appeal, the defendantcontends that (1) the State failed to lay a sufficient foundation for a forensic scientist'stestimony that the substance he tested contained methamphetamine, (2) the court improperlydetermined the street value of the seized methamphetamine without evidence of its value, and(3) the court erred by failing to apply a $5-per-day credit against the defendant's fines. Weaffirm the defendant's conviction, but we vacate his street value fine and remand for furtherproceedings consistent with this order.

On July 5, 2001, Montgomery County sheriff's deputies went to the home of DavidLowis to execute arrest warrants for Adam Lowis (David Lowis's son) and Joe Brown (DavidLowis's girlfriend's brother). Three officers entered David Lowis's house and three entereda trailer parked on the property. The defendant answered the door of the trailer. He waswearing latex gloves. The officers found equipment indicative of methamphetaminemanufacture. The officers seized ingredients and objects used in the manufacture ofmethamphetamine that they found on the property. Among the items of evidence seized werea wad of coffee filters (which became People's Exhibit 17 at the trial) and a glass jarcontaining a clear liquid (a sample of which became People's Exhibit 18).

On September 13, 2001, the defendant was indicted on one count each of criminaldrug conspiracy (720 ILCS 570/405.1 (West 2000)), possession of a controlled substancewith intent to deliver (720 ILCS 570/401(a)(6.5)(B) (West 2000)), unlawful possession ofa controlled substance (720 ILCS 570/402(a)(6.5)(B) (West 2000)), and unlawfulmanufacture of a controlled substance (720 ILCS 570/401(a)(6.5)(B) (West 2000)). He wastaken into custody on September 17. On September 27, the defendant posted a $25,000 bondand was released.

On March 7, 2002, the defendant was arrested for possession of methamphetaminein Shelby County. As a result, on March 28, the State filed a petition to increase the amountof his bond. On April 1, the trial court raised the defendant's bond to $100,000 but releasedhim on his own recognizance with the condition that he enter a residential drug-abuse-treatment program. On April 8, the defendant was released from a detoxification programuntil a bed became available. A docket entry indicates that he was to be held on a $100,000bond. On April 19, a bed became available at Our House, a residential drug-rehabilitationprogram in Charleston, Illinois, and the defendant was released so he could enter thefacility's treatment program.

On May 13, 2002, the probation officer assigned to monitor the defendant'scompliance with the terms of his bond notified the State's Attorney's office that the defendanthad left Our House. On May 23, the State filed another motion to increase the defendant'sbond, on the basis that he had failed to comply with the conditions of his earlier bond. Thedefendant was taken back into custody on May 28, and the court granted the State's motionand increased the defendant's bond to $200,000 on June 3.

On July 1, 2002, the defendant pleaded guilty in the Shelby County case andimmediately began serving a one-year sentence in the Department of Corrections (DOC). The defendant's trial in this matter took place over two days, on July 8 and 9, 2002. The jury returned a verdict of guilty on all four charges; however, the trial court entered ajudgment of conviction only on the count for unlawful manufacture of a controlled substance(720 ILCS 570/401(a)(6.5)(B) (West 2000)). At the August 27 sentencing hearing, the courtheard arguments regarding the proper amount of sentence credit the defendant was to receivefor his time in pretrial detention. The State argued that he was entitled only to 62 days hehad spent in jail before pleading guilty to the Shelby County possession charge, while thedefendant contended that he was entitled to sentence credit for the entire 110 days he hadbeen in custody prior to receiving a sentence in the instant case. On August 30, 2002, thetrial court sentenced the defendant to 12 years' imprisonment in the DOC, with 62 days'credit. The court also imposed a drug assessment of $3,000, a street value fine of $200, acrime lab fee of $100, and a trauma fine of $100. The court did not apply a sentence creditof $5 per day to any of these fines. The defendant filed a motion to reconsider his sentenceon September 4, 2002, which the court denied. He then filed the instant appeal.

The defendant contends that the State failed to lay a sufficient foundation for thetestimony of forensic scientist Michael Cravens that People's Exhibits 17 and 18 containedmethamphetamine. Although he failed to object to the testimony at the trial, the defendanturges us to consider the insufficient foundation under the plain error doctrine. We declineto do so.

At the trial, Cravens identified People's Exhibit 18 and testified that he had performedinfrared spectra photometry and gas chromatography/mass spectrometry (GCMS) tests onthe clear liquid. These tests indicated the presence of methamphetamine in the liquid. Likewise, Cravens identified People's Exhibit 17 and testified that he had performed aGCMS test on a rinse he had made by dissolving portions of the coffee filters in methylalcohol. The result indicated the presence of methamphetamine on or in the filter paper. Cravens testified that he knew the results of his testing to be accurate "from the resultsobtained from matched existing standards of moleculars." Although he testified that thesestandards are reasonably and generally relied upon by experts in his field, he did not testifythat the tests he performed were themselves reasonably and generally relied upon by expertsin forensic science. Nor did Cravens testify that the equipment he used in performing thetests had been properly calibrated or tested.

The proponent of the testimony of an expert witness such as Cravens must show thatthe facts or data on which the expert's opinion is based are of a type reasonably and generallyrelied on by experts in the same field. People v. Bynum, 257 Ill. App. 3d 502, 513, 629N.E.2d 724, 732 (1994). In addition, where expert testimony is based on a mechanical orelectronic device, the expert must offer some foundational proof that the device wasfunctioning properly when it was used. Bynum, 257 Ill. App. 3d at 514, 629 N.E.2d at 732. Had the defendant objected to Cravens' testimony that the substances he tested containedmethamphetamine, admitting the testimony without further foundational testimony wouldhave constituted reversible error.

The defendant, however, did not object. Ordinarily, a party that fails to raise an issueby a timely objection at the trial waives that issue on appeal. People v. Enoch, 122 Ill. 2d176, 186, 522 N.E.2d 1124, 1130 (1988). By failing to object, the defendant deprived theState of an opportunity to correct the problem by simply asking Cravens additional questionsto lay a full and proper foundation for his testimony. Because an objection for aninsufficient foundation is so easily cured, Illinois courts have repeatedly held that the waiverrule is particularly appropriate where a defendant argues that the State failed to lay asufficient foundation. People v. Rodriguez, 313 Ill. App. 3d 877, 887, 730 N.E.2d 1188,1196 (2000); Bynum, 257 Ill. App. 3d at 514-15, 629 N.E.2d at 732.

The defendant, however, attempts to couch his argument in terms of the sufficiencyof the evidence. As he correctly notes, a defendant cannot waive an objection to thesufficiency of the evidence. See People v. Hall, 194 Ill. App. 3d 532, 535, 551 N.E.2d 763,765 (1990). We find his argument unavailing. The instant case is virtually indistinguishablefrom Bynum. There, an Illinois State Police forensic scientist failed to testify that theinstruments she had used to test a substance confiscated from the defendant were properlycalibrated or that the types of tests she had conducted were reasonably and generally reliedon in her field. Bynum, 257 Ill. App. 3d at 514, 629 N.E.2d at 732. There, as here, in orderto obtain a conviction the State was required to prove that the substance was, in fact, acontrolled substance. However, given the ease with which the State could have corrected theproblem by asking additional foundational questions, the Bynum court found the issue to bewaived by the defendant's failure to object on the proper grounds. Bynum, 257 Ill. App. 3dat 515, 629 N.E.2d at 733. We likewise conclude that the defendant here has waived thisargument by his failure to object to Cravens' testimony at all.

The defendant contends that the trial court erred in setting his street value fine at $200without any evidentiary basis. The State counters that the defendant has waived this issueon appeal by failing to object at the sentencing hearing and that the defendant stipulated tothe value. We agree with the defendant.

On August 29, 2002, the trial court entered an order that stated, in relevant part:

"Pursuant to the stipulation by the State and the defendant of the testimony ofthe law enforcement officer in regard to 'street value', a statutory fine of $200pursuant to this section [(730 ILCS 5/5-9-1.1 (West 2000))] is assessed as part of thejudgment order in this cause ***."

However, neither a formal stipulation nor any law enforcement testimony regarding the streetvalue of the seized methamphetamine appears in the record. It appears, rather, that the courtaccepted the State's contention at the sentencing hearing that $200 represented theappropriate fine.

The defendant offered no evidence or argument pertaining to the street value of themethamphetamine and did not object when the court set the fine at $200. Those Illinoiscourts to consider analogous situations have universally concluded that the failure to supporta street value fine with any evidentiary basis constitutes plain error. People v. Gonzalez, 316Ill. App. 3d 354, 364, 736 N.E.2d 157, 165 (2000); People v. Simpson, 272 Ill. App. 3d 63,66, 650 N.E.2d 265, 267 (1995); People v. Otero, 263 Ill. App. 3d 282, 284, 635 N.E.2d1073, 1075 (1994). This is because the legislature intended for courts to impose the finewith some concrete evidentiary basis. Otero, 263 Ill. App. 3d at 287, 635 N.E.2d at 1076. Thus, where the fine is set with no such evidentiary basis, the court does not comply withthe mandate of the statute. Simpson, 272 Ill. App. 3d at 66, 650 N.E.2d at 267. We thereforevacate the defendant's street value fine.

The trial court gave the defendant 62 days of credit towards his prison sentence, forthe time he spent in pretrial detention prior to serving his sentence for the Shelby Countymethamphetamine possession charge. He did not receive any credit against his fines. Thedefendant contends that he is entitled to a $5-per-day credit for the entire time he wasincarcerated prior to the sentencing on the instant charge. The State concedes that thedefendant is entitled to a $5-per-day credit against his fines, and we agree. See 725 ILCS5/110-14 (West 2000) (a defendant incarcerated on a bailable offense for which he does notpost a bond is entitled to a credit of $5 per day against any fine imposed for the offense);People v. Stevens, 125 Ill. App. 3d 516, 519, 466 N.E.2d 296, 298-99 (1984) (sentencecredits are applicable both to the prison term and any fines imposed). The State contends,however, that he is entitled only to 62 days of credit.

In People v. Robinson, 172 Ill. 2d 452, 454, 667 N.E.2d 1305, 1306 (1996), theIllinois Supreme Court was called upon to determine whether a defendant who commits acrime while out on bond awaiting a trial on a previous charge is entitled to in-custody creditagainst both sentences for the time he was simultaneously in pretrial detention on bothcharges. Although the issue with which the court was confronted was whether the defendantcould receive credit against both sentences for the same period of time, the court analyzedwhen the defendant was in pretrial custody on the first charge in order to answer thatquestion. Thus, we find its analysis dispositive of the issue before us.

The relevant facts in Robinson were nearly identical to those in the case at bar. There,the defendant was arrested for armed robbery and taken into custody while he was out onbond awaiting a trial on murder charges. Robinson, 172 Ill. 2d at 454-55, 667 N.E.2d at1306. The State filed a petition to increase his bond in the murder case, which the trial courtgranted. On January 21, 1988, five days after he was incarcerated as a result of the armedrobbery charge, the defendant surrendered in exoneration of the bond previously posted forthe murder charge. Robinson, 172 Ill. 2d at 455, 667 N.E.2d at 1306. On April 17, 1991,he pleaded guilty to the armed robbery charge and began serving a sentence for it that day. Because he received credit for the period of time he had spent in pretrial custody, hecompleted his armed robbery sentence on June 21, 1991. Robinson, 172 Ill. 2d at 455, 667N.E.2d at 1306. At that time, he filed a motion to reduce his bond on his still-pendingmurder charge, which was granted. On July 25, 1991, he posted a second bond and wasreleased. Robinson, 172 Ill. 2d at 455, 667 N.E.2d at 1306.

The supreme court framed the issue before it as "the basis of [the] defendant's custodyfrom January 21, 1988, through April 17, 1991." Robinson, 172 Ill. 2d at 458, 667 N.E.2dat 1308. That was the time period during which his bond in the murder charge had beenrevoked and he was in prison awaiting a trial on both charges. Whether he was in pretrialdetention on the armed robbery charge was not at issue; he had already received creditagainst his armed robbery sentence for this period of time. See Robinson, 172 Ill. 2d at 455,667 N.E.2d at 1306. Rather, the supreme court had to determine whether he was also incustody on the murder charge during the relevant period. In concluding that he was, thecourt explained:

"[W]hen a defendant is out on bond on one offense and is subsequently arrested ona second offense, that defendant is returned to custody on the first offense when hisbond is withdrawn or revoked. [Citation.] When that event occurs, the defendant isthen considered to be in simultaneous custody on both charges. [Citation.]

*** [W]e believe that we must acknowledge the reality of [the] defendant'ssurrendering in exoneration of his first bond. Even if [the] defendant had not beenincarcerated on the armed robbery charge, he would have remained in custody on themurder offense as a result of his failure to post bond." (Emphasis added.) Robinson,172 Ill. 2d at 459, 667 N.E.2d at 1308.

The State relies upon language in Robinson-pointing out that the defendant there "wassimultaneously in pretrial custody" on two charges-to argue that the defendant in this caseis not entitled to a credit for the period during which he was serving his sentence for theShelby County methamphetamine possession charge. See Robinson, 172 Ill. 2d at 459, 667N.E.2d at 1308. The State is correct in contending that once the defendant was sentencedto one year in prison for the Shelby County charge on July 1, 2002, he was no longer inpretrial detention for that charge. The issue, however, is not his status in the Shelby Countycase; rather, the issue is whether he remained in custody on the charges in the instant case. We hold that he did.

In Robinson, the supreme court noted that the defendant had spent a total of 1,282days in custody between January 21, 1988, the date he surrendered in exoneration of theoriginal bond in his murder case, and July 25, 1991, when he was again released on bondfollowing the completion of his armed robbery sentence. Robinson, 172 Ill. 2d at 455, 667N.E.2d at 1306. That included the period of time when he was serving the sentence forarmed robbery and the period during which he was awaiting a trial on both charges. Although the court's focus, as we have noted, was on the period during which he wasawaiting a trial on both charges, the court concluded that he was entitled to a sentence creditfor the entire 1,282 days. Robinson, 172 Ill. 2d at 463, 667 N.E.2d at 1310. The courtreached this result without discussion. We note, however, that the court's rationale logicallyapplies with equal force to his entire detention-that is, were the defendant not in prisonserving his sentence for the subsequent charge, he would still remain in custody on theoriginal charge for the failure to post bond. Thus, he was in pretrial detention on the firstcharge while simultaneously serving the sentence for his second. Similarly, were thedefendant in this case not serving his sentence for possession in the Shelby County case, hestill would have remained in custody as a result of his failure to post a bond in theMontgomery County case. Therefore, as the defendant points out, he would have beenentitled to a sentence credit for the contested period if his sentence in this case were to beserved concurrently with his sentence in the Shelby County case. See People v. Plair, 292Ill. App. 3d 396, 401, 686 N.E.2d 28, 33 (1997) (finding Robinson's conclusion that adefendant may receive credit against two sentences for time spent simultaneously indetention on two charges inapplicable to concurrent sentences).

This court has applied the rationale of Robinson to determine the amount of credit tobe applied against a defendant's fines. People v. Finley, 293 Ill. App. 3d 377, 388, 687N.E.2d 1154, 1161-62 (1997). The State contends that Finley was wrongly decided and asksus to overrule it. We disagree and decline to do so. As the State points out, the $5-per-daysentence credit is applicable only for time spent incarcerated on a bailable offense. 725 ILCS5/110-14 (West 2000). Once a defendant is sentenced and begins to serve his sentence, heis no longer incarcerated on a bailable offense. However, the State's argument overlooks thefact that the defendant would be entitled to no credit at all against his fines in the instant casewere he incarcerated solely on the Shelby County charge. See Robinson, 172 Ill. 2d at 458-59, 667 N.E.2d at 1308 (noting that a defendant who is incarcerated upon arrest for asubsequent charge committed while on bond from an earlier offense is not returned tocustody on the original charge until the bond on that charge is revoked or surrendered). Theonly basis for the defendant's eligibility for the credit is the fact that he was in custody onthe instant charge during the relevant time period. The instant offense did not cease to bea bailable offense until the Montgomery County court sentenced the defendant on August30. Because, as the defendant points out, no fines were assessed against him in the ShelbyCounty case, the concerns this court expressed in our interpretation of Robinson in Plair arenot implicated here. See Plair, 292 Ill. App. 3d at 401, 686 N.E.2d at 33 (allowing sentencecredit against consecutive sentences for the same time period "essentially allows a defendantto receive credit for double the amount of time served and converts much of a consecutivesentence into a concurrent one"). Thus, the defendant is entitled to a $5-per-day credit forthe entire period of time he was in custody awaiting the trial and the sentencing in this case,including the period during which he was serving his sentence in the Shelby County case.

As noted, the trial court gave the defendant a sentence credit for 62 days he spent incustody up to and including July 1, 2002, the day he pleaded guilty and began serving hissentence in the Shelby County case. The defendant contends that he is entitled to a total of110 days of credit, including the time he spent in custody on the instant charges whilesimultaneously serving his Shelby County sentence. We are unsure how the trial court orthe defendant arrived at these figures.

We conclude that the defendant is entitled to 124 days' sentence credit. Thepresentence investigation report shows that the defendant was in custody for the followingperiods for this offense:

9/17/01 through 9/27/01 (11 days)

4/08/02 through 4/19/02 (12 days)

5/28/02 through 8/27/02 (92 days)

This totals 115 days. In addition, the trial court, at the sentencing hearing, properly awardedthe defendant an additional nine days' credit for time in custody on the original charges forthis offense (No. 01-CF-119; July 5, 2001, through July 13, 2001). Thus, he is entitled toa total credit of 124 days, which results in a reduction of $620 against one of his fines.

For the foregoing reasons, we affirm the defendant's conviction, but we vacate hisstreet value fine and remand this cause to the trial court with directions to determine thestreet value of the methamphetamine and apply the $5-per-day credit to that fine or thedefendant's drug assessment, in accordance with this opinion.

Affirmed in part and vacated in part; cause remanded with directions.

HOPKINS and WELCH, JJ., concur.