it please the court counsel my name is katherine hart and i represent the appellate terry lewis this court has jurisdiction to hear this appeal terry lewis properly and time we filed a notice appeal following his conviction and sentence for possession of a controlled substance his no small peel substantially complied with supreme court rule six of sixty it was to the adams county criminal case number for which he was appealing the name and address of the appellant and the opponents attorney the offense of which convicted the sentence imposed and under the heading nature of order appealed from other than conviction the notice was blank however the only date listed under date of judgment or order was april third two thousand and six the date of the order denying the motion to suppress the dates of conviction and sentence were not listed the street value fine statute reads in part 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 a can of us are controlled substances used in this case the trial court imposed a street value fine with no evidentiary basis requirement for imposing the sentencing fine was not met what makes the failure to follow this mandatory language plain error is the legislature's intent that there must be some evidentiary basis for the imposition of this particular fine the imposition of a street value fine without any evidentiary basis in the record resulted in a fundamentally unfair sentencing hearing misheard what significance does the language of the statute which says testimony as to the amount to such testimony as may be required by the court as to the current street value of the controls of the trial court i definitely most hear as to the amount seized but only to your needs to hear testimony as it would appear that that language is only has the testimony of the street value necessary and here i mean i'm going to have a question for fine such testimony as required or as necessary to determine the value of the drugs that were possessed by the defendant and then the fine is based on the value of those drugs now sometimes there might be something in the record to tell you what the value point point one grams or point five grams of methamphetamine is this much money there's often such testimony in the record somewhere but there was no evidence all the poker cases that have dealt with street value fines where they have found plane air there is often testimony as to the weight of the drugs but there has been no testimony as to the value there's no way to determine the street value is not a metaphor for the stairs you're really deals with the requires such testimony as may be required to determine the value of the drugs and as i just stated a moment ago there is no evidence in the record as to the value of the methamphetamine in this case where you can prevail you we have to impose fines and defendants convicted of certain drug offenses based specifically upon the value of the drugs they were convicted of possessing the fine was intended to be commensurate with the seriousness of the offense likewise plain relief is often commensurate to the error which occurred in this case the relief is a hearing or some testimony to determine the value of point five grams of methamphetamine or vacation of the fine in all of the cases the state cited to argue that this court has found harmless error in cases with mandatory statute language that have lang statutes that have mandatory language there was evidence in the record to support the act which was an error in radio last the juvenile defendant was sentenced to incarceration without a p s i i which is required by statute however in that case the conviction that he the juvenile defendant had required that he purser it in people of the haines where they did not hold the death penalty eligibility hearing this court found that the evidence was overwhelming at trial to show that the defendant in that case was a little the death penalty in people or says jones where there was an apprentice error alleged the defendant alleged that the charging instrument did not allege the victim's age this court found that there was overwhelming evidence at trial that the victim in that case was eighty five in this case there is no evidence in the record to support the action which was an error the imposition of the fine without any evidence as to the value of the drugs in question the conclusion that a trial court's imposition of a street value fin with no evidentiary basis is plain air has long been the case law of the appellate courts of the state the fourth district decision in this case is the first to break with this long line of appellate court cases the fourth district found that the trial court's error was forfeited and if the amount of the fine one hundred dollars maybe arijit minimus and not worthy of plain air review the fourth district rationale in this case is unworkable because there can be no consistency in how it is applied this is clear from the fourth district's recent decision in people versus girl more encounter more the court found there was a breakdown in the adversary system specifically distinguishing lewis because in gal moore the amount of the street fine was larger it was ten thousand dollars instead of one hundred to the defendant terry lewis a scrap dealer and rule adams county one hundred dollars might as well be ten thousand where the fine is on offer an authorized it is immaterial at's correct does the statute mean what the statute says every exception to manage language creates uncertainty in the law the legislative legislature's language in the street value fine statute is not  ambiguous the imposition of the street value fine requires evidence as to the value of the drugs possessed in the instant case the trial court's failure to follow statutorily mandated procedure for determining the street value fine created an unfair court could there be instances where the work would not only are in the over those there could be incidences where there was evidence at some point during the trial a police officer testified you is respectfully request that this court overturn the decision of your poll court finding harmless error and remain on this cause to the trial court for hearing to determine the street value of the drugs in question if this court has no other questions i just have one evidence was no evidence regarding the value of the drugs that there was no evidence i don't know i guess you could couch it as a sufficiency of evidence it's not a question of proof of the charge he had point five grams of methamphetamine that the sentencing statute which mandates that state courts impose a street value fine based on the value of the drugs requires that there be evidence as to the value and there was no evidence to that answer your question if there are no further questions thank you demonstrated any air i with respect to the application of section five nine one point one the trial court heard all the testimony that was required under the statute moreover defendant forfeited the claim  by not raising it and they written a motion within thirty days of the imposition of the fine and finally there's no plane air because the integrity of the judicial process has not been challenge here as a threshold ma regarding the let's start just for america's promise was the with the third point i think your point is that the imposition of one hundred dollars fine in a drug case simply cannot call the integrity of the judicial process be excused avoid future problem of having to review every case to determine whether the fine imposed on that particular case is enough to trigger player one hundred isn't enough but a thousand  maybe yeah i'm not quite sure i understand your question are you asking if there needs to be clear if i sing there's a danger that that will come down to an amount issue purely an amount issue as to whether this plane process is has been challenged here we look at first what was the amount the amount of time was one hundred dollars now that's relevant for a few reasons one here the fine that must be levied by the twenty dollars fifty dollars sixty dollars even if there had been such testimony it would not be outside the mandate of this statute to have given a one hundred dollars fine that's not less than the street value and that again and then you look at the language of what testimony is required the statute is actually pretty clear about the testimony that is required and the stitch the testimony that is left to the discretion of the trial court as to whether it should be and that at that is that that's i mean that this statute was misapplied that this statute was ignored that's a sort of general argument as to the discretion of the trial court and to evidence needed in order to impose the fine that's not that what the statute requires the statute requires testimony as to the amount sees this argument that the trial court should look at what evidence is in the record met maybe there had been various other things  exactly on the street value shall be determined at based on the testimony of law enforcement personnel or the defendant as to the amount seized and as may be required by the choir as to the value so that's it's led to this question of the nothing in the record to indicate that the judges did that but again that's that it's it's a question of what what whether this particular statute here has been violated and it simply has not been because perspective the way of the judge but a street value of a million dollars and then you're say well you know i don't think we'd be here week so my my initial question is there's a second issue is whether you believe it's an important to send a message as to the to the traffic lights and how to conduct the proceedings in this issue and similarly we wouldn't be dealing with the contrary role would also eliminate such appeals and that that the rule that if if the defendant does not object to the street value fine at the time of the hearing then that issue is forfeited and that's not  yes it is important this case is decided because and but but for the reason that these defendants are not complying with section five a one c which requires them to object at the time by they want to see is very clear if you have an objection with that if you if you have a challenge of this fact to the sentence or any aspect of the sentencing hearing you must raise it in a motion with at within thirty days of that sentence being imposed now instance in the alan case this quote how that the failure to hold a mandatory hearing with respect to defendant eligibility for the death penalty was not plain air that did not consequential the integrity of the judicial process sufficiency evidence applies to a conviction the idea of the sufficiency of the evidence rule is that there must there must be sufficient evidence before the court to find that i'll amend of the crime have been committed and there must be sufficient evidence for a reasonable fact finder to find that beyond a reasonable doubt that's what the sufficiency of the evidence for me it's a it's a very specific term of art that's what it means it applies to the elements of the crime and once we get to sentencing there's a completely different analysis there aren't the same protections there's a completely different set of rules with respect to the question terminations so that language doesn't does not apply to this case let's just say drugs is drug value is because there's nothing in the record to support the five thousand dollars and i guess i guess there could be if there are some experts brought in at the time of the motion or affidavits or what have you but why wouldn't there be and i want to point something else so to this greater good thing is not what is being argued for by the defendant i think their position is no matter what the fine is it's not the fine you're looking at it's the integrity of the process that led to the fine so i mean it would seem that part of your argument is based on the fact that well this seems reasonable it's only one hundred dollars fine but there's bigger cases over there early on and that goes to again the general discretion of the quote the quote doesn't the court may not have discretion to apply a street value fine of five thousand a million dollars on point five grams of methamphetamine first of all that's different than arguing that they somehow misapplied the statute and that's important because that goes to whether or not the issue is for the defendant has this claim that because it's a hearing because there's testimony that somehow this statute has excused the forfeiture and the court should look at it  anyway but that's that's simply not the case it's not the real argument here is just what you're saying that there's some kind of discretionary that the court has discretion and that by not having a hearing that's either magically an punitive and with the intent behind the fine and certainly a fine of one hundred dollars is authorized the the the general some they could have said there would be a fine of the street value but no less than one hundred dollars or something like that and which case they would've been perfectly acceptable and not any kind of violation and so by having a fine of one hundred dollars in this case taking into account the language in this case it's there's certainly no question integrity judicial process because i one hundred dollars fine would be permitted with by the statute pretty much whatever the street as i have been doing so in this case the trap quite seemingly was satisfied that the there was a small amount of drugs the value was somewhere between zero and one hundred dollars and therefore i one hundred dollars fine satisfy the statute as being not less than the value in certain cases if there were multiple you know large quantities of various different kinds of drugs obviously that that much these these drugs may have been worth greater numbers in this case i'll bet that the trial court had to have the discretion to do this to find that the street value was somewhere between zero and one hundred and this fine was permitted under the statute  different values and again it goes to the discretion of the truck not as the statute at the discretion of the trial court and here there was a there was a point five grams of methamphetamine that doesn't seem to have been any  disagreement by the parties by the court that the value of that was fairly minimal somewhere less than one hundred dollars one hundred dollars one hundred dollars or less one hundred dollars fine then being appropriate  what it could do how much testimony it should hear under general principles not under the statute but under general principles are you arguing that the fine is a minimum fine and the judge can so says anything above  now if the street value is one hundred dollars and the court puts forward a million dollar fine of ten thousand i find that that might not be within the discretion of the trial court but but the street out of being somewhat variable and having the so by and be set at a far not less than that if it certainly would be within the discretion of a slightly higher fine then if there was you know testimony that it might be have such testimony as may be required by the court as to the country that it specifically puts that in fact by including the sign which the court but the general somebody gave the circuit court more discretion than it then if it said nothing it could have just said you know that there shall be a street value fine equal to the street value this says there must be street by fine and we give discretion to the court as to this following testimony so that's that's what that means it means that i have just two brief points the first one as the statute does say as may be required and all the appellate court cases that have looked at the statute have required that there be some evidence as to value with the exception of the fourth district and lewis but then shortly thereafter within six months they decide gal more where there is evidence at trial that there were eighty three point eight grams of cocaine the state attorney estimates maybe ten ten dollars per gram now that's the state's attorney that's estimating there's no testimony at the trial as to value of the crack and the trial court imposes a ten thousand dollars street value fine and the fourth be anything but it has to be at least the street value even if you win you lose don't you because if this goes back to the problem in the trial court testimony and fires the street value of the fifty dollars the statute is not clear as to how much higher than the street value the fine could be so it's possible but i don't believe that that you would look at it as you would even lose even if you win because the point is that the integrity of the judicial process still needs to be there and that's my second point which is that an unfair sentencing hearing impacts the integrity of the judicial process and an unfair sentencing sentencing hearing is the scenting hearing where a street value fine is imposed without sufficient your earlier question justice park yes there was insufficient evidence as to the value of the drugs and for those reasons this is an issue of plain air and this court should reach it under the plane air the trial court or or here for a hearing with some evidence as to the street value of i guess my question when we reach that point what result would be beneficial some call it to vacated the fines altogether some courts have this court let's say it's ten dollars per gram maybe the fine is only fifty dollars fifty ours may not seem very much to us but for somebody who is a junk dealer scrap dealer in adams county fifty dollars is quite a bit of money so that would be the benefit to the divine the judge joker who was one hundred dollars i believe under the languages statute that it's possible the court could could impose a hundred dollars but typically courts impose around the street value that's the purpose of the statute is that this particular fine there are other fines that are imposed the drug assessment fine this particular fine is specifically meant to penalize a defendant based upon the amount of the drugs they were convicted of possessing thank you