APPEAL from the Circuit Court of Peoria County; the Hon.
EDWARD HAUGENS, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found guilty of delivery of over 30 grams of a substance containing cocaine in violation of section 401(a)(2) of the Controlled Substances Act (Ill. Rev. Stat. (1975), ch. 56 1/2, par. 1401(a)(2)), and was sentenced to a term of imprisonment for not less than 8 years nor more than 24 years. The issues on appeal are whether the graduated penalty provision of section 401 of the Controlled Substances Act is unconstitutional, whether prejudicial error occurred when the State's Attorney testified for the prosecution, and whether the sentence is excessive.
Briefly summarized, the State's evidence indicated that on November 7, 1973, three IBI agents drove to a motel near Chillicothe, Illinois. The agents were working undercover and had arranged with defendant and Sandra Stevenson, a co-defendant, to purchase a quantity of cocaine. One of the agents wore a transmitting device pursuant to a written request by the State's Attorney of Peoria County. Other law enforcement personnel and the State's Attorney waited in cars near the motel and monitored the conversation. The undercover agents entered a motel room occupied by defendant and Miss Stevenson and negotiated with defendant for the purchase of 5 ounces of a substance containing cocaine. At a pre-arranged signal, the other law enforcement personnel entered the room and effected the arrests.
Defendant testified that he was spending the night with Miss Stevenson in the motel and denied taking any part in the transaction. Defendant claimed that he watched television and that any conversation was between Miss Stevenson and the agents.
Section 401 of the Controlled Substances Act provides in relevant part, that:
"Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this Section with respect to:
(a) the following controlled substances and amounts * * * is guilty of a Class 1 felony * * *:
(2) 30 grams or more of any substance containing cocaine;
(b) any other amount of a controlled substance classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony."
Defendant contends that this statute creates a classification scheme which bears no reasonable relation to the legislative purpose of the Act and violates the due process and equal protection clauses of the United States and Illinois Constitutions by providing for graduated penalties determined by the weight of the substance containing the cocaine rather than the actual quantity of cocaine.
Our Supreme Court recently decided a similar issue in People v. Mayberry (1976), 63 Ill.2d 1, 345 N.E.2d 97. There, defendants challenged sections of the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 701 et seq.) and section 401(a)(5) of the Controlled Substances Act. Responding to the same contention as was raised here, the court stated:
"Our legislature may have believed that any given amount of drug can be distributed to a greater number of people and thus have a greater potential to be harmful if it is mixed with another substance. While the soundness of that belief may be questionable, the determination is one for the legislature to make, and we cannot find that the classification schemes at issue have no reasonable basis." (63 Ill.2d 1, 9.)
The court, citing United States ex rel. Daneff v. Henderson (2d Cir. 1974), 501 F.2d 1180, noted that dangerous drugs are generally marketed in a diluted state, and, therefore, it was not unreasonable for a legislature to deal with the mixture rather than the pure drug.
1 We believe that Mayberry is controlling in the instant case and hold that the classification scheme involved ...