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People v. Bradley

OPINION FILED APRIL 18, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

RODNEY BRADLEY, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOEL NOVAK, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

NANCY A. DALZOTTO, APPELLEE. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

MARSHALL G. OLSEN, APPELLEE.



Nos. 52262, 52263. — Appeal from the Circuit Court of Livingston County, the Hon. William T. Caisley, Judge, presiding.

No. 52411. — Appeal from the Circuit Court of Montgomery County, the Hon. Joseph L. Fribley, Judge, presiding.

No. 52814. — Appeal from the Circuit Court of Cook County, the Hon. Albert Green, Judge, presiding.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

William J. Scott, Attorney General, of Springfield, and Kelly D. Long, State's Attorney, of Hillsboro (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., Gillum Ferguson, and Martin N. Ashley, of the State's Attorneys Appellate Service Commission, of Mt. Vernon, for the People.

John H. Reid, Deputy Defender, and Jeff M. Plesko, Assistant Defender, of the Office of the State Appellate Defender, for appellee.

William J. Scott, Attorney General, of Springfield, and Bernard Carey, State's Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr and Myra J. Brown, Assistant State's Attorneys, of counsel), for the People.

Gregory J. Schlesinger, of Schlesinger & McGann, of Chicago, for appellee.

In each of four criminal cases, consolidated on appeal, a defendant was charged under section 402(b) of the Illinois Controlled Substances Act (the Act) with possession of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b).) In all four cases, the possession charges were dismissed after section 402(b) was found to be unconstitutional and void.

Defendants Rodney Bradley (cause No. 52262) and Joel Novak (cause No. 52263) were charged by indictment in the circuit court of Livingston County. Bradley was charged with unlawful possession of less than 200 grams of plurazepam, a schedule IV controlled substance, and Novak with unlawful possession of phencyclidine (PCP), a schedule III controlled substance. Each defendant moved to dismiss the indictment, and the motions were allowed.

In the circuit court of Montgomery County (cause No. 52411) defendant Nancy A. Dalzotto was charged by a three-count information with (1) driving under the influence of drugs, (2) unlawful possession of a hypodermic needle and syringe, and (3) unlawful possession of phenobarbital, a schedule IV controlled substance. After trial, she was acquitted on the first count and found guilty on the second and third counts. Her post-trial motion to dismiss the charges under the third count — possession of a controlled substance — was granted by the trial court.

In the circuit court of Cook County (cause No. 52814) defendant Marshall G. Olsen was charged by information with four counts of possession: (1) possession of amphetamine, a schedule II controlled substance; (2) possession of cocaine, a schedule II controlled substance; (3) possession of diazepam (Valium), a schedule IV controlled substance, and (4) possession of cannabis sativa. Defendant's motion to dismiss the first three counts was granted by the trial court.

The dismissal of possession charges in each of the above cases was based upon the holding in People v. Natoli (1979), 70 Ill. App.3d 131, wherein the penalty provision for possession under section 402(b), when compared to the penalty provision for delivery under section 401(e) of the Act, was found invalid as it violated the equal protection clause. The State has appealed the four cases directly to this court under Supreme Court Rule 302(a). 73 Ill.2d R. 302(a).

Under section 401(e) of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(e)), delivery of a schedule IV substance is a Class 4 felony which subjects the offender to an indeterminate sentence of 1 to 3 years (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1). Under section 402(b) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)), possession of the same substance is a Class 3 felony which subjects the offender to an indeterminate sentence of 1 to 10 years (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1).

The State contends that the penalties established for violations of the Illinois Controlled Substances Act do not deprive the defendants of equal protection of the law. It argues that all who are found guilty of possessing schedule IV controlled substances are equally subject to the possession penalty (under section 402(b)) and all who are found guilty of the manufacture or delivery of schedule IV controlled substances are equally subject to the delivery penalty (under section 401(e)); that such classification by the legislature, whereunder all within the same class are similarly treated, does not violate the equal protection clause of the United States or Illinois constitutions. Based upon this argument, the State claims that the analysis and rationale of the court in Natoli were inappropriate.

In Natoli, the defendant was convicted of possession and delivery of a schedule IV controlled substance, ethchlorvynol. He was sentenced to 1 to 3 years for delivery, under section 401(e) of the Act, and 2 to 6 years for possession, under section 402(b) of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 1401(e), 1402(b)). The court found that it was irrational to apply a greater statutory penalty for possession than for delivery of the same substance, inasmuch as possession is a lesser included ...


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