APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Robert Wagner was convicted of selling 0.4 grams of a brown powder which he represented to be heroin to an undercover agent of the Illinois Department of Law Enforcement, in violation of section 404 of the Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1404). It was stipulated at trial that in fact the brown powder was neither heroin nor any other controlled substance. The defendant was sentenced to two years in prison. We affirm.
On appeal, defendant contends that the statute under which he was tried and convicted is unconstitutional "as an irrational classification which serves to punish individuals more severely for the delivery of innocuous substances than for the delivery of controlled substances."
Section 404 of the Controlled Substances Act provides as follows:
"Except as authorized by this Act, it is unlawful for any person knowingly to deliver or possess with intent to deliver any substance which he represents to be a controlled substance. Any person who violates this Section is guilty of a Class 3 felony. The fine for violation of this section shall not be more than $15,000."
Conceding that the State possesses a legitimate interest in regulating the distribution and use of controlled substances, the defendant argues that section 404 does not rationally further that purpose and violates the equal protection clauses of the United States and Illinois constitutions. The defendant cites People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407, where the Illinois Supreme Court held that the classification of marijuana with narcotics for punishment purposes was a denial of equal protection, and argues that there is an even clearer distinction between the delivery of a non-controlled substance and a controlled substance than between cannabis and "hard drugs."
The defendant does not contend that the delivery of a non-controlled substance may not subject one to punishment under the criminal law. He argues, rather, that section 404 is constitutionally infirm in that it permits a person who delivers (or possesses with intent to deliver) a harmless substance to be punished more severely than a person who actually delivers a controlled substance. (Compare section 404 with sections 401(e) and (f), making the delivery of Schedule IV and V substances Class 4 felonies for which one convicted may be fined up to $10,000 and $5,000 respectively.) *fn1
The State initially takes the position that the defendant's appeal should be dismissed because of his failure to file a post-trial motion. (People v. Lykins (1979), 77 Ill.2d 35, 394 N.E.2d 1182; People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) It is true that the waiver rule has been applied even where the defendant's challenge to the constitutionality of a statute has been made in the trial court, but not properly preserved for review. (See, e.g., People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353.) Nevertheless, although we have no obligation to do so, we have determined as a matter of grace to review the issue raised on the merits, as the constitutionality of the statute was brought into question and passed upon by the court below. (See People v. Williams (1978), 60 Ill. App.3d 726, 377 N.E.2d 285; People v. Miles (1977), 53 Ill. App.3d 137, 368 N.E.2d 187; People v. Behnke (1976), 41 Ill. App.3d 276, 353 N.E.2d 684; cf. People v. Bratu (1970), 123 Ill. App.2d 92, 259 N.E.2d 598 (constitutionality of predecessor purported-narcotic statute, not raised in trial court, could not be considered on appeal).
On the merits, the State contends that section 404 represents a proper exercise of the police power. It is argued that the delivery of an actual controlled substance may not in all cases be a more serious offense than delivery of a brown powder falsely represented to be a controlled substance, because of the violence that may result when a buyer discovers that he has been cheated. Without such a statute, the State contends, many of the most serious deliveries would escape punishment because of the presecution's inability to establish the nature of the substance beyond a reasonable doubt. Thus, according to the State, the statutory scheme under attack has a rational basis and should be upheld.
A recent decision of the Illinois Supreme Court, handed down after the filing of briefs in the instant case, is dispositive of defendant's argument that section 404 of the Controlled Substances Act violates his equal protection rights. In People v. Bradley (1980), 79 Ill.2d 410, 403 N.E.2d 1029, the court rejected the equal protection analysis of People v. Natoli (1979), 70 Ill. App.3d 131, 387 N.E.2d 1096 (also cited by defendant), where the appellate court had held that a defendant convicted under a statutory scheme providing a greater penalty for possession of a Schedule IV controlled substance than for delivery of the same substance was denied the equal protection of the law. The court in Bradley stated in part:
"The equal protection clause does not deny States the power to treat different classes of persons in different ways. [Citations.] Only `[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and (penalizes) one and not the other' does the equal protection clause come into play. [Citations.] That clause requires equality between groups of persons `similarly situated'; it does not require equality or proportionality of penalties for dissimilar conduct. [Citations.]
The situation in Natoli differs from that in McCabe. In Natoli there was no disparate treatment of `similarly situated' classes of persons. There, the court failed to recognize that, under section 401 of the Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par 1401), all persons charged with the manufacture or delivery of a controlled substance are treated identically. Similarly, under section 402(b) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)), all persons charged with the possession of a controlled substance are treated alike. Therefore, the Natoli court was in error when it concluded that the equal protection clause had been violated.
Sub judice, then, no equal protection violation emerges, for one cannot claim that a defendant convicted of possession is similarly situated to one convicted of delivery. By the very definition of the offenses, those accused of one would be dissimilarly situated from those accused of the other. We conclude that section 402(b) of the Act does not violate the equal protection clause." 79 Ill.2d 410, 416-17.
We conclude that Bradley negates the defendant's equal protection argument. Those who deliver substances purported to be controlled substances are in a different class from those who actually deliver controlled substances. Their conduct is dissimilar; therefore, equality or proportionality of penalties is not required by the equal protection clause. All persons charged with violating section 404 are treated ...