APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Champaign County, the court entered judgment on the verdict finding defendant, Charles Yettke, guilty of the offenses of unlawful possession with intent to deliver more than 30 grams of a substance containing cocaine and the unlawful possession with intent to deliver more than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1401, 705, respectively.) On January 29, 1980, defendant was sentenced to 10 years' imprisonment for the cocaine offense and 5 years for the cannabis offense, sentences to run concurrently.
On appeal defendant contends that the system of the Controlled Substances Act classifying the severity of cocaine offenses (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401) denies equal protection of laws. He also asserts that the trial court erred in (1) denying his motion to suppress evidence, (2) allowing the State to amend the information after the close of the case, (3) submitting to the jury verdict forms which precluded the jury from determining a material element of the case, and (4) refusing to instruct the jury on included offenses. Finally, he maintains that regardless of the propriety of his conviction, he is entitled to a new sentencing hearing.
The principal issue in the case concerns the classification system for cocaine offenses. In relevant part, section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401) states:
"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, notwithstanding any of the provisions of subsections (b), (c), * * * is guilty of a Class X felony. The fine for violation of this subsection (a) shall not be more than $200,000;
(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. The fine for violation of this subsection (b) shall not be more than $25,000;
(c) any other amount of a controlled substance classified in Schedule I or II which is not a narcotic drug is guilty of a Class 3 felony. The fine for violation of this subsection (c) shall not be more than $20,000." (Emphasis added.)
A classification problem arises because section 401(a)(2), providing for a Class X felony, speaks of "any substance containing cocaine," while sections 401(b) and 401(c) providing for felonies with lesser penalties speak of the "amount of a controlled substance." Thus, a person manufacturing, delivering, or possessing with intent to deliver a very small amount of cocaine which becomes a part of another substance, the combined weight of which is only 30 grams, can be given a Class X sentence of not less than 6 years nor more than 30 years' imprisonment and a fine up to $200,000, while a person engaged in the same activities with a larger amount of cocaine not mixed with another substance and not having a weight of 30 grams would be punished much less severely. Imprisonment for a Class 2 felony provided for in section 401(b) would be for not less than 3 nor more than 7 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(5).) For a Class 3 felony provided for in section 401(c), the imprisonment would be for not less than 2 nor more than 5 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(6).) Defendant urges that this facet of the classification system enabling a greater punishment for one committing certain acts with a lesser weight of actual cocaine than the punishment given to one who may be doing so with a greater weight of cocaine, denies equal protection of the law. He maintains that as he was charged under section 401(a)(2), the classification deprives him in that way.
• 1 When cocaine is involved, the difference in punishment arising under section 401 has been widened by our recent decision in People v. McCarty (1981), 93 Ill. App.3d 898, 418 N.E.2d 26. We held that the classification of cocaine as a "narcotic drug" violated the equal protection clauses of both the Federal and State constitutions. Accordingly, section 102(aa) (4) of the Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1102(aa)(4)), the section that defined cocaine as a narcotic, was severed from the Act because of its unconstitutionality. Therefore, for the purposes of the Act, cocaine is a schedule II, nonnarcotic drug; and the provisions of section 401 (b) are not applicable because they apply only to narcotic drugs. The act of delivery or manufacture, or possession with the intent to deliver or manufacture cocaine is punishable only under sections 401(a) or 401(c) of the Act.
Even though McCarty magnified the classification problem in regard to cocaine offenses arising under section 401, defendant's attack on the section is much the same as that rejected by the supreme court in People v. Mayberry (1976), 63 Ill.2d 1, 345 N.E.2d 97. Mayberry was indicted for delivery of 200 or more grams of a substance containing a derivative of barbituric acid in violation of section 401(a)(5) of the Act. That section classified as a Class 1 felony the knowing manufacture or delivery, or possession with intent to do either, of 200 grams or more of a substance containing the foregoing. Section 401(d) provided that committing the foregoing acts with "any other amount of a controlled substance classified in Schedule III" to be a Class 3 felony. The controlled substance involved was listed in Schedule III. The supreme 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. Also, the defendants have not demonstrated that a classification scheme based upon the amount of the pure drug contained in a given substance would be feasible. We therefore conclude that the classification schemes are not unconstitutional merely because they are based on the amount of the `substance containing' the cannabis or controlled substance rather than upon the pure cannabis or controlled substance." (Emphasis added.) 63 Ill.2d 1, 9-10, 345 N.E.2d 97, 101.
• 2 Unlike the evidence in Mayberry, forensic scientists for the State testified here that the amount of cocaine in another substance can feasibly be determined by testing. Defendant maintains that, accordingly, Mayberry is not controlling in this case. The contention is based on the theories that: (1) lack of ability to quantify the amount of a controlled substance in the substance containing it was the only reason a classification scheme based upon the amount of pure drug involved was deemed in Mayberry not to be feasible; and (2) the lack of feasibility of such ...