Appeal from the Circuit Court of Moultrie County; the Hon.
Worthy B. Kranz, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Unlawful delivery of a substance represented to be a controlled substance (methaqualone) — guilty — sentenced to 4 years and fined $2,500.
Burks now contends he was convicted under an unconstitutional statute.
We agree — but only as to that portion of the statute authorizing a maximum fine of $15,000.
The State first raises the issue of defendant's standing to challenge the constitutionality of the statute — pointing out that the $2,500 fine Burks received was less than the maximum allowable under either section 401(e) or 401(f) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(e), (f)). This standing argument was raised and rejected in People v. Wagner (1982), 89 Ill.2d 308, 433 N.E.2d 267, and we reject it here.
In Wagner, our supreme court held section 404 of the Illinois Controlled Substances Act unconstitutional. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1404.) At the time the defendant in Wagner was convicted, delivery or possession with intent to deliver a substance represented to be a controlled substance was a Class 3 felony and subject to a $15,000 maximum fine, while delivery or possession with intent to deliver a schedule IV or V controlled substance was a Class 4 felony, subject to either a $10,000 (schedule IV) or a $5,000 (schedule V) maximum fine. (Ill. Rev. Stat. 1977, ch. 56 1/2, pars. 1401(e), (f), 1404.) The court struck down section 404 because it was irrational to punish delivery or possession with intent to deliver a harmless substance more severely than delivery/possession with intent to deliver a real schedule IV or V controlled substance. The irrational nature of the statutory scheme violated the due process clause of the Illinois Constitution. Ill. Const. 1970, art. I, sec. 2.
• 1 Defendant in Wagner was sentenced to 2 years' imprisonment for a Class 3 felony. At the time of Wagner's conviction, the range of possible penalties for a Class 3 felony was not less than two nor more than five years; while the range for a Class 4 felony was not less than one nor more than three years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(6), (7).) Thus, the sentence Wagner actually received was within the range of possible penalties for a Class 4 felony — a classification which, as discussed below, would have been constitutional. The same can be said of the fine Burks received. Defendants Wagner and Burks are thus similarly situated, and as Wagner had standing, so does Burks. The injury arises from being sentenced under an invalid statutory provision. Had the allowable penalties been different, the sentences might also have been different.
(City of Chicago v. Lawrence (1969), 42 Ill.2d 461, 248 N.E.2d 71, appeal dismissed, cert. denied (1969), 396 U.S. 39, 24 L.Ed.2d 208, 90 S.Ct. 263, cited by the State, is inapposite. This is not a case where a defendant to whom a statute clearly applies challenges its constitutionality on vagueness grounds.)
The statutory scheme held unconstitutional in Wagner is not the same as that in effect at the time Burks was convicted. The legislature amended the Illinois Controlled Substances Act — not changing section 404, but reclassifying delivery or possession with intent to deliver schedule IV or schedule V controlled substances as Class 3 felonies. The amendments were passed before the Wagner decision and were really intended to correct the situation where simple possession of controlled substances was punished more severely under the Act than delivery or possession with intent to deliver the same substances. (See People v. Bradley (1980), 79 Ill.2d 410, 403 N.E.2d 1029.) The fines for the respective offenses were left unchanged.
• 2 The result then is that delivery/possession with intent to deliver a schedule IV or V controlled substance and delivery or possession with intent to deliver a substance represented to be a controlled substance are all Class 3 felonies. This classification scheme suffers no constitutional defect.
In People v. Baker (1980), 82 Ill. App.3d 590, 403 N.E.2d 46, the defendant was convicted of possession of a schedule III substance — a Class 3 felony. At the time of his conviction, delivery of a schedule III controlled substance was also a Class 3 felony. The defendant contended that the entire Illinois Controlled Substances Act was invalid — relying on prior appellate court decisions holding that possession of a controlled substance could not be punished more severely than delivery of the same substance. The court in Baker distinguished these earlier cases on the basis that the provision under which Baker was convicted did not punish possession more severely than delivery, but rather, classified both as Class 3 felonies. The court stated, "A statutory scheme punishing possession of phenmetrazine equally as severely as the delivery of that substance is not so irrational, nor such an obvious mistake of the legislature, that we should decline to enforce it." (82 Ill. App.3d 590, 591-92, 403 N.E.2d 46, 47.) Similarly, in People v. Craig (1979), 79 Ill. App.3d 1019, 1023, 398 N.E.2d 1172, 1175, the court stated, "It is not unbelievable that the legislature might wish to punish possession as severely as delivery." In Craig, the appellate court affirmed the conviction of two defendants for possession of controlled substances.
The analysis of the appellate court in Baker and Craig, with respect to the distinction between possession and delivery of a controlled substance, is also applicable to the distinction between delivery of a controlled substance and delivery of a substance represented to be a controlled substance. Just as the legislature may have punished possession of a controlled substance as severely as delivery of the same, it may punish delivery of a substance represented to be a controlled substance as severely as delivery of the real thing. Therefore, the classification of ...