Appeal from the Circuit Court of McLean County; the Hon. Wayne
C. Townley, Jr., Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
The defendant was charged in the circuit court of McLean County, in a one-count indictment with the offense of calculated criminal drug conspiracy, in that he knowingly:
"[P]ossessed more than 10 grams of cocaine, with intent to deliver same to another, in violation of section 1401(b), Chap. 56 1/2, Ill. Rev. Stat., and such violation was part of a conspiracy carried out with two or more other persons, and he obtained more than $500 from such violation or conspiracy, in violation of section 1405, Chapter 56 1/2, Illinois Revised Statutes (1981)."
The State's evidence consisted of the testimony of Richard Wochholtz and Dwight Hansen, two men who had been arrested while attempting to deliver cocaine which had been provided to them by the defendant, John Brown.
Wochholtz testified that he and Hansen discussed means by which they could obtain some money. Hansen told Wochholtz that he had a good connection for cocaine, and they discussed purchasing one-half ounce of cocaine from the defendant. Wochholtz was to provide the cash for the purchase, and Hansen would provide the contacts.
The evidence showed that the defendant received $1,100 from them and wired the money to a source in Colorado. Hansen later delivered a small white envelope marked "Personal, John Brown," to Wochholtz. Inside the envelope were plastic bags containing cocaine. Wochholtz later separated about 2 grams of cocaine from what was in the plastic bags and replaced it with approximately 2 grams of B-12. When the substance in the bags was weighed it weighed 13.1 grams.
Both Wochholtz and Hansen entered pleas of guilty and testified at defendant's jury trial. At the close of the State's evidence the trial court granted defendant's motion for a directed verdict of acquittal as it related to the calculated criminal drug conspiracy charge; however, the court stated:
"And so it appears to me that this case at this point would go to the jury on a possession of more than ten grams of cocaine with intent to deliver the same with another in violation of 1401(b) which is a lesser included offense. There is also a lesser included offense as to under ten grams that the Court, to be consistent with your argument and I think there is an arguable position to be made. There is also a lesser included offense of possession of less than ten grams of cocaine with intent to deliver, and that seems to me those are the two charges that this jury needs to be instructed on as lesser included offenses which are clearly remaining after the Court concludes the fact that there is not a calculated criminal drug conspiracy."
After a brief recess, and without further charges being filed, the parties reappeared before the court and the defendant entered a plea of guilty to possession of less than 10 grams of cocaine with intent to deliver to another. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c).) Thereafter, the defendant was sentenced to a term of four years' imprisonment and fined the sum of $1,100.
The defendant appeals, contending: (1) possession of less than 10 grams of cocaine with intent to deliver to another is not an included offense of calculated criminal drug conspiracy; (2) the directed verdict for defendant on the charge of calculated criminal drug conspiracy constituted an acquittal of all offenses not specifically named in the indictment and the trial court lost subject matter jurisdiction after the directed verdict; (3) the trial court abused its discretion in sentencing the defendant when the trial court failed to consider whether granting defendant probation would be inconsistent with the ends of justice and in failing to grant probation when two other similarly situated defendants were sentenced to probation.
We first consider the issue as to whether or not possession of less than 10 grams of cocaine with intent to deliver to another is an included offense of calculated criminal drug conspiracy.
Section 405(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1405(b)) provides:
"(b) For purposes of this section, a person engages in a calculated criminal drug conspiracy when:
(1) he violates any of the provisions of subsections (a) or (b) of Section 401 or subsection (a) of Section 402; and
(2) such violation is part of conspiracy undertaken or carried on with two or more persons; and
(3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy."
With respect to the controlled substance cocaine, section 401 of the Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401) provides:
"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 or counterfeit substance. Any person who violates this Section with respect to:
(a) the following controlled or counterfeit substances and amounts, notwithstanding any of the provisions of subsections (b), (c), (d), (e), (f) or (g) to the contrary, is guilty of a Class X felony. The fine for ...