APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
547 N.E.2d 613, 190 Ill. App. 3d 928, 138 Ill. Dec. 446 1989.IL.1782
Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Following a stipulated bench trial, defendant, Daniel Pehrson, was found guilty of delivering less than one gram of cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(c)) and possessing with intent to deliver more than one but less than 15 grams of cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2)). He was sentenced to 24 months' probation with 90 days of periodic imprisonment and was fined $1,000 for each offense. On appeal, defendant contends that section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2)) is unconstitutional and that the fines assessed were not authorized and excessive.
At trial, defendant waived his right to a jury and stipulated to the facts presented by the prosecutor, who recited that, if witnesses were called to testify, their evidence would show that on August 29, 1987, defendant was arrested at a party at the Knolls Clubhouse in Willowbrook, Illinois. There, two men who had been found using cocaine identified defendant as the person who had sold them the drug. A short time later, three Willowbrook police officers approached defendant at the party and took him outside for questioning, where he voluntarily emptied his pockets, producing a package containing a green leafy substance and, following further questioning, produced a container which held two packets of a white powdery substance. Testing by the Illinois State Police Forensic Lab revealed that the substances consisted of more than one but less than 15 grams of cocaine and 0.1 grams of cannabis. Defendant was found guilty of both offenses.
At the sentencing hearing, defendant's motion attacking the constitutionality of the sentencing statute was denied, and the State and defendant stipulated that the street value of 1.8 grams of cocaine was $180. Following argument by the attorneys and a statement by defendant, the court sentenced him to 24 months' probation, including 90 days' periodic imprisonment, and fined him $1,000 for each offense. The prosecutor requested that the fine be designated as a street value fine, to which defense counsel acquiesced, and the trial court incorporated that designation in its order.
Defendant contends first that the section of the Controlled Substances Act which makes the delivery of more than one but less than 15 grams of cocaine a Class 1 felony (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(b)(2)) is unconstitutional because it establishes a sentencing scheme which violates due process as it provides that the delivery of more than one gram of cocaine constitutes a Class 1 felony, while delivery of the same amount of heroin, and up to 10 grams, is only a Class 2 felony. Defendant argues that the legislature acknowledged the differences between various types of controlled substances and, to provide for different degrees of control over each of the various types, such substances were classified into different schedules which identified them in terms of their relative danger to the public, and their potential for legitimate use. (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1100.) The legislature classified heroin as more dangerous than cocaine by making heroin a schedule I substance and cocaine a schedule II substance. (Ill. Rev. Stat. 1987, ch. 56 1/2, pars. 1204(c)(12),
In support of his argument, defendant cites People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, and People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267. In each of these cases, our supreme court held that the applicable sections of the Controlled Substances Act were violative of due process because they were not designed to remedy the evils which the legislature had determined to be a threat to the public health, safety and general welfare. In Bradley, the court found that a statute which provided for a greater penalty for possession of a substance than for its delivery violated the defendant's due-process rights as it contravened an express legislative intent to punish traffickers or profiteers of controlled substances with the same or greater severity than the unlawful user or occasional petty distributor. (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1100; Bradley, 79 Ill. 2d at 418, 403 N.E.2d at 1032.) In Wagner, the court held that the statute fixing the penalty for distribution of a "look-alike" controlled substance higher than the maximum provided for distributing a bona fide controlled substance was unconstitutional because it contravened legislative intent by punishing the defendant who delivers a noncontrolled substance more severely than one who delivers a controlled substance. Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1100; Wagner, 89 Ill. 2d at 313, 433 N.E.2d at 270.
However, section 401(b)(2) of the Controlled Substances Act was specifically enacted to punish the delivery of cocaine more severely than that of other drugs and reflected the legislative concern about the epidemic of crack usage, the unique availability of the drug, and that ingestion of only a small amount could lead to either addiction or serious disablement. (House Floor Debate, SB 1565, Pub. Act 84 -- 1475, December 5, 1985, at 10-11.) In imposing penalties for drug offenses, the legislature should be able to take all considerations into account rather than being forced to rely simply on the scheduling scheme for that drug.
In People v. Upton (1986), 114 Ill. 2d 362, 500 N.E.2d 943, our supreme court upheld a statute which provided a greater penalty for distribution of "look-alike" substances than that provided for bona fide controlled substances where, unlike the situation before it in Wagner and Bradley, the legislature declared that it was its legislative intent to have this disparity in penalties and sought to justify its reasoning. The court distinguished Bradley and Wagner because, in those cases, the penalty provisions had directly contradicted the declared legislative intent. Upton (1986), 114 Ill. 2d at 373, 500 N.E.2d at 945-46.
In the present case, the declared legislative intent in enacting section 401(b)(2) was to fix a higher penalty for a small amount of cocaine which the legislature felt was needed to protect society against the problems resulting from cocaine. Legislation will survive a substantive due-process challenge so long as it is reasonably designed to remedy the evils the legislature has determined to be a threat to the public health, safety, and general welfare. (Upton, 114 Ill. 2d at 373, 500 N.E.2d at 948.) The legislature has broad discretion in classifying offenses and providing penalties for them (People v. Mathey (1983), 99 Ill. 2d 292, 298, 458 N.E.2d 499), and we find no due-process violation in section 401(b)(2) of the Controlled Substances Act.
Next, defendant argues that under the provisions of section 5-9-1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. ...