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11/23/94 PEOPLE STATE ILLINOIS v. MICHAEL KIMBROUGH

November 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MICHAEL KIMBROUGH, APPELLEE.



Bilandic, Miller, McMORROW

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Michael Kimbrough, was charged in a three-count indictment with certain violations of the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1992)) pertaining to LSD (LSD provisions). Defendant filed a motion to dismiss the indictment alleging that the LSD provisions of the Act are unconstitutional. Defendant alleged that the LSD provisions violate the equal protection and due process clauses of both the United States Constitution and the Illinois Constitution of 1970. The trial court granted the defendant's motion to dismiss all counts of the indictment, finding that the LSD provisions of the Controlled Substances Act are unconstitutional in that they violate equal protection and due process. Because the trial court found portions of the Controlled Substances Act to be unconstitutional, the State appeals directly to this court pursuant to Supreme Court Rule 302 (134 Ill. 2d R. 302). The issue before this court is whether the LSD provisions of the Controlled Substances Act are constitutional.

The record on appeal reveals that, on March 12, 1992, defendant allegedly delivered approximately 94 to 96 separate segregated segments containing LSD (microdots) to a police officer. The combined weight of the 94 or 96 microdots was approximately 0.4 grams. Thereafter, defendant was arrested by Brookfield police.

Following defendant's arrest, a grand jury returned a three-count indictment charging defendant with certain violations of the Controlled Substances Act (Act) (720 ILCS 570/100 et seq. (West 1992)). Count I of the indictment charged defendant with the unlawful delivery of 100 segregated parts of a substance containing LSD in violation of section 401(a)(7)(A)(ii) of the Act. Violation of section 401(a)(7)(A)(ii) is a Class X felony. 720 ILCS 570/401(a) (West 1992).

Count II of the indictment charged defendant with the unlawful possession of 100 segregated parts of a substance containing LSD. Count II, however, erroneously cited section 401(a)(7)(A)(ii) of the Act, which proscribes unlawful delivery of LSD, instead of section 402(a)(7)(A)(ii) of the Act, which proscribes unlawful possession. (Compare 720 ILCS 570/402(a)(7)(A)(ii) (West 1992), with 720 ILCS 570/401(a)(7)(A)(ii) (West 1992).) Violation of section 402(a)(7)(A)(ii) is a Class 1 felony. 720 ILCS 570/402(a) (West 1992).

Count III of the indictment charged defendant with the unlawful possession of 0.4 grams of LSD in violation of section 402(c) of the Act. Violation of section 402(c) of the Act is a Class 4 felony. 720 ILCS 570/402(c) (West 1992). *fn1

The statutory provisions at issue in this appeal are found in sections 401 and 402 of the Act. (See 720 ILCS 570/401, 402 (West 1992).) Section 401 proscribes the unlawful delivery of LSD. Section 402 of the Act proscribes the unlawful possession of LSD. These two sections of the Act are similar in that they both classify the offense of either delivery or possession of LSD according to the form of the LSD that the defendant delivered or possessed. Stated simply, a defendant who delivered or possessed LSD in an "object" or "carrier" form is guilty of a greater offense and is punished more severely than a defendant who delivered or possessed the same amount of LSD in a pure, liquid, "gram" form.

As stated, defendant challenges the constitutional validity of these sections of the Act, arguing that the legislative classification, which is based upon the form of LSD that a defendant delivers or possesses, is arbitrary and unreasonable. Therefore, defendant argues, these provisions violate the equal protection and due process clauses of both the Federal and State Constitutions.

Before addressing the defendant's constitutional challenges, we briefly describe the relevant statutoryprovisions. Under section 401(a)(7)(A) of the Act, a defendant is guilty of a Class X felony if he delivers:

"(i) 15 grams or more but less than 100 grams of any substance containing * * * (LSD) * * *, or (ii) 15 or more objects or 15 or more segregated parts of an object or objects but less than 200 objects or 200 segregated parts of an object or objects containing in them or having upon them any amount of any substance containing * * * (LSD) * * *." (Emphasis added.) (720 ILCS 570/401(a)(7)(A) (West 1992).)

Under section 401(c)(7) of the Act, a defendant is guilty of a Class 1 felony if he delivers:

"(i) 5 grams or more but less than 15 grams of any substance containing * * * (LSD) * * *, or (ii) more than 10 objects or more than 10 segregated parts of an object or objects but less than 15 objects or less than 15 segregated parts of an object containing in them or having upon them any amount of any substance containing * * * (LSD) * * *." (Emphasis added.) (720 ILCS 570/401(c)(7) (West 1992).)

Under section 401(d) of the Act, a defendant who delivers "any other amount of * * * is guilty of a Class 2 felony." 720 ILCS 570/401(d)(ii) (West 1992).

Section 402, which proscribes the unlawful possession of LSD, is similar to section 401. Under section 402(a)(7)(A) of the Act, a defendant is guilty of a Class 1 felony if he possesses:

"(i) 15 grams or more but less than 100 grams of any substance containing * * * (LSD) * * *, or (ii) 15 or more objects or 15 or more segregated parts of an object or objects but less than 200 objects or 200 segregated parts of an object or objects containing in them or having upon them any amount of any substance containing * * * (LSD) * * *." (Emphasis added.) (720 ILCS 570/402(a)(7)(A)(i), (a)(7)(A)(ii) (West 1992).)

Under section 402(c), a defendant who possesses any other amount of LSD is guilty of a Class 4 felony. 720 ILCS 570/402(c) (West 1992).

We now address defendant's claim that this statutory scheme violates the equal protection and due process clauses of both the ...


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