People v. Bradley
| Decision Date | 18 April 1980 |
| Docket Number | Nos. 52262,52263,52411 and 52814,s. 52262 |
| Citation | 79 Ill.2d 410,38 Ill.Dec. 575,403 N.E.2d 1029 |
| Parties | , 38 Ill.Dec. 575 The PEOPLE of the State of Illinois, Appellant, v. Rodney BRADLEY, Appellee. The PEOPLE of the State of Illinois, Appellant, v. Joel NOVAK, Appellee. The PEOPLE of the State of Illinois, Appellant, v. Nancy A. DALZOTTO, Appellee. The PEOPLE of the State of Illinois, Appellant, v. Marshall G. OLSEN, Appellee. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Chicago, and C. David Vogel, State's Atty., Pontiac, Kelly D. Long, State's Atty., Hillsboro, Bernard Carey, State's Atty., Chicago , for the People.
Richard J. Wilson, Deputy State App. Defender and Charles M. Schiedel, Asst. State App. Defender, Springfield, John H. Reid, Deputy Defender, and Jeff M. Plesko, Asst. Defender, Office of the State App. Defender, Mount Vernon, Gregory J. Schlesinger, of Schlesinger & McGann, Chicago, for appellee.
In each of four criminal cases, consolidated on appeal, a defendant was charged under section 402(b) of the Illinois Controlled Substances Act (the Act) with possession of a controlled substance. (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b).) In all four cases, the possession charges were dismissed after section 402(b) was found to be unconstitutional and void.
Defendants Rodney Bradley (cause No. 52262) and Joel Novak (cause No. 52263) were charged by indictment in the circuit court of Livingston County. Bradley was charged with unlawful possession of less than 200 grams of plurazepam, a schedule IV controlled substance, and Novak with unlawful possession of phencyclidine (PCP), a schedule III controlled substance. Each defendant moved to dismiss the indictment, and the motions were allowed.
In the circuit court of Montgomery County (cause No. 52411) defendant Nancy A. Dalzotto was charged by a three-count information with (1) driving under the influence of drugs, (2) unlawful possession of a hypodermic needle and syringe, and (3) unlawful possession of phenobarbital, a schedule IV controlled substance. After trial, she was acquitted on the first count and found guilty on the second and third counts. Her post-trial motion to dismiss the charges under the third count possession of a controlled substance was granted by the trial court.
In the circuit court of Cook County (cause No. 52814) defendant Marshall G. Olsen was charged by information with four counts of possession: (1) possession of amphetamine, a schedule II controlled substance; (2) possession of cocaine, a schedule II controlled substance; (3) possession of diazepam (Valium), a schedule IV controlled substance, and (4) possession of cannabis sativa. Defendant's motion to dismiss the first three counts was granted by the trial court.
The dismissal of possession charges in each of the above cases was based upon the holding in People v. Natoli (1979), 70 Ill.App.3d 131, 26 Ill.Dec. 266, 387 N.E.2d 1096, wherein the penalty provision for possession under section 402(b), when compared to the penalty provision for delivery under section 401(e) of the Act, was found invalid as it violated the equal protection clause. The State has appealed the four cases directly to this court under Supreme Court Rule 302(a). 73 Ill.2d R. 302(a).
Under section 401(e) of the Act (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(e)), delivery of a schedule IV substance is a Class 4 felony which subjects the offender to an indeterminate sentence of 1 to 3 years (Ill.Rev.Stat.1977, ch. 38, par. 1005-8-1). Under section 402(b) (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b)), possession of the same substance is a Class 3 felony which subjects the offender to an indeterminate sentence of 1 to 10 years (Ill.Rev.Stat.1977, ch. 38, par. 1005-8-1).
The State contends that the penalties established for violations of the Illinois Controlled Substances Act do not deprive the defendants of equal protection of the law. It argues that all who are found guilty of possessing schedule IV controlled substances are equally subject to the possession penalty (under section 402(b)) and all who are found guilty of the manufacture or delivery of schedule IV controlled substances are equally subject to the delivery penalty (under section 401(e)); that such classification by the legislature, whereunder all within the same class are similarly treated, does not violate the equal protection clause of the United States or Illinois constitutions. Based upon this argument, the State claims that the analysis and rationale of the court in Natoli were inappropriate.
In Natoli, the defendant was convicted of possession and delivery of a schedule IV controlled substance, ethchlorvynol. He was sentenced to 1 to 3 years for delivery, under section 401(e) of the Act, and 2 to 6 years for possession, under section 402(b) of the Act (Ill.Rev.Stat.1977, ch. 561/2, pars. 1401(e), 1402(b)). The court found that it was irrational to apply a greater statutory penalty for possession than for delivery of the same substance, inasmuch as possession is a lesser included offense of delivery, i. e., all of the elements of possession are necessarily included in the offense of delivery. The court concluded:
Defendants argue that the Natoli court correctly applied the equal protection clause to invalidate section 402(b), and rely on the reasoning in People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407. In McCabe the defendant argued that it was a violation of equal protection to classify marijuana under the Uniform Narcotic Drug Act () and to impose a mandatory 10-year-minimum sentence upon a first conviction for the sale of marijuana, rather than to classify it as a "stimulant or depressant" drug under the Drug Abuse Control Act (), which called for a maximum sentence of one year for the sale of such drugs. The equal protection analysis in McCabe was appropriate, since the basic premise of the defendant's contention was that the nature and effects of the drugs named in the two statutes were so similar as to place those persons convicted of the sale of each in a "similarly situated" class. Consequently, the equal protection clause demanded that those "similarly situated" be treated equally under the law. This court agreed with that argument, concluded that marijuana cannot reasonably be distinguished from substances classified under the Drug Abuse Control Act, and found the disparity between the penalties violative of the equal protection clause. People v. McCabe (1971), 49 Ill.2d 338, 347, 349-51, 275 N.E.2d 407.
The equal protection clause does not deny States the power to treat different classes of persons in different ways. (Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 92 S.Ct. 1029, 1034-35, 31 L.Ed.2d 349, 358; Skinner v. Oklahoma (1942), 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1659; Clark v. United States (N.D.Ill.1978), 447 F.Supp. 172, 177.) Only "(w)hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and (penalizes) one and not the other" does the equal protection clause come into play. That clause requires equality between groups of persons "similarly situated"; it does not require equality or proportionality of penalties for dissimilar conduct. McGowan v. Maryland (1961), 366 U.S. 420, 427, 81 S.Ct. 1101, 1105-06, 6 L.Ed.2d 393, 400; People v. Nicholson (1948), 401 Ill. 546, 553, 82 N.E.2d 656.
The situation in Natoli differs from that in McCabe. In Natoli there was no disparate treatment of "similarly situated" classes of persons. There, the court failed to recognize that, under section 401 of the Act (Ill.Rev.Stat.1977, ch. 561/2, par. 1401), all persons charged with the manufacture or delivery of a controlled substance are treated identically. Similarly, under section 402(b) (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(b)), all persons charged with the possession of a controlled substance are treated alike. Therefore, the Natoli court was in error when it concluded that the equal protection clause had been violated.
Sub judice, then, no equal protection violation emerges, for one cannot claim that a defendant convicted of possession is similarly situated to one convicted of delivery. By the very definition of the offenses, those accused of one would be dissimilarly situated from those accused of the other. We conclude that section 402(b) of the Act does not violate the equal protection clause.
The challenged portion of the statute does, however, violate the due process clause of the Illinois Constitution. Ill.Const.1970, art. I, sec. 2.
It is the general rule that the legislature, under the State's police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453, 81 N.E.2d 257.) The legislature's power to fix penalties is,...
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