People v. Mayberry
| Decision Date | 18 March 1976 |
| Docket Number | Nos. 47495,47640,s. 47495 |
| Citation | 63 Ill.2d 1,345 N.E.2d 97 |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. Ricky MAYBERRY, Appellee. The PEOPLE of the State of Illinois, Appellant, v. Michael HURLEY, Appellee. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Springfield, and Robert H. Rice, State's Atty., Belleville, and C. Joseph Cavanagh, State's Atty., Springfield (Tracy W. Resch, Asst. Atty. Gen., of counsel), for the People.
Stephen P. Hurley, Deputy State Appellate Defender, Mt. Vernon (David M. Rothenberg, Ltd. Asst. State Appellate Defender, Collinsville, of counsel), for appellee Ricky Mayberry.
Michael J. Costello, Springfield, for appellee Michael Hurley.
These are appeals from orders of the circuit courts of Sangamon County and of St. Clair County dismissing indictments against the defendants. Since the issues presented by the cases are virtually identical, the two cases have been consolidated for appeal.
The defendant Michael Hurley was charged in a two-count indictment with two violations of the Connabis Control Act (). The first count of the indictment alleged that the defendant committed the offense of delivery of more than 30 grams but not more than 500 grams of a substance containing cannabis in violation of section 5(d) of the Act (Ill.Rev.Stat.1973, ch. 56 1/2, par. 705(d)). The second count alleged that the defendant committed the offense of unlawful possession of more than 30 but not more than 500 grams of a substance containing cannabis in violation of section 4(d) of the Act (Ill.Rev.Stat.1973, ch. 56 1/2, par. 704(d)).
The defendant Ricky Mayberry was charged in separate indictments with three violations of the Illinois Controlled Substances Act (). Each indictment charged the defendant with the offense of delivering 200 grams or more of a substance containing a derivative of barbituric acid in violation of section 401(a)(5) of the Act (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1401(a)(5)).
The circuit court of Sangamon County dismissed the first count of the indictment against Hurley on the ground that the graduated penalty provision of the Cannabis Control Act is unconstitutional. The circuit court of St. Clair County dismissed the three indictments against Mayberry, holding that the graduated penalty provision in the Controlled Substances Act constituted a violation of the due process and equal protection clauses of the United States and Illinois constitutions. Each court held that the relevant act provided for punishment based upon the amount of a 'substance containing' cannabis or a controlled substance rather than upon the amount of the pure substance sought to be controlled. The courts held that that classification scheme bore no reasonable relation to the legislative purpose of the acts.
Section 5 of the Cannabis Control Act, the portion of the Act relevant to the first count against Hurley, provides that:
'It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this section with respect to:
(a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor;
(b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor;
(c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony;
(d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony;
(e) more than 500 grams of any substance containing cannabis is guilty of a Class 2 felony.' (Ill.Rev.Stat.1973, ch. 56 1/2, par. 705.)
Section 401 of the Illinois Controlled Substances Act, the section under which Mayberry was indicted, provides in relevant part that:
'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 substance. Any person who violates this Section with respect to:
(a) the following controlled substances and amounts * * * is guilty of a Class 1 felony * * *:
(5) 200 grams or more of any substance containing a derivative of barbituric acid or any of the salts of a derivative of barbituric acid;
(d) any other amount of a controlled substance classified in Schedule III is guilty of a Class 3 felony. * * *'
The Cannabis Control Act and the Controlled Substances Act contain other sections with penalty provisions based upon the weight of a mixed substance rather than upon the weight solely of the substance sought to be controlled. (Ill.Rev.Stat.1973, ch. 56 1/2, pars. 704, 1401, 1402.) Whether this type of classification scheme is violative of the due process or equal protection clauses is the primary issue presented by these appeals.
Before reaching that issue it is necessary to consider the State's contention that the defendants did not have standing to raise the issue in the trial courts. The defendants reply that the State did not challenge their standing in the trial courts and should therefore be barred from raising the issue of standing on appeal. The general rule is that a party may not raise a question on appeal which was not properly presented to the trial court. (People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292.) The reasoning behind that rule is that the trial court should have the first opportunity to consider any question that may arise in a case. In the instant cases, however, the trial courts did consider the issue of standing even though the State did not challenge the standing of the defendants. Each court held that the defendant did possess standing to raise the constitutional questions. Also, there is no indication that the defendants were led to refrain from presenting pertinent rebuttal evidence by the State's failure to argue the issue before the trial courts. For these reasons, we will consider the question of standing.
A party does not have standing to challenge the constitutional validity of a statutory provision if he is not directly affected by it unless the unconstitutional feature is so pervasive as to render the entire act invalid. (People v. Palkes, 52 Ill.2d 472, 288 N.E.2d 469.) A party who attacks a statute as unconstitutional must bring himself within the class aggrieved by the alleged unconstitutionality. (People v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697, Cert. denied, 409 U.S. 912, 93 S.Ct. 230, 34 L.Ed.2d 173.) The first question raised with respect to the issue of standing is whether the defendants brought themselves within the class of people allegedly aggrieved by the acts. The acts are alleged to be unfair in those cases in which the cannabis or controlled substance involved is not pure but is mixed with other substances. In those cases, the entire mixed substance is weighed to determine the seriousness of the offense. The State contends that nothing in the record suggests that Hurley was charged with anything but the delivery of pure cannabis or that Mayberry was charged with anything but delivery of pure controlled substances. The possibility that the substance delivered by Hurley may have been pure cannabis and that the substance delivered by Mayberry may have been pure controlled substance, however, does not destroy the defendants' standing to challenge the statutes. The important fact is that Hurley was not indicted for the delivery of cannabis but for the delivery of a 'substance containing' cannabis. Mayberry was not indicted for the delivery of controlled substances but for the delivery of 'substances containing' controlled substances. Thus, to prove the offenses alleged, the State had no burden to prove the quantity of the pure cannabis or pure controlled substances...
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