People v. Brown

NO. 4-06-0694 Filed 9/24/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) McLean County

CLETUS CRAIG BROWN, ) No. 06CF18

Defendant-Appellant. )

) Honorable

) Scott Drazewski,

) Judge Presiding.

_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

Following a June 2006 bench trial, the trial court

convicted defendant, Cletus Craig Brown, of unlawful possession

of a methamphetamine precursor (pseudoephedrine) with the intent

to manufacture methamphetamine (720 ILCS 646/20(a)(1) (West Supp.

2005)). The court later sentenced him to an extended term of

eight years in prison.

Defendant appeals, arguing only that the statute under

which he was sentenced violates the proportionate-penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I,

§11). We disagree and affirm.

I. BACKGROUND

In January 2006, the State charged defendant with

unlawful possession of methamphetamine manufacturing chemicals

under section 401(d-5) of the Illinois Controlled Substances Act

(720 ILCS 570/401(d-5) (West 2004)). In March 2006, the State

moved to amend the indictment to charge defendant instead with

unlawful possession of a methamphetamine precursor under section

20(a)(1) of the Methamphetamine Control and Community Protection

Act (Methamphetamine Act) (720 ILCS 646/20(a)(1) (West Supp.

2005)). Defendant did not object, and the trial court granted

the State's motion.

In May 2006, defendant filed a motion to dismiss the

indictment, arguing that section 20(a) of the Methamphetamine Act

is unconstitutional because it provides a greater sentence for

the possession of methamphetamine precursors than for the posses-

sion of an equivalent amount of methamphetamine (720 ILCS 646/60

(West Supp. 2005)). At a June 2006 hearing, the trial court

denied defendant's motion to dismiss, upon finding the statute's

provisions were rationally related to the purpose of the Metham-

phetamine Act. Defendant's bench trial immediately followed, and

the parties stipulated that defendant possessed 14.9 grams of

methamphetamine precursor, which he intended to use to manufac-

ture methamphetamine. Based on this evidence, the court found

defendant guilty of unlawful possession of a methamphetamine

precursor. Following a July 2006 hearing, the court sentenced

him as previously stated.

This appeal followed.

II. PROPORTIONATE-PENALTIES CLAUSE CHALLENGE

Defendant argues that section 20(a) of the Methamphet-

amine Act violates the proportionate-penalties clause because it

provides the same sentence for possession of methamphetamine

precursors as section 60 of the Methamphetamine Act provides for

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possession of the equivalent weight of actual methamphetamine.

We disagree.

The proportionate-penalties clause of the Illinois

Constitution provides that "[a]ll penalties shall be determined

both according to the seriousness of the offense and with the

objective of restoring the offender to useful citizenship." Ill.

Const. 1970, art. I, §11. Prior to our supreme court's decision

in People v. Sharpe, 216 Ill. 2d 481, 839 N.E.2d 492 (2005), a

claim that a sentence violated the proportionate-penalties clause

was evaluated under three separate and distinct tests: (1)

whether the penalty was cruel, degrading, or so wholly dispropor-

tionate to the offense committed as to shock the moral sense of

the community; (2) whether the offense, when compared to a

similar offense comprised of different elements, resulted in a

greater penalty although the charged offense created a less

serious threat to public health and safety (the cross-comparison

test); or (3) whether offenses with identical elements resulted

in different penalties. People v. Huddleston, 212 Ill. 2d 107,

130, 816 N.E.2d 322, 335-36 (2004). However, in Sharpe, 216 Ill.

2d at 517, 839 N.E.2d at 514, the supreme court abandoned the

cross-comparison test. Thus, to succeed on his proportionate-

penalties claim, defendant must show that either the penalty

imposed (1) is cruel, degrading, or so wholly disproportionate to

the offense that it shocks the moral sense of the community (the

cruel or degrading test) or (2) differs from one imposed for an

offense containing the same elements. Sharpe, 216 Ill. 2d at

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521, 839 N.E.2d at 517.

Section 20(a) of the Methamphetamine Act provides, in

pertinent part, as follows:

"(1) It is unlawful to possess, procure,

transport, store, or deliver any methamphet-

amine precursor or substance containing any

methamphetamine precursor in standard dosage

form with the intent that it be used to manu-

facture methamphetamine or a substance con-

taining methamphetamine.

***

(A) A person who possesses,

procures, transports, stores, or

delivers less than 15 grams of

methamphetamine precursor or sub-

stance containing any methamphet-

amine precursor is guilty of a

Class 2 felony." 720 ILCS

646/20(a)(1), (a)(2)(A) (West Supp.

2005).

Section 60(a) of the Methamphetamine Act provides, in

pertinent part, as follows:

"(a) It is unlawful knowingly to possess

methamphetamine or a substance containing

methamphetamine.

* * *

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(2) A person who possesses 5

or more grams but less than 15

grams of methamphetamine or a sub-

stance containing methamphetamine

is guilty of a Class 2 felony."

720 ILCS 646/60(a), (b)(2) (West

Supp. 2005).

Defendant bases his disproportionate-penalties claim on

the following assertion: imposing the same level of punishment

for possession of a methamphetamine precursor and possession of

actual methamphetamine is shocking to the moral sense of the

community. However, by so asserting, defendant misapplies the

"cruel or degrading" test and actually relies on a cross-compari-

son analysis, which the supreme court abolished in Sharpe.

Under the "cruel or degrading" test, a

disproportionate-penalties claim must show that the penalty

imposed is so wholly disproportionate to the offense committed

that it shocks the moral sense of the community. Huddleston, 212

Ill. 2d at 130, 816 N.E.2d at 335. The test does not rely at all

on whether the penalty imposed was disproportionate to the

penalty available for another offense. Moreover, defendant does

not offer any argument or provide any evidence that his sentence

under section 20(a)(1) of the Methamphetamine Act was cruel,

degrading, or so wholly disproportionate to the offense committed

as to shock the moral sense of the community. See Sharpe, 216

Ill. 2d at 524, 839 N.E.2d at 518 (indicating that the "cross-

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comparison challenge and the 'cruel or degrading' challenge are

separate types of proportionate[-]penalties challenges and that

the latter requires only that the penalty be examined in relation

to the offense for which it is applied" (emphasis in original)).

Thus, because defendant's claim is based solely on a cross-

comparison argument that the supreme court has repudiated, we

reject defendant's claim that his eight-year sentence is uncon-

stitutional under the proportionate-penalties clause.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed

APPLETON and McCULLOUGH, JJ., concur.

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