People v. Wagner

CHIEF JUSTICE RYAN, dissenting:

I do not find our opinion in People v. Bradley (1980), 79 Ill. 2d 410 , controlling or even applicable. I must therefore dissent.

The rationale of the holding in Bradley was that the delivery of a controlled substance is a more serious offense than the mere possession of a controlled substance. Therefore, this court reasoned that the imposition of a more severe penalty for possession than for delivery violates the due process clause of the Illinois Constitution. In Bradley we concluded that delivery was a more serious offense than possession from the legislative intent expressed in section 100 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100). We stated:

“Clearly, the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them.” People v. Bradley (1980), 79 Ill. 2d 410, 418 .

The fact that the legislature expressly acknowledged the functional and consequential differences between the various types of controlled substances and provided for correspondingly different degrees of control over each of the various types (Ill. Rev. Stat. 1977, ch. 56½, par. 1100(4)), as noted in the majority opinion, is not relevant to the facts of this case. In making the classification questioned in this case, the legislature was dealing with an entirely different problem from that addressed in Bradley and alluded to in the section of the statute cited above. Nowhere in the statute can one find an expression of legislative intent that a person who delivers a substance represented to be a controlled substance has not committed a more serious offense or should not be punished more severely than one who possesses or delivers a controlled substance.

In providing penalties for a controlled substance the legislature, in keeping with its expressed intent, has distinguished between possession and delivery, between different classes, and between different amounts of each class. However, in providing a penalty for the delivery of a substance represented to be a controlled substance, no such distinctions are made. The penalty is the same whether the substance is represented to be one listed in schedule I, II, III, IV, or V. Also, the penalty is the same whatever the amount delivered. The legislature was addressing a different problem when it made it unlawful to deliver a substance represented to be a controlled substance.

It makes an appealing argument to say, as the majority opinion does, that the defendant here was subject to a greater penalty for the delivery of .4 grams of a “harmless brown powder” than a person would be who actually delivered any amount of a schedule IV or V controlled substance. However, we do not know the magnitude of the problem or the evils associated with the delivery of a substance represented to be a controlled substance. In the space of one set of briefs filed in this case we cannot hope to be adequately informed as to the nature of the problems the legislature was seeking to resolve. The legislature has the means of informing itself, and it has seen fit to make this classification, which I am unwilling to arbitrarily say was not rational. We must presume the classification to be valid. We just are not in a position to say whether the evil sought to be remedied by section 404 of the Illinois Controlled Substances Act is not as great a threat to the public as is the delivery of certain controlled substances. Contrary to the assumption in the majority opinion, the legislature has not determined that the delivery of controlled substances is a greater threat to the public than is the delivery of a substance represented to be a controlled substance.

A problem closely related to the delivery of a substance represented to be a controlled substance — and, in fact, a part of that problem — is the manufacture and distribution of “look-alike” drugs. These are not controlled substances but are legal over-the-counter drugs. However, they are similar in size, shape and color, and have markings similar to controlled prescription substances. These look-alike drugs are often purchased legally in large quantities and then sold illegally represented to be controlled substances. At the present time our General Assembly is considering several bills dealing with look-alike drugs. These bills provide penalties for their distribution. After the legislature conducts these extensive hearings and determines that the problem is so severe that it warrants a penalty more severe than that provided for the possession or delivery of certain controlled substances, will this court on the basis of the majority holding in this case hold the act unconstitutional because we may think the possession or delivery of a controlled substance is the more serious offense? The problems involved in the sale of look-alike drugs are discussed in an article by Julie A. Dutton, a research associate with the Illinois Legislative Counsel Science Unit. Dutton, Look-alike Drugs: Regulation Dilemma, 8 Ill. Issues 35 (1982).

The problems involved with look-alike drugs, as well as those involved in the delivery of substances represented to be controlled substances, are different from those which confront the legislature in classifying controlled substances and providing penalties for their possession and delivery. The majority of this court in this case, by holding that section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56½, par. 1404) is unconstitutional, has substituted its opinion for that of the legislature. This court, and not the legislature, has determined that the delivery of a substance represented to be a controlled substance is not as great a threat to the public as is the delivery of a controlled substance.

UNDERWOOD and GOLDENHERSH, JJ., join in this dissent.

JUSTICE UNDERWOOD, also dissenting:

This court held in People v. Bradley (1980), 79 Ill. 2d 410 , that possession of a schedule IV controlled substance could not constitutionally be punished more severely than delivery of that substance. That holding was predicated on the General Assembly’s express recognition that delivery posed the greater threat to society. There is, as Justice Ryan points out, no such legislative declaration here, and I accordingly join in his dissent.

There are, however, additional reasons for my disagreement. The majority characterizes Bradley as “applicable, persuasive and controlling” (89 Ill. 2d at 312), a statement which it seems to me represents a fundamental misconception of the holding in that case. Bradley, in my judgment, actually requires a result here the opposite of that reached by the majority.

In my opinion the majority also errs in holding defendant has standing to raise the due process issue as it relates to the delivery of materials misrepresented to be schedule IV or V substances. Neither Bradley, People v. McCabe (1971), 49 Ill. 2d 338 , nor the appellate court cases cited by the majority support that conclusion.

Under section 401(b) of the Illinois Controlled Substances Act delivery of .4 grams of heroin, a schedule I controlled substance, is a Class 2 felony subject to 3 to 7 years’ imprisonment and a fine up to $25,000. (Ill. Rev. Stat. 1977, ch. 56½, par. 1401(b); Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(5).) Under section 404, delivery of any substance represented to be any controlled substance is a less serious Glass 3 felony subject to 2 to 5 years’ imprisonment and a fine up to $15,000. (Ill. Rev. Stat. 1977, ch. 56½, par. 1404; Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(6).) Delivery of schedule IV and V controlled substances are classified as still less serious offenses with lesser penalties. (Ill. Rev. Stat. 1977, ch. 56½, pars. 1401(e), (f); Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(7).) Defendant here was charged under section 404 with delivery of .4 grams of a substance misrepresented as heroin, a Class 3 felony. Had the substance been heroin, the offense would have been the more serious Class 2 felony for which the prescribed punishment is more severe. In these circumstances Bradley expressly holds no due process violation occurs. The reasoning in Bradley is apparent from the following language:

“Clearly, the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them. Because section 402(b) prescribes a greater sentence for possession of a schedule IV substance than section 401(e) sets forth for delivery of the same substance, section 402(b) is in contravention of the express intent of the legislature. Inasmuch as section 402(b), as it is applied to charges of possession of schedule IV substances, is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public, it is violative of the due process clause of the Illinois Constitution and is, therefore, invalid. ***

Our conclusions with respect to schedule IV controlled substances do not apply to schedule II and III substances, contrary to the claim of defendants Novak and Olsen. The penalties for delivery of schedule II and III controlled substances are either greater than or equal to the penalty imposed for possession of those substances. (Ill. Rev. Stat. 1977, ch. 56½, pars. 1401(b), (c), (d), 1402(b).) Consequently, these provisions are not contrary to the purposes of section 100 of the Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100) and do not offend due process. See Gaffney v. State (Tex. Crim. App. 1978), 575 S.W.2d 537, 541 .

Defendants Novak and Olsen also assert that the trial court properly dismissed the possession charges against them because section 402(b) is invalid in its entirety and not solely in its application to schedule IV controlled substances. The test to determine severability is ‘whether the valid and invalid provisions of the Act are “so mutually ‘connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently ***’”’ (Fiorito v. Jones (1968), 39 Ill. 2d 531, 540 , quoting Winter v. Barrett (1933), 352 Ill. 441, 475 .) Within the Act, the legislature divided controlled substances into distinct categories (schedules) and, in imposing penalties, dealt with each separately. This manifests the legislature’s intent that each schedule be mutually exclusive of the other. Consequently, a finding that section 402(b) is invalid as applied to schedule IV substances does not disturb the effectiveness of that provision as it relates to all other schedules.” (Emphasis added.) People v. Bradley (1980), 79 Ill. 2d 410, 418-19 .

The majority evades the result Bradley demands here by allowing this defendant to assert a due process argument available, in my opinion, only to one who has been charged with delivery of a substance represented to be a schedule IV or V substance. If the charges here included misrepresented schedule IV substances as was the case in Bradley, that decision might well be controlling. But defendant is charged only with delivery of the substance represented to be heroin, and Bradley, I believe, requires affirmance of the conviction.

In fact, as earlier indicated, the majority need not have ever reached the constitutional issue, for this defendant has no standing to assert the constitutional argument of one who has delivered a substance represented to be a schedule IV or V substance, for he is not charged with that offense. The majority opinion, in holding that he has standing, relies solely upon People v. Mayberry (1976), 63 Ill. 2d 1 , and, in my opinion, incorrectly applies its rule. The relevant passage in Mayberry says:

“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. [Citation.] 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 , cert. denied, 409 U.S. 912 , 34 L. Ed. 2d 173 , 93 S. Ct. 230 .)” ( 63 Ill. 2d 1, 6 .)

This defendant is not “directly affected” by the statute in the traditional sense in which that phrase was used in Bradley and People v. Bombacino (1972), 51 Ill. 2d 17 . Due process is not offended by applying this statute to this defendant, as Bradley clearly states ( 79 Ill. 2d 410, 419 ), for the heroin he represented he was selling would have been a schedule I substance. Only the due process rights of those delivering substances represented to be schedule IV or V substances are violated by this statute, and defendant is not one of them. Bradley plainly indicates that the defect is not “so pervasive as to render the entire act invalid,” and we are not compelled, as my colleagues seem to believe, to invalidate the statute.

In Bombacino this court held that the defendant did not have standing to assert the alleged unconstitutionality of section 2—7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 702—7(3)) on the grounds that it gave appellate powers to the chief judge of the circuit court, since he was not transferred to the criminal division under that statute. Citing City of Chicago v. Lawrence (1969), 42 Ill. 2d 461 , appeal dismissed and cert. denied (1969), 396 U.S. 39 , 24 L. Ed. 2d 208 , 90 S. Ct. 263 , the court said: “One who would attack a statute as unconstitutional must bring himself within the class as to whom the law is unconstitutional.” ( 51 Ill. 2d 17, 20 .) In City of Chicago the court held that since the evidence plainly indicated deliberate conduct, the defendants did not have standing to raise the due process argument that the ordinance lacked a requirement that the offense was committed “knowingly.” ( 42 Ill. 2d 461, 464 ; cf. United States v. Salvucci (1980), 448 U.S. 83 , 65 L. Ed. 2d 619 , 100 S. Ct. 2547 ; Rawlings v. Kentucky (1980), 448 U.S. 98 , 65 L. Ed. 2d 633 , 100 S. Ct. 2556 (no automatic standing to contest validity of search because of possessory interest in items seized).)

I would affirm the judgment.

RYAN, C.J., and GOLDENHERSH, J., join in this dissent.