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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