Illinois courts regard possession of a controlled substance with intent to deliver as a very serious offense. The issue in almost every case is whether the defendant is willing to risk going to trial or accept a probation offer.
Possession of a controlled substance is a felony offense under state law. Most lawyers and judges refer to the case as UPCS, for unlawful possession of a controlled substance. Cook County lawyers and judges call the offense PCS, for short.
For felony offenses, the punishment is one year or more imprisonment. When the defendant is accused of manufacture, delivery, or possession with intent to deliver, the law increases the punishment significantly.
The element of “intent to deliver” means the defendant was going to distribute (sell) the drug. On the other hand, if a distribution took place, then the charge is typically called “delivery of a controlled substance.” The “manufacture” of a controlled substance is exactly that, making the drug.
Possession of a controlled substance with intent to deliver in Illinois typically involves the following drugs: cocaine, heroin, ecstasy, methamphetamine, mushrooms, or LSD. Cocaine is by all measures the most common controlled substance. This is true whether it is powder cocaine or hard, rock cocaine (also called crack). Heroin and methamphetamine are probably the second most common drug, with methamphetamine being more common in southern Illinois.
The law classifies the offense of possession with intent to deliver as follows:
- Less than 1 gram is a Class 2 felony offense punishable by 3-7 years imprisonment in the Department of Corrections (DOC). Probation is possible. The fine can be $200,000.
- 1-15 grams is a Class 1 felony offense. The sentencing range is 4-15 years DOC. Probation is possible. The maximum fine allowed is $250,000.
- 15-100 grams is a Class X felony offense. All Class X felony offenses are nonprobationable. The judge is not legally authorized to sentence a defendant to probation. The mandatory minimum is 6 years DOC, with a maximum of 30 years. The fine can be $500,000.
- 100-400 grams is an enhanced Class X felony offense. The sentencing range is 9-30 years DOC. The offense is nonprobationable. These offenses are referred to as “Super X” offenses because the sentence exceeds the range for a typical Class X offense. The fine can be $500,000.
- 400-900 grams is an enhanced Class X offense with a sentencing range of 12-50 years prison (Super X). The fine can be $500,000.
- More than 900 grams is a Class X enhanced (Super X). The sentence is 15-60 years prison with no possibility of probation. The maximum fine is $500,000.
In cases involving delivery or possession with intent to deliver a controlled substance, the issue is whether the defendant would risk a guilty verdict at trial or accept a reduced charge for probation.
The primary way a defendant would receive a probation sentence in these cases is a reduction of the class of offense to a Class 2 felony for possession of less than 1 gram with intent to deliver. The author of this article recently represented a man in the Circuit Court of Lake County who was charged with a Class X offense of possession with intent to deliver after the police raided his home with a search warrant. He was found with multiple bags of cocaine. The man was looking at 6-30 years prison but received probation with no jail or prison whatsoever. (Case No. 09 CF 4393.)
There are two additional sentencing parameters to consider in these cases:
First, the manufacture, delivery, or possession with intent to deliver 5-15 grams is a nonprobationable offense. For example, a Class 1 felony (4-15 years prison) for possession with intent to deliver 1-15 grams is probationable. However, if the charge states that the defendant possessed with intent to deliver 5-15 grams, then probation is not possible.
Second, if the court sentences the defendant on a Class X charge for 100 grams or more, then the issue is whether the defendant would receive good conduct credit in the Department of Corrections. For most felonies, the defendant serves a sentence in DOC at 50 percent of the time stated on the sentencing order. The early release statute specifically says the sentence shall be serve at 50 percent.
However, for some serious felonies, the early release statute says the time is served at 75 to 85 percent of time, and in rare instances even 100 percent. For example, most firearms offenses (e.g., aggravated battery with a firearm) and sexual assaults (e.g., aggravated criminal sexual assault, predatory criminal sexual assault, etc.) will be served at 85 percent. First degree murder is served at 100 percent of time.
If the weight of the controlled substance is 100 grams or more, then the sentence is served at 75 percent of time. If the weight is less than 100 grams, however, the sentence is served at 50 percent of time.
The foregoing is an overview of the sentencing process in Illinois. If you or a loved one is charged with possession with intent to deliver, you should retain an attorney with substantial felony trial experience.