BARDGETT, Judge.
Appellant Jerry Mitchell appeals from the conviction and sentence of seven years entered on his plea of guilty to a charge of selling marihuana in violation of secs. 195.-017 and 195.200, RSMo Supp.1975. The two points made on this appeal are: 1) The classification of marihuana in schedule I of sec. 195.017 and the consequent punishment of marihuana offenses are set forth in sec. 195.200 deny appellant equal protection of the law in violation of the United States Constitution, Amendment 14, on the grounds that the classification of marihuana is arbitrary, erroneous, and irrational, and 2) the punishments provided for offenses involving the sale of marihuana under sec. 195.200 have no rational relationship to the gravity of the offense and are, therefore, facially unconstitutional as cruel and unusual punishment as applied to appellant. This court has jurisdiction under art. V, sec. 3, Mo.Const., as amended.
Appellant was charged with the sale of marihuana. It appears that the offense consisted of the sale of approximately 11 grams of marihuana for $5.00 in August of 1975. Very shortly after being charged, counsel was appointed for him. Appellant subsequently retained counsel and has had the benefit of an attorney throughout the proceedings.
On April 13, 1976, appellant with counsel appeared in the circuit court of Howell county and pled guilty to the charge. The circuit judge questioned appellant extensively about his understanding of the charge, the range of punishment being from five years to life in the penitentiary, and various other matters pertaining to the proceedings, including a clear understanding on appellant’s part as well as the court’s that the only arrangements that had been made between defense counsel and the prosecutor with reference to the plea of guilty were that (a) the prosecutor would recommend there be a presentence investigation, and (b) the state would make no other recommendations in the case, and (c) the court would dismiss a certain case No. 3407. The substance of the charge in case No. 3407 was not further described at the time of the plea of guilty, but at a subsequent hearing the record reflects the dismissed charge was one of selling a larger quantity of marihuana which the defendant admitted along with admitting other sales of marihuana in that same area. At the time appellant entered his plea, and on advice of counsel, appellant declined to reveal to the court any of the facts pertaining to the charge to which he was pleading guilty on the premise that he desired to enter a plea of guilty under the precepts of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court made it clear to appellant that the court, after considering the presentence investigation, but not being bound by it, may sentence the appellant to a long term, to a short term, or may put him on probation. Appellant was also given the opportunity of withdrawing his plea of guilty on the day it was entered, which appellant declined. The plea of guilty was accepted and the matter was reset for June 8, 1976, the intervening time being necessary for the preparation of a pre-sentence investigation.
On June 8 the parties and attorneys again appeared in court and appellant was asked if he persisted in his plea of guilty entered on April 13, to which he replied [22]*22“Yes, sir.” The court stated its thoughts concerning the type of offense involved in the sale of marihuana, its seriousness, and its effect upon younger people and the community. The court then sentenced defendant to twelve years in the penitentiary and denied probation.
On June 14,1976, appellant filed a motion to withdraw his plea of guilty and set aside the sentence in circuit court. A hearing on this motion took place on July 9, 1976.1 By this time the case had attracted some national attention and attorneys from other parts of the country representing organizations interested in the reform of marihuana laws entered their appearance as co-counsel for appellant. At the outset of this hearing, one of the attorneys for appellant advised the court that he had discussed the matter with the other counsel and with appellant and it was appellant’s desire to withdraw the motion to set aside the guilty plea and that appellant desired to make a further statement to the court. The appellant then told the court that he was guilty of two charges of sale and that he had sold marihuana on other occasions. One of the sales involved a much larger quantity of marihuana to some undercover agent. The record reflects that appellant admitted to having been in the circuit court of Howell county before on previous charges of possession of a controlled substance and had been placed on probation. Further colloquy took place between the court and appellant concerning marihuana during which each expressed his view as to its effect upon users. The court indicated that he believed there had been a change in the attitude on the part of the appellant since the date of sentencing a short time before and the court was, therefore, going to set aside the twelve-year sentence and impose a seven-year sentence, which the court did. The record reflects in general a satisfaction on the part of the defense side of the case with the manner in which the circuit court handled the sentencing; however, at the same time, a very respectful but strong viewpoint was stated to the effect that the classification of marihuana and the statutory punishments therefor were unconstitutional. The trial court disagreed but encouraged the defense to seek an appellate adjudication in this case on the question of the constitutionality of the Missouri statutes relating to marihuana.
This appeal is limited to consideration of the facial constitutionality of the statutes relating to the sale of marihuana. It is obvious from the statement of facts that there is no question but what the appellant violated the terms of the statute by making a sale of marihuana. That is admitted.
On this appeal the appellant challenges the constitutionality of sec. 195.017, RSMo Supp.1975 (classification of marihuana as a schedule I substance) and sec. 195.200, sub-sec. 1(4), RSMo Supp.1975 (penalty provision for sale of schedule I substances, which includes marihuana).
The initial issue is whether the appellant preserved the issues he now seeks to raise on appeal in light of the fact he pled guilty to the offense. We think this question is answered by Kansas City v. Hammer, 347 S.W.2d 865, at 868 (Mo.1961), wherein the court stated:
“This state is thoroughly committed to the proposition that the unconstitutionality of an ordinance or statute on which a prosecution is based cannot be waived. The invalidity of such an act on constitutional grounds goes to the subject matter of the prosecution and may be raised at any stage of the proceedings, even by a collateral attack after conviction. Ex [23]*23parte Lerner, 281 Mo. 18, 218 S.W. 331; Ex parte Taft, 284 Mo. 531, 225 S.W. 457; Ex parte Smith, 135 Mo. 223, 229, 36 S.W. 628, 33 L.R.A. 606; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; and State v. Finley, 187 Mo.App. 72, 172 S.W. 1162.”
Kansas City v. Hammer, supra, did not involve a guilty plea but it is well settled in this state that jurisdictional defects and defenses are not waived by entering a guilty plea. State v. Cody, 525 S.W .2d 333 (Mo. banc 1975); Kansas City v. Stricklin, 428 S.W.2d 721 (Mo. banc 1968). It is apparent therefore that appellant did not waive his objections to the facial constitutionality of the statute under which he was convicted since, if it were found facially unconstitutional, the appellant could not have been legally convicted and incarcerated for its violation.
Appellant does not contend that the sale of marihuana is a fundamental right. Accordingly, to determine whether the scheme of statutory classification set forth in sec. 195.017 violates the strictures of the equal protection clause, the appropriate standard to be applied is the “rational basis test”. The rules pursuant to which the appellant’s case must be tested were set forth in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 69 (1911):
“1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
In other words, it must be determined whether the legislature in classifying marihuana in schedule I had a rational reason for doing so or whether the classification is arbitrary. If arbitrary, the statute must be held unconstitutional.
The court is guided in its determination by the standards for classifying schedule I substances set forth in sec. 195.017 as well as by the relationship of marihuana to the other substances listed in schedule I. If there is presently no reasonable basis for the legislature concluding that marihuana “(1) has high potential for abuse; and (2) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision”, as those standards relate to other schedule I substances, sec. 195.017 would be unconstitutional as it relates to marihuana.
In making this determination, the court is not bound to use only that information available to the legislature when it enacted the statute, but we are also guided by information presently available. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Leary involved a situation in which the court was judging the constitutionality of a statutory presumption. The court did not limit itself to information available at the .time when the presumption was enacted, but it also considered more recent information to determine what effect, if any, the new information had on the validity of the presumption.
In pertinent part, sec. 195.017, RSMo Supp.1975, provides:
“1. The division of health shall place a substance in Schedule I if it finds that the substance:
(1) has high potential for abuse; and
(2) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.
[24]*242. Schedule I: (1) The controlled substances listed in this subsection are included in Schedule I.
(2) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation:
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(3) Any of the following opium derivatives, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation:
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(j) Heroin;
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(4) Any material, compound, mixture or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:
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(i) Lysergic acid diethylamide;
(j) Marihuana;
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The punishment for sale of marihuana is provided for in sec. 195.200, subsee. 1(4): “Except as provided in paragraph (c) of subdivision (1) of subsection 1 of this section, for the offense of selling, giving or delivering any controlled substance listed in Schedule I or II, to a person, by imprisonment in a state correctional institution for a term of not less than five years nor more than life imprisonment.”
Although no evidence was submitted by the appellant to the trial court, we have reviewed the documents he has submitted to the court.2 After studying these materials and the briefs of the parties, we have determined that marihuana is not improperly classified in Schedule I.
In Missouri the legislature does not provide a comprehensive legislative history; therefore, the court is relegated to looking elsewhere for such information. Since Missouri’s Narcotic Drug Act, specifically sec. 195.017, is patterned after 21 U.S.C. sec. 812 of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, it is appropriate to consider the legislative history provided by the United States Congress to aid us in our understanding of sec. 195.-017. 1970 U.S.Code Cong, and Admin.News p. 4566.
The appellant directs the court’s attention to two cases from other jurisdictions, People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971), and People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), in which the classification of marihuana was found to be unconstitutional. Both of these cases, however, are different from the instant case. McCabe involved a statute which classified marihuana as a narcotic drug. There was another statute in Illinois at the time, the Drug Abuse Control Act, which included hallucinogens and barbiturates. The penalties under the Drug Abuse Control Act were significantly less than those for substances in the Narcotic Drug Act. The Narcotic Drug Act provided for a ten-year-mandatory-minimum sentence for the sale of marihuana, whereas, the Drug Abuse Control Act provided a one-year-maximum jail term for the sale of substances contained in it. After considering the relevant scientific, medical and social data about the various substances in both acts, the court found that marihuana was improperly classified in the Narcotic Drug Act because it had characteristics “much more in common with the barbiturates, amphetamines and, [25]*25particularly, the hallucinogens than it does with the ‘hard drugs’ . . . 275 N.E.2d at 412. The court went on to say at 412 that “one cannot reasonably distinguish marijuana from the substances under the Drug Abuse Control Act.” It was on this basis that the court held marihuana was misclassified and violated the equal protection clause. The McCabe view was rejected by division one of this court in State v. Burrow, 514 S.W.2d 585 (Mo.1974).
People v. Sinclair, supra, involved a similar statutory scheme. Michigan classified marihuana with narcotic drugs like opium, morphine, and heroin. M.C.L.A. sec. 335.-151. Hallucinogens were classified in M.C. L.A. sec. 335.106 and were punished less severely than offenses involving marihuana. The court, however, described marihuana as a mild hallucinogen and concluded on this basis that there was no rational basis to penalize an offense involving marihuana more severely than offenses involving other hallucinogens. 194 N.W.2d at 884. The decision in Sinclair was a plurality opinion which reversed the conviction and discharged the defendant. The plurality for that result consisted of two judges being of the opinion that statutory categorization of marihuana along with “hard drug” narcotics for purposes of imposition of penalties denied equal protection, one judge being of the opinion that the statute denied right to liberty and pursuit of happiness, two judges being of the opinion that the marihuana cigarettes which were introduced in evidence should have been excluded as evidence obtained as a result of illegal entrapment, and three judges being of the opinion that a minimum sentence of nine and one-half years constituted cruel and unusual punishment. As such, the opinion in Sinclair constitutes very little authority for any singular proposition.
Unlike the statutes found unconstitutional in Illinois and Michigan, Missouri classifies marihuana with other hallucinogens and not as a narcotic. Although hallucinogens, such as LSD (lysergic acid diethyla-mide), mescaline, peyote, and marihuana are schedule I substances, which schedule also includes heroin and opiates, they are separately classified under sec. 195.017, sub-sec. 2(4). Sec. 195.200, subsec. 1(4), does not penalize the sale of marihuana any more severely than the sale of other hallucinogenic substances, and the fact that the sale of marihuana is punished the same as the sale of narcotic substances does not deny appellant equal protection of the law. Thus, the Missouri statute is not subject to the same constitutional infirmities as the statutes considered in McCabe and Sinclair. Furthermore, a number of jurisdictions, including Connecticut, Alabama, South Dakota, Arizona, and the federal government, with a classification scheme similar to that employed in Missouri, have held the classification scheme provided in the Uniform Controlled Substances Act does not deny equal protection. See, for example, State v. Rao, 171 Conn. 600, 370 A.2d 1310 (1976).
Both Marihuana: A Signal of Misunderstanding at 177, and Drug Use In America: Problem in Perspective at 460^461, recommend that marihuana be classified according to the scheme set forth in the Uniform Controlled Substances Act, which is the scheme presently used in Missouri. It should be pointed out, however, that both reports also recommend penalties significantly less severe for marihuana offenses than those presently in force in Missouri.
Appellant contends he is denied equal protection because marihuana is less harmful than alcohol and tobacco which are not proscribed. He makes the same argument with respect to barbiturates because their sale, although proscribed, is punished less severely than the sale of marihuana. This argument, however, is without merit. As to alcohol and tobacco, the legislature’s decision to prohibit some harmful substances does not thereby constitutionally compel it to regulate or prohibit all harmful substances. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973). This same reasoning applies to the punishment assessed for the sale of barbiturates. Barbiturates are different from marihuana and [26]*26regardless of the fact they may .be more harmful than marihuana this does not require the legislature to punish their sale more severely than marihuana or proscribe them at all.
Appellant also claims he was denied equal protection because the offense of delivery of marihuana for no remuneration is punished less severely than sale of marihuana. This, however, loses sight of the principle “that ‘[classification of the subjects of legislation is not prohibited by the equal protection of the laws clauses of the United States and State constitutions “if all within the same class are included and treated alike,” . . . ; [or] “if all persons in the same class are treated with equality,” . . .’” State v. Ewing, 518 S.W.2d 643, 646 (Mo.1975). The legislature could distinguish between transfers for remuneration and those without, the former carrying the implication of trafficking in drugs. Furthermore, the persons within each of these classes are treated equally and, therefore the fact that the offenses are punished differently does not violate the equal protection clause.
Appellant also argues that marihuana has been misclassified in schedule I because it does not come within the criteria established by the legislature for those substances, to wit, the substance: “(1) has high potential for abuse; and (2) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” Sec. 195.017, subsec. 1. It should be recalled at this point that there is a presumption in favor of a statute’s constitutionality; the statutory classification should be upheld if it is premised on a rational basis; and the appellant has the burden of proving the statute is unconstitutional. United States v. Carotene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The appellant has failed to carry this burden of proof.
Although he has directed the court’s attention to numerous studies which comment on the harmlessness of marihuana, there are, however, other authorities which take a contrary view regarding the hazards involved in using marihuana. The present state of knowledge of the effects of marihuana is still incomplete and is marked by much disagreement and controversy. In United States v. Carolene Products, supra, the court stated at 153-154, 58 S.Ct. at 784: “Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry . . . . But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” A body of knowledge does exist upon which the legislature could have rationally relied in deciding to classify marihuana in schedule I. In light of the fact that we are dealing with a debatable medical issue, we cannot conclude that the legislature acted arbitrarily or irrationally in placing marihuana in schedule I. See United States v. Kiffer, supra, and State v. Rao, supra.
The appellant next contends that the punishments provided for the sale of marihuana — five years to life imprisonment — have no rational relationship to the gravity of the offense and, as such, are cruel and unusual both on the face of the statute and as applied to appellant. Courts in this state have traditionally held that so long as the punishment meted out is within the statutory limits it does not violate the Eighth Amendment to the U. S. Constitution. This, though, is not an immutable fact; punishments prescribed by the legislature are subject to some judicial review. In State v. Johnson, 549 S.W.2d 348, 352 (Mo.App.1977), it was stated, “our courts have repeatedly held that a punishment which is within the statutory limits for the offense, . is not cruel and unusual because of its duration unless so disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” (Emphasis supplied.)
[27]*27With respect to the statutory range of punishment, or more particularly the statutory minimum sentence of five years, the court holds, on the record here, that such is not facially cruel and unusual punishment for the sale of marihuana and is, therefore, not unconstitutional. It is, of course, recognized that people do and will differ in their opinions concerning the use of marihuana and, consequently, also differ in whether its use, distribution, or sale should be proscribed and, if proscribed, what the penalties should be. This is, however, a matter for the legislative branch of government. The court should not invalidate a statutory minimum penalty unless the court can say with confidence that the minimum term of five years bears no rational relationship to the severity of the crime of selling marihuana. As noted supra, there are differing views among people, including judges and legislators, concerning marihuana. The record here does not persuade us that there is no rational relationship between the offense and the statutory minimum sentence.
Appellant also contends that the seven-year sentence he received is cruel and unusual punishment in the circumstances of this case. The “circumstances” referred to by appellant are that he is nineteen years old with no history of violent crime but had simply delivered a small amount of marihuana to an adult. Appellant points out that he could not be considered a wholesale racketeer or a major threat to society.
The facts set forth in the first portion of this opinion and which came to light at the July 8th hearing, and the changed attitude of the appellant concerning his conduct, were considered by the trial court as justification for both setting aside the twelve-year sentence and imposing the seven-year sentence. The court holds the seven-year sentence is not cruel and unusual punishment.
The judgment is affirmed.
MORGAN, C. J., FINCH, J., and SHAN-GLER, Special Judge, concur.
DONNELLY, J., concurs in result in separate opinion filed.
HENLEY, J., concurs in result and concurs in separate concurring opinion of DONNELLY, J.
SEILER, J., dissents in separate dissenting opinion filed.
RENDLEN, J., not sitting.
March 14, 1978: SHANGLER, Special Judge, withdraws concurrence and concurs in separate dissenting opinion of SEILER, J.
March 24, 1978: SEILER, J., withdraws dissenting opinion filed March 13, 1978, and files separate dissenting opinion this date in lieu thereof and also concurs in separate dissenting opinion of SHANGLER, Special Judge.
SHANGLER, Special Judge, files separate dissenting opinion and also concurs in separate dissenting opinion of SEILER, J., filed today.