FOURTH DIVISION

								jJune UNE 27, 2002

1-99-2845

THE PEOPLE OF THE STATE OF ILLINOIS,	) Appeal from the

								) Circuit Court of

		Respondent-Appellee,		) Cook County.

								)

	v.							) 

								)

DANNY GHOLSTON,					) Honorable

								) Catherine M. Haberkorn,

		Petitioner-Appellant. 		) Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	Petitioner, Danny Gholston, appeals from the dismissal of his

post-conviction petition.  Petitioner was one of nine men who attacked a 15 year-old-girl and her two male friends on an elevated

train platform as they waited for a train on December 27, 1980. 

Following a jury trial, petitioner was convicted in 1981, of rape,

deviate sexual assault, indecent liberties with a child, and

aggravated battery against the girl; and robbery, aggravated

battery, and conspiracy to commit robbery against the two boys. 

Petitioner was sentenced to the following concurrent extended term

sentences:  (1) 50 years for rape; (2) 50 years for deviate sexual

assault; (3) 25 years for indecent liberties with a child; (4) 10

years for robbery; and (5) eight years for aggravated battery. 

Petitioner’s convictions and sentences were affirmed on direct

appeal.  People v. Gholston, 124 Ill. App. 3d 873, 464 N.E.2d 1179 (1984) (Gholston).   

	Petitioner filed a pro se post-conviction petition which was summarily dismissed.  On May 24, 1988, this court reversed the summary dismissal and remanded for further proceedings because the

summary dismissal had not taken place within the statutorily

requisite 30 days after the filing of the petition.  On remand,

defendant moved successfully for DNA testing.  The test results

were inconclusive due to the absence of sufficient semen from the

Vitullo Kit to test.  

	On December 15, 1998, defendant filed a supplemental petition

for post-conviction relief alleging that his due process rights

were violated because the forensic testing done at the time of

trial had used all of the semen in the Vitullo Kit.  On May 7,

1999, a second supplemental petition was filed asking for an

evidentiary hearing.  On July 30, 1999, the circuit court granted

the State’s motion to dismiss the petition.

	On appeal here, petitioner contends only that his extended term sentences, which were based on the circuit court's finding

that the offenses were accompanied by exceptionally brutal and

heinous behavior indicative of wanton cruelty (Ill. Rev. Stat.

1979, ch. 38, sec. 1005-8-2 (now 730 ILCS 5/5-8-2 (West 2000));

Ill. Rev. Stat. 1979, ch. 38, sec. 1005-5-3.2(b)(2) (now 730 ILCS

5/5-3.2(b)(2) (West 2000))), violate the United States Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Apprendi).     

	Before reaching the merits of petitioner's Apprendi claim, it must be determined first whether Apprendi should be applied to cases on collateral review.  There has been disagreement among the 2divisions of the First District as to whether Apprendi should be applied retroactively to collateral proceedings.  See People v. Kizer, 318 Ill. App. 3d 238, 741 N.E.2d 1103 (1st Dist., 1st Div. 2000) (Kizer) (holding that Apprendi does not apply retroactively); People v. Beachem, 317 Ill. App. 3d 693, 740 N.E.2d 389 (1st Dist., 3d Div. 2000) (Beachem) (holding that Apprendi does apply retroactively).  Some members of the present panel of this division

joining in this decision previously have adopted the reasoning of Beachem and haves held that Apprendi applies retroactively to timely-filed initial post-conviction petitions.1  The reasons set forth below form the bases of support for our decision to change

course and follow Kizer, and now conclude applying Apprendi retroactively to post-conviction proceedings is in error. 

	First, as noted, disagreement continues among the Appellate

Districts, as well as the divisions of the First District, as to

whether Apprendi should be applied retroactively to collateral proceedings.2  This unbalanced split among the divisions has created the unfair, unpredictable, unstable and undesirable

situation in which the determination of whether a post-conviction

petitioner’s Apprendi claim will be considered rests entirely on chance, i.e., to which division the appeal is assigned randomly by

computer.3 

	Second, in People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990) (Flowers), the Illinois Supreme Court adopted the United States Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (Teague) holding that a new constitutional rule of criminal procedure is not applied

retroactively to cases pending on collateral review unless the rule

falls within one of two narrow exceptions.  Both the Beachem and Kizer lines of cases agree that Apprendi does not fall within the first Teague exception.  Kizer, 318 Ill. App. 3d at 247; Beachem, 317 Ill. App. 3d at 699.

	The cases diverge, however, regarding the application of the

second Teague exception, which provides that a new rule should be given retroactive application if it requires the observance of

those procedures that are implicit in the concept of ordered

liberty.  Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1076.  It is undisputed that this exception must be construed narrowly.  Flowers, 138 Ill. 2d at 242.  The exception encompasses only “watershed rules of criminal procedure” that are necessary to

the fundamental fairness of a criminal proceeding and should be

limited to those new rules without which the likelihood of an

accurate conviction is seriously diminished.  Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077.  It is not enough,

however, to say that the new rule is aimed at improving the accuracy of trial.  “A rule that qualifies under this exception

must not only improve accuracy, but also 'alter our understanding

of the bedrock procedural elements’ essential to the fairness of a

proceeding.”  Sawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990) (Sawyer), quoting Teague, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1076. 

	Beachem found that Apprendi falls within the second Teague exception and applies retroactively to post-conviction proceedings,

because the rights affirmed in Apprendi are “at the core of our criminal justice system.”  Beachem, 317 Ill. App. 3d at 700.  When a defendant is sentenced to an extended term, the facts that lead

to an enhanced sentence become elements of the offense.  Beachem, 317 Ill. App. 3d at 701.  Therefore, when those enhancing factors

are not charged in the indictment, submitted to the jury, and

proved beyond a reasonable doubt, a defendant sentenced to an

extended term serves the prescribed statutory maximum sentence but

“remains in prison on a charge never made and never proved.” 

Beachem, 317 Ill. App. 3d at 702.  The court found that under such circumstances, the sentence violates the procedures implicit in the concept of ordered liberty.  Beachem, 317 Ill. App. 3d at 706.

	In Kizer, after considering our supreme court’s application of the second Teague exception in Flowers, the appellate court held that Apprendi does not apply retroactively to cases on collateral review.  In Flowers, our supreme court declined to apply its decision in People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (1988) (Reddick) (ruling that the jury instructions regarding the elements of murder and voluntary manslaughter were unconstitutional

when given together because they misallocated the burden of proof,

effectively precluding the jury from returning a verdict of

voluntary manslaughter rather than murder), to cases pending on

collateral review.  Although proper instructions are essential to

a fair trial, the Reddick rule was held not to fall within the second Teague exception because it did not establish “such a component of basic due process as to fall within it.”  Flowers, 138 Ill. 2d at 242. 

	The Kizer court noted that, although the Flowers court recognized Reddick's change in the law with regard to the burden of proof and the elements of the offense of voluntary manslaughter,

nevertheless, Reddick was not applicable to cases pending on collateral review, indicating how narrowly our supreme court

interprets the second Teague exception.  The Kizer court concluded that the Reddick decision implicated the right to a jury verdict beyond a reasonable doubt because the instructions tendered to the

jury misstated the appropriate burden of proof.  Kizer, 318 Ill. App. 3d at 251.  The court explained:  

“The burden of proof problem in Reddick exposed defendant to the danger of

deprivations just as unfair as any deriving

from the Apprendi problem.  In Apprendi the Court was concerned that the defendant was being sentenced to what amounted to a greater

crime rather than a lesser one on the basis of

a factor found by merely a preponderance of

the evidence rather than beyond a reasonable

doubt. [Citation.] In Reddick, however, the court found that the instructions made it not

just less likely, as the lower standard of

proof made it in Apprendi, but impossible for a finder of fact following the burden of proof

instructions to find the defendant guilty of

the lesser crime rather than the greater

crime.”  Kizer, 318 Ill. App. 3d at 252.  

Because the rules announced in both Reddick and Apprendi involved the right to a jury verdict beyond a reasonable doubt and the

supreme court determined that the Reddick rule did not fall within the second Teague exception, the Kizer court concluded that the rule announced in Apprendi did not fall within the second Teague exception.

	Third, the Kizer court noted that the second Teague exception must be narrowly construed so as to recognize that “application of

constitutional rules not in existence at the time a conviction

became final seriously undermines the principle of finality which

is essential to the operation of our criminal justice system.” 

Kizer, 318 Ill. App. 3d at 248, quoting Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074. 

	Significantly, as the courts in Beachem and McGee have noted, neither the United States Supreme Court nor the Illinois Supreme Court has ever found that a new rule qualifies for retroactivity

under the second Teague exception.  317 Ill. App. 3d at 702 n.4; 328 Ill. App. 3d at 934; see also Sanders, 247 F.3d at 148.  The Supreme Court repeatedly has pointed to Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) (Gideon) as an example of a watershed rule of criminal procedure which "'alter[s]

our understanding of the bedrock elements essential to the fairness

of a proceeding.'"  Sanders, 247 F.3d at 151, quoting Sawyer, 497 U.S. at 242, 111 L. Ed. 2d at 211, 110 S. Ct. at 2831.  In an

unpublished opinion,4 the Sixth Circuit of the United States Court of Appeals construed Gideon and Apprendi in context of the second Teague exception, noting that "the accuracy that is improved by the Apprendi requirement is the better imposition of a proper sentence.  In contrast, the accuracy that is improved by the rule of Gideon involves the basic determination of the defendant's guilt or

innocence.  By requiring that all defendants being charged with a

serious crime are represented by counsel, Gideon protects the innocent from conviction.  Apprendi merely limits the potential penalty to be imposed on a defendant."  Goode v. United States, No. 01-1340, slip op. at 5 (6th Cir. May 10, 2002). 

	The United States Supreme Court has refused to apply Teague retroactively to its findings in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) (Batson) and other cases related to the rule established in Gideon.  See Moss, 252 F.3d at 993 (noting that "Apprendi appears no more 'important' to a fair trial than rules previously addressed by the Court in Batson ***"); Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594 (1989) (whether a district court's order that a defendant not speak

with his counsel during a court recess violated his Sixth Amendment

right to the assistance of counsel was not applied retroactively

under Teague); Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994) (whether the Sixth Amendment

prohibits a sentencing court from considering a defendant's

previous uncounseled misdemeanor conviction in sentencing him for

a subsequent offense was not applied retroactively under Teague); Smith v. Robbins, 528 U.S. 259, 145 L. Ed. 2d 756, 120 S. Ct. 746 (2000) (whether a state procedure that permits appointed counsel to

withdraw without informing the court that the appeal would be

frivolous violates the indigent defendant's right to appellate

counsel was not applied retroactively under Teague).  The Fourth Circuit of the United States Court of Appeals noted that

application of retroactivity to these cases "would nullify Teague's admonition that retroactive application of new constitutional rules

on collateral review is reserved only for truly exceptional cases." 

Sanders, 247 F.3d at 151.

	The Sanders court also recognized that a rule which merely shifts the factfinding duties from an impartial judge to a jury

clearly does not fall within the scope of the second Teague exception.  247 F.3d at 148; see also Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999) (holding that a

district court's failure to submit a finding of materiality to the

jury was harmless error).  The court further noted that,

"[c]ertainly, if having a judge rather than a jury consider an

element of the offense amounts only to harmless error, then a new

rule mandating a jury to decide an issue rather than a judge cannot

fall within the scope of the second Teague exception."  Sanders, 247 F.3d at 149.  The Second Circuit of the United States Court of

Appeals, in Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir. 1997), recognized that the Supreme Court in United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995) "merely shift[ed] the determination of materiality from the judge

to the jury" and there is "little reason to believe that juries

will have substantially different interpretations of materiality

than judges." 

	The same reasoning applies in the instant case; there is

little reason to believe that a jury would have had a substantially

different interpretation of the brutal and heinous nature of the

crimes committed than the circuit judge.  As many federal and state

courts have recognized, it is possible for a criminal defendant to

have had a fair and accurate trial without the new procedural

protection offered by Apprendi. 

	In the present case, petitioner seeks review of a sentence

imposed 21 years ago.  Due to the significant time that has passed

since petitioner’s conviction and sentencing, to order a new

sentencing hearing now would place an unfair, if not impossible,

burden on the factfinder and on the administration of justice.  A

new sentencing hearing would require the factfinder to seek out

such 21-year-old evidence as may still be found, re-evaluate any

such  evidence out of context of time and circumstances, as well as

any evidence which may not be found, and conclude within a new

milieu what a previous factfinder already has considered, all in

order to tag the subject conduct as brutal and heinous.  As the

Supreme Court noted in Teague, the costs imposed upon the States by retroactive application of new rules of constitutional law

generally far outweigh the benefits of such application, which

"continually forces the States to marshal resources in order to

keep in prison defendants whose trials and appeals conformed to

then-existing constitutional standards."  Teague, 489 U.S. at 310, 103 L. Ed. 2d at 355, 109 S. Ct. at 1075.

	Fourth, during the 21 years since his conviction and

sentencing, petitioner has utilized just about every avenue

provided by the criminal justice system to the fullest extent.  He

challenged his conviction and sentences on direct appeal.  The

summary dismissal of his pro se post-conviction petition was reversed.  On remand, counsel was appointed and petitioner was

granted DNA testing.  Counsel then filed two supplemental post- conviction petitions, which were considered by the circuit court. 

As fundamental justice requires, petitioner was afforded every

opportunity to refute the charges against him and controvert the

State’s proof; clearly, no due process violation has occurred.  See

People v. Melock, 149 Ill. 2d 423, 465, 599 N.E.2d 941 (1992); People v. Harlacher, 262 Ill. App. 3d 1, 6, 634 N.E.2d 366 (1994).

	Fifth, the United States Supreme Court recently has shed some

light on its own approach to the application of Apprendi.  In United States v. Cotton, ___ U.S. ___, ___ L. Ed. 2d ___, 122 S. Ct. 1781 (2002) (Cotton), the Court considered whether the omission from a federal indictment of a fact that enhances the statutory

maximum sentence justifies a court of appeal's vacatur of the

enhanced sentence, although defendant did not object in the

district court.  The Supreme Court applied the plain-error test of

Federal Rule of Criminal Procedure 52(b) to defendant’s forfeited

claim.  "Under that test, before an appellate court can correct an

error not raised at trial, there must be (1) 'error,' (2) that is

'plain,' and (3) that 'affect[s] substantial rights.' [Citation.] 

If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if

(4) the error seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.”  Johnson v. United States, 520 U.S. 461, 466-67, 137 L. Ed. 2d 718, 727, 117 S. Ct. 1544, 1549 (1997) (Johnson), quoting United States v. Olano, 507 U.S. 725, 732, 123 L. Ed. 2d 508, 518, 113 S. Ct. 1770, 1776 (1993).  The Supreme Court noted the indictment’s failure to allege

a fact, drug quantity, that increased the statutory maximum

sentence, rendered defendant’s enhanced sentences erroneous under Apprendi and that the error was plain, but found it unnecessary to determine whether defendant satisfied the third element of the

plain-error inquiry.  This was so, the Supreme Court held, because,

assuming that defendant's  substantial rights were affected, the

error did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings, where based on the evidence. 

The Supreme Court asserted, “[s]urely the grand jury, having found

that the conspiracy existed, would have also found that the

conspiracy involved at least 50 grams of cocaine base.”  Cotton, ___ U.S. at ___, ___ L. Ed. 2d at ___, 122 S. Ct. at 1786.

	As the Supreme Court found in Cotton, and based on the facts in the present case, surely no reasonable and rational jury, having

found that petitioner was guilty beyond a reasonable doubt, would

have found that these crimes were anything other than brutal and heinous.  The  victims in this case were brutally attacked as they

stood waiting for an “el” train on the platform.  The two male

victims were beaten and robbed.  Their 15-year-old female companion

was pushed down onto the platform and repeatedly gang raped and

forced to commit deviate sexual acts by at least five men,

including petitioner.  As one defendant would rape her, another

would forcibly insert his penis into her mouth.  Several defendants

placed their hands around the victim's neck and choked her during intercourse.  As the last defendant finished raping her, the victim

begged him not to kill or hurt her; nevertheless, before he stood

up, he hit the girl in the face very hard.  Gholston, 124 Ill. App. 3d at 880.  The foregoing facts were presented to the jury at the

time of trial, which found defendant guilty.  Recognizing the

difficulty in determining brutality and heinousness from fact

situation to fact situation, insofar as the stability and

foreseeability aspects of punishment may be involved, it is

contrary to human experience and reason that the conduct involved

in this case should be placed into the technical reservoir of

requiring a new sentencing hearing solely for the purpose of

attaching a label of "brutal and heinous" to the conclusion earlier

reached by the factfinder.  Surely these facts would be recognized

by any rational and reasonable person as requiring an  enhanced

sentence.5  The facts of this case demonstrate the inappropriateness of applying Apprendi retroactively to cases on collateral review.  

	On this record there is no basis for concluding that any error

seriously affected the fairness, integrity or public reputation of

the judicial proceedings.  Indeed, it would be the vacatur of

petitioner’s sentence that would have such an effect.  Prisoners

should not be misled into believing that every sentencing issue,

already substantially decided a generation ago by previous

factfinders, can be altered through some magic door such as

Apprendi.  Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000).  As the Supreme Court noted in Cotton, “the fairness and integrity of the criminal justice system depends on meting out to those

inflicting the greatest harm on society the most severe

punishments.”  Cotton, ___ U.S. at ___, ___ L. Ed. at ___, 122 S. Ct. at 1787.  "'Reversal for error, regardless of its effect on the

judgment, encourages litigants to abuse the judicial process and

bestirs the public to ridicule it.'"  Johnson, 520 U.S. at 470, 137 L. Ed. 2d at 729, 117 S. Ct. at 1550,  quoting R. Traynor, The

Riddle of Harmless Error 50 (1970).  

	The facts of this case demonstrate the futility of attempting to secure fairness and justice by applying hyper-technical concepts

to such cases and the inappropriateness of applying Apprendi retroactively to cases on collateral review.   Therefore, we adopt

the reasoning of Kizer, and find that Apprendi does not retroactively apply to cases on collateral review.  Consequently,

the merits of petitioner’s Apprendi claim need not be addressed. 

	Accordingly, for the reasons set forth above, the judgment of the circuit court of Cook County dismissing petitioner’s post-

conviction petition is affirmed and petitioner’s extended term

sentences are affirmed. 

	Affirmed.

	HOFFMAN, P.J. and KARNEZIS, J., concur.