THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. DANNY GHOLSTON, Petitioner-Appellant, 332 Ill. App. 3d 179

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) 8 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 postconviction 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 postconviction 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, par. 1005—8—2 (now 730 ILCS 5/5—8—2 (West 2000)); Ill. Rev. Stat. 1979, ch. 38, par. 1005——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 divisions 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 have held that Apprendi applies retroactively to timely filed initial postconviction petitions. 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 postconviction 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. This unbalanced split among the divisions has created the unfair, unpredictable, unstable and undesirable situation in which the determination of whether a postconviction petitioner’s Apprendi claim will be considered rests entirely on chance, i.e., to which division the appeal is assigned randomly by computer. 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.” (Emphasis omitted.) Sawyer v. Smith, 497 U.S. 227, 242, Ill L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990) (Sawyer), quoting Teague, 489 U.S. at 311-12, 103 L. Ed. 2d at 356-57, 109 S. Ct. at 1076.

Beachem found that Apprendi falls within the second Teague exception and applies retroactively to postconviction 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 Ap prendí 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 so 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 defendants 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.” (Emphasis in original.) 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 Sawyer v. Smith, 497 U.S. 227, 242, Ill L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990), 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. Beachem, 317 Ill. App. 3d at 702 n.4; McGee, 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, 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 999 (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 fact-finding duties from an impartial judge to a jury clearly does not fall within the scope of the second Teague exception. Sanders, 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 fact finder and on the administration of justice.

A new sentencing hearing would require the fact finder to seek out such 21-year-old evidence as may still be found, reevaluate 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 fact finder 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.” (Emphasis omitted.) 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 postconviction petition was reversed. On remand, counsel was appointed and petitioner was granted DNA testing. Counsel then filed two supplemental postconviction 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, 535 U.S. 625, 152 L. Ed. 2d 860, 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.’ ” ’ [Citation.]” Johnson v. United States, 520 U.S. 461, 466-67, 137 L. Ed. 2d 718, 727, 117 S. Ct. 1544, 1548-49 (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, “[sjurely 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, 535 U.S. at 633, 152 L. Ed. 2d at 869, 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 fact finder. Surely these facts would be recognized by any rational and reasonable person as requiring an enhanced sentence.

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 fact finders, 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, 535 U.S. at 634, 152 L. Ed. at 869, 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 hypertechnical 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 postconviction petition is affirmed and petitioner’s extended-term sentences are affirmed. Affirmed. HOFFMAN, PJ., and KARNEZIS, J, concur. Among these cases are People v. Pendleton, Nos. 1—99—4021, 1—00—1154 cons. (August 30, 2001) (unpublished order under Supreme Court Rule 23); People v. Quinones, No. 1—99—1270 (August 30, 2001) (unpublished order under Supreme Court Rule 23); People v. Wilkins, No. 1—01—0536 (March 21, 2002) (unpublished order under Supreme Court Rule 23); People v.

Smith, No. 1—00—2967 (March 21, 2002) (unpublished order under Supreme Court Rule 23); People v. Anderson, No. 1—01—3387 (May 16, 2002) (unpublished order under Supreme Court Rule 23); People v. Kern, No. 1— 00—2944 (March 21, 2002) (unpublished order under Supreme Court Rule 23). The third division of the First District and the Third and Fifth Districts follow Beachem and hold that Apprendi applies retroactively to timely filed postconviction petitions. People v. Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (3d Dist. 2001), appeal allowed, 198 Ill. 2d 625 (2002); People v. Rush, 322 Ill.

App. 3d 1014, 757 N.E.2d 88 (5th Dist. 2001); People v. Johnston, 327 Ill. App. 3d 385, 763 N.E.2d 410 (5th Dist. 2002); People v. Kidd, 327 Ill. App. 3d 973, 765 N.E.2d 488 (1st Dist., 3d Div. 2002); People v. Fields, 331 Ill. App. 3d 335 (1st Dist., 3d Div. 2002); Beachem, 317 Ill. App. 3d at 706. The Second and Fourth Districts and those remaining divisions of the First District that have addressed this issue follow Kizer and hold that Apprendi does not apply retroactively to postconviction proceedings. People v. Wright, 329 Ill. App. 3d 462 (2d Dist. 2002); People v. McGee, 328 Ill.

App. 3d 930 (2d Dist. 2002) (McGee); People v. Helton, 321 Ill. App. 3d 420, 749 N.E.2d 1007 (4th Dist. 2001). People v. Stewart, 326 Ill. App. 3d 933, 762 N.E.2d 604 (1st Dist., 2d Div. 2001); People v. Scullark, 325 Ill. App. 3d 876, 759 N.E.2d 565 (1st Dist., 2d Div. 2001); People v. Montgomery, 327 Ill. App. 3d 180, 763 N.E.2d 369 (1st Dist., 6th Div. 2001); People v. Rovito, 327 Ill. App. 3d 164, 762 N.E.2d 641 (1st Dist., 6th Div. 2001); People v. Coulter, 321 Ill. App. 3d 644, 748 N.E.2d 240 (1st Dist., 6th Div. 2001); Kizer, 318 Ill. App. 3d at 252.

Further, every federal circuit court of appeals that has considered the issue has found that Apprendi does not apply retroactively to collateral proceedings. See, e.g., McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001) (Sanders); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (Moss); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000); In re Turner, 267 F.3d 225, 231 (3d Cir. 2001) (second habeas corpus application); In re Clemmons, 259 F.3d 489, 493 (6th Cir. 2001) (second habeas corpus application).

The sheer numbers of these cases are significant, and the problem is exacerbated by the advent of some 173 reported opinions concerning Apprendi issues in Illinois alone. In addition, some 144 cases are pending before Illinois reviewing courts addressing Apprendi issues, as of this writing. Not included in these figures are Supreme Court Rule 23, Finley, Anders and

summary orders. Permissible for use in citation under 6th Cir. R. 28(g). This finding is at odds with this division’s prior decision in People v. Bryant, 325 Ill. App. 3d 448, 758 N.E.2d 430 (2001) (Bryant), rejecting the State’s argument that even though the sentencing court and not the trier of fact determined the offense to be exceptionally brutal and heinous, any error was harmless because a rational trier of fact would have reached the same conclusion beyond a reasonable doubt based on the evidence at trial. When Bryant was decided we did not have the benefit of the Supreme Court’s decision in Cotton.

Further, as observed in Sanders, “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.” Sanders, 247 F.3d at 148.